Vol. 85 Friday, No. 109 June 5, 2020
Pages 34493–34956
OFFICE OF THE FEDERAL REGISTER
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Contents Federal Register Vol. 85, No. 109
Friday, June 5, 2020
Agricultural Marketing Service Committee for Purchase From People Who Are Blind or NOTICES Severely Disabled Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 34589 Procurement List; Additions and Deletions, 34601–34605
Agriculture Department Comptroller of the Currency See Agricultural Marketing Service RULES See Animal and Plant Health Inspection Service Community Reinvestment Act Regulations, 34734–34834 See Food and Nutrition Service NOTICES Consumer Product Safety Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 34589–34591 Meetings; Sunshine Act, 34605
Animal and Plant Health Inspection Service Defense Acquisition Regulations System PROPOSED RULES RULES Amendments to the Pale Cyst Nematode Regulations, Defense Federal Acquisition Regulation Supplement: 34537–34541 Justification and Approval Threshold for 8(a) Contracts, NOTICES 34528–34530 Decision to Authorize the Importation of Fresh Carrots Market Research and Consideration of Value for the From the Republic of Korea Into the United States, Determination of Price, 34530–34532 34591–34592 Modification of Clause—Notification of Anticipated Contract Termination or Reduction, 34535–34536 Bureau of Consumer Financial Protection Qualifications Requirements for Contracting Positions, RULES 34527–34528 Remittance Transfers under the Electronic Fund Transfer Repeal of Annual Reporting Requirements to Act (Regulation E), 34870–34909 Congressional Defense Committees, 34532–34533 Restrictions on Acquisitions from Foreign Sources; Centers for Disease Control and Prevention Correction, 34533–34535 NOTICES Technical Amendment; Correction, 34536 Agency Information Collection Activities; Proposals, Technical Amendments, 34530 Submissions, and Approvals, 34631–34637 PROPOSED RULES Defense Federal Acquisition Regulation Supplement: Children and Families Administration Data Collection and Inventory for Services Contracts, NOTICES 34569–34576 Agency Information Collection Activities; Proposals, Repeal of Clause—Tariff Information, 34576–34578 Submissions, and Approvals: Generic Clearance for the Comprehensive Child Welfare Defense Department Information System Review and Technical Assistance See Defense Acquisition Regulations System Process, 34637–34638 RULES Civilian Employment and Reemployment Rights for Service Civil Rights Commission Members, Former Service Members and Applicants of NOTICES the Uniformed Services, 34518 Meetings: PROPOSED RULES Minnesota Advisory Committee, 34596–34597 Federal Acquisition Regulation: Oregon Advisory Committee, 34597 Policy on Joint Ventures, 34561–34569
Coast Guard Drug Enforcement Administration RULES NOTICES Safety Zone: Bulk Manufacturer of Controlled Substances Application: Schwab Family Fireworks, Lake Huron, MI, 34519–34520 Chemtos, LLC, 34651–34655 Security Zone: Nalas Engineering Services, Inc., 34655–34656 HMS MEDWAY, St. Johns River, Jacksonville, FL, 34520– Sigma Aldrich Research Biochemicals, Inc., 34651 34522 Economic Development Administration Commerce Department NOTICES See Economic Development Administration Trade Adjustment Assistance; Determinations, 34597–34598 See First Responder Network Authority See Industry and Security Bureau Education Department See National Institute of Standards and Technology PROPOSED RULES See National Oceanic and Atmospheric Administration Proposed Requirements: See National Telecommunications and Information The Individuals with Disabilities Education Act Administration Paperwork Reduction Waivers, 34554–34559
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NOTICES Small Unmanned Aircraft Systems Accident Reporting, Agency Information Collection Activities; Proposals, 34712 Submissions, and Approvals: Loan Discharge Application: Forgery, 34610 Federal Communications Commission Special Education-Individual Reporting on Regulatory RULES Compliance Related to the Personnel Development Establishing a 5G Fund for Rural America; Universal Program’s Service Obligation and the Government Service Reform—Mobility Fund, 34525–34527 Performance and Results Act, 34609–34610 NOTICES Federal Need Analysis Methodology for the 2021–22 Award Agency Information Collection Activities; Proposals, Year—Federal Pell Grant, Federal Work-Study, Federal Submissions, and Approvals, 34629–34630 Supplemental Educational Opportunity Grant, William Privacy Act; Matching Programs, 34628–34629 D. Ford Federal Direct Loan, Iraq and Afghanistan Service Grant, and TEACH Grant Programs, 34605– Federal Deposit Insurance Corporation 34609 NOTICES Termination of Receivership, 34630 Energy Department See Federal Energy Regulatory Commission PROPOSED RULES Federal Energy Regulatory Commission Request for Information: NOTICES Energy Conservation Program: Test Procedure for Application: Commercial Prerinse Spray Valves, 34541–34545 Big Creek Lodge and Outfitters Inc.; Idaho Aviation NOTICES Foundation, 34617 Record of Decision: United Water Conservation District, 34617–34618 Disposition of Depleted Uranium Oxide Conversion Combined Filings, 34614–34617, 34620–34622 Product Generated from Department of Energy’s Initial Market-Based Rate Filings Including Requests for Inventory of Depleted Uranium Hexafluoride, 34610– Blanket Section 204 Authorizations: 34613 Calpine Northeast Development, LLC, 34617 Petition for Declaratory Order: Environmental Protection Agency ALLETE, Inc.; ALLETE South Wind, LLC, 34618–34619 RULES Shell Energy North America (US), L.P., 34620 Air Quality State Implementation Plans; Approvals and Village or Morrisville, VT, 34614 Promulgations: Request for Extension of Time: New Hampshire; Negative Declaration for the Oil and Gas Equitrans, LP, 34619–34620 Industry; Withdrawal, 34524–34525 National Fuel Gas Supply Corp., 34619 PROPOSED RULES Spire STL Pipeline, LLC, 34613–34614 Air Quality State Implementation Plans; Approvals and Promulgations: Federal Financial Institutions Examination Council Colorado; Revisions to Air Pollution Emission Notice NOTICES Rules, 34559–34561 Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Collection and Transmission of Annual Appraisal Submissions, and Approvals: Management Companies Registry Fees, 34630–34631 Anaerobic Digestion Facilities Processing Wasted Food to Support EPA’s Sustainable Materials Management Federal Highway Administration Program and Sustainable Management of Food NOTICES Efforts, 34627–34628 Environmental Impact Statements; Availability, etc.: Cancellation Order: Maui County, HI, 34712–34713 Certain Pesticide Registrations and Amendments to South Kohala, HI; Rescission, 34714 Terminate Uses, 34622–34625 Final Federal Agency Actions: Environmental Impact Statements; Availability, etc.: Proposed Highway in Utah, 34714–34715 Weekly Receipt, 34625–34626 Final State Agency Actions: Meetings: Interstate 10 Broadway Curve, Interstate 17 (Split) to Environmental Modeling, 34626 Loop 202 (Santan Freeway) in Maricopa County, AZ, 34713–34714 Farm Credit Administration NOTICES Meetings; Sunshine Act, 34628 Federal Motor Carrier Safety Administration NOTICES Federal Aviation Administration Qualification of Drivers; Exemption Applications: RULES Epilepsy and Seizure Disorders, 34715–34717, 34722– Special Conditions: 34724 Leonardo S.p.A., Model AW169; Use of 30-Minute All Hearing, 34717–34718 Engines Operating Power Rating, 34493–34495 Vision, 34719–34722 NOTICES Agency Information Collection Activities; Proposals, Federal Trade Commission Submissions, and Approvals: PROPOSED RULES Aircraft Noise Certification Documents for International Prohibition of Energy Market Manipulation Rule, 34548– Operations, 34711 34549
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First Responder Network Authority Request for Information: NOTICES Long-Term Monitoring of Health Care System Resilience, Meetings: 34644–34645 Public Combined Board and Board Committees, 34598 Homeland Security Department Fiscal Service See Coast Guard NOTICES See Transportation Security Administration Agency Information Collection Activities; Proposals, See U.S. Customs and Border Protection Submissions, and Approvals: U.S. Treasury Auction Submitter Agreement, 34731 Industry and Security Bureau RULES Fish and Wildlife Service Addition of Certain Entities to the Entity List; Revision of PROPOSED RULES Existing Entries on the Entity List, 34503–34508 Migratory Bird Permits: Addition of Entities to the Entity List, Revision of Certain Management of Conflicts Associated with Double-Crested Entries on the Entity List, 34495–34503 Cormorants (Phalacrocorax auritus) Throughout the United States, 34578–34588 Interior Department See Fish and Wildlife Service Food and Drug Administration See National Park Service RULES See Ocean Energy Management Bureau Guidance: See Office of Natural Resources Revenue Temporary Policy During the COVID–19 Public Health Emergency Regarding the Qualified Exemption from Internal Revenue Service the Standards for the Growing, Harvesting, Packing, NOTICES and Holding of Produce for Human Consumption, Meetings: 34508–34510 Electronic Tax Administration Advisory Committee, NOTICES 34731–34732 Authorization of Emergency Use of Certain Medical Devices during COVID–19, 34638–34641 International Trade Commission Guidance: NOTICES Q3C(R8) Recommendations for the Permitted Daily Complaint: Exposures for Three Solvents—2- Certain Chemical Mechanical Planarization Slurries and Methyltetrahydrofuran, Cyclopentyl Methyl Ether, Components Thereof, 34650–34651 and Tert-Butyl Alcohol—According to the Investigations; Determinations, Modifications, and Rulings, Maintenance Procedures for the Guidance Q3C etc.: Impurities: Residual Solvents; International Council Certain LTE- and 3G-Compliant Cellular Communications for Harmonisation, 34638 Devices, 34649–34650 Prestressed Concrete Steel Wire Strand from Argentina, Food and Nutrition Service Colombia, Egypt, Indonesia, Italy, Malaysia, NOTICES Netherlands, Saudi Arabia, South Africa, Spain, Agency Information Collection Activities; Proposals, Taiwan, Tunisia, Turkey, Ukraine, and United Arab Submissions, and Approvals: Emirates, 34648–34649 Supplemental Nutrition Assistance Program Forms: Applications, Periodic Reporting, and Notices, Justice Department 34592–34596 See Drug Enforcement Administration Foreign Assets Control Office See Justice Programs Office RULES Syria-related Sanctions Regulations, 34510–34518 Justice Programs Office NOTICES General Services Administration Meetings: PROPOSED RULES Coordinating Council on Juvenile Justice and Federal Acquisition Regulation: Delinquency Prevention, 34656 Policy on Joint Ventures, 34561–34569 NOTICES Labor Department Agency Information Collection Activities; Proposals, See Labor Statistics Bureau Submissions, and Approvals: Federal Management Regulation; Statement of Witness, Labor Statistics Bureau 34631 NOTICES Agency Information Collection Activities; Proposals, Health and Human Services Department Submissions, and Approvals, 34656–34658 See Centers for Disease Control and Prevention See Children and Families Administration Maritime Administration See Food and Drug Administration NOTICES See National Institutes of Health Requests for Administrative Waivers of the Coastwise Trade NOTICES Laws: Meetings: Vessel AZETA (Sailing Catamaran), 34725 National Committee on Vital and Health Statistics, 34641 Vessel GIGSPACE H20 (Sailing Catamaran), 34724
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National Aeronautics and Space Administration Office of Natural Resources Revenue PROPOSED RULES NOTICES Federal Acquisition Regulation: Agency Information Collection Activities; Proposals, Policy on Joint Ventures, 34561–34569 Submissions, and Approvals: Collection of Monies Due the Federal Government, National Archives and Records Administration 34647–34648 NOTICES Records Schedules, 34658–34659 Pipeline and Hazardous Materials Safety Administration NOTICES National Credit Union Administration Hazardous Materials: PROPOSED RULES Actions on Special Permits, 34727–34729 Joint Ownership Share Accounts, 34545–34548 Applications for Modifications to Special Permits, 34727 Applications for New Special Permits, 34725–34726 National Endowment for the Arts NOTICES Postal Regulatory Commission Meetings: NOTICES National Council on the Arts, 34659 New Postal Products, 34660–34661
National Foundation on the Arts and the Humanities Presidential Documents See National Endowment for the Arts PROCLAMATIONS Special Observances: National Institute of Standards and Technology African-American Music Appreciation Month (Proc. NOTICES 10044), 34939–34942 Rapid Microbial Testing Methods Consortium, 34598–34599 Great Outdoors Month (Proc. 10045), 34943–34944 National Caribbean-American Heritage Month (Proc. National Institutes of Health 10046), 34945–34946 NOTICES National Homeownership Month (Proc. 10047), 34947– Meetings: 34948 National Cancer Institute, 34643 National Ocean Month (Proc. 10048), 34949–34950 National Institute of Allergy and Infectious Diseases, EXECUTIVE ORDERS 34641–34644 Religious Freedom, International; Efforts To Advance (EO National Institute of Mental Health, 34642 13926), 34951–34953 National Library of Medicine, 34642 ADMINISTRATIVE ORDERS COVID–19 Response and Economic Recovery Facilitation; National Oceanic and Atmospheric Administration Continued Federal Support for Governors’ Use of NOTICES National Guard (Memorandum of June 2, 2020), 34955– Approval of a Boundary Expansion: 34956 Elkhorn Slough National Estuarine Research Reserve, 34601 Securities and Exchange Commission Meetings: NOTICES Mid-Atlantic Fishery Management Council, 34599 Meetings; Sunshine Act, 34669–34670 New England Fishery Management Council, 34600–34601 Self-Regulatory Organizations; Proposed Rule Changes: Cboe BZX Exchange, Inc., 34693–34697 National Park Service Cboe Exchange, Inc., 34670–34690 NOTICES Municipal Securities Rulemaking Board, 34661–34663 Agency Information Collection Activities; Proposals, New York Stock Exchange LLC, 34666–34669 Submissions, and Approvals: NYSE American LLC, 34663–34666 National Park Service Visitor Survey Card, 34646–34647 NYSE Arca, Inc., 34697–34700 Meetings: NYSE National, Inc., 34690–34693 National Park System Advisory Board, 34647 Small Business Administration National Telecommunications and Information NOTICES Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 34701 Meetings: Disaster Declaration: Public Combined Board and Board Committees, 34598 Kentucky; Administrative, 34700–34701 Texas; Administrative, 34702 Nuclear Regulatory Commission Major Disaster Declaration: NOTICES Mississippi; Public Assistance Only, 34701, 34703 Meetings; Sunshine Act, 34659–34660 Reporting and Recordkeeping Requirements, 34701–34702
Ocean Energy Management Bureau Social Security Administration RULES NOTICES Air Quality Control, Reporting, and Compliance, 34912– Agency Information Collection Activities; Proposals, 34938 Submissions, and Approvals, 34703–34707
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Surface Transportation Board U.S. Customs and Border Protection NOTICES PROPOSED RULES 2019 Tax Information for Use in the Revenue Shortfall Elimination of Customs Broker District Permit Fee, 34549– Allocation Method, 34708–34709 34554 Change of Operators Exemption: Modernization of the Customs Brokers Regulations, 34836– Merrimack and Grafton Railroad Corp.; Line of New 34867 England Southern Railroad Co., 34707 Continuance of Control Exemption: Veterans Affairs Department Trans Rail Holding Co.; Merrimack and Grafton Railroad RULES Corp., 34709 Home Visits in Program of Comprehensive Assistance for Discontinuance of Service Exemption: Family Caregivers during COVID–19 National CSX Transportation, Inc., Will County, IL, 34707–34708 Emergency, 34522–34524 NOTICES Meetings: Trade Representative, Office of United States Cooperative Studies Scientific Evaluation Committee, NOTICES 34732 Initiation of Section 301 Investigations of Digital Services Taxes, 34709–34711 Separate Parts In This Issue Transportation Department See Federal Aviation Administration Part II See Federal Highway Administration Treasury Department, Comptroller of the Currency, 34734– See Federal Motor Carrier Safety Administration 34834 See Maritime Administration See Pipeline and Hazardous Materials Safety Part III Administration Homeland Security Department, U.S. Customs and Border See Transportation Statistics Bureau Protection, 34836–34867
Transportation Security Administration Part IV NOTICES Bureau of Consumer Financial Protection, 34870–34909 Agency Information Collection Activities; Proposals, Part V Submissions, and Approvals: Security Appointment Center Visitor Request Form and Interior Department, Ocean Energy Management Bureau, Foreign National Vetting Request, 34645–34646 34912–34938 Part VI Transportation Statistics Bureau Presidential Documents, 34939–34953, 34955–34956 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reader Aids Report of Traffic and Capacity Statistics—The T-100 Consult the Reader Aids section at the end of this issue for System, 34729–34731 phone numbers, online resources, finding aids, and notice of recently enacted public laws. Treasury Department To subscribe to the Federal Register Table of Contents See Comptroller of the Currency electronic mailing list, go to https://public.govdelivery.com/ See Fiscal Service accounts/USGPOOFR/subscriber/new, enter your e-mail See Foreign Assets Control Office address, then follow the instructions to join, leave, or See Internal Revenue Service manage your subscription.
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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.
3 CFR 210...... 34530 212...... 34530 Proclamations: 215 (2 documents) ...... 34530, 10044...... 34941 34532 10045...... 34943 218...... 34527 10046...... 34945 219...... 34528 10047...... 34947 225...... 34533 10048...... 34949 234...... 34530 Executive Orders: 249...... 34535 13926...... 34951 252 (2 documents) ...... 34535, Administrative Orders: 34536 Memorandums: Proposed Rules: Memorandum of June 2...... 34561 2, 2020 ...... 34955 9...... 34561 7 CFR 15...... 34561 19...... 34561 Proposed Rules: 52...... 34561 301...... 34537 204...... 34569 10 CFR 212...... 34569 Proposed Rules: 239...... 34576 252 (2 documents) ...... 34569, 431...... 34541 34576 12 CFR 25...... 34734 50 CFR 195...... 34734 Proposed Rules: 1005...... 34870 21...... 34578 Proposed Rules: 745...... 34545 14 CFR 29...... 34493 15 CFR 744 (2 documents) ...... 34495, 34503 16 CFR Proposed Rules: 317...... 34548 19 CFR Proposed Rules: 24 (2 documents) ...... 34549, 34836 111 (2 documents) ...... 34549, 34836 21 CFR 112...... 34508 30 CFR 550...... 34912 31 CFR 569...... 34510 32 CFR 104...... 34518 33 CFR 165 (2 documents) ...... 34519, 34520 34 CFR Proposed Rules: Ch. III ...... 34554 38 CFR 71...... 34522 40 CFR 52...... 34524 Proposed Rules: 52...... 34559 47 CFR 0...... 34525 54...... 34525 48 CFR 201...... 34527 206...... 34528 208...... 34530
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Rules and Regulations Federal Register Vol. 85, No. 109
Friday, June 5, 2020
This section of the FEDERAL REGISTER Ground Floor at 1200 New Jersey Special condi- Company and helicopter contains regulatory documents having general Avenue SE, Washington, DC, between 9 tions number model applicability and legal effect, most of which a.m., and 5 p.m., Monday through are keyed to and codified in the Code of Friday, except Federal holidays. No. 29–037– Airbus Helicopters Deutsch- 1 Federal Regulations, which is published under • Fax: Fax comments to Docket SC . land GmbH Model MBB– 50 titles pursuant to 44 U.S.C. 1510. BK117 D–2. Operations at 202–493–2251. No. 29–034– AgustaWestland Model The Code of Federal Regulations is sold by Privacy: The FAA will post all SC 2. AW189. the Superintendent of Documents. comments it receives, without change, No. 29–011– Sikorsky Aircraft Corporation to http://regulations.gov, including any SC 3. Model S–92A. personal information the commenter No. 29–004– Sikorsky Model S76C. DEPARTMENT OF TRANSPORTATION provides. Using the search function of SC 4. the docket website, anyone can find and Federal Aviation Administration 1 79 FR 78694, December, 31, 2014. read the electronic form of all comments 2 79 FR 54889, September 15, 2014. received into any FAA docket, 3 67 FR 65871, October 29, 2002. 14 CFR Part 29 including the name of the individual 4 63 FR 32972, June 17, 1998. [Docket No. FAA–2020–0495; Special sending the comment (or signing the Comments Invited Conditions No. 29–049–SC] comment for an association, business, While the FAA did not precede these labor union, etc.). DOT’s complete special conditions with a notice of Special Conditions: Leonardo S.p.A. Privacy Act Statement can be found in proposed special conditions, the FAA (Leonardo), Model AW169; Use of 30- the Federal Register published on April invites interested people to take part in Minute All Engines Operating (AEO) 11, 2000 (65 FR 19477–19478), as well this rulemaking by sending written Power Rating as at http://DocketsInfo.dot.gov. comments, data, or views. The most Docket: Background documents or AGENCY: Federal Aviation helpful comments reference a specific comments received may be read at Administration (FAA), DOT. portion of the special conditions, http://www.regulations.gov at any time. ACTION: Final special conditions; request explain the reason for any Follow the online instructions for for comments. recommended change, and include accessing the docket or go to the Docket supporting data. SUMMARY: These special conditions are Operations in Room W12–140 of the The FAA will consider all comments issued for the Leonardo Model AW169 West Building Ground Floor at 1200 received by the closing date for helicopter. This model helicopter will New Jersey Avenue SE, Washington, comments. The FAA will consider have the novel or unusual design feature DC, between 9 a.m., and 5 p.m., Monday comments filed late if it is possible to associated with a 30-minute all engines through Friday, except Federal holidays. do so without incurring expense or operating (AEO) power rating. The FOR FURTHER INFORMATION CONTACT: Rao delay. The FAA may change these applicable airworthiness regulations do Edupuganti, Regulations and Policy special conditions based on the not contain adequate or appropriate Section, AIR–681, Rotorcraft Standards comments received. safety standards for this design feature. Branch, Policy & Innovation Division, These special conditions contain the Aircraft Certification Service, 10101 Background additional safety standards that the Hillwood Parkway, Fort Worth, Texas On August 20, 2019, Leonardo Administrator considers necessary to 76177; telephone (817) 222–4389; applied for FAA validation of its change establish a level of safety equivalent to facsimile (817) 222–5961. to Type Certificate (TC) No. R00007RD that established by the existing SUPPLEMENTARY INFORMATION: for a 30-minute AEO power rating for airworthiness standards. the Model AW169 helicopter. The Reason for No Prior Notice and DATES: The effective date of these Model AW169 is a Transport Category, Comment Before Adoption special conditions is June 22, 2020. The twin engine helicopter designed for civil FAA must receive your comments by The FAA has determined, in operations. This model has a 10 seat July 6, 2020. accordance with 5 U.S.C. 553(b)(3)(B) capacity and is type certificated as a ADDRESSES: Send comments identified and 553(d)(3), that notice and Category A rotorcraft under instrument by docket number FAA–2020–0495 opportunity for prior public comment flight rules for both single and dual pilot using any of the following methods: hereon are unnecessary because configurations. It is powered by two • Federal eRegulations Portal: Go to substantially identical special Pratt & Whitney Canada Model PW210A http://www.regulations.gov and follow conditions have been previously subject engines. the online instructions for sending your to the public comment process in Leonardo proposes that the Model comments electronically. several prior instances such that the AW169 include the use of a novel and • Mail: Send comments to Docket FAA is satisfied that new comments are unusual design feature, which is a 30- Operations, M–30, U.S. Department of unlikely. For the same reason, the FAA minute AEO power rating. The 30- Transportation (DOT), 1200 New Jersey finds that good cause exists for adopting minute AEO power rating is generally Avenue SE, Room W12–140, West these special conditions upon issuance. intended to be used for hovering at Building Ground Floor, Washington, DC The FAA is requesting comments to increased power for search and rescue 20590–0001. allow interested persons to submit missions. 14 CFR 1.1 defines ‘‘rated • Hand Delivery of Courier: Take views that may not have been submitted takeoff power’’ as limited in use to no comments to Docket Operations in in response to the prior opportunities more than 5 minutes for takeoff Room W12–140 of the West Building for comment. operation. The use of takeoff power for
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30 minutes will require special special conditions are prescribed under of helicopters. It is not a rule of general airworthiness standards, known as the provisions of 14 CFR 21.16. applicability. special conditions, to address the use of The FAA issues special conditions, as List of Subjects in 14 CFR Part 29 this 30-minute AEO rating and its defined in § 11.19, in accordance with effects on the rotorcraft. These special § 11.38, and they become part of the Aircraft, Aviation safety, Reporting conditions will add requirements to the type certification basis under § 21.101. and recordkeeping requirements. existing airworthiness standards in 14 Special conditions are initially The authority citation for these CFR 29.1049 (Hovering cooling test applicable to the model for which they special conditions is as follows: procedures), § 29.1305 (Powerplant are issued. Should the TC for that model be amended later to include any other Authority: 49 U.S.C. 106(g), 40113, 44701– instruments), and § 29.1521 (Powerplant 44702, 44704. limitations). model that incorporates the same novel or unusual design feature, the special The Special Conditions Type Certification Basis conditions would also apply to the other Accordingly, pursuant to the Under 14 CFR 21.101, Leonardo must model under § 21.101. authority delegated to me by the show that the Model AW169 helicopter, Novel or Unusual Design Features Administrator, the following special as changed, continues to meet the conditions are issued as part of the type The Leonardo Model AW169 applicable provisions of the regulations certification basis for the Leonardo helicopter will incorporate the incorporated by reference in TC No. Model AW169 helicopter. Unless stated following novel or unusual design R00007RD or the applicable regulations otherwise, all requirements in feature: §§ 29.1049, 29.1305, and 29.1521 in effect on the date of application for • A 30-minute AEO power rating. the change. The regulations remain unchanged. incorporated by reference in the TC are Discussion Section 29.1049, Hovering cooling test commonly referred to as the ‘‘original The following is a summary of the procedures. In addition to the type certification basis.’’ The regulations final special conditions: requirements of this section, for incorporated by reference in TC No. (a) In addition to the requirements of rotorcraft with a 30-minute all engines R00007RD are as follows: § 29.1049, the aircraft cooling effects operating (AEO) power rating, the hovering cooling provisions at the 30- 14 CFR part 21.29. due to the use of the 30-minute AEO 14 CFR part 29 Amendment 29–1 through power rating versus the Takeoff (5- minute AEO power rating must be 29–52, dated March 30, 2010. minute) rating must be accounted for in shown— 14 CFR part 36 appendix H, Amendment the testing. (a) At maximum weight or at the 36–1 through 36–28, dated March 11, 2013. (b) In addition to the requirements of greatest weight at which the rotorcraft 14 CFR part 29 Amendment 29–1 through § 29.1305, since this new 30-minute can hover (if less), at sea level, with the 29–55 only for Hoist Installation. AEO power rating has a time limit power required to hover but not more Equivalent Level of Safety Findings issued than the 30-minute power, in the against: associated with its use, the pilot must have the means to identify: ground effect in still air, until at least 5 (a) 14 CFR 29.807(c) Emergency Exits minutes after the occurrence of the Access (documented in ELOS Memo (1) When the rated engine power level is achieved, highest temperature recorded, or until TC4266RD–R–C–01). the continuous time limit of the 30- (b) 14 CFR 29.813(c) Passenger access to (2) When the event begins, each emergency exit (documented in ELOS (3) When the time interval expires, minute AEO power rating if the highest Memo TC4266RD–R–C–02). and temperature recorded is not stabilized (c) 14 CFR 29.811(c) Emergency exit (4) When the cumulative time in one before. marking (documented in ELOS Memo flight is reached. (b) At maximum weight and at the TC4266RD–R–C–03). (c) In addition to the requirements of altitude resulting in zero rate of climb (d) 14 CFR 29 Subpart B, 29.1305, 29.1549 § 29.1521, this new 30-minute AEO for this configuration, until at least 5 ‘‘Engine Training Mode’’ (documented in power rating must be limited to not minutes after the occurrence of the ELOS Memo TC4266RD–R–F–01). more than 30 minutes per use. This new highest temperature recorded, or until (e) 14 CFR 29.1545(b)(4) Airspeed indicator rating will allow the use of power above the continuous time limit of the 30- green arcs (documented in ELOS Memo minute AEO power rating if the highest TC4266RD–R–F–02). maximum continuous power (MCP) for (f) 14 CFR 29.1305 and 29.1549 Power 30 minutes. temperature recorded is not stabilized Index (documented in ELOS Memo (d) Furthermore, the Model AW169 before. TC4266RD–R–F–06). rotorcraft flight manual must include Section 29.1305 Powerplant limitations on the use of the 30-minute instruments, at Amendment 29–40. In In addition to the applicable AEO power rating, which states that addition to the requirements of this airworthiness regulations and special continuous use above MCP takeoff section, for rotorcraft with a 30-minute conditions, the Leonardo Model AW169 power is limited to 30 minutes. AEO power rating, a means must be helicopter must comply with the fuel provided to alert the pilot when the vent and exhaust emission requirements Applicability engine is at the 30-minute power level, of 14 CFR part 34 and the noise These special conditions are when the event begins, when the time certification requirements of 14 CFR applicable to the Leonardo Model interval expires, and when the part 36. AW169 helicopter. Should Leonardo cumulative time in one flight is reached. Regulatory Basis for Special Conditions apply at a later date for an amendment Section 29.1521 Powerplant to the TC to include another model limitations, at Amendment 29–41. In The Administrator has determined incorporating the same novel or unusual addition to the requirements of this that the applicable airworthiness design feature, the special conditions section, the use of the 30-minute AEO regulations (that is, 14 CFR part 29) do would apply to that model as well. power must be limited to not more than not contain adequate or appropriate 30 minutes per use. The use of the 30- safety standards for the Leonardo Model Conclusion minute power must also be limited by: AW169 helicopter because of a novel or This action affects only certain novel (1) The maximum rotational speed, unusual design feature. Therefore, or unusual design features on one model which may not be greater than—
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(i) The maximum value determined DATES: This rule is effective June 5, an illustrative list of activities that could by the rotor design; or 2020. be considered contrary to the national (ii) The maximum value demonstrated FOR FURTHER INFORMATION CONTACT: security or foreign policy interests of the during the type tests; Chair, End-User Review Committee, United States. (2) The maximum allowable turbine Office of the Assistant Secretary for This rule implements the decision of inlet or turbine outlet gas temperature Export Administration, Bureau of the ERC to add twenty-four entities, under a total of twenty-five entries (one (for turbine engines); Industry and Security, Department of entity is identified in two destinations) (3) The maximum allowable power or Commerce, Phone: (202) 482–5991, Fax: to the Entity List. The twenty-four torque for each engine, considering the (202) 482–3911, Email: ERC@ entities being added are located in power input limitations of the bis.doc.gov. transmission with AEO; China, Hong Kong and the U.K. The (4) The maximum allowable power or SUPPLEMENTARY INFORMATION: ERC made the decision to add each of torque for each engine considering the Background the twenty-four entities described below power input limitations of the under the standard set forth in The Entity List (Supplement No. 4 to transmission with one engine § 744.11(b) of the EAR. part 744 of the Export Administration inoperative; The ERC determined to add Beijing Regulations (EAR)) identifies entities for (5) The time limit for the use of the Cloudmind Technology Co., Ltd., which there is reasonable cause to power corresponding to the limitations Kunhai (Yanjiao) Innovation Research believe, based on specific and established in paragraphs (1) through (4) Institute, and Qihoo 360 Technology articulable facts, that the entities have above; and Company to the Entity List under the been involved, are involved, or pose a (6) The maximum allowable engine destination of China; to add significant risk of being or becoming and transmission oil temperatures, if the Cloudminds (Hong Kong) Limited under involved in activities contrary to the time limit established in paragraph (5) the destination of Hong Kong; and to national security or foreign policy above exceeds 2 minutes. add Cloudminds Inc. and Qihoo 360 interests of the United States. The EAR Technology Co. Ltd. under the Issued in Fort Worth, Texas, on May 5, (15 CFR parts 730–774) impose destination of the U.K. These six entities 2020. additional license requirements on, and are being added to the Entity List Jorge Castillo, limit the availability of most license because the ERC determined there is Manager, Rotorcraft Standards Branch, AIR– exceptions for, exports, reexports, and reasonable cause to believe that these 680, Policy & Innovation Division, Aircraft transfers (in-country) to listed entities. entities pose a significant risk of Certification Service. The license review policy for each listed becoming involved in activities—the [FR Doc. 2020–10421 Filed 6–4–20; 8:45 am] entity is identified in the ‘‘License procurement of commodities and BILLING CODE 4910–13–P review policy’’ column on the Entity technologies for military end-use in List, and the impact on the availability China—that are contrary to the national of license exceptions is described in the security interests of the United States. DEPARTMENT OF COMMERCE relevant Federal Register notice adding The ERC determined to add Beijing entities to the Entity List. BIS places Computational Science Research Center, Bureau of Industry and Security entities on the Entity List pursuant to Beijing Jincheng Huanyu Electronics part 744 (Control Policy: End-User and Co., Ltd., Center for High Pressure 15 CFR Part 744 End-Use Based) and part 746 Science and Technology Advanced (Embargoes and Other Special Controls) Research, Chengdu Fine Optical [Docket No. 200407–0100] of the EAR. Engineering Research Center, China The End-User Review Committee Jiuyuan Trading Corporation, Peac RIN 0694–AI07 (ERC), composed of representatives of Institute of Multiscale Science, Sichuan Addition of Entities to the Entity List, the Departments of Commerce (Chair), Dingcheng Material Trade Co., Ltd., Revision of Certain Entries on the State, Defense, Energy and, where Sichuan Haitian New Technology Group Entity List appropriate, the Treasury, makes all Co. Ltd., Sichuan Zhonghe Import and decisions regarding additions to, Export Trade Co., Ltd., and Skyeye AGENCY: Bureau of Industry and removals from, or other modifications to Laser Technology Limited to the Entity Security, Commerce. the Entity List. The ERC makes all List under the destination of China on ACTION: Final rule. decisions to add an entry to the Entity the basis of their procurement of U.S.- List by majority vote and all decisions origin items for activities contrary to the SUMMARY: In this rule, the Bureau of to remove or modify an entry by national security or foreign policy Industry and Security (BIS) amends the unanimous vote. interests of the United States. These ten Export Administration Regulations entities are owned by, operated by, or (EAR) by adding twenty-four entities, ERC Entity List Decisions directly affiliated with the Chinese under twenty-five entries, to the Entity Under § 744.11(b) (Criteria for Academy of Engineering Physics List. These twenty-four entities have revising the Entity List) of the EAR, (CAEP), which is the technology been determined by the U.S. entities for which there is reasonable complex responsible for the research, Government to be acting contrary to the cause to believe, based on specific and development and testing of China’s national security or foreign policy articulable facts, that the entities have nuclear weapons and has been on the interests of the United States. The been involved, are involved, or pose a Entity List under the destination of entities are located under the significant risk of being or becoming China since June 30, 1997 (62 FR destination of the People’s Republic of involved in activities that are contrary 35334). (As discussed further below, the China (China), Hong Kong and the to the national security or foreign policy existing entry for CAEP is being United Kingdom (U.K.). This rule also interests of the United States, and those modified by this rule to add an address modifies three existing entries on the acting on behalf of such entities, may be and change the license review policy.) Entity List under the destination of added to the Entity List. Paragraphs The ERC determined to add Harbin China. (b)(1) through (b)(5) of § 744.11 provide Engineering University to the Entity List
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under the destination of China, for exporters, reexporters, and transferors in China Electronics Technology Group acquiring and attempting to acquire identifying entities on the Entity List. Corporation 55th Research Institute U.S.-origin items in support of programs For the reasons described above, this (CETC 55), which was first added to the for the People’s Liberation Army. This final rule adds the following twenty- Entity List under the destination of activity is contrary to national security four entities, under a total of twenty-five China on August 1, 2018 (83 FR 37427). and foreign policy interests under entities, to the Entity List: BIS is modifying the existing entry by § 744.11(b)(3) and (5) of the EAR. editing it to identify ‘‘NEDITEK,’’ The ERC determined to add Harbin China currently listed as the fourth alias for Institute of Technology, Harbin • Beijing Cloudmind Technology Co., the entry, as a third subordinate Chuangyue Technology Co., Ltd., and Ltd.; institution under this same entry. This Harbin Yun Li Da Technology and • Beijing Computational Science rule also adds an additional address, Development Co., Ltd. to the Entity List Research Center; ‘‘2nd Floor, B4 Block, Jiulonghui Park, under the destination of China, for • Beijing Jincheng Huanyu No. 19 Suyuan Avenue, Nanjing, acquiring and attempting to acquire Electronics Co., Ltd.; China,’’ for this entry. U.S.-origin items in support of programs • Center for High Pressure Science This rule implements the decision of for the People’s Liberation Army. and Technology Advanced Research; the ERC to modify the existing entry for Specifically, Harbin Institute of • Chengdu Fine Optical Engineering the Chinese Academy of Engineering Technology has sought to use U.S. Research Center; Physics, which was first added to the technology for Chinese missile • China Jiuyuan Trading Corporation; Entity List under the destination of programs. This activity is contrary to • Harbin Chuangyue Technology Co. China on June 30, 1997 (62 FR 35334). national security and foreign policy Ltd.; BIS is modifying the existing entry by interests under § 744.11(b)(3) of the • Harbin Engineering University; adding three additional addresses, ‘‘64 EAR. • Harbin Institute of Technology; Mianshan Road, Mianyang, Sichuan, The ERC determined to add to the • Harbin Yun Li Da Technology and China; and 6 Huayuan Road, Haidian Entity List Shanghai Nova Instruments Development Co., Ltd.; District, Beijing, China; and 1 Fenghao Co., Ltd., and Zhu Jiejin under the • JCN (HK) Technology Co., Ltd.; East Road, Haidian District, Beijing, destination of China, K Logistics (China) • Kunhai (Yanjiao) Innovation China.’’ In addition, BIS is modifying an Limited under the destination of Hong Research Institute; existing address for Chinese Academy of Kong, and JCN (HK) Technology Co. • Peac Institute of Multiscale Science; Engineering Physics, to correct a zip Ltd. under the destinations of China and • Qihoo 360 Technology Company; code from ‘‘6100003’’ to ‘‘610003.’’ This Hong Kong. The ERC determined that • Shanghai Nova Instruments Co., rule also implements the decision of the Shanghai Nova Instruments Co., Ltd., K Ltd.; ERC to modify the license review policy Logistics (China) Limited, and Zhu • Sichuan Dingcheng Material Trade for this entry from case-by-case to Jiejin have been involved in the Co., Ltd.; presumption of denial. Lastly, this rule procurement of items subject to the EAR • Sichuan Haitian New Technology adds ‘‘(See § 744.11 of the EAR).’’ to for possible use in missile and Group Co., Ltd.; clarify the license requirement for this unmanned aerial vehicle applications in • Sichuan Zhonghe Import and entry. China without the licenses required Export Trade Co., Ltd.; Savings Clause pursuant to §§ 744.3 and 744.21 of the • Skyeye Laser Technology Limited; EAR. JCN (HK) Technology Co. Ltd. is and Shipments of items removed from co-located with Reekay Technologies, • Zhu Jiejin. eligibility for a License Exception or which was added to the Entity List on export or reexport without a license November 12, 2015 (80 FR 69856) for Hong Kong (NLR) as a result of this regulatory supplying U.S.-origin items for the • Cloudminds (Hong Kong) Limited; action that were en route aboard a Iranian defense industry. • JCN (HK) Technology Co., Ltd.; and carrier to a port of export or reexport, on Pursuant to § 744.11(b), the ERC • K Logistics (China) Limited. June 5, 2020, pursuant to actual orders determined that the conduct of the for export or reexport to a foreign above-described twenty-four entities United Kingdom destination, may proceed to that raises sufficient concerns that prior • Cloudminds Inc.; and destination under the previous review of exports, reexports, or transfers • Qihoo 360 Technology Co. Ltd. eligibility for a License Exception or (in-country) of all items subject to the Modifications to the Entity List export or reexport without a license EAR involving these entities, and the (NLR). Shipments of items exported, possible imposition of license This final rule implements the reexported or transferred (in-country conditions or license denials on decision of the ERC to modify three under the authority of a BIS-issued shipments to the entities, will enhance existing entries under the destination of license that were en route aboard a BIS’s ability to prevent violations of the China as follows: carrier to a port of export or reexport, on EAR. For the twenty-four entities added This rule implements the decision of June 5, 2020, pursuant to actual orders to the Entity List in this final rule, BIS the ERC to modify the existing entry for for export or reexport to a foreign imposes a license requirement for all China Electronics Technology Group destination, may proceed to that items subject to the EAR and a license Corporation 38th Research Institute destination under the authorization of review policy of a presumption of (CETC 38), which was first added to the the issued license. denial for all of these entities. In Entity List under the destination of addition, no license exceptions are China on August 1, 2018 (83 FR 37427). Export Control Reform Act of 2018 available for exports, reexports, or BIS is modifying the existing entry by On August 13, 2018, the President transfers (in-country) to the persons removing one of the addresses ‘‘418 signed into law the John S. McCain being added to the Entity List in this Guilin Road, Shanghai, China’’ included National Defense Authorization Act for rule. The acronym ‘‘a.k.a.’’ (also known for this entry. Fiscal Year 2019, which included the as) is used in entries on the Entity List This rule implements the decision of Export Control Reform Act of 2018 to identify aliases, thereby assisting the ERC to modify the existing entry for (ECRA) (50 U.S.C. 4801–4852). ECRA
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provides the legal basis for BIS’s Application Processing System, which 44025, 3 CFR, 2001 Comp., p. 783; E.O. principal authorities and serves as the includes, among other things, license 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. authority under which BIS issues this applications and carries a burden 223; Notice of November 12, 2019, 84 FR rule. As set forth in Section 1768 of estimate of 42.5 minutes for a manual or 61817 (November 13, 2019). ECRA, all delegations, rules, electronic submission. Total burden ■ 2. Supplement No. 4 to part 744 is regulations, orders, determinations, hours associated with the PRA and amended: licenses, or other forms of OMB control number 0694–0088 are not ■ a. Under CHINA, PEOPLE’S administrative action that were made, expected to increase as a result of this REPUBLIC OF, issued, conducted, or allowed to rule. You may send comments regarding ■ become effective under the Export the collection of information associated i. By adding in alphabetical order Administration Act of 1979 (50 U.S.C. with this rule, including suggestions for entries for ‘‘Beijing Cloudmind 4601 et seq.) (as in effect on August 12, reducing the burden, to Jasmeet K. Technology Co., Ltd.,’’ ‘‘Beijing 2018, and as continued in effect Seehra, Office of Management and Computational Science Research pursuant to the International Emergency Budget (OMB), by email to Jasmeet_K._ Center,’’ ‘‘Beijing Jincheng Huanyu Economic Powers Act (50 U.S.C. 1701 et [email protected], or by fax to (202) Electronics Co., Ltd.,’’ ‘‘Center for High seq.)) or under the Export 395–7285. Pressure Science and Technology Administration Regulations, and were 3. This rule does not contain policies Advanced Research,’’ ‘‘Chengdu Fine in effect as of August 13, 2018, shall with Federalism implications as that Optical Engineering Research Center,’’ continue in effect according to their term is defined in Executive Order ‘‘China Jiuyuan Trading Corporation,’’ terms until modified, superseded, set 13132. ‘‘Harbin Chuangyue Technology Co. aside, or revoked under the authority of 4. Pursuant to section 1762 of the Ltd.,’’ ‘‘Harbin Engineering University,’’ ECRA. Export Control Reform Act of 2018 (50 ‘‘Harbin Institute of Technology,’’ U.S.C. 4801–4852), which was included ‘‘Harbin Yun Li Da Technology and Rulemaking Requirements in the John S. McCain National Defense Development Co., Ltd.,’’ ‘‘JCN (HK) 1. Executive Orders 13563 and 12866 Authorization Act for Fiscal Year 2019, Technology Co., Ltd.,’’ ‘‘Kunhai direct agencies to assess all costs and this action is exempt from the (Yanjiao) Innovation Research benefits of available regulatory Administrative Procedure Act (5 U.S.C. Institute,’’ ‘‘Peac Institute of Multiscale alternatives and, if regulation is 553) requirements for notice of Science,’’ ‘‘Qihoo 360 Technology necessary, to select regulatory proposed rulemaking, opportunity for Company,’’ ‘‘Shanghai Nova approaches that maximize net benefits public participation, and delay in Instruments Co., Ltd.,’’ ‘‘Sichuan (including potential economic, effective date. Dingcheng Material Trade Co., Ltd.,’’ environmental, public health and safety 5. Because a notice of proposed ‘‘Sichuan Haitian New Technology effects, distributive impacts, and rulemaking and an opportunity for Group Co., Ltd.,’’ ‘‘Sichuan Zhonghe equity). Executive Order 13563 public comment are not required to be Import and Export Trade Co., Ltd,’’ emphasizes the importance of given for this rule by 5 U.S.C. 553, or ‘‘Skyeye Laser Technology Limited,’’ quantifying both costs and benefits, of by any other law, the analytical and ‘‘Zhu Jiejin;’’ reducing costs, of harmonizing rules, requirements of the Regulatory ■ ii. By revising the entries for ‘‘China and of promoting flexibility. This rule Flexibility Act, 5 U.S.C. 601, et seq., are Electronics Technology Group has been determined to be not not applicable. Accordingly, no Corporation 38th Research Institute significant for purposes of Executive regulatory flexibility analysis is required (CETC 38),’’ ‘‘China Electronics Order 12866. This rule is not an and none has been prepared. Technology Group Corporation 55th Executive Order 13771 regulatory action List of Subjects in 15 CFR Part 744 Research Institute (CETC55)’’ and because this rule is not significant under ‘‘Chinese Academy of Engineering Executive Order 12866. Exports, Reporting and recordkeeping Physics’’; requirements, Terrorism. 2. Notwithstanding any other ■ b. Under HONG KONG, by adding in provision of law, no person is required Accordingly, part 744 of the Export alphabetical order entries for to respond to nor be subject to a penalty Administration Regulations (15 CFR ‘‘Cloudminds (Hong Kong) Limited,’’ for failure to comply with a collection parts 730–774) is amended as follows: ‘‘JCN (HK) Technology Co., Ltd.,’’ and of information, subject to the PART 744—[AMENDED] ‘‘K Logistics (China) Limited’’; and requirements of the Paperwork ■ c. Under UNITED KINGDOM, by Reduction Act of 1995 (44 U.S.C. 3501 ■ 1. The authority citation for 15 CFR adding in alphabetical order entries for et seq.) (PRA), unless that collection of part 744 continues to read as follows: ‘‘Cloudminds Inc.,’’ and ‘‘Qihoo 360 information displays a currently valid Technology Co. Ltd.’’ Office of Management and Budget Authority: 50 U.S.C. 4801–4852; 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. ■ The additions and revisions read as (OMB) Control Number. This regulation 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. follows: involves collections previously 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 approved by OMB under control Comp., p. 219; E.O. 13026, 61 FR 58767, 3 Supplement No. 4 to Part 744—Entity number 0694–0088, Simplified Network CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR List
License License Federal Register Country Entity requirement review policy citation
*******
CHINA, PEO- ****** PLE’S RE- PUBLIC OF.
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License License Federal Register Country Entity requirement review policy citation
Beijing Cloudmind Technology Co., For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE Ltd., a.k.a., the following two aliases: the EAR. (See § 744.11 NUMBER 6/5/20]. —Cloudminds Technologies Co., Ltd.; of the EAR). and —Daxie Technology. Room 601–602, 4A Block, Baiziwan, Chaoyang District, Beijing 100022 China; and Room 220, No. 5, Jiaodao Da St., Fangshan District, Beijing, China; and 33/F, Unit 8, Wanjing Soho, Chaoyang District, Beijing, China; and No. 10 Wangjing Street, Wangjing SOHO Tower 2, Block C, Room 1506, Chaoyang Dis- trict, Beijing, 100096 China; and No. 88 Nongda South Road, Wanlin Building, 2/F, Haidian District, Beijing 100022 China. Beijing Computational Science Re- For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE search Center, a.k.a., the following the EAR. (See § 744.11 NUMBER 6/5/20]. three aliases: of the EAR). —BCSRC; —Beijing Computing Science Research Center; and —CSRC. Bldg. 9 East Zone, ZPark II No. 10 East Xibeiwang Road, Beijing, China; and Building 9, East District, Zhongguancun Software Park, No. 10, Northwest Wangdong Road, Haidian District, Beijing, China. ****** Beijing Jincheng Huanyu Electronics For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE Co., Ltd., Room 303, Building 7, No. the EAR. (See § 744.11 NUMBER 6/5/20]. 69, North Third Ring Road, Haidian of the EAR). District, Beijing, China; and No. 64 Mianshan Road, Mianyang City, Sichuan, China; and No. 11 Jindu Section Airport Road, Chengdu, China; and 302, 3rd Floor, Building 7, No 13 Building, Huayuan Road, Haidian District, Beijing, China; and Rm 7–302, No. Jia 13, Huayuan Road, Haidian, China. ****** Center for High Pressure Science and For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE Technology Advanced Research, the EAR. (See § 744.11 NUMBER 6/5/20]. a.k.a., the following two aliases: of the EAR). —HPSTAR; and; —Beijing High Voltage Science Re- search Center. No. 1690 Cailun Rd. Shanghai, China; and No. 10, Northeast Wangxi Road, Haidian District, Beijing, China; and 3rd Floor, Dongrong Building, No. 2699 Qianjin Street, High-Tech De- velopment Zone, Changchun City, Jilin Province, China; and Bldg. 8 East Zone, ZPark II No. 10, East Xibeiwang Road, Beijing, China. ****** Chengdu Fine Optical Engineering Re- For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE search Center, the EAR. (See § 744.11 NUMBER 6/5/20]. No 3 Keyuan, 1st Road, Chengdu Hi- of the EAR). Tech Zone, Chengdu, China. ******
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License License Federal Register Country Entity requirement review policy citation
China Electronics Technology Group For all items subject to Presumption of denial. 83 FR 37427, 8/1/18. Corporation 38th Research Institute the EAR. (See § 744.11 85 FR [INSERT FR PAGE (CETC 38), a.k.a., the following of the EAR). NUMBER 6/5/20]. seven aliases, and seven subordi- nate institutions: —Hefei Institute of Electronic Engineer- ing; —Southwest China Research Institute of Radar Technology; —East China Research Institute of Electronic Engineering; —ECRIEE; —No 38 Research Institute; —Research Institute 38; and —CETC Research Institute 38. Subordinate institution Anhui Sun-Create Electronics. Subordinate institution Anhui Bowei Chang An Electronics. Subordinate institution ECU Electronic Industrial. Subordinate institution Hefei ECU–TAMURA Electric. Subordinate institution Anhui Bowei Guangcheng Information Technology. Subordinate institution Anhui Bowei Ruida Electronics Tech- nology. Subordinate institution Brainware Terahertz. The following addresses apply to the entity and to the seven subordinate institutions: 199 Xiangzhang Ave., Hefei, Anhui, China; and 19 He Huan Lu, Hefei, China; and 19 Hehuan Road, Hefei, China; and 260 Ji Xi Road, Hefei, China; and 88 Pihe Road, Hefei, China; and Forward Road, Economics Development Zone of Luan, Luan, Anhui, China. China Electronics Technology Group For all items subject to Presumption of denial. 83 FR 37427, 8/1/18. Corporation 55th Research Institute the EAR. (See § 744.11 85 FR [INSERT FR PAGE (CETC55), a.k.a., the following three of the EAR). NUMBER 6/5/20]. aliases, and three subordinate institu- tions: —Nanjing Electronic Devices Institute; —CETC Research Institute 55; and —NEDI. 524 Zhongzhan East Road, Nanjing, Jiangsu, China; and 524 East Zhongshan Road, Nanjing, Jiangsu, China; and 523 East Zhongshang Road, Nanjing, Jiangsu, China; and 166 Middle Zhenghang Road, Nanjing, China; and 166 Zhengfang Mid Road, Nanjing, China; and 166 Zhengfang Mid Road, Nanjing, China; and Huaxia Sci and Tech Park Hi-Tech Development, Nanjing, China; and RM 2105 Huaxia Bldg., No 81 Zhongshan Rd., Nanjing, China; and 8 Xingwen Road, Eco- nomic and Tech, Nanjing, China.
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License License Federal Register Country Entity requirement review policy citation
Subordinate institution Nanjing Guosheng Electronics, 8 Xingwen Road, Economic and Tech, Nanjing, China; and 166 Middle Zhenghang Road, Nanjing, China; and 166 Zhengfang Mid Road, Nanjing, China; and 166 Zhengfand Mid Road, Nanjing, China; and 168 Zhengfand Mid Road, Nanjing, China; and 165 Zhangfang Mid- Road, Nanjing, China; and 414 South Zhong Shan Road, Nanjing, Jiangsu, China; and Subordinate institution Nanjing Guobo Electronic, 166 Zhengfang Mid Road, Nanjing, China. Subordinate institution NEDITEK, a.k.a, the following three aliases: —NEDI Technology; —NTESY; and —Nanjing Nade Technology. 2nd Floor, B4 Block, Jiulonghui Park, No. 19 Suyuan Avenue, Nanjing, China; and 524 Zhongzhan East Road, Nanjing, Jiangsu, China; and 524 East Zhongshan Road, Nanjing, Jiangsu, China; and 523 East Zhongshang Road, Nanjing, Jiangsu, China; and 166 Middle Zhenghang Road, Nanjing, China; and 166 Zhengfang Mid Road, Nanjing, China; and 166 Zhengfang Mid Road, Nanjing, China; and Huaxia Sci and Tech Park Hi-Tech Develop- ment, Nanjing, China; and RM 2105 Huaxia Bldg., No 81 Zhongshan Rd., Nanjing, China; and 8 Xingwen Road, Economic and Tech, Nanjing, China. ****** China Jiuyuan Trading Corporation, For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE a.k.a., the following three aliases: the EAR. (See § 744.11 NUMBER 6/5/20]. —China Long Term Material Trading of the EAR). Company; —China Long-Standing Material Trad- ing Company; and —China Jiuyuan High-Tech Equipment Company. 64 Mianshan Road, Mianyang City, Sichuan, China; and No 169, West Section, Yihuan Road, Chengdu, China; and No. 11 Jindu Section Air- port Road, Chengdu, China; and Rm. 302 Genfang International, No. A13, Huayuan Rd., Haidian, Beijing, China; and 8 Huayuan Road, Haidian District Beijing; and 6 Huayuan Road, Haidian District Beijing; and 1 Fenghao East Road, Haidian District, Beijing, China. ******
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License License Federal Register Country Entity requirement review policy citation
Chinese Academy of Engineering For all items subject to Presumption of denial. 62 FR 35334, 6/30/97. Physics, a.k.a., the following seven- the EAR. (See § 744.11 66 FR 24266, 5/14/01. teen aliases: of the EAR). 75 FR 78883, 12/17/10. —Ninth Academy; 76 FR 21628, 4/18/11. —Southwest Computing Center; 76 FR 50407, 8/15/11. —Southwest Institute of Applied Elec- 77 FR 58006, 9/19/12. tronics; 85 FR [INSERT FR PAGE —Southwest Institute of Chemical Ma- NUMBER 6/5/20]. terials; —Southwest Institute of Electronic En- gineering; —Southwest Institute of Environmental Testing; —Southwest Institute of Explosives and Chemical Engineering; —Southwest Institute of Fluid Physics; —Southwest Institute of General De- signing and Assembly; —Southwest Institute of Machining Technology; —Southwest Institute of Materials; —Southwest Institute of Nuclear Phys- ics and Chemistry (a.k.a., China Academy of Engineering Physics (CAEP)’s 902 Institute); —Southwest Institute of Research and Applications of Special Materials Factory; —Southwest Institute of Structural Me- chanics; (all of preceding located in or near Mianyang, Sichuan Province) —The High Power Laser Laboratory, Shanghai; —The Institute of Applied Physics and Computational Mathematics, Beijing. 901 Institute (P.O. Box 523 Chengdu, 610003) and 64 Mianshan Road, Mianyang, Sichuan, China; and 6 Huayuan Road, Haidian District, Bei- jing, China; and; 1 Fenghao East Road, Haidian District, Beijing, China. ****** Harbin Chuangyue Technology Co. For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE Ltd., Room 10l, Building 221, No. 8 the EAR. (See § 744.11 NUMBER 6/5/20]. Campus Street, Nangang District, of the EAR). Harbin, Heilongjiang, China; and Room 0103, 40 Nursery Street, Nangang District. Harbin, China. Harbin Engineering University, No. 145 For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE South Tongda Street, Harbin, the EAR. (See § 744.11 NUMBER 6/5/20]. Heilongjiang Province, China of the EAR). 150001. Harbin Institute of Technology, No. 92 For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE Xidazhi Street, Nangang District, the EAR. (See § 744.11 NUMBER 6/5/20]. Harbin, Heilongjiang, China; and No. of the EAR). 92 West Dazhi Street, Nangang Dis- trict, Harbin, Heilongjiang, China; and No. 2 West Wenhua Road, Weihai, Shandong, China; and Pingshan 1st Road, Shenzhen, Guangdong, China. Harbin Yun Li Da Technology and De- For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE velopment Co., Ltd., Building 7, No. the EAR. (See § 744.11 NUMBER 6/5/20]. 92 West Dazhi Street, Nangang Dis- of the EAR). trict, Harbin, Heilongjiang, China; and Room 1, Building 2, No. 509 Pioneer Road, Nangang District, Harbin, Heilongjiang, China; and Room 1, Building 2, No. 509 Xianfeng Road, Nangang District, Harbin, Heilongjiang, China. ******
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License License Federal Register Country Entity requirement review policy citation
JCN (HK) Technology Co., Ltd., Room For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE 8D Block A, Guanghao International the EAR. (See § 744.11 NUMBER 6/5/20]. Center, Meilong Road, Longhua Dis- of the EAR). trict, Shenzhen, Guangdong, China; and Unit 1516 Block B, Guanghao International Center, Meilong Road, Longhua District, Shenzhen, Guangdong, China. (See alternate address in Hong Kong). ****** Kunhai (Yanjiao) Innovation Research For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE Institute, a.k.a., the following two the EAR. (See § 744.11 NUMBER 6/5/20]. aliases: of the EAR). —Kunhai Academy for Innovative Re- search and Data Technologies Co.; and —Kunhai Innovation Engineering Re- search Institute. 17th Floor, Block A, Building 5, Zhongguancun National Defense Science and Technology Park, Haidian District, Beijing, China. ****** Peac Institute of Multiscale Science, For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE a.k.a., the following two aliases: the EAR. (See § 744.11 NUMBER 6/5/20]. —Peak Multiscale Science Institute; of the EAR). and —Peak Multi-Scale Scientific Research Institute. 111, 1st Section, Northern 2nd Ring Road, Chengdu, China. ****** Qihoo 360 Technology Company, No. 6 For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE Jiuxianqiao Rd., Building No. 2, 3/F, the EAR. (See § 744.11 NUMBER 6/5/20]. Chaoyang District, Beijing, China; of the EAR). and No. 188–218 Shuangbin Road, Qingpu District, Shanghai 200001, China. ****** Shanghai Nova Instruments Co., Ltd., For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE a.k.a., the following four aliases: the EAR. (See § 744.11 NUMBER 6/5/20]. —Shanghai Weiyi Electromechanical of the EAR). Equipment Co.; —Shanghai Weiyi Mechanical and Electrical Equipment Co., Ltd.; —Shanghai Weiyi Measurement and Control Technology Co., Ltd.; and —Nova Instruments. Rm. 408 Bldg. 3 No 911–11 Hulan Rd., Boashan District, Shanghai, China. ****** Sichuan Dingcheng Material Trade Co., For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE Ltd., No. 64 Mianshan Road, the EAR. (See § 744.11 NUMBER 6/5/20]. Mianyang City, Sichuan, China. of the EAR). Sichuan Haitian New Technology For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE Group Co., Ltd., a.k.a., the following the EAR. (See § 744.11 NUMBER 6/5/20]. two aliases: of the EAR). —Haitian Group; and — Sichuan Haitian Hi-Tech Group. 64 Mianshan Road, Mianyang City, Sichuan, China. ****** Sichuan Zhonghe Import and Export For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE Trade Co., Ltd., Building 26, No. the EAR. (See § 744.11 NUMBER 6/5/20]. 169–185, West Third Section, First of the EAR). Ring Road, Jinniu District, Chengdu, China; and No 169, West Section, Yihuan Road, Chengdu, China. ******
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License License Federal Register Country Entity requirement review policy citation
Skyeye Laser Technology Limited, For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE a.k.a., the following one alias: the EAR. (See § 744.11 NUMBER 6/5/20]. —Mianyang Tianyan Laser Technology, of the EAR). 237 Chuangye Road Zhongduan, Mianyang, Sichuan, China. ****** Zhu Jiejin, a.k.a., the following one For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE alias: the EAR. (See § 744.11 NUMBER 6/5/20]. —Anna Zhu. of the EAR). Rm 408 Bldg. 3 No 911–11 Hulan Rd., Boashan District, Shanghai, China. ******
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HONG KONG ... ****** Cloudminds (Hong Kong) Limited, For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE 10/F Massmutual Twr 33, Lockhart Rd, the EAR. (See § 744.11 NUMBER 6/5/20]. Wan Chai, Hong Kong. of the EAR). ****** JCN (HK) Technology Co., Ltd., Rm. For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE 502, Arion Centre, 2–12 Queen’s Rd. the EAR. (See § 744.11 NUMBER 6/5/20]. West, Hong Kong. (See alternate ad- of the EAR). dresses in China). ****** K Logistics (China) Limited, a.k.a., the For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE following one alias: the EAR. (See § 744.11 NUMBER 6/5/20]. —K Logistics Hong Kong. of the EAR). Unit A, 4/F., China Fen Hin Building, No. 5 Cheung Yue St., Kowloon, Hong Kong. ******
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UNITED KING- ****** DOM. Cloudminds Inc., For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE C/O Maples Corporate Services Limited the EAR. (See § 744.11 NUMBER 6/5/20]. Ugland House, South Church Street, of the EAR). George Town, Grand Cayman KY1– 1104, Cayman Islands. Qihoo 360 Technology Co. Ltd., P.O. For all items subject to Presumption of denial. 85 FR [INSERT FR PAGE Box 309 George Town; and C/O the EAR. (See § 744.11 NUMBER 6/5/20]. Maples Corporate Services Limited of the EAR). Ugland House, South Church Street, George Town, Grand Cayman KY1– 1104, Cayman Islands. ******
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Dated: May 15, 2020. DEPARTMENT OF COMMERCE ACTION: Final rule. Wilbur Ross, SUMMARY: This final rule amends the Secretary, U.S. Department of Commerce. Bureau of Industry and Security Export Administration Regulations [FR Doc. 2020–10869 Filed 6–3–20; 11:15 am] 15 CFR Part 744 (EAR) by adding nine entities to the BILLING CODE 3510–33–P Entity List. These nine entities have [Docket No. 200407–0099] been determined by the U.S. Government to be acting contrary to the RIN 0694–AI02 foreign policy interests of the United Addition of Certain Entities to the States and will be listed on the Entity Entity List; Revision of Existing Entries List under the destination of the on the Entity List People’s Republic of China (China). This rule also modifies two entries and AGENCY: Bureau of Industry and revises one entry on the Entity List Security, Commerce under the destination of China.
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DATES: This rule is effective June 5, articulable facts, that they have been agents that are consumer goods, 2020. involved, are involved, or pose a packaged for retail sale or personal use, FOR FURTHER INFORMATION CONTACT: significant risk of being or becoming or medical products. BIS has adopted a Chair, End-User Review Committee, involved in activities that are contrary license review policy of presumption of Office of the Assistant Secretary for to the national security or foreign policy denial for all other items subject to the Export Administration, Bureau of interests of the United States, along with EAR. For all nine entities, the license Industry and Security, Department of those acting on behalf of such persons, requirements apply to any transaction in Commerce, Phone: (202) 482–5991, may be added to the Entity List. which items are to be exported, Email: [email protected]. Paragraphs (b)(1) through (b)(5) of reexported, or transferred (in country) to § 744.11 provide an illustrative list of SUPPLEMENTARY INFORMATION: any of the entities or in which such activities that could be contrary to the entities act as purchaser, intermediate Background national security or foreign policy consignee, ultimate consignee, or end The Entity List (15 CFR, Subchapter interests of the United States. For each user. In addition, no license exceptions C, part 744, Supplement No. 4) of the nine entities described below, the are available for exports, reexports, or identifies entities reasonably believed to ERC made the requisite determination transfers (in-country) to the entities be involved, or to pose a significant risk under the standard set forth in being added to the Entity List in this of being or becoming involved, in § 744.11(b). rule. The acronym ‘‘a.k.a.,’’ which is an activities contrary to the national Pursuant to § 744.11(b) of the EAR, abbreviation of ‘also known as’ is used security or foreign policy interests of the the ERC determined that the Ministry of in entries on the Entity List to identify United States. The Export Public Security’s Institute of Forensic aliases, thereby assisting exporters, Administration Regulations (EAR) (15 Science of China and Aksu Huafu reexporters and transferors in CFR parts 730–774) impose additional Textiles Co. are engaging in activities identifying entities on the Entity List. license requirements on, and limits the contrary to the foreign policy interests This final rule adds the following availability of most license exceptions of the United States, and seven nine entities to the Entity List and for, exports, reexports, and transfers (in additional entities, CloudWalk includes, where appropriate, aliases: country) to listed entities. The license Technology; FiberHome Technologies Group and its subsidiary Nanjing People’s Republic of China review policy for each listed entity is • identified in the ‘‘License review FiberHome Starrysky Communication Aksu Huafu Textiles Co., including policy’’ column on the Entity List, and Development Co.; NetPosa and its two aliases (Akesu Huafu and Aksu the impact on the availability of license subsidiary SenseNets; Intellifusion; and Huafu Dyed Melange Yarn); IS’Vision are enabling activities contrary • CloudWalk Technology, including exceptions is described in the relevant to the foreign policy interests of the four aliases (Chongqing Cloudwalk Federal Register notice adding entities United States. Specifically, these Technology Co., Ltd.; Guangzhou to the Entity List. BIS places entities on entities have been implicated in human Yunshang Information Technology Co., the Entity List pursuant to part 744 rights violations and abuses in the Ltd.; Yun Cong Information Technology (Control Policy: End-User and End-Use implementation of China’s campaign of Co. Ltd.; and Yun Cong Technology); Based) and part 746 (Embargoes and repression, mass arbitrary detention, • FiberHome Technologies Group, Other Special Controls) of the EAR. including eight aliases (FiberHome; The End-User Review Committee forced labor and high-technology surveillance against Uighurs, Kazakhs, FiberHome International Technology (ERC), composed of representatives of and other members of Muslim minority Co., Ltd., FiberHome Networks; the Departments of Commerce (Chair), groups in the Xinjiang Uighur FiberHome Networks Co. Ltd.; State, Defense, Energy and, where Autonomous Region (XUAR). FiberHome Telecommunication appropriate, the Treasury, makes all Pursuant to § 744.11(b) of the EAR, Technologies Co., Ltd.; Haohuo decisions regarding additions to, the ERC has determined that the Xiangyun Network Technology Co., removals from, or other modifications to conduct of these nine entities raises Ltd.; Wuhan Fiberhome International; the Entity List. The ERC makes all sufficient concern that prior review of and Wuhan Institute of Posts and decisions to add an entry to the Entity exports, reexports or transfers (in- Telecommunications); List by majority vote and makes all country) of all items subject to the EAR • Intellifusion, including two aliases decisions to remove or modify an entry involving these entities, and the (Shenzhen Yuntian Lifei Technology by unanimous vote. possible imposition of license Co., Ltd. and Yuntian Lifei); ERC Entity List Decisions conditions or license denials on • IS’Vision, including six aliases shipments to the entities, will enhance (Chengdu Yinchen Netcom Technology Additions to the Entity List BIS’s ability to prevent items subject to Co., Ltd; Isvision Tech; Isvision This rule implements the decision of the EAR from being used in activities Technologies Co., Ltd.; Shanghai the ERC to add nine entities to the contrary to the foreign policy of the Is’vision Co.; Shanghai Isvision Entity List. The nine entities are added United States. Technologies Co., Ltd.; and Yinchen based on § 744.11 (License requirements For the nine entities described above Technology); that apply to entities acting contrary to that are being added to the Entity List, • Ministry of Public Security’s the national security or foreign policy BIS imposes a license requirement for Institute of Forensic Science of China, interests of the United States) of the all items subject to the EAR and a including two aliases (Forensic EAR. The nine entities are located in license review policy of case-by-case Identification Center of the Ministry of China. review for Export Control Classification Public Security of the People’s Republic The ERC reviewed and applied Numbers (ECCNs) 1A004.c, 1A004.d, of China and Material Identification § 744.11(b) (Criteria for revising the 1A995, 1A999.a, 1D003, 2A983, 2D983, Center of the Ministry of Public Security Entity List) in making the determination and 2E983. A policy of case-by-case of the People’s Republic of China); to add these nine entities to the Entity review also applies to items designated • Nanjing FiberHome Starrysky List. Under that paragraph, persons for as EAR99 that are described in the Note Communication Development Co., whom there is reasonable cause to to ECCN 1A995, specifically, items for including two aliases (Fiberhome believe, based on specific and protection against chemical or biological StarrySky Co., Ltd. and Nanjing
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Fenghuo Xingkong Communication issued, conducted, or allowed to term is defined in Executive Order Development); become effective under the Export 13132. • NetPosa, including three aliases Administration Act of 1979 (50 U.S.C. 4. Pursuant to § 1762 of the Export (Dongfang Netpower Technology Co.; 4601 et seq.) (as in effect on August 12, Control Reform Act of 2018, this action Dongfang Wangli Technology; and 2018, and as continued in effect is exempt from the Administrative NetPosa Technologies Ltd.); pursuant to the International Emergency Procedure Act (5 U.S.C. 553) • SenseNets, including six aliases Economic Powers Act (50 U.S.C. 1701 et requirements for notice of proposed (Deep Net Vision; Deep Network Vision; seq.)) or under the Export rulemaking, opportunity for public Sensenets Corporation; Shenzhen Net Administration Regulations, and were participation, and delay in effective Vision; Shenzhen Shenwang Vision in effect as of August 13, 2018, shall date. Technology Co., Ltd.; and Shenzhen continue in effect according to their 5. Because a notice of proposed Vision). terms until modified, superseded, set rulemaking and an opportunity for public comment are not required to be Revisions to the Entity List aside, or revoked under the authority of ECRA. given for this rule by 5 U.S.C. 553, or This final rule implements revisions by any other law, the analytical to three existing entries on the Entity Rulemaking Requirements requirements of the Regulatory List; the three entities were added to the 1. Executive Orders 13563 and 12866 Flexibility Act, 5 U.S.C. 601, et seq., are Entity List under the destination of direct agencies to assess all costs and not applicable. Accordingly, no China on October 9, 2019 (84 FR 54004). benefits of available regulatory regulatory flexibility analysis is required BIS is modifying the existing entry for alternatives and, if regulation is and none has been prepared. Hikvision by adding an additional name necessary, to select regulatory List of Subjects in 15 CFR Part 744 ‘‘Hangzhou Hikvision Digital approaches that maximize net benefits Technology Co., Ltd’’ and identifying (including potential economic, Exports, Reporting and recordkeeping ‘‘Hikvision’’ as an alias. BIS is environmental, public health and safety requirements, Terrorism. modifying the existing entry for effects, distributive impacts, and Accordingly, part 744 of the Export Sensetime by adding an additional equity). Executive Order 13563 Administration Regulations (15 CFR name ‘‘Beijing Sensetime Technology emphasizes the importance of parts 730–774) is amended as follows: Development Co., Ltd’’, an additional quantifying both costs and benefits, of alias ‘‘Beijing Shangtang Technology reducing costs, of harmonizing rules, PART 744—[AMENDED] Development Co., Ltd.’’ and identifying and of promoting flexibility. This rule ‘‘SenseTime’’ as an alias in the revised ■ 1. The authority citation for 15 CFR has been determined to be not part 744 is amended to read as follows: entry. BIS is revising the existing entry significant for purposes of Executive for Kezilesu Kyrgyz Autonomous Order 12866. This rule is not an Authority: 50 U.S.C. 4801–4852; 50 U.S.C. Prefecture Public Security Bureau to 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. Executive Order 13771 regulatory action 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. correct the spelling of the first word of because this rule is not significant under the existing alias so it correctly reads as 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Executive Order 12866. Comp., p. 219; E.O. 13026, 61 FR 58767, 3 ‘‘Kizilsu Autonomous Prefecture Public 2. Notwithstanding any other CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR Security Bureau.’’ provision of law, no person is required 44025, 3 CFR, 2001 Comp., p. 783; E.O. Savings Clause to respond to or be subject to a penalty 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. for failure to comply with a collection 223; Notice of November 12, 2019, 84 FR Shipments of items removed from 61817 (November 13, 2019). eligibility for a License Exception or for of information, subject to the requirements of the Paperwork ■ 2. Supplement No. 4 to part 744 is export or reexport without a license amended under CHINA, PEOPLE’S (NLR) as a result of this regulatory Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of REPUBLIC OF, action that were en route aboard a ■ information displays a currently valid a. By adding in alphabetical order carrier to a port of export or reexport, on entries for ‘‘Aksu Huafu Textiles Co.’’, June 5, 2020, pursuant to actual orders Office of Management and Budget (OMB) Control Number. This regulation ‘‘Beijing Sensetime Technology for export or reexport to a foreign Development Co., Ltd.’’, ‘‘CloudWalk destination, may proceed to that involves collections previously approved by OMB under control Technology’’, ‘‘FiberHome Technologies destination under the previous Group’’ and ‘‘Hangzhou Hikvision eligibility for a License Exception or number 0694–0088, Simplified Network Application Processing System, which Digital Technology Co., Ltd.’’; export or reexport without a license ■ includes, among other things, license b. By removing ‘‘Hikvision’’; (NLR). ■ c. By adding in alphabetical order applications, and carries a burden entries for ‘‘Intellifusion’’ and Export Control Reform Act of 2018 estimate of 42.5.8 minutes for a manual ‘‘IS’Vision’’; On August 13, 2018, the President or electronic submission. Total burden ■ d. By revising ‘‘Kezilesu Kyrgyz signed into law the John S. McCain hours associated with the PRA and Autonomous Prefecture Public Security National Defense Authorization Act for OMB control number 0694–0088 are not Bureau’’; and Fiscal Year 2019, which included the expected to increase as a result of this ■ e. By adding in alphabetical order Export Control Reform Act of 2018 rule. You may send comments regarding entries for ‘‘Ministry of Public Security’s (ECRA) (50 U.S.C. 4801–4852). ECRA the collection of information associated Institute of Forensic Science of China’’, provides the legal basis for BIS’s with this rule, including suggestions for ‘‘Nanjing FiberHome Starrysky principal authorities and serves as the reducing the burden, to Jasmeet K. Communication Development Co.’’ and authority under which BIS issues this Seehra, Office of Management and _ _ ‘‘NetPosa’’; rule. As set forth in Section 1768 of Budget (OMB), by email to Jasmeet K. ■ f. By removing ‘‘Sense Time’’; and ECRA, all delegations, rules, [email protected], or by fax to (202) ■ g. By adding in alphabetical order regulations, orders, determinations, 395–7285. ‘‘SenseNets’’. licenses, or other forms of 3. This rule does not contain policies The additions and revision read as administrative action that were made, with Federalism implications as that follows:
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Supplement No. 4 to Part 744—Entity List
License License Federal Register Country Entity requirement review policy citation
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CHINA, PEO- ****** PLE’S RE- PUBLIC OF. Aksu Huafu Textiles Co., a.k.a., the fol- For all items subject to Case-by-case review for 85 FR [INSERT FR PAGE lowing two aliases: the EAR. (See § 744.11 ECCNs 1A004.c, NUMBER] 6/5/20. —Akesu Huafu; and of the EAR). 1A004.d, 1A995, —Aksu Huafu Dyed Melange Yarn. 1A999.a, 1D003, 992 Kilometers Place Wuka Road, 2A983, 2D983, and Akesu, China; and Building B 538 2E983, and for EAR99 Fengting Avenue, Suzhou Jiangsu items described in the Province, China. Note to ECCN 1A995; presumption of denial for all other items sub- ject to the EAR. ****** Beijing Sensetime Technology Devel- For all items subject to Case-by-case review for 85 FR [INSERT FR opment Co., Ltd., a.k.a., the following the EAR. (See § 744.11 ECCNs 1A004.c, PAGE] 6/5/20 two aliases: of the EAR). 1A004.d, 1A995, 84 FR 54004, 10/9/19. —Beijing Shangtang Technology De- 1A999.a, 1D003, velopment Co., Ltd.; and 2A983, 2D983, and —Sense Time. 2E983, and forEAR99 5F Block B, Science and Technology items described in the Building, Tsing-hua Science Park, Note to ECCN 1A995; Haidian District, Beijing, China. presumption of denial for all other items sub- ject to the EAR. ****** CloudWalk Technology, a.k.a., the fol- For all items subject to Case-by-case review for 85 FR [INSERT FR PAGE lowing four aliases: the EAR. (See § 744.11 ECCNs 1A004.c, NUMBER] 6/5/20. —Chongqing Cloudwalk Technology of the EAR). 1A004.d, 1A995, Co., Ltd.; 1A999.a, 1D003, —Guangzhou Yunshang Information 2A983, 2D983, and Technology Co., Ltd.; 2E983, and for EAR99 —Yun Cong Information Technology items described in the Co. Ltd.; and Note to ECCN 1A995; —Yun Cong Technology. presumption of denial 1306 Room, No. 26, Jinlong Road, for all other items sub- Nansha District, Guangzhou, China. ject to the EAR. ****** FiberHome Technologies Group, a.k.a., For all items subject to Case-by-case review for 85 FR [INSERT FR PAGE the following eight aliases: the EAR. (See § 744.11 ECCNs 1A004.c, NUMBER] 6/5/20. —FiberHome; of the EAR). 1A004.d, 1A995, —FiberHome International Technology 1A999.a, 1D003, Co., Ltd.; 2A983, 2D983, and —FiberHome Networks; 2E983, and for EAR99 —FiberHome Networks Co. Ltd.; items described in the —FiberHome Telecommunication Tech- Note to ECCN 1A995; nologies Co., Ltd.; presumption of denial —Haohuo Xiangyun Network Tech- for all other items sub- nology Co., Ltd; ject to the EAR. —Wuhan Fiberhome International; and —Wuhan Institute of Posts and Tele- communications. No. 6, Gaoxinsilu, East Lake High-Tech Development Zone, Wuhan, Hubei Province, 430205, China; and 88 Youkeyuan Road, Hongshan District, Wuhan China. ******
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License License Federal Register Country Entity requirement review policy citation
Hangzhou Hikvision Digital Technology For all items subject to Case-by-case review for 85 FR [INSERT FR PAGE Co., Ltd., a.k.a., the following one the EAR. (See § 744.11 ECCNs 1A004.c, NUMBER] 6/5/20 alias: of the EAR). 1A004.d, 1A995, 84 FR 54004, 10/9/19. —Hikvision. 1A999.a, 1D003, No. 555 Qianmo Road, Binjiang Dis- 2A983, 2D983, and trict, Hangzhou 310052, China; and 2E983, and forEAR99 23rd Floor, Block A, Yingke Plaza, items described in the No. 217 Gaoxin Street, Gaoxin Dis- Note to ECCN 1A995; trict, Urumqi, China; and 700 Dongliu presumption of denial Road, Binjiang District, Hanzhou, for all other items sub- China. ject to the EAR. ****** Intellifusion, a.k.a., the following two For all items subject to Case-by-case review for 85 FR [INSERT FR PAGE aliases: the EAR. (See § 744.11 ECCNs 1A004.c, NUMBER] 6/5/20. —Shenzhen Yuntian Lifei Technology of the EAR). 1A004.d, 1A995, Co., Ltd. 1A999.a, 1D003, —Yuntian Lifei. 2A983, 2D983, and 1st Floor, Building 17, Shenzhen 2E983, and for EAR99 Dayun Software Town, 8288 items described in the Longgang Avenue, Yuanshan Dis- Note to ECCN 1A995; trict, Longgang District, Shenzhen, presumption of denial China. for all other items sub- ject to the EAR. ****** IS’Vision, a.k.a., the following six For all items subject to Case-by-case review for 85 FR [INSERT FR PAGE aliases: the EAR. (See § 744.11 ECCNs 1A004.c, NUMBER] 6/5/20. —Chengdu Yinchen Netcom Tech- of the EAR). 1A004.d, 1A995, nology Co., Ltd; 1A999.a, 1D003, —Isvision Tech; 2A983, 2D983, and —Isvision Technologies Co., Ltd.; 2E983, and for EAR99 —Shanghai Is’vision Co.; items described in the —Shanghai Isvision Technologies Co., Note to ECCN 1A995; Ltd.; and presumption of denial —Yinchen Technology. for all other items sub- Building 3, No. 498, Guoshoujing Road, ject to the EAR. Pudong, Shanghai, China; and 4F, No. 9 Building of Pudong Software Park, 498 GuoShoujing Road, Shanghai, China. ****** Kezilesu Kyrgyz Autonomous Prefec- For all items subject to Case-by-case review for 84 FR 54004, 10/9/19. ture Public Security Bureau, a.k.a., the EAR. (See § 744.11 ECCNs 1A004.c, 85 FR [INSERT FR PAGE the following one alias: of the EAR). 1A004.d, 1A995, NUMBER] 6/5/20. —Kizilsu Autonomous Prefecture Public 1A999.a, 1D003, Security Bureau. 2A983, 2D983, and Guangming Rd., Atushi City, XUAR 2E983, and for EAR99 845350, China. items described in the Note to ECCN 1A995; presumption of denial for all other items sub- ject to the EAR. ****** Ministry of Public Security’s Institute of For all items subject to Case-by-case review for 85 FR [INSERT FR PAGE Forensic Science of China, a.k.a., the EAR. (See § 744.11 ECCNs 1A004.c, NUMBER] 6/5/20. the following two aliases: of the EAR). 1A004.d, 1A995, —Forensic Identification Center of the 1A999.a, 1D003, Ministry of Public Security of the 2A983, 2D983, and People’s Republic of China; and 2E983, and for EAR99 —Material Identification Center of the items described in the Ministry of Public Security of the Note to ECCN 1A995; People’s Republic of China. presumption of denial No. 18 West Dongbeiwang Road, for all other items sub- Haidian District, China; and Ministry ject to the EAR. of Public Security, Xicheng District, Beijing, China; and No. 17 Mulidi South Lane, Xicheng District, Beijing, China; and No. 5 Qianhai West Street, Tumushuk City, Xinjiang Uighur Autonomous Region (Tumushuk City Public Security Bu- reau). ******
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License License Federal Register Country Entity requirement review policy citation
Nanjing FiberHome Starrysky Commu- For all items subject to Case-by-case review for 85 FR [INSERT FR PAGE nication Development Co., a.k.a., the the EAR. (See § 744.11 ECCNs 1A004.c, NUMBER] 6/5/20. following two aliases: of the EAR). 1A004.d, 1A995, —Nanjing Fenghuo Xingkong Commu- 1A999.a, 1D003, nication Development Co.; and 2A983, 2D983, and —Fiberhome StarrySky Co., Ltd. 2E983, and for EAR99 88 Yunlongshan Road, Jianye District, items described in the Nanjing China. Note to ECCN 1A995; presumption of denial for all other items sub- ject to the EAR. ****** NetPosa, a.k.a., the following three For all items subject to Case-by-case review for 85 FR [INSERT FR PAGE aliases: the EAR. (See § 744.11 ECCNs 1A004.c, NUMBER] 6/5/20. —Dongfang Netpower Technology Co.; of the EAR). 1A004.d, 1A995, —Dongfang Wangli Technology; and 1A999.a, 1D003, —NetPosa Technologies Ltd. 2A983, 2D983, and Room 408, 4th Floor, Shining Xueyuan 2E983, and for EAR99 Road, Haidian District, Beijing, items described in the China; and Room 3603, Wanda Note to ECCN 1A995; Plaza, No. 555 Xuanwuhu Road, presumption of denial Economic and Technological Devel- for all other items sub- opment Zone, Urumqi, China; and ject to the EAR. 26F, BLK C, Wangjing SOHO Tower 2, #1 Futong Ave, Chaoyang District, Beijing, China. ****** SenseNets, a.k.a., the following six For all items subject to Case-by-case review for 85 FR [INSERT FR PAGE aliases: the EAR. (See § 744.11 ECCNs 1A004.c, NUMBER] 6/5/20. —Deep Net Vision; of the EAR). 1A004.d, 1A995, —Deep Network Vision; 1A999.a, 1D003, —Sensenets Corporation; 2A983, 2D983, and —Shenzhen Net Vision; 2E983, and for EAR99 —Shenzhen Shenwang Vision Tech- items described in the nology Co., Ltd.; and Note to ECCN 1A995; —Shenzhen Vision. presumption of denial 8th Floor, East Tower, Skyworth Semi- for all other items sub- conductor Design Building, No. 18 ject to the EAR. Gaoxin South 4th Road, Yuehai Street, Nanshan District, Shenzhen, China; and 16F, China Merchants Development Center, No. 1063, Nanhai Avenue, Nanshan District, Shenzhen, China. ******
*******
Dated: May 15, 2020. DEPARTMENT OF HEALTH AND SUMMARY: The Food and Drug Wilbur Ross, HUMAN SERVICES Administration (FDA, Agency, or we) is Secretary, U.S. Department of Commerce. announcing the availability of a final Food and Drug Administration [FR Doc. 2020–10868 Filed 6–3–20; 11:15 am] guidance for industry entitled ‘‘Temporary Policy During the COVID– BILLING CODE 3510–33–P 21 CFR Part 112 19 Public Health Emergency Regarding the Qualified Exemption from the [Docket No. FDA–2020–D–1386] Standards for the Growing, Harvesting, Packing, and Holding of Produce for Temporary Policy During the COVID– Human Consumption.’’ Given the public 19 Public Health Emergency Regarding health emergency presented by COVID– the Qualified Exemption From the 19, this guidance document is being Standards for the Growing, Harvesting, implemented without prior public Packing, and Holding of Produce for comment because FDA has determined Human Consumption: Guidance for that prior public participation is not Industry; Availability feasible or appropriate, but it remains AGENCY: Food and Drug Administration, subject to comment in accordance with HHS. the Agency’s good guidance practices. The guidance communicates the ACTION: Notification of availability. Agency’s intention to exercise
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enforcement discretion, in the manner During the COVID–19 Public Health self-addressed adhesive labels to assist described in the guidance, regarding Emergency Regarding the Qualified that office in processing your request. sales to qualified end-users when Exemption from the Standards for the See the SUPPLEMENTARY INFORMATION determining eligibility for the qualified Growing, Harvesting, Packing, and section for electronic access to the exemption from the Standards for the Holding of Produce for Human guidance. Growing, Harvesting, Packing, and Consumption.’’ Received comments will FOR FURTHER INFORMATION CONTACT: Holding of Produce for Human be placed in the docket and, except for Samir Assar, Center for Food Safety and Consumption, due to disruptions to those submitted as ‘‘Confidential Applied Nutrition, Food and Drug supply chains, for the duration of the Submissions,’’ publicly viewable at Administration, 5001 Campus Dr. (HFS– COVID–19 public health emergency. https://www.regulations.gov or at the 607), College Park, MD 20740, 240–402– DATES: The announcement of the Dockets Management Staff between 9 1636. a.m. and 4 p.m., Monday through guidance is published in the Federal SUPPLEMENTARY INFORMATION: Register on June 5, 2020. Friday. • Confidential Submissions—To I. Background ADDRESSES: You may submit either submit a comment with confidential We are announcing the availability of electronic or written comments on information that you do not wish to be Agency guidances at any time as made publicly available, submit your a guidance for industry entitled follows: comments only as a written/paper ‘‘Temporary Policy During the COVID– 19 Public Health Emergency Regarding Electronic Submissions submission. You should submit two copies total. One copy will include the the Qualified Exemption from the Submit electronic comments in the information you claim to be confidential Standards for the Growing, Harvesting, following way: Packing, and Holding of Produce for • with a heading or cover note that states Federal eRulemaking Portal: ‘‘THIS DOCUMENT CONTAINS Human Consumption.’’ This policy https://www.regulations.gov. Follow the CONFIDENTIAL INFORMATION.’’ The relates to the supply chain disruptions instructions for submitting comments. Agency will review this copy, including caused by the public health emergency Comments submitted electronically, the claimed confidential information, in related to COVID–19, as declared by the including attachments, to https:// its consideration of comments. The Department of Health and Human www.regulations.gov will be posted to second copy, which will have the Services. the docket unchanged. Because your claimed confidential information Given this public health emergency, comment will be made public, you are redacted/blacked out, will be available this guidance is being implemented solely responsible for ensuring that your for public viewing and posted on without prior public comment because comment does not include any https://www.regulations.gov. Submit FDA has determined that prior public confidential information that you or a both copies to the Dockets Management participation for this guidance is not third party may not wish to be posted, Staff. If you do not wish your name and feasible or appropriate. This guidance such as medical information, your or contact information to be made publicly document is being implemented anyone else’s Social Security number, or available, you can provide this immediately, but it remains subject to confidential business information, such information on the cover sheet and not comment in accordance with the as a manufacturing process. Please note in the body of your comments and you Agency’s good guidance practices. that if you include your name, contact must identify this information as This guidance document concerns information, or other information that ‘‘confidential.’’ Any information marked flexibility for the eligibility criteria for identifies you in the body of your as ‘‘confidential’’ will not be disclosed the qualified exemption from the comments, that information will be except in accordance with 21 CFR 10.20 Standards for the Growing, Harvesting, posted on https://www.regulations.gov. and other applicable disclosure law. For Packing, and Holding of Produce for • If you want to submit a comment more information about FDA’s posting Human Consumption (part 112 (21 CFR with confidential information that you of comments to public dockets, see 80 part 112)) due to disruptions to supply do not wish to be made available to the FR 56469, September 18, 2015, or access chains due to COVID–19. A farm is public, submit the comment as a the information at: https:// eligible for a qualified exemption and written/paper submission and in the www.govinfo.gov/content/pkg/FR-2015- associated modified requirements in a manner detailed (see ‘‘Written/Paper 09-18/pdf/2015-23389.pdf. calendar year if during the previous 3- Submissions’’ and ‘‘Instructions’’). Docket: For access to the docket to year period preceding the applicable calendar year, the average annual Written/Paper Submissions read background documents or the electronic and written/paper comments monetary value of food the farm sold Submit written/paper submissions as received, go to https:// directly to qualified end-users exceeded follows: www.regulations.gov and insert the the average annual monetary value of • Mail/Hand Delivery/Courier (for docket number, found in brackets in the the food the farm sold to all other written/paper submissions): Dockets heading of this document, into the buyers during that period, and the Management Staff (HFA–305), Food and ‘‘Search’’ box and follow the prompts average annual monetary value of all Drug Administration, 5630 Fishers and/or go to the Dockets Management food the farm sold during the 3-year Lane, Rm. 1061, Rockville, MD 20852. Staff, 5630 Fishers Lane, Rm. 1061, period was less than $500,000, adjusted • For written/paper comments Rockville, MD 20852, 240–402–7500. for inflation. In order to provide submitted to the Dockets Management You may submit comments on any flexibility to affected farms during the Staff, FDA will post your comment, as guidance at any time (21 CFR COVID–19 public health emergency, well as any attachments, except for 10.115(g)(5)). under the circumstances described in information submitted, marked and Submit written requests for single the guidance FDA does not intend to identified, as confidential, if submitted copies of the guidance to the Office of enforce the criteria regarding the portion as detailed in ‘‘Instructions.’’ Compliance, Center for Food Safety and of sales that are made to qualified end- Instructions: All submissions received Applied Nutrition, Food and Drug users in 2020 (and any subsequent years must include the Docket No. FDA– Administration, 5001 Campus Dr. (HFS– that are affected by the COVID–19 2020–D–1386 for ‘‘Temporary Policy 607), College Park, MD 20740. Send two public health emergency). Specifically,
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for farms that either met the criteria for DEPARTMENT OF THE TREASURY 13894, pursuant to authorities delegated the qualified exemption in 2020 based to the Secretary of the Treasury in E.O. on sales that were made in 2017 to 2019, Office of Foreign Assets Control 13894. A copy of E.O. 13894 appears in or that did not have 3 years of sales appendix A to this part. prior to 2020, but that met the relevant 31 CFR Part 569 The Regulations are being published in abbreviated form at this time for the requirements during the years they were Syria-Related Sanctions Regulations in operation prior to 2020, FDA does not purpose of providing immediate intend to enforce the criteria regarding AGENCY: Office of Foreign Assets guidance to the public. OFAC intends to the portion of sales that are made to Control, Treasury. supplement this part 569 with a more qualified end-users in years that are ACTION: Final rule. comprehensive set of regulations, which affected by the COVID–19 public health may include additional interpretive and SUMMARY: The Department of the emergency. This guidance does not definitional guidance, general licenses, Treasury’s Office of Foreign Assets and statements of licensing policy. The affect the status of farms who continue Control (OFAC) is adding regulations to appendix to the Regulations will be to sell a majority of their food to implement Executive Order 13894 of removed when OFAC supplements this qualified end-users despite COVID–19 October 14, 2019 (‘‘Blocking Property part with a more comprehensive set of supply chain disruptions. and Suspending Entry of Certain regulations. This guidance is being issued Persons Contributing to the Situation in Public Participation consistent with FDA’s good guidance Syria’’). OFAC intends to supplement practices regulation § 10.115(g)(2). The these regulations with a more Because the Regulations involve a guidance represents the current thinking comprehensive set of regulations, which foreign affairs function, the provisions of FDA on ‘‘Temporary Policy During may include additional interpretive and of Executive Order 12866 and the the COVID–19 Public Health Emergency definitional guidance, general licenses, Administrative Procedure Act (5 U.S.C. Regarding the Qualified Exemption from and statements of licensing policy. 553) requiring notice of proposed the Standards for the Growing, DATES: This rule is effective June 5, rulemaking, opportunity for public Harvesting, Packing, and Holding of 2020. participation, and delay in effective date, as well as the provisions of Produce for Human Consumption.’’ It FOR FURTHER INFORMATION CONTACT: Executive Order 13771, are does not establish any rights for any OFAC: Assistant Director for Licensing, inapplicable. Because no notice of person and is not binding on FDA or the 202–622–2480; Assistant Director for proposed rulemaking is required for this public. You can use an alternative Regulatory Affairs, 202–622–4855; or rule, the Regulatory Flexibility Act (5 Assistant Director for Sanctions approach if it satisfies the requirements U.S.C. 601–612) does not apply. of the applicable statutes and Compliance & Evaluation, 202–622– regulations. 2490. Paperwork Reduction Act II. Paperwork Reduction Act of 1995 SUPPLEMENTARY INFORMATION: The collections of information related Electronic Availability to the Regulations are contained in 31 This guidance refers to previously CFR part 501 (the ‘‘Reporting, approved FDA collections of This document and additional Procedures and Penalties Regulations’’). information. These collections of information concerning OFAC are Pursuant to the Paperwork Reduction information are subject to review by the available on OFAC’s website Act of 1995 (44 U.S.C. 3507), those (www.treasury.gov/ofac). Office of Management and Budget collections of information have been (OMB) under the Paperwork Reduction Background approved by the Office of Management and Budget under control number 1505– Act of 1995 (44 U.S.C. 3501–3521). The On October 14, 2019, the President, collections of information in part 112 0164. An agency may not conduct or invoking the authority of, inter alia, the sponsor, and a person is not required to have been approved under OMB control International Emergency Economic number 0910–0816. respond to, a collection of information Powers Act (50 U.S.C. 1701–1706) unless the collection of information III. Electronic Access (IEEPA), issued Executive Order 13894 displays a valid control number. (84 FR 55851, October 17, 2019) (E.O. Persons with access to the internet 13894). List of Subjects in 31 CFR Part 569 may obtain the guidance at https:// In E.O. 13894, the President Administrative practice and www.fda.gov/FoodGuidances, https:// determined that the situation in and in procedure, Banks, Banking, Blocking of www.fda.gov/emergency-preparedness- relation to Syria, and in particular the assets, Penalties, Reporting and and-response/mcm-issues/coronavirus- recent actions by the Government of recordkeeping requirements, Sanctions, disease-2019-covid-19, or https:// Turkey to conduct a military offensive Syria, Turkey. into northeast Syria, undermines the www.regulations.gov. Use the FDA campaign to defeat the Islamic State of For the reasons set forth in the website listed in the previous sentence Iraq and Syria, or ISIS, endangers preamble, the Department of the to find the most current version of the civilians, and further threatens to Treasury’s Office of Foreign Assets guidance. undermine the peace, security, and Control adds part 569 to 31 CFR chapter Dated: May 29, 2020. stability in the region, and thereby V to read as follows: Lowell J. Schiller, constitutes an unusual and PART 569—SYRIA-RELATED Principal Associate Commissioner for Policy. extraordinary threat to the national SANCTIONS REGULATIONS security and foreign policy of the United [FR Doc. 2020–12109 Filed 6–4–20; 8:45 am] States, and declared a national Subpart A—Relation of This Part to Other BILLING CODE 4164–01–P emergency to deal with that threat. Laws and Regulations OFAC is issuing the Syria-related Sec. Sanctions Regulations, 31 CFR part 569 569.101 Relation of this part to other laws (the ‘‘Regulations’’), to implement E.O. and regulations.
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Subpart B—Prohibitions Authority: 3 U.S.C. 301; 31 U.S.C. 321(b); List is accessible through the following page 569.201 Prohibited transactions. 50 U.S.C. 1601–1651, 1701–1706; 28 U.S.C. on OFAC’s website: www.treasury.gov/sdn. 569.202 Effect of transfers violating the 2461 note; 50 U.S.C. 1705 note; E.O. 13894, Additional information pertaining to the SDN provisions of this part. 84 FR 55851, October 17, 2019. List can be found in appendix A to this 569.203 Holding of funds in interest- chapter. See § 569.406 concerning entities Subpart A—Relation of This Part to that may not be listed on the SDN List but bearing accounts; investment and whose property and interests in property are reinvestment. Other Laws and Regulations nevertheless blocked pursuant to this section. 569.204 Expenses of maintaining blocked § 569.101 Relation of this part to other tangible property; liquidation of blocked laws and regulations. Note 2 to § 569.201: The International property. Emergency Economic Powers Act (50 U.S.C. 569.205 Exempt transactions. This part is separate from, and independent of, the other parts of this 1701–1706), in Section 203 (50 U.S.C. 1702), Subpart C—General Definitions authorizes the blocking of property and chapter, with the exception of part 501 interests in property of a person during the 569.300 Applicability of definitions. of this chapter, the recordkeeping and pendency of an investigation. The names of 569.301 Blocked account; blocked property. reporting requirements and license persons whose property and interests in 569.302 Effective date. application and other procedures of property are blocked pending investigation 569.303 Entity. which apply to this part. Actions taken pursuant to this section also are published in 569.304 Financial, material, or pursuant to part 501 of this chapter with the Federal Register and incorporated into technological support. the SDN List using the identifier formulation 569.305 Information or informational respect to the prohibitions contained in this part are considered actions taken ‘‘[BPI–SYRIA–E.O.[E.O. number pursuant to materials. which the person’s property and interests in 569.306 Interest. pursuant to this part. Differing foreign property are blocked pending 569.307 Licenses; general and specific. policy and national security investigation]].’’ 569.308 OFAC. circumstances may result in differing 569.309 Person. interpretations of similar language Note 3 to § 569.201: Sections 501.806 and 569.310 Property; property interest. among the parts of this chapter. No 501.807 of this chapter describe the 569.311 Transfer. license or authorization contained in or procedures to be followed by persons 569.312 United States. issued pursuant to those other parts seeking, respectively, the unblocking of 569.313 United States person; U.S. person. authorizes any transaction prohibited by funds that they believe were blocked due to 569.314 U.S. financial institution. mistaken identity, or administrative this part. No license or authorization reconsideration of their status as persons Subpart D—Interpretations contained in or issued pursuant to any whose property and interests in property are 569.401 [Reserved] other provision of law or regulation blocked pursuant to this section. 569.402 Effect of amendment. authorizes any transaction prohibited by 569.403 Termination and acquisition of an this part. No license or authorization Note 4 to § 569.201: The names of persons interest in blocked property. contained in or issued pursuant to this determined by the Secretary of State to meet 569.404 Transactions ordinarily incident to part relieves the involved parties from the criteria for the imposition of sanctions a licensed transaction. pursuant to section 2 of E.O. 13894 will be 569.405 Setoffs prohibited. complying with any other applicable incorporated into a data file containing 569.406 Entities owned by one or more laws or regulations. OFAC’s Consolidated Non-SDN data and will persons whose property and interests in Note 1 to § 569.101: This part has been also be provided in a human readable format property are blocked. published in abbreviated form for the on the following page on OFAC’s website: purpose of providing immediate guidance to www.treasury.gov/cons. These listings will Subpart E—Licenses, Authorizations, and the public. OFAC intends to supplement this include specific information on the sanctions Statements of Licensing Policy part with a more comprehensive set of imposed on such persons pursuant to section 569.501 General and specific licensing regulations, which may include additional 2 of E.O. 13894. However, for any persons procedures. interpretive and definitional guidance, determined to meet the criteria for the 569.502 [Reserved] general licenses, and statements of licensing imposition of sanctions pursuant to section 2 569.503 Exclusion from licenses. policy. of E.O. 13894, where the Secretary of State 569.504 Payments and transfers to blocked chooses to impose the sanctions described in section 2(c)(iv) of E.O. 13894, such persons’ accounts in U.S. financial institutions. Subpart B—Prohibitions 569.505 Entries in certain accounts for names will instead be incorporated into normal service charges. § 569.201 Prohibited transactions. OFAC’s SDN List using the identifier 569.506 Provision of certain legal services. ‘‘[SYRIA–EO13894].’’ The names of persons 569.507 Payments for legal services from All transactions prohibited pursuant determined to meet the criteria for the funds originating outside the United to Executive Order 13894 of October 14, imposition of sanctions pursuant to section 2 States. 2019 (E.O. 13894), or any further of E.O. 13894 will be published in the 569.508 Emergency medical services. Executive orders issued pursuant to the Federal Register along with the applicable national emergency declared in E.O. sanctions that have been imposed on such Subpart F—Reports 13894, are prohibited pursuant to this persons under that section. 569.601 Records and reports. part. Note 5 to § 569.201: The names of foreign Subpart G—Penalties and Findings of Note 1 to § 569.201: The names of persons financial institutions for which the opening Violation designated pursuant to E.O. 13894, or listed or maintaining of a correspondent account or 569.701 Penalties and Findings of in or designated or identified pursuant to any a payable-through account in the United Violation. further Executive orders issued pursuant to States is prohibited or for which the the national emergency declared in E.O. maintenance of a correspondent account or Subpart H—Procedures 13984, whose property and interests in payable-through account is subject to one or 569.801 Procedures. property therefore are blocked pursuant to more strict conditions pursuant to section 3 569.802 Delegation of certain authorities of this section, are published in the Federal of E.O. 13894, or pursuant to any further the Secretary of the Treasury. Register and incorporated into OFAC’s Executive orders issued pursuant to the Specially Designated Nationals and Blocked national emergency declared in E.O. 13984, Subpart I—Paperwork Reduction Act Persons List (SDN List) using the identifier will be added to the List of Foreign Financial 569.901 Paperwork Reduction Act notice. formulation ‘‘[SYRIA–E.O.[E.O. number Institutions Subject to Correspondent Appendix A to Part 569—Executive Order pursuant to which the person’s property and Account or Payable-Through Account 13894 interests in property are blocked]].’’ The SDN Sanctions (CAPTA List) on OFAC’s website
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(www.treasury.gov/ofac), and published in misrepresentation of a third party or (d) For purposes of this section, if the Federal Register along with the withholding of material facts or was interest is credited to a separate blocked applicable prohibition or strict condition(s) otherwise fraudulently obtained; and account or subaccount, the name of the that have been imposed on such foreign (3) The person with whom such account party on each account must be financial institutions under that section. property is or was held or maintained the same. filed with OFAC a report setting forth in (e) Blocked funds held in instruments § 569.202 Effect of transfers violating the full the circumstances relating to such provisions of this part. the maturity of which exceeds 180 days transfer promptly upon discovery that: at the time the funds become subject to (a) Any transfer after the effective date (i) Such transfer was in violation of § 569.201 may continue to be held until that is in violation of any provision of the provisions of this part or any maturity in the original instrument, this part or of any regulation, order, regulation, ruling, instruction, license, provided any interest, earnings, or other directive, ruling, instruction, or license or other directive or authorization proceeds derived therefrom are paid issued pursuant to this part, and that issued pursuant to this part; into a blocked interest-bearing account involves any property or interest in (ii) Such transfer was not licensed or in accordance with paragraph (a) or (f) property blocked pursuant to § 569.201, authorized by OFAC; or of this section. is null and void and shall not be the (iii) If a license did purport to cover (f) Blocked funds held in accounts or basis for the assertion or recognition of the transfer, such license had been instruments outside the United States at any interest in or right, remedy, power, obtained by misrepresentation of a third the time the funds become subject to or privilege with respect to such party or withholding of material facts or § 569.201 may continue to be held in the property or interest in property. was otherwise fraudulently obtained. same type of accounts or instruments, (b) No transfer before the effective (e) The filing of a report in accordance provided the funds earn interest at rates date shall be the basis for the assertion with the provisions of paragraph (d)(3) that are commercially reasonable. of this section shall not be deemed or recognition of any right, remedy, (g) This section does not create an evidence that the terms of paragraphs power, or privilege with respect to, or affirmative obligation for the holder of (d)(1) and (2) of this section have been any interest in, any property or interest blocked tangible property, such as real in property blocked pursuant to satisfied. (f) Unless licensed pursuant to this or personal property, or of other blocked § 569.201, unless the person who holds property, such as debt or equity or maintains such property, prior to that part, any attachment, judgment, decree, lien, execution, garnishment, or other securities, to sell or liquidate such date, had written notice of the transfer property. However, OFAC may issue or by any written evidence had judicial process is null and void with respect to any property or interest in licenses permitting or directing such recognized such transfer. sales or liquidation in appropriate cases. (c) Unless otherwise provided, a property blocked pursuant to § 569.201. (h) Funds subject to this section may license or other authorization issued by § 569.203 Holding of funds in interest- not be held, invested, or reinvested in OFAC before, during, or after a transfer bearing accounts; investment and a manner that provides financial or shall validate such transfer or make it reinvestment. economic benefit or access to any enforceable to the same extent that it (a) Except as provided in paragraph person whose property and interests in would be valid or enforceable but for (e) or (f) of this section, or as otherwise property are blocked pursuant to the provisions of this part and any directed or authorized by OFAC, any § 569.201, nor may their holder regulation, order, directive, ruling, U.S. person holding funds, such as cooperate in or facilitate the pledging or instruction, or license issued pursuant currency, bank deposits, or liquidated other attempted use as collateral of to this part. financial obligations, subject to blocked funds or other assets. (d) Transfers of property that § 569.201 shall hold or place such funds otherwise would be null and void or in a blocked interest-bearing account § 569.204 Expenses of maintaining unenforceable by virtue of the located in the United States. blocked tangible property; liquidation of provisions of this section shall not be (b)(1) For purposes of this section, the blocked property. deemed to be null and void or term blocked interest-bearing account (a) Except as otherwise authorized, unenforceable as to any person with means a blocked account: and notwithstanding the existence of whom such property is or was held or (i) In a federally insured U.S. bank, any rights or obligations conferred or maintained (and as to such person only) thrift institution, or credit union, imposed by any international agreement in cases in which such person is able to provided the funds are earning interest or contract entered into or any license establish to the satisfaction of OFAC at rates that are commercially or permit granted prior to the effective each of the following: reasonable; or date, all expenses incident to the (1) Such transfer did not represent a (ii) With a broker or dealer registered maintenance of tangible property willful violation of the provisions of this with the Securities and Exchange blocked pursuant to § 569.201 shall be part by the person with whom such Commission under the Securities the responsibility of the owners or property is or was held or maintained Exchange Act of 1934 (15 U.S.C. 78a et operators of such property, which (and as to such person only); seq.), provided the funds are invested in expenses shall not be met from blocked (2) The person with whom such a money market fund or in U.S. funds. property is or was held or maintained Treasury bills. (b) Property blocked pursuant to did not have reasonable cause to know (2) Funds held or placed in a blocked § 569.201 may, in the discretion of or suspect, in view of all the facts and account pursuant to paragraph (a) of this OFAC, be sold or liquidated and the net circumstances known or available to section may not be invested in proceeds placed in a blocked interest- such person, that such transfer required instruments the maturity of which bearing account in the name of the a license or authorization issued exceeds 180 days. owner of the property. pursuant to this part and was not so (c) For purposes of this section, a rate licensed or authorized, or, if a license or is commercially reasonable if it is the § 569.205 Exempt transactions. authorization did purport to cover the rate currently offered to other depositors (a) Personal communications. The transfer, that such license or on deposits or instruments of prohibitions contained in this part do authorization had been obtained by comparable size and maturity. not apply to any postal, telegraphic,
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telephonic, or other personal Subpart C—General Definitions transportation; or goods. communication that does not involve ‘‘Technologies’’ as used in this the transfer of anything of value. § 569.300 Applicability of definitions. definition means specific information (b) Information or informational The definitions in this subpart apply necessary for the development, materials. (1) The prohibitions throughout the entire part. production, or use of a product, contained in this part do not apply to § 569.301 Blocked account; blocked including related technical data such as the importation from any country and property. blueprints, plans, diagrams, models, the exportation to any country of any The terms blocked account and formulae, tables, engineering designs information or informational materials, blocked property shall mean any and specifications, manuals, or other as defined in § 569.305, whether account or property subject to the recorded instructions. commercial or otherwise, regardless of prohibitions in § 569.201 held in the § 569.305 Information or informational format or medium of transmission. name of a person whose property and materials. (2) This section does not exempt from interests in property are blocked (a)(1) The term information or regulation transactions related to pursuant to § 569.201, or in which such information or informational materials informational materials includes person has an interest, and with respect publications, films, posters, phonograph not fully created and in existence at the to which payments, transfers, date of the transactions, or to the records, photographs, microfilms, exportations, withdrawals, or other microfiche, tapes, compact disks, CD substantive or artistic alteration or dealings may not be made or effected enhancement of information or ROMs, artworks, and news wire feeds. except pursuant to a license or other (2) To be considered information or informational materials, or to the authorization from OFAC expressly informational materials, artworks must provision of marketing and business authorizing such action. be classified under heading 9701, 9702, consulting services. Such prohibited or 9703 of the Harmonized Tariff transactions include payment of Note 1 to § 569.301: See § 569.406 concerning the blocked status of property Schedule of the United States. advances for information or and interests in property of an entity that is (b) The term information or informational materials not yet created directly or indirectly owned, whether informational materials, with respect to and completed (with the exception of individually or in the aggregate, 50 percent exports, does not include items: prepaid subscriptions for widely or more by one or more persons whose (1) That were, as of April 30, 1994, or circulated magazines and other property and interests in property are blocked pursuant to § 569.201. that thereafter become, controlled for periodical publications); provision of export pursuant to section 5 of the services to market, produce or co- § 569.302 Effective date. Export Administration Act of 1979, 50 produce, create, or assist in the creation U.S.C. App. 2401–2420 (1979) (EAA), or (a) The term effective date refers to of information or informational section 6 of the EAA to the extent that the effective date of the applicable materials; and payment of royalties with such controls promote the prohibitions and directives contained in respect to income received for nonproliferation or antiterrorism this part, and, with respect to a person enhancements or alterations made by policies of the United States; or whose property and interests in U.S. persons to such information or (2) With respect to which acts are property are blocked pursuant to informational materials. prohibited by 18 U.S.C. chapter 37. (3) This section does not exempt § 569.201, the earlier of the date of transactions incident to the exportation actual or constructive notice that such § 569.306 Interest. of software subject to the Export person’s property and interests in Except as otherwise provided in this Administration Regulations, 15 CFR property are blocked. part, the term interest, when used with parts 730 through 774, or to the (b) For the purposes of this section, respect to property (e.g., ‘‘an interest in exportation of goods (including constructive notice is the date that a property’’), means an interest of any software) or technology for use in the notice of the blocking of the relevant nature whatsoever, direct or indirect. transmission of any data, or to the person’s property and interests in provision, sale, or leasing of capacity on property is published in the Federal § 569.307 Licenses; general and specific. telecommunications transmission Register. (a) Except as otherwise provided in this part, the term license means any facilities (such as satellite or terrestrial § 569.303 Entity. network connectivity) for use in the license or authorization contained in or The term entity means a partnership, issued pursuant to this part. transmission of any data. The association, trust, joint venture, exportation of such items or services (b) The term general license means corporation, group, subgroup, or other any license or authorization the terms of and the provision, sale, or leasing of organization. such capacity or facilities to a person which are set forth in subpart E of this whose property and interests in § 569.304 Financial, material, or part or made available on OFAC’s property are blocked pursuant to technological support. website: www.treasury.gov/ofac. § 569.201 are prohibited. The term financial, material, or (c) The term specific license means (c) Travel. The prohibitions contained technological support means any any license or authorization issued in this part do not apply to transactions property, tangible or intangible, pursuant to this part but not set forth in ordinarily incident to travel to or from including currency, financial subpart E of this part or made available any country, including importation or instruments, securities, or any other on OFAC’s website: www.treasury.gov/ exportation of accompanied baggage for transmission of value; weapons or ofac. personal use, maintenance within any related materiel; chemical or biological Note 1 to § 569.307: See § 501.801 of this country including payment of living agents; explosives; false documentation chapter on licensing procedures. expenses and acquisition of goods or or identification; communications services for personal use, and equipment; computers; electronic or § 569.308 OFAC. arrangement or facilitation of such other devices or equipment; The term OFAC means the travel including nonscheduled air, sea, technologies; lodging; safe houses; Department of the Treasury’s Office of or land voyages. facilities; vehicles or other means of Foreign Assets Control.
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§ 569.309 Person. reason of a judgment or decree of any and liabilities under any such order, The term person means an individual foreign country; the fulfillment of any regulation, ruling, instruction, or license or entity. condition; the exercise of any power of continue and may be enforced as if such appointment, power of attorney, or amendment, modification, or revocation § 569.310 Property; property interest. other power; or the acquisition, had not been made. The terms property and property disposition, transportation, importation, interest include money, checks, drafts, exportation, or withdrawal of any § 569.403 Termination and acquisition of an interest in blocked property. bullion, bank deposits, savings security. accounts, debts, indebtedness, (a) Whenever a transaction licensed or obligations, notes, guarantees, § 569.312 United States. authorized by or pursuant to this part debentures, stocks, bonds, coupons, any The term United States means the results in the transfer of property other financial instruments, bankers United States, its territories and (including any property interest) away acceptances, mortgages, pledges, liens possessions, and all areas under the from a person whose property and or other rights in the nature of security, jurisdiction or authority thereof. interests in property are blocked warehouse receipts, bills of lading, trust pursuant to § 569.201, such property receipts, bills of sale, any other § 569.313 United States person; U.S. shall no longer be deemed to be evidences of title, ownership, or person. property blocked pursuant to § 569.201, indebtedness, letters of credit and any The term United States person or U.S. unless there exists in the property documents relating to any rights or person means any United States citizen, another interest that is blocked pursuant obligations thereunder, powers of permanent resident alien, entity to § 569.201, the transfer of which has attorney, goods, wares, merchandise, organized under the laws of the United not been effected pursuant to license or chattels, stocks on hand, ships, goods on States or any jurisdiction within the other authorization. ships, real estate mortgages, deeds of United States (including foreign (b) Unless otherwise specifically trust, vendors’ sales agreements, land branches), or any person in the United provided in a license or authorization contracts, leaseholds, ground rents, real States. issued pursuant to this part, if property estate and any other interest therein, § 569.314 U.S. financial institution. (including any property interest) is options, negotiable instruments, trade transferred or attempted to be The term U.S. financial institution acceptances, royalties, book accounts, transferred to a person whose property means any U.S. entity (including its accounts payable, judgments, patents, and interests in property are blocked foreign branches) that is engaged in the trademarks or copyrights, insurance pursuant to § 569.201, such property business of accepting deposits, making, policies, safe deposit boxes and their shall be deemed to be property in which granting, transferring, holding, or contents, annuities, pooling agreements, such person has an interest and brokering loans or other extensions of services of any nature whatsoever, therefore blocked. contracts of any nature whatsoever, and credit, or purchasing or selling foreign any other property, real, personal, or exchange, securities, commodity futures § 569.404 Transactions ordinarily incident to a licensed transaction. mixed, tangible or intangible, or interest or options, or procuring purchasers and or interests therein, present, future, or sellers thereof, as principal or agent. It Any transaction ordinarily incident to contingent. includes depository institutions, banks, a licensed transaction and necessary to savings banks, trust companies, give effect thereto is also authorized, § 569.311 Transfer. securities brokers and dealers, futures except: The term transfer means any actual or and options brokers and dealers, (a) An ordinarily incident transaction, purported act or transaction, whether or forward contract and foreign exchange not explicitly authorized within the not evidenced by writing, and whether merchants, securities and commodities terms of the license, by or with a person or not done or performed within the exchanges, clearing corporations, whose property and interests in United States, the purpose, intent, or investment companies, employee property are blocked pursuant to effect of which is to create, surrender, benefit plans, and U.S. holding § 569.201; or release, convey, transfer, or alter, companies, U.S. affiliates, or U.S. (b) An ordinarily incident transaction, directly or indirectly, any right, remedy, subsidiaries of any of the foregoing. This not explicitly authorized within the power, privilege, or interest with respect term includes those branches, offices, terms of the license, involving a debit to to any property. Without limitation on and agencies of foreign financial a blocked account or a transfer of the foregoing, it shall include the institutions that are located in the blocked property. United States, but not such institutions’ making, execution, or delivery of any § 569.405 Setoffs prohibited. assignment, power, conveyance, check, foreign branches, offices, or agencies. A setoff against blocked property declaration, deed, deed of trust, power (including a blocked account), whether of attorney, power of appointment, bill Subpart D—Interpretations by a U.S. bank or other U.S. person, is of sale, mortgage, receipt, agreement, § 569.401 [Reserved] a prohibited transfer under § 569.201 if contract, certificate, gift, sale, affidavit, effected after the effective date. or statement; the making of any § 569.402 Effect of amendment. payment; the setting off of any Unless otherwise specifically § 569.406 Entities owned by one or more obligation or credit; the appointment of provided, any amendment, persons whose property and interests in any agent, trustee, or fiduciary; the modification, or revocation of any property are blocked. creation or transfer of any lien; the provision in or appendix to this part or Persons whose property and interests issuance, docketing, filing, or levy of or chapter or of any order, regulation, in property are blocked pursuant to under any judgment, decree, ruling, instruction, or license issued by § 569.201 have an interest in all attachment, injunction, execution, or OFAC does not affect any act done or property and interests in property of an other judicial or administrative process omitted, or any civil or criminal entity in which such persons directly or or order, or the service of any proceeding commenced or pending, indirectly own, whether individually or garnishment; the acquisition of any prior to such amendment, modification, in the aggregate, a 50 percent or greater interest of any nature whatsoever by or revocation. All penalties, forfeitures, interest. The property and interests in
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property of such an entity, therefore, are § 569.505 Entries in certain accounts for § 569.201, not otherwise authorized in blocked, and such an entity is a person normal service charges. this part, requires the issuance of a whose property and interests in (a) A U.S. financial institution is specific license. property are blocked pursuant to authorized to debit any blocked account (c) U.S. persons do not need to obtain § 569.201, regardless of whether the held at that financial institution in specific authorization to provide related name of the entity is incorporated into payment or reimbursement for normal services, such as making filings and OFAC’s Specially Designated Nationals service charges owed it by the owner of providing other administrative services, and Blocked Persons List (SDN List). that blocked account. that are ordinarily incident to the (b) As used in this section, the term provision of services authorized by this Subpart E—Licenses, Authorizations, normal service charges shall include section. Additionally, U.S. persons who and Statements of Licensing Policy charges in payment or reimbursement provide services authorized by this for interest due; cable, telegraph, § 569.501 General and specific licensing section do not need to obtain specific procedures. internet, or telephone charges; postage authorization to contract for related costs; custody fees; small adjustment services that are ordinarily incident to For provisions relating to licensing charges to correct bookkeeping errors; the provision of those legal services, procedures, see part 501, subpart E, of and, but not by way of limitation, such as those provided by private this chapter. Licensing actions taken minimum balance charges, notary and investigators or expert witnesses, or to pursuant to part 501 of this chapter with protest fees, and charges for reference pay for such services. See § 569.404. respect to the prohibitions contained in books, photocopies, credit reports, (d) Entry into a settlement agreement this part are considered actions taken transcripts of statements, registered or the enforcement of any lien, pursuant to this part. General licenses mail, insurance, stationery and supplies, judgment, arbitral award, decree, or and statements of licensing policy and other similar items. other order through execution, relating to this part also may be garnishment, or other judicial process available through the Syria-related § 569.506 Provision of certain legal services. purporting to transfer or otherwise alter sanctions page on OFAC’s website: or affect property or interests in www.treasury.gov/ofac. (a) The provision of the following property blocked pursuant to § 569.201 legal services to or on behalf of persons § 569.502 [Reserved] is prohibited unless licensed pursuant whose property and interests in to this part. property are blocked pursuant to § 569.503 Exclusion from licenses. § 569.201 is authorized, provided that Note 1 to § 569.506: Pursuant to part 501, OFAC reserves the right to exclude any receipt of payment of professional subpart E, of this chapter, U.S. persons any person, property, transaction, or fees and reimbursement of incurred seeking administrative reconsideration or judicial review of their designation or the class thereof from the operation of any expenses must be authorized pursuant blocking of their property and interests in license or from the privileges conferred to § 569.507, which authorizes certain property may apply for a specific license by any license. OFAC also reserves the payments for legal services from funds from OFAC to authorize the release of certain right to restrict the applicability of any originating outside the United States; blocked funds for the payment of license to particular persons, property, via specific license; or otherwise professional fees and reimbursement of transactions, or classes thereof. Such pursuant to this part: incurred expenses for the provision of such actions are binding upon actual or (1) Provision of legal advice and legal services where alternative funding constructive notice of the exclusions or counseling on the requirements of and sources are not available. restrictions. compliance with the laws of the United States or any jurisdiction within the § 569.507 Payments for legal services from § 569.504 Payments and transfers to United States, provided that such advice funds originating outside the United States. blocked accounts in U.S. financial (a) Professional fees and incurred institutions. and counseling are not provided to facilitate transactions in violation of this expenses. (1) Receipt of payment of Any payment of funds or transfer of part; professional fees and reimbursement of credit in which a person whose property (2) Representation of persons named incurred expenses for the provision of and interests in property are blocked as defendants in or otherwise made legal services authorized pursuant to pursuant to § 569.201 has any interest parties to legal, arbitration, or § 569.506(a) to or on behalf of any that comes within the possession or administrative proceedings before any person whose property and interests in control of a U.S. financial institution U.S. federal, state, or local court or property are blocked pursuant to must be blocked in an account on the agency; § 569.201 is authorized from funds books of that financial institution. A (3) Initiation and conduct of legal, originating outside the United States, transfer of funds or credit by a U.S. arbitration, or administrative provided that the funds do not originate financial institution between blocked proceedings before any U.S. federal, from: accounts in its branches or offices is state, or local court or agency; (i) A source within the United States; authorized, provided that no transfer is (4) Representation of persons before (ii) Any source, wherever located, made from an account within the any U.S. federal, state, or local court or within the possession or control of a United States to an account held outside agency with respect to the imposition, U.S. person; or the United States, and further provided administration, or enforcement of U.S. (iii) Any individual or entity, other that a transfer from a blocked account sanctions against such persons; and than the person on whose behalf the may be made only to another blocked (5) Provision of legal services in any legal services authorized pursuant to account held in the same name. other context in which prevailing U.S. § 569.506(a) are to be provided, whose law requires access to legal counsel at property and interests in property are Note 1 to § 569.504: See § 501.603 of this chapter for mandatory reporting public expense. blocked pursuant to any part of this requirements regarding financial transfers. (b) The provision of any other legal chapter or any Executive order or See also § 569.203 concerning the obligation services to or on behalf of persons statute. to hold blocked funds in interest-bearing whose property and interests in (2) Nothing in this paragraph (a) accounts. property are blocked pursuant to authorizes payments for legal services
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using funds in which any other person annually pursuant to the Federal Civil may not conduct or sponsor, and a whose property and interests in Penalties Inflation Adjustment Act of person is not required to respond to, a property are blocked pursuant to 1990 (Pub. L. 101–410, as amended, 28 collection of information unless it § 569.201, any other part of this chapter, U.S.C. 2461 note) or, in the case of displays a valid control number or any Executive order or statute has an criminal violations, as adjusted assigned by OMB. interest. pursuant to 18 U.S.C. 3571, are (b) Reports. (1) U.S. persons who applicable to violations of the Appendix A to Part 569—Executive receive payments pursuant to paragraph provisions of this part. Order 13894 (a) of this section must submit annual (b) OFAC has the authority, pursuant Executive Order 13894 of October 14, 2019 to IEEPA, to issue Pre-Penalty Notices, reports no later than 30 days following Blocking Property and Suspending Entry of the end of the calendar year during Penalty Notices, and Findings of Certain Persons Contributing to the Situation which the payments were received Violation; impose monetary penalties; in Syria engage in settlement discussions and providing information on the funds By the authority vested in me as President received. Such reports shall specify: enter into settlements; refer matters to by the Constitution and the laws of the (i) The individual or entity from the United States Department of Justice United States of America, including the whom the funds originated and the for administrative collection; and, in International Emergency Economic Powers amount of funds received; and appropriate circumstances, refer matters Act (50 U.S.C. 1701 et seq.) (IEEPA), the (ii) If applicable: to appropriate law enforcement agencies National Emergencies Act (50 U.S.C. 1601 et (A) The names of any individuals or for criminal investigation and/or seq.) (NEA), section 212(f) of the Immigration entities providing related services to the prosecution. For more information, see and Nationality Act of 1952 (8 U.S.C. U.S. person receiving payment in appendix A to part 501 of this chapter, 1182(f)), and section 301 of title 3, United connection with authorized legal which provides a general framework for States Code, services, such as private investigators or the enforcement of all economic I, DONALD J. TRUMP, President of the United States of America, find that the expert witnesses; sanctions programs administered by situation in and in relation to Syria, and in (B) A general description of the OFAC, including enforcement-related particular the recent actions by the services provided; and definitions, types of responses to Government of Turkey to conduct a military (C) The amount of funds paid in apparent violations, general factors offensive into northeast Syria, undermines connection with such services. affecting administrative actions, civil the campaign to defeat the Islamic State of (2) The reports, which must reference penalties for failure to comply with a Iraq and Syria, or ISIS, endangers civilians, this section, are to be submitted to requirement to furnish information or and further threatens to undermine the OFAC using one of the following keep records, and other general civil peace, security, and stability in the region, methods: penalties information. and thereby constitutes an unusual and (i) Email (preferred method): extraordinary threat to the national security OFAC.Regulations.Reports@ Subpart H—Procedures and foreign policy of the United States. I hereby declare a national emergency to deal treasury.gov; or § 569.801 Procedures. with that threat. I hereby determine and (ii) U.S. mail: OFAC Regulations order: Reports, Office of Foreign Assets For license application procedures and procedures relating to amendments, Section 1. (a) All property and interests in Control, U.S. Department of the property that are in the United States, that Treasury, 1500 Pennsylvania Avenue modifications, or revocations of hereafter come within the United States, or NW, Freedman’s Bank Building, licenses; administrative decisions; that are or hereafter come within the Washington, DC 20220. rulemaking; and requests for documents possession or control of any United States pursuant to the Freedom of Information person of the following persons are blocked § 569.508 Emergency medical services. and Privacy Acts (5 U.S.C. 552 and and may not be transferred, paid, exported, The provision and receipt of 552a), see part 501, subpart E, of this withdrawn, or otherwise dealt in: nonscheduled emergency medical chapter. (i) any person determined by the Secretary services that are otherwise prohibited by of the Treasury, in consultation with the § 569.802 Delegation of certain authorities Secretary of State: this part are authorized. of the Secretary of the Treasury. (A) to be responsible for or complicit in, or Subpart F—Reports Any action that the Secretary of the to have directly or indirectly engaged in, or Treasury is authorized to take pursuant attempted to engage in, any of the following § 569.601 Records and reports. to Executive Order 13894 of October 14, in or in relation to Syria: (1) actions or policies that further threaten For provisions relating to required 2019 (E.O. 13894), and any further the peace, security, stability, or territorial records and reports, see part 501, Executive orders issued pursuant to the integrity of Syria; or subpart C, of this chapter. national emergency declared in E.O. (2) the commission of serious human rights Recordkeeping and reporting 13894, may be taken by the Director of abuse; requirements imposed by part 501 of OFAC or by any other person to whom (B) to be a current or former official of the this chapter with respect to the the Secretary of the Treasury has Government of Turkey; prohibitions contained in this part are delegated authority so to act. (C) to be any subdivision, agency, or considered requirements arising instrumentality of the Government of Turkey; pursuant to this part. Subpart I—Paperwork Reduction Act (D) to operate in such sectors of the Turkish economy as may be determined by Subpart G—Penalties and Findings of § 569.901 Paperwork Reduction Act notice. the Secretary of the Treasury, in consultation with the Secretary of State; Violation For approval by the Office of Management and Budget (OMB) under (E) to have materially assisted, sponsored, § 569.701 Penalties and Findings of the Paperwork Reduction Act of 1995 or provided financial, material, or Violation. technological support for, or goods or (44 U.S.C. 3507) of information services to or in support of, any person (a) The penalties available under collections relating to recordkeeping whose property and interests in property are section 206 of the International and reporting requirements, licensing blocked pursuant to this order; or Emergency Economic Powers Act (50 procedures, and other procedures, see (F) to be owned or controlled by, or to have U.S.C. 1701–1706) (IEEPA), as adjusted § 501.901 of this chapter. An agency acted or purported to act for or on behalf of,
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directly or indirectly, any person whose of this section, has determined that a person may prohibit the opening, and prohibit or property and interests in property are meets any of the criteria described in that impose strict conditions on the maintaining, blocked pursuant to this order. subsection and has selected one or more of in the United States of a correspondent (b) The prohibitions in subsection (a) of the sanctions set forth below to impose on account or a payable-through account by this section apply except to the extent that person, the Secretary of the Treasury, in such foreign financial institution. provided by statutes, or in regulations, consultation with the Secretary of State, shall (c) The prohibitions in subsection (b) of orders, directives, or licenses that may be take the following actions where necessary to this section apply except to the extent issued pursuant to this order, and implement the sanctions selected by the provided by statutes, or in regulations, notwithstanding any contract entered into or Secretary of State: orders, directives, or licenses that may be any license or permit granted before the date (i) prohibit any United States financial issued pursuant to this order, and of this order. institution that is a U.S. person from making notwithstanding any contract entered into or Sec. 2. (a) The Secretary of State, in loans or providing credits to the sanctioned any license or permit granted before the date consultation with the Secretary of the person totaling more than $10,000,000 in any of this order. Treasury and other officials of the U.S. 12-month period, unless such person is Sec. 4. The unrestricted immigrant and Government as appropriate, is hereby engaged in activities to relieve human nonimmigrant entry into the United States of authorized to impose on a foreign person any suffering and the loans or credits are aliens determined to meet one or more of the of the sanctions described in subsections (b) provided for such activities; criteria in subsection 1(a) or 2(a) of this and (c) of this section, upon determining that (ii) prohibit any transactions in foreign order, or aliens for which the sanctions under the person, on or after the date of this order: exchange that are subject to the jurisdiction subsection 2(b)(ii) have been selected, would (i) is responsible for or complicit in, has of the United States and in which the be detrimental to the interests of the United directly or indirectly engaged in, or sanctioned person has any interest; States, and the entry of such persons into the attempted to engage in, or financed, any of (iii) prohibit any transfers of credit or United States, as immigrants or the following: payments between banking institutions or by, nonimmigrants, is hereby suspended, except (A) the obstruction, disruption, or through, or to any banking institution, to the where the Secretary of State determines that prevention of a ceasefire in northern Syria; extent that such transfers or payments are the entry of the person into the United States (B) the intimidation or prevention of subject to the jurisdiction of the United would not be contrary to the interests of the displaced persons from voluntarily returning States and involve any interest of the United States, including when the Secretary to their places of residence in Syria; sanctioned person; so determines, based on a recommendation of (C) the forcible repatriation of persons or (iv) block all property and interests in the Attorney General, that the person’s entry refugees to Syria; or property that are in the United States, that would further important United States law (D) the obstruction, disruption, or hereafter come within the United States, or enforcement objectives. In exercising this responsibility, the Secretary of State shall prevention of efforts to promote a political that are or hereafter come within the solution to the conflict in Syria, including: consult the Secretary of Homeland Security possession or control of any United States (1) the convening and conduct of a credible on matters related to admissibility or person of the sanctioned person, and provide and inclusive Syrian-led constitutional inadmissibility within the authority of the that such property and interests in property process under the auspices of the United Secretary of Homeland Security. Such may not be transferred, paid, exported, Nations (UN); persons shall be treated in the same manner withdrawn, or otherwise dealt in; (2) the preparation for and conduct of UN- as persons covered by section 1 of (v) prohibit any United States person from supervised elections, pursuant to the new Proclamation 8693 of July 24, 2011 constitution, that are free and fair and to the investing in or purchasing significant (Suspension of Entry of Aliens Subject to highest international standards of amounts of equity or debt instruments of the United Nations Security Council Travel Bans transparency and accountability; or sanctioned person; and International Emergency Economic (3) the development of a new Syrian (vi) restrict or prohibit imports of goods, Powers Act Sanctions). The Secretary of State government that is representative and reflects technology, or services, directly or indirectly, shall have the responsibility for the will of the Syrian people; into the United States from the sanctioned implementing this section pursuant to such (ii) is an adult family member of a person person; or conditions and procedures as the Secretary designated under subsection (a)(i) of this (vii) impose on the principal executive has established or may establish pursuant to section; or officer or officers, or persons performing Proclamation 8693. (iii) is responsible for or complicit in, or similar functions and with similar Sec. 5. I hereby determine that the making has directly or indirectly engaged in, or authorities, of the sanctioned person the of donations of the types of articles specified attempted to engage in, the expropriation of sanctions described in subsections (c)(i)– in section 203(b)(2) of IEEPA (50 U.S.C. property, including real property, for (c)(vi) of this section, as selected by the 1702(b)(2)) by, to, or for the benefit of any personal gain or political purposes in Syria. Secretary of State. person whose property and interests in (b) When the Secretary of State, in (d) The prohibitions in subsections (b) and property are blocked pursuant to section 1 of accordance with the terms of subsection (a) (c) of this section apply except to the extent this order would seriously impair my ability of this section, has determined that a person provided by statutes, or in regulations, to deal with the national emergency declared meets any of the criteria described in that orders, directives, or licenses that may be in this order, and I hereby prohibit such subsection and has selected one or more of issued pursuant to this order, and donations as provided by section 1 of this the sanctions set forth below to impose on notwithstanding any contract entered into or order. that person, the heads of relevant any license or permit granted before the date Sec. 6. The prohibitions in sections 1 and departments and agencies, in consultation of this order. 2 of this order include: with the Secretary of State, as appropriate, Sec. 3. (a) The Secretary of the Treasury, (a) the making of any contribution or shall ensure that the following actions are in consultation with the Secretary of State, is provision of funds, goods, or services by, to, taken where necessary to implement the hereby authorized to impose on a foreign or for the benefit of any person whose sanctions selected by the Secretary of State: financial institution the sanctions described property and interests in property are (i) agencies shall not procure, or enter into in subsection (b) of this section upon blocked pursuant to this order; and a contract for the procurement of, any goods determining that the foreign financial (b) the receipt of any contribution or or services from the sanctioned person; or institution knowingly conducted or provision of funds, goods, or services from (ii) the Secretary of State shall direct the facilitated any significant financial any such person. denial of a visa to, and the Secretary of transaction for or on behalf of any person Sec. 7. (a) Any transaction that evades or Homeland Security shall exclude from the whose property and interests in property are avoids, has the purpose of evading or United States, any alien that the Secretary of blocked pursuant to section 1 of this order. avoiding, causes a violation of, or attempts to State determines is a corporate officer or (b) With respect to any foreign financial violate any of the prohibitions set forth in principal of, or a shareholder with a institution determined by the Secretary of the this order is prohibited. controlling interest in, a sanctioned person. Treasury, in accordance with this section, to (b) Any conspiracy formed to violate any (c) When the Secretary of State, in meet the criteria set forth in subsection (a) of of the prohibitions set forth in this order is accordance with the terms of subsection (a) this section, the Secretary of the Treasury prohibited.
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Sec. 8. For the purposes of this order: appropriate measures within their authority apply for uniformed service of their (a) The term ‘‘entity’’ means a partnership, to implement this order. civilian employment and reemployment association, trust, joint venture, corporation, Sec. 11. The Secretary of the Treasury, in rights, benefits, and obligations. This group, subgroup, or other organization; consultation with the Secretary of State, is (b) the term ‘‘foreign financial institution’’ hereby authorized to submit the recurring internal policy does not require means any foreign entity that is engaged in and final reports to the Congress on the codification, therefore, DoD will remove the business of accepting deposits, making, national emergency declared in this order, this part and publish notification in the granting, transferring, holding, or brokering consistent with section 401(c) of the NEA (50 Federal Register informing the public of loans or credits, or purchasing or selling U.S.C. 1641(c)), and section 204(c) of IEEPA administrative information concerning a foreign exchange, securities, commodity (50 U.S.C. 1703(c)). request for pertinent information futures or options, or procuring purchasers Sec. 12. (a) Nothing in this order shall be and sellers thereof, as principal or agent. The construed to impair or otherwise affect: regarding periods of uniformed service. term includes depository institutions, banks, (i) the authority granted by law to an DATES: This rule is effective on June 5, savings banks, money service businesses, executive department or agency, or the head 2020. trust companies, securities brokers and thereof; or dealers, commodity futures and options (ii) the functions of the Director of the FOR FURTHER INFORMATION CONTACT: brokers and dealers, forward contract and Office of Management and Budget relating to Colette Ching, Lt Col, USAF, (571) 372– foreign exchange merchants, securities and budgetary, administrative, or legislative 0671 or [email protected]. commodities exchanges, clearing proposals. corporations, investment companies, (b) This order shall be implemented SUPPLEMENTARY INFORMATION: It has been employee benefit plans, dealers in precious consistent with applicable law and subject to determined that publication of this CFR metals, stones, or jewels, and holding the availability of appropriations. part removal for public comment is companies, affiliates, or subsidiaries of any of (c) This order is not intended to, and does the foregoing. The term does not include the not, create any right or benefit, substantive or impracticable, unnecessary, and international financial institutions identified procedural, enforceable at law or in equity by contrary to public interest since it is in 22 U.S.C. 262r(c)(2), the International any party against the United States, its based on removing DoD internal Fund for Agricultural Development, the departments, agencies, or entities, its officers, policies and procedures that are North American Development Bank, or any employees, or agents, or any other person. publicly available on a Departmental other international financial institution so DONALD J. TRUMP website. A copy of the current issuance, notified by the Secretary of the Treasury; THE WHITE HOUSE, DoD Instruction 1205.12, ‘‘Civilian (c) the term ‘‘knowingly,’’ with respect to October 14, 2019. Employment and Reemployment Rights conduct, a circumstance, or a result, means that a person has actual knowledge, or Andrea Gacki, for Service Members, Former Service should have known, of the conduct, the Director, Office of Foreign Assets Control. Members and Applicants of the circumstance, or the result; Uniformed Services,’’ which was most (d) the term ‘‘person’’ means an individual Approved: recently updated on May 20, 2016, may or entity; Justin G. Muzinich, be obtained at the following web (e) the term ‘‘United States person’’ or Deputy Secretary, Department of the address: https://www.esd.whs.mil/ ‘‘U.S. person’’ means any United States Treasury. Portals/54/Documents/DD/issuances/ citizen, permanent resident alien, entity [FR Doc. 2020–12200 Filed 6–4–20; 8:45 am] organized under the laws of the United States dodi/120512p.pdf?ver=2019-03-11- or any jurisdiction within the United States BILLING CODE 4810–AL–P 081728-330. Additional information (including foreign branches), or any person relating to USERRA is available at in the United States; and https://www.esgr.mil/. (f) the term ‘‘Government of Turkey’’ DEPARTMENT OF DEFENSE Removal of this part does not reduce means the Government of Turkey, any burden or costs to the public as it will political subdivision, agency, or Office of the Secretary instrumentality thereof, or any person owned not change DoD responsibilities and or controlled by or acting for or on behalf of 32 CFR Part 104 procedures for providing USERRA- the Government of Turkey. related information. This rule is not Sec. 9. For those persons whose property [Docket ID: DOD–2019–OS–0132] significant under Executive Order (E.O.) and interests in property are blocked RIN 0790–AK93 12866, ‘‘Regulatory Planning and pursuant to this order who might have a Review.’’ Therefore, E.O. 13771, constitutional presence in the United States, ‘‘Reducing Regulation and Controlling I find that because of the ability to transfer Civilian Employment and funds or other assets instantaneously, prior Reemployment Rights for Service Regulatory Costs,’’ does not apply. This notice to such persons of measures to be Members, Former Service Members removal supports a recommendation of taken pursuant to this order would render and Applicants of the Uniformed the DoD Regulatory Reform Task Force. those measures ineffectual. I therefore Services determine that for these measures to be List of Subjects in 32 CFR Part 104 effective in addressing the national AGENCY: Under Secretary of Defense for emergency declared in this order, there need Personnel and Readiness, Department of Government employees, Military be no prior notice of a listing or Defense (DoD). personnel. determination made pursuant to this order. ACTION: Final rule. Sec. 10. The Secretary of the Treasury, in PART 104—[REMOVED] consultation with the Secretary of State, is SUMMARY: This final rule removes the hereby authorized to take such actions, DoD part that contains its ■ Accordingly, by the authority of 5 including the promulgation of rules and responsibilities under the Uniformed U.S.C. 301, 32 CFR part 104 is removed. regulations, and to employ all powers Services Employment and Dated: May 19, 2020. granted to the President by IEEPA as may be Reemployment Rights Act (USERRA). necessary to carry out the purposes of this Aaron T. Siegel, order. The Secretary of the Treasury may, The part duplicates DoD’s internal Alternate OSD Federal Register Liaison consistent with applicable law, redelegate policy assigning DoD responsibilities Officer, Department of Defense. any of these functions within the Department and providing internal procedures for of the Treasury. All departments and informing Service members, former [FR Doc. 2020–11183 Filed 6–4–20; 8:45 am] agencies of the United States shall take all Service Members, and individuals who BILLING CODE 5001–06–P
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DEPARTMENT OF HOMELAND notice of proposed rulemaking (NPRM) Vessel traffic will be able to safely SECURITY with respect to this rule because doing transit around this safety zone which so would be impracticable. The Coast will impact a small designated area of Coast Guard Guard did not receive the final details Lake Huron from 10 p.m. on July 4, of this fireworks display in time to 2020. Moreover, the Coast Guard will 33 CFR Part 165 publish an NPRM. As such, it is issue Broadcast Notice to Mariners [Docket No. USCG–2020–0237] impracticable to publish an NPRM (BNM) via VHF–FM marine channel 16 because we lack sufficient time to about the zone and the rule allows RIN 1625–AA00 provide a reasonable comment period vessels to seek permission to enter the and then consider those comments zone. Safety Zone; Schwab Family before issuing the rule. Fireworks, Lake Huron, MI B. Impact on Small Entities III. Legal Authority and Need for Rule AGENCY: Coast Guard, DHS. The Regulatory Flexibility Act of The Coast Guard is issuing this rule ACTION: Temporary final rule. 1980, 5 U.S.C. 601–612, as amended, under authority in 46 U.S.C. 70034. The requires Federal agencies to consider SUMMARY: The Coast Guard is Captain of the Port Detroit (COTP) has the potential impact of regulations on establishing a temporary safety zone for determined that potential hazard small entities during rulemaking. The navigable waters within a 200-yard associated with fireworks from 10 p.m. term ‘‘small entities’’ comprises small radius of a portion of Lake Huron, until 11 p.m. on July 4, 2020 will be a businesses, not-for-profit organizations Harbor Beach, MI. This zone is safety concern to anyone within a 200- that are independently owned and necessary to protect spectators and yard radius of the launch site. This rule operated and are not dominant in their vessels from potential hazards is needed to protect personnel, vessels, fields, and governmental jurisdictions associated with the Schwab Family and the marine environment in the with populations of less than 50,000. Fireworks. navigable waters within the safety zone The Coast Guard certifies under 5 U.S.C. while the fireworks are being displayed. 605(b) that this rule will not have a DATES: This temporary final rule is significant economic impact on a effective from 10 p.m. to 11 p.m. on July IV. Discussion of the Rule substantial number of small entities. 4, 2020. This rule establishes a safety zone While some owners or operators of ADDRESSES: To view documents from 10 p.m. until 11 p.m. on July 4, vessels intending to transit the safety mentioned in this preamble as being 2020. The safety zone will encompass zone may be small entities, for the available in the docket, go to http:// all U.S. navigable waters of Lake Huron, reasons stated in section V.A above, this www.regulations.gov, type USCG–2020– Harbor Beach, MI within a 200-yard rule will not have a significant 0237 in the ‘‘SEARCH’’ box and click radius of position 43°53.48′N, ° ′ economic impact on any vessel owner ‘‘SEARCH.’’ Click on Open Docket 082 40.76 W (NAD 83). No vessel or or operator. Folder on the line associated with this person will be permitted to enter the Under section 213(a) of the Small rule. safety zone without obtaining Business Regulatory Enforcement permission from the COTP or a FOR FURTHER INFORMATION CONTACT: If Fairness Act of 1996 (Public Law 104– designated representative. you have questions on this temporary 121), we want to assist small entities in rule, call or email Tracy Girard, V. Regulatory Analyses understanding this rule. If the rule Prevention Department, Sector Detroit, We developed this rule after would affect your small business, Coast Guard; telephone 313–568–9564, organization, or governmental or email [email protected]. considering numerous statutes and Executive orders related to rulemaking. jurisdiction and you have questions SUPPLEMENTARY INFORMATION: Below we summarize our analyses concerning its provisions or options for I. Table of Abbreviations based on a number of these statutes and compliance, please contact the person Executive orders, and we discuss First listed in the FOR FURTHER INFORMATION CFR Code of Federal Regulations Amendment rights of protestors. CONTACT section. COTP Captain of the Port Detroit Small businesses may send comments DHS Department of Homeland Security A. Regulatory Planning and Review FR Federal Register on the actions of Federal employees NPRM Notice of Proposed Rulemaking Executive Orders 12866 and 13563 who enforce, or otherwise determine § Section direct agencies to assess the costs and compliance with, Federal regulations to U.S.C. United States Code benefits of available regulatory the Small Business and Agriculture alternatives and, if regulation is Regulatory Enforcement Ombudsman II. Background Information and necessary, to select regulatory and the Regional Small Business Regulatory History approaches that maximize net benefits. Regulatory Fairness Boards. The The Coast Guard is issuing this Executive Order 13771 directs agencies Ombudsman evaluates these actions temporary rule without prior notice and to control regulatory costs through a annually and rates each agency’s opportunity to comment pursuant to budgeting process. This rule has not responsiveness to small business. If you authority under section 4(a) of the been designated a ‘‘significant wish to comment on actions by Administrative Procedure Act (APA) (5 regulatory action,’’ under Executive employees of the Coast Guard, call 1– U.S.C. 553(b)). This provision Order 12866. Accordingly, this rule has 888–REG–FAIR (1–888–734–3247). The authorizes an agency to issue a rule not been reviewed by the Office of Coast Guard will not retaliate against without prior notice and opportunity to Management and Budget (OMB), and small entities that question or complain comment when the agency for good pursuant to OMB guidance it is exempt about this rule or any policy or action cause finds that those procedures are from the requirements of Executive of the Coast Guard. ‘‘impracticable, unnecessary, or contrary Order 13771. C. Collection of Information to the public interest.’’ Under 5 U.S.C. This regulatory action determination 553(b) (B), the Coast Guard finds that is based on the size, location, duration, This rule will not call for a new good cause exists for not publishing a and time-of-year of the safety zone. collection of information under the
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Paperwork Reduction Act of 1995 (44 Coast Guard Environmental Planning obtain permission to enter or operate U.S.C. 3501–3520). Implementing Procedures 5090.1. A within the safety zone. The COTP or his Record of Environmental Consideration on-scene representative may be D. Federalism and Indian Tribal supporting this determination is contacted via VHF Channel 16 or at Governments available in the docket where indicated (313) 568–9464. Vessel operators given A rule has implications for federalism under ADDRESSES. permission to enter or operate in the under Executive Order 13132, regulated area must comply with all G. Protest Activities Federalism, if it has a substantial direct directions given to them by the COTP or effect on the States, on the relationship The Coast Guard respects the First his on-scene representative. between the national government and Amendment rights of protesters. Dated: May 13, 2020. the States, or on the distribution of Protesters are asked to contact the Jeffrey W. Novak, power and responsibilities among the person listed in the FOR FURTHER various levels of government. We have INFORMATION CONTACT section to Captain, U.S. Coast Guard, Captain of the analyzed this rule under that Order and coordinate protest activities so that your Port Detroit. have determined that it is consistent message can be received without [FR Doc. 2020–11303 Filed 6–4–20; 8:45 am] with the fundamental federalism jeopardizing the safety or security of BILLING CODE 9110–04–P principles and preemption requirements people, places or vessels. described in Executive Order 13132. Also, this rule does not have tribal List of Subjects in 33 CFR Part 165 DEPARTMENT OF HOMELAND implications under Executive Order Harbors, Marine safety, Navigation SECURITY 13175, Consultation and Coordination (water), Reporting and record keeping Coast Guard with Indian Tribal Governments, requirements, Security measures, because it does not have a substantial Waterways. 33 CFR Part 165 direct effect on one or more Indian For the reasons discussed in the tribes, on the relationship between the preamble, the Coast Guard amends 33 [Docket Number USCG–2020–0264] Federal Government and Indian tribes, CFR part 165 as follows: or on the distribution of power and RIN 1625–AA87 responsibilities between the Federal PART 165—REGULATED NAVIGATION Security Zone; HMS MEDWAY, St. Government and Indian tribes. If you AREAS AND LIMITED ACCESS AREAS believe this rule has implications for Johns River, Jacksonville, FL ■ federalism or Indian tribes, please 1. The authority citation for part 165 AGENCY: Coast Guard, DHS. contact the person listed in the FOR continues to read as follows: ACTION: Temporary final rule. FURTHER INFORMATION CONTACT section Authority: 46 U.S.C. 70034, 70051; 33 CFR above. 1.05–1, 6.04–1, 6.04–6, and 160.5; SUMMARY: The Coast Guard is E. Unfunded Mandates Reform Act Department of Homeland Security Delegation establishing a temporary moving No. 0170.1. security zone for navigable waters 500 The Unfunded Mandates Reform Act ■ 2. Add § 165.T09–0237 to read as yards around the HMS MEDWAY of 1995 (2 U.S.C. 1531–1538) requires follows: during the vessel’s transit from the St. Federal agencies to assess the effects of Johns River Sea Buoy until BAE their discretionary regulatory actions. In § 165.T09–0237 Safety Zone; Schwab Family Fireworks, Lake Huron, MI. Systems Shipyard, and while it remains particular, the Act addresses actions docked at BAE Systems Shipyard, that may result in the expenditure by a (a) Location. A safety zone is Mayport, FL starting May 17, 2020. The State, local, or tribal government, in the established to include all U.S. navigable security zone is needed to protect aggregate, or by the private sector of waters of Lake Huron, Harbor Beach, MI personnel and government property $100,000,000 (adjusted for inflation) or within a 200-yard radius of position ° ′ ° ′ from potential hazards associated with more in any one year. Though this rule 43 53.48 N, 082 40.76 W (NAD 83). waterborne security incidents and (b) Enforcement period. The regulated will not result in such an expenditure, recreational marine traffic while the area described in paragraph (a) will be we do discuss the effects of this rule vessel transits to their assigned berth enforced from 10 p.m. until 11 p.m. on elsewhere in this preamble. space at BAE Systems Shipyard, July 4, 2020. Mayport, FL and while docked at BAE F. Environment (c) Regulations. (1) No vessel or Systems Shipyard. Entry of vessels or We have analyzed this rule under person may enter, transit through, or persons into this zone is prohibited Department of Homeland Security anchor within the safety zone unless unless specifically authorized by the Directive 023–01 and Environmental authorized by the Captain of the Port Captain of the Jacksonville. Planning COMDTINST 5090.1 (series), Detroit (COTP), or his on-scene which guide the Coast Guard in representative. DATES: This rule is effective without complying with the National (2) The safety zone is closed to all actual notice from June 5, 2020 until 4 Environmental Policy Act of 1969 (42 vessel traffic, except as may be p.m. on June 14, 2020. For purposes of U.S.C. 4321–4370f), and have permitted by the COTP or his on-scene enforcement, actual notice will be used determined that this action is one of a representative. from 4 a.m. May 17, 2020 until June 5, category of actions that do not (3) The ‘‘on-scene representative’’ of 2020. individually or cumulatively have a COTP is any Coast Guard ADDRESSES: To view documents significant effect on the human commissioned, warrant or petty officer mentioned in this preamble as being environment. This rule involves a safety or a Federal, State, or local law available in the docket, go to https:// zone lasting one and a half hours on two enforcement officer designated by or www.regulations.gov, type USCG–2020– nights that will prohibit entry into a assisting the Captain of the Port Detroit 0264 in the ‘‘SEARCH’’ box and click designated area. It is categorically to act on his behalf. ‘‘SEARCH.’’ Click on Open Docket excluded from further review under (4) Vessel operators shall contact the Folder on the line associated with this paragraph L60(a) in Table 3–1 of U.S. COTP or his on-scene representative to rule.
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FOR FURTHER INFORMATION CONTACT: If Mayport, FL. This rule is needed to would allow vessels to seek permission you have questions on this rule, call or protect personnel and government to enter the zone. email LT Emily Sysko, Sector officials from potential hazards B. Impact on Small Entities Jacksonville, Waterways Management, associated with vessels coming within U.S. Coast Guard; telephone 904–714– 500 yards of the HMS MEDWAY. The Regulatory Flexibility Act of 7662, email [email protected]. 1980, 5 U.S.C. 601–612, as amended, IV. Discussion of the Rule SUPPLEMENTARY INFORMATION: requires Federal agencies to consider This rule establishes a temporary the potential impact of regulations on I. Table of Abbreviations moving security zone from 4 a.m. May small entities during rulemaking. The CFR Code of Federal Regulations 17, 2020 until June 14, 2020. The term ‘‘small entities’’ comprises small DHS Department of Homeland Security security zone will encompass navigable businesses, not-for-profit organizations FR Federal Register waters within a 500 yard radius around that are independently owned and NPRM Notice of proposed rulemaking the HMS MEDWAY as the vessel operated and are not dominant in their § Section transits the St. Johns River to BAE fields, and governmental jurisdictions U.S.C. United States Code Systems Shipyard, MAYPORT, FL and with populations of less than 50,000. II. Background Information and while docked at the BAE Systems The Coast Guard certifies under 5 U.S.C. Regulatory History Shipyard. The duration of the zone is 605(b) that this rule will not have a intended to protect personnel and significant economic impact on a The Coast Guard is issuing this substantial number of small entities. temporary rule without prior notice and government property during the vessel’s transit from the St. Johns River Sea While some owners or operators of opportunity to comment pursuant to vessels intending to transit the security authority under section 4(a) of the Buoy to BAE Systems Shipyard, and while docked at BAE Systems Shipyard, zone may be small entities, for the Administrative Procedure Act (APA) (5 reasons stated in section V.A above, this U.S.C. 553(b)). This provision Mayport, FL. No vessel or person will be permitted to enter the security zone rule will not have a significant authorizes an agency to issue a rule economic impact on any vessel owner without prior notice and opportunity to without obtaining permission from the COTP or a designated representative. or operator. comment when the agency for good Under section 213(a) of the Small cause finds that those procedures are V. Regulatory Analyses Business Regulatory Enforcement ‘‘impracticable, unnecessary, or contrary We developed this rule after Fairness Act of 1996 (Pub. L. 104–121), to the public interest.’’ Under 5 U.S.C. we want to assist small entities in 553(b)(B), the Coast Guard finds that considering numerous statutes and Executive orders related to rulemaking. understanding this rule. If the rule good cause exists for not publishing a would affect your small business, notice of proposed rulemaking (NPRM) Below we summarize our analyses based on a number of these statutes and organization, or governmental with respect to this rule because it is jurisdiction and you have questions impracticable. The Coast Guard was Executive orders, and we discuss First Amendment rights of protestors. concerning its provisions or options for notified of the vessel arrival on May 8, compliance, please call or email the 2020. The Royal Navy vessel and A. Regulatory Planning and Review person listed in the FOR FURTHER personnel will be entering the area and Executive Orders 12866 and 13563 INFORMATION CONTACT section. immediate action is needed to respond Small businesses may send comments direct agencies to assess the costs and to the potential security hazards on the actions of Federal employees benefits of available regulatory associated with their visit. It is who enforce, or otherwise determine alternatives and, if regulation is impracticable to publish an NPRM compliance with, Federal regulations to necessary, to select regulatory because we must establish this security the Small Business and Agriculture approaches that maximize net benefits. zone by May 17, 2020. Regulatory Enforcement Ombudsman Executive Order 13771 directs agencies Under 5 U.S.C. 553(d)(3), the Coast and the Regional Small Business to control regulatory costs through a Guard finds that good cause exists for Regulatory Fairness Boards. The budgeting process. This rule has not making this rule effective less than 30 Ombudsman evaluates these actions been designated a ‘‘significant days after publication in the Federal annually and rates each agency’s regulatory action,’’ under Executive Register. Delaying the effective date of responsiveness to small business. If you Order 12866. Accordingly, this rule has this rule would be impracticable wish to comment on actions by not been reviewed by the Office of because immediate action is needed to employees of the Coast Guard, call 1– Management and Budget (OMB), and respond to the potential hazards 888–REG–FAIR (1–888–734–3247). The pursuant to OMB guidance it is exempt associated with waterborne security Coast Guard will not retaliate against from the requirements of Executive threats. small entities that question or complain Order 13771. III. Legal Authority and Need for Rule about this rule or any policy or action This regulatory action determination of the Coast Guard. The Coast Guard is issuing this rule is based on the time and duration the under authority in 46 U.S.C. 70034. The HMS MEDWAY’s anticipated transit C. Collection of Information Captain of the Port Jacksonville (COTP) time in the St. Johns River. Vessel traffic This rule will not call for a new has determined that potential hazards will be able to safely transit around this collection of information under the associated with waterborne threats as a security zone which would impact a Paperwork Reduction Act of 1995 (44 result of the HMS MEDWAY entering small area of the St. Johns River while U.S.C. 3501–3520). the St. Johns River starting May 17, the HMS MEDWAY transits the 2020, will be a potential security waterway and is docked at their D. Federalism and Indian Tribal concern for the Royal Navy vessel as it assigned berth at BAE Systems Governments passes the St. Johns River Sea Boy, Shipyard, Mayport, FL. Moreover, the A rule has implications for federalism while transits to their assigned berth at Coast Guard will issue a Broadcast under Executive Order 13132, BAE Systems Shipyard, and while Notice to Mariners via VHF–FM marine Federalism, if it has a substantial direct docked at the BAE Systems Shipyard in channel 16 about the zone, and the rule effect on the States, on the relationship
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between the National Government and INFORMATION CONTACT section to (3) The Coast Guard will provide the States, or on the distribution of coordinate protest activities so that your notice of the regulated area through power and responsibilities among the message can be received without Broadcast Notice to Mariners via VHF– various levels of government. We have jeopardizing the safety or security of FM channel 16 or by on-scene analyzed this rule under that order and people, places or vessels. designated representatives. have determined that it is consistent (d) Enforcement period. This section with the fundamental federalism List of Subjects in 33 CFR Part 165 will be enforced from 4 a.m. May 17, principles and preemption requirements Harbors, Marine safety, Navigation 2020 until 4 p.m. on June 14, 2020. described in Executive Order 13132. (water), Reporting and record keeping Dated: May 15, 2020. Also, this rule does not have tribal requirements, Security measures, M.R. Vlaun, implications under Executive Order Waterways. Captain, U.S. Coast Guard, Captain of the 13175, Consultation and Coordination For the reasons discussed in the with Indian Tribal Governments, Port Jacksonville. preamble, the Coast Guard amends 33 [FR Doc. 2020–12245 Filed 6–4–20; 8:45 am] because it does not have a substantial CFR part 165 as follows: direct effect on one or more Indian BILLING CODE 9110–04–P tribes, on the relationship between the PART 165—REGULATED NAVIGATION Federal Government and Indian tribes, AREAS AND LIMITED ACCESS AREAS or on the distribution of power and DEPARTMENT OF VETERANS responsibilities between the Federal ■ 1. The authority citation for part 165 AFFAIRS Government and Indian tribes. continues to read as follows: 38 CFR Part 71 E. Unfunded Mandates Reform Act Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5; Department RIN 2900–AQ96 The Unfunded Mandates Reform Act of Homeland Security Delegation No. 0170.1. of 1995 (2 U.S.C. 1531–1538) requires Home Visits in Program of Federal agencies to assess the effects of ■ 2. Add § 165.T07–0264 to read as Comprehensive Assistance for Family their discretionary regulatory actions. In follows: Caregivers During COVID–19 National particular, the Act addresses actions § 165.T07–0264 Security Zone; HMS Emergency that may result in the expenditure by a MEDWAY, St. Johns River, Jacksonville, FL. State, local, or tribal government, in the AGENCY: Department of Veterans Affairs (a) Location. The following is a aggregate, or by the private sector of ACTION: Interim final rule. security zone: The security zone will $100,000,000 (adjusted for inflation) or encompass navigable waters within a SUMMARY: The Department of Veterans more in any one year. Though this rule 500 yard radius around HMS MEDWAY Affairs (VA) is revising its regulations will not result in such an expenditure, during the vessel’s transit from the St. that govern VA’s Program of we do discuss the effects of this rule Johns River Entrance Buoy to it’s Comprehensive Assistance for Family elsewhere in this preamble. assigned berth at BAE Systems Caregivers (PCAFC) to relax the F. Environment Shipyard, Mayport, FL, and will remain requirement for in-person home visits We have analyzed this rule under around the vessel while docked at BAE during the National Emergency related Department of Homeland Security Systems Shipyard. to Coronavirus Disease-2019 (COVID– Directive 023–01, Rev. 1, associated (b) Definitions. As used in this 19). This change is required to ensure implementing instructions, and section, designated representative the safety and well-being of veterans, Environmental Planning COMDTINST means a Coast Guard Patrol caregivers, and VA clinical staff. 5090.1 (series), which guide the Coast Commander, including a Coast Guard DATES: Guard in complying with the National coxswain, petty officer, or other officer Effective Date: This rule is effective Environmental Policy Act of 1969 (42 operating a Coast Guard vessel and on June 5, 2020. U.S.C. 4321–4370f), and have Federal, State, and local officers Comment Date: Comments must be determined that this action is one of a designated by or assisting the Captain of received on or before July 6, 2020. category of actions that do not the Port Jacksonville (COTP) in the ADDRESSES: Written comments may be individually or cumulatively have a enforcement of the security zone. submitted through http:// significant effect on the human (c) Regulations. (1) All persons and www.Regulations.gov; by mail or hand- environment. This rule involves a vessels are prohibited from entering, delivery to the Director, Office of security zone that will prohibit entry transiting through, anchoring in, or Regulation Policy and Management within navigable waters outlined in the remaining within the regulated area (00REG), Department of Veterans Discussion of the Rule above. It is unless authorized by the Captain of the Affairs, 810 Vermont Avenue NW, categorically excluded from further Port Jacksonville or a designated Room 1064, Washington, DC 20420; or review under paragraph L60(a) of representative. by fax to (202) 273–9026. Comments Appendix A, Table 1 of DHS Instruction (2) Persons and vessels desiring to should indicate that they are submitted Manual 023–01–001–01, Rev. 1. A enter, transit through, anchor in, or in response to ‘‘RIN 2900–AQ96, Home Record of Environmental Consideration remain within the regulated area may Visits in Program of Comprehensive supporting this determination is contact the Captain of the Port Assistance for Family Caregivers During available in the docket. For insturctions Jacksonville by telephone at (904) 714– COVID–19 National Emergency.’’ Copies on locating the docket, see the 7557, or a designated representative via of comments received will be available ADDRESSES section of this preamble. VHF–FM radio on channel 16, to for public inspection in the Office of request authorization. If authorization is Regulation Policy and Management, G. Protest Activities granted, all persons and vessels Room 1064, between the hours of 8:00 The Coast Guard respects the First receiving such authorization must a.m. and 4:30 p.m. Monday through Amendment rights of protesters. comply with the instructions of the Friday (except holidays). Please call Protesters are asked to call or email the COTP Jacksonville or a designated (202) 461–4902 for an appointment. person listed in the FOR FURTHER representative. (This is not a toll-free number.) In
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addition, during the comment period, of veterans, their caregivers, and VA provisions of 5 U.S.C. 553(b)(B), to comments may be viewed online staff. To reduce the risk of exposure to publish this interim final rule without through the Federal Docket Management and transmission of COVID–19 to prior notice and the opportunity for System at http://www.Regulations.gov. individuals involved in PCAFC, as well public comment, and under 5 U.S.C. FOR FURTHER INFORMATION CONTACT: as members of their households and 553(d), to dispense with the delayed Elyse Kaplan, National Deputy Director, others with whom they come into effective date ordinarily prescribed by Caregiver Support Program, Care contact who may be affected, VA is the Administrative Procedure Act Management and Social Work, 10P4C, relaxing PCAFC home visit (APA). Veterans Health Administration, requirements as set forth in this interim Pursuant to section 553(b)(B) of the Department of Veterans Affairs, 810 final rule. This is especially important APA, general notice and the opportunity Vermont Ave. NW, Washington, DC given the vulnerable population of for public comment are not required 20420, (202) 461–7337. (This is not a veterans served by PCAFC. Pursuant to with respect to a rulemaking when an toll-free number.) § 71.60, VA will have flexibility to ‘‘agency for good cause finds (and incorporates the finding and a brief SUPPLEMENTARY INFORMATION: Title I of conduct home visits through means statement of reasons therefor in the Public Law 111–163, Caregivers and other than in-person visits, including rules issued) that notice and public Veterans Omnibus Health Services Act videoconference or other available procedure thereon are impracticable, of 2010 (hereinafter referred to as ‘‘the telehealth modalities. Section 71.60 will unnecessary, or contrary to the public Caregivers Act’’), established section only apply to home visits under part 71 interest.’’ The Secretary finds that it is 1720G(a) of title 38 of the United States and will not apply to other parts of title 38, CFR. contrary to the public interest to delay Code (U.S.C.), which required VA to This interim final rule has an issuance of this rule for the purpose of establish a Program of Comprehensive immediate impact on the mode by soliciting prior public comment because Assistance for Family Caregivers which VA completes the initial home- there is an immediate and pressing (PCAFC) for eligible veterans who have care assessments required by 38 CFR public health risk for veterans, a serious injury incurred or aggravated 71.25(e). Section 71.25(e) sets forth the caregivers, and clinical staff involved in in the line of duty on or after September requirement for an initial home-care PCAFC home visits, as well as members 11, 2001. The Caregivers Act also assessment prior to approval and of their households and others with required VA to establish a Program of designation of a Family Caregiver under whom they come into contact who may General Caregiver Support Services PCAFC. Section 71.25(e) currently be affected. Mandating an in-person (PGCSS), pursuant to 38 U.S.C. requires ‘‘a VA clinician or a clinical visit to an eligible veteran’s home 1720G(b), which is available to team [to] visit the eligible veteran’s through PCAFC could increase the risk caregivers of covered veterans of all eras home to assess the caregiver’s of exposure to and transmission of of military service. VA implemented completion of training and competence COVID–19, and it is critical that VA PCAFC and PGCSS through its to provide personal care services at the have immediate flexibility to conduct regulations in part 71 of title 38 of the eligible veteran’s home, and to measure home visits through other means. For Code of Federal Regulations (CFR). the eligible veteran’s well being.’’ these reasons, the Secretary has Through PCAFC, VA provides Family Pursuant to § 71.60, a VA clinician or concluded that ordinary notice and Caregivers of eligible veterans (as those clinical team is no longer required to comment procedures would be terms are defined in 38 CFR 71.15) conduct an in-person visit in the eligible impracticable and contrary to the public certain benefits, such as training, respite veteran’s home to satisfy this interest and is accordingly issuing this care, counseling, technical support, requirement for the duration the rule as an interim final rule. The beneficiary travel (to attend required COVID–19 National Emergency. Secretary will consider and address caregiver training and for an eligible Section 71.60 may also impact the comments that are received within 30 veteran’s medical appointments), a home visit requirements proposed by days after the date that this interim final monthly stipend payment, and access to VA on March 6, 2020 in RIN 2900– rule is published in the Federal Register health care (if qualified) through the AQ48, Program of Comprehensive and address them in a subsequent Civilian Health and Medical Program of Assistance for Family Caregivers Federal Register document announcing the Department of Veterans Affairs Improvements and Amendments Under a final rule incorporating any changes (CHAMPVA). 38 U.S.C. 1720G(a)(3), 38 the VA MISSION Act of 2018. 85 FR made in response to the public CFR 71.40. This interim final rule 13356. The proposed rule references a comments. relates to PCAFC. home visit in proposed § 71.25(e) with The APA also requires a 30-day VA is adding a new § 71.60 to title 38, respect to the initial home-care delayed effective date, except for ‘‘(1) a CFR, to provide flexibility in the mode assessment, specifies that reassessments substantive rule which grants or by which VA conducts PCAFC home under proposed § 71.30 may include a recognizes an exemption or relieves a visits for the duration of the National visit to the eligible veteran’s home, and restriction; (2) interpretative rules and Emergency related to COVID–19 proposes to require an annual home statements of policy; or (3) as otherwise declared by the President on March 13, visit in proposed § 71.40(b)(2) for provided by the agency for good cause 2020 (the COVID–19 National purposes of wellness contacts. For the found and published with the rule.’’ 5 Emergency). COVID–19 is a new disease duration of the COVID–19 National U.S.C. 553(d). For the reasons stated that causes respiratory illness in people Emergency, § 71.60 will authorize VA to above, the Secretary finds that there is and can spread from person to person. complete these home visits through also good cause for this interim rule to Many individuals and communities means other than an in-person visit to be effective immediately upon across the country have taken steps to the eligible veteran’s home, such as publication. It is in the public interest reduce the spread of COVID–19, videoconference or other available for VA to have flexibility to utilize including isolating individuals telehealth modalities. alternative modalities to conduct diagnosed with the disease and required home visits during the COVID– implementing physical distancing Administrative Procedure Act 19 National Emergency, and this will be measures. The priority goal in the VA The Secretary of Veterans Affairs facilitated by an immediate effective response to COVID–19 is the protection finds that there is good cause under the date. Additionally, this rule relieves a
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restriction by expanding the modes by published. Additionally, a copy of the Affairs amends 38 CFR part 71 as which the home visits can be rulemaking and its impact analysis are follows: completed. Instead of requiring such available on VA’s website at http:// visits to be completed through in-person www.va.gov/orpm/, by following the PART 71—CAREGIVERS BENEFITS visits to the eligible veteran’s home, for link for ‘‘VA Regulations Published AND CERTAIN MEDICAL BENEFITS the duration of the COVID–19 National From FY 2004 Through Fiscal Year to OFFERED TO FAMILY MEMBERS OF Emergency, PCAFC home visits can be Date.’’ VETERANS completed through other means, This interim final rule is considered ■ 1. The authority citation for part 71 including videoconference or other an E.O. 13771 deregulatory action. continues to read as follows: available telehealth modalities. By Details on the estimated cost savings of relieving a restriction and because any this interim final rule can be found in Authority: 38 U.S.C. 501, 1720G, unless delay in implementation of § 71.60 the rule’s economic analysis. otherwise noted. would be contrary to the public interest ■ 2. Add § 71.60 to read as follows: under 5 U.S.C. 553(d)(1) and (3), Unfunded Mandates respectively, this interim final rule is The Unfunded Mandates Reform Act § 71.60 Home Visits During COVID–19 National Emergency. exempt from the APA’s delayed of 1995 requires, at 2 U.S.C. 1532, that effective date requirement. agencies prepare an assessment of Notwithstanding the requirements in anticipated costs and benefits before this part, for the duration of the Paperwork Reduction Act issuing any rule that may result in the National Emergency related to COVID– This interim final rule contains no expenditure by State, local, and tribal 19 declared by the President on March provisions constituting a collection of governments, in the aggregate, or by the 13, 2020, VA may complete visits to the information under the Paperwork private sector, of $100 million or more eligible veteran’s home under this part Reduction Act of 1995 (44 U.S.C. 3501– (adjusted annually for inflation) in any through videoconference or other 3521). one year. This interim final rule will available telehealth modalities. [FR Doc. 2020–12359 Filed 6–4–20; 8:45 am] Regulatory Flexibility Act have no such effect on State, local, and tribal governments, or on the private BILLING CODE 8320–01–P The Secretary hereby certifies that sector. this interim final rule will not have a significant economic impact on a Congressional Review Act ENVIRONMENTAL PROTECTION substantial number of small entities as Pursuant to the Congressional Review AGENCY they are defined in the Regulatory Act (5 U.S.C. 801 et seq.), the Office of Flexibility Act (5 U.S.C. 601–612). This Information and Regulatory Affairs 40 CFR Part 52 interim final rule provides flexibility in designated this rule as not a major rule, [EPA–R01–OAR–2020–0029; FRL–10010– the modes by which VA conducts as defined by 5 U.S.C. 804(2). 00–Region 1] PCAFC home visits for the duration of the National Emergency related to Catalog of Federal Domestic Assistance Air Plan Approval; New Hampshire; COVID–19 and does not affect small The Catalog of Federal Domestic Negative Declaration for the Oil and businesses. Therefore, pursuant to 5 Assistance numbers and titles for the Gas Industry; Withdrawal of Direct U.S.C. 605(b), the initial and final programs affected by this document are Final Rule regulatory flexibility analysis 64.009, Veterans Medical Care Benefits. requirements of 5 U.S.C. 603 and 604 do AGENCY: Environmental Protection not apply. List of Subjects in 38 CFR Part 71 Agency (EPA). ACTION: Withdrawal of direct final rule. Executive Orders 12866, 13563 and Administrative practice and 13771 procedure, Caregivers program, Claims, SUMMARY: Due to the receipt of adverse Health care, Health facilities, Health comments, the Environmental Executive Orders 12866 and 13563 professions, Mental health programs, direct agencies to assess the costs and Protection Agency (EPA) is withdrawing Travel and transportation expenses, the April 6, 2020 direct final rule benefits of available regulatory Veterans. alternatives and, when regulation is approving a State Implementation Plan necessary, to select regulatory Signing Authority (SIP) revision submitted by the State of approaches that maximize net benefits New Hampshire. New Hampshire’s SIP The Secretary of Veterans Affairs, or revision provided a negative declaration (including potential economic, designee, approved this document and environmental, public health and safety for EPA’s 2016 Control Technique authorized the undersigned to sign and Guideline for the oil and gas industry. effects, and other advantages; submit the document to the Office of the distributive impacts; and equity). This action is being taken in accordance Federal Register for publication with the Clean Air Act. Executive Order 13563 (Improving electronically as an official document of DATES: The direct final rule published at Regulation and Regulatory Review) the Department of Veterans Affairs. 85 FR 19087 on April 6, 2020 is emphasizes the importance of Brooks D. Tucker, Acting Chief of Staff, withdrawn effective June 5, 2020. quantifying both costs and benefits, Department of Veterans Affairs, FOR FURTHER INFORMATION CONTACT: reducing costs, harmonizing rules, and approved this document on June 3, Bob promoting flexibility. The Office of 2020, for publication. McConnell, Environmental Engineer, Information and Regulatory Affairs has Air and Radiation Division (Mail Code determined that this rule is not a Consuela Benjamin, 05–2), U.S. Environmental Protection significant regulatory action under Regulation Development Coordinator, Office Agency, Region 1, 5 Post Office Square, Executive Order 12866. of Regulation Policy & Management, Office Suite 100, Boston, Massachusetts, VA’s impact analysis can be found as of the Secretary, Department of Veterans 02109–3912; (617) 918–1046. a supporting document at http:// Affairs. [email protected]. www.regulations.gov, usually within 48 For the reasons stated in the SUPPLEMENTARY INFORMATION: In the hours after the rulemaking document is preamble, the Department of Veterans direct final rule, EPA stated that if
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adverse comments were submitted by of Economics and Analytics’ functions process by which to apply an May 6, 2020, the rule would be and delegated authority. adjustment factor to the disaggregation withdrawn and not take effect. EPA DATES: Effective June 5, 2020. of support that are supported by the received adverse comments prior to the FOR FURTHER INFORMATION CONTACT: record established in response to their close of the comment period and, Kelly A. Quinn, Office of Economics proposals, provided such action is therefore, is withdrawing the direct final and Analytics, (202) 418–0660. consistent with the actions that the rule. EPA will address the comments in Commission takes in the 5G Fund SUPPLEMENTARY INFORMATION: This is a proceeding (GN Docket No. 20–32). a subsequent final action based upon summary of the Commission’s Order in Following any such action to establish the proposed rule also published on GN Docket No. 20–32, adopted on April an adjustment factor value and process April 6, 2020 (85 FR 19116). EPA will 23, 2020 and released on April 24, 2020 by which to apply it to the not institute a second comment period (Order). The full text of the Order is disaggregation of legacy support, the on this action. available for public inspection during Order also directs the Office of List of Subjects in 40 CFR Part 52 regular business hours in the FCC Economics and Analytics and Wireline Reference Information Center, Room Environmental protection, Air Competition Bureau to resolve any CY–A257, 445 12th Street SW, pollution control, Incorporation by disputes regarding attribution of legacy Washington, DC 20554, except when reference, Ozone, Reporting and support and, once the disaggregation Commission Headquarters is otherwise recordkeeping requirements, Volatile process is completed, to release a public closed to visitors. See Public Notice, organic compounds. notice detailing the disaggregated Restrictions on Visitors to FCC support. Dated: May 15, 2020. Facilities, that appeared on the Dennis Deziel, Commission website March 12, 2020, or B. Closing WT Docket No. 10–208 Regional Administrator, EPA Region 1. by using the search function on the 3. WT Docket No. 10–208 was opened Commission’s ECFS web page at https:// in 2010 with the release of the Universal PART 52—APPROVAL AND www.fcc.gov/ecfs/. It is also available on Service Reform; Mobility Fund Notice of PROMULGATION OF the Commission’s website at https:// Proposed Rulemaking, 75 FR 67060, IMPLEMENTATION PLANS www.fcc.gov/document/fcc-proposes-5g- Nov. 1, 2010, 75 FR 69374, Nov. 12, fund-rural-america-0. To request ■ Accordingly, the amendments to 40 2010, which sought comment on the materials in accessible formats for creation of Mobility Fund Phase I to CFR 52.1520 published on April 6, 2020 people with disabilities (Braille, large distribute one-time high-cost universal (85 FR 19087), are withdrawn effective print, electronic files, audio format), service support by reverse auction to June 5, 2020. send an email to [email protected] or call [FR Doc. 2020–10917 Filed 6–4–20; 8:45 am] mobile service providers to build the Consumer & Governmental Affairs current- and next-generation wireless BILLING CODE 6560–50–P Bureau at (202) 418–0530 (voice), (202) networks. WT Docket No. 10–208 418–0432 (tty). continued to be used for Mobility Fund A. Directive Regarding an Adjustment Phase I matters and for proceedings FEDERAL COMMUNICATIONS addressing issues regarding the Factor COMMISSION provision of ongoing support for 4G LTE 1. In the 5G Fund notice of proposed through Mobility Fund Phase II. The 47 CFR Parts 0 and 54 rulemaking (5G Fund NPRM), 85 FR Commission stated in the Mobility Fund 31616, May 26, 2020, adopted Phase II Report and Order, 82 FR 15422, [GN Docket No. 20–32, WT Docket No. 10– concurrently with the Order, the 208 (Closed); FCC 20–52; FRS 16722] Mar. 28, 2017, that a goal of Mobility Commission proposes to use an Fund Phase II was to ‘‘target universal Establishing a 5G Fund for Rural adjustment factor to promote better service funding to support the America; Universal Service Reform— distribution of limited high-cost deployment of the highest level of Mobility Fund universal service funds in a 5G Fund mobile service available today.’’ In light auction, and to incorporate an of the arrival of 5G technology, the AGENCY: Federal Communications adjustment factor into its proposed Commission adopted the 5G Fund Commission. framework to disaggregate legacy high- NPRM, which proposes to provide funds ACTION: Final rule. cost support for competitive ETCs and to help close the digital divide and transition to support under the 5G ensure all Americans have access to 5G SUMMARY: In this document, the Federal Fund. Consistent with their existing networks and supersedes the Mobility Communications Commission authority concerning the distribution of Fund proceedings. (Commission or FCC) summarizes the universal service support, the Order 4. Because no further action is Commission’s Order in GN Docket No. directs the Office of Economics and required or contemplated regarding WT 20–32, adopted on April 23, 2020 and Analytics and the Wireline Competition Docket No. 10–208, the Commission released on April 24, 2020 and its Bureau to propose and seek comment on closes it. Pending matters and statutory directive regarding methodologies for (1) adjustment factor values and the obligations regarding Mobility Fund use of an adjustment factor and for underlying methodologies that could be Phase I and Mobility Fund Phase II are disaggregation of legacy high-cost used to develop them; and (2) a process transferred to two dockets: GN Docket support for mobile carriers and to by which the adjustment factor could be No. 19–367, and new GN Docket No. implement those methodologies to the applied to the disaggregation of legacy 20–104. Pending proceedings regarding extent such action is supported by the support consistent with the use of such Mobility Fund Phase II, including resulting record and the outcome of the a factor as proposed in the 5G Fund waivers and challenges, are hereby 5G Fund proceeding. The Commission NPRM. transferred to GN Docket No. 19–367, also announces the closing of WT 2. The Order further directs the Office which is dedicated to the Mobility Fund Docket No. 10–208 and makes of Economics and Analytics and Phase II Challenge Process. Section administrative amendments to the Wireline Competition Bureau to 54.1009(c) of the Commission’s rules is Commission’s rules to clarify the Office establish adjustment factor values and a revised to require Mobility Fund Phase
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I annual reports to be filed in GN Docket rules, 47 CFR parts 0 and 54, are The revisions and addition read as No. 20–104. All pending Mobility Fund amended as specified in the Final Rules follows: Phase I waivers are hereby transferred to herein, effective immediately upon GN Docket No. 20–104. publication in the Federal Register. § 0.21 Functions of the Office. 9. It is further ordered that, pursuant * * * * * C. Clarifying Amendments Concerning to the authority contained in sections (m) Serves as the Commission’s Office of Economics and Analytics 154(j) of the Communications Act of principal policy and administrative staff Functions and Delegated Authority 1934, as amended, 47 U.S.C. 154(j), the resource with regard to auction design 5. In January 2018, the Commission proceeding in WT Docket No. 10–208 is and implementation issues. Jointly with adopted an Order, 83 FR 63073, Dec. 7, terminated and its docket shall be the Wireless Telecommunications 2018, that established the Office of closed; all pending proceedings Bureau, Media Bureau, Wireline Economics and Analytics and, among regarding Mobility Fund Phase II in WT Competition Bureau, and/or other other things, generally shifted the Docket No. 10–208, including waivers relevant Bureaus and Offices, develops, functions of the Auctions and Spectrum and challenges, are hereby transferred to recommends, and administers policies, Access Division in the Wireless GN Docket No. 19–367; all Mobility programs and rules, and advises the Telecommunications Bureau to the Fund Phase I annual reports shall Commission on policy, engineering, and Office of Economics and Analytics. The heretofore be filed in GN Docket No. 20– technical matters, concerning auctions Commission amended its rules to 104; all pending Mobility Fund Phase I of spectrum for wireless establish the Office of Economics and waivers in WT Docket No. 10–208 are telecommunications and broadcast Analytics’ functions and delegated hereby transferred to GN Docket No. 20– services and uses of competitive bidding authority and make other conforming 104. to achieve other Commission policy rule changes to reflect this new objectives, including universal service organizational structure. Pursuant to 5 List of Subjects support. Administers procurement of U.S.C. 553(b)(A) with respect to ‘‘rules 47 CFR Part 0 auction-related services from outside of agency organization, procedure, or contractors. Oversees auctions practice,’’ the Commission makes Classified information, Freedom of conducted on behalf of the Commission certain clarifying amendments to information, Government publications, by third parties at the direction of the §§ 0.21, 0.131, and 0.271 of its rules Infants and children, Organization and Commission. Provides policy, concerning the Office of Economics and functions (Government agencies), Postal administrative, and technical assistance Analytics’ functions and delegated service, Privacy, Reporting and to other Bureaus and Offices on auction authority, to ensure that these rules recordkeeping requirements, Sunshine issues. Advises and makes reflect the intent of the Commission’s Act. recommendations to the Commission, or Order establishing the Office of 47 CFR Part 54 acts for the Commission under Economics and Analytics. delegated authority, in all matters Communications common carriers, pertaining to auction implementation. D. Procedural Matters Health facilities, Infants and children, These activities include: Conducting 6. Paperwork Reduction Act Analysis. internet, Libraries, Reporting and auctions, policy development and This Order does not contain any new or recordkeeping requirements, Schools, coordination; conducting rulemaking modified information collection Telecommunications, Telephone. and adjudicatory proceedings, including requirements that are subject to the Federal Communications Commission. complaint proceedings for matters not Paperwork Reduction Act of 1995, Marlene Dortch, within the responsibility of the Public Law 104–13. In addition, Secretary. Enforcement Bureau; acting on waivers therefore, it does not contain any new of rules; compliance and enforcement or modified information collection Final Rules activities for matters not within the burden for concerns with fewer than 25 For the reasons discussed in the responsibility of the Enforcement employees, pursuant to the Small preamble, the Federal Communications Bureau; determining resource impacts of Business Paperwork Relief Act of 2002, Commission amends 47 CFR parts 0 and existing, planned or recommended Public Law 107–198, see 44 U.S.C. 54 as follows: Commission activities concerning 3506(c)(4). auctions, and developing and 7. Congressional Review Act. The PART 0—COMMISSION recommending resource deployment Commission will not send a copy of the ORGANIZATION priorities. Exercises such authority as Order to Congress and the Government may be assigned, delegated, or referred ■ Accountability Office pursuant to the 1. The authority citation for part 0 to it by the Commission. continues to read as follows: Congressional Review Act, see 5 U.S.C. * * * * * 801(a)(1)(A), because the adopted rules Authority: 47 U.S.C. 155, 225, unless (t) Administers part 1, subparts V and are rules of agency organization, otherwise noted. W, of this chapter, including procedure, or practice that do not ■ 2. Section 0.21 is amended by: rulemaking. ‘‘substantially affect the rights or ■ a. Removing paragraph (m); ■ 3. Section 0.131 is amended by obligations of non-agency parties.’’ ■ b. Redesignating paragraph (n) as revising paragraphs (a) and (c) to read as paragraph (m) and revising newly E. Ordering Clauses follows: redesignated paragraph (m); 8. It is ordered that, pursuant to the ■ c. Removing paragraph (o); § 0.131 Functions of the Bureau. authority contained in sections 1, 4, 4(i), ■ d. Redesignating paragraphs (p) * * * * * 5(b), 5(c), 201(b), 214, 254, 303(r), and through (u) as paragraphs (n) through (a) Advises and makes 403 of the Communications Act of 1934, (s); recommendations to the Commission, or as amended, 47 U.S.C. 151, 154, 154(i), ■ e. In newly redesignated paragraph acts for the Commission under 155(b), 155(c), 201(b), 214, 254, 303(r), (q), adding ‘‘of this chapter’’ at the end delegated authority, in all matters and 403, this Order is adopted, and that of the sentence; and pertaining to the licensing and parts 0 and 54 of the Commission’s ■ f. Adding a new paragraph (t). regulation of wireless
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telecommunications, including ancillary in rulemaking proceedings and inquiry regulations contained in part 1, subparts operations related to the provision or proceedings, and reports arising from Q, V, W, and AA, of this chapter. use of such services; any matters any of the foregoing except such order ■ 5. Section 0.331 is amended by concerning wireless carriers that also involving ministerial conforming revising paragraph (b) to read as follows: affect wireline carriers in cooperation amendments to rule parts and notices with the Wireline Competition Bureau; and orders addressing the detailed § 0.331 Authority delegated. and, in cooperation with the Office of procedures for implementation of * * * * * Economics and Analytics, all policies, auctions of spectrum and broadcast (b) Authority concerning forfeitures programs, and rules regarding spectrum services and uses of competitive bidding and penalties. The Chief, Wireless auctions, and, in cooperation with the to achieve other Commission policy Telecommunications Bureau, shall not Wireline Competition Bureau and the objectives, including universal service have authority to impose, reduce, or Office of Economics and Analytics, USF support. cancel forfeitures pursuant to the mechanisms affecting wireless carriers. (b) The Chief, Office of Economics Communications Act of 1934, as These activities include: Policy and Analytics, shall not have authority amended, and imposed under development and coordination; to act on any complaints, petitions, regulations in this chapter in amounts of conducting rulemaking and pleadings, requests, or other matters more than $80,000 for commercial radio adjudicatory proceedings, including presenting new or novel questions of providers and $20,000 for private radio licensing and complaint proceedings for fact, law, or policy that cannot be providers. matters not within the responsibility of resolved under existing precedents and * * * * * the Enforcement Bureau; acting on guidelines. waivers of rules; acting on applications (c) The Chief, Office of Economics PART 54—UNIVERSAL SERVICE for service and facility authorizations; and Analytics, shall not have authority compliance and enforcement activities to act on any applications for review of ■ 6. The authority citation for part 54 for matters not within the responsibility actions taken by the Chief, Office of continues to read as follows: of the Enforcement Bureau; determining Economics and Analytics pursuant to Authority: 47 U.S.C. 151, 154(i), 155, 201, resource impacts of existing, planned or delegated authority, except that the 205, 214, 219, 220, 229, 254, 303(r), 403, recommended Commission activities Chief may dismiss any such application 1004, and 1302 unless otherwise noted. that does not comply with the filing concerning wireless ■ 7. Section 54.1009 is amended by requirements of § 1.115(d) and (f) of this telecommunications, and developing revising paragraph (c) to read as follows: and recommending resource chapter. deployment priorities. (d) The Chief, Office of Economics § 54.1009 Annual reports. and Analytics, shall not have authority * * * * * * * * * * to act on any applications that are in (c) Serves as a staff resource, in (c) Each annual report shall be hearing status. submitted to the Office of the Secretary coordination with the Office of (e) The Chief, Office of Economics Economics and Analytics with regard to of the Commission, clearly referencing and Analytics, shall not have authority GN Docket No. 20–104; the the development and implementation of to impose, reduce or cancel forfeitures spectrum policy through spectrum Administrator; and the relevant state pursuant to the Communications Act of commissions, relevant authority in a auctions. Jointly with the Office of 1934, as amended, in amounts of more Economics and Analytics, develops, U.S. Territory, or Tribal governments, as than $80,000. Payments for bid appropriate. recommends and administers policies, withdrawal, default or to prevent unjust programs and rules concerning licensing enrichment that are imposed pursuant [FR Doc. 2020–09815 Filed 6–4–20; 8:45 am] of spectrum for wireless to Section 309(j) of the Communications BILLING CODE 6712–01–P telecommunications through auctions Act of 1934, as amended, and and advises the Commission on policy, regulations in this chapter engineering, and technical matters implementing Section 309(j) governing DEPARTMENT OF DEFENSE relating to auctions of spectrum used for auction authority, are excluded from Defense Acquisition Regulations other purposes. this restriction. * * * * * (f) The Chief, Office of Economics and System ■ 4. Revise § 0.271 to read as follows: Analytics, is delegated authority to deny requests for extension of time or to 48 CFR Parts 201 and 218 § 0.271 Authority delegated. extend the time within which comments [Docket DARS–2020–0017] The Chief, Office of Economics and may be filed. Analytics, is delegated authority to (g) The Chief, Office of Economics RIN 0750–AK99 perform all functions and activities and Analytics, is authorized to dismiss Defense Federal Acquisition described in § 0.21 (and to perform the or deny petitions for rulemaking that are Regulation Supplement: Qualifications specified functions set forth in in repetitive or moot or that for other Requirements for Contracting paragraphs (f) through (i) of this section reasons plainly do not warrant Positions (DFARS Case 2020–D012) to the extent they fall within the subject consideration by the Commission. matters over which the Office of (h) The Chief, Office of Economics AGENCY: Defense Acquisition Economics and Analytics has primary and Analytics, is authorized to dismiss Regulations System, Department of authority under § 0.21), subject to the or deny petitions for reconsideration to Defense (DoD). exceptions and limitations in the extent permitted by § 1.429(l) of this ACTION: Final rule. paragraphs (a) through (e) of this chapter and to the extent permitted by section: § 1.106 of this chapter. SUMMARY: DoD is issuing a final rule (a) The Chief, Office of Economics (i) The Chief, Office of Economics and amending the Defense Federal and Analytics, shall not have authority Analytics, is delegated authority to Acquisition Regulation Supplement to to act on notices of proposed make nonsubstantive, editorial revisions implement a section of the National rulemaking and of inquiry, final orders to the Commission’s rules and Defense Authorization Act for Fiscal
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Year 2020 that removes the qualification expenditure of appropriated funds, and List of Subjects in 48 CFR Parts 201 and requirement for contracting has either a significant effect beyond the 218 professionals to have completed 24 internal operating procedures of the Government procurement. semester credit hours (or equivalent) of agency issuing the policy, regulation, study in specifics areas. procedure, or form, or has a significant Jennifer Lee Hawes, DATES: Effective June 5, 2020. cost or administrative impact on Regulatory Control Officer, Defense Acquisition Regulations System. FOR FURTHER INFORMATION CONTACT: Ms. contractors or offerors. This final rule is Kerryn Loan, telephone 571–372–6119. not required to be published for public Therefore, 48 CFR parts 201 and 218 SUPPLEMENTARY INFORMATION: comment, because it only impacts are amended as follows: processes that are internal to DoD. ■ 1. The authority citation for 48 CFR I. Background parts 201 and 218 continues to read as IV. Executive Orders 12866 and 13563 DoD is amending the DFARS to follows: implement section 861 of the National Executive Order (E.O.) 12866, Authority: 41 U.S.C. 1303 and 48 CFR Defense Authorization Act (NDAA) for Regulatory Planning and Review; and chapter 1. Fiscal Year (FY) 2019 (Pub. L. 116–92). E.O. 13563, Improving Regulation and Section 861 amends section 808 of the Regulatory Review, direct agencies to PART 201—FEDERAL ACQUISITION REGULATION SYSTEM NDAA for FY 2000 (Pub. L. 106–398) by assess all costs and benefits of available removing the requirement for regulatory alternatives and, if regulation contracting professionals to have ■ 2. Amend section 201.603–2 by is necessary, to select regulatory completed at least 24 semester credit revising paragraphs (1)(iii) and (2)(iii) to approaches that maximize net benefits hours (or equivalent) of study from an read as follows: (including potential economic, accredited institution of higher 201.603–2 Selection. education in the areas of accounting, environmental, public health and safety (1) * * * business, finance, law, contracts, effects, distributive impacts, and (iii) Have received a baccalaureate purchasing, economics, industrial equity). E.O. 13563 emphasizes the degree from an accredited educational management, marketing, quantitative importance of quantifying both costs institution; and methods, and organization, and and benefits, of reducing costs, of management. The qualification harmonizing rules, and of promoting * * * * * requirement, implemented at Defense flexibility. The Office of Management (2) * * * Federal Acquisition Regulations and Budget, Office of Information and (iii) Is an individual appointed to a 3- Supplement (DFARS) 201.603– Regulatory Affairs, has determined that year developmental position. 2(1)(iii)(B) and 218.201(1), is removed this is not a significant regulatory action Information on developmental by this final rule in accordance with as defined under section 3(f) of E.O. opportunities is contained in DoD section 861. The title to DoD Instruction 12866 and, therefore, was not subject to Instruction 5000.66, Defense Acquisition Workforce Education, 5000.66 is also updated to read review under section 6(b). This rule is Training, Experience, and Career ‘‘Defense Acquisition Workforce not a major rule as defined at 5 U.S.C. Development Program. Education, Training, Experience, and 804(2). Career Development Program’’ at * * * * * DFARS 201.603–2(2)(iii). V. Executive Order 13771 PART 218—EMERGENCY II. Applicability to Contracts at or This rule is not subject to an E.O. ACQUISITIONS Below the Simplified Acquisition 13771, because this rule is not a Threshold and for Commercial Items, significant regulatory action under E.O. 218.201 [Amended] Including Commercially Available Off- 12866. ■ 3. Amend section 218.201 in the-Shelf Items paragraph (1) by removing ‘‘and 24 VI. Regulatory Flexibility Act This rule only impacts the internal semester credit hours of business related operating procedures of DoD. As such, Because a notice of proposed courses’’. the rule does not impose any new rulemaking and an opportunity for [FR Doc. 2020–11751 Filed 6–4–20; 8:45 am] requirements on contracts at or below public comment are not required to be BILLING CODE 5001–06–P the simplified acquisition threshold or given for this rule under 41 U.S.C. for commercial items, including 1707(a)(1) (see section III. of this commercially available off-the-shelf preamble), the analytical requirements DEPARTMENT OF DEFENSE items. of the Regulatory Flexibility Act (5 Defense Acquisition Regulations III. Publication of This Final Rule for U.S.C. 601 et seq.) are not applicable. System Public Comment Is Not Required by Accordingly, no regulatory flexibility Statute analysis is required, and none has been 48 CFR Parts 206 and 219 prepared. The statute that applies to the [Docket DARS–2020–0016] publication of the Federal Acquisition VII. Paperwork Reduction Act Regulation (FAR) is Office of Federal RIN 0750–AK93 The rule does not contain any Procurement Policy statute (codified at Defense Federal Acquisition information collection requirements that title 41 of the United States Code). Regulation Supplement: Justification require the approval of the Office of Specifically, 41 U.S.C. 1707(a)(1) and Approval Threshold for 8(a) Management and Budget under the requires that a procurement policy, Contracts (DFARS Case 2020–D006) regulation, procedure, or form Paperwork Reduction Act (44 U.S.C. (including an amendment or chapter 35). AGENCY: Defense Acquisition modification thereof) must be published Regulations System, Department of for public comment if it relates to the Defense (DoD).
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ACTION: Final rule. internal operating procedures of the List of Subjects in 48 CFR Parts 206 and agency issuing the policy, regulation, 219 SUMMARY: DoD is issuing a final rule procedure, or form, or has a significant Government procurement. amending the Defense Federal cost or administrative impact on Acquisition Regulation Supplement contractors or offerors. This final rule is Jennifer Lee Hawes, (DFARS) to implement a section of the not required to be published for public Regulatory Control Officer, Defense National Defense Authorization Act for comment, because it affects DoD Acquisition Regulations System. Fiscal Year 2020. internal operating procedures pertaining Therefore, 48 CFR parts 206 and 219 DATES: Effective June 5, 2020. to sole source justifications for 8(a) are amended as follows: FOR FURTHER INFORMATION CONTACT: Ms. procurements and the designated ■ 1. The authority citation for 48 CFR Kimberly R. Ziegler, telephone 571– approval authority. The increased parts 206 and 219 continues to read as 372–6095. threshold and assignment of approval follows: SUPPLEMENTARY INFORMATION: authority does not have a significant Authority: 41 U.S.C. 1303 and 48 CFR I. Background effect beyond the internal operating chapter 1. DoD is amending the DFARS to procedures of the agency issuing the PART 206—COMPETITION implement section 823 of the National policy. There is no additional cost or REQUIREMENTS Defense Authorization Act (NDAA) for administrative impact on contractors or offerors. Fiscal Year (FY) 2020 (Pub. L. 116–92). ■ 2. Add section 206.303–1 to read as Section 823 increases the threshold for IV. Executive Orders 12866 and 13563 follows: requiring a justification and approval to award a sole source contract to a Executive Orders (E.O.) 12866 and 206.303–1 Requirements. participant in the 8(a) program to E.O. 13563 direct agencies to assess all (a) In accordance with section 823 of actions exceeding $100 million. The costs and benefits of available regulatory the National Defense Authorization Act current threshold is $22 million. Section alternatives and, if regulation is for Fiscal Year 2020 (Pub. L. 116–92), no 823 also designates the head of the necessary, to select regulatory justification and approval is required for procuring activity as the approval approaches that maximize net benefits a sole-source contract under the 8(a) authority. To implmement section 823, (including potential economic, authority (15 U.S.C. 637(a)) for an the revised threshold is added in a new environmental, public health and safety amount not exceeding $100 million. DFARS section 206.303–1, effects, distributive impacts, and (b) In lieu of FAR 6.303–1(b), in Requirements, and the new approval equity). E.O. 13563 emphasizes the accordance with section 823 of the authority is added in DFARS 206.304, importance of quantifying both costs National Defense Authorization Act for Approval of the justification. and benefits, of reducing costs, of Fiscal Year 2020 (Pub. L. 116–92), Corresponding revisions to indicate the harmonizing rules, and of promoting contracting officers shall not award a new threshold are also included at flexibility. This is not a significant sole source contract under the 8(a) DFARS 206.303–2, Content, and regulatory action and, therefore, was not authority (15 U.S.C. 637(a)) for an 219.808–1, Sole source. subject to review under section 6(b) of amount exceeding $100 million II. Applicability to Contracts at or E.O. 12866, Regulatory Planning and unless— (1) The contracting officer justifies the Below the Simplified Acquisition Review, dated September 30, 1993. This use of a sole source contract in writing Threshold and for Commercial Items, rule is not a major rule under 5 U.S.C. in accordance with FAR 6.303–2; Including Commercially Available Off- 804. (2) The justification is approved in the-Shelf Items V. Executive Order 13771 accordance with 206.304(a)(S–71); and This rule does not create or revise any (3) The justification and related solicitation provisions or contract This rule is not subject to E.O. 13771, information are made public after award clauses. This rule amends DFARS because this rule is not a significant in accordance with FAR 6.305. 206.303 to increase the threshold for regulatory action under E.O. 12866. 3. Amend section 206.303–2 by requiring a sole source justification and redesignating paragraph (b)(i) as (b)(ii) VI. Regulatory Flexibility Act approval for contracts to 8(a) program and adding a new paragraph (b)(i) and participants exceeding $100 million. Because a notice of proposed paragraph (d) to read as follows: The rule also designates the appropriate rulemaking and an opportunity for 206.303–2 Content. approval authority. public comment are not required to be (b)(i) In lieu of the threshold at FAR given for this rule under 41 U.S.C. III. Publication of This Final Rule for 6.303–2(b), each justification shall 1707(a)(1) (see section III. of this Public Comment Is Not Required by include the information at FAR 6.303– Statute preamble), the analytical requirement of 2(b), except for sole-source 8(a) The statute that applies to the the Regulatory Flexibility Act (5 U.S.C. contracts over $100 million (see publication of the Federal Acquisition 601 et seq.) are not applicable. paragraph (d) of this section). Regulation (FAR) is Office of Federal Accordingly, no regulatory flexibility analysis is required, and none has been * * * * * Procurement Policy statute (codified at (d) In lieu of the threshold at FAR prepared. title 41 of the United States Code). 6.303–2(d), each justification for a sole- Specifically, 41 U.S.C. 1707(a)(1) VII. Paperwork Reduction Act source 8(a) contract over $100 million requires that a procurement policy, shall include the information at FAR regulation, procedure, or form The rule does not contain any 6.303–2(d). (including an amendment or information collection requirements that ■ 4. Amend section 206.304 by adding modification thereof) must be published require the approval of the Office of paragraph (a)(S–71) to read as follows: for public comment if it relates to the Management and Budget under the expenditure of appropriated funds, and Paperwork Reduction Act (44 U.S.C. 206.304 Approval of the justification. has either a significant effect beyond the chapter 35). (a) * * *
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(S–71) In accordance with section 823 Section 208.002 heading is corrected to of the National Defense Authorization of the National Defense Authorization align with the Federal Acquisition Act for Fiscal Year 2017 to address how Act for Fiscal Year 2020 (Pub. L. 116– Regulation naming convention for this contracting officers may require the 92), the head of the procuring activity is section and to add new paragraphs (a)(1) offeror to submit relevant information to the approval authority for a proposed introductory text and (a)(1)(i) to provide support market research for price sole-source 8(a) contract exceeding $100 a notice to contracting officers to see analysis, and allow an offeror to submit million. This authority may only be DFARS Procedures, Guidance, and information relating to the value of a delegated to an officer or employee Information 208.002(a)(1)(i) to obtain commercial item to aid in the who— information on available items in DoD’s determination of the reasonableness of (1) If a member of the armed forces, property inventories. In paragraph the price of such item. is serving in a rank above brigadier (a)(1)(v), two references to ‘‘Subpart’’ are DATES: Effective June 5, 2020. general or rear admiral (lower half); or changed to ‘‘subpart’’. FOR FURTHER INFORMATION CONTACT: Ms. (2) If a civilian, is serving in a List of Subjects in 48 CFR Part 208 Amy Williams, telephone 571–372– position with a grade under the General 6106. Schedule (or any other schedule for Government procurement. civilian officers or employees) that is SUPPLEMENTARY INFORMATION: Jennifer Lee Hawes, comparable to or higher than the grade I. Background of major general or rear admiral. Regulatory Control Officer, Defense Acquisition Regulations System. DoD published a proposed rule in the PART 219—SMALL BUSINESS Therefore, 48 CFR part 208 is Federal Register at 84 FR 50812 on PROGRAMS amended as follows: September 26, 2019, to implement sections 871 and 872 of the National ■ 5. Amend section 219.808–1 by PART 208—REQUIRED SOURCES OF Defense Authorization Act for Fiscal adding paragraph (a) to read as follows: SUPPLIES AND SERVICES Year 2017 (Pub. L. 114–328). Section 871 modifies 10 U.S.C. 2377, Preference 219.808–1 Sole source. ■ 1. The authority citation for 48 CFR for acquisition of commercial items, to * * * * * part 208 continues to read as follows: state that, to the extent necessary to (a) In lieu of the threshold at FAR Authority: 41 U.S.C. 1303 and 48 CFR support market research for 19.808–1(a), the SBA may not accept for chapter 1. determination of the reasonableness of negotiation a DoD sole-source 8(a) ■ 2. Revise section 208.002 to read as the price of commercial items, the contract exceeding $100 million unless follows: contracting officer shall use the DoD has completed a justification in information submitted under 10 U.S.C. accordance with FAR 6.303 and 208.002 Priorities for use of mandatory 2379(d) in the case of major weapon 206.303–1(b). Government sources. systems acquired as commercial items; [FR Doc. 2020–11750 Filed 6–4–20; 8:45 am] (a)(1) Supplies. (i) See the guidance at and in the case of other items, the BILLING CODE 5001–06–P PGI 208.002(a)(1)(i) to obtain contracting officer may require the information on available items in DoD’s offeror to submit relevant information. property inventories. Section 872 modifies 10 U.S.C. 2379, DEPARTMENT OF DEFENSE (v) See subpart 208.70, Coordinated Requirement for determination by Acquisition, and subpart 208.74, Secretary of Defense and notification to Defense Acquisition Regulations Enterprise Software Agreements. Congress before procurement of major System [FR Doc. 2020–11752 Filed 6–4–20; 8:45 am] weapon systems as commercial items, to BILLING CODE 5001–06–P allow an offeror to submit information 48 CFR Part 208 or analysis relating to the value of a [Docket DARS–2020–0001] commercial item. One respondent DEPARTMENT OF DEFENSE submitted public comments in response Defense Federal Acquisition to the proposed rule. Regulation Supplement: Technical Defense Acquisition Regulations Amendments System II. Discussion and Analysis DoD reviewed the public comments in AGENCY: Defense Acquisition 48 CFR Parts 210, 212, 215, and 234 the development of the final rule. A Regulations System, Department of [Docket DARS–2019–0050] discussion of the comments and the Defense (DoD). RIN 0750–AK65 changes made to the rule as a result of ACTION: Final rule. those comments are provided as SUMMARY: DoD is making needed Defense Federal Acquisition follows: technical amendments to update the Regulation Supplement: Market A. Summary of Significant Changes Defense Federal Acquisition Regulation Research and Consideration of Value Supplement (DFARS). for the Determination of Price (DFARS The final rule removes the discussion of value analysis at DFARS DATES: Case 2019–D027) Effective June 5, 2020. 234.7002(d)(5) and the associated FOR FURTHER INFORMATION CONTACT: Ms. AGENCY: Defense Acquisition definition of ‘‘value analysis’’ at DFARS Jennifer L. Hawes, Defense Acquisition Regulations System, Department of 234.7001 from the proposed rule. Regulations System, Defense (DoD). OUSD(A&S)DPC(DARS), Room 3B941, B. Analysis of Public Comments ACTION: Final rule. 3060 Defense Pentagon, Washington, DC Comment: The respondent supports 20301–3060. Telephone 571–372–6115; SUMMARY: DoD is issuing a final rule the proposed rule, with a few facsimile 571–372–6094. amending the Defense Federal exceptions. The respondent stated that SUPPLEMENTARY INFORMATION: This final Acquisition Regulation Supplement in the proposed definition of ‘‘value rule amends the DFARS as follows. (DFARS) to implement several sections analysis’’ at DFARS 234.7001, ‘‘cost’’
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should be replaced with ‘‘price.’’ V. Executive Order 13771 List of Subjects in 48 CFR Parts 210, According to the respondent, this is 212, 215, and 234 This rule is not subject to E.O. 13771, consistent with the Contract Pricing Government procurement. Reference Guide, which states, ‘‘A value because this rule is not significant analysis estimate results from a regulatory action under E.O. 12866. Jennifer Lee Hawes, specialized analysis of the function of a VI. Regulatory Flexibility Act Regulatory Control Officer, Defense product and its related price.’’ Acquisition Regulations System. In addition, the respondent DoD does not expect this final rule to Therefore, 48 CFR parts 210, 212, 215, recommended that the word have a significant economic impact on and 234 are amended as follows: a substantial number of small entities ‘‘legitimate’’ should be removed from ■ the proposed DFARS 234.7002(d)(5), within the meaning of the Regulatory 1. The authority citation for 48 CFR because ‘‘legitimate’’ is a subjective term Flexibility Act, 5 U.S.C. 601, et seq. parts 210, 212, 215, and 234 continues that cannot be measured. According to However, a final regulatory flexibility to read as follows: the respondent, the policy should leave analysis has been prepared and is Authority: 41 U.S.C. 1303 and 48 CFR the determination of value to the summarized as follows: chapter 1. discretion of the contracting officer. This final rule is issued in order to PART 210—MARKET RESEARCH Response: The final rule deletes the implement sections 871 and 872 of the discussion of the use of value analysis National Defense Authorization Act ■ 2. Amend section 210.001 by— and the associated definition. This (NDAA) for Fiscal Year (FY) 2017 (Pub. ■ a. In paragraph (a) introductory text discussion and definition are not L. 114–328). The objective of this rule removing ‘‘, agencies shall’’; necessary for implementation of the is to address the use of market research ■ b. Redesignating paragraphs (a)(i) and statute, which provides that an offeror and consideration of value to support (ii) as paragraphs (a)(i)(A) and (B), may submit information or analysis the determination of price respectively; relating to the value of a commercial reasonableness when acquiring ■ c. In the newly redesignated item to aid in the determination of the commercial items. The legal basis of the paragraph (a)(i)(A) removing ‘‘Conduct’’ reasonableness of the price of such item rule is sections 871 and 872 of the and adding ‘‘Agencies shall conduct’’ in and that the contracting officer may NDAA for FY 2017. its place; consider such information or analysis in There were no public comments in ■ d. In the newly redesignated addition to other information submitted. paragraph (a)(i)(B) removing the period The final rule still provides a reference response to the initial regulatory flexibility analysis. and adding ‘‘; and’’ in its place; and to guidance at DFARS Procedures ■ e. Adding a new paragraph (a)(ii). Guidance and Information Based on data from the Federal The addition reads as follows: 234.7003(d)(5), which in turn references Procurement Data System, DoD awarded to the Department of Defense Guidebook 38,000 new commercial contracts to 210.001 Policy. for Acquiring Commercial Items, Part B, 16,429 small entities in FY 2018. There * * * * * Commercial Item Pricing—the more are an additional unknown number of (a) * * * current guidebook. small entities that submitted offers and (ii) Contracting officers shall use did not receive awards (estimated at market research, where appropriate, to III. Applicability to Contracts at or several thousand). inform price reasonableness Below the Simplified Acquisition determinations (see 212.209 and Threshold and for Commercial Items, This rule does not impose any new 234.7002). Including Commercially Available Off- reporting, recordkeeping, or other the-Shelf Items compliance requirements on small * * * * * entities. DFARS 252.215–7010, This rule does not propose to add or Requirements for Certified Cost or PART 212—ACQUISITION OF modify any provisions, clauses, or the Pricing Data, and Data Other Than COMMERCIAL ITEMS prescriptions for any provisions or Certified Cost or Pricing Data, already ■ clauses. requires offerors to provide information 3. Amend section 212.209 by revising paragraph (a) to read as follows: IV. Executive Orders 12866 and 13563 necessary to determine that the price is Executive Orders (E.O.s) 12866 and fair and reasonable. Offerors are 212.209 Determination of price 13563 direct agencies to assess all costs allowed, but not required, to submit reasonableness. and benefits of available regulatory information or analysis relating to the (a) In accordance with 10 U.S.C. alternatives and, if regulation is value of a commercial item for 2377(d), agencies shall conduct or necessary, to select regulatory consideration by the contracting officer obtain market research to support the approaches that maximize net benefits in determining price reasonableness. determination of the reasonableness of (including potential economic, DoD did not identify any significant price for commercial items contained in environmental, public health and safety alternatives that would minimize or any bid or offer submitted in response effects, distributive impacts, and reduce the significant economic impact, to an agency solicitation. To the extent equity). E.O. 13563 emphasizes the because there is no significant impact necessary to support such market importance of quantifying both costs on small entities. research, the contracting officer— (1) In the case of major weapon and benefits, of reducing costs, of VII. Paperwork Reduction Act harmonizing rules, and of promoting systems items acquired as commercial flexibility. This is not a significant The rule does not contain any new items in accordance with subpart regulatory action and, therefore, was not information collection requirements that 234.70, shall use information submitted subject to review under section 6(b) of require the approval of the Office of under 234.7002(d); and E.O. 12866, Regulatory Planning and Management and Budget under the (2) In the case of other items, may Review, dated September 30, 1993. This Paperwork Reduction Act (44 U.S.C. require the offeror to submit other rule is not a major rule under 5 U.S.C. chapter 35) or impact any existing relevant information. 804. information collection requirements. * * * * *
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PART 215—CONTRACTING BY ACTION: Final rule. removes two statutory reporting NEGOTIATION requirements that have been rescinded. SUMMARY: DoD is issuing a final rule ■ 4. Amend section 215.403–3 by amending the Defense Federal IV. Executive Orders 12866 and 13563 adding paragraph (c) to read as follows: Acquisition Regulation Supplement Executive Orders (E.O.) 12866 and (DFARS) to implement a section of the E.O. 13563 direct agencies to assess all 215.403–3 Requiring data other than National Defense Authorization Act for certified cost or pricing data. costs and benefits of available regulatory Fiscal Year 2018. alternatives and, if regulation is * * * * * DATES: Effective June 5, 2020. necessary, to select regulatory (c) Commercial items. For FOR FURTHER INFORMATION CONTACT: Ms. approaches that maximize net benefits determinations of price reasonableness Kimberly R. Ziegler, telephone 571– (including potential economic, of major weapon systems acquired as 372–6095. environmental, public health and safety commercial items, see 234.7002(d). SUPPLEMENTARY INFORMATION: effects, distributive impacts, and PART 234—MAJOR SYSTEM I. Background equity). E.O. 13563 emphasizes the ACQUISITION importance of quantifying both costs DoD is amending the DFARS to and benefits, of reducing costs, of ■ 5. Revise section 234.7001 to read as implement section 1051 of the National harmonizing rules, and of promoting follows: Defense Authorization Act (NDAA) for flexibility. This is not a significant Fiscal Year (FY) 2018 (Pub. L. 115–91). regulatory action and, therefore, was not 234.7001 Definition. Section 1051 repealed numerous DoD subject to review under section 6(b) of As used in this subpart— reporting requirements to Congress, to E.O. 12866, Regulatory Planning and Major weapon system means a include the annual reporting Review, dated September 30, 1993. This weapon system acquired pursuant to a requirements for commercial items and rule is not a major rule under 5 U.S.C. major defense acquisition program. exceptional case exceptions and waivers 804. ■ under section 817 of the NDAA for FY 6. Amend section 234.7002 by V. Executive Order 13771 revising paragraph (d) introductory text 2003 (Pub. L. 107–314). The section 817 and adding paragraph (d)(5) to read as reporting requirements and guidance This rule is not subject to E.O. 13771, follows: regarding exceptions and waivers to cost because this rule is not a significant or pricing data requirements were regulatory action under E.O. 12866. 234.7002 Policy. implemented at DFARS 215.403–3(c). * * * * * Pursuant to section 1051, this rule VI. Regulatory Flexibility Act (d) * * * See 212.209(a) for removes the reporting requirements and Because a notice of proposed requirements of 10 U.S.C. 2377 with guidance. rulemaking and an opportunity for regard to market research. II. Applicability to Contracts at or public comment are not required to be * * * * * Below the Simplified Acquisition given for this rule under 41 U.S.C. (5) An offeror may submit information Threshold and for Commercial Items, 1707(a)(1) (see section III. of this or analysis relating to the value of a Including Commercially Available Off- preamble), the analytical requirement of commercial item to aid in the the-Shelf Items the Regulatory Flexibility Act (5 U.S.C. determination of the reasonableness of This rule does not create or revise any 601 et seq.) are not applicable. the price of such item. A contracting solicitation provisions or contract Accordingly, no regulatory flexibility officer may consider such information clauses. This rule removes rescinded analysis is required, and none has been or analysis in addition to the reporting requirements for exceptions prepared. information submitted pursuant to and waivers of cost or pricing data to VII. Paperwork Reduction Act paragraphs (d)(1) and (2) of this section. congressional defense committees. For additional guidance see PGI The rule does not contain any 234.7002(d)(5). III. Publication of This Final Rule for information collection requirements that [FR Doc. 2020–11748 Filed 6–4–20; 8:45 am] Public Comment Is Not Required by require the approval of the Office of Statute BILLING CODE 5001–06–P Management and Budget under the The statute that applies to the Paperwork Reduction Act (44 U.S.C. publication of the Federal Acquisition chapter 35). DEPARTMENT OF DEFENSE Regulation (FAR) is Office of Federal List of Subjects in 48 CFR Part 215 Procurement Policy statute (codified at Defense Acquisition Regulations title 41 of the United States Code). Government procurement. System Specifically, 41 U.S.C. 1707(a)(1) Jennifer Lee Hawes, requires that a procurement policy, 48 CFR Part 215 Regulatory Control Officer, Defense regulation, procedure, or form Acquisition Regulations System. [Docket DARS–2020–0015] (including an amendment or modification thereof) must be published Therefore, 48 CFR part 215 is RIN 0750–AK91 for public comment if it relates to the amended as follows: Defense Federal Acquisition expenditure of appropriated funds, and has either a significant effect beyond the PART 215—CONTRACTING BY Regulation Supplement: Repeal of NEGOTIATION Annual Reporting Requirements to internal operating procedures of the agency issuing the policy, regulation, Congressional Defense Committees ■ 1. The authority for 48 CFR part 215 procedure, or form, or has a significant (DFARS Case 2020–D004) continues to read as follows: cost or administrative impact on AGENCY: Defense Acquisition contractors or offerors. This final rule is Authority: 41 U.S.C. 1303 and 48 CFR Regulations System, Department of not required to be published for public chapter 1. Defense (DoD). comment, because the rule merely ■ 2. Amend section 215.403–1 by—
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■ a. In paragraph (c)(3)(A) removing DEPARTMENT OF DEFENSE SUPPLEMENTARY INFORMATION: ‘‘PGI 215.403–1(c)(3)(A)’’ and adding I. Background ‘‘PGI 215.403–1(c)(3)’’ in its place; Defense Acquisition Regulations System DoD published a proposed rule in the ■ b. Removing paragraph (c)(3)(B); Federal Register at 83 FR 42828 on ■ c. Redesignating paragraph (c)(3)(C) as 48 CFR Part 225 August 24, 2018, that included paragraph (c)(3)(B); and implementation of section 881(b) of the [Docket DARS–2018–0004] ■ d. Revising paragraph (c)(4)(B). National Defense Authorization Act RIN 0750–AJ22 (NDAA) for Fiscal Year (FY) 2017. The The revision reads as follows: final rule was published in the Federal 215.403–1 Prohibition on obtaining Defense Federal Acquisition Register at 83 FR 65560 on December certified cost or pricing data (10 U.S.C. Regulation Supplement: Restrictions 21, 2018. Section 881(b) amends 10 2306a and 41 U.S.C. chapter 35). on Acquisitions From Foreign Sources U.S.C. 2500(1) by adding Australia and (DFARS Case 2017–D011); Correction * * * * * the United Kingdom of Great Britain and Northern Ireland to the United (c) * * * AGENCY: Defense Acquisition Regulations System, Department of States and Canada, as countries within (4) * * * Defense (DoD). which the activities of the national technology and industrial base are (B) By November 30th of each year, ACTION: Correcting amendments. departments and agencies shall provide conducted. Title 10 U.S.C. 2534 requires a report to the Director, Defense Pricing SUMMARY: On December 21, 2018, DoD that DoD only procure certain items, if and Contracting, Pricing and published a final rule to implement the manufacturer of the items is part of Contracting Initiatives (DPC/PCI), of all sections of the National Defense the national technology and industrial base, unless a waiver is granted by the waivers granted under FAR 15.403– Authorization Act for Fiscal Year 2017, Secretary of Defense (previously 1(b)(4), during the previous fiscal year, including a section that added Australia delegated to the Under Secretary of for any contract, subcontract, or and the United Kingdom to the definition of the ‘‘National Technology Defense (Acquisition, Technology, and modification expected to have a value of Logistics); now the Under Secretary of $19.5 million or more. See PGI 215.403– and Industrial Base.’’ This action corrects several sections of the Defense (Acquisition and Sustainment). 1(c)(4)(B) for the format and guidance The Under Secretary of Defense for the report. regulations where the revised definition of the ‘‘National Technology and (Acquisition, Technology and Logistics) * * * * * Industrial Base’’ was inadvertently not had granted annual waivers for certain [FR Doc. 2020–11749 Filed 6–4–20; 8:45 am] implemented. This document corrects naval vessel components from the BILLING CODE 5001–06–P the final regulations in order to acquire United Kingdom. Such waivers are no from Australia or the United Kingdom, longer required now that the United without waiver, certain naval vessel Kingdom is part of the national components. technology and industrial base. DATES: Effective June 5, 2020. II. Discussion and Analysis FOR FURTHER INFORMATION CONTACT: Ms. At the time of the final rule, the Amy G. Williams, telephone 571–372– DFARS addressed the following 6106. restrictions of 10 U.S.C. 25234:
Citation Item Waiver Action taken
225.7004 ...... Foreign buses ...... No ...... Added Australia and U.K. at 225.7004–1 and 225.7004–3. 225.7006, 252.225– Air circuit breakers for naval vessels ...... Yes—U.K...... Added Australia and U.K. at 225.7006–1. 7037, and 252.225– Added Australia at 252.225–7037(b) and 7038. 252.225–7038. Removed the information re- garding the U.K. waiver at 225.7006–3(b) and 225.7006–4(a)(2). 225.7010 ...... Certain naval vessel components: gyro- Yes—U.K...... Inadvertently, no action taken. compasses, electronic navigation chart sys- tems, steering controls, pumps, propulsion and machinery control systems, totally en- closed lifeboats.
The actions comparable to those that list of countries in the national In addition, there is a section at were taken with regard to the air circuit technology and industrial base at DFARS 225.7008 that addresses the breakers for naval vessels should have DFARS 225.7010–1 and paragraph (b) waiver of restrictions of 10 U.S.C. 2534 been taken for the other naval vessel addressing the waiver for items from the in general. For consistency with the new components. These naval vessel U.K. at 225.7010–3 should have been definition of ‘‘national technology and components are listed in a separate removed. Because of the existing waiver industrial base,’’ Australia and the section, because 10 U.S.C. 2534(h) for certain naval vessel components United Kingdom should have been prohibits the use of contract clauses or from the United Kingdom, this lack of added to the discussions of satisfactory certifications to implement this action has only impacted the acquisition quality, only one source, and restriction. Australia and the United of these naval vessel components from unreasonable costs at DFARS Kingdom should have been added to the Australia. 225.7008(a)(2)(ii) and (iii) and (a)(3)
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respectively; and 225.7008(b) that IV. Applicability to Contracts at or Authority: 41 U.S.C. 1303 and 48 CFR addresses the waiver of the restrictions Below the Simplified Acquisition chapter 1. of 10 U.S.C. 2534(a) for certain items Threshold and for Commercial Items, ■ 2. Amend section 225.7008 by— manufactured in the United Kingdom Including Commercially Available Off- ■ a. Removing paragraph (b). the-Shelf Items should have been deleted as no longer ■ b. Redesignating paragraph (a)(2) and necessary. There have been no requests This final rule correction does not (3) as paragraphs (b) and (c), for waiver of 10 U.S.C. 2534 since the impact any provisions or clauses. respectively; final rule was issued. V. Executive Orders 12866 and 13563 ■ c. Redesignating paragraphs (a) III. Publication of This Final Rule Executive Orders (E.O.s) 12866 and introductory text and (a)(1)(i) through Correction for Public Comment Is Not 13563 direct agencies to assess all costs (iv) as undesignated introductory text Required by Statute and benefits of available regulatory and paragraphs (a)(1) through (4), alternatives and, if regulation is respectively; The statute that applies to the necessary, to select regulatory ■ d. In the newly redesignated publication of the Federal Acquisition approaches that maximize net benefits paragraph (a)(1) introductory text, Regulation (FAR) is 41 U.S.C. 1707 (including potential economic, removing ‘‘(Acquisition, Technology, entitled ‘‘Publication of Proposed environmental, public health and safety and Logistics) (USD(AT&L))’’ and Regulations.’’ Paragraph (a)(1) of the effects, distributive impacts, and adding ‘‘(Acquisition and Sustainment) statute requires that a procurement equity). E.O. 13563 emphasizes the (USD(A&S))’’ in its place; policy, regulation, procedure or form importance of quantifying both costs ■ e. Further redesignating newly (including an amendment or and benefits, of reducing costs, of redesignated paragraphs (a)(1)(A) and modification thereof) must be published harmonizing rules, and of promoting (B) as paragraphs (a)(1)(i) and (ii), for public comment if it relates to the flexibility. This is not a significant respectively; expenditure of appropriated funds, and regulatory action and, therefore, was not ■ f. Further redesignating newly has either a significant effect beyond the subject to review under section 6(b) of redesignated paragraphs (a)(4)(A) and E.O. 12866, Regulatory Planning and internal operating procedures of the (B) as paragraphs (a)(4)(i) and (ii), Review, dated September 30, 1993. This agency issuing the policy, regulation, respectively; rule is not a major rule under 5 U.S.C. procedure or form, or has a significant ■ 804. g. Further redesignating newly cost or administrative impact on redesignated paragraphs (b)(i) through contractors or offerors. This final rule VI. Executive Order 13771 (v) as paragraphs (b)(1) through (5), correction is not required to be This final rule correction rule is not respectively; and published for public comment, because an E.O. 13771 regulatory action, because ■ h. Revising newly redesignated the public received notice and this rule is not significant under E.O. paragraphs (b)(2) and (3) and (c). opportunity to comment on the 12866. The revisions read as follows: proposed rule, which stated that— VII. Regulatory Flexibility Act • The rule was implementing section 225.7008 Waiver of restrictions of 10 881(b) of the NDAA for FY 2017, that Because a notice of proposed U.S.C. 2534. Australia and the United Kingdom were rulemaking and an opportunity for * * * * * public comment are not required to be now included as the countries within (b) * * * given for this rule under 41 U.S.C. which the activities of the national 1707(a)(1) (see section III. of this (2) Satisfactory quality items technology and industrial base are preamble), the analytical requirements manufactured in the United States, conducted; of the Regulatory Flexibility Act (5 Australia, or Canada, or the United • Title 10 U.S.C. 2534 requires that U.S.C. 601 et seq.) are not applicable. Kingdom are not available. DoD only procure certain items if the Accordingly, no regulatory flexibility (3) Application of the restriction manufacturer of the items is part of the analysis is required, and none has been would result in the existence of only national technology and industrial base; prepared. one source for the item in the United and States, Australia, or Canada, or the VIII. Paperwork Reduction Act United Kingdom. • DFARS sections that implement the The final rule correction does not * * * * * restrictions of 10 U.S.C. 2534 are being contain any information collection (c) A restriction is waived when it modified to allow acquisitions from requirements that require the approval would cause unreasonable costs. The Australia and the United Kingdom. of the Office of Management and Budget cost of an item of U.S., Australian, under the Paperwork Reduction Act (44 In addition, the proposed rule Canadian, or United Kingdom origin is U.S.C. chapter 35). mentioned that annual waivers unreasonable if it exceeds 150 percent authorizing purchases from the United List of Subjects in 48 CFR Part 225 of the offered price, inclusive of duty, of Kingdom cover air circuit breakers for Government procurement. items that are not of U.S., Australian, naval vessels and certain other naval Canadian, or United Kingdom origin. vessel components. Jennifer Lee Hawes, 225.7010–1 [Amended] Immediate correction of the error is Regulatory Control Officer, Defense Acquisition Regulations System. necessary, because the new definition of ■ 3. Amend section 225.7010–1 national technology and industrial base Therefore, 48 CFR part 225 is introductory text by removing ‘‘United has been in effect since December 2, amended as follows: States or Canada’’ and adding ‘‘United States, Australia, Canada, or the United 2019, and this correction is necessary in PART 225—FOREIGN ACQUISITION order to avoid inconsistent Kingdom’’ in its place. implementation of the restrictions of 10 ■ 1. The authority citation for 48 CFR ■ 4. Revise section 225.7010–3 to read U.S.C. 2534. part 225 continues to read as follows: as follows:
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225.7010–3 Waiver. II. Applicability to Contracts at or taken by the Regulatory Reform Task The waiver criteria at 225.7008(a) Below the Simplified Acquisition Force under Executive Order 13777, apply to this restriction. Threshold and for Commercial Items, Enforcing the Regulatory Reform Including Commercially Available Off- Agenda. [FR Doc. 2020–11756 Filed 6–4–20; 8:45 am] the-Shelf Items No public comments were received in BILLING CODE 5001–06–P This rule does not create any new response to the initial regulatory provisions or clauses. The rule simply flexibility analysis. DEPARTMENT OF DEFENSE updates legal and DFARS citations in DoD does not collect data on the the clause and removes unnecessary number of small businesses that have Defense Acquisition Regulations information. This rule does not change been awarded contracts under a major System the applicability of the affected clause, defense programs and have also which does not apply to contracts received notice of contract termination 48 CFR Parts 249 and 252 valued at or below the simplified or a substantial reduction in funding acquisition threshold, or commercial or resulting from an Appropriations Act. Senior DoD Program Acquisition [Docket DARS–2019–0060] commercially available off-the-shelf items. officials estimate that such notification of the termination or substantial RIN 0750–AK56 III. Executive Orders 12866 and 13563 reduction in a major defense program occurs, on average, no more than once Defense Federal Acquisition Executive Orders (E.O.s) 12866 and or twice per year. This rule is not Regulation Supplement: Modification 13563 direct agencies to assess all costs expected to have a significant impact on of DFARS Clause ‘‘Notification of and benefits of available regulatory small business entities, as it does not Anticipated Contract Termination or alternatives and, if regulation is impose any new requirements or change Reduction’’ (DFARS Case 2019–D019) necessary, to select regulatory approaches that maximize net benefits any existing requirements for small AGENCY: Defense Acquisition (including potential economic, business entities. Regulations System, Department of environmental, public health and safety This rule does not include any new Defense (DoD). effects, distributive impacts, and reporting, recordkeeping, or other equity). E.O. 13563 emphasizes the compliance requirements for small ACTION: Final rule. importance of quantifying both costs businesses. and benefits, of reducing costs, of DoD did not identify any significant SUMMARY: DoD is issuing a final rule alternatives that would minimize or amending the Defense Federal harmonizing rules, and of promoting reduce the significant economic impact, Acquisition Regulation Supplement flexibility. This is not a significant because there is no significant impact (DFARS) to update legal and DFARS regulatory action and, therefore, was not subject to review under section 6(b) of on small entities. citations in an existing DFARS clause, E.O. 12866, Regulatory Planning and conform the clause text to the current VI. Paperwork Reduction Act Review, dated September 30, 1993. This DFARS convention regarding the use of rule is not a major rule under 5 U.S.C. The Paperwork Reduction Act (44 dollar thresholds in contract clauses; 804. U.S.C. chapter 35) does apply; however, and remove clause text that is no longer the changes to DFARS 252.249–7002 do needed to implement the underlying IV. Executive Order 13771 not impose additional information statutory language. The rule is pursuant This rule is not subject to E.O. 13771, collection requirements to the to action taken by the DoD Regulatory because this rule is not a significant paperwork burden previously approved Reform Task Force. regulatory action under E.O. 12866. under OMB Control Number 0704–0533, DATES: Effective June 5, 2020. V. Regulatory Flexibility Act titled: DFARS Subpart 249— FOR FURTHER INFORMATION CONTACT: Ms. Termination of Contracts. A final regulatory flexibility analysis Carrie Moore, telephone 571–372–6093. (FRFA) has been prepared consistent List of Subjects in 48 CFR Parts 249 and SUPPLEMENTARY INFORMATION: with the Regulatory Flexibility Act, 5 252 I. Background U.S.C. 601, et seq. The FRFA is Government procurement. summarized as follows: DoD published a proposed rule in the The Department of Defense is Jennifer Lee Hawes, Federal Register at 84 FR 58366 on amending the Defense Federal Regulatory Control Officer, Defense October 31, 2019, to identify the dollar Acquisition Regulation Supplement Acquisition Regulations System. thresholds of the implementing statute (DFARS) to modify the text of DFARS Therefore, 48 CFR parts 249 and 252 (10 U.S.C. 2501 note) for DFARS 249.70 clause 252.249–7002, Notification of are amended as follows: and DFARS clause 252.249–7002, Anticipated Contract Termination or Notification of Anticipated Contract Reduction, to: (1) Update legal and PART 249—TERMINATION OF Termination or Reduction, in DFARS citations in the clause; (2) CONTRACTS accordance with current DFARS remove text that is no longer necessary drafting conventions, and update the to implement 10 U.S.C. 2501 note; and ■ 1. The authority citation for part 249 clause to reflect the current statute (3) conform the clause text to the is revised to read as follows: under which employee and training current DFARS convention for Authority: 41 U.S.C. 1303 and 48 CFR opportunities apply under the clause. referencing dollar thresholds in a chapter 1. No public comments were received in clause. The objective of this rule is to ■ 2. Amend section 249.7003 by— response to the proposed rule. Minor provide accurate and up-to-date ■ a. In paragraph (a), removing ‘‘Section editorial changes are made in the final information to contractors and maintain 824’’ and ‘‘Job Training Partnership Act rule to a cross-reference at DFARS consistency within the DFARS clause (29 U.S.C. 1661 and 1662)’’ and adding 252.249–7002(c)(2) and the formats of text. The modification of this DFARS ‘‘section 824’’ and ‘‘Workforce the statutory references. text and clause is pursuant to action Innovation and Opportunity Act (29
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U.S.C. Chapter 32)’’ in their places, (b) Scope. This clause implements SUMMARY: DoD is correcting final respectively; section 1372 of the National Defense regulations that published in the ■ b. In the paragraph (b) introductory Authorization Act for Fiscal Year 1994 Federal Register on April 8, 2020, to text, removing ‘‘to:’’ and adding ‘‘to—’’ (Pub. L. 103–160) and section 824 of the reflect that the clause date for the in its place; National Defense Authorization Act for DFARS section on duty-free entry ■ c. In paragraph (b)(1), removing ‘‘act.’’ Fiscal Year 1997 (Pub. L. 104–201), should be ‘‘(APR 2020)’’. And adding ‘‘act; and’’ in its place; which are intended to help establish ■ d. Revising paragraph (c). benefit eligibility under the Workforce DATES: Effective June 5, 2020. The revision reads as follows: Innovation and Opportunity Act (29 FOR FURTHER INFORMATION CONTACT: Ms. 249.7003 Notification of anticipated U.S.C. chapter 32) for employees of DoD Jennifer L. Hawes, Defense Acquisition contract terminations or reductions. contractors and subcontractors Regulations System, adversely affected by contract * * * * * OUSD(A&S)DPC(DARS), Room 3B941, terminations or substantial reductions (c) When subcontracts have been 3060 Defense Pentagon, Washington, DC issued, the prime contractor is under major defense programs. (c) Notice to employees and state and 20301–3060. Telephone 571–372–6115; responsible for— facsimile 571–372–6094. (1) Providing notice of the termination local officials. (1) Within 2 weeks after or substantial reduction in funding to all the Contracting Officer notifies the SUPPLEMENTARY INFORMATION: On April first-tier subcontractors with a Contractor that contract funding will be 8, 2020, DoD published in the Federal subcontract valued equal to or greater terminated or substantially reduced, the Register at 85 FR 19681 a final rule than $700,000; and Contractor shall provide notice of such titled ‘‘Technical Amendments’’. The (2) Requiring that each anticipated termination or reduction purpose of this correction is to reflect subcontractor— to— (i) Each employee representative of that the clause date for DFARS 252.225– (i) Provide such notice to each of its 7013, Duty-Free Entry, should be ‘‘(APR subcontractors for subcontracts valued the Contractor’s employees whose work is directly related to the defense 2020)’’ and not ‘‘(MAR 2020)’’ as greater than $150,000; and published in the technical amendment. (ii) Impose a similar notice and contract; or flowdown requirement in subcontracts (ii) If there is no such representative, List of Subjects in 48 CFR Part 252 valued greater than $150,000 at all tiers. each such employee; (iii) The State or entity designated by ■ 3. Add section 249.7004 to read as Government procurement. the State to carry out rapid response follows: activities described in the Workforce Jennifer Lee Hawes, 249.7004 Contract clause. Innovation and Opportunity Act (29 Regulatory Control Officer, Defense Use the clause at 252.249–7002, U.S.C. 3174(a)(2)(A)(i)); and Acquisition Regulations System. Notification of Anticipated Contract (iv) The chief elected official of the Therefore, 48 CFR part 252 is Termination or Reduction, in all unit of general local government within amended as follows: contracts under a major defense which the adverse effect may occur. program. (2) The notice provided an employee under paragraph (c)(1) of this clause PART 252—SOLICITATION PART 252—SOLICITATION shall have the same effect as a notice of PROVISIONS AND CONTRACT PROVISIONS AND CONTRACT termination to the employee for the CLAUSES CLAUSES purposes of determining whether such employee is eligible for training, ■ 1. The authority citation for 48 CFR ■ 4. The authority citation for part 252 adjustment assistance, and employment part 252 continues to read as follows: continues to read as follows: services under the Workforce Authority: 41 U.S.C. 1303 and 48 CFR Authority: 41 U.S.C. 1303 and 48 CFR Innovation and Opportunity Act (29 chapter 1. chapter 1. U.S.C. Chapter 32). ■ 5. Amend section 252.249–7002 by— * * * * * 252.225–7013 [Amended] ■ a. In the introductory text, removing [FR Doc. 2020–11747 Filed 6–4–20; 8:45 am] ■ 3. Amend section 252.225–7013 by ‘‘249.7003(c)’’ and adding ‘‘249.7004’’ in BILLING CODE 5001–06–P its place; removing the clause date of ‘‘(MAR ■ b. Removing the clause date ‘‘(MAY 2020)’’ and adding ‘‘(APR 2020)’’ in its 2019)’’ and adding ‘‘(JUN 2020)’’ in its DEPARTMENT OF DEFENSE place. place; [FR Doc. 2020–11755 Filed 6–4–20; 8:45 am] ■ c. Revising paragraphs (b) and (c); Defense Acquisition Regulations ■ d. In paragraph (d)(1), removing System BILLING CODE 5001–06–P ‘‘225.870–4(c)(2)(i)(A)(1)’’ and adding ‘‘249.7003(c)(1)’’ in its place; 48 CFR Part 252 ■ e. In paragraphs (d)(2)(i) and (ii), [Docket DARS–2020–0001] removing ‘‘225.870–4(c)(2)(i)(C)’’ and adding ‘‘249.7003(c)(2)(i)’’ and Defense Federal Acquisition ‘‘249.7003(c)(2)(ii)’’ in their place, Regulation Supplement: Technical respectively; and Amendment; Correction ■ f. Removing paragraph (e). The revisions read as follows: AGENCY: Defense Acquisition Regulations System, Department of 252.249–7002 Notification of Anticipated Contract Termination or Reduction. Defense (DoD). ACTION: Correcting amendment. * * * * *
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Proposed Rules Federal Register Vol. 85, No. 109
Friday, June 5, 2020
This section of the FEDERAL REGISTER #!docketDetail;D=APHIS-2018-0041 or Support of Certification that the Rule contains notices to the public of the proposed in our reading room, which is located in will not have a Significant Economic issuance of rules and regulations. The Room 1141 of the USDA South Impact on a Substantial Number of purpose of these notices is to give interested Building, 14th Street and Independence Small Entities. persons an opportunity to participate in the Avenue SW, Washington, DC. Normal We received a total of 19 comments, rule making prior to the adoption of the final 2 of which were submitted twice. One rules. reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except person commented that we did not holidays. To be sure someone is there to adequately explain the science and DEPARTMENT OF AGRICULTURE help you, please call (202) 799–7039 sources for our confirmatory and before coming. deregulatory field protocols contained Animal and Plant Health Inspection FOR FURTHER INFORMATION CONTACT: Ms. in the applicable documents. Out of an Service Lynn Evans-Goldner, National Policy abundance of caution and transparency, Manager, Office of the Deputy and in deference to the court which 7 CFR Part 301 Administrator, PPQ, APHIS, 4700 River directed us to provide ‘‘requisite public notice and commenting on the [Docket No. APHIS–2018–0041] Road, Unit 137, Riverdale, MD 20737; (301) 851–2286; lynn.evans-goldner@ Deregulation Protocols,’’ APHIS is RIN 0579–AE48 usda.gov. providing the public with an additional opportunity to comment on the science Amendments to the Pale Cyst SUPPLEMENTARY INFORMATION: On March supporting the protocols, including the Nematode Regulations 4, 2019, we published in the Federal sources of the methods informing their Register (84 FR 7304–7306, Docket No. content. Accordingly, we are including AGENCY: Animal and Plant Health APHIS–2018–0041) a proposal 1 to Inspection Service, USDA. more information about the protocols in amend the domestic quarantine this document and are reopening the ACTION: Proposed rule; reopening of regulations for Globodera pallida (pale comment period for 30 days. comment period. cyst nematode, or PCN) by adding APHIS’ prompt response to finding SUMMARY: We are reopening the procedures that allow persons to review PCN in Idaho, which resulted in the comment period for our proposed rule and comment on the protocols for drafting and publication of the interim that would amend the domestic regulating and deregulating quarantined rule in 2007,3 drew extensively upon quarantine regulations for pale cyst and associated areas. We took this the U.S. Department of Agriculture 2 nematode by adding procedures to action in response to a court order (USDA) Emergency Programs Manual allow persons to review and comment requiring the Animal and Plant Health (EPM) (February 2002).4 The EPM lays on the protocols for regulating and Inspection Service (APHIS) to solicit out in general form the procedures deregulating infested and associated public input into the development of necessary for addressing plant pest areas. We are taking this action to allow the protocols used for deregulating emergencies, including development of persons to comment on the science on fields for PCN. an interim rule that establishes survey which we have established our infested We solicited comments concerning activities, quarantines, movement and associated field protocols and on our proposal for 60 days ending May 3, restrictions, and other pest measures the sources we have used to develop the 2019. We reopened the comment period intended to mitigate or eradicate the protocol principles and methods for 30 days ending July 26, 2019, in pest. APHIS has implemented similar currently used. This action will allow response to commenters who plant pest responses throughout the interested persons additional time to experienced technical difficulties with United States in other programs to prepare and submit comments. accessing the protocols online. address golden nematode, spotted During the comment period, we made DATES: The comment period for the lanternfly, potato wart, gypsy moth, and available for comment six documents: proposed rule published on March 4, fruit flies. Similar types of early The Infested Field Confirmatory Policy, 2019 (84 FR 7304–7306), is reopened. detection and rapid response efforts are the Regulated Field Survey and We will consider all comments that we employed by other Federal, State, and Laboratory Result Definitions, the receive on or before July 6, 2020. international plant protection Infested Field Deregulation Protocol (if organizations. ADDRESSES: You may submit comments remaining in host crop production), the Based on the initial regulations for by either of the following methods: Associated Field Deregulation Protocol controlling PCN that we finalized • Federal eRulemaking Portal: Go to (if remaining in host crop production), through rulemaking, we subsequently http://www.regulations.gov/ the Deregulation Protocol for developed protocols for regulating and #!docketDetail;D=APHIS-2018-0041. Agricultural Land No Longer in Host • Postal Mail/Commercial Delivery: deregulating PCN-infested and Crop Production, and the Analysis in 5 Send your comment to Docket No. associated fields. APHIS has APHIS–2018–0041, Regulatory Analysis harmonized its regulations and 1 To view the proposed rule, supporting and Development, PPD, APHIS, Station enforcement efforts with those of the documents, and the comments we received, go to Idaho State Department of Agriculture 3A–03.8, 4700 River Road, Unit 118, http://www.regulations.gov/ Riverdale, MD 20737–1238. #!docketDetail;D=APHIS-2018-0041. 3 Supporting documents and any 2 Memorandum Decision and Order, Mickelsen Docket No. APHIS–2006–0143; 72 FR (51975– Farms, LLC, et al. v. APHIS, et al., March 20, 2018. 51988), September 12, 2007. comments we receive on this docket https://www.gpo.gov/fdsys/pkg/USCOURTS-idd-1_ 4 To view the manual on regulations.gov, see may be viewed at http:// 15-cv-00143/pdf/USCOURTS-idd-1_15-cv-00143- footnote 1. www.regulations.gov/ 2.pdf. 5 See footnote 1 for a link to the protocols.
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and the Canadian Food Inspection those who work in the fields to clean parameters of the model include Agency. The protocol mitigations work equipment of soil before entering non- gradient length and width, which collectively as a systems approach and infested sites.10 represent the medium scale distribution have significantly reduced the rate of Based on these established best and the aggregation factor of the PCN spread by regulating infested and practices, the PCN program protocols negative binomial distribution (small associated fields and establishing include requirements for pressure scale distribution). Terms of the soil sanitation requirements for equipment washing or using steam to clean all farm sampling method are also factored into and vehicles leaving infested and equipment, vehicles, or other the program. The terms are maximum associated fields. In the absence of such conveyances that have been in a PCN grid cell size, sampling points per regulatory measures, we note that infested or associated field. These hectare (ha), core size cubic centimeters statistical analysis of human-assisted procedures ensure that nematodes are (cc), soil sample size (cc) per ha, and spread of PCN estimates a mean spread not carried into new fields via soil or bulk sample size (gram). In this rate of 3.29 miles/year.6 This suggests equipment. Washing and steam program, the selected average detection that in the 14 years since PCN was first sterilization of equipment has been a probability is set at 90 percent. The detected in Idaho, the pest could have phytosanitary standard for nematode following sampling rates were spread more than 46 miles from the first and other plant pest control for decades, calculated to detect extremely small infested field identified. With regulatory and the techniques required in the PCN infestations at three critical phases of controls in place, PCN is limited to an deregulation protocols are similar to the program: Deregulation of associated area within an 8.5-mile radius, only 11.5 plant pest sanitation protocols used fields, monitoring eradication progress miles in straight line distance. throughout the United States and the on infested fields, and deregulation of Below, we list the procedures used in world. More specifically, the PCN infested fields (in-field bioassay). The the protocols and explain the scientific sanitation practices are modeled in part Canadian and United States Guidelines rationale and background we relied after those employed by the USDA on Surveillance and Phytosanitary upon as grounds for including them. As Golden Nematode program for Actions for the potato cyst nematodes noted above, many, if not most, of these controlling the spread of that pest in Globodera rostochiensis and Globodera procedures have been employed by New York State. A 2006 version of the pallida recommend a minimum sample USDA and State pest programs for USDA Golden Nematode Manual size of 20,000 cc per ha (approximately decades across the United States, in requires that all soil be removed by 8,000 cc per acre) taken either manually various forms and for many different cleaning farm equipment, mechanized or mechanically. When a similar plant pests and crops, including soil moving equipment, farm tools, used method was analyzed with the SAMPLE nematodes on potatoes. Internationally, containers, and other similar articles program using 15,000 cc/ha Australia and Japan, which also do not using pressure washing and steam (approximately 6,000 cc per acre) with have widespread PCN infestations, have treatment.11 a bulk sample size of 22.5 kilogram (kg), also relied on these and similar best it had a detection probability of 99 practices to help them respond to PCN Soil Sampling and Detection Strategies percent with a central population detections in their respective countries.7 for PCN density (CPD) of 50 cysts per kg of soil. Containment Measures for PCN Soil sampling rates used by the PCN For small infestation foci where the CPD program for associated and infested is 5 cysts per kg of soil, the method has Different types of farming equipment fields are supported by a model that a detection probability of only 22 8 can spread Globodera cysts, with combines the medium scale distribution percent. potato diggers representing the greatest of cysts and the small scale distribution The delimiting rate for associated potential risk. The risk is high because of cysts within square meters. The fields is 8,000 cubic centimeters (cc)/ of the large amount of soil that adheres medium scale distribution provides the acre (ac), approximately 20 pounds to the digger and because PCN expected population densities at each (lbs)/ac. According to the SAMPLE population densities are highest at position within the focus and refers to model, for an infestation with a CPD of harvest time following production of a the size and shape of a focus resulting 50 cysts/kg in a field, the model shows susceptible cultivar. Additionally, the from farming practices. The small scale a detection probability of 98.55 percent new cysts present at harvest contain a distribution represents the at the delimiting survey rate. Associated large number of viable eggs that provide multiplication of Globodera on the roots fields are required to undergo two a greater chance of successful surveys at the delimiting rate, each 9 of evenly spaced potato plants. population establishment. A computer program, SAMPLE, following a host crop. At a CPD of 50 Consequently, every precaution should analyzes soil sampling methods.12 The cysts/kg, the second sampling detection be taken to prevent the spread of potato should remain high. To calculate the cyst nematodes. Nematologists advise 10 Stienstra, W.C., and D.H. McDonald. The cumulative detection probabilities with Soybean Cyst Nematode. Minnesota Extension repetitive sampling, the product of both 6 Banks, N.C., et. al. Dispersal of Potato Cyst Service AG–FO–3935 1990. non-detection probabilities are Nematodes Measured Using Historical and Spatial 11 Golden Nematode Program Manual (2006): 2– Statistical Analyses. Phytopathology, Vol. 102, No. 8–18. Similar steam and pressure cleaning combined. The probability of no 6, 2012. requirements are included in earlier versions of the detection each year is 1 ¥ 0.9855 = 7 IPPC reports are located at https://www.ippc.int/ manual published in 1968 and 1992. All versions 0.0145. If this happens twice, the en/countries/australia/pestreports/2010/09/ are available via the link to regulations.gov in combined probability of no detection eradication-of-potato-cyst-nematode-pcn-from- footnote 1 of this document. 2 western-australia/ and at https://www.ippc.int/en/ 12 Additional descriptions of these sampling equals 0.0145 = 0.00021025. Detection countries/japan/pestreports/2016/10/outbreak-of- methods are: (1) Been, T.H. and Schomaker, C.H. after two crops surveyed by this method globodera-pallida-4/. 1998. Sampling methods for fields with patchy is 1 ¥ 0.00021025 = 0.9998, or 99.98 8 Brodie, B.B., Probability of Globodera infestations of the potato cyst nematode (Globodera percent. For small infestations of 5 rostochiensis Spread on Equipment and Potato spp.): A simulation model to develop and evaluate Tubers. Journal of Nematology 25(2):291–296. 1993. sampling methods. In Quantitative studies on the cysts/kg (approximately 2 cysts per 9 Brodie, B.B., and M.L. Brucato. Relation of Cyst management of potato cyst nematodes (Globodera Age and Egg Density to Establishment of Globodera spp.) in the Netherlands. p. 319; and (2) Been, T.H. infestation foci of potato cyst nematodes (Globodera Rostochiensis populations. Journal of Nematology and Schomaker, C.H. 2000. Development and rostochiensis and G. pallida). Phytopathology 21:4 October 1989. evaluation of sampling methods for fields with 90:647–656.
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pound) of soil, however, repetitive Details of APHIS’ use of DNA and Fixed Grid Pattern Field Sampling sampling is even more important morphological/morphometric In the Infested Field Deregulation because the detection probability starts identification of PCN are described in a Protocol, APHIS conducts an initial full at 22 percent but increases with each 2007 scientific article,13 which is field survey in a fixed grid pattern at an host crop. provided via a link in the confirmatory 80,000 cc of soil per acre sampling rate. The infested field monitoring survey protocol. In the 1990s, nematologists The sampling results (number of cysts rate is 80,000 cc/ac, approximately 200 began using DNA technology per sample) are used to map the relative lbs/ac. Because of the small infestation extensively for identification purposes, foci in Idaho, a declining cyst distribution and population of cysts in while morphological identification of population from the absence of host the field, and infestation foci are nematodes has been widely in practice crops, and the application of eradication located. The fixed grid survey is a treatments, intensive sampling increases for decades. The technical minimum standard industry practice for the chance of detection and the threshold for declaring a field infested/ monitoring several types of field accuracy of population estimation. As a positive for PCN is met by detecting a activities, including mapping result, the intense monitoring survey minimum of two cysts from two infestations and monitoring pest rate of 80,000 cc/ac for infested fields is samples that were identified as PCN by eradication treatments. For instance, scientifically supported. morphological/morphometric analysis, one study APHIS drew upon in The infested field in-field bioassay and at least one of the cysts was viable developing the protocols describes a rate is 20,000 cc/ac, approximately 50 and confirmed as PCN by molecular method for PCN soil sampling by which lbs/ac. This rate is scientifically justified (DNA) analysis. It is not necessary for a field is divided into 20 x 20 meter grid by the model where a small infestation the two samples to come from the same squares, then soil samples are collected with a CPD of 5 cysts/kg has a detection survey event. from each grid. The samples are probability of 22 percent. As described processed to separate cysts from the for the delimiting survey method, the Regulating Associated Fields soil, and the number of cysts per grid is model shows that when the CPD determined by counting. The results of The protocol for determining increases, the detection probability also the cyst counts are plotted to produce a associated field regulation is modeled in 15 increases. Because the in-field bioassay map of the infestation across the field. reintroduces host crops and requires part after the USDA Golden Nematode Identifying infestation foci informs soil soil surveys following each of three host Program and its criteria for determining treatment decisions and cost-effective crops, the incipient population ‘‘exposed land’’ as described in the monitoring of treatment efficacy over increases; therefore, detection USDA Golden Nematode Manual (2006 time. This method is the basis for the probability also significantly increases. version).14 Unlike the Golden Nematode PCN program’s mapping surveys and Soil samples are collected at the field Program approach of regulating large subsequent grid monitoring surveys. surface; however, potato harvest blocks of land or entire counties, the The PCN sampling method for machinery and annual tillage practices PCN Program adopted a more infested fields is based on a 2 x 2 grid effectively mix the top layer of the soil conservative field-by-field regulatory pattern method (subsamples are such that soil samples represent at least approach in which only confirmed collected 2 paces apart, every 2 paces) the top 30 centimeters of the soil profile. infested fields and those at high risk for modeled in part after a grid survey PCN program sampling rates are higher infestation are regulated. Associated method described in GN program than those used by many other countries fields are identified through the process manuals from 1992 and 2006. The 2006 where PCN infestations are widespread of researching an infested field’s history, manual describes the steps for such a and have been present for decades. going back 10 years, to identify other survey, beginning with measuring the Lower sampling rates are generally used fields that may have been exposed to dimensions of the field, dividing the for managing high infestations and infested field soil. field into a grid, and sampling the soil reducing economic impacts of the pest, following the grid pattern. If nematodes not for eradicating nor limiting spread Infested Field Deregulation Protocol (if are located in a sample, the grid makes of the pest. Remaining in Host Crop Production) it possible to trace that sample back to a location in the field.16 Infested Field Confirmatory Policy Fields that APHIS has determined to After sampling results are determined, To evaluate a field for PCN under the be infested with PCN are eligible for a field may undergo a series of optional, confirmatory protocol, a soil sample is release under a deregulation protocol if PCN program-sponsored eradication required. Sanitary requirements for the field is used for host crop treatments, which are monitored entering a field (boots, washing of tools), production. The infested field according to initial grid survey results. soil bagging and labeling, and vehicle deregulation protocol employs strategies These treatments are conducted at the disinfection are longstanding and that have been used for decades to discretion of the grower. Eradication widely observed practices used by control nematodes on potatoes and treatments have included Telone® II APHIS to prevent the spread of plant other crops. fumigation and the trap crop litchi pests from infected fields. tomato. Telone® and Telone® II have The protocol for determining infested 13 Skantar, et al., Morphological and Molecular been widely employed as a nematicide field regulation for PCN is based on our Identification of Globodera pallida Associated with for control of all major species of knowledge about the biology and Potato in Idaho. Journal of Nematology, 2007 Jun; nematodes throughout the United epidemiology of PCN. Specimens from a 39(2): 133–144. http://www.ncbi.nlm.nih.gov/pmc/ articles/PMC2586493/. In addition, a diagnostic States, as has litchi tomato as a trap crop soil sample must be definitively protocol for Globodera rostochiensis and Globodera identified and confirmed by an APHIS- pallida (PM 7/40 (4)) was approved as an European 15 See Evans. K., et al., Mapping Infestations of approved laboratory using Plant Protection Organization Standard in 2003 and Potato Cyst Nematodes and the Potential for morphological and molecular DNA- last revised in 2017: https:// Spatially Varying Applications of Nematicides. onlinelibrary.wiley.com/doi/full/10.1111/ Precision Agriculture 4 (2003) 149–162. based methods. Molecular methods epp.12391. 16 Golden Nematode Program Manual (2006): 2– provide an additional, confirmatory step 14 To view the manual on regulations.gov, see 3–7. To view the manual on regulations.gov, see along with morphological methods. footnote 1. footnote 1.
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in other countries. Trap crops, which advantages of a hatching bioassay APHIS emergency response manuals have been used for decades to control system using staining and fluorescence and used by several APHIS, State, and nematodes, can be effective in reducing microscopy. Another study 21 published international programs. For example, a yield loss in potatoes and other crops in 1996 discusses the results of PCN Japanese Beetle Harmonization plan, when used as part of a crop rotation, or infectivity assays using staining adopted by the National Plant Board in in conjunction with the use of techniques similar to those we prescribe 1998, uses the same concept as the PCN nematicides.17 in the deregulation protocol. We also deregulation protocol of conducting Host crops may be grown note that the 1968 USDA Golden detection surveys followed by a more consecutively or in a crop rotation. A Nematode Program Manual includes robust delimiting survey. This Japanese field is eligible for full deregulation if viability testing to monitor efficacy of beetle harmonization plan was no viable cysts are detected after each of chemical treatments. implemented by the Idaho State three host crops are harvested.18 The As part of the infested field protocol, Department of Agriculture in Boise, scientific rationale for requiring three we also assess cyst viability using a Idaho in 2013 after detection of the crops is to allow multiplication and greenhouse bioassay method (equivalent beetle in 2012.23 detection of any low-level PCN to three consecutive susceptible potato populations prior to release. crops) or an in-field bioassay method Deregulation Protocol for Agricultural (three consecutive crops grown in Land No Longer in Host Crop Viability Testing, Staining, and Production and Non-Agricultural Land Bioassays infestation foci or over the entire field). Greenhouse and field bioassays are used A deregulation option exists for In the Infested Field Deregulation throughout the world to evaluate pest regulated fields where agriculture still Protocol, initial cyst viability is assessed viability and other biological occurs but where all host crop using a live/dead staining assay. The characteristics.22 production was prohibited or has ceased staining assay to determine viability is for a minimum of 30 years. This could a standard procedure in nematology as Associated Field Deregulation Protocol include infested or associated status it allows for clearer visual identification (if Remaining in Host Crop Production) fields. During the 30-year time period, of the organism. To evaluate the efficacy The primary determination for a field the fields may have been used for of a treatment for cyst nematode control, to become regulated as an associated various purposes, including but not determining if a nematode is dead or field is exposure of that field to soil or limited to hobby farms, fallow fields, alive is important. The lack of other regulated articles from an infested forage crops, grain fields, nurseries, or movement of a nematode does not field. Pressure washing sanitation pasture. PCN can remain viable for signify death in species like Heterodera requirements, explained above, are 19 approximately 30 years in the absence spp. (cyst nematodes). Since the egg is implemented for all equipment in of a host crop.24 protected in a resistant structure, living contact with field soil. These To become deregulated, fields no (viable) and dead (nonviable) eggs requirements are necessary to mitigate longer in host crop production must cannot be distinguished by direct the potential spread of PCN from complete a two-step process. Records observation. Various dyes and stains associated fields that are considered must be made available to APHIS to have been used to visualize and then high risk for PCN infestation. Other demonstrate that the land has been out ascertain viability of nematode eggs. regulatory requirements are of host crop production for the last 30 To become deregulated, a field must implemented for movement of years. APHIS then surveys the entire complete a series of tests to demonstrate commodities and articles from the field field at a rate of 8,000 cc soil per acre that the infestation has been fully that cannot be sanitized. For PCN, a (equivalent to approximately 20 pounds eradicated. In classical nematology, the full-field delimiting survey at a of soil per acre). This dual approach standard method to determine PCN sampling rate of 8,000 cc of soil per acre viability is based on a staining assay, establishes a 30-year period in which (equivalent to approximately 20 pounds using Meldola’s blue dye (MB) followed the field is out of host production, by microscopic visualization of of soil per acre) is used to determine its making it much less likely that PCN is MB-treated nematodes. Nematode presence in associated fields. A series of present, and in the present establishes staining techniques are widely accepted two negative delimiting surveys, each whether any viable PCN remains. by the majority of nematology following harvest of two host crops A deregulation option also exists for laboratories and have been for grown on the field, is required to regulated fields that have been decades.20 One study presents a novel deregulate an associated field. The converted to non-agricultural uses. This hatching bioassay technique developed current deregulation protocol was could include infested or associated for golden nematode, in which the adopted by APHIS in 2012 at the request status fields. Examples of non- authors illustrated the feasibility and of cooperators and stakeholders that agricultural uses include such things as were impacted, including the Idaho highways and other paved roads and 17 See Sparkes, Jessica, Potential trap crops for the State Department of Agriculture, Idaho commercial, industrial or residential control of Potato Cyst Nematode (PCN). ADAS UK Potato Commission, and owners and development. Ltd. 2013: https://potatoes.ahdb.org.uk/sites/ operators of infested and associated To become deregulated, fields default/files/publication_upload/ fields. converted to non-agricultural uses must PCN%20trap%20crops%20review_ for%20publication.pdf. Delimiting surveys are a common have records available to determine the 18 See Greco N., et al., The Effect of Globodera practice that have been included in land has been out of agricultural use for Pallida and G. Rostochiensis On Potato Yield. Nematologica 28.4: January 1982: https://brill.com/ 21 Zanna, Muhammad, Diapause in the nematode 23 See Idaho Japanese Beetle Project at https:// view/journals/nema/28/4/article-p379_2.xml. Globodera pallida. European Journal of Plant invasivespecies.idaho.gov/cooperative-agricultural- 19 Shepherd, A.M. 1962. New blue R, a stain that Pathology 100: 413–423, 1994. pest-surveys-caps. differentiates between living and dead nematodes. 22 See McKenzie, M.M. and S.J. Turner, Assessing 24 Turner, Susan. Population decline of potato Nematologica 8: 201–208. reproduction of potato cyst nematodes (Globodera cyst nematodes (Globodera rostochiensis, G. 20 Perry, R. and Feil, J., Observations on a Novel rostochiensis and G. pallida) on potato cultivars for pallida) in field soils in Northern Ireland. Annals Hatching Bioassay for Globodera Rostochiensis National Listing. EPPO Bulletin 17:3: September of Applied Biology, October 1996: https:// Using Fluorescence Microscopy. Revue 1987. https://onlinelibrary.wiley.com/doi/abs/ onlinelibrary.wiley.com/doi/abs/10.1111/j.1744- Ne´matologie 9 (31): 280–282 (1986). 10.1111/j.1365-2338.1987.tb00048.x. 7348.1996.tb05754.x.
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at least the last 20 years and will not burdensome to conduct, or (2) reduce including public comments, in the return to production, or construction for test burden. DOE welcomes written docket. See section III for information non-agricultural proposes has rendered comments from the public on any on how to submit comments through the land non-tillable and is not likely to subject within the scope of this http://www.regulations.gov. return to agricultural production. The document (including topics not raised FOR FURTHER INFORMATION CONTACT: Ms. risk of PCN spread and establishment in this RFI), as well as the submission Lucy deButts, U.S. Department of from these non-agricultural fields is of data and other relevant information. Energy, Office of Energy Efficiency and lower than those remaining in non-PCN DATES: Written comments and Renewable Energy, Building host agricultural production, resulting information will be accepted on or Technologies Office, EE–5B, 1000 in the lower number of years required before July 6, 2020. Independence Avenue SW, Washington, for release. In the APHIS Karnal Bunt ADDRESSES: Interested persons are DC 20585–0121. Telephone: (202) 287– Program, which has been in place since encouraged to submit comments using 1604. Email: 1996, a similar provision in the the Federal eRulemaking Portal at ApplianceStandardsQuestions@ 25 regulations has been used http://www.regulations.gov. Follow the ee.doe.gov. successfully to lower or eliminate the instructions for submitting comments. Ms. Kathryn McIntosh, U.S. risk of Karnal Bunt if the land cannot be Alternatively, interested persons may Department of Energy, Office of the farmed. submit comments, identified by docket General Counsel, GC–33, 1000 In order to give the public an number EERE–2019–BT–TP–0025, by Independence Avenue SW, Washington, opportunity to consider the science on any of the following methods: DC 20585–0121. Telephone: (202) 586– which we have established the field 1. Federal eRulemaking Portal: http:// 2002. Email: Kathryn.McIntosh@ protocols and the sources we have used www.regulations.gov. Follow the hq.doe.gov. to develop them, we are reopening the instructions for submitting comments. For further information on how to comment period on Docket No. APHIS– 2. Email: to CPSV2019TP0025@ submit a comment or review other 2018–0041 for an additional 30 days. ee.doe.gov. Include docket number public comments and the docket, This action will allow interested EERE–2019–BT–TP–0025 in the subject contact the Appliance and Equipment persons additional time to prepare and line of the message. Standards Program staff at (202) 287– submit comments. 3. Postal Mail: Appliance and 1445 or by email: Done in Washington, DC, this 21st day of Equipment Standards Program, U.S. ApplianceStandardsQuestions@ May 2020. Department of Energy, Building ee.doe.gov. Michael Watson, Technologies Office, Mailstop EE–5B, SUPPLEMENTARY INFORMATION: Acting Administrator, Animal and Plant 1000 Independence Avenue SW, Health Inspection Service. Washington, DC 20585–0121. Table of Contents [FR Doc. 2020–11792 Filed 6–4–20; 8:45 am] Telephone: (202) 287–1445. If possible, I. Introduction BILLING CODE 3410–34–P please submit all items on a compact A. Authority and Background disc (‘‘CD’’), in which case it is not B. Rulemaking History necessary to include printed copies. II. Request for Information A. Scope and Definitions DEPARTMENT OF ENERGY 4. Hand Delivery/Courier: Appliance and Equipment Standards Program, U.S. B. Test Procedure 1. Industry Standard 10 CFR Part 431 Department of Energy, Building 2. Water Pressure Technologies Office, 950 L’Enfant Plaza [EERE–2019–BT–TP–0025] C. Other Test Procedure Topics SW, Suite 600, Washington, DC 20024. III. Submission of Comments RIN 1904–AE55 Telephone: (202) 287–1445. If possible, please submit all items on a CD, in I. Introduction Energy Conservation Program: Test which case it is not necessary to include DOE’s test procedures for commercial Procedure for Commercial Prerinse printed copies. prerinse spray valves are prescribed at Spray Valves No telefacsimilies (‘‘faxes’’) will be Subpart O of 10 CFR part 431. The AGENCY: Office of Energy Efficiency and accepted. For detailed instructions on following sections discuss DOE’s Renewable Energy, Department of submitting comments and additional authority to establish and amend test Energy. information on this process, see section procedures for commercial prerinse ACTION: Request for information. III of this document. spray valves and relevant background Docket: The docket for this activity, information regarding DOE’s SUMMARY: The U.S. Department of which includes Federal Register consideration of test procedures for this Energy (DOE) is requesting information notices, comments, and other equipment. and data through this request for supporting documents/materials, is A. Authority and Background information (‘‘RFI’’) to consider whether available for review at http:// to amend DOE’s test procedures for www.regulations.gov. All documents in The Energy Policy and Conservation commercial prerinse spray valves. the docket are listed in the http:// Act, as amended (‘‘EPCA’’),1 among Specifically, DOE seeks data and www.regulations.gov index. However, other things, authorizes DOE to regulate information pertinent to whether some documents listed in the index, the energy efficiency of a number of amended test procedures would (1) such as those containing information consumer products and certain more accurately or fully comply with that is exempt from public disclosure, industrial equipment. (42 U.S.C. 6291– the requirement that the test procedure may not be publicly available. 6317) Title III, Part B 2 of EPCA be reasonably designed to produce test The docket web page can be found at results that measure water use during a https://www1.eere.energy.gov/buildings/ 1 All references to EPCA in this document refer representative average use cycle or appliance_standards/standards.aspx? to the statute as amended through America’s Water Infrastructure Act of 2018, Public Law 115–270 period of use without being unduly productid=69&action=viewcurrent. The (October 23, 2018). docket web page contains instructions 2 For editorial reasons, upon codification in the 25 See 7 CFR 301.89–3(f)(1). on how to access all documents, U.S. Code, Part B was redesignated Part A.
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established the Energy Conservation section be reasonably designed to when DOE incorporated by reference Program for Consumer Products Other produce test results which measure the updated version of ASTM Standard Than Automobiles, which includes energy efficiency, energy use or F2324, i.e., the 2013 version (‘‘ASTM commercial prerinse spray valves. EPCA estimated annual operating cost of a F2324–13’’). 80 FR 81441 (‘‘December provides for the definition of covered product during a representative 2015 CPSV Final Rule’’). Prior to the commercial prerinse spray valve at 42 average use cycle or period of use and December 2015 CPSV Final Rule, DOE U.S.C. 6291(33), the test procedure not be unduly burdensome to conduct. had incorporated by reference the 2009 under 42 U.S.C. 6293(b)(14), and energy (42 U.S.C. 6293(b)(3)). version of ASTM Standard F2324. In the conservation standards (in terms of flow If DOE determines that a test December 2015 final rule, DOE also rate) under 42 U.S.C. 6295(dd).3 procedure amendment is warranted, it revised the definition of ‘‘commercial The energy conservation program must publish proposed test procedures prerinse spray valve,’’ made minor under EPCA consists essentially of four and offer the public an opportunity to changes to the DOE flow rate test parts: (1) Testing, (2) labeling, (3) present oral and written comments on method, and added a definition of Federal energy conservation standards, them. (42 U.S.C. 6293(b)(2)). ‘‘spray force’’ as well as a test method and (4) certification and enforcement EPCA requires DOE to use American for measuring the spray force of procedures. Relevant provisions of Society of Testing and Materials commercial prerinse spray valves. On EPCA specifically include definitions (‘‘ASTM’’) Standard F2324 (‘‘ASTM January 27, 2016, DOE published an (42 U.S.C. 6291), test procedures (42 F2324’’) as the basis for the test energy conservation standards final rule U.S.C. 6293), labeling provisions (42 procedure for measuring flow rate. (42 that established three product classes U.S.C. 6294), energy conservation U.S.C. 6293(b)(14)) EPCA also requires based on spray force and established standards (42 U.S.C. 6295), and the that, at least once every seven years, maximum flow rate requirements for authority to require information and DOE evaluate test procedures for each each product class. 81 FR 4748, 4801. reports from manufacturers (42 U.S.C. type of covered product, including In 2019, ASTM reaffirmed its 2013 6296). commercial prerinse spray valves, to standard (‘‘ASTM F2324–13 (2019)’’). Federal energy efficiency determine whether amended test requirements for covered products procedures would more accurately or II. Request for Information established under EPCA generally fully comply with the requirements for As an initial matter, DOE seeks supersede State laws and regulations the test procedures to not be unduly comment on whether there have been concerning energy conservation testing, burdensome to conduct and be changes in product testing methodology labeling, and standards. (42 U.S.C. 6297) reasonably designed to produce test or new products on the market since the DOE may, however, grant waivers of results that reflect energy efficiency, last test procedure update that may Federal preemption for particular State energy use, and estimated operating necessitate amendments to the test laws or regulations, in accordance with costs during a representative average procedure for commercial prerinse the procedures and other provisions of use cycle or period of use. (42 U.S.C. spray valves. Specifically, DOE seeks EPCA. (42 U.S.C. 6297(d)). 6293(b)(1)(A)) If the Secretary data and information regarding whether The Federal testing requirements determines, on his own behalf or in the current test procedure produces consist of test procedures that response to a petition by any interested results that are representative of an manufacturers of covered products must person, that a test procedure should be average use cycle for the product and is use as the basis for: (1) Certifying to prescribed or amended, the Secretary not unduly burdensome to conduct, and DOE that their products comply with shall promptly publish in the Federal therefore does not need amendment. the applicable energy conservation Register proposed test procedures and In the following sections, DOE has standards adopted pursuant to EPCA (42 afford interested persons an opportunity also identified a variety of issues on U.S.C. 6295(s)), and (2) making to present oral and written data, views, which it seeks input to determine representations about the efficiency of and arguments with respect to such whether amended test procedures for those consumer products (42 U.S.C. procedures. The comment period on a commercial prerinse spray valves would 6293(c)). Similarly, DOE must use these proposed rule to amend a test procedure more accurately or fully comply with test procedures to determine whether shall be at least 60 days and may not the requirements in EPCA that test the products comply with relevant exceed 270 days. In prescribing or procedures: (1) Be reasonably designed standards promulgated under EPCA. (42 amending a test procedure, the to produce test results which reflect U.S.C. 6295(s)). Secretary shall take into account such energy use during a representative Under 42 U.S.C. 6293, EPCA sets forth information as the Secretary determines average use cycle, and (2) not be unduly the criteria and procedures DOE must relevant to such procedure, including burdensome to conduct. (42 U.S.C. follow when prescribing or amending technological developments relating to 6293(b)(3)). test procedures for covered products. water use of the type (or class) of DOE also issued an RFI to seek more EPCA requires that any test procedures covered products involved. (42 U.S.C. information on whether its test prescribed or amended under this 6293(b)(2) If DOE determines that test procedures are reasonably designed, as procedure revisions are not appropriate, required by EPCA, to produce results 3 Because Congress included commercial prerinse DOE must publish its determination not that measure the energy (and water) use spray valves in Part B of Title III of EPCA, the or efficiency of a product during a consumer product provisions of Part B (not the to amend the test procedure. DOE is industrial equipment provisions of Part C) apply to publishing this RFI to collect data and representative average use cycle or commercial prerinse spray valves. However, information to inform its decision in period of use. 84 FR 9721 (March 18, because commercial prerinse spray valves are satisfaction of the seven-year review 2019). DOE seeks comment on this issue commonly considered to be commercial equipment, as a matter of administrative convenience and to requirement specified in EPCA. (42 as it pertains to the test procedure for minimize confusion among interested parties, DOE U.S.C. 6293(b)(1)(A)). commercial prerinse spray valves. placed the requirements for commercial prerinse Additionally, DOE welcomes spray valves into subpart O of 10 CFR part 431. Part B. Rulemaking History comments on other issues relevant to 431 contains DOE regulations for commercial and the conduct of this process. In industrial equipment. DOE refers to commercial DOE last amended the current test prerinse spray valves as either ‘‘products’’ or procedure for commercial prerinse particular, DOE notes that under ‘‘equipment.’’ spray valves on December 30, 2015, Executive Order 13771, ‘‘Reducing
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Regulation and Controlling Regulatory or sold through outlets that market or application of standards would result in Costs,’’ Executive Branch agencies, such sell to food service entities such as significant energy savings, and (3) to as DOE, are directed to manage the costs restaurants or commercial or which the application of standards associated with the imposition of institutional kitchens is more likely to would not be likely to result in the expenditures required to comply with be used as a commercial prerinse spray unavailability of any covered product Federal regulations. See 82 FR 9339 valve than one marketed or sold through type currently available on the market. (Feb. 3, 2017). Consistent with that outlets catering to pet care. Similarly, a DOE also requests comments on Executive Order, DOE encourages the product marketed outside of the United whether the definition should be public to provide input on measures States as suitable for removing food modified to more appropriately exclude DOE could take to lower the cost of its residue from food service items before products (1) that are used for special regulations applicable to commercial cleaning them in commercial food service applications, (2) that are prerinse spray valves consistent with dishwashing or ware washing unlikely to be widely used in the requirements of EPCA. equipment would be considered conjunction with commercial similarly suitable if distributed in the A. Scope and Definitions dishwashing and ware washing United States. DOE also considers how equipment, and (3) to which the EPCA initially defined a ‘‘commercial a product is marketed and sold to end- application of standards would not prerinse spray valve’’ as ‘‘a handheld users, including how the product is result in significant energy savings. If device designed and marketed for use identified and described in product modifications are needed, DOE requests with commercial dishwashing and ware catalogs, brochures, specification sheets, comment on how commercial prerinse washing equipment that sprays water on and communications with prospective spray valve should be defined. dishes, flatware, and other food service purchasers. Id. Additionally, DOE items for the purpose of removing food considers actual sales, including B. Test Procedure residue before cleaning the items.’’ (42 whether the end-users are restaurants or 1. Industry Standard U.S.C. 6291(33)(A)) EPCA authorizes commercial or institutional kitchens, DOE to modify the definition of even if those sales are indirect through Currently, DOE’s test procedure for commercial prerinse spray valves by an entity such as a distributor. Id. commercial prerinse spray valves at 10 rule to include products (1) that are Although manufacturers may market CFR part 431.263 incorporates by used extensively in conjunction with different categories of spray valves for reference ASTM Standard F2324–13. commercial dishwashing and ware various uses, such as cleaning floors or The applicable sections of ASTM washing equipment, (2) to which the walls or filling glasses, any such device Standard F2324–13 are sections 6.1 application of standards would result in that is suitable for use in conjunction through 6.9 (except 6.4 and 6.7), 9.1 significant energy savings, and (3) to with commercial dishwashing and ware through 9.4, and 10.1 through 10.2.5 for which the application of standards washing equipment to spray water for the flow rate test method with would not be likely to result in the the purpose of removing food residue calculations conducted according to unavailability of any covered product that is a handheld device that has a section 11.3.1; and sections 6.2 and 6.4 type currently available on the market. release-to-close valve is a commercial through 6.9, 9.1 through 9.5.3.2, and (42 U.S.C. 6291(33)(B)(i)) EPCA also prerinse spray valve. See, 80 FR 35874, 10.3.1 through 10.3.8 for the spray force authorizes DOE to modify the 35876–35877. Installation location is test method. commercial prerinse spray valve not a factor in determining whether a Since publication of the December definition to exclude products (1) that given model meets the definition of 2015 final rule, ASTM F2324–13 has are used for special food service commercial prerinse spray valve. Id. been reapproved to ASTM F2324–13 applications, (2) that are unlikely to be The CPSV definition generally does (2019). The 2019 version contains no widely used in conjunction with not include products that are commonly changes from the 2013 version. commercial dishwashing and ware referred to as ‘‘pot fillers.’’ A pot filler Issue 3: DOE requests comments on washing equipment, and (3) to which would not be considered a commercial updating the CPSV test procedure the application of standards would not prerinse spray valve because it is not references to incorporate the reaffirmed result in significant energy savings. (42 suitable to be used for rinsing dishware industry standard ASTM F2324–13 U.S.C. 6291(33)(B)(ii)) In the December before washing in a commercial (2019), and confirmation that such an 2015 CPSV Final Rule, DOE amended dishwasher. A pot filler is used to fill a update would not result in any the definition of commercial prerinse container with water, whereas a substantive changes to the current test spray valve to ‘‘a handheld device that commercial prerinse spray valve is used procedure. has a release-to-close valve and is to remove food residue from dishware. 2. Water Pressure suitable for removing food residue from Consumers generally would not install a food service items before cleaning them pot filler to be used as a commercial As described previously, EPCA in commercial dishwashing or ware prerinse spray valve. In addition, most requires that any test procedures washing equipment.’’ 10 CFR 431.262. pot fillers are usually rigidly mounted to prescribed or amended by DOE be In determining whether a product is a wall with a swing arm, and are thus reasonably designed to produce test suitable for removing food residue from not handheld devices. See, 80 FR 81444. results which measure energy (and food service items before cleaning them Issue 1: DOE requests comment on water) efficiency, energy (and water) use in commercial dishwashing or ware how manufacturers are currently or estimated annual operating cost of a washing equipment, DOE considers applying the definition of ‘‘commercial covered product during a representative various factors including channels of prerinse spray valve.’’ average use cycle or period of use and marketing and sales, product design and Issue 2: DOE requests comments on not be unduly burdensome to conduct. descriptions, and actual sales to whether modifications to the definition (42 U.S.C. 6293(b)(3)) ASTM F2324–13 determine whether the spray valve is are needed to more appropriately specifies testing with a water pressure of used extensively in conjunction with include products (1) that are used 60 ± 2 pounds per square inch (‘‘psi’’). commercial dishwashing and ware extensively in conjunction with In the December 2015 CPSV Final Rule, washing equipment. 81 FR 81441, commercial dishwashing and ware DOE concluded that 60 psi is 81444. For example, a product marketed washing equipment, (2) to which the representative of the water pressures
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observed across the nation, based on comments and information will aid in via email, hand delivery/courier, or review of water pressure data for the development of a test procedure postal mail also will be posted to http:// commercial kitchens across the U.S. 80 NOPR for commercial prerinse spray www.regulations.gov. If you do not want FR 81441, 81446–81447. valves if DOE determines that amended your personal contact information to be Issue 4: DOE requests data and test procedures may be appropriate for publicly viewable, do not include it in comment on whether the test pressure this equipment. your comment or any accompanying of 60 ± 2 psi continues to be Submitting comments via http:// documents. Instead, provide your representative of average U.S. water www.regulations.gov. The http:// contact information on a cover letter. pressures in commercial kitchen www.regulations.gov web page will Include your first and last names, email settings. require you to provide your name and address, telephone number, and contact information. Your contact C. Other Test Procedure Topics optional mailing address. The cover information will be viewable to DOE letter will not be publicly viewable as In addition to the issues identified Building Technologies staff only. Your long as it does not include any earlier in this document, DOE welcomes contact information will not be publicly comments. comment on any other aspect of the viewable except for your first and last Include contact information each time existing test procedures for commercial names, organization name (if any), and you submit comments, data, documents, prerinse spray valves. As noted submitter representative name (if any). and other information to DOE. If you previously, DOE recently issued an RFI If your comment is not processed submit via postal mail or hand delivery/ to seek more information on whether its properly because of technical courier, please provide all items on a test procedures are reasonably designed, difficulties, DOE will use this CD, if feasible. It is not necessary to as required by EPCA, to produce results information to contact you. If DOE submit printed copies. No facsimiles that measure the energy (and water) use cannot read your comment due to (faxes) will be accepted. or efficiency of a product during a technical difficulties and cannot contact Comments, data, and other representative average use cycle or you for clarification, DOE may not be information submitted to DOE period of use. 84 FR 9721 (Mar. 18, able to consider your comment. electronically should be provided in 2019). DOE seeks comment on this issue However, your contact information PDF (preferred), Microsoft Word or as it pertains to the test procedure for will be publicly viewable if you include Excel, WordPerfect, or text (ASCII) file commercial prerinse spray valves. it in the comment or in any documents format. Provide documents that are not DOE also requests comments on attached to your comment. Any secured, written in English and free of whether potential amendments based on information that you do not want to be any defects or viruses. Documents the issues discussed would result in a publicly viewable should not be should not contain special characters or test procedure that is unduly included in your comment, nor in any any form of encryption and, if possible, burdensome to conduct, particularly in document attached to your comment. they should carry the electronic light of any new equipment on the Persons viewing comments will see only signature of the author. market since the last test procedure first and last names, organization Campaign form letters. Please submit update. As discussed, the DOE test names, correspondence containing campaign form letters by the originating procedure incorporates specific comments, and any documents organization in batches of between 50 to provisions of the industry standard submitted with the comments. 500 form letters per PDF or as one form ASTM F2324–13. DOE also requests Do not submit to http:// letter with a list of supporters’ names comment on the benefits and burdens of www.regulations.gov information for compiled into one or more PDFs. This adopting any industry/voluntary which disclosure is restricted by statute, reduces comment processing and consensus-based or other appropriate such as trade secrets and commercial or posting time. test procedure, without modification. financial information (hereinafter Confidential Business Information. Additionally, DOE requests comment referred to as Confidential Business According to 10 CFR 1004.11, any on whether the existing test procedures Information (‘‘CBI’’)). Comments person submitting information that he limit a manufacturer’s ability to provide submitted through http:// or she believes to be confidential and additional features to consumers on www.regulations.gov cannot be claimed exempt by law from public disclosure commercial prerinse spray valves. DOE as CBI. Comments received through the should submit via email, postal mail, or particularly seeks information on how website will waive any CBI claims for hand delivery/courier two well-marked the test procedures could be amended to the information submitted. For copies: one copy of the document reduce the cost of new or additional information on submitting CBI, see the marked confidential including all the features and make it more likely that Confidential Business Information information believed to be confidential, such features are included on section. and one copy of the document marked commercial prerinse spray valves, while DOE processes submissions made ‘‘non-confidential’’ with the information still meeting the requirements of EPCA. through http://www.regulations.gov believed to be confidential deleted. Finally, DOE also requests comments before posting. Normally, comments Submit these documents via email or on on any potential amendments to the will be posted within a few days of a CD, if feasible. DOE will make its own existing test procedure that would being submitted. However, if large determination about the confidential address impacts on manufacturers, volumes of comments are being status of the information and treat it including small businesses. processed simultaneously, your according to its determination. comment may not be viewable for up to It is DOE’s policy that all comments III. Submission of Comments several weeks. Please keep the comment may be included in the public docket, DOE invites all interested parties to tracking number that http:// without change and as received, submit in writing by July 6, 2020, www.regulations.gov provides after you including any personal information comments and information on matters have successfully uploaded your provided in the comments (except addressed in this notice and on other comment. information deemed to be exempt from matters relevant to DOE’s consideration Submitting comments via email, hand public disclosure). of amended test procedures for delivery/courier, or postal mail. DOE considers public participation to commercial prerinse spray valves. These Comments and documents submitted be a very important part of the process
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for developing test procedures and membership card or account signature I. Background energy conservation standards. DOE card requirement necessary for The Board proposes to amend its actively encourages the participation insurance coverage (signature card share insurance regulation governing and interaction of the public during the requirement). Under the proposal, even the requirements for a share account to comment period in each stage of this if an insured credit union cannot be insured separately as a joint process. Interactions with and between produce membership cards or account account.1 Specifically, this proposal members of the public provide a signature cards signed by the joint addresses the requirement for separate balanced discussion of the issues and accountholders, the signature card joint account insurance that each co- assist DOE in the process. Anyone who requirement could be satisfied by owner of a joint account has personally wishes to be added to the DOE mailing information contained in the account signed a membership card or account list to receive future notices and records of the insured credit union signature card. In the event a federally information about this process should establishing co-ownership of the share insured credit union (FICU) could not contact Appliance and Equipment account. For example, the signature card produce from its records such Standards Program staff at (202) 287– requirement could be satisfied by the membership cards or account signature 1445 or via email at credit union having issued a mechanism cards, this proposal would explicitly ApplianceStandardsQuestions@ for accessing the account, such as a permit the use of other evidence ee.doe.gov. debit card, to each co-owner or evidence contained in a FICU’s account records to of usage of the joint share account by Signing Authority satisfy the signature card requirement. each co-owner. The proposal discusses examples of This document of the Department of such evidence more fully in the sections Energy was signed on May 8, 2020, by DATES: Comments must be received on or before July 6, 2020. that follow. Alexander N. Fitzsimmons, Deputy This amendment would mirror a Assistant Secretary for Energy ADDRESSES: You may submit written change made by the Federal Deposit Efficiency, pursuant to delegated comments, identified by RIN 3133– Insurance Corporation (FDIC) in 2019 authority from the Secretary of Energy. AF11, by any of the following methods for federally insured depository That document with the original (Please send comments by one method institutions.2 This proposed rule is signature and date is maintained by only): intended to facilitate the prompt DOE. For administrative purposes only, • Federal eRulemaking Portal: http:// payment of share insurance in the event and in compliance with requirements of www.regulations.gov. Follow the of a FICU’s failure by explicitly the Office of the Federal Register, the instructions for submitting comments. providing alternative methods that the undersigned DOE Federal Register • NCUA could use to determine the Liaison Officer has been authorized to Fax: (703) 518–6319. Include owners of joint accounts, consistent sign and submit the document in ‘‘[Your Name]—Comments on Proposed with the NCUA’s statutory authority. electronic format for publication, as an Rule: Joint Ownership Share Accounts’’ The Board emphasizes that this change official document of the Department of in the transmittal. is not in reaction to any observed Energy. This administrative process in • Mail: Address to Gerard S. Poliquin, current problem with respect to no way alters the legal effect of this Secretary of the Board, National Credit identifying qualifying joint accounts at document upon publication in the Union Administration, 1775 Duke credit unions and processing insurance Federal Register. Street, Alexandria, Virginia 22314– payments timely. Rather, the Board is Signed in Washington, DC, on May 8, 2020. 3428. issuing this proposed rule because it is important to maintain parity between Treena V. Garrett, Public Inspection: You may view all public comments on the Federal the nation’s two federal deposit/share Federal Register Liaison Officer, U.S. insurance programs and to provide Department of Energy. eRulemaking Portal at http:// www.regulations.gov as submitted, credit union members with equal access [FR Doc. 2020–11768 Filed 6–4–20; 8:45 am] to insurance coverage. These regulatory BILLING CODE 6450–01–P except for those we cannot post for technical reasons. The NCUA will not changes would promote further edit or remove any identifying or confidence in the credit union system contact information from the public and embody a forward-looking approach NATIONAL CREDIT UNION that would explicitly permit the use of ADMINISTRATION comments submitted. Due to social distancing measures in effect, the usual new and innovative technologies and processes to meet the NCUA’s policy 12 CFR Part 745 opportunity to inspect paper copies of comments in the NCUA’s law library is objectives. Under the Federal Credit Union Act RIN 3133–AF11 not currently available. After social (FCU Act), the NCUA is responsible for distancing measures are relaxed, visitors Joint Ownership Share Accounts paying share insurance to any member, may make an appointment to review or to any person with funds lawfully AGENCY: National Credit Union paper copies by calling (703) 518–6540 held in a member account, in the event Administration (NCUA). or emailing [email protected]. of a FICU’s failure up to the standard ACTION: Proposed rule. FOR FURTHER INFORMATION CONTACT: maximum share insurance amount Thomas I. Zells, Staff Attorney, Office of (SMSIA), which is currently set at SUMMARY: The NCUA Board (Board) General Counsel, at 1775 Duke Street, $250,000.3 The FCU Act states that the proposes to amend its share insurance Alexandria, VA 22314 or telephone: determination of the net amount of regulation governing the requirements (703) 548–2478. share insurance paid ‘‘shall be in for a share account to be separately accordance with such regulations as the insured as a joint account by the SUPPLEMENTARY INFORMATION: Board may prescribe’’ and requires that, National Credit Union Share Insurance I. Background Fund (NCUSIF). Specifically, the II. Legal Authority 1 12 CFR 745.8. proposed rule would provide an III. Summary of the Proposed Rule 2 84 FR 35022 (July 22, 2019). alternative method to satisfy the IV. Regulatory Procedures 3 12 U.S.C. 1787(k)(1)(A), (6).
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‘‘in determining the amount payable to Additionally, it is worth reiterating that, II. Legal Authority any member, there shall be added with limited exceptions, the FCU Act The Board has issued this proposed together all accounts in the credit union generally limits NCUA share insurance rule pursuant to its authority under the 11 maintained by that member for that coverage to ‘‘member accounts.’’ FCU Act. Under the FCU Act, the NCUA member’s own benefit, either in the Despite this general limitation, the FCU is the chartering and supervisory member’s own name or in the names of Act 12 and the NCUA’s regulations 13 do authority for FCUs and the Federal others.’’ 4 However, the FCU Act also allow a nonmember to become a joint supervisory authority for FICUs.20 The specifically authorizes the Board to owner with a member on a joint account FCU Act grants the NCUA a broad ‘‘define, with such classifications and with right of survivorship. The mandate to issue regulations governing exceptions as it may prescribe, the regulations provide that a nonmember’s both FCUs and FICUs. Section 120 of extent of the share insurance coverage interest in such accounts will be insured the FCU Act is a general grant of provided for member accounts, in the same manner as the member regulatory authority and authorizes the including member accounts in the name joint-owner’s interest. Board to prescribe rules and regulations of a minor, in trust, or in joint The signature requirement has been for the administration of the FCU Act.21 tenancy.’’ 5 included in the regulation governing Section 207 of the FCU Act is a specific The NCUA has implemented these insurance coverage since its inception grant of authority over share insurance requirements by issuing regulations in 1971.14 The FDIC has had a coverage, conservatorships, and recognizing particular categories of substantially similar signature liquidations.22 Section 209 of the FCU accounts, such as single ownership requirement since 1967.15 In originally Act is a plenary grant of regulatory accounts and joint ownership accounts.6 adopting this requirement, the FDIC authority to the NCUA to issue rules If an account meets the requirements for ‘‘intended to address practices such as and regulations necessary or appropriate a particular category, the account is the addition of nominal co-owners to an to carry out its role as share insurer for insured up to the $250,000 limit account solely to increase deposit all FICUs.23 Accordingly, the FCU Act separately from shares held by the insurance coverage.’’ 16 The NCUA grants the Board broad rulemaking member in a different account category thereafter adopted a substantially authority to ensure that the credit union at the same FICU. For example, similar requirement 17 and views it as a industry and the NCUSIF remain safe provided all requirements are met, reliable indicator of account ownership and sound. shares in the single ownership category and important to ensuring consistency III. Summary of the Proposed Rule will be separately insured from shares with the FCU Act, which expressly in the joint ownership category held by limits the net amount of share insurance The Board is proposing to amend the same member at the same FICU. payable to any member, or person with § 745.8 to explicitly provide for an Section 745.8 of the NCUA’s funds lawfully held in a member alternative method to satisfy the regulations governs insurance coverage account, based on the member account signature card requirement. The 7 for joint ownership accounts. Joint classifications prescribed by the proposed rule would specifically allow ownership accounts include share Board.18 the signature card requirement to be accounts held pursuant to various forms satisfied by information contained in Neither the FCU Act nor the NCUA’s of co-ownership under state law. For the account records of the FICU regulations define the terms example, joint tenants could each hold establishing the co-ownership of the ‘‘membership card’’ or ‘‘account an equal, undivided interest in a share share account, such as evidence that the signature card.’’ In implementing account. Section 745.8 provides that FICU has issued a mechanism for § 745.8, the NCUA has not required any only ‘‘qualifying joint accounts’’ are accessing the account to each co-owner particular format for a membership card insured separately from individually or evidence of usage of the share or account signature card. Therefore, the owned share accounts maintained by account by each co-owner. For example, agency has previously permitted FICUs the co-owners.8 ‘‘Qualifying joint under this proposal, the requirement to satisfy the requirement through could be satisfied by evidence that a accounts’’ generally must satisfy two various forms of documentation used in requirements: (1) Each co-owner has FICU has issued a debit card to each co- their account opening processes. The owner of the account or evidence that personally signed a membership card or Board also wishes to reiterate that, account signature card; and (2) each co- each co-owner of the account has consistent with the Electronic conducted transactions using the share owner possesses withdrawal rights on Signatures in Global and National 9 account. These examples, however, are the same basis. If a joint account is not 19 Commerce Act (E-Sign Act), the not intended to define the only forms of a qualifying joint account, each co- signature requirement may be satisfied owner’s actual ownership interest in the evidence of co-ownership that could electronically. This has been the satisfy the signature requirement. To the account is considered individually NCUA’s long-standing position. owned and added to any other accounts contrary, the evidence found in a FICU’s individually owned by the co-owner account records could take many other 11 and insured up to the SMSIA in the 12 U.S.C. 1752(5). forms. 12 12 U.S.C. 1759(a). aggregate.10 This may result in some The proposed rule only would affect 13 12 CFR 745.8(e). a requirement in the NCUA’s uninsured shares if a member’s single 14 36 FR 2477 (Feb. 5, 1971). regulations that must be satisfied for a ownership accounts at the same FICU, 15 See 32 FR 10408, 10409 (July 14, 1967). including shares in any non-qualifying 16 84 FR 35022, 35023 (July 22, 2019). share account to be separately insured joint accounts, exceed $250,000. 17 The FCU Act generally requires that the NCUA as a joint account; it would not affect determine ‘‘the net amount of share insurance any other legal requirements applicable payable . . . in accordance with this paragraph, and 4 12 U.S.C. 1787(k)(1)(B). to FICUs. FICUs may, for legal or other consistently with actions taken by the Federal 5 reasons, find it appropriate or necessary 12 U.S.C. 1787(k)(1)(C). Deposit Insurance Corporation under section 6 12 CFR part 745. 1821(a) of this title.’’ 12 U.S.C. 1787(k)(1)(A) 7 12 CFR 745.8. (emphasis added). 20 12 U.S.C. 1752–1775. 8 Id. 18 12 U.S.C. 1787(k)(1). 21 12 U.S.C. 1766(a). 9 12 CFR 745.8(c). 19 Public Law 106–229, codified at 15 U.S.C. 22 12 U.S.C. 1787(b)(1). 10 12 CFR 745.8(d). 7001(a). 23 12 U.S.C. 1789(a)(11).
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to continue collecting customers’ The NCUA invites comments on all substantial direct effect on the states, on signatures.24 The changes made by the aspects of the proposal. the connection between the national proposed rule would not modify or government and the states, or on the IV. Regulatory Procedures affect any state law requirements distribution of power and generally applicable to FICUs. A. Regulatory Flexibility Act responsibilities among the various The proposal also would not affect the The Regulatory Flexibility Act (RFA) levels of government. The NCUA has general principles contained in § 745.2 generally requires that, in connection determined that this proposal does not of the NCUA’s share insurance with a notice of proposed rulemaking, constitute a policy that has federalism regulations applicable in determining implications for purposes of the 25 an agency prepare and make available insurance of accounts. These general for public comment an initial regulatory executive order. principles applicable in determining flexibility analysis that describes the insurance of accounts would continue D. Assessment of Federal Regulations impact of a proposed rule on small and Policies on Families to apply to all share accounts, including entities. A regulatory flexibility analysis joint ownership accounts. is not required, however, if the agency The NCUA has determined that this The proposed rule would not certifies that the rule will not have a final rule will not affect family well- introduce any new requirements for an significant economic impact on a being within the meaning of Section 654 account to be insured as a joint account, substantial number of small entities of the Treasury and General and would not reduce or affect (defined for purposes of the RFA to Government Appropriations Act, insurance coverage for any account for include FICUs with assets less than 1999.29 which the existing joint account $100 million) and publishes its List of Subjects in 12 CFR Part 745 requirements are satisfied. The certification and a short, explanatory proposed rule simply would provide an statement in the Federal Register Credit, Credit unions, Share alternative method to satisfy the existing together with the rule. The proposed insurance. signature card requirement. If each co- rule explicitly allows the NCUA to look By the National Credit Union owner of a joint account signs, or has to information contained in the account previously signed, a membership card Administration Board on May 21, 2020. records of a FICU in order to satisfy the Gerard Poliquin, or account signature card in accordance signature card requirement at the time Secretary of the Board. with the existing requirement and the of a FICU’s failure. As a result, it will FICU can produce it, then the proposed not cause any increased burden on For the reasons discussed above, the alternative method would be FICUs and will not have an impact on NCUA Board proposes to amend 12 CFR unnecessary. Assuming that the small credit unions. Accordingly, the part 745 as follows: remaining qualifying joint account NCUA certifies that the proposed rule requirement is satisfied—that is, both will not have a significant economic PART 745—SHARE INSURANCE AND co-owners possess equal withdrawal impact on a substantial number of small APPENDIX rights—and all other membership credit unions. requirements are met,26 the account ■ 1. The authority citation for part 745 would be insured as a joint account. The B. Paperwork Reduction Act continues to read as follows: proposal would apply to all FICUs and The Paperwork Reduction Act of 1995 Authority: 12 U.S.C. 1752(5), 1757, 1765, would not impose any increased burden (PRA) applies to rulemakings in which 1766, 1781, 1782, 1787, 1789; title V, Pub. L. or new recordkeeping requirements for an agency creates a new or amends 109–351; 120 Stat. 1966. joint accounts. existing information collection ■ 2. Revise § 745.8(c) to read as follows: The rule also provides non- requirements.27 For the purpose of the quantifiable benefits to owners of joint PRA, an information collection § 745.8 Joint ownership accounts. accounts. By explicitly providing requirement may take the form of a * * * * * alternative methods that the NCUA reporting, recordkeeping, or a third- (c) Qualifying joint accounts. (1) A could use to determine the owners of party disclosure requirement. The joint account is a qualifying joint joint accounts, the proposed rule would proposed rule does not contain account if each of the co-owners has further support a prompt share information collection requirements that personally signed a membership or insurance determination in the event of require approval by OMB under the account signature card and has a right a FICU’s failure, alleviating delays in PRA.28 The proposed rule will merely of withdrawal on the same basis as the the recognition of account ownership allow the NCUA to look to information other co-owners. The signature and uncertainty regarding the extent of contained in the account records of a requirement does not apply to share share insurance coverage. These benefits FICU in order to satisfy the signature certificates, or to any accounts would promote confidence in the credit card requirement at the time of a FICU’s maintained by an agent, nominee, union system and NCUA-insured failure. guardian, custodian or conservator on shares. C. Executive Order 13132 behalf of two or more persons if the records of the credit union properly 24 Executive Order 13132 encourages See, e.g., 12 CFR part 701, appendix A and reflect that the account is so maintained. corresponding state law requirements for federally independent regulatory agencies to insured, state-chartered credit unions. consider the impact of their actions on (2) The signature card requirement of 25 12 CFR 745.2. state and local interests. In adherence to paragraph (c)(1) of this section also may 26 With limited exceptions, the FCU Act generally fundamental federalism principles, the be satisfied by information contained in limits NCUA share insurance coverage to ‘‘member the account records of the federally accounts.’’ 12 U.S.C. 1752(5). Despite this general NCUA, an independent regulatory limitation, the FCU Act and the NCUA’s regulations agency as defined in 44 U.S.C. 3502(5), insured credit union establishing co- do allow a nonmember to become a joint owner voluntarily complies with the executive ownership of the share account, such as with a member on a joint account with right of order. This rulemaking will not have a evidence that the institution has issued survivorship. 12 U.S.C. 1759(a). The regulations a mechanism for accessing the account provide that a nonmember’s interest in such accounts will be insured in the same manner as the 27 44 U.S.C. 3507(d); 5 CFR part 1320. member joint owner’s interest. 12 CFR 745.8(e). 28 44 U.S.C. Chap. 35. 29 Public Law 105–277, 112 Stat. 2681 (1998).
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to each co-owner or evidence of usage U.S.C. 17301–17305), prohibits market a. What modifications, if any, should of the share account by each co-owner. manipulation in connection with the the Commission make to the Rule to * * * * * purchase or sale of crude oil or increase its benefits or reduce its costs? [FR Doc. 2020–11385 Filed 6–4–20; 8:45 am] petroleum products. The Rule, initially How would these modifications affect BILLING CODE 7535–01–P promulgated by the Commission on the costs and benefits of the Rule for November 4, 2009, prohibits fraudulent consumers? How would these or deceptive conduct (including making modifications affect the costs and FEDERAL TRADE COMMISSION false or misleading statements of benefits of the Rule for businesses, material fact) in connection with particularly small businesses? 16 CFR Part 317 wholesale purchases or sales of crude b. Is there evidence of acts or oil, gasoline, or petroleum distillates. practices in connection with the Prohibition of Energy Market The Rule separately bans the intentional purchase or sale of wholesale petroleum Manipulation Rule failure to state a material fact when the that violate the antitrust or consumer omission (1) makes the statement protection laws and that fall within the AGENCY: Federal Trade Commission. misleading and (2) distorts or is likely statutory prohibition of ‘‘any ACTION: Regulatory review; request for to distort market conditions for any manipulative or deceptive device or public comment. product covered by the Rule. The contrivance,’’ but which § 317.3 does Commission formally adopted the Rule not reach? SUMMARY: The Federal Trade on November 4, 2009. c. The Rule defines ‘‘knowingly’’ to Commission (‘‘FTC’’ or ‘‘Commission’’) mean ‘‘that the person knew or must seeks public comment on the overall II. Regulatory Review Program have known that his or her conduct was costs, benefits, and regulatory and The Commission reviews its rules and fraudulent or deceptive.’’ 16 CFR economic impact of its rule prohibiting guides periodically to seek information 317.2(c). fraud or deceit in wholesale petroleum about their costs and benefits, regulatory i. Has this definition prevented the markets, and omissions of material and economic impact, and general Commission’s Rule from addressing information that are likely to distort effectiveness in protecting consumers behavior that is within the meaning of petroleum markets, as part of the and helping industry avoid deceptive 42 U.S.C. 17301? Commission’s systematic review of all claims. These reviews assist the ii. Specifically, would changing the current FTC rules and guides. Commission in identifying rules and definition of knowingly to capture acts, DATES: Comments must be received on guides that warrant modification or practices, or courses of business that a or before September 3, 2020. rescission. person ‘‘knew or should have known’’ ADDRESSES: Interested parties may file a With this document, the Commission was fraudulent or deceptive, or comment online or on paper, by initiates its review of the Energy Market changing the definition in some other following the instructions in the Manipulation Rule. The Commission manner that tracks the statutory Request for Comment part of the solicits comments on, among other language, enhance the Commission’s SUPPLEMENTARY INFORMATION section. things, the economic impact of, and the ability to address behavior in wholesale Write ‘‘Energy Market Manipulation continuing need for, the Rule, the Rule’s petroleum markets that is within the Rule, 16 CFR part 317, Project No. benefits to consumers, and the burdens meaning of 42 U.S.C. 17301? P082900’’ on your comment, and file it places on industry members subject to Commenters should address any costs your comment online through https:// the Rule’s requirements, including small and benefits to wholesale petroleum www.regulations.gov, by following the businesses. markets and industry participants from modifying the definition. instructions on the web-based form. If III. Issues for Comments you prefer to file your comment on (5) Impact on Information: What paper, mail your comment to the To aid commenters in submitting impact has the Rule had on the flow of following address: Federal Trade information, the Commission has truthful information to consumers and Commission, Office of the Secretary, prepared the following specific on the flow of deceptive information to 600 Pennsylvania Avenue NW, Suite questions related to the Energy Market consumers? (6) Compliance: Provide any evidence CC–5610 (Annex J), Washington, DC Manipulation Rule. The Commission concerning the degree of industry 20580, or deliver your comment to the seeks comments on these and any other compliance with the Rule. Does this following address: Federal Trade issues related to the Rule’s current evidence indicate that the Rule should Commission, Office of the Secretary, requirements. In their replies, be modified? If so, why, and how? If Constitution Center, 400 7th Street SW, commenters should provide any not, why not? 5th Floor, Suite 5610 (Annex J), available evidence and data that (7) Unnecessary Provisions: Provide Washington, DC 20024. supports their positions, such as empirical data, consumer perception any evidence concerning whether any of FOR FURTHER INFORMATION CONTACT: studies, and consumer complaints. the Rule’s provisions are no longer Peter Richman (202–326–2563), (1) Need: Is there a continuing need necessary. Explain why these provisions Assistant Director, Mergers III, Bureau for the Rule? Why or why not? are unnecessary. of Competition, Federal Trade (2) Benefits and Costs to Consumers: (8) Technological or Economic Commission, 600 Pennsylvania Avenue What benefits has the Rule provided to Changes: What modifications, if any, NW, Washington, DC 20580. consumers, and does the Rule impose should be made to the Rule to account SUPPLEMENTARY INFORMATION: any significant costs on consumers? for current or impending changes in (3) Benefits and Costs to Industry technology or economic conditions? I. Background Members: What benefits, if any, has the How would these modifications affect The Prohibition of Energy Market Rule provided to businesses, and does the costs and benefits of the Rule for Manipulation Rule (‘‘Energy Market the Rule impose any significant costs, consumers and businesses, particularly Manipulation Rule’’ or ‘‘Rule’’), including costs of compliance, on small businesses? authorized by the Energy Independence businesses, including small businesses? (9) Conflicts with Other Requirements: and Security Act of 2007 (‘‘EISA’’) (42 (4) Changes: Does the Rule overlap or conflict with
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other federal, state, or local laws or addition, your comment should not DEPARTMENT OF HOMELAND regulations? If so, how? Provide any include any ‘‘trade secret or any SECURITY evidence that supports your position. commercial or financial information With reference to the asserted conflicts, which . . . is privileged or U.S. Customs and Border Protection should the Rule be modified? If so, why, confidential’’—as provided by Section and how? If not, why not? 6(f) of the FTC Act, 15 U.S.C. 46(f), and 19 CFR Parts 24 and 111 IX. Comment Submissions FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)— [Docket No. USCBP–2020–0010] including in particular competitively You can file a comment online or on paper. For the FTC to consider your sensitive information such as costs, RIN 1515–AE43 comment, we must receive it on or sales statistics, inventories, formulas, Elimination of Customs Broker District before September 3, 2020. Write patterns, devices, manufacturing Permit Fee ‘‘Energy Market Manipulation Rule, 16 processes, or customer names. CFR part 317, Project No. P082900)’’ on Comments containing material for AGENCY: U.S. Customs and Border your comment. Because of the public which confidential treatment is Protection, DHS; Department of the health emergency in response to the requested must be filed in paper form, Treasury. COVID–19 outbreak and the agency’s must be clearly labeled ‘‘Confidential,’’ ACTION: Notice of proposed rulemaking. heightened security screening, postal and must comply with FTC Rule 4.9(c). mail addressed to the Commission will In particular, the written request for SUMMARY: This document proposes to be subject to delay. We strongly confidential treatment that accompanies amend the U.S. Customs and Border encourage you to submit your comment the comment must include the factual Protection (CBP) regulations to online through the https:// and legal basis for the request, and must eliminate customs broker district permit www.regulations.gov website. To ensure identify the specific portions of the fees. Concurrently with this document, the Commission considers your online comment to be withheld from the public CBP is publishing a notice of proposed comment, please follow the instructions rulemaking to, among other things, on the web-based form provided by record. See FTC Rule 4.9(c). Your comment will be kept confidential only eliminate customs broker districts (see regulations.gov. Your comment, ‘‘Modernization of the Customs Brokers if the General Counsel grants your including your name and your state, Regulations’’ RIN 1651–AB16). request in accordance with the law and will be placed on the public record of Specifically, CBP proposes to transition this proceeding, including the https:// the public interest. Once your comment all brokers to national permits and to www.regulations.gov website. has been posted publicly at https:// expand the scope of the national permit If you file your comment on paper, www.regulations.gov—as legally authority to allow national permit write ‘‘Energy Market Manipulation required by FTC Rule 4.9(b)—we cannot holders to conduct any type of customs Rule, 16 CFR part 317, Project No. redact or remove your comment unless business throughout the customs P082900’’ on your comment and on the you submit a confidentiality request that territory of the United States. By envelope, and mail it to the following meets the requirements for such transitioning to a national permit, CBP address: Federal Trade Commission, treatment under FTC Rule 4.9(c), and also proposes to eliminate the Office of the Secretary, 600 the General Counsel grants that request. requirements for brokers to maintain Pennsylvania Avenue NW, Suite CC– Visit the FTC website to read this district permits. As a result, CBP 5610 (Annex J), Washington, DC 20580, proposes the conforming amendments or deliver your comment to the request for comment and the news release describing it. The FTC Act and discussed in this document to eliminate following address: Federal Trade customs broker district permit fees. Commission, Office of the Secretary, other laws that the Commission Constitution Center, 400 7th Street SW, administers permit the collection of DATES: Comments must be received on 5th Floor, Suite 5610 (Annex J), public comments to consider and use in or before August 4, 2020. Washington, DC 20024. If possible, this proceeding as appropriate. The ADDRESSES: You may submit comments, please submit your paper comment to Commission will consider all timely identified by docket number, by one of the Commission by courier or overnight and responsive public comments that it the following methods: service. receives on or before September 3, 2020. • Federal eRulemaking Portal at Because your comment will be placed For information on the Commission’s http://www.regulations.gov. Follow the on the publicly accessible website at privacy policy, including routine uses instructions for submitting comments www.regulations.gov, you are solely permitted by the Privacy Act, see via Docket No. USCBP–2020–0010. • responsible for making sure that your https://www.ftc.gov/site-information/ Mail: Trade and Commercial comment does not include any sensitive privacy-policy. Regulations Branch, Regulations and or confidential information. In Rulings, Office of Trade, U.S. Customs particular, your comment should not By direction of the Commission. and Border Protection, 90 K Street NE, include any sensitive personal April J. Tabor, 10th Floor, Washington, DC 20229– information, such as your or anyone Acting Secretary. 1177. else’s Social Security number; date of [FR Doc. 2020–10988 Filed 6–4–20; 8:45 am] Instructions: All submissions received birth; driver’s license number or other BILLING CODE 6750–01–P must include the agency name and state identification number, or foreign docket number for this rulemaking. All country equivalent; passport number; comments received will be posted financial account number; or credit or without change to http:// debit card number. You are also solely www.regulations.gov, including any responsible for making sure that your personal information provided. For comment does not include any sensitive detailed instructions on submitting health information, such as medical comments and additional information records or other individually on the rulemaking process, see the identifiable health information. In ‘‘Public Participation’’ heading of the
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SUPPLEMENTARY INFORMATION section of Federal Regulations (CFR) (19 CFR part eliminate district permits and move to this document. 111) and provide for, among other a national permit-only system (see Docket: For access to the docket to things, fee payment requirements ‘‘Modernization of the Customs Brokers read background documents or applicable to brokers under section 641 Regulations’’ RIN 1651–AB16). comments received, go to http:// and 19 U.S.C. 58c(a)(7). Section 111.19(c) describes permit www.regulations.gov. Submitted The current customs brokers fees. As CBP is proposing to eliminate comments may be inspected during regulations are based on a district district permits in a concurrent notice of regular business days between the hours system in which ports within a district proposed rulemaking, this document of 9 a.m. and 4:30 p.m. at the Trade and handle entry, entry summary, and post- proposes conforming amendments to Commercial Regulations Branch, summary activity and for which a this section by eliminating fees for Regulations and Rulings, Office of broker district permit is required. district permits. In addition, CBP Trade, U.S. Customs and Border Discussion of Proposed Amendments proposes removing the specific permit Protection, 90 K Street NE, 10th Floor, application and permit user fee amounts Washington, DC. Arrangements to In a concurrent notice of proposed and replacing the numerical figures inspect submitted comments should be rulemaking, published elsewhere in this with a reference to the relevant fee made in advance by calling Ms. Cammy issue of the Federal Register (see provision in sections 111.96(b) and (c). Canedo at (202) 325–0439. ‘‘Modernization of the Customs Brokers The proposed changes to section FOR FURTHER INFORMATION CONTACT: Regulations’’ RIN 1651–AB16), CBP 111.96(b) can be found in the Melba Hubbard, Chief, Broker proposes to amend the CBP regulations concurrent notice of proposed Management Branch, (202) 863–6986, by modernizing the customs brokers rulemaking. [email protected]. regulations to coincide with the development of CBP trade initiatives Elimination of District Permit Fees SUPPLEMENTARY INFORMATION: including the Automated Commercial Section 111.96 describes fees required Public Participation Environment (ACE) and the Centers of throughout part 111. Paragraph (c) of Interested persons are invited to Excellence and Expertise (Centers). section 111.96 describes the permit user participate in this rulemaking by Specifically, CBP is proposing to fee. To reflect the proposed elimination submitting written data, views, or transition all brokers to national permits of district permits, CBP proposes to arguments on all aspects of this and to expand the scope of the national eliminate the customs broker district proposed rule. U.S. Customs and Border permit authority to allow national permit fee. CBP also proposes to specify Protection (CBP) also invites comments permit holders to conduct any type of that the user fee is for national permits that relate to the economic, customs business throughout the issued under section 111.19(a). environmental, or federalism effects that customs territory of the United States. As discussed in the concurrent might result from this regulatory To accomplish this, CBP proposes to proposal ‘‘Modernization of the change. Comments that will provide the eliminate broker districts and district Customs Brokers Regulations’’ RIN most assistance to CBP will reference a permits, which also eliminates the need 1651–AB16, CBP published an interim specific portion of the rule, explain the for district permit waivers and for final rule that transferred certain trade reason for any recommended change, brokers to maintain district offices. This functions from the port director to the and include data, information or document proposes conforming Center director. Similarly, certain broker authority that support such amendments to Parts 24 and 111 to management functions previously recommended change. eliminate customs broker district permit performed by the port director will be fees. transferred to the Centers as part of this Background Part 24 proposed rule. CBP proposes to revise Section 641 of the Tariff Act of 1930, the last sentence of paragraph (c) by as amended (19 U.S.C. 1641), provides Part 24 of title 19 of the CFR (19 CFR splitting it into two sentences, with the that individuals and business entities part 24) sets forth the regulations second sentence providing that the must hold a valid customs broker’s regarding customs financial and director of the designated Center will license and permit to transact customs accounting procedures. Section 24.22 notify the broker in writing of the failure business on behalf of others. The statute describes the customs Consolidated to pay and the revocation of the permit. also sets forth standards for the issuance Omnibus Budget Reconciliation Act Other Conforming Amendments of broker licenses and permits; provides (COBRA) user fees and limitations for for disciplinary action against brokers in certain services. Specifically, paragraph The authority for part 111 currently the form of suspension or revocation of (h) of section 24.22 describes the provides a specific authority citation for such licenses and permits or assessment customs broker permit user fee. CBP section 111.3. When the text of section of monetary penalties; and provides for proposes conforming amendments to 111.3 was transferred to section 111.2 in the assessment of monetary penalties sections 24.22(h) and (i)(9) to eliminate a final rule published in the Federal against other persons for conducting the customs broker district permit fee. Register (65 FR 13880) on March 15, customs business without the required Part 111 2000, CBP inadvertently did not revise broker’s license. Section 641 authorizes the specific authority citation for either the Secretary of the Treasury to Elimination of District Permits section. CBP proposes to correct this by prescribe rules and regulations relating Section 111.19 provides the revising the specific authority citation to the customs business of brokers as procedures for obtaining broker permits, for section 111.2 by adding that this may be necessary to protect the public responsible supervision and control section is also issued under 19 U.S.C. and the revenue of the United States requirements for permits, and review 1484 and 4798, and by removing the and to carry out the provisions of procedures for the denial of a permit. As specific authority citation for section section 641. further described in the concurrent 111.3. An identical amendment is The regulations issued under the notice of proposed rulemaking, proposed in the concurrent document, authority of section 641 are set forth in published elsewhere in this issue of the ‘‘Modernization of the Customs Brokers Part 111 of title 19 of the Code of Federal Register, CBP is proposing to Regulations’’ RIN 1651–AB16.
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Executive Orders 13563, 12866, and 1. Need and Purpose of Rule 1651–AB16). CBP proposes to transition 13771 The current customs brokers all brokers to national permits and to expand the scope of the national permit Executive Orders 13563 and 12866 regulations are based on the district system in which entry, entry summary, authority to allow national permit direct agencies to assess the costs and and post-summary activity are all holders to conduct any type of customs benefits of available regulatory handled by the ports within a permit business throughout the customs alternatives and, if regulation is district. In the rule published territory of the United States. By necessary, to select regulatory concurrently (RIN 1651–AB16) with this transitioning to a national permit, CBP approaches that maximize net benefits proposed rule, CBP proposes to proposes to eliminate the requirements (including potential economic, modernize the regulations governing for brokers to maintain district permits environmental, public health and safety customs brokers to better reflect the and pay the annual user fee. effects, distributive impacts, and current work environment and Consequently CBP proposes to eliminate equity). Executive Order 13563 streamline the customs broker customs broker district permit annual emphasizes the importance of permitting process to save money. user fees. CBP has prepared the quantifying both costs and benefits, of following analysis to help inform reducing costs, of harmonizing rules, 2. Background stakeholders of the impacts of this and of promoting flexibility. Executive The customs territory of the United proposed rule. Order 13771 (‘‘Reducing Regulation and States is divided into seven customs 3.1 Permit User Fee Controlling Regulatory Costs’’) directs regions. Within each region, the agencies to reduce regulation and customs territory of the United States is Currently, the payment of an annual control regulatory costs and provides further divided into districts; there are permit user fee of $141.70 is required that ‘‘for every one new regulation currently 40 customs districts.1 for each permit that is granted to an issued, at least two prior regulations be Currently, a district permit is required individual, partnership, association, or identified for elimination, and that the for each district in which a customs corporate broker. The permit user fee is cost of planned regulations be prudently broker intends to conduct customs payable for each district and/or national managed and controlled through a business. Each district permit requires a permit a customs broker has, including budgeting process.’’ one-time permit fee of $100 and an when a district permit is issued concurrently with the broker’s license. This rule is not a ‘‘significant annual user fee of $141.70. A customs broker has the option of receiving his/ As a result of the concurrent CBP rule, regulatory action,’’ under section 3(f) of her first district permit concurrently district permits will be eliminated and Executive Order 12866. Accordingly, with the receipt of the customs broker customs brokers will only need to pay OMB has not reviewed this regulation. license in which case the $100 permit an annual user fee on a single national As this rule is not a significant 2 fee is waived. In an effort to modernize permit. regulatory action, this rule is exempt the permitting process for customs According to data from CBP’s Broker from the requirements of Executive brokers, the proposed rule published Management Branch, as of January 2017 Order 13771. See OMB’s Memorandum concurrently in the FR (RIN 1651– there were 2,093 3 brokers holding one titled ‘‘Guidance Implementing AB16) will eliminate the district or more district permits 4 that have Executive Order 13771, Titled permitting process and automatically 3,067 active district permits. This is an ‘Reducing Regulation and Controlling grant each district permit holder a average of approximately 1.5 district Regulatory Costs’’’ (April 5, 2017). national permit. permits per customs broker permit However, this rule is considered a holder. Using this figure we can now deregulatory action under Executive 3. Proposed Rule Amendments: Costs project how many district permits Order 13771 and the estimated and Benefits brokers who currently hold at least one annualized savings to the public are Concurrently with this document, permit, would have had over the period $481,089. CBP has prepared the CBP is publishing a notice of proposed of the analysis, from 2017 through 2021 following analysis to help inform rulemaking that eliminates customs under the baseline condition (i.e., if this stakeholders of the impacts of this broker districts (see ‘‘Modernization of rule is not promulgated). This is shown proposed rule. the Customs Brokers Regulations’’ RIN in Exhibit 1 below.
EXHIBIT 1—PROJECTION OF NEW INDIVIDUAL AND CORPORATE PERMITS
New individual New corporate Year licenses New individual licenses New corporate issued permits issues permits
2017 ...... 762 1,143 97 146 2018 ...... 839 1,258 106 159 2019 ...... 922 1,384 115 173 2020 ...... 1,015 1,522 126 188 2021 ...... 1,116 1,674 137 205
1 In addition to the 40 geographically defined broker with a specific district permit and as a result year they received their license and is inclusive of customs districts, there are three special districts are not affected by this proposal. the 1,258 brokers that hold at least one district that are responsible for specific types of imported 2 The reduction of the fee revenue will result in permit concurrently with a national permit. merchandise. These special districts include less funds available for CBP operations, but this is 4 Note that 11,531 brokers (13,624 active broker districts 60, 70 and 80. District 60 refers to entries offset by the reduction in costs to process the licenses ¥2,093 customs broker permit holders) do made by vessels under their own power. District 70 permits. Thus, there is no net effect to CBP in refers to shipments with a value under $800. reducing this revenue. not have any permits at all, and as a result, will not District 80 refers to mail shipments. These three 3 This figure represents all current licensed be affected by the permitting changes of this rule. special districts do not require the use of a licensed brokers that are permit holders, regardless of what
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EXHIBIT 1—PROJECTION OF NEW INDIVIDUAL AND CORPORATE PERMITS—Continued
New individual New corporate Year licenses New individual licenses New corporate issued permits issues permits
Total ...... 4,654 6,981 581 871 Note: Values may not sum to total due to rounding.
Absent this rule, there would be 4,654 granted over the period of analysis, analysis. With this rule in place, the new individual licenses and 581 new approximately 150 national permits are 5,235 total brokers would only receive corporate licenses issued for a total of issued annually. This means that over a single national permit each for a total 5,235 licenses (see Exhibit 1). Using the the period of analysis from 2017 of 5,235 permits. This would result in aforementioned ratio of district permits through 2021, 750 national permits will permit user fee charges over the period to customs broker permit holders of 1.5 be granted to customs brokers in of analysis of $741,800 (5,235 national district permits to 1 customs broker addition to the 7,853 district permits for permits * $141.70 annual permit user permit holder, these 5,235 broker a total of 8,603 permits. Absent this fee). This represents total savings to new licenses would result in 7,853 district rule, these 8,603 permits would result in customs brokers of $477,245 ($1,219,045 permits. According to CBP’s Broker permit user fee charges of $1,219,045 ¥ $741,800) over the period of analysis. Management Branch, in addition to the (8,603 total permits * $141.70 annual Please see Exhibit 2, below, for the 7,853 district permits that would be permit user fee) over the period of the estimated annual cost savings.
EXHIBIT 2—COST SAVINGS FROM THE PERMIT USER FEE FOR NEW LICENSES [$2016]
Savings as a Year New licenses New district New national Total permits result of this issued permits permits proposed rule
2017 ...... 859 1,289 150 1,439 $82,186 2018 ...... 945 1,418 150 1,568 88,279 2019 ...... 1,037 1,556 150 1,706 94,797 2020 ...... 1,141 1,712 150 1,862 102,166 2021 ...... 1,253 1,880 150 2,030 110,101
Total ...... 5,235 7,853 750 8,603 477,245 Note: Values may not sum to total due to rounding.
Current brokers that have more than this rule, these permits would result in annual savings in 2017 of $325,060 one permit will also benefit from this an annual permit user fee charge in ($511,962¥$186,902) or $1,956,192 rule. According to CBP’s Broker 2017 of $511,962 (3,613 permits * over the period of analysis to customs Management Branch, as of January 2017 $141.70 annual permit user fee) or brokers who currently hold more than there were 1,319 brokers that either $2,559,810 over the period of analysis one permit. This also represents a have more than one district permit or a from 2017 through 2021. As a result of decrease in the transfer payment from combination of at least one district this rule, the 1,319 brokers would only customs brokers to the government of permit and a national permit. These need to hold a single national permit for $1,956,192 over the period of analysis 1,319 brokers currently hold a total of a total of 1,319 permits. This would from 2017 through 2021. Please see 3,613 permits which results in a ratio of result in an annual permit user fee Exhibit 3, below, for the estimated 2.73 permits per broker (some of the charge in 2017 of $186,902 (1,319 annual cost savings for existing license existing brokers hold significantly more national permits * $141.70 annual holders. than the average of 1.5 permits per permit user fee) or $934,510 over the customs broker permit holder). Absent period of analysis. This represents an
EXHIBIT 3—COST SAVINGS FROM THE PERMIT USER FEE FOR EXISTING LICENSES OVER PERIOD OF ANALYSIS [$2016]
Annual cost Existing Number of Number of Cost absent Cost with rule savings over Year 5 permits absent permits with rule period of licenses rule rule ($) ($) analysis ($)
2017 ...... 1,319 3,613 1,319 511,962 186,902 325,060 2018 ...... 1,444 3,943 1,444 558,716 204,658 354,058 2019 ...... 1,582 4,318 1,582 611,794 224,101 387,694
5 A growth rate of 9.5 percent was used to project ten (10) percent calculated average growth rate for calculated average growth rate for corporate the number of existing licenses over the period of individual licenses and the nine (9) percent licenses that was used in the analysis. analysis. The 9.5 percent figure is the average of the
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EXHIBIT 3—COST SAVINGS FROM THE PERMIT USER FEE FOR EXISTING LICENSES OVER PERIOD OF ANALYSIS— Continued [$2016]
Annual cost Number of Number of Cost absent savings over Existing Cost with rule Year 5 permits absent permits with rule period of licenses rule rule ($) ($) analysis ($)
2020 ...... 1,732 4,728 1,732 669,915 245,390 424,525 2021 ...... 1,896 5,177 1,896 733,557 268,702 464,855
Total ...... 3,085,945 1,129,753 1,956,192 Note: Values may not sum to total due to rounding.
3.2 Total Costs below, total savings over the period of Exhibit 5 shows the total and The elimination of the annual user fee analysis are approximately $2.4 million annualized savings over the period of for district permits does not result in dollars. analysis (2017–2021) at a three (3) and any costs to brokers, but as noted above seven (7) percent discount rate, per the rule yields the aforementioned cost EXHIBIT 4—TOTAL ANNUAL guidance provided in OMB Circular A– savings. UNDISCOUNTED SAVINGS FOR BRO- 4. Total benefits range from KERS ($2016), 2017–2021 approximately $2.1 to $2.3 million over 3.3 Total Benefits the period of analysis. Annualized The total annual monetized cost Year Total savings benefits are approximately $480,000. savings for customs brokers are the result of monetary savings from 2017 ...... $407,246 switching from a district permitting 2018 ...... 442,337 system to a national permitting system. 2019 ...... 482,491 Specifically, the cost savings are the 2020 ...... 526,691 result of the payment of the annual 2021 ...... 574,956 permit user fee for only a single national permit instead of for each of the Total ...... 2,433,721 potentially several district permits a Note: Values may not sum to total due to broker holds. As shown in Exhibit 4 rounding.
EXHIBIT 5—TOTAL PRESENT VALUE AND ANNUALIZED BENEFITS, FROM 2017–2021 [$2016]
Total present value benefits Annualized benefits 3% 7% 3% 7%
$2,284,331 $2,110,639 $484,266 $481,089
3.4 Net Benefits over a 5-year period of analysis from individual licenses plus 97 corporate Exhibit 6 summarizes the monetized 2017–2021 ranges from approximately licenses). The adoption of this rule will costs and benefits of this rule to $2.3 to $2.4 million and the annualized result in an average annual net benefit individual and business entity customs net benefit is approximately $500,000. per broker in 2017 of $560 ($481,089 brokers. As shown, the total monetized In 2017, we estimate that 859 brokers annualized net benefit/859 total new present value net benefit of this rule will receive their broker licenses (762 brokers for 2017).
EXHIBIT 6—PRESENT VALUE AND ANNUALIZED NET BENEFIT OF RULE ($2016), 2017–2021
3% Discount rate 7% Discount rate Present value Annualized Present value Annualized
Total Cost ...... $0 $0 $0 $0 Total Benefit ...... 2,284,331 484,266 2,110,639 481,089 Total Net Benefit ...... 2,284,331 484,266 2,110,639 481,089
4. Regulatory Flexibility Act and Fairness Act of 1996, requires operated business not dominant in its agencies to assess the impact of field that qualifies as a small business The Regulatory Flexibility Act (5 regulations on small entities. A small per the Small Business Act); a small not- U.S.C. 601 et seq.), as amended by the entity may be a small business (defined for-profit organization; or a small Small Business Regulatory Enforcement as any independently owned and
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governmental jurisdiction (locality with PART 24—CUSTOMS FINANCIAL AND the designated Center referred to in fewer than 50,000 people). ACCOUNTING PROCEDURE § 111.19(b). The permit user fee must be paid by the due date as published The proposed rule will apply to all ■ customs brokers, regardless of size. 1. The general authority citation for annually in the Federal Register, and Accordingly, the proposed rule will part 24 continues to read as follows: must be remitted in accordance with the affect a substantial number of small Authority: 5 U.S.C. 301; 19 U.S.C. 58a– procedures set forth in § 24.22(i) of this entities. However, as stated above in the 58c, 66, 1202 (General Note 3(i), Harmonized chapter. When a broker submits an Executive Orders 13563, 12866, and Tariff Schedule of the United States), 1505, application for a national permit under 13771 section, the proposed rule will 1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. § 111.19(b), the full permit user fee must 3717, 9701; Pub. L. 107–296, 116 Stat. 2135 be remitted with the application, result in an average savings per customs (6 U.S.C. 1 et seq.). broker of a discounted present value of regardless of the point during the $560. Since brokers, on average, will * * * * * calendar year at which the application is submitted. If a broker fails to pay the benefit as a result of this rule, and the § 24.22 [Amended] savings are relatively small on a per annual permit user fee by the published ■ 2. In § 24.22: due date, the permit is revoked by broker basis, it will not have a ■ a. Paragraph (h) is amended by: operation of law. The director of the significant impact on customs brokers. ■ i. Removing the phrase ‘‘each district Accordingly, CBP certifies that this rule designated Center will notify the broker permit and for’’ in the first sentence; in writing of the failure to pay and the does not have a significant impact on a ■ ii. Removing the second sentence; and revocation of the permit. substantial number of small entities. ■ iii. Removing the word ‘‘port’’ from * * * * * 5. Paperwork Reduction Act the third sentence and adding in its place the words ‘‘designated Center’’; Approved: March 3, 2020. In accordance with the Paperwork and Timothy E. Skud, Reduction Act of 1995 (Pub. L. 104–13, ■ b. Paragraph (i)(9) is amended by Deputy Assistant Secretary, Department of 44 U.S.C. 3507) an agency may not removing the phrase ‘‘: for district the Treasury. conduct, and a person is not required to permits, class code 497;’’ from the first Mark A. Morgan, respond to, a collection of information sentence. Acting Commissioner, U.S. Customs and unless the collection of information Border Protection. displays a valid control number PART 111—CUSTOMS BROKERS [FR Doc. 2020–04708 Filed 6–4–20; 8:45 am] assigned by OMB. The collections of ■ 3. The authority citation for part 111 BILLING CODE 9111–14–P information contained in these is revised to read as follows: regulations are provided for by OMB Authority: 19 U.S.C. 66, 1202 (General control number 1651–0034 (CBP DEPARTMENT OF EDUCATION Regulations Pertaining to Customs Note 3(i), Harmonized Tariff Schedule of the Brokers) and by OMB control number United States), 1624; 1641. Section 111.2 also issued under 19 U.S.C. 34 CFR Chapter III 1651–0076 (Recordkeeping 1484, 1498; [Docket ID ED–2020–OSERS–0015] Requirements). This rule does not Section 111.96 also issued under 19 U.S.C. change the burden under these 58c, 31 U.S.C. 9701. Proposed Requirements—The information collections. ■ 4. In § 111.19, revise the section Individuals With Disabilities Education Signing Authority heading and paragraph (c) to read as Act (IDEA) Paperwork Reduction follows: Waivers This regulation is being issued in AGENCY: accordance with 19 CFR 0.1(a)(1) § 111.19 National permit. Office of Special Education and Rehabilitative Services, Department of pertaining to the Secretary of the * * * * * Education. Treasury’s authority (or that of his (c) Fees. A national permit issued delegate) to approve regulations related under paragraph (a) of this section is ACTION: Proposed requirements and to certain customs revenue functions. subject to the permit application fee definition. specified in § 111.96(b) and to the List of Subjects SUMMARY: The Department of Education customs user permit fee specified in (Department) proposes requirements 19 CFR Part 24 § 111.96 (c). The fees must be paid at the and a definition for waivers under section 609 of the Individuals with Accounting, Claims, Customs duties designated Center (see § 111.1) or online Disabilities Education Act (IDEA). The and inspection, Harbors, Reporting and with the submission of the permit application. Department may select as many as 15 recordkeeping requirements, Taxes. * * * * * States to receive waivers of statutory 19 CFR Part 111 ■ 5. In § 111.96, paragraph (c) is revised requirements of, or regulatory to read as follows: requirements relating to, IDEA Part B, Administrative practice and for a period of time not to exceed 4 procedure, Brokers, Customs duties and § 111.96 Fees. years, to reduce excessive paperwork inspection, Penalties, Reporting and * * * * * and noninstructional time burdens that recordkeeping requirements. (c) Permit user fee. Payment of an do not assist in improving educational Proposed Amendments to the CBP annual permit user fee defined in and functional results for children with Regulations § 24.22(h) of this chapter is required for disabilities. The purpose of these a national permit granted to an waivers is to increase the time and For the reasons set forth in the individual, partnership, association, or resources available for instruction and preamble, parts 24 and 111 of title 19 of corporate broker. The permit user fee is other activities aimed at improving the Code of Federal Regulations (19 CFR payable with the filing of an application educational and functional results for parts 24 and 111) are proposed to be for a national permit under § 111.19(b), children with disabilities. Statutory amended as set forth below. and for each subsequent calendar year at requirements of, or regulatory
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requirements relating to, applicable civil We invite you to assist us in interested in public comment on rights requirements or procedural complying with the specific whether these paragraphs are safeguards under section 615 of IDEA requirements of Executive Orders sufficiently clear that parents have the may not be waived. The Department 12866, 13563, and 13771 and their right to understand and consent to may use these proposed requirements overall requirement of reducing changes that affect their children’s and definition in fiscal year (FY) 2020 regulatory burden that might result from education and do not imply that waivers and later years. these proposed requirements and of FAPE are permitted under this DATES: We must receive your comments definition. Please let us know of any program. on or before August 19, 2020. further ways we could reduce potential During and after the comment period, ADDRESSES: Submit your comments costs or increase potential benefits you may inspect all public comments through the Federal eRulemaking Portal while preserving the effective and about the proposed requirements and or via postal mail, commercial delivery, efficient administration of the program. definition by accessing Regulations.gov. You may also inspect the comments in or hand delivery. We will not accept Directed Questions comments submitted by fax or by email person in room 5163, 550 12th Street 1. We invite public comment on or those submitted after the comment SW, Potomac Center Plaza, Washington, whether there are other specific issues period. To ensure that we do not receive DC, between the hours of 8:30 a.m. and the Department should consider when duplicate copies, please submit your 4:00 p.m., Eastern Time, Monday evaluating waiver proposals and comments only once. In addition, please through Friday of each week except whether we should require States, in include the Docket ID at the top of your Federal holidays. Please contact the their proposals, to provide further comments. person listed under FOR FURTHER explanations of the legal and research- • Federal eRulemaking Portal: Go to INFORMATION CONTACT. based supports for their proposals. www.regulations.gov to submit your Assistance to Individuals with 2. The Department’s regulations comments electronically. Information Disabilities in Reviewing the implementing Section 504 of the Rulemaking Record: On request, we will on using Regulations.gov, including Rehabilitation Act of 1973 (Section 504) instructions for accessing agency provide an appropriate accommodation and covering recipients that serve or auxiliary aid to an individual with a documents, submitting comments, and school-aged children with disabilities, viewing the docket, is available on the disability who needs assistance to as set out in 34 CFR 104.31 through review the comments or other site under ‘‘Help.’’ 104.36, contain civil rights protections • Postal Mail, Commercial Delivery, documents in the public rulemaking that often overlap with, or can be met or Hand Delivery: If you mail or deliver record for the proposed requirements through the implementation of, the your comments about these proposed and definition. If you want to schedule protections in IDEA Part B. For an appointment for this type of requirements, address them to David example, implementation of an Egnor, U.S. Department of Education, accommodation or auxiliary aid, please individualized education program (IEP) contact the person listed under FOR 400 Maryland Avenue SW, Room 5163, developed in accordance with IDEA Part Potomac Center Plaza, Washington, DC FURTHER INFORMATION CONTACT. B is one means of meeting the standard Purpose of Program: The purpose of 20202–5076. for an appropriate education under the Privacy Note: The Department’s this program is to provide an Section 504 implementing regulations. policy is to make all comments received opportunity for States to reduce See 34 CFR 104.33(b)(2). Likewise, the from members of the public available for excessive paperwork and Section 504 implementing regulations public viewing in their entirety on the noninstructional time burdens on require evaluations and reevaluations Federal eRulemaking Portal at special education teachers, related that meet certain criteria. 34 CFR www.regulations.gov. Therefore, services providers, and State and local 104.35(a), (b), and (d). administrators, thus increasing time and commenters should be careful to (a) Given the limitation that the include in their comments only resources available for instruction and Secretary may not waive any statutory other activities that would improve information that they wish to make or regulatory requirements of, or relating publicly available. educational and functional results for to, applicable civil rights requirements, children with disabilities. FOR FURTHER INFORMATION CONTACT: the Department is seeking public David Egnor, U.S. Department of comment on the best ways to address Program Authority: 20 U.S.C. 1408. Education, 400 Maryland Avenue SW, the close relationship between IDEA Proposed Requirements Room 5163, Potomac Center Plaza, and the Section 504 protections that Washington, DC 20202–5076. apply to school-aged children with Background Telephone: (202) 245–7334. Email: disabilities. The Secretary believes that all [email protected]. (b) Because of the overlap between students should be given the If you use a telecommunications IDEA and Section 504, should States, in opportunity to succeed and that their device for the deaf (TDD) or a text their waiver proposals, be required to success should be the primary focus of telephone (TTY), call the Federal Relay include a specific explanation of why everyone in the educational system. Service (FRS), toll free, at 1–800–877– the waiver sought would not conflict When teachers, related services 8339. with requirements of, or relating to, providers, and administrators who serve SUPPLEMENTARY INFORMATION: Section 504 and its implementing children with disabilities spend time Invitation to Comment: We invite you regulations? completing unnecessary paperwork, to submit comments regarding the 3. We are particularly interested in their ability to prioritize and focus on proposed requirements and definition. comments regarding paragraphs (a)(6) improving outcomes for children with To ensure that your comments have and (a)(7) of the proposed requirements. disabilities is hampered. maximum effect in developing the final These requirements originally appeared In the 2004 reauthorization of IDEA, requirements and definition, we urge in the 2007 final requirement. (We Congress recognized that some Federal you to identify clearly the specific discuss the 2007 final requirements in IDEA Part B requirements could create section of the proposed requirements or greater detail in the Background section excessive paperwork and definition that each comment addresses. of this notice.) However, we are noninstructional time burdens on
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special education teachers, related Paperwork Waiver Demonstration appropriate notice. The Department will services providers, and State and local Program (72 FR 58066). At that time, the review each proposal to determine administrators, thus diverting time and Department relied on a notice of final whether the waivers are legally resources away from instruction and additional requirements and selection permissible and likely to generate the other activities that would improve criteria published in the Federal meaningful benefits contemplated in educational and functional results for Register on July 6, 2007 (72 FR 36970), IDEA for personnel and the students children with disabilities. which, in part, governed how States with disabilities they serve. As such, under section 609 of IDEA, could apply for a waiver under IDEA Proposed Requirements: We propose Congress gave the Department limited section 609. However, that notice the following requirements for a authority to grant waivers of certain specified that the additional proposal to waive certain requirements requirements of IDEA Part B. Waivers requirements and selection criteria were of, or relating to, IDEA Part B under may be granted to not more than 15 only eligible to be used once, which the section 609. We may apply one or more States and for a period not to exceed 4 Department did in 2007. of these requirements in any year in years. Further, the Secretary may not We are, therefore, again issuing a which this program is in effect. waive any statutory or regulatory notice of proposed requirements and (a) An applicant must include in its provisions relating to applicable civil definition for waiver proposals. The proposal the following: rights requirements or allow a State or Department is proposing to use many of (1) A description of how the State 2 local educational agency to waive the same requirements for the waivers met the public participation procedural safeguards under section 615 as it did in 2007 because we believe requirements of section 612(a)(19) of of IDEA, and waivers may not affect the they still represent a sensible and IDEA, including how the State— right of a child with a disability to practical approach to implementating (i) Involved multiple stakeholders, receive a free appropriate public the statutory requirements in section including parents, children with education (FAPE) under IDEA Part B. In 609 of IDEA. Specifically, paragraphs disabilities, special education and short, States’ waiver proposals must (a)(1) through (7) of these proposed regular education teachers, related preserve the fundamental rights of requirements come from the 2007 services providers, and school and children with disabilities under IDEA.1 notice. We invite public comment on district administrators, in selecting the In addition, States have always had the the extent to which those requirements requirements proposed for the waiver authority, within the constraints of State remain appropriate and whether the and any specific proposals for changing law, to change or waive State Department should include fewer, those requirements to reduce excessive requirements that exceed IDEA statutory additional, or different requirements. paperwork; and and regulatory requirements in order to Further, section 609(a)(3) of IDEA (ii) Provided an opportunity for reduce administrative burden. establishes requirements for a State’s public comment, including from In this document, we are proposing waiver proposal. Paragraphs (a)(8) and individuals with disabilities and parents requirements and a definition for States (9) of the proposed requirements reflect of children with disabilities, in selecting to apply for paperwork waivers under those requirements. Consistent with the requirements proposed for the section 609 of IDEA and thereby IDEA sections 602(22), 602(31), and 610, waiver. increase the time and resources ‘‘State’’ means each of the 50 States, the (iii) Held public hearings, and available for instruction and other District of Columbia, the provided adequate notice of the activities aimed at improving Commonwealth of Puerto Rico, each of hearings, to solicit input on the educational and functional results for the outlying areas (United States Virgin selection of requirements proposed for children with disabilities. Islands, Guam, American Samoa, and the waiver. Elsewhere in this issue of the Federal the Commonwealth of the Northern (2) A summary of public comments Register, we are proposing priorities, Mariana Islands), and the freely received in accordance with paragraph requirements, and selection criteria for associated States (the Republic of the (a)(1) of these requirements and how the the IDEA Paperwork Reduction Marshall Islands, the Federated States of public comments were addressed in the Micronesia, and the Republic of Palau). Planning and Implementation program, proposal. Finally, the Department is primarily through which the Department intends (3) A description of the procedures interested in granting waiver proposals to make grant funds available to plan for the State will employ to ensure that, if designed to produce the greatest and implement reductions of excessive the waiver is granted, it will not result paperwork and noninstructional time benefits as measured by the number of burden hours reduced, the number of in a denial of FAPE to any child with burdens under IDEA section 609. a disability, infringe on any applicable IDEA is silent with respect to the instructional hours gained, and the number of personnel and students with civil rights requirements, or result in a selection criteria the Department may waiver of any procedural safeguards use to evaluate State proposals. On disabilities positively affected by the waivers. As a result, paragraphs (a)(10), under section 615 of IDEA. This October 12, 2007, through a notice description also must include an published in the Federal Register, the (a)(11), (b), (c), (d), and (e) of the proposed requirements require States, in assurance that the State will collect and Department solicited State proposals report to the Department, as part of the under what was then called the IDEA their waiver proposals, to include a discussion of (1) the interaction between State’s annual performance report to the Secretary in accordance with section 1 the Federal IDEA Part B requirements For any State that receives a waiver of Federal 616(b)(2)(C)(ii)(II) of IDEA, all State IDEA Part B requirements, the Secretary will they propose to waive and any related terminate the waiver if the Secretary determines State requirements, (2) activities the that the State failed to appropriately implement its 2 Consistent with IDEA sections 602(22), 602(31), waiver, or the Secretary determines the State needs State proposes to undertake to and 610, ‘‘State’’ means each of the 50 States, the assistance in implementing IDEA requirements and implement the proposed waiver, and (3) District of Columbia, the Commonwealth of Puerto the waiver has contributed to or caused such need how the State will evaluate the Rico, each of the outlying areas (United States for assistance. The Secretary will also terminate the effectiveness of the proposed waiver. Virgin Islands, Guam, American Samoa, and the waiver if the Secretary determines the State needs Commonwealth of the Northern Mariana Islands), intervention in implementing IDEA requirements, The Department intends to accept and the freely associated States (the Republic of the or needs substantial intervention in implementing waiver proposals from States for 12 Marshall Islands, the Federated States of IDEA requirements. months following publication of an Micronesia, and the Republic of Palau).
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complaints and due process hearings services providers, and State and local under the waiver to staff in LEAs, resulting from the waivers and related to administrators; private schools (including parochial the denial of FAPE to any child with a (ii) Not affect the right of a child with schools) that provide services to disability or a waiver of any procedural a disability to receive FAPE under IDEA children with disabilities, and other safeguards under section 615 of IDEA Part B, infringe on any applicable civil appropriate service providers and and how the State responded to this rights requirements, or result in the administrators. information, including the outcome of waiver of any procedural safeguards (e) An applicant must include in its that response such as providing under section 615 of IDEA. proposal its proposed plan to collect technical assistance to the local (9) A list of any State requirements and analyze data on specific and educational agency (LEA) to improve that the State proposes to waive or measurable goals, objectives, and implementation, or suspending or change, in whole or in part, to carry out outcomes of the project related to the terminating the authority of an LEA to a waiver granted to the State by the implementation of any waiver granted, waive paperwork requirements due to Secretary. including data on the effectiveness of unresolved compliance problems. (10) A description of the interplay the waiver in— (4) A description of the procedures between the requirements described in (1) Reducing— the State will employ to ensure that paragraph (a)(8) and any State (i) The paperwork burden on teachers, diverse stakeholders (including parents, requirements including, but not limited principals, administrators, and related teachers, administrators, related services to, those described in paragraph (a)(9). services providers; and providers, and other stakeholders, as (11) A description of the anticipated (ii) Noninstructional time spent by appropriate) understand the proposed benefits of the proposed waiver, teachers in complying with IDEA Part B; elements of the State’s submission for including, but not limited to— (2) Enhancing longer-term educational the IDEA Paperwork Reduction Waivers. (i) The total reduction in burden planning; (5) Assurances that every parent of a hours on State and local personnel and (3) Improving positive outcomes, child with a disability in participating the total number of instructional hours including educational and functional LEAs will be given, in easily gained, disaggregated by applicable results, for children with disabilities; understandable language, written notice statutory or regulatory provision; (4) Promoting collaboration between (in the native language of the parent, (ii) The total number of administrators IEP Team members; and unless it is clearly not feasible to do so) and direct service providers affected, (5) Ensuring satisfaction of family of all statutory, regulatory, or State including the number of individuals in members. requirements that will be waived and each group, disaggregated by applicable (f) An applicant must submit its the procedures that the State will statutory or regulatory provision; and proposal with a letter signed by an employ under paragraph (a)(3) of these (iii) The total number of likely appropriate State official, or his or her requirements. beneficiaries, and the magnitude and designee, stating that— (6) Assurances that the State will scope of anticipated benefits and other (1) The appropriate State official is require any participating LEA to obtain activities intended to improve authorized to make the proposal for a voluntary informed written consent educational and functional results for waiver under State law; and from parents for a waiver of any children with disabilities. (2) The proposal meets all of the paperwork requirements related to the (12) A State that received a planning applicable requirements for a waiver. grant under the IDEA Paperwork provision of FAPE. Proposed Definition (7) Assurances that the State will Reduction Planning and require any participating LEA to inform Implementation Program (84.326F) must We propose the following definition parents in writing (in the native include in its waiver proposal the plan for the proposed requirements. We may language of the parents, unless it is the State developed under that program. apply this definition in any year in clearly not feasible to do so) of— (b) An applicant must include in its which the requirements are in effect. (i) Any differences between the proposal its proposed plan to ‘‘Applicable civil rights paperwork requirements under the disseminate information and materials requirements,’’ includes, but is not waiver program approved for the State regarding any revisions to requirements, limited to, the civil rights protections in and the existing paperwork policies, procedures, or practices made the United States Constitution and the requirements of IDEA related to the in conjunction with the waiver to requirements in the following provision of FAPE; relevant stakeholders, including, but not legislation and their respective (ii) The parent’s right to revoke limited to, LEAs; private schools implementing regulations: consent to waive any paperwork (including parochial schools) that (1) Section 504 of the Rehabilitation requirements related to the provision of provide services to children with Act of 1973, as amended. FAPE at any time; and disabilities; charter management (2) Title VI of the Civil Rights Act of (iii) The LEA’s responsibility to meet organizations; the State Advisory Panel, 1964. all paperwork requirements related to as defined in section 612(a)(21) of IDEA; (3) Title IX of the Education the provision of FAPE if the parent does and parent organizations, as that term is Amendments of 1972. not provide voluntary written informed defined in sections 671(a)(2) and (4) Title II of the Americans with consent or revokes consent. 672(a)(2) of IDEA. Disabilities Act of 1990. (8) A list of any statutory (c) An applicant must assure that it (5) Age Discrimination Act of 1975. requirements of, or regulatory will make publicly available all Final Requirements and Definition requirements relating to, IDEA Part B information regarding changes to that the State desires the Secretary to requirements, policies, procedures, or We will announce the final waive, in whole or in part. For each practices made in conjunction with the requirements and definition in a requirement, the State should discuss waiver. document in the Federal Register. We how waiving the requirement will— (d) An applicant must include in its will determine the final requirements (i) Reduce excessive paperwork and proposal its proposed plan to provide and definition after considering public noninstructional time burdens on training on revisions to requirements, comments on the proposed special education teachers, related policies, procedures, or practices made requirements and definition and other
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information available to the Department. 13563, which supplements and are those resulting from statutory This document does not preclude us explicitly reaffirms the principles, requirements and those we have from proposing priorities, additional structures, and definitions governing determined as necessary for requirements, additional definitions, or regulatory review established in administering the Department’s selection criteria subject to meeting Executive Order 12866. To the extent programs and activities. These potential applicable rulemaking requirements. permitted by law, Executive Order costs are those that would be incurred Note: This document does not solicit 13563 requires that an agency— by a State making an application for a applications. In any year in which we choose (1) Propose or adopt regulations only waiver to the Secretary following the to use the resulting final requirements and upon a reasoned determination that requirements proposed by this definition, we intend to invite applications their benefits justify their costs regulatory action. through a separate notice in the Federal (recognizing that some benefits and In addition, we have considered the Register. costs are difficult to quantify); potential benefits of this regulatory (2) Tailor its regulations to impose the action and have noted these benefits in Executive Orders 12866, 13563, and least burden on society, consistent with the background section of this 13771 Regulatory Impact Analysis obtaining regulatory objectives and document. The potential benefits Under Executive Order 12866, the taking into account—among other things include a reduction in the Office of Management and Budget and to the extent practicable—the costs administrative burden hours under (OMB) determines whether this of cumulative regulations; IDEA on State and local personnel and regulatory action is ‘‘significant’’ and, (3) In choosing among alternative a corresponding gain in instructional therefore, subject to the requirements of regulatory approaches, select those time and services for children with the Executive order and subject to approaches that maximize net benefits disabilities. review by OMB. Section 3(f) of (including potential economic, Executive Order 12866 defines a environmental, public health and safety, Paperwork Reduction Act of 1995 ‘‘significant regulatory action’’ as an and other advantages; distributive The proposed requirements contain action likely to result in a rule that impacts; and equity); information collection requirements that may— (4) To the extent feasible, specify are approved by OMB under OMB (1) Have an annual effect on the performance objectives, rather than the control number 1820–0028; the economy of $100 million or more, or behavior or manner of compliance a proposed requirements do not affect the adversely affect a sector of the economy, regulated entity must adopt; and currently approved data collection. productivity, competition, jobs, the (5) Identify and assess available environment, public health or safety, or alternatives to direct regulation, Clarity of the Regulations State, local, or Tribal governments or including economic incentives—such as Executive Order 12866 and the communities in a material way (also user fees or marketable permits—to Presidential memorandum ‘‘Plain referred to as an ‘‘economically encourage the desired behavior, or Language in Government Writing’’ significant’’ rule); provide information that enables the require each agency to write regulations (2) Create serious inconsistency or public to make choices. that are easy to understand. otherwise interfere with an action taken Executive Order 13563 also requires The Secretary invites comments on or planned by another agency; an agency ‘‘to use the best available how to make these proposed (3) Materially alter the budgetary techniques to quantify anticipated requirements and definition easier to impacts of entitlement grants, user fees, present and future benefits and costs as understand, including answers to or loan programs or the rights and accurately as possible.’’ The Office of questions such as the following: obligations of recipients thereof; or Information and Regulatory Affairs of • Are the requirements in the (4) Raise novel legal or policy issues OMB has emphasized that these proposed regulations clearly stated? arising out of legal mandates, the techniques may include ‘‘identifying • Do the proposed regulations contain President’s priorities, or the principles changing future compliance costs that technical terms or other wording that stated in the Executive order. might result from technological interferes with their clarity? OMB has determined that this innovation or anticipated behavioral • Does the format of the proposed proposed regulatory action is not a changes.’’ regulations (grouping and order of significant regulatory action subject to We are issuing the proposed sections, use of headings, paragraphing, review by OMB under section 3(f) of requirements and definition based on a etc.) aid or reduce their clarity? Executive Order 12866. reasoned determination that the benefits • Would the proposed regulations be Under Executive Order 13771, for would justify the costs. In choosing easier to understand if we divided them each new rule that the Department among alternative regulatory into more (but shorter) sections? proposes for notice and comment or approaches, we selected those • Could the description of the otherwise promulgates that is a approaches that would maximize net proposed regulations in the significant regulatory action under benefits. Based on the analysis that SUPPLEMENTARY INFORMATION section of Executive Order 12866, and that follows, the Department believes that this preamble be more helpful in imposes total costs greater than zero, it this regulatory action is consistent with making the proposed regulations easier must identify two deregulatory actions. the principles in Executive Order 13563. to understand? If so, how? For FY 2020, any new incremental costs We also have determined that this • What else could we do to make the associated with a new regulation must regulatory action would not unduly proposed regulations easier to be fully offset by the elimination of interfere with State, local, and Tribal understand? existing costs through deregulatory governments in the exercise of their To send any comments that concern actions. Because the proposed governmental functions. how the Department could make these regulatory action is not significant, the In accordance with both Executive proposed regulations easier to requirements of Executive Order 13771 orders, the Department has assessed the understand, see the instructions in the do not apply. potential costs and benefits, both ADDRESSES section. We have also reviewed this proposed quantitative and qualitative, of this Regulatory Flexibility Act (RFA) regulatory action under Executive Order regulatory action. The potential costs Certification: The Secretary certifies that
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this proposed regulatory action would your search to documents published by cloud, or other file sharing system). For not have a significant economic impact the Department. additional submission methods, the full EPA public comment policy, on a substantial number of small Mark Schultz, entities. The U.S. Small Business information about CBI or multimedia Commissioner, Rehabilitation Services submissions, and general guidance on Administration (SBA) Size Standards Administration. Delegated the authority to define ‘‘small entities’’ as for-profit or perform the functions and duties of the making effective comments, please visit nonprofit institutions with total annual Assistant Secretary for the Office of Special http://www2.epa.gov/dockets/ revenue below $7,000,000 or, if they are Education and Rehabilitative Services. commenting-epa-dockets. institutions controlled by small [FR Doc. 2020–11416 Filed 6–4–20; 8:45 am] Docket: All documents in the docket governmental jurisdictions (that are BILLING CODE 4000–01–P are listed in the www.regulations.gov comprised of cities, counties, towns, index. Although listed in the index, townships, villages, school districts, or some information is not publicly special districts), with a population of ENVIRONMENTAL PROTECTION available, e.g., CBI or other information less than 50,000. AGENCY whose disclosure is restricted by statute. Certain other material, such as The proposed requirements and 40 CFR Part 52 copyrighted material, will be publicly definition would not affect any small available only in hard copy. Publicly entities, as only States, as defined in the [EPA–R08–OAR–2020–0110; FRL–10010– 34–Region 8] available docket materials are available IDEA, are eligible to apply. No States either electronically in qualify as small entities for purposes of Approval and Promulgation of Air www.regulations.gov. To reduce the risk the RFA. Quality Implementation Plans; of COVID–19 transmission, for this Intergovernmental Review: This Colorado; Revisions to Air Pollution action we do not plan to offer hard copy program is subject to Executive Order Emission Notice Rules review of the docket. Please email or call the person listed in the FOR FURTHER 12372 and the regulations in 34 CFR AGENCY: Environmental Protection INFORMATION CONTACT section if you part 79. One of the objectives of the Agency (EPA). need to make alternative arrangements Executive order is to foster an ACTION: Proposed rule. intergovernmental partnership and a for access to the docket. strengthened federalism. The Executive SUMMARY: The Environmental Protection FOR FURTHER INFORMATION CONTACT: order relies on processes developed by Agency (EPA) is proposing to approve Kevin Leone, Air and Radiation State and local governments for State Implementation Plan (SIP) Division, EPA, Region 8, Mailcode coordination and review of proposed revisions and renumbering submitted by 8ARD–IO, 1595 Wynkoop Street, Federal financial assistance. the State of Colorado on May 8, 2019. Denver, Colorado 80202–1129, (303) Specifically, the EPA is proposing to This document provides early 312–6227, [email protected]. approve amendments to Colorado’s notification of our specific plans and Stationary Source Permitting and Air SUPPLEMENTARY INFORMATION: actions for this program. Pollution Emission Notice Requirements Throughout this document wherever Accessible Format: Individuals with in 5 CCR 1001–5, Regulation Number 3. ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean disabilities can obtain this document in The EPA is taking this action pursuant the EPA. an accessible format (e.g., braille, large to sections 110 of the Clean Air Act I. Background print, audiotape, or compact disc) on (CAA). request to the program contact person DATES: Comments: Written comments On May 8, 2019, the State of Colorado listed under FOR FURTHER INFORMATION must be received on or before July 6, submitted a SIP revision containing CONTACT. 2020. amendments to 5 CCR 1001–5, Regulation Number 3 (Stationary Source Electronic Access to This Document: ADDRESSES: Submit your comments, The official version of this document is Permitting and Air Pollution Emission identified by Docket ID No. EPA–R08– Notice Requirements). Specifically, the document published in the Federal OAR–2020–0110, to the Federal these amendments revised Part A, VI.C. Register. You may access the official Rulemaking Portal: https:// (Annual Emissions Fees) and VI.D. (Fee edition of the Federal Register and the www.regulations.gov. Follow the online Schedule). These revisions are Code of Federal Regulations at instructions for submitting comments. anticipated to cover revenue shortfalls www.govinfo.gov. At this site you can Once submitted, comments cannot be and ensure continued program viability view this document, as well as all other edited or removed from by increasing stationary source fees. The documents of this Department www.regulations.gov. The EPA may State of Colorado adopted these published in the Federal Register, in publish any comment received to its revisions on October 18, 2018, and they text or Portable Document Format public docket. Do not submit became State effective on November 30, (PDF). To use PDF you must have electronically any information you 2018. We are proposing approval of all Adobe Acrobat Reader, which is consider to be Confidential Business revisions submitted on May 8, 2019. available free at the site. Information (CBI) or other information whose disclosure is restricted by statute. II. Analysis of State Submittal You may also access documents of the Multimedia submissions (audio, video, Department published in the Federal etc.) must be accompanied by a written We evaluated the State’s May 8, 2019, Register by using the article search comment. The written comment is submittal regarding revisions Regulation feature at www.federalregister.gov. considered the official comment and Number 3, Part A, Section VI. Specifically, through the advanced should include discussion of all points 1. VI.C.2 search feature at this site, you can limit you wish to make. The EPA will generally not consider comments or A reference to Section VI.D.1 is being comment contents located outside of the revised to VI.D.3 to coincide with primary submission (i.e., on the web, revisions to VI.D.
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2. VI.D.1 periodically adjust the fee up to the hazardous air pollutants shall be For air pollution emission notice maximum fee.’’ $191.13 per ton.’’ filing fees, the phrase ‘‘. . . shall be The revision to VI.D.1 would make The new annual emission fees for charged in accordance with and in the the maximum fee ($191.13) the only regulated pollutants and hazardous air amounts and limits specified in the filing fee for air pollution emission pollutants are the same as the maximum provisions of Colorado Revised Statutes notices. emission fees as stated in Colorado Section 25–7–114.1’’ is being deleted 3. VI.D.2 Revised Statutes Section 25–7–114.7. and new phrase ‘‘shall be $191.13’’ is being added. The new sentence ‘‘Permit processing III. The EPA’s Proposed Action fees shall be $95.56 per hour’’ is added. We note that Colorado Revised CAA Section 110(a)(2)(E) requires that Statutes Section 25–7–114.1 states: 4. VI.D.3 a state implementation plan provide ‘‘The maximum fee for filing an air assurances that the state will have, pollution emission notice or The phrase ‘‘Annual emission fees among other items, adequate funding to amendment thereto under this section is and permit processing fees shall be one hundred ninety-one dollars and charged in accordance with and in the carry out the implementation plan. thirteen cents; except that, on each amounts and limits specified in the Increasing the air pollution notice filing January 1 from 2019 to 2028, the provisions of Colorado Revised Statutes fee, permit processing fee and annual maximum fee is automatically adjusted Section 25–7–114.7.’’ is being deleted. emission fees reflect both inflation and based on the annual percentage change In addition, the phrase ‘‘Annual the increased complexity of permit to in the United States department of emission fees for regulated pollutants construct applications, thereby ensuring labor, bureau of labor statistics, shall be $22.90 per ton’’ is being revised the State has adequate funding to carry consumer price index for Denver- to state: ‘‘Annual emission fees for out the implementation plan. Aurora-Lakewood for all items and all regulated pollutants shall be $28.63 per In this action, the EPA is proposing to urban consumers, or its successor index. ton’’; and the phrase ‘‘Annual emission approve SIP amendments to Colorado’s The commissioner shall set the actual fees for hazardous air pollutants shall be Regulation Number 3, shown in Table 1, fee by rule. Beginning on July 1, 2018, $152.90 per ton’’ is being revised to submitted by the State of Colorado on the commission, by rule, may state: ‘‘Annual emission fees for May 8, 2019.
TABLE 1—LIST OF COLORADO AMENDMENTS THAT THE EPA IS PROPOSING TO APPROVE
Amended sections in the May 8, 2019 submittal proposed for approval
Regulation Number 3, Part A, Section VI.C: VI.C.2; Section VI.D: VI.D.1, VI.D.2, VI.D.3.
IV. Consideration of Section 110(l) of person identified in the FOR FURTHER • Is certified as not having a the CAA INFORMATION CONTACT section of this significant economic impact on a preamble for more information). substantial number of small entities Under section 110(l) of the CAA, the under the Regulatory Flexibility Act (5 EPA cannot approve a SIP revision if the VI. Statutory and Executive Order U.S.C. 601 et seq.); revision would interfere with any Reviews • Does not contain any unfunded applicable requirements concerning Under the CAA, the Administrator is mandate or significantly or uniquely attainment and reasonable further required to approve a SIP submission affect small governments, as described progress (RFP) toward attainment of the that complies with the provisions of the in the Unfunded Mandates Reform Act NAAQS, or any other applicable Act and applicable Federal regulations. of 1995 (Pub. L. 104–4); requirement of the Act. In addition, 42 U.S.C. 7410(k); 40 CFR 52.02(a). • Does not have Federalism section 110(l) requires that each revision Thus, in reviewing SIP submissions, the implications as specified in Executive to an implementation plan submitted by EPA’s role is to approve state choices, Order 13132 (64 FR 43255, August 10, a state shall be adopted by the state after provided that they meet the criteria of 1999); reasonable notice and public hearing. the CAA. Accordingly, this action • Is not an economically significant The Colorado SIP revisions that the merely proposes to approve state law as regulatory action based on health or EPA proposes to approve do not meeting Federal requirements and does safety risks subject to Executive Order interfere with any applicable not impose additional requirements 13045 (62 FR 19885, April 23, 1997); requirements of the Act. Therefore, CAA beyond those imposed by state law. For • Is not a significant regulatory action section 110(l) requirements are satisfied. that reason, this action: subject to Executive Order 13211 (66 FR • V. Incorporation by Reference Is not a ‘‘significant regulatory 28355, May 22, 2001); action’’ subject to review by the Office • Is not subject to requirements of In this rule, the EPA is proposing to of Management and Budget under section 12(d) of the National include in a final EPA rule regulatory Executive Orders 12866 (58 FR 51735, Technology Transfer and Advancement text that includes incorporation by October 4, 1993) and 13563 (76 FR 3821, Act of 1995 (15 U.S.C. 272 note) because reference. In accordance with January 21, 2011); application of those requirements would requirements of 1 CFR 51.5, the EPA is • Is not an Executive Order 13771 (82 be inconsistent with the CAA; and proposing to incorporate by reference FR 9339, February 2, 2017) regulatory • Does not provide EPA with the the amendments described in sections II action because SIP approvals are discretionary authority to address, as and III. The EPA has made, and will exempted under Executive Order 12866; appropriate, disproportionate human continue to make, these materials • Does not impose an information health or environmental effects, using generally available through collection burden under the provisions practicable and legally permissible www.regulations.gov and at the EPA of the Paperwork Reduction Act (44 methods, under Executive Order 12898 Region 8 Office (please contact the U.S.C. 3501 et seq.); (59 FR 7629, February 16, 1994).
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In addition, the SIP is not approved Regulations.gov: http:// modeled on the mentor-prote´ge´ program to apply on any Indian reservation land www.regulations.gov. Submit comments under section 8(a) of the Small Business or in any other area where EPA or an via the Federal eRulemaking portal by Act (15 U.S.C. 637(a)). On July 25, 2016, Indian tribe has demonstrated that a searching for ‘‘FAR Case 2017–019.’’ SBA issued a final rule (81 FR 48558) tribe has jurisdiction. In those areas of Select the link ‘‘Comment Now’’ that that implemented the mentor-prote´ge´ Indian country, the proposed rule does corresponds with FAR Case 2017–019. programs at 13 CFR 125.9. SBA’s final not have tribal implications and will not Follow the instructions provided at the rule allows a joint venture comprised of impose substantial direct costs on tribal ‘‘Comment Now’’ screen. Please include a prote´ge´ and its mentor to seek any governments or preempt tribal law as your name, company name (if any), and type of small business contract, specified by Executive Order 13175 (65 ‘‘FAR Case 2017–019’’ on your attached including under a socioeconomic FR 67249, November 9, 2000). document. If your comment cannot be program, for which the prote´ge´ qualifies. List of Subjects in 40 CFR Part 52 submitted using https:// www.regulations.gov, call or email the SBA’s final rule updated requirements Environmental protection, Air points of contact in the FOR FURTHER for a joint venture to qualify as a small pollution control, Incorporation by INFORMATION CONTACT section of this business concern or under a reference, Intergovernmental relations, document for alternate instructions. socioeconomic program. A joint venture Nitrogen dioxide, Particulate matter, Instructions: Please submit comments qualifies as a small business concern Sulfur oxides. only and cite FAR Case 2017–019, in all when each of the parties to the joint Authority: 42 U.S.C. 7401 et seq. correspondence related to this case. venture qualifies as small for the size standard associated with the North Dated: May 29, 2020. Comments received generally will be posted without change to http:// American Industry Classification Gregory Sopkin, System (NAICS) code in the solicitation. Regional Administrator, Region 8. www.regulations.gov, including any personal and/or business confidential A joint venture may qualify under a [FR Doc. 2020–12060 Filed 6–4–20; 8:45 am] information provided. To confirm socioeconomic program when at least BILLING CODE 6560–50–P receipt of your comment(s), please one party to the joint venture qualifies check www.regulations.gov, under a socioeconomic program, and approximately two to three days after the joint venture meets the applicable DEPARTMENT OF DEFENSE submission to verify posting. joint venture requirements specified in the SBA regulations. GENERAL SERVICES FOR FURTHER INFORMATION CONTACT: Ms. SBA’s final rule also revised the joint ADMINISTRATION Malissa Jones, Procurement Analyst, at venture regulations at 13 CFR 124.513 703–605–2815 or by email at for 8(a) participants, 125.18(b) for NATIONAL AERONAUTICS AND [email protected] for clarification SDVOSBs; 126.616 for HUBZone small SPACE ADMINISTRATION of content. For information pertaining to business concerns; and 127.506 for status or publication schedules, contact WOSB and economically disadvantaged 48 CFR Parts 2, 9, 15, 19, and 52 the Regulatory Secretariat Division at WOSB concerns. SBA required agencies 202–501–4755 or [email protected]. to consider past performance of each [FAR Case 2017–019; Docket No. FAR– Please cite FAR Case 2017–019. 2017–0019, Sequence No. 1] party to a small business joint venture SUPPLEMENTARY INFORMATION: in addition to any work performed by RIN 9000–AN59 I. Background the joint venture itself. DoD, GSA, and NASA are proposing Federal Acquisition Regulation: Policy DoD, GSA, and NASA are proposing to amend the FAR to require contracting on Joint Ventures to revise the FAR to implement officers to consider the past AGENCY: Department of Defense (DoD), statutory and regulatory changes made performance of the joint venture, and to General Services Administration (GSA), by the Small Business Administration consider the past performance of each and National Aeronautics and Space (SBA) regarding joint ventures. These party to the joint venture if the joint Administration (NASA). changes allow a joint venture comprised venture does not demonstrate past ACTION: Proposed rule. of a prote´ge´ and its mentor to qualify as performance. For consistency and a small business or under a fairness, DoD, GSA, and NASA are SUMMARY: DoD, GSA, and NASA are socioeconomic program (e.g., 8(a)) for proposing to amend the FAR to apply proposing to amend the Federal which the prote´ge´ qualifies. These this requirement to joint ventures Acquisition Regulation (FAR) to changes also provide updated regardless of size status. implement statutory and regulatory requirements for other joint ventures to Additionally, DoD, GSA, and NASA changes regarding joint ventures made qualify as a small business or under a are proposing to amend the FAR to by the Small Business Administration socioeconomic program. clarify that 8(a) joint ventures are not (SBA) in its final rule published in the Section 1347 of the Small Business certified into the 8(a) program and that Federal Register on July 25, 2016, and Jobs Act of 2010 (Pub. L. 111–240) and 8(a) joint venture agreements need only to clarify that 8(a) joint ventures are not section 1641 of the National Defense be approved by the SBA prior to certified into the 8(a) program and that Authorization Act (NDAA) for Fiscal contract award. This clarification is 8(a) joint venture agreements need only Year (FY) 2013 (Pub. L. 112–239; 15 necessary because Government be approved by the SBA prior to U.S.C. 657r) authorized the SBA Accountability Office (GAO) sustained a contract award. Administrator to establish mentor- protest (BGI-Fiore JV, LLC, B–409520, DATES: Interested parties should submit prote´ge´ programs for small business May 29, 2014) in which an agency written comments at the address shown concerns, service-disabled veteran- rejected an 8(a) joint venture’s proposal below on or before August 4, 2020 to be owned small business (SDVOSB) on the basis that the 8(a) joint venture considered in the formation of the final concerns, women-owned small business had not been certified by the SBA prior rule. concerns in the Women-Owned Small to submission of proposals. Currently, ADDRESSES: Submit comments in Business (WOSB) Program, and paragraph (a) of the clause at FAR response to FAR Case 2017–019 to HUBZone small business concerns 52.219–18, Notification of Competition
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Limited to Eligible 8(a) Concerns, states prote´ge´ is small under the size standard proposes to amend the following that, ‘‘Offers are solicited only from for the solicitation in a joint venture contract clauses to add the requirement small business concerns expressly comprised of a mentor and prote´ge´ with that certain small business or certified by the Small Business an approved agreement under a SBA socioeconomic parties to a joint venture Administration (SBA) for participation mentor-prote´ge´ program. A joint venture perform 40 percent of the work in the SBA’s 8(a) program and which may qualify under socioeconomic performed by the joint venture and that meet the following criteria at the time of programs when the joint venture the work performed must be more than submission of offer . . . .’’ This qualifies as a small business joint administrative functions: FAR 52.219–3, language could be interpreted to mean venture and one of the parties to the Notice of HUBZone Set-Aside or Sole that 8(a) joint ventures that submit an joint venture qualifies under one or Source Award; FAR 52.219–4, Notice of offer for an 8(a) contract need to be more of the socioeconomic programs. Price Evaluation Preference for ‘‘certified’’ by the SBA and that their Similar text is added to subparts 19.13, HUBZone Small Business Concerns; joint venture agreement needs to be Historically Underutilized Business FAR 52.219–14, Limitations on approved by the SBA by ‘‘the time of Zone (HUBZone) Program; 19.14, Subcontracting; FAR 52.219–27, Notice submission of offer.’’ This rule proposes Service-Disabled Veteran-Owned Small of Service-Disabled Veteran-Owned clarifications to prevent the improper Business Procurement Program; and Small Business Set-Aside; FAR 52.219– elimination of 8(a) joint venture 19.15, Women-Owned Small Business 29, Notice of Set-Aside for, or Sole proposals in the future. Program. Similar text is also added to Source Award to, Economically the following provisions and clauses: Disadvantaged Women-Owned Small II. Discussion and Analysis FAR 52.212–3, Offeror Representations Business Concerns; and FAR 52.219–30, The proposed changes to the FAR are and Certifications—Commercial Items; Notice of Set-Aside for, or Sole Source summarized in the following FAR 52.219–1, Small Business Program Award to, Women-Owned Small paragraphs. Representations; FAR 52.219–8, Business Concerns Eligible Under the A. Definition of ‘‘small business Utilization of Small Business Concerns; Women-Owned Small Business concern.’’ The definition of ‘‘small FAR 52.219–18, Notification of Program. business concern’’ is revised in subpart Competition Limited to Eligible 8(a) III. Applicability to Contracts at or 2.1, as well as in the following Participants; FAR 52.219–27, Notice of Below the Simplified Acquisition provisions and clauses: FAR 52.212–3, Service-Disabled Veteran-Owned Small Threshold (SAT) and for Commercial Offeror Representations and Business Set-Aside; FAR 52.219–29, Items, Including Commercially Certification—Commercial Items; FAR Notice of Set-Aside for, or Sole Source Available Off-the-Shelf (COTS) Items 52.219–1, Small Business Program Award to, Economically Disadvantaged Representations; FAR 52.219–8, Women-Owned Small Business This rule proposes to amend subparts Utilization of Small Business Concerns; Concerns; and FAR 52.219–30, Notice of 2.1, Definitions, 9.1, Responsible and FAR 52.219–28, Post-Award Small Set-Aside for, or Sole Source Award to, Prospective Contractors, and 15.3, Business Program Rerepresentation. Women-Owned Small Business Source Selection; multiple subparts of This revision removes extraneous Concerns Eligible Under the Women- part 19, Small Business Programs; and material concerning how to determine Owned Small Business Program. multiple provisions and clauses related whether a small business concern is D. Subpart 19.7, The Small Business to small business programs. The ‘‘not dominant in its field of operation.’’ Subcontracting Program. This subpart is objective of this rule is to update the That determination is made by SBA and amended to remove instructions for FAR to align with SBA regulations is addressed in SBA regulations at 13 contractors that already exist in the regarding joint ventures and to provide CFR 121.102(b). clause at FAR 52.219–8, Utilization of clarifications for 8(a) joint ventures. B. Consideration of past performance Small Business Concerns. The Federal Acquisition Regulatory of parties to a joint venture. This rule E. Subpart 19.8, Contracting with the (FAR) Council has made the following clarifies that the contracting officer shall Small Business Administration (the 8(a) preliminary determinations with respect consider the past performance of the Program). This subpart is amended to to the proposed rule’s application of joint venture. If the joint venture does add language to FAR sections 19.804–3, section 1641 of the NDAA for FY 2013 not demonstrate past performance for SBA acceptance, and 19.805–2, to contracts at or below the simplified award, the contracting officer shall Procedures, to clarify that at least one acquisition threshold (SAT) and for the consider the past performance of each party to the joint venture must be acquisition of commercial items. The party to the joint venture when making certified as an 8(a) program participant Administrator for Federal Procurement a responsibility determination and at the time of proposal submission and Policy has made the following when past performance is an evaluation that the 8(a) joint venture agreement preliminary determination with respect factor for source selection. This shall be approved prior to contract to commercially available off-the-shelf clarification is made in subpart 9.1, award. In addition, pursuant to 13 CFR (COTS) items. Discussion of these Responsible Prospective Contractors, 124.503 and 13 CFR 124.507, language preliminary determinations is set forth and in subpart 15.3, Source Selection. is added to clarify the general time below. The FAR Council will consider C. Qualification of joint ventures as period within which SBA expects to public feedback before making a final small business concerns. Subpart 19.3, approve the joint venture agreement determination on the scope of the final Determination of Small Business Status prior to award and the procedure to rule. for Small Business Programs, is follow if a response is not received amended to address how a joint venture within that time period. The rule also A. Applicability to Contracts at or Below may qualify for an award as a small proposes to delete text from 19.805–2(b) the SAT business concern or under the relating to how SBA determines Pursuant to 41 U.S.C. 1905, a socioeconomic programs. A joint eligibility because it creates confusion provision of law is not applicable to venture may qualify as a small business regarding the timing of SBA’s acquisitions at or below the SAT unless concern if each participant in the joint determination. the law (i) contains criminal or civil venture qualifies as small under the size F. Performance requirement for penalties; (ii) specifically refers to 41 standard for the solicitation; or the certain joint ventures. This rule U.S.C. 1905 and states that the law
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applies to acquisitions at or below the joint ventures. Exclusion of these written determination as provided at 41 SAT; or (iii) the FAR Council makes a acquisitions would create confusion U.S.C. 1906. written determination that it is not in among contractors and the Federal The law furthers the Administration’s the best interest of the Federal contracting workforce. Under the FAR goal of supporting small business. It Government to exempt contracts or clauses amended by this rule, advances the interests of small business subcontracts at or below the SAT. If contractors are already required to concerns by allowing for more joint none of these conditions are met, the comply with small business program ventures that include a small business FAR is required to include the statutory set-aside requirements. The effort to qualify as a small business or under requirement(s) on a list of provisions of required for contractors to comply with a socioeconomic program. Therefore, law that are inapplicable to acquisitions the new requirements will be relatively more small businesses can qualify for at or below the SAT. small. set-aside procurements. Exclusion of a The purpose of this rule is to For these reasons, it is in the best large segment of Federal contracting, implement section 1641 of the NDAA interest of the Federal Government to such as acquisitions for commercial for FY 2013. Section 1641 authorized apply the requirements of the rule to items, will limit the full implementation the SBA Administrator to establish acquisitions at or below the SAT. of these objectives. mentor-prote´ge´ programs for small The provisions and clauses proposed B. Applicability to Contracts for the business concerns, SDVOSB concerns, for revision in this rule currently apply Acquisition of Commercial Items WOSB concerns in the WOSB Program, to all solicitations and contracts, as and HUBZone small business concerns Pursuant to 41 U.S.C. 1906, applicable, including those for modeled on the mentor-prote´ge´ program acquisitions of commercial items (other acquisition of commercial items. The under section 8(a) of the Small Business than acquisitions of COTS items, which proposed rule continues the existing Act (15 U.S.C. 637(a)). are addressed in 41 U.S.C. 1907) are applicability to the acquisition of These statutory requirements are exempt from a provision of law unless commercial items as defined at FAR reflected in SBA’s final rule published the law (i) contains criminal or civil 2.101. Exclusion of acquisitions for in the Federal Register at 81 FR 48558, penalties; (ii) specifically refers to 41 commercial items from these on July 25, 2016, which did not exempt U.S.C. 1906 and states that the law requirements would create confusion acquisitions at or below the SAT. applies to acquisitions of commercial among contractors and the Federal The law is silent on the applicability items; or (iii) the FAR Council makes a contracting workforce. Under the FAR of these requirements to acquisitions at written determination and finding that clauses amended by this rule, or below the SAT and does not it would not be in the best interest of the contractors are already required to independently provide for criminal or Federal Government to exempt contracts comply with small business program civil penalties; nor does it include terms for the procurement of commercial set-aside requirements. The effort making express reference to 41 U.S.C. items from the provision of law. If none required for contractors to comply with 1905 and its application to acquisitions of these conditions are met, the FAR is the new requirements will be relatively at or below the SAT. Therefore, it does required to include the statutory small. not apply to acquisitions at or below the requirement(s) on a list of provisions of For these reasons, it is in the best SAT unless the FAR Council makes a law that are inapplicable to acquisitions interest of the Federal Government to written determination as provided at 41 of commercial items. apply the requirements of the rule to the U.S.C. 1905. The purpose of this rule is to acquisition of commercial items. Application of the law to acquisitions implement section 1641 of the NDAA at or below the SAT will ensure that the for FY 2013. Section 1641 allows a joint C. Applicability to Contracts for the benefits from socioeconomic set-aside venture comprised of a prote´ge´ and its Acquisition of COTS Items and sole source contracts flow to the mentor to qualify as a small business or Pursuant to 41 U.S.C. 1907, intended parties. According to the under a socioeconomic program for acquisitions of COTS items will be Federal Procurement Data System, an which the prote´ge´ qualifies and exempt from a provision of law unless average of 283,374 contracts per year implements SBA regulations the law (i) contains criminal or civil resulted from FAR part 19 set-asides establishing mentor-prote´ge´ programs penalties; (ii) specifically refers to 41 and sole-source awards at or below the for small business concerns, SDVOSB U.S.C. 1907 and states that the law simplified acquisition threshold during concerns, WOSB concerns in the WOSB applies to acquisitions of COTS items; fiscal years 2016–2018. Not applying Program, and HUBZone small business (iii) concerns authorities or section 1641 to the maximum extent concerns modeled on the mentor- responsibilities under the Small possible would exclude a significant prote´ge´ program under section 8(a) of Business Act (15 U.S.C. 644) or bid number of acquisitions and impede the the Small Business Act (15 U.S.C. protest procedures developed under the Administration’s objectives to assist 637(a)). authority of 31 U.S.C. 3551 et seq., 10 small businesses, including SDVOSB, These statutory requirements are U.S.C. 2305(e) and (f), or 41 U.S.C. 3706 HUBZone small business, and WOSB reflected in SBA’s final rule published and 3707; or (iv) the Administrator for concerns, to succeed in enhancing their in the Federal Register at 81 FR 48558, Federal Procurement Policy makes a capabilities and improving their ability on July 25, 2016, which did not exempt written determination and finding that to successfully compete for both acquisitions of commercial items. it would not be in the best interest of the Government and commercial contracts. The law is silent on the applicability Federal Government to exempt contracts The provisions and clauses proposed of these requirements to acquisitions of for the procurement of COTS items from for revision in this rule currently apply commercial items and does not the provision of law. If none of these to all solicitations and contracts, as independently provide for criminal or conditions are met, the FAR is required applicable, including those at or below civil penalties; nor does it include terms to include the statutory requirement(s) the SAT. The proposed rule continues making express reference to 41 U.S.C. on a list of provisions of law that are the existing applicability to solicitations 1906 and its application to acquisitions inapplicable to acquisitions of COTS and contracts below the SAT, while of commercial items. Therefore, it does items. revising these clauses to implement the not apply to acquisitions of commercial The purpose of this rule is to requirements of section 1641 concerning items unless the FAR Council makes a implement section 1641 of the NDAA
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for FY 2013. Section 1641 allows a joint IV. Executive Orders 12866 and 13563 approved by the SBA by the time of offer venture comprised of a prote´ge´ and its submission. The procuring agency had Executive Orders (E.O.s) 12866 and interpreted existing text in the clause at FAR mentor to qualify as a small business or 13563 direct agencies to assess all costs under a socioeconomic program for 52.219–18 to require 8(a) joint ventures be and benefits of available regulatory certified by SBA and for the joint venture which the prote´ge´ qualifies, and alternatives and, if regulation is agreement to be approved by SBA at time of implements SBA regulations necessary, to select regulatory offer submission. Clarification for contracting establishing mentor-prote´ge´ programs approaches that maximize net benefits officers is necessary in the FAR to more for small business concerns, SDVOSB (including potential economic, clearly reflect SBA’s regulations at 13 CFR concerns, WOSB concerns in the WOSB environmental, public health and safety 124.503(a), 124.507(b), and 124.513(e) as well Program, and HUBZone small business as GAO’s bid protest decision. effects, distributive impacts, and The proposed rule may have a significant concerns modeled on the mentor- equity). E.O. 13563 emphasizes the prote´ge´ program under section 8(a) of economic impact on a substantial number of importance of quantifying both costs small entities within the meaning of the the Small Business Act (15 U.S.C. and benefits, of reducing costs, of Regulatory Flexibility Act, 5 U.S.C. 601, et 637(a)). harmonizing rules, and of promoting seq. This rule will impact small business These statutory requirements are flexibility. This is not a significant joint ventures and small business entities in reflected in SBA’s final rule published regulatory action and, therefore, was not an SBA mentor-prote´ge´ program. Based on in the Federal Register at 81 FR 48558, subject to review under section 6(b) of joint venture data in the System for Award on July 25, 2016, which did not exempt Management (SAM), the estimated number of E.O. 12866, Regulatory Planning and small business joint ventures is 3,500. acquisitions of COTS items. Review, dated September 30, 1993. This Assuming that each joint venture includes 2 The law is silent on the applicability rule is not a major rule under 5 U.S.C. small businesses, the number of small of these requirements to acquisitions of 804. entities impacted is 7,000. According to SBA’s final rule, there are an estimated 2,000 COTS items and does not independently V. Executive Order 13771 provide for criminal or civil penalties; pairs of mentors and prote´ge´s that may be nor does it include terms making This rule is not expected to be subject impacted. Therefore, the estimated number of to E.O. 13771, because this rule is not total small entities to which the rule applies express reference to 41 U.S.C. 1907 and is 9,000. its application to acquisitions of COTS a significant regulatory action under E.O. 12866. This proposed rule does not include any items. Therefore, it does not apply to recordkeeping or other compliance acquisitions of COTS items unless the VI. Regulatory Flexibility Act requirements for small businesses. Joint Administrator for Federal Procurement ventures will be required to represent This proposed rule may have a themselves as small businesses in accordance Policy makes a written determination as significant economic impact on a provided at 41 U.S.C. 1907. with the updated representation provisions at substantial number of small entities FAR 52.212–3 or 52.219–1. Representation is Section 1641 furthers the within the meaning of the Regulatory currently required for all small entities doing Administration’s goal of supporting Flexibility Act, 5 U.S.C. 601 et seq. The business with the Government; small business. It advances the interests Initial Regulatory Flexibility Analysis representation is not a new requirement. The of small business concerns by allowing (IRFA) is summarized as follows: number of options for the entities to select for more joint ventures that include a from has increased to include joint venture DoD, GSA, and NASA are proposing to options; however the number of selections a small business to qualify as a small amend the FAR to update joint venture business concern or under a small entity must make (i.e., check boxes) has requirements to align with the changes SBA not increased. Therefore, the potential impact socioeconomic program. Therefore, made in its final rule dated July 25, 2016 (81 is minimal. more small businesses can qualify for FR 48558), and to add clarifications regarding This rule may have a positive economic set-aside procurements. Exclusion of a 8(a) joint ventures to address issues impact on small entities. The updated SBA large segment of Federal contracting, identified in a GAO protest decision (B– regulations allow for more joint ventures that such as acquisitions for COTS items, 409520). include a small business to qualify as a small Section 1347 of the Small Business Jobs business or under a socioeconomic program; will limit the full implementation of Act of 2010 and section 1641 of the NDAA and therefore, more small businesses can these objectives. for FY 2013 authorized SBA to establish qualify for set-aside procurements. mentor-prote´ge´ programs for small business The provisions and clauses proposed This proposed rule does not duplicate, concerns, service-disabled veteran-owned for revision in this rule currently apply overlap, or conflict with any other Federal small business concerns, women-owned to all solicitations and contracts, as rules. applicable, including those for small business concerns in the Women- Owned Small Business (WOSB) Program, and There are no known significant alternative acquisition of COTS items. The HUBZone small business concerns. SBA approaches to the proposed rule. proposed rule continues the existing issued a final rule (81 FR 48558) that The Regulatory Secretariat Division applicability to the acquisition of COTS implemented the mentor-prote´ge´ programs at has submitted a copy of the IRFA to the items as defined at FAR 2.101. 13 CFR 125.9. SBA’s final rule allows a joint Chief Counsel for Advocacy of the SBA. ´ ´ Exclusion of these acquisitions would venture comprised of a protege and its A copy of the IRFA may be obtained mentor to qualify as a small business or create confusion among contractors and from the Regulatory Secretariat the Federal contracting workforce. under a socioeconomic program for which ´ ´ Division. DoD, GSA, and NASA invite Under the FAR clauses amended by this the protege qualifies. The rule also revised the requirements for joint ventures outside comments from small business concerns rule, contractors are already required to the mentor-prote´ge´ programs to qualify as and other interested parties on the comply with small business program small or for one of the socioeconomic expected impact of this rule on small set-aside requirements. The effort programs. Updates are required in the FAR entities. required for contractors to comply with to reflect these regulatory changes. DoD, GSA, and NASA will also the new requirements will be relatively On May 29, 2014, the GAO sustained a consider comments from small entities small. protest (B–409520, BGI-Fiore JV, LLC) concerning the existing regulations in because an 8(a) joint venture proposal was For these reasons, it is in the best improperly eliminated on the grounds that subparts affected by this rule in interest of the Federal Government to the joint venture had not been certified for accordance with 5 U.S.C. 610. Interested apply the requirements of the rule to the the 8(a) program by the SBA and that the parties must submit comments acquisition of COTS items. joint venture agreement had not been separately and should cite 5 U.S.C. 610
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(FAR case 2017–019) in contracting officer shall consider the (A) Each party to the joint venture correspondence. past performance of the joint venture. If qualifies as small under the size the joint venture does not demonstrate standard for the solicitation; or VII. Paperwork Reduction Act past performance for award, the (B) The prote´ge´ is small under the size The Paperwork Reduction Act (44 contracting officer shall consider the standard for the solicitation in a joint U.S.C. chapter 35) applies as this past performance of each party to the venture comprised of a mentor and proposed rule contains information joint venture. prote´ge´ with an approved mentor- collection requirements. This rule * * * * * prote´ge´ agreement under an SBA affects the certification and information mentor-prote´ge´ program. collection requirements in the PART 15—CONTRACTING BY (ii) A joint venture may qualify for an provisions at FAR 52.212–3, Offeror NEGOTIATION award under the socioeconomic Representations and Certifications— programs as described in subparts 19.8, Commercial Items, and 52.204–7, ■ 4. Amend section 15.305 by adding 19.13, 19.14, and 19.15. System for Award Management, paragraph (a)(2)(vi) to read as follows: * * * * * currently approved under OMB Control ■ 15.305 Proposal evaluation. 6. Amend section 19.703 by revising Numbers 9000–0136 and 9000–0097, paragraph (d) to read as follows: respectively. The impact, however, is (a) * * * negligible because the public reporting (2) * * * 19.703 Eligibility requirements for participating in the program. burden for these collections remains (vi) For offerors that are joint unchanged from the approved burden. ventures, the evaluation shall take into * * * * * account past performance of the joint (d) Protests challenging the List of Subjects in 48 CFR Parts 2, 9, 15, socioeconomic status of a HUBZone 19, and 52 venture. If the joint venture does not demonstrate past performance for small business concern must be filed in Government procurement. award, the contracting officer shall accordance with 13 CFR 126.801. * * * * * William F. Clark, consider the past performance of each party to the joint venture. ■ 7. Amend section 19.804–3, in Director, Office of Government-wide paragraph (c) introductory text, by * * * * * Acquisition Policy, Office of Acquisition adding a sentence to the end of the Policy, Office of Government-wide Policy. PART 19—SMALL BUSINESS paragraph to read as follows: Therefore, DoD, GSA, and NASA PROGRAMS propose amending 48 CFR parts 2, 9, 15, 19.804–3 SBA acceptance. 19, and 52 as set forth below: ■ 5. Amend section 19.301–1 by * * * * * ■ 1. The authority citation for 48 CFR revising paragraph (a) to read as follows: (c) * * * For a joint venture, SBA parts 2, 9, 15, 19, and 52 continues to will determine eligibility as part of its read as follows: 19.301–1 Representation by the offeror. acceptance of a sole source requirement (a)(1) To be eligible for award as a and will approve the joint venture Authority: 40 U.S.C. 121(c); 10 U.S.C. agreement prior to award in accordance chapter 137; and 51 U.S.C. 20113. small business concern identified in 19.000(a)(3), an offeror is required to with 13 CFR 124.513(e). PART 2—DEFINITIONS OF WORDS represent in good faith— * * * * * AND TERMS (i)(A) That it meets the small business ■ 8. Amend section 19.805–2 by revising paragraph (b) introductory text, ■ 2. Amend section 2.101, in paragraph size standard corresponding to the North American Industry Classification and adding paragraphs (d) and (e) to (b) by revising the definition of ‘‘Small read as follows: business concern’’ to read as follows: System (NAICS) code identified in the solicitation; or 19.805–2 Procedures. 2.101 Definitions. (B) For a multiple-award contract * * * * * * * * * * where there is more than one NAICS (b) The SBA will determine the (b) * * * code assigned, that it meets the small eligibility of the apparent successful Small business concern means a business size standard for each distinct offeror. Eligibility is based on section concern, including its affiliates, that is portion or category (e.g., line item 8(a) program criteria. See paragraphs (d) independently owned and operated, not numbers, Special Item Numbers (SINs), and (e) of this section regarding dominant in its field of operation and sectors, functional areas, or the eligibility of joint ventures. qualified as a small business under the equivalent) for which it submits an * * * * * criteria and size standards in 13 CFR offer. If the small business concern (d)(1) SBA does not certify joint part 121 (see 19.102). submits an offer for the entire multiple- ventures, as entities, into the 8(a) * * * * * award contract, it must meet the size program. standard for each distinct portion or (2) A contracting officer may consider PART 9—CONTRACTOR category (e.g., line item number, SIN, a joint venture for contract award if the QUALIFICATIONS sector, functional area, or equivalent); SBA district office servicing the joint and ■ 3. Amend section 9.104–3 by venture approves the joint venture redesignating paragraph (c) as paragraph (ii) The Small Business agreement and provides a determination (c)(1) and adding paragraph (c)(2) to Administration (SBA) has not issued a of eligibility pursuant to 13 CFR read as follows: written determination stating otherwise 124.507(b) prior to contract award. pursuant to 13 CFR 121.1009. (e) If SBA does not approve the joint 9.104–3 Application of standards. (2)(i) A joint venture may qualify as venture agreement within 5 working * * * * * a small business concern if the joint days after receipt of the contracting (c)(1) * * * venture complies with the requirements activity’s request for an eligibility (2) Joint ventures. For a prospective of 13 CFR 121.103(h) and 13 CFR determination, the contracting activity contractor that is a joint venture, the 125.8(a) and (b) and if— may seek SBA’s approval through the
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SBA Associate Administrator for ■ g. Removing from the end of each party to the joint venture: lll Business Development. paragraph (c)(7)(i) ‘‘and’’ and adding ll.] Each WOSB concern eligible ■ 9. Amend section 19.1303 by revising ‘‘or’’ in its place; under the WOSB Program participating paragraph (c) to read as follows: ■ h. Revising paragraph (c)(7)(ii); in the joint venture shall provide ■ i. Removing from the end of paragraph representation of its WOSB status. 19.1303 Status as a HUBZone small (7) * * * business concern. (c)(10)(i) ‘‘13 CFR Part 126; and’’ and adding ‘‘13 CFR 126.200; or’’ in its (ii) It b is, b is not a joint venture that * * * * * place; and complies with the requirements of 13 (c) A joint venture may be considered ■ j. Revising paragraph (c)(10)(ii). CFR 127.506(a) through (c). [The offeror a HUBZone small business concern if— The revisions read as follows: shall enter the unique entity identifier of (1) The joint venture qualifies as small each party to the joint venture: lll under 19.301–1(a)(2)(i); 52.212–3 Offeror Representations and ll.] Each EDWOSB concern Certifications—Commercial Items. (2) At least one party to the joint participating in the joint venture shall venture is a HUBZone small business * * * * * provide representation of its EDWOSB concern; and status. (3) The joint venture complies with 13 Offeror Representations and Note to paragraphs (c)(8) and (9): CFR 126.616(a) through (c). Certifications—Commercial Items (DATE) Complete paragraphs (c)(8) and (9) only * * * * * if this solicitation is expected to exceed ■ 10. Amend section 19.1403 by * * * * * the simplified acquisition threshold. revising paragraph (c) to read as follows: Small business concern means a concern, including its affiliates, that is * * * * * (10) * * * 19.1403 Status as a service-disabled independently owned and operated, not veteran-owned small business concern. (ii) It b is, b is not a HUBZone joint dominant in its field of operation and venture that complies with the * * * * * qualified as a small business under the requirements of 13 CFR 126.616(a) (c) A joint venture may be considered criteria in 13 CFR part 121 and size through (c). [The offeror shall enter the a service-disabled veteran owned small standards in this solicitation. business concern if— unique entity identifier of each party to * * * * * (1) The joint venture qualifies as small the joint venture: lllll.] Each (c) * * * under 19.301–1(a)(2)(i); HUBZone small business concern (2) At least one party to the joint (1) Small business concern. The participating in the HUBZone joint venture is a service-disabled veteran- offeror represents as part of its offer venture shall provide representation of owned small business concern, and that— its HUBZone status. (i) It b is, b is not a small business makes the representations in paragraph * * * * * concern; or (b) of this section; and ■ 13. Amend section 52.212–5 by— (ii) It b is, b is not a small business (3) The joint venture complies with ■ a. Revising the date of the clause; joint venture that complies with the the requirements of 13 CFR 125.18(b). ■ b. Removing from paragraph (b)(11)(i) requirements of 13 CFR 121.103(h) and ‘‘(MAR 2020)’’ and adding ‘‘(DATE)’’ in * * * * * 13 CFR 125.8(a) and (b). [The offeror ■ its place; 11. Amend section 19.1503 by shall enter the unique entity identifier of ■ c. Removing from paragraph (b)(12)(i) revising paragraph (f) to read as follows: each party to the joint venture: lll ‘‘(MAR 2020)’’ and adding ‘‘(DATE)’’ in ll.] 19.1503 Status. its place; * * * * * * * * * * ■ d. Removing from paragraph (b)(16) (f) A joint venture may be considered (3) Service-disabled veteran-owned ‘‘(OCT 2018)’’ and adding ‘‘(DATE)’’ in an EDWOSB concern or WOSB concern small business concern. [Complete only its place; eligible under the WOSB Program if— if the offeror represented itself as a ■ e. Removing from paragraph (b)(17)(i) (1) The joint venture qualifies as small veteran-owned small business concern ‘‘(MAR 2020)’’ and adding ‘‘(DATE)’’ in under 19.301–1(a)(2)(i); in paragraph (c)(2) of this provision.] its place; (2) At least one party to the joint The offeror represents as part of its offer ■ f. Removing from paragraph (b)(19) venture is an EDWOSB or WOSB, and that— ‘‘(MAR 2020)’’ and adding ‘‘(DATE)’’ in complies with the criteria in paragraph (i) It b is, b is not a service-disabled its place; (b) of this section; and veteran-owned small business concern; ■ g. Removing from paragraph (b)(21) (3) The joint venture complies with or ‘‘(MAR 2020)’’ and adding ‘‘(DATE)’’ in the requirements of 13 CFR 127.506(a) (ii) It b is, b is not a joint venture that its place; through (c). complies with the requirements of 13 ■ h. Removing from paragraph (b)(22)(i) CFR 125.18(b)(1) and (2). [The offeror ‘‘(MAR 2020)’’ and adding ‘‘(DATE)’’ in PART 52—SOLICITATION PROVISIONS shall enter the unique entity identifier of its place; AND CONTRACT CLAUSES each party to the joint venture: lll ■ i. Removing from paragraph (b)(23) ■ 12. Amend section 52.212–3 by— ll.] Each service-disabled veteran- ‘‘(MAR 2020)’’ and adding ‘‘(DATE)’’ in ■ a. Revising the date of the provision; owned small business concern its place; ■ b. Removing from the introductory participating in the joint venture shall ■ j. Removing from paragraph (b)(24) text ‘‘(c) through (v))’’ and adding ‘‘(c) provide representation of its service- ‘‘(MAR 2020)’’ and adding ‘‘(DATE)’’ in through (v)’’ in its place; disabled veteran-owned small business its place; ■ c. In paragraph (a), revising the concern status. ■ k. Removing from paragraph (e)(1)(v) definition of ‘‘Small business concern’’; * * * * * ‘‘(OCT 2018)’’ and adding ‘‘(DATE)’’ in ■ d. Revising paragraphs (c)(1) and (3); (6) * * * its place; ■ e. Removing from the end of (ii) It b is, b is not a joint venture that ■ l. Revising the date of Alternate II; and paragraph (c)(6)(i) ‘‘and’’ and adding complies with the requirements of 13 ■ m. Removing from paragraph ‘‘or’’ in its place; CFR 127.506(a) through (c). [The offeror (e)(1)(ii)(E) of Alternate II ‘‘(OCT 2018)’’ ■ f. Revising paragraph (c)(6)(ii); shall enter the unique entity identifier of and adding ‘‘(DATE)’’ in its place.
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The revisions read as follows: (ii) It b is, b is not a small business The revisions read as follows: joint venture that complies with the 52.212–5 Contract Terms and Conditions requirements of 13 CFR 121.103(h) and 52.219–3 Notice of HUBZone Set-Aside or Required To Implement Statutes or Sole Source Award. Executive Orders—Commercial Items. 13 CFR 125.8(a) and (b). [The offeror shall enter the unique entity identifier of * * * * * * * * * * each party to the joint venture: lll Notice of HUBZone Set-Aside or Sole Contract Terms and Conditions ll.] Source Award (DATE) Required to Implement Statutes or * * * * * Executive Orders—Commercial Items (4) * * * * * * * * (DATE) (ii) It b is, b is not a joint venture that (f) Joint venture. A joint venture may complies with the requirements of 13 be considered a HUBZone concern if— * * * * * (1) At least one party to the joint Alternate II (DATE). * * * CFR 127.506(a) through (c). [The offeror shall enter the unique entity identifier of venture is a HUBZone small business * * * * * each party to the joint venture: lll concern and complies with 13 CFR ■ 14. Amend section 52.213–4 by— ll 126.616(c); and ■ a. Revising the date of the clause; and .] Each WOSB concern eligible ■ b. Removing from paragraph under the WOSB Program participating (2) Each party to the joint venture (a)(2)(viii) ‘‘(AUG 2019)’’ and adding in the joint venture shall provide qualifies as small under the size ‘‘(DATE)’’ in its place. representation of its WOSB status. standard for the solicitation, or the The revision reads as follows: * * * * * prote´ge´ is small under the size standard (5) * * * for the solicitation in a joint venture 52.213–4 Terms and Conditions— (ii) It b is, b is not a joint venture that comprised of a mentor and prote´ge´ with Simplified Acquisitions (Other Than complies with the requirements of 13 an approved mentor-prote´ge´ agreement Commercial Items). CFR 127.506(a) through (c). [The offeror under the SBA mentor-prote´ge´ program. * * * * * shall enter the unique entity identifier of (g) A HUBZone joint venture agrees Terms and Conditions—Simplified each party to the joint venture: lll that, in the performance of the contract, Acquisitions (Other Than Commercial ll.] Each EDWOSB concern the applicable percentage specified in Items) (DATE) participating in the joint venture shall paragraph (d) of this clause shall be provide representation of its EDWOSB performed by the aggregate of the parties * * * * * status. to the joint venture. At least 40 percent ■ 15. Amend section 52.219–1 by— ■ a. Revising the date of the provision; * * * * * of the aggregate work performed by the ■ b. In paragraph (a), revising the (7) [Complete only if the offeror joint venture shall be completed by the definition of ‘‘Small business concern’’; represented itself as a veteran-owned HUBZone small business parties to the ■ c. Revising paragraph (c)(1); small business concern in paragraph joint venture. Work performed by the ■ d. Removing from the end of (c)(6) of this provision.] The offeror HUBZone small business party or paragraph (c)(4)(i) ‘‘and’’ and adding represents as part of its offer that— parties to the joint venture must be more ‘‘or’’ in its place, and revising paragraph (i) It b is, b is not a service-disabled than administrative functions. (c)(4)(ii); veteran-owned small business concern; * * * * * ■ e. Removing from the end of or ■ 17. Amend section 52.219–4 by (ii) It b is, b is not a service-disabled paragraph (c)(5)(i) ‘‘and’’ and adding revising the clause title, date, and veteran-owned joint venture that ‘‘or’’ in its place; and revising paragraph paragraph (e) to read as follows: (c)(5)(ii); complies with the requirements of 13 ■ f. Revising paragraph (c)(7); and CFR 125.18(b)(1) and (2). [The offeror 52.219–4 Notice of Price Evaluation ■ g. Removing from the end of shall enter the unique entity identifier of Preference for HUBZone Small Business paragraph (c)(8)(i) ‘‘13 CFR Part 126; each party to the joint venture: lll Concerns. and’’ and adding ‘‘13 CFR 126.200; or’’ ll.] Each service-disabled veteran- * * * * * in its place, and revising paragraph owned small business concern Notice of Price Evaluation Preference (c)(8)(ii); participating in the joint venture shall The revisions read as follows: provide representation of its service- for HUBZone Small Business Concerns disabled veteran-owned small business (DATE) 52.219–1 Small Business Program concern status. * * * * * Representations. (8) * * * (e) A HUBZone joint venture agrees * * * * * (ii) It b is, b is not a HUBZone joint that, in the performance of the contract, venture that complies with the Small Business Program the applicable percentage specified in requirements of 13 CFR 126.616(a) Representations (DATE) paragraph (d) of this clause shall be through (c). [The offeror shall enter the performed by the aggregate of the parties * * * * * unique entity identifier of each party to to the joint venture. At least 40 percent Small business concern means a the joint venture: lllll.] Each concern, including its affiliates, that is of the aggregate work performed by the HUBZone small business concern joint venture shall be completed by the independently owned and operated, not participating in the HUBZone joint dominant in its field of operation and HUBZone small business parties to the venture shall provide representation of joint venture. Work performed by the qualified as a small business under the its HUBZone status. criteria in 13 CFR part 121 and the size HUBZone small business parties to the * * * * * joint venture must be more than standard in paragraph (b) of this ■ 16. Amend section 52.219–3 by— administrative functions. provision. ■ a. Revising the date of the clause; * * * * * ■ b. Redesignating paragraphs (f) and (g) * * * * * (c) * * * (1) The offeror represents as as paragraphs (g) and (h), and adding a ■ 18. Amend section 52.219–8 by— part of its offer that— new paragraph (f); and ■ a. Revising the date of the clause; (i) It b is, b is not a small business ■ c. Revising the newly redesignated ■ b. In paragraph (a), revising the concern; or paragraph (g). definition ‘‘Small business concern’’;
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■ c. Redesignating paragraphs (c) and 52.219–9 Small Business Subcontracting with the criteria set forth in paragraph (d) as paragraphs (d) and (e), and adding Plan. (a)(1) of this clause, that complies with a new paragraph (c); and * * * * * 13 CFR 124.513(c); or ■ d. Revising the newly redesignated (3) A joint venture— Small Business Subcontracting Plan paragraph (e)(5) introductory text. (i) That is comprised of a mentor and (DATE) The revisions read as follows: an 8(a) prote´ge´ with an approved * * * * * mentor-prote´ge´ agreement under the 52.219–8 Utilization of Small Business ■ 20. Amend section 52.219–14 by 8(a) program; Concerns. revising the date of the clause and (ii) In which at least one of the 8(a) * * * * * adding paragraph (e) to read as follows: program participants that is a party to Utilization of Small Business Concerns 52.219–14 Limitations on Subcontracting. the joint venture complies with the (DATE) criteria set forth in paragraph (a)(1) of * * * * * this clause; and * * * * * (iii) That complies with 13 CFR (a) * * * Limitations on Subcontracting (DATE) 124.513(c). Small business concern means a * * * * * concern, including its affiliates, that is (e) Joint ventures. (1) In a joint * * * * * independently owned and operated, not venture comprised of a small business (e) 8(a) joint ventures. The dominant in its field of operation and prote´ge´ and its mentor approved by the Contracting Officer may consider a joint qualified as a small business under the Small Business Administration, the venture for contract award if SBA criteria and size standards in 13 CFR small business prote´ge´ shall perform at approves the joint venture agreement part 121, including the size standard least 40 percent of the work performed and provides a determination of that corresponds to the NAICS code by the joint venture. Work performed by eligibility pursuant to 13 CFR assigned to the contract or subcontract. the small business prote´ge´ in the joint 124.507(b) prior to contract award. * * * * * venture must be more than * * * * * (c)(1) A joint venture qualifies as a administrative functions. Alternate I (DATE). If the competition small business concern if— (2) In an 8(a) joint venture, the 8(a) is to be limited to 8(a) participants (i) Each party to the joint venture participant(s) shall perform at least 40 within one or more specific SBA regions qualifies as small under the size percent of the work performed by the or districts, add the following paragraph standard for the solicitation; or joint venture. Work performed by the (a)(1)(iii) to paragraph (a) of the clause: (ii) The prote´ge´ is small under the size 8(a) participants in the joint venture (iii) The offeror’s approved business standard for the solicitation in a joint must be more than administrative plan is on the file and serviced by ll venture comprised of a mentor and functions. lll[ [Contracting Officer completes prote´ge´ with an approved mentor- * * * * * by inserting the appropriate SBA prote´ge´ agreement under a SBA mentor- ■ 21. Amend section 52.219–18 by— District and/or Regional Office(s) as prote´ge´ program. ■ a. Revising the date of the clause and identified by the SBA]. (2) A joint venture qualifies as— paragraph (a); ■ 22. Amend section 52.219–27 by— (i) A service-disabled veteran-owned ■ b. Removing from paragraph (b) ‘‘all of ■ a. Revising the date of the clause, and small business concern if it complies the’’ and adding ‘‘the applicable’’ in its paragraph (f); and with the requirements in 13 CFR part place; and ■ b. Adding paragraph (g). 125; or ■ c. Adding paragraph (e); The revisions and addition read as (ii) A HUBZone small business ■ d. Revising Alternate I. follows: The revisions and addition read as concern if it complies with the 52.219–27 Notice of Service-Disabled requirements in 13 CFR 126.616(a) follows: Veteran-Owned Small Business Set-Aside. through (c). 52.219–18 Notification of Competition * * * * * * * * * * Limited to Eligible 8(a) Participants. Notice of Service-Disabled Veteran- (e) * * * * * * * * (5) The Contractor shall confirm that Owned Small Business Set-Aside a subcontractor representing itself as a Notification of Competition Limited to (DATE) HUBZone small business concern is Eligible 8(a) Participants (DATE) * * * * * certified by SBA as a HUBZone small (a) Offers are solicited only from— (f) A joint venture may be considered business concern. If the subcontractor is (1) Small business concerns expressly a service-disabled veteran owned small a joint venture, the Contractor shall certified by the Small Business business concern if— confirm that at least one party to the Administration (SBA) for participation (1) At least one party to the joint joint venture is certified by SBA as a in the SBA’s 8(a) program and which venture complies with the criteria HUBZone small business concern. The meet the following criteria at the time of defined in paragraph (a) of this clause Contractor may confirm the submission of offer— and 13 CFR 125.18(b)(2); and representation by accessing the System (i) The Offeror is in conformance with (2) Each party to the joint venture is for Award Management or contacting the 8(a) support limitation set forth in small under the size standard SBA. Options for contacting the SBA its approved business plan; and corresponding to the NAICS code include— (ii) The Offeror is in conformance assigned to the procurement, or the * * * * * with the Business Activity Targets set prote´ge´ is small under the size standard ■ 19. Amend section 52.219–9 by— forth in its approved business plan or corresponding to the NAICS code ■ a. Revising the date of the clause; and any remedial action directed by the assigned to the procurement in a joint ■ b. Removing from paragraph (e)(4) SBA; or venture comprised of a mentor and ‘‘52.219–8(d)(2)’’ and adding ‘‘52.219– (2) A joint venture, in which at least prote´ge´ with an approved mentor- 8(e)(2)’’ in its place. one of the 8(a) program participants that prote´ge´ agreement under an SBA The revision reads as follows: is a party to the joint venture complies mentor-prote´ge´ program.
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(g) In a joint venture that complies an approved mentor-prote´ge´ agreement Subcontracts for Commercial Items with paragraph (f) of this clause, the under the SBA mentor-prote´ge´ program. (DATE) service-disabled veteran-owned small (g) In a joint venture that complies * * * * * business party or parties to the joint with paragraph (f) of this clause, the [FR Doc. 2020–11159 Filed 6–4–20; 8:45 am] venture shall perform at least 40 percent EDWOSB party or parties to the joint BILLING CODE 6820–EP–P of the work performed by the joint venture shall perform at least 40 percent venture. Work performed by the service- of the work performed by the joint disabled veteran-owned small business venture. Work performed by the DEPARTMENT OF DEFENSE party or parties to the joint venture must EDWOSB party or parties to the joint be more than administrative functions. venture must be more than Defense Acquisition Regulations * * * * * administrative functions. System ■ 23. Amend section 52.219–28 by * * * * * revising the date of the clause, and in 48 CFR Parts 204, 212, and 252 ■ 25. Amend section 52.219–30 by— paragraph (a) revising the definition of [Docket DARS–2020–0007] ‘‘Small business concern’’ to read as ■ a. Revising the date of the clause and follows: paragraph (f); and RIN 0750–AK30 ■ 52.219–28 Post-Award Small Business b. Adding paragraph (g). Defense Federal Acquisition Program Rerepresentation. The revisions and addition read as Regulation Supplement: Data * * * * * follows: Collection and Inventory for Services Contracts (DFARS Case 2018–D063) Post-Award Small Business Program 52.219–30 Notice of Set-Aside for, or Sole Rerepresentation (DATE) Source Award to, Women-Owned Small AGENCY: Defense Acquisition Business Concerns Eligible Under the Regulations System, Department of (a) * * * Women-Owned Small Business Program. Defense (DoD). Small business concern means a * * * * * concern, including its affiliates, that is ACTION: Proposed rule. Notice of Set-Aside for, or Sole Source independently owned and operated, not SUMMARY: DoD is proposing to amend dominant in its field of operation and Award to, Women-Owned Small the Defense Federal Acquisition qualified as a small business under the Business Concerns Eligible Under the Regulation Supplement to implement a criteria in 13 CFR part 121 and the size Women-Owned Small Business section of the United States Code that standard in paragraph (d) of this clause. Program (DATE) requires the collection of data on certain * * * * * * * * * * DoD service contracts. ■ 24. Amend section 52.219–29 by— DATES: Comments on the proposed rule ■ (f) Joint Venture. A joint venture may a. Revising the date of the clause; be considered a WOSB concern eligible should be submitted in writing to the ■ b. In paragraph (a), in the definition under the WOSB Program if— address shown below on or before ‘‘Economically disadvantaged women- (1) At least one party to the joint August 4, 2020, to be considered in the owned small business (EDWOSB)’’ formation of a final rule. removing ‘‘It automatically’’ and adding venture complies with the criteria ADDRESSES: Submit comments ‘‘An EDWOSB concern automatically’’ defined in paragraph (a) and (c)(3) of identified by DFARS Case 2018–D063, in its place; this clause, and 13 CFR 127.506(c); and using any of the following methods: ■ c. Revising paragraph (f); and (2) Each party to the joint venture Æ Regulations.gov: http:// ■ d. Adding a new paragraph (g). qualifies as small under the size www.regulations.gov. Search for The revisions and addition read as standard for the solicitation, or the ‘‘DFARS Case 2018–D063’’ under the follows: prote´ge´ is small under the size standard heading ‘‘Enter keyword or ID’’ and for the solicitation in a joint venture 52.219–29 Notice of Set-Aside for, or Sole select ‘‘Search.’’ Select ‘‘Comment comprised of a mentor and prote´ge´ with Source Award to, Economically Now’’ and follow the instructions an approved mentor-prote´ge´ agreement Disadvantaged Women-Owned Small provided to submit a comment. Please under the SBA mentor-prote´ge´ program. Business Concerns. include ‘‘DFARS Case 2018–D063’’ on * * * * * (g) In a joint venture that complies any attached document. with paragraph (f) of this clause, the Æ Email: [email protected]. Include Notice of Set-Aside for, or Sole Source WOSB party or parties to the joint DFARS Case 2018–D063 in the subject Award to, Economically Disadvantaged venture shall perform at least 40 percent line of the message. Women-Owned Small Business of the work performed by the joint Æ Fax: 571–372–6094. Concerns (DATE) venture. Work performed by the WOSB Æ Mail: Defense Acquisition * * * * * party or parties to the joint venture must Regulations System, Attn: Ms. Carrie (f) Joint Venture. A joint venture may be more than administrative functions. Moore, OUSD(A&S)DPC/DARS, Room be considered an EDWOSB concern if— * * * * * 3B941, 3060 Defense Pentagon, (1) At least one party to the joint ■ 26. Amend section 52.244–6 by— Washington, DC 20301–3060. venture complies with the criteria Comments received generally will be defined in paragraph (a) and paragraph ■ a. Revising the date of the clause; and posted without change to http:// (c)(3) of this clause, and 13 CFR ■ b. Removing from paragraph (c)(1)(vii) www.regulations.gov, including any 127.506(c); and ‘‘(OCT 2018)’’ and adding ‘‘(DATE)’’ in personal information provided. To (2) Each party to the joint venture its place. confirm receipt of your comment(s), qualifies as small under the size The revision reads as follows: please check www.regulations.gov, standard for the solicitation, or the approximately two to three days after prote´ge´ is small under the size standard 52.244–6 Subcontracts for Commercial submission to verify posting (except for the solicitation in a joint venture Items. allow 30 days for posting of comments comprised of a mentor and prote´ge´ with * * * * * submitted by mail).
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FOR FURTHER INFORMATION CONTACT: Ms. annual basis when they are awarded a functions. An exception for services that Carrie Moore, telephone 571–372–6093. DoD contract or task order that is valued meet the definition of a commercial SUPPLEMENTARY INFORMATION: in excess of $3 million and is for item would exclude significant sums logistics management services, expended by DoD on commercial I. Background equipment related services, knowledge- service acquisitions intended to be Under Defense Federal Acquisition based services, or electronics and covered by the law. Therefore, services Regulation System (DFARS) case 2012– communications services. meeting the definition of a commercial D051, DoD published a proposed rule in When applicable, contractors will be item are not exempt from the reporting the Federal Register at 79 FR 32522 on required to annually report: (1) The total requirement. June 5, 2014, to implement section 807 dollar amount invoiced for, and (2) the Comment: Several respondents of the National Defense Authorization total number of direct labor hours recommended that firm fixed-price Act (NDAA) for Fiscal Year (FY) 2008 expended on services performed under service contracts be exempt from the (10 U.S.C. 2330a). Section 807 required the contract or task order during the ECMRA reporting requirement, because DoD to: Establish a data collection preceding fiscal year. The total number these contracts acquire services in their system that provides certain data on the of direct labor hours reported to SAM entirety, not as individuals (full-time purchasing of services by DoD, and should be the total of both the equivalents). submit to Congress an annual inventory contractor hours and its subcontractors’ Response: In accordance with of service contracts awarded by or on hours. A new basic DFARS clause and paragraph (b) of 10 U.S.C. 2330a, the behalf of the DoD. The proposed rule an alternate I clause have been created data required to be collected under the required contractors to enter the to advise applicable contractors of the statute includes service contracts and contract data required by the statute into policy and requirements for reporting orders that contain firm fixed-prices for a DoD-unique database, Enterprise data in SAM. the specific tasks to be performed. Contractor Manpower Reporting B. Analysis of Public Comments Therefore, firm fixed-price contracts for Application (ECMRA). Fourteen the applicable services are not exempt respondents submitted comments in DoD reviewed the public comments under the proposed rule. response to the proposed rule. received in response to DFARS Case Comment: One respondent Subsequently, section 812 of the 2012–D051. A discussion of the recommended that the rule exempt DoD NDAA for FY 2017 amended 10 U.S.C. comments is provided as follows: intelligence community agency 2330a to narrow the scope of contracts 1. Exemptions contracts, because the existing to which the data collection Comment: Several respondents exemption for ‘‘classified services’’ is requirement applies. As a result, DFARS recommended that the rule exempt not sufficient to cover the exempt Case 2012–D051 was closed and rolled certain areas including: Research and contracts entered into by DoD into this new DFARS case to implement development projects; architect and intelligence community agencies. 10 U.S.C. 2330a, as amended. engineering services; Response: The statute does not Under a similar but different statute, provide for exemptions to the reporting Federal agencies, other than DoD, are telecommunications and transmission and internet; and actions using criteria requirement; therefore, the proposed required by Federal Acquisition rule does not provide for exemptions, in Regulation (FAR) subpart 4.17 to report similar to the Service Contract Labor Standards exemptions in FAR 22.1003– order to comply with the law. annually on activities performed by Comment: One respondent service contractors. Since the 4(d)(1). Response: This rule implements 10 recommended that, due to the difficulty publication of the proposed rule DFARS U.S.C. 2330a, as amended by section in tracking labor for service contracts case 2012–D051, DoD has elected to 812 of the NDAA for FY 2017, which where contractor employees may spend adopt the approach used by other requires reporting for only four service only small fractions of their time Federal agencies to collect service acquisition portfolio groups: Logistics servicing the Government contract (such contract data. The approach uses the management services, equipment as refuse collection and software as a Federal Procurement Data System related services, knowledge-based service), the rule should be changed to (FPDS), an existing source of contract services, and electronics and exempt such contracts by using the information for the Federal Government, communications services. No further criteria similar to the Service Contract to provide a majority of the information exemptions are available under the law. Labor Standards exemptions (see FAR required by 10 U.S.C. 2330a. The data Comment: Several respondents 22.1003–4(d)(1)). that is not available in FPDS is entered recommended that contracted services Response: Title 10 U.S.C. 2330a, as annually by the contractor in the System that meet the definition of commercial amended by section 812 of the NDAA for Award Management (SAM). items be exempt from ECMRA reporting. for FY 2017, now limits data collection Adopting a Governmentwide approach Response: The intent of the statute is to four service acquisition portfolio to collecting service contract data to enhance DoD’s ability to manage the groups: Logistics management services, reduces burden on both industry and total force, inclusive of military, equipment related services, knowledge- DoD, improves data integrity and civilian, and contractor personnel. based services, and electronics and accuracy, and reforms DoD’s business Specifically, section 2330a requires the communications services. Under this practices for greater performance and military departments and defense proposed rule, only service contracts affordability. agencies to ensure that the inventory of with a total estimated value exceeding II. Discussion and Analysis contracts for services required by the $3 million that are for services in one statute is used to inform strategic of the four portfolio groups must be A. Discussion of Proposed Rule workforce planning decisions under 10 reported in SAM. This rule proposes to revise the U.S.C. 129a, develop budget Comment: One respondent questioned DFARS to implement 10 U.S.C. 2330a, justification materials for services in whether Congress intended DoD to as amended by section 812 of the NDAA accordance with 10 U.S.C. 235, and report contracts for services that are for FY 2017. This rule will require ensure services contracts are not for the integrally related to supplies, or contractors to report data in SAM on an performance of inherently governmental contracts where the services are a
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relatively small dollar value in relation causes confusion and compliance congressional intent, because DoD is to the supplies. problems within industry. already using its internal records and Response: Title 10 U.S.C. 2330a Response: FAR subpart 4.17 does not systems to achieve the statutory requires the collection of data on ‘‘each apply to DoD. This proposed rule objective of the inventory of contracts purchase of services by a military enables DoD to fulfill its obligation for services. department or Defense Agency’’ that under 10 U.S.C. 2330a. Since Response: The rule does not exceed meets a certain dollar threshold and is publication of the proposed rule under the scope of congressional intent, for certain services. The proposed rule 2012–D051, DoD has adopted the use of because existing systems and reports do clarifies that the requirement applies to FPDS to collect a majority of the not fully capture all of the data required contracts or orders that have a total required data, in an effort to standardize by 10 U.S.C. 2330a. estimated value, including options, the reporting process for contractors exceeding $3 million and are for across the Federal Government. 4. Flow Down to Subcontracts services in one of the four service Comment: Several respondents Comment: Two respondents suggested acquisition portfolio groups. suggested that the ECMRA system is that the requirement for subcontract duplicative of other Government reporting be changed. One respondent 2. Expansion of Reporting Requirement systems, such as FPDS, which can also suggested that the prime contractor be Comment: Two respondents suggested be used to estimate the data provided in required only to flow down the clause that the ECMRA reporting requirement the annual inventory of contracts for to subcontractors and relieved of the be extended to contracts for services services. responsibility of reporting for valued at or below the simplified Response: DoD has adopted the subcontractors. The other respondent acquisition threshold (SAT). Doing so service contract reporting process used suggested that subcontractor data not be would be consistent with the by other Federal agencies and no longer reported at all, as this is inconsistent congressional intent in 10 U.S.C. 2330a require contractor reporting in ECMRA. with commercial practice. for DoD to provide a total inventory of This proposed rule will enable DoD to Response: The proposed rule does not contracted for services. use FPDS to obtain a majority of the contain a requirement to flow down a Response: Title 10 U.S.C. 2330a(a), as information required by 10 U.S.C. clause. Instead, this proposed rule amended by section 812 of the NDAA 2330a. FPDS does not provide data on requires contractors to include its for FY 2017, now only requires the the direct labor hours expended and subcontractor labor hours in the total collection of data on service contracts, dollar amounts invoiced for contracted number of labor hours the contractor under certain portfolio groups, that services. Therefore, this proposed rule reports annually to SAM. The proposed exceed $3 million. This proposed rule requires applicable contractors to enter rule leaves the process for collecting implements the statutory threshold. the labor hours and dollar amounts in subcontractor data up to the discretion Applying the rule to service contracts SAM, which is the process used by of each contractor. below $3 million is not necessary to other Federal agencies, in accordance implement the statute and would with FAR subpart 4.17. 5. Need for Additional Resources impose an unnecessary burden on the Comment: Two respondents suggested Comment: One respondent suggested public and DoD. that the separate instances of ECMRA that more resources be provided to the Comment: One respondent suggested (Army, Navy, Air Force, and other DoD Office of the Under Secretary of Defense that the final rule clarify that services agencies) be combined into one DoD- for Personnel and Readiness workforce provided ancillary to a lease or rental wide ECMRA system. that administers and coordinates the contract (such as auto repair and Response: The use of ECMRA is no inventory of contracts for services. maintenance services incidental to a longer necessary. This proposed rule Response: This suggestion is beyond vehicle lease) are subject to ECMRA requires contractors to enter information the scope of the rule. reporting requirement. The respondent in SAM. 6. ECMRA Process also recommended that the final rule Comment: Two respondents suggested clarify that the ECMRA reporting that the rule is duplicative of existing Comment: One respondent noted that requirements apply to contracts for DoD reporting requirements, such as: (1) the ECMRA interface for the Fourth destruction, demolition, and removal. The Army’s contractor manpower Estate (other DoD agencies and field Response: Title 10 U.S.C. 2330a(a), as reporting requirement; and (2) the activities) is not yet fully operational, in amended by section 812 of the NDAA Secretary of Defense Memorandum contrast to what is stated in the for FY 2017, specifies that the service entitled ‘‘Enterprise-wide Contractor proposed rule. For example, there is no acquisition portfolio group for Manpower Reporting Application,’’ operational help desk support for equipment related services is included dated November 2012, that requires all Fourth Estate activities. The respondent in the required reporting group. It is new contracts for services to include a suggests that the final rule should be expected that contracts for equipment- contract line item for contractor delayed until ECMRA is consolidated related services with a total estimated manpower reporting and a requirement into a common portal for all DoD value, including options, exceeding $3 in the performance work statement for agencies, or until the ECMRA instance million will be reported in SAM. contractor manpower reporting. for Fourth Estate activities is fully Response: This rule will replace, not resourced. 3. Duplicative of Existing Systems duplicate, the existing Army contract Response: The use of ECMRA is no Comment: Two respondents indicated manpower reporting requirement and longer necessary. This proposed rule that the rule is duplicative of the the requirements in the November 2012 requires contractors to enter information existing FAR rule on service contract Memorandum from the Under Secretary in SAM. reporting that applies to civilian of Defense for Acquisition, Technology, Comment: One respondent questioned agencies (see FAR subpart 4.17). and Logistics and the Acting Principal how the Government validates data Respondents stated that there should Deputy Under Secretary of Defense for provided by contractors in ECMRA. The not be two parallel systems, one for Personnel and Readiness. respondent suggested that ECMRA be civilian agencies and another for Comment: Two respondents suggested linked to Wide Area WorkFlow and that defense agencies, because this situation that the rule exceeds the scope of the contracting officer or the contracting
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officer’s representative be allowed to Requirements List, be included as a Response: It is not necessary for the inspect payroll data in order to validate requirement in the rule. contracting officer to prepare such a contractor data entered into ECMRA. Response: The proposed DFARS determination or provide further Response: Agencies are responsible clauses convey the requirement for clarification to the contractor. This for ensuring the contractor submits contractor reporting to SAM; therefore, proposed rule only applies the information in SAM that is reasonable a DD Form 1423 is not necessary. requirement to report in SAM, via the and consistent with available contract DFARS clause, to those contracts and information. Agencies may use any 7. Proposed Clause Changes orders that meet the thresholds and contract data available, as appropriate Comment: One respondent requested criteria for service contract reporting, as and necessary, to meet this clarification regarding the prescription expressed in 10 U.S.C. 2330a. responsibility. for the clause at DFARS 252.237–70XX 8. Definition Clarification Comment: One respondent suggested with regard to indefinite-delivery, that the rule be clearer about how the indefinite-quantity contracts. The Comment: One respondent noted that ECMRA will protect nonpublic data, respondent asked whether the clause many terms, including ‘‘direct labor such as direct labor hours and cost data. must be included only if the expected hours’’ and ‘‘cost data,’’ are not defined Response: The use of ECMRA is no dollar value of the individual task or in the proposed rule. longer necessary. delivery orders will exceed the SAT or Response: This proposed rule only Comment: One respondent requested if the total dollar value of all the task or uses the term ‘‘direct labor hours,’’ clarification on the procedures to follow delivery orders issued under the which is defined in FAR 2.101. Comment: Two respondents when the services under one contract contract will exceed the SAT. recommended that the term ‘‘services’’ support two or more DoD services or Response: The rule requires agencies. be better defined for the purposes of information reporting on each task order informing both the Government and Response: This proposed rule requires that meets the criteria and threshold for contractors to enter information in contractor when the proposed rule service contract reporting. The proposed applies and when the contractor is SAM, which is a single system able to rule does not require reporting at the collect all requisite data under this rule. responsible for entering data into contract level for indefinite-delivery ECMRA. Comment: One respondent suggested contracts. The rule proposes a basic that ECMRA should have a built-in Response: This proposed rule only clause that applies to solicitations, applies the requirement to report in capability for an overall point of contact contracts (other than indefinite-delivery at each agency level who can gather and SAM, via the DFARS clause, to those contracts), and task orders awarded contracts and orders that meet or are manage the ECMRA information and under non-DoD indefinite-delivery that data be gathered at a centralized expected to meet the thresholds and contracts; and an alternate clause that criteria for service contract reporting, as location. applies to DoD issued solicitations and Response: The use of ECMRA is no expressed in 10 U.S.C. 2330a. When contracts for indefinite-delivery type longer necessary. This proposed rule awarded a contract, or task order placed contracts. The basic clause and the requires contractors to enter information under a non-DoD contract, this rule alternate clause implement the reporting in SAM, which is a Governmentwide proposes a basic clause to notify requirement for contracts and/or task system. contractors of the requirement to report orders that have a total estimated value, Comment: One respondent noted that in SAM on the effort performed under including options, exceeding $3 million it is unduly restrictive to allow only one the award. When awarded an indefinite- and are for services in the four specified contractor user per contract to view the delivery contract under which orders service acquisition portfolio groups. The data for that contract in ECMRA. will be placed that may meet the Response: The use of ECMRA is no basic clause advises contractors to thresholds and criteria for service longer necessary. This proposed rule report on the effort performed under the contract reporting, this rule proposes an requires contractors to enter information contract or the task order awarded alternate clause to notify contractors of in SAM. under a non-DoD contract. The alternate the requirement to report in SAM on the Comment: One respondent suggested clause advises the contractor to report effort performed for a task order issued that the rule should clarify the on the effort performed under each task under the contract that meets the service contractor’s responsibilities in the event order awarded under a DoD indefinite- contract reporting thresholds and that the Government-populated delivery contract that meets the criteria criteria. information in ECMRA is incorrect. and threshold for service contract 9. Major Rule Response: The use of ECMRA is no reporting. longer necessary. This proposed rule Comment: One respondent suggested Comment: One respondent suggested requires contractors to enter information that the rule include a link to the that the Government reconsider whether in SAM. Contractors may contact the product service code (PSC) manual this is a major rule. Title 5 U.S.C. 804 SAM Helpdesk or the contracting officer available at www.acquisition.gov, to aid defines a major rule as one which the in the event that data needs to be contracting personnel in determining Office of Management and Budget updated in SAM. the types of services to which the (OMB) determines will cause a major Comment: One respondent suggested proposed rule applies or does not apply. increase in costs or prices for individual that the requiring activity, and not the Response: The applicable PSCs will industries, or have a significant adverse contracting officer, be responsible for be identified in the DFARS Procedures, effect on competition, employment, verifying the contractor’s ECMRA Guidance, and Information upon investment, productivity, or innovation. compliance is documented. publication of the final rule. This rule imposes new reporting Response: In accordance with FAR Comment: One respondent suggested requirements, particularly for 1.602–2, the contracting officer is that the rule require the contracting commercial item contractors that responsible for ensuring compliance officer to prepare a determination provide professional services and with the terms of the contract. designating specifically the services to supplies. These contractors would not Comment: A respondent suggested which the ECMRA reporting have been previously subject to the type that a DD Form 1423, Contract Data requirement would apply. of manpower reporting required by this
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rule. For small businesses, the need to 11. Paperwork Reduction Act c. Burden Estimates build compliant procedures and a. Government Systems Already in Place Comment: Two respondents automated systems could be a barrier to commented that the rule underestimates participating in the federal market. This Comment: Two respondents stated the number of contractors that will be is particularly the case when the that the Government has systems in impacted. One respondent indicated cumulative effect of multiple and place for collecting the required data that the total estimated number of duplicative data reporting requirements and the rule would require duplicative respondents of 13,269, including 7,962 is considered. The ultimate result over contractor reporting that is not for small businesses, seems low, since time will be a decrease in competition necessary for compliance. Two the GSA Schedules alone have 20,000 and innovation in the Federal market. respondents noted that there will be two contractors and 80% of the contractors Response: This rule is not a major rule rules, one for DOD and the other non- are small businesses. One respondent in that it does not have a significant DOD, which could potentially apply stated that the estimate for the total impact on competition, employment, under a single contract vehicle and that number of annual responses of investment, productivity, innovation, or determining which set of rules apply approximately 54,000 appears low. In on the ability of U.S. enterprises to will be burdensome. addition, several respondents compete with foreign enterprises. Response: The rule will not require commented that the estimate of an Similar reporting requirements for duplicative reporting by contractors. average of 1.4 hours per response is too civilian agencies have appeared in FAR The DoD and non-DoD reporting low, citing reasons such as: (1) The subpart 4.17 since 2014, so many requirements are based on separate billions of dollars in services for which contractors already have experience statutes. Further, the information DoD contracts for annually and the with this type of reporting requirement. collection requirement associated with corresponding volume of data required The scope of this rule has been this DFARS Case 2018–D063, once to be entered, (2) the limitation of the decreased, because 10 U.S.C. 2330a, as cleared by OMB, will supersede the ECMRA bulk upload capability, or (3) the impact on response time resulting amended by section 812 of the NDAA reporting requirements approved under from the flow down of the reporting for FY 2017, limits data collection to OMB Control Number 0704–0491, requirement to subcontractors. One four service acquisition portfolios and entitled ‘‘DoD Inventory of Contracts for respondent stated that the burden is applies only to contracts and task orders Services Compliance.’’ Contracts disproportionally high for small exceeding $3 million in total estimated awarded by DoD, or on behalf of DoD, businesses that are less likely to have value, including options. will contain the proposed DFARS clauses. the necessary internal infrastructure. 10. Initial Regulatory Flexibility Response: The estimated burdens for Analysis b. Paperwork Reduction Act Constraints respondents and responses published in the previously proposed rule have been Comment: Two respondents stated Comment: One respondent stated that updated to reflect the revised that the proposed reporting system did the rule conflicts with Paperwork requirements of 10 U.S.C. 2330a, as not have a goal of minimizing the Reduction Act constraints on amended. burden to small business and that the rulemaking, namely that the rule must: constant flow of new regulations to (1) Be necessary for the proper III. Applicability to Contracts at or businesses have little regard for the performance of the agency; (2) not be Below the Simplified Acquisition benefit to the Government or burden on duplicative of information otherwise Threshold and for Commercial Items, businesses. reasonably accessible to the agency; and Including Commercially Available Off- (3) reduce, to the extent practicable and the-Shelf Items Response: The burden applied to appropriate, the burden on persons who A. Background small businesses is the minimum shall provide information to or for the consistent with applicable laws, agency. Consistent with the determinations Executive orders, regulations, and that DoD made with regard to prudent business practices. The Response: The rule complies with the application of the requirements of information collection requirement has Paperwork Reduction Act. The section 846 of the NDAA for FY 2011, been narrowly tailored to maximize the information collection is necessary in DoD does not intend to apply the use of existing records already order for DoD to meet the requirement requirements of 10 U.S.C. 2330a, as maintained by contractors and by the of 10 U.S.C. 2330a, as amended, to amended by section 812 of the NDAA Government. To further minimize the collect certain service contract data and for FY 2017, to contracts at or below the impact, DoD is adopting the existing report annually to Congress. The rule is simplified acquisition threshold (SAT) system and process used by the rest of not duplicative of information otherwise or for commercially available off-the the Government to obtain the requisite reasonably accessible to DoD. DoD shelf items (COTS) items, but does information from contractors, which systems do not currently collect all of intend to apply the rule to contracts for maintains a familiar and consistent the data elements required by the the acquisition of commercial items. reporting requirement for contractors; statute. Section 846 of the NDAA for FY 2011 and the information is collected The information collection and section 812 of the NDAA for FY electronically, help-desk support and requirement has been narrowly tailored 2017 are silent on applicability to user guides are available for SAM, and to minimize the impact of reporting and contracts and subcontracts in amounts reporting requirements will be limited maximize the use of existing records no greater than the SAT or for the to a small number of data elements to already maintained by contractors and acquisition of commercial items. Title facilitate ease of reporting and reduce by the Government. To minimize the 10 U.S.C. 2330a(a), as amended by contractor burden. In addition, the impact, the information will be section 812 of the NDAA for FY 2017, NDAA for FY 2017 raised the threshold collected electronically, help-desk however, only requires the collection of for reporting to $3 million from the SAT support will be provided to users, and data on service contracts, under certain and limited the data reporting to four reporting requirements will be limited portfolio groups, that exceed $3 million, service acquisition portfolio groups. to a small number of data elements. which effectively precludes application
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to acquisitions under the SAT. Also, the Æ Specifically refers to 10 U.S.C. 2375 significant sums expended by DoD on statute does not provide for civil or and states that it shall apply to contracts contracted services intended to be criminal penalties. Therefore, the statute and subcontracts for the acquisition of covered by the law, thereby does not apply to contracts or commercial items (including COTS undermining the overarching public subcontracts in amounts not greater items); or policy purpose of the law. Therefore, than the SAT or to the acquisition of • USD(A&S) determines in writing this rule will apply to the acquisition of commercial items unless the Principal that it would not be in the best interest commercial items, excluding COTS. Director, Defense Pricing and of the Government to exempt contracts IV. Expected Cost Impact Contracting, makes a written or subcontracts for the acquisition of determination as provided in 41 U.S.C. commercial items from the applicability This rule will require a contractor to 1905 and 10 U.S.C. 2375. of the provision. report data in SAM on an annual basis This authority has been delegated to for a DoD contract or task order that is B. Applicability to Contracts for the the Principal Director, Defense Pricing valued in excess of $3 million and is for Acquisition of Commercial Items, and Contracting. logistics management services, Excluding COTS Items Consistent with 10 U.S.C. 2375, DoD equipment related services, knowledge- Title 10 U.S.C. 2375 exempts has determined that it is in the best based services, or electronics and contracts and subcontracts for the interest of the United States to apply the communications services. acquisition of commercial items, requirements of 10 U.S.C. 2330a to the When applicable, contractors will be including COTS items, from provisions acquisition of commercials items, required to annually report the total of law enacted after October 13, 1994, excluding COTS items. The intent of the dollar amount invoiced for and the total that, as determined by the Under statute is to enhance DoD’s ability to number of direct labor hours expended Secretary of Defense for Acquisition and manage the total force, inclusive of on services performed under the Sustainment (USD (A&S)), set forth military, civilian, and contractor contract or task order during the policies, procedures, requirements, or personnel. Specifically, section 2330a, preceding fiscal year. The total number restrictions for the acquisition of as amended, requires the military of direct labor hours reported to SAM property or services unless— departments and defense agencies to should be the total of both the • The provision of law— ensure that the inventory of contracts contractor hours and its subcontractors’ Æ Provides for criminal or civil for services required by the statute is hours. Significant costs are avoided by penalties; used to inform strategic workforce using existing Government systems Æ Requires that certain articles be planning decisions under 10 U.S.C. (FPDS and SAM) to collect elements of bought from American sources pursuant 129a and develop budget justification the required data. to 10 U.S.C. 2533a or that strategic materials for services in accordance The following is a summary of the materials critical to national security be with 10 U.S.C. 235. An exception for estimated public and Government costs bought from American sources pursuant services that meet the definition of a calculated in perpetuity in 2016 dollars to 10 U.S.C. 2533b; or commercial item would exclude at a 7-percent discount rate:
Summary Public Government Total
Present Value ...... $10,441,186 $7,830,886 $18,272,072 Annualized Costs ...... 730,883 548,162 1,279,045
To access the full Regulatory Cost Review, dated September 30, 1993. This information on each purchase of Analysis for this rule, go to the Federal rule is not a major rule under 5 U.S.C. services by a military department or eRulemaking Portal at 804. defense agency in excess of $3 million for the following service acquisition www.regulations.gov, search for VI. Executive Order 13771 ‘‘DFARS Case 2018–D063,’’ click ‘‘Open portfolio groups: Logistics management Docket,’’ and view ‘‘Supporting This rule is not expected to be subject services; equipment related services; Documents.’’ to E.O. 13771, because this rule is not knowledge-based services; and, a significant regulatory action under electronics and communications V. Executive Orders 12866 and 13563 E.O. 12866. services. Executive orders (E.O.s) 12866 and VII. Regulatory Flexibility Act The objective of this proposed rule is 13563 direct agencies to assess all costs DoD does not expect this proposed to implement 10 U.S.C. 2330a, as and benefits of available regulatory rule to have a significant economic modified by section 812 of the National alternatives and, if regulation is impact on a substantial number of small Defense Authorization Act (NDAA) for necessary, to select regulatory entities within the meaning of the Fiscal Year (FY) 2017 (Pub. L. 114–328). approaches that maximize net benefits Regulatory Flexibility Act, 5 U.S.C. 601, Based on data from the Federal (including potential economic, et seq., because the rule only requires Procurement Data System for FY 2016 environmental, public health and safety annual reporting of two data items for through 2018, DoD awards annually an effects, distributive impacts, and a limited number and type of service average of 4,386 service contracts and equity). E.O. 13563 emphasizes the contracts. However, an initial regulatory orders to 1,934 unique entities that have importance of quantifying both costs flexibility analysis has been performed an estimated value greater than $3M and and benefits, of reducing costs, of and is summarized as follows: are within the four portfolio groups harmonizing rules, and of promoting The Department of Defense is outlined in the rule. Of the 4,386 flexibility. This is not a significant proposing to amend the Defense Federal contracts and orders awarded annually, regulatory action and, therefore, was not Acquisition Regulation Supplement approximately 2,059 (47%) are made to subject to review under section 6(b) of (DFARS) to establish a data collection 1,227 (63%) unique small businesses E.O. 12866, Regulatory Planning and system that provides management entities.
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This proposed rule requires all Responses per respondent: 2.267, Authority: 41 U.S.C. 1303 and 48 CFR contractors that are awarded a contract approximately. chapter 1. or order in excess of $3 million for Total annual responses: 4,386. services in any of the four service Hours per response: 2 hours. PART 204—ADMINISTRATIVE AND acquisition portfolio groups to report Total response burden hours: 8,772. INFORMATION MATTERS contract data in SAM. The contractor is B. Request for Comments Regarding ■ 2. Add subpart 204.17, consisting of required to report the total amount Paperwork Burden 204.1700, 204.1703, and 204.1705, to invoiced for services performed during read as follows: the preceding fiscal year and the Written comments and number of direct labor hours, including recommendations on the proposed Subpart 204.17—Service Contracts subcontractor hours, expended on information collection, including Inventory services performed during the preceding suggestions for reducing this burden, Sec. fiscal year. The Government estimates should be sent to Ms. Jasmeet Seehra at 204.1700 Scope of subpart. that a journeyman level contractor the Office of Management and Budget, 204.1703 Reporting requirements. 204.1705 Contract clauses. employee with basic knowledge of the Desk Officer for DoD, Room 10236, New contract would be required to enter the Executive Office Building, Washington, DC 20503, or email Jasmeet_K._Seehra@ Subpart 204.17—Service Contracts data. The contractor employee may also Inventory need to gather additional billing omb.eop.gov, with a copy to the Defense information from the organization in Acquisition Regulations System, Attn: 204.1700 Scope of subpart. order to complete the data input in Carrie Moore OUSD(A&S)DPC/DARS, This subpart prescribes the SAM. Room 3B941, 3060 Defense Pentagon, requirement to report certain contracted This rule does not duplicate, overlap, Washington, DC 20301–3060. services in accordance with 10 U.S.C. or conflict with any other Federal rules. Comments can be received from 30 to 60 2330a. There are no known significant days after the date of this notification, alternative approaches to the proposed but comments to OMB will be most 204.1703 Reporting requirements. rule that would meet the requirements useful if received by OMB within 30 (a) Thresholds. (i) Service contractor of the applicable statute. days after the date of this notification. reporting of information is required in DoD invites comments from small Public comments are particularly the System for Award Management business concerns and other interested invited on: Whether this collection of (SAM) when a contract or order— parties on the expected impact of this information is necessary for the proper (A) Has a total estimated value, rule on small entities. DoD will also performance of functions of the DFARS, including options, that exceeds $3 consider comments from small entities and will have practical utility; whether million; and concerning the existing regulations in our estimate of the public burden of this (B) Is for services in the following subparts affected by this rule in collection of information is accurate, service acquisition portfolio groups (see accordance with 5 U.S.C. 610. Interested and based on valid assumptions and PGI 204.1703 for a list of applicable parties must submit such comments methodology; ways to enhance the product and service codes): separately and should cite 5 U.S.C. 610 quality, utility, and clarity of the (1) Logistics management services. (DFARS Case 2018–D063), in information to be collected; and ways in (2) Equipment related services. correspondence. which we can minimize the burden of (3) Knowledge-based services. the collection of information on those (4) Electronics and communications VIII. Paperwork Reduction Act who are to respond, through the use of services. The rule contains information appropriate technological collection (ii) Contractor reporting is required collection requirements that require the techniques or other forms of information annually, by October 31, on the services approval of the Office of Management technology. performed under the contract or order, and Budget (OMB) under the Paperwork To request more information on this including any subcontracts, during the Reduction Act (44 U.S.C. chapter 35). proposed information collection or to preceding Government fiscal year. Accordingly, DoD has submitted a obtain a copy of the proposal and (iii) For indefinite-delivery contracts, request for approval of a new associated collection instruments, basic ordering agreements, and blanket information collection requirement please write to the Defense Acquisition purchase agreements— concerning DFARS Case 2018–D063, Regulations System, Attn: Carrie Moore, (A) Contractor reporting is required Data Collection and Inventory for OUSD(A&S)DPC/DARS, Room 3B941, for each order issued under the contract Services Contracts, to the Office of 3060 Defense Pentagon, Washington, DC or agreement that meets the Management and Budget. Upon OMB 20301–3060, or email osd.dfars@ requirements of paragraph (a)(i) of this clearance of this new collection and mail.mil. Include DFARS Case 2018– section; and publication of the associated final D063 in the subject line of the message. (B) Service contract reporting is not DFARS rule, a related program required for the basic contract or List of Subjects in 48 CFR Parts 204, clearance, OMB Control Number 0704– agreement. 212, and 252 0491, DoD Enterprise-wide Contractor (b) Agency reporting responsibilities. Manpower Reporting Application Government procurement. In the event the agency believes that (ECMRA), will be discontinued. Jennifer Lee Hawes, revisions to the contractor-reported A. Public reporting burden for this Regulatory Control Officer, Defense information are warranted, the agency collection of information is estimated to Acquisition Regulations System. shall notify the contractor. average 2 hours per response, including the time for gathering and maintaining Therefore, 48 CFR parts 204, 212, and 204.1705 Contract clauses. the data and completing and reviewing 252 are proposed to be amended as (a)(i) Use the basic or the alternate of the collection of information. follows: the clause 252.204–70XX, Reporting The annual reporting burden ■ 1. The authority citation for 48 CFR Requirements for Contracted Services, estimated as follows: parts 204, 212, and 252 continue to read in solicitations, contracts, agreements, Respondents: 1,934. as follows: and orders, including solicitations and
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contracts using FAR part 12 procedures (b) The Contractor shall report the (End of clause) for the acquisition of commercial items, following information for the contract or [FR Doc. 2020–11754 Filed 6–4–20; 8:45 am] order: that— BILLING CODE 5001–06–P (A) Have a total estimated value, (1) The total dollar amount invoiced for including options, that exceeds $3 services performed during the preceding Government fiscal year under the contract or million; and order. DEPARTMENT OF DEFENSE (B) Are for services in the following (2) The number of Contractor direct labor service acquisition portfolio groups— hours, to include subcontractor direct labor Defense Acquisition Regulations (1) Logistics management services; hours, as applicable, expended on the System (2) Equipment related services; services performed under the order or (3) Knowledge-based services; or contract during the previous Government 48 CFR Parts 239 and 252 (4) Electronics and communications fiscal year. services. (c) The Government will review Contractor [Docket DARS–2019–0031] (ii) Use the basic clause in reported information for reasonableness and consistency with available contract solicitations and contracts, except RIN 0750–AK07 solicitations and resultant awards of information. In the event the Government indefinite-delivery contracts, and orders believes that revisions to the Contractor reported information are warranted, the Defense Federal Acquisition placed under non-DoD contracts that Government will notify the Contractor. Upon Regulation Supplement: Repeal of meet the criteria in paragraph (a)(i) of notification, the Contractor shall revise the DFARS Clause ‘‘Tariff Information’’ this section; or reported information or provide the (DFARS Case 2018–D044) (iii) Use the alternate I clause in Government with a supporting rationale for solicitations and resultant awards of the information. AGENCY: Defense Acquisition indefinite-delivery contracts, basic (End of clause) Regulations System, Department of ordering agreements, and blanket Alternate I. As prescribed in Defense (DoD). purchase agreements, when one or more 204.1705(a)(i) and (iii), use the ACTION: Proposed rule. of the orders under the contract or following clause, which substitutes SUMMARY: DoD is proposing to amend agreement are expected to meet the ‘‘contract or agreement for each order’’ the Defense Federal Acquisition criteria in paragraph (a)(i) of this in lieu of ‘‘contract or order’’ in Regulation Supplement (DFARS) to section. paragraph (a) and ‘‘order’’ in lieu of remove a clause that is no longer ‘‘contract or order’’ in paragraphs (b) PART 212—ACQUISITION OF necessary. COMMERCIAL ITEMS and (b)(1) and (2), and identifies the dollar threshold and service acquisition DATES: Comments on the proposed rule ■ 3. Amend section 212.301 by adding portfolio groups for which orders under should be submitted in writing to the paragraph (f)(ii)(j) to read as follows: the contract or agreement require address shown below on or before service contract reporting. August 4, 2020, to be considered in the 212.301 Solicitation provisions and formation of a final rule. contract clauses for the acquisition of Reporting Requirements for Contracted commercial items. Services-Alternate I (DATE) ADDRESSES: Submit comments * * * * * identified by DFARS Case 2018–D044, (a) The contractor shall report annually, by using any of the following methods: (f) * * * October 31, at www.sam.gov, on services Æ (ii) * * * Federal eRulemaking Portal: http:// performed during the preceding Government www.regulations.gov. Search for (j) Use the clause at 252.204–70XX, fiscal year (October 1–September 30) under Reporting Requirements for Contracted this contract or agreement for each order, ‘‘DFARS Case 2018–D044’’. Select Services, to comply with 10 U.S.C. including any subcontract, which exceeds $3 ‘‘Submit a Comment Now’’ and follow 2330a. million for services in the following service the instructions provided to submit a (1) Use the basic clause as prescribed acquisition portfolio groups: comment. Please include ‘‘DFARS Case in 204.1705(a)(i) and (ii); and (1) Logistics management services. 2018–D044’’ on any attached document. (2) Use the alternate I clause as (2) Equipment related services. Æ Email: [email protected]. Include prescribed in 204.1705 (a)(i) and (iii). (3) Knowledge-based services. DFARS Case 2018–D044 in the subject (4) Electronics and communications line of the message. * * * * * services. Æ Fax: 571–372–6094. (b) The Contractor shall report the Æ PART 252—SOLICITATION following information for the order: Mail: Defense Acquisition PROVISIONS AND CONTRACT (1) The total dollar amount invoiced for Regulations System, Attn: Ms. Carrie CLAUSES services performed during the preceding Moore, OUSD(A&S)DPC/DARS, Room Government fiscal year under the order. 3B941, 3060 Defense Pentagon, ■ 4. Add section 252.204–70XX to read (2) The number of Contractor direct labor Washington, DC 20301–3060. as follows: hours, to include subcontractor direct labor Comments received generally will be 252.204–70XX Reporting Requirements for hours, as applicable, expended on the posted without change to http:// Contracted Services. services performed under the order during www.regulations.gov, including any the previous Government fiscal year. Basic. As prescribed in 204.1705(a)(i) (c) The Government will review Contractor personal information provided. To and (ii), use the following clause: reported information for reasonableness and confirm receipt of your comment(s), please check www.regulations.gov, Reporting Requirements for Contracted consistency with available contract information. In the event the Government approximately two to three days after Services-Basic (DATE) believes that revisions to the Contractor submission to verify posting (except (a) The contractor shall report annually, by reported information are warranted, the allow 30 days for posting of comments October 31, at www.sam.gov, on the services Government will notify the Contractor. Upon submitted by mail). performed under this contract or order, notification, the Contractor shall revise the FOR FURTHER INFORMATION CONTACT: including any subcontracts, during the reported information or provide the Ms. preceding Government fiscal year (October Government with a supporting rationale for Carrie Moore, telephone 571–372–6093. 1–September 30). the information. SUPPLEMENTARY INFORMATION:
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I. Background clause unnecessary. Pursuant to 47 CFR this clause. Subsequently, the DoD Task DoD is proposing to amend the 42.10, telecommunications carriers are Force reviewed the requirements of now required to make tariff and non- DFARS to remove the DFARS clause DFARS clause 252.239–7006, Tariff tariff information available to the public 252.239–7006, Tariff Information, and Information, and determined that the online at the carrier’s internet website the associated clause prescription at DFARS coverage was unnecessary and and to update the information regularly. DFARS 239.7411(a). This clause is recommended removal. Additionally, online databases and tools prescribed for use in solicitations, have been created to track and monitor II. Applicability to Contracts at or Below contracts, and basic agreements for changes in telecommunications tariffs, the Simplified Acquisition Threshold telecommunications services. The prices, and services. Since contracting and for Commercial Items, Including clause requires the contractor to provide officers are now able review carriers’ Commercially Available Off-the-Shelf the contracting officer with the websites and access online tariff tools Items following information: • and databases as needed, it is This rule only removes obsolete Upon request, a copy of the unnecessary and burdensome to require contractor’s existing tariffs. DFARS clause 252.239–7006, Tariff • the contractor to provide this Information. Therefore, the rule does Before filing, a copy of any information separately to the application to be made to a regulatory not impose any new requirements on contracting officer in accordance with contracts at or below the simplified agency that requests new or changes to the clause. As such, this DFARS clause rates, charges, services, or regulations acquisition threshold and for can be removed. commercial items, including related to any tariff or to any of the The removal of this DFARS text facilities or services furnished primarily commercially available off-the-shelf supports a recommendation from the items. to the Government. DoD Regulatory Reform Task Force. On • Upon request, all supporting February 24, 2017, the President signed III. Expected Cost Savings documentation prepared in connection Executive Order (E.O.) 13777, with any application to a regulatory ‘‘Enforcing the Regulatory Reform This rule impacts only agency. Agenda,’’ which established a Federal telecommunication service providers • Notice of any application that policy ‘‘to alleviate unnecessary who do business, or want to do anyone other than the contractor files regulatory burdens’’ on the American business, with DoD. DFARS clause with a regulatory body which affects or people. In accordance with E.O. 13777, 252.239–7006, Tariff Information, will affect the rate or conditions of DoD established a Regulatory Reform requires telecommunications service services under the agreement or Task Force to review and validate DoD contractors to submit certain tariff and contract. regulations, including the DFARS. non-tariff information to DoD when This clause was added to the DFARS Public notification of the establishment requested by the contracting officer or as to implement a standardized approach of the DFARS Subgroup to the DoD specified in the clause. Removal of this across DoD for addressing critical issues Regulatory Reform Task Force, for the DFARS clause is expected to result in associated with the acquisition of purpose of reviewing DFARS provisions savings for both DoD and DoD telecommunication services. Since its and clauses, was published in the contractors that provide implementation, technological Federal Register at 82 FR 28041 on June telecommunications services. advances, and the passage of additional 20, 2017 (see also 82 FR 35741 (August The following is a summary of the telecommunication regulations at 47 1, 2017)), and requested public input. estimated public and Government cost CFR 42.10, have made this DFARS No public comments were received on savings:
Summary Public Government Total
Present Value ...... ¥$1,624,014 ¥$406,000 ¥$2,030,014 Annualized Costs ...... ¥113,681 ¥28,420 ¥142,101
To access the full Regulatory Cost flexibility. This is not a significant impact on a substantial number of small Analysis for this rule, go to the Federal regulatory action and, therefore, was not entities within the meaning of the eRulemaking Portal at subject to review under section 6(b) of Regulatory Flexibility Act, 5 U.S.C. 601, www.regulations.gov, search for E.O. 12866, Regulatory Planning and et seq., because the rule only applies to ‘‘DFARS Case 2018–D044,’’ click ‘‘Open Review, dated September 30, 1993. This major weapon system acquisition Docket,’’ and view ‘‘Supporting rule is not a major rule under 5 U.S.C. programs. However, an initial regulatory Documents.’’ 804. flexibility analysis has been performed and is summarized as follows: IV. Executive Orders 12866 and 13563 V. Executive Order 13771 DoD is proposing to amend the E.O.s 12866 and 13563 direct agencies This rule is expected to be an E.O. Defense Federal Acquisition Regulation to assess all costs and benefits of 13771 deregulatory action. We estimate Supplement (DFARS) to implement a available regulatory alternatives and, if that this rule generates $2.03 million in recommendation from the DoD regulation is necessary, to select annualized cost savings, discounted at 7 Regulatory Task Force established regulatory approaches that maximize percent relative to year 2016, over a pursuant to Executive Order 13777, net benefits (including potential perpetual time horizon. Details on the Enforcing the Regulatory Reform economic, environmental, public health estimated cost savings can be found in Agenda, to repeal the clause at DFARS and safety effects, distributive impacts, section III. of this preamble. 252.239–7006, Tariff Information, and and equity). E.O. 13563 emphasizes the the associated clause prescription at VI. Regulatory Flexibility Act importance of quantifying both costs DFARS 239.7411(a). and benefits, of reducing costs, of DoD does not expect this proposed The objective of this rule is to remove harmonizing rules, and of promoting rule to have a significant economic the requirement for contractors to report
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tariff information under the DFARS eliminate DFARS 252.239–7006, Tariff PART 252—SOLICITATION clause. The legal basis for this change is Information, thereby reducing the PROVISIONS AND CONTRACT 41 U.S.C. 1303. associated current annual reporting CLAUSES According to the Electronic Document burden and OMB inventory of hours as Access database, DoD awards follows: 252.239–7006 [Removed and Reserved] ■ approximately 855 contracts to 83 Respondents: 83. 3. Remove and reserve section unique contractors each year that 252.239–7006. Responses per respondent: include DFARS clause 252.239–7006. It Approximately 10.3. [FR Doc. 2020–11753 Filed 6–4–20; 8:45 am] is estimated that 171 of those contracts BILLING CODE 5001–06–P are awarded to small entities. Total annual responses: 855. This proposed rule does not include Hours per response: 2 hours. any new reporting or recordkeeping Total response Burden Hours: 1,710. DEPARTMENT OF THE INTERIOR requirements for small entities. Rather Request for Comments Regarding this rule reduces the information Paperwork Burden Reduction. Written Fish and Wildlife Service collection requirements approved under comments and recommendations on the OMB Control Number 0704–0341. Small proposed reduction of this information 50 CFR Part 21 entities will no longer be required to collection should be sent to Ms. Jasmeet provide tariff information to the [Docket No. FWS–HQ–MB–2019–0103; Seehra at the Office of Management and FF09M29000–201–FXMB1232090000] contracting officer in accordance with Budget, Desk Officer for DoD, Room DFARS clause 252.239–7006. RIN 1018–BE67 10236, New Executive Office Building, The rule does not duplicate, overlap, _ Washington, DC 20503, or email Susan Migratory Bird Permits; Management or conflict with any other Federal rules. _ There are no known significant M. [email protected], with a copy of Conflicts Associated With Double- alternative approaches to the proposed to the Defense Acquisition Regulations Crested Cormorants (Phalacrocorax rule that would meet the policy System, Attn: Carrie Moore; auritus) Throughout the United States objective of the rule. OUSD(A&S)DPC/DARS, Room 3B941, AGENCY: DoD invites comments from small 3060 Defense Pentagon, Washington, DC Fish and Wildlife Service, business concerns and other interested 20301–3060. Comments can be received Interior. parties on the expected impact of this from 30 to 60 days after the date of this ACTION: Proposed rule. rule on small entities. notification, but comments to OMB will SUMMARY: The U.S. Fish and Wildlife DoD will also consider comments be most useful if received by OMB Service (Service) proposes to establish a from small entities concerning the within 30 days after the date of this new permit for State and federally existing regulations in subparts affected notification. recognized Tribal (hereafter ‘‘Tribe’’ or by this rule in accordance with 5 U.S.C. To request more information on this ‘‘Tribal’’) wildlife agencies for the 610. Interested parties must submit such proposed information collection or to management of double-crested comments separately and should cite 5 obtain a copy of the proposal and cormorants (Phalacrocorax auritus; U.S.C. 610 (DFARS Case 2018–D044), in associated collection instruments, hereafter ‘‘cormorants’’). The new correspondence. please write to the Defense Acquisition permit would authorize specific take Regulations System, Attn: Carrie Moore, VII. Paperwork Reduction Act activities that are normally prohibited OUSD(A&S)DPC/DARS, Room 3B941, and are intended to relieve or prevent This rule affects the information 3060 Defense Pentagon, Washington, DC impacts from cormorants on lands collection requirements in the DFARS 20301–3060, or email osd.dfars@ within State or Tribal jurisdictions to provision 252.239–7006, Tariff mail.mil. Include DFARS Case 2018– address conflicts related to the Information, currently approved under D044 in the subject line of the message. OMB Control Number 0704–0341, following issues: wild and publicly entitled ‘‘Defense Federal Acquisition List of Subjects in 48 CFR Parts 239 and stocked fish stocked by State agencies or Regulation Supplement (DFARS) Part 252 Tribes; Tribal- and State-owned or operated aquaculture facilities 239, Acquisition of Information Government procurement. Technology and associated clauses at (including hatcheries); human health DFARS 252.239–7000 and 252.239– Jennifer Lee Hawes, and safety; State- or Tribal-owned 7006.’’ The rule revises an information Regulatory Control Officer, Defense property and assets; and threatened and collection requirement, which requires Acquisition Regulations System. endangered species (listed under the the approval of OMB under the Endangered Species Act of 1973, as Therefore, 48 CFR parts 239 and 252 amended, or identified in State- or Paperwork Reduction Act (44 U.S.C. are proposed to be amended as follows: chapter 35). Accordingly, DoD has Tribal-specific legislation as threatened submitted a request to OMB for ■ 1. The authority citation for 48 CFR or endangered). The Service would approval of a revised information parts 239 and 252 continues to read as retain ultimate authority for regulating collection. follows: the take of cormorants. States and Tribes would have the discretion to determine A. Public Reporting Burden Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. whether, when, where, and for which of Public reporting burden for this the above purposes they would conduct previously approved collection of PART 239—ACQUISITION OF lethal take within limits and allocations information is estimated to average 2 INFORMATION TECHNOLOGY set by the Service. hours per response, including the time DATES: You must submit written 239.7411 [Amended] for reviewing instructions, searching comments on this proposed rule by July existing data sources, gathering and ■ 2. Amend section 239.7411 by 20, 2020. maintaining the data needed, and removing paragraph (a)(3) and Information Collection Requirements: completing and reviewing the collection redesignating paragraph (a)(4) as If you wish to comment on the of information. This rule proposes to paragraph (a)(3). information collection requirements in
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this proposed rule, please note that the responsibility for managing migratory Public Resource Depredation Order Office of Management and Budget birds. Our authority derives from the enabled States, Tribes, and the U.S. (OMB) is required to make a decision Migratory Bird Treaty Act of 1918 Department of Agriculture’s Wildlife concerning the collection of information (MBTA; 16 U.S.C. 703–712), as Services in 24 States, without contained in this proposed rule between amended, which implements individual depredation permits, to take 30 and 60 days after the date of conventions with Great Britain (for cormorants found committing or about publication of this proposed rule in the Canada), Mexico, Japan, and Russia. We to commit, and to prevent, depredations Federal Register. Therefore, comments implement the provisions of the MBTA on the public resources of fish should be submitted to OMB by July 6, through the regulations in parts 10, 13, (including hatchery stock at Federal, 2020. 20, 21, 22, and 92 of title 50 of the Code State, and Tribal facilities), wildlife, ADDRESSES: Comment Submission: You of Federal Regulations (CFR). The plants, and their habitats. may submit comments by one of the MBTA protects migratory birds (listed In May 2016, these depredation orders following methods: in 50 CFR 10.13) from take directed at were vacated by the United States • Federal eRulemaking Portal: http:// birds, except as authorized under the District Court for the District of www.regulations.gov. Follow the MBTA. Regulations pertaining to Columbia. The Court concluded that the instructions for submitting comments to specific migratory bird permit types are Service did not sufficiently consider the Docket No. FWS–HQ–MB–2019–0103. at 50 CFR parts 21 and 22. effects of the depredation orders on • U.S. Mail Or Hand-Delivery: Public The double-crested cormorant is a cormorant populations and other Comments Processing, Attn: FWS–HQ– fish-eating migratory bird that is affected resources and failed to consider MB–2019–0103; U.S. Fish and Wildlife distributed across a large portion of a reasonable range of alternatives in the Service; MS: PRB (JAO/3W); 5275 North America. There are five different review within the environmental Leesburg Pike; Falls Church, VA 22041– breeding populations, variously assessment (EA) issued in 2014 under 3803. described by different authors as the the National Environmental Policy Act We will not accept email or faxes. We Alaska, Pacific (or Western), Interior, of 1969, as amended (NEPA). Following will post all comments on http:// Atlantic, and Southern populations. the Court ruling, the Service prepared www.regulations.gov. This generally Although these populations are an EA to address continuing conflicts means that we will post any personal described by their breeding ranges, the with cormorants (USFWS 2017). The information you provide (see Review of birds commingle to various extents on authority for authorizing lethal take of Public Comments, below, for more their migration and wintering areas, depredating cormorants reverted to the information). with birds from populations closer to issuance of individual depredation Document Viewing: Comments and each other overlapping more than those permits pursuant to 50 CFR 21.41. materials we receive, as well as that are more distant. Under the 2017 EA, cormorants could Cormorant populations have supporting documentation we used in lethally be taken only to address increased over both the short term preparing this proposed rule, will be conflicts with aquaculture, human (2005–2015) and long term (1966–2015) available for public inspection on http:// health and safety, threatened and (Sauer et al. 2017). Permits issued by the www.regulations.gov in Docket No. endangered species (as listed under the Service to take birds are one method Endangered Species Act of 1973, 16 FWS–HQ–MB–2019–0103, or by available to reduce conflicts. However, U.S.C. 1531 et seq.) and State-listed appointment, during normal business prior to applying for permits to take species of management concern, and hours, at the U.S. Fish and Wildlife cormorants, individuals and entities personal property (under the 2017 EA, Service, Division of Migratory Bird experiencing conflicts with cormorants take of cormorants to protect wild and Management, 5275 Leesburg Pike, Falls should attempt nonlethal techniques publicly stocked fisheries would only be Church, Virginia. (e.g., hazing, habitat modification) to allowed if to protect threatened or Information Collection Requirements: alleviate the conflict. Nonlethal endangered species). Send your comments and suggestions techniques combined with lethal take Conflicts in aquatic systems continue on the information collection should be more effective and may to exist between cormorants and fish requirements by the date indicated ultimately result in less need for lethal stocks managed by Federal, State, and above in DATES to the Desk Officer for take in the future. Tribal agencies as recreational and/or the Department of the Interior at OMB– In response to ongoing damage at _ commercial fisheries. Conflicts also OIRA at (202) 395–5806 (fax) or OIRA aquaculture facilities and other damage exist between cormorants and [email protected] (email). and conflicts associated with increasing conservation of other species and Please provide a copy of your comments cormorant populations, the Service habitats in some areas. As fish-eating to the Service Information Collection administered regulations that included, birds, cormorant predation of fish Clearance Officer, U.S. Fish and in addition to Depredation Permits occurs not only at aquaculture facilities, Wildlife Service, 5275 Leesburg Pike, (located at 50 CFR 21.41), an but also in private recreational ponds MS: PRB (JAO/3W), Falls Church, VA Aquaculture Depredation Order (which and large aquatic ecosystems. While _ 22041–3803 (mail); or Info [email protected] was located at 50 CFR 21.47) beginning conflicts exist between cormorants and (email). Please reference OMB Control in 1998 and a Public Resource some stakeholders, birders and other Number 1018—Cormorants in the Depredation Order (which was located interested parties value cormorants for subject line of your comments. at 50 CFR 21.48), which began in 2003. their aesthetic and existential values. FOR FURTHER INFORMATION CONTACT: Both of these regulations were in place The Service is responsible for Jerome Ford, U.S. Fish and Wildlife until May 2016 when they were vacated balancing the lethal take of cormorants Service, Department of the Interior, by Court order (see more below). to alleviate conflicts where available (202) 208–1050. The Aquaculture Depredation Order data support such take and maintaining SUPPLEMENTARY INFORMATION: eliminated individual permit sustainable populations of cormorants requirements in 13 States for private and minimizing the regulatory burden Background individuals, corporations, State on Federal and State agencies, Tribes, The Service is the Federal agency agencies, and Federal agencies taking and individual citizens. In making delegated with the primary cormorants at aquaculture facilities. The decisions, the Service strives to use an
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effective and transparent decision- were found committing or about to natural resource managed and making process that ensures input from commit depredations on aquaculture conserved by public agencies, which migratory bird and fisheries stocks. That rule was located at 50 CFR included fish (i.e., free-swimming fish management programs and other 21.47. The Service continued to issue and stocked fish at Federal, State, and stakeholders, fulfills requirements depredation permits to address damage Tribal hatcheries that are intended for under NEPA, and addresses key and conflicts to property, natural release in public or Tribal waters), biological uncertainties. When resources, and threats to human health wildlife, plants, and their habitats. The determining allowable take, the Service and safety pursuant to 50 CFR 21.41. depredation order for public resources must consider uncertainty related to Any individual or entity conducting was previously located at 50 CFR 21.48. cormorant population dynamics, lethal take of cormorants under As with previous regulations, any estimated maximum sustainable lethal depredation permits or the depredation individual or entity conducting lethal take, and risk of over-exploitation. order was required to submit a report take of cormorants under depredation Furthermore, the Service must identify detailing the take to the Service permits or the depredation orders was monitoring requirements that could be annually. required to submit a report detailing the used to assess the effects of lethal take The increase in cormorant abundance take to the Service annually. on cormorant populations and to ensure across areas of North America and the To evaluate the potential effects on take is commensurate with population subsequent range expansion of the cormorant population from the status. Monitoring can also improve cormorants has been well documented implementation of the two depredation future decisions regarding allowable along with concerns of the negative orders, a mitigating measure required by take and how that allowable take could impacts associated with the expanding the 2003 FEIS was to review and renew, be determined. States, Tribes, and other population (e.g., Taylor and Dorr 2003, if warranted, the two depredation orders stakeholders can provide assistance and Hunter et al. 2006, Atlantic Flyway every 5 years. Subsequently, the Service information. The Service will formally Council and Mississippi Flyway developed an EA pursuant to NEPA in convene meetings with the flyways and Council 2010, Pacific Flyway Council 2009 and again in 2014 that determined other relevant stakeholders to develop a 2012). In response to increasing requests that a 5-year extension of the expiration specific cormorant population for depredation permits to alleviate date of the two depredation orders monitoring plan. This plan will be made damage and conflicts associated with would not threaten cormorant public within approximately one year of cormorants, the Service issued a Final populations and that activities publication of the final rule. Environmental Impact Statement (FEIS) conducted under the two depredation pursuant to NEPA and made changes to orders would not have a significant History of Management and Conflicts the regulations governing the take of impact on the human environment. Cormorants are migratory waterbirds cormorants in 2003. The 2003 FEIS Therefore, from October 2003 through protected by the MBTA. They are native considered direct, indirect, and May 2016, the Service authorized the to North America and range widely cumulative effects of alternatives for take of cormorants pursuant to the two across the continent, typically cormorant management in the United depredation orders (which covered inhabiting wetlands and adjacent States and discussed mitigating certain States), through the issuance of upland habitats. Cormorants also are measures. In October 2003, based on depredation permits for activities in found in some human-modified analysis in the FEIS and review of States not addressed in the two environments including airport airfields public and agency comments, the depredation orders, and through the and aquaculture ponds. The bird- Service published a final rule and notice issuance of scientific collecting permits management community generally of record of decision (68 FR 58022– (50 CFR 21.23). accepts that there are five different 58037, October 8, 2003) that modified Since the Court’s vacating of the breeding populations, variously the existing depredation order for depredation orders in May 2016 as described by different authors as Alaska, aquaculture facilities (previously discussed above, the Service has been Pacific (Western), Interior, Atlantic, and located at 50 CFR 21.47). The reviewing and issuing individual Southern populations. regulations became effective in depredation permits in the central and Cormorant abundance in North November 2003. The modified eastern lower 48 States pursuant to two America has increased dramatically depredation order for aquaculture separate analyses conducted under since the 1960s and 1970s, mostly due facilities eliminated the need for private NEPA. Individuals or entities apply for to the growth of the Interior and individuals, corporations, State these permits to address site-specific Atlantic populations. The current agencies, and Federal agencies to obtain conflicts, and each application is estimate of cormorant abundance in the a depredation permit to take cormorants logged, evaluated, and acted upon continental United States and Canada is at aquaculture facilities in 13 States. It (approved or rejected) on a case-by-case 872,455 to 983,188 birds (USFWS 2020). also authorized U.S. Department of basis based on the merits of the permit Prior to 1998, the sole method for Agriculture/Wildlife Services’ application. authorizing the lethal take of employees to take cormorants at roost The 2017 EA (USFWS 2017) depredating cormorants to alleviate sites in the vicinity of aquaculture evaluated issuing depredation permits damage and conflicts was through the facilities during October, November, to take cormorants for specific issuance of depredation permits December, January, February, March, circumstances across 37 central and pursuant to 50 CFR 21.41, which allows and April. eastern States and the District of the take of migratory birds that are That final rule in 2003 also Columbia. The selected alternative injuring ‘‘crops or other interests.’’ In established a depredation order that (Reduced Take Alternative) authorized 1998, the Service published a final rule authorized Federal agencies, State fish the average annual take that occurred (63 FR 10550–10561, March 4, 1998) and wildlife agencies, and Tribes in 24 during 2010–2015 (51,571 birds). This establishing a depredation order that States to take cormorants to reduce amount was well below the allowable authorized commercial freshwater damage and conflicts with public level resulting from the take analyses aquaculture producers in 13 States to resources without the need for a included in the EA (82 FR 52936–52937, take cormorants without the need for a depredation permit. At that time, the November 15, 2017). In December 2019, depredation permit when cormorants Service defined a public resource as a in response to requests for increased
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take to alleviate growing conflicts, the cormorants increase, the use of only Service would authorize State and Service issued a notice (84 FR 69762– depredation permits to address conflicts Tribal wildlife agencies to conduct 69762, December 19, 2019) that it would will become increasingly time- lethal take of double-crested cormorants implement a different proposed consuming and cumbersome, and will that is normally prohibited on lands alternative analyzed in the 2017 EA be less responsive to needs of those within their respective jurisdictions. (Potential Take Limit Alternative) that seeking relief from conflicts with The Service will issue this permit only had a higher annual take threshold, cormorants. when it is expected to reduce conflicts increasing the take of cormorants Estimating Allowable Take involving depredation at State- and authorized by permits to 74,396. Tribal-owned or operated aquaculture Management of cormorants in the To alleviate conflicts with facilities (including hatcheries); impacts western United States (Western cormorants, we propose using a method to health and human safety; impacts to population, P. albociliatus) is also called Potential Take Level (PTL) threatened and endangered species (as through site-specific, case-by-case analyses (Wade 1998, Runge et al. 2004) listed under the Endangered Species Act permits. The Service authorizes take of to determine the number of cormorants of 1973) and listed species identified in Western population cormorants that may be taken while maintaining the State- or Tribal-specific legislation as primarily to reduce predation-related species (and breeding populations) at threatened or endangered; damage to losses by cormorants of federally sustainable levels. This process has State- or Tribal-owned property and threatened or endangered juvenile been used to determine allowable take assets; and depredations of wild and salmon (Oncorhyncus spp.) and levels for cormorants in a previous EA publicly stocked fish stocked by State steelhead (O. mykiss) migrating to the (USFWS 2017) and for other species, agencies or Tribes. Those States and Pacific Ocean. Additional including several bird species (e.g., Tribes not wishing to obtain this new authorizations for take occur at Federal, USFWS 2009, Runge et al. 2009, permit could apply for depredation State, and Tribal hatcheries rearing Johnson et al. 2012, Zimmerman et al. permits (50 CFR 21.41) to address federally threatened or endangered fish 2019). Methods used to determine conflicts with cormorants. However, species, to protect aquaculture facilities, population sizes and allowable take under the scope of the November 2017 and for removing nests related to levels in this proposed rule are detailed EA, these permits do not authorize take infrastructure maintenance. The U.S. in USFWS (2020; Draft Environmental of cormorants to reduce or prevent Army Corps of Engineers’ Double- Impact Statement: Management of conflicts with wild and publicly stocked crested Cormorant Management Plan to conflicts associated with double-crested fisheries (except for threatened or cormorants). The median amount of Reduce Predation of Juvenile Salmonids endangered species). in the Columbia River Estuary—Final allowable take resulting from the Environmental Impact Statement (FEIS; analysis was 163,219 birds annually. The Service would retain overall USACE 2015) guides management However, we recommend being more authority for the take of double-crested activities related to cormorant take. The conservative and allowing take only up cormorants to ensure that levels of take National Oceanographic and to the lower 20 percent of the are consistent with management Atmospheric Administration’s National distribution of the PTL annually objectives. States and Tribes must use Marine Fisheries Service (NOAA (123,157 birds). Population-specific nonlethal methods, and determine that Fisheries) had previously determined recommended levels of take are: those methods are ineffective, before that a reduced cormorant population of Atlantic, 35,938; Interior, 77,050; lethally taking double-crested 5,380 to 5,939 breeding pairs on East Western, 8,881; and Southern, 1,288. At cormorants. Lethal management should Sand Island in the Columbia River those levels of take, the continental be considered as part of an integrated Estuary would restore juvenile steelhead population of double-crested approach to managing cormorant survival to the environmental baseline cormorants is expected to average about conflicts and used only when other levels (NOAA Fisheries 2014), and the 815,000 birds. methods fail to resolve conflicts. No Service authorized lethal take at levels This proposed rule would bring all permit is required merely to scare or that attempt to achieve that colony populations of double-crested herd migratory birds other than abundance. Specifically, the Service cormorants under a common assessment threatened or endangered species or authorized approximately 2,300 framework to determine allowable bald or golden eagles (see 50 CFR cormorants to be lethally taken each levels of take. However, levels of take 21.41). The Service would periodically year under depredation permits, for each population could differ based determine the population-specific scientific collecting permits, and special on their current abundances, population numbers of double-crested cormorants purpose permits. biology, and population-specific that could be taken lethally during a The Service expects the number of management objectives. specified number of years in efforts to conflicts to increase, and we expect that reduce conflicts while sustaining demand for authorizations to take Proposed Special Double-Crested cormorant abundances, and would track cormorants will continue to increase as Cormorant Permit authorized take through permits issued a means to reduce those conflicts in the The Service proposes to add a new to States and Tribes to ensure take does future. For example, between 2007 and permit option under 50 CFR part 21 not exceed those levels specified in the 2018, the number of permit requests to (Special Double-Crested Cormorant PTL. The annual allocation of take to take depredating birds (exclusive of Permit) that would be available to State States and Tribes would be based on requests to act under the depredation and Tribal wildlife agencies in the 48 recent demand by those entities and orders) increased from slightly less than contiguous United States to manage adjusted as needed (while remaining at 200 to almost 300 (USFWS, conflicts specifically associated with or below population-specific allowable unpublished data), and the number of double-crested cormorants. The special take levels) to respond to spatial and cormorants taken annually between permit would be available only to a temporal changes in population status 2004 and 2015 increased from about State or Tribal wildlife management and the need to reduce conflicts in 42,000 to 66,500 (USFWS 2017: 50 CFR agency responsible for migratory bird specific regions. The Service will 21.24, 21.41, 21.47, and 21.48 management on lands under their prepare reports periodically, as authorizations only). As requests to take jurisdiction. Under this permit, the necessary, to provide the public with
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information regarding the take of apply if an air rifle or an air pistol is 12. Nothing in the permit should be cormorants and the extent to which this used. construed to authorize the take of permit, along with other management 5. Individuals conducting lethal cormorants, their eggs, or nests contrary tools (e.g., depredation permits per 50 control may not use decoys, calls, or to any State or Tribal law or regulation CFR 21.41), is achieving management other devices or bait to lure birds within or on any Federal land without written objectives. gun range. authorization by the appropriate The special double-crested cormorant 6. Methods of take are at the management authority. Further, none of permit would be subject to the following discretion of the permittee responsible the privileges granted under the permit conditions/restrictions: for the action. Methods may include, shall be exercised without any State or 1. States and Tribes must use but are not limited to, firearms, traps, Tribal permit that may be required for nonlethal methods, and determine that egg and nest manipulation, and other such activities. those methods are ineffective, before techniques that are consistent with 13. The Service reserves the authority lethally taking double-crested accepted wildlife damage management to immediately suspend or revoke any cormorants. States and Tribes and their programs. Only 100 percent corn oil, a permit if the Service finds that the terms subpermittees must make efforts to substance exempted from regulation by and conditions set forth in the permit avoid disturbance to co-nesting species. the Environmental Protection Agency have not been adhered to, as specified Existing research findings and under the Federal Insecticide, in 50 CFR 13.27 and 13.28. publications detailing appropriate Fungicide, and Rodenticide Act, may be Since November 2017, permits have methods and/or models for reducing used to oil eggs. been available only to address conflicts conflicts should be used to justify 7. States and Tribes and their with aquaculture, human health and activities. employees and subpermittees may safety, threatened and endangered species, and personal property; take of 2. A permit under this section does possess, transport, and otherwise cormorants to protect wild and publicly not authorize the taking of any other dispose of double-crested cormorants stocked fisheries has not been migratory bird, including other species taken. Double-crested cormorants killed authorized unless warranted to of cormorants; the disturbance of bald or and nests/eggs destroyed under the protected threatened or endangered golden eagles; or the take of any species authority of this permit must be species. The conflicts with stocked listed under the Endangered Species Act properly disposed of, including fisheries are increasingly causing donation to public museums or public as threatened or endangered. If these concerns with State and Federal wildlife scientific and educational institutions impacts to other migratory bird species agencies, particularly those involved for exhibition, scientific, or educational or to threatened and endangered species with providing recreational fishing purposes, or buried or incinerated. This are likely to occur, the permittee must opportunities. As cormorant abundance obtain permits specifically authorizing permit does not allow for birds or their increases, and even at current levels, the those activities (i.e., additional parts or nests/eggs to be sold, offered for issuance of individual depredation migratory bird, Eagle Act and/or sale, bartered, or shipped for the permits to address conflicts is becoming threatened and endangered species purpose of sale or barter. increasingly time-consuming and permits). 8. The State or Tribe must also require lengthy in some cases. With the 3. Actions under the permit may be the property owner or occupant on proposed special double-crested conducted during any time of the year whose premises the State or Tribe is cormorant permit, which increases the on lands under the jurisdiction of the conducting activities to allow, at all flexibility of States and Tribes to State or Tribe, but only when reasonable times, including during address issues and also expands the cormorants are committing or are about actual operations, free and unrestricted scope of conflicts that can be addressed to commit depredations at Tribal- and access to any Service special agent or to wild and publicly stocked fish, the State-owned or operated aquaculture refuge officer, State or Tribal wildlife or Service expects that efforts to reduce facilities (including hatcheries); to deputy wildlife agent, warden, those conflicts will increase, including alleviate impacts to health and human protector, or other wildlife law lethal take of birds, nests, and eggs. safety; reduce impacts to threatened and enforcement officer on the premises Localized abundances of cormorants endangered species (as listed under the where they are, or were, conducting may decline as a result of these efforts, Endangered Species Act) and listed activities. but regional and continental species identified in State- or Tribal- 9. States and Tribes may designate populations are not likely to be specific legislation as threatened or subpermittees who must operate under negatively impacted. endangered; and to prevent damage to the conditions of the permit. The Service expects that, by allowing State- or Tribal-owned property and 10. Any employee or subpermittee States and Tribes to address conflicts assets. This permit would also apply to authorized by the State or Tribe to carry through a special permit, more the reduction and prevention of out actions under the special permit aggressive management activities will depredations of wild and publicly must retain in their possession a copy result. By authorizing conflict- stocked fish stocked by State agencies or of the State’s or Tribe’s permit while management activities at the State or Tribes when supported by information carrying out any action. Tribal level, instead of at the Service that take would reduce such conflicts. 11. Any State or Tribal agency, when Regional level, management activities Permits will be issued annually. exercising the privileges of this permit, would be more responsive and timely Permittees will be required to submit an must keep records of all activities, than is currently the case. Quicker annual report by December 31 each year including those of subpermittees, resolution of conflicts ultimately may detailing the amount of lethal take that carried out under the authority of the result in fewer complaints regarding occurred under their permit and for special permit. Prior to any permit cormorants. However, in expanding what purpose the take was conducted. renewal, the Service will require an authority given to the States and Tribes 4. Anyone undertaking lethal control annual report detailing the activities via this permit, workload burdens may with a firearm must use nontoxic shot conducted under the permit and the shift with more being borne by the or nontoxic bullets (50 CFR 20.21). numbers of cormorants/nests/eggs States and Tribes and less by the However, this prohibition would not lethally taken, treated, or destroyed. Service.
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Importantly, reducing the abundance and two on February 12, 2020. your address, phone number, email of double-crested cormorants is not the Additionally, we conducted two address, or other personal identifying goal of the Service or this proposed webinars provided only to Tribal information in your comment, you management action. Reducing their members on February 19 and 27, 2020. should be aware that your entire overall abundance does not guarantee We provided all attendees of all comment—including your personal that conflicts in specific areas will webinars with information on the identifying information—may be made decrease. If cormorants are attracted to following topics regarding cormorants, publicly available at any time. While an area due to food resources, nesting their management, and the regulations you can ask us in your comment to habitats, or other factors, those places process: (1) Biology and population withhold your personal identifying will remain attractive regardless of the changes; (2) background of the issues information from public review, we size of the cormorant population and and previous management approaches; cannot guarantee that we will be able to may still experience damage to the (3) current management of conflicts; (4) do so. We will consider, but possibly resources. Rather, the goal of the Service proposed approaches and alternatives; may not respond in detail to, each is to reduce the number of conflicts with and (5) the planning process for the comment. We will summarize all cormorants by combining lethal and NEPA analysis. We also informed comments we receive during the nonlethal methods and allowing the attendees that they could provide comment period and respond to them in lethal take of cormorants only when comments on the proposed actions and the preamble of the final rule. supported by information that such take the scope of the NEPA review via a We seek comments or suggestions would reduce conflicts. As a website (http://www.regulations.gov, from the public, governmental agencies, consequence, abundance of cormorants Docket No. FWS–HQ–MB–2019–0103) Tribes, the scientific community, in some areas may be reduced, but or by U.S. mail or hand-delivery to industry, or any other interested parties. regional and continental populations Public Comments Processing, Attn: To ensure that the rulemaking process will be managed at sustainable levels, FWS–HQ–MB–2019–0103; U.S. Fish effectively evaluates all potential issues albeit at somewhat reduced abundances. and Wildlife Service Headquarters, MS: and impacts, we are seeking comments The Service also wants to ensure PRB (JAO/3W), 5275 Leesburg Pike, and suggestions on the following: accountability not only in determining Falls Church, VA 22041–3803. (1) The balance we should seek allowable take, but also in reporting of The Department of the Interior’s between cormorant abundance and actual take by permittees. We will policy is, whenever possible, to afford mitigation of conflicts with them; annually review reports submitted by the public an opportunity to participate (2) whether we sufficiently addressed permit holders and will periodically in the rulemaking process. We received a reasonable range of alternative assess the overall impact of this permit more than 1,400 comments in response management options; program to ensure compatibility with to the ANPR. You may review the (3) the level of interest and long-term conservation of double- comments received at the Federal participation in use of a new special crested cormorants. The Service eRulemaking Portal: http:// permit by States and Tribes, and the believes our proposed approach results www.regulations.gov in Docket No. potential issues those entities would in the transparency and accountability FWS–HQ–MB–2019–0103. We need to address if they availed necessary to make informed decisions considered those comments in themselves of such a permit; about and promote adherence to developing this proposed rule, and a (4) limitations as to the scope and authorized levels of take. summary of the comments will be scale (e.g., geographic, seasonal) under included in the NEPA document Public Comments which cormorant control activities associated with this rulemaking action. should be conducted; and On January 22, 2020 (85 FR 3601– In addition, we invite interested persons (5) the best means to monitor 3603), the Service published an advance to submit written comments, cormorant take and abundance to ensure notice of proposed rulemaking (ANPR) suggestions, or recommendations the Service and its partners meet and announced our intent to prepare a regarding this proposed regulation. objectives of reducing conflicts and NEPA document indicating that the Before promulgating final regulations, maintaining sustainable abundances of Service intended to establish new we will consider all comments we cormorants. regulations regarding the management receive related to this rulemaking In addition, we ask for information of double-crested cormorants. The action, including those on the ANPR, that can be used to make our assessment comment period for the ANPR the NEPA document, and this proposed of economic impacts more robust. In continued through March 9, 2020. The rule. The comments, and any additional particular we are seeking data on the ANPR listed possible alternatives information we receive, may lead to number, type, and locality of composed of the following: final regulations that differ from those establishments that will likely benefit (1) Establish a new permit for State provided in this proposal. from our proposal along with data, You may submit your comments and and Tribal wildlife agencies for including costs of implementation, to materials concerning this proposed rule authorizing certain cormorant help us better characterize the extent of by one of the methods listed in management and control activities; benefits. We also ask for information (2) Establish an aquaculture ADDRESSES. We will not consider and data to help us better characterize depredation order; and comments sent by email or fax. We will the location, types, and number of (3) Both (1) and (2) in combination. not consider hand-delivered comments recreational fisheries that are expected We also announced that several that we do not receive or mailed to benefit from our proposal. public scoping meetings would be held, comments that are not postmarked by and that specific dates and times for the the date specified in DATES, or written Required Determinations public meetings would be available on comments sent to an address other than Regulatory Planning and Review the internet at https://www.fws.gov/ the one listed in ADDRESSES. birds/management/managed-species/ We may post all comments in their (Executive Orders 12866 and 13563) double-crested-cormorants.php. A total entirety—including your personal Executive Order 12866 provides that of four public scoping webinars were identifying information—on http:// the Office of Information and Regulatory convened, two on February 11, 2020, www.regulations.gov. Before including Affairs (OIRA) in the Office of
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Management and Budget (OMB) will cormorants to reduce depredation of have a significant economic impact on review all significant rules. In wild and publicly stocked fish stocked a substantial number of small entities. accordance with the criteria in by State agencies or Tribes, thus According to the Small Business Executive Order 12866, we do not enhancing the scope of conflict Administration, small entities include believe this proposed action is a resolution to more comprehensively small organizations such as significant regulatory action subject to address areas of concern. However, the independent nonprofit organizations; OMB review; however, OIRA has total number of cormorants from each small governmental jurisdictions, waived their review regarding their population that could be taken annually including school boards and city and significance determination of this would be determined by the Service to town governments that serve fewer than proposed rule. ensure that cormorant populations are 50,000 residents; and small businesses This rule will not have an annual sustainable. (13 CFR 121.201). Small businesses economic effect of $100 million or The Service does not have empirical include finfish farming and fish adversely affect any economic sector, information to quantify the changes in hatcheries (NAICS 112511) and other productivity, competition, jobs, the costs as a result of this new permit, types of commercial aquaculture farms environment, or other units of because we do not know how many (NAICS Code 112519). The small government. This proposed action will States and Tribes would avail business size standard defined for these not create inconsistencies with other themselves of this permit and the extent businesses (as defined by the U.S. Small agencies’ actions or otherwise interfere to which conflicts would be addressed Business Administration) is businesses with an action taken or planned by using it. However, we expect that the with revenues under $0.75 million. another agency. Our draft economic overall cost and regulatory burden to The Service has difficulties estimating analysis determined that this rule is individuals, businesses, and State, expected to result in positive economic impacts to recreational fisheries because Tribal, and Federal government agencies few studies have investigated direct benefits to both the commercial associated with this new permit would aquaculture industry as well as the economic impacts of cormorant be lower than exists under current management on recreational fisheries. recreational sport fishing industry. regulations. The reduction would be the E.O. 13563 reaffirms the principles of Although a few studies have estimated result of the need for fewer individual E.O. 12866 while calling for impacts to local economies, loss of depredation permits needed to address improvements in the Nation’s regulatory fishing day activities in those local areas system to promote predictability, to conflicts compared to single State or may be offset through engaging in reduce uncertainty, and to use the best, Tribal permits that could be used; angling opportunities elsewhere. While most innovative, and least burdensome hence, total costs associated with permit it is feasible that this proposed rule tools for achieving regulatory ends. The applications and biological assessments could have localized effects on Executive order directs agencies to of those applications likely would be recreational fisheries, data does not consider regulatory approaches that lower. exist to predict where those effects reduce burdens and maintain flexibility Executive Order 13771 could occur. Further research is and freedom of choice for the public necessary to determine whether any where these approaches are relevant, We do not believe this proposed rule impacts that may be seen at local scales feasible, and consistent with regulatory is an E.O. 13771 (‘‘Reducing Regulation can be extended to larger scales. objectives. E.O. 13563 emphasizes and Controlling Regulatory Costs’’) (82 However, the Service believes that the further that regulations must be based FR 9339, February 3, 2017) regulatory proposed rule will result in an overall on the best available science and that action because we believe this rule is net benefit to facilities as it will enable the rulemaking process must allow for not significant under E.O. 12866; them to more readily and easily obtain public participation and an open however, OIRA has waived their review permits to control double-crested exchange of ideas. We have developed regarding their E.O. 12866 significance cormorants that are negatively this proposed rule in a manner determination of this proposed rule. impacting their operations. Thus we are consistent with these requirements. Regulatory Flexibility Act certifying that, if promulgated, the Codifying a new permit for the proposed rule would not have a management of double-crested Under the Regulatory Flexibility Act significant economic impact on a cormorants would provide an additional (RFA; 5 U.S.C. 601 et seq.), as amended substantial number of small business tool for States and Tribes to by the Small Business Regulatory entities. Therefore, an initial regulatory appropriately manage conflicts within Enforcement Fairness Act of 1996 flexibility analysis is not required. their borders, while maintaining overall (SBREFA; 5 U.S.C. 801 et seq.), authority for the take of birds within the whenever an agency is required to Unfunded Mandates Reform Act publish a notice of rulemaking for any Service. Further, current regulations In accordance with the Unfunded proposed or final rule, it must prepare allow the take of cormorants only for the Mandates Reform Act (2 U.S.C. 1501 et and make available for public comment purposes of reducing conflicts with and seq.), we have determined the following: damage to aquaculture, human health a regulatory flexibility analysis that and safety, threatened and endangered describes the effects of the rule on small (a) This proposed rule would not species (as listed under the Endangered entities (i.e., small businesses, small ‘‘significantly or uniquely’’ affect small Species Act of 1973) and State-listed organizations, and small government government activities, because the species of management concern, and jurisdictions). However, no regulatory Federal Government would not require personal property. Many of the conflicts flexibility analysis is required if the States to obtain this permit. A small with cormorants involve depredations head of the agency certifies the rule will government agency plan is not required. of sport fish by cormorants, for which not have a significant economic impact (b) This proposed rule would not there is no relief under current Federal on a substantial number of small produce a Federal mandate on local, regulations unless warranted to reduce entities. The SBREFA amended the RFA State, or Tribal governments or private impacts to threatened and endangered to require Federal agencies to provide a entities. Therefore, this action is not a fish species listed under the ESA. This certification statement of the factual ‘‘significant regulatory action’’ under new permit would allow the take of basis for certifying that the rule will not the Unfunded Mandates Reform Act.
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Takings a. A brief description of your State’s Total Estimated Number of Annual In accordance with E.O. 12630, this or Tribe’s double-crested cormorant Respondents: 700. proposed rule does not contain a conflicts, including physical location(s); Total Estimated Number of Annual provision for taking of private property, b. A detailed statement showing that Responses: 700. and would not have significant takings the double-crested cormorant Estimated Completion Time per implications. A takings implication management and take activities will Response: Varies from 45 minutes to 16 assessment is not required. address one or more of the issues hours, depending on activity. specified above in paragraph (1); Total Estimated Number of Annual Federalism c. The requested annual take of Burden Hours: 4,563. This proposed rule would not double-crested cormorants, including Respondent’s Obligation: Voluntary. interfere with the States’ or Tribes’ eggs and nests; Frequency of Collection: On occasion abilities to manage themselves or their d. A statement indicating what for applications; annually or on funds. This rule would not have information will be collected to assess occasion for reports. sufficient federalism effects to warrant whether the management and take of Total Estimated Annual Nonhour preparation of a federalism summary double-crested cormorants is alleviating Burden Cost: None. As part of our continuing effort to impact statement under E.O. 13132. the damage or other conflict; reduce paperwork and respondent e. A statement indicating that the Civil Justice Reform burdens, we invite the public and other State or Tribe will inform and brief all Federal agencies to comment on any In accordance with E.O. 12988, we employees and subpermittees of the aspect of this information collection, have reviewed this proposed rule and requirements of these regulations and including: determined that it will not unduly permit conditions; burden the judicial system and meets (1) Whether or not the collection of f. A list of all subpermittees who may information is necessary for the proper the requirements of sections 3(a) and conduct activities under the Special 3(b)(2) of the Order. performance of the functions of the Double-Crested Cormorant Permit, agency, including whether or not the Paperwork Reduction Act including their names, addresses, and information will have practical utility; telephone numbers; and This proposed rule contains new (2) The accuracy of our estimate of the information collections. All information g. The name and telephone number of burden for this collection of collections require approval under the the individual in your agency who will information, including the validity of Paperwork Reduction Act of 1995 (44 be in charge of the double-crested the methodology and assumptions used; U.S.C. 3501 et seq.). We may not cormorant management activities (3) Ways to enhance the quality, conduct or sponsor and you are not authorized under the permit. utility, and clarity of the information to required to respond to a collection of (2) Designation of Subpermittees: be collected; and information unless it displays a States and Tribes may designate (4) How might the agency minimize currently valid OMB control number. subpermittees who must operate under the burden of the collection of The new reporting and/or recordkeeping the conditions of the permit. information on those who are to requirements identified below require Subpermittees can be employees of respond, including through the use of approval by OMB: State and Tribal wildlife agencies, appropriate automated, electronic, (1) FWS Form 3–200–90, Permit USDA Wildlife Services employees, and mechanical, or other technological Application—Special Double-Crested employees of Federal and State agencies collection techniques or other forms of Cormorant Permit (50 CFR part 21): This or private incorporated companies information technology, e.g., permitting new permit would be available only to specializing in wildlife damage electronic submission of response. a State or Tribal wildlife management abatement. Send your comments and suggestions agency responsible for migratory bird (3) FWS Form 3–202–56, Annual on this information collection to OMB management on lands under their Report: The State or Tribe must submit by the date indicated in DATES at (202) jurisdiction. Under this permit, the an annual report (FWS Form 3–202–56) 395–5806 (fax) or OIRA_Submission@ Service would authorize States and detailing activities, including the time, omb.eop.gov (email). Please provide a Tribal wildlife agencies to conduct numbers, and locations of birds, eggs, copy of your comments to the Service lethal take to reduce conflicts involving and nests taken and nonlethal Information Collection Clearance depredation at State- and Tribal-owned techniques utilized, before December 31 Officer, U.S. Fish and Wildlife Service, or operated aquaculture facilities of each year. The Service will require an 5275 Leesburg Pike, MS: PRB (JAO/3W), (including hatcheries); impacts to health annual report by the State or Tribe prior Falls Church, VA 22041–3803 (mail); or and human safety; impacts to threatened to any permit renewal. [email protected] (email). Please and endangered species (as listed under (4) Recordkeeping Requirements: Any reference OMB Control Number 1018– the Endangered Species Act of 1973) State or Tribal agency, when exercising Cormorants in the subject line of your and listed species identified in State- or the privileges of this permit, must keep comments. Tribal-specific legislation as threatened records of all activities, including those or endangered; damage to State- or of subpermittees, carried out under the National Environmental Policy Act Tribal-owned property and assets; and authority of the special permit. We are evaluating this proposed depredations of wild and publicly Title of Collection: Federal Fish and regulation in accordance with the stocked fish stocked by State agencies or Wildlife Permit Applications and criteria of the NEPA, the Department of federally recognized Tribes. Reports—Special Double-Crested the Interior regulations on Any State or Tribal wildlife agency Cormorants; 50 CFR 21. Implementation of the NEPA (43 CFR wishing to obtain a permit must submit OMB Control Number: 1018–New. 46.10–46.450), and the Department of an application (FWS Form 3–200–90) to Form Numbers: FWS Forms 3–200–90 the Interior Manual (516 DM 8). We will the appropriate Regional Director and 3–202–56. complete our analysis, in compliance containing the general information and Type of Review: New. with NEPA, before finalizing this certification required by 50 CFR 13.12(a) Respondents/Affected Public: State regulation. When completed, you may plus the following information: and/or Tribal governments. review the NEPA document and any
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comments received at the Federal Clarity of This Proposed Rule double-crested cormorant depredation eRulemaking Portal: http:// on fish resources in the Pacific Flyway. We are required by Executive Orders Pacific Flyway Council, U.S. Fish and www.regulations.gov in Docket No. 12866 and 12988 and by the FWS–HQ–MB–2019–0103. Wildlife Service, Portland, Oregon. Presidential Memorandum of June 1, Runge, M.C., W.L. Kendall, and J.D. Nichols. Compliance With Endangered Species 1998, to write all rules in plain 2004. Exploitation. Pages 303–328 in Act Requirements language. This means that each rule we W.J. Sutherland, I. Newton, and R.E. publish must: Green, editors. Bird ecology and Section 7 of the ESA of 1973, as (a) Be logically organized; conservation: a handbook of techniques. amended (16 U.S.C. 1531–44), requires (b) Use the active voice to address Oxford University Press, Oxford, United that ‘‘The Secretary [of the Interior] readers directly; Kingdom. shall review other programs (c) Use clear language rather than Runge, M.C., J.R. Sauer, M.L. Avery, B.F. administered by him and utilize such jargon; Blackwell, and M.D. Koneff. 2009. programs in furtherance of the purposes (d) Be divided into short sections and Assessing allowable take of migratory of this Act’’ (16 U.S.C. 1536(a)(1)). It sentences; and birds. Journal of Wildlife Management further states that ‘‘[e]ach Federal (e) Use lists and tables wherever 73:556–565. Sauer, J.R., D.K. Niven, J.E. Hines, D.J. agency shall, in consultation with and possible. Ziolkowski, Jr., K.L. Pardieck, J.E. Fallon, with the assistance of the Secretary, If you feel that we have not met these requirements, send us comments by one and W.A. Link. 2017. The North insure that any action authorized, American Breeding Bird Survey, results funded, or carried out by such agency of the methods listed in ADDRESSES. To better help us revise the rule, your and analysis 1966–2015. Version . . . is not likely to jeopardize the 2.07.2017. USGS Patuxent Wildlife comments should be as specific as continued existence of any endangered Research Center, Laurel, Maryland. species or threatened species or result in possible. For example, you should tell Available at: https://www.mbr- the destruction or adverse modification us the numbers of the sections or pwrc.usgs.gov/bbs/bbs.html. of [critical] habitat.’’ Before the Service paragraphs that are unclearly written, Taylor, J.D., II and B. Dorr. 2003. Double- issues a final rule regarding the issuance which sections or sentences are too crested cormorant impacts to commercial of a special permit available to the long, the sections where you feel lists or and natural resources. In K. Fagerstone and G. Witmer, editors. Tenth Wildlife States and Tribes for the take of tables would be useful, etc. Damage Management Proceedings, Hot cormorants to reduce conflicts, we will Energy Supply, Distribution, or Use Springs, Arkansas. comply with provisions of the ESA as (E.O. 13211) USACE. 2015. Final Environmental Impact necessary to ensure that the new E.O. 13211 requires agencies to Statement: Double-crested cormorant regulation is not likely to jeopardize the prepare Statements of Energy Effects management plan to reduce predation of continued existence of any species when undertaking certain actions. This juvenile salmonids in the Columbia designated as endangered or threatened proposed rule is not a significant River Estuary. Portland District. USFWS. 2009. Final Environmental or destroy or adversely modify its regulatory action under E.O. 13211 and critical habitat. Assessment: Extended management of would not significantly affect energy double-crested cormorants under 50 CFR Government-to-Government supplies, distribution, or use. Therefore, 21.47 and 21.48. Division of Migratory Relationship With Tribes this action is not a significant energy Bird Management, Arlington, Virginia. action. No Statement of Energy Effects is USFWS. 2017. Environmental assessment for In accordance with Executive Order required. issuing depredation permits for double- 13175, ‘‘Consultation and Coordination crested cormorant management. Division with Indian Tribal Governments,’’ and Literature Cited of Migratory Bird Management, Falls the Department of the Interior’s manual Church, Virginia. Atlantic Flyway Council and Mississippi at 512 DM 2, we are considering the USFWS. 2020. Draft Environmental Impact Flyway Council. 2010. Atlantic and Statement: Management of conflicts possible effects of this proposed rule on Mississippi Flyways double-crested federally recognized Indian Tribes. The associated with double-crested cormorant management plan. Cormorant cormorants. Division of Migratory Bird Department of the Interior strives to ad hoc committees, Atlantic and Management, Falls Church, Virginia. Mississippi Flyway Councils, Nongame strengthen its government-to- Wade, P. 1998. Calculating limits to the Migratory Bird Technical Sections. government relationship with Indian allowable human-caused mortality of Tribes through a commitment to Hunter, W.C., W. Golder, S. Melvin, and J. Wheeler. 2006. Southeast United States cetaceans and pinnipeds. Marine consultation when appropriate and Regional Waterbird Plan. Waterbird Mammal Science 14:1–37. recognition of their right to self- Conservation for the Americas. Available Zimmerman, G.S., B.A. Millsap, M.L. Avery, governance and tribal sovereignty. We at: http:// J.R. Sauer, M.C. Runge, and K.D. readily acknowledge our responsibility www.waterbirdconservation.org/. Richkus. 2019. Allowable take of black to communicate meaningfully with Johnson, F.A., M.A.H. Walters, and G.S. vultures in the eastern United States. recognized Federal Tribes on a Boomer. 2012. Allowable levels of take Journal of Wildlife Management 83:272– government-to-government basis. We for the trade in Nearctic songbirds. 282. have evaluated this proposed rule under Ecological Applications 22:1114–1130. NOAA Fisheries. 2014. Endangered Species List of Subjects in 50 CFR Part 21 the criteria in Executive Order 13175 Act Section 7(a)(2) Supplemental Exports, Hunting, Imports, Reporting and under the Department’s tribal Biological Opinion: Consultation on consultation policy and have remand for operation of the Federal and recordkeeping requirements, determined that this rule may have a Columbia River Power System. NOAA Transportation, Wildlife. substantial direct effect on federally Fisheries Log Number NWR–2013–9562. Proposed Regulation Promulgation recognized Indian tribes. Accordingly, Available at: https:// we have initiated outreach to Tribes and www.fisheries.noaa.gov/resource/ For the reasons described in the document/consultation-remand- will initiate government-to-government operation-federal-columbia-river-power- preamble, we propose to amend part 21 consultation with federally recognized system. of subchapter B, chapter I, title 50 of the Indian tribes to ensure compliance with Pacific Flyway Council. 2012. Pacific Flyway Code of Federal Regulations, as set forth the Executive order. Plan: a framework for the management of below:
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PART 21—MIGRATORY BIRD PERMITS (1) A brief description of your State’s are not limited to, firearms, traps, egg or Tribe’s double-crested cormorant and nest manipulation, and other ■ 1. The authority citation for part 21 conflicts, including physical location(s); damage control techniques consistent continues to read as follows: (2) A detailed statement showing that with accepted wildlife damage- Authority: 16 U.S.C. 703–712. the double-crested cormorant management programs. Only 100 management and take activities will percent corn oil, a substance exempted ■ 2. Add § 21.28 to read as follows: address one or more of the issues from regulation by the Environmental specified in paragraph (a) of this Protection Agency under the Federal § 21.28 Special double-crested cormorant permit. section; Insecticide, Fungicide, and Rodenticide (3) The requested annual take of Act, may be used to oil eggs. (a) What is the special double-crested double-crested cormorants, including (iv) Take using firearms must use cormorant permit and what is its eggs and nests; nontoxic shot or nontoxic bullets purpose? The special double-crested (4) A statement indicating what (§ 20.21 of this subchapter). However, cormorant permit is a permit issued by information is available and will be this prohibition would not apply if an the Service to a State or Tribal wildlife collected to assess whether the air rifle or an air pistol is used. agency authorizing management and management and take of double-crested (v) Individuals conducting lethal take take activities that are prohibited cormorants is alleviating the damage or activities may not use decoys, calls, or without authorization on lands within other conflict; other devices or bait to lure birds within their jurisdiction. We will issue such a (5) A statement indicating that the gun range. permit only when the State or Tribal State or Tribe will inform and brief all (2) When may a State or Tribe wildlife agency requests it. The employees and subpermittees of the conduct management and control management and take activities requirements of these regulations and activities? States and Tribes and their conducted under the permit are permit conditions; employees and subpermittees may intended to reduce or prevent conflicts (6) A list of all subpermittees who conduct management activities, associated with cormorants for the may conduct activities under the including lethal take, at any time of following concerns: Special Double-Crested Cormorant year. (1) Depredation of fish at State- and Permit, including their names, (3) How must States and Tribes Tribal-owned or operated aquaculture addresses, and telephone numbers; and dispose of or utilize cormorants taken facilities, including hatcheries; (7) The name and telephone number under this permit? States and Tribes and (2) Realized and potential impacts to of the individual in your agency who their employees and subpermittees may human health and safety (e.g., collisions will be in charge of the double-crested possess, transport, and otherwise of airplanes with birds, fecal cormorant management activities dispose of double-crested cormorants contamination of urban wetlands); authorized under the permit. taken under the regulations in this section. States and Tribes must utilize (3) Impacts to threatened and (d) What are the conditions of the such birds by donation to public endangered species (as listed under the permit? The special double-crested museums or public institutions for Endangered Species Act of 1973, as cormorant permits are subject to the scientific or educational purposes, or by amended (16 U.S.C. 1531 et seq.)) and general conditions in 50 CFR part 13, burying or incinerating them. States, listed species identified in State- or the conditions elsewhere in this section, Tribes, their employees, and Tribal-specific legislation as threatened and, unless otherwise specifically subpermittees may not sell, offer for or endangered; authorized on the permit, the conditions outlined below: sale, barter, or ship for the purpose of (4) Damage to State- or Tribal-owned (1) What are the limitations on sale or barter any double-crested property and assets; and management and take activities? (i) cormorants taken under this section or (5) Depredation of wild and publicly Take of double-crested cormorants as a their parts or eggs. stocked fish stocked by State agencies or management tool under this section may (4) How does the permit relate to federally recognized Tribes. not exceed the number authorized by existing State and Tribal law and (b) Who may receive a permit? Only the permit. States and Tribes must use Federal land? No person conducting State and Tribal wildlife agencies are nonlethal methods, and determine that management and take activities under eligible to receive a permit to undertake those methods are ineffective, before the regulations in this section should management and take activities. lethally taking double-crested construe the permit to authorize the Additionally, only employees or cormorants. killing of double-crested cormorants subpermittees of a permitted State or (ii) A permit under this section does contrary to any State or Tribal law or Tribal wildlife agency may undertake not authorize the take of any other regulations or on any Federal land activities for double-crested cormorants migratory bird, including other species without specific written authorization in accordance with the conditions of cormorants; the take of bald or golden by the responsible management agency. specified in the permit, conditions eagles; or the take of any species listed No person may exercise the privileges specified in 50 CFR part 13, and under the Endangered Species Act as granted under this section unless that conditions specified in paragraph (d) of threatened or endangered. If these person possesses any permits required this section. impacts to other migratory bird species for such activities by any State, Tribal, (c) How does a State or Tribe apply or to threatened and endangered species or Federal land manager. for a permit? Any State or Tribal are likely to occur, the permittee must (5) How will the Service ensure that wildlife agency wishing to obtain a obtain permits specifically authorizing persons conducting control activities permit must submit an application those activities (i.e., additional have the authority to do so? Any State (FWS Form 3–200–90) to the migratory bird, Eagle Act and/or or Tribal employee or subpermittee appropriate Regional Director (see threatened and endangered species authorized to carry out management and § 13.11(b) of this subchapter) containing permits). take activities must have a copy of the the general information and certification (iii) Methods of take for double- permit and designation in their required by § 13.12(a) of this subchapter crested cormorants are at the State’s or possession when carrying out any plus the following information: Tribe’s discretion. Methods include, but activities. The State or Tribe must also
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require the property owner or occupant the time, numbers, and locations of or revoked, or at such time we on whose premises the State or Tribe is birds, eggs, and nests taken and determine that conflicts with conducting activities to allow, at all nonlethal techniques utilized, before cormorants within the bounds of the reasonable times, including during December 31 of each year. The State or specific population of double-crested actual operations, free and unrestricted Tribe should submit the annual report cormorants have been reduced to the access to any Service special agent or to the appropriate Migratory Bird Permit point where lethal take is no longer refuge officer, State or Tribal wildlife or Office in the Region in which the necessary. In all cases, the term of the deputy wildlife agent, warden, permittee is located (see § 2.2 of this permit may not exceed 5 years from the protector, or other wildlife law subchapter). date of issuance or renewal. (7) What are the limitations of this enforcement officer (wildlife officer) on (v) We reserve the right to suspend or the premises where they are, or were, permit? The following limitations apply: (i) Nothing in this section applies to revoke any permit, as specified in conducting activities. Furthermore, any §§ 13.27 and 13.28 of this subchapter. State or Tribal employee or any Federal land within a State’s or subpermittee conducting such activities Tribe’s boundaries without written (e) What are the OMB information must promptly furnish information permission of the Federal agency with collection requirements of the permit concerning such activities to any such jurisdiction. program? OMB has approved the wildlife officer. (ii) We will issue permits only to State information collection requirements of and Tribal wildlife agencies in the the permit and assigned OMB Control (6) What are the reporting conterminous (i.e., contiguous 48) Number 1018–####. Federal agencies requirements of the permit? Any State or United States. may not conduct or sponsor, and a Tribal employee or subpermittee (iii) States and Tribes may designate person is not required to respond to, a exercising the privileges granted by the subpermittees who must operate under collection of information unless it regulations in this section must keep the conditions of the permit. displays a currently valid OMB control records of all activities carried out Subpermittees can be employees of number. Direct comments regarding the under the authority of this permit, State and Tribal wildlife agencies, U.S. burden estimate or any other aspect of including the number of double-crested Department of Agriculture’s Wildlife the information collection to the cormorants killed and their disposition. Services employees, and employees of Service’s Information Collection Any other species of bird taken Federal and State agencies or private Clearance Officer at the address incidentally to double-crested incorporated companies specializing in provided at 50 CFR 2.1(b). cormorant management activities under wildlife damage abatement. this permit, along with the numbers of (iv) A special double-crested George Wallace, birds taken of those species, also must cormorant permit issued or renewed Assistant Secretary for Fish and Wildlife and be reported. The State or Tribe must under the regulations in this section Parks. submit an annual report (FWS Form 3– expires on the date designated on the [FR Doc. 2020–11988 Filed 6–4–20; 8:45 am] 202–56) detailing activities, including face of the permit unless it is amended BILLING CODE 4333–15–P
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Notices Federal Register Vol. 85, No. 109
Friday, June 5, 2020
This section of the FEDERAL REGISTER Type of Request: Extension and is necessary for the proper performance contains documents other than rules or revision of a currently approved of the functions of the agency, including proposed rules that are applicable to the information collection. whether the information has practical public. Notices of hearings and investigations, Abstract: The Child Nutrition (CN) utility; (2) the accuracy of the agency’s committee meetings, agency decisions and Labeling Program is a voluntary estimate of the burden of the proposed rulings, delegations of authority, filing of petitions and applications and agency technical assistance service that helps collection of information, including the statements of organization and functions are schools and institutions participating in validity of the methodology and examples of documents appearing in this the National School Lunch Program assumptions used; (3) ways to enhance section. (NSLP), School Breakfast Program the quality, utility, and clarity of the (SBP), Child and Adult Care Food information to be collected; and (4) Program (CACFP), and Summer Food ways to minimize the information DEPARTMENT OF AGRICULTURE Service Program (SFSP) determine a collection burden on those who product’s contribution toward the food- respond, including the use of Agricultural Marketing Service based meal pattern requirements. (See appropriate automated, electronic, [Doc. No. AMS–SC–20–0048] Appendix C to 7 CFR parts 210, 220, mechanical, or other technological 225, and 226 for more information on collection techniques. Notice of Request for Extension and these programs.) A CN label on a All comments on this notice will be Revision of a Currently Approved product assures schools and other Child summarized and included in the request Information Collection Nutrition Program operators that the for OMB approval, and become a matter product contributes to the meal pattern of public record. AGENCY: Agricultural Marketing Service, requirements as printed on the label. Bruce Summers, USDA. There is no Federal requirement for ACTION: Notice and request for commercial products to have a CN label Administrator, Agricultural Marketing Service. comments. statement in order to be included in meals served by schools and [FR Doc. 2020–12190 Filed 6–4–20; 8:45 am] SUMMARY: In accordance with the institutions. The label review program BILLING CODE P Paperwork Reduction Act of 1995, this transferred from the Food and Nutrition notice announces the Agricultural Service to AMS in 2010. Marketing Service’s (AMS) intention to DEPARTMENT OF AGRICULTURE To participate in the CN Labeling request approval from the Office of Program, a manufacturer submits a label Management and Budget for an Submission for OMB Review; application to AMS for evaluation. AMS extension of and revision to the Comment Request reviews the product formulation to currently approved information determine the contribution a serving of June 2, 2020. collection for the Child Nutrition the product makes towards the food- Labeling Program. The Department of Agriculture has based meal pattern requirements. The submitted the following information DATES: Comments on this notice must be application form submitted to AMS is collection requirement(s) to OMB for received by August 4, 2020. the same form that a manufacturer review and clearance under the ADDRESSES: Interested persons are submits to the USDA’s Food Safety and Paperwork Reduction Act of 1995, invited to submit written comments at Inspection Service (FSIS) Labeling and Public Law 104–13. Comments are http://www.regulations.gov or to the Program Delivery Division for review of required regarding; whether the Contract Services Branch, Specialty meat and poultry labels. Participation in collection of information is necessary Crops Inspection Division, USDA the CN Labeling Program is voluntary; for the proper performance of the Specialty Crops Program, STOP 0247, manufacturers who wish to place a CN functions of the agency, including 1400 Independence Avenue SW, label on their products must comply whether the information will have Washington, DC 20250–0247. with CN Labeling Program practical utility; the accuracy of the Comments should reference the dates requirements. agency’s estimate of burden including and page number of this issue of the Estimate of Burden: Public reporting the validity of the methodology and Federal Register, and will be made burden for this collection of information assumptions used; ways to enhance the available for public inspection at http:// is estimated to average 15 minutes per quality, utility and clarity of the www.regulations.gov and in the above response. information to be collected; and ways to office during regular business hours. Respondents: Manufacturers who minimize the burden of the collection of FOR FURTHER INFORMATION CONTACT: produce food for the school foodservice. information on those who are to Patricia Tung-Tayman, Contract Estimated Number of Respondents: respond, including through the use of Services Branch, Specialty Crops 262. appropriate automated, electronic, Inspection Division, telephone (202) Estimated Total Annual Responses: mechanical, or other technological 720–0367 and FAX (202) 720–3704. 1,048. collection techniques or other forms of SUPPLEMENTARY INFORMATION: Estimated Number of Responses per information technology. Title: Child Nutrition Labeling Respondent: 4. Comments regarding this information Program. Estimated Total Annual Burden on collection received by July 6, 2020 will OMB Number: 0581–0261. Respondents: 262 hours. be considered. Written comments and Expiration Date of Approval: 3 years Comments are invited on: (1) Whether recommendations for the proposed from approval. the proposed collection of information information collection should be
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submitted within 30 days of the DEPARTMENT OF AGRICULTURE protects the public by verifying that publication of this notice on the meat, poultry, and processed egg following website www.reginfo.gov/ Submission for OMB Review; products are wholesome; not public/do/PRAMain. Find this Comment Request adulterated; and properly marked, particular information collection by labeled, and packaged. USDA FSIS’ June 1, 2020. selecting ‘‘Currently under 30-day Office of Public Affairs and Consumer Review—Open for Public Comments’’ or The Department of Agriculture has Education (OPACE) ensures that all by using the search function. submitted the following information segments of the farm-to-table chain collection requirement(s) to OMB for An agency may not conduct or receive valuable food safety review and clearance under the information. The consumer education sponsor a collection of information Paperwork Reduction Act of 1995, unless the collection of information programs developed by OPACE’s Food Public Law 104–13. Comments are Safety Education Staff inform the public displays a currently valid OMB control requested regarding whether the number and the agency informs on how to safely handle, prepare, and collection of information is necessary store meat, poultry, and egg products to potential persons who are to respond to for the proper performance of the the collection of information that such minimize incidence or foodborne functions of the agency, including illness. To inform the development of persons are not required to respond to whether the information will have the collection of information unless it food safety communication products practical utility; the accuracy of the and to evaluate public health education displays a currently valid OMB control agency’s estimate of burden including number. and communication activities, FSIS is the validity of the methodology and requesting approval to renew the Farm Service Agency assumptions used; ways to enhance the information collection to conduct quality, utility and clarity of the observational studies using an Title: Power of Attorney. information to be collected; and ways to OMB Control Number: 0560–0190. experimental design. minimize the burden of the collection of Need and Use of the Information: The Summary of Collection: Individuals or information on those who are to observational studies will help FSIS authorized representatives of entities respond, including through the use of assess adherence to the four wanting to appoint another to act as appropriate automated, electronic, recommended food safety behaviors of their attorney-in-fact in connection with mechanical, or other technological clean, separate, cook, and chill; certain Farm Service Agency (FSA), collection techniques or other forms of determine whether food safety Commodity Credit Corporation (CCC), information technology. messaging focused on those behaviors and Risk Management Agency (RMA) Comments regarding this information affects consumer food safety handing programs, Federal Crop Insurance collection received by July 6, 2020 will behaviors; and determine whether Corporation (FCIC), Natural Resources be considered. Written comments and consumers introduce cross- Conservation Service (NRCS) and recommendations for the proposed contamination during food preparation. related actions must complete a Power information collection should be The results of this research will be used of Attorney form and Extension Sheet to submitted within 30 days of the to enhance messaging and accommodate additional signatures publication of this notice on the accompanying materials to improve (FSA–211/211A). The FSA–211/211A following website www.reginfo.gov/ food safety behaviors of consumers. serves as evidence that the grantor has public/do/PRAMain. Find this Description of Respondents: appointed another to act on their behalf particular information collection by Individuals or households. for certain FSA, CCC, FCIC, RMA, and selecting ‘‘Currently under 30-day Number of Respondents: 1,600. NRCS programs and related actions Review—Open for Public Comments’’ or Frequency of Responses: Reporting: giving the appointee legal authority to by using the search function. Annually. enter into binding agreements on the An agency may not conduct or Total Burden Hours: 1,036. grantor’s behalf. sponsor a collection of information Food Safety and Inspection Service Need and Use of the Information: FSA unless the collection of information will collect information to verify an displays a currently valid OMB control Title: State Meat and Poultry individual’s authority to sign and act for number and the agency informs Inspection Programs. OMB Control Number: 0583–0170. another in the event of errors or fraud potential persons who are to respond to Summary of Collection: The Food that requires legal remedies. The the collection of information that such Safety and Inspection Service (FSIS) has information collected on the FSA–211/ persons are not required to respond to been delegated the authority to exercise 211A is limited to the grantor’s name, the collection of information unless it the functions of the Secretary as signature, and identification number, displays a currently valid OMB control provided in the Federal Meat Inspection the grantee’s name, address, and the number. Act (FMIA) (21 U. S.C. 601 et. seq.) and applicable FSA, CCC, FCIC, NRCS, and Food Safety and Inspection Service the Poultry Products Inspection Act RMA programs or transactions. Title: In-Home Food Safety Behaviors (PPIA) (21 U.S.C. 451, et seq.) These Description of Respondents: and Consumer Education: Annual statutes mandate that FSIS protect the Individuals or households. Observational Study. public by ensuring that meat and Number of Respondents: 12,000. OMB Control Number: 0583–0169. poultry products are safe, wholesome, Frequency of Responses: Reporting: Summary of Collection: The U.S. not adulterated, and properly labeled Other (once). Department of Agriculture’s (USDA) and packaged. Total Burden Hours: 6,224. Food Safety and Inspection Service Need and Use of the Information: (FSIS) has been delegated the authority FSIS collects information from Ruth Brown, to exercise the functions of the Secretary federally-assisted State Meat and Departmental Information Collection of Agriculture (7 CFR 2.18, 2.53), as Poultry Inspection programs to ensure Clearance Officer. specified in the Federal Meat Inspection that their programs operate in a manner [FR Doc. 2020–12212 Filed 6–4–20; 8:45 am] Act the Poultry Products Inspection Act that is at least equal to FSIS’s Federal BILLING CODE 3410–05–P (21 U.S.C. 453, et seq., 601 et. seq.) FSIS inspection program in the protection of
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public interest; comply with Plant Health Inspection Service (APHIS) evaluation of the Republic of Korea’s requirements of Federal Civil Rights prohibits or restricts the importation of request, we prepared the PRA to laws and regulations; meet necessary fruits and vegetables into the United identify pests of quarantine significance laboratory quality assurance standards States from certain parts of the world to that could follow the pathway of and testing frequencies; and have the prevent plant pests from being importation of fresh carrots into the capability to perform microbiology and introduced into and spreading within United States from the Republic of food chemistry methods that are ‘‘at the United States. Korea. least equal to’’ methods performed in Section 319.56–4 of the regulations The commenter expressed concern FSIS laboratories. contains a notice-based process based that unknown pests could be introduced Description of Respondents: State, on established performance standards into the United States as the result of Local or Tribal Government. for authorizing the importation of fruits importation of carrots from the Republic Number of Respondents: 27. and vegetables. The performance of Korea. Frequency of Responses: Reporting: standards, known as designated We understand this concern, yet Annually. phytosanitary measures, are listed in APHIS finds no basis for changing our Total Burden Hours: 6,887. paragraph (b) of that section. Under the proposed action in response. As process, APHIS proposes to authorize documentation associated with the Ruth Brown, public notice for comment shows, Departmental Information Collection the importation of a fruit or vegetable into the United States if, based on the APHIS thoroughly and sufficiently Clearance Officer. assessed all possible risks from this [FR Doc. 2020–12111 Filed 6–4–20; 8:45 am] findings of a pest risk analysis, we determine that the measures can importation and proposed conditions BILLING CODE 3410–DM–P mitigate the plant pest risk associated adequate to mitigate the possible risks. with the importation of that fruit or Our methodology for the PRA included careful examination of the scientific DEPARTMENT OF AGRICULTURE vegetable. APHIS then publishes a notice in the Federal Register literature, port-of-entry pest interception Animal and Plant Health Inspection announcing the availability of the pest data, and information the Government Service risk analysis that evaluates the risks of the Republic of Korea furnished for associated with the importation of that our assessment. From these sources, we [Docket No. APHIS–2019–0062] fruit or vegetable. compiled a list of all plant pests with In accordance with that process, we actionable regulatory status for the Decision To Authorize the Importation United States that are present in the of Fresh Carrots From the Republic of published a notice 1 in the Federal Register on November 12, 2019 (84 FR Republic of Korea (on any host) and Korea Into the United States associated with the underground 61005–61006, Docket No. APHIS–2019– portion of carrots (anywhere in the AGENCY: Animal and Plant Health 0062), in which we announced the world). We have confidence in the Inspection Service, USDA. availability, for review and comment, of thorough nature of the pest list. ACTION: Notice. a pest risk assessment (PRA). The Moreover, the PRA identified only assessment evaluated the risks SUMMARY: We are advising the public of two quarantine pests with actionable associated with the importation into the regulatory status for the United States our decision to authorize the United States of fresh carrots from the importation of fresh carrots from the that could have a reasonable likelihood Republic of Korea. With the PRA was a of being associated with the commodity Republic of Korea into the United risk management document (RMD), States. Based on the findings of a pest following harvesting from the field and prepared to identify phytosanitary prior to any post-harvest processing, risk analysis, which we made available measures that could be applied to the to the public to review and comment and thus potentially able to follow the commodity to mitigate the pest risk. pathway. These two pests are: through a previous notice, we have We solicited comments on the PRA concluded that the application of one or Helicobasidium mompa and Sclerotinia and RMD for 60 days, ending on January nivalis, both phytopathogenic fungi. more phytosanitary measures will be 13, 2020. We received one comment by sufficient to mitigate the risks of Based on the PRA, we prepared the that date. It was from a private citizen. RMD to identify phytosanitary measures introducing or disseminating plant pests The commenter opposed the or noxious weeds via the importation of that could be applied to the fresh carrots importation of carrots from the Republic to mitigate the pest risk so that the pests fresh carrots from the Republic of Korea of Korea into the United States out of into the United States. would not be introduced into the United concern for pest risks that were States. DATES: The articles covered by this currently unknown to APHIS and out of Finally, we note that all shipments of notification may be authorized for concern that imports be tested at ports carrots from the Republic of Korea will importation after June 5, 2020. of entry under importation oversight. be subject to inspection for quarantine FOR FURTHER INFORMATION CONTACT: Ms. Below, we respond to these comments pests at the U.S. ports of entry. These Carol Kreger, Regulatory Policy by addressing their two topics, pest inspections are for any pests of Specialist, Regulatory Coordination and risks and import control measures. quarantine significance, not just those Compliance, PPQ, APHIS, 4700 River Comments on the Pest Risk Assessment identified in the PRA. Additionally, Road Unit 133, Riverdale, MD 20737– APHIS monitors foreign countries for APHIS received a request from the 1231; (301) 851–2356; carol.m.kreger@ new introduction of quarantined pests. usda.gov. national plant protection organization The commenter also expressed (NPPO) of the Republic of Korea to SUPPLEMENTARY INFORMATION: concerns that there be proper oversight allow the importation of fresh carrots of imported products and testing to Background into the United States. As part of our preclude both introduction of pests at Under the regulations in ‘‘Subpart L— importation and resulting spread of 1 To view the notice, PRA, RMD, economic effects Fruits and Vegetables’’ (7 CFR 319.56– assessment, and the comment that we received, go pests to plants in the United States. 1 through 319.56–12, referred to below to http://www.regulations.gov/ We understand the commenter’s as the regulations), the Animal and #!docketDetail;D=APHIS-2019-0062. concerns. However, we do not consider
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testing at ports of entry to be warranted quarantine fungi are found, the entire Information and Regulatory Affairs and consider the mitigations in the RMD lot of carrots is prohibited from import designated this action as not a major to be sufficient for the reasons set forth into the United States. APHIS may rule, as defined by 5 U.S.C. 804(2). in the RMD. prohibit the importation into the United Authority: 7 U.S.C. 1633, 7701–7772, and We have concluded that fresh carrots States of carrots from the places of 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR can be safely imported from the production for the season. 2.22, 2.80, and 371.3. Republic of Korea into the United States • Each consignment of carrots must using one or more of the five designated Done in Washington, DC, this 1st day of be accompanied by a phytosanitary June 2020. phytosanitary measures listed in certificate issued by the NPPO of the Mark Davidson, § 319.56–4(b). The NPPO of the Republic of Korea with an additional Republic of Korea must enter into an declaration (AD) stating that the Acting Administrator, Animal and Plant Health Inspection Service. operational work plan with APHIS that consignment was produced and spells out the daily procedures the prepared for export in accordance with [FR Doc. 2020–12202 Filed 6–4–20; 8:45 am] NPPO will take to implement the the operational workplan and inspected BILLING CODE 3410–34–P measures identified in the RMD. and found free of pests of quarantine Therefore, in accordance with concern. DEPARTMENT OF AGRICULTURE § 319.56–4(c)(3)(iii), we are announcing • Carrots are subject to inspection at our decision to authorize the the port of entry into the United States. Food and Nutrition Service importation of carrots from the Republic • Carrots presented for inspection at of Korea to the United States subject to the port of entry to the United States Agency Information Collection the following phytosanitary measures must be identified to specify the place Activities: Supplemental Nutrition summarized below: of production in which the carrots were Assistance Program (SNAP) Forms: • Carrots must be commercially produced, and the packinghouse(s), in Applications, Periodic Reporting, and produced and may be imported in which the carrots were processed and Notices commercial consignments only. packed. This identification must be • Carrots must be grown in places of maintained until the carrots are released AGENCY: Food and Nutrition Service production registered and packed in from the port of first arrival into the (FNS), USDA. packinghouses registered by the NPPO United States. ACTION: Notice. of the Republic of Korea as part of an These conditions will be listed in the export program to the United States. Fruits and Vegetables Import SUMMARY: In accordance with the • The NPPO of the Republic of Korea Requirements database (available at Paperwork Reduction Act of 1995, this must review and maintain all forms and https://epermits.aphis.usda.gov/ notice invites the general public and documents related to export program manual). In addition to these specific other public agencies to comment on the activities in registered places of measures, fresh carrots from the proposed information collection. This production and packinghouses for at Republic of Korea will be subject to the collection is a revision of the currently least 1 year and make them available to general requirements listed in § 319.56– approved collection for the applications, APHIS upon request. 3 that are applicable to the importation periodic reporting, and notices burden • If the NPPO of the Republic of of all fruits and vegetables. calculations for the Supplemental Korea finds that a place of production Nutrition Assistance Program (SNAP). Paperwork Reduction Act or packinghouse is not complying with DATES: Written comments must be the requirements of the systems In accordance with the Paperwork received on or before August 4, 2020. approach, no carrot from the place of Reduction Act of 1995 (44 U.S.C. 3501 ADDRESSES: The Food and Nutrition production or packinghouse will be et seq.), the reporting and recordkeeping Service, USDA, invites interested eligible for export to the United States requirements included in this notice are persons to submit written comment. until APHIS and the NPPO of the covered under the Office of • Preferred Method: Federal Republic of Korea conduct an Management and Budget control eRulemaking Portal. Go to http:// investigation and appropriate remedial number 0579–0049.202F; The estimated www.regulations.gov, and follow the actions have been implemented. annual burden on respondents is 362 online instructions for submitting • Carrots must originate from a place hours, which will be added to 0579– comments electronically. of production that was inspected for 0049 in the next quarterly update. • Mail: Send comments to signs of fungi of quarantine concern Certification Policy Branch, Program prior to harvest and found free of E-Government Act Compliance Development Division, FNS, 1320 disease symptoms or must be treated The Animal and Plant Health Braddock Place, Alexandria, VA 22314. with a broad-spectrum fungicide during Inspection Service is committed to All responses to this notice will be the growing season, inspected prior to compliance with the E-Government Act summarized and included in the request harvest, and found free of fungi of to promote the use of the internet and for Office of Management and Budget quarantine concern. other information technologies, to (OMB) approval. All comments will be • Carrot taproots must be washed and provide increased opportunities for a matter of public record. disinfected, and free of soil and green citizen access to Government tops. information and services, and for other FOR FURTHER INFORMATION CONTACT: • A biometric sample of carrot purposes. For information pertinent to Requests for additional information or taproots (jointly agreed upon by APHIS E-Government Act compliance related copies of this information collection and the NPPO) must be inspected in the to this notice, please contact Mr. Joseph should be directed to the Certification Republic of Korea by the NPPO of the Moxey, APHIS’ Information Collection Policy Branch, Program Development Republic of Korea following any post- Coordinator, at (301) 851–2483. Division, FNS, 1320 Braddock Place, harvest processing. The biometric Alexandria, VA 22314 or via email to sample must be visually inspected for Congressional Review Act [email protected]. the quarantine pests Helicobasidium Pursuant to the Congressional Review SUPPLEMENTARY INFORMATION: Comments mompa and Sclerotinia nivalis. If any Act (5 U.S.C. 801 et seq.), the Office of are invited on: (a) Whether the proposed
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collection of information is necessary 273 contains procedures for the for State agencies. FNS estimates that it for the proper performance of the certification of eligible households. takes States approximately 11 minutes functions of the agency, including In the process of renewing this (0.1837 hours) per response, resulting in whether the information shall have information collection with changes, 136,790.37 burden hours. This practical utility; (b) the accuracy of the FNS modified the burden of some of its adjustment to the burden reflects an agency’s estimate of the burden of the reporting and recordkeeping increase of 744,640 total annual proposed collection of information, requirements to reflect current SNAP responses and 136,790.37 total annual including the validity of the caseload levels and to better account for burden hours for States agencies. FNS methodology and assumptions that were the complexity of certain activities also estimates that 744,640 households used; (c) ways to enhance the quality, applicable to State agencies, Local will each submit one report. Thus, the utility, and clarity of the information to agencies, and Individuals/Households. information collection activities be collected; and (d) ways to minimize In addition, FNS included burden for a associated with this requirement result the burden of the collection of set of existing requirements applicable in 744,640 responses for households. information on those who are to to State agencies and Individuals/ FNS estimates that it takes households respond, including use of appropriate Households that were not delineated in approximately 10 minutes (0.167 hours) automated, electronic, mechanical, or previous burden tables. The burden for per response, resulting in 124,354.88 other technological collection this set of requirements, listed below, burden hours. This adjustment to the techniques or other forms of information was combined with the burden of the burden reflects an increase of 744,640 technology. requirements in the current approval total annual responses and 124,354.88 Title: Supplemental Nutrition and thus, represent an increase in total total annual burden hours for Assistance Program Forms: annual responses and total annual households. Applications, Periodic Reporting, and burden hours for 53 State agencies, 3. Notice of Option to Disqualify Notices. 2,724 Local agencies and 19,699,000 Custodial Parent for Failure to Form Number: None. Individuals/Households. Cooperate (7 CFR 273.11(o)(2)): Under OMB Number: 0584–0064. 1. Failure to Report Shelter Costs this requirement, 53 State agencies will Expiration Date: July 31, 2020. Change Due to Move Notice (7 CFR each send, on average, 6,173.40 Type of Request: Revision of a 273.14(b)): Under this requirement, 53 notifications to inform custodial parents currently approved collection. State agencies will each send, on of a right to good cause for non- Abstract: The information collection average, 9,678.98 notifications to cooperation prior to a State agency addresses the burden estimates households who have changed their requiring cooperation from a parent. associated with applications, which are address and have not provided updated Thus, the information collection designed at the State level; periodic information about their shelter costs activities associated with this reporting; and notices sent to SNAP that their allotment will be recalculated requirement result in 327,190 responses participants or applicants (Individuals/ without any new deductions. Thus, the for State agencies. FNS estimates that it Households). Following Federal information collection activities takes States approximately 3 minutes requirements, State agencies are associated with this requirement result (0.0501 hours) per response, resulting in responsible for determining the in 512,986 responses for State agencies. 16,392.22 burden hours. This eligibility of SNAP applicant FNS estimates that it takes States adjustment to the burden reflects an individuals or the entire household, and approximately 2 minutes (0.0334 hours) increase of 327,190 total annual issuing benefits to those households per response, resulting in 17,133.73 responses and 16,392.22 total annual entitled to benefits under the Food and burden hours. This adjustment to the burden hours for States agencies. FNS Nutrition Act of 2008 (the Act), as burden reflects an increase of 512,986 also estimates that 327,190 custodial amended. State agencies obtain total annual responses and 17,133.73 parents (individual or household) will demographics such as: Names, social total annual burden hours for States each read one notification. Thus, the security numbers, and date of births of agencies. FNS also estimates that information collection activities all household members; addresses; and 512,986 households will each read one associated with this requirement result individual or household income notification. Thus, the information in 327,190 responses for households. information from households through collection activities associated with this FNS estimates that it takes households the initial application and requirement result in 512,986 responses approximately 5 minutes (0.0835 hours) recertification processes as well as for households. FNS estimates that it per response, resulting in 27,320.37 through various reports to determine takes households approximately 1 burden hours. This adjustment to the program eligibility and benefit levels. minute (0.0167 hours) per response, burden reflects an increase of 327,190 SNAP notices sent to individual or resulting in 8,566.87 burden hours. This total annual responses and 27,320.37 household addresses are the primary adjustment to the burden reflects an total annual burden hours for method State agencies communicate increase of 512,986 total annual households. with SNAP applicants and current responses and 8,566.87 total annual 4. Notice of Match Results (7 CFR participants. This information must be burden hours for households. 273.12(c)(3)(iii)): Under this collected from households to ensure 2. Report of ABAWDs Change in Work requirement, 53 State agencies will each that they are eligible for the program Hours below 20 Hours per Week (7 CFR distribute, on average, 9,044.23 notices and that they receive the correct amount 273.24(b)(7)): Under this requirement, of match results to households for of SNAP benefits. The Federal 53 State agencies will each review, on which the State agency receives match procedures for implementing the average, 14,049.81 reports from SNAP information related to a Prison application and certification procedures participating households when any Verification System notification or a in the Act are in Parts 271, 272, and 273 eligible member has had a reduction in deceased individual. Thus, the of the Title 7 of the Code of Federal work hours below an average of 20 information collection activities Regulations (CFR). Part 271 contains hours per week, averaged monthly. associated with this requirement result general information and definitions, Thus, the information collection in 479,344 responses for State agencies. Part 272 contains requirements for activities associated with this FNS estimates that it takes States participating State agencies, and Part requirement result in 744,640 responses approximately 3 minutes (0.0501 hours)
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per response, resulting in 24,015.13 takes States approximately 3 minutes per response, resulting in 32,784.39 burden hours. This adjustment to the (0.0501 hours) per response, resulting in burden hours. This adjustment to the burden reflects an increase of 479,344 6,437.60 burden hours. This adjustment burden reflects an increase of 654,379 total annual responses and 24,015.13 to the burden reflects an increase of total annual responses and 32,784.39 total annual burden hours for States 128,495 total annual responses and total annual burden hours for States agencies. FNS also estimates that 6,437.60 total annual burden hours for agencies. FNS also estimates that 383,475 households will each read one States agencies. FNS also estimates that 654,379 households will each read one notification. Thus, the information 102,796 households will each read one notice. Thus, the information collection collection activities associated with this notice. Thus, the information collection activities associated with this requirement result in 383,475 responses activities associated with this requirement result in 654,379 responses for households. FNS estimates that it requirement result in 102,796 responses for households. FNS estimates that it takes households approximately 5 for households. FNS estimates that it takes households approximately 3 minutes (0.0835 hours) per response, takes households approximately 5 minutes (0.0501 hours) per response, resulting in 32,020.16 burden hours. minutes (0.0835 hours) per response, resulting in 32,784.39 burden hours. This adjustment to the burden reflects resulting in 8,583.47 burden hours. This This adjustment to the burden reflects an increase of 383,475 total annual adjustment to the burden reflects an an increase of 654,379 total annual responses and 32,020.16 total annual increase of 102,796 total annual responses and 32,784.39 total annual burden hours for households. responses and 8,583.47 total annual burden hours for households. 5. Notice of Subject to Work burden hours for households. 9. Mass Change in Federal Benefits (7 Requirements (7 CFR 273.7(c)(1)): Under 7. Notice of Required Verification (7 CFR 273.12(e)(3)): Under this this requirement, 53 State agencies will CFR 273.2(c)(5)): Under this requirement, 53 State agencies will each each provide, on average, 98,566.04 requirement, 53 State agencies will each establish procedures for making mass written statements to eligible household provide, on average, 617,338.72 notices changes to reflect cost of living members under the work provision to households with all verification adjustments in benefits and any other requirements of 7 CFR 273.7 explaining requirements the household must meet mass changes under Retirement, work requirements, the rights and at the time of application for Survivors, and Disability Insurance responsibilities of eligible members, and certification and recertification. Thus, (RSDI) and Supplemental Security the consequences for failing to comply. the information collection activities Income (SSI) once annually. Thus, the Thus, the information collection associated with this requirement result information collection activities activities associated with this in 32,718,952 responses for State associated with this requirement result requirement result in 5,224,000 agencies. FNS estimates that it takes in 53 responses for State agencies. FNS responses for State agencies. FNS States approximately 3 minutes (0.0501 estimates that it takes States 10 hours estimates that it takes States hours) per response, resulting in per response, resulting in 530.00 burden approximately 3 minutes (0.0501 hours) 1,639,219.50 burden hours. This hours. This adjustment to the burden per response, resulting in 261,722.40 adjustment to the burden reflects an reflects an increase of 53 total annual burden hours. This adjustment to the increase of 32,718,952 total annual responses and 530.00 total annual burden reflects an increase of 5,224,000 responses and 1,639,219.50 total annual burden hours for States agencies. There total annual responses and 261,722.40 burden hours for States agencies. FNS are no burden activities required for total annual burden hours for States also estimates that 26,175,162 households. agencies. FNS also estimates that households will each read one notice. 10. Change Report Form (7 CFR 4,179,200 household members will each Thus, the information collection 273.12(b)(4)): Under this requirement, read one written statement. Thus, the activities associated with this 53 State agencies will each provide, on information collection activities requirement result in 26,175,162 average, 794,055.70 change report forms associated with this requirement result responses for households. FNS to households upon initial application, in 4,179,200 responses for households. estimates that it takes households recertification, and when any household FNS estimates that it takes households approximately 5 minutes (0.0835 hours) submits a change report. Thus, the approximately 5 minutes (0.0835 hours) per response, resulting in 2,185,626.03 information collection activities per response, resulting in 348,963.20 burden hours. This adjustment to the associated with this requirement result burden hours. This adjustment to the burden reflects an increase of in 42,084,952 responses for State burden reflects an increase of 4,179,200 26,175,162 total annual responses and agencies. FNS estimates that it takes total annual responses and 348,963.20 2,185,626.03 total annual burden hours States approximately 1 minute (0.0167 total annual burden hours for for households. hours) per response, resulting in households. 8. Fleeing Felon and Probation or 702,818.70 burden hours. This 6. Referral to Employment & Training Parole Violators Determination (7 CFR adjustment to the burden reflects an and Notice of Requirements (7 CFR 273.11(n)(3)–(4)): Under this increase of 42,084,952 total annual 273.7(c)(2)): Under this requirement, requirement, 53 State agencies will each responses and 702,818.70 total annual State agencies must screen each work send, on average, 12,346.77 requests for burden hours for States agencies. FNS registrant to determine whether it is information to a law enforcement also estimates that 42,084,952 appropriate to refer the individual to an agency about the conditions of a felony households will each complete one E&T program. Fifty-three (53) State warrant or a probation or parole change report form. Thus, the agencies will each issue, on average, violation for a SNAP participant, and information collection activities 2,424.43 notices to participants of the verify if a law enforcement agency has associated with this requirement result requirements of the E&T program taken any action following the initial in 42,084,952 responses for households. component, what will constitute non- request for information. Thus, the FNS estimates that it takes households compliance, and the sanctions for non- information collection activities approximately 1 minute (0.0167 hours) compliance. Thus, the information associated with this requirement result per response, resulting in 702,818.70 collection activities associated with this in 654,379 responses for State agencies. burden hours. This adjustment to the requirement result in 128,495 responses FNS estimates that it takes States burden reflects an increase of for State agencies. FNS estimates that it approximately 3 minutes (0.0501 hours) 42,084,952 total annual responses and
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702,818.70 total annual burden hours 2,679.65 burden hours. The currently Considering all burden adjustments for households. approved number of responses and made as part of this renewal (e.g., 11. Notice of Eligibility, Denial, or burden hours for this requirement are modification of hourly burden Pending Status (7 CFR 273.10(g)(1)(i) & 60,942.05 and 2,035.46, respectively. estimates, inclusion of burden for (ii) & (iii)): For State agencies, the This adjustment to the burden reflects a existing requirements not delineated in burden associated with this requirement decrease of 7,456.05 total annual previous burden tables), FNS is is included in the burden table of the responses and an increase of 644.18 requesting an overall burden of currently approved collection. However, total annual burden hours for States 937,793,284.93, rounded to 937,793,285, for households, this requirement is not agencies. FNS also estimates that 42,789 total annual responses and included as a separate entry in the households will each read one notice. 112,543,753.58, rounded to 112,543,754, burden table. Thus, the information collection total annual burden hours. These Under this requirement 53 State activities associated with this burden estimates include agencies will each send, on average, requirement result in 42,789 responses 772,614,488.93 total annual responses 687,625.36 notices to households to for households. FNS estimates that it and 108,220,423.43 total annual burden advise them of the disposition of their takes households approximately 5 hours for reporting by State agencies application for initial certification or minutes (0.0835 hours) per response, and Individuals/Households. The recertification. Thus, the information resulting in 3,572.88 burden hours. This estimates also include 165,178,796.00 collection activities associated with this adjustment to the burden reflects an total annual responses and 4,323,340.14 requirement result in 36,444,144 increase of 42,789 total annual total annual burden hours for responses for State agencies. FNS responses and 3,572.88 total annual recordkeeping by Local agencies. A estimates that it takes States burden hours for households. breakdown of the burden estimates per approximately 3 minutes (0.0501 hours) 13. Notice of Expiration (7 CFR type of affected public is provided per response, resulting in 1,825,851.61 273.14(b)(1)): For State agencies, the below. burden hours. The currently approved burden associated with this requirement number of responses and burden hours is included in the burden table of the Reporting Burden for State Agencies for this requirement are 37,749,439.21 currently approved collection. However, Estimated Total Number of and 1,260,831.27, respectively. This for households, this requirement is not Respondents: 53. adjustment to the burden reflects a included as a separate entry in the Estimated Frequency of Responses per decrease of 1,305,295.21 total annual burden table. Respondents: 7,389,511.23. responses and an increase of 565,020.34 Under this requirement, 53 State Estimated Total Annual Responses: total annual burden hours for States agencies will each send, on average, 391,644,095. agencies. FNS also estimates that 365,751.11 notices to currently Estimated Time per Response: 0.1202. 29,155,315 households will each read participating households at least 30 Estimated Total Annual Reporting one notice. Thus, the information days prior to the expiration of their Burden: 47,062,598.20. collection activities associated with this current certification period. Thus, the Reporting Burden for Individuals/ requirement result in 29,155,315 information collection activities Households responses for households. FNS associated with this requirement result estimates that it takes households in 19,384,809 responses for State Estimated Total Number of approximately 5 minutes (0.0835 hours) agencies. FNS estimates that it takes Respondents: 19,699,000. per response, resulting in 2,434,468.80 States approximately 3 minutes (0.0501 Estimated Frequency of Responses per burden hours. This adjustment to the hours) per response, resulting in Respondents: 19.34. burden reflects an increase of 971,178.93 burden hours. The currently Estimated Total Annual Responses: 29,155,315 total annual responses and approved number of responses and 380,970,394. 2,434,468.80 total annual burden hours burden hours for this requirement are Estimated Time per Response: 0.1605. for households. 22,087,011.18 and 737,706.17, Estimated Total Annual Reporting 12. Notice of Missing or Incomplete respectively. This adjustment to the Burden: 61,157,815.23. Report (7 CFR 273.12(a)(4)(iii) & burden reflects a decrease of Recordkeeping Burden for Local 273.12(a)(5)(iii)(D)): For State agencies, 2,702,202.18 total annual responses and Agencies the burden associated with this an increase of 233,472.76 total annual Estimated Total Number of requirement is included in the burden burden hours for States agencies. FNS table of the currently approved Recordkeepers: 2,724. also estimates that 15,507,847 Estimated Frequency of Responses per collection. However, for households, households will each read one notice. Recordkeeper: 60,638.32. this requirement is not included as a Thus, the information collection Estimated Total Annual Responses: separate entry in the burden table. activities associated with this 165,178,796.00. Under this requirement, 53 State requirement result in 15,507,847 Estimated Time per Record: 0.0262. agencies will each send, on average, responses for households. FNS Estimated Total Annual 1,009.17 notices to ongoing households estimates that it takes households Recordkeeping Burden: 4,323,340.14. to advise them when they have failed to approximately 5 minutes (0.0835 hours) submit the required monthly, quarterly per response, resulting in 1,294,905.22 Overall Grand Total Reporting and or semiannual report altogether or, if the burden hours. This adjustment to the Recordkeeping Burden for All Affected household submitted the report, that burden reflects an increase of Public some of the information required to be 15,507,847 total annual responses and Estimated Overall Total Number of included in such reports was not 1,294,905.22 total annual burden hours Respondents: 19,701,777. provided. Thus, the information for households. Estimated Overall Frequency of collection activities associated with this FNS made the above adjustments to Responses per Respondents: 47.60. requirement result in 53,486 responses more accurately reflect the burden Estimated Overall Total Annual for State agencies. FNS estimates that it associated with the information Responses: 937,793,284.93. takes States approximately 3 minutes collection requirements at 7 CFR parts Estimated Overall Time per Response: (0.0501 hours) per response, resulting in 271, 272, and 273. 0.12.
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Estimated Overall Grand Total 293,854,398.93, rounded to 293,854,399, estimates in this information collection, Annual Reporting and Recordkeeping total annual responses and including the validity of the Burden: 112,543,753.58. 34,853,748.58, rounded to 34,853,749, methodology and assumptions that were The currently approved burden for total annual burden hours. All burden used to estimate the burden. The inputs this information collection is changes associated with the renewal of from those consultations will be 643,938,886 total annual responses and this information collection are due to considered, along with the public 77,690,005 total annual burden hours. adjustments. comments received in response to this Thus, when compared to the burden in FNS is currently in the process of notice, as FNS finalizes the burden the currently approved information conducting less than ten consultations estimate to be included in the request collection, the adjustments in this with State agencies and FNS staff for OMB for approval. renewal represent an increase of regarding the accuracy of the burden
FNS SNAP FORMS ICR TOTAL BURDEN ESTIMATE [OMB Control No. 0584–0064]
Estimated Estimated Estimated number of Estimated average Affected public number of responses total number Estimated respondent annually per annual of hours total hours respondent responses per response
Reporting Burden: State Agencies ...... 53 7,389,511.23 391,644,095.00 0.1202 47,062,598.20 Local Agencies ...... 0 0 0 0 0 Individuals/Households ...... 19,699,000 19.34 380,970,393.93 0.1605 61,157,815.23
Total Estimated Reporting Burden ...... 19,699,053 39.22 772,614,488.93 0.1400 108,220,413.43
Recordkeeping Burden: State Agencies ...... 0 0 0 0 0 Local Agencies ...... 2,724 60,638.32 165,178,796.00 0.0262 4,323,340.14 Individuals/Households ...... 0 0 0 0 0
Total Estimated Recordkeeping Burden 2,724 60,638.32 165,178,796.00 0.0262 4,323,340.14
Total of Reporting and Record- keeping for #0584–0064 ...... 19,701,777 47.60 937,793,284.93 0.1200 112,543,753.58
Pamilyn Miller, Public Call Information: Dial: 800– 8339 and providing the Service with the Administrator, Food and Nutrition Service. 367–2403, Conference ID: 6816733. conference call number and conference [FR Doc. 2020–12237 Filed 6–4–20; 8:45 am] FOR FURTHER INFORMATION CONTACT: ID number. BILLING CODE 3410–30–P David Barreras, Designated Federal Members of the public are also Official, at [email protected] or 202– entitled to submit written comments; 499–4066. the comments must be received in the SUPPLEMENTARY INFORMATION: Members regional office within 30 days following COMMISSION ON CIVIL RIGHTS of the public may listen to the the meeting. Written comments may be discussion. This meeting is available to emailed to Carolyn Allen at callen@ Notice of Public Meeting of the the public through the call-in usccr.gov.in the Regional Program Unit Minnesota Advisory Committee information listed above. Any interested Office/Advisory Committee member of the public may call this Management Unit. Persons who desire AGENCY: U.S. Commission on Civil additional information may contact the Rights. number and listen to the meeting. An open comment period will be provided Regional Program Unit at 202–499– ACTION: Announcement of meeting. to allow members of the public to make 4066. a statement to the Committee as time Records generated from this meeting SUMMARY: Notice is hereby given, allows. The conference call operator may be inspected and reproduced at the pursuant to the provisions of the rules will ask callers to identify themselves, Chicago office, as they become and regulations of the U.S. Commission the organization they are affiliated with available, both before and after the on Civil Rights and the Federal (if any), and an email address prior to meeting. Records of the meeting will be Advisory Committee Act that the placing callers into the conference available via www.facadatabase.gov Minnesota Advisory Committee room. Callers can expect to incur regular under the Commission on Civil Rights, (Committee) will hold a meeting via charges for calls they initiate over Minnesota Advisory Committee link. teleconference on Friday, June 5, 2020 wireless lines, according to their Persons interested in the work of this at 12:00 p.m. Central Time, the purpose wireless plan. The Commission will not Committee are directed to the of the meeting is to review and approve refund any incurred charges. Callers Commission’s website, http:// the Committee’s statement on the Civil will incur no charge for calls they www.usccr.gov, or may contact the Rights Implications in the recent unrest initiate over land-line connections to Chicago Office at the above email or in Minnesota. the toll-free telephone number. Persons phone number. DATES: The meeting will be held on with hearing impairments may also Friday, June 5, 2020 at 12:00 p.m. follow the proceedings by first calling Agenda Central Time. the Federal Relay Service at 1–800–877– I. Welcome and Roll Call
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II. Discussion of recent unrest in SUPPLEMENTARY INFORMATION: This www.usccr.gov, or may contact the Minnesota meeting is available to the public Regional Programs Unit at the above III. Public Comment through the following toll-free call-in email or street address. IV. Adjournment number: 800–353–6461, conference ID Agenda Exceptional Circumstance: Pursuant number: 4187024. Any interested to 41 CFR 102–3.150, the notice for this member of the public may call this I. Welcome meeting is given less than 15 calendar number and listen to the meeting. II. Membership Update days prior to the meeting because of the Callers can expect to incur charges for III. Discuss and Vote on Project Proposal exceptional circumstances of the calls they initiate over wireless lines, IV. Begin Brainstorming for Hearing immediacy of the subject matter. and the Commission will not refund any V. Public Comment incurred charges. Callers will incur no VI. Good of the Order Dated: June 1, 2020. charge for calls they initiate over land- VII. Adjournment David Mussatt, line connections to the toll-free Dated: June 1, 2020. Supervisory Chief, Regional Programs Unit. telephone number. Persons with hearing David Mussatt, [FR Doc. 2020–12150 Filed 6–4–20; 8:45 am] impairments may also follow the Supervisory Chief, Regional Programs Unit. BILLING CODE 6335–01–P proceedings by first calling the Federal Relay Service at 1–800–877–8339 and [FR Doc. 2020–12139 Filed 6–4–20; 8:45 am] providing the Service with the BILLING CODE P COMMISSION ON CIVIL RIGHTS conference call number and conference Notice of Public Meeting of the Oregon ID number. DEPARTMENT OF COMMERCE Advisory Committee Members of the public are entitled to make comments during the open period AGENCY: U.S. Commission on Civil at the end of the meeting. Members of Economic Development Administration Rights. the public may also submit written Notice of Petitions by Firms for ACTION: Announcement of meeting. comments; the comments must be Determination of Eligibility To Apply received in the Regional Programs Unit for Trade Adjustment Assistance SUMMARY: Notice is hereby given, within 30 days following the meeting. pursuant to the provisions of the rules Written comments may be mailed to the AGENCY: Economic Development and regulations of the U.S. Commission Western Regional Office, U.S. Administration, U.S. Department of on Civil Rights (Commission) and the Commission on Civil Rights, 300 North Commerce. Federal Advisory Committee Act Los Angeles Street, Suite 2010, Los ACTION: Notice and opportunity for (FACA) that the meeting of the Oregon Angeles, CA 90012. You may also email public comment. Advisory Committee (Committee) to the Ana Victoria Fortes at afortes@ Commission will be held at 12:00 p.m. usccr.gov. SUMMARY: The Economic Development (Pacific Time) Thursday, June 25, 2020. Records and documents discussed Administration (EDA) has received The purpose of this meeting is for the during the meeting will be available for petitions for certification of eligibility to committee to vote on their project public viewing prior to and after the apply for Trade Adjustment Assistance proposal and begin brainstorming for meetings at https://www.facadatabase from the firms listed below. their hearing. .gov/FACA/apex/FACAPublic Accordingly, EDA has initiated DATES: The meeting will be held on Committee?id=a10t0000001gzlwAAA. investigations to determine whether Thursday, June 25, 2020 at 12:00 p.m. Please click on the ‘‘Committee increased imports into the United States PT. Meetings’’ tab. Records generated from of articles like or directly competitive Public Call Information: these meetings may also be inspected with those produced by each of the Dial: 800–353–6461. and reproduced at the Regional firms contributed importantly to the Conference ID: 4187024. Programs Unit, as they become total or partial separation of the firms’ FOR FURTHER INFORMATION CONTACT: Ana available, both before and after the workers, or threat thereof, and to a Victoria Fortes, Designated Federal meetings. Persons interested in the work decrease in sales or production of each Officer (DFO) at [email protected] or of this Committee are directed to the petitioning firm. (202) 681–0857. Commission’s website, https:// SUPPLEMENTARY INFORMATION:
LIST OF PETITIONS RECEIVED BY EDA FOR CERTIFICATION OF ELIGIBILITY TO APPLY FOR TRADE ADJUSTMENT ASSISTANCE [5/5/2020 through 5/29/2020]
Date Firm name Firm address accepted for Product(s) investigation
Trifecta Tool and Engineering, LLC 4648 Gateway Circle, Kettering, 5/18/2020 The firm manufactures molds for plastic injection OH 45440. molding. Jordan Manufacturing Company .... 308 Reed Street, ...... 5/27/2020 The firm manufactures metal parts and components Belding, MI 48809 ...... for machinery that lifts, handles, loads, or unloads goods. U.S. Bedding, Inc ...... 451 Quarry Street, ...... 5/29/2020 The firm manufactures mattresses, mattress top- Fall River, MA 02723 ...... pers, and pillows.
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Any party having a substantial by directly visiting the URL: https:// DEPARTMENT OF COMMERCE interest in these proceedings may www.mymeetings.com/nc/join.php?i request a public hearing on the matter. =PWXW9653105&p=3161488&t=c. National Institute of Standards and A written request for a hearing must be Technology submitted to the Trade Adjustment FOR FURTHER INFORMATION CONTACT: Assistance Division, Room 71030, For general information: Janell Smith, Rapid Microbial Testing Methods Economic Development Administration, (202) 257–5929, Janell.Smith@ Consortium U.S. Department of Commerce, FirstNet.gov. AGENCY: National Institute of Standards Washington, DC 20230, no later than ten For media inquiries: Ryan Oremland, and Technology, Department of (10) calendar days following publication (571) 665–6186, Ryan.Oremland@ Commerce. of this notice. These petitions are FirstNet.gov. ACTION: Notice. received pursuant to section 251 of the Trade Act of 1974, as amended. SUPPLEMENTARY INFORMATION: SUMMARY: The National Institute of Please follow the requirements set Standards and Technology (NIST), an Background: The Middle Class Tax forth in EDA’s regulations at 13 CFR agency of the United States Department Relief and Job Creation Act of 2012 315.9 for procedures to request a public of Commerce, in support of efforts to hearing. The Catalog of Federal (codified at 47 U.S.C. 1401 et seq.) (Act) develop Standards for Regenerative Domestic Assistance official number established the FirstNet Authority as an Medicine and Advanced Therapies, is and title for the program under which independent authority within NTIA. establishing the Rapid Microbial Testing these petitions are submitted is 11.313, The Act directs the FirstNet Authority Methods (RMTM) Consortium Trade Adjustment Assistance for Firms. to ensure the building, deployment, and (‘‘Consortium’’) for developing operation of a nationwide interoperable standards, including reference Miriam Kearse, public safety broadband network. The materials, related to rapid microbial Lead Program Analyst. FirstNet Authority Board is responsible testing for regenerative medicine [FR Doc. 2020–12240 Filed 6–4–20; 8:45 am] for making strategic decisions regarding products. The Consortium efforts are BILLING CODE 3510–WH–P the FirstNet Authority’s operations. intended to advance rapid microbial measurement capabilities, provide Matters to be Considered: The measurement assurance strategies, FirstNet Authority will post a detailed DEPARTMENT OF COMMERCE support the development of microbial agenda for the Combined Board and reference material(s), and collect data to National Telecommunications and Board Committees Meeting on support the development of best Information Administration FirstNet.gov prior to the meeting. The practices and standard methods. agenda topics are subject to change. Participants will be required to sign a First Responder Network Authority Please note that the subjects discussed Cooperative Research and Development by the Board and Committees may Agreement (CRADA). There is no cost Public Combined Board and Board involve commercial or financial Committees Meeting for participating in the consortium. information that is privileged or DATES: The Consortium’s activities will AGENCY: First Responder Network confidential, or other legal matters commence on September 15, 2020 Authority (FirstNet Authority), National affecting the FirstNet Authority. As (‘‘Commencement Date’’). NIST will Telecommunications and Information such, the Board and Committee Chairs accept letters of interest to participate in Administration (NTIA), U.S. may call for a vote to close the meetings this Consortium on an ongoing basis. Department of Commerce. only for the time necessary to preserve Acceptance of participants into the ACTION: Announcement of meeting. the confidentiality of such information, Consortium after the Commencement pursuant to 47 U.S.C. 1424(e)(2). Date will depend on the availability of SUMMARY: The FirstNet Authority Board Other Information: The public NIST resources. will convene an open public meeting of Combined Board and Board Committees ADDRESSES: Completed letters of interest the Board and the four (4) Board or requests for additional information Committees, Governance and Personnel, meeting are accessible to people with disabilities. Individuals requiring about the NIST RMTM Consortium can Network and Technology, Advocacy, be directed via mail to Dr. Nancy Lin, and Finance Committees. accommodations, such as sign language interpretation or other ancillary aids, are Biosystems and Biomaterials Division of DATES: June 17, 2020; 11:00 a.m. to 1:00 NIST’s Material Measurement asked to notify Ms. Smith at (202) 257– p.m. Eastern Standard Time (EST); Laboratory, 100 Bureau Drive, Mail Stop 5929 or email: Janell.Smith@ WebEx. 8543, Gaithersburg, Maryland 20899, or FirstNet.gov at least five (5) business via electronic mail to [email protected], or ADDRESSES: The public meeting will be days (June 9) before the meeting. conducted via teleconference and by telephone at (301) 975–4935. WebEx only. Members of the public may Records: The FirstNet Authority FOR FURTHER INFORMATION CONTACT: listen to the meeting by dialing toll-free: maintains records of all Board J’aime Maynard, CRADA Administrator, 1–888–982–7296 and enter participant proceedings. Minutes of the Board and National Institute of Standards and code 3161488#. If you experience Committee meetings will be available on Technology’s Technology Partnerships technical difficulty, please contact the FirstNet.gov. Office, by mail to 100 Bureau Drive, Conferencing Center Customer Service Dated: June 1, 2020. Mail Stop 2200, Gaithersburg, Maryland 20899, by electronic mail to at: 1–866–900–1011. To view the slide Janell Smith, Board Secretary, presentation, the public may visit the [email protected], or by URL: https://www.mymeetings.com/nc/ First Responder Network Authority. telephone at (301) 975–8408. join/ and enter Conference Number: [FR Doc. 2020–12187 Filed 6–4–20; 8:45 am] SUPPLEMENTARY INFORMATION: The safety PWXW9653105 and Audience Passcode: BILLING CODE 3510–TL–P and quality of advanced therapies for 3161488. Alternatively, members of the regenerative medicine, including cell public may view the slide presentation therapy, gene therapy, and tissue
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engineered products, must be testing methods in support of Atmospheric Administration (NOAA), maintained prior to patient measurement assurance and standards Commerce. administration. The culture-based development. ACTION: compendial methods currently used to There is no cost for participating in Notice; public meeting. assess product purity (specifically to the consortium. ensure absence of microbial Process: Interested parties with SUMMARY: The Mid-Atlantic Fishery contamination) typically take weeks, relevant rapid microbial testing Management Council’s (MAFMC) which is inadequate for patients in associated capabilities (see below), Bluefish Advisory Panel will hold a urgent need of life-saving therapies. products, and/or technical expertise to public meeting, jointly with the Atlantic These methods are also incompatible support this Consortium should contact States Marine Fisheries Commission with products that have a limited shelf- NIST using the information provided in (ASMFC) Bluefish Advisory Panel. ADDRESSES life and cannot meet good the section of this notice. DATES: The meeting will be held on manufacturing practices required in NIST will then provide each interested Tuesday, June 23, 2020, from 9 a.m. to process control and release testing. party with a letter of interest template, 12 p.m. For agenda details, see Alternative rapid microbial testing which the party must complete and SUPPLEMENTARY INFORMATION. methods are needed to ensure fit for submit to NIST. NIST will contact purpose safety assessments for this interested parties if there are questions ADDRESSES: The meeting will be held broad class of advanced therapeutics. regarding the responsiveness of the via webinar with a telephone-only NIST is establishing the RMTM letters. NIST will select participants connection option. Details on the Consortium to address this need. The who have submitted complete letters of proposed agenda, webinar listen-in Consortium’s purpose is to develop interest based on the capabilities listed access, and briefing materials will be solutions and standards to support the below. Eligibility will be determined posted at the MAFMC’s website: use of rapid microbial testing methods solely by NIST based on information www.mafmc.org. for regenerative medicine products. The provided by interested parties and upon Council address: Mid-Atlantic Fishery Consortium efforts will focus on the the availability of necessary resources to Management Council, 800 N State following areas: NIST. Street, Suite 201, Dover, DE 19901; (1) Repository of Relevant To participate in the NIST RMTM telephone: (302) 674–2331 or on their Microorganisms Consortium, the eligible applicant will website at www.mafmc.org. be required to sign a CRADA with NIST. NIST intends to establish a repository Requirements: Each letter of interest FOR FURTHER INFORMATION CONTACT: of microorganisms relevant to should provide the following Christopher M. Moore, Ph.D., Executive regenerative medicine product information: Director, Mid-Atlantic Fishery contamination, including contaminants (1) A description of the experience in Management Council, telephone: (302) found in products, in manufacturing development or use of rapid microbial 526–5255. environments, and other relevant testing methods or production of microorganisms. Sets of microorganisms regenerative medicine products or SUPPLEMENTARY INFORMATION: The from the repository will be selected for related expertise. purpose of this meeting is for the interlaboratory studies and for (2) Topic areas of interest for Advisory Panel to develop a fishery incorporation into a candidate reference participation. performance report (FPR) and comment material, based on input from the (3) List of interested party’s on draft alternatives for the Bluefish Consortium. The reference material will anticipated participants. Allocation and Rebuilding Amendment. be designed to increase confidence in Letters of interest may not include The intent of the FPR is to facilitate a the use of RMTMs and is expected to business proprietary information. NIST venue for structured input from the consist of multiple microorganisms. will not treat any information provided Advisory Panel for the bluefish There will be opportunities for in response to this Notice as proprietary specifications process. The FPR will be Consortium members to contribute information. NIST will notify each used by the MAFMC’s Scientific and relevant microorganisms to the organization of its eligibility. NIST does Statistical Committee (SSC) and the repository. not guarantee participation in the Bluefish Monitoring Committee (MC) when reviewing 2021 management (2) Rapid Microbial Testing Methods Consortium to any organization submitting a letter of interest. measures designed to achieve the The NIST RMTM Consortium intends recommended bluefish catch and Authority: 15 U.S.C. 272; 21 U.S.C. 356g. to develop an inventory of potential landings limits. measurement methods and protocols for Kevin A. Kimball, Special Accommodations rapid microbial testing of regenerative Chief of Staff. medicine products. This inventory will [FR Doc. 2020–12116 Filed 6–4–20; 8:45 am] The meeting is physically accessible include molecular methods and BILLING CODE 3510–13–P to people with disabilities. Requests for protocols that have been adopted sign language interpretation or other successfully for rapid microbial auxiliary aid should be directed to M. detection as well as considerations for DEPARTMENT OF COMMERCE Jan Saunders, (302) 526–5251, at least 5 implementing test methods and days prior to the meeting date. approaches to validate protocols. National Oceanic and Atmospheric Administration Authority: 16 U.S.C. 1801 et seq. (3) Interlaboratory Studies Dated: June 2, 2020. The NIST RMTM Consortium intends [RTID 0648–XA202] to organize at least one interlaboratory Tracey L. Thompson, Mid-Atlantic Fishery Management Acting Deputy Director, Office of Sustainable study based on candidate reference Council (MAFMC); Public Meeting materials with the goal of utilizing a Fisheries, National Marine Fisheries Service. common material to collect AGENCY: National Marine Fisheries [FR Doc. 2020–12214 Filed 6–4–20; 8:45 am] reproducible data on rapid microbial Service (NMFS), National Oceanic and BILLING CODE 3510–22–P
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DEPARTMENT OF COMMERCE Promoting American Seafood the timeline for this action. Second, the Competitiveness and Economic Growth, Council will review and approve 2021– National Oceanic and Atmospheric which President Trump issued on May 2022 priorities for the Scallop Research Administration 7, 2020. Next, the Council will review Set-Aside Program. Third, the Council [RTID 0648–XA218] its list of 2020–2024 research priorities will initiate Framework Adjustment 33, and hear the Scientific and Statistical which will include 2021 fishing year New England Fishery Management Committee’s recommendations on any specifications and 2022 default Council; Public Meeting suggested revisions. Following some specifications. The Council will discuss discussion, the Council will approve the the timeline for the framework given AGENCY: National Marine Fisheries final list. Members of the public then delays in resource surveys due to the Service (NMFS), National Oceanic and will have the opportunity to speak COVID–19 situation. Finally, the Atmospheric Administration (NOAA), during an open comment period on Scallop Committee will provide Commerce. issues that relate to Council business feedback on Executive Order 13921. ACTION: Notice of public meeting. but are not included on the published Following the lunch break, the agenda for this meeting. The Council Habitat Committee will report on SUMMARY: The New England Fishery asks the public to limit remarks to 3–5 several items with contributions from Management Council (Council, NEFMC) minutes. These comments will be partner presenters. Agenda items will hold a three-day meeting to received through the webinar. A guide include: (1) A Committee update on the consider actions affecting New England for how to publicly comment through development of habitat policies for fisheries in the exclusive economic zone the webinar is available on the Council aquaculture, submarine cables, and (EEZ). Due to federal and state travel website at https://s3.amazonaws.com/ floating offshore wind technology; (2) an restrictions and updated guidance from nefmc.org/NEFMC-meeting-remote- update on the Northeast Regional the Centers for Disease Control and participation_generic.pdf. Marine Fish Habitat Assessment; (3) a Prevention related to COVID–19, this Following the lunch break, the Bureau of Ocean Energy Management meeting will be conducted entirely by Council will take up the Ecosystem- (BOEM) briefing on the June 2020 webinar. Based Fishery Management (EBFM) Supplemental Environmental Impact DATES: The webinar meeting will be Committee report and receive: (1) A Statement for the Vineyard Wind project held on Tuesday, Wednesday, and presentation on draft EBFM public and other BOEM updates; (4) a NOAA Thursday, June 23, 24, and 25, 2020, outreach materials produced by Green Fisheries briefing on the Habitat Climate beginning at 9 a.m. on June 23 and 8:30 Fin Studio; and (2) a progress report Vulnerability Assessment for the a.m. on June 24 and 25. from the EBFM Plan Development Team Northeast Region; and (5) an update on the development of tangible worked from the Responsible Offshore Science ADDRESSES: All meeting participants examples to demonstrate the Council’s Alliance. Next, the Council will receive and interested parties can register to example Fishery Ecosystem Plan (eFEP) a progress report on the collaborative join the webinar at https:// for Georges Bank. The Council then will effort between the Northeast Regional register.gotowebinar.com/rt/ hear from its Skate Committee, which Ocean Council and the Responsible 4299173335034253327. will provide a progress report on Offshore Development Alliance to Council address: New England Committee actions related to update commercial fisheries data on the Fishery Management Council, 50 Water Amendment 5 to the Northeast Skate Northeast and Mid-Atlantic Ocean Data Street, Mill 2, Newburyport, MA 01950; Complex Fishery Management Plan Portals. The Council will spend the telephone (978) 465–0492; (FMP). The Council will discuss remainder of the afternoon on the www.nefmc.org. whether to pursue the development of a Atlantic Herring Committee report, FOR FURTHER INFORMATION CONTACT: limited access program for the skate which will cover three items. The Thomas A. Nies, Executive Director, wing and/or bait fisheries through this Council will receive an update on New England Fishery Management amendment. The Council then will Framework Adjustment 7 to the Atlantic Council; telephone: (978) 465–0492, ext. adjourn for the day. Herring FMP, which is being developed to protect spawning herring on Georges 113. Wednesday, June 24, 2020 SUPPLEMENTARY INFORMATION: Bank. As part of this agenda item, the The Council will begin the day by Council will receive a report on a recent Agenda receiving a preliminary report on leadership conference call that was held approaches to calculating discards that Tuesday, June 23, 2020 with ASMFC to discuss Atlantic herring are deducted from the monkfish annual management. The Council also will After introductions and brief catch target to determine total allowable receive an update on Framework announcements, the meeting will begin landings for the monkfish fishery. The Adjustment 8, which includes fishing with reports from the Council Chairman presentation will be followed by year 2021–2023 specifications. The and Executive Director, NMFS’s Council discussion. Next, the Scallop Council potentially may approve the Regional Administrator for the Greater Committee will report on four items. range of alternatives being developed as Atlantic Regional Fisheries Office The first will be Amendment 21 to the part of this framework to adjust (GARFO), liaisons from the Northeast Atlantic Sea Scallop FMP, which is measures in the Atlantic Herring FMP Fisheries Science Center (NEFSC) and being developed to address: (1) that may inhibit the Atlantic mackerel Mid-Atlantic Fishery Management Northern Gulf of Maine Management fishery from achieving optimum yield. Council, staff from the Atlantic States Area issues, (2) the Limited Access Finally, the Council will receive Herring Marine Fisheries Commission (ASMFC), General Category (LAGC) possession Committee feedback on Executive Order and representatives from NOAA General limit, and (3) individual fishing quota 13921. After this discussion, the Counsel, NOAA’s Office of Law (IFQ) transfers. The Council will select Council will adjourn for the day. Enforcement, the U.S. Coast Guard, and preferred alternatives for this the NMFS Highly Migratory Species amendment and approve the Draft Thursday, June 25, 2020 Advisory Panel. The Council then will Environmental Assessment for public The Council will begin the day with discuss Executive Order 13921, hearings. The Council also will discuss the Small-Mesh Multispecies (Whiting)
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Report. The Council is expected to take emergency. The public also should be of the availability of the final final action on Framework Adjustment aware that the meeting will be recorded. environmental assessment. 62 to the Northeast Multispecies FMP, Consistent with 16 U.S.C. 1852, a copy ADDRESSES: The final environmental which focuses on measures to rebuild of the recording is available upon assessment and FONSI can be southern red hake. The Whiting request. downloaded or viewed at https:// Committee also will provide feedback to Special Accommodations coast.noaa.gov/czm/compliance/. The the Council on Executive Order 13921. document is also available by sending a This meeting is being conducted Next, the Council will receive an written request to the point of contact entirely by webinar. Requests for overview of the Atlantic Cod Stock identified below (see FOR FURTHER auxiliary aids should be directed to Structure Working Group report, which INFORMATION CONTACT). will be followed by a presentation on Thomas A. Nies (see ADDRESSES) at least FOR FURTHER INFORMATION CONTACT: the peer review of report. The Council 5 days prior to the meeting date. Elaine Vaudreuil of NOAA’s Office for will discuss the report and peer review Authority: 16 U.S.C. 1801 et seq. Coastal Management, by email at findings. The GARFO Regional Dated: June 2, 2020. Administrator then will provide a [email protected], phone at briefing on a petition for rulemaking on Tracey L. Thompson, 240–533–0821, or mail at: 1305 East- Atlantic cod and request that the Acting Deputy Director, Office of Sustainable West Hwy., N/OCM, Silver Spring, MD Council consult with NMFS on this Fisheries, National Marine Fisheries Service. 20910. matter. The Council will engage in a [FR Doc. 2020–12215 Filed 6–4–20; 8:45 am] Authority: 16 U.S.C. 1451 et seq; 15 CFR discussion on how to address issues in BILLING CODE 3510–22–P 921.33. the petition that may have merit. Keelin S. Kuipers, Following the lunch break, the DEPARTMENT OF COMMERCE Deputy Director, Office for Coastal Council will spend the full afternoon on Management, National Ocean Service, the Groundfish Committee report, National Oceanic and Atmospheric National Oceanic and Atmospheric which includes several items. The Administration Administration. Council will receive an overview of [FR Doc. 2020–12223 Filed 6–4–20; 8:45 am] comments received during recent Approval of a Boundary Expansion for BILLING CODE 3510–08–P webinar public hearings for Groundfish the Elkhorn Slough National Estuarine Monitoring Amendment 23 and then Research Reserve discuss next steps and the timeline for AGENCY: Office for Coastal Management, final action. In a follow-up to the April COMMITTEE FOR PURCHASE FROM National Ocean Service, National meeting, the Council will discuss and PEOPLE WHO ARE BLIND OR Oceanic and Atmospheric potentially approve Groundfish SEVERELY DISABLED Committee recommendations for Administration, U.S. Department of adjustments to commercial and Commerce. Procurement List; Proposed additions recreational measures to mitigate the ACTION: Notice of approval of boundary and deletions impacts of the COVID–19 pandemic. expansion and availability of a final This discussion may include a possible environmental assessment; Finding of AGENCY: Committee for Purchase From request for secretarial emergency action No Significant Impact. People Who Are Blind or Severely for measures related to commercial Disabled. SUMMARY: In accordance with applicable carry-over provisions, as well as ACTION: Proposed additions to and recreational measures for Gulf of Maine federal regulations, notice is hereby deletions from the Procurement List. haddock and cod. The Council also will given that the National Oceanic and initiate Framework Adjustment 61 to Atmospheric Administration (NOAA)’s SUMMARY: The Committee is proposing the Northeast Multispecies FMP, which Office for Coastal Management to add products and services to the will include: total allowable catches for approved the final environmental Procurement List that will be furnished U.S./Canada stocks of Eastern Georges assessment of a proposed boundary by nonprofit agencies employing Bank (GB) cod, Eastern GB haddock, expansion for the Elkhorn Slough persons who are blind or have other and GB yellowtail flounder; 2021–2023 National Estuarine Research Reserve in severe disabilities, and deletes products specifications for roughly half of the Watsonville, California. NOAA previously furnished by such agencies. groundfish stocks; and other measures. determined that the boundary DATES: Comments must be received on Finally, the Groundfish Committee will expansion would not have significant or before: July 5, 2020. environmental impacts and, therefore, provide feedback on Executive Order ADDRESSES: Committee for Purchase 13921. The Council then will close out issued a Finding of No Significant Impact (FONSI). The final From People Who Are Blind or Severely the meeting with other business. Disabled, 1401 S. Clark Street, Suite Although non-emergency issues not environmental assessment describes the 715, Arlington, Virginia, 22202–4149. contained on this agenda may come alternatives considered, including the before the Council for discussion, those preferred alternative to add nine parcels FOR FURTHER INFORMATION CONTACT: For issues may not be the subject of formal to and remove one parcel from the further information or to submit action during this meeting. Council existing approved boundary, which comments contact: Michael R. action will be restricted to those issues would result in a net increase of 299.773 Jurkowski, Telephone: (703) 603–2117, specifically listed in this notice and any acres in size to the boundary. NOAA Fax: (703) 603–0655, or email issues arising after publication of this prepared a draft environmental [email protected]. notice that require emergency action assessment to analyze the effects of the SUPPLEMENTARY INFORMATION: This under section 305(c) of the Magnuson- requested changes and solicited public notice is published pursuant to 41 Stevens Fishery Conservation and comment before approving the request U.S.C. 8503 (a)(2) and 41 CFR 51–2.3. Its Management Act, provided the public [84 FRN 57702]. The purpose of this purpose is to provide interested persons has been notified of the Council’s intent notice is to inform the public of NOAA’s an opportunity to submit comments on to take final action to address the approval of the boundary expansion and the proposed actions.
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Additions Contracting Activity: DEPT OF THE NAVY, MR 462—Grocery Shopping Tote Bag, NAVAL HOSPITAL PENSACOLA FL Laminated, Winter Club Pack, Winter If the Committee approves the Scene, Small proposed additions, the entities of the Deletions MR 464—Grocery Shopping Tote Bag, Federal Government identified in this The following products are proposed Laminated, Winter Club Pack, Spring notice will be required to procure the for deletion from the Procurement List: Scene, Small products and services listed below from Mandatory Source of Supply: Industries for nonprofit agencies employing persons Products the Blind and Visually Impaired, Inc., who are blind or have other severe West Allis, WI NSN(s)—Product Name(s): disabilities. Contracting Activity: Military Resale-Defense 4220–00–926–9459—Vest, Life Preserver, Commissary Agency The following products and services USN, Yellow, Small are proposed for addition to the 4220–00–926–9461—Cover, Protective, Michael R. Jurkowski, Procurement List for production by the Life Preserver Deputy Director, Business & PL Operations. nonprofit agencies listed: 4220–00–926–9460—Cover, Protective, [FR Doc. 2020–12191 Filed 6–4–20; 8:45 am] Life Preserver Products 4220–00–926–9462—Cover, Protective, BILLING CODE 6353–01–P NSN(s)—Product Name(s): Life Preserver MR 13037—Microwave Bacon Crisper 4220–00–926–9464—Cover, Protective, MR 13039—Microwave Popcorn Popper Life Preserver COMMITTEE FOR PURCHASE FROM MR 13065—Microwave Steamer 4220–00–926–9465—Cover, Protective, PEOPLE WHO ARE BLIND OR MR 13074—Set, Bowls, Glass, Prep, 4 Piece Life Preserver SEVERELY DISABLED MR 13075—Set, Mini Grate and Slice 4220–00–926–9466—Cover, Protective, MR 13079—Set, Glass Containers, Smart Life Preserver Procurement List; Additions and Seal, 12 Piece 4220–00–926–9467—Cover, Protective, Deletions MR 13151—POP 3 Pc Slim Container Set Life Preserver MR 13152—POP 4 Pc Baking Accessories 4220–00–926–9469—Cover, Protective, AGENCY: Committee for Purchase From Set Life Preserver People Who Are Blind or Severely Mandatory Source of Supply: Cincinnati 4220–00–926–9471—Cover, Protective, Disabled. Association for the Blind, Cincinnati, OH Life Preserver ACTION: Contracting Activity: Military Resale-Defense 4220–00–926–9472—Cover, Protective, Additions to and deletions from Commissary Agency Life Preserver the Procurement List. NSN(s)—Product Name(s): 4220–00–926–9473—Cover, Protective, MR 10767—Saver, Grapefruit, Includes Life Preserver SUMMARY: This action adds products to Shipper 20767 4220–00–926–9474—Cover, Protective, the Procurement List that will be MR 13050—Iced Tea Tumbler, 16 Ounces, Life Preserver furnished by nonprofit agencies Green 4220–00–926–9475—Cover, Protective, employing persons who are blind or MR 13051—Iced Tea Tumbler, 16 Ounces, Life Preserver Pink have other severe disabilities, and 4220–00–926–9476—Cover, Protective, Mandatory Source of Supply: Winston-Salem deletes products and services from the Life Preserver Industries for the Blind, Inc., Winston- Procurement List previously furnished 4220–00–926–9478—Cover, Protective, Salem, NC by such agencies. Life Preserver Contracting Activity: Military Resale-Defense 4220–00–926–9479—Cover, Protective, DATES: Date added to and deleted from Commissary Agency the Procurement List: July 5, 2020. NSN(s)—Product Name(s): Life Preserver MR 13032—Shelf Liner, Biodegradable, Mandatory Source of Supply: Mississippi ADDRESSES: Committee for Purchase Clear Industries for the Blind, Jackson, MS; From People Who Are Blind or Severely Mandatory Source of Supply: LC Industries, Lions Volunteer Blind Industries, Inc., Morristown, TN Disabled, 1401 S Clark Street, Suite 715, Inc., Durham, NC Arlington, Virginia, 22202–4149. Contracting Activity: Military Resale-Defense Contracting Activity: DLA TROOP SUPPORT, Commissary Agency PHILADELPHIA, PA FOR FURTHER INFORMATION CONTACT: NSN(s)—Product Name(s): NSN(s)—Product Name(s): Michael R. Jurkowski, Telephone: (703) MR 11129—Bag, Paper, Lunch, 50 Count 4220–00–926–9463—Cover, Protective, 603–2117, Fax: (703) 603–0655, or email Mandatory Source of Supply: South Texas Life Preserver [email protected]. Lighthouse for the Blind, Corpus Christi, 4220–00–926–9470—Cover, Protective, SUPPLEMENTARY INFORMATION: TX Life Preserver Contracting Activity: Military Resale-Defense 4220–00–926–9477—Cover, Protective, Additions Commissary Agency Life Preserver Mandatory Source of Supply: Lions On 9/6/2019,the Committee for Services Volunteer Blind Industries, Inc., Purchase From People Who Are Blind Service Type: Custodial Service Morristown, TN or Severely Disabled published notice of Mandatory for: US Air Force, USAF Space Contracting Activity: DLA TROOP SUPPORT, proposed additions to the Procurement PHILADELPHIA, PA Command (AFSPC), Peterson Air Force List. This notice is published pursuant Base and Cheyenne Mountain Air Force NSN(s)—Product Name(s): Station, Colorado Springs, CO 6532–00–299–9629—Trousers, Operating, to 41 U.S.C. 8503 (a)(2) and 41 CFR 51– Recommended Mandatory Source of Supply: Surgical, X-Large 2.3. Professional Contract Services, Inc., 6532–00–299–9630—Trousers, Operating, After consideration of the material Austin, TX Surgical, Medium presented to it concerning capability of Contracting Activity: FA2517 21 CONS, 6532–00–299–9631—Trousers, Operating, qualified nonprofit agencies to provide PETERSON AFB, CO Surgical, Small the products and impact of the Service Type: Laundry Service 6532–00–299–9628—Trousers, Operating, additions on the current or most recent Mandatory for: U.S. Navy, Navy Medicine Surgical, Large Readiness and Training Unit, Naval Mandatory Source of Supply: TradeWinds contractors, the Committee has Support Activity Mid-South, Millington, Services, Inc., Merrillville, IN determined that the products listed TN Contracting Activity: DLA TROOP SUPPORT, below are suitable for procurement by Mandatory Source of Supply: Wiregrass PHILADELPHIA, PA the Federal Government under 41 U.S.C. Rehabilitation Center, Inc., Dothan, AL NSN(s)—Product Name(s): 8501–8506 and 41 CFR 51–2.4.
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Regulatory Flexibility Act Certification 8405–01–683–2632—Trouser, Army Green 8405–01–683–2673—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, I certify that the following action will Heritage Taupe, 33–R Heritage Taupe, 40–S not have a significant impact on a 8405–01–683–2633—Trouser, Army Green 8405–01–683–2674—Trouser, Army Green substantial number of small entities. Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, The major factors considered for this Heritage Taupe, 33–S Heritage Taupe, 40–R certification were: 8405–01–683–2635—Trouser, Army Green 8405–01–683–2675—Trouser, Army Green 1. The action will not result in any Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, additional reporting, recordkeeping or Heritage Taupe, 33–L Heritage Taupe, 40–XL other compliance requirements for small 8405–01–683–2636—Trouser, Army Green 8405–01–683–2676—Trouser, Army Green entities other than the small Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, organizations that will furnish the Heritage Taupe, 33–XL Heritage Taupe, 40–L products to the Government. 8405–01–683–2637—Trouser, Army Green 8405–01–683–2677—Trouser, Army Green 2. The action will result in Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Heritage Taupe, 34–S Heritage Taupe, 41–S authorizing small entities to furnish the 8405–01–683–2638—Trouser, Army Green 8405–01–683–2678—Trouser, Army Green products to the Government. Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, 3. There are no known regulatory Heritage Taupe, 34–R Heritage Taupe, 41–R alternatives which would accomplish 8405–01–683–2639—Trouser, Army Green 8405–01–683–2679—Trouser, Army Green the objectives of the Javits-Wagner- Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, O’Day Act (41 U.S.C. 8501–8506) in Heritage Taupe, 34–L Heritage Taupe, 41–L connection with the products proposed 8405–01–683–2640—Trouser, Army Green 8405–01–683–2680—Trouser, Army Green for addition to the Procurement List. Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Heritage Taupe, 34–XL Heritage Taupe, 42–R End of Certification 8405–01–683–2644—Trouser, Army Green 8405–01–683–2682—Trouser, Army Green Accordingly, the following products Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, are added to the Procurement List: Heritage Taupe, 35–S Heritage Taupe, 42–XL 8405–01–683–2645—Trouser, Army Green 8405–01–683–2684—Trouser, Army Green Products Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Heritage Taupe, 35–R Heritage Taupe, 44–R NSN(s)—Product Name(s): 8405–01–683–2647—Trouser, Army Green 8405–01–683–2685—Trouser, Army Green 8405–01–683–2570—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Heritage Taupe, 36–S Heritage Taupe, 44–L Heritage Taupe, 32–S 8405–01–683–2648—Trouser, Army Green 8405–01–683–2686—Trouser, Army Green 8405–01–683–2572—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Heritage Taupe, 35–L Heritage Taupe, 44–XL Heritage Taupe, 32–R 8405–01–683–2650—Trouser, Army Green 8405–01–683–2687—Trouser, Army Green 8405–01–683–2542—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Heritage Taupe, 36–R Heritage Taupe, 46–R Heritage Taupe, 28–S 8405–01–683–2688—Trouser, Army Green 8405–01–683–2543—Trouser, Army Green 8405–01–683–2651—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Heritage Taupe, 28–R Heritage Taupe, 36–L Heritage Taupe, 46–XL 8405–01–683–2546—Trouser, Army Green 8405–01–683–2652—Trouser, Army Green 8405–01–683–2421—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 29–S Heritage Taupe, 36–XL Heritage Taupe, 29–R 8405–01–683–2547—Trouser, Army Green 8405–01–683–2653—Trouser, Army Green 8405–01–683–2423—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 29–R Heritage Taupe, 37–S Heritage Taupe, 30–R 8405–01–683–2548—Trouser, Army Green 8405–01–683–2660—Trouser, Army Green 8405–01–683–2425—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 29–L Heritage Taupe, 37–R Heritage Taupe, 30–L 8405–01–683–2549—Trouser, Army Green 8405–01–683–2662—Trouser, Army Green 8405–01–683–2427—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 30–S Heritage Taupe, 37–L Heritage Taupe, 30–XL 8405–01–683–2550—Trouser, Army Green 8405–01–683–2666—Trouser, Army Green 8405–01–683–2428—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 30–L Heritage Taupe, 38–S Heritage Taupe, 31–R 8405–01–683–2551—Trouser, Army Green 8405–01–683–2667—Trouser, Army Green 8405–01–683–2429—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 30–R Heritage Taupe, 38–XL Heritage Taupe, 32–R 8405–01–683–2554—Trouser, Army Green 8405–01–683–2668—Trouser, Army Green 8405–01–683–2430—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 30–XL Heritage Taupe, 38–L Heritage Taupe, 31–L 8405–01–683–2556—Trouser, Army Green 8405–01–683–2669—Trouser, Army Green 8405–01–683–2431—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 31–S Heritage Taupe, 38–R Heritage Taupe, 32–L 8405–01–683–2558—Trouser, Army Green 8405–01–683–2670—Trouser, Army Green 8405–01–683–2432—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 31–R Heritage Taupe, 39–S Heritage Taupe, 32–XL 8405–01–683–2628—Trouser, Army Green 8405–01–683–2671—Trouser, Army Green 8405–01–683–2433—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 32–L Heritage Taupe, 39–R Heritage Taupe, 33–S 8405–01–683–2630—Trouser, Army Green 8405–01–683–2672—Trouser, Army Green 8405–01–683–2435—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 32–XL Heritage Taupe, 39–L Heritage Taupe, 33–R
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8405–01–683–2436—Trouser, Army Green 8405–01–683–2468—Trouser, Army Green determined that the products and Service Uniform, Men’s, Athletic Fit, Service Uniform, Men’s, Athletic Fit, services listed below are no longer Heritage Taupe, 33–L Heritage Taupe, 40–L suitable for procurement by the Federal 8405–01–683–2437—Trouser, Army Green 8405–01–683–2469—Trouser, Army Green Government under 41 U.S.C. 8501–8506 Service Uniform, Men’s, Athletic Fit, Service Uniform, Men’s, Athletic Fit, and 41 CFR 51–2.4. Heritage Taupe, 33–XL Heritage Taupe, 40–XL 8405–01–683–2438—Trouser, Army Green 8405–01–683–2477—Trouser, Army Green Regulatory Flexibility Act Certification Service Uniform, Men’s, Athletic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 34–S Heritage Taupe, 41–S I certify that the following action will 8405–01–683–2439—Trouser, Army Green 8405–01–683–2478—Trouser, Army Green not have a significant impact on a Service Uniform, Men’s, Athletic Fit, Service Uniform, Men’s, Athletic Fit, substantial number of small entities. Heritage Taupe, 34–R Heritage Taupe, 41–R The major factors considered for this 8405–01–683–2440—Trouser, Army Green 8405–01–683–2481—Trouser, Army Green certification were: Service Uniform, Men’s, Athletic Fit, Service Uniform, Men’s, Athletic Fit, 1. The action will not result in Heritage Taupe, 34–L Heritage Taupe, 42–R additional reporting, recordkeeping or 8405–01–683–2482—Trouser, Army Green 8405–01–683–2441—Trouser, Army Green other compliance requirements for small Service Uniform, Men’s, Athletic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 44–R entities. Heritage Taupe, 34–XL 2. The action may result in 8405–01–683–2442—Trouser, Army Green 8405–01–683–2483—Trouser, Army Green Service Uniform, Men’s, Athletic Fit, authorizing small entities to furnish the Service Uniform, Men’s, Athletic Fit, products and services to the Heritage Taupe, 35–S Heritage Taupe, 42–XL 8405–01–683–2443—Trouser, Army Green 8405–01–683–2484—Trouser, Army Green Government. Service Uniform, Men’s, Athletic Fit, Service Uniform, Men’s, Athletic Fit, 3. There are no known regulatory Heritage Taupe, 35–R Heritage Taupe, 44–L alternatives which would accomplish 8405–01–683–2485—Trouser, Army Green 8405–01–683–2444—Trouser, Army Green the objectives of the Javits-Wagner- Service Uniform, Men’s, Athletic Fit, Service Uniform, Men’s, Athletic Fit, O’Day Act (41 U.S.C. 8501–8506) in Heritage Taupe, 44–XL Heritage Taupe, 35–L connection with the products and 8405–01–683–2488—Trouser, Army Green 8405–01–683–2445—Trouser, Army Green Service Uniform, Men’s, Athletic Fit, services deleted from the Procurement Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 46–R List. Heritage Taupe, 36–S 8405–01–683–2489—Trouser, Army Green 8405–01–683–2446—Trouser, Army Green End of Certification Service Uniform, Men’s, Athletic Fit, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 46–XL Accordingly, the following products Heritage Taupe, 36–R 8405–01–683–2511—Trouser, Army Green and services are deleted from the 8405–01–683–2447—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Procurement List: Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 26–R Heritage Taupe, 36–L 8405–01–683–9562—Trouser, Army Green Products 8405–01–683–2452—Trouser, Army Green Service Uniform, Men’s, Athletic Fit, NSN(s)—Product Name(s): Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 42–L Heritage Taupe, 36–XL 6160–01–184–0643—Retainer Battery 8405–01–683–9565—Trouser, Army Green Mandatory Source of Supply: The Lighthouse 8405–01–683–2453—Trouser, Army Green Service Uniform, Men’s, Athletic Fit, Service Uniform, Men’s, Athletic Fit, for the Blind, Inc. (Seattle Lighthouse), Heritage Taupe, 46–L Seattle, WA Heritage Taupe, 37–S 8405–01–683–9566—Trouser, Army Green 8405–01–683–2455—Trouser, Army Green Contracting Activity: DLA AVIATION, Service Uniform, Men’s, Athletic Fit, RICHMOND, VA Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 42–S NSN(s)—Product Name(s): Heritage Taupe, 37–L 8405–01–683–9579—Trouser, Army Green MR 13110—Cake Cutter, Slice N’ Easy 8405–01–683–2456—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Mandatory Source of Supply: Winston-Salem Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 42–L Industries for the Blind, Inc., Winston- Heritage Taupe, 37–R 8405–01–683–9595—Trouser, Army Green Salem, NC 8405–01–683–2457—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Service Uniform, Men’s, Athletic Fit, Contracting Activity: Military Resale-Defense Heritage Taupe, 42–S Commissary Agency Heritage Taupe, 38–S 8405–01–683–2568—Trouser, Army Green 8405–01–683–2459—Trouser, Army Green Service Uniform, Men’s, Classic Fit, NSN(s)—Product Name(s): Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 31–L 7340–00–J19–1300—Spoon, Picnic, Plastic Heritage Taupe, 38–R 8405–01–683–2486—Trouser, Army Green 7340–00–J19–1300a—Spoon, Picnic, 8405–01–683–2461—Trouser, Army Green Service Uniform, Men’s, Athletic Fit, Plastic Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 41–L 7340–00–J19–2052a—Spoon, Picnic, Heritage Taupe, 38–L 8405–01–683–9594—Trouser, Army Green Plastic 8405–01–683–2462—Trouser, Army Green Service Uniform, Men’s, Classic Fit, Mandatory Source of Supply: LC Industries, Service Uniform, Men’s, Athletic Fit, Heritage Taupe, 46–L Inc., Durham, NC Heritage Taupe, 38–XL Mandatory Source of Supply: VGS, Inc., Contracting Activity: DLA TROOP SUPPORT, 8405–01–683–2463—Trouser, Army Green Cleveland, OH PHILADELPHIA, PA Service Uniform, Men’s, Athletic Fit, Contracting Activity: DEPT OF THE ARMY, Services Heritage Taupe, 39–S W6QK ACC–APG NATICK 8405–01–683–2464—Trouser, Army Green Service Type: Mailroom Operation Service Uniform, Men’s, Athletic Fit, Deletions Mandatory for: 14th U.S. Coast Guard Heritage Taupe, 39–R On 5/1/2020, the Committee for District, 300 Ala Moana Boulevard, 8405–01–683–2465—Trouser, Army Green Honolulu, HI Purchase From People Who Are Blind Mandatory Source of Supply: Goodwill Service Uniform, Men’s, Athletic Fit, or Severely Disabled published notice of Heritage Taupe, 39–L Contract Services of Hawaii, Inc., 8405–01–683–2466—Trouser, Army Green proposed deletions from the Honolulu, HI Service Uniform, Men’s, Athletic Fit, Procurement List. This notice is Contracting Activity: U.S. COAST GUARD, Heritage Taupe, 40–S published pursuant to 41 U.S.C. 8503 SILC BSS 8405–01–683–2467—Trouser, Army Green (a)(2) and 41 CFR 51–2.3. Service Type: Food Service Attendants Service Uniform, Men’s, Athletic Fit, After consideration of the relevant Mandatory for: New Hampshire Air National Heritage Taupe, 40–R matter presented, the Committee has Guard, Pease Air National Guard Base,
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Pease ANGB, NH student financial aid programs, Catalog through December 2020 will be 2.0 Mandatory Source of Supply: CW Resources, of Federal Domestic Assistance (CFDA) percent. Inc., New Britain, CT numbers 84.063, 84.033, 84.007, 84.268, Additionally, section 601 of the Contracting Activity: DEPT OF THE ARMY, 84.408, and 84.379. This notice alerts College Cost Reduction and Access Act W7NN USPFO ACTIVITY NH ARNG the financial aid community and the of 2007 (CCRAA, Pub. L. 110–84) Service Type: Janitorial/Custodial broader public to these required annual amended sections 475 through 478 of Mandatory for: US Army, IL027 Forest Park AFRC, Forest Park, IL updates used in the determination of the HEA affecting the IPA tables for the Mandatory Source of Supply: Jewish Child student aid eligibility. 2009–10 through 2012–13 AYs and and Family Services, Chicago, IL FOR FURTHER INFORMATION CONTACT: required the Department to use a Contracting Activity: DEPT OF THE ARMY, Marya Dennis, U.S. Department of percentage of the estimated CPI to W6QM MICC FT MCCOY (RC) Education, Room 63G2, Union Center update the table in subsequent years. These changes to the IPA impact Michael R. Jurkowski, Plaza, 830 First Street NE, Washington, dependent students, as well as Deputy Director, Business & PL Operations. DC 20202–5454. Telephone: (202) 377– 3385. Email: [email protected]. independent students with dependents [FR Doc. 2020–12196 Filed 6–4–20; 8:45 am] If you use a telecommunications other than a spouse and independent BILLING CODE 6353–01–P device for the deaf (TDD) or a text students without dependents other than telephone (TTY), call the Federal Relay a spouse. This notice includes the new Service (FRS), toll free, at 1–800–877– 2021–22 AY values for the IPA tables, CONSUMER PRODUCT SAFETY 8339. which reflect the CCRAA amendments. COMMISSION The updated tables are in sections 1 SUPPLEMENTARY INFORMATION: Part F of (Income Protection Allowance), 2 Sunshine Act Meeting title IV of the Higher Education Act of (Adjusted Net Worth of a Business or 1965, as amended (HEA), specifies the Farm), and 4 (Assessment Schedules TIME AND DATE: Wednesday, June 10, criteria, data elements, calculations, and 2020; 1:30 p.m. and Rates) of this notice. tables the Department of Education Under section 478(d) of the HEA, the PLACE: via Teleconference. (Department) uses in the Federal Need Secretary must also revise the education STATUS: Commission Meeting—Closed Analysis Methodology to determine the savings and asset protection allowances to the Public. EFC. for each AY. The Education Savings and MATTERS TO BE CONSIDERED: Staff will Section 478 of the HEA requires the Asset Protection Allowance table for AY brief the Commission on the status of a Secretary to annually update the 2021–22 has been updated in section 3 compliance program. following four tables for price of this notice. CONTACT PERSON FOR MORE INFORMATION: inflation—the Income Protection Section 478(h) of the HEA also Alberta E. Mills, Secretary, Division of Allowance (IPA), the Adjusted Net requires the Secretary to increase the the Secretariat, Office of the General Worth (NW) of a Business or Farm, the amount specified for the employment Counsel, U.S. Consumer Product Safety Education Savings and Asset Protection expense allowance, adjusted for Commission, 4330 East-West Highway, Allowance, and the Assessment inflation. This calculation is based on Bethesda, MD 20814, (301) 504–7479. Schedules and Rates. The updates are increases in the Bureau of Labor based, in general, upon increases in the Dated: June 3, 2020. Statistics’ marginal costs budget for a Consumer Price Index (CPI). two-worker family compared to a one- Alberta E. Mills, For AY 2021–22, the Secretary is worker family. The items covered by Secretary. charged with updating the IPA for this calculation are: Food away from [FR Doc. 2020–12336 Filed 6–3–20; 11:15 am] parents of dependent students, adjusted home, apparel, transportation, and BILLING CODE 6355–01–P NW of a business or farm, the education household furnishings and operations. savings and asset protection allowance, The Employment Expense Allowance and the assessment schedules and rates table for AY 2021–22 has been updated DEPARTMENT OF EDUCATION to account for inflation that took place in section 5 of this notice. between December 2019 and December Section 478(g) of the HEA directs the Federal Need Analysis Methodology 2020. However, because the Secretary Secretary to update the tables for State for the 2021–22 Award Year—Federal must publish these tables before and other taxes after reviewing the Pell Grant, Federal Work-Study, December 2020, the increases in the Statistics of Income file data maintained Federal Supplemental Educational tables must be based on a percentage by the Internal Revenue Service. This Opportunity Grant, William D. Ford equal to the estimated percentage table has been updated in section 6 of Federal Direct Loan, Iraq and increase in the Consumer Price Index this notice. Afghanistan Service Grant, and TEACH for All Urban Consumers (CPI–U) for The HEA requires the following Grant Programs 2020. The Secretary must also account annual updates: AGENCY: Federal Student Aid, for any under- or over-estimation of 1. Income Protection Allowance. This Department of Education. inflation for the preceding year. allowance is the amount of living ACTION: Notice. In developing the table values for the expenses associated with the 2020–21 AY, the Secretary assumed a maintenance of an individual or family SUMMARY: The Secretary announces the 2.4 percent increase in the CPI–U for the that may be offset against the family’s annual updates to the tables used in the period December 2018 through income. The allowance varies by family statutory Federal Need Analysis December 2019. The actual inflation for size. The IPA for dependent students is Methodology that determines a this time period was 2.3 percent. The $6,970. The IPAs for parents of student’s expected family contribution Secretary estimates that the increase in dependent students for AY 2021–22 are (EFC) for award year (AY) 2021–22 for the CPI–U for the period December 2019 as follows:
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PARENTS OF DEPENDENT STUDENTS
Number in college Family size 1 2 3 4 5
2 ...... $19,440 $16,110 ...... 3 ...... 24,200 20,900 $17,570 ...... 4 ...... 29,890 26,570 23,260 $19,930 ...... 5 ...... 35,270 31,940 28,640 25,310 $22,000 6 ...... 41,250 37,930 34,620 31,300 27,990
For each additional family member The IPAs for independent students add $4,660. For each additional college with dependents other than a spouse for student subtract $3,310. AY 2021–22 are as follows:
INDEPENDENT STUDENTS WITH DEPENDENTS OTHER THAN A SPOUSE
Number in college Family size 1 2 3 4 5
2 ...... $27,450 $22,760 ...... 3 ...... 34,180 29,510 $24,810 ...... 4 ...... 42,200 37,520 32,850 $28,150 ...... 5 ...... 49,800 45,100 40,430 35,750 $31,080 6 ...... 58,240 53,550 48,900 44,180 39,520
For each additional family member The IPAs for single independent without dependents other than a spouse add $6,580. For each additional college students and independent students for AY 2021–22 are as follows: student subtract $4,670.
INDEPENDENT STUDENTS WITHOUT DEPENDENTS OTHER THAN A SPOUSE
Number in college Marital status 1 2
Single ...... $10,840 ...... Married ...... 17,380 $10,840
2. Adjusted Net Worth of a Business another part of the formula; and (2) the schedule. This schedule is used for or Farm. A portion of the full NW formula protects a portion of the value parents of dependent students, (assets less debts) of a business or farm of the assets. independent students without is excluded from the calculation of an The portion of these assets included dependents other than a spouse, and EFC because (1) the income produced in the contribution calculation is independent students with dependents from these assets is already assessed in computed according to the following other than a spouse.
If the NW of a business or farm is Then the adjusted NW is
Less than $1 ...... $0. $1 to $140,000 ...... $0 + 40% of NW. $140,001 to $415,000 ...... $56,000 + 50% of NW over $140,000. $415,001 to $695,000 ...... $193,500 + 60% of NW over $415,000. $695,001 or more ...... $361,500 + 100% of NW over $695,000.
3. Education Savings and Asset for postsecondary educational expenses. independent students without Protection Allowance. This allowance There are three asset protection dependents other than a spouse, and protects a portion of NW (assets less allowance tables: One for parents of one for independent students with debts) from being considered available dependent students, one for dependents other than a spouse.
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PARENTS OF DEPENDENT STUDENTS, AND INDEPENDENT STUDENTS WITH DEPENDENTS OTHER THAN A SPOUSE, AND INDEPENDENT STUDENTS WITHOUT DEPENDENTS OTHER THAN A SPOUSE
And the older parent or the If the age of the older parent is, or If the age of the independent student is independent student is Married Single
Then the allowance is
25 or less ...... 0 0 26 ...... 400 100 27 ...... 700 300 28 ...... 1,100 400 29 ...... 1,500 600 30 ...... 1,800 700 31 ...... 2,200 800 32 ...... 2,600 1,000 33 ...... 2,900 1,100 34 ...... 3,300 1,300 35 ...... 3,700 1,400 36 ...... 4,000 1,500 37 ...... 4,400 1,700 38 ...... 4,800 1,800 39 ...... 5,100 2,000 40 ...... 5,500 2,100 41 ...... 5,600 2,200 42 ...... 5,700 2,200 43 ...... 5,900 2,300 44 ...... 6,000 2,300 45 ...... 6,200 2,400 46 ...... 6,300 2,400 47 ...... 6,500 2,500 48 ...... 6,600 2,500 49 ...... 6,800 2,600 50 ...... 7,000 2,700 51 ...... 7,100 2,700 52 ...... 7,300 2,800 53 ...... 7,500 2,900 54 ...... 7,700 2,900 55 ...... 7,900 3,000 56 ...... 8,100 3,100 57 ...... 8,400 3,100 58 ...... 8,600 3,200 59 ...... 8,800 3,300 60 ...... 9,100 3,400 61 ...... 9,300 3,500 62 ...... 9,600 3,600 63 ...... 9,900 3,700 64 ...... 10,200 3,800 65 or older ...... 10,500 3,900
4. Assessment Schedules and Rates. For dependent students, the EFC is which considers both income and Two schedules that are subject to derived from an assessment of the assets. updates—one for parents of dependent parents’ adjusted available income The contribution of parents of students and one for independent (AAI). For independent students with dependent students, and independent students with dependents other than a dependents other than a spouse, the students with dependents other than a spouse—are used to determine the EFC EFC is derived from an assessment of spouse, is computed according to the from family financial resources toward the family’s AAI. The AAI represents a following schedule: educational expenses. measure of a family’s financial strength,
If AAI is Then the contribution is
Less than ¥$3,409 ...... ¥$750 ¥$3,409 to $17,400 ...... 22% of AAI. $17,401 to $21,800 ...... $3,828 + 25% of AAI over $17,400. $21,801 to $26,200 ...... $4,928 + 29% of AAI over $21,800. $26,201 to $30,700 ...... $6,204 + 34% of AAI over $26,200. $30,701 to $35,100 ...... $7,734 + 40% of AAI over $30,700. $35,101 or more ...... $9,494 + 47% of AAI over $35,100.
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5. Employment Expense Allowance. away from home, apparel, other taxes protects a portion of parents’ This allowance for employment-related transportation, and household and students’ incomes from being expenses—which is used for the parents furnishings and operations. considered available for postsecondary of dependent students and for married The employment expense allowance educational expenses. There are four independent students—recognizes for parents of dependent students, categories for State and other taxes, one additional expenses incurred by married independent students without each for parents of dependent students, working spouses and single-parent dependents other than a spouse, and independent students with dependents households. The allowance is based on independent students with dependents other than a spouse, dependent the marginal differences in costs for a other than a spouse is the lesser of students, and independent students two-worker family compared to a one- $4,000 or 35 percent of earned income. without dependents other than a worker family. The items covered by 6. Allowance for State and Other spouse. these additional expenses are: Food Taxes. The allowance for State and
PERCENT OF INCOME PAID IN STATE TAXES BY STATE, DEPENDENCY STATUS, AND INCOME LEVEL
Parents of dependent students Dependent and independent students with students and dependents other than a independent spouse students without State dependents Income under Income other than $15,000 $15,000 & up a spouse All income
Alabama ...... 3 2 2 Alaska ...... 2 1 0 Arizona ...... 4 3 2 Arkansas ...... 4 3 3 California ...... 9 8 6 Colorado ...... 4 3 3 Connecticut ...... 9 8 5 Delaware ...... 5 4 3 District of Columbia ...... 7 6 6 Florida ...... 3 2 1 Georgia ...... 5 4 4 Hawaii ...... 5 4 4 Idaho ...... 5 4 4 Illinois ...... 6 5 3 Indiana ...... 4 3 3 Iowa ...... 5 4 3 Kansas ...... 4 3 3 Kentucky ...... 5 4 4 Louisiana ...... 3 2 2 Maine ...... 6 5 3 Maryland ...... 8 7 6 Massachusetts ...... 7 6 4 Michigan ...... 5 4 3 Minnesota ...... 7 6 5 Mississippi ...... 3 2 2 Missouri ...... 5 4 3 Montana ...... 5 4 3 Nebraska ...... 5 4 3 Nevada ...... 3 2 1 New Hampshire ...... 4 3 1 New Jersey ...... 9 8 5 New Mexico ...... 3 2 2 New York ...... 10 9 7 North Carolina ...... 5 4 3 North Dakota ...... 2 1 1 Ohio ...... 5 4 3 Oklahoma ...... 3 2 2 Oregon ...... 7 6 5 Pennsylvania ...... 5 4 3 Rhode Island ...... 6 5 4 South Carolina ...... 4 3 3 South Dakota ...... 2 1 1 Tennessee ...... 2 1 1 Texas ...... 3 2 1 Utah ...... 5 4 4 Vermont ...... 6 5 3 Virginia ...... 6 5 4 Washington ...... 3 2 1 West Virginia ...... 3 2 3 Wisconsin ...... 6 5 4
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PERCENT OF INCOME PAID IN STATE TAXES BY STATE, DEPENDENCY STATUS, AND INCOME LEVEL—Continued
Parents of dependent students Dependent and independent students with students and dependents other than a independent spouse students without State dependents Income under Income other than $15,000 $15,000 & up a spouse All income
Wyoming ...... 2 1 1 Other ...... 2 1 1
Accessible Format: Individuals with ACTION: Notice. might the Department minimize the disabilities can obtain this document in burden of this collection on the an accessible format (e.g., braille, large SUMMARY: In accordance with the respondents, including through the use print, audiotape, or compact disc) on Paperwork Reduction Act of 1995, ED is of information technology. Please note request to the contact person listed proposing a revision of an existing that written comments received in under FOR FURTHER INFORMATION information collection. response to this notice will be CONTACT. DATES: Interested persons are invited to considered public records. Electronic Access to This Document: submit comments on or before July 6, Title of Collection: Special Education- The official version of this document is 2020. Individual Reporting on Regulatory the document published in the Federal ADDRESSES: Written comments and Compliance Related to the Personnel Register. You may access the official recommendations for proposed Development Program’s Service edition of the Federal Register and the information collection requests should Obligation and the Government Code of Federal Regulations at be sent within 30 days of publication of Performance and Results Act (GPRA). www.govinfo.gov. At this site, you can this notice to www.reginfo.gov/public/ OMB Control Number: 1820–0686. view this document, as well as all other do/PRAMain. Find this particular Type of Review: A revision of an documents of this Department information collection request by existing information collection. published in the Federal Register, in selecting ‘‘Department of Education’’ Respondents/Affected Public: text or Portable Document Format under ‘‘Currently Under Review,’’ then Individuals or Households. (PDF). To use PDF, you must have check ‘‘Only Show ICR for Public Total Estimated Number of Annual Adobe Acrobat Reader, which is Comment’’ checkbox. Responses: 34,262. available free at this site. FOR FURTHER INFORMATION CONTACT: For Total Estimated Number of Annual You may also access documents of the specific questions related to collection Burden Hours: 8,328. Department published in the Federal activities, please contact Richelle Davis, Abstract: The Office of Special Register by using the article search 202–245–7401. Education Program’s Personnel feature at www.federalregister.gov. SUPPLEMENTARY INFORMATION: The Development Program aims to increase Specifically, through the advanced Department of Education (ED), in the supply of qualified personnel in the search feature at this site, you can limit accordance with the Paperwork field of special education. The program your search to documents published by Reduction Act of 1995 (PRA) (44 U.S.C. awards competitive grants to the Department. 3506(c)(2)(A)), provides the general Institutions of Higher Education to Program Authority: 20 U.S.C. 1087rr. public and Federal agencies with an support scholars who are preparing to Mark A. Brown, opportunity to comment on proposed, provide special education and related Chief Operating Officer, Federal Student Aid. revised, and continuing collections of services to children and youth with information. This helps the Department disabilities. Scholars who receive [FR Doc. 2020–12169 Filed 6–4–20; 8:45 am] assess the impact of its information funding agree to work in the field of BILLING CODE 4000–01–P collection requirements and minimize special education or related services for the public’s reporting burden. It also two years for each year of support they DEPARTMENT OF EDUCATION helps the public understand the receive. Department’s information collection The Personnel Development Program [Docket No.: ED–2020–SCC–0054] requirements and provide the requested Data Collection System collects data data in the desired format. ED is from grantees, scholars, and employers Agency Information Collection soliciting comments on the proposed who verify that scholars are employed Activities; Submission to the Office of information collection request (ICR) that in the field of special education or Management and Budget for Review is described below. The Department of related services. This data collection and Approval; Comment Request; Education is especially interested in serves three program needs. First, data Special Education-Individual Reporting public comment addressing the from grantees, scholars, and employers on Regulatory Compliance Related to following issues: (1) Is this collection are necessary to assess the performance the Personnel Development Program’s Service Obligation and the necessary to the proper functions of the of the Personnel Development Program Government Performance and Results Department; (2) will this information be on its Government Performance Results Act (GPRA) processed and used in a timely manner; Act measures. Second, data from all (3) is the estimate of burden accurate; three sources are necessary to determine AGENCY: Office of Special Education and (4) how might the Department enhance if scholars comply with the service Rehabilitative Services (OSERS), the quality, utility, and clarity of the obligation requirements. And finally, Department of Education (ED). information to be collected; and (5) how project-specific performance data are
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collected from grantees for project information collection request (ICR) that SUMMARY: The U.S. Department of monitoring and program improvement. is described below. The Department of Energy’s (DOE) Office of Environmental The forms in this package are updates Education is especially interested in Management (EM) is announcing its to existing Office of Management and public comment addressing the decision to implement its Preferred Budget approved forms (1820–0686) following issues: (1) Is this collection Alternative, as documented in the Final which expire on 8/31/2020. necessary to the proper functions of the Supplemental Environmental Impact Dated: June 2, 2020. Department; (2) will this information be Statement for Disposition of Depleted Kate Mullan, processed and used in a timely manner; Uranium Oxide Conversion Product (3) is the estimate of burden accurate; Generated from DOE’s Inventory of PRA Coordinator, Strategic Collections and Clearance Governance and Strategy Division, (4) how might the Department enhance Depleted Uranium Hexafluoride (DOE/ Office of Chief Data Officer. the quality, utility, and clarity of the EIS–0359–S1; DOE/EIS–0360–S1) (Final information to be collected; and (5) how DU Oxide SEIS). Specifically, DOE has [FR Doc. 2020–12179 Filed 6–4–20; 8:45 am] might the Department minimize the decided to disposition depleted BILLING CODE 4000–01–P burden of this collection on the uranium (DU) oxide at one or more of respondents, including through the use the disposal sites evaluated in the Final DEPARTMENT OF EDUCATION of information technology. Please note DU Oxide SEIS: The EnergySolutions that written comments received in low-level radioactive waste (LLW) [Docket No.: ED–2020–SCC–0055] response to this notice will be disposal facility near Clive, Utah; the considered public records. Waste Control Specialists LLC (WCS) Agency Information Collection Title of Collection: Loan Discharge LLW disposal facility near Andrews, Activities; Submission to the Office of Application: Forgery. Texas; and the Nevada National Management and Budget for Review OMB Control Number: 1845–0148. Security Site (NNSS) LLW disposal and Approval; Comment Request; Type of Review: An extension of an facility in Nye County, Nevada. DOE Loan Discharge Application: Forgery existing information collection. will only ship to the selected Respondents/Affected Public: AGENCY: Federal Student Aid (FSA), commercial site(s) if the facility is Individuals or Households. Department of Education (ED). authorized to receive DU oxide. DOE Total Estimated Number of Annual considered the potential environmental ACTION: Notice. Responses: 2,786. impacts of the No Action Alternative Total Estimated Number of Annual SUMMARY: In accordance with the and the Action Alternatives; each Burden Hours: 2,786. alternative’s ability to meet DOE’s Paperwork Reduction Act of 1995, ED is Abstract: This requests is for an proposing an extension of an existing purpose and need; direct, indirect, and extension of the information collection cumulative impacts of each alternative; information collection. to approve a form used to obtain DATES: Interested persons are invited to and public comments on the Final DU information from federal student loan Oxide SEIS. This ROD has been submit comments on or before July 6, borrowers who allege that the loan(s) in 2020. prepared in accordance with the their name were the result of a forgery. regulations of the Council on ADDRESSES: Written comments and This information is used by the Environmental Quality for recommendations for proposed Secretary to make a determination of implementing the National information collection requests should forgery for the Direct Loans, FFEL Environmental Policy Act of 1969 be sent within 30 days of publication of Program Loans, and Federal Perkins (NEPA) and DOE’s NEPA Implementing this notice to www.reginfo.gov/public/ Loans held by the Department. This Procedures. do/PRAMain. Find this particular information collection stems from the information collection request by common law legal principal of forgery, ADDRESSES: This ROD, the Final DU selecting ‘‘Department of Education’’ which is not reflected specifically in the Oxide SEIS on which it is based, and under ‘‘Currently Under Review,’’ then Department’s statute or regulations, but related information are available at check ‘‘Only Show ICR for Public with which the Department must http://www.energy.gov/em/disposition- Comment’’ checkbox. comply. uranium-oxide-conversion-depleted- uranium-hexafluoride and on the DOE Dated: June 2, 2020. FOR FURTHER INFORMATION CONTACT: For NEPA website at: www.energy.gov/nepa. specific questions related to collection Kate Mullan, These may also be found at Public activities, please contact Beth PRA Coordinator, Strategic Collections and Reading Rooms and Libraries detailed in Grebeldinger, 202–377–4018. Clearance, Governance and Strategy Division, the Notice of Availability of the Final Office of Chief Data Officer. SUPPLEMENTARY INFORMATION: The DU Oxide SEIS. Department of Education (ED), in [FR Doc. 2020–12178 Filed 6–4–20; 8:45 am] FOR FURTHER INFORMATION CONTACT: accordance with the Paperwork BILLING CODE 4000–01–P For Reduction Act of 1995 (PRA) (44 U.S.C. further information about the Final DU 3506(c)(2)(A)), provides the general Oxide SEIS, please contact Ms. Julia Donkin, Office of Waste Disposal, by public and Federal agencies with an DEPARTMENT OF ENERGY _ opportunity to comment on proposed, email at DUF6 [email protected] or by revised, and continuing collections of Record of Decision for Disposition of telephone 202–586–5000. For information. This helps the Department Depleted Uranium Oxide Conversion information on DOE’s NEPA process, assess the impact of its information Product Generated From Department please contact Mr. William Ostrum, EM collection requirements and minimize of Energy’s Inventory of Depleted NEPA Compliance Officer, Office of the public’s reporting burden. It also Uranium Hexafluoride Regulatory Compliance, U.S. Department of Energy, 1000 helps the public understand the AGENCY: Office of Environmental Department’s information collection Independence Avenue SW, EM–4.31, Management, U.S. Department of Washington, DC 20585; or email at requirements and provide the requested Energy. data in the desired format. ED is [email protected]. ACTION: Record of decision. soliciting comments on the proposed SUPPLEMENTARY INFORMATION:
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Background public comment period an additional 21 alternatives, including the No Action DOE prepared the Final Supplemental days (84 FR 1716). After considering Alternative. Environmental Impact Statement for comments received on the Draft DU Additionally, under the USEC Privatization Act (42 U.S.C. 2297h–11), Disposition of Depleted Uranium Oxide Oxide SEIS, DOE prepared a Final DU DOE is required to accept LLW and Conversion Product Generated from Oxide SEIS and on April 24, 2020, EPA MLLW from a uranium enrichment DOE’s Inventory of Depleted Uranium issued a Notice of Availability for that facility licensed by the U.S. Nuclear Hexafluoride (DOE/EIS–0359–S1; DOE/ document (85 FR 23022). Regulatory Commission. If requested by EIS–0360–S1) (Final DU Oxide SEIS) in Purpose and Need for Agency Action in the generator, DOE must accept the DU accordance with the NEPA (42 U.S.C. the Final DU Oxide SEIS once it is determined to be LLW. Under 4321 et seq.), the Council on the USEC Privatization Act, the licensee Environmental Quality’s NEPA The purpose and need for this action must reimburse DOE for its costs to regulations (40 CFR parts 1500–1508), in the Final DU Oxide SEIS is to dispose of DU oxide resulting from converting disposition the LLW and MLLW and DOE’s NEPA Implementing (including DU). At the present time, DOE’s DUF6 inventory to a more stable Procedures (10 CFR part 1021). there are no plans or proposals for DOE On June 18, 2004, the DOE issued chemical form and to dispose of other to convert additional DUF and dispose environmental impact statements for the LLW and mixed LLW (MLLW) (i.e., 6 of additional DU oxide cylinders, construction and operation of facilities empty and heel cylinders, calcium beyond the current inventory for which to convert depleted uranium fluoride, ancillary LLW and MLLW) generated during the conversion process it has responsibility. In anticipation of hexafluoride (DUF6) to DU oxide at the potential future receipt of DOE’s Paducah Site in Kentucky and at the DOE DUF6 conversion facilities at the Paducah and Portsmouth sites. If a commercial DUF6, DOE has estimated Portsmouth Site in Ohio (69 FR 34161). the impacts from management of Both the Final Environmental Impact beneficial use cannot be found for the DU oxide, DOE may need to dispose of 150,000 metric tons (165,000 tons; Statement for Construction and approximately 12,500 cylinders) of Operation of a Depleted Uranium all or a portion of the inventory. This need follows directly from the decisions commercial DUF6 as a reasonably Hexafluoride Conversion Facility at the foreseeable future action for cumulative Paducah, Kentucky Site (DOE/EIS– presented in the 2004 RODs for the 2004 Final EISs, in which DOE deferred any impacts that would take place after the 0359) and the Final Environmental management of DOE DU oxide. Impact Statement for Construction and decision related to the transportation Operation of a Depleted Uranium and disposition of DU oxide at off-site Alternatives Analyzed in the Final DU Hexafluoride Conversion Facility at the disposal facilities. Oxide SEIS Portsmouth, Ohio Site (DOE/EIS–0360) Proposed Action in the Final DU Oxide No Action Alternative. Under the No (collectively, the ‘‘2004 EISs’’) were SEIS Action Alternative, DU oxide containers prepared to evaluate and implement would not be transported for disposal. DOE’s DUF6 long-term management DOE’s Proposed Action in the Final Instead, DU oxide containers would be program. DU Oxide SEIS is to transport and stored indefinitely at the Paducah and On July 27, 2004, RODs were dispose of DU oxide and other LLW and Portsmouth sites where the DU oxide is published for the 2004 Final EISs (69 FR MLLW generated during the conversion produced. Storage was analyzed for a 44654; 69 FR 44649). In the RODs, DOE process at the Paducah and Portsmouth 100 year period, although storage could decided that it would build facilities at sites to a LLW disposal facility. To extend beyond that 100 year period. both the Paducah site and the implement the Proposed Action, DOE Annual impacts beyond 100 years Portsmouth site and convert DOE’s identified three Action Alternatives. would be similar to those expected inventory of DUF6 to DU oxide. DOE did Under the Action Alternatives, if a during the 100-year period of analysis. not include decisions with respect to beneficial use cannot be found, DU Action Alternatives. Under the Action specific disposal location(s) for DU oxide would be transported to and Alternatives, if a beneficial use cannot oxide, but instead informed the public disposed of at one or more of three be found, DU oxide would be it would make the decisions later, and disposal facilities: (1) The transported and disposed of at one or additional supplemental NEPA analysis EnergySolutions LLW disposal facility more of the disposal facilities identified would be provided for review and near Clive, Utah; (2) the WCS LLW as EnergySolutions, WCS, and NNSS. comment. disposal facility near Andrews, Texas; The Final DU Oxide SEIS conservatively DOE announced its intent to prepare and (3) the NNSS LLW disposal facility assumes that under the Action an SEIS on August 26, 2016 (81 FR in Nye County, Nevada. Approximately Alternatives, DU oxide in cylinders and 58921). On September 7, 2016, DOE 46,150 cylinders (or 41,016 bulk bags drums would be stored for up to 76 issued a correction to the Federal and 46,150 empty cylinders) of DU years at the Paducah site and 47 years Register notice 81 FR 58921 (81 FR oxide would be shipped from Paducah at the Portsmouth site. Bulk bags are not 61674) to correct an error regarding the and 22,850 cylinders (or 18,142 bulk appropriate for long-term storage, and agency that granted the amendment to bags and 22,850 empty cylinders) of DU therefore, would not be used for long- the WCS facility near Andrews, Texas, oxide would be shipped from the term storage of DU oxide under the No to allow disposal of depleted uranium. Portsmouth site over the life of the Action Alternative. All activities at the DOE prepared the Draft DU Oxide SEIS project. Under the No Action Paducah and Portsmouth sites would and distributed it to stakeholders and Alternative, the DU oxide cylinders remain the same under these Action interested parties. Following the U.S. would remain in storage at the Paducah Alternatives, except for the destination Environmental Protection Agency and Portsmouth sites and would not be of the DU oxide container shipments. Notice of Availability of the Draft DU transported to a disposal facility. As The containers in which the DU oxide Oxide SEIS (83 FR 67282; December 28, decided in the RODs for the 2004 EISs, is placed (cylinders, bulk bags, or 2018), DOE invited the public to excess empty and heel cylinders, drums) would be used as the comment on the Draft DU Oxide SEIS calcium fluoride and ancillary LLW and transportation package and disposal and conducted public hearings. In MLLW would be transported and container, and would be shipped in response to requests, DOE extended the disposed of under all the evaluated compliance with U.S. Department of
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Transportation requirements and meet oxide at the Portsmouth and Paducah SEIS analyzed transportation options for disposal site waste acceptance criteria. sites would be similar for the No Action each Action Alternative, including Damaged DU oxide containers would be Alternative and Action Alternatives. transportation by truck or train and in repaired, replaced, or placed in an However, under the Action Alternatives, cylinders or bulk bags. None of the overpack enclosure that would provide DU oxide containers would be stored for Action Alternatives or shipment options protection to safely handle, transport up to 76 years at Paducah and up to 47 resulted in an expected radiologic and dispose of the container. years at the Portsmouth site, resulting in fatality (i.e., a calculated LCF of one or Preferred Alternative. As noted in the lower total potential storage impacts greater) among the potentially exposed Final DU Oxide SEIS, DOE’s Preferred than the No Action Alternative. The No population or crew. Calculated Alternative is to dispose of DU oxide at Action Alternative assumed for population LCFs for the Action one or more of the disposal sites analytical purposes that containers Alternatives ranged from 0.4 population (EnergySolutions, WCS, and/or NNSS), would be stored for 100 years. LCFs expected from truck transportation understanding that any disposal Annual population dose from of DU oxide in cylinders to location(s) must have a current license hypothetical cylinder breaches at the EnergySolutions or NNSS to 0.06 from or authorization to dispose of DU oxide Paducah site was estimated to be 0.01 train transportation of bulk bags to at the time shipping to a location is person-rem and at the Portsmouth site EnergySolutions or WCS. Calculated initiated. While DOE’s Preferred 0.002 person-rem. Thus, the No Action population LCFs were higher for the Alternative as announced in the Final Alternative would result in zero latent NNSS alternative because of the greater DU Oxide SEIS, is one or a combination cancer fatalities (LCF) among the distance to the disposal site. Calculated of the Action Alternatives over the No exposed population, but relatively population LCFs were higher for truck Action Alternative, DOE does not have higher total exposure and calculated than train transportation, and higher for a preference among the Action LCFs (6 x 10¥4 LCF at Paducah and 1 transportation in cylinders than in bulk Alternatives. Any decision related to the x 10¥4 LCF at the Portsmouth site) due bags. This is primarily due to the Proposed Action may also depend on to a longer storage period than that of difference in total mileage necessary for competitive procurement practices the Action Alternatives (5 x 10¥4 LCF each option and the potentially exposed necessary to contract for the at the Paducah site and 6 x 10¥5 LCF populations along truck and rail routes. transportation and disposal of the DU at the Portsmouth site). Similarly, the Calculated crew LCFs for the Action oxide. maximally exposed individual member Alternatives ranged from 0.2 crew LCFs of the public, and a cylinder yard Potential Environmental Impacts for transportation to NNSS in cylinders worker, would receive the same annual via truck, to 0.04 crew LCFs for The impact areas analyzed in the dose from storage of cylinders under the transportation to WCS in bulk bags via Final DU Oxide SEIS include: Site No Action or Action Alternatives, but a train. Calculated crew LCFs were higher infrastructure; climate, air quality, and lower total dose from the Action for NNSS than for the other Action noise; geology and soils; water Alternatives due to the reduced storage Alternatives because of the greater resources; biotic resources; public and time. distance to the disposal site. Calculated occupational health and safety (during Additional worker exposure would crew LCFs were higher for truck than normal operations, accidents, and result from all Action Alternatives from train transportation, and higher for transportation); socioeconomics; waste the handling of the DU oxide drums and transportation in cylinders than in bulk management; land use and aesthetics; cylinders (or bulk bags and empty bags. This is primarily due to the cultural resources; and environmental cylinders) and empty and heel cylinders difference in total mileage necessary for justice. DOE evaluated potential during loading operations at the each option and the potentially exposed environmental impacts at a level of Paducah and Portsmouth sites in crew along truck and rail routes. detail commensurate with their preparation for shipment to the waste All the Action Alternatives could importance. The Final DU Oxide SEIS disposal site. Worker exposure from result in non-radiologic fatalities as a does not reevaluate the impacts of loading containers would result in zero result of traffic accidents, ranging from storage of DUF6 cylinders, conversion of LCFs for all Action Alternatives and one expected traffic fatality for train DUF6 to DU oxide, or the management options. All potential worker and public transportation of bulk bags to any of the and disposition of hydrogen fluoride. doses would be well below regulatory disposal sites to 11 traffic fatalities for These activities were evaluated in the limits for radiation exposure. truck transport of cylinders to 2004 EISs and decisions were Waste disposal volumes would not be EnergySolutions or NNSS. Calculated announced in ROD 69 FR 44654 and expected to exceed the capacities of the traffic fatalities were similar across the ROD 69 FR 44649. EnergySolutions, WCS, or NNSS Action Alternatives for a given Potential impacts of the No Action disposal facilities. For purposes of transportation mode and container Alternative and Action Alternative are analysis and to bound the impacts option. Calculated traffic fatalities were discussed in Chapter 4 of the Final DU under each Action Alternative, it was higher for truck transportation than Oxide SEIS. Based on the analysis in the assumed that all wastes would be train, and higher for transportation in Final DU Oxide SEIS, annual impacts disposed of at each disposal site (i.e., cylinders than in bulk bags. This is on site infrastructure; air quality, EnergySolutions, WCS, or NNSS). In primarily due to the difference in total climate change, and noise; geology and practice, waste could be disposed of at mileage necessary for each option. soils; water resources; biotic resources; more than one disposal site. The No Action Alternative would socioeconomics; land use and While all three Action Alternatives result in lower potential LCFs from aesthetics; cultural resources; and would result in lower overall potential transportation to crew and the environmental justice would be public and occupational health impacts population, and lower potential traffic negligible to minor and similar for the at the Portsmouth and Paducah sites fatalities because it would not result in No Action Alternative and Action compared to the No Action Alternative, the transportation of DU oxide to a Alternatives. Annual potential impacts the Action Alternatives would result in disposal site during the period of to public and occupational health and increased impacts from the handling analysis. However, because the No safety (during normal operations and and transportation of DU oxide to each Action Alternative defers a disposition accidents) resulting from storage of DU disposal location. The Final DU Oxide decision, it is likely that at some future
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time the containers of DU oxide may be the facility is authorized to receive DU Signed in Washington, DC, on June 2, transported off site for disposal or some oxide. In making its decision, DOE 2020. undetermined future use. The impacts considered several factors especially the Treena V. Garrett, of transportation and disposal of DU potential environmental impacts of the Federal Register Liaison Officer, U.S. oxide would likely be similar to the No Action Alternative and the Action Department of Energy. potential impacts described for the Alternatives; each alternative’s ability to [FR Doc. 2020–12185 Filed 6–4–20; 8:45 am] Action Alternatives. meet DOE’s purpose and need; direct, BILLING CODE 6450–01–P Environmentally Preferable Alternative indirect, and cumulative impacts of each alternative; and public comments The No Action Alternative would be on the Final DU Oxide SEIS. Based on DEPARTMENT OF ENERGY the Environmentally Preferable the analysis in the Final DU Oxide SEIS, Federal Energy Regulatory Alternative. Under the No Action all disposal locations identified and Commission Alternative, transportation and disposal analyzed are suitable for transportation would not occur, and the DU oxide and disposal of DU oxide, if a beneficial [Docket Nos. CP17–40–000] containers would remain in storage at use cannot be found. Impacts to human the Paducah and Portsmouth sites, health and the human environment Spire STL Pipeline, LLC; Notice of resulting in less impacts from container would be similar for all three sites. The Request for Extension of Time handling and transportation than under No Action Alternative would not meet the Action Alternatives. However, the Take notice that on May 27, 2020, the purpose and need for agency action No Action Alternative defers a Spire STL Pipeline, LLC (Spire) disposition decision for the DU oxide and would only defer a final decision on requested that the Federal Energy containers. Because the No Action the ultimate disposition of the DU Regulatory Commission (Commission) Alternative defers a disposition oxide. In addition, under the No Action grant an extension of time, until August decision, it is likely that at some future Alternative, it is likely that at some 3, 2021, to construct and place into time the containers of DU oxide would future time the containers of DU oxide service a section of 24-inch diameter be transported off-site for disposal or would be transported off-site for pipeline to the Enable Mississippi some undetermined future use. The disposal or some undetermined future Transmission, LLC (MRT) interconnect impacts of transportation and disposal use, if a use is identified. DOE which is part of the original certificate of DU oxide would likely be similar to acknowledges additional commercial authorization issued on August 3, 2018 the potential impacts described for the DUF6 was analyzed in the DU Oxide (Certificate Order). The Certificate Order Action Alternatives. SEIS as a reasonably foreseeable future required Spire to construct and place action contributing to cumulative the facilities in service by August 3, Comments Received on Draft DU Oxide impacts, which is not part of this 2020. SEIS decision. In November 2019, Spire requested DOE received 24 comment documents and the Commission authorized Spire to Mitigation which contained 115 comments. All place most of the project facilities into comments were considered in preparing The Proposed Action would include service including the Mainline, North the Final DU Oxide SEIS. DOE did not all practical means to avoid or minimize County Extension, Rex Receipt Station receive any comments after the close of environmental harm, including and the Laclede/Lange and Chain of the comment period. Topics of following standard practices such as Rocks Delivery Stations. At that time, comments received during the public Best Management Practices for Spire explained that with respect to the comment period on the Draft DU Oxide minimizing impacts on environmental section of 24-inch-diameter pipeline to SEIS are presented in Appendix E, of resources. The alternatives evaluated are the MRT interconnect, that it would the Final DU Oxide SEIS. DOE has not expected to produce impacts that construct this remaining section of considered comments received on the would require mitigation. Therefore, a pipeline in the spring of 2020. Spire Draft DU Oxide SEIS and finds that they Mitigation Action Plan is not required. states that it does not anticipate do not present ‘‘significant new completing construction of the MRT circumstances or information relevant to Signing Authority interconnect due to COVID–19 environmental concerns and bearing on pandemic related construction delays. the proposed action or its impacts’’ This document of the Department of In order to allow enough time for the within the meaning of 40 CFR 1502.9(c) Energy (DOE) was signed on June 1, safe completion of construction and to and 10 CFR 1021.314(a) and therefore 2020, by William I. White, Senior account for uncertainty regarding future do not require preparation of a Advisor for Environmental Management COVID related restrictions, Spire supplement analysis or a supplemental to the Under Secretary for Science, requests an extension of time until EIS. pursuant to delegated authority from the August 3, 2021 to complete construction Secretary of Energy. That document of this final section of pipeline. Decision with the original signature and date is This notice establishes a 15-calendar DOE has decided to implement its maintained by DOE. For administrative day intervention and comment period Preferred Alternative as described in the purposes only, and in compliance with deadline. Any person wishing to Final DU Oxide SEIS. DOE’s Preferred requirements of the Office of the Federal comment on Spire’s request for an Alternative is to dispose of DU oxide, if Register, the undersigned DOE Federal extension of time may do so. No reply a beneficial use cannot be found, at one Register Liaison Officer has been comments or answers will be or more of the disposal sites: (1) The authorized to sign and submit the considered. If you wish to obtain legal EnergySolutions LLW disposal facility document in electronic format for status by becoming a party to the near Clive, Utah; (2) the WCS LLW publication, as an official document of proceedings for this request, you disposal facility near Andrews, Texas; the Department of Energy. This should, on or before the comment date and (3) the NNSS LLW disposal facility administrative process in no way alters stated below, file a motion to intervene in Nye County, Nevada. DOE will only the legal effect of this document upon in accordance with the requirements of ship to the selected commercial site(s) if publication in the Federal Register. the Commission’s Rules of Practice and
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Procedure (18 CFR 385.214 or 385.211) toll-free, (886) 208–3676 or TYY, (202) Register, the Commission provides all and the Regulations under the Natural 502–8659. interested persons an opportunity to Gas Act (18 CFR 157.10).1 The Commission strongly encourages view and/or print the contents of this As a matter of practice, the electronic filings of comments, protests document via the internet through the Commission itself generally acts on and interventions in lieu of paper using Commission’s Home Page (http:// requests for extensions of time to the eFiling link at http://www.ferc.gov. www.ferc.gov) using the eLibrary link. complete construction for Natural Gas Persons unable to file electronically Enter the docket number excluding the Act facilities when such requests are should submit an original and three last three digits in the docket number contested before order issuance. For copies of the protest or intervention to field to access the document. At this those extension requests that are the Federal Energy Regulatory time, the Commission has suspended contested,2 the Commission will aim to Commission, 888 First Street NE, access to Commission’ s Public issue an order acting on the request Washington, DC 20426. Reference Room, due to the within 45 days.3 The Commission will Comment Date: 5:00 p.m. Eastern proclamation declaring a National address all arguments relating to Time on June 16, 2020. Emergency concerning the Novel whether the applicant has demonstrated Dated: June 1, 2020. Coronavirus Disease (COVID–19), issued there is good cause to grant the Nathaniel J. Davis, Sr., by the President on March 13, 2020. For 4 extension. The Commission will not Deputy Secretary. assistance, contact FERC at consider arguments that re-litigate the [email protected] or call issuance of the certificate order, [FR Doc. 2020–12235 Filed 6–4–20; 8:45 am] BILLING CODE 6717–01–P toll-free, (886) 208–3676 or TYY, (202) including whether the Commission 502–8659. properly found the project to be in the Comment Date: 5:00 p.m. Eastern public convenience and necessity and DEPARTMENT OF ENERGY Time on July 1, 2020. whether the Commission’s Dated: June 1, 2020. environmental analysis for the Federal Energy Regulatory Nathaniel J. Davis, Sr., certificate complied with the National Commission Environmental Policy Act.5 At the time Deputy Secretary. a pipeline requests an extension of time, [Project No. 2629–014] [FR Doc. 2020–12219 Filed 6–4–20; 8:45 am] orders on certificates of public Village or Morrisville, Vermont; Notice BILLING CODE 6717–01–P convenience and necessity are final and of Petition for Declaratory Order the Commission will not re-litigate their issuance.6 The OEP Director, or his or Take notice that on May 28, 2020, the DEPARTMENT OF ENERGY her designee, will act on all of those Village of Morrisville (Morrisville), extension requests that are uncontested. applicant for relicensing the Morrisville Federal Energy Regulatory In addition to publishing the full text Hydroelectric Project No. 2629, filed a Commission of this document in the Federal petition for declaratory order (petition) Combined Notice of Filings #1 Register, The Commission provides all pursuant to Rule 207(a)(2) of the Federal interested persons an opportunity to Energy Regulatory Commission’s Rules Take notice that the Commission view and/or print the contents of this of Practice and Procedure, 18 CFR received the following electric corporate document via the internet through the 385.207(a)(2). Morrisville requests that filings: Commission’s Home Page (http:// the Commission declare that the Docket Numbers: EC20–67–000. www.ferc.gov) using the eLibrary link. Vermont Agency of Natural Resources Applicants: Broadview Energy JN, Enter the docket number excluding the has waived its authority to issue a LLC, Broadview Energy KW, LLC. last three digits in the docket number certification for the Morrisville Description: Supplement to May 15, field to access the document. At this Hydroelectric Project under Section 401 2020 Application for Authorization time, the Commission has suspended of the Clean Water Act, 33 U.S.C. Under Section 203 of the Federal Power access to Commission’s Public 1341(a)(1), as more fully explained in Act, et al. of Broadview Energy JN, LLC, Reference Room, due to the the petition. et al. proclamation declaring a National Any person wishing to comment on Filed Date: 5/29/20. Emergency concerning the Novel Morrisville’s petition may do so.1 The Accession Number: 20200529–5510. Coronavirus Disease (COVID–19), issued deadline for filing comments is 30 days Comments Due: 5 p.m. ET 6/19/20. by the President on March 13, 2020. For from the issuance of this notice. The Docket Numbers: EC20–69–000. assistance, contact FERC at Commission encourages electronic Applicants: Northern States Power [email protected] or call submission of comments in lieu of Company, a Minnesota corporation, FPL paper using the eFiling link at http:// Energy Mower County, LLC. 1 Only motions to intervene from entities that www.ferc.gov. Persons unable to file Description: Joint Application for were party to the underlying proceeding will be electronically should send comments to Authorization Under Section 203 of the accepted. Algonquin Gas Transmission, LLC, 170 FERC 61,144, at P 39 (2020). the following address: Federal Energy Federal Power Act, et al. of Northern 2 Contested proceedings are those where an Regulatory Commission, 888 First Street States Power Company, a Minnesota intervenor disputes any material issue of the filing. NE, Washington, DC 20426. Be sure to corporation, et al. 18 CFR 385.2201(c)(1) (2019). reference the project docket number (P– Filed Date: 5/29/20. 3 Algonquin Gas Transmission, LLC, 170 FERC 2629–014) with your submission. Accession Number: 20200529–5521. 61,144, at P 40 (2020). In addition to publishing the full text Comments Due: 5 p.m. ET 6/19/20. 4 Id. at P 40. 5 Similarly, the Commission will not re-litigate of this document in the Federal Take notice that the Commission the issuance of an NGA section 3 authorization, received the following exempt including whether a proposed project is not 1 Morrisville’s request is part of its relicensing wholesale generator filings: inconsistent with the public interest and whether proceeding in Project No. 2629–014. Thus, any Docket Numbers: EG20–173–000. the Commission’s environmental analysis for the person that intervened in the relicensing permit order complied with NEPA. proceeding is already a party. The filing of the Applicants: Little Bear Solar 1, LLC. 6 Algonquin Gas Transmission, LLC, 170 FERC petition in this case does not trigger a new Description: Updated Notice of Self- 61,144, at P 40 (2020). opportunity to intervene. Certification of Exempt Wholesale
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Generator Status of Little Bear Solar 1, Description: Notice of Non-Material Description: § 205(d) Rate Filing: BGE LLC. Change in Status of the BHE MBR submits Revisions to PJM Tariff, Att. Filed Date: 5/29/20. Sellers and Merrill Lynch Commodities, H–2A re: Stated Depreciation Rates to be Accession Number: 20200529–5323. Inc. effective 8/1/2020. Comments Due: 5 p.m. ET 6/19/20. Filed Date: 5/29/20. Filed Date: 5/29/20. Docket Numbers: EG20–174–000. Accession Number: 20200529–5534. Accession Number: 20200529–5267. Applicants: Calpine Northeast Comments Due: 5 p.m. ET 6/19/20. Comments Due: 5 p.m. ET 6/19/20. Development, LLC. Docket Numbers: ER10–2756–009. Docket Numbers: ER20–1930–000. Description: Notice of Self- Applicants: Griffith Energy LLC. Applicants: Tri-State Generation and Certification of Exempt Wholesale Description: Notice of Non-Material Transmission Association, Inc. Generator Status. Change in Status of Griffith Energy LLC. Description: § 205(d) Rate Filing: Filed Date: 5/29/20. Filed Date: 5/29/20. Certificate of Concurrence for Amended Accession Number: 20200529–5402. Accession Number: 20200529–5512. and Restated Service Agreement No. 854 Comments Due: 5 p.m. ET 6/19/20. Comments Due: 5 p.m. ET 6/19/20. to be effective 5/30/2020. Docket Numbers: EG20–175–000. Docket Numbers: ER17–996–003. Filed Date: 5/29/20. Applicants: Cerro Gordo Wind, LLC. Accession Number: 20200529–5275. Description: Notice of Self- Applicants: New York Independent System Operator, Inc. Comments Due: 5 p.m. ET 6/19/20. Certification of Exempt Wholesale Docket Numbers: ER20–1931–000. Generator Status of Cerro Gordo Wind, Description: Compliance filing: Compliance to exclude State Program Applicants: Pacific Gas and Electric LLC. Company. Filed Date: 5/29/20. language as directed by FERC 5/12/20 Order to be effective 5/12/2020. Description: § 205(d) Rate Filing: May Accession Number: 20200529–5405. 2020 Western Interconnection Comments Due: 5 p.m. ET 6/19/20. Filed Date: 5/29/20. Agreement Biannual Filing to be Take notice that the Commission Accession Number: 20200529–5508. Comments Due: 5 p.m. ET 6/19/20. effective 8/1/2020. received the following electric rate Filed Date: 5/29/20. Docket Numbers: ER18–680–003. filings: Accession Number: 20200529–5280. Applicants: PJM Interconnection, Docket Numbers: ER10–1852–038. Comments Due: 5 p.m. ET 6/19/20. Applicants: Florida Power & Light L.L.C. Description: Compliance filing: Docket Numbers: ER20–1932–000. Company. Applicants: Pacific Gas and Electric Description: Notification of Change in Compliance filing per Commission’s 3/31/2020 Order in Docket No. ER18– Company. Status of Florida Power & Light Description: § 205(d) Rate Filing: May Company. 680 to be effective 1/1/2018. Filed Date: 6/1/20. 2020 Western WDT Service Agreement Filed Date: 6/1/20. Biannual Filing to be effective 8/1/2020. Accession Number: 20200601–5150. Accession Number: 20200601–5075. Comments Due: 5 p.m. ET 6/22/20. Filed Date: 5/29/20. Comments Due: 5 p.m. ET 6/22/20. Accession Number: 20200529–5285. Docket Numbers: ER10–2475–021; Docket Numbers: ER20–1926–000. Comments Due: 5 p.m. ET 6/19/20. Applicants: Midcontinent ER10–2474–021; ER10–2605–014; Docket Numbers: ER20–1933–000. ER10–2611–021; ER10–2984–046; Independent System Operator, Inc. Applicants: PJM Interconnection, ER10–3246–015; ER11–2044–033; Description: § 205(d) Rate Filing: _ L.L.C. ER11–3876–024; ER12–162–028; ER12– 2020–05–29 TOA Amendment Description: § 205(d) Rate Filing: 1626–011; ER13–1266–029; ER13–1267– Advisory Committee Affiliate Sector to Second Revised ISA, SA No. 4608; 010; ER13–1268–010; ER13–1269–010; be effective 7/29/2020. Queue No. AE2–155 to be effective Filed Date: 5/29/20. ER13–1270–010; ER13–1271–010; 4/30/2020. ER13–1272–010; ER13–1273–010; Accession Number: 20200529–5252. Filed Date: 5/29/20. ER13–1441–010; ER13–1442–010; Comments Due: 5 p.m. ET 6/19/20. Accession Number: 20200529–5305. ER13–520–010; ER13–521–010; ER15– Docket Numbers: ER20–1927–000. Comments Due: 5 p.m. ET 6/19/20. 2211–026; ER16–1258–003; ER16–438– Applicants: Midcontinent Docket Numbers: ER20–1934–000. 005; ER18–1419–002. Independent System Operator, Inc., Applicants: Entergy Nuclear Indian Applicants: Nevada Power Company, Consumers Energy Company. Point 2, LLC. Sierra Pacific Power Company, Description: Compliance filing: 2020– Description: Tariff Cancellation: _ PacifiCorp, Pinyon Pines Wind I, LLC, 05–29 Consumers’ Compliance on Entergy Nuclear Indian Point 2, LLC to Pinyon Pines Wind II, LLC, Solar Star Order 864 for ADIT to be effective be effective 6/1/2020. California XIX, LLC, Solar Star 1/27/2020. Filed Date: 5/29/20. California XX, LLC, Topaz Solar Farms Filed Date: 5/29/20. Accession Number: 20200529–5504. LLC, CE Leathers Company, Elmore Accession Number: 20200529–5257. Comments Due: 5 p.m. ET 6/19/20. Company, Del Ranch Company, Fish Comments Due: 5 p.m. ET 6/19/20. Docket Numbers: ER20–1935–000. Lake Power LLC, Salton Sea Power Docket Numbers: ER20–1928–000. Applicants: Tampa Electric Company. Generation Company, Vulcan/BN Applicants: Midcontinent Description: § 205(d) Rate Filing: Geothermal Power Company, Yuma Independent System Operator, Inc. Section 205 Solar Intangible Cogeneration Associates, Bishop Hill Description: § 205(d) Rate Filing: Depreciation Filing—2020 to be Energy II LLC, MidAmerican Energy 2020–05–29_Attachment FF True-up effective 1/1/2019. Company, Cordova Energy Company Filing to be effective 6/1/2020. Filed Date: 5/29/20. LLC, Walnut Ridge Wind, LLC, Grande Filed Date: 5/29/20. Accession Number: 20200529–5329. Prairie Wind, LLC, Marshall Wind Accession Number: 20200529–5259. Comments Due: 5 p.m. ET 6/19/20. Energy LLC, Saranac Power Partners, Comments Due: 5 p.m. ET 6/19/20. Docket Numbers: ER20–1936–000. L.P., CalEnergy, LLC, MidAmerican Docket Numbers: ER20–1929–000. Applicants: Walnut Ridge Wind, LLC. Energy Services, LLC, Merrill Lynch Applicants: Baltimore Gas and Description: § 205(d) Rate Filing: Commodities, Inc., Salton Sea Power Electric Company, PJM Interconnection, Reactive Power Compensation Tariff L.L.C. L.L.C. Filing to be effective 6/1/2020.
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Filed Date: 5/29/20. Docket Numbers: ER20–1944–000. Description: Compliance filing: MAIT Accession Number: 20200529–5354. Applicants: Alabama Power submits Compliance Filing re: Order Comments Due: 5 p.m. ET 6/19/20. Company. 864 to be effective 1/27/2020. Docket Numbers: ER20–1937–000. Description: § 205(d) Rate Filing: Filed Date: 6/1/20. Applicants: California Independent Attachment S (MPCo) 2020 Updated Accession Number: 20200601–5141. System Operator Corporation. Depreciation Rates Filing to be effective Comments Due: 5 p.m. ET 6/22/20. Description: § 205(d) Rate Filing: 4/1/2020. Docket Numbers: ER20–1952–000. 2020–05–29 EIM Implementation Filed Date: 6/1/20. Applicants: North Star Solar PV LLC. Agreement with Public Service Co— Accession Number: 20200601–5062. Description: Baseline eTariff Filing: Comments Due: 5 p.m. ET 6/22/20. Colorado to be effective 7/31/2020. Reactive Power Compensation Filing to Filed Date: 5/29/20. Docket Numbers: ER20–1945–000. be effective 7/31/2020. Accession Number: 20200529–5435. Applicants: Duke Energy Ohio, Inc., Filed Date: 6/1/20. Comments Due: 5 p.m. ET 6/19/20. PJM Interconnection, L.L.C. Accession Number: 20200601–5148. Description: § 205(d) Rate Filing: Comments Due: 5 p.m. ET 6/22/20. Docket Numbers: ER20–1938–000. Duke Energy Ohio submits IA SA No. Applicants: Southern California 5186 to be effective 7/31/2020. Docket Numbers: ER20–1953–000. Edison Company. Filed Date: 6/1/20. Applicants: AEP Texas Inc. Description: § 205(d) Rate Filing: Accession Number: 20200601–5064. Description: § 205(d) Rate Filing: LGIA Luz Solar Partners LTD., VIII, Comments Due: 5 p.m. ET 6/22/20. AEPTX–LCRA TSC Heines Facility Kramer Junction 8 SA No. 247 to be Development Agreement to be effective Docket Numbers: ER20–1946–000. effective 5/30/2020. Applicants: Beech Ridge Energy II 5/20/2020. Filed Date: 5/29/20. LLC. Filed Date: 6/1/20. Accession Number: 20200529–5446. Description: § 205(d) Rate Filing: Accession Number: 20200601–5157. Comments Due: 5 p.m. ET 6/19/20. Amendment to Beech Ridge Energy II Comments Due: 5 p.m. ET 6/22/20. Docket Numbers: ER20–1939–000. MBR Tariff to be effective 6/2/2020. Docket Numbers: ER20–1954–000. Applicants: Calpine Northeast Filed Date: 6/1/20. Applicants: ITC Great Plains, LLC, Development, LLC. Accession Number: 20200601–5085. Southwest Power Pool, Inc. Description: Baseline eTariff Filing: Comments Due: 5 p.m. ET 6/22/20. Description: Compliance filing: ITC Application for Market-Based Rate Docket Numbers: ER20–1947–000. Great Plains, LLC Order No. 864 Authorization under Section 205 of the Applicants: Greenleaf Energy Unit 2 Compliance Filing to be effective 1/27/ FPA to be effective 5/30/2020. LLC. 2020. Filed Date: 5/29/20. Description: Baseline eTariff Filing: Filed Date: 6/1/20. Accession Number: 20200529–5454. Rate Schedules and Agreements Accession Number: 20200601–5160. Comments Due: 5 p.m. ET 6/19/20. baseleine to be effective 6/2/2020. Comments Due: 5 p.m. ET 6/22/20. Docket Numbers: ER20–1940–000. Filed Date: 6/1/20. Docket Numbers: ER20–1955–000. Applicants: Agera Energy LLC. Accession Number: 20200601–5129. Applicants: Public Service Company Description: Tariff Cancellation: Tariff Comments Due: 5 p.m. ET 6/22/20. of New Mexico. Cancellation to be effective 6/1/2020. Docket Numbers: ER20–1948–000. Description: § 205(d) Rate Filing: PNM Filed Date: 5/29/20. Applicants: Potomac-Appalachian Compliance with Order No. 864 to be Accession Number: 20200529–5474. Highline Transmission, PJM effective 1/27/2020. Comments Due: 5 p.m. ET 6/19/20. Interconnection, L.L.C. Filed Date: 6/1/20. Docket Numbers: ER20–1941–000. Description: Compliance filing: PATH Accession Number: 20200601–5172. Applicants: Southwest Power Pool, submits Compliance Filing re: Order Comments Due: 5 p.m. ET 6/22/20. Inc. 864 to be effective 1/27/2020. Take notice that the Commission Description: § 205(d) Rate Filing: 3687 Filed Date: 6/1/20. received the following electric GridLiance High Plains & Evergy Kansas Accession Number: 20200601–5131. reliability filings: Comments Due: 5 p.m. ET 6/22/20. Central Int Agr to be effective 8/1/2020. Docket Numbers: RR20–3–000. Filed Date: 5/29/20. Docket Numbers: ER20–1949–000. Applicants: Georgia Power Company. Applicants: North American Electric Accession Number: 20200529–5488. Reliability Corp. Comments Due: 5 p.m. ET 6/19/20. Description: § 205(d) Rate Filing: JEA Scherer Unit 4 TSA 2020 GPCo Updated Description: North American Electric Docket Numbers: ER20–1942–000. Depreciation Rate and Errata Filing to be Reliability Corporation’s Report of Applicants: Midcontinent effective 1/1/2020. Comparison of Budgeted to Actual Costs Independent System Operator, Inc. Filed Date: 6/1/20. for 2019 for NERC and the Regional Description: § 205(d) Rate Filing: Accession Number: 20200601–5140. Entities. 2020–05–29_Conventional Deliverable Comments Due: 5 p.m. ET 6/22/20. Filed Date: 5/29/20. ICAP Filing to be effective 8/12/2020. Docket Numbers: ER20–1950–000. Accession Number: 20200529–5528. Filed Date: 5/29/20. Applicants: Georgia Power Company. Comments Due: 5 p.m. ET 6/19/20. Accession Number: 20200529–5493. Description: § 205(d) Rate Filing: The filings are accessible in the Comments Due: 5 p.m. ET 6/19/20. FP&L Scherer Unit 4 TSA 2020 GPCo Commission’s eLibrary system by Docket Numbers: ER20–1943–000. Updated Depreciation Rate and Errata clicking on the links or querying the Applicants: New England Power Pool Filing to be effective 1/1/2020. docket number. Participants Committee. Filed Date: 6/1/20. Any person desiring to intervene or Description: § 205(d) Rate Filing: June Accession Number: 20200601–5142. protest in any of the above proceedings 2020 Membership Filing to be effective Comments Due: 5 p.m. ET 6/22/20. must file in accordance with Rules 211 5/1/2020. Docket Numbers: ER20–1951–000. and 214 of the Commission’s Filed Date: 6/1/20. Applicants: Mid-Atlantic Interstate Regulations (18 CFR 385.211 and Accession Number: 20200601–5006. Transmission, LLC, PJM 385.214) on or before 5:00 p.m. Eastern Comments Due: 5 p.m. ET 6/22/20. Interconnection, L.L.C. time on the specified comment date.
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Protests may be considered, but submit brief comments up to 6,000 listed as a contact for an intervenor intervention is necessary to become a characters, without prior registration, must create and validate an party to the proceeding. using the eComment system at http:// eRegistration account using the eFiling is encouraged. More detailed www.ferc.gov/docs-filing/ eRegistration link. Select the eFiling information relating to filing ecomment.asp. You must include your link to log on and submit the requirements, interventions, protests, name and contact information at the end intervention or protests. service, and qualifying facilities filings of your comments. For assistance, Persons unable to file electronically can be found at: http://www.ferc.gov/ please contact FERC Online Support at may mail similar pleadings to the docs-filing/efiling/filing-req.pdf. For [email protected], (866) Federal Energy Regulatory Commission, other information, call (866) 208–3676 208–3676 (toll free), or (202) 502–8659 888 First Street NE, Washington, DC (toll free). For TTY, call (202) 502–8659. (TTY). In lieu of electronic filing, please 20426. Hand delivered submissions in Dated: June 1, 2020. send a paper copy to: Secretary, Federal docketed proceedings should be Nathaniel J. Davis, Sr., Energy Regulatory Commission, 888 delivered to Health and Human First Street NE, Washington, DC 20426. Services, 12225 Wilkins Avenue, Deputy Secretary. The first page of any filing should Rockville, Maryland 20852. [FR Doc. 2020–12230 Filed 6–4–20; 8:45 am] include docket number P–10721–033. In addition to publishing the full text BILLING CODE 6717–01–P Dated: June 1, 2020. of this document in the Federal Nathaniel J. Davis, Sr., Register, the Commission provides all interested persons an opportunity to DEPARTMENT OF ENERGY Deputy Secretary. view and/or print the contents of this [FR Doc. 2020–12233 Filed 6–4–20; 8:45 am] Federal Energy Regulatory document via the internet through the BILLING CODE 6717–01–P Commission Commission’s Home Page (http:// ferc.gov) using the eLibrary link. Enter [Project No. 10721–033] the docket number excluding the last DEPARTMENT OF ENERGY three digits in the docket number field Big Creek Lodge & Outfitters Inc.; to access the document. At this time, the Idaho Aviation Foundation; Notice of Federal Energy Regulatory Commission Commission has suspended access to Application for Transfer of License and the Commission’s Public Reference Soliciting Comments, Motions To [Docket No. ER20–1939–000] Room, due to the proclamation Intervene, and Protests declaring a National Emergency Calpine Northeast Development, LLC; On April 28, 2020, J Curtis Earl Idaho concerning the Novel Coronavirus Supplemental Notice That Initial Disease (COVID–19), issued by the Aviation Foundation Inc., dba Idaho Market-Based Rate Filing Includes Aviation Foundation (transferee) filed President on March 13, 2020. For Request for Blanket Section 204 assistance, contact the Federal Energy an application for an after-the-fact Authorization transfer of license of the Big Creek Regulatory Commission at Hydroelectric Project No. 10721. The This is a supplemental notice in the [email protected] or call project is located on McCorkle Creek, in above-referenced Calpine Northeast toll-free, (886) 208–3676 or TYY, (202) Valley County, Idaho, and within the Development, LLC’s application for 502–8659. Payette National Forest. market-based rate authority, with an Dated: June 1, 2020. The applicant seeks Commission accompanying rate tariff, noting that Nathaniel J. Davis, Sr., approval to transfer the license for the such application includes a request for Deputy Secretary. Big Creek Hydroelectric Project from Big blanket authorization, under 18 CFR [FR Doc. 2020–12232 Filed 6–4–20; 8:45 am] Creek Lodge & Outfitters Inc. (transferor) part 34, of future issuances of securities BILLING CODE 6717–01–P to the transferee. The Big Creek Lodge and assumptions of liability. tragically burned to the ground in Any person desiring to intervene or to October 2008 and Idaho Aviation protest should file with the Federal DEPARTMENT OF ENERGY Foundation purchased the assets of Big Energy Regulatory Commission, 888 Creek Lodge & Outfitters Inc. including First Street NE, Washington, DC 20426, Federal Energy Regulatory the hydropower project. in accordance with Rules 211 and 214 Commission Applicant’s Contacts: Vic Jaro, Idaho of the Commission’s Rules of Practice Aviation Foundation, Board Member, and Procedure (18 CFR 385.211 and [Project No. 2153–066] 1297 Quail Hollow, Buhl, ID 83316, 385.214). Anyone filing a motion to United Water Conservation District; Phone: (208) 404–9627; Email: info@ intervene or protest must serve a copy Notice of Application Accepted for idahoaviationfoundation.org and of that document on the Applicant. Filing, Soliciting Comments, Motions Nadine Burak, Secretary/Treasurer, P.O. Notice is hereby given that the To Intervene, and Protests Box 2016, Eagle, ID 83616. deadline for filing protests with regard FERC Contact: Anumzziatta to the applicant’s request for blanket Take notice that the following Purchiaroni, (202) 502–6191, authorization, under 18 CFR part 34, of hydroelectric application has been filed [email protected]. future issuances of securities and with the Commission and is available Deadline for filing comments, motions assumptions of liability, is June 22, for public inspection: to intervene, and protests: 30 days from 2020. a. Types of Application: Amend the date that the Commission issues this The Commission encourages license to replace outlet works and notice. The Commission strongly electronic submission of protests and modify spillway. encourages electronic filing. Please file interventions in lieu of paper, using the b. Project No.: 2153–066. comments, motions to intervene, and FERC Online links at http:// c. Date Filed: May 26, 2020. protests using the Commission’s eFiling www.ferc.gov. To facilitate electronic d. Applicants: United Water system at http://www.ferc.gov/docs- service, persons with internet access Conservation District. filing/efiling.asp. Commenters can who will eFile a document and/or be e. Name of Projects: Santa Felicia.
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f. Location: Piru Creek, Ventura reproduction at the address in item (h) DEPARTMENT OF ENERGY County, California. above. g. Filed Pursuant to: 18 CFR 6.1. m. Individuals desiring to be included Federal Energy Regulatory h. Applicant Contact: Maryam Bral, on the Commission’s mailing list should Commission United Water Conservation District, so indicate by writing to the Secretary 1701 North Lombard St., Suite 200, of the Commission. [Docket No. EL20–50–000] Oxnard, CA 93030, (804) 325–6563. n. Comments, Protests, or Motions to i. FERC Contact: David Rudisail, (202) Intervene: Anyone may submit ALLETE, Inc. and ALLETE South Wind, 502–6376, [email protected]. comments, a protest, or a motion to LLC; Notice of Petition for Declaratory j. Deadline for filing comments, intervene in accordance with the Order motions to intervene, protests, and requirements of Rules of Practice and recommendations is 30 days from the Procedure, 18 CFR 385.210, .211, .214. Take notice that on May 29, 2020, issuance date of this notice by the In determining the appropriate action to pursuant to Rule 207 of the Federal Commission. The Commission strongly take, the Commission will consider all Energy Regulatory Commission’s encourages electronic filing. Please file protests or other comments filed, but (Commission) Rules of Practice and motions to intervene, protests, only those who file a motion to Procedure, 18 CFR 385.207, ALLETE, comments, or recommendations using intervene in accordance with the Inc. and ALLETE South Wind, LLC the Commission’s eFiling system at Commission’s Rules may become a (Petitioners), filed a petition for a http://www.ferc.gov/docs-filing/ party to the proceeding. Any comments, efiling.asp. Commenters can submit protests, or motions to intervene must declaratory order seeking guidance brief comments up to 6,000 characters, be received on or before the specified concerning the scope of the affiliate without prior registration, using the comment date for the particular relationship the Commission will eComment system at http:// application. impute between the Petitioners and www.ferc.gov/docs-filing/ o. Filing and Service of Responsive Nobles 2 Power Partners, LLC, as more ecomment.asp. You must include your Documents: Any filing must (1) bear in fully explained in the petition. name and contact information at the end all capital letters the title COMMENTS, Any person desiring to intervene or to of your comments. For assistance, PROTEST, or MOTION TO protest this filing must file in please contact FERC Online Support at INTERVENE, as applicable; (2) set forth accordance with Rules 211 and 214 of [email protected], (866) in the heading the name of the applicant the Commission’s Rules of Practice and 208–3676 (toll free), or (202) 502–8659 and the project number of the Procedure (18 CFR 385.211, 385.214). (TTY). In lieu of electronic filing, please application to which the filing Protests will be considered by the send a paper copy to: Secretary, Federal responds; (3) furnish the name, address, Commission in determining the Energy Regulatory Commission, 888 and telephone number of the person appropriate action to be taken, but will First Street NE, Washington, DC 20426. protesting or intervening; and (4) not serve to make protestants parties to Please include the project number (P– otherwise comply with the requirements the proceeding. Any person wishing to 2153–066) on any comments, motions to of 18 CFR 385.2001 through 385.2005. become a party must file a notice of intervene, protests, or recommendations All comments, motions to intervene or intervention or motion to intervene, as filed. protests must set forth their evidentiary appropriate. Such notices, motions, or k. Description of Request: United basis and otherwise comply with the Water Conservation District proposes to protests must be filed on or before the requirements of 18 CFR 4.34(b). All comment date. Anyone filing a motion implement the two components of the comments, motions to intervene or Santa Felicia Dam Safety Improvement to intervene or protest must serve a copy protests should relate to project works of that document on the Petitioner. Project: (1) Replace the existing outlet which are the subject of the license works of Santa Felicia Dam with a new proposed re-development. Agencies The Commission encourages intake facility, conduit and tunnel, and may obtain copies of the application electronic submission of protests and downstream control facility; and (2) directly from the applicant. A copy of interventions in lieu of paper using the modify the existing spillway to increase any protest or motion to intervene must eFiling link at http://www.ferc.gov. the Inflow Design Flood capacity. be served upon each representative of Persons unable to file electronically l. Locations of the Application: A the applicant specified in the particular should submit an original and 5 copies copy of the application is available for application. If an intervener files of the protest or intervention to the inspection and reproduction at the comments or documents with the Federal Energy Regulatory Commission, Commission’s Public Reference Room, Commission relating to the merits of an 888 First Street NE, Washington, DC located at 888 First Street NE, Room 2A, issue that may affect the responsibilities 20426. Washington, DC 20426, or by calling of a particular resource agency, they This filing is accessible on-line at (202) 502–8371. This filing may also be must also serve a copy of the document viewed on the Commission’s website at http://www.ferc.gov, using the eLibrary on that resource agency. A copy of all link and is available for review in the http://www.ferc.gov/docs-filing/ other filings in reference to this efiling.asp. Enter the docket number Commission’s Public Reference Room in application must be accompanied by Washington, DC. There is an excluding the last three digits in the proof of service on all persons listed in docket number field to access the eSubscription link on the website that the service list prepared by the enables subscribers to receive email document. You may also register online Commission in this proceeding, in at http://www.ferc.gov/docs-filing/ notification when a document is added accordance with 18 CFR 4.34(b) and to a subscribed docket(s). For assistance esubscription.asp to be notified via 385.2010. email of new filings and issuances with any FERC Online service, please related to this or other pending projects. Dated: June 1, 2020. email [email protected], or For assistance, call 1–866–208–3676 or Nathaniel J. Davis, Sr., call (866) 208–3676 (toll free). For TTY, email [email protected], for Deputy Secretary. call (202) 502–8659. TTY, call (202) 502–8659. A copy is also [FR Doc. 2020–12224 Filed 6–4–20; 8:45 am] Comment Date: 5:00 p.m. Eastern time available for inspection and BILLING CODE 6717–01–P on June 29, 2020.
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Dated: June 1, 2020. complete construction for Natural Gas the Federal Energy Regulatory Nathaniel J. Davis, Sr., Act facilities when such requests are Commission, 888 First Street NE, Deputy Secretary. contested before order issuance. For Washington, DC 20426. [FR Doc. 2020–12222 Filed 6–4–20; 8:45 am] those extension requests that are Comment Date: 5:00 p.m. Eastern contested,2 the Commission will aim to BILLING CODE 6717–01–P Time on June 12, 2020. issue an order acting on the request within 45 days.3 The Commission will Dated: June 1, 2020. DEPARTMENT OF ENERGY address all arguments relating to Nathaniel J. Davis, Sr., whether the applicant has demonstrated Deputy Secretary. Federal Energy Regulatory there is good cause to grant the [FR Doc. 2020–12234 Filed 6–4–20; 8:45 am] Commission extension.4 The Commission will not consider arguments that re-litigate the BILLING CODE 6717–01–P [Docket No. CP19–220–000] issuance of the certificate order, National Fuel Gas Supply Corporation; including whether the Commission DEPARTMENT OF ENERGY Notice of Request for Extension of properly found the project to be in the Time public convenience and necessity and Federal Energy Regulatory whether the Commission’s Commission Take notice that on May 20, 2020, environmental analysis for the National Fuel Gas Supply Corporation certificate complied with the National (National) requested that the Federal Environmental Policy Act.5 At the time [Docket No. CP19–218–000] Energy Regulatory Commission a pipeline requests an extension of time, Equitrans, L.P.; Notice of Request for (Commission) grant an extension of orders on certificates of public Extension of Time time, until November 1, 2020, to convenience and necessity are final and construct and place into service the Commission will not re-litigate their Take notice that on May 22, 2020, Brockway Modernization Project issuance.6 The OEP Director, or his or Equitrans, L.P. (Equitrans) requested (Project) located in Jefferson and Elk her designee, will act on all of those that the Federal Energy Regulatory Counties, Pennsylvania authorized on extension requests that are uncontested. July 3, 2019. The Project will enable In addition to publishing the full text Commission (Commission) grant an replacement of approximately 9.7 miles of this document in the Federal extension of time, until March 31, 2021, of 12-inch-diameter pipeline and certain Register, The Commission provides all to construct and place into service its related facilities. interested persons an opportunity to TP–4555 Bare Pipe Replacement Project National was initially required to view and/or print the contents of this (Project) located in Westmoreland construct the facilities and place them document via the internet through the County, Pennsylvania. authorized on into service by July 5, 2020. National Commission’s Home Page (http:// July 3, 2019. The Project will enable now requests a four-month extension of www.ferc.gov) using the eLibrary link. abandonment of approximately 3.85 this deadline through November 1, Enter the docket number excluding the miles of 20-inch-diameter pipeline on 2020. National states that due to delays last three digits in the docket number the TP–4555 pipeline, replacing it with in receiving the required permits, field to access the document. At this a newly constructed approximately 3.92 National was unable to begin time, the Commission has suspended miles of 20-inch-diameter pipeline. access to Commission’s Public construction until March 1, 2020. Equitrans was initially required to Accordingly, National proposes a new Reference Room, due to the proclamation declaring a National construct the facilities and place them construction schedule, deferring the into service by July 3, 2020. Equitrans projected in-service date for the Emergency concerning the Novel Coronavirus Disease (COVID–19), issued now requests a nine-month extension of facilities to no later than November 1, this deadline through March 31, 2021. 2020. by the President on March 13, 2020. For assistance, contact FERC at Equitrans states that due to delays in This notice establishes a 15-calendar receiving the required Pennsylvania day intervention and comment period [email protected] or call toll-free, (886) 208–3676 or TYY, (202) Department of Environmental Protection deadline. Any person wishing to permits, Equitrans was unable to begin comment on National’s request for an 502–8659. construction until May 12, 2020. extension of time may do so. No reply The Commission strongly encourages Accordingly, Equitrans proposes a new comments or answers will be electronic filings of comments, protests construction schedule, deferring the considered. If you wish to obtain legal and interventions in lieu of paper using projected in-service date for the status by becoming a party to the the eFiling link at http://www.ferc.gov. proceedings for this request, you Persons unable to file electronically facilities to no later than March 31, should, on or before the comment date should submit an original and three 2021. stated below, file a motion to intervene copies of the protest or intervention to This notice establishes a 15-calendar in accordance with the requirements of day intervention and comment period 2 Contested proceedings are those where an deadline. Any person wishing to the Commission’s Rules of Practice and intervenor disputes any material issue of the filing. Procedure (18 CFR 385.214 or 385.211) 18 CFR 385.2201(c)(1) (2019). comment on Equitrans request may do and the Regulations under the Natural 3 Algonquin Gas Transmission, LLC, 170 FERC so. No reply comments or answers will Gas Act (18 CFR 157.10).1 61,144, at P 40 (2020). be considered If you wish to obtain legal As a matter of practice, the 4 Id. at P 40. status by becoming a party to the 5 Commission itself generally acts on Similarly, the Commission will not re-litigate proceedings for this request, you the issuance of an NGA section 3 authorization, requests for extensions of time to including whether a proposed project is not should, on or before the comment date inconsistent with the public interest and whether stated below, file a motion to intervene 1 Only motions to intervene from entities that the Commission’s environmental analysis for the in accordance with the requirements of were party to the underlying proceeding will be permit order complied with NEPA. the Commission’s Rules of Practice and accepted. Algonquin Gas Transmission, LLC, 170 6 Algonquin Gas Transmission, LLC, 170 FERC FERC 61,144, at P 39 (2020). 61,144, at P 40 (2020). Procedure (18 CFR 385.214 or 385.211)
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and the Regulations under the Natural toll-free, (886) 208–3676 or TYY, (202) Energy Regulatory Commission, 888 Gas Act (18 CFR 157.10). 1 502–8659. First Street NE, Washington, DC 20426. As a matter of practice, the The Commission strongly encourages Hand delivered submissions in Commission itself generally acts on electronic filings of comments, protests docketed proceedings should be requests for extensions of time to and interventions in lieu of paper using delivered to Health and Human complete construction for Natural Gas the eFiling link at http://www.ferc.gov. Services, 12225 Wilkins Avenue, Act facilities when such requests are Persons unable to file electronically Rockville, Maryland 20852. contested before order issuance. For should submit an original and three In addition to publishing the full text those extension requests that are copies of the protest or intervention to of this document in the Federal contested,2 the Commission will aim to the Federal Energy Regulatory Register, the Commission provides all issue an order acting on the request Commission, 888 First Street NE, interested persons an opportunity to within 45 days.3 The Commission will Washington, DC 20426. view and/or print the contents of this address all arguments relating to Comment Date: 5:00 p.m. Eastern document via the internet through the whether the applicant has demonstrated Time on June 16, 2020. Commission’s Home Page (http:// there is good cause to grant the Dated: June 1, 2020. ferc.gov) using the eLibrary link. Enter 4 the docket number excluding the last extension. The Commission will not Nathaniel J. Davis, Sr., consider arguments that re-litigate the three digits in the docket number field Deputy Secretary. issuance of the certificate order, to access the document. At this time, the including whether the Commission [FR Doc. 2020–12231 Filed 6–4–20; 8:45 am] Commission has suspended access to properly found the project to be in the BILLING CODE 6717–01–P the Commission’s Public Reference public convenience and necessity and Room, due to the proclamation whether the Commission’s declaring a National Emergency DEPARTMENT OF ENERGY environmental analysis for the concerning the Novel Coronavirus certificate complied with the National Federal Energy Regulatory Disease (COVID–19), issued by the Environmental Policy Act.5 At the time Commission President on March 13, 2020. For a pipeline requests an extension of time, assistance, contact FERC at orders on certificates of public [Docket No. EL20–49–000] [email protected], or call convenience and necessity are final and toll-free, (886) 208–3676 or TYY, (202) the Commission will not re-litigate their Shell Energy North America (U.S.), LP; 502–8659. issuance.6 The OEP Director, or his or Notice of Petition for Declaratory Order Comment Date: 5:00 p.m. Eastern time her designee, will act on all of those Take notice that on May 29, 2020, on June 29, 2020. extension requests that are uncontested. pursuant to Rule 207 of the Federal Dated: June 1, 2020. In addition to publishing the full text Energy Regulatory Commission’s Nathaniel J. Davis, Sr., of this document in the Federal (Commission) Rules of Practice and Deputy Secretary. Register, The Commission provides all Procedure, 18 CFR 385.207, Shell [FR Doc. 2020–12220 Filed 6–4–20; 8:45 am] interested persons an opportunity to Energy North America (U.S.), L.P. BILLING CODE 6717–01–P view and/or print the contents of this (Petitioner), filed a petition for a document via the internet through the declaratory order requesting that the Commission’s Home Page (http:// Commission interpret the PJM DEPARTMENT OF ENERGY www.ferc.gov) using the eLibrary link. Interconnection, L.L.C. Tariff provisions Enter the docket number excluding the regarding bilateral transfers of Financial Federal Energy Regulatory last three digits in the docket number Transmission Rights and to resolve an Commission field to access the document. At this ongoing dispute currently pending in time, the Commission has suspended Texas state court, as more fully Combined Notice of Filings access to Commission’s Public explained in the petition. Take notice that the Commission has Reference Room, due to the Any person desiring to intervene or to proclamation declaring a National received the following Natural Gas protest this filing must file in Pipeline Rate and Refund Report filings: Emergency concerning the Novel accordance with Rules 211 and 214 of Docket Number: PR20–64–000. Coronavirus Disease (COVID–19), issued the Commission’s Rules of Practice and by the President on March 13, 2020. For Applicants: Southern California Gas Procedure (18 CFR 385.211, 385.214). Company. assistance, contact FERC at Protests will be considered by the [email protected] or call Description: Tariff filing per Commission in determining the 284.123(b), (e) + (g): Offshore_Delivery_ appropriate action to be taken, but will Service_Rate_Revision_May_2020 to be 1 Only motions to intervene from entities that not serve to make protestants parties to effective 5/1/2020. were party to the underlying proceeding will be the proceeding. Any person wishing to accepted. Algonquin Gas Transmission, LLC, 170 Filed Date: 5/28/2020. FERC 61,144, at P 39 (2020). become a party must file a notice of Accession Number: 202005285311. 2 Contested proceedings are those where an intervention or motion to intervene, as Comments Due: 5 p.m. ET 6/18/2020. intervenor disputes any material issue of the filing. appropriate. Such notices, motions, or 284.123(g) Protests Due: 5 p.m. ET 18 CFR 385.2201(c)(1) (2019). protests must be filed on or before the 7/27/2020. 3 Algonquin Gas Transmission, LLC, 170 FERC comment date. Anyone filing a motion 61,144, at P 40 (2020). Docket Numbers: RP20–898–000. 4 Id. at P 40. to intervene or protest must serve a copy Applicants: Texas Eastern 5 Similarly, the Commission will not re-litigate of that document on the Petitioner. Transmission, LP. the issuance of an NGA section 3 authorization, The Commission strongly encourages Description: § 4(d) Rate Filing: including whether a proposed project is not electronic filings of comments, protests Negotiated Rates—NJR 911065, 911121, inconsistent with the public interest and whether and interventions in lieu of paper using the Commission’s environmental analysis for the 911158, 910530 to be effective 6/1/2020. permit order complied with NEPA. the eFiling link at http://www.ferc.gov. Filed Date: 5/29/20. 6 Algonquin Gas Transmission, LLC, 170 FERC Persons unable to file electronically may Accession Number: 20200529–5038. 61,144, at P 40 (2020). mail similar pleadings to the Federal Comments Due: 5 p.m. ET 6/10/20.
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Docket Numbers: RP20–899–000. Description: Compliance filing Filed Date: 5/29/20. Applicants: Transcontinental Gas Compliance to RP20–78–000 LNG Accession Number: 20200529–5256. Pipe Line Company, LLC. Settlement to be effective 7/1/2020. Comments Due: 5 p.m. ET 6/10/20. Description: § 4(d) Rate Filing: Rate Filed Date: 5/29/20. Docket Numbers: RP20–914–000. Schedule S–2 Tracker Filing (ASA) eff Accession Number: 20200529–5175. Applicants: Gulf South Pipeline 6/1/2020 to be effective 6/1/2020. Comments Due: 5 p.m. ET 6/10/20. Company, LLC. Filed Date: 5/29/20. Docket Numbers: RP20–907–000. Description: § 4(d) Rate Filing: Accession Number: 20200529–5039. Applicants: Kern River Gas Amendment to Neg Rate Agmt (BP Comments Due: 5 p.m. ET 6/10/20. Transmission Company. 46441 eff 6–1–2020) to be effective 6/1/ Docket Numbers: RP20–900–000. Description: § 4(d) Rate Filing: 2020 2020. Applicants: MoGas Pipeline LLC. Cymric Meter Station to be effective Filed Date: 5/29/20. Description: § 4(d) Rate Filing: MoGas 7/1/2020. Accession Number: 20200529–5262. Negotiated Rate Agreement Filing to be Filed Date: 5/29/20. Comments Due: 5 p.m. ET 6/10/20. effective 7/1/2020. Accession Number: 20200529–5177. Docket Numbers: RP20–915–000. Filed Date: 5/29/20. Comments Due: 5 p.m. ET 6/10/20. Applicants: Gulf South Pipeline Accession Number: 20200529–5063. Docket Numbers: RP20–908–000. Company, LLC. Comments Due: 5 p.m. ET 6/10/20. Applicants: Alliance Pipeline L.P. Description: § 4(d) Rate Filing: Docket Numbers: RP20–901–000. Description: § 4(d) Rate Filing: APL Amendment to NC Neg Rate Agmt Applicants: Tennessee Gas Pipeline Section 4 Rate Case to be effective 7/1/ (Panda Sherman 624) to be effective Company, L.L.C. 2020. 6/1/2020. Description: § 4(d) Rate Filing: PCB Filed Date: 5/29/20. Filed Date: 5/29/20. Adjustment Period Extension through Accession Number: 20200529–5210. Accession Number: 20200529–5265. 2022 to be effective 7/1/2020. Comments Due: 5 p.m. ET 6/10/20. Comments Due: 5 p.m. ET 6/10/20. Filed Date: 5/29/20. Docket Numbers: RP20–909–000. Docket Numbers: RP20–916–000. Accession Number: 20200529–5078. Applicants: Rockies Express Pipeline Applicants: Gulf South Pipeline Comments Due: 5 p.m. ET 6/10/20. LLC. Company, LLC. Docket Numbers: RP20–902–000. Description: § 4(d) Rate Filing: REX Description: § 4(d) Rate Filing: Cap Applicants: El Paso Natural Gas 2020–05–29 Negotiated Rate Agreement Rel Neg Rate Agmts (Atlanta Gas 8438 Company, L.L.C. to be effective 6/1/2020. releases eff 6–1–2020) to be effective Description: § 4(d) Rate Filing: Filed Date: 5/29/20. 6/1/2020. Negotiated Rate Agreement Update Accession Number: 20200529–5212. Filed Date: 5/29/20. (APS June 2020) to be effective 6/1/ Comments Due: 5 p.m. ET 6/10/20. Accession Number: 20200529–5266. 2020. Docket Numbers: RP20–910–000. Comments Due: 5 p.m. ET 6/10/20. Filed Date: 5/29/20. Applicants: Texas Gas Transmission, Docket Numbers: RP20–917–000. Accession Number: 20200529–5125. LLC. Applicants: Northern Natural Gas Comments Due: 5 p.m. ET 6/10/20. Description: § 4(d) Rate Filing: Interim Company. Fuel Tracker Filing to be effective 7/1/ Description: § 4(d) Rate Filing: Docket Numbers: RP20–903–000. 2020. 20200529 Negotiated Rates to be Applicants: El Paso Natural Gas Filed Date: 5/29/20. effective 6/1/2020. Company, L.L.C. Accession Number: 20200529–5217. Filed Date: 5/29/20. Description: § 4(d) Rate Filing: Comments Due: 5 p.m. ET 6/10/20. Accession Number: 20200529–5270. Negotiated Rate Agreement Update Comments Due: 5 p.m. ET 6/10/20. (Pioneer Jul–Sept 2020) to be effective Docket Numbers: RP20–911–000. Applicants: Rockies Express Pipeline Docket Numbers: RP20–918–000. 7/1/2020. LLC. Applicants: Devon Gas Services, L.P., Filed Date: 5/29/20. Description: § 4(d) Rate Filing: REX BKV Barnett, LLC. Accession Number: 20200529–5127. 2020–05–29 Non-Conforming Description: Joint Petition for Comments Due: 5 p.m. ET 6/10/20. Negotiated Rate Amendment to be Temporary Waiver of Capacity Release Docket Numbers: RP20–904–000. effective 6/1/2020. Regulations, et al. of Devon Gas Applicants: Eastern Shore Natural Gas Filed Date: 5/29/20. Services, L.P., et al. under RP20–918. Company. Accession Number: 20200529–5224. Filed Date: 5/29/20. Description: § 4(d) Rate Filing: Fuel Comments Due: 5 p.m. ET 6/10/20. Accession Number: 20200529–5272. Retention and Cash-Out Adjustment Docket Numbers: RP20–912–000. Comments Due: 5 p.m. ET 6/10/20. 2020 to be effective 7/1/2020. Applicants: Texas Gas Transmission, Docket Numbers: RP20–919–000. Filed Date: 5/29/20. LLC. Applicants: El Paso Natural Gas Accession Number: 20200529–5141. Description: § 4(d) Rate Filing: Company, L.L.C. Comments Due: 5 p.m. ET 6/10/20. Additional Clarifications and Clean-up Description: § 4(d) Rate Filing: Non- Docket Numbers: RP20–905–000. Items Pending GMS to be effective 7/1/ Conforming Agreements Filing Applicants: Kern River Gas 2020. (Sempra_SRP) to be effective 7/1/2020. Transmission Company. Filed Date: 5/29/20. Filed Date: 5/29/20. Description: § 4(d) Rate Filing: 2020 Accession Number: 20200529–5234. Accession Number: 20200529–5300. June Negotiated Rate Amendments to be Comments Due: 5 p.m. ET 6/10/20. Comments Due: 5 p.m. ET 6/10/20. effective 6/1/2020. Docket Numbers: RP20–913–000. Docket Numbers: RP20–920–000. Filed Date: 5/29/20. Applicants: Gulf South Pipeline Applicants: Discovery Gas Accession Number: 20200529–5164. Company, LLC. Transmission LLC. Comments Due: 5 p.m. ET 6/10/20. Description: § 4(d) Rate Filing: Description: § 4(d) Rate Filing: Docket Numbers: RP20–906–000. Additional Clarifications and Cleanup Discovery Gas Transmission LLC’s 2019 Applicants: Columbia Gas Items related to New GasQuest System Fuel, Lost and Unaccounted for Gas to Transmission, LLC. to be effective 7/1/2020. be effective 7/1/2020.
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Filed Date: 5/29/20. can be found at: http://www.ferc.gov/ FOR FURTHER INFORMATION CONTACT: Accession Number: 20200529–5301. docs-filing/efiling/filing-req.pdf. For Christopher Green, Information Comments Due: 5 p.m. ET 6/10/20. other information, call (866) 208–3676 Technology and Resources Management Docket Numbers: RP20–921–000. (toll free). For TTY, call (202) 502–8659. Division (7502P), Office of Pesticide Applicants: Maritimes & Northeast Dated: June 1, 2020. Programs, Environmental Protection Pipeline, L.L.C. Nathaniel J. Davis, Sr., Agency, 1200 Pennsylvania Ave. NW, Description: § 4(d) Rate Filing: Washington, DC 20460–0001; telephone Deputy Secretary. Maritimes & Northeast Pipeline, L.L.C. number: (703) 347–0367; email address: 2020 Section 4 Rate Case Filing to be [FR Doc. 2020–12221 Filed 6–4–20; 8:45 am] [email protected]. BILLING CODE 6717–01–P effective 7/1/2020. SUPPLEMENTARY INFORMATION: Filed Date: 5/29/20. Accession Number: 20200529–5374. I. General Information Comments Due: 5 p.m. ET 6/10/20. ENVIRONMENTAL PROTECTION A. Does this action apply to me? Docket Numbers: RP20–922–000. AGENCY Applicants: Eastern Shore Natural Gas This action is directed to the public Company. [EPA–HQ–OPP–2018–0014; FRL–10009–98] in general and may be of interest to a wide range of stakeholders including Description: Compliance filing Cancellation Order for Certain environmental, human health, and Incremental Rate Schedule: CP18–548 Pesticide Registrations and agricultural advocates; the chemical Del-Mar Energy Pathway to be effective Amendments To Terminate Uses 6/1/2020. industry; pesticide users; and members Filed Date: 5/29/20. AGENCY: Environmental Protection of the public interested in the sale, Accession Number: 20200529–5414. Agency (EPA). distribution, or use of pesticides. Since Comments Due: 5 p.m. ET 6/10/20. ACTION: Notice. others also may be interested, the Docket Numbers: RP20–923–000. Agency has not attempted to describe all Applicants: Eastern Shore Natural Gas SUMMARY: This notice announces EPA’s the specific entities that may be affected Company. order for the cancellations and by this action. Description: Compliance filing Non- amendments to terminate uses, B. How can I get copies of this document Conforming and Negotiated Rates—Del- voluntarily requested by the registrants and other related information? Mar Energy Pathway Project to be and accepted by the Agency, of the effective 6/1/2020. products listed in Table 1 and Table 2 The docket for this action, identified Filed Date: 5/29/20. of Unit II, pursuant to the Federal by docket identification (ID) number Accession Number: 20200529–5425. Insecticide, Fungicide, and Rodenticide EPA–HQ–OPP–2018–0014, is available Comments Due: 5 p.m. ET 6/10/20. Act (FIFRA). This cancellation order at http://www.regulations.gov or at the Docket Numbers: RP20–924–000. follows a February 4, 2020 Federal Office of Pesticide Programs Regulatory Applicants: MarkWest Pioneer, L.L.C. Register Notice of Receipt of Requests Public Docket (OPP Docket) in the Description: § 4(d) Rate Filing: from the registrants listed in Table 3 of Environmental Protection Agency Quarterly Fuel Adjustment Filing to be Unit II to voluntarily cancel and amend Docket Center (EPA/DC), West William effective 7/1/2020. to terminate uses of these product Jefferson Clinton Bldg., Rm. 3334, 1301 Filed Date: 5/29/20. registrations. In the February 4, 2020 Constitution Ave. NW, Washington, DC Accession Number: 20200529–5460. notice, EPA indicated that it would 20460–0001. The Public Reading Room Comments Due: 5 p.m. ET 6/10/20. issue an order implementing the is open from 8:30 a.m. to 4:30 p.m., Docket Numbers: RP20–925–000. cancellations and amendments to Monday through Friday, excluding legal Applicants: Tallgrass Interstate Gas terminate uses, unless the Agency holidays. The telephone number for the Transmission, LLC. received substantive comments within Public Reading Room is (202) 566–1744, Description: § 4(d) Rate Filing: TIGT the 30-day comment period that would and the telephone number for the OPP 2020–05–29 Negotiated Rate Agreement merit its further review of these Docket is (703) 305–5805. to be effective 6/1/2020. requests, or unless the registrants Please note that due to the public Filed Date: 5/29/20. withdrew their requests. The Agency health emergency the EPA Docket Accession Number: 20200529–5485. had intended to publish this new Center (EPA/DC) and Reading Room Comments Due: 5 p.m. ET 6/10/20. version instead of the previous version was closed to public visitors on March The filings are accessible in the which published by mistake on May 4, 31, 2020. Our EPA/DC staff will Commission’s eLibrary system by 2020; therefore, this Cancellation Order continue to provide customer service clicking on the links or querying the replaces the previous notice. The via email, phone, and webform. For docket number. Agency received one comment on the further information on EPA/DC services, Any person desiring to intervene or notice. As a result, product 3573–73 is docket contact information and the protest in any of the above proceedings not included in this cancellation order. current status of the EPA/DC and must file in accordance with Rules 211 See Unit III for further information. Reading Room, please visit https:// and 214 of the Commission’s Accordingly, EPA hereby issues in this www.epa.gov/dockets. notice a cancellation order granting the Regulations (18 CFR 385.211 and II. What action is the Agency taking? 385.214) on or before 5:00 p.m. Eastern requested cancellations and time on the specified date(s). Protests amendments to terminate uses. Any This notice announces the may be considered, but intervention is distribution, sale, or use of the products cancellations and amendments to necessary to become a party to the subject to this cancellation order is terminate uses, as requested by proceeding. permitted only in accordance with the registrants, of products registered under eFiling is encouraged. More detailed terms of this order, including any FIFRA section 3 (7 U.S.C. 136a). These information relating to filing existing stocks provisions. registrations are listed in sequence by requirements, interventions, protests, DATES: The cancellations and registration number in Table 1 and service, and qualifying facilities filings amendments are effective June 5, 2020. Table 2 of this unit.
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TABLE 1—PRODUCT CANCELLATIONS
Registration Company No. No. Product name Active ingredients
464–8123 ...... 464 Filmguard IPBC 100 Fungicidal Agent (Ac- Carbamic acid, butyl-, 3-iodo-2-propynyl ester. tive), Bioban IPBC 100 Antimicrobial (Al- ternate). 464–8125 ...... 464 Filmguard IPBC 20 Fungicidal Agent (Ac- Carbamic acid, butyl-, 3-iodo-2-propynyl ester. tive), Bioban IPBC 20 Antimicrobial and Bioban IPBC 20 LE (Alternate). 499–322 ...... 499 Whitmire Avert PT 300 Pressurized Spray .. Abamectin. 499–383 ...... 499 Whitmire Avert PT 310 HO Abamectin Bait Abamectin. Dust. 499–394 ...... 499 Whitmire Avert Prescription Treatment 320 Abamectin. Crack & Crevice Gel Bait. 499–406 ...... 499 Avert Prescription Treatment TC 93A Bait .. Abamectin. 499–410 ...... 499 Avert Prescription Treatment TC 93B Bait .. Abamectin. 499–434 ...... 499 Whitmire TC 149A Insecticide ...... Abamectin. 499–440 ...... 499 Whitmire TC 149B ...... Abamectin. 499–467 ...... 499 Whitmire Avert TC 181 ...... Abamectin. 1448–100 ...... 1448 Busan 1069...... 2-(Thiocyanomethylthio)benzothiazole. 1448–341 ...... 1448 Busan 1127...... 2-(Thiocyanomethylthio)benzothiazole. 4959–34 ...... 4959 YYY Disinfectant...... Iodine. 5185–498 ...... 5185 Bioguard Crystal Blue Mineral Cartridge ..... Silver nitrate. 7364–60 ...... 7364 Spa/Hot Tub Products Chlorinating Con- Sodium dichloro-s-triazinetrione. centration Granular. 7969–189 ...... 7969 Baseline Plant Regulator ...... Prohexadione calcium. 8378–54 ...... 8378 Gro-Fine Bayleton Fungicide ...... Triadimefon. 8378–55 ...... 8378 Shaw’s Fungicide 100 ...... Triadimefon. 9198–187 ...... 9198 Andersons Golf Products Fungicide VII ...... Triadimefon. 9198–190 ...... 9198 Andersons Golf Products Fertilizer Plus Triadimefon. Fungicide VII. 9386–7 ...... 9386 AMA–31 ...... Nabam & Sodium dimethyldithiocarbamate. 9386–11 ...... 9386 AMA–30 ...... Nabam & Sodium dimethyldithiocarbamate. 9386–23 ...... 9386 AMA–9 ...... Nabam & Sodium dimethyldithiocarbamate. 10324–18 ...... 10324 Algaesil ...... Nanosilver 002. 10324–165 ..... 10324 Maquat MC1416–90% ...... Alkyl* dimethyl benzyl ammonium chloride *(60%C14, 30%C16, 5%C18, 5%C12). 33677–1 ...... 33677 Tolcide(R) MBT ...... Methylene bis(thiocyanate). 34688–76 ...... 34688 Aquatreat DNM–30 ...... Nabam & Sodium dimethyldithiocarbamate. 34688–77 ...... 34688 Aquatreat KM ...... Potassium dimethyldithiocarbamate. 34688–78 ...... 34688 Aquatreat SDM ...... Sodium dimethyldithiocarbamate. 34688–79 ...... 34688 Aquatreat DN–30...... Nabam. 34704–882 ..... 34704 Oryzalin T&O...... Oryzalin. 34704–918 ..... 34704 Ethofume SC Herbicide ...... Ethofumesate. 34704–949 ..... 34704 Intensity Max...... Clethodim. 35917–2 ...... 35917 Iodinated Resin H–465 ...... Iodine. 45309–12 ...... 45309 Spa Clear Spa Chlor-56 ...... Sodium dichloro-s-triazinetrione. 45309–21 ...... 45309 Aqua Clear Iso-Gran ...... Sodium dichloro-s-triazinetrione. 45309–59 ...... 45309 Aqua Clear Aqua-Shock ...... Sodium dichloro-s-triazinetrione. 45309–61 ...... 45309 Aqua Clear Winterizer ...... Sodium dichloro-s-triazinetrione. 45309–84 ...... 45309 Red Plug Cartridge with Concentrated Trichloro-s-triazinetrione. Chlorinated Tablets. 45309–94 ...... 45309 Speed-Y-Tabs ...... Sodium dichloroisocyanurate dihydrate. 62719–694 ..... 62719 MON 89034 X TC1507 X MIR162...... Bacillus thuringiensis Vip3Aa20 protein encoded by vector pNOV1300 in event MIR162 corn (SYN–IR162–4), % dw; Bacil- lus thuringiensis Cry1F protein and the genetic material nec- essary for its production (plasmid insert PHI8999) in corn; Ba- cillus thuringiensis Cry2Ab2 protein and the genetic material necessary (vector PV–ZMIR245) for its production in corn & Bacillus thuringiensis Cry1A.105 protein and genetic material necessary (vector PV–ZMIR245) for its production in corn. 67262–18 ...... 67262 3’’ Stabilized Chlorinator Tablets ...... Trichloro-s-triazinetrione. 70506–50 ...... 70506 Surflan 85DF...... Oryzalin. 70506–51 ...... 70506 Turf Fertilizer Contains Surflan 1% ...... Oryzalin. 70506–52 ...... 70506 Turf Fertilizer Contains Surflan 0.75% ...... Oryzalin. 70506–53 ...... 70506 Up-Shot DF Herbicide ...... Oryzalin & Isoxaben. 70506–54 ...... 70506 Surflan 75W...... Oryzalin. 70506–55 ...... 70506 Turf Fertilizer Contains Galley Plus Surflan Oryzalin & Isoxaben. 70506–96 ...... 70506 Oryza Ag...... Oryzalin. 70506–97 ...... 70506 Oryza T&O...... Oryzalin. 72616–9 ...... 72616 Taratek TC ...... Triadimefon & Cyproconazole. 85678–55 ...... 85678 Flucarbazone 35% SC ...... Flucarbazone-sodium. 87262–4 ...... 87262 Compass THPS ...... Tetrakis(hydroxymethyl)phosphonium sulphate (THPS). 87262–6 ...... 87262 Compass THPS 50 ...... Tetrakis(hydroxymethyl)phosphonium sulphate (THPS).
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TABLE 1—PRODUCT CANCELLATIONS—Continued
Registration Company No. No. Product name Active ingredients
87262–7 ...... 87262 Compass THPS 35 ...... Tetrakis(hydroxymethyl)phosphonium sulphate (THPS). 87262–8 ...... 87262 Compass THPS 20 ...... Tetrakis(hydroxymethyl)phosphonium sulphate (THPS). 88276–1 ...... 88276 Octopol DSM–30 ...... Nabam & Sodium dimethyldithiocarbamate. 89442–2 ...... 89442 Ethofumesate Select...... Ethofumesate. 91813–24 ...... 91813 Agvalue Oryzalin Technical ...... Oryzalin. AL–870002 ..... 400 Dimilin 25W for Cotton/Soybean ...... Diflubenzuron. CA–100013 .... 63206 Lorsban Advanced...... Chlorpyrifos. CA–790138 .... 5481 Orthene 75 S Soluble Powder ...... Acephate. CA–950010 .... 5481 Fruit Fix Concentrate 200 ...... Ammonium 1-naphthaleneacetate. CO–070003 .... 71512 Omega 500F...... Fluazinam. CO–080008 .... 62719 Lorsban Advanced...... Chlorpyrifos. CO–090005 .... 71512 Beleaf 50SG Insecticide ...... Flonicamid. CO–140002 .... 1381 Carnivore Herbicide ...... MCPA, 2-ethylhexyl ester; Bromoxynil octanoate & Fluroxypyr- meptyl. HI–090001 ...... 62719 Lorsban Advanced...... Chlorpyrifos. WA–000035 .... 352 Curzate 60DF...... Cymoxanil. WA–020019 .... 62719 NAF–522 ...... Glyphosate-isopropylammonium.
TABLE 2—PRODUCT REGISTRATION AMENDMENTS TO TERMINATE USES
Registration Company No. No. Product name Active ingredient Uses to be terminated
45728–7 ...... 45728 Ferbam Granuflo ...... Ferbam ...... Grapes and cherries. 45728–14 ...... 45728 Thionic Ziram Technical ...... Ziram ...... Industrial yarns and fabrics.
Table 3 of this unit includes the Tables 1 and 2 of this unit, in sequence registration numbers of the products names and addresses of record for all by EPA company number. This number listed in Table 1 and Table 2 of this the registrants of the products listed in corresponds to the first part of the EPA unit.
TABLE 3—REGISTRANTS OF CANCELLED AND AMENDED PRODUCTS
EPA company No. Company name and address
352 ...... E. I. Du Pont De Nemours and Company, 9330 Zionsville Road, Indianapolis, IN 46268. 400 ...... MacDermid Agricultural Solutions, Inc., C/O Arysta LifeScience North America, LLC, Agent Name: UPL NA, Inc., 630 Freedom Business Center, #402, King of Prussia, PA 19406. 464 ...... DDP Specialty Electronic Materials US, Inc., A Wholly Owned Subsidiary of The Dow Chemical Company, 1501 Larkin Center Drive, Midland, MI 48674. 499 ...... BASF Corporation, 26 Davis Drive, P.O. Box 13528, Research Triangle Park, NC 27709–3528. 1381 ...... Winfield Solutions, LLC, P.O. Box 64589, St. Paul, MN 55164–0589. 1448 ...... Buckman Laboratories, Inc., 1256 North Mclean Blvd., Memphis, TN 38108. 4959 ...... West Agro, Inc., 11100 N Congress Ave., Kansas City, MO 64153. 5185 ...... Bio-Lab, Inc., P.O. Box 300002, Lawrenceville, GA 30049–1002. 5481 ...... AMVAC Chemical Corporation, 4695 MacArthur Court, Suite 1200, Newport Beach, CA 92660–1706. 7364 ...... Innovative Water Care, LLC, D/B/A GLB Pool & Spa, 1400 Bluegrass Lakes Parkway, Alpharetta, GA 30004. 7969 ...... BASF Corporation, Agricultural Products, 26 Davis Drive, P.O. Box 13528, Research Triangle Park, NC 27709–3528. 8378 ...... Knox Fertilizer Company, Inc., Agent Name: Fred Betz Regulatory Strategies, 922 Melvin Road, Annapolis, MD 21403. 9198 ...... The Andersons, Inc., 1947 Briarfield Blvd., P.O. Box 119, Maumee, OH 43537. 9386 ...... Kemira Chemicals, Inc., 1000 Parkwood Circle, Suite 500, Atlanta, GA 30339. 10324 ...... Mason Chemical Company, 9075 Centre Pointe Dr., Suite 400, West Chester, OH 45069. 33677 ...... Solvay Solutions UK Limited, Agent Name: Delta Analytical Corporation, 12510 Prosperity Drive, Suite 160, Silver Spring, MD 20904. 34688 ...... Akzo Nobel Surface Chemistry, LLC, 525 W Van Buren St., Chicago, IL 60607–3823. 34704 ...... Loveland Products, Inc., P.O. Box 1286, Greeley, CO 80632–1286. 35917 ...... Hybrid Technologies Corporation, Agent Name: RegWest Company, LLC, 8209 West 20th Street, Suite B, Greeley, CO 80634–4699. 45309 ...... Aqua Clear Industries, LLC, P.O. Box 2456, Suwanee, GA 30024–0980. 45728 ...... Taminco US, LLC, A Subsidiary of Eastman Chemical Company, 200 S Wilcox Dr., Kingsport, TN 37660–5147. 62719 ...... Dow Agrosciences, LLC, 9330 Zionsville Rd., 308/2E, Indianapolis, IN 46268–1054. 63206 ...... California Citrus Quality Council, 853 Lincoln Way, Suite 206, Auburn, CA 95603. 67262 ...... Recreational Water Products, Inc., D/B/A Recreational Water Products, P.O. Box 1449, Buford, GA 30515–1449. 70506 ...... UPL NA, Inc., 630 Freedom Business Center, Suite 402, King of Prussia, PA 19406. 71512 ...... ISK BioSciences Corporation, 7470 Auburn Road, Suite A, Concord, OH 44077. 72616 ...... Lonza NZ Limited, Agent Name: Arch Wood Protection, Inc., 3941 Bonsal Road, Conley, GA 30288. 85678 ...... RedEagle International, LLC, Agent Name: Wagner Regulatory Associates, Inc., P.O. Box 640, Hockessin, DE 19707. 87262 ...... Italmatch USA Corporation, 5544 Oakdale Road SE, Smyrna, GA 30082.
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TABLE 3—REGISTRANTS OF CANCELLED AND AMENDED PRODUCTS—Continued
EPA company No. Company name and address
88276 ...... Tiarco Chemical Company, 1300 Tiarco Drive S.W., Dalton, GA 30720. 89442 ...... Prime Source, LLC, Agent Name: Wagner Regulatory Associates, Inc., P.O. Box 640, 7217 Lancaster Pike, Suite A, Hockessin, DE 19707. 91813 ...... UPL Delaware, Inc., 630 Freedom Business Ctr., # 402, King of Prussia, PA 19406.
III. Summary of Public Comments comment period closed on March 5, for export consistent with FIFRA section Received and Agency Response to 2020. 17 (7 U.S.C. 136o) or for proper Comments disposal. VI. Provisions for Disposition of Now that EPA has approved product Existing Stocks During the public comment period labels reflecting the requested provided, EPA received one comment in Existing stocks are those stocks of amendment to terminate uses, response to the February 4, 2020 registered pesticide products which are registrants are permitted to sell or Federal Register notice announcing the currently in the United States and distribute products listed in Table 2 of Agency’s receipt of the requests for which were packaged, labeled, and Unit II under the previously approved voluntary cancellations and released for shipment prior to the labeling until December 6, 2021, a amendments to terminate uses of effective date of the action. The existing period of 18 months after publication of products listed in Tables 1 and 2 of Unit stocks provision for the products subject the cancellation order in this Federal II, on product 3573–73. EPA is holding to this order is as follows. Register, unless other restrictions have this registration for further review of the A. For Products 464–8123, 10324–18 & been imposed. comment, and the Agency has removed Thereafter, registrants will be 10324–165 product 3573–73 from this cancellation prohibited from selling or distributing order. For products 464–8123, 10324–18 & the products whose labels include the IV. Cancellation Order 10324–165, listed in Table 1 of Unit II, terminated use identified in Table 2 of the registrants have requested 18- Unit II, except for export consistent with Pursuant to FIFRA section 6(f) (7 months to sell existing stocks. FIFRA section 17 or for proper disposal. U.S.C. 136d(f)(1)), EPA hereby approves Registrants will be permitted to sell and Persons other than the registrant may the requested cancellations and distribute existing stocks of these sell, distribute, or use existing stocks of amendments to terminate uses of the products for 18-months after the canceled products and products whose registrations identified in Tables 1 and effective date of the cancellation, which labels include the terminated uses until 2 of Unit II. Accordingly, the Agency will be the date of publication of the supplies are exhausted, provided that hereby orders that the product cancellation order in the Federal such sale, distribution, or use is registrations identified in Tables 1 and Register. Thereafter, registrants will be consistent with the terms of the 2 of Unit II are canceled and amended prohibited from selling or distributing previously approved labeling on, or that to terminate the affected uses. The these products, except for export accompanied, the canceled products effective date of the cancellations and consistent with FIFRA section 17 (7 and terminated uses. amendments listed in Table 1 and Table U.S.C. 136o) or for proper disposal. 2 that are subject of this notice is June (Authority: 7 U.S.C. 136 et seq.) 5, 2020. Any distribution, sale, or use of B. For Products 87262–4, 87262–6, Dated: May 27, 2020. existing stocks of the products 87262–7 & 87262–8 Delores Barber, identified in Tables 1 and 2 of Unit II For products 87262–4, 87262–6, Director, Information Technology and in a manner inconsistent with any of the 87262–7 & 87262–8, listed in Table 1 of Resources Management Division, Office of provisions for disposition of existing Unit II, the registrant has requested to Pesticide Programs. stocks set forth in Unit VI will be a sell existing stocks until December 31, [FR Doc. 2020–12144 Filed 6–4–20; 8:45 am] violation of FIFRA. 2020. Registrants will be permitted to BILLING CODE 6560–50–P V. What is the Agency’s authority for sell and distribute existing stocks of taking this action? these products until December 31, 2020. Thereafter, registrants will be prohibited ENVIRONMENTAL PROTECTION Section 6(f)(1) of FIFRA (7 U.S.C. from selling or distributing these AGENCY 136d(f)(1)) provides that a registrant of products, except for export consistent [ER–FRL–9051–2] a pesticide product may at any time with FIFRA section 17 (7 U.S.C. 136o) request that any of its pesticide or for proper disposal. Environmental Impact Statements; registrations be canceled or amended to For all other voluntary product Notice of Availability terminate one or more uses. FIFRA cancellations, identified in Table 1 of further provides that, before acting on Unit II, registrants will be permitted to Responsible Agency: Office of Federal the request, EPA must publish a notice sell and distribute existing stocks of Activities, General Information 202– of receipt of any such request in the voluntarily canceled products for 1 year 564–5632 or https://www.epa.gov/nepa. Federal Register. Thereafter, following after the effective date of the Weekly receipt of Environmental Impact the public comment period, the EPA cancellation, which will be the date of Statements (EIS) Administrator may approve such a publication of the cancellation order in Filed May 22, 2020, 11:59 p.m. EST request. The notice of receipt for this the Federal Register. Thereafter, Through June 1, 2020, 10 a.m. EST action was published for comment in registrants will be prohibited from Pursuant to 40 CFR 1506.9. the Federal Register of February 4, 2020 selling or distributing all other products Section 309(a) of the Clean Air Act (85 FR 6169) (FRL–10004–10). The identified in Table 1 of Unit II, except requires that EPA make public its
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comments on EISs issued by other related to modeling pesticide fate, at http://www.regulations.gov. It Federal agencies. EPA’s comment letters transport, exposure, and ecotoxicity for contains materials for all previous on EISs are available at: https:// pesticide risk assessments in a EMPMs. EPA will similarly include cdxnodengn.epa.gov/cdx-enepa-public/ regulatory context. materials for this EMPM after the action/eis/search. DATES: meeting. EIS No. 20200112, Draft, USACE, FL, Meeting: This virtual meeting will be Please note that due to the public Miami-Dade Back Bay Coastal Storm held on August 5, 2020 from 9:00 a.m. health emergency, the Environmental Risk Management Draft Integrated to approximately 4:30 p.m. EDT. Protection Agency Docket Center (EPA/ Feasibility Report and Programmatic Requests to participate: Requests to DC) and Public Reading Room was Environmental Impact Statement, attend the meeting must be submitted closed to public visitors on March 31, Comment Period Ends: 07/20/2020, on or before July 29, 2020. Requests to 2020. Our EPA/DC staff will continue to Contact: Justine Woodward 757–201– present with an accompanying abstract 7728. must be submitted on or before July 3, provide customer service via email, phone, and webform. Once the EPA/DC EIS No. 20200114, Final, NOAA, WI, 2020. is reopened to the public the docket will Wisconsin Shipwreck Coast National ADDRESSES: This is a virtual meeting. To also be available in-person at the Office Marine Sanctuary, Designation, register to attend and/or to present at of Pesticide Programs Regulatory Public Review Period Ends: 07/06/2020, this virtual meeting, please send an Contact: Russ Green 989–766–3359. email to [email protected]. You Docket (OPP Docket) in the Environmental Protection Agency EIS No. 20200115, Final Supplement, must register via email to receive the Docket Center (EPA/DC), West William USN, GU, Mariana Islands Training webcast meeting link and audio Jefferson Clinton Bldg., Rm. 3334, 1301 and Testing, Review Period Ends: 07/ teleconference information for 06/2020, Contact: Nora Macariola-See participation. Registrants will be added Constitution Ave. NW, Washington, DC 808–472–1402. to the ‘‘empmlist’’ LYRIS list server 20460–0001. The Public Reading Room _ is open from 8:30 a.m. to 4:30 p.m., EIS No. 20200116, Draft, USFWS, REG, (https://lists.epa.gov/read/all forums/). Monday through Friday, excluding legal Management of Conflicts Associated Meeting updates and participation with Double-crested Cormorants, information will be distributed through holidays. The telephone number for the Comment Period Ends: 07/20/2020, ‘‘empmlist’’. Public Reading Room is (202) 566–1744, Contact: Eric L. Kershner 571–565– FOR FURTHER INFORMATION CONTACT: The and the telephone number for the OPP 0109. 2020 EMPM Co-chairs, Michael Docket is (703) 305–5805. Please review the visitor instructions and additional EIS No. 20200117, Draft, USFWS, REG, Wagman and Zoe Ruge; telephone number: (703) 347–0198 or (703) 347– information about the docket available Regulations Governing Take of _ Migratory Birds, Comment Period 0111; email address: OPP EMPM@ at http://www.epa.gov/dockets. epa.gov. Ends: 07/20/2020, Contact: Eric L. II. Background Kershner 571–565–0109. SUPPLEMENTARY INFORMATION: The purpose of the EMPM if for EIS No. 20200118, Draft, BR, UT, Lake I. General Information Powell Pipeline Project, Comment presentation and discussion of current Period Ends: 09/03/2020, Contact: A. Does this action apply to me? issues related to modeling pesticide fate, Rick Baxter 801–379–1078. You may be potentially affected by transport, and exposure for risk Dated: June 1, 2020. this action if you are a pesticide assessment in a regulatory context. Cindy S. Barger, registrant or a potential pesticide III. Tentative Theme for the Meeting Director, NEPA Compliance Division, Office registrant under the Toxic Substances of Federal Activities. Control Act (TSCA), the Federal Food, The 2020 EMPM will provide a forum [FR Doc. 2020–12206 Filed 6–4–20; 8:45 am] Drug, and Cosmetic Act (FFDCA), or the for presentations on drinking water BILLING CODE 6560–50–P Federal Insecticide, Fungicide, and assessment improvements for surface Rodenticide Act (FIFRA). Since other water exposure. Potential topics entities may also be interested, the include: New scenario development for ENVIRONMENTAL PROTECTION Agency has not attempted to describe all the Pesticide in Water Calculator (PWC); AGENCY the specific entities that may be affected new methodology for incorporating by this action. The following list of [EPA–HQ–OPP–2009–0879; FRL–10010–21] percent cropped area (PCA) into refined North American Industrial drinking water assessments; new Environmental Modeling Public Classification System (NAICS) codes is methodology for incorporating percent Meeting; Notice of Virtual Public not intended to be exhaustive, but rather crop treated (PCT) into refined drinking Meeting provides a guide to help readers water assessments; automation tools determine whether this document developed for applying new AGENCY: Environmental Protection applies to them. Potentially affected methodologies; and the drinking water Agency (EPA). entities may include: assessment framework. ACTION: Notice. • Agriculture, Forestry, Fishing and Hunting NAICS code 11. Authority: 7 U.S.C. 136 et seq. • SUMMARY: EPA will hold a virtual Utilities NAICS code 22. Dated: May 26, 2020. Environmental Modeling Public • Professional, Scientific and Marietta Echeverria, Meeting (EMPM) on Wednesday, August Technical NAICS code 54. 5, 2020, with participation by phone Director, Environmental Fate and Effects and webcast only. This Notice B. How can I get copies of this document Division. announces the meeting and provides and other related information? [FR Doc. 2020–12142 Filed 6–4–20; 8:45 am] information on its theme. The EMPM The docket for this action, identified BILLING CODE 6560–50–P provides a public forum for EPA and its by docket identification (ID) number stakeholders to discuss current issues EPA–HQ–OPP–2009–0879, is available
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ENVIRONMENTAL PROTECTION Pennsylvania Ave. NW, Washington, DC capacity is needed to facilitate food AGENCY 20460; telephone number: (703) 308– waste diversion. 8757; fax number: (703) 308–0522; EPA’s food recovery hierarchy [EPA–HQ–OLEM–2020–0259; FRL–10010– prioritizes potential actions to prevent 24–OLEM] email address: Carusiello.Chris@ epa.gov. and divert wasted food. According to Proposed Information Collection the hierarchy, processing wasted food SUPPLEMENTARY INFORMATION: Request; Comment Request; via anaerobic digestion is a more Supporting documents which explain in Collection of Information on Anaerobic desirable option than landfilling or detail the information that the EPA will Digestion Facilities Processing Wasted incineration because it creates more be collecting are available in the public Food To Support EPA’s Sustainable benefits for the environment, society, docket for this ICR. The docket can be Materials Management Program and and the economy. Anaerobic digestion viewed online at www.regulations.gov Sustainable Management of Food of food waste and other organic or in person at the EPA Docket Center, Efforts (Revision) materials generates renewable energy, WJC West, Room 3334, 1301 reduces methane emissions to the AGENCY: Environmental Protection Constitution Ave. NW, Washington, DC. atmosphere, and provides opportunities Agency (EPA). The telephone number for the Docket to improve soil health through the ACTION: Notice. Center is 202–566–1744. For additional production of soil amendments. The information about EPA’s public docket, SMF work supports these efforts by SUMMARY: The Environmental Protection visit http://www.epa.gov/dockets. educating state and local governments Agency (EPA or the Agency) is planning Pursuant to section 3506(c)(2)(A) of and communities about the benefits of to submit an information collection the Paperwork Reduction Act (PRA), wasted food diversion. The SMF work request (ICR), ‘‘Collection of Information EPA is soliciting comments and also builds partnerships with state on Anaerobic Digestion Facilities information to enable it to: (i) Evaluate agencies and other strategic partners Processing Wasted Food to Support whether the proposed collection of interested in developing organics EPA’s Sustainable Materials information is necessary for the proper recycling capacity and provides tools to Management Program and Sustainable performance of the functions of the assist organizations in developing Management of Food Efforts (Revision)’’ Agency, including whether the anaerobic digestion (AD) projects. (EPA ICR No. 2533.04, OMB Control No. information will have practical utility; The nationwide collection of data 2050–0217) to the Office of Management (ii) evaluate the accuracy of the about AD facilities processing food and Budget (OMB) for review and Agency’s estimate of the burden of the waste began in 2017 with a survey of all approval in accordance with the proposed collection of information, known AD facilities under the currently Paperwork Reduction Act. Before doing including the validity of the approved ICR. EPA published the first so, EPA is soliciting public comments methodology and assumptions used; annual report of findings based on these on specific aspects of the proposed (iii) enhance the quality, utility, and data in July 2018, and second in information collection as described clarity of the information to be September 2019. EPA is renewing this below. This is a proposed renewal of a collected; and (iv) minimize the burden ICR in order to continue to monitor previous ICR, which is currently of the collection of information on those growth and evaluate trends in the approved through September 30, 2020. who are to respond, including through capacity for processing of food waste An agency may not conduct or sponsor, the use of appropriate automated and the amount of food waste being and a person is not required to respond electronic, mechanical, or other processed via AD in the United States. to, a collection of information unless it technological collection techniques or Data will be collected using electronic displays a currently valid OMB control other forms of information technology, surveys that will be distributed to number. e.g., permitting electronic submission of respondents by email and will be DATES: Comments must be submitted on responses. EPA will consider the available on EPA’s AD website. or before August 4, 2020. comments received and amend the ICR Participation in this data collection ADDRESSES: Submit your comments, as appropriate. The final ICR package effort is voluntary. Respondents are not referencing Docket ID No. EPA–HQ– will then be submitted to OMB for required to reveal confidential business OLEM–2020–0259, online using review and approval. At that time, EPA information. www.regulations.gov (our preferred will issue another Federal Register Form Numbers: EPA Form 6700–03, method), by email to oira_submission@ notice to announce the submission of EPA Form 6700–04, EPA Form 6700–05. omb.eop.gov, or by mail to: EPA Docket the ICR to OMB and the opportunity to Respondents/affected entities: Project Center, Environmental Protection submit additional comments to OMB. Developers, Project Owners or Plant Agency, Mail Code 28221T, 1200 Operators, and Livestock Farmers. Abstract: Sustainable Management of Respondent’s obligation to respond: Pennsylvania Ave. NW, Washington, DC Food (SMF) is a systematic approach Voluntary. 20460. that seeks to reduce wasted food and its Estimated number of respondents: EPA’s policy is that all comments associated impacts over the entire 254 (total). received will be included in the public lifecycle of food. The lifecycle of food Frequency of response: Annually. docket without change including any includes use of natural resources, Total estimated burden: 127 hours personal information provided, unless manufacturing, sales, and consumption (per year). Burden is defined at 5 CFR the comment includes profanity, threats, and ends with decisions on recovery or 1320.03(b). information claimed to be Confidential final disposal. Diversion of food waste Total estimated cost: $7,615 (per Business Information (CBI) or other from landfills is a critical component of year), includes $0 annualized capital or information whose disclosure is this effort. To effectively divert food operation & maintenance costs. restricted by statute. waste from landfills, sufficient capacity Changes in Estimates: The overall FOR FURTHER INFORMATION CONTACT: to process the diverted materials is burden has slightly decreased from the Chris Carusiello, U.S. Environmental required, much of which is provided by original ICR. For this renewal, some Protection Agency, Mail Code 5306P, anaerobic digestion facilities. questions have been revised for clarity Environmental Protection Agency, 1200 Knowledge of organics recycling and some have been streamlined. There
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is no change in hours from the total Conditions and FCS Condition and SUPPLEMENTARY INFORMATION: The estimated respondent burden compared Performance Lifeline program provides support for with the ICR currently approved by • Semi-Annual Report on Office of discounted broadband and voice OMB. Examination Operations services to low-income consumers. Lifeline is administered by the Dated: May 29, 2020. Closed Session Universal Service Administrative Donna Salyer, • Office of Examination Quarterly Company (USAC) under FCC direction. Acting Director, Office of Resource Report 1 Consumers qualify for Lifeline through Conservation and Recovery. proof of income or participation in a [FR Doc. 2020–12154 Filed 6–4–20; 8:45 am] Dated: June 1, 2020. Dale Aultman, qualifying program, such as Medicaid, BILLING CODE 6560–50–P the Supplemental Nutritional Secretary, Farm Credit Administration Board. Assistance Program (SNAP), Federal [FR Doc. 2020–12145 Filed 6–3–20; 11:15 am] Public Housing Assistance, FARM CREDIT ADMINISTRATION BILLING CODE 6705–01–P Supplemental Security Income (SSI), Veterans and Survivors Pension Benefit, Sunshine Act Meeting and/or various Tribal-specific federal FEDERAL COMMUNICATIONS Farm Credit Administration Board assistance programs. In a Report and COMMISSION Order adopted on March 31, 2016, the AGENCY: Farm Credit Administration. [FRS 16805] Commission ordered USAC to create a ACTION: Notice, regular meeting. National Lifeline Eligibility Verifier Privacy Act of 1974; Matching Program (‘‘National Verifier’’), including the SUMMARY: Notice is hereby given, National Lifeline Eligibility Database pursuant to the Government in the AGENCY: Federal Communications (LED), that would match data about Sunshine Act (5 U.S.C. Sec. 552b(e) (1)), Commission. Lifeline applicants and subscribers with of the forthcoming regular meeting of ACTION: Notice of establishment of a other data sources to verify the the Farm Credit Administration Board. Matching Program. eligibility of an applicant or subscriber. TIME AND DATE: The regular meeting of The Commission found that the SUMMARY: In accordance with the the Board will beheld June 11, 2020, National Verifier would reduce Privacy Act of 1974, as amended from 9:00 a.m. until such time as the compliance costs for Lifeline service (‘‘Privacy Act’’), this document Board may conclude its business. Note: providers, improve service for Lifeline announces the establishment of a Because of the COVID–19 pandemic, we subscribers, and reduce waste, fraud, computer matching program the Federal will conduct the board meeting and abuse in the program. The purpose Communications Commission (‘‘FCC’’ virtually. If you would like to observe of this particular program is to verify or ‘‘Commission’’ or ‘‘Agency’’) and the the open portion of the virtual meeting, Lifeline eligibility by establishing that Universal Service Administrative see instructions below for board meeting applicants or subscribers in Wisconsin Company (USAC) will conduct with the visitors. are enrolled in the SNAP, SSI, or State of Wisconsin’s Department of Attendance: To observe the open Medicaid programs, and/or through Health Services (DHS) and Department portion of the virtual meeting, go to Income Verification data. of Revenue (DOR) (‘‘Agencies’’). The FCA.gov, select ‘‘Newsroom,’’ then purpose of this matching program is to Participating Non-Federal Agencies ‘‘Events.’’ There you will find a verify the eligibility of applicants to and description of the meeting and a link to Wisconsin Department of Health subscribers of the Universal Service ‘‘Instructions for board meeting Services (DHS) and Wisconsin Fund (USF) Lifeline program, which is visitors.’’ See SUPPLEMENTARY Department of Revenue (DOR). administered by USAC under the INFORMATION for further information direction of the FCC. More information Authority for Conducting the Matching about attendance requests. about this program is provided in the Program FOR FURTHER INFORMATION CONTACT: Dale SUPPLEMENTARY INFORMATION section 47 U.S.C. 254; 47 CFR 54.400 et seq.; Aultman, Secretary to the Farm Credit below. Lifeline and Link Up Reform and Administration Board (703) 883–4009. Modernization, et al., Third Report and DATES: Written comments are due on or TTY is (703) 883–4056. Order, Further Report and Order, and before July 6, 2020. This computer SUPPLEMENTARY INFORMATION: Parts of Order on Reconsideration, 31 FCC Rcd matching program will commence on this meeting of the Board will be open 3962, 4006–21, paras. 126–66 (2016) July 6, 2020, unless written comments to the public, and parts will be closed. (2016 Lifeline Modernization Order). are received that require a contrary If you wish to observe the open portion, determination, and will conclude on Purpose(s) follow the instructions above in the January 5, 2022. ‘‘Attendance’’ section at least 24 hours In the 2016 Lifeline Modernization before the meeting. If you need ADDRESSES: Send comments to Mr. Order, the FCC required USAC to assistance for accessibility reasons if Leslie F. Smith, Privacy Manager, develop and operate a National Lifeline you have any questions, contact Dale Information Technology (IT), FCC, Eligibility Verifier (National Verifier) to Aultman, Secretary to the Farm Credit Washington, DC 20554, or to improve efficiency and reduce waste, Administration Board, at (703) 883– [email protected] or Privacy@ fraud, and abuse in the Lifeline 4009. The matters to be considered at fcc.gov. program. The stated purpose of the the meeting are as follows: FOR FURTHER INFORMATION CONTACT: Mr. National Verifier is ‘‘to increase the integrity and improve the performance Open Session Leslie F. Smith, (202) 418–0217, or [email protected] or Privacy@ of the Lifeline program for the benefit of A. Approval of Minutes fcc.gov. a variety of Lifeline participants, • May 14, 2020 including Lifeline providers, B. Reports 1 Session Closed-Exempt pursuant to 5 U.S.C. subscribers, states, community-based • Quarterly Report on Economic Section 552b(c)(8) and (9). organizations, USAC, and the
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Commission.’’ 31 FCC Rcd 3962, 4006, FEDERAL COMMUNICATIONS 3501–3520), the FCC invites the general para. 126. To help determine whether COMMISSION public and other Federal agencies to take this opportunity to comment on the Lifeline applicants and subscribers are [OMB 3060–0703; FRS 16808] eligible for Lifeline benefits, the Order following information collections. contemplates that a USAC-operated Information Collection Being Reviewed Comments are requested concerning: Lifeline Eligibility Database (LED) will by the Federal Communications Whether the proposed collection of communicate with information systems Commission information is necessary for the proper and databases operated by other Federal performance of the functions of the AGENCY: Federal Communications and State agencies. Id. at 4011–2, paras. Commission, including whether the Commission. 135–7. information shall have practical utility; ACTION: Notice and request for the accuracy of the Commission’s Categories of Individuals comments. burden estimate; ways to enhance the quality, utility, and clarity of the The categories of individuals whose SUMMARY: As part of its continuing effort information collected; ways to minimize information is involved in this matching to reduce paperwork burdens, and as the burden of the collection of program include, but are not limited to, required by the Paperwork Reduction information on the respondents, those individuals (residing in a single Act (PRA), the Federal Communications including the use of automated household) who have applied for Commission (FCC or Commission) collection techniques or other forms of Lifeline benefits; are currently receiving invites the general public and other information technology; and ways to Lifeline benefits; are individuals who Federal agencies to take this further reduce the information enable another individual in their opportunity to comment on the collection burden on small business household to qualify for Lifeline following information collections. concerns with fewer than 25 employees. Comments are requested concerning: benefits; are minors whose status OMB Control Number: 3060–0703. Whether the proposed collection of qualifies a parent or guardian for information is necessary for the proper Title: Determining Costs of Regulated Lifeline benefits; are individuals who performance of the functions of the Cable Equipment and Installation, FCC have received Lifeline benefits; or are Commission, including whether the Form 1205. individuals acting on behalf of an information shall have practical utility; Form Number: FCC Form 1205. eligible telecommunications carrier the accuracy of the Commission’s Type of Review: Extension of a (ETC) who have enrolled individuals in burden estimate; ways to enhance the currently approved collection. the Lifeline program. quality, utility, and clarity of the Respondents: Business or other for- Categories of Records information collected; ways to minimize profit entities. the burden of the collection of Number of Respondents and The categories of records involved in information on the respondents, Responses: 4,000 respondents; 6,000 the matching program include, but are including the use of automated responses. not limited to, the last four digits of the collection techniques or other forms of Estimated Time per Response: 4–12 Lifeline applicant’s Social Security information technology; and ways to hours. Number, and first name and last name. further reduce the information Frequency of Response: The National Verifier will transfer these collection burden on small business Recordkeeping requirement, Annual data elements to the Wisconsin DHS concerns with fewer than 25 employees. reporting requirement, Third party and Wisconsin DOR, which will DATES: Written comments should be disclosure requirement. respond either ‘‘yes’’ or ‘‘no’’ that the submitted on or before August 4, 2020. Obligation to Respond: Required to individual meets income verification If you anticipate that you will be obtain or retain benefits. The statutory criteria or is enrolled in a Lifeline- submitting comments, but find it authority for this collection of qualifying assistance program: State of difficult to do so within the period of information is contained in Section Wisconsin’s SNAP, Medicaid, and SSI. time allowed by this notice, you should 301(j) of the Telecommunications Act of advise the contacts below as soon as 1996 and 623(a)(7) of the System(s) of Records possible. Communications Act of 1934, as amended. The USAC records shared as part of ADDRESSES: Direct all PRA comments to Total Annual Burden: 52,000 hours. this matching program reside in the Cathy Williams, FCC, via email PRA@ Total Annual Cost: $1,800,000. Lifeline system of records, FCC/WCB–1, fcc.gov and to [email protected]. Privacy Act Impact Assessment: No Lifeline Program, a notice of which the FOR FURTHER INFORMATION CONTACT: For impact(s). FCC published at 82 FR 38686 (Aug. 15, additional information about the Nature and Extent of Confidentiality: 2017) and which became effective on information collection, contact Cathy Williams at (202) 418–2918. There is no need for confidentiality with September 14, 2017. SUPPLEMENTARY INFORMATION: The FCC this collection of information. Federal Communications Commission. may not conduct or sponsor a collection Needs and Uses: Information derived Marlene Dortch, of information unless it displays a from FCC Form 1205 filings is used to Secretary. currently valid Office of Management facilitate the review of equipment and [FR Doc. 2020–12133 Filed 6–4–20; 8:45 am] and Budget (OMB) control number. No installation rates. This information is then reviewed by each cable system’s BILLING CODE 6712–01–P person shall be subject to any penalty for failing to comply with a collection respective local franchising authority. of information subject to the PRA that Section 76.923 records are kept by cable does not display a valid OMB control operators in order to demonstrate that number. charges for the sale and lease of As part of its continuing effort to equipment for installation have been reduce paperwork burdens, and as developed in accordance with the required by the PRA of 1995 (44 U.S.C. Commission’s rules.
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Federal Communications Commission. FEDERAL DEPOSIT INSURANCE Receiver for the following insured Marlene Dortch, CORPORATION depository institution, was charged with Secretary. the duty of winding up the affairs of the [FR Doc. 2020–12134 Filed 6–4–20; 8:45 am] Notice of Termination of Receivership former institution and liquidating all related assets. The Receiver has fulfilled BILLING CODE 6712–01–P The Federal Deposit Insurance its obligations and made all dividend Corporation (FDIC or Receiver), as distributions required by law.
NOTICE OF TERMINATION OF RECEIVERSHIP
Termination Fund Receivership name City State date
10528 ...... Fayette County Bank ...... Saint Elmo ...... IL 06/01/2020
The Receiver has further irrevocably ADDRESSES: Commenters are encouraged for viewing public comments, viewing authorized and appointed FDIC- to submit comments by the Federal other supporting and related materials, Corporate as its attorney-in-fact to eRulemaking Portal or email, if possible. and viewing the docket after the close execute and file any and all documents You may submit comments, identified of the comment period. that may be required to be executed by by Docket Number AS20–06, by any of • Viewing Comments Personally: You the Receiver which FDIC-Corporate, in the following methods: may personally inspect comments at the its sole discretion, deems necessary, • Federal eRulemaking Portal: ASC office, 1325 G Street NW, Suite including but not limited to releases, https://www.regulations.gov. Follow the 500, Washington, DC 20005. To make an discharges, satisfactions, endorsements, instructions for submitting comments. appointment, please call Lori Schuster assignments, and deeds. Effective on the Click on the ‘‘Help’’ tab on the at (202) 595–7578. termination date listed above, the Regulations.gov home page to get FOR FURTHER INFORMATION CONTACT: Receivership has been terminated, the information on using Regulations.gov, Alice M. Ritter, General Counsel, at Receiver has been discharged, and the including instructions for submitting (202) 595–7577, or Lori Schuster, Receivership has ceased to exist as a public comments. Management and Program Analyst, at legal entity. • E-Mail: [email protected]. Include (202) 595–7578, Appraisal (Authority: 12 U.S.C. 1819) the docket number in the subject line of Subcommittee, 1325 G Street NW, Suite the message. 500, Washington, DC 20005. Federal Deposit Insurance Corporation. • Fax: (202) 289–4101. Include SUPPLEMENTARY INFORMATION: Dated at Washington, DC, on June 2, 2020. docket number on fax cover sheet. Title: Collection and Transmission of Robert E. Feldman, • Mail or Hand Delivery/Courier: Annual AMC Registry Fees. Executive Secretary. Address to Appraisal Subcommittee, OMB Number: 3139–0008. [FR Doc. 2020–12203 Filed 6–4–20; 8:45 am] Attn: Lori Schuster, Management and Abstract: States that register and BILLING CODE 6714–01–P Program Analyst, 1325 G Street NW, supervise appraisal management Suite 500, Washington, DC 20005. companies (AMCs) are required to In general, the ASC will enter all collect and transmit annual AMC FEDERAL FINANCIAL INSTITUTIONS comments received into the docket and registry fees to the ASC. 12 CFR part EXAMINATION COUNCIL publish those comments on the 1102, and in particular section Regulations.gov website without 1102.402, established the annual AMC [Docket No. AS20–06] change, including any business or registry fee for States that register and personal information that you provide, supervise AMCs as follows: (1) In the Agency Information Collection such as name and address information, case of an AMC that has been in Activities; Renewal of an Approved email addresses, or phone numbers. existence for more than a year, $25 Information Collection: Collection and Comments received, including multiplied by the number of appraisers Transmission of Annual AMC Registry attachments and other supporting who have performed an appraisal for the Fees materials, are part of the public record AMC on a covered transaction in such AGENCY: Appraisal Subcommittee of the and subject to public disclosure. Do not State during the previous year; and (2) Federal Financial Institutions enclose any information in your in the case of an AMC that has not been Examination Council (ASC). comment or supporting materials that in existence for more than a year, $25 ACTION: Notice and request for you consider confidential or multiplied by the number of appraisers comments. inappropriate for public disclosure. The who have performed an appraisal for the ASC will summarize and/or include AMC on a covered transaction in such SUMMARY: In accordance with the your comments in the request for OMB’s State since the AMC commenced doing Paperwork Reduction Act of 1995, the clearance of this information collection. business. Performance of an appraisal ASC invites public comments on our You may review comments and other means the appraisal service requested of intention to request the Office of related materials that pertain to this an appraiser by the AMC was provided Management and Budget (OMB) action by any of the following methods: to the AMC. Section 1102.403 requires approval to renew an information • Viewing Comments Electronically: AMC registry fees to be collected and collection request entitled ‘‘Collection Go to https://www.regulations.gov. Enter transmitted to the ASC on an annual and Transmission of Annual AMC ‘‘Docket ID AS20–06’’ in the Search box basis by States that register and Registry Fees.’’ and click ‘‘Search.’’ Click on the ‘‘Help’’ supervise AMCs. Only those AMCs DATES: Written comments must be tab on the Regulations.gov home page to whose registry fees have been received on or before August 4, 2020 to get information on using transmitted to the ASC are eligible to be be assured of consideration. Regulations.gov, including instructions on the AMC Registry for the 12-month
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period following the payment of the fee. ‘‘Information Collection 3090–0118; Obtaining Copies of Proposals: Section 1102.403 clarified that States Standard Form 94, Statement of Requesters may obtain a copy of the may align a one-year period with any Witness’’ on your attached document. If information collection documents from 12-month period, which may, or may your comment cannot be submitted the Regulatory Secretariat Division, at not, be based on the calendar year. The using https://www.regulations.gov, call [email protected]. Please cite OMB registration cycle is left to the or email the points of contact in the FOR Control No. 3090–0118, Standard Form individual States to determine. FURTHER INFORMATION CONTACT section of 94, Statement of Witness, in all Current Action: There are no changes this document for alternate instructions. correspondence. being made to this regulation. Instructions: Please submit comments Type of Review: Extension of a only and cite Information Collection Beth Anne Killoran, currently approved collection. 3090–0118; Standard Form 94, Deputy Chief Information Officer. Affected Public: States; businesses or Statement of Witness, in all [FR Doc. 2020–12181 Filed 6–4–20; 8:45 am] other for-profit and not-for-profit correspondence related to this BILLING CODE 6820–14–P organizations. collection. Comments received generally Estimated Number of Respondents: will be posted without change to http:// 500 AMCs, 55 States. www.regulations.gov, including any DEPARTMENT OF HEALTH AND Estimated Total Annual Burden personal and/or business confidential HUMAN SERVICES Hours: 500 hours. information provided. To confirm Frequency of Response: Event receipt of your comment(s), please Centers for Disease Control and generated. check www.regulations.gov, Prevention By the Appraisal Subcommittee. approximately two-to-three days after [60Day–20–1074; Docket No. CDC–2020– James R. Park, submission to verify posting. 0064] Executive Director. FOR FURTHER INFORMATION CONTACT: Mr. Proposed Data Collection Submitted [FR Doc. 2020–12174 Filed 6–4–20; 8:45 am] Ray Wynter, GSA, Office of for Public Comment and BILLING CODE 6700–01–P Government-wide Policy (MAG), Office of Asset and Transportation Recommendations Management, at telephone 202–501– AGENCY: Centers for Disease Control and GENERAL SERVICES 3802 or via email to [email protected]. Prevention (CDC), Department of Health ADMINISTRATION SUPPLEMENTARY INFORMATION: and Human Services (HHS). [OMB Control No. 3090–0118; Docket No. A. Purpose ACTION: Notice with comment period. 2020–0001; Sequence No. 4] GSA’s Office of Government-wide SUMMARY: The Centers for Disease Policy is announcing the availability of Information Collection; Federal Control and Prevention (CDC), as part of Standard Form 94, Statement of Witness its continuing effort to reduce public Management Regulation; Standard that is publicly available on http:// Form 94, Statement of Witness burden and maximize the utility of www.gsa.gov/forms. This updated government information, invites the AGENCY: Office of Government-Wide Standard Form 94, Statement of Witness general public and other Federal Policy (OGP), General Services is a renewal of a currently approved agencies the opportunity to comment on Administration (GSA). information collection requirement a proposed and/or continuing ACTION: Notice; request for comments. regarding statement from witnesses. information collection, as required by This form will be used to collect the Paperwork Reduction Act of 1995. SUMMARY: Under the provisions of the information from witnesses reporting This notice invites comment on a Paperwork Reduction Act, the accidents and/or damage to Federal proposed information collection project Regulatory Secretariat Division will be Fleet Vehicles. titled Colorectal Cancer Control Program submitting to the Office of Management B. Annual Reporting Burden (CRCCP) Monitoring Activities. CDC is and Budget (OMB) a request to review requesting a revision to OMB No. 0920– and approve an existing information Respondents: 290. 1074 to include a redesigned survey, a collection requirement regarding OMB Responses per Respondent: 1. Total Annual Responses: 290. redesigned clinic-level data collection Control No: 3090–0118; Standard Form instrument, and a new quarterly 94, Statement of Witness. Hours per Response: 0.333. Total Burden Hours: 97. awardee-level program update survey. DATES: Submit comments on or before DATES: CDC must receive written August 3, 2020. C. Public Comments comments on or before August 4, 2020. ADDRESSES: Submit comments Public comments are particularly ADDRESSES: You may submit comments, identified by Information Collection invited on: Whether this collection of identified by Docket No. CDC–2020– 3090–0118; Standard Form 94, information is necessary, whether it will 0064 by any of the following methods: Statement of Witness via http:// have practical utility; whether our • Federal eRulemaking Portal: www.regulations.gov. Submit comments estimate of the public burden of this Regulations.gov. Follow the instructions via the Federal eRulemaking portal by collection of information is accurate, for submitting comments. searching for ‘‘Information Collection and based on valid assumptions and • Mail: Jeffrey M. Zirger, Information 3090–0118; Standard Form 94, methodology; ways to enhance the Collection Review Office, Centers for Statement of Witness’’. Select the link quality, utility, and clarity of the Disease Control and Prevention, 1600 ‘‘Submit a Comment’’ that corresponds information to be collected; and ways in Clifton Road NE, MS–D74, Atlanta, with ‘‘Information Collection 3090– which we can minimize the burden of Georgia 30329. 0118; Standard Form 94, Statement of the collection of information on those Instructions: All submissions received Witness.’’ Follow the instructions who are to respond, through the use of must include the agency name and provided at the ‘‘Submit a Comment’’ appropriate technological collection Docket Number. CDC will post, without screen. Please include your name, techniques or other forms of information change, all relevant comments to company name (if any), and technology. Regulations.gov.
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Please note: Submit all comments through Proposed Project evidence-based interventions (EBIs) the Federal eRulemaking portal Colorectal Cancer Control Program described in The Guide to Community (regulations.gov) or by U.S. mail to the Preventive Services as well as other address listed above. (CRCCP) Monitoring Activities (OMB Control No. 0920–1074, Exp. 7/31/ supporting strategies. In addition, six 2020)—Revision—National Center for recipients received Component 2 FOR FURTHER INFORMATION CONTACT: To funding to provide clinical screening Chronic Disease Prevention and Health request more information on the and follow-up services for a limited Promotion (NCCDPHP), Centers for proposed project or to obtain a copy of number of individuals aged 50–64 in the Disease Control and Prevention (CDC) the information collection plan and program’s priority population who are instruments, contact Jeffrey M. Zirger, Background and Brief Description asymptomatic, at average risk for CRC, Information Collection Review Office, CDC is requesting a revision to have inadequate or no health insurance Centers for Disease Control and Colorectal Cancer Control Program for CRC screening, and are low income. In 2020, CDC issued a new funding Prevention, 1600 Clifton Road NE, MS– (CRCCP) Monitoring Activities (OMB opportunity, Public Health and Health D74, Atlanta, Georgia 30329; phone: Control No. 0920–1074). Based on System Partnerships to Increase 404–639–7118; Email: [email protected]. feedback from awardees and internal Colorectal Cancer Screening in Clinical subject matter experts, CDC proposes SUPPLEMENTARY INFORMATION: Settings (DP20–2002), a five-year use of a revised annual grantee survey cooperative agreement to increase CRC Under the Paperwork Reduction Act instrument (renamed, Annual Awardee screening among defined populations of of 1995 (PRA) (44 U.S.C. 3501–3520), Survey), a revised clinic-level data adults ages 50–75 that have CRC Federal agencies must obtain approval collection instrument, and a new screening rates lower than the national, from the Office of Management and awardee-level quarterly program update. regional, or local rate. Similar to DP15– Budget (OMB) for each collection of The number of respondents will also information they conduct or sponsor. In 1502, DP20–2002 funds recipients to increase from 30 to 35 awardees. Total partner with health systems and their addition, the PRA also requires Federal estimated annualized burden will primary care clinics to implement agencies to provide a 60-day notice in increase. OMB approval is requested for multiple EBIs, partner with the Federal Register concerning each three years. organizations to support proposed collection of information, Colorectal cancer (CRC) is the second implementation of EBIs in those clinics, including each new proposed leading cause of death from cancer in and collect high-quality clinic-level data collection, each proposed extension of the United States among cancers that when a clinic is recruited to participate existing collection of information, and affect both men and women. There is (baseline) and annually thereafter to each reinstatement of previously substantial evidence that CRC screening monitor EBI implementation and assess approved information collection before reduces the incidence of and death from screening rate changes. DP20–2002 submitting the collection to the OMB for the disease. Screening for CRC can eliminates Component 2 funding to approval. To comply with this detect disease early when treatment is provide direct clinical service delivery. requirement, we are publishing this more effective, and prevent cancer by However, DP20–2002 requires notice of a proposed data collection as finding and removing precancerous recipients to conduct a formal capacity/ polyps. Of individuals diagnosed with described below. readiness assessment of potential clinics early stage CRC, more than 90% live to implement EBIs, use assessment The OMB is particularly interested in five or more years. Despite strong findings to select appropriate EBIs for comments that will help: evidence supporting screening, only implementation, and provide clinics 1. Evaluate whether the proposed 68.8% of adults currently report being with limited financial resources to collection of information is necessary up-to-date with CRC screening as support follow-up colonoscopies for for the proper performance of the recommended by the U.S. Preventive under- and uninsured patients after an functions of the agency, including Services Task Force, with more than 22 abnormal CRC screening test. whether the information will have million age-eligible adults estimated to CDC proposes three information practical utility; be untested. To reduce CRC morbidity, collections—a revised Annual Awardee mortality, and associated costs, use of Survey, a revised Clinic-Level Data 2. Evaluate the accuracy of the CRC screening tests must be increased Collection Instrument, and a new agency’s estimate of the burden of the among age-eligible adults with the awardee-level Quarterly Program proposed collection of information, lowest CRC screening rates. Update—to reflect the strategies and including the validity of the The purpose of the Colorectal Cancer objectives detailed in DP20–2002. methodology and assumptions used; Control Program (CRCCP) is to partner The previous Annual Awardee Survey 3. Enhance the quality, utility, and with health systems and their assessed: (1) Program management, (2) clarity of the information to be individual primary care clinics to health information technology, (3) collected; and implement EBIs to increase CRC partnerships, (4) data use, (5) training screening among defined populations of and technical assistance (TA), (6) clinic 4. Minimize the burden of the adults ages 50–75 that have CRC service delivery. The revised instrument collection of information on those who screening rates lower than the national, no longer includes questions related to are to respond, including through the regional, or local rate. The previous clinic service delivery since these use of appropriate automated, cooperative agreement supporting the pertained solely to Component 2, which electronic, mechanical, or other CRCCP (DP15–1502) funded 30 is no longer funded under DP20–2002. technological collection techniques or awardees that are state governments or In addition, many program management other forms of information technology, bona-fide agents, universities, and tribal questions were eliminated and will now e.g., permitting electronic submissions organizations. All 30 recipients received be gathered via the Quarterly Program of responses. Component 1 funding, which required Update on a quarterly basis to better 5. Assess information collection costs. recipients to partner with health inform CDC TA. Several data use systems and their primary care clinics to questions were eliminated as they did implement at least two of four priority not yield meaningful data to inform
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CDC TA during the previous funding instrument gathers information to assess Redesigned data elements will enable cycle. health system and clinic characteristics; CDC to better gauge progress in meeting The previous Clinic-level Data program reach; CRC screening practices CRCCP program goals and monitor Collection instrument assessed: (1) and outcomes; clinics’ quality implementation activities, evaluate Health system and clinic characteristics, improvement and monitoring activities; outcomes, and identify awardee TA (2) EBI and supporting activities EBI implementation, and additional needs. In addition, data collected will implementation within clinics; (3) factors that affect EBI implementation inform program improvement and help monitoring and quality improvement over time. identify successful activities that need activities, and (4)CRC screening rates. The new Quarterly Program Update to be maintained, replicated, or The revised instrument was reorganized will collect standardized awardee-level expanded. (e.g., sections merged, variables moved information on aspects of program to new sections) for increased efficiency management, including (1) quarterly OMB approval is requested for three and to improve overall data quality. In program expenditures, (2) current staff years. The number of awardees will addition, wording and responses for vacancies, (3) program successes and increase from 30 awardees in DP15– many variables and their response challenges, and (4) current TA needs. 1502 to 35 awardees in DP20–2002, and options have undergone minor revisions This information collection will provide the number of clinic partners is to better capture awardees’ partnerships CDC staff rapid reporting of expected to increase from 12 to 24 per with both health systems and clinics, programmatic information to inform awardee. Therefore, the total estimated and appropriate capture of baseline and their efforts to provide awardees with annualized burden hours have increased annual variables. The revised tailored TA. from 204 to 663 hours.
ESTIMATED ANNUALIZED BURDEN HOURS
Average Number of Number of burden per Total burden Type of respondent Form name respondents responses per response (in hr) respondent (in hr)
CRCCP Awardees ...... CRCCP Annual Awardee Survey ...... 35 1 15/60 9 CRCCP Clinic-level Information Collection In- 35 24 43/60 602 strument. CRCCP Quarterly Program Update ...... 35 4 22/60 52
Total ...... 663
Jeffrey M. Zirger, This notice invites comment on a the information collection plan and Lead, Information Collection Review Office, proposed information collection project instruments, contact Jeffrey M. Zirger, Office of Scientific Integrity, Office of Science, titled COVID–19 Pandemic Response, Information Collection Review Office, Centers for Disease Control and Prevention. Laboratory Data Reporting. The Centers for Disease Control and [FR Doc. 2020–12244 Filed 6–4–20; 8:45 am] collection will be used to gather Prevention, 1600 Clifton Road NE, MS– BILLING CODE 4163–18–P comprehensive laboratory testing data to D74, Atlanta, Georgia 30329; phone: ensure a rapid and thorough federal 404–639–7570; Email: [email protected]. response to the COVID–19 pandemic. DEPARTMENT OF HEALTH AND SUPPLEMENTARY INFORMATION: Under the DATES: CDC must receive written HUMAN SERVICES Paperwork Reduction Act of 1995 (PRA) comments on or before August 4, 2020. (44 U.S.C. 3501–3520), Federal agencies Centers for Disease Control and ADDRESSES: You may submit comments, must obtain approval from the Office of Prevention identified by Docket No. CDC–2020– Management and Budget (OMB) for each 0062 by any of the following methods: collection of information they conduct [60Day–20–20OS; Docket No. CDC–2020– • Federal eRulemaking Portal: 0062] or sponsor. In addition, the PRA also Regulations.gov. Follow the instructions requires Federal agencies to provide a Proposed Data Collection Submitted for submitting comments. 60-day notice in the Federal Register • for Public Comment and Mail: Jeffrey M. Zirger, Information concerning each proposed collection of Recommendations Collection Review Office, Centers for information, including each new Disease Control and Prevention, 1600 proposed collection, each proposed AGENCY: Centers for Disease Control and Clifton Road NE, MS–D74, Atlanta, extension of existing collection of Prevention (CDC), Department of Health Georgia 30329. information, and each reinstatement of and Human Services (HHS). Instructions: All submissions received previously approved information ACTION: Notice with comment period. must include the agency name and collection before submitting the Docket Number. CDC will post, without collection to the OMB for approval. To SUMMARY: The Centers for Disease change, all relevant comments to comply with this requirement, we are Control and Prevention (CDC), as part of Regulations.gov. its continuing effort to reduce public publishing this notice of a proposed burden and maximize the utility of Please note: Submit all comments through data collection as described below. government information, invites the the Federal eRulemaking portal The OMB is particularly interested in general public and other Federal (regulations.gov) or by U.S. mail to the comments that will help: address listed above. agencies the opportunity to comment on 1. Evaluate whether the proposed a proposed and/or continuing FOR FURTHER INFORMATION CONTACT: To collection of information is necessary information collection, as required by request more information on the for the proper performance of the the Paperwork Reduction Act of 1995. proposed project or to obtain a copy of functions of the agency, including
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whether the information will have Ensuring a rapid and thorough public to receive these data in the most practical utility; health response to the COVID–19 efficient manner, the Secretary is 2. Evaluate the accuracy of the pandemic necessitates comprehensive requiring that all data be reported agency’s estimate of the burden of the laboratory testing data. These data through existing public health data proposed collection of information, contribute to understanding disease reporting methods as described below. including the validity of the incidence and trends: Initiating As a guiding principle, data will be methodology and assumptions used; epidemiologic case investigations, sent first to the state or local public 3. Enhance the quality, utility, and assisting with contact tracing, assessing health agencies (in accordance with clarity of the information to be availability and use of testing resources, state law or policies) to ensure rapid collected; and and identifying of supply chain issues initiation of case investigations by the 4. Minimize the burden of the for reagents and other material. state and/or local public health agency. collection of information on those who Laboratory testing data, in conjunction At the same time, laboratory order are to respond, including through the with case reports and other data, also results will be shared with ordering use of appropriate automated, provide vital guidance for mitigation providers or patients if there is not an electronic, mechanical, or other and control activities. ordering provider. technological collection techniques or Public Law 116–136 § 18115(a), the All laboratories, defined as other forms of information technology, Coronavirus Aid, Relief, and Economic laboratories, non-laboratory testing e.g., permitting electronic submissions Security (CARES) Act, requires ‘‘every locations, and other facilities or of responses. laboratory that performs or analyzes a locations offering point of care testing or 5. Assess information collection costs. test that is intended to detect SARS– in-home testing related to SARS–CoV–2 CoV–2 or to diagnose a possible case of shall report data for all testing Proposed Project COVID–19’’ to report the results from completed, for each individual tested, COVID–19 Pandemic Response, each such test to the Secretary of the within 24 hours of result known or Laboratory Data Reporting—New— Department of Health and Human determined, on a daily basis to the National Center for Emerging and Services (HHS). appropriate state or local public health Zoonotic Infectious Diseases (NCEZID), Through the CARES Act, and other agency based on the individual’s Centers for Disease Control and coronavirus supplemental funding residence. Prevention (CDC). packages including the Paycheck Reporting to the state and/or local Protection Program and Health Care public health agencies meets the Background and Brief Description Enhancement Act, jurisdictions have requirement for reporting stated above The Centers for Disease Control and received funding to accelerate and as this information—under current Prevention (CDC) requests an emergency improve data collection and reporting of processes and policies—will then be six-month approval for a New SARS–CoV–2. Improvements with the subsequently provided electronically to Information Collection titled COVID–19 laboratory data collection and reporting, the Centers for Disease Control and Pandemic Response, Laboratory Data laboratory information management Prevention (CDC) using an existing Reporting. Efforts are underway to systems (LIMS) enhancements and pathway and storage location for the ensure that laboratory data—including expansions, increased completeness of data. diagnostic viral testing data and case data reporting, and improvements For the purposes of this ICR, federal serologic testing data—are with timeliness of reporting are among burden is only being placed on fifty comprehensive and readily available the prioritized activities for states, the District of Columbia, Puerto from laboratories and other facilities implementation with this funding. Rico, US Virgin Islands, and Guam. providing testing, including point-of- This ICR outlines the requirements for Authorizing legislation comes from care testing sites for the public health data submission to the U.S. Department Section 301 of the Public Health Service response to SARS–CoV–2 and COVID– of Health and Human Services (HHS) as Act (42 U.S.C. 241). Total estimated 19. authorized under this law. In an effort burden is 9,720 hours.
ESTIMATED ANNUALIZED BURDEN HOURS
Average Number of Number of burden per Total burden Type of respondents Form name respondents responses per response (in hours) respondent (in hours)
State epidemiologist or informatics staff ...... CDC-provided CSV file or 54 180 1 9,720 HL7 messages.
Total ...... 9,720
Jeffrey M. Zirger, Lead, Information Collection Review Office, Office of Scientific Integrity, Office of Science, Centers for Disease Control and Prevention. [FR Doc. 2020–12241 Filed 6–4–20; 8:45 am] BILLING CODE 4163–18–P
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DEPARTMENT OF HEALTH AND portal (regulations.gov) or by U.S. mail to the 30/2021)—Extension — National Center HUMAN SERVICES address listed above. for Health Statistics (NCHS), Centers for FOR FURTHER INFORMATION CONTACT: To Disease Control and Prevention (CDC). Centers for Disease Control and request more information on the Background and Brief Description Prevention proposed project or to obtain a copy of [60Day–20–0213; Docket No. CDC–2020– the information collection plan and The compilation of national vital 0061] instruments, contact Jeffrey M. Zirger, statistics dates back to the beginning of Information Collection Review Office, the 20th century and has been Proposed Data Collection Submitted Centers for Disease Control and conducted since 1960 by the Division of for Public Comment and Prevention, 1600 Clifton Road NE, MS– Vital Statistics of the National Center for Recommendations D74, Atlanta, Georgia 30329; phone: Health Statistics, CDC. The collection of AGENCY: Centers for Disease Control and 404–639–7570; Email: [email protected]. the data is authorized by 42 U.S.C. 242k. Prevention (CDC), Department of Health SUPPLEMENTARY INFORMATION: Under the This submission requests approval to and Human Services (HHS). Paperwork Reduction Act of 1995 (PRA) collect the monthly and annually ACTION: Notice with comment period. (44 U.S.C. 3501–3520), Federal agencies summary statistics for three years. must obtain approval from the Office of The Monthly Vital Statistics Report SUMMARY: The Centers for Disease Management and Budget (OMB) for each forms provide counts of monthly collection of information they conduct Control and Prevention (CDC), as part of occurrences of births, deaths, and infant or sponsor. In addition, the PRA also its continuing effort to reduce public deaths. Similar data have been requires Federal agencies to provide a burden and maximize the utility of published since 1937 and are the sole 60-day notice in the Federal Register government information, invites the source of these data at the National general public and other Federal concerning each proposed collection of level. The data are used by the agencies to take this opportunity to information, including each new Department of Health and Human comment on proposed and/or proposed collection, each proposed Services and by other government, continuing information collections, as extension of existing collection of academic, and private research and required by the Paperwork Reduction information, and each reinstatement of commercial organizations in tracking Act of 1995. This notice invites previously approved information changes in trends of vital events. comment on the National Vital Statistics collection before submitting the Respondents for the Monthly Vital Report Forms. This collection is used by collection to OMB for approval. To Statistics Reports Form are registration State and/or county vital registration comply with this requirement, we are officials in each State and Territory, the offices to report to the Federal publishing this notice of a proposed District of Columbia, and New York government (a) provisional counts of data collection as described below. births, deaths, and infant deaths, at the The OMB is particularly interested in City. In addition, local (county) officials end of each month and (b) annual comments that will help: in New Mexico who record marriages counts of marriages and divorces/ 1. Evaluate whether the proposed occurring and divorces and annulments annulments in support of the National collection of information is necessary granted in each county of New Mexico Vital Statistics System. for the proper performance of the will use this form. This form is also designed to collect counts of monthly DATES: Written comments must be functions of the agency, including occurrences of births, deaths, and infant received on or before August 4, 2020. whether the information will have practical utility; deaths immediately following the ADDRESSES: You may submit comments, 2. Evaluate the accuracy of the month of occurrence. identified by Docket No. CDC–2020– agency’s estimate of the burden of the The Annual Vital Statistics 0061 by any of the following methods: proposed collection of information, • Federal eRulemaking Portal: Occurrence Report Form collects final including the validity of the Regulations.gov. Follow the instructions annual counts of marriages and divorces methodology and assumptions used; by month for the United States and for for submitting comments. 3. Enhance the quality, utility, and • Mail: Jeffrey M. Zirger, Information each State. These final counts are clarity of the information to be Collection Review Office, Centers for usually available from State or county collected; and officials about eight months after the Disease Control and Prevention, 1600 4. Minimize the burden of the Clifton Road NE, MS–D74, Atlanta, end of the data year. The data are collection of information on those who widely used by government, academic, Georgia 30329. are to respond, including through the Instructions: All submissions received private research, and commercial use of appropriate automated, must include the agency name and organizations in tracking changes in electronic, mechanical, or other Docket Number. All relevant comments trends of family formation and technological collection techniques or received will be posted without change dissolution. Respondents for the Annual other forms of information technology, to Regulations.gov, including any Vital Statistics Occurrence Report Form e.g., permitting electronic submissions personal information provided. For are registration officials in each State of responses. and Territory, the District of Columbia, access to the docket to read background 5. Assess information collection costs. documents or comments received, go to and New York City. Regulations.gov. Proposed Project There are no costs to respondents Please note: All public comment should be National Vital Statistics Report Forms other than their time. CDC requests submitted through the Federal eRulemaking (OMB Control No. 0920–0213, Exp. 04/ approval for 175 annual burden hours.
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ESTIMATED ANNUALIZED BURDEN HOURS
Average Number of Number of burden per Total burden Type of respondents Form name respondents responses per response (in hours) respondent (in hours)
State, Territory, and New Mexico Monthly Vital Statistics Report ...... 91 12 8/60 146 County Officials. State, Territory, and other officials .... Annual Vital Statistics Occurrence 58 1 30/60 29 Report.
Total ...... 175
Jeffrey M. Zirger, Disease Control and Prevention, 1600 including the validity of the Lead, Information Collection Review Office, Clifton Road NE, MS–D74, Atlanta, methodology and assumptions used; Office of Scientific Integrity, Office of Science, Georgia 30329. 3. Enhance the quality, utility, and Centers for Disease Control and Prevention. Instructions: All submissions received clarity of the information to be [FR Doc. 2020–12243 Filed 6–4–20; 8:45 am] must include the agency name and collected; and BILLING CODE 4163–18–P Docket Number. CDC will post, without 4. Minimize the burden of the change, all relevant comments to collection of information on those who Regulations.gov. are to respond, including through the DEPARTMENT OF HEALTH AND use of appropriate automated, HUMAN SERVICES Please note: Submit all comments through electronic, mechanical, or other the Federal eRulemaking portal technological collection techniques or Centers for Disease Control and (regulations.gov) or by U.S. mail to the address listed above. other forms of information technology, Prevention e.g., permitting electronic submissions [60Day–20–20OT; Docket No. CDC–2020– FOR FURTHER INFORMATION CONTACT: To of responses. 0063] request more information on the 5. Assess information collection costs. proposed project or to obtain a copy of Proposed Project Proposed Data Collection Submitted the information collection plan and for Public Comment and instruments, contact Jeffrey M. Zirger, Mycoplasma genitalium Treatment Recommendations Information Collection Review Office, Failure Registry—New—National Center Centers for Disease Control and for HIV/AIDS, Viral Hepatitis, STD, and AGENCY: Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS– TB Prevention (NCHHSTP), Centers for Prevention (CDC), Department of Health D74, Atlanta, Georgia 30329; phone: Disease Control and Prevention (CDC). and Human Services (HHS). 404–639–7570; Email: [email protected]. ACTION: Notice with comment period. Background and Brief Description SUPPLEMENTARY INFORMATION: Under the The Centers for Disease Control and SUMMARY: The Centers for Disease Paperwork Reduction Act of 1995 (PRA) Prevention (CDC), Division of STD Control and Prevention (CDC), as part of (44 U.S.C. 3501–3520), Federal agencies Prevention requests a three-year its continuing effort to reduce public must obtain approval from the Office of approval of an information collection burden and maximize the utility of Management and Budget (OMB) for each request for the Mycoplasma genitalium government information, invites the collection of information they conduct Treatment Failure Registry, which will general public and other Federal or sponsor. In addition, the PRA also entail use of a standardized Case Report agencies the opportunity to comment on requires Federal agencies to provide a Form. a proposed and/or continuing 60-day notice in the Federal Register The primary goal of this activity is to information collection, as required by concerning each proposed collection of establish a registry to monitor cases of the Paperwork Reduction Act of 1995. information, including each new Mycoplasma genitalium (M. genitalium) This notice invites comment on a proposed collection, each proposed treatment failure in the United States. proposed information collection project extension of existing collection of The project objectives are as follows: (1) titled ‘‘Mycoplasma genitalium information, and each reinstatement of Using existing clinical data, describe Treatment Failure Registry.’’ The previously approved information demographic and behavioral factors purpose of the collection is to determine collection before submitting the among patients with documented which second-line antibiotics are in use collection to the OMB for approval. To Mycoplasma genitalium who fail for M. genitalium treatment failure and comply with this requirement, we are current CDC-recommended treatment. monitor antibiotic resistance patterns publishing this notice of a proposed (2) Using existing clinical data, describe for treatment failure cases throughout data collection as described below. antibiotic regimens utilized among the United States. The OMB is particularly interested in patients with Mycoplasma genitalium DATES: CDC must receive written comments that will help: treatment failure, including comments on or before August 4, 2020. 1. Evaluate whether the proposed documentation of clinical and ADDRESSES: You may submit comments, collection of information is necessary microbiologic cure. (3) Using existing identified by Docket No. CDC–2020– for the proper performance of the laboratory specimens, monitor genetic 0063 by any of the following methods: functions of the agency, including mutations associated with macrolide or • Federal eRulemaking Portal: whether the information will have fluroquinolone antibiotic resistance. Regulations.gov. Follow the instructions practical utility; Data captured on the standardized Case for submitting comments. 2. Evaluate the accuracy of the Report Form will be analyzed to • Mail: Jeffrey M. Zirger, Information agency’s estimate of the burden of the determine outcomes from usage of Collection Review Office, Centers for proposed collection of information, second-line antibiotic therapy for M.
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gentialium. These data may inform recommendations for patients who fail clinically effective, as well as future CDC STD Treatment Guidelines. current CDC-recommended therapy for determining antibiotic resistance There are an estimated 100 M. genitalium. Each case report form is patterns of M. genitalium throughout the respondents (anticipated to report once anticipated to take up to 60 minutes to US. There are no costs to respondents per year) who will be clinicians in complete. other than their time. The estimated private and public health care settings. This data collection provides CDC annualized burden hours for this data The data collection is necessary as there with information to determine which collection are 100 hours. are no current national second-line treatments are most
ESTIMATED ANNUALIZED BURDEN HOURS
Average Number of Number burden per Total Type of respondent Form name respondents responses per response burden hours respondent (in hours)
Physician or Nurse Practi- M. genitalium Treatment Failure Registry 100 1 1 100 tioner. Case Report Form.
Jeffrey M. Zirger, and ensure that the CCWIS is utilized IV–E agencies to self-assess their Lead, Information Collection Review Office, for purposes consistent with the conformity to CCWIS project and design Office of Scientific Integrity, Office of Science, efficient, economical, and effective requirements at 45 CFR 1355.52–3. The Centers for Disease Control and Prevention. administration of the title IV–B and IV– initial six TA tools include intake, [FR Doc. 2020–12242 Filed 6–4–20; 8:45 am] E plans. The information collected is investigation, case management, BILLING CODE 4163–18–P intended to be used for review and adoption, foster care and service technical assistance processes. provider management, and DATES: Comments due within 60 days of administration. DEPARTMENT OF HEALTH AND publication. In compliance with the In the future, ACF will submit under HUMAN SERVICES requirements of Section 3506(c)(2)(A) of this generic clearance mechanism Administration for Children and the Paperwork Reduction Act of 1995, additional TA tools for title IV–E Families ACF is soliciting public comment on the agencies to self-assess design, data specific aspects of the information quality, usability, reporting, data Proposed Information Collection collection described above. exchanges, external systems, eligibility, Activity; Generic Clearance for the ADDRESSES: Copies of the proposed finance, Child Welfare Contributing Comprehensive Child Welfare collection of information can be Agencies, and other tools, as needed, to Information System (CCWIS) Review obtained and comments may be assess new child welfare programs and and Technical Assistance Process forwarded by emailing infocollection@ modern system architecture. (New Collection) acf.hhs.gov. Copies can also be obtained The CCWIS requirements at 45 CFR by writing to the Administration for 1355.55 require the review, assessment, AGENCY: Children’s Bureau, and inspection of the planning, design, Administration for Children and Children and Families, Office of Families, HHS. Planning, Research, and Evaluation development, installation, operation, (OPRE), 330 C Street SW, Washington, and maintenance of each CCWIS project ACTION: Request for public comment. DC 20201, Attn: ACF Reports Clearance on a continuing basis. The Advance SUMMARY: The Children’s Bureau (CB), Officer. All requests, emailed or written, Planning Document regulations at 45 Administration for Children and should be identified by the title of the CFR 95.621 require periodic reviews of Families (ACF), U.S. Department of information collection. state and local agency methods and Health and Human Services (HHS), is SUPPLEMENTARY INFORMATION: practices to insure that information proposing to establish a generic Description: This initial request is to systems, including CCWIS, are utilized clearance to collect information to establish an overarching generic for for purposes consistent with proper and assess regulatory requirements of title CCWIS Review and Technical efficient administration. IV–E agencies’ Comprehensive Child Assistance (TA) information collections Respondents: Title IV–E agencies Welfare Information System (CCWIS) and includes six initial TA tools for title under the Social Security Act.
ANNUAL BURDEN ESTIMATES
Total Total number of Average Total Instrument number of responses per burden hours burden hours respondents respondent per response
CCWIS Self-Assessment—Intake ...... 55 1 10 550 CCWIS Self-Assessment—Investigation ...... 55 1 10 550 CCWIS Self-Assessment—Case Management ...... 55 1 10 550 CCWIS Self-Assessment—Adoption ...... 55 1 10 550 CCWIS Self-Assessment—Foster Care and Service Provider Management 55 1 10 550 CCWIS Self-Assessment—Administration ...... 55 1 10 550 Future Tools to be developed ...... 55 10 12 6,600
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Estimated Total Annual Burden DEPARTMENT OF HEALTH AND section for electronic access to the Hours: 9,900. HUMAN SERVICES Authorizations. Comments: The Department FOR FURTHER INFORMATION CONTACT: Food and Drug Administration specifically requests comments on (a) Jennifer J. Ross, Office of whether the proposed collection of [Docket No. FDA–2020–N–1335] Counterterrorism and Emerging Threats, information is necessary for the proper Food and Drug Administration, 10903 performance of the functions of the Authorization of Emergency Use of New Hampshire Ave., Bldg. 1, Rm. Certain Medical Devices During agency, including whether the 4332, Silver Spring, MD 20993–0002, COVID–19; Availability information shall have practical utility; 301–796–8510 (this is not a toll-free number). (b) the accuracy of the agency’s estimate AGENCY: Food and Drug Administration, of the burden of the proposed collection HHS. SUPPLEMENTARY INFORMATION: of information; (c) the quality, utility, ACTION: Notice. I. Background and clarity of the information to be collected; and (d) ways to minimize the SUMMARY: The Food and Drug Section 564 of the FD&C Act (21 U.S.C. 360bbb–3) allows FDA to burden of the collection of information Administration (FDA) is announcing the strengthen the public health protections on respondents, including through the issuance and reissuance of Emergency Use Authorizations (EUAs) (the against biological, chemical, use of automated collection techniques radiological, or nuclear agent or agents. or other forms of information Authorizations) for certain medical devices related to the coronavirus Among other things, section 564 of the technology. Consideration will be given FD&C Act allows FDA to authorize the to comments and suggestions submitted disease 2019 (COVID–19) public health emergency. FDA has issued, and in use of an unapproved medical product within 60 days of this publication. some cases reissued, the Authorizations or an unapproved use of an approved (Authority: 5 U.S.C. 301; 42 U.S.C. 470, 620 listed in this document under the medical product in certain situations. et seq., 622(b), 629b(a), 652(b), 654A, 670 et Federal Food, Drug, and Cosmetic Act With this EUA authority, FDA can help seq., 671(a), 1302, and 1396a(a)) (FD&C Act). These Authorizations ensure that medical countermeasures may be used in emergencies to diagnose, Mary B. Jones, contain, among other things, conditions on the emergency use of the authorized treat, or prevent serious or life- ACF/OPRE Certifying Officer. products. The Authorizations follow the threatening diseases or conditions [FR Doc. 2020–12125 Filed 6–4–20; 8:45 am] February 4, 2020, determination by caused by a biological, chemical, BILLING CODE 4184–25–P Secretary of Health and Human Services radiological, or nuclear agent or agents (HHS) that there is a public health when there are no adequate, approved, emergency that has significant potential and available alternatives. DEPARTMENT OF HEALTH AND to affect national security or the health Section 564(b)(1) of the FD&C Act HUMAN SERVICES and security of U.S. citizens living provides that, before an EUA may be abroad, which involves the virus that issued, the Secretary of HHS must Food and Drug Administration causes COVID–19, and the subsequent declare that circumstances exist declarations on February 4, 2020, March justifying the authorization based on [Docket No. FDA–2020–D–1301] 2, 2020, and March 24, 2020, that one of the following grounds: (1) A circumstances exist justifying the determination by the Secretary of Q3C(R8) Recommendations for the authorization of emergency use of in Homeland Security that there is a Permitted Daily Exposures for Three vitro diagnostics for detection and/or domestic emergency, or a significant Solvents—2-Methyltetrahydrofuran, diagnosis of the virus that causes potential for a domestic emergency, Cyclopentyl Methyl Ether, and Tert- COVID–19, personal respiratory involving a heightened risk of attack Butyl Alcohol—According to the protective devices, and medical devices, with a biological, chemical, radiological, Maintenance Procedures for the including alternative products used as or nuclear agent or agents; (2) a Guidance Q3C Impurities: Residual medical devices, respectively, subject to determination by the Secretary of Solvents; International Council for the terms of any authorization issued Defense that there is a military Harmonisation; Draft Guidance for under the FD&C Act. These emergency, or a significant potential for a military emergency, involving a Industry; Availability Authorizations, which include an explanation of the reasons for issuance heightened risk to U.S. military forces, Correction and reissuance, are listed in this including personnel operating under the document and are available on FDA’s authority of title 10 or title 50, U.S. In notice document 2020–11280, website at the links indicated in this Code, of attack with (i) a biological, appearing on pages 31785 through document. chemical, radiological, or nuclear agent 31786 in the issue of Wednesday, May or agents; or (ii) an agent or agents that 27, 2020 make the following correction. DATES: These Authorizations are may cause, or are otherwise associated effective on their date of issuance. On page 31785, in the first column, on with, an imminently life-threatening ADDRESSES: Submit written requests for the last line, ‘‘July 26, 2024’’ should and specific risk to U.S. military single copies of the EUAs to the Office forces; 1 read ‘‘July 27, 2020’’. (3) a determination by the [FR Doc. C1–2020–11280 Filed 6–4–20; 8:45 am] of Counterterrorism and Emerging Secretary of HHS that there is a public Threats, Food and Drug Administration, health emergency, or a significant BILLING CODE 1300–01–D 10903 New Hampshire Ave., Bldg. 1, potential for a public health emergency, Rm. 4338, Silver Spring, MD 20993– 0002. Send one self-addressed adhesive 1 In the case of a determination by the Secretary label to assist that office in processing of Defense, the Secretary of HHS shall determine within 45 calendar days of such determination, your request or include a Fax number to whether to make a declaration under section which the Authorization may be sent. 564(b)(1) of the FD&C Act, and, if appropriate, shall See the SUPPLEMENTARY INFORMATION promptly make such a declaration.
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that affects, or has a significant potential disease or condition caused by a FD&C Act. FDA is hereby announcing to affect, national security or the health product authorized under section 564, the following Authorizations for in vitro and security of U.S. citizens living approved or cleared under the FD&C diagnostics: 3 abroad, and that involves a biological, Act, or licensed under section 351 of the • CDC 2019–Novel Coronavirus chemical, radiological, or nuclear agent PHS Act, for diagnosing, treating, or (2019–nCoV) Real-Time RT–PCR or agents, or a disease or condition that preventing such a disease or condition Diagnostic Panel (CDC), issued February may be attributable to such agent or caused by such an agent; and (B) the 4, 2020, and reissued March 15, 2020; agents; or (4) the identification of a known and potential benefits of the • New York SARS–CoV–2 Real-time material threat by the Secretary of product, when used to diagnose, Reverse Transcriptase (RT)–PCR Homeland Security pursuant to section prevent, or treat such disease or Diagnostic Panel (Wadsworth Center, 319F–2 of the Public Health Service condition, outweigh the known and NYSDOH), issued February 29, 2020, (PHS) Act (42 U.S.C. 247d-6b) sufficient potential risks of the product, taking and reissued March 10, 2020; to affect national security or the health into consideration the material threat • Roche Molecular Systems, Inc.’s and security of U.S. citizens living posed by the agent or agents identified (RMS) cobas SARS–CoV–2, issued abroad. in a declaration under section March 12, 2020; Once the Secretary of HHS has 564(b)(1)(D) of the FD&C Act, if • Thermo Fisher Scientific, Inc.’s declared that circumstances exist applicable; (3) that there is no adequate, TaqPath COVID–19 Combo Kit, issued justifying an authorization under approved, and available alternative to March 13, 2020; section 564 of the FD&C Act, FDA may the product for diagnosing, preventing, • Hologic, Inc.’s Panther Fusion authorize the emergency use of a drug, or treating such disease or condition; (4) SARS–CoV–2, issued March 16, 2020; device, or biological product if the in the case of a determination described • Laboratory Corporation of Agency concludes that the statutory in section 564(b)(1)(B)(ii), that the America’s COVID–19 RT–PCR Test, criteria are satisfied. Under section request for emergency use is made by issued March 16, 2020; 564(h)(1) of the FD&C Act, FDA is the Secretary of Defense; and (5) that • Quidel Corp.’s Lyra SARS–CoV–2 required to publish in the Federal such other criteria as may be prescribed Assay, issued March 17, 2020; Register a notice of each authorization, by regulation are satisfied. • Quest Diagnostics Infectious and each termination or revocation of an No other criteria for issuance have Disease, Inc.’s Quest SARS–CoV–2 rRT– authorization, and an explanation of the been prescribed by regulation under PCR, issued March 17, 2020; reasons for the action. Section 564 of the section 564(c)(4) of the FD&C Act. • Abbott Molecular’s Abbott FD&C Act permits FDA to authorize the Because the statute is self-executing, RealTime SARS–CoV–2 assay, issued introduction into interstate commerce of regulations or guidance are not required March 18, 2020; a drug, device, or biological product for FDA to implement the EUA • DiaSorin Molecular LLC’s Simplexa intended for use when the Secretary of authority. COVID–19 Direct assay, issued March HHS has declared that circumstances II. Electronic Access 19, 2020; exist justifying the authorization of • GenMark Diagnostics, Inc.’s ePlex An electronic version of this emergency use. Products appropriate for SARS–CoV–2 Test, issued March 19, document and the full text of the emergency use may include products 2020; Authorizations are available on the and uses that are not approved, cleared, • Primerdesign Ltd’s Primerdesign internet at https://www.fda.gov/ or licensed under sections 505, 510(k), Ltd COVID–19 genesig Real-Time PCR emergency-preparedness-and-response/ 512, or 515 of the FD&C Act (21 U.S.C. assay, issued March 20, 2020; mcm-legal-regulatory-and-policy- 355, 360(k), 360b and 360e) or section • Cepheid’s Xpert Xpress SARS– framework/emergency-use- 351 of the PHS Act (42 U.S.C. 262), or CoV–2 test, issued March 20, 2020; authorization. conditionally approved under section • BioFire Defense, LLC’s BioFire 571 of the FD&C Act (21 U.S.C. 360ccc). III. The Authorizations COVID–19 Test, issued March 23, 2020; FDA may issue an EUA only if, after • Mesa Biotech Inc.’s Accula SARS– consultation with the HHS Assistant Having concluded that the criteria for the issuance and, in some cases Cov–2 Test, issued March 23, 2020; Secretary for Preparedness and • PerkinElmer, Inc.’s PerkinElmer Response, the Director of the National reissuance, of the following Authorizations under section 564(c) of New Coronavirus Nucleic Acid Institutes of Health, and the Director of Detection Kit, issued March 24, 2020; the Centers for Disease Control and the FD&C Act are met, FDA has • authorized the emergency use of the Avellino Lab USA, Inc.’s Prevention (to the extent feasible and AvellinoCoV2 test, issued March 25, appropriate given the applicable following products for diagnosing, treating, or preventing COVID–19 2020; circumstances), FDA 2 concludes: (1) • subject to the terms of each BGI Genomics Co. Ltd.’s Real-Time That an agent referred to in a Authorization. The Authorizations in Fluorescent RT–PCR Kit for Detecting declaration of emergency or threat can their entirety, including any authorized SARS–2019–nCoV, issued March 26, cause a serious or life-threatening fact sheets and other written materials, 2020; disease or condition; (2) that, based on are available on the internet from the the totality of scientific evidence 3 FDA web page entitled ‘‘Emergency Use As set forth in the EUAs for these devices, FDA available to FDA, including data from has concluded that: (1) SARS–CoV–2, the virus that Authorization,’’ available at https:// adequate and well-controlled clinical causes COVID–19, can cause a serious or life- www.fda.gov/emergency-preparedness- threatening disease or condition, including severe trials, if available, it is reasonable to and-response/mcm-legal-regulatory- respiratory illness, to humans infected by this virus; believe that: (A) The product may be and-policy-framework/emergency-use- (2) based on the totality of scientific evidence effective in diagnosing, treating, or available to FDA, it is reasonable to believe that the authorization. The lists that follow preventing (i) such disease or condition; devices may be effective in diagnosing COVID–19, include Authorizations issued, in some and that the known and potential benefits of the or (ii) a serious or life-threatening cases reissued, through April 10, 2020, devices, when used for diagnosing COVID–19, outweigh the known and potential risks of such 2 The Secretary of HHS has delegated the and we have included explanations of devices; and (3) there is no adequate, approved, and authority to issue an EUA under section 564 of the the reasons for their issuance, as available alternative to the emergency use of the FD&C Act to the Commissioner of Food and Drugs. required by section 564(h)(1) of the devices.
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• Abbott Diagnostics Scarborough, • Certain National Institute for • STERIS Corporation’s STERIS Inc.’s ID NOW COVID–19, issued March Occupational Safety and Health Sterilization Systems (STERIS V–PRO 1 27, 2020; (NIOSH)-Approved Air Purifying Plus, maX, and maX2 Low Temperature • Luminex Molecular Diagnostics, Respirators for Use in Health Care Sterilization Systems), issued April 9, Inc. Luminex Molecular Diagnostics, Settings During Response to the COVID– 2020; 7 Inc.’s NxTAG CoV Extended Panel 19 Public Health Emergency, issued • Certain Face Shields, issued April Assay, issued March 27, 2020; March 2, 2020, with reissuance on 9, 2020; 8 • NeuMoDx Molecular, Inc.’s March 27, 2020, and March 28, 2020; NeuMoDx SARS–CoV–2 Assay, issued • Certain Imported, Non-NIOSH- COVID–19, can cause a serious or life-threatening March 30, 2020; Approved Disposable Filtering disease or condition, including severe respiratory • illness, to humans infected by this virus; (2) based QIAGEN GmbH’s QIAstat–Dx Facepiece Respirators, issued March 24, on the totality of scientific evidence available to Respiratory SARS–CoV–2 Panel, issued 2020, with reissuance on March 28, FDA, it is reasonable to believe that the Battelle March 30, 2020; 2020 (a current list of respirators Decontamination System may be effective at • Cellex Inc.’s qSARS–CoV–2 IgG/ included under this EUA is available at preventing exposure to pathogenic airborne particulates when there are insufficient supplies of IgM Rapid Test, issued April 1, 2020; https://www.fda.gov/media/136731/ FFRs during the COVID–19 pandemic by • Ipsum Diagnostics, LLC’s COV–19 download); and, decontaminating, for a maximum of 20 IDx assay, issued April 1, 2020; • Certain Non-NIOSH-Approved decontamination cycles per respirator, compatible • Becton, Dickinson and Company, Disposable Filtering Facepiece N95 respirators that are contaminated or potentially contaminated with SARS–CoV–2 or other BioGX SARCoV–2 Reagents for BD MAX Respirators Manufactured in China, pathogenic microorganisms, and that the known System, issued April 2, 2020; issued April 3, 2020 (a current list of and potential benefits of the Battelle • Luminex Corporation, ARIES respirators included under this EUA is Decontamination System, when used to SARS–CoV–2 Assay, issued April 3, available at https://www.fda.gov/media/ decontaminate compatible N95 respirators for reuse by HCP to prevent exposure to pathogenic airborne 2020; 136663/download). particulates during FFR shortages during the • ScienCell Research Laboratories, FDA is hereby announcing the COVID–19 pandemic, outweigh the known and ScienCell SARS–CoV–2 Coronavirus following Authorizations for other potential risks; and (3) there is no adequate, Real-time RT–PCR (RT–qPCR) Detection medical devices: approved, and available alternative to the emergency use of the Battelle Decontamination Kit, issued April 3, 2020; • Certain ventilators, anesthesia gas • System for decontaminating compatible N95 Co-Diagnostics, Inc., Logix Smart machines modified for use as respirators for reuse by HCP during FFR shortages Coronavirus Disease 2019 (COVID–19) ventilators, and positive pressure during the COVID–19 pandemic. kit, issued April 3, 2020; breathing devices modified for use as 7 As set forth in the EUA, FDA has concluded • Gnomegen LLC’s, Gnomegen that: (1) SARS–CoV–2, the virus that causes ventilators (collectively referred to as COVID–19, can cause a serious or life-threatening COVID–19 RT–Digital PCR RT–Digital ‘‘ventilators’’), ventilator tubing disease or condition, including severe respiratory PCR Detection Kit, issued on April 6, connectors, and ventilator accessories, illness, to humans infected by this virus; (2) based 2020; issued March 24, 2020 (a current list of on the totality of scientific evidence available to • InBios International Inc.’s, Smart FDA, it is reasonable to believe that the STERIS products included under this EUA is Sterilization Systems may be effective at preventing Detect SARS–CoV–2 rRT–PCR Kit, available at https://www.fda.gov/media/ exposure to pathogenic airborne particulates when issued on April 7, 2020; 136528/download); 5 there are insufficient supplies of N95 respirators • Becton, Dickinson and Company’s, • Battelle Memorial Institute’s during the COVID19 pandemic by decontaminating BD SARS–CoV–2 Reagents for BD MAX for a maximum of 10 decontamination cycles per Battelle Decontamination System respirator, compatible N95 respirators that are System, issued on April 8, 2020; (Battelle CCDS Critical Care • contaminated or potentially contaminated with DiaCarta, Inc.’s QuantiVirus SARS– Decontamination System), issued March SARS–CoV–2 or other pathogenic microorganisms, CoV–2 Test kit, issued on April 8, 2020; 28, 2020, with reissuance March 29, and that the known and potential benefits of the • Atila BioSystems, Inc.’s, iAMP 6 STERIS Sterilization Systems, when used to 2020; decontaminate compatible N95 respirators for COVID–19 Detection Kit, issued on single-user reuse by HCP to prevent exposure to April 10, 2020; and exposure to pathogenic biological airborne pathogenic airborne particulates during N95 • Certain Molecular-Based Laboratory particulates during Filtering Facepiece Respirator respirator shortages during the COVID–19 Developed Tests (LDTs) for COVID–19 (FFR) shortages, and that the known and potential pandemic, outweigh the known and potential risks; benefits of the authorized respirators, when used to and (3) there is no adequate, approved, and that are developed by laboratories prevent HCP exposure to such particulates during available alternative to the emergency use of the certified under the Clinical Laboratory FFR shortages during COVID–19, outweigh the STERIS Sterilization Systems for decontaminating Improvement Amendments of 1988 known and potential risks of such products, and (3) compatible N95 respirators for reuse by HCP during (CLIA) to perform high complexity tests there is no adequate, approved, and available N95 respirator shortages during the COVID–19 alternative for the emergency use. and are authorized for use by the pandemic. 5 As set forth in the EUA, FDA has concluded 8 As set forth in the EUA, FDA has concluded singular developing laboratory, issued that: (1) SARS–CoV–2, the virus that causes that: (1) SARS–CoV–2, the virus that causes on March 31, 2020 (a current list of tests COVID–19, can cause a serious or life-threatening COVID–19, can cause a serious or life-threatening included under this EUA is available at disease or condition, including severe respiratory disease or condition, including severe respiratory https://www.fda.gov/medical-devices/ illness, to humans infected by this virus; (2) based illness, to humans infected by this virus; (2) based on the totality of scientific evidence available to on the totality of scientific evidence available to emergency-situations-medical-devices/ FDA, it is reasonable to believe that the authorized FDA, it is reasonable to believe that the authorized emergency-use-authorizations). ventilators, ventilator tubing connectors, and face shields may be effective at preventing HCP FDA is hereby announcing the ventilator accessories may be effective in treating exposure to fluid biological airborne particulates patients during the COVID–19 pandemic, and the during face shield shortages by providing minimal following Authorizations for personal known and potential benefits of such products, 4 or low barrier HCP protection to the wearer, and respiratory protective devices: when used to treat patients during the COVID–19 that the known and potential benefits of face pandemic, outweigh the known and potential risks shields, when used to prevent HCP exposure to 4 As set forth in the EUAs, FDA has concluded of such products, and (3) there is no adequate, such particulates during face shield shortages that: (1) The SARS–CoV–2 can cause a serious or approved, and available alternative to the during COVID–19 outweigh the known and life-threatening disease or condition, including emergency use of the authorized ventilators, potential risks of such product; and (3) there is no severe respiratory illness, to humans infected by ventilator tubing connectors, and ventilator adequate, approved, and available alternative to the this virus; (2) based on the totality of scientific accessories for treating patients during the COVID– emergency use of these face shields for preventing evidence available to FDA, it is either reasonable to 19 pandemic. HCP exposure to such particulates during face believe that the authorized respirators may be 6 As set forth in the EUA, FDA has concluded shield shortages to prevent disease spread during effective in preventing healthcare personnel (HCP) that: (1) SARS–CoV–2, the virus that causes the COVID–19 pandemic.
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• Terumo BCT Inc. and Marker Place: Virtual. Disease Control and Prevention, 3311 Therapeutics AG’s, Spectra Optia Status: Open. Toledo Road, Hyattsville, Maryland Apheresis System with the Depuro Purpose: At the June 17–18, 2020 20782, telephone (301) 458–4715. D2000 Adsorption Cartridge (an meeting, the Committee will receive Summaries of meetings and a roster of Extracorporeal Blood Purification (EBP) briefings from HHS officials, hold Committee members are available on the Device), issued on April 9, 2020;9 and, discussions on several health data home page of the NCVHS website: • CytoSorbents, Inc.’s, CytoSorb EBP policy topics and refine its workplan for ncvhs.hhs.gov, where further Device, issued on April 10, 2020.10 the upcoming 12-month period. information including an agenda and The Subcommittee on Privacy, Dated: May 29, 2020. instructions to access the broadcast of Confidentiality and Security will lead a the meeting will also be posted. Lowell J. Schiller, discussion with the full Committee to Principal Associate Commissioner for Policy. Should you require reasonable reach consensus on plans for a project accommodation, please contact the CDC [FR Doc. 2020–12117 Filed 6–4–20; 8:45 am] focused on data privacy and security Office of Equal Employment BILLING CODE 4164–01–P protections related to current public Opportunity on (770) 488–3210 as soon health surveillance activities. as possible. The Subcommittee on Standards will DEPARTMENT OF HEALTH AND provide updates on plans for the Sharon Arnold, HUMAN SERVICES upcoming August hearing intended to Associate Deputy Assistant Secretary for solicit information about the costs and Planning and Evaluation, Science and Data National Committee on Vital and Health benefits of a new operating rule for Policy, Office of the Assistant Secretary for Statistics connectivity and operating rules for the Planning and Evaluation. [FR Doc. 2020–12236 Filed 6–4–20; 8:45 am] Pursuant to the Federal Advisory prior authorization transaction proposed Committee Act, the Department of by the Council for Affordable Quality BILLING CODE 4150–05–P Health and Human Services (HHS) Healthcare (CAQH), Committee on Operating Rules for Information announces the following advisory DEPARTMENT OF HEALTH AND committee meeting. Exchange (CORE) Board. The Subcommittee also will provide an HUMAN SERVICES Name: National Committee on Vital update on progress of the Office of the National Institutes of Health and Health Statistics (NCVHS), Full National Coordinator (ONC) Health Committee Meeting. Information Technology Advisory National Institute of Allergy and Dates and Times: Committee (HITAC) Task Force on Infectious Diseases; Notice of Closed Wednesday, June 17, 2020: 10:00 a.m.– Intersection of Clinical and Meeting 5:00 p.m. EDT Administrative Data (ICAD), on which Thursday, June 18, 2020 10:00 a.m.–4:00 four NCVHS members participate. The Pursuant to section 10(d) of the p.m. EDT Committee will initiate a discussion of Federal Advisory Committee Act, as the NCVHS 14th Report to Congress, amended, notice is hereby given of the 9 As set forth in the EUA, FDA has concluded including a proposed approach, major following meeting. that: (1) SARS–CoV–2, the virus that causes The meeting will be closed to the COVID–19, can cause a serious or life-threatening themes, and timeline including disease or condition, including severe respiratory reflection on previous reports to public in accordance with the illness, to humans infected by this virus; (2) based Congress for context. provisions set forth in sections on the totality of scientific evidence available to The Committee has invited 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., FDA, it is reasonable to believe that the Spectra as amended. The grant applications and Optia Apheresis System with the Depuro D2000 presentations from the HHS Office of Adsorption Cartridge may be effective in treating the Assistant Secretary for Planning and the discussions could disclose patients 18 years of age or older with confirmed Evaluation, Science and Data Policy confidential trade secrets or commercial COVID–19 admitted to the intensive care unit (ICU) Division, the National Center for Health property such as patentable material, with confirmed or imminent respiratory failure, and and personal information concerning that the known and potential benefits of the Spectra Statistics (NCHS), and CDC’s Deputy Optia Apheresis System with the Depuro D2000 Director for Public Health Science and individuals associated with the grant Adsorption Cartridge, when used to treat COVID– Surveillance (DDPHSS), to inform applications, the disclosure of which 19 patients 18 years of age or older, outweigh the Committee discussion of the data would constitute a clearly unwarranted known and potential risks of the Spectra Optia invasion of personal privacy. Apheresis System with the Depuro D2000 landscape transformed by the COVID– Adsorption Cartridge; and (3) there is no adequate, 19 epidemic. The Committee also has Name of Committee: National Institute of approved, and available alternative to the invited CMS’s Division of National Allergy and Infectious Diseases Special emergency use of the Spectra Optia Apheresis Standards to provide an update on its Emphasis Panel Vaccine and Treatment System with the Depuro D2000 Adsorption Evaluation Units (VTEUs): Enhancing Cartridge for the treatment of these COVID–19 activities and plans. On the afternoon of the second day, members will consider Capability and Capacity (UM1 Clinical Trial patients. Required). 10 As set forth in the EUA, FDA has concluded and discuss priorities for Committee Date: July 7, 2020. that: (1) SARS–CoV–2, the virus that causes focus and revise the Committee Time: 10:00 a.m. to 3:00 p.m. COVID–19, can cause a serious or life-threatening workplan based on information disease or condition, including severe respiratory Agenda: To review and evaluate grant illness, to humans infected by this virus; (2) based presented during the meeting. applications. on the totality of scientific evidence available to A public comment period will be Place: National Institute of Allergy and FDA, it is reasonable to believe that the CytoSorb offered on the second day. Meeting Infectious Diseases, National Institutes of device may be effective in treating patients 18 years times and topics are subject to change. Health, 5601 Fishers Lane, Room 3F21B, of age or older with confirmed COVID–19 admitted Rockville, MD 20892 (Telephone Conference to the ICU with confirmed or imminent respiratory Please refer to the posted agenda for any updates. Call). failure, and that the known and potential benefits Contact Person: Maryam Feili-Hariri, of the CytoSorb device, when used to treat such For Further Information Contact: Ph.D., Scientific Review Officer, Scientific patients, outweigh the known and potential risks of Substantive program information may the CytoSorb device; and (3) there is no adequate, Review Program, Division of Extramural approved, and available alternative to the be obtained from Rebecca Hines, MHS, Activities, National Institute of Allergy and emergency use of the CytoSorb device for the Executive Secretary, NCVHS, National Infectious Diseases, National Institutes of treatment of these COVID–19 patients. Center for Health Statistics, Centers for Health, 5601 Fishers Lane, Room 3F21B,
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Bethesda, MD 20892–9834, (240) 669–5026, Name of Committee: National Institute of DEPARTMENT OF HEALTH AND [email protected]. Mental Health Special Emphasis Panel; HUMAN SERVICES (Catalogue of Federal Domestic Assistance BICCN: Human and NHP Brain Cell Atlases Program Nos. 93.855, Allergy, Immunology, (U01) & Scalable Tech and Tools for Brain National Institutes of Health and Transplantation Research; 93.856, Cell Census (R01). Microbiology and Infectious Diseases Date: July 1, 2020. National Institute of Allergy and Research, National Institutes of Health, HHS) Time: 11:00 a.m. to 5:00 p.m. Infectious Diseases; Notice of Closed Dated: June 1, 2020. Agenda: To review and evaluate grant Meeting Tyeshia M. Roberson, applications. Program Analyst, Office of Federal Advisory Place: National Institutes of Health, Pursuant to section 10(d) of the Committee Policy. Neuroscience Center, 6001 Executive Blvd., Federal Advisory Committee Act, as [FR Doc. 2020–12259 Filed 6–4–20; 8:45 am] Rockville, MD 20852 (Telephone Conference amended, notice is hereby given of the Call). BILLING CODE 4140–01–P following meeting. Contact Person: David W. Miller, Ph.D., Scientific Review Officer, Division of The meeting will be closed to the public in accordance with the DEPARTMENT OF HEALTH AND Extramural Activities, National Institute of provisions set forth in sections HUMAN SERVICES Mental Health, NIH, Neuroscience Center, 6001 Executive Blvd., Room 6140, MSC 9608, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., National Institutes of Health Bethesda, MD 20892–9608, 301–443–9734, as amended. The grant applications and [email protected]. the discussions could disclose National Library of Medicine Notice of Name of Committee: National Institute of confidential trade secrets or commercial Meetings Amended Notice of Meeting Mental Health Special Emphasis Panel; property such as patentable material, Interventions and Services RFA. and personal information concerning Notice is hereby given of a change in Date: July 1, 2020. individuals associated with the grant the meeting of the Literature Selection Time: 11:00 a.m. to 1:30 p.m. applications, the disclosure of which Technical Review Committee, June 11– Agenda: To review and evaluate grant would constitute a clearly unwarranted 12, 2020, 8:30 a.m. to 5:00 p.m., video applications. invasion of personal privacy. assisted meeting, which was published Place: National Institutes of Health, Name of Committee: National Institute of in the Federal Register on April 20, Neuroscience Center, 6001 Executive Blvd., Allergy and Infectious Diseases Special 2020, 85 FR 76, Page 21868. Rockville, MD 20852 (Telephone Conference Emphasis Panel Emergency Awards: Rapid This notice is being amended to Call). Investigation of Severe Acute Respiratory change the meeting dates to June 10–11, Contact Person: Aileen Schulte, Ph.D., Syndrome Coronavirus 2 (SARS–CoV–2) and 2020 and the times for both days from Scientific Review Officer, Division of Coronavirus Disease 2019 (COVID–19). 10:00 a.m. to 3:00 p.m. This meeting Extramural Activities, National Institute of Date: June 25, 2020. will be a video assisted meeting and Mental Health, NIH, Neuroscience Center, Time: 11:00 a.m. to 4:30 p.m. will be closed to the public. 6001 Executive Blvd., Room 6140, MSC 9608, Agenda: To review and evaluate grant Bethesda, MD 20892–9608, 301–443–1225, Dated: June 2, 2020. applications. [email protected]. Ronald J. Livingston, Jr., Place: National Institute of Allergy and Program Analyst, Office of Federal Advisory Name of Committee: National Institute of Infectious Diseases, National Institutes of Committee Policy. Mental Health Special Emphasis Panel; Health, 5601 Fishers Lane, Room 3E71, [FR Doc. 2020–12254 Filed 6–4–20; 8:45 am] Dysregulation and Proximal Risk for Suicide Rockville, MD 20892 (Telephone Conference Review Meeting (R01 & R21). BILLING CODE 4140–01–P Call). Date: July 9, 2020. Contact Person: Ruth S. Grossman, DDS, Time: 12:00 p.m. to 5:00 p.m. Scientific Review Officer, Office Scientific DEPARTMENT OF HEALTH AND Agenda: To review and evaluate grant Review, National Institute of General Medical HUMAN SERVICES applications. Sciences, National Institutes of Health, 45 Place: National Institutes of Health, Center Drive, Room 3AN12J, Bethesda, MD National Institutes of Health Neuroscience Center, 6001 Executive Blvd., 20892, [email protected]. Rockville, MD 20852 (Telephone Conference This notice is being published less than 15 Call). National Institute of Mental Health; days prior to the meeting due to the timing Contact Person: Rebecca Steiner Garcia, Notice of Closed Meetings limitations imposed by the review and Ph.D., Scientific Review Officer, Division of funding cycle. Pursuant to section 10(d) of the Extramural Activities, National Institute of Federal Advisory Committee Act, as Mental Health, NIH, Neuroscience Center, (Catalogue of Federal Domestic Assistance amended, notice is hereby given of the 6001 Executive Blvd., Room 6149, MSC 9608, Program Nos. 93.855, Allergy, Immunology, following meetings. Bethesda, MD 20892–9608, 301–443–4525, and Transplantation Research; 93.856, The meetings will be closed to the [email protected]. Microbiology and Infectious Diseases Research, National Institutes of Health, HHS) public in accordance with the (Catalogue of Federal Domestic Assistance provisions set forth in sections Program No. 93.242, Mental Health Research Dated: June 1, 2020. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Grants, National Institutes of Health, HHS) Tyeshia M. Roberson, as amended. The grant applications and Dated: June 2, 2020. Program Analyst, Office of Federal Advisory the discussions could disclose Committee Policy. confidential trade secrets or commercial Melanie J. Pantoja, [FR Doc. 2020–12252 Filed 6–4–20; 8:45 am] property such as patentable material, Program Analyst, Office of Federal Advisory and personal information concerning Committee Policy. BILLING CODE 4140–01–P individuals associated with the grant [FR Doc. 2020–12253 Filed 6–4–20; 8:45 am] applications, the disclosure of which BILLING CODE 4140–01–P would constitute a clearly unwarranted invasion of personal privacy.
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DEPARTMENT OF HEALTH AND 7W624, Rockville, MD 20850 (Telephone amended, notice is hereby given of the HUMAN SERVICES Conference Call). following meeting. Contact Person: Timothy C. Meeker, M.D., The meeting will be closed to the National Institutes of Health Ph.D., Scientific Review Officer, Special public in accordance with the Review Branch, Division of Extramural provisions set forth in sections Activities, National Cancer Institute, NIH, National Cancer Institute; Notice of 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Closed Meetings 9609 Medical Center Drive, 7W624, Rockville, MD 20850, 240–276–6464, as amended. The grant applications and Pursuant to section 10(d) of the [email protected]. the discussions could disclose Federal Advisory Committee Act, as Name of Committee: National Cancer confidential trade secrets or commercial amended, notice is hereby given of the Institute Special Emphasis Panel; Cancer property such as patentable material, following meetings. Center Support Grant (P30). and personal information concerning The meetings will be closed to the Date: July 16, 2020. individuals associated with the grant Time: 1:00 p.m. to 3:00 p.m. public in accordance with the applications, the disclosure of which Agenda: To review and evaluate grant would constitute a clearly unwarranted provisions set forth in sections applications. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Place: National Cancer Institute, Shady invasion of personal privacy. as amended. The grant applications and Grove, 9609 Medical Center Drive, Room Name of Committee: National Institute of the discussions could disclose 7W110, Rockville, MD 20850 (Telephone Allergy and Infectious Diseases Special confidential trade secrets or commercial Conference Call). Emphasis Panel HIV/AIDS Clinical Trials property such as patentable material, Contact Person: Caterina Bianco, M.D, Units (UM1 Clinical Trial Required). and personal information concerning Ph.D., Chief, Scientific Review Officer, Date: June 15, 2020. Resources and Training Review Branch, Time: 1:00 p.m. to 3:00 p.m. individuals associated with the grant Division of Extramural Activities, National Agenda: To review and evaluate grant applications, the disclosure of which Cancer Institute, NIH, 9609 Medical Center applications. would constitute a clearly unwarranted Drive, Room 7W110, Rockville, MD 20850, Place: National Institute of Allergy and invasion of personal privacy. 240–276–6459, [email protected]. Infectious Diseases, National Institutes of Name of Committee: National Cancer Name of Committee: National Cancer Health, 5601 Fishers Lane, Room 3F40, Institute Special Emphasis Panel; Institute Initial Review Group; Subcommittee Rockville, MD 20892 (Telephone Conference Collaborative Research at the NIH Clinical A Cancer Centers. Call). Center. Date: July 30, 2020. Contact Person: Robert C. Unfer, Ph.D., Date: July 9, 2020. Time: 12:00 p.m. to 5:00 p.m. Scientific Review Officer, Scientific Review Time: 1:00 p.m. to 4:00 p.m. Agenda: To review and evaluate grant Program, National Institute of Allergy and Agenda: To review and evaluate grant applications. Infectious Diseases, National Institutes of applications. Place: National Cancer Institute, Shady Health, 5601 Fishers Lane, Room 3F40, Place: National Cancer Institute, Shady Grove, 9609 Medical Center Drive, Room Rockville, MD 20892–9823, 240–669–5035, Grove, 9609 Medical Center Drive, Room 7W530, Rockville, MD 20850 (Telephone [email protected]. 7W240, Rockville, MD 20850 (Telephone Conference Call). This notice is being published less than 15 Conference Call). Contact Person: Shamala K. Srinivas, days prior to the meeting due to the timing Contact Person: Hasan Siddiqui, Ph.D., Ph.D., Associate Director, Office of Referral, limitations imposed by the review and Scientific Review Officer, Special Review Review, and Program Coordination, Division funding cycle. Branch, Division of Extramural Activities, of Extramural Activities, National Cancer (Catalogue of Federal Domestic Assistance National Cancer Institute, NIH 9609, Medical Institute, NIH, 9609 Medical Center Drive, Program Nos. 93.855, Allergy, Immunology, Center Drive, Room 7W240, Rockville, MD Room 7W530, Rockville, MD 20850, 240– and Transplantation Research; 93.856, 20850, 240–276–5122, hasan.siddiqui@ 276–6442, [email protected]. Microbiology and Infectious Diseases nih.gov. (Catalogue of Federal Domestic Assistance Research, National Institutes of Health, HHS) Program Nos. 93.392, Cancer Construction; Name of Committee: National Cancer Dated: June 1, 2020. Institute Special Emphasis Panel; Stimulating 93.393, Cancer Cause and Prevention Tyeshia M. Roberson, Access to Research in Residency (StARR) Research; 93.394, Cancer Detection and (R38). Diagnosis Research; 93.395, Cancer Program Analyst, Office of Federal Advisory Date: July 9, 2020. Treatment Research; 93.396, Cancer Biology Committee Policy. Time: 2:00 p.m. to 4:00 p.m. Research; 93.397, Cancer Centers Support; [FR Doc. 2020–12257 Filed 6–4–20; 8:45 am] 93.398, Cancer Research Manpower; 93.399, Agenda: To review and evaluate grant BILLING CODE 4140–01–P applications. Cancer Control, National Institutes of Health, Place: National Cancer Institute, Shady HHS) Grove, 9609 Medical Center Drive, Room Dated: June 2, 2020. DEPARTMENT OF HEALTH AND 7W602, Rockville, MD 20850 (Telephone Melanie J. Pantoja, HUMAN SERVICES Conference Call). Program Analyst, Office of Federal Advisory Contact Person: Delia Tang, M.D., Committee Policy. National Institutes of Health Scientific Review Officer, Resources Training [FR Doc. 2020–12256 Filed 6–4–20; 8:45 am] and Review Branch, Division of Extramural National Institute of Allergy and Activities, National Cancer Institute, NIH, BILLING CODE 4140–01–P Infectious Diseases; Notice of Closed 9609 Medical Center Drive, Room 7W602, Rockville, MD 20850, 240–276–6456, tangd@ Meeting mail.nih.gov. DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the Name of Committee: National Cancer HUMAN SERVICES Federal Advisory Committee Act, as Institute Special Emphasis Panel; amended, notice is hereby given of the Comprehensive Partnerships to Advance National Institutes of Health following meeting. Cancer Health Equity (CPACHE) (U54). The meeting will be closed to the Date: July 9, 2020. National Institute of Allergy and public in accordance with the Time: 12:00 p.m. to 5:00 p.m. Infectious Diseases Notice of Closed Agenda: To review and evaluate grant Meeting provisions set forth in sections applications. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Place: National Cancer Institute, Shady Pursuant to section 10(d) of the as amended. The grant applications and Grove, 9609 Medical Center Drive, Room Federal Advisory Committee Act, as the discussions could disclose
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confidential trade secrets or commercial data, analytic approaches and proven Anecdotal reports and experiences property such as patentable material, indicators. OASH also seeks to identify from the frontlines, and emerging data, and personal information concerning opportunities to strengthen the U.S. indicate that the COVID–19 response individuals associated with the grant healthcare system, as a whole, through has consequentially resulted in limited applications, the disclosure of which public-private partnerships in data access to routine and emergency would constitute a clearly unwarranted sharing and comprehensive analytics. healthcare services in many, if not most, invasion of personal privacy. OASH welcomes any public feedback communities. In regions with significant Name of Committee: National Institute of related to how these questions should burdens of COVID–19 cases, local health Allergy and Infectious Diseases Special be addressed and/or potential solutions. systems have faced challenges with Emphasis Panel Emergency Awards: Rapid The set of questions is available in the surge capacity needed to treat COVID– Investigation of Severe Acute Respiratory SUPPLEMENTARY INFORMATION section 19 patients. Furthermore, mitigation Syndrome Coronavirus 2 (SARS–CoV–2) and below. strategies to reduce the transmission of Coronavirus Disease 2019 (COVID–19). Date: June 22, 2020. DATES: To be assured consideration, COVID–19 have altered the delivery of Time: 11:00 a.m. to 4:00 p.m. comments must be received at the email healthcare services across the board, Agenda: To review and evaluate grant address provided below, no later than with many organizations shifting to applications. midnight Eastern Time (ET) on July 8, providing care via telehealth, reducing Place: National Institute of Allergy and 2020. the scale or scope of their healthcare Infectious Diseases, National Institutes of ADDRESSES: Individuals are encouraged services or eliminating access, Health, 5601 Fishers Lane, Room 3E70, altogether. Also, human behaviors Rockville, MD 20892 (Telephone Conference to submit responses electronically to Call). [email protected]. Please around accessing healthcare have been Contact Person: Mohammed S. Aiyegbo, indicate ‘‘RFI RESPONSE’’ in the altered in the midst of recommendations Ph.D., Scientific Review Officer, AIDS subject line of your email. Submissions for social isolation/distancing. Research Review Branch, Scientific Review received after the deadline will not be Response to a health crisis, such as Program, Division of Extramural Activities, reviewed. Responses to this notice are the COVID–19 pandemic, necessitates a National Institute of Allergy and Infectious not offers and cannot be accepted by the robust public health response and a Diseases, National Institutes of Health, 5601 Fishers Lane, Room 3E70, Rockville, MD federal government to form a binding highly resilient, adaptable health care 20852, 301–761–7106, mohammed.aiyegbo@ contract or issue a grant. Respond delivery system that can meet the nih.gov. concisely and in plain language. You evolving needs of communities. This notice is being published less than 15 may use any structure or layout that Although there is not a common days prior to the meeting due to the timing presents your information well. You definition of ‘‘health system resilience’’ limitations imposed by the review and may respond to some or all of our (encompassing the provision of direct funding cycle. questions, and you can suggest other clinical care, preventive medicine and (Catalogue of Federal Domestic Assistance factors or relevant questions. You may public health activities), the most Program Nos. 93.855, Allergy, Immunology, also include links to online material or referenced definition defines it as ‘‘the and Transplantation Research; 93.856, interactive presentations. Clearly mark capacity of health actors, institutions, Microbiology and Infectious Diseases any proprietary information, and place and populations to prepare for and Research, National Institutes of Health, HHS) it in its own section or file. Your effectively respond to crises; maintain Dated: June 1, 2020. response will become government core functions when a crisis hits; and, Tyeshia M. Roberson, property, and we may publish some of informed by lessons learned during the Program Analyst, Office of Federal Advisory its non-proprietary content. crisis, reorganize if conditions require Committee Policy. FOR FURTHER INFORMATION CONTACT: Dr. it.’’ 1 Maintaining health system [FR Doc. 2020–12249 Filed 6–4–20; 8:45 am] Leith States, Chief Medical Officer, resilience, particularly during and BILLING CODE 4140–01–P Office of the Assistant Secretary for following the COVID–19, is a critical Health (202) 260–2873. concern in order to ensure the delivery SUPPLEMENTARY INFORMATION: of high-quality care, from prevention to DEPARTMENT OF HEALTH AND high-acuity inpatient care, for all HUMAN SERVICES Background conditions. On January 31st, the U.S. Department Scope and Assumptions Request for Information—Long-Term of Health and Human Services (HHS) Monitoring of Health Care System declared a public health emergency due • The purpose of this Request for Resilience to the outbreak of the 2019 Novel Information (RFI) is to gain a more AGENCY: Office of the Assistant Coronavirus, now known as COVID–19. comprehensive understanding of how Secretary for Health, Office of the To date, the federal government has organizations, networks, non-federal Secretary, Department of Health and engaged in intensive efforts to prevent government agencies, and other relevant Human Services. and mitigate the transmission of stakeholders in the United States have ACTION: Request for Information. COVID–19 within the United States. operationally defined ‘‘resilience’’ in These efforts required unprecedented their respective components of the SUMMARY: The Office of the Assistant changes in the functioning of private health system; including their use of Secretary for Health (OASH) in the businesses, personal lives, the provision data, analytic approaches and proven Department of Health and Human of public services and healthcare. Early indicators. These indicators and data Services seeks to gain a more interventions focused primarily on the sets should be able to quantify the comprehensive understanding of how redirection of the provision of impact of disturbances, such as the organizations, networks, non-federal healthcare resources towards COVID–19 pandemic, on health care government agencies, and other relevant individuals with COVID–19 and availability, access, timeliness, and stakeholders in the United States have mitigation strategies to prevent the quality. operationally defined ‘‘resilience’’ in spread of the virus, including markedly their respective components of the diminished access to health system 1 Available at: https://www.thelancet.com/action/ health system; including their use of services. showPdf?pii=S0140-6736%2815%2960755-3.
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• The RFI also seeks to identify Public-Private Partnerships Affairs, OMB. Comments should be opportunities to strengthen the U.S. 1. Provide ideas of the form and identified by Docket ID: TSA–2013– healthcare system, as a whole, through function of a public-private partnership 0001 and sent to the Federal public-private partnerships in data model to continually assess and monitor eRulemaking Portal, http:// sharing and comprehensive analytics. health system resilience and individual www.regulations.gov. Please follow the The RFI seeks to identify organizations as well as population health outcomes? portal instructions for submitting that would be interested in discussing 2. What private and public sectors comments. This process is conducted in the form and function of such should HHS engage as part of such a accordance with 5 CFR 1320.1. collaborations. FOR FURTHER INFORMATION CONTACT: • collaborative effort? The definition of ‘‘health’’ system HHS encourages all potentially Christina A. Walsh, TSA PRA Officer, or services and/or ‘‘healthcare’’ system interested parties—individuals, Information Technology (IT), TSA–11, or services, for the purposes of this RFI, associations, governmental, non- Transportation Security Administration, is in the broadest sense. We seek to governmental organizations, academic 601 South 12th Street, Arlington, VA understand resilience implications on institutions, and private sector 20598–6011; telephone (571) 227–2062; the provision of health services in all entities—to respond. To facilitate email [email protected]. dimensions. review of the responses, please SUPPLEMENTARY INFORMATION: TSA Our Questions reference the question category and published a Federal Register notice, number in your response. with a 60-day comment period soliciting Barrier and Opportunities for Health comments, of the following collection of Dated: June 2, 2020. System Resilience information on March 4, 2020, 85 FR 1. What have been the most Paul Reed, 12800. significant barriers to assessing, Deputy Assistant Secretary for Health, Comments Invited monitoring, and strengthening health Medicine & Science, Office of the Assistant Secretary for Health. system resilience in the U.S.? In accordance with the Paperwork 2. What policies and programs can be [FR Doc. 2020–12238 Filed 6–4–20; 8:45 am] Reduction Act of 1995 (44 U.S.C. 3501 improved to mitigate the risk of COVID– BILLING CODE 4510–28–P et seq.), an agency may not conduct or 19 and avoid negative impacts on sponsor, and a person is not required to patient outcomes? respond to, a collection of information 3. What scientific advances are DEPARTMENT OF HOMELAND unless it displays a valid OMB control needed to assess and address SECURITY number. The ICR documentation will be vulnerabilities in the U.S. healthcare available at http://www.reginfo.gov system during the COVID–19 response Transportation Security Administration upon its submission to OMB. Therefore, and in future disturbances to the in preparation for OMB review and Revision of an Agency Information healthcare system? approval of the following information Collection Activity Under OMB Review: collection, TSA is soliciting comments Key Indicators & Data Sources of Health Security Appointment Center (SAC) to— System Resilience Visitor Request Form and Foreign (1) Evaluate whether the proposed 1. What is your definition of health National Vetting Request information requirement is necessary for system resilience within the context of AGENCY: Transportation Security the proper performance of the functions your organization? Does the definition Administration, DHS. of the agency, including whether the of resilience need to be defined ACTION: 30-Day Notice. information will have practical utility; differently based on geographic region (2) Evaluate the accuracy of the and/or the domain of healthcare being SUMMARY: This notice announces that agency’s estimate of the burden; assessed? the Transportation Security (3) Enhance the quality, utility, and 2. What key indicators or data sets are Administration (TSA) has forwarded the clarity of the information to be being used within your organization to Information Collection Request (ICR), collected; and assess health system resilience? Office of Management and Budget (4) Minimize the burden of the 3. What existing methods, data (OMB) control number 1652–0068, collection of information on those who sources, and analytic approaches are abstracted below to OMB for review and are to respond, including using being used to assess and monitor health approval of a revision of the currently appropriate automated, electronic, system resilience in private healthcare approved collection under the mechanical, or other technological systems? Paperwork Reduction Act (PRA). The collection techniques or other forms of 4. What selected health conditions collection involves gathering information technology. should be used as indicators of information from individuals who plan Consistent with the requirements of healthcare availability, access, to visit all TSA facilities in the National Executive Order (E.O.) 13771, Reducing timeliness, and quality, in terms of Capital Region (NCR). In addition, TSA Regulation and Controlling Regulatory treatment and preventive services? is revising the collection to transition Costs, and E.O. 13777, Enforcing the Regulatory Reform Agenda, TSA is also Public/Private Data Sources TSA Forms 2802, 2816A, and 2816B requesting comments on the extent to 1. What data sources does your into Common Forms to streamline the information collection process. which this request for information could organization use to assess the resilience be modified to reduce the burden on DATES: of the health system? What demographic Send your comments by July 6, respondents. populations are covered by these data 2020. A comment to OMB is most systems? Do these data systems capture effective if OMB receives it within 30 Information Collection Requirement urban-rural and other geographic days of publication. Title: Security Appointment Center differences? ADDRESSES: Interested persons are (SAC) Visitor Request Form and Foreign 2. How are you using these data invited to submit written comments on National Vetting Request. sources to inform your public health the proposed information collection to Type of Request: Revision of a response? the Office of Information and Regulatory currently approved collection.
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OMB Control Number: 1652–0068. the National Park Service (NPS) are public record. We will include or Form(s): TSA Forms 2802, 2816A, and proposing to renew an information summarize each comment in our request 2816B. collection. to OMB to approve this ICR. Before Affected Public: Visitors to TSA DATES: Interested persons are invited to including your address, phone number, facilities in the National Capital Region. submit comments on or before August 4, email address, or other personal Abstract: The Secretary of the identifying information in your Department of Homeland Security 2020. ADDRESSES: Send your comments on comment, you should be aware that (DHS) is authorized to protect property your entire comment—including your owned, occupied, or secured by the this information collection request (ICR) by mail to Phadrea Ponds, Acting NPS personal identifying information—may Federal Government. See 40 U.S.C. be made publicly available at any time. 1315. See also 41 CFR 102–81.15 Information Collection Clearance Officer, National Park Service, 1201 While you can ask us in your comment (requires Federal agencies to be to withhold your personal identifying responsible for maintaining security at Oakridge Drive, Fort Collins, CO 80525; or by email to [email protected]. information from public review, we their own or leased facilities). To cannot guarantee that we will be able to implement this requirement, DHS Please reference Office of Management and Budget (OMB) Control Number do so. policy requires all visitors to DHS Abstract: As required by the facilities in the NCR 1 to have a criminal 1024–0216 in the subject line of your comments. Government Performance and Results history records check through the Act (GPRA) codified in Public Law 103– National Crime Information Center FOR FURTHER INFORMATION CONTACT: To 62, the NPS uses the Visitor Survey (NCIC) system before accessing the request additional information about Card (VSC) to monitor and report facility. In reviewing the NCIC results, this ICR, contact Bret Meldrum by email performance, accomplishments and _ TSA will consider whether an at bret [email protected], or by progress toward pre-established individual could potentially pose a telephone at 970–267–7295. management goals. The VSC is used to threat to the safety of TSA employees, SUPPLEMENTARY INFORMATION: In measure each park unit’s performance contractors, visitors, or the facility. TSA accordance with the PRA and 5 CFR related to NPS Management Policy and is revising the collection to transition 1320.8(d)(1), all information collections GPRA Goals IIa1 (visitor satisfaction) the applicable forms, TSA Forms 2802, require approval under the PRA. We and IIb1 (visitor understanding and 2816A, and 2816B, into Common may not conduct or sponsor and you are appreciation). Each year, approximately Forms. Common Forms permit Federal not required to respond to a collection 330 participating NPS units use the VSC agency users beyond the agency that of information unless it displays a to collect data to evaluate visitor created the form (e.g., Department of currently valid OMB control number. perception and satisfaction of service Homeland Security or U.S. Office of As part of our continuing effort to and facility quality, awareness of park Personnel Management) to streamline reduce paperwork and respondent significance, and basic demographic the information collection process in burdens, we invite the public and other information. Park managers, coordination with OMB. Federal agencies to comment on new, superintendents and the NPS Social Number of Respondents: 29,595. proposed, revised, and continuing Science Program use the information Estimated Annual Burden Hours: An collections of information. This helps us collected to understand visitor use and estimated 226 hours annually. assess the impact of our information improve park services and facilities to Dated: June 2, 2020. collection requirements and minimize develop long-term strategic plans, Christina A. Walsh, the public’s reporting burden. It also annual goals, and performance TSA Paperwork Reduction Act Officer, helps the public understand our improvement plans. Information Technology. information collection requirements and Title of Collection: National Park [FR Doc. 2020–12251 Filed 6–4–20; 8:45 am] provide the requested data in the Service Visitor Survey Card. BILLING CODE 9110–05–P desired format. OMB Control Number: 1024–0216. We are especially interested in public Form Number: None. comment addressing the following: Type of Review: Extension of a (1) Whether or not the collection of DEPARTMENT OF THE INTERIOR currently approved collection. information is necessary for the proper Respondents/Affected Public: General National Park Service performance of the functions of the Public, any person visiting the national agency, including whether or not the park during the sampling period. [NPS–WASO–NRSS–EQD–SSB– information will have practical utility; Total Estimated Number of Annual NPS0028676; PPWONRADE3, (2) The accuracy of our estimate of the Respondents: 62,270. PPMRSNR1Y.NM000 (200); OMB Control burden for this collection of Total Estimated Number of Annual Number 1024–0216] information, including the validity of Responses: 62,270. Agency Information Collection the methodology and assumptions used; Estimated Completion Time per Activities; National Park Service Visitor (3) Ways to enhance the quality, Response: 3 minutes to complete the Survey Card utility, and clarity of the information to full survey. be collected; and Total Estimated Number of Annual AGENCY: National Park Service, Interior. (4) How might the agency minimize Burden Hours: 5,525 hours. ACTION: Notice of information collection; the burden of the collection of Respondent’s Obligation: Voluntary. request for comment. information on those who are to Frequency of Collection: One-time, on respond, including through the use of occasion. SUMMARY: In accordance with the appropriate automated, electronic, Total Estimated Annual Nonhour Paperwork Reduction Act of 1995, we, mechanical, or other technological Burden Cost: None. collection techniques or other forms of An agency may not conduct or 1 TSA facilities in the NCR include TSA information technology, e.g., permitting sponsor nor is a person required to Headquarters, the Freedom Center, the respond to a collection of information Transportation Security Integration Facility (TSIF), electronic submission of response. the Metro Park office complex (Metro Park), and the Comments that you submit in unless it displays a currently valid OMB Annapolis Junction facility (AJ). response to this notice are a matter of control number.
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The authority for this action is the parties should contact the Staff Director Office of Management and Budget Paperwork Reduction Act of 1995 (44 for the Board (see FOR FURTHER (OMB) Control Number 1012–0008 in U.S.C. 3501 et seq.). INFORMATION CONTACT), for advance the subject line of your comments. placement on the public speaker list for Phadrea Ponds, FOR FURTHER INFORMATION CONTACT: To this meeting. Members of the public request additional information about Information Collection Clearance Officer, may also choose to submit written National Park Service. this ICR, contact Mr. Hans Meingast, comments by emailing them to joshua_ Financial Services, FM, ONRR by email [FR Doc. 2020–11716 Filed 6–4–20; 8:45 am] [email protected]. at [email protected] or by BILLING CODE 4312–52–P Public Disclosure of Comments: telephone at (303) 231–3221. To inquire Before including your address, phone about form ONRR–4425, please contact number, email address, or other DEPARTMENT OF THE INTERIOR Ms. April Lockler, Reference & personal identifying information in your Reporting Management (RRM), ONRR National Park Service comment, you should be aware that by email at [email protected] or by your entire comment—including your telephone at (303) 231–3105. [NPS–WASO–D–COS–POL–30231; personal identifying information—may PPWODIREP0; PPMPSAS1Y.YP0000] SUPPLEMENTARY INFORMATION: In be made publicly available at any time. accordance with the PRA and 5 CFR While you can ask us in your comment Notice of the June 30, 2020, 1320.8(d)(1), all information collections to withhold your personal identifying Teleconference Meeting of the National require approval under the PRA. ONRR information from public review, we Park System Advisory Board may not conduct or sponsor and you are cannot guarantee that we will be able to not required to respond to a collection AGENCY: National Park Service, Interior. do so. of information unless it displays a ACTION: Notice of teleconference. Authority: 5 U.S.C. Appendix 2. currently valid OMB control number. As part of our continuing effort to SUMMARY: In accordance with the Alma Ripps, reduce paperwork and respondent Federal Advisory Committee Act of Chief, Office of Policy. 1972, the National Park Service (NPS) is burdens, ONRR is inviting the public [FR Doc. 2020–12247 Filed 6–4–20; 8:45 am] and other Federal agencies to comment hereby giving notice that the National BILLING CODE 4312–52–P Park System Advisory Board (Board) on new, proposed, revised, and will meet as noted below. continuing collections of information. This helps ONRR to assess the impact DATES: DEPARTMENT OF THE INTERIOR The teleconference meeting will of our information collection be held on Tuesday, June 30, 2020, from Office of Natural Resources Revenue requirements and minimize the public’s 11:00 a.m., to 5:00 p.m., Eastern reporting burden. It also helps the Daylight Time. For deadlines and [Docket No. ONRR–2011–0009; DS63644000 public understand our information instructions on registering to DRT000000.CH7000 201D1113RT; OMB Control Number 1012–0008] collection requirements and provide the participate, submitting written material requested data in the desired format. and giving an oral presentation, please Agency Information Collection ONRR is especially interested in see guidance under SUPPLEMENTARY Activities; Collection of Monies Due public comments addressing the INFORMATION. the Federal Government following: FOR FURTHER INFORMATION CONTACT: (1) Whether or not the collection of Joshua Winchell, Staff Director for the AGENCY: Office of Natural Resources information is necessary for the proper National Park System Advisory Board, Revenue, Interior. performance of the functions of the Office of Policy, National Park Service, ACTION: Notice of information collection; agency, including whether or not the telephone (202) 513–7053, or email request for comment. information will have practical utility; [email protected]. (2) The accuracy of our estimate of the SUMMARY: The Office of Natural SUPPLEMENTARY INFORMATION: burden for this collection of The Board Resources Revenue (ONRR) is proposing information, including the validity of has been established by authority of the to renew an information collection. the methodology and assumptions used; Secretary of the Interior (Secretary) Through this Information Collection (3) Ways to enhance the quality, under 54 U.S.C. 100906, and is Request (ICR), ONRR seeks renewed utility, and clarity of the information to regulated by the Federal Advisory authority to collect information related be collected; and Committee Act. to the paperwork requirements under its The Board will convene its meeting at (4) How might the agency minimize regulations covering cross-lease netting 11:00 a.m. and adjourn at 5:00 p.m. The the burden of the collection of in the calculation of late-payment Board will receive briefings and discuss information on those who are to interest; a lessee’s designation of topics related to improving the visitor respond, including through the use of designee; and Tribal permission for experience in NPS managed units and appropriate automated, electronic, recoupment on Indian oil and gas workforce planning for the next century. mechanical, or other technological leases. The final agenda and briefing materials collection techniques or other forms of will be posted to the Board’s website DATES: Interested persons are invited to information technology, e.g., permitting prior to the meeting at https:// submit comments on or before August 4, electronic submission of response. www.nps.gov/advisoryboard.htm. 2020. Comments that you submit in The meeting is open to the public. ADDRESSES: Send your comments on response to this notice are a matter of Interested persons may choose to make this information collection request (ICR) public record. ONRR will include or oral comments at the meeting during the by mail to Mr. Luis Aguilar, Regulatory summarize each comment in its request designated time for this purpose. Specialist, ONRR, Building 85, MS to OMB to approve this ICR. Before Depending on the number of people 64400B, Denver Federal Center, West including your address, phone number, wishing to comment and the time 6th Ave. and Kipling St., Denver, email address, or other personal available, the amount of time for oral Colorado 80225, or by email to identifying information in your comments may be limited. Interested [email protected]. Please reference comment, you should be aware that
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your entire comment—including your based on financial lease distribution Total Estimated Number of Annual personal identifying information—may information. Current regulations under Responses: 35. be made publicly available at any time. § 1218.42 provide that an overpayment Estimated Completion Time per While you can ask us in your comment on a lease or leases may be offset against Response: 1.68 hrs. to withhold your personal identifying an underpayment on a different lease or Total Estimated Number of Annual information from public review, we leases to determine the net payment Burden Hours: 59 hours. cannot guarantee that we will be able to subject to interest when certain Respondent’s Obligation: Mandatory. do so. conditions are met. ONRR calls this Frequency of Collection: Occasion. Abstract: The Secretary of the United process cross-lease netting. The payor Total Estimated Annual Nonhour States Department of the Interior is must demonstrate that a cross-lease Burden Cost: We have identified no responsible for mineral resource netting exception exists by submitting ‘‘non-hour cost’’ burden associated with development on Federal and Indian production reports, pipeline allocation this collection of information. lands and the Outer Continental Shelf reports, or other similar documentary An agency may not conduct or (OCS). Under various laws, the evidence. This information is necessary sponsor and a person is not required to Secretary’s responsibility is to carry out for ONRR to calculate the correct respond to a collection of information a comprehensive inspection, collection, interest amount and ensure that it unless it displays a currently valid OMB and fiscal and production accounting collects in full all monies owed to the control number. and auditing system that provides the Federal Government. The authority for this action is the capability to: (1) Accurately determine (2) Designation of Designee: The Paperwork Reduction Act of 1995 (44 mineral royalties, interest, and other Federal Oil and Gas Royalty U.S.C. 3501 et seq.). payments owed, (2) collect and account Management Act (FOGRMA) defines a Kimbra G. Davis, for such amounts in a timely manner, ‘‘lessee’’ to include the record-title and (3) disburse the funds collected. holder and also any operating-rights Director, Office of Natural Resources Revenue. The Secretary also has a trust owners if those rights were severed from responsibility to seek advice and the record title. See 30 U.S.C. 1702(7). [FR Doc. 2020–12182 Filed 6–4–20; 8:45 am] information from Indian beneficiaries. FOGRMA states that operating-rights BILLING CODE 4335–30–P ONRR performs the minerals revenue owners are primarily liable and record- management functions for the Secretary title owners are secondarily liable for and assists the Secretary in carrying out payment obligations on Federal oil and INTERNATIONAL TRADE the Department’s trust responsibility for gas leases. See 30 U.S.C. 1712(a). A COMMISSION Indian lands. lessee may designate a person to make The laws pertaining to mineral leases [Investigation Nos. 701–TA–646 and 731– on Federal and Indian lands and the payments on its behalf. To do so, TA–1502–1516 (Preliminary)] OCS are posted at http://www.onrr.gov/ FOGRMA requires the lessee to ‘‘notify Laws_R_D/PubLaws/default.htm. the Secretary . . . in writing of such Prestressed Concrete Steel Wire (a) General Information: When a designation.’’ ONRR created form Strand From Argentina, Colombia, company or an individual enters into a ONRR–4425, Designation Form for Egypt, Indonesia, Italy, Malaysia, lease to explore, develop, produce, and Royalty Payment Responsibility, to Netherlands, Saudi Arabia, South dispose of minerals from Federal or request the information necessary for a Africa, Spain, Taiwan, Tunisia, Turkey, Indian lands, that company or lessee to comply with FOGRMA’s Ukraine, and United Arab Emirates requirement to designate a designee. individual agrees to pay the lessor a Determinations royalty share in value or volume of ONRR requires this information to production from the leased lands. The ensure proper mineral revenue On the basis of the record 1 developed lessee also agrees to report certain collection. in the subject investigations, the United information to the lessor related to the (3) Tribal Permission for Recoupment States International Trade Commission disposition of the minerals. This on Indian Oil and Gas Leases: A lessee (‘‘Commission’’) determines, pursuant information is generally available may recoup overpayments on Tribal to the Tariff Act of 1930 (‘‘the Act’’), within a lessee’s records or others Indian leases against royalties or other that there is a reasonable indication that involved in developing, transporting, revenues owed in a month on other an industry in the United States is processing, purchasing, or selling leases where that Tribe is the lessor. To materially injured by reason of imports Federal and Indian minerals. The do so, lessees must comply with of prestressed concrete steel wire strand information collected includes data § 12l8.53(b), which requires a lessee to (‘‘PC strand’’) from Argentina, necessary to ensure correct product receive a Tribe’s written permission to Colombia, Egypt, Indonesia, Italy, valuation and royalty payments. recoup overpayments on one lease Malaysia, Netherlands, Saudi Arabia, (b) Information Collections: This ICR against another lease where that Tribe is South Africa, Spain, Taiwan, Tunisia, covers unique reporting circumstances the lessor. The payor must provide Turkey, Ukraine, and United Arab under 30 CFR part 1218 addressing (1) ONRR with a copy of the Tribe’s written Emirates (‘‘UAE’’) provided for in cross-lease netting in the calculation of permission. subheading 7312.10.30 of the late-payment interest; (2) a lessee’s Title: Collection of Monies Due the Harmonized Tariff Schedule of the designation of designee; and (3) Tribal Federal Government. United States, that are alleged to be sold permission for recoupment on Indian oil OMB Control Number: 1012–0008. in the United States at less than fair and gas leases. Bureau Form Number: Form ONRR– value (‘‘LTFV’’) and to be subsidized by (1) Cross-Lease Netting in Calculation 4425. the government of Turkey.2 of Late-Payment Interest: Regulations Type of Review: Extension of a under § 1218.54 require ONRR to assess currently approved collection. 1 The record is defined in sec. 207.2(f) of the interest on unpaid or underpaid Respondents/Affected Public: Federal Commission’s Rules of Practice and Procedure (19 and Indian lessees. CFR 207.2(f)). amounts. ONRR distributes late- 2 Prestressed Concrete Steel Wire Strand From payment interest revenues to States, Total Estimated Number of Annual Argentina, Colombia, Egypt, Indonesia, Italy, Indian Tribes, and the U.S. Treasury Respondents: 35. Malaysia, the Netherlands, Saudi Arabia, South
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Commencement of Final Phase connection therewith was given by finding of no violation. The Investigations posting copies of the notice in the Office investigation is terminated. Pursuant to section 207.18 of the of the Secretary, U.S. International FOR FURTHER INFORMATION CONTACT: Commission’s rules, the Commission Trade Commission, Washington, DC, Richard P. Hadorn, Esq., Office of the also gives notice of the commencement and by publishing the notice in the General Counsel, U.S. International of the final phase of its investigations. Federal Register of April 23, 2020 (85 Trade Commission, 500 E Street SW, The Commission will issue a final phase FR 22751). In light of the restrictions on Washington, DC 20436, telephone (202) notice of scheduling, which will be access to the Commission building due 205–3179. Copies of non-confidential published in the Federal Register as to the COVID–19 pandemic, the documents filed in connection with this provided in section 207.21 of the Commission conducted its conference investigation may be viewed on the Commission’s rules, upon notice from through written questions, submissions Commission’s electronic docket (EDIS) the U.S. Department of Commerce of opening remarks and written at https://edis.usitc.gov. For help (‘‘Commerce’’) of affirmative testimony, written responses to accessing EDIS, please email preliminary determinations in the questions, and postconference briefs. [email protected]. General investigations under sections 703(b) or All persons who requested the information concerning the Commission 733(b) of the Act, or, if the preliminary opportunity were permitted to may also be obtained by accessing its determinations are negative, upon participate. internet server at https://www.usitc.gov. notice of affirmative final The Commission made these Hearing-impaired persons are advised determinations in those investigations determinations pursuant to sections that information on this matter can be under sections 705(a) or 735(a) of the 703(a) and 733(a) of the Act (19 U.S.C. obtained by contacting the Act. Parties that filed entries of 1671b(a) and 1673b(a)). It completed Commission’s TDD terminal, telephone appearance in the preliminary phase of and filed its determinations in these (202) 205–1810. the investigations need not enter a investigations on June 1, 2020. The SUPPLEMENTARY INFORMATION: The separate appearance for the final phase views of the Commission are contained Commission instituted this investigation of the investigations. Industrial users, in USITC Publication 5062 (June 2020), on October 19, 2018, based on a and, if the merchandise under entitled Prestressed Concrete Steel Wire complaint filed by INVT SPE LLC investigation is sold at the retail level, Strand from Argentina, Colombia, (‘‘INVT’’) of San Francisco, California. representative consumer organizations Egypt, Indonesia, Italy, Malaysia, 83 FR 53105 (Oct. 19, 2018). The have the right to appear as parties in Netherlands, Saudi Arabia, South complaint alleges violations of section Commission antidumping and Africa, Spain, Taiwan, Tunisia, Turkey, 337 of the Tariff Act of 1930, as countervailing duty investigations. The Ukraine, and United Arab Emirates: amended (19 U.S.C. 1337) (‘‘Section Secretary will prepare a public service Investigation Nos. 701–TA–646 and 337’’), in the importation into the list containing the names and addresses 731–TA–1502–1516 (Preliminary). United States, the sale for importation, of all persons, or their representatives, By order of the Commission. or the sale within the United States after who are parties to the investigations. Issued: June 1, 2020. importation of certain LTE- and 3G- Background Lisa Barton, compliant cellular communications devices by reason of infringement of On April 16, 2020, Insteel Wire Secretary to the Commission. certain claims of U.S. Patent Nos. Products Company, Mount Airy, North [FR Doc. 2020–12153 Filed 6–4–20; 8:45 am] 7,339,949 (‘‘the ’949 patent’’); 7,848,439 Carolina, Sumiden Wire Products BILLING CODE 7020–02–P (‘‘the ’439 patent’’); 6,760,590 (‘‘the ’590 Corporation, Dickson, Tennessee, and patent’’); 7,206,587 (‘‘the ’587 patent’’); Wire Mesh Corporation, Houston, Texas, filed petitions with the INTERNATIONAL TRADE and 7,764,711 (‘‘the ’711 patent’’). Id. Commission and Commerce, alleging COMMISSION The complaint further alleges that a domestic industry exists. Id. The notice that an industry in the United States is [Investigation No. 337–TA–1138] materially injured or threatened with of investigation named as respondents Apple Inc. (‘‘Apple’’) of Cupertino, material injury by reason of subsidized Certain LTE- and 3G-Compliant California; HTC Corporation of Taoyuan imports of PC strand from Turkey and Cellular Communications Devices; City, Taiwan; HTC America, Inc. of LTFV imports of PC strand from Commission Determination To Review Seattle, Washington; ZTE Corporation of Argentina, Colombia, Egypt, Indonesia, in Part a Final Initial Determination Guangdong, China; and ZTE (USA) Inc. Italy, Malaysia, Netherlands, Saudi Finding No Violation of Section 337 of Richardson, Texas (collectively, the Arabia, South Africa, Spain, Taiwan, and, on Review, To Affirm the Final ‘‘Respondents’’). Id. at 53106. The Office Tunisia, Turkey, Ukraine, and UAE. Initial Determination’s Finding of No of Unfair Import Investigations (‘‘OUII’’) Accordingly, effective April 16, 2020, Violation; Termination of the is also named as a party. Id. the Commission instituted Investigation countervailing duty investigation No. The Commission later terminated the 701–TA–646 and antidumping duty AGENCY: U.S. International Trade investigation as to: (1) The ’711 patent, investigation Nos. 731–TA–1502–1516 Commission. Order No. 20 (Mar. 11, 2019), (Preliminary). ACTION: Notice. unreviewed by Comm’n Notice (Mar. 25, Notice of the institution of the 2019); and (2) the ’949 patent and claim Commission’s investigations and of a SUMMARY: Notice is hereby given that, 3 of the ’439 patent, Order No. 46 (July public conference to be held in on February 18, 2020, the presiding 31, 2019), unreviewed by Comm’n administrative law judge (‘‘ALJ’’) issued Notice (Aug. 20, 2019). Remaining in Africa, Spain, Taiwan, Tunisia, the Republic of a final initial determination (‘‘ID’’) the investigation are claims 3 and 4 of Turkey, Ukraine, and the United Arab Emirates: finding no violation of section 337 in the 055A;590 patent, claim 4 of the Initiation of Less-Than-Fair-Value Investigations; 85 the above-captioned investigation. The 055A;587 patent, and claims 1 and 2 of FR 28605 (May 13, 2020), and Prestressed Concrete Steel Wire Strand From the Republic of Turkey: Commission has determined to review the 055A;439 patent. Initiation of Countervailing Duty Investigation; 85 the ID in part and, on review, has On February 18, 2020, the ALJ issued FR 28610 (May 13, 2020). determined to affirm the final ID’s the final ID finding no violation of
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Section 337. See ID. On March 2, 2020, The Commission has also determined obtained by contacting the INVT and OUII each filed petitions for to deny Apple’s motion for sanctions Commission’s TDD terminal on (202) review of certain findings in the ID and because the information at issue was not 205–1810. Respondents filed a contingent petition disclosed to unauthorized persons nor SUPPLEMENTARY INFORMATION: The for review. On March 17, 2020, the was it placed on the public record. See Commission has received a complaint parties filed responses to each other’s Apple Motion, Exh. 13. and a submission pursuant to § 210.8(b) petitions. The Commission vote for these of the Commission’s Rules of Practice On April 3, 2020, the ALJ issued a determinations took place on June 1, and Procedure filed on behalf of Cabot Recommended Determination on the 2020. Microelectronics Corporation on June 1, Public Interest, Remedy, and Bond The authority for the Commission’s 2020. The complaint alleges violations (‘‘RD’’) recommending that, should the determination is contained in Section of section 337 of the Tariff Act of 1930 Commission reverse her findings in the 337 of the Tariff Act of 1930, as (19 U.S.C. 1337) in the importation into ID and find a violation of Section 337, amended, 19 U.S.C. 1337, and in Part the United States, the sale for then the Commission should issue a 210 of the Commission’s Rules of importation, and the sale within the limited exclusion order, with a delayed Practice and Procedure, 19 CFR part United States after importation of implementation, and cease and desist 210. certain chemical mechanical orders against each Respondent. RD at 3. By order of the Commission. planarization slurries and components The RD also recommends imposing no Issued: June 1, 2020. thereof. The complaint names as bond during the period of Presidential Lisa Barton, respondents: DuPont de Nemours, Inc. review. Id. Secretary to the Commission. of Wilmington, DE; Rohm and Haas On April 8, 2020, Apple filed a Electronic Materials of Newark, DE; [FR Doc. 2020–12152 Filed 6–4–20; 8:45 am] motion for sanctions against INVT Rohm and Haas Electronic Materials (‘‘Apple Motion’’). On April 20, 2020, BILLING CODE 7020–02–P CMP Asia Inc. (d/b/a Rohm and Haas INVT filed an opposition to the motion. Electronic Materials CMP Asia Inc., On April 29, 2020, Apple filed a motion INTERNATIONAL TRADE Taiwan Branch (U.S.A.)) of Taiwan; for leave to file a reply in support of its COMMISSION Rohm and Haas Electronic Materials motion. Asia-Pacific Co., Ltd. of Taiwan; Rohm On May 4, 2020, the Commission Notice of Receipt of Complaint; and Haas Electronic Materials K.K. of received a submission on the public Solicitation of Comments Relating to Japan; and Rohm and Haas Electronic interest from INVT. On May 5, 2020, the the Public Interest Materials LLC of Marlborough, MA. The Commission received submissions on complainant requests that the the public interest from the following AGENCY: U.S. International Trade Commission issue a limited exclusion non-parties: (1) ACT/The App Commission. order, cease and desist orders, and Association; (2) Cisco Systems, Inc., ACTION: Notice. impose a bond upon respondents’ Dell Technologies, Inc., Hewlett Packard alleged infringing articles during the 60- Enterprise Company, HP Inc., and the SUMMARY: Notice is hereby given that day Presidential review period pursuant High Tech Inventors Alliance; and (3) the U.S. International Trade to 19 U.S.C. 1337(j). Computer & Communications Industry Commission has received a complaint Proposed respondents, other Association. On May 6, 2020, the entitled Certain Chemical Mechanical interested parties, and members of the Commission also received a submission Planarization Slurries and Components public are invited to file comments on on the public interest from non-party Thereof, DN 3457; the Commission is any public interest issues raised by the Fair Standards Alliance. soliciting comments on any public complaint or § 210.8(b) filing. Having reviewed the record in this interest issues raised by the complaint Comments should address whether investigation, including the ALJ’s orders or complainant’s filing pursuant to the issuance of the relief specifically and ID, as well as the parties’ petitions Commission’s Rules of Practice and requested by the complainant in this and responses thereto, the Commission Procedure. investigation would affect the public has determined to review the ID in part, FOR FURTHER INFORMATION CONTACT: Lisa health and welfare in the United States, as follows: R. Barton, Secretary to the Commission, competitive conditions in the United The Commission has determined to U.S. International Trade Commission, States economy, the production of like review and, on review, take no position 500 E Street SW, Washington, DC or directly competitive articles in the on the ID’s findings regarding the 20436, telephone (202) 205–2000. The United States, or United States following issues: (1) Whether INVT has public version of the complaint can be consumers. standing before the Commission to accessed on the Commission’s In particular, the Commission is assert the ’590, ’587, and ’439 patents; Electronic Document Information interested in comments that: (2) whether INVT satisfied the economic System (EDIS) at https://edis.usitc.gov. (i) Explain how the articles prong of the domestic industry For help accessing EDIS, please email potentially subject to the requested requirement; and (3) whether [email protected]. remedial orders are used in the United Respondents’ affirmative defenses of (i) General information concerning the States; patent exhaustion, (ii) equitable Commission may also be obtained by (ii) identify any public health, safety, estoppel and waiver, and (iii) unclean accessing its internet server at United or welfare concerns in the United States hands bar the requested relief. States International Trade Commission relating to the requested remedial The Commission has determined not (USITC) at https://www.usitc.gov . The orders; to review the remaining findings in the public record for this investigation may (iii) identify like or directly final ID. be viewed on the Commission’s competitive articles that complainant, Accordingly, the Commission has Electronic Document Information its licensees, or third parties make in the determined to affirm the final ID’s System (EDIS) at https://edis.usitc.gov. United States which could replace the finding of no violation of section 337. Hearing-impaired persons are advised subject articles if they were to be The investigation is terminated. that information on this matter can be excluded;
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(iv) indicate whether complainant, treated accordingly. All information, SUPPLEMENTARY INFORMATION: In complainant’s licensees, and/or third including confidential business accordance with 21 CFR 1301.33(a), this party suppliers have the capacity to information and documents for which is notice that on May 4, 2020, Sigma replace the volume of articles confidential treatment is properly Aldrich Research Biochemicals, Inc., potentially subject to the requested sought, submitted to the Commission for 400–600 Summit Drive, Burlington, exclusion order and/or a cease and purposes of this Investigation may be Massachusetts 01803, applied to be desist order within a commercially disclosed to and used: (i) By the registered as a bulk manufacturer of the reasonable time; and Commission, its employees and Offices, following basic class(es) of controlled (v) explain how the requested and contract personnel (a) for substance: remedial orders would impact United developing or maintaining the records of this or a related proceeding, or (b) in Drug States consumers. Controlled substance code Schedule Written submissions on the public internal investigations, audits, reviews, interest must be filed no later than by and evaluations relating to the JWH–018 (also known as 7118 I close of business, eight calendar days programs, personnel, and operations of AM678) 7118 I N 1-Pentyl- 3-(1-naphthoyl)indole. after the date of publication of this the Commission including under 5 notice in the Federal Register. There U.S.C. Appendix 3; or (ii) by U.S. will be further opportunities for government employees and contract The company plans to manufacture comment on the public interest after the personnel,2 solely for cybersecurity small quantities of the listed controlled issuance of any final initial purposes. All nonconfidential written substance to make reference standards determination in this investigation. Any submissions will be available for public for distribution to its customers. written submissions on other issues inspection at the Office of the Secretary William T. McDermott, 3 must also be filed by no later than the and on EDIS. Assistant Administrator. close of business, eight calendar days This action is taken under the authority of section 337 of the Tariff Act [FR Doc. 2020–12180 Filed 6–4–20; 8:45 am] after publication of this notice in the BILLING CODE 4410–09–P Federal Register. Complainant may file of 1930, as amended (19 U.S.C. 1337), replies to any written submissions no and of §§ 201.10 and 210.8(c) of the Commission’s Rules of Practice and later than three calendar days after the DEPARTMENT OF JUSTICE date on which any initial submissions Procedure (19 CFR 201.10, 210.8(c)). were due. Any submissions and replies By order of the Commission. Drug Enforcement Administration filed in response to this Notice are Issued: June 1, 2020. limited to five (5) pages in length, Lisa Barton, [Docket No. DEA–655] inclusive of attachments. Secretary to the Commission. Persons filing written submissions [FR Doc. 2020–12151 Filed 6–4–20; 8:45 am] Bulk Manufacturer of Controlled must file the original document BILLING CODE 7020–02–P Substances Application: Chemtos, electronically on or before the deadlines LLC stated above and submit 8 true paper ACTION: copies to the Office of the Secretary by DEPARTMENT OF JUSTICE Notice of application. noon the next day pursuant to § 210.4(f) of the Commission’s Rules of Practice Drug Enforcement Administration DATES: Registered bulk manufacturers of and Procedure (19 CFR 210.4(f)). the affected basic class(es), and Submissions should refer to the docket [Docket No. DEA–659] applicants therefore, may file written number (‘‘Docket No. 3457’’) in a Bulk Manufacturer of Controlled comments on or objections to the prominent place on the cover page and/ Substances Application: Sigma Aldrich issuance of the proposed registration on or the first page. (See Handbook for Research Biochemicals, Inc. or before August 4, 2020. Electronic Filing Procedures, Electronic ADDRESSES: 1 Written comments should Filing Procedures ). Persons with ACTION: Notice of application. be sent to: Drug Enforcement questions regarding filing should Administration, Attention: DEA Federal DATES: contact the Secretary (202–205–2000). Registered bulk manufacturers of Register Representative/DPW, 8701 Any person desiring to submit a the affected basic class(es), and Morrissette Drive, Springfield, Virginia applicants therefore, may file written document to the Commission in 22152. confidence must request confidential comments on or objections to the treatment. All such requests should be issuance of the proposed registration on SUPPLEMENTARY INFORMATION: In directed to the Secretary to the or before August 4, 2020. accordance with 21 CFR 1301.33(a), this Commission and must include a full ADDRESSES: Written comments should is notice that on May 7, 2020, Chemtos, statement of the reasons why the be sent to: Drug Enforcement LLC, 16713 Picadilly Court, Round Commission should grant such Administration, Attention: DEA Federal Rock, Texas 78664–8544, applied to be treatment. See 19 CFR 201.6. Documents Register Representative/DPW, 8701 registered as a bulk manufacturer of the for which confidential treatment by the Morrissette Drive, Springfield, Virginia following basic class(es) of controlled Commission is properly sought will be 22152. substances:
Controlled substance Drug code Schedule
3-Fluoro-N-methylcathinone (3–FMC) ...... 1233 I Cathinone ...... 1235 I Methcathinone ...... 1237 I
1 Handbook for Electronic Filing Procedures: 2 All contract personnel will sign appropriate 3 Electronic Document Information System https://www.usitc.gov/documents/handbook_on_ nondisclosure agreements. (EDIS): https://edis.usitc.gov. filing_procedures.pdf.
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Controlled substance Drug code Schedule
4-Fluoro-N-methylcathinone (4–FMC) ...... 1238 I Pentedrone (a-methylaminovalerophenone) ...... 1246 I Mephedrone (4-Methyl-N-methylcathinone) ...... 1248 I 4-Methyl-N-ethylcathinone (4–MEC) ...... 1249 I Naphyrone ...... 1258 I N-Ethylamphetamine ...... 1475 I N,N-Dimethylamphetamine ...... 1480 I Fenethylline ...... 1503 I Aminorex ...... 1585 I 4-Methylaminorex (cis isomer) ...... 1590 I Gamma Hydroxybutyric Acid ...... 2010 I Methaqualone ...... 2565 I Mecloqualone ...... 2572 I JWH–250 (1-Pentyl-3-(2-methoxyphenylacetyl) indole) ...... 6250 I SR–18 (Also known as RCS–8) (1-Cyclohexylethyl-3-(2-methoxyphenylacetyl) indole) ...... 7008 I ADB–FUBINACA (N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(4-fluorobenzyl)-1H-indazole-3-carboxamide) ...... 7010 I 5–Fluoro–UR–144 and XLR11 [1-(5-Fluoro-pentyl)1H-indol-3-yl] (2,2,3,3-tetramethylcyclopropyl)methanone ...... 7011 I AB–FUBINACA (N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(4-fluorobenzyl)-1H-indazole-3-carboxamide) ...... 7012 I FUB–144 (1-(4-fluorobenzyl)-1H-indol-3-yl) (2,2,3,3-tetramethylcyclopropyl)methanone) ...... 7014 I JWH–019 (1-Hexyl-3-(1-naphthoyl)indole) ...... 7019 I MDMB–FUBINACA (Methyl 2-(1-(4-fluorobenzyl)-1H-indazole-3-carboxamido)-3,3-dimethylbutanoate) ...... 7020 I FUB–AMB, MMB–FUBINACA, AMB–FUBINACA (2-(1-(4-fluorobenzyl)-1Hindazole-3-carboxamido)-3- 7021 I methylbutanoate). AB–PINACA (N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-pentyl-1H-indazole-3-carboxamide) ...... 7023 I THJ–2201 [1-(5-fluoropentyl)-1H-indazol-3-yl](naphthalen-1-yl)methanone ...... 7024 I 5F–AB–PINACA (N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(5-fluropentyl)-1H-indazole-3-carboximide) ...... 7025 I AB–CHMINACA (N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-indazole-3-carboxamide ...... 7031 I MAB–CHMINACA (N-(1-amino-3,3dimethyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-indazole-3-carboxamide) ...... 7032 I 5F–AMB (Methyl 2-(1-(5-fluoropentyl)-1H-indazole-3-carboxamido)-3-methylbutanoate) ...... 7033 I 5F–ADB; 5F–MDMB–PINACA (Methyl 2-(1-(5-fluoropentyl)-1H-indazole-3-carboxamido)-3,3-dimethylbutanoate) ...... 7034 I ADB–PINACA (N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-pentyl-1H-indazole-3-carboxamide) ...... 7035 I 5F–EDMB–PINACA (ethyl 2-(1-(5-fluoropentyl)-1H-indazole-3-carboxamido)-3,3-dimethylbutanoate) ...... 7036 I 5F–MDMB–PICA (methyl 2-(1-(5-fluoropentyl)-1H-indole-3-carboxamido)-3,3-dimethylbutanoate) ...... 7041 I MDMB–CHMICA, MMB–CHMINACA (Methyl 2-(1-(cyclohexylmethyl)-1H-indole-3-carboxamido)-3,3- 7042 I dimethylbutanoate). MMB–CHMICA, AMB–CHMICA (methyl 2-(1-(cyclohexylmethyl)-1H-indole-3-carboxamido)-3-methylbutanoate) ...... 7044 I FUB–AKB48, FUB–APINACA, AKB48 N-(4–FLUOROBENZYL) (N-(adamantan-1-yl)-1-(4-fluorobenzyl)-1H-indazole- 7047 I 3-carboximide). APINACA and AKB48 N-(1-Adamantyl)-1-pentyl-1H-indazole-3-carboxamide ...... 7048 I 5F–APINACA, 5F–AKB48 (N-(adamantan-1-yl)-1-(5-fluoropentyl)-1H-indazole-3-carboxamide) ...... 7049 I JWH–081 (1-Pentyl-3-(1-(4-methoxynaphthoyl) indole) ...... 7081 I 5F–CUMYL–PINACA, 5GT–25 (1-(5-fluoropentyl)-N-(2-phenylpropan-2-yl)-1H-indazole-3-carboxamide) ...... 7083 I 5F–CUMYL–P7AICA (1-(5-fluoropentyl)-N-(2-phenylpropan-2-yl)-1H-pyrrolo[2,3-b]pyridine-3-carboxamide) ...... 7085 I 4–CN–CUML–BUTINACA, 4–cyano–CUMYL–BUTINACA, 4–CN–CUMYL BINACA, CUMYL–4CN–BINACA, SGT– 7089 I 78 (1-(4-cyanobutyl)-N-(2-phenylpropan-2-yl)-1H-indazole-3-carboxamide). SR–19 (Also known as RCS–4) (1-Pentyl-3-[(4-methoxy)-benzoyl] indole ...... 7104 I JWH–018 (also known as AM678) (1-Pentyl-3-(1-naphthoyl)indole) ...... 7118 I JWH–122 (1-Pentyl-3-(4-methyl-1-naphthoyl) indole) ...... 7122 I UR–144 (1-Pentyl-1H-indol-3-yl)(2,2,3,3-tetramethylcyclopropyl)methanone ...... 7144 I JWH–073 (1-Butyl-3-(1-naphthoyl)indole) ...... 7173 I JWH–200 (1-[2-(4-Morpholinyl)ethyl]-3-(1-naphthoyl)indole) ...... 7200 I AM2201 (1-(5-Fluoropentyl)-3-(1-naphthoyl) indole) ...... 7201 I JWH–203 (1-Pentyl-3-(2-chlorophenylacetyl) indole) ...... 7203 I NM2201, CBL2201 (Naphthalen-1-yl 1-(5-fluoropentyl)-1H-indole-3-carboxylate ...... 7221 I PB–22 (Quinolin-8-yl 1-pentyl-1H-indole-3-carboxylate) ...... 7222 I 5F–PB–22 (Quinolin-8-yl 1-(5-fluoropentyl)-1H-indole-3-carboxylate) ...... 7225 I 4–MEAP (4-Methyl-alpha-ethylaminopentiophenone) ...... 7245 I N-Ethylhexedrone ...... 7246 I Alpha-ethyltryptamine ...... 7249 I Ibogaine ...... 7260 I CP–47,497 (5-(1,1-Dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl-phenol) ...... 7297 I CP–47,497 C8 Homologue (5-(1,1-Dimethyloctyl)-2-[(1R,3S)3-hydroxycyclohexyl-phenol) ...... 7298 I Lysergic acid diethylamide ...... 7315 I 2,5-Dimethoxy-4-(n)-propylthiophenethylamine (2C–T–7) ...... 7348 I Marihuana Extract ...... 7350 I Marihuana ...... 7360 I Parahexyl ...... 7374 I Mescaline ...... 7381 I 2-(4-Ethylthio-2,5-dimethoxyphenyl) ethanamine (2C–T–2 ) ...... 7385 I 3,4,5-Trimethoxyamphetamine ...... 7390 I 4-Bromo-2,5-dimethoxyamphetamine ...... 7391 I 4-Bromo-2,5-dimethoxyphenethylamine ...... 7392 I 4-Methyl-2,5-dimethoxyamphetamine ...... 7395 I 2,5-Dimethoxyamphetamine ...... 7396 I
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Controlled substance Drug code Schedule
JWH–398 (1-Pentyl-3-(4-chloro-1-naphthoyl) indole) ...... 7398 I 2,5-Dimethoxy-4-ethylamphetamine ...... 7399 I 3,4-Methylenedioxyamphetamine ...... 7400 I 5-Methoxy-3,4-methylenedioxyamphetamine ...... 7401 I N-Hydroxy-3,4-methylenedioxyamphetamine ...... 7402 I 3,4-Methylenedioxy-N-ethylamphetamine ...... 7404 I 3,4-Methylenedioxymethamphetamine ...... 7405 I 4-Methoxyamphetamine ...... 7411 I 5-Methoxy-N-N-dimethyltryptamine ...... 7431 I Alpha-methyltryptamine ...... 7432 I Bufotenine ...... 7433 I Diethyltryptamine ...... 7434 I Dimethyltryptamine ...... 7435 I Psilocybin ...... 7437 I Psilocyn ...... 7438 I 5-Methoxy-N,N-diisopropyltryptamine ...... 7439 I 4′-Chloro-alpha-pyrrolidinovalerophenone ...... 7443 I MPHP, 4′-Methyl-alpha-pyrrolidinohexiophenone ...... 7446 I N-Ethyl-1-phenylcyclohexylamine ...... 7455 I 1-(1-Phenylcyclohexyl)pyrrolidine ...... 7458 I 1-[1-(2-Thienyl)cyclohexyl]piperidine ...... 7470 I 1-[1-(2-Thienyl)cyclohexyl]pyrrolidine ...... 7473 I N-Ethyl-3-piperidyl benzilate ...... 7482 I N-Methyl-3-piperidyl benzilate ...... 7484 I N-Benzylpiperazine ...... 7493 I 4-Methyl-alphapyrrolidinopropiophenone (4–MePPP) ...... 7498 I 2-(2,5-Dimethoxy-4-methylphenyl) ethanamine (2C–D) ...... 7508 I 2-(2,5-Dimethoxy-4-ethylphenyl) ethanamine (2C–E ) ...... 7509 I 2-(2,5-Dimethoxyphenyl) ethanamine (2C–H) ...... 7517 I 2-(4-iodo-2,5-dimethoxyphenyl) ethanamine (2C–I) ...... 7518 I 2-(4-Chloro-2,5-dimethoxyphenyl) ethanamine (2C–C) ...... 7519 I 2-(2,5-Dimethoxy-4-nitro-phenyl) ethanamine (2C–N) ...... 7521 I 2-(2,5-Dimethoxy-4-(n)-propylphenyl) ethanamine (2C–P) ...... 7524 I 2-(4-Isopropylthio)-2,5-dimethoxyphenyl) ethanamine (2C–T–4 ) ...... 7532 I MDPV (3,4-Methylenedioxypyrovalerone) ...... 7535 I 2-(4-bromo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl) ethanamine (25B–NBOMe) ...... 7536 I 2-(4-chloro-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl) ethanamine (25C–NBOMe) ...... 7537 I 2-(4-iodo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl) ethanamine (25I–NBOMe) ...... 7538 I Methylone (3,4-Methylenedioxy-N-methylcathinone) ...... 7540 I Butylone ...... 7541 I Pentylone ...... 7542 I N-Ethypentylone, ephylone (1-(1,3-benzodioxol-5-yl)-2-(ethylamino)-pentan-1-one) ...... 7543 I a-PHP, alpha-Pyrrolidinohexanophenone ...... 7544 I alpha-pyrrolidinopentiophenone (a-PVP) ...... 7545 I alpha-pyrrolidinobutiophenone (a-PBP) ...... 7546 I alpha-pyrrolidinoheptaphenone (PV8) ...... 7548 I AM–694 (1-(5-Fluoropentyl)-3-(2-iodobenzoyl) indole) ...... 7694 I Acetyldihydrocodeine ...... 9051 I Benzylmorphine ...... 9052 I Codeine-N-oxide ...... 9053 I Cyprenorphine ...... 9054 I Desomorphine ...... 9055 I Etorphine (except HCl) ...... 9056 I Codeine methylbromide ...... 9070 I Dihydromorphine ...... 9145 I Difenoxin ...... 9168 I Heroin ...... 9200 I Hydromorphinol ...... 9301 I Methyldesorphine ...... 9302 I Methyldihydromorphine ...... 9304 I Morphine methylbromide ...... 9305 I Morphine methylsulfonate ...... 9306 I Morphine-N-oxide ...... 9307 I Myrophine ...... 9308 I Nicocodeine ...... 9309 I Nicomorphine ...... 9312 I Normorphine ...... 9313 I Pholcodine ...... 9314 I Thebacon ...... 9315 I Acetorphine ...... 9319 I Drotebanol ...... 9335 I U–47700 (3,4-dichloro-N-[2-(dimethylamino)cyclohexyl]-N-methylbenzamide) ...... 9547 I AH–7921 (3,4-dichloro-N-[(1-dimethylamino)cyclohexylmethyl]benzamide)) ...... 9551 I MT–45 (1-cyclohexyl-4-(1,2-diphenylethyl)piperazine)) ...... 9560 I
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Controlled substance Drug code Schedule
Acetylmethadol ...... 9601 I Allylprodine ...... 9602 I Alphacetylmethadol except levo-alphacetylmethadol ...... 9603 I Alphameprodine ...... 9604 I Alphamethadol ...... 9605 I Benzethidine ...... 9606 I Betacetylmethadol ...... 9607 I Betameprodine ...... 9608 I Betamethadol ...... 9609 I Betaprodine ...... 9611 I Clonitazene ...... 9612 I Dextromoramide ...... 9613 I Diampromide ...... 9615 I Diethylthiambutene ...... 9616 I Dimenoxadol ...... 9617 I Dimepheptanol ...... 9618 I Dimethylthiambutene ...... 9619 I Dioxaphetyl butyrate ...... 9621 I Dipipanone ...... 9622 I Ethylmethylthiambutene ...... 9623 I Etonitazene ...... 9624 I Etoxeridine ...... 9625 I Furethidine ...... 9626 I Hydroxypethidine ...... 9627 I Ketobemidone ...... 9628 I Levomoramide ...... 9629 I Levophenacylmorphan ...... 9631 I Morpheridine ...... 9632 I Noracymethadol ...... 9633 I Norlevorphanol ...... 9634 I Normethadone ...... 9635 I Norpipanone ...... 9636 I Phenadoxone ...... 9637 I Phenampromide ...... 9638 I Phenoperidine ...... 9641 I Piritramide ...... 9642 I Proheptazine ...... 9643 I Properidine ...... 9644 I Racemoramide ...... 9645 I Trimeperidine ...... 9646 I Phenomorphan ...... 9647 I Propiram ...... 9649 I 1-Methyl-4-phenyl-4-propionoxypiperidine ...... 9661 I 1-(2-Phenylethyl)-4-phenyl-4-acetoxypiperidine ...... 9663 I Tilidine ...... 9750 I Acryl fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylacrylamide) ...... 9811 I Para-Fluorofentanyl ...... 9812 I 3-Methylfentanyl ...... 9813 I Alpha-methylfentanyl ...... 9814 I Acetyl-alpha-methylfentanyl ...... 9815 I N-(2-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)propionamide ...... 9816 I Acetyl Fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide) ...... 9821 I Butyryl Fentanyl ...... 9822 I Para-fluorobutyryl fentanyl ...... 9823 I 4-Fluoroisobutyryl fentanyl (N-(4-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)isobutyramide) ...... 9824 I 2-methoxy-N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide ...... 9825 I Para-chloroisobutyryl fentanyl ...... 9826 I Isobutyryl fentanyl ...... 9827 I Beta-hydroxyfentanyl ...... 9830 I Beta-hydroxy-3-methylfentanyl ...... 9831 I Alpha-methylthiofentanyl ...... 9832 I 3-Methylthiofentanyl ...... 9833 I Furanyl fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylfuran-2-carboxamide) ...... 9834 I Thiofentanyl ...... 9835 I Beta-hydroxythiofentanyl ...... 9836 I Para-methoxybutyryl fentanyl ...... 9837 I Para-methoxybutyryl fentanyl ...... 9838 I Valeryl fentanyl ...... 9840 I N-(1-phenethylpiperidin-4-yl)-N-phenyltetrahydrofuran-2-carboxamide ...... 9843 I Cyclopropyl Fentanyl ...... 9845 I Cyclopentyl Fentanyl ...... 9847 I Fentanyl related-compounds as defined in 21 CFR 1308.11(h) ...... 9850 I Amphetamine ...... 1100 II Methamphetamine ...... 1105 II
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Controlled substance Drug code Schedule
Lisdexamfetamine ...... 1205 II Phenmetrazine ...... 1631 II Methylphenidate ...... 1724 II Amobarbital ...... 2125 II Pentobarbital ...... 2270 II Secobarbital ...... 2315 II Glutethimide ...... 2550 II Nabilone ...... 7379 II 1-Phenylcyclohexylamine ...... 7460 II Phencyclidine ...... 7471 II 4-Anilino-N-phenethyl-4-piperidine (ANPP) ...... 8333 II Phenylacetone ...... 8501 II 1-Piperidinocyclohexanecarbonitrile ...... 8603 II Alphaprodine ...... 9010 II Anileridine ...... 9020 II Cocaine ...... 9041 II Codeine ...... 9050 II Etorphine HCl ...... 9059 II Dihydrocodeine ...... 9120 II Oxycodone ...... 9143 II Hydromorphone ...... 9150 II Diphenoxylate ...... 9170 II Ecgonine ...... 9180 II Ethylmorphine ...... 9190 II Hydrocodone ...... 9193 II Levomethorphan ...... 9210 II Levorphanol ...... 9220 II Isomethadone ...... 9226 II Meperidine ...... 9230 II Meperidine intermediate-A ...... 9232 II Meperidine intermediate-B ...... 9233 II Meperidine intermediate-C ...... 9234 II Metazocine ...... 9240 II Methadone ...... 9250 II Methadone intermediate ...... 9254 II Metopon ...... 9260 II Dextropropoxyphene, bulk (non-dosage forms) ...... 9273 II Morphine ...... 9300 II Oripavine ...... 9330 II Thebaine ...... 9333 II Dihydroetorphine ...... 9334 II Levo-alphacetylmethadol ...... 9648 II Oxymorphone ...... 9652 II Noroxymorphone ...... 9668 II Phenazocine ...... 9715 II Thiafentanil ...... 9729 II Piminodine ...... 9730 II Racemethorphan ...... 9732 II Racemorphan ...... 9733 II Alfentanil ...... 9737 II Remifentanil ...... 9739 II Sufentanil ...... 9740 II Carfentanil ...... 9743 II Tapentadol ...... 9780 II Bezitramide ...... 9800 II Fentanyl ...... 9801 II Moramide-intermediate ...... 9802 II
The company plans to manufacture DEPARTMENT OF JUSTICE DATES: Registered bulk manufacturers of small quantities of the listed controlled the affected basic class(es), and substances in bulk for distribution to its Drug Enforcement Administration applicants therefore, may file written customers. comments on or objections to the [Docket No. DEA–657] issuance of the proposed registration on William T. McDermott, or before August 4, 2020. Assistant Administrator. Bulk Manufacturer of Controlled ADDRESSES: Written comments should [FR Doc. 2020–12177 Filed 6–4–20; 8:45 am] Substances Application: Nalas be sent to: Drug Enforcement BILLING CODE 4410–09–P Engineering Services, Inc. Administration, Attention: DEA Federal Register Representative/DPW, 8701 ACTION: Notice of application. Morrissette Drive, Springfield, Virginia 22152.
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SUPPLEMENTARY INFORMATION: In (42 U.S.C. 5616(a)), will meet to carry Note: Photo identification will be accordance with 21 CFR 1301.33(a), this out its advisory functions. Information required to attend the meeting at the is notice that on May 22, 2020, Nalas regarding this meeting will be available OJP 810 7th Street Building. Engineering Services, Inc., 85 on the Council’s web page at Interested parties may submit written Westbrook Road, Centerbrook, www.juvenilecouncil.gov. The meeting comments and questions in advance to Connecticut 06409, applied to be is open to the public, and available via Elizabeth Wolfe (DFO) for the Council, registered as a bulk manufacturer of the online video conference, but prior at the contact information above. If following basic class(es) of controlled registration is required (see below). In faxing, please follow up with Melissa substance: addition, meeting documents will be Kanaya, Project Manager/Federal viewable via this website including Contractor (contact information above) Controlled Drug Schedule meeting announcements, agendas, in order to assure receipt of substance code minutes and reports. submissions. All comments and questions should be submitted no later Thebaine ...... 9333 II Although designated agency representatives may attend in lieu of than 5:00 p.m. ET on Thursday July 2nd, 2020. The company plans to manufacture members, the Council’s formal The Council will limit public derivatives of the above controlled membership consists of the following statements if they are found to be substance for distribution to its secretaries and/or agency officials; duplicative. Written questions customers. Attorney General (Chair), Administrator submitted by the public while in of the Office of Juvenile Justice and William T. McDermott, attendance will also be considered by Delinquency Prevention (Vice Chair), Assistant Administrator. the Council. Secretary of Health and Human Services [FR Doc. 2020–12175 Filed 6–4–20; 8:45 am] (HHS), Secretary of Labor (DOL), Elizabeth Wolfe, BILLING CODE 4410–09–P Secretary of Education (DOE), Secretary Training and Outreach Coordinator, Office of Housing and Urban Development of Juvenile Justice and Delinquency Prevention. DEPARTMENT OF JUSTICE (HUD), Director of the Office of National Drug Control Policy, Chief Executive [FR Doc. 2020–12138 Filed 6–4–20; 8:45 am] Office of Justice Programs Officer of the Corporation for National BILLING CODE 4410–18–P and Community Service and the [OJP (OJJDP) Docket No. 1777] Assistant Secretary of Homeland Security for the U.S. Immigration and Meeting of the Coordinating Council DEPARTMENT OF LABOR on Juvenile Justice and Delinquency Customs Enforcement. Nine additional Prevention members are appointed by the Speaker Bureau of Labor Statistics of the U.S. House of Representatives, the AGENCY: Coordinating Council on U.S. Senate Majority Leader and the Proposed Collection; Comment Juvenile Justice and Delinquency President of the United States. Further Request Prevention. agencies that take part in Council AGENCY: Bureau of Labor Statistics, ACTION: Notice of meeting. activities include, the Departments of Agriculture, Defense, Interior and the Department of Labor. SUMMARY: The Coordinating Council on Substance and Mental Health Services ACTION: Notice of information collection; Juvenile Justice and Delinquency Administration of HHS. request for comment. Prevention announces its next meeting. Council meeting agendas are available SUMMARY: The Department of Labor, as DATES: Wednesday July 8th, 2020 at on www.juvenilecouncil.gov. Agendas 10:00 a.m. ET. part of its continuing effort to reduce will generally include: (a) Opening paperwork and respondent burden, ADDRESSES: The meeting will take place remarks and introductions; (b) conducts a pre-clearance consultation in the third floor main conference room Presentations and discussion of agency program to provide the general public at the U.S. Department of Justice, Office work; and (c) Council member and Federal agencies with an of Justice Programs, 810 7th St. NW, announcements. opportunity to comment on proposed Washington, DC 20531. For security purposes and because and/or continuing collections of FOR FURTHER INFORMATION CONTACT: Visit space is limited, members of the public information in accordance with the the website for the Coordinating Council who wish to attend must register in Paperwork Reduction Act of 1995. This at www.juvenilecouncil.gov or or contact advance of the meeting online at the program helps to ensure that requested Elizabeth Wolfe, Designated Federal meeting registration site, no later than data can be provided in the desired Official (DFO), OJJDP, by telephone at Thursday, July 2, 2020. Should issues format, reporting burden (time and (202) 598–9310, email at arise with online registration, or to financial resources) is minimized, [email protected]; or register by fax or email, the public collection instruments are clearly Melissa Kanaya, Project Manager/ should contact Melissa Kanaya, Project understood, and the impact of collection Federal Contractor, by telephone (202) Manager/Federal Contractor (see above requirements on respondents can be 280–8874, email at Melissa.kanaya@ for contact information). If submitting properly assessed. The Bureau of Labor bixal.com, or fax at (866) 854–6619. registrations via fax or email, attendees Statistics (BLS) is soliciting comments Please note that the above phone/fax should include all of the following: concerning the proposed extension numbers are not toll free. Name, Title, Organization/Affiliation, without change of a currently approved SUPPLEMENTARY INFORMATION: The Full Address, Phone Number, Fax and collection for the ‘‘Producer Price Coordinating Council on Juvenile Email. The meeting will also be Index’’ survey. A copy of the proposed Justice and Delinquency Prevention available to join online via Webex, a information collection request (ICR) can (‘‘Council’’), established by statute in video conferencing platform. be obtained by contacting the individual the Juvenile and Delinquency Registration for this is also found online listed below in the Addresses section of Prevention Act of 1974 section 206(a) at www.juvenilecouncil.gov. this notice.
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DATES: Written comments must be the Council of Economic Advisors data for the ongoing, monthly submitted to the office listed in the utilize these statistics to help interpret publication of the PPI family of indexes. Addresses section of this notice on or the economic environment and make The Bureau of Labor Statistics must before August 4, 2020. decisions based upon these continue collecting data for the PPI ADDRESSES: Send comments to Nora interpretations. Many dollar- since both policy and business planning Kincaid, BLS Clearance Officer, denominated measurements of benefit from accurate, timely, and Division of Management Systems, economic performance, such as the relevant description of price trends. Bureau of Labor Statistics, Room 4080, Gross Domestic Product (GDP), require Legislators and government agencies use 2 Massachusetts Avenue NE, accurate price data for the conversion of the PPI to assist them with developing Washington, DC 20212. Written nominal dollars into real dollars. policy and evaluating the markets. comments also may be transmitted by National income accounting figures Dollar-denominated measures of email to [email protected]. must also be inflation free in order to economic performance, such as Gross FOR FURTHER INFORMATION CONTACT: remain relevant to fiscal and monetary Domestic Product, require accurate Nora Kincaid, BLS Clearance Officer, at policy makers setting objectives. Price price data in order to convert nominal 202–691–7628 (this is not a toll free adjustment clauses in government to constant-dollar values. Inflation-free purchasing contracts commonly use one number). (See ADDRESSES section.) national income accounting figures are or more PPIs. According to a vital to fiscal and monetary policy- SUPPLEMENTARY INFORMATION: conservative estimate hundreds-of- makers when setting objectives and I. Background billions of dollars’ worth of contracts targets. The price adjustment clauses of and purchase agreements employ PPIs purchase agreements use monthly PPIs. The Producer Price Index (PPI), one of as part of price adjustment clauses. It is conservatively estimated that the Nation’s leading economic Failure to calculate these price data hundreds-of-billions of dollars’ worth of indicators, designated as a Principal would prolong the time frame needed contracts and purchase agreements Federal Economic Indicator. The PPI for accurate recognition of and employ PPIs as part of price-adjustment consists of a family of indexes that appropriate adaptation to economic clauses. Failure to provide current measures the average change over time events. accurate monthly statistics would in the selling prices received by The private sector also makes necessitate more complex clauses in domestic producers of goods and extensive use of PPI data. Researchers contracts and prolong the time required services. About 10,000 PPIs for commonly use producer prices to probe to determine price changes for purposes individual products and groups of and measure the interaction of market of contract adjustments. products are released each month. PPIs forces. Private firms use PPIs for are available for the output of nearly all contract escalation and price III. Desired Focus of Comments industries in the goods-producing adjustment. The Internal Revenue The Bureau of Labor Statistics is sectors of the U.S. economy—mining, Service (IRS) recommends using PPI particularly interested in comments manufacturing, agriculture, fishing, and data for certain kinds of tax related that: forestry—as well as natural gas, inventory accounting, such as Last-In- • electricity, construction, and goods Evaluate whether the proposed First-Out (LIFO). Private businesses collection of information is necessary competitive with those made in the extensively use PPIs for planning and producing sectors, such as waste and for the proper performance of the operations. Firms often compare the functions of the agency, including scrap materials. The PPI data are widely prices they pay and receive with used by the business community as well whether the information will have changes in appropriate PPIs. practical utility. as by government. In particular the data Economic researchers and forecasters • are used as an economic indicator Evaluate the accuracy of the also put PPIs to regular use. They use agency’s estimate of the burden of the playing a crucial role in market analysis, PPI data to better understand market as a deflator of other economic series, proposed collection of information, forces. Research topics requiring including the validity of the the basis for the calculation of price producer price data include studying adjustments for contracts and purchase methodology and assumptions used. elasticities, potential lead and lag • agreements and as an input to economic Enhance the quality, utility, and structures within price changes, and the clarity of the information to be research. These uses highlight the identification of prices that demonstrate necessity of the PPI in order to collected. tremendous influence throughout the • understand the economy. Minimize the burden of the economy if they change. Policy-makers, collection of information on those who PPI data meets a wide range of businesses, and researchers all require government needs by providing a are to respond, including through the complete descriptions of price change use of appropriate automated, description of the magnitude and trends if they are to perform effectively composition of price changes within the electronic, mechanical, or other and efficiently. technological collection techniques or economy. Government agencies view The expansive coverage of PPIs makes other forms of information technology, these indexes as sensitive indicators of it very valuable to the users described e.g., permitting electronic submissions the economic environment and closely above as well as many others. follow each monthly release of statistics. of responses. PPI data are vital in helping the II. Current Action Title of Collection: Producer Price President and Congress set fiscal Office of Management and Budget Index Survey. spending targets. The Federal Reserve clearance is being sought for the OMB Number: 1220–0008. Board Open Market Committee monitors extension of the PPI survey. Type of Review: Extension without producer prices to help determine The PPI collection is not a one-time change of a currently approved monetary policy. Federal policy makers project with an end date. The purpose collection. at the Department of the Treasury and of the PPI collection is to accumulate Affected Public: Private Sector.
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Average Total time per Estimated Form Total respondents Frequency responses response total burden (per year) (minutes) (hours)
BLS 1810A, A1, B, C, C1, and E ... 4,305 ...... once ...... 4,305 120 8,610 Subset of 4,305 initiation respond- once ...... 340 15 85 ents. (Approximately 8%). BLS IDCF ...... 11,640 ...... monthly ...... 735,000 5 61,250
Totals ...... 15,945 ...... 739,645 ...... 69,945 * For monthly repricing, PPI requests repricing of 61,250 items each month.
Comments submitted in response to FOR FURTHER INFORMATION CONTACT: We will consider all comments this notice will be summarized and/or Kimberly Keravuori, Regulatory and submitted by the posted deadline and included in the request for Office of External Policy Program Manager, by consult as needed with the Federal Management and Budget approval of the email at regulation_comments@ agency seeking the disposition information collection request; they also nara.gov. For information about records authority. After considering comments, will become a matter of public record. schedules, contact Records Management we will post on regulations.gov a Signed at Washington, DC, this 2nd day of Operations by email at ‘‘Consolidated Reply’’ summarizing the June 2020. [email protected], by mail at comments, responding to them, and Mark Staniorski, the address above, or by phone at 301– noting any changes we have made to the proposed records schedule. We will Chief, Division of Management Systems. 837–1799. SUPPLEMENTARY INFORMATION: then send the schedule for final [FR Doc. 2020–12199 Filed 6–4–20; 8:45 am] approval by the Archivist of the United BILLING CODE 4510–24–P Public Comment Procedures States. You may elect at regulations.gov We are publishing notice of records to receive updates on the docket, schedules in which agencies propose to including an alert when we post the NATIONAL ARCHIVES AND RECORDS dispose of records they no longer need Consolidated Reply, whether or not you ADMINISTRATION to conduct agency business. We invite submit a comment. If you have a question, you can submit it as a [NARA–20–0014; NARA–2020–044] public comments on these records schedules, as required by 44 U.S.C. comment, and can also submit any Records Schedules; Availability and 3303a(a), and list the schedules at the concerns or comments you would have Request for Comments end of this notice by agency and to a possible response to the question. subdivision requesting disposition We will address these items in AGENCY: National Archives and Records authority. consolidated replies along with any Administration (NARA). In addition, this notice lists the other comments submitted on that ACTION: Notice of availability of organizational unit(s) accumulating the schedule. We will post schedules on our proposed records schedules; request for records or states that the schedule has website in the Records Control Schedule comments. agency-wide applicability. It also (RCS) Repository, at https:// provides the control number assigned to SUMMARY: The National Archives and www.archives.gov/records-mgmt/rcs, Records Administration (NARA) each schedule, which you will need if after the Archivist approves them. The publishes notice of certain Federal you submit comments on that schedule. RCS contains all schedules approved agency requests for records disposition We have uploaded the records since 1973. authority (records schedules). We schedules and accompanying appraisal Background publish notice in the Federal Register memoranda to the regulations.gov and on regulations.gov for records docket for this notice as ‘‘other’’ Each year, Federal agencies create schedules in which agencies propose to documents. Each records schedule billions of records. To control this dispose of records they no longer need contains a full description of the records accumulation, agency records managers to conduct agency business. We invite at the file unit level as well as their prepare schedules proposing retention public comments on such records proposed disposition. The appraisal periods for records and submit these schedules. memorandum for the schedule includes schedules for NARA’s approval. Once information about the records. approved by NARA, records schedules DATES: NARA must receive comments We will post comments, including provide mandatory instructions on what by July 20, 2020. any personal information and happens to records when no longer ADDRESSES: You may submit comments attachments, to the public docket needed for current Government by either of the following methods. You unchanged. Because comments are business. The records schedules must cite the control number, which public, you are responsible for ensuring authorize agencies to preserve records of appears on the records schedule in that you do not include any confidential continuing value in the National parentheses after the name of the agency or other information that you or a third Archives or to destroy, after a specified that submitted the schedule. party may not wish to be publicly period, records lacking continuing • Federal eRulemaking Portal: http:// posted. If you want to submit a administrative, legal, research, or other www.regulations.gov. comment with confidential information value. Some schedules are • Mail: Records Appraisal and or cannot otherwise use the comprehensive and cover all the records Agency Assistance (ACR); National regulations.gov portal, you may contact of an agency or one of its major Archives and Records Administration; [email protected] for subdivisions. Most schedules, however, 8601 Adelphi Road; College Park, MD instructions on submitting your cover records of only one office or 20740–6001. comment. program or a few series of records. Many
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of these update previously approved SUMMARY: Pursuant to the Federal NUCLEAR REGULATORY schedules, and some include records Advisory Committee Act, as amended, COMMISSION proposed as permanent. notice is hereby given that a meeting of Agencies may not destroy Federal the National Council on the Arts will be [NRC–2020–0001] records without the approval of the held open to the public by Sunshine Act Meetings Archivist of the United States. The teleconference. Archivist grants this approval only after DATES: See the SUPPLEMENTARY TIME AND DATE: Weeks of June 8, 15, 22, thorough consideration of the records’ INFORMATION section for meeting time 29, July 6, 13, 2020. administrative use by the agency of and date. The meeting is Eastern time PLACE: Commissioners’ Conference origin, the rights of the Government and and the ending time is approximate. Room, 11555 Rockville Pike, Rockville, of private people directly affected by the ADDRESSES: The National Endowment Maryland. Government’s activities, and whether or for the Arts, Constitution Center, 400 not the records have historical or other STATUS: Public. Seventh Street SW, Washington, DC value. Public review and comment on 20560. This meeting will be held by Week of June 8, 2020 these records schedules is part of the teleconference. Please see arts.gov for There are no meetings scheduled for Archivist’s consideration process. the most up-to-date information. the week of June 8, 2020. Schedules Pending FOR FURTHER INFORMATION CONTACT: Week of June 15, 2020—Tentative 1. Department of Health and Human Victoria Hutter, Office of Public Affairs, There are no meetings scheduled for Services, Office of the Secretary, National Endowment for the Arts, the week of June 15, 2020. Correspondence of Assistant Secretary Washington, DC 20506, at 202/682– for Preparedness and Response (DAA– 5570. Week of June 22, 2020—Tentative 0468–2019–0004). SUPPLEMENTARY INFORMATION: If, in the There are no meetings scheduled for 2. Department of Homeland Security, course of the open session discussion, it the week of June 22, 2020. Transportation Security Administration, becomes necessary for the Council to Common Use Records (DAA–0560– discuss non-public commercial or Week of June 29, 2020—Tentative 2017–0022). financial information of intrinsic value, There are no meetings scheduled for 3. Department of Homeland Security, the Council will go into closed session the week of June 29, 2020. U.S. Citizenship and Immigration pursuant to subsection (c)(4) of the Services, Absconders Data Collection Government in the Sunshine Act, 5 Week of July 6, 2020—Tentative Systems (DAA–0566–2020–0001). U.S.C. 552b, and in accordance with the There are no meetings scheduled for 4. Department of Homeland Security, September 10, 2019 determination of the week of July 6, 2020. U.S. Coast Guard, Records of the the Chairman. Additionally, discussion Differential GPS (DAA–0026–2020– concerning purely personal information Week of July 13, 2020—Tentative 0001). about individuals, such as personal There are no meetings scheduled for 5. Department of State, Bureau of biographical and salary data or medical the week of July 13, 2020. Diplomatic Security, Consolidated information, may be conducted by the CONTACT PERSON FOR MORE INFORMATION: Schedule (DAA–0059–2018–0003). Council in closed session in accordance For more information or to verify the 6. Federal Retirement Thrift with subsection (c)(6) of 5 U.S.C. 552b. status of meetings, contact Denise Investment Board, Office of General Any interested persons may attend, as McGovern at 301–415–0681 or via email Counsel, General Counsel Records observers, to Council discussions and at [email protected]. The (DAA–0474–2018–0009). reviews that are open to the public. If schedule for Commission meetings is 7. Securities and Exchange you need special accommodations due subject to change on short notice. Commission, Office of the Advocate for to a disability, please contact Beth The NRC Commission Meeting Small Business Capital Formation, Bienvenu, Office of Accessibility, Schedule can be found on the internet Small Business Capital Formation National Endowment for the Arts, at: https://www.nrc.gov/public-involve/ Advisory Committee Records (DAA– Constitution Center, 400 7th St. SW, public-meetings/schedule.html. 0266–2019–0004). Washington, DC 20506, 202/682–5733, The NRC provides reasonable Voice/T.T.Y. 202/682–5496, at least Laurence Brewer, accommodation to individuals with seven (7) days prior to the meeting. disabilities where appropriate. If you Chief Records Officer for the U.S. The upcoming meeting is: Government. need a reasonable accommodation to [FR Doc. 2020–12110 Filed 6–4–20; 8:45 am] National Council on the Arts 200th participate in these public meetings or BILLING CODE 7515–01–P Meeting need this meeting notice or the transcript or other information from the This meeting will be held by public meetings in another format (e.g., teleconference. Date and time: June 25, 2020; 3:00 braille, large print), please notify Anne NATIONAL FOUNDATION ON THE p.m. to 3:30 p.m. Silk, NRC Disability Program Specialist, ARTS AND THE HUMANITIES There will be opening remarks and at 301–287–0745, by videophone at 240–428–3217, or by email at National Endowment for the Arts voting on recommendations for grant funding and rejection, followed by [email protected]. Determinations on updates from the NEA Chairman. requests for reasonable accommodation National Council on the Arts 200th will be made on a case-by-case basis. Meeting Dated: June 2, 2020. Members of the public may request to Sherry Hale, AGENCY: National Endowment for the receive this information electronically. Arts, National Foundation on the Arts Staff Assistant, National Endowment for the If you would like to be added to the and the Humanities. Arts. distribution, please contact the Nuclear [FR Doc. 2020–12246 Filed 6–4–20; 8:45 am] Regulatory Commission, Office of the ACTION: Notice of meeting. BILLING CODE 7537–01–P Secretary, Washington, DC 20555 (301–
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415–1969), or by email at public meetings in another format (e.g., request(s) may propose the addition or [email protected] or Tyesha.Bush@ braille, large print), please notify Anne removal of a negotiated service nrc.gov. Silk, NRC Disability Program Specialist, agreement from the market dominant or The NRC is holding the meetings at 301–287–0745, by videophone at the competitive product list, or the under the authority of the Government 240–428–3217, or by email at modification of an existing product in the Sunshine Act, 5 U.S.C. 552b. [email protected]. Determinations on currently appearing on the market Dated: June 3, 2020. requests for reasonable accommodation dominant or the competitive product For the Nuclear Regulatory Commission. will be made on a case-by-case basis. list. Members of the public may request to Denise L. McGovern, Section II identifies the docket receive this information electronically. Policy Coordinator, Office of the Secretary. If you would like to be added to the number(s) associated with each Postal [FR Doc. 2020–12373 Filed 6–3–20; 4:15 pm] distribution, please contact the Nuclear Service request, the title of each Postal BILLING CODE 7590–01–P Regulatory Commission, Office of the Service request, the request’s acceptance Secretary, Washington, DC 20555 (301– date, and the authority cited by the 415–1969), or by email at Postal Service for each request. For each NUCLEAR REGULATORY [email protected] or Tyesha.Bush@ request, the Commission appoints an COMMISSION nrc.gov. officer of the Commission to represent [NRC–2020–0001] The NRC is holding the meetings the interests of the general public in the under the authority of the Government proceeding, pursuant to 39 U.S.C. 505 Sunshine Act Meetings in the Sunshine Act, 5 U.S.C. 552b. (Public Representative). Section II also Dated: June 3, 2020. establishes comment deadline(s) TIME AND DATE: Week of June 1, 2020. pertaining to each request. PLACE: via Teleconference. For the Nuclear Regulatory Commission. The public portions of the Postal STATUS: Open. Denise L. McGovern, Policy Coordinator, Office of the Secretary. Service’s request(s) can be accessed via Week of June 1, 2020 [FR Doc. 2020–12314 Filed 6–3–20; 11:15 am] the Commission’s website (http:// www.prc.gov). Non-public portions of Thursday, June 4, 2020 BILLING CODE 7590–01–P the Postal Service’s request(s), if any, 2:30 p.m. Affirmation Session (Public can be accessed through compliance Meeting via Teleconference) POSTAL REGULATORY COMMISSION with the requirements of 39 CFR (Tentative) Entergy Nuclear 3011.301.1 Operations, Inc., Entergy Nuclear [Docket Nos. MC2020–147 and CP2020–158] Generation Co., Holtec The Commission invites comments on International, and Holtec New Postal Products whether the Postal Service’s request(s) Decommissioning International, in the captioned docket(s) are consistent AGENCY: LLC (Pilgrim Nuclear Power Postal Regulatory Commission. with the policies of title 39. For Station)—Petitions for Intervention ACTION: Notice. request(s) that the Postal Service states (Tentative) (Contact: Denise concern market dominant product(s), SUMMARY: The Commission is noticing a McGovern: 301–415–0681) applicable statutory and regulatory recent Postal Service filing for the requirements include 39 U.S.C. 3622, 39 Additional Information: By a vote of Commission’s consideration concerning 4–0 on June 2, 2020, the Commission U.S.C. 3642, 39 CFR part 3030, and 39 negotiated service agreements. This CFR part 3040, subpart B. For request(s) determined pursuant to U.S.C. 552b(e) notice informs the public of the filing, that the Postal Service states concern and ’9.107(a) of the Commission’s rules invites public comment, and takes other competitive product(s), applicable that the above referenced Affirmation administrative steps. Session be held with less than one week statutory and regulatory requirements DATES: Comments are due: June 9, 2020. notice to the public. The meeting is include 39 U.S.C. 3632, 39 U.S.C. 3633, scheduled on June 4, 2020, and will be ADDRESSES: Submit comments 39 U.S.C. 3642, 39 CFR part 3035, and held via teleconference. Details for electronically via the Commission’s 39 CFR part 3040, subpart B. Comment joining the teleconference in listen only Filing Online system at http:// deadline(s) for each request appear in mode can be found at https:// www.prc.gov. Those who cannot submit section II. www.nrc.gov/pmns/mtg. comments electronically should contact FOR FURTHER II. Docketed Proceeding(s) CONTACT PERSON FOR MORE INFORMATION: the person identified in the INFORMATION CONTACT section by For more information or to verify the 1. Docket No(s).: MC2020–147 and status of meetings, contact Denise telephone for advice on filing alternatives. CP2020–158; Filing Title: USPS Request McGovern at 301–415–0681 or via email to Add Priority Mail Express, Priority at [email protected]. The FOR FURTHER INFORMATION CONTACT: Mail, First-Class Package Service & schedule for Commission meetings is David A. Trissell, General Counsel, at Parcel Select Contract 5 to Competitive subject to change on short notice. 202–789–6820. Product List and Notice of Filing The NRC Commission Meeting SUPPLEMENTARY INFORMATION: Materials Under Seal; Filing Acceptance Schedule can be found on the internet Table of Contents Date: June 1, 2020; Filing Authority: 39 at: https://www.nrc.gov/public-involve/ U.S.C. 3642, 39 CFR 3040.130 et seq., public-meetings/schedule.html. I. Introduction and 39 CFR 3035.105; Public The NRC provides reasonable II. Docketed Proceeding(s) Representative: Kenneth R. Moeller; accommodation to individuals with Comments Due: June 9, 2020. disabilities where appropriate. If you I. Introduction need a reasonable accommodation to The Commission gives notice that the 1 See Docket No. RM2018–3, Order Adopting participate in these public meetings or Postal Service filed request(s) for the Final Rules Relating to Non-Public Information, need this meeting notice or the Commission to consider matters related June 27, 2018, Attachment A at 19–22 (Order No. transcript or other information from the to negotiated service agreement(s). The 4679).
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This Notice will be published in the which renders the proposal effective The MSRB continues to monitor Federal Register. upon filing with the Commission. announcements by the Federal Reserve to understand how the Facility will Erica A. Barker, The text of the proposed rule change is available on the MSRB’s website at operate in conjunction with MSRB Secretary. www.msrb.org/Rules-and- rules.9 The Facility intends to provide a [FR Doc. 2020–12209 Filed 6–4–20; 8:45 am] Interpretations/SEC-Filings/2020- liquidity backstop to certain issuers BILLING CODE 7710–FW–P Filings.aspx, at the MSRB’s principal through a special purpose vehicle office, and at the Commission’s Public (‘‘SPV’’). The SPV may purchase certain Reference Room. Eligible Notes through a direct sale to the SPV or, if there is a competitive sale SECURITIES AND EXCHANGE II. Self-Regulatory Organization’s COMMISSION process, the SPV generally will not Statement of the Purpose of, and submit a bid in the competitive sale [Release No. 34–88986; File No. SR–MSRB– Statutory Basis for, the Proposed Rule process, but instead may agree to 2020–03] Change purchase such municipal securities that In its filing with the Commission, the are not awarded to other bidders.10 Self-Regulatory Organizations; MSRB included statements concerning Based on the information currently Municipal Securities Rulemaking the purpose of and basis for the available regarding the operation of the Board; Notice of Filing and Immediate proposed rule change and discussed any MLF, the MSRB believes that the MLF Effectiveness of a Proposed Rule comments it received on the proposed would be a customer for purposes of Change To Waive MSRB Market rule change. The text of these statements Rule A–13 and, therefore, the Activity Fees Related to Transactions may be examined at the places specified underwriting, transaction and With the Municipal Liquidity Facility in Item IV below. The MSRB has technology assessments under Rule A– Established by the Board of Governors prepared summaries, set forth in 13 would be applicable to dealers’ of the Federal Reserve System Sections A, B, and C below, of the most transactions with the MLF. The MSRB recognizes that dealers are experiencing June 1, 2020. significant aspects of such statements. operational challenges coupled with Pursuant to Section 19(b)(1) of the A. Self-Regulatory Organization’s unprecedented conditions in the Securities Exchange Act of 1934 (‘‘Act’’ Statement of the Purpose of, and 1 municipal market due to the COVID–19 or ‘‘Exchange Act’’) and Rule 19b–4 Statutory Basis for, the Proposed Rule 11 2 pandemic. The MSRB is proposing to thereunder, notice is hereby given that Change waive these market activity fees for on May 28, 2020 the Municipal 1. Purpose transactions conducted with the MLF. Securities Rulemaking Board (‘‘MSRB’’) Specifically, the MSRB is proposing to filed with the Securities and Exchange The MSRB is closely monitoring the provide a temporary waiver to dealers Commission (‘‘SEC’’ or ‘‘Commission’’) impact of the coronavirus disease for the assessment of the: the proposed rule change as described (‘‘COVID–19’’) pandemic on the • Underwriting fee in the amount in Items I, II, and III below, which Items municipal market and municipal market .00275% ($.0275 per $1,000) of the par have been prepared by the MSRB. The participants, including issuers, value pursuant to Rule A–13(c)(i) on the Commission is publishing this notice to investors, dealers and municipal par amount of the primary offering that solicit comments on the proposed rule advisors.5 The Federal Reserve, noting is purchased by or on behalf of the MLF; change from interested persons. that ‘‘[t]he municipal securities market • Transaction fee on sales to the MLF I. Self-Regulatory Organization’s is an important part of the financial in the amount equal to .001% ($.01 per Statement of the Terms of Substance of system, which helps provide states, $1,000) of the total par value of sales to the Proposed Rule Change cities, and counties (and their political customers that it reports to the Board subdivisions and other governmental under MSRB Rule G–14(b), on reports of The MSRB filed with the Commission entities) with the funding needed to sales and purchases, pursuant to Rule a proposed rule change consisting of a provide essential public services to their A–13(d)(ii); and proposed amendment to MSRB Rule A– citizens,’’ 6 established the MLF, which • Technology fee of $1.00 per 13 regarding underwriting and has been authorized under Section 13(3) transaction for sales to the MLF that it transaction assessments for brokers, of the Federal Reserve Act.7 ‘‘The reports to the Board under Rule G–14(b), dealers and municipal securities dealers immediate purpose of the MLF is to pursuant to Rule A–13(d)(iv)(b). (collectively ‘‘dealers’’) to waive certain enhance the liquidity of the primary The MSRB intends the waiver to be underwriting, transaction and short-term municipal securities market temporary and to expire at the same technology assessments (‘‘market through the purchase at issuance of Tax time as the MLF. The MLF is currently activity fees’’) related to transactions Anticipation Notes (‘‘TANs’’), Tax and scheduled to cease purchasing Eligible with the Municipal Liquidity Facility Revenue Anticipation Notes (‘‘TRANs’’), Notes on December 31, 2020, unless the (‘‘Facility’’ or ‘‘MLF’’) established by the Bond Anticipation Notes (‘‘BANs’’), and Federal Reserve Board of Governors and Board of Governors of the Federal similar short-term notes’’ (collectively, the Treasury Department extend the Reserve System (‘‘Federal Reserve’’) (the ‘‘Eligible Notes’’).8 program.12 The MSRB will waive the ‘‘proposed rule change’’) as described market activity fees assessed on below. The MSRB has designated the 5 Wall Street Journal: How the Muni Market proposed rule change as ‘‘establishing or Became the Epicenter of the Liquidity Crisis (April 9 See e.g., Federal Reserve Bank of New York, changing a due, fee, or other charge’’ 2, 2020) https://www.wsj.com/articles/how-the- Term Sheet regarding the Facility (May 11, 2020) under Section 19(b)(3)(A)(ii) of the Act 3 muni-market-became-the-epicenter-of-the-liquidity- (‘‘Fed Term Sheet’’) https://www.federalreserve.gov/ and Rule 19b–4(f)(2) 4 thereunder, crisis-11585823404. newsevents/pressreleases/files/monetary 6 Federal Reserve Bank of New York, FAQs: 20200511a1.pdf. Municipal Liquidity Facility (‘‘Fed FAQs’’) https:// 10 See Fed FAQs. 1 15 U.S.C. 78s(b)(1). www.newyorkfed.org/markets/municipal-liquidity- 11 Supra note 5. 2 17 CFR 240.19b–4. facility/municipal-liquidity-facility-faq. 12 The Federal Reserve Bank will continue to fund 3 15 U.S.C. 78s(b)(3)(A)(ii). 7 12 U.S.C. 343 (1932). the SPV after such date until the SPV’s underlying 4 17 CFR 240.19b–4(f)(2). 8 Fed FAQs. assets mature or are sold. See Fed Term Sheet.
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transactions with the MLF by issuing a The temporary waiver would be IV. Solicitation of Comments credit for the amount of the applicable applicable to a limited number of assessment. The amount of the fees to be transactions for a limited duration, Interested persons are invited to waived will be displayed on a monthly consistent with the operation of the submit written data, views, and statement as a credit against the gross MLF.15 The MSRB believes that the arguments concerning the foregoing, billing and netted to indicate the waiver would not materially alter the including whether the proposed rule amount due. Consistent with Rule A– total amount of fees collected by the change is consistent with the Act. 13(e), the amount due is to be paid MSRB or negatively impact its long-term Comments may be submitted by any of within 30 days of the sending of the sustainability, thereby continuing to the following methods: invoice by the Board. ensure that the MSRB is sufficiently Electronic Comments 2. Statutory Basis capitalized to meet its regulatory responsibilities. Accordingly, the MSRB • The MSRB believes that the proposed Use the Commission’s internet believes that the proposed waiver of comment form (http://www.sec.gov/ rule change is consistent with Section certain assessments on a temporary 13 rules/sro.shtml); or 15B(b)(2)(C) of the Act, which basis is reasonable and appropriate. provides that the MSRB’s rules shall: • Send an email to rule-comments@ be designed to prevent fraudulent and B. Self-Regulatory Organization’s sec.gov. Please include File Number SR– manipulative acts and practices, to promote Statement on Burden on Competition MSRB–2020–03 on the subject line.
just and equitable principles of trade, to 16 foster cooperation and coordination with Section 15B(b)(2)(C) of the Act Paper Comments requires that MSRB rules be designed persons engaged in regulating, clearing, • settling, processing information with respect not to impose any burden on Send paper comments in triplicate to, and facilitating transactions in municipal competition not necessary or to Secretary, Securities and Exchange securities and municipal financial products, appropriate in furtherance of the Commission, 100 F Street NE, to remove impediments to and perfect the purposes of the Act. The goal of the Washington, DC 20549. mechanism of a free and open market in proposed rule change is to provide relief municipal securities and municipal financial All submissions should refer to File products, and, in general, to protect during the exigent circumstances of the Number SR–MSRB–2020–03. This file COVID–19 pandemic. The relief will investors, municipal entities, obligated number should be included on the apply equally to all dealers and extend persons, and the public interest. subject line if email is used. To help the for the duration of the MLF.17 The MSRB believes that dealers’ Commission process and review your transactions with the MLF will serve to Accordingly, the MSRB does not believe that the proposed rule change would comments more efficiently, please use facilitate the smooth functioning of the only one method. The Commission will municipal securities market during result in any burden on competition that is not necessary or appropriate in post all comments on the Commission’s times of strain resulting from the internet website (http://www.sec.gov/ COVID–19 pandemic. Providing a furtherance of the purposes of the Exchange Act. rules/sro.shtml). Copies of the waiver of market activity fees resulting submission, all subsequent from such transactions will help to C. Self-Regulatory Organization’s amendments, all written statements provide liquidity for the municipal Statement on Comments on the with respect to the proposed rule market and serve to remove Proposed Rule Change Received From change that are filed with the impediments to and perfect the Members, Participants, or Others mechanism of a free and open market in Commission, and all written municipal securities without impacting Written comments were neither communications relating to the the protection of investors, municipal solicited nor received on the proposed proposed rule change between the entities, obligated persons, and the rule change. Commission and any person, other than public interest. those that may be withheld from the The MSRB also believes that the III. Date of Effectiveness of the public in accordance with the proposed rule change is consistent with Proposed Rule Change and Timing for provisions of 5 U.S.C. 552, will be Section 15B(b)(2)(J) of the Act 14 which Commission Action available for website viewing and requires, in pertinent part, that the The foregoing proposed rule change printing in the Commission’s Public MSRB’s rules shall provide that each has become effective pursuant to Reference Room, 100 F Street NE, municipal securities broker, municipal Section 19(b)(3)(A) of the Act 18 and Washington, DC 20549 on official securities dealer, and municipal advisor paragraph (f) of Rule 19b–4 business days between the hours of shall pay to the Board such reasonable thereunder.19 At any time within 60 10:00 a.m. and 3:00 p.m. Copies of the fees and charges as may be necessary or days of the filing of the proposed rule filing also will be available for appropriate to defray the costs and change, the Commission summarily may inspection and copying at the principal expenses of operating and administering temporarily suspend such rule change if office of the MSRB. All comments the Board and that such rules shall it appears to the Commission that such received will be posted without change. specify the amount of such fees and action is necessary or appropriate in the Persons submitting comments are charges. The MSRB recognizes that dealers are public interest, for the protection of cautioned that we do not redact or edit experiencing operational challenges investors, or otherwise in furtherance of personal identifying information from coupled with unprecedented conditions the purposes of the Act. comment submissions. You should in the municipal market due to the submit only information that you wish COVID–19 pandemic and believes this 15 See Fed Term Sheet. to make available publicly. All 16 temporary waiver of certain market 15 U.S.C. 78o–4(b)(2)(C). submissions should refer to File 17 Currently, the MLF is planning to only activity fees will provide some relief. purchase Eligible Notes until December 31, 2020. Number SR–MSRB–2020–03 and should See Fed Term Sheet. be submitted on or before June 26, 2020. 13 15 U.S.C. 78o–4(b)(2)(C). 18 15 U.S.C. 78s(b)(3)(A). 14 15 U.S.C. 78o–4(b)(2)(J). 19 17 CFR 240.19b–4(f).
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For the Commission, pursuant to delegated and basis for, the proposed rule change ICE, which publishes the GIF, authority.20 and discussed any comments it received announced to its customers that connect J. Matthew DeLesDernier, on the proposed rule change. The text to the GIF that it will no longer offer the Assistant Secretary. of those statements may be examined at GIF as a stand-alone product. [FR Doc. 2020–12167 Filed 6–4–20; 8:45 am] the places specified in Item IV below. Accordingly, the Exchange proposes to BILLING CODE 8011–01–P The Exchange has prepared summaries, cease offering connectivity to the GIF set forth in sections A, B, and C below, once it is no longer available. The of the most significant parts of such Exchange has been informed by ICE that SECURITIES AND EXCHANGE statements. cessation is currently expected to occur COMMISSION before the end of 2020. The Exchange A. Self-Regulatory Organization’s will announce the operative date [Release No. 34–88979; File No. SR– Statement of the Purpose of, and the through a customer notice. NYSEAMER–2020–40] Statutory Basis for, the Proposed Rule Users are subject to a change fee if Change Self-Regulatory Organizations; NYSE they request a change to one or more 8 American LLC; Notice of Filing and 1. Purpose existing co-location services. The Exchange proposes to waive any change Immediate Effectiveness of Proposed The Exchange proposes to amend the Rule Change To Amend the NYSE fees that a User would otherwise incur Price List and Fee Schedule related to as a result of the proposed change. American Equities Price List and the co-location 4 services offered by the NYSE American Options Fee Schedule In order to implement the proposed Exchange with respect to connectivity to change, the Exchange proposes to make Related to Co-Location Services the ICE Data Global Index (‘‘GIF’’) and the following changes to the section June 1, 2020. to waive any change fees that a User entitled ‘‘Connectivity to Third Party would otherwise incur as a result of the Pursuant to Section 19(b)(1) 1 of the Data Feeds’’: proposed change. • Securities Exchange Act of 1934 (the In the first paragraph and in the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 Proposed Change table of Third Party Data Feeds, add an notice is hereby given that on May 18, asterisk after ‘‘ICE Data Global Index.’’ The Exchange offers Users 5 • Following the table of Third Party 2020, NYSE American LLC (‘‘NYSE connectivity to data feeds from third American’’ or the ‘‘Exchange’’) filed Data Feeds, add the following text: party markets and other content service * ICE will cease to offer the GIF as a with the Securities and Exchange providers (‘‘Third Party Data Feeds’’).6 stand-alone product, which the Commission (the ‘‘Commission’’) the The list of Third Party Data Feeds is set Exchange has been informed by ICE is proposed rule change as described in forth in the Price List and Fee Schedule, currently expected to occur before the Items I and II below, which Items have and includes connectivity to the GIF for end of 2020. The Exchange will been prepared by the self-regulatory a monthly connectivity fee of $100.7 announce the operative date through a organization. The Commission is customer notice. Any change fees that a publishing this notice to solicit 4 The Exchange initially filed rule changes User would otherwise incur as a result comments on the proposed rule change relating to its co-location services with the of the proposed change will be waived. from interested persons. Securities and Exchange Commission (‘‘Commission’’) in 2010. See Securities Exchange The GIF includes the values of I. Self-Regulatory Organization’s Act Release No. 62961 (September 21, 2010), 75 FR various indices and exchange traded Statement of the Terms of Substance of 59299 (September 27, 2010) (SR–NYSEAmex–2010– product data.9 Based on information the Proposed Rule Change 80). The Exchange is an indirect subsidiary of published by ICE Data Services, all the Intercontinental Exchange, Inc. (‘‘ICE’’). Through its data in the GIF was already available on The Exchange proposes to amend the ICE Data Services (‘‘IDS’’) business, ICE operates a the ICE Data Services Consolidated Feed NYSE American Equities Price List and data center in Mahwah, New Jersey (the ‘‘data center’’), from which the Exchange provides co- (‘‘Consolidated Feed’’).10 The Exchange the NYSE American Options Fee location services to Users. offers connectivity to the Consolidated Schedule (together, the ‘‘Price List and 5 For purposes of the Exchange’s co-location Feed, and does not propose to change Fee Schedule’’) related to co-location services, a ‘‘User’’ means any market participant services with respect to connectivity to that requests to receive co-location services directly from the Exchange. See Securities Exchange Act No. 79672 (December 22, 2016), 81 FR 96080 the ICE Data Global Index and to waive Release No. 76009 (September 29, 2015), 80 FR (December 29, 2016) (SR–NYSEMKT–2016–63) any change fees that a User would 60213 (October 5, 2015) (SR–NYSEMKT–2015–67). (notice of filing of Amendments Nos. 2 and 3 to otherwise incur as a result of the As specified in the Price List and Fee Schedule, a proposed rule change to amend the co-location proposed change. The proposed rule User that incurs co-location fees for a particular co- services offered by the Exchange to add certain location service pursuant thereto would not be access and connectivity fees). change is available on the Exchange’s subject to co-location fees for the same co-location 8 See Securities Exchange Act Release Nos. 67664 website at www.nyse.com, at the service charged by the Exchange’s affiliates the New (August 15, 2012), 77 FR 50733 (August 22, 2012) principal office of the Exchange, and at York Stock Exchange LLC, NYSE Arca, Inc., NYSE (SR–NYSEMKT–2012–10) (order approving a the Commission’s Public Reference Chicago, Inc., and NYSE National, Inc. (collectively, proposed rule change amending the NYSE MKT the ‘‘Affiliate SROs’’). Each Affiliate SRO has Price List to provide for additional co-location Room. submitted substantially the same proposed rule services and establish related fees), and 67665 II. Self-Regulatory Organization’s change to propose the changes described herein. (August 15, 2012), 77 FR 50734 (August 22, 2012) See SR–NYSE–2020–46, SR–NYSEArca–2020–49, (SR–NYSEMKT–2012–11) (order approving a Statement of the Purpose of, and SR–NYSECHX–2020–17, and SR–NYSENAT–2020– proposed rule change amending the NYSE Amex Statutory Basis for, the Proposed Rule 19. Options Fee Schedule to provide for additional co- Change 6 See Securities Exchange Act Release No. 80309 location services and establish related fees). (March 24, 2017), 82 FR 15725 (March 30, 2017) 9 The Exchange understands that some of the In its filing with the Commission, the (SR–NYSEMKT–2016–63) (notice of filing of Partial indices may include Exchange or Affiliate SRO data self-regulatory organization included Amendment No. 4 and order granting accelerated as underlying components, but the GIF does not statements concerning the purpose of, approval of a proposed rule change, as modified by include those underlying components or other Amendment Nos. 1 through 4, to amend the co- information directly from the Exchange and location services offered by the Exchange to add Affiliate SROs. 20 17 CFR 200.30–3(a)(12). certain access and connectivity fees). 10 See ‘‘Consolidated Data Feed Coverage List— 1 15 U.S.C. 78s(b)(1). 7 The Exchange has an indirect interest in the GIF Indices and Indicators’’ at https://www.theice.com/ 2 15 U.S.C. 78a. because ICE is the Exchange’s ultimate parent. See market-data/connectivity-and-feeds/consolidated- 3 17 CFR 240.19b–4. id., at 15733, and Securities Exchange Act Release feed/coverage-list.
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the price for such connectivity. In broader forms that are most important to The Exchange believes that it is addition, the Exchange’s connectivity to investors and listed companies.’’ 11 reasonable and equitable that it waive the GIF and the Consolidated Feed The proposed change is not otherwise any change fees that a User would should have approximately the same intended to address any other issues otherwise incur as a result of the latency. relating to co-location services and/or proposed change, as Users would have related fees, and the Exchange is not no choice but to terminate connectivity Application and Impact of the Proposed aware of any problems that Users would to the GIF. The fee waiver would help Change have in complying with the proposed to alleviate any burden related to the The proposed change would not change. change. apply differently to distinct types or sizes of market participants. Rather, it 2. Statutory Basis The Proposed Rule Change Would would apply to all Users equally. As is The Exchange believes that the Protect Investors and the Public Interest currently the case, the purchase of any proposed rule change is consistent with The Exchange believes that the colocation service is completely Section 6(b) of the Act,12 in general, and proposed rule change would perfect the voluntary and the Price List and Fee furthers the objectives of Sections mechanisms of a free and open market Schedule are applied uniformly to all 6(b)(4) and (5) of the Act,13 in particular, and a national market system and, in Users. because it provides for the equitable general, protect investors and the public Currently, there are seven Users that allocation of reasonable dues, fees, and interest for the following reasons. have connectivity to the GIF, and so other charges among its members, It would be against the protection of would be affected by the change. If any issuers and other persons using its investors and the public interest if the of them wish to continue having facilities and does not unfairly Exchange were to continue to offer connectivity to the information in the discriminate between customers, something that it cannot provide GIF, they could connect to the issuers, brokers or dealers. In addition, because the relevant feed has been Consolidated Feed, which none of them it is designed to foster cooperation and discontinued. Adding the proposed note do presently. The monthly cost for coordination with persons engaged in to its Price List and Fee Schedule would connectivity to the Consolidated Feed regulating, clearing, settling, processing reduce any potential ambiguity and depends on the size of the bandwidth information with respect to, and provide clarification concerning the utilized. If a User opts to connect to the facilitating transactions in securities, to availability and the costs of connectivity Consolidated Feed to connect to the remove impediments to, and perfect the to Third Party Data Feeds available to information in the GIF, the monthly mechanisms of, a free and open market Users, because it would highlight that connectivity cost charged by the and a national market system and, in the GIF will become obsolete, provide a Exchange would be $200. general, to protect investors and the timeline for the change, and state that ICE has informed the Exchange that public interest and because it is not any change fees that a User would currently there are various third parties designed to permit unfair otherwise incur as a result of the that offer Users connectivity to the discrimination between customers, proposed change would be waived. Consolidated Feed. To use such third issuers, brokers, or dealers. party connectivity to the Consolidated The Proposed Change Is Not Unfairly Feed, a User may utilize the IDS The Proposed Rule Change Is Discriminatory network, a third party Reasonable and Equitable The Exchange believes that the telecommunication network, a cross The Exchange believes that the proposed change is not unfairly connect, or a combination thereof to proposed rule change is reasonable and discriminatory for the following access the Consolidated Feed through a equitable for the following reasons. reasons. connection to an access center outside The Exchange believes that it is The proposed change would not the data center (which could be an IDS reasonable and an equitable allocation apply differently to distinct types or access center, a third-party access of its fees and credits to add a note to sizes of market participants. Rather, it center, or both), another User, or a third its Price List and Fee Schedule stating would apply to all Users equally. As a party vendor. that ICE will cease to offer the GIF as a consequence of ICE’s ceasing to offer the GIF as a stand-alone product, the Competitive Environment stand-alone product, as the Exchange will no longer be able to offer the Exchange will not be able to provide The Exchange operates in a highly service once that occurs. any Users with connectivity to the GIF. competitive market in which exchanges If a User wishes connectivity to the If a User wishes connectivity to the and other vendors (e.g., Hosting Users) information in the GIF, the Users could information in the GIF, the Users could offer co-location services as a means to connect to the Consolidated Feed connect to the Consolidated Feed facilitate the trading and other market through IDS or from a third party through the Exchange. If any of the activities of those market participants provider. A User may utilize the IDS seven Users that have connectivity to who believe that co-location enhances network, a third party the GIF opt to connect to the the efficiency of their operations. The telecommunication network, a cross Consolidated Feed, the monthly Commission has repeatedly expressed connect, or a combination thereof to connectivity cost charged by the its preference for competition over access the Consolidated Feed, through a Exchange would be $200. ICE has informed the Exchange that regulatory intervention in determining connection to an access center outside currently there are various third parties prices, products, and services in the the data center (which could be an IDS that offer Users connectivity to the securities markets. Specifically, in access center, a third-party access Consolidated Feed. To use such third Regulation NMS, the Commission center, or both), another User, or a third party connectivity to the Consolidated highlighted the importance of market party vendor. forces in determining prices and SRO Feed, a User may utilize the IDS revenues and, also, recognized that 11 See Securities Exchange Act Release No. 51808 network, a third party current regulation of the market system (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005). telecommunication network, a cross ‘‘has been remarkably successful in 12 15 U.S.C. 78f(b). connect, or a combination thereof to promoting market competition in its 13 15 U.S.C. 78f(b)(4) and (5). access the Consolidated Feed, through a
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connection to an access center outside party connectivity to the Consolidated C. Self-Regulatory Organization’s the data center (which could be an IDS Feed, a User may utilize the IDS Statement on Comments on the access center, a third-party access network, a third party Proposed Rule Change Received From center, or both), another User, or a third telecommunication network, a cross Members, Participants, or Others party vendor. connect, or a combination thereof to No written comments were solicited For the reasons above, the proposed access the Consolidated Feed, through a or received with respect to the proposed changes do not unfairly discriminate connection to an access center outside rule change. between or among market participants the data center (which could be an IDS that are otherwise capable of satisfying access center, a third-party access III. Date of Effectiveness of the any applicable co-location fees, center, or both), another User, or a third Proposed Rule Change and Timing for requirements, terms and conditions party vendor. Commission Action established from time to time by the Use of any co-location service is The Exchange has filed the proposed Exchange. completely voluntary, and each market rule change pursuant to Section For these reasons, the Exchange 16 participant is able to determine whether 19(b)(3)(A)(iii) of the Act and Rule believes that the proposal is consistent 19b–4(f)(6) thereunder.17 Because the with the Act. to use co-location services based on the requirements of its business operations. proposed rule change does not: (i) B. Self-Regulatory Organization’s Significantly affect the protection of Statement on Burden on Competition Intermarket Competition investors or the public interest; (ii) impose any significant burden on In accordance with Section 6(b)(8) of The Exchange does not believe that competition; and (iii) become operative 14 the Act, the Exchange believes that the the proposed fee would impose any prior to 30 days from the date on which proposed rule change will not impose burden on intermarket competition that it was filed, or such shorter time as the any burden on competition that is not is not necessary or appropriate. Commission may designate, if necessary or appropriate in furtherance The Exchange operates in a highly consistent with the protection of of the purposes of the Act. competitive market in which exchanges investors and the public interest, the Intramarket Competition and other vendors (i.e., Hosting Users) proposed rule change has become effective pursuant to Section 19(b)(3)(A) The Exchange does not believe that offer co-location services as a means to facilitate the trading and other market of the Act and Rule 19b–4(f)(6)(iii) the proposed change would place any thereunder. burden on intramarket competition that activities of those market participants who believe that co-location enhances A proposed rule change filed under is not necessary or appropriate. The 18 the efficiency of their operations. Rule 19b–4(f)(6) normally does not proposed change would not apply become operative prior to 30 days after differently to distinct types or sizes of Accordingly, fees charged for co- location services are constrained by the the date of the filing. However, pursuant market participants. Rather, it would 19 active competition for the order flow of, to Rule 19b–4(f)(6)(iii), the apply to all Users equally: As a Commission may designate a shorter consequence of ICE’s ceasing to offer the and other business from, such market participants. time if such action is consistent with the GIF as a stand-alone product, the protection of investors and the public Exchange will not be able to provide The Commission has repeatedly interest. The Exchange has requested any Users with connectivity to the GIF. expressed its preference for competition that the Commission waive the 30-day The Exchange proposes to waive any over regulatory intervention in operative delay so that the proposal may change fees that a User would otherwise determining prices, products, and become operative immediately upon incur as a result of the proposed change. services in the securities markets. filing. The Exchange believes that such Adding the proposed note to the Price Specifically, in Regulation NMS, the waiver would be consistent with the List and Fee Schedule would reduce Commission highlighted the importance protection of investors and the public any potential ambiguity and provide of market forces in determining prices interest because it would allow the clarification concerning the availability and SRO revenues and, also, recognized Exchange to waive the change fee and the costs of connectivity to Third that current regulation of the market sooner. The Commission believes that Party Data Feeds available to Users, system ‘‘has been remarkably successful waiving the 30-day operative delay is because it would highlight that the GIF in promoting market competition in its consistent with the protection of will become obsolete, provide a timeline broader forms that are most important to investors and the public interest for the change, and state that any change investors and listed companies.’’ 15 because it would permit the Exchange, fees that a User would otherwise incur The Exchange believes that the without undue delay, to cease offering as a result of the proposed change proposed change is necessary and the GIF when it becomes unavailable, would be waived. appropriate. Adding the proposed note provide notice to customers and waive If a User wishes connectivity to the to the Price List and Fee Schedule the change fee. Accordingly, the information in the GIF, the Users could would reduce any potential ambiguity Commission waives the 30-day connect to the Consolidated Feed and provide clarification concerning the operative delay and designates the through the Exchange. If any of the availability and the costs of connectivity proposed rule change operative upon seven Users that have connectivity to 20 to Third Party Data Feeds available to filing. the GIF opt to connect to the Users, because it would highlight that At any time within 60 days of the Consolidated Feed, the monthly the GIF will become obsolete and filing of such proposed rule change, the connectivity cost charged by the provide a timeline for the change. Exchange would be $200. 16 15 U.S.C. 78s(b)(3)(A)(iii). ICE has informed the Exchange that For the reasons described above, the 17 17 CFR 240.19b–4(f)(6). currently there are various third parties Exchange believes that the proposed 18 17 CFR 240.19b–4(f)(6). that offer Users connectivity to the rule change reflects this competitive 19 17 CFR 240.19b–4(f)(6)(iii). environment. 20 For purposes only of waiving the 30-day Consolidated Feed. To use such third operative delay, the Commission has considered the proposed rule’s impact on efficiency, competition, 14 15 U.S.C. 78f(b)(8). 15 See 70 FR 37496, supra note 11. and capital formation. See 15 U.S.C. 78c(f).
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Commission summarily may received will be posted without change. II. Self-Regulatory Organization’s temporarily suspend such rule change if Persons submitting comments are Statement of the Purpose of, and it appears to the Commission that such cautioned that we do not redact or edit Statutory Basis for, the Proposed Rule action is necessary or appropriate in the personal identifying information from Change public interest, for the protection of comment submissions. You should In its filing with the Commission, the investors, or otherwise in furtherance of submit only information that you wish self-regulatory organization included the purposes of the Act. If the to make available publicly. All statements concerning the purpose of, Commission takes such action, the submissions should refer to File and basis for, the proposed rule change Commission shall institute proceedings Number SR–NYSEAMER–2020–40 and 21 and discussed any comments it received under Section 19(b)(2)(B) of the Act to should be submitted on or before June on the proposed rule change. The text determine whether the proposed rule 26, 2020. of those statements may be examined at change should be approved or For the Commission, by the Division of the places specified in Item IV below. disapproved. Trading and Markets, pursuant to delegated The Exchange has prepared summaries, 22 IV. Solicitation of Comments authority. set forth in sections A, B, and C below, J. Matthew DeLesDernier, of the most significant parts of such Interested persons are invited to Assistant Secretary. submit written data, views, and statements. [FR Doc. 2020–12156 Filed 6–4–20; 8:45 am] arguments concerning the foregoing, A. Self-Regulatory Organization’s BILLING CODE 8011–01–P including whether the proposed rule Statement of the Purpose of, and the change is consistent with the Act. Statutory Basis for, the Proposed Rule Comments may be submitted by any of SECURITIES AND EXCHANGE Change the following methods: COMMISSION 1. Purpose Electronic Comments [Release No. 34–88985; File No. SR–NYSE– The Exchange proposes to amend the • Use the Commission’s internet 2020–46] Price List related to co-location 4 comment form (http://www.sec.gov/ services offered by the Exchange with Self-Regulatory Organizations; New rules/sro.shtml); or respect to connectivity to the ICE Data • York Stock Exchange LLC; Notice of Send an email to rule-comments@ Global Index (‘‘GIF’’) and to waive any Filing and Immediate Effectiveness of sec.gov. Please include File Number SR– change fees that a User would otherwise Proposed Rule Change To Amend the NYSEAMER–2020–40 on the subject incur as a result of the proposed change. line. Exchange’s Price List Related to Co- Location Services Proposed Change Paper Comments The Exchange offers Users 5 • Send paper comments in triplicate June 1, 2020. 1 connectivity to data feeds from third to Secretary, Securities and Exchange Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the party markets and other content service Commission, 100 F Street NE, 6 2 3 providers (‘‘Third Party Data Feeds’’). Washington, DC 20549–1090. ‘‘Act’’) and Rule 19b–4 thereunder, notice is hereby given that on May 18, The list of Third Party Data Feeds is set All submissions should refer to File 2020, New York Stock Exchange LLC Number SR–NYSEAMER–2020–40. This 4 (‘‘NYSE’’ or the ‘‘Exchange’’) filed with The Exchange initially filed rule changes file number should be included on the relating to its co-location services with the the Securities and Exchange subject line if email is used. To help the Securities and Exchange Commission Commission (the ‘‘Commission’’) the (‘‘Commission’’) in 2010. See Securities Exchange Commission process and review your proposed rule change as described in Act Release No. 62960 (September 21, 2010), 75 FR comments more efficiently, please use Items I and II below, which Items have 59310 (September 27, 2010) (SR–NYSE–2010–56). only one method. The Commission will The Exchange is an indirect subsidiary of been prepared by the self-regulatory post all comments on the Commission’s Intercontinental Exchange, Inc. (‘‘ICE’’). Through its organization. The Commission is ICE Data Services (‘‘IDS’’) business, ICE operates a internet website (http://www.sec.gov/ publishing this notice to solicit data center in Mahwah, New Jersey (the ‘‘data rules/sro.shtml). Copies of the comments on the proposed rule change center’’), from which the Exchange provides co- submission, all subsequent location services to Users. from interested persons. amendments, all written statements 5 For purposes of the Exchange’s co-location with respect to the proposed rule I. Self-Regulatory Organization’s services, a ‘‘User’’ means any market participant that requests to receive co-location services directly change that are filed with the Statement of the Terms of Substance of from the Exchange. See Securities Exchange Act Commission, and all written the Proposed Rule Change Release No. 76008 (September 29, 2015), 80 FR communications relating to the The Exchange proposes to amend the 60190 (October 5, 2015) (SR–NYSE–2015–40). As proposed rule change between the specified in the Price List, a User that incurs co- Exchange’s Price List related to co- location fees for a particular co-location service Commission and any person, other than location services with respect to pursuant thereto would not be subject to co-location those that may be withheld from the connectivity to the ICE Data Global fees for the same co-location service charged by the public in accordance with the Index and to waive any change fees that Exchange’s affiliates NYSE American LLC, NYSE provisions of 5 U.S.C. 552, will be Arca, Inc., NYSE Chicago, Inc., and NYSE National, a User would otherwise incur as a result Inc. (collectively, the ‘‘Affiliate SROs’’). Each available for website viewing and of the proposed change. The proposed Affiliate SRO has submitted substantially the same printing in the Commission’s Public rule change is available on the proposed rule change to propose the changes Reference Room, 100 F Street NE, Exchange’s website at www.nyse.com, at described herein. See SR–NYSEAmer–2020–40, Washington, DC 20549 on official SR–NYSEArca–2020–49, SR–NYSECHX–2020–17, the principal office of the Exchange, and and SR–NYSENAT–2020–19. business days between the hours of at the Commission’s Public Reference 6 See Securities Exchange Act Release No. 80311 10:00 a.m. and 3:00 p.m. Copies of the Room. (March 24, 2017), 82 FR 15741 (March 30, 2017) filing also will be available for (SR–NYSE–2016–45) (notice of filing of Partial Amendment No. 4 and order granting accelerated inspection and copying at the principal 22 17 CFR 200.30–3(a)(12). approval of a proposed rule change, as modified by office of the Exchange. All comments 1 15 U.S.C. 78s(b)(1). Amendment Nos. 1 through 4, to amend the co- 2 15 U.S.C. 78a. location services offered by the Exchange to add 21 15 U.S.C. 78s(b)(2)(B). 3 17 CFR 240.19b–4. certain access and connectivity fees).
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forth in the Price List, and includes offers connectivity to the Consolidated promoting market competition in its connectivity to the GIF for a monthly Feed, and does not propose to change broader forms that are most important to connectivity fee of $100.7 the price for such connectivity. In investors and listed companies.’’ 11 ICE, which publishes the GIF, addition, the Exchange’s connectivity to The proposed change is not otherwise announced to its customers that connect the GIF and the Consolidated Feed intended to address any other issues to the GIF that it will no longer offer the should have approximately the same relating to co-location services and/or GIF as a stand-alone product. latency. related fees, and the Exchange is not Accordingly, the Exchange proposes to aware of any problems that Users would Application and Impact of the Proposed cease offering connectivity to the GIF have in complying with the proposed Change once it is no longer available. The change. The proposed change would not Exchange has been informed by ICE that 2. Statutory Basis cessation is currently expected to occur apply differently to distinct types or before the end of 2020. The Exchange sizes of market participants. Rather, it The Exchange believes that the will announce the operative date would apply to all Users equally. As is proposed rule change is consistent with 12 through a customer notice. currently the case, the purchase of any Section 6(b) of the Act, in general, and Users are subject to a change fee if colocation service is completely furthers the objectives of Sections 13 they request a change to one or more voluntary and the Price List is applied 6(b)(4) and (5) of the Act, in particular, existing co-location services.8 The uniformly to all Users. because it provides for the equitable Exchange proposes to waive any change Currently, there are seven Users that allocation of reasonable dues, fees, and fees that a User would otherwise incur have connectivity to the GIF, and so other charges among its members, as a result of the proposed change. would be affected by the change. If any issuers and other persons using its In order to implement the proposed of them wish to continue having facilities and does not unfairly change, the Exchange proposes to make connectivity to the information in the discriminate between customers, the following changes to the section GIF, they could connect to the issuers, brokers or dealers. In addition, entitled ‘‘Connectivity to Third Party Consolidated Feed, which none of them it is designed to foster cooperation and Data Feeds’’: do presently. The monthly cost for coordination with persons engaged in • In the first paragraph and in the connectivity to the Consolidated Feed regulating, clearing, settling, processing table of Third Party Data Feeds, add an depends on the size of the bandwidth information with respect to, and asterisk after ‘‘ICE Data Global Index.’’ utilized. If a User opts to connect to the facilitating transactions in securities, to • Following the table of Third Party Consolidated Feed to connect to the remove impediments to, and perfect the Data Feeds, add the following text: information in the GIF, the monthly mechanisms of, a free and open market * ICE will cease to offer the GIF as a connectivity cost charged by the and a national market system and, in stand-alone product, which the Exchange would be $200. general, to protect investors and the Exchange has been informed by ICE is ICE has informed the Exchange that public interest and because it is not currently expected to occur before the currently there are various third parties designed to permit unfair end of 2020. The Exchange will that offer Users connectivity to the discrimination between customers, announce the operative date through a Consolidated Feed. To use such third issuers, brokers, or dealers. party connectivity to the Consolidated customer notice. Any change fees that a The Proposed Rule Change is Feed, a User may utilize the IDS User would otherwise incur as a result Reasonable and Equitable network, a third party of the proposed change will be waived. The Exchange believes that the The GIF includes the values of telecommunication network, a cross connect, or a combination thereof to proposed rule change is reasonable and various indices and exchange traded equitable for the following reasons. product data.9 Based on information access the Consolidated Feed through a connection to an access center outside The Exchange believes that it is published by ICE Data Services, all the reasonable and an equitable allocation data in the GIF was already available on the data center (which could be an IDS access center, a third-party access of its fees and credits to add a note to the ICE Data Services Consolidated Feed its Price List stating that ICE will cease (‘‘Consolidated Feed’’).10 The Exchange center, or both), another User, or a third party vendor. to offer the GIF as a stand-alone product, as the Exchange will no longer 7 The Exchange has an indirect interest in the GIF Competitive Environment be able to offer the service once that because ICE is the Exchange’s ultimate parent. See id., at 15749, and Securities Exchange Act Release The Exchange operates in a highly occurs. No. 79674 (December 22, 2016), 81 FR 96053 competitive market in which exchanges If a User wishes connectivity to the (December 29, 2016) (SR–NYSE–2016–45) (notice of and other vendors (e.g., Hosting Users) information in the GIF, the Users could filing of Amendment No. 3 to proposed rule change connect to the Consolidated Feed to amend the co-location services offered by the offer co-location services as a means to Exchange to add certain access and connectivity facilitate the trading and other market through IDS or from a third party fees). activities of those market participants provider. A User may utilize the IDS 8 See Securities Exchange Act Release No. 67666 who believe that co-location enhances network, a third party (August 15, 2012), 77 FR 50742 (August 22, 2012) the efficiency of their operations. The telecommunication network, a cross (SR–NYSE–2012–18) (order approving a proposed connect, or a combination thereof to rule change amending the New York Stock Commission has repeatedly expressed Exchange Price List to provide for additional co- its preference for competition over access the Consolidated Feed, through a location services and establish related fees). regulatory intervention in determining connection to an access center outside 9 The Exchange understands that some of the prices, products, and services in the the data center (which could be an IDS indices may include Exchange or Affiliate SRO data securities markets. Specifically, in access center, a third-party access as underlying components, but the GIF does not center, or both), another User, or a third include those underlying components or other Regulation NMS, the Commission information directly from the Exchange and highlighted the importance of market party vendor. Affiliate SROs. forces in determining prices and SRO 10 See ‘‘Consolidated Data Feed Coverage List— 11 See Securities Exchange Act Release No. 51808 Indices and Indicators’’ at https://www.theice.com/ revenues and, also, recognized that (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005). market-data/connectivity-and-feeds/consolidated- current regulation of the market system 12 15 U.S.C. 78f(b). feed/coverage-list. ‘‘has been remarkably successful in 13 15 U.S.C. 78f(b)(4) and (5).
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The Exchange believes that it is connection to an access center outside party connectivity to the Consolidated reasonable and equitable that it waive the data center (which could be an IDS Feed, a User may utilize the IDS any change fees that a User would access center, a third-party access network, a third party otherwise incur as a result of the center, or both), another User, or a third telecommunication network, a cross proposed change, as Users would have party vendor. connect, or a combination thereof to no choice but to terminate connectivity For the reasons above, the proposed access the Consolidated Feed, through a to the GIF. The fee waiver would help changes do not unfairly discriminate connection to an access center outside to alleviate any burden related to the between or among market participants the data center (which could be an IDS change. that are otherwise capable of satisfying access center, a third-party access any applicable co-location fees, The Proposed Rule Change Would center, or both), another User, or a third requirements, terms and conditions Protect Investors and the Public Interest party vendor. established from time to time by the Use of any co-location service is The Exchange believes that the Exchange. proposed rule change would perfect the For these reasons, the Exchange completely voluntary, and each market mechanisms of a free and open market believes that the proposal is consistent participant is able to determine whether and a national market system and, in with the Act. to use co-location services based on the general, protect investors and the public requirements of its business operations. B. Self-Regulatory Organization’s interest for the following reasons. Intermarket Competition It would be against the protection of Statement on Burden on Competition investors and the public interest if the In accordance with Section 6(b)(8) of The Exchange does not believe that Exchange were to continue to offer the Act,14 the Exchange believes that the the proposed fee would impose any something that it cannot provide proposed rule change will not impose burden on intermarket competition that because the relevant feed has been any burden on competition that is not is not necessary or appropriate. discontinued. Adding the proposed note necessary or appropriate in furtherance The Exchange operates in a highly to its Price List would reduce any of the purposes of the Act. competitive market in which exchanges potential ambiguity and provide Intramarket Competition and other vendors (i.e., Hosting Users) clarification concerning the availability offer co-location services as a means to and the costs of connectivity to Third The Exchange does not believe that facilitate the trading and other market Party Data Feeds available to Users, the proposed change would place any activities of those market participants because it would highlight that the GIF burden on intramarket competition that who believe that co-location enhances will become obsolete, provide a timeline is not necessary or appropriate. The the efficiency of their operations. for the change, and state that any change proposed change would not apply Accordingly, fees charged for co- fees that a User would otherwise incur differently to distinct types or sizes of location services are constrained by the as a result of the proposed change market participants. Rather, it would active competition for the order flow of, would be waived. apply to all Users equally: As a consequence of ICE’s ceasing to offer the and other business from, such market The Proposed Change is Not Unfairly GIF as a stand-alone product, the participants. Discriminatory Exchange will not be able to provide The Commission has repeatedly The Exchange believes that the any Users with connectivity to the GIF. expressed its preference for competition proposed change is not unfairly The Exchange proposes to waive any over regulatory intervention in discriminatory for the following change fees that a User would otherwise determining prices, products, and reasons. incur as a result of the proposed change. services in the securities markets. The proposed change would not Adding the proposed note to the Price Specifically, in Regulation NMS, the apply differently to distinct types or List would reduce any potential Commission highlighted the importance sizes of market participants. Rather, it ambiguity and provide clarification of market forces in determining prices would apply to all Users equally. As a concerning the availability and the costs and SRO revenues and, also, recognized consequence of ICE’s ceasing to offer the of connectivity to Third Party Data that current regulation of the market GIF as a stand-alone product, the Feeds available to Users, because it system ‘‘has been remarkably successful Exchange will not be able to provide would highlight that the GIF will in promoting market competition in its any Users with connectivity to the GIF. become obsolete, provide a timeline for broader forms that are most important to If a User wishes connectivity to the the change, and state that any change investors and listed companies.’’ 15 information in the GIF, the Users could fees that a User would otherwise incur The Exchange believes that the connect to the Consolidated Feed as a result of the proposed change proposed change is necessary and through the Exchange. If any of the would be waived. appropriate. Adding the proposed note seven Users that have connectivity to If a User wishes connectivity to the to the Price List would reduce any the GIF opt to connect to the information in the GIF, the Users could potential ambiguity and provide Consolidated Feed, the monthly connect to the Consolidated Feed clarification concerning the availability connectivity cost charged by the through the Exchange. If any of the and the costs of connectivity to Third Exchange would be $200. seven Users that have connectivity to Party Data Feeds available to Users, ICE has informed the Exchange that the GIF opt to connect to the because it would highlight that the GIF currently there are various third parties Consolidated Feed, the monthly will become obsolete and provide a that offer Users connectivity to the connectivity cost charged by the timeline for the change. Consolidated Feed. To use such third Exchange would be $200. party connectivity to the Consolidated ICE has informed the Exchange that For the reasons described above, the Feed, a User may utilize the IDS currently there are various third parties Exchange believes that the proposed network, a third party that offer Users connectivity to the rule change reflects this competitive telecommunication network, a cross Consolidated Feed. To use such third environment. connect, or a combination thereof to access the Consolidated Feed, through a 14 15 U.S.C. 78f(b)(8). 15 See 70 FR 37496, supra note 11.
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C. Self-Regulatory Organization’s Commission summarily may Persons submitting comments are Statement on Comments on the temporarily suspend such rule change if cautioned that we do not redact or edit Proposed Rule Change Received From it appears to the Commission that such personal identifying information from Members, Participants, or Others action is necessary or appropriate in the comment submissions. You should No written comments were solicited public interest, for the protection of submit only information that you wish or received with respect to the proposed investors, or otherwise in furtherance of to make available publicly. All rule change. the purposes of the Act. If the submissions should refer to File Commission takes such action, the Number SR–NYSE–2020–46 and should III. Date of Effectiveness of the Commission shall institute proceedings be submitted on or before June 26, 2020. Proposed Rule Change and Timing for under Section 19(b)(2)(B) 21 of the Act to Commission Action For the Commission, by the Division of determine whether the proposed rule Trading and Markets, pursuant to delegated The Exchange has filed the proposed change should be approved or authority.22 rule change pursuant to Section disapproved. J. Matthew DeLesDernier, 16 19(b)(3)(A)(iii) of the Act and Rule IV. Solicitation of Comments Assistant Secretary. 17 19b–4(f)(6) thereunder. Because the [FR Doc. 2020–12166 Filed 6–4–20; 8:45 am] proposed rule change does not: (i) Interested persons are invited to BILLING CODE 8011–01–P Significantly affect the protection of submit written data, views, and investors or the public interest; (ii) arguments concerning the foregoing, impose any significant burden on including whether the proposed rule change is consistent with the Act. SECURITIES AND EXCHANGE competition; and (iii) become operative COMMISSION prior to 30 days from the date on which Comments may be submitted by any of the following methods: it was filed, or such shorter time as the Sunshine Act Meetings Commission may designate, if Electronic Comments consistent with the protection of TIME AND DATE: 2:00 p.m. on Wednesday, • Use the Commission’s internet investors and the public interest, the June 10, 2020. comment form (http://www.sec.gov/ proposed rule change has become rules/sro.shtml); or PLACE: The meeting will be held via effective pursuant to Section 19(b)(3)(A) • Send an email to rule-comments@ remote means and/or at the of the Act and Rule 19b–4(f)(6)(iii) sec.gov. Please include File Number SR– Commission’s headquarters, 100 F thereunder. NYSE–2020–46 on the subject line. Street NE, Washington, DC 20549. A proposed rule change filed under STATUS: This meeting will be closed to 18 Rule 19b–4(f)(6) normally does not Paper Comments the public. become operative prior to 30 days after • Send paper comments in triplicate MATTERS TO BE CONSIDERED: the date of the filing. However, pursuant to Secretary, Securities and Exchange Commissioners, Counsel to the to Rule 19b–4(f)(6)(iii),19 the Commission, 100 F Street NE, Commissioners, the Secretary to the Commission may designate a shorter Washington, DC 20549–1090. Commission, and recording secretaries time if such action is consistent with the All submissions should refer to File protection of investors and the public will attend the closed meeting. Certain Number SR–NYSE–2020–46. This file interest. The Exchange has requested staff members who have an interest in number should be included on the that the Commission waive the 30-day the matters also may be present. subject line if email is used. To help the In the event that the time, date, or operative delay so that the proposal may location of this meeting changes, an become operative immediately upon Commission process and review your announcement of the change, along with filing. The Exchange believes that such comments more efficiently, please use waiver would be consistent with the only one method. The Commission will the new time, date, and/or place of the protection of investors and the public post all comments on the Commission’s meeting will be posted on the interest because it would allow the internet website (http://www.sec.gov/ Commission’s website at https:// Exchange to waive the change fee rules/sro.shtml). Copies of the www.sec.gov. The General Counsel of the sooner. The Commission believes that submission, all subsequent Commission, or his designee, has waiving the 30-day operative delay is amendments, all written statements consistent with the protection of with respect to the proposed rule certified that, in his opinion, one or investors and the public interest change that are filed with the more of the exemptions set forth in 5 because it would permit the Exchange, Commission, and all written U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) without undue delay, to cease offering communications relating to the and (10) and 17 CFR 200.402(a)(3), the GIF when it becomes unavailable, proposed rule change between the (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and provide notice to customers and waive Commission and any person, other than (a)(10), permit consideration of the the change fee. Accordingly, the those that may be withheld from the scheduled matters at the closed meeting. Commission waives the 30-day public in accordance with the The subject matter of the closed operative delay and designates the provisions of 5 U.S.C. 552, will be meeting will consist of the following proposed rule change operative upon available for website viewing and topic: filing.20 printing in the Commission’s Public Institution and settlement of At any time within 60 days of the Reference Room, 100 F Street NE, injunctive actions; filing of such proposed rule change, the Washington, DC 20549 on official Institution and settlement of business days between the hours of administrative proceedings; 16 15 U.S.C. 78s(b)(3)(A)(iii). 10:00 a.m. and 3:00 p.m. Copies of the Resolution of litigation claims; and 17 17 CFR 240.19b–4(f)(6). filing also will be available for Other matters relating to enforcement 18 17 CFR 240.19b–4(f)(6). inspection and copying at the principal proceedings. 19 17 CFR 240.19b–4(f)(6)(iii). office of the Exchange. All comments At times, changes in Commission 20 For purposes only of waiving the 30-day operative delay, the Commission has considered the received will be posted without change. priorities require alterations in the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 21 15 U.S.C. 78s(b)(2)(B). 22 17 CFR 200.30–3(a)(12).
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scheduling of meeting agenda items that concerning the purpose of and basis for approximately 1.75% lower than may consist of adjudicatory, the proposed rule change and discussed connectivity revenue pre-migration.5 In examination, litigation, or regulatory any comments it received on the addition to providing a consistent matters. proposed rule change. The text of these technology offering across the Cboe CONTACT PERSON FOR MORE INFORMATION: statements may be examined at the Affiliated Exchanges, the migration also For further information; please contact places specified in Item IV below. The provided market participants a latency Vanessa A. Countryman from the Office Exchange has prepared summaries, set equalized infrastructure, improved of the Secretary at (202) 551–5400. forth in sections A, B, and C below, of system performance, and increased the most significant aspects of such sustained order and quote per second Dated: June 3, 2020. statements. capacity, as discussed more fully below. Vanessa A. Countryman, Accordingly, in connection with the A. Self-Regulatory Organization’s Secretary. migration and in order to more closely Statement of the Purpose of, and [FR Doc. 2020–12380 Filed 6–3–20; 4:15 pm] align the Exchange’s fee structure with Statutory Basis for, the Proposed Rule BILLING CODE 8011–01–P that of its Affiliated Exchanges, the Change Exchange intends to update and 1. Purpose simplify its fee structure with respect to SECURITIES AND EXCHANGE In 2016, the Exchange’s parent access and connectivity and adopt new COMMISSION 6 company, Cboe Global Markets, Inc. access and connectivity fees. [Release No. 34–88984; File No. SR–CBOE– (formerly named CBOE Holdings, Inc.) 2020–048] Volume Plan and the Market-Maker Access Credit (‘‘Cboe Global’’), which is also the program. parent company of Cboe C2 Exchange, 5 Self-Regulatory Organizations; Cboe For February 2020, the Exchange’s connectivity Inc. (‘‘C2’’), acquired Cboe EDGA revenue was approximately 2.5% higher than Exchange, Inc.; Notice of Filing and Exchange, Inc. (‘‘EDGA’’), Cboe EDGX connectivity revenue pre-migration. For purposes of Immediate Effectiveness of a Proposed Exchange, Inc. (‘‘EDGX’’ or ‘‘EDGX a fair comparison of the Exchange’s initial Rule Change To Amend Its Fees projection of post-migration connectivity revenue to Options’’), Cboe BZX Exchange, Inc. realized post-migration revenue connectivity, the Schedule in Connection With Migration (‘‘BZX’’ or ‘‘BZX Options’’), and Cboe Exchange excluded from the February 2020 BYX Exchange, Inc. (‘‘BYX’’ and, calculation revenue from a Trading Permit Holder June 1, 2020. who became a Market-Maker post October 7, 2019, Pursuant to Section 19(b)(1) of the together with Cboe Options, C2, EDGX, a Trading Permit Holder that grew it’s footprint on Securities Exchange Act of 1934 (the EDGA, and BZX, the ‘‘Affiliated the Exchange significantly, and revenue derived ‘‘Act’’),1 and Rule 19b–4 thereunder,2 Exchanges’’). The Cboe Affiliated from incremental usage in light of the extreme Exchanges recently aligned certain volatility and volume experienced in February, as notice is hereby given that on May 22, such circumstances were not otherwise anticipated 2020, Cboe Exchange, Inc. (the system functionality, including with or incorporated into the Exchange’s original ‘‘Exchange’’ or ‘‘Cboe Options’’) filed respect to connectivity, retaining only projection. As noted, the Exchange had no way of with the Securities and Exchange intended differences between the predicting with certainty the impact of the Affiliated Exchanges, in the context of a proposed changes, nor control over choices market Commission (the ‘‘Commission’’) the participants ultimately decided to make. The proposed rule change as described in technology migration. The Exchange Exchange notes connectivity revenue was higher Items I, II and III below, which Items migrated its trading platform to the than anticipated in part due to (1) a higher number of 10 Gb Physical Ports being maintained by TPHs have been prepared by the Exchange. same system used by the Affiliated Exchanges, which the Exchange than expected (although 34% of Trading Permit The Commission is publishing this Holders maintained the same number of 10 Gb notice to solicit comments on the completed on October 7, 2019 (the Physical and 44% reduced the amount of 10 Gb proposed rule change from interested ‘‘migration’’). As a result of this Physical Ports maintained), (2) a higher quantity of migration, the Exchange’s pre-migration BOE/FIX Logical Ports being purchased than persons. predicted, and (3) a significantly higher quantity of connectivity architecture was rendered the optional Drop, GRP, Multicast PITCH/Top Spin I. Self-Regulatory Organization’s obsolete, and as such, the Exchange now Server Ports and Purge Ports being purchased than Statement of the Terms of the Substance offers new functionality, including new predicted. For April 2020, the Exchange’s of the Proposed Rule Change logical connectivity, and therefore connectivity revenue was approximately 16.50% 3 less than connectivity revenue pre-migration using Cboe Exchange, Inc. (the ‘‘Exchange’’ proposes to adopt corresponding fees. the same calculation. The Exchange notes that due or ‘‘Cboe Options’’) proposes to amend In determining the proposed fee to the closure of its trading floor on March 16, 2020, its Fees Schedule in connection with changes, the Exchange assessed the it adopted a number of corresponding temporary impact on market participants to ensure pricing changes, including waiving floor Trading migration. The text of the proposed rule Permit fees. See Cboe Options Fees Schedule, as of change is provided in Exhibit 5. that the proposed fees would not create May 1, 2020. The Exchange also notes that, where The text of the proposed rule change an undue financial burden on any possible, the Exchange is including numerical is also available on the Exchange’s market participants, including smaller examples and percentages, including with respect market participants. While the Exchange to revenue impact. In addition, the Exchange is website (http://www.cboe.com/ providing data to the Commission in support of its AboutCBOE/CBOELegalRegulatory has no way of predicting with certainty arguments herein, which is consistent with the SEC Home.aspx), at the Exchange’s Office of the impact of the proposed changes, the Division of Trading and Markets (the ‘‘Division’’) the Secretary, and at the Commission’s Exchange had anticipated its post- issued fee filing guidance titled ‘‘Staff Guidance on 4 SRO Rule Filings Relating to Fees’’ (‘‘Guidance’’) Public Reference Room. migration connectivity revenue to be issued on May 21, 2029. The non-rulemaking Guidance covers all aspects of a fee filing, which II. Self-Regulatory Organization’s 3 As of October 7, 2019, market participants no the Exchange nonetheless has extensively Statement of the Purpose of, and longer have the ability to connect to the old addressed throughout this filing. Statutory Basis for, the Proposed Rule Exchange architecture. 6 The Exchange initially filed the proposed fee Change 4 Connectivity revenue post-migration includes changes on October 1, 2019 (SR–CBOE–2019–077). revenue from physical port fees (other than for On business date October 2, 2019, the Exchange In its filing with the Commission, the disaster recovery), Cboe Data Services Port Fee, withdrew that filing and submitted SR–CBOE– Exchange included statements logical port fees, Trading Permit Fees, Market- 2019–082, See Securities Exchange Act Release No. Maker EAP Appointment Unit fees, Tier 87304 (October 15, 2019), 84 FR 56240, (October 21, Appointment Surcharges and Floor Broker Trading 2019) (‘‘Original Filing’’). On business date 1 15 U.S.C. 78s(b)(1). Surcharges, less the Floor Broker ADV discounts November 29, 2019, the Exchange withdrew the 2 17 CFR 240.19b–4. and discounts on BOE Bulk Ports via the Affiliate Original Filing and submitted SR–CBOE–2019–111,
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Physical Connectivity cage within the data center may affect In addition to the benefits resulting A physical port is utilized by a latency. For example, in the legacy from the new Physical Ports providing Trading Permit Holder (‘‘TPH’’) or non- system, a cage located further from the latency equalization and new switches TPH to connect to the Exchange at the Exchange’s servers may experience (i.e., improved latency), TPHs and non- data centers where the Exchange’s higher latency than those located closer TPHs may be able to reduce their overall 9 servers are located. The Exchange to the Exchange’s servers. As such, the physical connectivity fees. Particularly, currently assesses fees for Network proposed Physical Ports ensure all Network Access Port fees are assessed Access Ports for these physical market participants connected to the for unicast (orders, quotes) and connections to the Exchange. Exchange via the new Physical Ports multicast (market data) connectivity Specifically, TPHs and non-TPHs can will receive the same respective latency separately. More specifically, Network elect to connect to Cboe Options’ for each port size and ensure that no Access Ports may only receive one type trading system via either a 1 gigabit per market participant has a latency of connectivity each (thus requiring a second (‘‘Gb’’) Network Access Port or advantage over another market market participant to maintain two ports a 10 Gb Network Access Port. Pre- participant within the primary data if that market participant desires both migration the Exchange assessed a center.10 Additionally, the new types of connectivity). The new Physical monthly fee of $1,500 per port for 1 Gb infrastructure utilizes new and faster Ports however, allow access to both Network Access Ports and a monthly fee switches resulting in lower overall unicast and multicast connectivity with of $5,000 per port for 10 Gb Network latency. a single physical connection to the Access Ports for access to Cboe Options The Exchange proposes to assess the Exchange. Therefore, TPHs and non- primary system. Through January 31, following fees for any physical port, TPHs that currently purchase two legacy 2020, Cboe Options market participants regardless of whether the TPH or non- Network Access Ports for the purpose of will continue to have the ability to TPH connects via the current Network receiving each type of connectivity now connect to Cboe Options’ trading system Access Ports or the new Physical Ports. have the option to purchase only one via the current Network Access Ports. Specifically, the Exchange proposes to new Physical Port to accommodate their As of October 7, 2019, in connection continue to assess a monthly fee of connectivity needs, which may result in with the migration, TPHs and non-TPHs $1,500 per port for 1 Gb Network Access reduced costs for physical may alternatively elect to connect to Ports and new Physical Ports and connectivity.12 Cboe Options via new latency equalized increase the monthly fee for 10 Gb Cboe Data Services—Port Fees Physical Ports.7 The new Physical Ports Network Access Ports and new Physical similarly allow TPHs and non-TPHs the Ports to $7,000 per port. Physical port The Exchange proposes to amend the ability to connect to the Exchange at the fees will be prorated based on the ‘‘Port Fee’’ under the Cboe Data Services data center where the Exchange’s remaining trading days in the calendar (‘‘CDS’’) Fees Schedule. Currently, the 13 servers are located and TPHs and non- month. The proposed fee for 10 Gb Port Fee is payable by any Customer TPHs have the option to connect via 1 Physical Ports is in line with the that receives data through two types of Gb or 10 Gb Physical Ports. As noted amounts assessed by other exchanges sources; a direct connection to CDS above, both the new 1 Gb and 10 Gb for similar connections by its Affiliated (‘‘direct connection’’) or through a Physical Ports provide latency Exchanges and other Exchanges that connection to CDS provided by an equalization, meaning that each market utilize the same connectivity extranet service provider (‘‘extranet participant will be afforded the same infrastructure.11 connection’’). The Port Fee applies to latency for 1 Gb or 10 Gb Physical Ports receipt of any Cboe Options data feed in the primary data center to the 9 The Exchange equalizes physical connectivity in but is only assessed once per data port. Exchange’s customer-facing switches the data center for its primary system by taking the The Exchange proposes to amend the farthest possible distance that a Cboe market monthly CDS Port Fee to provide that it regardless of location of the market participant cage may exist from the Exchange’s participant’s cage 8 in the primary data customer-facing switches and using that distance as is payable ‘‘per source’’ used to receive center relative to the Exchange’s servers. the cable length for any cross-connect. Conversely, the legacy Network Access 10 The Exchange notes that 10 Gb Physical Ports $5,000 for each 1Gb circuit, $14,000 for each 10Gb Ports are not latency equalized, meaning have an 11 microsecond latency advantage over 1 circuit and $22,000 for each 10Gb LX circuit. Gb Physical Ports. Other than this difference, there 12 The Exchange proposes to eliminate the current the location of a market participant’s are no other means to receive a latency advantage Cboe Command Connectivity Charges table in its as compared to another market participant in the entirety and create and relocate such fees in a new See Securities Exchange Act Release No. 87727 new connectivity structure. table in the Fees Schedule that addresses fees for (December 12, 2019), 84 FR 69428, (December 18, 11 See Cboe EDGA U.S. Equities Exchange Fee physical connectivity, including fees for the current 2019) (‘‘Second Proposed Rule Change’’). On Schedule, Physical Connectivity Fees; Cboe EDGX Network Access Ports, the new Physical Ports and January 28, 2020 the Exchange withdrew that filing U.S. Equities Exchange Fee Schedule, Physical Disaster Recovery (‘‘DR’’) Ports. The Exchange notes and submitted SR–CBOE–2020–005, See Securities Connectivity Fees; Cboe BZX U.S. Equities that it is not proposing any changes with respect to Exchange Act Release No. 88164 (February 11, Exchange Fee Schedule, Physical Connectivity DR Ports other than renaming the DR ports from 2020), 85 FR 8897, (February 18, 2020) (‘‘Third Fees; Cboe BYX U.S. Equities Exchange Fee ‘‘Network Access Ports’’ to ‘‘Physical Ports’’ to Proposed Rule Change’’). On March 27, 2020, the Schedule, Physical Connectivity Fees; Cboe EDGX conform to the new Physical Port terminology. The Exchange submitted SR–CBOE–2020–028, See Options Exchange Fee Schedule, Physical Exchange also notes that subsequent to the initial Securities Exchange Act Release No. 88586 (April Connectivity Fees; and Cboe BZX Options Exchange filings that proposed these fee changes on October 8, 2020), 85 FR 20773, (April 14, 2020) (‘‘Fourth Fee Schedule, Physical Connectivity Fees 1 and 2, 2019 (SR–CBOE–2019–077 and SR–CBOE– Proposed Rule Change’’). On May 21, 2020, the (collectively, ‘‘Affiliated Exchange Fee Schedules’’). 2019–082), the Exchange amended the proposed Exchange withdrew that filing and submitted this See e.g., Nasdaq PHLX and ISE Rules, General port fees to waive fees for ports used for PULSe in filing (‘‘Fifth Proposed Rule Change’’). The Equity and Options Rules, General 8. Phlx and ISE filing No. SR–CBOE–2019–105. The additions Exchange refiled the Fifth Proposed Rule Change on each charge a monthly fee of $2,500 for each 1Gb proposed by filing SR–CBOE–2019–105 are double May 22, 2020 (SR–CBOE–2020–048) due to a connection, $10,000 for each 10Gb connection and underlined in Exhibit 5A and the deletions are technical error. $15,000 for each 10Gb Ultra connection. See also doubled bracketed in Exhibit 5A. 7 As previously noted, market participants will Nasdaq Price List—Trading Connectivity. Nasdaq 13 A Customer is any person, company or other continue to have the option of connecting to Cboe charges a monthly fee of $7,500 for each 10Gb entity that, pursuant to a market data agreement Options via a 1 Gbps or 10 Gbps Network Access direct connection to Nasdaq and $2,500 for each with CDS, is entitled to receive data, either directly Port at the same rates as proposed, respectively. direct connection that supports up to 1Gb. See also from CDS or through an authorized redistributor 8 A market participant’s ‘‘cage’’ is the cage within NYSE American Fee Schedule, Section V.B, and (i.e., a Customer or extranet service provider), the data center that contains a market participant’s Arca Fees and Charges, Co-Location Fees. NYSE whether that data is distributed externally or used servers, switches and cabling. American and Arca each charge a monthly fee of internally.
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data, instead of ‘‘per data port’’. The participants that wish to connect requests are billed in full month Exchange also proposes to increase the directly to the Exchange can request a increments as firms are required to pay fee from $500 per data port/month to number of different types of ports, for the service for the remainder of the $1,000 per data source/month.14 The including ports that support order entry, month, unless the session is terminated Exchange notes the proposed change in customizable purge functionality, or the within the first month of service. The assessing the fee (i.e., per source vs per receipt of market data. Market Exchange notes that the proration policy port) and the proposed fee amount are participants can also choose to connect is the same on its Affiliated the same as the corresponding fee on its indirectly through a number of different Exchanges.16 affiliate C2.15 third-party providers, such as another In connection with the proposed Logical Ports (BOE, FIX, Drop): The broker-dealer or service bureau that the new Logical Ports represent ports change, the Exchange also proposes to Exchange permits through specialized rename the ‘‘Port Fee’’ to ‘‘Direct Data established by the Exchange within the access to the Exchange’s trading system Exchange’s system for trading purposes. Access Fee’’. As the fee will be payable and that may provide additional ‘‘per data source’’ used to receive data, Each Logical Port established is specific services or operate at a lower to a TPH or non-TPH and grants that instead of ‘‘per data port’’, the Exchange mutualized cost by providing access to TPH or non-TPH the ability to operate believes the proposed name is more multiple members. In light of the a specific application, such as order/ appropriate and that eliminating the discontinuation of CMI and FIX Login quote 17 entry (FIX and BOE Logical term ‘‘port’’ from the fee will eliminate IDs, the Exchange proposes to eliminate Ports) or drop copies (Drop Logical confusion as to how the fee is assessed. the fees associated with the CMI and Ports). Similar to CMI and FIX Login FIX login IDs and adopt the below Logical Connectivity IDs, each Logical Port will entitle a firm pricing for logical connectivity in its to submit message traffic of up to Next, the Exchange proposes to place. amend its login fees. By way of specified number of orders per 18 background, Cboe Options market Service Cost per month second. The Exchange proposes to participants were able to access Cboe assess $750 per port per month for all Command via either a CMI or a FIX Logical Ports (BOE, FIX) 1 to 5 $750 per port. Drop Logical Ports and also assess $750 Logical Ports (BOE, FIX) >5 .... $800 per port. Port, depending on how their systems Logical Ports (Drop) ...... $750 per port. per port per month (which is the same are configured. Effective October 7, BOE Bulk Ports 1 to 5 ...... $1,500 per port. amount currently assessed per CMI/FIX 2019, market participants are no longer BOE Bulk Ports 6 to 30 ...... $2,500 per port. Login ID per month), for the first 5 FIX/ able to use CMI and FIX Login IDs. BOE Bulk Ports >30 ...... $3,000 per port. BOE Logical Ports and thereafter assess Purge ports ...... $850 per port. Rather, the Exchange utilizes a variety GRP Ports ...... $750/primary (A or $800 per port, per month for each of logical connectivity ports as further C Feed). additional FIX/BOE Logical Port. While described below. Both a legacy CMI/FIX Multicast PITCH/Top Spin $750/set of primary the proposed ports will be assessed the Login ID and logical port represent a Server Ports. (A or C feed). same monthly fees as current CMI/FIX technical port established by the Login IDs (for the first five logical ports), Exchange within the Exchange’s trading The Exchange proposes to provide for the proposed logical ports provide for system for the delivery and/or receipt of each of the logical connectivity fees that significantly more message traffic (and trading messages—i.e., orders, accepts, new requests will be prorated for the thus cost less per message sent) as cancels, transactions, etc. Market first month of service. Cancellation shown below:
CMI/FIX login Ids BOE/FIX logical ports Quotes Orders Quotes/Orders
Bandwidth Limit per login ...... 5,000 quotes/3 sec 19 ... 30 orders/sec ...... 15,000 quotes/orders/3 sec. Cost ...... $750 each ...... $750 each ...... $750/$800 each. Cost per Quote/Order Sent @Limit ...... $0.15 per quote/3 sec .. $25.00 per order/sec .... $0.05/$0.053 per quote/order/3 sec.
Logical Port fees will be limited to fee indicated in the table above when additional logical port fee of $800 per Logical Ports in the Exchange’s primary used to enter up to 70,000 orders per month. Incremental usage will be data center and no Logical Port fees will trading day per logical port as measured determined on a monthly basis based on be assessed for redundant secondary on average in a single month. Each the average orders per day entered in a data center ports. Each BOE or FIX incremental usage of up to 70,000 per single month across all of a market Logical Port will incur the logical port day per logical port will incur an participant’s subscribed BOE and FIX
14 For example, under the pre-migration ‘‘per separate extranet providers, that TPH would be logical ports do, and Users may similarly have port’’ methodology, if a TPH maintained 4 ports assessed $2,000 per month (i.e., $1,000 × 2). multiple logical ports as they may have Trading that receive market data, that TPH would be 15 See Cboe C2 Options Exchange Fee Schedule, Permits and/or bandwidth packets to accommodate assessed $2,000 per month (i.e., $500 × 4 ports), Cboe Data Services, LLC Fees, Section IV, Systems their order and quote entry needs. Fees. regardless of how many sources it used to receive 19 Each Login ID has a bandwidth limit of 80,000 16 See Affiliated Exchange Fee Schedules, Logical data. Under the proposed ‘‘per source’’ quotes per 3 seconds. However, in order to place methodology, if a TPH maintains 4 ports that Port Fees. 17 such bandwidth onto a single Login ID, a TPH or receive market data, but receives data through only As of October 7, 2019, the definition of quote in Cboe Options Rule 1.1 means a firm bid or offer non-TPH would need to purchase a minimum of 15 one source (e.g., a direct connection) that TPH Market-Maker Permits or Bandwidth Packets (each × a Market-Maker (a) submits electronically as an would be assessed $1,000 per month (i.e., $1,000 order or bulk message (including to update any bid Market-Maker Permit and Bandwidth Packet 1 source). If that TPH maintains 4 ports but receives or offer submitted in a previous order or bulk provides 5,000 quotes/3 sec). For purposes of data from both a direct connection and an extranet message) or (b) represents in open outcry on the comparing ‘‘quote’’ bandwidth, the provided connection, that TPH would be assessed $2,000 per trading floor. example assumes only 1 Market-Maker Permit or × month (i.e., $1,000 2 sources). Similarly, if that 18 Login Ids restrict the maximum number of Bandwidth Packet has been purchased. TPH maintains 4 ports and receives data from two orders and quotes per second in the same way
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Logical Ports. The Exchange believes firm’s access through each of PULSe and indicated above, BOE Bulk Logical Ports that the pricing implications of going Cboe Silexx FLEX. are assessed $1,500 per port, per month beyond 70,000 orders per trading day BOE Bulk Logical Ports: The Exchange for the first 5 BOE Bulk Logical Ports, per Logical Port encourage users to also offers BOE Bulk Logical Ports, assessed $2,500 per port, per month mitigate message traffic as necessary. which provide users with the ability to thereafter up to 30 ports and thereafter The Exchange notes that the proposed submit single and bulk order messages assessed $3,000 per port, per month for fee of $750 per port is the same amount to enter, modify, or cancel orders each additional BOE Bulk Logical Port. assessed not only for current CMI and designated as Post Only Orders with a Like CMI and FIX Login IDs, and FIX/ Time-in-Force of Day or GTD with an FIX Login Ids, but also similar ports BOX Logical Ports, BOE Bulk Ports will expiration time on that trading day. available on an affiliate exchange.20 also entitle a firm to submit message While BOE Bulk Ports will be available The Exchange also proposes to to all market participants, the Exchange traffic of up to specified number of 21 provide that the fee for one FIX Logical anticipates they will be used primarily quotes/orders per second. The Port connection to PULSe and one FIX by Market-Makers or firms that conduct proposed BOE Bulk ports also provide Logical Port connection to Cboe Silexx similar business activity, as the primary for significantly more message traffic will be waived per TPH. The Exchange purpose of the proposed bulk message (and thus cost less per message sent) as notes that only one FIX Logical Port functionality is to encourage market- compared to current CMI/FIX Login IDs, connection is required to support a maker quoting on exchanges. As as shown below:
CMI/FIX login Ids BOE bulk ports Quotes Quotes 22
Bandwidth Limit ...... 5,000 quotes/3 sec 23 ...... 225,000 quotes 3 sec. Cost ...... $750 each ...... $1,500/$2,500/$3,000 each. Cost per Quote/Order Sent@ Limit ...... $0.15 per quote/3 sec ...... $0.006/$0.011/$0.013 per quote/3 sec.
Each BOE Bulk Logical Port will incur a large number of options. Particularly, Multicast PITCH/Top Spin Server and the logical port fee indicated in the table Purge Ports allow TPHs to submit a GRP Ports: In connection with the above when used to enter up to cancelation for all open orders, or a migration, the Exchange also offers 30,000,000 orders per trading day per subset thereof, across multiple sessions optional Multicast PITCH/Top Spin logical port as measured on average in under the same Executing Firm ID Server (‘‘Spin’’) and GRP ports and a single month. Each incremental usage (‘‘EFID’’). This would allow TPHs to proposes to assess $750 per month, per of up to 30,000,000 orders per day per seamlessly avoid unintended port. Spin Ports and GRP Ports are used BOE Bulk Logical Port will incur an executions, while continuing to evaluate to request and receive a retransmission additional logical port fee of $3,000 per the direction of the market. While Purge of data from the Exchange’s Multicast month. Incremental usage will be Ports are available to all market PITCH/Top data feeds. The Exchange’s determined on a monthly basis based on participants, the Exchange anticipates Multicast PITCH/Top data feeds are the average orders per day entered in a they will be used primarily by Market- available from two primary feeds, single month across all of a market Makers or firms that conduct similar identified as the ‘‘A feed’’ and the ‘‘C participant’s subscribed BOE Bulk business activity and are therefore feed’’, which contain the same Logical Ports. The Exchange believes exposed to a large amount of risk across information but differ only in the way that the pricing implications of going a number of securities. The Exchange such feeds are received. The Exchange beyond 30,000,000 orders per trading notes that market participants are also also offers two redundant feeds, day per BOE Bulk Logical Port able to cancel orders through FIX/BOE identified as the ‘‘B feed’’ and the ‘‘D encourage users to mitigate message Logical Ports and as such a dedicated feed.’’ All secondary feed Spin and GRP traffic as necessary. The Exchange notes Purge Port is not required nor necessary. Ports will be provided for redundancy at that the proposed BOE Bulk Logical Port Rather, Purge Ports were specially no additional cost. The Exchange notes fees are similar to the fees assessed for developed as an optional service to a dedicated Spin and GRP Port is not these ports by BZX Options.24 further assist firms in effectively required nor necessary. Rather, Spin Purge Ports: As part of the migration, managing risk. As indicated in the table ports enable a market participant to the Exchange introduced Purge Ports to above, the Exchange proposes to assess receive a snapshot of the current book provide TPHs additional risk a monthly charge of $850 per Purge quickly in the middle of the trading management and open order control Port. The Exchange notes that the session without worry of gap request functionality. Purge ports were designed proposed fee is in line with the fee limits and GRP Ports were specially to assist TPHs, in the management of, assessed by other exchanges, including developed to request and receive and risk control over, their quotes, its Affiliated Exchanges, for Purge retransmission of data in the event of particularly if the TPH is dealing with Ports.25 missed or dropped message. The
20 See Cboe BZX Options Exchange Fee Schedule, 22 See Cboe Options Rule 1.1. 24 See Cboe BZX Options Exchange Fee Schedule, Options Logical Port Fees. 23 Each Login ID has a bandwidth limit of 80,000 Options Logical Port Fees. 21 The Exchange notes that while technically quotes per 3 seconds. However, in order to place 25 See e.g., Nasdaq ISE Options Pricing Schedule, there is no bandwidth limit per BOE Bulk Port, such bandwidth onto a single Login ID, a TPH or Section 7(C), Ports and Other Services. See also non-TPH would need to purchase a minimum of 15 there may be possible performance degradation at Cboe EDGX Options Exchange Fee Schedule, Market-Maker Permits or Bandwidth Packets (each 15,000 messages per second (which is the Market-Maker Permit and Bandwidth Packet Options Logical Port Fees; Cboe C2 Options equivalent of 225,000 quotes/orders per 3 seconds). provides 5,000 quotes/3 sec). For purposes of Exchange Fee Schedule, Options Logical Port Fees As such, the Exchange uses the number at which comparing ‘‘quote’’ bandwidth, the provided and Cboe BZX Options Exchange Fee Schedule, performance may be degraded for purposes of example assumes only 1 Market-Maker Permit or Options Logical Port Fees. comparison. Bandwidth Packet has been purchased.
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Exchange notes that the proposed fee is Trading Permits, the Exchange will credits on their monthly BOE Bulk Port in line with the fee assessed for the provide credits for BOE Bulk Ports.30 fees based on the previous month’s same ports on BZX Options.26 The proposed credits are as follows: make rate percentage. By way of background, the Liquidity Provider Access Credits Market maker VIP Percent credit on Sliding Scale Adjustment Table The Exchange next proposes to amend affiliate access monthly BOE provides that Taker fees be applied to credit tier Bulk port fees its Affiliate Volume Plan (‘‘AVP’’) to electronic ‘‘Taker’’ volume and a Maker provide Market-Makers an opportunity Credit Tier ...... 1 0 rebate be applied to electronic ‘‘Maker’’ to obtain credits on their monthly BOE 2 0 volume, in addition to the transaction Bulk Port Fees.27 By way of background, 3 0 fees assessed under the Liquidity under AVP, if a TPH Affiliate 28 or 4 15 Provider Sliding Scale.31 The amount of Appointed OFP 29 (collectively, an 5 25 the Taker fee (or Maker rebate) is ‘‘affiliate’’) of a Market-Maker qualifies determined by the Liquidity Provider’s under the Volume Incentive Program The Exchange believes the proposed percentage of volume from the previous (‘‘VIP’’) (i.e., achieves VIP Tiers 2–5), change to AVP continues to allow the month that was Maker (‘‘Make Rate’’).32 that Market-Maker will also qualify for Exchange to provide TPHs that have Market-Makers are given a Performance a discount on that Market-Maker’s both Market-Maker and agency Tier based on their Make Rate Liquidity Provider (‘‘LP’’) Sliding Scale operations reduced Market-Maker costs percentage which currently provides transaction fees and Trading Permit via the credits, albeit credits on BOE adjustments to transaction fees. Thus, fees. The Exchange proposes to amend Bulk Port fees instead of Trading Permit the program is designed to attract AVP to provide that qualifying Market- fees. AVP also continues to provide liquidity from traditional Market- Makers will receive a discount on Bulk incremental incentives for TPHs to Makers. The Exchange proposes to now Port fees (instead of Trading Permits) strive for the higher tier levels, which also provide BOE Bulk Port fee credits where an affiliate achieves VIP Tiers 4 provide increasingly higher benefits for if Market-Makers satisfy the thresholds or 5. As discussed more fully below, the satisfying increasingly more stringent of certain Performance Tiers. Exchange is amending its Trading criteria. Particularly, the Performance Tier Permit structure, such that off-floor In addition to the opportunity to earned will also determine the Market-Makers no longer need to hold receive credits via AVP, the Exchange percentage credit applied to a Market- more than one Market-Maker Trading proposes to provide an additional Maker’s monthly BOE Bulk Port fees, as Permit. As such, in place of credits for opportunity for Market-Makers to obtain shown below:
Liquidity provider sliding scale Make rate Percent credit on Market maker access credit adjustment (percent based on prior month) monthly BOE bulk performance tier port fees
Credit Tier ...... 1 0–50 ...... 0 2 Above 50–60...... 0 3 Above 60–75...... 0 4 Above 75–90...... 40 5 Above 90...... 40
The Exchange believes the proposal credits will each apply to the total Bandwidth Packets mitigates costs incurred by traditional monthly BOE Bulk Port Fees including Market-Makers that focus on adding any incremental BOE Bulk Port fees As described above, post-migration, liquidity to the Exchange (as opposed to incurred, before any credits/adjustments the Exchange utilizes a variety of logical those that provide and take, or just have been applied (i.e. an electronic ports. Part of this functionality is similar take). The Exchange lastly notes that MM can earn a credit from 15% to to bandwidth packets that were both the Market-Maker Affiliate Access 65%). previously available on the Exchange. Credit under AVP and the Market-Maker Bandwidth packets restricted the Access Credit tied to Performance Tiers maximum number of orders and quotes can both be earned by a TPH, and these per second. Post-migration, market
26 See Cboe BZX Options Exchange Fee Schedule, and 3 logins. Current logins and bandwidth are akin that removed liquidity). For example, a TPH’s Options Logical Port Fees. to the proposed logical ports, including BOE Bulk electronic Make volume in September 2019 is 27 As noted above, while BOE Bulk Ports will be Ports which will primarily be used by Market- 2,500,000 contracts and its total electronic auto-ex available to all market participants, the Exchange Makers. volume is 3,000,000 contracts, resulting in a Make 31 anticipates they will be used primarily by Market See Cboe Options Exchange Fees Schedule, Rate of 83% (Performance Tier 4). As such, the TPH Makers or firms that conduct similar business Liquidity Provider Sliding Scale Adjustment Table. would receive a 40% credit on its monthly Bulk activity. 32 More specifically, the Make Rate is derived Port fees for the month of October 2019. For the 28 For purposes of AVP, ‘‘Affiliate’’ is defined as from a Liquidity Provider’s electronic volume the month of October 2019, the Exchange will be billing having at least 75% common ownership between previous month in all symbols excluding the two entities as reflected on each entity’s Form Underlying Symbol List A using the following certain incentive programs separately, including the BD, Schedule A. formula: (i) The Liquidity Provider’s total electronic Liquidity Provider Sliding Scale Adjustment Table, 29 See Cboe Options Fees Schedule Footnote 23. automatic execution (‘‘auto-ex’’) volume (i.e., for the periods of October 1–October 4 and October Particularly, a Market-Maker may designate an volume resulting from that Liquidity Provider’s 7–October 31 in light of the migration of its billing Order Flow Provider (‘‘OFP’’) as its ‘‘Appointed resting quotes or single sided quotes/orders that system. As such, a Market-Maker’s Performance OFP’’ and an OFP may designate a Market-Maker were executed by an incoming order or quote), Tier for November 2019 will be determined by the to be its ‘‘Appointed Market-Maker’’ for purposes of divided by (ii) the Liquidity Provider’s total auto- Market-Maker’s percentage of volume that was qualifying for credits under AVP. ex volume (i.e., volume that resulted from the Maker from the period of October 7–October 31, 30 The Exchange notes that Trading Permits Liquidity Provider’s resting quotes/orders and 2019. currently each include a set bandwidth allowance volume that resulted from that LP’s quotes/orders
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participants may similarly have also provided an appointment credit of month. If a Trading Permit is issued multiple Logical Ports and/or BOE Bulk 1.0, a quoting and order entry during a calendar month after the first Ports as they may have had bandwidth bandwidth allowance, up to three trading day of the month, the access fee packets to accommodate their order and logins, trading floor access and TPH for the Trading Permit for that calendar quote entry needs. As such, the status.36 A Floor Broker Trading Permit month is prorated based on the Exchange proposes to eliminate all of entitled the holder to act as a Floor remaining trading days in the calendar the current Bandwidth Packet fees.33 Broker, provided an order entry month. Trading Permits will be renewed The Exchange believes that the bandwidth allowance, up to 3 logins, automatically for the next month unless proposed pricing implications of going trading floor access and TPH status.37 the Trading Permit Holder submits beyond specified bandwidth described Lastly, an EAP entitled the holder to written notification to the Membership above in the logical connectivity fees electronic access to the Exchange. Services Department by 4 p.m. CT on section will be able to otherwise Holders of EAPs must have been broker- the second-to-last business day of the mitigate message traffic as necessary. dealers registered with the Exchange in prior month to cancel the Trading one or more of the following capacities: CAS Servers Permit effective at or prior to the end of (a) Clearing TPH, (b) TPH organization By way of background, in order to the applicable month. Trading Permit approved to transact business with the Holders will only be assessed a single connect to the legacy Cboe Command, public, (c) Proprietary TPHs and (d) monthly fee for each type of electronic which allowed a TPH to trade on the order service firms. The permit did not Trading Permit it holds. Cboe Options System, a TPH had to provide access to the trading floor. An connect via either a CMI or FIX interface EAP also provided an order entry First, TPHs no longer need to hold (depending on the configuration of the bandwidth allowance, up to 3 logins multiple permits for each type of TPH’s own systems). For TPHs that and TPH status.38 The Exchange also electronic Trading Permit (i.e., connected via a CMI interface, they had provided an opportunity for TPHs to electronic Market-Maker Trading to use CMI CAS Servers. In order to pay reduced rates for Trading Permits Permits and/or and Electronic Access ensure that a CAS Server was not via the Market Maker and Floor Broker Permits). Rather, for electronic access to overburdened by quoting activity for Trading Permit Sliding Scale Programs the Exchange, a TPH need only Market-Makers, the Exchange allotted (‘‘TP Sliding Scales’’). Particularly, the purchase one of the following permit each Market-Maker a certain number of TP Sliding Scales allowed Market- types for each trading function the TPH CASs (in addition to the shared Makers and Floor Brokers to pay intends to perform: Market-Maker backups) based on the amount of reduced rates for their Trading Permits Electronic Access Permit (‘‘MM EAP’’) quoting bandwidth that they had. The if they committed in advance to a in order to act as an off-floor Market- Exchange no longer uses CAS Servers, specific tier that includes a minimum Maker and which will continue to be post-migration. In light of the number of eligible Market-Maker and assessed a monthly fee of $5,000, elimination of CAS Servers, the Floor Broker Trading Permits, Electronic Access Permit (‘‘EAP’’) in Exchange proposes to eliminate the CAS respectively, for each calendar year.39 order to submit orders electronically to Server allotment table and extra CAS As noted above, Trading Permits were the Exchange 40 and which will be Server fee. tied to bandwidth allocation, logins and assessed a monthly fee of $3,000, and a Trading Permit Fees appointment costs, and as such, TPH Clearing TPH Permit, for TPHs acting organizations may hold multiple By way of background, the Exchange solely as a Clearing TPH, which will be Trading Permits of the same type in may issue different types of Trading assessed a monthly fee of $2,000 (and is order to meet their connectivity and Permits and determine the fees for those more fully described below). For appointment cost needs. Post-Migration, Trading Permits.34 Pre-migration, the example, a TPH organization that bandwidth allocation, logins and Exchange issued the following three wishes to act as a Market-Maker and appointment costs are no longer tied to types of Trading Permits: (1) Market- also submit orders electronically in a a Trading Permit, and as such, the Maker Trading Permits, which were non-Market Maker capacity would have Exchange proposes to modify its assessed a monthly fee of $5,000 per to purchase one MM EAP and one EAP. permit; (2) Floor Broker Trading Trading Permit structure. Particularly, TPHs will be assessed the monthly fee Permits, which were assessed a monthly in connection with the migration, the for each type of Permit once per fee of $9,000 per permit; and (3) Exchange adopted separate on-floor and electronic access capacity. Electronic Access Permits (‘‘EAPs’’), off-floor Trading Permits for Market- Makers and Floor Brokers, adopted a Next, the Exchange proposes to adopt which were assessed a monthly fee of a new Trading Permit, exclusively for $1,600 per permit. The Exchange also new Clearing TPH Permit, and proposes to modify the corresponding fees and Clearing TPHs that are approved to act offered separate Market-Maker and solely as a Clearing TPH (as opposed to Electronic Access Permits for the Global discounts. As was the case pre- migration, the proposed access fees those that are also approved in a Trading Hours (‘‘GTH’’) session, which capacity that allows them to submit were assessed a monthly fee of $1,000 discussed below will continue to be non-refundable and will be assessed orders electronically). Currently any per permit and $500 per permit TPH that is registered to act as a respectively.35 For further color, a through the integrated billing system during the first week of the following Clearing TPH must purchase an EAP, Market-Maker Trading Permit entitled whether or not that Clearing TPH acts the holder to act as a Market-Maker, 36 solely as a Clearing TPH or acts as a including a Market-Maker trading See Cboe Options Fees Schedule. 37 Clearing TPH and submits orders remotely, DPM, eDPM, or LMM, and Id. 38 Id. electronically. The Exchange proposes 39 Due to the October 7 migration, the Exchange to adopt a new Trading Permit, for any 33 See Cboe Options Fees Schedule, Bandwidth had amended the TP Sliding Scale Programs to TPH that is registered to act solely as Packet Fees. provide that any commitment to Trading Permits 34 See Cboe Options Rules 3.1(a)(iv)–(v). under the TP Sliding Scales shall be in place 35 The fees were waived through September 2019 through September 2019, instead of the calendar 40 EAPs may be purchased by TPHs that both for the first Market-Maker and Electronic Access year. See Cboe Options Fees Schedule, Footnotes 24 clear transactions for other TPHs (i.e., a ‘‘Clearing GTH Trading Permits. and 25. TPH’’) and submit orders electronically.
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Clearing TPH at a discounted rate of credit of 1.0. A Market-Maker could adopt a new MM EAP Appointment $2,000 per month.41 select for each Trading Permit the Sliding Scale. Appointment Units for Additionally, the Exchange proposes Market-Maker held any combination of each assigned class will be aggregated to eliminate its fees for Global Trading classes whose aggregate appointment for each Market-Maker and Market- Hours Trading Permits. Particularly, the cost did not exceed 1.0. A Market-Maker Maker affiliate. If the sum of Exchange proposes to provide that any could not hold a combination of appointments is a fractional amount, the Market-Maker EAP, EAP and Clearing appointments whose aggregate total will be rounded up to the next TPH Permit provides access (at no appointment cost was greater than the highest whole Appointment Unit. The additional cost) to the GTH session.42 number of Trading Permits that Market- following lists the progressive monthly Additionally, the Exchange proposes to Maker held.44 fees for Appointment Units:46 amend Footnote 37 of the Fees Schedule As discussed, post-migration, regarding GTH in connection with the bandwidth allocation, logins and Market-maker Monthly fees migration. Currently Footnote 37 appointment costs are no longer tied to EAP Quantity (per unit) provides that separate access permits a single Trading Permit and therefore appointments and connectivity is needed for the GTH TPHs no longer need to have multiple Appointment 1 ...... $0 session. The Exchange proposes to permits for each type of electronic Units. eliminate this language as that is no Trading Permit. Market-Makers must 2 ...... 6,000 longer the case post-migration (i.e., an still select class appointments in the 3 to 5 ..... 4,000 electronic Trading Permits will grant classes they seek to make markets > 5 ...... 3,100 access to both sessions and physical and electronically.45 Particularly, a Market- logical ports may be used in both Maker firm will only be required to have As noted above, upon migration the sessions, eliminating the need to one permit and will thereafter be Exchange required separate Trading purchase separate connectivity). The charged for one or more ‘‘Appointment Permits for on-floor and off-floor Exchange also notes that in connection Units’’ (which will scale from 1 ‘‘unit’’ activity. As such, the Exchange with migration, the Book used during to more than 5 ‘‘units’’), depending on proposes to maintain a Floor Broker Regular Trading Hours (‘‘RTH’’) will be which classes they elect appointments Trading Permit and adopt a new Market- the same Book used during GTH (as in. Appointment Units will replace the Maker Floor Permit for on-floor Market- compared to pre-migration where the standard 1.0 appointment cost, but Makers. In addition, RUT, SPX, and VIX Exchange maintained separate Books for function in the same manner. Tier Appointment fees will be charged each session). The Exchange therefore Appointment weights (formerly known separately for Permit, as discussed more also proposes to eliminate language in as ‘‘appointment costs’’) for each fully below. Footnote 37 stating that GTH is a appointed class will be set forth in Cboe segregated trading session and that there Options Rule 5.50(g) and will be As briefly described above, the is no market interaction between the summed for each Market-Maker in order Exchange currently maintains TP two sessions. to determine the total appointment Sliding Scales, which allow Market- The Exchange next proposes to adopt units, to which fees will be assessed. Makers and Floor Brokers to pay MM EAP Appointment fees. By way of This was the manner in which the tier reduced rates for their Trading Permits background, a registered Market-Maker costs per class appointment were if they commit in advance to a specific may currently create a Virtual Trading summed to meet the 1.0 appointment tier that includes a minimum number of Crowd (‘‘VTC’’) Appointment, which cost, the only difference being that if a eligible Market-Maker and Floor Broker confers the right to quote electronically Market-Maker exceeds this ‘‘unit’’, then Trading Permits, respectively, for each in an appropriate number of classes their fees will be assessed under the calendar year. The Exchange proposes selected from ‘‘tiers’’ that have been ‘‘unit’’ that corresponds to the total of to eliminate the current TP Sliding structured according to trading volume their appointment weights, as opposed Scales, including the requirement to statistics, except for the AA tier.43 Each to holding another Trading Permit commit to a specific tier, and replace it Trading Permit historically held by a because it exceeded the 1.0 ‘‘unit’’. with new TP Sliding Scales as Market-Maker had an appointment Particularly, the Exchange proposes to follows: 47
Current Proposed Floor TPH permits Current monthly fee Proposed monthly fee permit Qty (per permit) permit Qty (per permit)
Market-Maker Floor Permit ...... 1–10 ...... $5,000 1 ...... $6,000 11–20 ...... 3,700 2 to 5 ...... 4,500 21 or more .. 1,800 6 to 10 ...... 3,500 >10 ...... 2,000 Floor Broker Permit ...... 1 ...... 9,000 1 ...... 7,500 2–5 ...... 5,000 2 to 3 ...... 5,700
41 Cboe Option Rules provides the Exchange Letter of Guarantee to participate in the GTH $14,000 (1 appointment unit at $0, 1 appointment authority to issue different types of Trading Permits session (as is the case today). unit at $6,000 and 2 appointment units at $4,000) which allows holders, among other things, to act in 43 See Cboe Options Rule 5.50 (Appointment of as and for appointment fees and $5,000 for a one or more trading functions authorized by the Market-Makers). Market-Maker Trading Permit, for a total monthly Rules. See Cboe Options Rule 3.1(a)(iv). The 44 For example, if a Market-Maker selected a sum of $19,000, where a Market-Maker currently Exchange notes that currently 17 out of 38 Clearing combination of appointments that has an aggregate (i.e., prior to migration) with a total appointment TPHs are acting solely as a Clearing TPH on the appointment cost of 2.5, that Market-Maker must cost of 3.5 would need to hold 4 Trading Permits Exchange. hold at least 3 Market-Maker Trading Permits. and would therefore be assessed a monthly fee of 42 The Exchange notes that Clearing TPHs must be 45 See Cboe Options Rule 5.50(a). $20,000. properly authorized by the Options Clearing 46 For example, if a Market-Maker’s total 47 In light of the proposed change to eliminate the Corporation (‘‘OCC’’) to operate during the Global appointment costs amount to 3.5 unites, the Market- TP Sliding Scale, the Exchange proposes to Trading Hours session and all TPHs must have a Maker will be assessed a total monthly fee of eliminate Footnote 24 in its entirety.
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Current Proposed Floor TPH permits Current monthly fee Proposed monthly fee permit Qty (per permit) permit Qty (per permit)
6 or more .... 3,000 4 to 5 ...... 4,500 >5 ...... 3,200
Floor Broker ADV Discount Specifically, any Floor Broker Trading TPH’s Floor Broker Trading Permit fees. Footnote 25, which governs rebates on Permit Holder that executes an average The Exchange proposes to maintain, but Floor Broker Trading Permits, currently of 15,000 customer (‘‘C’’ origin code) modify, its discount for Floor Broker provides that any Floor Broker that and/or professional customer and Trading Permit fees. First, the executes a certain average of customer voluntary customer (‘‘W’’ origin code) measurement criteria to qualify for a or professional customer/voluntary open-outcry contracts per day over the rebate will be modified to only include customer (collectively ‘‘customer’’) course of a calendar month in customer (‘‘C’’ origin code) open-outcry open-outcry contracts per day over the Qualifying Symbols will receive a rebate contracts executed per day over the course of a calendar month in all of $9,000 on that TPH’s Floor Broker course of a calendar month in all underlying symbols excluding Trading Permit fees. Additionally, any underlying symbols, while the rebate Underlying Symbol List A (except RLG, Floor Broker that executes an average of amount will be modified to be a RLV, RUI, and UKXM), DJX, XSP, and 25,000 customer open-outcry contracts percentage of the TPH’s Floor Broker subcabinet trades (‘‘Qualifying per day over the course of a calendar Permit total costs, instead of a straight Symbols’’), will receive a rebate on that month in Qualifying Symbols will rebate.48 The criteria and corresponding TPH’s Floor Broker Trading Permit Fees. receive a rebate of $14,000 on that percentage rebates are noted below.49
Floor broker Floor broker ADV discount tier ADV permit rebate (%)
1 ...... 0 to 99,999 ...... 0 2 ...... 100,000 to 174,999 ...... 15 3 ...... >174,999 ...... 25
Next, the Exchange proposes to VIX contracts while that appointment is Maker must execute in a month to modify its SPX, VIX and RUT Tier active or (ii) conducts at least 1000 open trigger the fee for SPX, VIX and RUT. Appointment Fees. Currently, these fees outcry transaction in VIX at any time Particularly, for SPX, the Exchange are assessed to any Market-Maker TPH during the month. Lastly, the $1,000 proposes to eliminate the 100 contract that either (i) has the respective SPX, RUT Tier Appointment is assessed to threshold for electronic SPX VIX or RUT appointment at any time any Market-Maker Trading Permit executions.50 The Exchange notes that during a calendar month and trades a Holder that either (i) has an RUT Tier historically, all TPHs that trade SPX specified number of contracts or (ii) Appointment at any time during a electronically executed more than 100 trades a specified number of contracts in calendar month and trades at least 100 contracts electronically each month (i.e., open outcry during a calendar month. RUT contracts while that appointment no TPH electronically traded between 1 More specifically, the Fees Schedule is active or (ii) conducts at least 1000 and 100 contracts of SPX). As no TPH provides that the $3,000 per month SPX open outcry transaction in RUT at any would currently be negatively impacted Tier Appointment is assessed to any time during the month. by this change, the Exchange proposes Market-Maker Trading Permit Holder Because the Exchange is separating to eliminate the threshold for SPX and that either (i) has an SPX Tier Market-Maker Trading Permits for align the electronic SPX Tier Appointment at any time during a electronic and open-outcry market- Appointment Fee with that of the floor calendar month and trades at least 100 making, the Exchange will be assessing SPX Tier Appointment Fee, which is SPX contracts while that appointment is separate Tier Appointment Fees for each not subject to any executed volume active or (ii) conducts any open outcry type of Market-Maker Trading Permit. threshold. For the VIX and RUT Tier transaction in SPX or SPX Weeklys at The Exchange proposes that a MM EAP appointments, the Exchange proposes to any time during the month. The $2,000 will be assessed the Tier Appointment increase the threshold from 100 per month VIX Tier Appointment is Fee whenever the Market-Maker contracts a month to 1,000 contracts a assessed to any Market-Maker Trading executes the corresponding specified month. The Exchange notes the Tier Permit Holder that either (i) has an SPX number of contracts, if any. The Appointment Fee amounts are not Tier Appointment at any time during a Exchange also proposes to modify the changing.51 In connection with the calendar month and trades at least 100 threshold number of contracts a Market- proposed changes, the Exchange
48 As is the case today, the Floor Broker ADV SR–CBOE–2019–082), and subsequent to the calculation in filing No. SR–CBOE–2019–124. The Discount will be available for all Floor Broker Second Proposed Rule Change filing that proposed additions proposed by filing SR–CBOE–2019–124 Trading Permits held by affiliated Trading Permit these changes on November 29, 2019 (SR–CBOE– are double underlined in Exhibit 5A and the Holders and TPH organizations. 2019–111), the Exchange amended the proposed deletions are doubled bracketed in Exhibit 5A. 49 In light of the proposal to eliminate the TP Market-Maker Tier Appointment fees to provide 51 Floor Broker Trading Surcharges for SPX/ Sliding Scales and the Floor Broker rebates that the SPX Tier Appointment Fee will be assessed SPXW and VIX are also not changing. The Exchange currently set forth under Footnote 25, the Exchange to any Market-Maker EAP that executes at least however, is creating a new table for Floor Broker proposes to eliminate Footnote 25 in its entirety. 1,000 contracts in SPX (including SPXW) excluding Trading Surcharges and relocating such fees in the 50 The Exchange notes that subsequent to the contracts executed during the opening rotation on Fees Schedule in connection with the proposal to Original Filing that proposed these changes on the final settlement date of VIX options and futures eliminate fees currently set forth in the ‘‘Trading October 1 and 2, 2019 (SR–CBOE–2019–077 and with the expiration used in the VIX settlement Permit and Tier Appointment Fees’’ Table.
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proposes to relocate the Tier demonstrated by the anticipated loss of pricing and pegged pricing which Appointment Fees to a new table and revenue discussed above. Rather, the require connection to the SIPs and each eliminate the language in the current proposed changes were prompted by the of the equities exchanges in order to respective notes sections of each Tier Exchange’s technology migration and properly execute those orders in Appointment Fee as it is no longer the adoption of a new (and improved) compliance with best execution necessary. connectivity infrastructure, rendering obligations. Additionally, in the options the pre-migration structure obsolete. markets, the linkage routing and trade Trading Permit Holder Regulatory Fee Such changes accordingly necessitated through protection are handled by the The Fees Schedule provides for a an overhaul of the Exchange’s previous exchanges, not by the individual Trading Permit Holder Regulatory Fee of access fee structure and corresponding members. Thus not connecting to an $90 per month, per RTH Trading Permit, fees. Moreover, the proposed changes options exchange or disconnecting from applicable to all TPHs, which fee helps more closely aligns the Exchange’s an options exchange does not more closely cover the costs of access fees to those of its Affiliated potentially subject a broker-dealer to regulating all TPHs and performing Exchanges, and reasonably so, as the violate order protection requirements. regulatory responsibilities. In light of Affiliated Exchanges offer substantially Gone are the days when the retail the changes to the Exchange’s Trading similar connectivity and functionality brokerage firms (the Fidelity’s, the Permit structure, the Exchange proposes and are on the same platform that the Schwab’s, the eTrade’s) were members to eliminate the TPH Regulatory Fee. Exchange has now migrated to. of the options exchanges—they are not The Exchange notes that there is no The Exchange also notes that it members of the Exchange or its regulatory requirement to maintain this operates in a highly competitive affiliates, they do not purchase fee. environment. Indeed, there are currently connectivity to the Exchange, and they 16 registered options exchanges that do not purchase market data from the 2. Statutory Basis trade options. Based on publicly Exchange. The Exchange is also not The Exchange believes the proposed available information, no single options aware of any reason why any particular rule change is consistent with the exchange has more than 21% of the market participant could not simply Securities Exchange Act of 1934 (the market share.56 Further, low barriers to drop its connections and cease being a ‘‘Act’’) and the rules and regulations entry mean that new exchanges may TPH of the Exchange if the Exchange thereunder applicable to the Exchange rapidly and inexpensively enter the were to establish ‘‘unreasonable’’ and and, in particular, the requirements of market and offer additional substitute uncompetitive price increases for its Section 6(b) of the Act.52 Specifically, platforms to further compete with the connectivity alternatives. Indeed, a the Exchange believes the proposed rule Exchange. There is also no regulatory number of firms currently do not change is consistent with the Section requirement that any market participant participate on the Exchange or 6(b)(5) 53 requirements that the rules of connect to any one options exchange, participate on the Exchange though an exchange be designed to prevent that any market participant connect at a sponsored access arrangements rather fraudulent and manipulative acts and particular connection speed or act in a than by becoming a member. practices, to promote just and equitable particular capacity on the Exchange, or Additionally, the Exchange notes that principles of trade, to foster cooperation trade any particular product offered on non-TPHs such as Service Bureaus and and coordination with persons engaged an exchange. Moreover, membership is Extranets resell Cboe Options 59 in regulating, clearing, settling, not a requirement to participate on the connectivity. This indirect processing information with respect to, Exchange. A market participant may connectivity is another viable and facilitating transactions in submit orders to the Exchange via a TPH alternative that is already being used by securities, to remove impediments to broker.57 Indeed, the Exchange is non-TPHs, which further constrains the and perfect the mechanism of a free and unaware of any one options exchange price that the Exchange is able to charge open market and a national market whose membership includes every for connectivity to its Exchange. system, and, in general, to protect registered broker-dealer.58 The rule Accordingly, in the event that a market investors and the public interest. structure for options exchanges are, in participant views one exchange’s direct Additionally, the Exchange believes the fact, fundamentally different from those connectivity and access fees as more or proposed rule change is consistent with of equities exchanges. In particular, less attractive than the competition, Section 6(b)(4) of the Act,54 which options market participants are not they can choose to connect to that requires that Exchange rules provide for forced to connect to (and purchase exchange indirectly or may choose not the equitable allocation of reasonable market data from) all options exchanges. to connect to that exchange and connect dues, fees, and other charges among its For example, there are many order types instead to one or more of the other 15 Trading Permit Holders and other that are available in the equities markets persons using its facilities. Additionally, 59 Prior to migration, there were 13 firms that that are not utilized in the options resold Cboe Options connectivity. Post-migration, the Exchange believes the proposed rule markets, which relate to mid-point the Exchange anticipated that there would be 19 change is consistent with the Section firms that resell Cboe Options connectivity (both 55 6(b)(5) requirement that the rules of 56 See Cboe Global Markets U.S. Options Market physical and logical) and as of January 2020 there an exchange not be designed to permit Volume Summary (March 26, 2020), available at are 15 firms that resell Cboe Options connectivity. The Exchange does not receive any connectivity https://markets.cboe.com/us/options/market_ unfair discrimination between revenue when connectivity is resold by a third- statistics/. party, which often is resold to multiple customers, customers, issuers, brokers, or dealers. 57 The Exchange first stresses that the Such market participant would be subject to some of whom are agency broker-dealers that have the fees of that broker. The Exchange notes that numerous customers of their own. The Exchange proposed changes were not designed such broker is not required to publicize, let alone does not have specific knowledge as to what latency with the objective to generate an overall justify or file with the Commission its fees, and as a market participant may experience using an increase in access fee revenue, as such could charge the market participant any fees indirect connection versus a direct connection and it deems appropriate, even if such fees would notes it may vary by the service provided by the otherwise be considered potentially unreasonable 52 extranet provider and vary between extranet 15 U.S.C. 78f(b). or uncompetitive fees. providers. The Exchange believes however, that 53 15 U.S.C. 78f(b)(5). 58 The Exchange further notes that even the there are extranet providers able to provide 54 15 U.S.C. 78f(b)(4). number of members between the Exchange and its connections with a latency that is comparable to 55 15 U.S.C. 78f(b)(5). 3 other options exchange affiliates vary. latency experienced using a direct connection.
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options markets. For example, two TPHs connectivity, many TPHs were able to offered or demonstrated that a market that connected directly to the Exchange purchase small quantities of physical share of approximately 21% provides pre-migration, now connect indirectly ports. For example, approximately 36% the Exchange with anti-competitive via an extranet provider. The Exchange of TPHs that connected directly to the pricing power. As discussed, if an notes that it has not received any Exchange purchased only one to two 1 exchange sets too high of a fee for comments that, and has no evidence to Gb ports, approximately 40% purchased connectivity and/or market data services suggest, the two TPHs that transitioned only one to two 10 Gb ports, and for its relevant marketplace, market from direct connections to an indirect approximately 40% had purchased a participants can choose to disconnect connections post-migration were the combined total of one to two ports (for from the Exchange. result of an undue financial burden both 1 Gb and 10 Gb). Further, no TPHs The Exchange also believes that resulting from the proposed fee that connected directly to the Exchange competition in the marketplace changes.60 Rather, the Exchange had more than five 1 Gb ports, and only constrains the ability of exchanges to believes the transitions demonstrate that 8.5% of TPHs that connected directly to charge supracompetitive fees for access indirect connectivity is in fact a viable the Exchange had between six and ten to its market, even if such market, like option for market participants, therefore 10 GB ports and only 8.5% had between the Exchange, offers proprietary reflecting a competitive environment. It ten and fourteen 10 Gb ports. There products exclusive to that market. further demonstrates the manner in were also a combined total of 41 ports Notably, just as there is no regulatory which market participants connect to used for indirect connectivity (twenty- requirement to become a member of any the Exchange is entirely within the one 1 Gb ports and twenty 10 Gb one options exchange, there is also no discretion of market participants, who ports).64 The Exchange notes that all regulatory requirement for any market can consider the fees charged by the types of members connected indirectly participant to trade any particular Exchange and by resellers when making to the Exchange including Clearing product, nor is there any requirement decisions. firms, Floor Brokers, order flow that any Exchange create or indefinitely Additionally, pre-migration, in providers, and on-floor and off-floor maintain any particular product.66 The August 2019, the Exchange had 97 Market-Makers, further reflecting the Exchange also highlights that market members (TPH organizations), of which fact that each type of market participant participants may trade an Exchange’s nearly half connected indirectly to the has the option to participate on an proprietary products through a third- Exchange. Similarly, in December 2019, exchange without direct connectivity. party without directly or indirectly the Exchange had 97 members, of which Accordingly, market participants connecting to the Exchange. nearly half of the participants connected choose if and how to connect to a Additionally, market participants may indirectly to the Exchange.61 More particular exchange and because it is a trade any options product, including specifically, in December 2019, 47 TPHs choice, the Exchange must set proprietary products, in the Over-the- connected directly to the Exchange and reasonable connectivity pricing, Counter (OTC) markets. Market accounted for approximately 66% of the otherwise prospective members would participants may also access other Exchange’s volume, 46 TPHs connected not connect and existing members exchanges to trade other similar or indirectly to the Exchange and would disconnect or connect through a competing proprietary or multi-listed accounted for approximately 29% of the third-party reseller of connectivity. products. Alternative products to the Exchange’s volume and 4 TPHs utilized Moreover, the Exchange notes that the Exchange’s proprietary products may both direct and indirect connections Commission itself has repeatedly include other options products, and accounted for approximately 5% of expressed its preference for competition including options on ETFs or options the Exchange’s volume. In December over regulatory intervention in futures, as well as particular ETFs or 2019, TPHs that connected directly to determining prices, products, and futures. For example, singly-listed SPX the Exchange purchased a collective 179 services in the securities markets. options may compete with the following physical ports (including legacy Particularly, in Regulation NMS, the products traded on other markets: physical ports), 144 of which were 10 Commission highlighted the importance Multiply-listed SPY options (options on Gb ports and 35 of which were 1 Gb of market forces in determining prices the ETF), E-mini S&P 500 Options ports.62 The Exchange notes that of and SRO revenues and, also, recognized (options on futures), and E-Mini S&P those market participants that do that current regulation of the market 500 futures (futures on index). connect to the Exchange, it is the system ‘‘has been remarkably successful Additionally, exclusively listed VIX individual needs of each market in promoting market competition in its options may compete with the following participant that determine the amount broader forms that are most important to products traded on other markets: and type of Trading Permits and investors and listed companies.’’ 65 The Multiply-listed VXX options (options on physical and logical connections to the number of available exchanges to the ETF) and exclusively listed SPIKES Exchange.63 With respect to physical connect to ensures increased options on the Miami International competition in the marketplace, and 60 The Exchange notes that TPHs are not required constrains the ability of exchanges to 66 If an option class is open for trading on another to specify to the Exchange why it opts to no longer charge supracompetitive fees for access national securities exchange, the Exchange may be a TPH, or why it cancels its ports, nor is a non- to its market. The Exchange is also not delist such option class immediately. For TPH market participating required to specify to the aware of any evidence that has been proprietary products, the Exchange may determine Exchange why it opts to not be a TPH and directly to not open for trading any additional series in that connect to the Exchange. option class; may restrict series with open interest 61 As of April 30, 2020, the Exchange had 94 TPH alternatives in the Cboe C1 Options Exchange to closing transactions, provided that, opening organizations. Connectivity Manual, as well as the various transactions by Market-Makers executed to 62 Of the 4 TPHs that connected both directly and technical specifications. See http:// accommodate closing transactions of other market indirectly to the Exchange, 1 TPH had two 1 Gb markets.cboe.com/us/options/support/technical/. participants and opening transactions by TPH Ports and the remaining 3 TPHs had a combined 64 The Exchange notes that it does not know how organizations to facilitate the closing transactions of total of six 10 Gb ports. many, and which kind of, connections each TPH public customers executed as crosses pursuant to 63 To assist market participants that are connected that indirectly connects to the Exchange has. and in accordance with Rule 6.74(b) or (d) may be or considering connecting to the Exchange, the 65 See Securities Exchange Act Release No. 51808 permitted; and may delist the option class when all Exchange provides detailed information and (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) series within that class have expired. See Cboe Rule specifications about its available connectivity (‘‘Regulation NMS Adopting Release’’). 4.4, Interpretations and Policies .11.
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Securities Exchange, LLC (‘‘MIAX’’).67 otherwise profitable.71 Similarly, affiliated exchanges which have the Other options exchanges are also not although the Exchange may have same connectivity infrastructure the precluded from creating new proprietary products not offered by Exchange has migrated to.74 proprietary products that may achieve other competitors, not unlike unique Furthermore, in determining the similar objectives to (and therefore business models, a competitor could proposed fee changes discussed above, compete with) the Exchange’s existing create similar products to an existing the Exchange reviewed the current proprietary products. For example, proprietary product if demand were competitive landscape, considered the Nasdaq PHLX exclusively lists options adequate. As noted above, other fees historically paid by market on the Nasdaq-100, which options, like exchanges, that have comparable participants for connectivity to the pre- index options listed on the Exchange, connectivity fees, also currently offer migration system, and also assessed the offer investors an alternative method to exclusively listed products.72 As such, impact on market participants to ensure manage and hedge portfolio exposure to the Exchange is still very much subject that the proposed fees would not create the U.S. equity markets. Indeed, even to competition and does not possess an undue financial burden on any though exclusively-listed proprietary anti-competitive pricing power, even market participants, including smaller products may not be offered by with its offering of proprietary products. market participants. Indeed, the competitors, a competitor could create Rather, the Exchange must still set Exchange received no comments from similar products if demand were reasonable connectivity pricing, any TPH suggesting they were unduly adequate. As noted above for example, otherwise prospective members would burdened by the proposed changes MIAX created its exclusive product not connect, and existing members described herein, which were first SPIKES. In connection with a recently would disconnect or connect through a announced via Exchange Notice nearly proposed amendment to the National third-party reseller of connectivity, two months in advance of the migration Market System Plan Governing the regardless of what products its offers. (i.e., now seven months ago), nor were Consolidated Audit Trail (‘‘CAT NMS For all the reasons discussed above any timely comment letters received by Plan’’),68 the Commission discussed the and in this filing, the Exchange believes the Commission by the comment period existence of competition in the its proposed fees are reasonable as the submission deadline of November 12, marketplace generally, and particularly Exchange was subject to significant 2019.75 The Exchange also underscores for exchanges with unique business competitive forces in setting its the fact that no comment letters were models. Specifically, the Commission proposed fees. In addition, the Exchange received in response to either its Second contemplated the possibility of a forced believes its proposed fees are reasonable Proposed Rule Change or Third exit by an exchange as a result of a in light of the numerous benefits the Proposed Rule Change, and that no proposed amendment that could reduce new connectivity infrastructure individual market participant has the amount of CAT funding a provides market participants. As provided any written comments participant could recover if certain described, the post-migration specifically suggesting that the implementation milestones were connectivity architecture provides for a Exchange has failed to provide missed. The Commission acknowledged latency equalized infrastructure, sufficient information in the Second, that, even if an exchange were to exit improved system performance, and Third or Fourth Proposed Rule Change the marketplace due to its proposed fee- increased sustained order and quote per to meets its burden to demonstrate its related change, it would not second capacity. As such, even where a proposed fees are consistent with the significantly impact competition in the fee for a particular type or kind of requirements of the Exchange Act. market for exchange trading services connectivity may be higher than it was The proposed connectivity structure because these markets are served by to its pre-migration equivalent, such and corresponding fees, like the pre- multiple competitors.69 The increase is reasonable given the migration connectivity structure and Commission explicitly stated that increased benefits market participants fees, continues to provide market ‘‘[c]onsequently, demand for these are getting for a similar or modestly participants flexibility with respect to services in the event of the exit of a higher price. The Exchange further how to connect to the Exchange based competitor is likely to be swiftly met by believes that the reasonableness of its on each market participants’ respective existing competitors.’’ 70 The proposed connectivity fees is business needs. For example, the Commission further recognized that demonstrated by the very fact that such amount and type of physical and logical while some exchanges may have a fees are in line with, and in some cases ports are determined by factors relevant unique business model that is not lower than, the costs of connectivity at and specific to each market participant, currently offered by competitors, a other Exchanges,73 including its own including its business model, costs of competitor could create similar business connectivity, how its business is models if demand were adequate, and if 71 Id. segmented and allocated and volume of they did not do so, the Commission 72 See e.g., Nasdaq PHLX LLC Rules, (Options 7 messages sent to the Exchange. Pricing Schedule), Section 8A (Permit and Moreover, the Exchange notes that it believes it would be likely that new Registration Fees) which provide for floor permit entrants would do so if the exchange fees between $4,000 to $6,000 per permit and with that unique business model was Section 9B (Port Fees), which provides various port direct connection that supports up to 1Gb. See also fees ranging from $500 to $1,250 per port. See also NYSE American Fee Schedule, Section V.B, and Nasdaq PHLX LLC Rules, General 8 Connectivity, Arca Fees and Charges, Co-Location Fees. NYSE 67 MIAX has described SPIKES options as which provides for monthly physical connectivity American and Arca each charge a monthly fee of ‘‘designed specifically to compete head-to-head fees including fees for 1 Gb physical connections $5,000 for each 1Gb circuit, $14,000 for each 10Gb ® against Cboe’s proprietary VIX product.’’ See priced at $2,500 per port and for 10 Gb physical circuit and $22,000 for each 10Gb LX circuit. MIAX Press Release, SPIKES Options Launched on connections starting at $10,000 per port. 74 See e.g., Affiliated Exchange Fee Schedules, MIAX, February 21, 2019, available at https:// 73 Physical Connectivity Fees. For example, Cboe _ See e.g., Nasdaq PHLX and ISE Rules, General www.miaxoptions.com/sites/default/files/press BZX, Cboe EDGX and C2 each charge a monthly fee _ _ _ Equity and Options Rules, General 8. Phlx and ISE release-files/MIAX Press Release 02212019.pdf. each charge a monthly fee of $2,500 for each 1Gb of $2,500 for each 1Gb connection and $7,500 for 68 See Securities Exchange Act Release No. 86901 connection, $10,000 for each 10Gb connection and each 10Gb connection. (September 9, 2019), 84 FR 48458 (September 13, $15,000 for each 10Gb Ultra connection. See also 75 See Exchange Notice ‘‘Cboe Options Exchange 2019) (File No. S7–13–19). Nasdaq Price List—Trading Connectivity. Nasdaq Access and Capacity Fee Schedule Changes 69 Id. charges a monthly fee of $7,500 for each 10Gb Effective October 1, 2019 and November 1, 2019’’ 70 Id. direct connection to Nasdaq and $2,500 for each Reference ID C2019081900.
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does not have unlimited system ($5,000 per port). Under the proposed allocation of reasonable dues, fees and capacity to support an unlimited rule change, using the new Physical other charges as its fees for physical number of order and quote entry per Ports, that TPH has the option of connectivity are reasonably constrained second. Accordingly, the proposed utilizing one single port, instead of two by competitive alternatives, as connectivity fees, and connectivity ports, to receive both unicast and discussed above. The proposed amounts structure are designed to encourage multicast traffic, therefore paying only are in line with, and in some cases market participants to be efficient with $7,000 per month for a port that lower than, the costs of physical their respective physical and logical provides both connectivity types. The connectivity at other Exchanges,76 port usage. While the Exchange has no Exchange notes that pre-migration, including the Cboe Affiliated way of predicting with certainty the approximately 50% of TPHs maintained Exchanges, which have the same amount or type of connections market two or more 10 Gb Network Access connectivity infrastructure the Exchange participants will in fact purchase, if any, Ports. While the Exchange has no way has migrated to and some of which also the Exchange anticipates that like today, of predicting with certainty the amount offer exclusive products.77 The some market participants will continue or type of connections market Exchange does not believe it is to decline to connect and participate on participants will in fact purchase post- unreasonable to assess fees that are in the Exchange, some will participate on migration, the Exchange anticipated line with fees that have already been the Exchange via indirect connectivity, approximately 50% of the TPHs with established for the same physical ports some will only purchase one physical two or more 10 Gb Network Access used to connect to the same connection and/or logical port Ports to reduce the number of 10 Gb connectivity infrastructure and common connection, and others will purchase Physical Ports that they purchase and platform. The Exchange believes the multiple connections. expected the remaining 50% of TPHs to proposed Physical Port fees are In sum, the Exchange believes the maintain their current 10 Gb Physical equitable and not unreasonably proposed fees are reasonable and reflect Ports, but reduce the number of 1 Gb discriminatory as the connectivity a competitive environment, as the Physical Ports. Particularly, pre- pricing is associated with relative usage Exchange seeks to amend its access fees migration, a number of TPHs of the various market participants in connection with the migration of its maintained two 10 Gb Network Access (including smaller participants) and the technology platform, while still Ports to receive multicast data and two Exchange has not been presented with attracting market participants to 1 Gb Network Access Ports for order any evidence to suggest its proposed fee continue to be, or become, connected to entry (unicast connectivity). As the new changes would impose a barrier to entry the Exchange. 10 Gb Physical Ports are able to for participants, including smaller Physical Ports accommodate unicast connectivity participants. In fact, as noted above, the (order entry), TPHs may choose to Exchange is unaware of any market The Exchange believes increasing the participant that has terminated direct fee for the new 10 Gb Physical Port is eliminate their 1 Gb Network Access Ports and utilize the new 10 Gb Physical connectivity solely as a result of the reasonable because unlike, the current proposed fee changes. The Exchange 10 Gb Network Access Ports, the new Ports for both multicast and unicast connectivity. The Exchange notes that also believes increasing the fee for 10 Gb Physical Ports provides a connection Physical Ports and charging a higher fee through a latency equalized in February 2020, approximately 78% of TPHs that maintained a 1 Gb Network as compared to the 1 Gb Physical Port infrastructure with faster switches and is equitable as the 1 Gb Physical Port is also allows access to both unicast order Access Port pre-migration, no longer maintained a 1 Gb Physical Port. 1/10th the size of the 10 Gb Physical entry and multicast market data with a Port and therefore does not offer access single physical connection. As Additionally, as of February 2020, approximately 44% reduced the to many of the products and services discussed above, legacy Network Access offered by the Exchange (e.g., ability to Ports do not permit market participants quantity of 10 Gb Physical Ports they maintained as compared to pre- receive certain market data products). to receive unicast and multicast Thus the value of the 1 Gb alternative connectivity. As such, in order to migration. As discussed above, if a TPH deems is lower than the value of the 10 Gb receive both connectivity types pre- alternative, when measured based on migration, a market participant needed a particular exchange as charging the type of Exchange access it offers. to purchase and maintain at least two 10 excessive fees for connectivity, such Moreover, market participants that Gb Network Access Ports. The proposed market participants may opt to purchase 10 Gb Physical Ports utilize Physical Ports not only provide latency terminate their connectivity the most bandwidth and therefore equalization (i.e., eliminate latency arrangements with that exchange, and consume the most resources from the advantages between market participants adopt a possible range of alternative based on location) as compared to the strategies, including routing to the 76 See e.g., Nasdaq PHLX and ISE Rules, General legacy ports, but also alleviate the need applicable exchange through another Equity and Options Rules, General 8. Phlx and ISE to pay for two physical ports as a result participant or market center or taking each charge a monthly fee of $2,500 for each 1Gb of needing unicast and multicast that exchange’s data indirectly. connection, $10,000 for each 10Gb connection and connectivity. Accordingly, market Accordingly, if the Exchange charges $15,000 for each 10Gb Ultra connection. See also Nasdaq Price List—Trading Connectivity. Nasdaq participants who historically had to excessive fees, it would stand to lose not charges a monthly fee of $7,500 for each 10Gb purchase two separate ports for each of only connectivity revenues but also direct connection to Nasdaq and $2,500 for each multicast and unicast activity, will be revenues associated with the execution direct connection that supports up to 1Gb. See also able to purchase only one port, and of orders routed to it, and, to the extent NYSE American Fee Schedule, Section V.B, and Arca Fees and Charges, Co-Location Fees. NYSE consequently pay lower fees overall. For applicable, market data revenues. The American and Arca each charge a monthly fee of example, pre-migration if a TPH had Exchange believes that this competitive $5,000 for each 1Gb circuit, $14,000 for each 10Gb two 10 Gb legacy Network Access Ports, dynamic imposes powerful restraints on circuit and $22,000 for each 10Gb LX circuit. one of which received unicast traffic the ability of any exchange to charge 77 See e.g., Affiliated Exchange Fee Schedules, Physical Connectivity Fees. For example, Cboe and the other of which received unreasonable fees for physical BZX, Cboe EDGX and C2 each charge a monthly fee multicast traffic, that TPH would have connectivity. The Exchange also notes of $2,500 for each 1Gb connection and $7,500 for been assessed $10,000 per month that the proposal represents an equitable each 10Gb connection.
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network. As such, the Exchange believes because the Exchange is proposing to firms purchase additional logical ports the proposed fees for the 1 and 10 Gb replace them with fees associated with when they require more capacity due to Physical Ports, respectively are the new logical connectivity options. their business needs. reasonably and appropriately allocated. The Exchange believes that it is An obvious driver for a market reasonable to harmonize the Exchange’s Data Port Fees participant’s decision to purchase logical connectivity options and multiple ports will be their desire to The Exchange believes assessing the corresponding connectivity fees now send or receive additional levels of data port fee per data source, instead of that the Exchange is on a common message traffic in some manner, either per port, is reasonable because it may platform as its Affiliated Exchanges. by increasing their total amount of allow for market participants to Additionally, the Exchange notes the message capacity available, or by maintain more ports at a lower cost and proposed fees are the same as, or in line segregating order flow for different applies uniformly to all market with, the fees assessed on its Affiliated trading desks and clients to avoid participants. The Exchange believes the 79 Exchanges for similar connectivity. latency sensitive applications from proposed increase is reasonable The proposed logical connectivity fees competing for a single thread of because, as noted above, market are also equitable and not unfairly resources. For example, a TPH may participants may pay lower fees as a discriminatory because the Exchange purchase one or more ports for its result of charging per data source and will apply the same fees to all market market making business based on the not per data port. Indeed, while the participants that use the same respective amount of message traffic needed to Exchange has no way of predicting with connectivity options. certainty the impact of the proposed support that business, and then The Exchange believes the proposed purchase separate ports for proprietary changes, the Exchange had anticipated Logical Port fees are reasonable as it is approximately 76% of the 51 market trading or customer facing businesses so the same fee for Drop Ports and the first that those businesses have their own participants who pay data port fees to five BOE/FIX Ports that is assessed for pay the same or lower fees upon distinct connection, allowing the firm to CMI and FIX Logins, which the send multiple messages into the implementation of the proposed change. Exchange is eliminating in lieu of As of December 2019, 46 market Exchange’s trading system in parallel 78 logical ports. Additionally, while the rather than sequentially. Some TPHs participants pay the proposed data proposed ports will be assessed the port fees, of which approximately 78% that provide direct market access to same monthly fees as current CMI/FIX their customers may also choose to market participants are paying the same Login IDs, the proposed logical ports or lower fees in connection with the purchase separate ports for different provide for significantly more message proposed change. Monthly savings for clients as a service for latency sensitive traffic. Specifically, the proposed BOE/ firms paying lower fees range from $500 customers that desire the lowest FIX Logical Ports will provide for 3 to $6,000 per month. The Exchange also possible latency to improve trading times the amount of quoting 80 capacity anticipated that 19% of TPHs who pay performance. Thus, while a smaller TPH and approximately 165 times order data port fees would pay a modest that demands more limited message entry capacity. Similarly, the Exchange increase of only $500 per month. In traffic may connect through a service believes the proposed BOE Bulk Port December 2019, approximately 22% bureau or other service provider, or may fees are reasonable because while the market participants paid higher fees, choose to purchase one or two logical fees are higher than the CMI and FIX with the majority of those market ports that are billed at a rate of $750 per Login Id fees and the proposed Logical participants paying a modest monthly month each, a larger market participant Port fees, BOE Bulk Ports offer increase of $500 and only 3 firms paying with a substantial and diversified U.S. significantly more bandwidth capacity either $1,000 or $1,500 more per month. options business may opt to purchase than both CMI and FIX Login Ids and Additionally, as discussed above, the additional ports to support both the Logical Ports. Particularly, a single BOE Exchange’s affiliate C2 has the same fee volume and types of activity that they Bulk Port offers 45 times the amount of which is also assessed at the proposed conduct on the Exchange. While the quoting bandwidth than CMI/FIX Login rate and assessed by data source instead Exchange has no way of predicting with Ids 81 and 5 times the amount of quoting of per port. The proposed name change certainty the amount or type of logical bandwidth than Logical Ports will offer. is also appropriate in light of the ports market participants will in fact Additionally, the Exchange believes that Exchange’s proposed changes and may purchase post-migration, the Exchange its fees for logical connectivity are alleviate potential confusion. anticipated approximately 16% of TPHs reasonable, equitable, and not unfairly to purchase one to two logical ports, and Logical Connectivity discriminatory as they are designed to approximately 22% of TPHs to not Port fees ensure that firms that use the most purchase any logical ports. In December capacity pay for that capacity, rather 2019, 13% of TPHs purchased one to The Exchange believes it’s reasonable than placing that burden on market two logical ports and 27% have not to eliminate certain fees associated with participants that have more modest purchased any logical ports. At the same legacy options for connecting to the needs. Although the Exchange charges a time, market participants that desire Exchange and to replace them with fees ‘‘per port’’ fee for logical connectivity, it more total capacity due to their business associated with new options for notes that this fee is in effect a capacity needs, or that wish to segregate order connecting to the Exchange that are fee as each FIX, BOE or BOE Bulk port flow by purchasing separate capacity similar to those offered at its Affiliated used for order/quote entry supports a allocations to reduce latency or for other Exchanges. In particular, the Exchange specified capacity (i.e., messages per operational reasons, would be permitted believes it’s reasonable to no longer second) in the matching engine, and to choose to purchase such additional assess fees for CMI and FIX Login IDs capacity at the same marginal cost. The because the Login IDs were retired and 79 See Affiliated Exchange Fee Schedules, Logical Exchange believes the proposal to assess rendered obsolete upon migration and Port Fees. an additional Logical and BOE Bulk port 80 Based on the purchase of a single Market-Maker 78 The Exchange notes the reduction in market Trading Permit or Bandwidth Packet. fee for incremental usage per logical participants that pay the data port fee is due to firm 81 Based on the purchase of a single Market-Maker port is reasonable because the proposed consolidations and acquisitions. Trading Permit or Bandwidth Packet. fees are modestly higher than the
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proposed Logical Port and BOE Bulk Moreover, the Exchange believes that Access Credits fees and encourage users to mitigate offering purge port functionality at the The Exchange believes the proposal to message traffic as necessary. The Exchange level promotes robust risk adopt credits for BOE Bulk Ports is Exchange notes one of its Affiliated management across the industry, and reasonable, equitable and not unfairly Exchanges has similar implied port thereby facilitates investor protection. discriminatory because it provides an fees.82 Some market participants, and, in opportunity for TPHs to pay lower fees In sum, the Exchange believes that the particular, larger firms, could build for logical connectivity. The Exchange proposed BOE/FIX Logical Port and similar risk functionality on their notes that the proposed credits are in BOE Bulk Port fees are appropriate as trading systems that permit the flexible lieu of the current credits that Market- these fees would ensure that market cancellation of orders entered on the Makers are eligible to receive today for participants continue to pay for the Exchange. Offering Exchange level Trading Permits fees. Although only amount of capacity that they request, protections however, ensures that such Market-Makers may receive the and the market participants that pay the functionality is widely available to all proposed BOE Bulk Port credits, most are the ones that demand the most firms, including smaller firms that may Market-Makers are valuable market resources from the Exchange. The otherwise not be willing to incur the participants that provide liquidity in the Exchange also believes that its logical costs and development work necessary marketplace and incur costs that other connectivity fees are aligned with the to support their own customized mass market participants do not incur. For goals of the Commission in facilitating cancel functionality. The Exchange example, Market-Makers have a number a competitive market for all firms that operates in a highly competitive market of obligations, including quoting trade on the Exchange and of ensuring obligations and fees associated with in which exchanges offer connectivity that critical market infrastructure has appointments that other market and related services as a means to ‘‘levels of capacity, integrity, resiliency, participants do not have. The Exchange availability, and security adequate to facilitate the trading activities of TPHs also believes that the proposals provide maintain their operational capability and other participants. As the proposed incremental incentives for TPHs to and promote the maintenance of fair Purge Ports provide voluntary risk strive for the higher tier levels, which and orderly markets.’’ 83 management functionality, excessive provide increasingly higher benefits for The Exchange believes waiving the fees would simply serve to reduce satisfying increasingly more stringent FIX/BOE Logical Port fee for one FIX demand for this optional product. The criteria, including criteria to provide Logical Port used to access PULSe and Exchange also believes that the more liquidity to the Exchange. The Silexx (for FLEX Trading) is reasonable proposed Purge Port fees are not Exchange believes the value of the because it will allow all TPHs using unfairly discriminatory because they proposed credits is commensurate with PULSe and Silexx to avoid having to will apply uniformly to all TPHs that the difficulty to achieve the pay a fee that they would otherwise choose to use dedicated Purge Ports. corresponding tier thresholds of each have to pay. The waiver is equitable and The proposed Purge Ports are program. not unfairly discriminatory because completely voluntary and, as they relate First, the Exchange believes the TPHs using PULSe are already subject to solely to optional risk management proposed BOE Bulk Port fee credits a monthly fee for the PULSe functionality, no TPH is required or provided under AVP will incentivize Workstation, which the Exchange views under any regulatory obligation to the routing of orders to the Exchange by as inclusive of fees to access the utilize them. The Exchange believes that TPHs that have both Market-Maker and Exchange. Moreover, while PULSe users adopting separate fees for these ports agency operations, as well as incent today do not require a FIX/CMI Login ensures that the associated costs are Market-Makers to continue to provide Id, post-migration, due to changes to the borne exclusively by TPHs that critical liquidity notwithstanding the connectivity infrastructure, PULSe users determine to use them based on their costs incurred with being a Market- Maker. More specifically, in the options will be required to maintain a FIX business needs, including Market- industry, many options orders are Logical Port and as such incur a fee they Makers or similarly situated market routed by consolidators, which are firms previously would not have been subject participants. Similar to Purge Ports, to. Similarly, the Exchange believes that that have both order router and Market- Spin and GRP Ports are optional the waiver for Silexx (for FLEX trading) Maker operations. The Exchange is products that provide an alternative will encourage TPHs to transact aware not only of the importance of means for market participants to receive business using FLEX Options using the providing credits on the order routing new Silexx System and encourage multicast data and request and receive side in order to encourage the trading of FLEX Options. Additionally, a retransmission of such data. As such submission of orders, but also of the the Exchange notes that it currently excessive fees would simply serve to operations costs on the Market-Maker waives the Login Id fees for Login IDs reduce demand for these products, side. The Exchange believes the used to access the CFLEX system. which TPHs are under no regulatory proposed change to AVP continues to obligation to utilize. All TPHs that The Exchange believes its proposed allow the Exchange to provide relief to fee for Purge Ports is reasonable as it is voluntarily select these service options the Market-Maker side via the credits, also in line with the amount assessed (i.e., Purge Ports, Spin Ports or GRP albeit credits on BOE Bulk Port fees for purge ports offered by its Affiliated Ports) will be charged the same amount instead of Trading Permit fees. Exchanges, as well as other exchanges.84 for the same respective services. All Additionally, the proposed credits may TPHs have the option to select any incentivize and attract more volume and 82 See e.g., Cboe C2 Options Exchange Fees connectivity option, and there is no liquidity to the Exchange, which will Schedule, Logical Connectivity Fees. differentiation among TPHs with regard benefit all Exchange participants 83 See Securities Exchange Act Release No. 73639 to the fees charged for the services through increased opportunities to trade (November 19, 2014), 79 FR 72251 (December 5, as well as enhancing price discovery. 2014) (File No. S7–01–13) (Regulation SCI Adopting offered by the Exchange. Release). While the Exchange has no way of 84 See Affiliated Exchange Fee Schedules, Logical Section 7(C). ISE charges a fee of $1,100 per month predicting with certainty how many and Port Fees. See also, Nasdaq ISE Pricing Schedule, for SQF Purge Ports. which TPHs will satisfy the required
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criteria to receive the credits, the purchasing multiple ports. Particularly, unfairly discriminatory because the Exchange had anticipated the proposal is intended to mitigate the Exchange will apply the same fees to all approximately two TPHs (out of costs incurred by traditional Market- market participants that use the same approximately 5 TPHs that are eligible Makers that focus on adding liquidity to type and number of Trading Permits. for AVP) to reach VIP Tiers 4 or 5 and the Exchange (as opposed to those that With respect to electronic Trading consequently earn the BOE Bulk Port fee provide and take, or just take). While Permits, the Exchange notes that TPHs credits for their respective Market- the Exchange cannot predict with previously requested multiple Trading Maker affiliate. For the month of certainty which Market-Makers will Permits because of bandwidth, login or October 2019, two TPHs received access reach Performance Tiers 4 and 5 each appointment cost needs. As described credits under Tier 5 and no TPHs month, based on historical performance above, in connection with migration, received credits under Tier 4. The it anticipated approximately 10 Market- bandwidth, logins and appointment Exchange notes that it believes its Makers would achieve Tiers 4 or 5. In costs are no longer tied to Trading reasonable, equitable and not unfairly October 2019, 12 Market-Makers Permits or Bandwidth Packets and as discriminatory to no longer provider achieved Tiers 4 or 5. Lastly, the such, the need to hold multiple permits access credits for Market-Makers whose Exchange notes that it is common and/or Bandwidth Packets is obsolete. affiliates achieve VIP Tiers 2 or 3 as the practice among options exchanges to As such, the Exchange believes the Exchange has adopted another differentiate fees for adding liquidity structure to require only one of each opportunity for all Market-Makers, not and fees for removing liquidity.85 type of applicable electronic Trading just Market-Makers that are part of a Permit is appropriate. Moreover, the Bandwidth Packets and CMI CAS Server consolidator, to receive credits on BOE Exchange believes offering separate Fees Bulk Port fees (i.e., credits available via marketing making permits for off-floor the proposed Market-Maker Access The Exchange believes it’s reasonable and on-floor Market-Makers provides for Credit Program). More specifically, to eliminate Bandwidth Packet fees and a cleaner, more streamlined approach to limiting the credits under AVP to the the CMI CAS Server fee because TPHs trading permits and corresponding fees. top two tiers enables the Exchange to will not pay fees for these connectivity Other exchanges similarly provide provide further credits under the new options and because Bandwidth Packets separate and distinct fees for Market- Market-Maker Access Credit Program. and CAS Servers have been retired and Makers that operate on-floor vs off-floor Furthermore, the Exchange notes that it rendered obsolete as part of the and their corresponding fees are similar is not required to provide any credits at migration. The Exchange believes that to those proposed by the Exchange.87 any tier level. even though it will be discontinuing The Exchange believes the proposed The Exchange believes the proposed Bandwidth Packets, the proposed fee for its MM EAP Trading Permits is BOE Bulk Port fee credits available for incremental pricing for Logical Ports reasonable as it is the same fee it assess TPHs that reach certain Performance and BOE Bulk Ports will continue to today for Market-Maker Trading Permits Tiers under the Liquidity Provider encourage users to mitigate message (i.e., $5,000 per month per permit). Sliding Scale Adjustment Table is traffic. The proposed change is equitable Additionally, the proposed fee is in line reasonable as the credits provide for and not unfairly discriminatory because with, and in some cases even lower reduced connectivity costs for those it will apply uniformly to all TPHs. than, the amounts assessed for similar Market-Makers that reach the required Access Fees access fees at other exchanges, thresholds. The Exchange believe it’s including its affiliate C2.88 The reasonable, equitable and not unfairly The Exchange believes the Exchange believes the proposed EAP fee discriminatory to provide credits to restructuring of its Trading Permits is is also reasonable, and in line with the those Market-Makers that primarily reasonable in light of the changes to the fees assessed by other Exchanges for provide and post liquidity to the Exchange’s connectivity infrastructure non-Market-Maker electronic access.89 Exchange, as the Exchange wants to in connection with the migration and The Exchange notes that while the continue to encourage Market-Makers the resulting separation of bandwidth Trading Permit fee is increasing, TPHs with significant Make Rates to continue allowance, logins and appointment overall cost to access the Exchange may to participate on the Exchange and add costs from each Trading Permit. The be reduced in light of the fact that a TPH Exchange also believes that it is liquidity. Greater liquidity benefits all no longer must purchase multiple market participants by providing more reasonable to harmonize the Exchange’s Trading Permit structure and trading opportunities and tighter 87 See e.g., PHLX Section 8A, Permit and spreads. corresponding connectivity options to Registration Fees. See also, BOX Options Fee Moreover, the Exchange notes that more closely align with the structures Schedule, Section IX Participant Fees; NYSE Market-Makers with a high Make Rate offered at its Affiliated Exchanges once American Options Fees Schedule, Section III(A) Monthly ATP Fees and NYSE Arca Options Fees percentage generally require higher the Exchange is on a common platform 86 and Charges, OTP Trading Participant Rights. For amounts of capacity than other Market- as its Affiliated Exchanges. The similar Trading Floor Permits for Floor Market Makers. Particularly, Market-Makers proposed Trading Permit structure and Makers, Nasdaq PHLX charges $6,000; BOX charges with high Make Rates are generally corresponding fees are also in line with up to $5,500 for 3 registered permits in addition to streaming significantly more quotes the structure and fees provided by other a $1,500 Participant Fee, NYSE Arca charges up to exchanges. The proposed Trading $6,000; and NYSE American charges up to $8,000. than those with lower Make Rates. As 88 See e.g., Cboe C2 Options Exchange Fees such, Market-Makers with high Make Permit fees are also equitable and not Schedule. See also, NYSE Arca Options Fees and Rates may incur more costs than other Charges, General Options and Trading Permit (OTP) Market-Makers as they may need to 85 See e.g., MIAX Options Fees Schedule, Section Fees, which assesses up to $6,000 per Market Maker OTP and NYSE American Options Fee Schedule, purchase multiple BOE Bulk Ports in 1(a), Market Maker Transaction Fees. 86 For example, the Exchange’s affiliate, C2, Section III. Monthly ATP Fees, which assess up to order to accommodate their capacity similarly provides for Trading Permits that are not $8,000 per Market Maker ATP. See also, PHLX needs. The Exchange believes the tied to connectivity, and similar physical and Section 8A, Permit and Registration Fees, which proposed credits for BOE Bulk Ports logical port options at similar pricings. See Cboe C2 assesses up to $4,000 per Market Maker Permit. 89 encourages Market-Makers to continue Options Exchange Fees Schedule. Physical See e.g., PHLX Section 8A, Permit and connectivity and logical connectivity are also not Registration Fees, which assesses up to $4,000 per to provide liquidity for the Exchange, tied to any type of permits on the Exchange’s other Permit for all member and member organizations notwithstanding the costs incurred by options exchange affiliates. other than Floor Specialists and Market Makers.
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Trading Permits, Bandwidth Packets be incurred by a TPH today in order to The following examples further and Login Ids in order to receive receive the same amount of order demonstrate potential cost savings/ sufficient bandwidth and logins to meet capacity that will be provided by a value added for an EAP holder with their respective business needs. To single Logical Port post-migration (i.e., modest capacity needs and an EAP illustrate the value of the new 5,000 orders per second), is holder with larger capacity needs: connectivity infrastructure, the approximately 98% higher than the cost Exchange notes that the cost that would for the same capacity post-migration.
Current fee structure Post-migration fee structure
TPH that holds 1 EAP, no Bandwidth Packets and 1 CMI login
EAP ...... $1,600 ...... $3,000. CMI Login/Logical Port ...... $750 ...... $750. Bandwidth Packets ...... 0 ...... N/A. Total Bandwidth Available ...... 30 orders/sec ...... 5,000 orders/sec. Total Cost ...... $2,350 ...... $3,750. Total Cost per message ...... $78.33/order/sec ...... $0.75/order/sec.
TPH that holds 1 EAP, 4 Bandwidth Packets and 15 CMI logins
EAP ...... $1,600 ...... $3,000. CMI Login/Logical Port ...... $11,250 (15@750) ...... $750. Bandwidth Packets ...... $6,400 (4@$1,600) ...... N/A. Total Bandwidth Available ...... 150 orders/sec ...... 5,000 orders/sec. Total Cost ...... $19,250 ...... $3,750. Total Cost per message ...... $128.33/order/sec ...... $0.75/order/sec.
The Exchange believes the proposal to Floor Broker Trading Permits will pay products towards the thresholds as adopt a new Clearing TPH Permit is lower Trading Permit fees. Particularly, compared to the current rebate program reasonable because it offers TPHs that any Floor Broker holding ten or less which excludes volume from only clear transactions of TPHs a Floor Broker Trading Permits will pay Underlying Symbol List A (except RLG, discount. Particularly, Clearing TPHs lower fees under the proposed tiers as RLV, RUI, and UKXM), DJX, XSP, and that also submit orders electronically to compared to what they pay today. While subcabinet trades. Moreover, the ADV the Exchange would purchase the the remaining 40% of TPHs holding Discount is designed to encourage the proposed EAP at $3,000 per permit. The Floor Broker Trading Permits (who each execution of orders in all classes via Exchange believe it’s reasonable to hold between 12–21 Floor Broker open outcry, which may increase provide a discount to Clearing TPHs Trading Permits) will pay higher fees, volume, which would benefit all market that only clear transactions and do not the Exchange notes the monthly participants (including Floor Brokers otherwise submit electronic orders to increase is de minimis, ranging from an who do not hit the ADV thresholds) the Exchange. The Exchange notes that increase of 0.6%–2.72%.92 trading via open outcry (and indeed, another exchange similarly charges a The Exchange believes the proposed this increased volume could make it separate fee for clearing firms.90 ADV Discount is reasonable because it possible for some Floor Brokers to hit The Exchange believes the proposed provides an opportunity for Floor the ADV thresholds). The Exchange fee structure for on-floor Market-Makers Brokers to pay lower FB Trading Permit believes the proposed discounts are is reasonable as the fees are in line with fees, similar to the current rebate equitable and not unfairly those offered at other Exchanges.91 The program offered to Floor Brokers. The discriminatory because all Floor Brokers Exchange believes that the proposed fee Exchange notes that while the new ADV are eligible. While the Exchange has no for MM Floor Permits as compared to Discount program includes only way of predicting with certainty how MM EAPs is reasonable because it is customer volume (‘‘C’’ origin code) as many and which TPHs will satisfy the only modestly higher than MM EAPs compared to Customer and Professional various thresholds under the ADV and Floor MMs don’t have other costs Customer/Voluntary Professional, the Discount, the Exchange anticipated that MM EAP holders have, such as MM amount of Professional Customer/ approximately 3 Floor Brokers to EAP Appointment fees. Voluntary Professional volume was de receive a rebate under the program. In The Exchange believes its proposed minimis and the Exchange does not December 2019, 2 Floor Brokers fees for Floor Broker Permits are believe the absence of such volume will received a rebate under the program. reasonable because the fees are similar have a significant impact.93 The Exchange believes its proposed to, and in some cases lower than, the Additionally, the Exchange notes that MM EAP Appointment fees are fees the Exchange currently assesses for while the ADV requirements under the reasonable in light of the Exchange’s such permits. Specifically, based on the proposed ADV Discount program are elimination of appointment costs tied to number of Trading Permits TPHs held higher than are required under the Trading Permits. Other exchanges also offer a similar structure with respect to upon migration, 60% of TPHs that hold current rebate program, the proposed 94 ADV Discount counts volume from all fees for appointment classes. Additionally, the proposed MM EAP 90 See e.g., NYSE Arca Options Fees and Charges, General Options and Trading Permit (OTP) Fees 92 The Floor Brokers whose fees are increasing Appointment fee structure results in and NYSE American Options Fee Schedule, Section have each committed to a minimum number of approximately 36% electronic MMs III. Monthly ATP Fees. permits and therefore currently receive the rates set 91 See e.g., PHLX Section 8A, Permit and forth in the current Floor Broker TP Sliding Scale. 94 See e.g., PHLX Section 8. Membership Fees, B, Registration Fees, which assesses $6,000 per permit 93 Furthermore, post-migration the Exchange will Streaming Quote Trader (‘‘SQT’’) Fees and C. for Floor Specialists and Market Makers. not have Voluntary Professionals. Remote Market Maker Organization (RMO) Fee.
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paying lower fees for trading permit and a TPH wishing to quote the entire cost incurred for logical connectivity appointment costs. For example, in universe of available classes is and bandwidth. Particularly, the first order to have the ability to make approximately 29% less (if they are not example demonstrates the total electronic markets in every class on the eligible for the MM TP Sliding Scale) or minimum cost that would be incurred Exchange, a Market-Maker would need approximately 2% less (if they are today in order for a Market-Maker to 1 Market-Maker Trading Permit and 37 eligible for the MM TP Sliding Scale). have the same amount of capacity as a Appointment Units post-migration. To further demonstrate the potential Market-Maker post-migration that Under, the current pricing structure, in cost savings/value added, the Exchange would have only 1 MM EAP and 1 order for a Market-Maker to quote the is providing the following examples Logical Port (i.e., 15,000 quotes/3 sec). entire universe of available classes, a comparing current Market-Maker The Exchange is also providing Market-Maker would need 33 connectivity and access fees to projected examples that demonstrate the costs of Appointment Credits, thus necessitating connectivity and access fees for (i) a Market-Maker with small capacity 33 Market-Maker Trading Permits. With different scenarios. The Exchange notes needs and appointment unit of 1.0 and respect to fees for Trading Permits and that the below examples not only (ii) a Market-Maker with large capacity Appointment Unit Fees, under the compare Trading Permit and needs and appointment cost/unit of proposed pricing structure, the cost for Appointment Unit costs, but also the 30.0:
Current fee structure Post-migration fee structure
Market-Maker that needs capacity of 15,000/quotes/3 seconds
MM Permit/MM EAP ...... $5,000 ...... $5,000. Appointment Unit Cost ...... N/A (1 appointment cost) ...... $0 (1 appointment unit). CMI Login/Logical Port ...... $750 95 ...... $750. Bandwidth Packets ...... $5,500 (2@$2,750) ...... N/A. Total Bandwidth Available ...... 15,000 quotes/3 sec ...... 15,000 quotes/3 sec. Total Cost ...... $11,250 ...... $5,750. Total Cost per message allowed ...... $0.75/quote/3 sec ...... $0.38/quote/3 sec.
Market Maker that needs capacity of no more than 5,000 quotes/3 secs
MM Permit/MM EAP ...... $5,000 ...... $5,000. Appointment Unit Cost ...... N/A (1 appointment cost) ...... $0 (1 appointment unit). CMI Login/Logical Port ...... $750 ...... $750. Bandwidth Packets ...... 0 ...... N/A. Total Bandwidth Available ...... 5,000 quotes/3 sec ...... 15,000 quotes/3 sec. Total Cost ...... $5,750 ...... $5,750. Total Cost per message allowed ...... $1.15/quote/3 sec ...... $0.38/quote/3 sec.
Market-Maker that needs 30 Appointment Units and capacity of 300,000 quotes/3 sec
MM Permits/MM EAP ...... $105,000 (30 MM Permits assumes eligible $5,000. for MM TP Sliding Scale) 96. Appointment Units Cost ...... N/A (30 appointment costs) ...... $95,500 (30 appointment units). CMI Logins/BOE Bulk Port ...... $3,000 (4@$750) 97 ...... $3,000 (2 BOE Bulk@$1,500). Bandwidth Packets ...... $82,500(30@$2750) ...... N/A. Total Bandwidth Available ...... 300,000 quotes/3 sec ...... * 450,000 quotes/3 sec. Total Cost ...... $190,500 ...... $103,500. Total Cost per message allowed ...... $0.63/quotes/3 sec ...... $0.23/quote/3 sec. * Possible performance degradation at 15,000 messages per second.
The Exchange believes its proposal to traded more than 1 SPX contract or less assessed for each Tier Appointment Fee. provide separate fees for Tier than 100 SPX contracts per month and The proposed change is equitable and Appointments for MM EAPs and MM therefore will not be negatively not unfairly discriminatory because it Floor Permits as the Exchange will be impacted by the proposed change, and will apply uniformly to all TPHs. issuing separate Trading Permits for on- because it aligns the electronic SPX Tier Trading Permit Holder Regulatory Fee floor and off-floor market making as Appointment with the floor SPX Tier discussed above. The proposal to Appointment, which has no volume The Exchange believes it’s reasonable eliminate the volume threshold for the threshold. The Exchange believes the to eliminate the Trading Permit Holder electronic SPX Tier Appointment fee is proposal to increase the electronic Regulatory fee because TPHs will not reasonable as no TPHs in the past volume thresholds for VIX and RUT are pay this fee and because the Exchange several months have electronically reasonable as those that do not regularly is restructuring its Trading Permit trade VIX or RUT in open-outcry will 95 The maximum quoting bandwidth that may be structure. The Exchange notes that applied to a single Login Id is 80,000 quotes/3 sec. continue to not be assessed the fee. In although it will less closely be covering 96 For simplicity of the comparison, this assumes fact, any TPH that executes more than the costs of regulating all TPHs and no appointments in SPX, VIX, RUT, XEO or OEX 100 contracts but less than 1,000 in the performing its regulatory (which are not included in the TP Sliding Scale). respective classes will no longer have to responsibilities, it still has sufficient 97 Given the bandwidth limit per Login Id of pay the proposed Tier Appointment fee. 80,000 quotes/3 sec, example assumes Market- funds to do so. The proposed change is Maker purchases minimum amount of Login IDs to As noted above, the Exchange is not equitable and not unfairly accommodate 300,000 quotes/3 sec. proposing to change the amounts
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discriminatory because it will apply purposes of the Act. As discussed in the change should be approved or uniformly to all TPHs. Statutory Basis section above, options disapproved. The Exchange believes corresponding market participants are not forced to changes to eliminate obsolete language connect to (or purchase market data IV. Solicitation of Comments in connection with the proposed from) all options exchanges, as shown Interested persons are invited to changes described above and to relocate by the number of TPHs at Cboe and submit written data, views, and and reorganize its fees in connection shown by the fact that there are varying arguments concerning the foregoing, with the proposed changes maintain number of members across each of including whether the proposed rule clarity in the Fees Schedule and Cboe’s Affiliated Exchanges. The change is consistent with the Act. alleviate potential confusion, thereby Exchange operates in a highly Comments may be submitted by any of removing impediments to and competitive environment, and its ability the following methods: perfecting the mechanism of a free and to price access and connectivity is open market and a national market constrained by competition among Electronic Comments system, and, in general, protecting exchanges and third parties. As • investors and the public interest. discussed, there are other options Use the Commission’s internet markets of which market participants comment form (http://www.sec.gov/ B. Self-Regulatory Organization’s rules/sro.shtml); or Statement on Burden on Competition may connect to trade options. There is also a possible range of alternative • Send an email to rule-comments@ The Exchange does not believe that strategies, including routing to the sec.gov. Please include File Number SR– the proposed rule change will impose exchange through another participant or CBOE–2020–048 on the subject line. any burden on competition that is not market center or taking the exchange’s necessary or appropriate in furtherance data indirectly. For example, there are Paper Comments of the purposes of the Act. 15 other U.S. options exchanges, which With respect to intra-market • Send paper comments in triplicate the Exchange must consider in its competition, the Exchange does not to Secretary, Securities and Exchange believe that the proposed rule change pricing discipline in order to compete Commission, 100 F Street NE, would place certain market participants for market participants. In this Washington, DC 20549–1090. at the Exchange at a relative competitive environment, market All submissions should refer to File disadvantage compared to other market participants are free to choose which Number SR–CBOE–2020–048. This file participants or affect the ability of such competing exchange or reseller to use to number should be included on the market participants to compete. As satisfy their business needs. As a result, subject line if email is used. To help the stated above, the Exchange does not the Exchange believes this proposed Commission process and review your believe its proposed pricing will impose rule change permits fair competition a barrier to entry to smaller participants among national securities exchanges. comments more efficiently, please use and notes that its proposed connectivity Accordingly, the Exchange does not only one method. The Commission will pricing is associated with relative usage believe its proposed fee change imposes post all comments on the Commission’s of the various market participants. For any burden on competition that is not internet website (http://www.sec.gov/ example, market participants with necessary or appropriate in furtherance rules/sro.shtml). Copies of the modest capacity needs can buy the less of the purposes of the Act. submission, all subsequent amendments, all written statements expensive 1 Gb Physical Port and utilize C. Self-Regulatory Organization’s with respect to the proposed rule only one Logical Port. Moreover, the Statement on Comments on the change that are filed with the pricing for 1 Gb Physical Ports and FIX/ Proposed Rule Change Received From Commission, and all written BOE Logical Ports are no different than Members, Participants, or Others are assessed today (i.e., $1,500 and $750 communications relating to the per port, respectively), yet the capacity The Exchange neither solicited nor proposed rule change between the and access associated with each is received written comments on the Commission and any person, other than greatly increasing. While pricing may be proposed rule change. those that may be withheld from the public in accordance with the increased for larger capacity physical III. Date of Effectiveness of the and logical ports, such options provide provisions of 5 U.S.C. 552, will be Proposed Rule Change and Timing for available for website viewing and far more capacity and are purchased by Commission Action those that consume more resources from printing in the Commission’s Public the network. Accordingly, the proposed The foregoing rule change has become Reference Room, 100 F Street NE, connectivity fees do not favor certain effective pursuant to Section 19(b)(3)(A) Washington, DC 20549 on official categories of market participants in a of the Act 98 and paragraph (f) of Rule business days between the hours of manner that would impose a burden on 19b–4 99 thereunder. At any time within 10:00 a.m. and 3:00 p.m. Copies of such competition; rather, the allocation 60 days of the filing of the proposed rule filing also will be available for reflects the network resources change, the Commission summarily may inspection and copying at the principal consumed by the various size of market temporarily suspend such rule change if office of the Exchange. All comments participants—lowest bandwidth it appears to the Commission that such received will be posted without change. consuming members pay the least, and action is necessary or appropriate in the Persons submitting comments are highest bandwidth consuming members public interest, for the protection of cautioned that we do not redact or edit pays the most, particularly since higher investors, or otherwise in furtherance of personal identifying information from bandwidth consumption translates to the purposes of the Act. If the comment submissions. You should higher costs to the Exchange. Commission takes such action, the submit only information that you wish The Exchange also does not believe Commission will institute proceedings to make available publicly. All that the proposed rule change will result to determine whether the proposed rule submissions should refer to File in any burden on inter-market Number SR–CBOE–2020–048, and competition that is not necessary or 98 15 U.S.C. 78s(b)(3)(A). should be submitted on or before June appropriate in furtherance of the 99 17 CFR 240.19b–4(f). 26, 2020.
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For the Commission, by the Division of II. Self-Regulatory Organization’s certification) from their initial extension Trading and Markets, pursuant to delegated Statement of the Purpose of, and deadlines of June 1, 2020 6 to June 30, authority.100 Statutory Basis for, the Proposed Rule 2020.7 The Exchange notes, too, that J. Matthew DeLesDernier, Change other options exchanges that had Assistant Secretary. In its filing with the Commission, the previously extended the supervisory [FR Doc. 2020–12165 Filed 6–4–20; 8:45 am] Exchange included statements report deadlines from April 1 to June 1 8 BILLING CODE 8011–01–P concerning the purpose of and basis for for their members, also plan to submit the proposed rule change and discussed similar filings to, again, extend their any comments it received on the deadlines through June 30, 2020. SECURITIES AND EXCHANGE proposed rule change. The text of these By way of background, Rule 8.16(g)(2) COMMISSION statements may be examined at the provides that by April 1 of each year places specified in Item IV below. The each Trading Permit Holder shall [Release No. 34–88978; File No. SR–CBOE– Exchange has prepared summaries, set submit to the Exchange written report 2020–049] forth in sections A, B, and C below, of on the Trading Permit Holder’s the most significant aspects of such supervision and compliance effort Self-Regulatory Organizations; Cboe statements. during the preceding year and on the Exchange, Inc.; Notice of Filing and adequacy of the Trading Permit Holder’s Immediate Effectiveness of a Proposed A. Self-Regulatory Organization’s ongoing compliance processes and Rule Change To Amend Rule 8.16 and Statement of the Purpose of, and procedures, and Rule 9.2(g) provides Rule 9.2 To Temporarily Extend the Statutory Basis for, the Proposed Rule that by April 1 of each year each TPH Filing Deadline for Certain Change organization that conducts a non- Supervision-Related Reports 1. Purpose Trading Permit Holder customer business shall submit to the Exchange a June 1, 2020. Given current market conditions, the written report on the TPH organization’s Exchange proposes to provide its supervision and compliance effort Pursuant to Section 19(b)(1) of the Trading Permit Holders (‘‘TPHs’’) Securities Exchange Act of 1934 during the preceding year and on the 1 2 temporary relief from filing certain adequacy of the TPH organization’s (‘‘Act’’), and Rule 19b-4 thereunder, supervision-related reports pursuant to notice is hereby given that on May 29, ongoing compliance processes and Rule 8.16 (Supervision) and Rule 9.2 procedures, and (3) Rule 9.2(h) provides 2020, Cboe Exchange, Inc. (‘‘Exchange’’) (Supervision of Accounts). filed with the Securities and Exchange that by April 1 of each year, each TPH The Exchange has been closely organization shall submit a copy of the Commission (‘‘Commission’’) the monitoring the current situation proposed rule change as described in report that paragraph (g) (of Rule 9.2) regarding the novel coronavirus requires the TPH organization to Items I and II below, which Items have (‘‘COVID–19’’) pandemic. The Exchange been prepared by the Exchange. The prepare to its one or more control understands COVID–19 has placed persons or, if the TPH organization has Exchange filed the proposal as a ‘‘non- stress on market participants’ controversial’’ proposed rule change no control person, to the audit information technology infrastructure committee of its board of directors or its pursuant to Section 19(b)(3)(A)(iii) of and the required deployment of the Act 3 and Rule 19b-4(f)(6) equivalent committee or group. Both significant resources, including to Rules currently provide relief to TPHs thereunder.4 The Commission is implement and continuously adapt publishing this notice to solicit and their employees by extending these business continuity plans. On March 11, deadlines to June 1, 2020.9 However, as comments on the proposed rule change 2020, the World Health Organization from interested persons. COVID–19 remains an ongoing characterized COVID–19 as a pandemic pandemic, to meet the current June 1 I. Self-Regulatory Organization’s and to slow the spread of the disease, deadlines in Rules 8.16 and 9.2, TPH Statement of the Terms of Substance of federal and state officials implemented personnel would have to divide their the Proposed Rule Change social-distancing measures, placed efforts and resources that are otherwise significant limitations on large necessary to address continued Cboe Exchange, Inc. (the ‘‘Exchange’’ gatherings, limited travel, and closed disruptions and stresses as a result of or ‘‘Cboe Options’’) proposes to amend non-essential businesses, all of which the ongoing COVID–19 pandemic. Rule 8.16 and Rule 9.2 to temporarily are largely still in place for the Therefore, the Exchange proposes to foreseeable future. Indeed, in response extend the filing requirements for extend the filing deadline through June to the pandemic, the Exchange has certain supervision-related reports, 30, 2020, thus allowing TPH personnel taken various actions to allow it to currently given an extension through that are tasked with organizing, maintain fair and orderly markets, June 1, 2020, to June 30, 2020. The text compiling and filing such reports, but including the closure of its trading floor, of the proposed rule change is provided are also tasked with maintaining critical in Exhibit 5. which will remain inoperable into June 5 operations and sustainable business The text of the proposed rule change 2020. The Exchange also notes that in response to COVID–19, the Financial is also available on the Exchange’s 6 See FINRA Regulatory Notice 20–08 (March 9, website (http://www.cboe.com/ Industry Reporting Authority (‘‘FINRA’’) 2020) available at https://www.finra.org/rules- AboutCBOE/CBOELegalRegulatory recently reissued temporary relief for guidance/notices/20-08. member firms by, among other things, 7 See FINRA Regulatory Notice 20–08, FAQs, Home.aspx), at the Exchange’s Office of Supervision (May 19, 2020) available at https:// the Secretary, and at the Commission’s extending the deadline for submitting their supervision-related reports (FINRA www.finra.org/rules-guidance/key-topics/covid-19/ Public Reference Room. faq#supe. Rule 3120 Report and FINRA Rule 3130 8 See Securities Exchange Act Release Nos. 88524 (March 31, 2020), 85 FR 19198 (April 6, 2020) (SR– 100 17 CFR 200.30–3(a)(12). 5 See Tradedesk Update No. C2020031204 (March ISE–2020–14); and 88527 (March 31, 2020), 85 FR 1 15 U.S.C. 78s(b)(1). 12, 2020) Novel Coronavirus Update, Trading Floor 19190 (April 6, 2020) (SR–Phlx–2020–16). 2 17 CFR 240.19b–4. Closure; and Tradedesk Update No. C2020052603 9 See Securities Exchange Act No. 88528 (March 3 15 U.S.C. 78s(b)(3)(A)(iii). (May 26, 2020) Cboe Options Trading Floor Re- 31, 2020), 85 FR 19196 (April 6, 2020) (SR–CBOE– 4 17 CFR 240.19b–4(f)(6). Opening. 2020–029).
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continuity plans, and otherwise continuity plans, and otherwise III. Date of Effectiveness of the adjusting the TPH’s trading operations adjusting their trading operations in line Proposed Rule Change and Timing for in line with evolving market conditions with evolving market conditions and Commission Action and initiatives to address such initiatives in response to the ongoing Because the foregoing proposed rule conditions to focus their attention on COVID–19 pandemic. The Exchange change does not: (i) Significantly affect those immediate needs. also believes the proposed rule change the protection of investors or the public 2. Statutory Basis removes impediments to and perfects interest; (ii) impose any significant the mechanism of a free and open burden on competition; and (iii) become The Exchange believes the proposed operative for 30 days from the date on rule change is consistent with the market and a national market system which it was filed, or such shorter time Securities Exchange Act of 1934 (the because, as noted above, FINRA has also as the Commission may designate, it has ‘‘Act’’) and the rules and regulations re-extended the time for their members become effective pursuant to Section thereunder applicable to the Exchange to file supervision-related reports from 13 19(b)(3)(A) of the Act 16 and and, in particular, the requirements of June 1, 2020 to June 30, 2020. 10 Additionally, as indicated above, other subparagraph (f)(6) of Rule 19b–4 Section 6(b) of the Act. Specifically, 17 options exchanges that had previously thereunder. the Exchange believes the proposed rule A proposed rule change filed change is consistent with the Section extended the supervisory report 11 pursuant to Rule 19b–4(f)(6) under the 6(b)(5) requirements that the rules of deadlines from April 1 to June 1 for 18 14 Act normally does not become an exchange be designed to prevent their members, plan to submit similar operative for 30 days after the date of its fraudulent and manipulative acts and filings to re-extend their deadlines filing. However, Rule 19b–4(f)(6)(iii) 19 practices, to promote just and equitable through June 30, 2020. permits the Commission to designate a principles of trade, to foster cooperation shorter time if such action is consistent and coordination with persons engaged B. Self-Regulatory Organization’s Statement on Burden on Competition with the protection of investors and the in regulating, clearing, settling, public interest. The Exchange has processing information with respect to, The Exchange does not believe that requested that the Commission waive and facilitating transactions in the proposed rule change will impose the 30-day operative delay so that the securities, to remove impediments to proposed rule change may become and perfect the mechanism of a free and any burden on competition that is not necessary or appropriate in furtherance operative upon filing. The Commission open market and a national market notes that the proposed rule change system, and, in general, to protect of the purposes of the Act. The proposed rule change is not intended to would allow the Exchange, in light of investors and the public interest. the COVID–19 pandemic, to provide Additionally, the Exchange believes the address competitive issues. The Exchange does not believe the proposed temporary relief for TPHs by extending proposed rule change is consistent with the deadline for supervision-related 12 rule would impose any burden on the Section 6(b)(5) requirement that reports in Rules 8.16 and 9.2 from June intramarket competition that is not the rules of an exchange not be designed 1, 2020 to June 30, 2020, consistent with to permit unfair discrimination between necessary or appropriate in furtherance the extension FINRA has provided its customers, issuers, brokers, or dealers. of the Act, because the additional June members for supervision-related reports In particular, the Exchange believes 30, 2020 extension for supervision- and certifications required pursuant to that the proposed rule will foster related reports in Rules 8.16 and 9.2 FINRA Rule 3120 and FINRA Rule 3130. cooperation and coordination with will apply equally to all TPHs. The The Commission believes that waiver of persons engaged in regulating, clearing, Exchange does not believe that the the 30-day operative delay is consistent settling, processing information with proposed rule change would impose any with the protection of investors and the respect to, and facilitating transactions burden on intermarket competition public interest. Accordingly, the in securities. The proposed rule change because it relates only to the extension Commission hereby waives the will allow the Exchange to extend of the filing deadline for supervision- operative delay and designates the temporary relief to its TPHs by issuing related reports. Additionally, and as proposed rule change operative upon another extension of certain supervisory stated above, FINRA has recently filing.20 reporting deadlines from June 1, 2020 to notified its members that the filing At any time within 60 days of the June 30, 2020 in light of the ongoing deadline for their supervision-related filing of the proposed rule change, the COVID–19 crisis. The Exchange Commission summarily may understands this pandemic has caused, reports has again been extended from June 1, 2020 to June 30, 2020,15 and temporarily suspend such rule change if and continues to cause, stress on market it appears to the Commission that such participants’ information technology other options exchanges plan to file for the same relief through June 30, 2020, action is necessary or appropriate in the infrastructure and the deployment of public interest, for the protection of significant resources to address ongoing as well. disruptions and continued stresses. By C. Self-Regulatory Organization’s 16 15 U.S.C. 78s(b)(3)(A). allowing the Exchange to re-extend the Statement on Comments on the 17 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– deadlines for filing certain supervision Proposed Rule Change Received From 4(f)(6) requires a self-regulatory organization to give related reports in Rules 8.16 and 9.2, the the Commission written notice of its intent to file Members, Participants, or Others Exchange believes the proposed rule the proposed rule change at least five business days prior to the date of filing of the proposed rule will allow TPH personnel, who would The Exchange neither solicited nor change, or such shorter time as designated by the normally be tasked with organizing and received comments on the proposed Commission. The Exchange has satisfied this compiling such reports, to focus their rule change. requirement. attention on maintaining critical 18 17 CFR 240.19b–4(f)(6). operations and sustainable business 19 17 CFR 240.19b–4(f)(6)(iii). 20 For purposes only of waiving the 30-day operative delay, the Commission also has 10 13 See supra note 7. 15 U.S.C. 78f(b). considered the proposed rule’s impact on 11 15 U.S.C. 78f(b)(5). 14 See supra note 8. efficiency, competition, and capital formation. See 12 Id. 15 See supra note 7. 15 U.S.C. 78c(f).
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investors, or otherwise in furtherance of For the Commission, by the Division of of those statements may be examined at the purposes of the Act. Trading and Markets, pursuant to delegated the places specified in Item IV below. authority.21 The Exchange has prepared summaries, IV. Solicitation of Comments J. Matthew DeLesDernier, set forth in sections A, B, and C below, Interested persons are invited to Assistant Secretary. of the most significant parts of such submit written data, views, and [FR Doc. 2020–12158 Filed 6–4–20; 8:45 am] statements. arguments concerning the foregoing, BILLING CODE 8011–01–P A. Self-Regulatory Organization’s including whether the proposed rule Statement of the Purpose of, and the change is consistent with the Act. SECURITIES AND EXCHANGE Statutory Basis for, the Proposed Rule Comments may be submitted by any of COMMISSION Change the following methods: [Release No. 34–88981; File No. SR– 1. Purpose Electronic Comments NYSENAT–2020–19] The Exchange proposes to amend the • Price List related to co-location 4 Use the Commission’s internet Self-Regulatory Organizations; NYSE comment form (http://www.sec.gov/ services offered by the Exchange with National, Inc.; Notice of Filing and respect to connectivity to the ICE Data rules/sro.shtml); or Immediate Effectiveness of Proposed • Global Index (‘‘GIF’’) and to waive any Send an email to rule-comments@ Rule Change To Amend the change fees that a User would otherwise sec.gov. Please include File Number SR– Exchange’s Price List Related to Co- incur as a result of the proposed change. CBOE–2020–049 on the subject line. Location Services Proposed Change Paper Comments June 1, 2020. 5 1 The Exchange offers Users • Pursuant to Section 19(b)(1) of the connectivity to data feeds from third Send paper comments in triplicate Securities Exchange Act of 1934 (the to Secretary, Securities and Exchange 2 3 party markets and other content service ‘‘Act’’) and Rule 19b–4 thereunder, providers (‘‘Third Party Data Feeds’’).6 Commission, 100 F Street NE, notice is hereby given that on May 18, Washington, DC 20549–1090. The list of Third Party Data Feeds is set 2020, NYSE National, Inc. (‘‘NYSE forth in the Price List, and includes All submissions should refer to File National’’ or the ‘‘Exchange’’) filed with connectivity to the GIF for a monthly Number SR–CBOE–2020–049. This file the Securities and Exchange connectivity fee of $100.7 number should be included on the Commission (the ‘‘Commission’’) the ICE, which publishes the GIF, subject line if email is used. To help the proposed rule change as described in announced to its customers that connect Commission process and review your Items I and II below, which Items have to the GIF that it will no longer offer the comments more efficiently, please use been prepared by the self-regulatory GIF as a stand-alone product. only one method. The Commission will organization. The Commission is Accordingly, the Exchange proposes to post all comments on the Commission’s publishing this notice to solicit cease offering connectivity to the GIF internet website (http://www.sec.gov/ comments on the proposed rule change once it is no longer available. The rules/sro.shtml). Copies of the from interested persons. Exchange has been informed by ICE that submission, all subsequent I. Self-Regulatory Organization’s cessation is currently expected to occur amendments, all written statements Statement of the Terms of Substance of before the end of 2020. The Exchange with respect to the proposed rule the Proposed Rule Change will announce the operative date change that are filed with the through a customer notice. Commission, and all written The Exchange proposes to amend the Exchange’s Price List related to co- communications relating to the 4 The Exchange initially filed rule changes proposed rule change between the location services with respect to relating to its co-location services with the Commission and any person, other than connectivity to the ICE Data Global Securities and Exchange Commission (‘‘Commission’’) in May 2018. See Securities those that may be withheld from the Index and to waive any change fees that a User would otherwise incur as a result Exchange Act Release No. 83351 (May 31, 2018), 83 public in accordance with the FR 26314 (June 6, 2018) (SR–NYSENAT–2018–07). provisions of 5 U.S.C. 552, will be of the proposed change. The proposed The Exchange is an indirect subsidiary of available for website viewing and rule change is available on the Intercontinental Exchange, Inc. (‘‘ICE’’). Through its ICE Data Services (‘‘IDS’’) business, ICE operates a printing in the Commission’s Public Exchange’s website at www.nyse.com, at the principal office of the Exchange, and data center in Mahwah, New Jersey (the ‘‘data Reference Room, 100 F Street NE, center’’), from which the Exchange provides co- Washington, DC 20549 on official at the Commission’s Public Reference location services to Users. business days between the hours of Room. 5 For purposes of the Exchange’s co-location services, a ‘‘User’’ means any market participant 10:00 a.m. and 3:00 p.m. Copies of the II. Self-Regulatory Organization’s that requests to receive co-location services directly filing also will be available for Statement of the Purpose of, and from the Exchange. See id., at note 9. As specified inspection and copying at the principal Statutory Basis for, the Proposed Rule in the Price List, a User that incurs co-location fees office of the Exchange. All comments Change for a particular co-location service pursuant thereto would not be subject to co-location fees for the received will be posted without change. same co-location service charged by the Exchange’s Persons submitting comments are In its filing with the Commission, the self-regulatory organization included affiliates the New York Stock Exchange LLC, NYSE cautioned that we do not redact or edit American LLC, NYSE Arca, Inc., and NYSE personal identifying information from statements concerning the purpose of, Chicago, Inc. (collectively, the ‘‘Affiliate SROs’’). and basis for, the proposed rule change Each Affiliate SRO has submitted substantially the comment submissions. You should same proposed rule change to propose the changes submit only information that you wish and discussed any comments it received on the proposed rule change. The text described herein. See SR–NYSE–2020–46, SR– to make available publicly. All NYSEAmer–2020–40, SR–NYSEArca–2020–49, and submissions should refer to File SR–NYSECHX–2020–17. 21 17 CFR 200.30–3(a)(12). 6 Number SR–CBOE–2020–049 and See id. at 26323. 1 15 U.S.C. 78s(b)(1). 7 The Exchange has an indirect interest in the GIF should be submitted on or before June 2 15 U.S.C. 78a. because ICE is the Exchange’s ultimate parent. See 26, 2020. 3 17 CFR 240.19b–4. id. at note 4.
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Users are subject to a change fee if depends on the size of the bandwidth discriminate between customers, they request a change to one or more utilized. If a User opts to connect to the issuers, brokers or dealers. In addition, existing co-location services.8 The Consolidated Feed to connect to the it is designed to foster cooperation and Exchange proposes to waive any change information in the GIF, the monthly coordination with persons engaged in fees that a User would otherwise incur connectivity cost charged by the regulating, clearing, settling, processing as a result of the proposed change. Exchange would be $200. information with respect to, and In order to implement the proposed ICE has informed the Exchange that facilitating transactions in securities, to change, the Exchange proposes to make currently there are various third parties remove impediments to, and perfect the the following changes to the section that offer Users connectivity to the mechanisms of, a free and open market entitled ‘‘Connectivity to Third Party Consolidated Feed. To use such third and a national market system and, in Data Feeds’’: party connectivity to the Consolidated general, to protect investors and the • In the first paragraph and in the Feed, a User may utilize the IDS public interest and because it is not table of Third Party Data Feeds, add an network, a third party designed to permit unfair asterisk after ‘‘ICE Data Global Index.’’ telecommunication network, a cross discrimination between customers, • Following the table of Third Party connect, or a combination thereof to issuers, brokers, or dealers. Data Feeds, add the following text: access the Consolidated Feed through a * ICE will cease to offer the GIF as a The Proposed Rule Change Is connection to an access center outside Reasonable and Equitable stand-alone product, which the the data center (which could be an IDS Exchange has been informed by ICE is access center, a third-party access The Exchange believes that the currently expected to occur before the center, or both), another User, or a third proposed rule change is reasonable and end of 2020. The Exchange will party vendor. equitable for the following reasons. announce the operative date through a The Exchange believes that it is customer notice. Any change fees that a Competitive Environment reasonable and an equitable allocation User would otherwise incur as a result The Exchange operates in a highly of its fees and credits to add a note to of the proposed change will be waived. competitive market in which exchanges its Price List stating that ICE will cease The GIF includes the values of and other vendors (e.g., Hosting Users) to offer the GIF as a stand-alone various indices and exchange traded product, as the Exchange will no longer 9 offer co-location services as a means to product data. Based on information facilitate the trading and other market be able to offer the service once that published by ICE Data Services, all the activities of those market participants occurs. data in the GIF was already available on who believe that co-location enhances If a User wishes connectivity to the the ICE Data Services Consolidated Feed the efficiency of their operations. The information in the GIF, the Users could (‘‘Consolidated Feed’’).10 The Exchange Commission has repeatedly expressed connect to the Consolidated Feed offers connectivity to the Consolidated its preference for competition over through IDS or from a third party Feed, and does not propose to change regulatory intervention in determining provider. A User may utilize the IDS the price for such connectivity. In prices, products, and services in the network, a third party addition, the Exchange’s connectivity to securities markets. Specifically, in telecommunication network, a cross the GIF and the Consolidated Feed Regulation NMS, the Commission connect, or a combination thereof to should have approximately the same highlighted the importance of market access the Consolidated Feed, through a latency. forces in determining prices and SRO connection to an access center outside Application and Impact of the Proposed revenues and, also, recognized that the data center (which could be an IDS Change current regulation of the market system access center, a third-party access center, or both), another User, or a third The proposed change would not ‘‘has been remarkably successful in promoting market competition in its party vendor. apply differently to distinct types or The Exchange believes that it is sizes of market participants. Rather, it broader forms that are most important to investors and listed companies.’’ 11 reasonable and equitable that it waive would apply to all Users equally. As is any change fees that a User would currently the case, the purchase of any The proposed change is not otherwise intended to address any other issues otherwise incur as a result of the colocation service is completely proposed change, as Users would have voluntary and the Price List is applied relating to co-location services and/or related fees, and the Exchange is not no choice but to terminate connectivity uniformly to all Users. to the GIF. The fee waiver would help Currently, there are seven Users that aware of any problems that Users would have in complying with the proposed to alleviate any burden related to the have connectivity to the GIF, and so change. would be affected by the change. If any change. of them wish to continue having 2. Statutory Basis The Proposed Rule Change Would connectivity to the information in the Protect Investors and the Public Interest The Exchange believes that the GIF, they could connect to the The Exchange believes that the Consolidated Feed, which none of them proposed rule change is consistent with Section 6(b) of the Act,12 in general, and proposed rule change would perfect the do presently. The monthly cost for mechanisms of a free and open market connectivity to the Consolidated Feed furthers the objectives of Sections 6(b)(4) and (5) of the Act,13 in particular, and a national market system and, in because it provides for the equitable general, protect investors and the public 8 See id., at 26320. interest for the following reasons. 9 allocation of reasonable dues, fees, and The Exchange understands that some of the It would be against the protection of indices may include Exchange or Affiliate SRO data other charges among its members, investors and the public interest if the as underlying components, but the GIF does not issuers and other persons using its Exchange were to continue to offer include those underlying components or other facilities and does not unfairly information directly from the Exchange and something that it cannot provide Affiliate SROs. because the relevant feed has been 10 See ‘‘Consolidated Data Feed Coverage List— 11 See Securities Exchange Act Release No. 51808 Indices and Indicators’’ at https://www.theice.com/ (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005). discontinued. Adding the proposed note market-data/connectivity-and-feeds/consolidated- 12 15 U.S.C. 78f(b). to its Price List would reduce any feed/coverage-list. 13 15 U.S.C. 78f(b)(4) and (5). potential ambiguity and provide
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clarification concerning the availability necessary or appropriate in furtherance offer co-location services as a means to and the costs of connectivity to Third of the purposes of the Act. facilitate the trading and other market Party Data Feeds available to Users, activities of those market participants Intramarket Competition because it would highlight that the GIF who believe that co-location enhances will become obsolete, provide a timeline The Exchange does not believe that the efficiency of their operations. for the change, and state that any change the proposed change would place any Accordingly, fees charged for co- fees that a User would otherwise incur burden on intramarket competition that location services are constrained by the as a result of the proposed change is not necessary or appropriate. The active competition for the order flow of, would be waived. proposed change would not apply and other business from, such market differently to distinct types or sizes of participants. The Proposed Change Is Not Unfairly market participants. Rather, it would The Commission has repeatedly Discriminatory apply to all Users equally: As a expressed its preference for competition The Exchange believes that the consequence of ICE’s ceasing to offer the over regulatory intervention in proposed change is not unfairly GIF as a stand-alone product, the determining prices, products, and discriminatory for the following Exchange will not be able to provide services in the securities markets. reasons. any Users with connectivity to the GIF. Specifically, in Regulation NMS, the The proposed change would not The Exchange proposes to waive any Commission highlighted the importance apply differently to distinct types or change fees that a User would otherwise of market forces in determining prices sizes of market participants. Rather, it incur as a result of the proposed change. and SRO revenues and, also, recognized would apply to all Users equally. As a Adding the proposed note to the Price that current regulation of the market consequence of ICE’s ceasing to offer the List would reduce any potential system ‘‘has been remarkably successful GIF as a stand-alone product, the ambiguity and provide clarification in promoting market competition in its Exchange will not be able to provide concerning the availability and the costs broader forms that are most important to any Users with connectivity to the GIF. of connectivity to Third Party Data investors and listed companies.’’ 15 If a User wishes connectivity to the Feeds available to Users, because it The Exchange believes that the information in the GIF, the Users could would highlight that the GIF will proposed change is necessary and connect to the Consolidated Feed become obsolete, provide a timeline for appropriate. Adding the proposed note through the Exchange. If any of the the change, and state that any change to the Price List would reduce any seven Users that have connectivity to fees that a User would otherwise incur potential ambiguity and provide the GIF opt to connect to the as a result of the proposed change clarification concerning the availability Consolidated Feed, the monthly would be waived. and the costs of connectivity to Third connectivity cost charged by the If a User wishes connectivity to the Party Data Feeds available to Users, Exchange would be $200. information in the GIF, the Users could because it would highlight that the GIF ICE has informed the Exchange that connect to the Consolidated Feed will become obsolete and provide a currently there are various third parties through the Exchange. If any of the timeline for the change. that offer Users connectivity to the seven Users that have connectivity to For the reasons described above, the Consolidated Feed. To use such third the GIF opt to connect to the Exchange believes that the proposed party connectivity to the Consolidated Consolidated Feed, the monthly rule change reflects this competitive Feed, a User may utilize the IDS connectivity cost charged by the environment. network, a third party Exchange would be $200. ICE has informed the Exchange that C. Self-Regulatory Organization’s telecommunication network, a cross currently there are various third parties Statement on Comments on the connect, or a combination thereof to that offer Users connectivity to the Proposed Rule Change Received From access the Consolidated Feed, through a Consolidated Feed. To use such third Members, Participants, or Others connection to an access center outside party connectivity to the Consolidated No written comments were solicited the data center (which could be an IDS Feed, a User may utilize the IDS or received with respect to the proposed access center, a third-party access network, a third party rule change. center, or both), another User, or a third telecommunication network, a cross party vendor. connect, or a combination thereof to III. Date of Effectiveness of the For the reasons above, the proposed access the Consolidated Feed, through a Proposed Rule Change and Timing for changes do not unfairly discriminate connection to an access center outside Commission Action between or among market participants the data center (which could be an IDS The Exchange has filed the proposed that are otherwise capable of satisfying access center, a third-party access rule change pursuant to Section any applicable co-location fees, center, or both), another User, or a third 19(b)(3)(A)(iii) of the Act 16 and Rule requirements, terms and conditions party vendor. 19b–4(f)(6) thereunder.17 Because the established from time to time by the Use of any co-location service is proposed rule change does not: (i) Exchange. completely voluntary, and each market Significantly affect the protection of For these reasons, the Exchange participant is able to determine whether investors or the public interest; (ii) believes that the proposal is consistent to use co-location services based on the impose any significant burden on with the Act. requirements of its business operations. competition; and (iii) become operative prior to 30 days from the date on which B. Self-Regulatory Organization’s Intermarket Competition Statement on Burden on Competition it was filed, or such shorter time as the The Exchange does not believe that Commission may designate, if In accordance with Section 6(b)(8) of the proposed fee would impose any consistent with the protection of 14 the Act, the Exchange believes that the burden on intermarket competition that investors and the public interest, the proposed rule change will not impose is not necessary or appropriate. any burden on competition that is not The Exchange operates in a highly 15 See 70 FR 37496, supra note 11. competitive market in which exchanges 16 15 U.S.C. 78s(b)(3)(A)(iii). 14 15 U.S.C. 78f(b)(8). and other vendors (i.e., Hosting Users) 17 17 CFR 240.19b–4(f)(6).
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proposed rule change has become Electronic Comments SECURITIES AND EXCHANGE effective pursuant to Section 19(b)(3)(A) • COMMISSION of the Act and Rule 19b–4(f)(6)(iii) Use the Commission’s internet thereunder. comment form (http://www.sec.gov/ rules/sro.shtml); or [Release No. 34–88983; File No. SR– A proposed rule change filed under CboeBZX–2020–043] • Rule 19b–4(f)(6) 18 normally does not Send an email to rule-comments@ become operative prior to 30 days after sec.gov. Please include File Number SR– Self-Regulatory Organizations; Cboe the date of the filing. However, pursuant NYSENAT–2020–19 on the subject line. BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a to Rule 19b–4(f)(6)(iii),19 the Paper Comments Commission may designate a shorter Proposed Rule Change Relating To time if such action is consistent with the • Send paper comments in triplicate Amend Its Fee Schedule to Secretary, Securities and Exchange protection of investors and the public June 1, 2020. interest. The Exchange has requested Commission, 100 F Street NE, that the Commission waive the 30-day Washington, DC 20549–1090. Pursuant to Section 19(b)(1) of the operative delay so that the proposal may Securities Exchange Act of 1934 (the All submissions should refer to File 1 2 become operative immediately upon ‘‘Act’’), and Rule 19b–4 thereunder, Number SR–NYSENAT–2020–19. This notice is hereby given that on May 19, filing. The Exchange believes that such file number should be included on the waiver would be consistent with the 2020, Cboe BZX Exchange, Inc. (the subject line if email is used. To help the ‘‘Exchange’’ or ‘‘BZX’’) filed with the protection of investors and the public Commission process and review your interest because it would allow the Securities and Exchange Commission comments more efficiently, please use (the ‘‘Commission’’) the proposed rule Exchange to waive the change fee only one method. The Commission will sooner. The Commission believes that change as described in Items I, II, and post all comments on the Commission’s III below, which Items have been waiving the 30-day operative delay is internet website (http://www.sec.gov/ consistent with the protection of prepared by the Exchange. The rules/sro.shtml). Copies of the Commission is publishing this notice to investors and the public interest submission, all subsequent because it would permit the Exchange, solicit comments on the proposed rule amendments, all written statements change from interested persons. without undue delay, to cease offering with respect to the proposed rule the GIF when it becomes unavailable, change that are filed with the I. Self-Regulatory Organization’s provide notice to customers and waive Commission, and all written Statement of the Terms of Substance of the change fee. Accordingly, the communications relating to the the Proposed Rule Change Commission waives the 30-day proposed rule change between the operative delay and designates the Commission and any person, other than Cboe BZX Exchange, Inc. (the proposed rule change operative upon those that may be withheld from the ‘‘Exchange,’’ ‘‘Cboe,’’ or ‘‘BZX’’) is filing 20 filing. public in accordance with the with the Securities and Exchange At any time within 60 days of the provisions of 5 U.S.C. 552, will be Commission (‘‘Commission’’) a filing of such proposed rule change, the available for website viewing and proposed rule change to amend its fee Commission summarily may printing in the Commission’s Public schedule. The text of the proposed rule temporarily suspend such rule change if Reference Room, 100 F Street NE, change is provided in Exhibit 5. it appears to the Commission that such Washington, DC 20549 on official The text of the proposed rule change action is necessary or appropriate in the business days between the hours of is also available on the Exchange’s public interest, for the protection of 10:00 a.m. and 3:00 p.m. Copies of the website (http://markets.cboe.com/us/ investors, or otherwise in furtherance of filing also will be available for equities/regulation/rule_filings/bzx/), at the purposes of the Act. If the inspection and copying at the principal the Exchange’s Office of the Secretary, Commission takes such action, the office of the Exchange. All comments and at the Commission’s Public Commission shall institute proceedings received will be posted without change. Reference Room. 21 under Section 19(b)(2)(B) of the Act to Persons submitting comments are II. Self-Regulatory Organization’s determine whether the proposed rule cautioned that we do not redact or edit Statement of the Purpose of, and change should be approved or personal identifying information from Statutory Basis for, the Proposed Rule disapproved. comment submissions. You should Change submit only information that you wish IV. Solicitation of Comments to make available publicly. All In its filing with the Commission, the Interested persons are invited to submissions should refer to File Exchange included statements submit written data, views, and Number SR–NYSENAT–2020–19 and concerning the purpose of and basis for arguments concerning the foregoing, should be submitted on or before June the proposed rule change and discussed including whether the proposed rule 26, 2020. any comments it received on the change is consistent with the Act. For the Commission, by the Division of proposed rule change. The text of these Comments may be submitted by any of Trading and Markets, pursuant to delegated statements may be examined at the the following methods: authority.22 places specified in Item IV below. The J. Matthew DeLesDernier, Exchange has prepared summaries, set 18 forth in sections A, B, and C below, of 17 CFR 240.19b–4(f)(6). Assistant Secretary. 19 17 CFR 240.19b–4(f)(6)(iii). the most significant aspects of such [FR Doc. 2020–12162 Filed 6–4–20; 8:45 am] 20 For purposes only of waiving the 30-day statements. operative delay, the Commission has considered the BILLING CODE 8011–01–P proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 1 15 U.S.C. 78s(b)(1). 21 15 U.S.C. 78s(b)(2)(B). 22 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4.
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A. Self-Regulatory Organization’s 10 of which must be BZX-listed, for The Exchange is also proposing to add Statement of the Purpose of, and which it meets the following criteria for a Tier 2 rebate to the Tape B Volume Statutory Basis for, the Proposed Rule at least 50% of the trading days in the and Quoting Tiers where a Member is Change applicable month: (1) Member has an enrolled in at least 100 BZX-listed LMP NBBO Time 6 greater than or equal to Securities for which it meets the 1. Purpose 15% or NBBO Size Time 7 is greater following criteria for at least 50% of the The Exchange proposes to amend its than or equal to 25%; and (2) Member trading days in the applicable month: fee schedule applicable to its equities has a Displayed Size Time 8 greater than (1) Member has an NBBO Time greater trading platform. Specifically, the or equal to 90%. All Members are than or equal to 15% or an NBBO Size Exchange proposes to amend the eligible to enroll in LMP Securities and Time greater than or equal to 25%; and existing Tape B Volume and Quoting are eligible for the current Tape B (2) Member has a Displayed Size Time Tier, add a new Tape B Volume and Volume and Quoting Tier. Such rebates greater than or equal to 90%; and (ii) Quoting Tier, make a cleanup change to are applicable to orders that add Member adds a Tape B ADV greater the introductory language under the liquidity which are appended with fee than or equal to 0.30% of the TCV. Tape B Volume and Quoting Tiers, and code B. The Exchange proposes to make Finally, the Exchange is also to add a new LMM Add Volume Tier, several changes to the Tape B Volume proposing to make a cleanup change to effective May 1, 2020.3 and Quoting Tier and to add a second eliminate the introductory language The Exchange first notes that its tier. under footnote 13 that reads: ‘‘LMMs in listing business operates in a highly- First, the Exchange proposes to BZX-listed securities will receive the competitive market in which market following additional rebate when require that a Member is enrolled in and participants, which includes issuers of adding displayed liquidity in all Tape B meets the requirements for at least 50 securities, Lead Market Makers securities, except that such additional BZX-listed LMP Securities in order to (‘‘LMMs’’), and other liquidity rebates will not be applied to the rebates receive the additional Tier 1 rebate. This providers, can readily transfer their set forth in footnote 14 part A.’’ The marks a reduction in the total number listings, opt not to participate, or direct Exchange is proposing to delete this of LMP Securities that a Member must order flow to competing venues if they language because it does not apply to be enrolled in and meet the deem fee levels, liquidity provision the current LMM Liquidity Provision requirements for (from 100 to 50) and an incentive programs, or any other factor Rates. Specifically, prior to the increase in the number of BZX-listed at a particular venue to be insufficient Exchange implementing the new LMM LMP Securities that a Member must be or excessive. The proposed rule changes Liquidity Provision Rates as part of the enrolled in and meet the requirements reflect a competitive pricing structure Original LMM Filing, the Exchange for (from 10 to 50).9 designed to incentivize market Second, the offered enhanced rebates to LMMs for participants to enroll in LMP Exchange is proposing to additionally added liquidity on a per transaction require that a Member adds a Tape B Securities 4 and participate as LMMs in basis in their LMM Securities. The ADV 10 of greater than or equal to 0.15% the Exchange’s LMM Program,5 which introductory language was intended to of the TCV 11 the Exchange believes will enhance in order to receive the make clear that LMMs were not eligible market quality in all securities listed on additional Tier 1 rebate. for the Tape B Volume Tier in addition the Exchange and encourage issuers to to the enhanced LMM rebates.12 Since 6 ‘‘NBBO Time’’ means the average of the list new products and transfer existing percentage of time during regular trading hours the implementation of the Original products to the Exchange. during which the Member maintains at least 100 LMM Filing, LMMs receive a daily shares at each of the NBB and NBO. See Cboe BZX payment for meeting certain Minimum Tape B Volume and Quoting Tiers U.S. Equities Exchange Fee Schedule. Performance Standards instead of an The Exchange currently offers one 7 ‘‘NBBO Size Time’’ means the percentage of enhanced rebate (as further described time during regular trading hours during which Tape B Volume and Quoting Tier under there are size-setting quotes at the NBBO on the below) and, as such, the language is no footnote 13, which provides an Exchange. See Cboe BZX U.S. Equities Exchange longer applicable. additional rebate of $0.0001 per share Fee Schedule. LMM Add Volume Tier for orders that add liquidity in Tape B 8 ‘‘Displayed Size Time’’ means the percentage of securities where a Member is enrolled time during regular trading hours during which the Under the LMM Program, the Member maintains at least 2,500 displayed shares Exchange offers daily incentives for in at least 100 LMP Securities, at least on the bid and separately maintains at least 2,500 displayed shares on the offer that are priced no LMMs securities listed on the Exchange 3 The Exchange initially filed the proposed fee more than 2% away from the NBB and NBO, for which the LMM meets certain changes on May 1, 2020 (SR–CboeBZX–2020–039). respectively. See Cboe BZX U.S. Equities Exchange Minimum Performance Standards.13 On May 12, 2020, the Exchange withdrew that filing Fee Schedule. Such daily incentives are determined and submitted a subsequent filing (SR–CboeBZX– 9 The Exchange notes that all BZX-listed 2020–041). On May 19, 2020, the Exchange securities are by definition LMP Securities. based on the number of Cboe-listed withdrew that filing and submitted this proposal. 10 ‘‘ADV’’ means average daily volume calculated securities for which the LMM meets 4 ‘‘LMP Securities’’ means a list of securities as the number of shares added or removed, included in the Liquidity Management Program, the combined, per day. ADV is calculated on a monthly Disruption, on any day with a scheduled early universe of which will be determined by the basis. The Exchange excludes from its calculation market close and the Russell Reconstitution Day. Exchange and published in a circular distributed to of ADV shares added or removed on any day that 12 See Securities Exchange Act Release No. 79064 Members and on the Exchange’s website. Such LMP the Exchange’s system experiences a disruption that (October 6, 2016), 81 FR 70718 (October 13, 2016). Securities will include all Cboe-listed ETPs and lasts for more than 60 minutes during regular 13 As defined in Rule 11.8(e)(1)(E), the term certain non-Cboe-listed ETPs for which the trading hours, on any day with a scheduled early ‘‘Minimum Performance Standards’’ means a set of Exchange wants to incentivize Members to provide market close and on the last Friday in June (the standards applicable to an LMM that may be enhanced market quality. All Cboe-listed securities ‘‘Russell Reconstitution Day’’). Routed shares are determined from time to time by the Exchange. will be LMP Securities immediately upon listing on not included in ADAV or ADV calculation. Such standards will vary between LMM Securities the Exchange. The Exchange will not remove a 11 ‘‘TCV’’ means total consolidated volume depending on the price, liquidity, and volatility of security from the list of LMP Securities without 30 calculated as the volume reported by all exchanges the LMM Security in which the LMM is registered. days prior notice. See Cboe BZX U.S. Equities and trade reporting facilities to a consolidated The performance measurements will include: (A) Exchange Fee Schedule. transaction reporting plan for the month for which Percent of time at the NBBO; (B) percent of 5 See Securities Exchange Act Release No. 86213 the fees apply. The Exchange excludes from its executions better than the NBBO; (C) average (June 27, 2019), 84 FR 31951 (July 3, 2019) (the calculation of TCV volume on any day that the displayed size; and (D) average quoted spread. For ‘‘Original LMM Filing’’). Exchange experiences an Exchange System additional detail, see Original LMM Filing.
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such Minimum Performance Standards providers, can readily transfer their Tier 2 will encourage both quoting and and the average auction volume across listings, opt not to participate, or direct executions on the Exchange in BZX- such securities. Generally speaking, the order flow to competing venues if they listed securities, which the Exchange more LMM Securities 14 for which the deem fee levels, liquidity provision believes is both reasonable and LMM meets the Minimum Performance incentive programs, or any other factor equitable because it will enhance Standards and the higher the auction at a particular venue to be insufficient market quality in all securities listed on volume across those securities, the or excessive. The proposed rule changes the Exchange and encourage issuers to greater the total daily payment to the reflect a competitive pricing structure list new products and transfer existing LMM. designed to incentivize market products to the Exchange. Further, the In order to further incentivize participants to enroll in LMP Securities Exchange believes that any negative Members to enroll and participate in the and participate as LMMs in the impact to non-BZX-listed LMP LMM Program, the Exchange is also Exchange’s LMM Program, which the Securities is not unreasonable and will proposing to add a new LMM Add Exchange believes will enhance market be outweighed by the positive impact to Volume Tier. Under this proposed new quality in all securities listed on the the Exchange’s listing program for tier, LMMs in BZX-listed securities will Exchange and encourage issuers to list several reasons. As noted throughout, receive an additional $0.0001 rebate per new products and transfer existing the listing business operates in a highly- share for adding displayed liquidity products to the Exchange. competitive market in which competing where the LMM: (1) Adds an ADV listing venues offer liquidity provision Tape B Volume and Quoting Tiers greater than or equal to 0.20% of the incentive programs for their own TCV; (2) has an average aggregate daily The Exchange believes that the securities,19 similar to the LMM auction volume in LMM Securities proposed changes to the Tape B Volume Program and the Tape B Quoting Tiers. greater than or equal to 500,000; and (3) and Quoting Tiers are consistent with To the extent that the market quality in is enrolled in at least 75 LMM the Act and represent a reasonable, the security is negatively impacted, Securities. equitable, and not unfairly competitive forces would generally 2. Statutory Basis discriminatory means to incentivize dictate that the primary listing venue liquidity provision in ETPs listed on the enhance their own liquidity provision The Exchange believes the proposed Exchange. The marketplace for listings programs or that the security would rule change is consistent with the Act is extremely competitive and there are transfer to a different primary listing and the rules and regulations several other national securities venue. thereunder applicable to the Exchange exchanges that offer ETP listings. The Exchange believes that the and, in particular, the requirements of Transfers between listing venues occur proposal represents an equitable 15 Section 6(b) of the Act. Specifically, frequently 18 for numerous reasons, allocation of fees and other charges the Exchange believes the proposed rule including market quality. This proposal because the Tape B Volume and change is consistent with the Section is intended to help the Exchange Quoting Tiers are available equally to all 16 6(b)(5) requirements that the rules of compete as an ETP listing venue. Members and all Members are eligible to an exchange be designed to prevent Specifically, the Exchange believes that enroll in LMP Securities. The Exchange fraudulent and manipulative acts and the proposal is reasonable because it anticipates at least three and as many as practices, to promote just and equitable believes that increasing the number of eight firms will meet the Tape B Volume principles of trade, to foster cooperation BZX-listed LMP Securities from 10 to 50 and Quoting Tiers 1 and 2. Further, the and coordination with persons engaged will ensure that Members are meeting Exchange believes that the proposal in regulating, clearing, settling, the NBBO Time or NBBO Size Time and represents an equitable allocation of fees processing information with respect to, the Displayed Size Time requirements and other charges and is not and facilitating transactions in in BZX-listed securities rather than in unreasonably discriminatory because securities, to remove impediments to other LMP Securities will incentivize enrolling in LMP Securities is open to and perfect the mechanism of a free and enhanced market quality in BZX-listed all Members and any Member that open market and a national market ETPs. Further, adding the requirement wishes to receive the Tape B Volume system, and, in general, to protect that a Member adds a Tape B ADV and Quoting Tiers must meet the investors and the public interest. greater than or equal to 0.15% of the proposed quoting and execution Additionally, the Exchange believes the TCV will incentivize Members to standards in order to receive the proposed rule change is consistent with transact in Tape B securities, which enhanced rebates, as outlined above. 17 the Section 6(b)(5) [sic] as it is includes all BZX-listed securities, on Where a Member does not meet the designed to provide for the equitable the Exchange. Adding Tier 2 with an requirements, they will not receive the allocation of reasonable dues, fees and increased additional rebate for Members enhanced rebates. Further and as noted other charges among its Members and that are enrolled in at least 100 BZX- throughout, the Tape B Volume and other persons using its facilities. The listed LMP Securities and add a Tape B Quoting Tiers are designed to enhance Exchange also notes that its listing ADV greater than or equal to 0.30% of market quality in BZX-listed securities business operates in a highly- the TCV (while applying the same and to make the Exchange more competitive market in which market NBBO Time or NBBO Size Time and competitive as an ETP listing venue. participants, which includes issuers of Displayed Size Time requirements as Finally, the Exchange believes that securities, LMMs, and other liquidity Tier 1) will provide further incentive for the proposal to eliminate the Members to enroll in additional BZX- introductory language under the Tape B 14 As defined in Rule 11.8(e)(1)(D), the term Volume Tiers is reasonable, equitable, ‘‘LMM Security’’ means a Listed Security that has listed LMP Securities and transact in an LMM. As defined in Rule 11.8(e)(1)(B), the term Tape B Securities. The combination of and non-discriminatory in that it is ‘‘Listed Security’’ means any ETP or any Primary the two requirements in both Tier 1 and designed to make the fee schedule Equity Security or Closed-End Fund listed on the Exchange pursuant to Rule 14.8 or 14.9. 18 For example, 16 ETPs transferred their listings 19 See NYSE Arca, Inc. Rule 6.82-O related to 15 15 U.S.C. 78f(b). to the Exchange on May 13, 2019. See http:// Lead Market Makers and Nasdaq Stock Market LLC 16 15 U.S.C. 78f(b)(5). ir.cboe.com/∼/media/Files/C/CBOE-IR-V2/press- Section 114 related to the Designated Liquidity 17 Id. release/2019/cboe-welcomes-16-barclays-etns.pdf. Provider Program.
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clearer because it is eliminating old liquidity on the Exchange to qualify for LMMs is governed by Exchange Rule language that is no longer applicable. the proposed tier. 11.8(e)(2). Further, if an LMM does not The Exchange believes that it is fair meet the Minimum Performance LMM Add Volume Tier and reasonable to offer enhanced rebates Standards for three out of the past four The Exchange believes that the to LMMs that meet the proposed tier months, the LMM is subject to forfeiture proposed addition of the LMM Add because of the significant commitment of LMM status for that LMM Security, Volume Tier is consistent with the act to the Exchange’s LMM Program and at the Exchange’s discretion. liquidity provision on the Exchange and represents a reasonable, equitable, C. Self-Regulatory Organization’s made by such LMM in order to meet the and not unfairly discriminatory means Statement on Comments on the tier. The Exchange intends to to incentivize liquidity provision in Proposed Rule Change Received From implement the enhanced rebate as a BZX-listed securities. Specifically, the Members, Participants, or Others Exchange believes that the proposal is means to incentivize Members to both No written comments were either reasonable, equitable, and not unfairly enroll and participate in the LMM solicited or received. discriminatory to offer the LMM Add Program and then to further take on Volume Tier to LMMs and not other additional LMM Securities and believes III. Date of Effectiveness of the Members because it will enhance that this new tier combined with the Proposed Rule Change and Timing for market quality in Cboe-listed securities existing structure of the LMM Program Commission Action will have such an effect. As such, the by incentivizing LMMs to take on The foregoing rule change has become additional securities listed on the Exchange believes that the proposal represents an equitable allocation of effective pursuant to Section 19(b)(3)(A) Exchange (by requiring both a minimum 22 payments. of the Act and paragraph (f) of Rule Average Aggregate Daily Auction 19b–4 23 thereunder. At any time within Volume in LMM Securities of greater B. Self-Regulatory Organization’s 60 days of the filing of the proposed rule than or equal to 500,000 and enrollment Statement on Burden on Competition change, the Commission summarily may in at least 75 LMM Securities) and temporarily suspend such rule change if encouraging liquidity provision on the The Exchange does not believe that the proposed rule changes will impose it appears to the Commission that such Exchange (by requiring that a Member action is necessary or appropriate in the adds an ADV of greater than or equal to any burden on competition not necessary or appropriate in furtherance public interest, for the protection of 0.20% of TCV). While the proposed investors, or otherwise in furtherance of enhanced rebate applies only to LMMs, of the purposes of the Act. The Exchange does not believe the proposed the purposes of the Act. If the the Exchange believes that the proposal Commission takes such action, the is equitable and not unreasonably change burdens competition, but rather, enhances competition as it is intended Commission will institute proceedings discriminatory because registration as to determine whether the proposed rule an LMM is available equally to all to increase the competitiveness of BZX both among Members by incentivizing change should be approved or Members and allocation of listed disapproved. securities between LMMs is governed by Members to enroll in LMP Securities Exchange Rule 11.8(e)(2). Further, such and to become LMMs in BZX-listed IV. Solicitation of Comments securities and as a listing venue by LMMs must meet rigorous Minimum Interested persons are invited to Performance Standards 20 and, where an enhancing market quality in BZX-listed securities. The marketplace for listings submit written data, views, and LMM does not meet the Minimum arguments concerning the foregoing, Performance Standards for three out of is extremely competitive and there are several other national securities including whether the proposed rule the past four months, the LMM is change is consistent with the Act. subject to forfeiture of LMM status for exchanges that offer listings. Transfers between listing venues occur Comments may be submitted by any of that LMM Security, at the Exchange’s 21 the following methods: discretion. While the Exchange has no frequently for numerous reasons, way of knowing whether this proposed including market quality. This proposal Electronic Comments is intended to help the Exchange rule change would definitively result in • Use the Commission’s internet compete as a listing venue. Accordingly, any particular LMM qualifying for the comment form (http://www.sec.gov/ the Exchange does not believe that the proposed tier, the Exchange anticipates rules/sro.shtml); or at least one LMM meeting, or being proposed change will impair the ability • Send an email to rule-comments@ reasonably able to meet, the proposed of issuers, LMMs, other Members, or sec.gov. Please include File Number SR– criteria; however, the proposed tier is competing listing venues to maintain CboeBZX–2020–043 on the subject line. open to any LMM that satisfies the tier’s their competitive standing. The criteria. The Exchange believes that the Exchange also notes that the proposed Paper Comments proposed tier could provide an change is intended to enhance market • Send paper comments in triplicate incentive for other Members to enroll as quality in BZX-listed securities and to Secretary, Securities and Exchange an LMM, to take on additional LMM other listed securities, to the benefit of Commission, 100 F Street NE, Securities, and to add additional all investors in such BZX-listed Washington, DC 20549–1090. securities. The Exchange does not All submissions should refer to File believe the proposed amendment would 20 As defined in Rule 11.8(e)(1)(D), the term Number SR–CboeBZX–2020–043. This burden intramarket competition as it ‘‘Minimum Performance Standards’’ means a set of file number should be included on the would be available to all Members standards applicable to an LMM that may be subject line if email is used. To help the determined from time to time by the Exchange. uniformly. Registration as an LMM is Commission process and review your Such standards will vary between LMM Securities available equally to all Members and depending on the price, liquidity, and volatility of comments more efficiently, please use allocation of listed securities between the LMM Security in which the LMM is registered. only one method. The Commission will The performance measurements will include: (A) post all comments on the Commission’s percent of time at the NBBO; (B) percent of 21 For example, 16 ETPs transferred their listings executions better than the NBBO; (C) average to the Exchange on May 13, 2019. See http:// displayed size; and (D) average quoted spread. For ir.cboe.com/∼/media/Files/C/CBOE-IR-V2/press- 22 15 U.S.C. 78s(b)(3)(A). additional detail, see Original LMM Filing. release/2019/cboe-welcomes-16-barclays-etns.pdf. 23 17 CFR 240.19b–4(f).
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internet website (http://www.sec.gov/ change as described in Items I and II Proposed Change rules/sro.shtml). Copies of the below, which Items have been prepared The Exchange offers Users 5 submission, all subsequent by the self-regulatory organization. The connectivity to data feeds from third amendments, all written statements Commission is publishing this notice to party markets and other content service with respect to the proposed rule solicit comments on the proposed rule providers (‘‘Third Party Data Feeds’’).6 change that are filed with the change from interested persons. The list of Third Party Data Feeds is set Commission, and all written forth in the Fee Schedules, and includes I. Self-Regulatory Organization’s communications relating to the connectivity to the GIF for a monthly proposed rule change between the Statement of the Terms of Substance of connectivity fee of $100.7 Commission and any person, other than the Proposed Rule Change ICE, which publishes the GIF, those that may be withheld from the The Exchange proposes to amend the announced to its customers that connect public in accordance with the to the GIF that it will no longer offer the NYSE Arca Options Fees and Charges provisions of 5 U.S.C. 552, will be GIF as a stand-alone product. and the NYSE Arca Equities Fees and available for website viewing and Accordingly, the Exchange proposes to printing in the Commission’s Public Charges (together, the ‘‘Fee Schedules’’) cease offering connectivity to the GIF Reference Room, 100 F Street NE, related to co-location services with once it is no longer available. The Washington, DC 20549 on official respect to connectivity to the ICE Data Exchange has been informed by ICE that business days between the hours of Global Index and to waive any change cessation is currently expected to occur 10:00 a.m. and 3:00 p.m. Copies of the fees that a User would otherwise incur before the end of 2020. The Exchange filing also will be available for as a result of the proposed change. The will announce the operative date inspection and copying at the principal proposed rule change is available on the through a customer notice. office of the Exchange. All comments Exchange’s website at www.nyse.com, at Users are subject to a change fee if received will be posted without change. the principal office of the Exchange, and they request a change to one or more Persons submitting comments are at the Commission’s Public Reference existing co-location services.8 The cautioned that we do not redact or edit Room. Exchange proposes to waive any change personal identifying information from fees that a User would otherwise incur comment submissions. You should II. Self-Regulatory Organization’s as a result of the proposed change. submit only information that you wish Statement of the Purpose of, and In order to implement the proposed to make available publicly. All Statutory Basis for, the Proposed Rule change, the Exchange proposes to make submissions should refer to File Change Number SR–CboeBZX–2020–043 and 5 For purposes of the Exchange’s co-location should be submitted on or before June In its filing with the Commission, the services, a ‘‘User’’ means any market participant 26, 2020. self-regulatory organization included that requests to receive co-location services directly from the Exchange. See Securities Exchange Act For the Commission, by the Division of statements concerning the purpose of, Release No. 76010 (September 29, 2015), 80 FR Trading and Markets, pursuant to delegated and basis for, the proposed rule change 60197 (October 5, 2015) (SR–NYSEArca–2015–82). authority.24 and discussed any comments it received As specified in the Fee Schedules, a User that incurs co-location fees for a particular co-location J. Matthew DeLesDernier, on the proposed rule change. The text service pursuant thereto would not be subject to co- Assistant Secretary. of those statements may be examined at location fees for the same co-location service [FR Doc. 2020–12164 Filed 6–4–20; 8:45 am] the places specified in Item IV below. charged by the Exchange’s affiliates the New York The Exchange has prepared summaries, Stock Exchange LLC, NYSE American LLC, NYSE BILLING CODE 8011–01–P Chicago, Inc., and NYSE National, Inc. (collectively, set forth in sections A, B, and C below, the ‘‘Affiliate SROs’’). Each Affiliate SRO has of the most significant parts of such submitted substantially the same proposed rule SECURITIES AND EXCHANGE statements. change to propose the changes described herein. COMMISSION See SR–NYSE–2020–46, SR–NYSEAmer–2020–40, A. Self-Regulatory Organization’s SR–NYSECHX–2020–17, and SR–NYSENAT–2020– 19. [Release No. 34–88980; File No. SR– Statement of the Purpose of, and the NYSEARCA–2020–49] 6 See Securities Exchange Act Release No. 80310 Statutory Basis for, the Proposed Rule (March 24, 2017), 82 FR 15763 (March 30, 2017) Change (SR–NYSEArca–2016–89) (notice of filing of Partial Self-Regulatory Organizations; NYSE Amendment No. 4 and order granting accelerated Arca, Inc.; Notice of Filing and 1. Purpose approval of a proposed rule change, as modified by Immediate Effectiveness of Proposed Amendment Nos. 1 through 4, to amend the co- Rule Change To Amend the NYSE Arca The Exchange proposes to amend the location services offered by the Exchange to add certain access and connectivity fees). 4 Options Fees and Charges and the Fee Schedules related to co-location 7 The Exchange has an indirect interest in the GIF NYSE Arca Equities Fees and Charges services offered by the Exchange with because ICE is the Exchange’s ultimate parent. See Related to Co-location Services respect to connectivity to the ICE Data id., at 15771, and Securities Exchange Act Release No. 79673 (December 22, 2016), 81 FR 96107 June 1, 2020. Global Index (‘‘GIF’’) and to waive any (December 29, 2016) (SR–NYSEArca–2016–89) Pursuant to Section 19(b)(1) 1 of the change fees that a User would otherwise (notice of filing of Amendments Nos. 2 and 3 to incur as a result of the proposed change. proposed rule change to amend the co-location Securities Exchange Act of 1934 (the services offered by the Exchange to add certain ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 access and connectivity fees). notice is hereby given that, on May 18, 4 The Exchange initially filed rule changes 8 See Securities Exchange Act Release Nos. 67667 2020, NYSE Arca, Inc. (‘‘NYSE Arca’’ or relating to its co-location services with the (August 15, 2012), 77 FR 50743 (August 22, 2012) Securities and Exchange Commission (SR–NYSEArca–2012–63) (order approving a the ‘‘Exchange’’) filed with the (‘‘Commission’’) in 2010. See Securities Exchange proposed rule change amending the NYSE Arca Securities and Exchange Commission Act Release No. 63275 (November 8, 2010), 75 FR Options Fee Schedule to provide for additional co- (the ‘‘Commission’’) the proposed rule 70048 (November 16, 2010) (SR–NYSEArca–2010– location services and establish related fees), and 100). The Exchange is an indirect subsidiary of 67669 (August 15, 2012), 77 FR 50746 (August 22, Intercontinental Exchange, Inc. (‘‘ICE’’). Through its 24 2012) (SR–NYSEArca–2012–62) (order approving a 17 CFR 200.30–3(a)(12). ICE Data Services (‘‘IDS’’) business, ICE operates a proposed rule change amending the NYSE Arca 1 15 U.S.C. 78s(b)(1). data center in Mahwah, New Jersey (the ‘‘data Equites Schedule of Fees and Charges for Exchange 2 15 U.S.C. 78a. center’’), from which the Exchange provides co- Services to provide for additional co-location 3 17 CFR 240.19b–4. location services to Users. services and establish related fees).
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the following changes to the section Consolidated Feed. To use such third and a national market system and, in entitled ‘‘Connectivity to Third Party party connectivity to the Consolidated general, to protect investors and the Data Feeds’’: Feed, a User may utilize the IDS public interest and because it is not • In the first paragraph and in the network, a third party designed to permit unfair table of Third Party Data Feeds, add an telecommunication network, a cross discrimination between customers, asterisk after ‘‘ICE Data Global Index.’’ connect, or a combination thereof to issuers, brokers, or dealers. • Following the table of Third Party access the Consolidated Feed through a Data Feeds, add the following text: The Proposed Rule Change Is connection to an access center outside Reasonable and Equitable * ICE will cease to offer the GIF as a the data center (which could be an IDS stand-alone product, which the access center, a third-party access The Exchange believes that the Exchange has been informed by ICE is center, or both), another User, or a third proposed rule change is reasonable and currently expected to occur before the party vendor. equitable for the following reasons. end of 2020. The Exchange will The Exchange believes that it is announce the operative date through a Competitive Environment reasonable and an equitable allocation customer notice. Any change fees that a The Exchange operates in a highly of its fees and credits to add a note to User would otherwise incur as a result competitive market in which exchanges its Fee Schedules stating that ICE will of the proposed change will be waived. and other vendors (e.g., Hosting Users) cease to offer the GIF as a stand-alone The GIF includes the values of offer co-location services as a means to product, as the Exchange will no longer various indices and exchange traded facilitate the trading and other market be able to offer the service once that 9 product data. Based on information activities of those market participants occurs. published by ICE Data Services, all the who believe that co-location enhances If a User wishes connectivity to the data in the GIF was already available on the efficiency of their operations. The information in the GIF, the Users could the ICE Data Services Consolidated Feed Commission has repeatedly expressed connect to the Consolidated Feed 10 (‘‘Consolidated Feed’’). The Exchange its preference for competition over through IDS or from a third party offers connectivity to the Consolidated regulatory intervention in determining provider. A User may utilize the IDS Feed, and does not propose to change prices, products, and services in the network, a third party the price for such connectivity. In securities markets. Specifically, in telecommunication network, a cross addition, the Exchange’s connectivity to Regulation NMS, the Commission connect, or a combination thereof to the GIF and the Consolidated Feed highlighted the importance of market access the Consolidated Feed, through a should have approximately the same forces in determining prices and SRO connection to an access center outside latency. revenues and, also, recognized that the data center (which could be an IDS Application and Impact of the Proposed current regulation of the market system access center, a third-party access Change ‘‘has been remarkably successful in center, or both), another User, or a third promoting market competition in its party vendor. The proposed change would not The Exchange believes that it is apply differently to distinct types or broader forms that are most important to investors and listed companies.’’ 11 reasonable and equitable that it waive sizes of market participants. Rather, it any change fees that a User would would apply to all Users equally. As is The proposed change is not otherwise intended to address any other issues otherwise incur as a result of the currently the case, the purchase of any proposed change, as Users would have colocation service is completely relating to co-location services and/or related fees, and the Exchange is not no choice but to terminate connectivity voluntary and the Fee Schedules are to the GIF. The fee waiver would help applied uniformly to all Users. aware of any problems that Users would have in complying with the proposed to alleviate any burden related to the Currently, there are seven Users that change. have connectivity to the GIF, and so change. would be affected by the change. If any 2. Statutory Basis The Proposed Rule Change Would of them wish to continue having Protect Investors and the Public Interest The Exchange believes that the connectivity to the information in the The Exchange believes that the GIF, they could connect to the proposed rule change is consistent with Section 6(b) of the Act,12 in general, and proposed rule change would perfect the Consolidated Feed, which none of them mechanisms of a free and open market do presently. The monthly cost for furthers the objectives of Sections 6(b)(4) and (5) of the Act,13 in particular, and a national market system and, in connectivity to the Consolidated Feed general, protect investors and the public depends on the size of the bandwidth because it provides for the equitable allocation of reasonable dues, fees, and interest for the following reasons. utilized. If a User opts to connect to the It would be against the protection of other charges among its members, Consolidated Feed to connect to the investors and the public interest if the issuers and other persons using its information in the GIF, the monthly Exchange were to continue to offer facilities and does not unfairly connectivity cost charged by the something that it cannot provide discriminate between customers, Exchange would be $200. because the relevant feed has been issuers, brokers or dealers. In addition, ICE has informed the Exchange that discontinued. Adding the proposed note it is designed to foster cooperation and currently there are various third parties to its Fee Schedules would reduce any coordination with persons engaged in that offer Users connectivity to the potential ambiguity and provide regulating, clearing, settling, processing clarification concerning the availability 9 information with respect to, and The Exchange understands that some of the and the costs of connectivity to Third indices may include Exchange or Affiliate SRO data facilitating transactions in securities, to Party Data Feeds available to Users, as underlying components, but the GIF does not remove impediments to, and perfect the because it would highlight that the GIF include those underlying components or other mechanisms of, a free and open market information directly from the Exchange and will become obsolete, provide a timeline Affiliate SROs. for the change, and state that any change 10 See ‘‘Consolidated Data Feed Coverage List— 11 See Securities Exchange Act Release No. 51808 Indices and Indicators’’ at https://www.theice.com/ (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005). fees that a User would otherwise incur market-data/connectivity-and-feeds/consolidated- 12 15 U.S.C. 78f(b). as a result of the proposed change feed/coverage-list. 13 15 U.S.C. 78f(b)(4) and (5). would be waived.
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The Proposed Change Is Not Unfairly apply to all Users equally: As a The Commission has repeatedly Discriminatory consequence of ICE’s ceasing to offer the expressed its preference for competition The Exchange believes that the GIF as a stand-alone product, the over regulatory intervention in proposed change is not unfairly Exchange will not be able to provide determining prices, products, and discriminatory for the following any Users with connectivity to the GIF. services in the securities markets. reasons. The Exchange proposes to waive any Specifically, in Regulation NMS, the The proposed change would not change fees that a User would otherwise Commission highlighted the importance apply differently to distinct types or incur as a result of the proposed change. of market forces in determining prices sizes of market participants. Rather, it Adding the proposed note to the Fee and SRO revenues and, also, recognized would apply to all Users equally. As a Schedules would reduce any potential that current regulation of the market consequence of ICE’s ceasing to offer the ambiguity and provide clarification system ‘‘has been remarkably successful GIF as a stand-alone product, the concerning the availability and the costs in promoting market competition in its Exchange will not be able to provide of connectivity to Third Party Data broader forms that are most important to any Users with connectivity to the GIF. Feeds available to Users, because it investors and listed companies.’’ 15 If a User wishes connectivity to the would highlight that the GIF will The Exchange believes that the information in the GIF, the Users could become obsolete, provide a timeline for proposed change is necessary and connect to the Consolidated Feed the change, and state that any change appropriate. Adding the proposed note through the Exchange. If any of the fees that a User would otherwise incur to the Fee Schedules would reduce any seven Users that have connectivity to as a result of the proposed change potential ambiguity and provide the GIF opt to connect to the would be waived. clarification concerning the availability Consolidated Feed, the monthly If a User wishes connectivity to the and the costs of connectivity to Third connectivity cost charged by the information in the GIF, the Users could Party Data Feeds available to Users, Exchange would be $200. connect to the Consolidated Feed because it would highlight that the GIF ICE has informed the Exchange that through the Exchange. If any of the will become obsolete and provide a currently there are various third parties seven Users that have connectivity to timeline for the change. that offer Users connectivity to the the GIF opt to connect to the For the reasons described above, the Consolidated Feed. To use such third Consolidated Feed, the monthly Exchange believes that the proposed party connectivity to the Consolidated connectivity cost charged by the rule change reflects this competitive Feed, a User may utilize the IDS Exchange would be $200. environment. network, a third party ICE has informed the Exchange that telecommunication network, a cross currently there are various third parties C. Self-Regulatory Organization’s connect, or a combination thereof to that offer Users connectivity to the Statement on Comments on the access the Consolidated Feed, through a Consolidated Feed. To use such third Proposed Rule Change Received From connection to an access center outside party connectivity to the Consolidated Members, Participants, or Others the data center (which could be an IDS Feed, a User may utilize the IDS No written comments were solicited access center, a third-party access network, a third party or received with respect to the proposed center, or both), another User, or a third telecommunication network, a cross rule change. party vendor. connect, or a combination thereof to For the reasons above, the proposed access the Consolidated Feed, through a III. Date of Effectiveness of the changes do not unfairly discriminate connection to an access center outside Proposed Rule Change and Timing for between or among market participants the data center (which could be an IDS Commission Action that are otherwise capable of satisfying access center, a third-party access The Exchange has filed the proposed any applicable co-location fees, center, or both), another User, or a third rule change pursuant to Section requirements, terms and conditions party vendor. 19(b)(3)(A)(iii) of the Act 16 established from time to time by the and Rule Use of any co-location service is 17 Exchange. 19b–4(f)(6) thereunder. Because the completely voluntary, and each market For these reasons, the Exchange proposed rule change does not: (i) participant is able to determine whether believes that the proposal is consistent Significantly affect the protection of to use co-location services based on the with the Act. investors or the public interest; (ii) requirements of its business operations. impose any significant burden on B. Self-Regulatory Organization’s Intermarket Competition competition; and (iii) become operative Statement on Burden on Competition prior to 30 days from the date on which In accordance with Section 6(b)(8) of The Exchange does not believe that it was filed, or such shorter time as the the Act,14 the Exchange believes that the the proposed fee would impose any Commission may designate, if proposed rule change will not impose burden on intermarket competition that consistent with the protection of any burden on competition that is not is not necessary or appropriate. investors and the public interest, the necessary or appropriate in furtherance The Exchange operates in a highly proposed rule change has become of the purposes of the Act. competitive market in which exchanges effective pursuant to Section 19(b)(3)(A) and other vendors (i.e., Hosting Users) of the Act and Rule 19b–4(f)(6)(iii) Intramarket Competition offer co-location services as a means to thereunder. The Exchange does not believe that facilitate the trading and other market A proposed rule change filed under the proposed change would place any activities of those market participants Rule 19b–4(f)(6) 18 normally does not burden on intramarket competition that who believe that co-location enhances become operative prior to 30 days after is not necessary or appropriate. The the efficiency of their operations. the date of the filing. However, pursuant proposed change would not apply Accordingly, fees charged for co- differently to distinct types or sizes of location services are constrained by the 15 See 70 FR 37496, supra note 11. market participants. Rather, it would active competition for the order flow of, 16 15 U.S.C. 78s(b)(3)(A)(iii). and other business from, such market 17 17 CFR 240.19b–4(f)(6). 14 15 U.S.C. 78f(b)(8). participants. 18 17 CFR 240.19b–4(f)(6).
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to Rule 19b–4(f)(6)(iii),19 the Commission, 100 F Street NE, for the Commonwealth of Kentucky Commission may designate a shorter Washington, DC 20549–1090. dated 06/01/2020. time if such action is consistent with the All submissions should refer to File Incident: Severe Storms, Flooding, protection of investors and the public Number SR–NYSEARCA–2020–49. This Flash Flooding, Landslides and interest. The Exchange has requested file number should be included on the Mudslides. that the Commission waive the 30-day subject line if email is used. To help the Incident Period: 02/03/2020 through operative delay so that the proposal may Commission process and review your 02/29/2020. become operative immediately upon comments more efficiently, please use filing. The Exchange believes that such only one method. The Commission will DATES: Issued on 06/01/2020. waiver would be consistent with the post all comments on the Commission’s Physical Loan Application Deadline protection of investors and the public internet website (http://www.sec.gov/ Date: 07/31/2020. interest because it would allow the rules/sro.shtml). Copies of the Economic Injury (EIDL) Loan Exchange to waive the change fee submission, all subsequent Application Deadline Date: 03/01/2021. sooner. The Commission believes that amendments, all written statements ADDRESSES: Submit completed loan waiving the 30-day operative delay is with respect to the proposed rule consistent with the protection of applications to: U.S. Small Business change that are filed with the Administration, Processing and investors and the public interest Commission, and all written because it would permit the Exchange, Disbursement Center, 14925 Kingsport communications relating to the Road, Fort Worth, TX 76155. without undue delay, to cease offering proposed rule change between the the GIF when it becomes unavailable, Commission and any person, other than FOR FURTHER INFORMATION CONTACT: A. provide notice to customers and waive those that may be withheld from the Escobar, Office of Disaster Assistance, the change fee. Accordingly, the public in accordance with the U.S. Small Business Administration, Commission waives the 30-day provisions of 5 U.S.C. 552, will be 409 3rd Street SW, Suite 6050, operative delay and designates the available for website viewing and Washington, DC 20416, (202) 205–6734. proposed rule change operative upon printing in the Commission’s Public SUPPLEMENTARY INFORMATION: Notice is filing.20 Reference Room, 100 F Street NE, hereby given that as a result of the At any time within 60 days of the Washington, DC 20549 on official Administrator’s disaster declaration, filing of such proposed rule change, the business days between the hours of applications for disaster loans may be Commission summarily may 10:00 a.m. and 3:00 p.m. Copies of the filed at the address listed above or other temporarily suspend such rule change if filing also will be available for locally announced locations. it appears to the Commission that such inspection and copying at the principal The following areas have been action is necessary or appropriate in the office of the Exchange. All comments public interest, for the protection of determined to be adversely affected by received will be posted without change. the disaster: investors, or otherwise in furtherance of Persons submitting comments are the purposes of the Act. If the cautioned that we do not redact or edit Primary Counties: Bell, Harlan, Whitley. Commission takes such action, the personal identifying information from Contiguous Counties: Commission shall institute proceedings 21 comment submissions. You should Kentucky: Clay, Knox, Laurel, Leslie, under Section 19(b)(2)(B) of the Act to submit only information that you wish Letcher, McCreary, Perry. determine whether the proposed rule to make available publicly. All change should be approved or Tennessee: Campbell, Claiborne. submissions should refer to File Virginia: Lee, Wise. disapproved. Number SR–NYSEARCA–2020–49 and IV. Solicitation of Comments should be submitted on or before June The Interest Rates are: 26, 2020. Interested persons are invited to Percent submit written data, views, and For the Commission, by the Division of arguments concerning the foregoing, Trading and Markets, pursuant to delegated Homeowners With Credit Avail- including whether the proposed rule authority.22 able Elsewhere ...... 3.125 change is consistent with the Act. J. Matthew DeLesDernier, Homeowners Without Credit Comments may be submitted by any of Assistant Secretary. Available Elsewhere ...... 1.563 Businesses With Credit Available the following methods: [FR Doc. 2020–12161 Filed 6–4–20; 8:45 am] Elsewhere ...... 7.500 Electronic Comments BILLING CODE 8011–01–P Businesses Without Credit Avail- • able Elsewhere ...... 3.750 Use the Commission’s internet Non-Profit Organizations With comment form (http://www.sec.gov/ SMALL BUSINESS ADMINISTRATION Credit Available Elsewhere ...... 2.750 rules/sro.shtml); or Non-Profit Organizations Without • Send an email to rule-comments@ [Disaster Declaration # 16480 and # 16481; Credit Available Elsewhere ...... 2.750 sec.gov. Please include File Number SR– Kentucky Disaster Number KY–00079] For Economic Injury: NYSEARCA–2020–49 on the subject Businesses & Small Agricultural line. Administrative Declaration of a Cooperatives Without Credit Disaster for the Commonwealth of Available Elsewhere ...... 3.750 Paper Comments Kentucky Non-Profit Organizations Without • Credit Available Elsewhere ...... 2.750 Send paper comments in triplicate AGENCY: U.S. Small Business to Secretary, Securities and Exchange Administration. The number assigned to this disaster ACTION: Notice. 19 17 CFR 240.19b–4(f)(6)(iii). for physical damage is 16480 6 and for 20 For purposes only of waiving the 30-day SUMMARY: This is a notice of an economic injury is 16481 0. operative delay, the Commission has considered the proposed rule’s impact on efficiency, competition, Administrative declaration of a disaster The States which received an EIDL and capital formation. See 15 U.S.C. 78c(f). Declaration # are Kentucky, Tennessee, 21 15 U.S.C. 78s(b)(2)(B). 22 17 CFR 200.30–3(a)(12). Virginia.
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(Catalog of Federal Domestic Assistance burden, including through the use of Clarke, Clay, Coahoma, Grenada, Number 59008) automated techniques or other forms of Holmes, Jasper, Lafayette, Jovita Carranza, information technology; and (d) whether Lawrence, Leake, Montgomery, Administrator. there are ways to enhance the quality, Noxubee, Panola, Quitman, Smith, utility, and clarity of the information. Sunflower, Tallahatchie, Tate, [FR Doc. 2020–12204 Filed 6–4–20; 8:45 am] Tunica, Walthall, Webster, BILLING CODE 8026–03–P Summary of Information Collections Yalobusha. Title: Secondary Participation All other information in the original Guaranty Agreement. SMALL BUSINESS ADMINISTRATION declaration remains unchanged. Description of Respondents: Small Business Lending Companies. (Catalog of Federal Domestic Assistance Reporting and Recordkeeping Number 59008) Requirements Under OMB Review Form Number: SBA Forms 1502, 1086. Cynthia Pitts, AGENCY: Small Business Administration. Total Estimated Annual Responses: Acting Associate Administrator for Disaster ACTION: 30-Day notice. 4,000. Assistance. Total Estimated Annual Hour Burden: [FR Doc. 2020–12193 Filed 6–4–20; 8:45 am] SUMMARY: The Small Business 60,000. Administration (SBA) is publishing this BILLING CODE 8026–03–P notice to comply with requirements of Curtis Rich, Management Analyst. the Paperwork Reduction Act (PRA) SMALL BUSINESS ADMINISTRATION which requires agencies to submit [FR Doc. 2020–12170 Filed 6–4–20; 8:45 am] proposed reporting and recordkeeping BILLING CODE 8026–03–P Reporting and Recordkeeping requirements to OMB for review and Requirements Under OMB Review approval, and to publish a notice in the Federal Register notifying the public SMALL BUSINESS ADMINISTRATION AGENCY: Small Business Administration. that the agency has made such a [Disaster Declaration #16448 and #16449; ACTION: 30-Day notice. submission. This notice also allows an Mississippi Disaster Number MS–00127] additional 30 days for public comments. SUMMARY: The Small Business Administration (SBA) is publishing this DATES: Submit comments on or before Presidential Declaration Amendment of July 6, 2020. a Major Disaster for Public Assistance notice to comply with requirements of the Paperwork Reduction Act (PRA) ADDRESSES: Only for the State of Mississippi Comments should refer to which requires agencies to submit the information collection by name and/ AGENCY: U.S. Small Business proposed reporting and recordkeeping or OMB Control Number and should be Administration. requirements to OMB for review and sent to: Agency Clearance Officer, Curtis ACTION: Amendment 1. approval, and to publish a notice in the Rich, Small Business Administration, Federal Register notifying the public 409 3rd Street SW, 5th Floor, SUMMARY: This is an amendment of the that the agency has made such a Washington, DC 20416; and SBA Desk Presidential declaration of a major submission. This notice also allows an Officer, Office of Information and disaster for Public Assistance Only for additional 30 days for public comments. Regulatory Affairs, Office of the State of Mississippi (FEMA–4536– Management and Budget, New DATES: Submit comments on or before DR), dated 05/08/2020. July 6, 2020. Executive Office Building, Washington, Incident: Severe Storms, Tornadoes, DC 20503. Straight-line Winds, and Flooding. ADDRESSES: Comments should refer to FOR FURTHER INFORMATION CONTACT: Incident Period: 04/12/2020. the information collection by name and/ or OMB Control Number and should be Curtis Rich, Agency Clearance Officer, DATES: Issued on 05/29/2020. (202) 205–7030 [email protected]. sent to: Agency Clearance Officer, Curtis Physical Loan Application Deadline Rich, Small Business Administration, Copies: A copy of the Form OMB 83– Date: 07/07/2020. 1, supporting statement, and other 409 3rd Street SW, 5th Floor, Economic Injury (EIDL) Loan Washington, DC 20416; and SBA Desk documents submitted to OMB for Application Deadline Date: 02/08/2021. review may be obtained from the Officer, Office of Information and ADDRESSES: Submit completed loan Agency Clearance Officer. Regulatory Affairs, Office of applications to: U.S. Small Business Management and Budget, New SUPPLEMENTARY INFORMATION: Small Administration, Processing and Executive Office Building, Washington, Business Administration collects this Disbursement Center, 14925 Kingsport DC 20503. information from lenders who Road, Fort Worth, TX 76155. participate in the secondary market FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: A. program. The information is used to Curtis Rich, Agency Clearance Officer, Escobar, Office of Disaster Assistance, facilitate and administer secondary (202) 205–7030 [email protected]. U.S. Small Business Administration, market transactions in accordance with Copies: A copy of the Form OMB 83– 409 3rd Street SW, Suite 6050, 15 U.S.C. 634(f)3 and to monitor the 1, supporting statement, and other Washington, DC 20416, (202) 205–6734. program for compliance with 15 U.S.C. documents submitted to OMB for 639(h). SUPPLEMENTARY INFORMATION: The notice review may be obtained from the of the President’s major disaster Agency Clearance Officer. Solicitation of Public Comments declaration for Private Non-Profit SUPPLEMENTARY INFORMATION: The Small Comments may be submitted on (a) organizations in the State of Mississippi, Business Investment Act authorizes whether the collection of information is dated 05/08/2020, is hereby amended to SBA to guarantee a debenture issued by necessary for the agency to properly include the following areas as adversely a Certified Development Company perform its functions; (b) whether the affected by the disaster. (CDC). The proceeds from each burden estimates are accurate; (c) Primary Counties: Bolivar, Calhoun, debenture are used to fund loans to whether there are ways to minimize the Carroll, Chickasaw, Choctaw, eligible small business concerns (‘‘504
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loans’’). 15 U.S.C. 697(a). The Small use of these forms, including exhibits, Incident: Severe Storms and Business Act and the Small Business are as follows: Tornadoes. Investment Act mandate that all There are 260 CDCs affected by the Incident Period: 04/22/2020. guaranteed loans provided by the SBA information collection. The total DATES: Issued on 06/01/2020. to small business concerns (SBCs) must number of small business concerns that Physical Loan Application Deadline have a reasonable assurance of ability to will annually respond to Form 1244 is Date: 07/31/2020. approximately 7,000 based on the repay. See 15 U.S.C. 636(a)(6) and Economic Injury (EIDL) Loan average submission of applications 687(f); see also 13 CFR 120.150. The Application Deadline Date: 03/01/2021. information collections described submitted from CDCs over the past FY ADDRESSES: below—SBA Form 1244 and SBA Form using both the ASM and non-ASM Submit completed loan 2450—are part of the application methods. This is a total of 7,260 applications to: U.S. Small Business process for a 504 loan. SBA is proposing respondents. Burden hours are 2.25 Administration, Processing and to make changes to Form 2450 to hours for ASM and 2.45 hours for non- Disbursement Center, 14925 Kingsport remove duplicative questions as well as ASM submissions (this number is Road, Fort Worth, TX 76155. questions that are no longer applicable slightly higher due to the fact that these FOR FURTHER INFORMATION CONTACT: A. to the 504 Loan Program. respondents are required to submit more Escobar, Office of Disaster Assistance, documentation than the ASM U.S. Small Business Administration, Solicitation of Public Comments respondents). These estimates include 409 3rd Street SW, Suite 6050, SBA is requesting comments on (a) the content from SBA Form 2450, which Washington, DC 20416, (202) 205–6734. Whether the collection of information is takes an estimated 15 minute for SUPPLEMENTARY INFORMATION: Notice is necessary for the agency to properly completion. hereby given that as a result of the perform its functions; (b) whether the Solicitation of Public Comments Administrator’s disaster declaration, burden estimates are accurate; (c) applications for disaster loans may be SBA is requesting comments on (a) whether there are ways to minimize the filed at the address listed above or other Whether the collection of information is burden, including through the use of locally announced locations. necessary for the agency to properly automated techniques or other forms of The following areas have been perform its functions; (b) whether the information technology; and (d) whether burden estimates are accurate; (c) determined to be adversely affected by there are ways to enhance the quality, whether there are ways to minimize the the disaster: utility, and clarity of the information. burden, including through the use of Primary Counties: Polk Summary of Information Collections automated techniques or other forms of Contiguous Counties: information technology; and (d) whether Texas: Angelina, Hardin, Liberty, San Title: Application for Section 504 there are ways to enhance the quality, Jacinto, Trinity, Tyler. Loan. utility, and clarity of the information. Description of Respondents: Small The Interest Rates are: Summary of Information Collection Business Concerns applying for a Percent section 504 loan and Certified Form 1244 Development Companies. For Physical Damage: Total burden hours = 16,799 (i) Form Number: SBA Form 1244, × Homeowners With Credit Avail- Application for Section 504 Loan. The Submission through the ASM—4,937 able Elsewhere ...... 3.125 information collected by this form is 2.25 = 11,108 burden hours Homeowners Without Credit Submission through non-ASM (standard used to review the eligibility of the Available Elsewhere ...... 1.563 method)—2,323 × 2.45 = 5,691 burden small business concern (SBC) for SBA Businesses With Credit Avail- hours able Elsewhere ...... 7.500 financial assistance; the Businesses Without Credit creditworthiness and repayment ability Form 2450 Available Elsewhere ...... 3.750 of the SBC; and the terms and Total burden hours = 1,815 Non-Profit Organizations With conditions of the 504 loan for which the Submission through the ASM and non- Credit Available Elsewhere ... 2.750 SBC is applying. ASM—7,260 × .25 = 1,815 burden Non-Profit Organizations With- (ii) Form 2450 is the Eligibility hours out Credit Available Else- Checklist used to document the 504 where ...... 2.750 loan’s eligibility based on program Curtis Rich, For Economic Injury: requirements. These forms are used by Management Analyst. Businesses & Small Agricultural Cooperatives Without Credit [FR Doc. 2020–12173 Filed 6–4–20; 8:45 am] CDCs to request SBA’s guarantee on Available Elsewhere ...... 3.750 each debenture. BILLING CODE 8026–03–P Non-Profit Organizations With- SBA has established a streamlined out Credit Available Else- loan application processing procedure where ...... 2.750 known as the Abridged Submission SMALL BUSINESS ADMINISTRATION Method (ASM). Under this process, the [Disaster Declaration #16478 and #16479; The number assigned to this disaster CDCs are required to collect and retain Texas Disaster Number TX–00550] for physical damage is 16478 C and for all exhibits to SBA Form 1244, but are economic injury is 16479 0. only required to submit selective Administrative Declaration of a The State which received an EIDL documents. CDCs using the non-ASM Disaster for the State of Texas Declaration # is Texas. method are required to submit all AGENCY: U.S. Small Business (Catalog of Federal Domestic Assistance documents and exhibits required for Administration. Number 59008) Form 1244. All CDCs must submit the ACTION: Notice. Form 2450. Jovita Carranza, The burden estimates (based on the SUMMARY: This is a notice of an Administrator. experience of the CDCs and SBA field Administrative declaration of a disaster [FR Doc. 2020–12201 Filed 6–4–20; 8:45 am] offices) of the burden hours imposed by for the State of Texas dated 06/01/2020. BILLING CODE 8026–03–P
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SMALL BUSINESS ADMINISTRATION (Catalog of Federal Domestic Assistance Fax: 410–966–2830, Email address: Number 59008) [email protected] [Disaster Declaration #16423 and #16424; Cynthia Pitts, Or you may submit your comments Mississippi Disaster Number MS–00125] Acting Associate Administrator for Disaster online through www.regulations.gov, Assistance. referencing Docket ID Number [SSA– Presidential Declaration Amendment of 2020–0024]. a Major Disaster for Public Assistance [FR Doc. 2020–12198 Filed 6–4–20; 8:45 am] Only for the State of Mississippi BILLING CODE 8026–03–P The information collections below are pending at SSA. SSA will submit them AGENCY: U.S. Small Business to OMB within 60 days from the date of Administration. SOCIAL SECURITY ADMINISTRATION this notice. To be sure we consider your ACTION: Amendment 1. comments, we must receive them no [Docket No: SSA–2020–0024] later than August 4, 2020. Individuals SUMMARY: This is an amendment of the Agency Information Collection can obtain copies of the collection Presidential declaration of a major Activities: Proposed Request instruments by writing to the above disaster for Public Assistance Only for email address. the State of Mississippi (FEMA–4538– The Social Security Administration 1. Statement Regarding Marriage—20 DR), dated 04/23/2020. (SSA) publishes a list of information CFR 404.726—0960–0017. Section Incident: Severe Storms, Flooding, collection packages requiring clearance 216(h)(1)(A) of the Social Security Act and Mudslides. by the Office of Management and (Act) directs SSA to apply State law to Incident Period: 02/10/2020 through Budget (OMB) in compliance with determine an individual’s marital 02/18/2020. Public Law 104–13, the Paperwork relationship. Some state laws recognize DATES: Issued on 05/29/2020. Reduction Act of 1995, effective October marriages without a ceremony (i.e., Physical Loan Application Deadline 1, 1995. This notice includes revisions common-law marriages). In such cases, Date: 06/22/2020. of OMB-approved information SSA provides the same spouse or Economic Injury (EIDL) Loan collections. widow(er) benefits to the common-law Application Deadline Date: 01/25/2021. SSA is soliciting comments on the spouses as it does to ceremonially ADDRESSES: Submit completed loan accuracy of the agency’s burden married spouses. To determine applications to: U.S. Small Business estimate; the need for the information; common-law spouses, SSA must elicit Administration, Processing and its practical utility; ways to enhance its information from blood relatives or Disbursement Center, 14925 Kingsport quality, utility, and clarity; and ways to other persons who are knowledgeable Road, Fort Worth, TX 76155. minimize burden on respondents, about the alleged common-law including the use of automated relationship. SSA uses Form SSA–753, FOR FURTHER INFORMATION CONTACT: A. collection techniques or other forms of Statement Regarding Marriage, to collect Escobar, Office of Disaster Assistance, information technology. Mail, email, or information from third parties to verify U.S. Small Business Administration, fax your comments and the applicant’s statements about intent; 409 3rd Street SW, Suite 6050, recommendations on the information cohabitation; and holding out to the Washington, DC 20416, (202) 205–6734. collection(s) to the OMB Desk Officer public as married, which are the basic SUPPLEMENTARY INFORMATION: The notice and SSA Reports Clearance Officer at tenets of a common-law marriage. SSA of the President’s major disaster the following addresses or fax numbers. uses the information to determine if a declaration for Private Non-Profit (OMB) Office of Management and valid marital relationship exists, and if organizations in the State of Mississippi, Budget, Attn: Desk Officer for SSA, the common-law spouse is entitled to dated 04/23/2020, is hereby amended to Fax: 202–395–6974, Email address: Social Security spouse, or widow(er) include the following areas as adversely [email protected] benefits. The respondents are third affected by the disaster. (SSA) Social Security Administration, parties who can confirm or deny the Primary Counties: Wilkinson OLCA, Attn: Reports Clearance alleged common-law marriage. All other information in the original Director, 3100 West High Rise, 6401 Type of Request: Revision of an OMB- declaration remains unchanged. Security Blvd., Baltimore, MD 21235, approved information collection.
Average Average Estimated theoretical Average Total annual Modality of completion Number of Frequency burden per total annual hourly cost wait time in opportunity respondents of response response burden amount field office cost (minutes) (hours) (dollars) * (minutes) ** (dollars) ***
SSA–753 ...... 40,000 1 9 6,000 $25.72* 24** $565,840*** * We based this figures on average U.S. citizen’s hourly salary, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/ current/oes_stru.htm). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.
2. Statement of Agricultural Employer incorrect wage amounts, SSA will assist respondents are agricultural employers (Year Prior to 1988; and 1988 and them in resolving this issue. whose workers request wage verification later)—20 CFR 404.702, 404.802, Specifically, SSA will send Form SSA– or correction for their earnings records. 404.1056—0960–0036. If agricultural 1002 or Form SSA–1003 to the Type of Request: Revision of an OMB- workers believe their employers (1) did agricultural employers to collect approved information collection. not report their wages, or (2) reported evidence of wages paid. The
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Average Average Estimated theoretical Average Total annual Modality of completion Number of Frequency burden per total annual hourly cost wait time in opportunity respondents of response response burden amount field office cost (minutes) (hours) (dollars) * (minutes) ** (dollars) ***
SSA–1002 ...... 7,500 1 30 3,750 *$12.52 **24 ***$84,510 SSA–1003 ...... 25,000 1 30 12,500 *12.52 **24 ***219,100
Total ...... 32,500 ...... 16,250 ...... *** 303,610 * We based this figures on average Agricultural Workers hourly salary, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/ current/oes_nat.htm). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.
3. Questionnaire About Employment and (3) the number of months, if any, for retirement age who engage in non- or Self-Employment Outside the United SSA-imposed deductions. SSA covered remunerative activity for more States—20 CFR 404.401(b)(1), 404.415, determines whether the annual earnings than 45 hours in a calendar month. SSA & 404.417—0960–0050. When a Social test applies to all earnings from work asks beneficiaries working outside the Security beneficiary or claimant reports covered by the Act, including earnings U.S. to complete this form annually or work outside the U.S., SSA uses Form from covered work performed outside every other year (depending on the SSA–7163 to determine if foreign work the U.S. However, because of the country of residence). Respondents are deductions are applicable. Specifically, differences in foreign currency values, it beneficiaries or claimants for Social SSA uses Form SSA–7163 to determine: is administratively impractical to apply Security benefits who are engaged in (1) Whether work performed by this test to earnings from non-covered work outside the United States. beneficiaries outside the U.S. is cause work performed outside the U.S. and for deductions from their monthly base it on U.S. dollars. So, the 45-hour Type of Request: Revision of an OMB- benefits; (2) which of two work tests work test provides for deductions from approved information collection. (foreign or regular test) is applicable; the benefits of employees under full
Average Average Estimated theoretical Average Total annual Modality of completion Number of Frequency burden per total annual hourly cost wait time in opportunity respondents of response response burden amount field office cost (minutes) (hours) (dollars) * (minutes) ** (dollars) ***
SSA–7163 ...... 20,000 1 60 20,000 $10.22* 24** $286,160*** * We based these figures on average DI hourly wages based on SSA’s current FY 2019 data (https://www.ssa.gov/legislation/ 2019%20Fact%20Sheet.pdf). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.
4. Internet Representative Payee recipient. The representative payee can necessary to make this assessment using Accounting, My Representative Payee be: (1) A family member; (2) a non- Form SSA–623, Representative Payee Accounting, Representative Payee family member who is a private citizen Report-Adult; Form SSA–6230, Report-Adult, Representative Payee and is acquainted with the beneficiary; Representative Payee Report-Child; Report-Child, and Representative Payee (3) an organization; (4) a state or local Form SSA–6234, Representative Payee Report-Organizational Representative government agency; or (5) a business. In Report-Organizational Representative Payees—20 CFR 404.2035, 404.2065, the capacity of representative payee, the Payees; and through the electronic 416.635, and 416.665—0960–0068. person or organization receives the SSA internet applications, internet When SSA determines it is not in an recipient’s payments directly and Representative Payee Accounting (iRPA) Old-Age, Survivors, and Disability manages these payments. As part of its & My Representative Payee Accounting Insurance (OASDI) or Supplemental stewardship mandate, SSA must ensure (MyRPA). The respondents are Security Income (SSI) recipient’s best the representative payees are properly representative payees of OASDI and SSI interest to receive Social Security using the payments they receive for the recipients. payments directly, the agency will recipients they represent. The agency Type of Request: Revision to an OMB- designate a representative payee for the annually collects the information approved information collection.
Average Average Estimated theoretical Average Total annual Modality of completion Number of Frequency burden per total annual hourly cost wait time in opportunity respondents of response response burden amount field office cost (minutes) (hours) (dollars) * (minutes) ** (dollars) ***
SSA–623 ...... 1,086,152 1 15 271,538 *$10.22 **24 *** $7,215,310 SSA–6230 ...... 97,196 1 15 24,299 *10.22 **24 ***645,669 SSA–6234 ...... 497,505 1 15 124,376 *10.22 **24 *** 3,304,923
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Average Average Estimated theoretical Average Total annual Modality of completion Number of Frequency burden per total annual hourly cost wait time in opportunity respondents of response response burden amount field office cost (minutes) (hours) (dollars) * (minutes) ** (dollars) ***
iRPA+ ...... 290,253 1 15 72,563 *10.22 ...... *** 741,594 myRPA+ ...... 70,021 1 15 17,505 *10.22 ...... *** 178,901
Totals ...... 2,041,127 ...... 510,281 ...... *** 12,086,397 + All forms (SSA–623, SSA–6230, & SSA–6234) can also be accessed via the internet platforms, iRPA and myRPA. * We based these figures on average DI hourly wages based on SSA’s current FY 2019 data (https://www.ssa.gov/legislation/ 2019%20Fact%20Sheet.pdf). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. ** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rath- er, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.
5. Student Reporting Form—20 CFR these beneficiaries to report events that benefits. SSA also uses the SSA–1383 404.352(b)(2), 404.367, 404.368, may cause a reduction, termination, or and SSA–1383–FC to calculate the 404.415, 404.434, & 422.135—0960— suspension of their benefits. SSA correct benefit amounts for student 0088. To qualify for Social Security collects such information on Forms beneficiaries. The respondents are Title II student benefits, student SSA–1383 and SSA–1383–FC to Social Security Title II student beneficiaries must be in full-time determine if the changes or events the beneficiaries. attendance status at an educational student beneficiaries report will affect Type of Request: Revision of an OMB- institution. In addition, SSA requires their continuing entitlement to SSA approved information collection.
Average Average Estimated theoretical Average Total annual Modality of completion Number of Frequency burden per total annual hourly cost wait time in opportunity respondents of response response burden amount field office cost (minutes) (hours) (dollars) * (minutes) ** (dollars) ***
SSA–1383 ...... 75,000 1 6 7,500 *$7.25 **24 ***$271,875 SSA–1383–FC ...... 805 1 6 81 *7.25 **24 ***2,922
Totals ...... 75,805 ...... 7,581 ...... *** 274,797 * We based this figure on the Federal minimum hourly wage, as reported by Bureau of Labor Statistics data (https://www.bls.gov/opub/reports/ minimum-wage/2019/home.htm). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.
6. Advanced Notice of Termination of requirements for student benefits. The respondents are student claimants or Child’s Benefits & Student’s Statement data we collect allows SSA to determine beneficiaries for Social Security Regarding School Attendance—20 CFR student entitlement, and assess whether benefits, their respective schools and, in 404.350–404.352, 404.367–404.368— to terminate benefits. SSA uses the some cases, their representative payees. 0960–0105. SSA collects information on SSA–1372–BK for domestic student Type of Request: Revision of an OMB- Forms SSA–1372–BK and SSA–1372– claimants and the SSA–1372–BK–FC for approved information collection. BK–FC to determine whether children student claimants living and attending of an insured worker meet the eligibility school outside the United States. The
Average Average Estimated theoretical Average Total annual Modality of completion Number of Frequency burden per total annual hourly cost wait time in opportunity respondents of response response burden amount field office cost (minutes) (hours) (dollars) * (minutes) ** (dollars) ***
Individuals/Households (SSA–1372–BK) ...... 233,179 1 8 31,091 *$7.50 **24 ***$932,723 State/Local/Tribal Gov- ernment (SSA–1372– BK) ...... 233,179 1 3 11,659 *47.54 **24 ***4,988,420 Individuals/Households (SSA–1372–BK–FC) 746 1 8 99 *7.50 **24 ***2,978 State/Local/Tribal Gov- ernment (SSA–1372– BK–FC) ...... 746 1 3 37 *47.54 **24 ***15,926
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Average Average Estimated theoretical Average Total annual Modality of completion Number of Frequency burden per total annual hourly cost wait time in opportunity respondents of response response burden amount field office cost (minutes) (hours) (dollars) * (minutes) ** (dollars) ***
Total ...... 467,850 ...... 42,886 ...... *** 5,940,047 * We based these figures on average DI hourly wages for single students based on SSA’s current FY 2019 data (https://www.ssa.gov/ legislation/2019%20Fact%20Sheet.pdf), and the BLS.gov data for School Worker’s hourly wages (https://www.bls.gov/oes/current/oes_nat.htm). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.
7. Modified Benefit Formula cannot show a difference in the benefit data they supply. SSA calculates the Questionnaire—0960–0395. SSA computed using the modified and benefits of applicants who do not collects information on Form SSA–150 regular formulas greater than one-half respond to this questionnaire using the to determine which formula to use in the amount of the pension received in full WEP reduction. SSA employees computing the Social Security benefit the first month an individual is entitled collect this information once from for someone who receives a pension to both the pension and the Social applicants at the time they file their from employment not covered by Social Security benefit. The SSA–150 collects claim. The respondents are applicants Security. The Windfall Elimination the information needed to make the for old-age and disability benefits. Provision (WEP) requires use of a necessary benefit computations. SSA benefit formula replacing a smaller requires the respondents to furnish the Type of Request: Revision of an OMB- percentage of a worker’s pre-retirement information on Form SSA–150 so we approved information collection. earnings. However, the resulting amount can calculate their benefits using the
Average Average Estimated theoretical Average Total annual Modality of completion Number of Frequency burden per total annual hourly cost wait time in opportunity respondents of response response burden amount field office cost (minutes) (hours) (dollars) * (minutes) ** (dollars) ***
SSA–150 ...... 21,540 1 8 2,872 $10.22* 24** $117,407 * We based this figure on average DI payments based on SSA’s current FY 2019 data (https://www.ssa.gov/legislation/ 2019%20Fact%20Sheet.pdf). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.
8. Employee Work Activity work after receiving payments, but are payments. The respondents are Questionnaire—20 CFR 404.1574(a)— unable to continue working, they submit employers of SSDI beneficiaries and SSI 0960–0483. Social Security Disability Form SSA–3033, Employee Work recipients who unsuccessfully Insurance (SSDI) beneficiaries and SSI Activity Questionnaire, so SSA can attempted to return to work. recipients qualify for payments when a evaluate their work attempt. SSA also Type of Request: Revision of an OMB- verified physical or mental impairment uses this form to evaluate unsuccessful approved information collection. prevents them from working. If subsidy work and determine applicants’ disability claimants attempt to return to continuing eligibility for disability
Average Average Estimated theoretical Average Total annual Modality of completion Number of Frequency burden per total annual hourly cost wait time in opportunity respondents of response response burden amount field office cost (minutes) (hours) (dollars) * (minutes) ** (dollars) ***
SSA–3033 ...... 15,000 1 15 3,750 $59.15* 24** $576,712*** * We based this figure on average general and operations manager’s hourly salary, as reported by Bureau of Labor Statistics data (https:// www.bls.gov/oes/current/oes111021.htm). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.
9. Sheltered Workshop Wage or provide such workers with wages directly to SSA. SSA uses the Reporting—0960–0771. Sheltered remunerative employment, or other information these workshops provide to workshops are private non-profit occupational rehabilitating activity of an verify and post monthly wages to SSI organizations, or institutions, that educational or therapeutic nature. recipient’s records. Most workshops implement a recognized program of Sheltered workshops perform a service report monthly wage totals to their local rehabilitation for handicapped workers, for their clients by reporting monthly SSA office so we can adjust the client’s
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SSI payment amount in a timely report wages voluntarily as a service to workshops that report monthly wages manner, and prevent overpayments. their clients. Respondents are sheltered for services performed in the workshop. Sheltered workshops are motivated to
Average Average Estimated theoretical Average Total annual Modality of completion Number of Frequency burden per total annual hourly cost wait time in opportunity respondents of response response burden amount field office cost (minutes) (hours) (dollars) * (minutes) ** (dollars) ***
Sheltered Workshop Wage Reporting...... 800 12 9,600 15 2,400 $19.31* 24** ** We based this figure on average Rehabilitation Counselors hourly salary, as reported by Bureau of Labor Statistics data (https:// www.bls.gov/oes/current/oes211015.htm). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.
Type of Request: Revision of an OMB- states that it will obtain prior to the According to MGRC, this action is approved information collection. assignment. categorically excluded from Dated: June 1, 2020. This transaction is related to a environmental review under 49 CFR Naomi Sipple, concurrently filed verified notice of 1105.6(c) and from historic preservation exemption in Trans Rail Holding Co.— reporting requirements under 49 CFR Reports Clearance Officer, Social Security Administration. Continuance of Control Exemption— 1105.8(b)(1). Merrimack & Grafton Railroad, Docket Board decisions and notices are [FR Doc. 2020–12147 Filed 6–4–20; 8:45 am] No. FD 36403, in which TRHC seeks to available at www.stb.gov. BILLING CODE 4191–02–P continue in control of MGRC upon Decided: June 2, 2020. MGRC’s becoming a Class III rail carrier. By the Board, Allison C. Davis, Director, MGRC certifies that the transaction Office of Proceedings. SURFACE TRANSPORTATION BOARD does not involve any provision in any Brendetta Jones, agreement that would limit future Clearance Clerk. [Docket No. FD 36405] interchange with a third-party [FR Doc. 2020–12228 Filed 6–4–20; 8:45 am] connecting carrier. MGRC certifies that Merrimack & Grafton Railroad BILLING CODE 4915–01–P its projected annual revenues as a result Corporation—Change of Operators of this transaction will not result in its Exemption—Line of New England becoming a Class II or Class I rail carrier Southern Railroad Co. SURFACE TRANSPORTATION BOARD and further certifies that its projected Merrimack & Grafton Railroad annual revenues will not exceed $5 [Docket No. AB 55 (Sub-No. 800X)] million. Under 49 CFR 1150.32(b), a Corporation (MGRC), a noncarrier, has CSX Transportation, Inc.— filed a verified notice of exemption change in operator requires that notice be given to shippers. MGRC certifies Discontinuance of Service under 49 CFR 1150.31 to replace New Exemption—in Will County, Ill. England Southern Railroad Co. (NESR) that notice of the change in operator was as the operator of an approximately 73- provided to the shippers on the Line. CSX Transportation, Inc. (CSXT) has mile railroad line (the Line) owned by The transaction may be consummated filed a verified notice of exemption the State of New Hampshire. According on or after June 20, 2020, the effective under 49 CFR part 1152 subpart F— to MGRC, the Line extends from date of the exemption (30 days after the Exempt Abandonments and milepost P 21.30 at Lincoln, N.H., to verified notice was filed). Discontinuances of Service to milepost C 0.58 at Concord, N.H., where If the verified notice contains false or discontinue service over an the Line connects with tracks owned by misleading information, the exemption approximately 1.08-mile rail line on its Pan Am Railways. is void ab initio. Petitions to revoke the Chicago Division, New Rock MGRC states that it is a wholly owned exemption under 49 U.S.C. 10502(d) Subdivision, from Val Station 23+10 to subsidiary of Trans Rail Holding may be filed at any time. The filing of Val Station 97+55, in Will County, Ill. Company (TRHC) and was formed for a petition to revoke will not (the Line). The Line traverses U.S. the purpose of becoming the new automatically stay the effectiveness of Postal Service Zip Code 60436. operator of the Line. According to the exemption. Petitions to stay must be CSXT has certified that: (1) No local MGRC, NESR currently provides filed no later than June 12, 2020 (at least traffic has moved over the Line for at common carrier rail operations over the seven days before the exemption least two years; (2) any overhead traffic Line pursuant to an Operating becomes effective). can be rerouted over other lines; (3) no Agreement between NESR and the New All pleadings, referring to Docket No. formal complaint filed by a user of rail Hampshire Department of FD 36405, must be filed with the service on the Line (or a state or local Transportation (NHDOT). According to Surface Transportation Board either via government entity acting on behalf of MGRC, on April 30, 2020, TRHC entered e-filing or in writing addressed to 395 E such user) regarding cessation of service into an agreement to purchase some of Street SW, Washington, DC 20423–0001. over the Line either is pending with the the business assets of NESR. As part of In addition, a copy of each pleading Surface Transportation Board or any that agreement, NESR will assign all of must be served on MGRC’s U.S. District Court or has been decided its rights and obligations under the representative, Thomas W. Wilcox, GKG in favor of a complainant within the Operating Agreement to MGRC, subject Law, P.C., 1055 Thomas Jefferson Street two-year period; and (4) the to NHDOT’s approval, which MGRC NW, Suite 500, Washington, DC 20007. requirements at 49 CFR 1105.12
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(newspaper publication) and 49 CFR By the Board, Allison C. Davis, Director, SUPPLEMENTARY INFORMATION: The 1152.50(d)(1) (notice to governmental Office of Proceedings. RSAM figure is one of three benchmarks agencies) have been met. Eden Besera, that together are used to determine the As a condition to this exemption, any Clearance Clerk. reasonableness of a challenged rate employee adversely affected by the [FR Doc. 2020–12112 Filed 6–4–20; 8:45 am] under the Board’s Simplified Standards discontinuance of service shall be BILLING CODE 4915–01–P for Rail Rate Cases, EP 646 (Sub-No. 1), protected under Oregon Short Line slip op. at 10 (STB served Sept. 5, Railroad—Abandonment Portion 2007),1 as further revised in Simplified Goshen Branch Between Firth & SURFACE TRANSPORTATION BOARD Standards for Rail Rate Cases—Taxes in Ammon, in Bingham & Bonneville [Docket No. EP 682 (Sub-No. 11)] Revenue Shortfall Allocation Method, Counties, Idaho, 360 I.C.C. 91 (1979). To EP 646 (Sub-No. 2) (STB served Nov. 21, address whether this condition 2019 Tax Information for Use in the 2008). RSAM is intended to measure the adequately protects affected employees, Revenue Shortfall Allocation Method average markup that the railroad would a petition for partial revocation under need to collect from all of its AGENCY: Surface Transportation Board. 49 U.S.C. 10502(d) must be filed. ‘‘potentially captive traffic’’ (traffic with Provided no formal expression of ACTION: Notice. a revenue-to-variable-cost ratio above intent to file an offer of financial SUMMARY: The Board is publishing, and 180%) to earn adequate revenues as assistance (OFA) 1 to subsidize providing the public an opportunity to measured by the Board under 49 U.S.C. continued rail service has been comment on, the 2019 weighted average 10704(a)(2) (i.e., earn a return on received, this exemption will be state tax rates for each Class I railroad, investment equal to the railroad effective on July 5, 2020, unless stayed as calculated by the Association of industry cost of capital). Simplified pending reconsideration.2 Petitions to American Railroads (AAR), for use in Standards—Taxes in RSAM, slip op. at stay that do not involve environmental the Revenue Shortfall Allocation 1. In Simplified Standards—Taxes in issues and formal expressions of intent Method (RSAM). RSAM, slip op. at 3, 5, the Board to file an OFA to subsidize continued DATES: Comments are due by July 6, modified its RSAM formula to account 3 rail service under 49 CFR 1152.27(c)(2) 2020. If any comments opposing AAR’s for taxes, as the prior formula 4 must be filed by June 15, 2020. calculation are filed, AAR’s reply will mistakenly compared pre-tax and after- Petitions for reconsideration must be be due by July 27, 2020. If no comments tax revenues. In that decision, the Board filed by June 25, 2020, with the Surface are filed by July 6, 2020, AAR’s stated that it would institute a separate Transportation Board, 395 E Street SW, calculation of the 2019 weighted proceeding in which Class I railroads Washington, DC 20423–0001. average state tax rates will be would be required to submit the annual A copy of any petition filed with automatically adopted by the Board, tax information necessary for the Board should be sent to CSXT’s effective July 7, 2020. Board’s annual RSAM calculation. Id. at representative, Louis E. Gitomer, Law ADDRESSES: Comments may be filed 5–6. Offices of Louis E. Gitomer, LLC, 600 with the Board either via e-filing or in Pursuant to 49 CFR 1135.2, AAR is Baltimore Avenue, Suite 301, Towson, writing addressed to: Surface required to annually calculate and MD 21204. Transportation Board, 395 E Street SW, submit to the Board the weighted If the verified notice contains false or Washington, DC 20423–0001. average state tax rate for each Class I misleading information, the exemption FOR FURTHER INFORMATION CONTACT: railroad for the previous year. On May is void ab initio. Jonathon Binet at (202) 245–0368. 28, 2020, AAR filed its calculation of Board decisions and notices are Assistance for the hearing impaired is the weighted average state tax rates for available at www.stb.gov. available through the Federal Relay 2019, listed below for each Class I Decided: May 29, 2020. Service at (800) 877–8339. railroad:
WEIGHTED AVERAGE STATE TAX RATES
2019 2018 Railroad (%) (%) % Change
BNSF Railway Company ...... 5.234 5.312 ¥0.078 CSX Transportation, Inc ...... 5.097 5.238 ¥0.141 Grand Trunk Corporation ...... 8.129 8.130 ¥0.001 The Kansas City Southern Railway Company ...... 5.711 5.422 0.289 Norfolk Southern Combined Railroad Subsidiaries ...... 5.697 5.753 ¥0.056 Soo Line Corporation ...... 8.181 8.193 ¥0.012 Union Pacific Railroad Company ...... 5.714 5.726 ¥0.012
Any party wishing to comment on comment by July 6, 2020. See 49 CFR reply will be due by July 27, 2020. Id. AAR’s calculation of the 2019 weighted 1135.2(c). If any comments opposing If any comments are filed, the Board average state tax rates should file a AAR’s calculations are filed, AAR’s will review AAR’s submission, together
1 Persons interested in submitting an OFA to 2 CSXT states that it intends to consummate the Because there will be an environmental review subsidize continued rail service must first file a discontinuance of the Line on July 7, 2020. during abandonment, this discontinuance does not formal expression of intent to file an offer, 3 The filing fee for OFAs can be found at 49 CFR require environmental review. indicating the intent to file an OFA for subsidy and 1002.2(f)(25). 1 Aff’d sub nom. CSX Transp., Inc. v. STB, 568 demonstrating that they are preliminarily 4 Because this is a discontinuance proceeding and F.3d 236 (D.C. Cir. 2009), vacated in part on reh’g, financially responsible. See 49 CFR 1152.27(c)(2)(i). not an abandonment, interim trail use/rail banking CSX Transp., Inc. v. STB, 584 F.3d 1076 (D.C. Cir. and public use conditions are not appropriate. 2009).
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with the comments, and serve a effective date of the exemption (30 days investigations with respect to Digital decision within 60 days of the close of after the verified notice was filed). Services Taxes (DSTs) adopted or under the record that either accepts, rejects, or Under 49 U.S.C. 10502(g), the Board consideration by Austria, Brazil, the modifies AAR’s railroad-specific tax may not use its exemption authority to Czech Republic, the European Union, information. Id. If no comments are filed relieve a rail carrier of its statutory India, Indonesia, Italy, Spain, Turkey, by July 6, 2020, AAR’s submitted obligation to protect the interests of its and the United Kingdom. The Office of weighted average state tax rates will be employees. However, 49 U.S.C. 11326(c) the United States Trade Representative automatically adopted by the Board, does not provide for labor protection for (USTR) is seeking public comments in effective July 7, 2020. Id. transactions under 49 U.S.C. 11324 and connection with these investigations. Decided: June 1, 2020. 11325 that involve only Class III rail DATES: To be assured of consideration, carriers. Because this transaction By the Board, Allison C. Davis, Director, you must submit written comments by Office of Proceedings. involves Class III rail carriers only, the July 15, 2020. Board, under the statute, may not Kenyatta Clay, ADDRESSES: You should submit written impose labor protective conditions for comments through the Federal Clearance Clerk. this transaction. [FR Doc. 2020–12107 Filed 6–4–20; 8:45 am] eRulemaking Portal: http:// If the verified notice contains false or www.regulations.gov (Regulations.gov). BILLING CODE 4915–01–P misleading information, the exemption Follow the instructions for submitting is void ab initio. Petitions to revoke the comments in section IV. The docket exemption under 49 U.S.C. 10502(d) SURFACE TRANSPORTATION BOARD number is USTR–2020–0022. For issues may be filed at any time. The filing of with on-line submissions, please contact [Docket No. FD 36403] a petition to revoke will not the USTR Section 301 line at 202–395– automatically stay the effectiveness of 5725. Trans Rail Holding Company— the exemption. Petitions to stay must be FOR FURTHER INFORMATION CONTACT: For Continuance of Control Exemption— filed no later than June 12, 2020 (at least procedural questions concerning the Merrimack & Grafton Railroad seven days before the exemption submission of written comments, please Corporation becomes effective). All pleadings, referring to Docket No. contact the USTR Section 301 line at Trans Rail Holding Company (TRHC), FD 36403, must be filed with the 202–395–5725. a noncarrier railroad holding company, For questions concerning the Surface Transportation Board either via has filed a verified notice of exemption investigation, please contact Patrick e-filing or in writing addressed to 395 E under 49 CFR 1180.2(d)(2) to continue Childress, Assistant General Counsel, Street SW, Washington, DC 20423–0001. in control of Merrimack & Grafton 202–395–3150; or Robert Tanner, In addition, a copy of each pleading Railroad Corporation (MGRC), upon Director for ICT Services & Digital must be served on TRHC’s MGRC’s becoming a Class III rail carrier. Trade, 202–395–6125. This transaction is related to a representative, Thomas W. Wilcox, GKG For questions regarding specific concurrently filed verified notice of Law, P.C., 1055 Thomas Jefferson Street jurisdictions covered by the exemption in Merrimack & Grafton NW, Suite 500, Washington, DC 20007. investigations, please contact: For the According to the verified notice, this Railroad—Change of Operators EU, EU member States, Turkey, and the action is categorically excluded from Exemption—Line of New England United Kingdom: Michael Rogers, environmental review under 49 CFR Southern Railroad, Docket No. FD Director for Europe, 202–395–2684; for 1105.6(c) and from historic preservation 36405. In that proceeding, MGRC seeks Brazil, Courtney Smothers, Senior reporting requirements under 49 CFR an exemption under 49 CFR 1150.31 to Director for MERCOSUR Countries, 1105.8(b)(1). operate over approximately 73 miles of 202–395–7657; for India, Brendan Board decisions and notices are rail line in New Hampshire (the Line). Lynch, Deputy Assistant U.S. Trade available at www.stb.gov. According to the verified notice, Representative, South and Central Asian TRHC currently controls five Class III Decided: June 2, 2020. Affairs, 202–395–2851; and for railroads through ownership of their By the Board, Allison C. Davis, Director, Indonesia, Bart Thanhauser, Director for controlling stock: (1) Vermont Railway, Office of Proceedings. Southeast Asia and the Pacific, 202– Inc.; (2) the Clarendon and Pittsford Brendetta Jones, 395–4088. Railroad Company; (3) Washington Clearance Clerk. SUPPLEMENTARY INFORMATION: County Railroad Company; (4) the New [FR Doc. 2020–12229 Filed 6–4–20; 8:45 am] I. Digital Services Taxes York & Ogdensburg Railway Company, BILLING CODE 4915–01–P Inc.; and (5) Green Mountain Railroad Over the past two years, various Corporation. jurisdictions have taken under The verified notice states that: (1) The OFFICE OF THE UNITED STATES consideration or adopted taxes on Line does not connect with any of the TRADE REPRESENTATIVE revenues that certain companies tracks of the other five railroads generate from providing certain digital controlled by TRHC; (2) the transaction [Docket No. USTR–2020–0022] services to, or aimed at, users in those is not part of a series of anticipated jurisdictions. They are referred to as Initiation of Section 301 Investigations transactions that would connect the Digital Services Taxes or DSTs. of Digital Services Taxes Line to any of the tracks of the other Available evidence suggests the DSTs railroads; and (3) neither MGRC nor any AGENCY: Office of the United States are expected to target large, U.S.-based of the carriers controlled by TRHC are Trade Representative. tech companies. These jurisdictions Class I rail carriers. The proposed ACTION: Notice of initiation of include: transaction is therefore exempt from the investigations, and request for Austria: In October 2019, Austria prior approval requirements of 49 U.S.C. comments. adopted a DST that applies a 5% tax to 11323. See 49 CFR 1180.2(d)(2). revenues from online advertising The earliest this transaction may be SUMMARY: The U.S. Trade services. The law went into force on consummated is June 20, 2020, the Representative is initiating January 1, 2020. The tax applies only to
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companies with at least Ö750 million in services and Ö3 million in in-country consultations with the governments of annual global revenues for all services revenues for covered digital services. these jurisdictions. and Ö25 million in in-country revenues Turkey: Turkey has adopted a DST. Pursuant to section 304 of the Trade for covered digital services. The measure applies a 7.5% tax to Act, the U.S. Trade Representative must Brazil: Brazil is considering a revenues from targeted advertising, determine whether the act, policy, or legislative proposal entitled the social media and digital interface practice under investigation is ‘‘Contribution for Intervention in the services. The tax applies only to actionable under Section 301. If that Economic Domain’’ or CIDE. If adopted, companies generating Ö750 million in determination is affirmative, the U.S. CIDE would apply to the gross revenue global revenues from covered digital Trade Representative must determine derived from digital services provided services and TL20 million in in-country what action to take. by large technology companies. revenues from covered digital services. The investigation initially will focus The Czech Republic: The Parliament The Turkish President has authority to on the following concerns with DSTs: of the Czech Republic is considering a increase the tax rate up to 15%. The law Discrimination against U.S. companies; draft law that would apply a 7% DST to went into effect on March 1, 2020. retroactivity; and possibly unreasonable revenues from targeted advertising and The United Kingdom: The United tax policy. With respect to tax policy, digital interface services. The tax would Kingdom is considering a DST proposal the DSTs may diverge from norms apply only to companies generating as part of its Finance Bill 2020. The reflected in the U.S. tax system and the Ö750 million in annual global revenues measure would apply a 2% tax on international tax system in several for all services and CZK 50 million in revenues above £25 million to internet respects. These departures may include: in-country revenues for covered digital search engines, social media, and online Extraterritoriality; taxing revenue not services. marketplaces. The tax applies only to income; and a purpose of penalizing The European Union: The European companies generating at least £500 particular technology companies for Commission is considering a DST as million in global revenues from covered their commercial success. part of the financing package for its digital services and £25 million in in- In addition to these areas of concern proposed COVID–19 recovery plan. The country revenues from covered digital with DSTs, USTR invites comments on EU DST is based on a 2018 DST services. The bill is in the final stages other aspects that may warrant a finding proposal that was not adopted. The of adoption by Parliament, and if that one or more of the covered DSTs 2018 EU proposal included a 3% tax on passed, payments would be due from are actionable under Section 301. revenues from targeted advertising and affected companies in 2021. III. Request for Public Comments digital interface services, and would II. Initiation of Section 301 have applied only to companies You may submit written comments on Investigations generating at least Ö750 million in any issue covered by the investigations. global revenues from covered digital Section 302(b)(1)(A) of the Trade Act In particular, USTR invites comments services and at least Ö50 million in EU- of 1974, as amended (Trade Act), with respect to: • Concerns with one or more of the wide revenues for covered digital authorizes the U.S. Trade DSTs adopted or under consideration by services. Representative to initiate an the jurisdictions covered in these India: In March 2020, India adopted a investigation to determine whether an investigations. act, policy, or practice of a foreign 2% DST. The tax only applies only to • Whether one or more of the covered country is actionable under section 301 non-resident companies, and covers DSTs is unreasonable or discriminatory. online sales of goods and services to, or of the Trade Act. Actionable matters • The extent to which one or more of aimed at, persons in India. The tax under section 301 include, inter alia, the covered DSTs burdens or restricts applies only to companies with annual acts, polices, and practices of a foreign U.S. commerce. revenues in excess of approximately Rs. country that are unreasonable or • Whether one or more of the covered 20 million (approximately U.S. discriminatory and burden or restrict DSTs is inconsistent with obligations $267,000). The tax went into effect on U.S. commerce. An act, policy, or under the WTO Agreement or any other April 1, 2020. practice is unreasonable if the act, international agreement. Indonesia: Earlier this year, Indonesia policy, or practice, while not necessarily • The determinations required under adopted an electronic transaction tax in violation of, or inconsistent with, the section 304 of the Trade Act, including that targets cross-border, digital international legal rights of the United what action, if any, should be taken. transactions. Further implementing States, is otherwise unfair and In light of the uncertainties arising measures are required for the new tax to inequitable. from COVID–19 restrictions, USTR is go into effect. Pursuant to section 302(b)(1)(B), not at this time scheduling a public Italy: Italy has adopted a DST. The USTR has consulted with appropriate hearing in these investigations. USTR measure includes a 3% tax on revenues advisory committees. USTR also has will provide further information in a from targeted advertising and digital consulted with agencies on the Section subsequent notice if a hearing is to be interface services. This tax applies only 301 Committee. held in these investigations. to companies generating at least Ö750 In light of concerns with the DSTs million in global revenues for all adopted or under consideration by the IV. Procedures for Written Submissions services and Ö5.5 million in in-country jurisdictions discussed above, the U.S. All submissions must be in English revenues for covered digital services. Trade Representative has initiated and sent electronically via The tax applies as of January 1, 2020. Section 301 investigations with respect Regulations.gov. To submit comments Spain: Spain is considering a draft to DSTs adopted or under consideration via Regulations.gov, enter docket DST. The measure would apply a 3% by Austria, Brazil, the Czech Republic, number USTR–2020–0022. Find a tax to revenues from targeted the European Union, India, Indonesia, reference to this notice and click on the advertising and digital interface Italy, Spain, Turkey, and the United link entitled ‘comment now!’ For further services. This tax would apply only to Kingdom. Pursuant to section 303(a) of information on using the companies generating at least Ö750 the Trade Act, the U.S. Trade Regulations.gov website, please consult million in global revenues for all Representative has requested the resources provided on the website
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by clicking on ‘how to use docket number USTR–2020–0022 in the SUPPLEMENTARY INFORMATION: regulations.gov’ on the bottom of the search field on the home page. Public Comments Invited: You are www.regulations.gov home page. USTR Joseph Barloon, asked to comment on any aspect of this will not accept hand-delivered General Counsel, Office of the United States information collection, including (a) submissions. Trade Representative. Whether the proposed collection of The Regulations.gov website allows [FR Doc. 2020–12216 Filed 6–4–20; 8:45 am] information is necessary for FAA’s users to submit comments by filling in BILLING CODE 3290–F0–P performance; (b) the accuracy of the a ‘type comment’ field or by attaching estimated burden; (c) ways for FAA to a document using an ‘upload file’ field. enhance the quality, utility and clarity USTR prefers that you submit comments DEPARTMENT OF TRANSPORTATION of the information collection; and (d) in an attached document. If you attach ways that the burden could be a document, it is sufficient to type ‘see Federal Aviation Administration minimized without reducing the quality attached in the ‘type comment’ field. of the collected information. The agency [Docket No. FAA–2020–0563] USTR strongly prefers submissions in will summarize and/or include your Adobe Acrobat (.pdf). If you use an Agency Information Collection comments in the request for OMB’s application other than Adobe Acrobat or Activities: Requests for Comments; clearance of this information collection. Word (.doc), please indicate the name of Clearance of Renewed Approval of OMB Control Number: 2120–0737. the application in the ‘type comment’ Information Collection: Aircraft Noise Title: Aircraft Noise Certification field. Certification Documents for Documents for International Operations. File names should reflect the name of International Operations the person or entity submitting the Form Numbers: None. Reference: AGENCY: Federal Aviation ICAO Annex 16, Vol.1—Aircraft Noise, comments. Please do not attach separate Administration (FAA), DOT. cover letters to electronic submissions; Eighth edition (July 2017) Attachment G ACTION: Notice and request for rather, include any information that for format. comments. might appear in a cover letter in the Type of Review: Renewal of an comments themselves. Similarly, to the SUMMARY: In accordance with the information collection. extent possible, please include any Paperwork Reduction Act of 1995, FAA Background: On March 2, 2010, the exhibits, annexes, or other attachments invites public comments about our FAA published the final rule Notice No. in the same file as the comment itself, intention to request the Office of 91–312, Aircraft Noise Certification rather than submitting them as separate Management and Budget (OMB) Documents for International Operations files. approval to renew an information (75 FR 9327). It requires operators that For any comments submitted collection. The collection aids to make fly outside the United States, using electronically that contain business the aircraft noise certification aircraft subject to ICAO, Annex 16, confidential information (BCI), the file information easily accessible to the Volume 1, to carry aircraft noise name of the business confidential flight crew and presentable upon certification information on board the request to the appropriate foreign version should begin with the characters aircraft. This collection is needed to officials for international airline ‘BCI.’ You must clearly mark any page ensure consistent international operation of U.S. carriers. The containing BCI by including ‘BUSINESS compliance with the ICAO, Annex 16, information to be collected upholds the CONFIDENTIAL’ on the top of that page U.S. obligations under the Convention Volume 1, Amendment 8 that requires and clearly indicating, via brackets, on International Civil Aviation and for certain noise information be carried on highlighting, or other means, the which FAA policy comply with board the aircraft. This information specific information that is BCI. If you International Civil Aviation must be easily accessible to the flight request business confidential treatment, Organization (ICAO) Standards and crew and presentable upon request to you must certify in writing that Recommended Practices to the the appropriate foreign National disclosure of the information would maximum extent practicable. Thus the Aviation Authority (NAA) officials. The endanger trade secrets or profitability, FAA has adopted ICAO’s Standards and collection is mandatory based on U.S. and that the information would not Recommended Practices as US regulations and international standards. customarily be released to the public. regulations as a means of compliance Respondents: Operators of U.S. Filers of submissions containing BCI with Annex 16 and requires noise registered civil aircraft flying outside also must submit a public version of documentation be carried on board the United States. their comments. The file name of the aircraft that leave the United States. Frequency: 70 airplanes. public version should begin with the DATES: Written comments should be character ‘P.’ Follow the ‘BCI’ and ‘P’ submitted by August 4, 2020. Estimated Average Burden per with the name of the person or entity Response: 25 minutes (0.42 hours). ADDRESSES: Please send written submitting the comments. If these comments: Estimated Total Annual Burden: $25 procedures are not sufficient to protect By Electronic Docket: per airplane × 70 airplanes affected = BCI or otherwise protect business www.regulations.gov (Enter docket $1,750. interests, please contact the USTR number into search field). Issued in Washington, DC, on June 2, 2020. Section 301 line at 202–395–5725 to By mail: Sandy Liu, 800 Sandy Lium, discuss whether alternative Independence Ave. SW, Washington, arrangements are possible. DC 20591, Attn: AEE–100. Engineer, Noise Division, Office of USTR will post submissions in the By fax: 202–267–5594. Environment and Energy, Noise Division (AEE–100). docket for public inspection, except FOR FURTHER INFORMATION CONTACT: [FR Doc. 2020–12208 Filed 6–4–20; 8:45 am] BCI. You can view submissions on the Sandy R. Liu by email at: sandy.liu@ Regulations.gov website by entering faa.gov; phone: 202–267–4748. BILLING CODE 4910–13–P
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DEPARTMENT OF TRANSPORTATION soliciting comments on the following FOR FURTHER INFORMATION CONTACT: collection of information was published Ralph Rizzo, Division Administrator, Federal Aviation Administration on March 31, 2020 (85 FR 17941). 14 Federal Highway Administration, 300 [Docket No. FAA–2020–0303] CFR part 107 requires that a small Ala Moana Boulevard, Box 50206, unmanned aircraft accident be reported Honolulu, Hawaii 96850, Telephone: Agency Information Collection if it causes: (1) Serious injury to any (808) 541–2700. Activities: Requests for Comments; person or any loss of consciousness; or SUPPLEMENTARY INFORMATION: The Clearance of Renewed Approval of (2) damage to any property, other than FHWA, in cooperation with the State of Information Collection: Small the small unmanned aircraft, unless the Hawaii Department of Transportation Unmanned Aircraft Systems (sUAS) cost of repair or fair market value in the (HDOT), initiated an EIS. Improvements Accident Reporting event of total loss does not exceed $500. for this corridor were considered The information collected by the FAA necessary to accommodate the existing AGENCY: Federal Aviation through its DroneZone web portal, and projected traffic demands, and to Administration (FAA), DOT. Flight Standards District Offices, or one address safety and reliability. The ACTION: Notice and request for of the Regional Operations Centers or project area is composed predominantly comments. the Washington Operations Center for of a steep, rocky area known as the Pali each small UAS accident will be used area and a coastal plain. Due to the SUMMARY: In accordance with the to investigate and determine regulatory topography, the estimated project Paperwork Reduction Act of 1995, FAA compliance. In addition, the accident construction cost for any build invites public comments about our information will go into the FAA alternative would likely be substantial, intention to request the Office of aircraft accident database for safety and because of limited funding Management and Budget (OMB) analysis purposes by the FAA Office of availability, HDOT has decided not to approval to renew an information Accident Investigation and Analysis, proceed with the project. Therefore, the collection. The Federal Register Notice pursuant to its statutory safety mission. preparation of the EIS is being with a 60-day comment period soliciting As is currently the case for manned terminated. comments on the following collection of aircraft accidents, small UAS accident (Catalog of Federal Domestic Assistance information was published on March data will be made available to the public 31, 2020. The FAA requires that small Program Number 20.205, Highway Planning and the National Transportation Safety and Construction. The regulations unmanned aircraft accidents be reported Board (NTSB). implementing Executive Order 12372 to the FAA if they result in injury or Respondents: Approximately 35 per regarding intergovernmental consultation on damage exceeding certain thresholds. year. Federal programs and activities apply to this DATES: Written comments should be Frequency: On occasion. program.) submitted by July 6, 2020. Estimated Average Burden per Authority: 23 U.S.C. 139, 23 CFR 771, and ADDRESSES: Written comments and Response: 15 minutes. 40 CFR 1500–1508. recommendations for the proposed Estimated Total Annual Burden: 8.75 Issued on: May 29, 2020. information collection should be sent hours. Ralph Rizzo, within 30 days of publication of this Issued in Washington, DC, on June 1, 2020. Division Administrator, Honolulu, HI. notice to www.reginfo.gov/public/do/ Dwayne C. Morris, [FR Doc. 2020–12113 Filed 6–4–20; 8:45 am] PRAMain. Find this particular Project Manager, Flight Standards Service, BILLING CODE 4910–RY–P information collection by selecting General Aviation and Commercial Division. ‘‘Currently under 30-day Review—Open [FR Doc. 2020–12137 Filed 6–4–20; 8:45 am] for Public Comments’’ or by using the BILLING CODE 4910–13–P DEPARTMENT OF TRANSPORTATION search function. FOR FURTHER INFORMATION CONTACT: Federal Highway Administration Joseph K. Hemler, Jr., by email at: DEPARTMENT OF TRANSPORTATION [email protected]; phone: Rescinding the Notice of Intent To (202) 267–0159. Federal Highway Administration Prepare Environmental Impact Statement (EIS): Maui County, Hawaii SUPPLEMENTARY INFORMATION: Rescinding the Notice of Intent To Public Comments Invited: You are AGENCY: Prepare Environmental Impact Federal Highway asked to comment on any aspect of this Statement (EIS): Maui County, Hawaii Administration (FHWA), DOT. information collection, including (a) ACTION: Notice to rescind notice of Whether the proposed collection of AGENCY: Federal Highway intent (NOI) to prepare an information is necessary for FAA’s Administration (FHWA), DOT. environmental impact statement (EIS). performance; (b) the accuracy of the ACTION: Notice to rescind notice of SUMMARY: estimated burden; (c) ways for FAA to intent (NOI) to prepare an The FHWA is issuing this enhance the quality, utility and clarity environmental impact statement (EIS). notice to advise the public that the of the information collection; and (d) FHWA will not be preparing an EIS to ways that the burden could be SUMMARY: The FHWA is issuing this evaluate alternatives that would reduce minimized without reducing the quality notice to advise the public that it is congestion and improve safety and of the collected information. rescinding its NOI and will not be reliability of Hana Highway between the OMB Control Number: 2120–0767. preparing an EIS to evaluate alternatives intersection of Hana Highway with Title: Small Unmanned Aircraft that would improve the roadway Haleakala Highway and Maliko Gulch Systems (sUAS) Accident Reporting. capacity, safety, and reliability of on the north side of the Paia-Haiku Form Numbers: N/A (web portal: Honoapiilani Highway between Maalaea region, Maui County, Hawaii. An NOI to https://faadronezone.faa.gov). and Launiupoko on the west side of the prepare an EIS was published in the Type of Review: Renewal. island of Maui. A NOI to prepare an EIS Federal Register on November 17, 2009. Background: The Federal Register was published in the Federal Register FOR FURTHER INFORMATION CONTACT: Notice with a 60-day comment period on June 7, 2007. Ralph Rizzo, Division Administrator,
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Federal Highway Administration, 300 (ADOT), is issuing this notice to contacting ADOT at the addresses Ala Moana Boulevard, Box 50206, announce actions taken by ADOT and provided above. Project decision Honolulu, Hawaii 96850, Telephone: other relevant Federal agencies that are documents are also available online at: (808) 541–2700. final. The actions relate to the https://azdot.gov/node/15475. SUPPLEMENTARY INFORMATION: The Environmental Assessment (EA) and This notice applies to all ADOT and FHWA, in cooperation with the State of Finding of No Significant Impact other relevant Federal agency decisions Hawaii Department of Transportation (FONSI) for the proposed project as of the issuance date of this notice and (HDOT), initiated an EIS with an NOI Interstate 10 Broadway Curve, Interstate all laws under which such actions were published in the Federal Register on 17 (Split) to Loop 202 (Santan Freeway) taken, including but not limited to: November 17, 2009, at 67 FR 38310, to in Maricopa County, AZ. The actions 1. General: National Environmental prepare an EIS. grant licenses, permits, and approvals Policy Act (NEPA) [42 U.S.C. 4321– The EIS identified three build for the project. 4351]; Federal-Aid Highway Act [23 alternatives within the initial project DATES: By this notice, FHWA, on behalf U.S.C. 109]. limits which varied from 6.3 miles to of ADOT, is advising the public of final 2. Air: Clean Air Act [42 U.S.C. 7401– 6.9 miles in total length. An extensive agency actions subject to 23 U.S.C. 7671(q)]. Archaeological Inventory Survey (AIS) 139(l)(1). A claim seeking judicial 3. Land: Section 4(f) of the U.S. which covered 552 acres was conducted review of the Federal agency actions Department of Transportation Act of and resulted in the identification of 52 with authority on the highway project 1966 [49 U.S.C. 303]; Landscaping and newly identified possible historic will be barred unless the claim is filed Scenic Enhancement (Wildflowers) [23 properties and 11 previously identified on or before November 2, 2020. If the U.S.C. 319]. 4. Wildlife: Endangered Species Act historic properties within or in the Federal law that authorizes judicial [16 U.S.C. 1531–1544 and Section proximity of the study corridor. The AIS review of a claim provides a time period 1536], Marine Mammal Protection Act revealed that the three build alternatives of less than 150 days for filing such [16 U.S.C. 1361], Fish and Wildlife all would have impacts on claim, then that shorter time period still Coordination Act [16 U.S.C. 661– archaeological and historic resources applies. 667(d)], Migratory Bird Treaty Act [16 and a Section 4(f) use would likely FOR FURTHER INFORMATION CONTACT: Mr. occur. A shorter avoidance alternative U.S.C. 703–712]. Steven Olmsted, NEPA Assignment 5. Historic and Cultural Resources: approximately 2.5 miles in total length Manager, Environment Planning, Section 106 of the National Historic was identified, however public opinion Arizona Department of Transportation, Preservation Act of 1966, as amended favors a considerably longer alternative 1611 W Jackson, MD EM02, Phoenix, [16 U.S.C. 470(f) et seq.]; Archeological not within the current project area and Arizona 85007; telephone: (602) 712– Resources Protection Act of 1977 [16 above the limited funding resources 6421, fax: (602) 712–3066, email: U.S.C. 470(aa)–11]; Archeological and currently available. Therefore, HDOT [email protected]. The Arizona Historic Preservation Act [16 U.S.C. has decided not to pursue the project Department of Transportation normal 469–469(c)]; Native American Grave and the preparation of the EIS is being business hours are 8:00 a.m. to 4:30 p.m. Protection and Repatriation Act terminated. (Mountain Standard Time). (NAGPRA) [25 U.S.C. 3001–3013]. (Catalog of Federal Domestic Assistance You may also contact: Mr. Paul 6. Social and Economic: Civil Rights Program Number 20.205, Highway Planning O’Brien, Environmental Planning Act of 1964 [42 U.S.C. 2000(d)– and Construction. The regulations Administrator, Arizona Department of 2000(d)(1)]; American Indian Religious implementing Executive Order 12372 Transportation, 1611 W Jackson, MD Freedom Act [42 U.S.C. 1996]; Farmland regarding intergovernmental consultation on EM02, Phoenix, Arizona 85007; Protection Policy Act (FPPA) [7 U.S.C. Federal programs and activities apply to this telephone: (602) 712–8669, fax: (602) program.) 4201–4209]. 712–3066, email: [email protected]. 7. Wetlands and Water Resources: Authority: 23 U.S.C. 139, 23 CFR 771, and SUPPLEMENTARY INFORMATION: Effective Land and Water Conservation Fund 40 CFR 1500–1508. April 16, 2019, the FHWA assigned and (LWCF) [16 U.S.C. 4601–4604]; Safe Issued on: May 29, 2020. ADOT assumed environmental Drinking Water Act (SDWA) [42 U.S.C. Ralph Rizzo, responsibilities for this project pursuant 300(f)–300(j)(6)]; Rivers and Harbors Act Division Administrator Honolulu, HI. to 23 U.S.C. 327 and a Memorandum of of 1899 [33 U.S.C. 401–406]; Wild and [FR Doc. 2020–12119 Filed 6–4–20; 8:45 am] Understanding executed by FHWA and Scenic Rivers Act [16 U.S.C. 1271– BILLING CODE 4910–RY–P ADOT. 1287]; Emergency Wetlands Resources Notice is hereby given that ADOT and Act [16 U.S.C. 3921, 3931]; Flood other relevant Federal agencies have Disaster Protection Act [42 U.S.C. 4001– DEPARTMENT OF TRANSPORTATION taken final agency actions by issuing 4128]. licenses, permits, and approvals for the 8. Water: Clean Water Act 33 U.S.C. Federal Highway Administration following project in the State of 1251–1387. Arizona: Interstate 10 Broadway Curve: 9. Executive Orders: E.O. 11990 Notice of Final State Agency Actions Interstate 17 (Split) to Loop 202 (Santan Protection of Wetlands; E.O. 11988 Under 23 U.S.C. 327 on Interstate 10 Freeway) in Maricopa County, AZ. The Floodplain Management; E.O. 12898 Broadway Curve, Interstate 17 (Split) to actions by ADOT and other relevant Federal Actions to Address Loop 202 (Santan Freeway) in Federal agencies and the laws under Environmental Justice in Minority Maricopa County, AZ which such actions were taken, are Populations and Low Income AGENCY: Federal Highway described in the Draft EA approved on Populations; E.O. 11593 Protection and Administration (FHWA), Department of October 2, 2019, Final EA approved Enhancement of Cultural Resources; Transportation (DOT). within the Finding of No Significant E.O. 13007 Indian Sacred Sites; E.O. ACTION: Notice. Impact issued on April 27, 2020, and in 13287 Preserve America; E.O. 13175 other documents in the administrative Consultation and Coordination with SUMMARY: The FHWA, on behalf of the record. The FEA, FONSI, and other Indian Tribal Governments; E.O. 11514 Arizona Department of Transportation project records are available by Protection and Enhancement of
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Environmental Quality; E.O. 13112 feasible. Also, the County recently a.m. to 5 p.m. (Mountain Time Zone), Invasive Species. completed intersection improvements Monday through Friday, except State (Catalog of Federal Domestic Assistance on the existing highway that improved and Federal holidays. For USACE: Jason Program Number 20.205, Highway Planning congestion. Finally, the cost for the Gipson, Nevada/Utah Regulatory and Construction.) estimated right-of-way and construction Section Chief; USACE Bountiful Authority: 23 U.S.C. 139(l)(1). would likely be substantial because of Regulatory Field Office, 533 West 2600 limited funding availability. Therefore, South, Suite 150, Bountiful, UT 84010; Issued on: May 29, 2020. HDOT has decided not to proceed with (801) 295–8380 x8314; email: Karla S. Petty, the project and the preparation of the [email protected]. Arizona Division Administrator, Phoenix, EIS is being terminated. USACE’s normal business hours are 8 Arizona. (Catalog of Federal Domestic Assistance a.m. to 5 p.m. (Mountain Time Zone), [FR Doc. 2020–11999 Filed 6–4–20; 8:45 am] Program Number 20.205, Highway Planning Monday through Friday, except Federal BILLING CODE P and Construction. The regulations holidays. implementing Executive Order 12372 SUPPLEMENTARY INFORMATION: Effective regarding intergovernmental consultation on January 17, 2017, FHWA assigned to DEPARTMENT OF TRANSPORTATION Federal programs and activities apply to this UDOT certain responsibilities of FHWA program.) for environmental review, consultation, Federal Highway Administration (Authority: 23 U.S.C. 139, 23 CFR 771, and 40 CFR 1500–1508) and other actions required by applicable Rescinding the Notice of Intent To Federal environmental laws and Issued on: May 29, 2020. Prepare Environmental Impact regulations for highway projects in Statement: South Kohala, Hawaii Ralph Rizzo, Utah, pursuant to 23 U.S.C. 327. FHWA Division Administrator, Honolulu, HI. maintained responsibility to publish AGENCY: Federal Highway [FR Doc. 2020–12115 Filed 6–4–20; 8:45 am] documents proposed by UDOT to be Administration (FHWA), DOT. BILLING CODE 4910–RY–P published in the Federal Register, ACTION: Notice to rescind notice of including notices of final agency action intent (NOI) to prepare an under 23 U.S.C. 139(l)(1). FHWA also environmental impact statement (EIS). DEPARTMENT OF TRANSPORTATION maintained responsibility of the environmental review process of the SUMMARY: The FHWA is issuing this Federal Highway Administration West Davis Corridor project until its notice to advise the public that the issuance of a Record of Decision (FHWA FHWA is rescinding its NOI and will Notice of Final Federal Agency Actions on Proposed Highway in Utah ROD), which occurred on September 29, not be preparing an EIS to evaluate 2017. Since that time UDOT has been alternatives to realign and/or widen an AGENCY: Utah Department of responsible for conducting any existing highway in South Kohala in the Transportation (UDOT), Federal additional environmental reviews that County of Hawaii. An NOI to prepare an Highway Administration (FHWA), are required for the West Davis Corridor EIS was published in the Federal Department of Transportation. project. On behalf of UDOT, notice is Register on November 29, 2002. ACTION: Notice of limitations on claims hereby given that the USACE has taken FOR FURTHER INFORMATION CONTACT: for judicial review of actions by the U.S. final agency actions subject to 23 U.S.C. Ralph Rizzo, Division Administrator, Army Corps of Engineers. § 139(l)(1) by issuing licenses, permits, Federal Highway Administration, 300 and approvals for the West Davis Ala Moana Boulevard, Box 50206, SUMMARY: The FHWA, on behalf of Corridor project in the State of Utah. Honolulu, Hawaii 96850, Telephone: UDOT, is issuing this notice to The West Davis Corridor project is a (808) 541–2700. announce actions taken by the U.S. proposed highway approximately 19 SUPPLEMENTARY INFORMATION: The Army Corps of Engineers (USACE) that miles long and would be a four-lane FHWA, in cooperation with the State of are final Federal agency actions. The divided highway with an average right- Hawaii Department of Transportation final agency actions relate to a proposed of-way width of 250 feet from I–15 in (HDOT), initiated an EIS with an NOI highway project, the West Davis Farmington to Antelope Drive in Davis published in the Federal Register on Corridor project in Davis County, Utah. County, Utah. From Antelope Drive to November 29, 2002, at 67 FR 71231, to Those actions grant licenses, permits 1800 North in West Point the project prepare an EIS. and/or approvals for the project. would be a 146-foot-wide, limited- The study area begins near the DATES: By this notice, FHWA, on behalf access two-lane highway. intersection of Mud Lane and the of UDOT, is advising the public of final A Final Environmental Impact Hawaii Belt Road (State Route 19) and agency actions subject to 23 U.S.C. Statement and Section 4(f) Evaluation terminates along Mamalahoa Highway 139(l)(1). A claim seeking judicial for the West Davis Corridor project (State Route 190) near the Waimea- review of these Federal agency actions (FEIS) was approved by FHWA on June Kohala Airport. The study also included on the highway project will be barred 23, 2017, and the FHWA ROD for the a 1.7 mile spur to connect with Lindsey unless the claim is filed on or before project was issued on September 29, Road. Improvements were considered November 2, 2020. If the Federal law 2017. The FEIS, FHWA ROD, and other necessary to improve highway safety that authorizes judicial review of a project records are available by and reduce congestion, while preserving claim provides a time period of less contacting UDOT at the address the character and ambience of the than 150 days for filing such claim, then provided above. The FEIS and FHWA historic Waimea village. The Project that shorter time period still applies. ROD can also be viewed and would impact a sizable number of FOR FURTHER INFORMATION CONTACT: For downloaded from the project website at historic and archaeological resources UDOT: Randy Jefferies, Project Manager, https://westdavis.udot.utah.gov/final- due to the sheer number of UDOT Region 1, 166 W Southwell eis-and-rod/. FHWA published a notice archaeological sites identified during Street, Ogden, UT 84404; (801) 791– of final federal agency action under 23 the survey. Avoidance of all these sites 1059; email: [email protected]. U.S.C. 139(1)(l) for the FEIS, FHWA would be difficult and may not be UDOT’s normal business hours are 8 ROD and all other then-final federal
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agency actions for the project on Populations and Low-Income dates stated in the discussions below October 6, 2017, and the 150-day period Populations; E.O. 11593 Protection and and will expire on the dates stated in for filing a claim for judicial review of Enhancement of Cultural Resources; the discussions below. Comments must those actions expired on March 5, 2018. E.O. 13175 Consultation and be received on or before July 6, 2020. This notice applies to USACE’s Coordination with Indian Tribal ADDRESSES: You may submit comments approval of a permit under Section 404 Governments; E.O. 11514 Protection and identified by the Federal Docket of the Clean Water Act and a Record of Enhancement of Environmental Quality; Management System (FDMS) Docket No. Decision under the National E.O. 13112 Invasive Species. FMCSA–2013–0445 or Docket No. Environmental Policy Act and Section This notice does not reopen or extend FMCSA–2018–0052 using any of the 404 of the Clean Water Act issued for the 150-day period for filing a claim for following methods: the West Davis Corridor project. The judicial review of any federal agency or • Federal eRulemaking Portal: Go to USACE Record of Decision was issued UDOT action on the West Davis http://www.regulations.gov/ on May 14, 2020 and the USACE Corridor project for which a notice of docket?D=FMCSA-2018-0052 or http:// Section 404 permit was issued on May agency action has been previously www.regulations.gov/docket?D=FMCSA- 15, 2020 (SPK–2007–01985). As published under 23 U.S.C. 139(l)(1), 2013-0445. Follow the online described in the USACE Record of including any action relied upon by the instructions for submitting comments. Decision and permit, in the USACE in approving the Section 404 • Mail: Docket Operations; U.S. approximately 17.5 miles of the project permit or Record of Decision. Department of Transportation, 1200 covered by the permit, between I–15 in (Catalog of Federal Domestic Assistance New Jersey Avenue SE, West Building Farmington and 300 North in West Program Number 20.205, Highway Planning Ground Floor, Room W12–140, Point, there will be a discharge of and Construction. The regulations Washington, DC 20590–0001. dredged or fill material into 55.71 acres implementing Executive Order 12372 • Hand Delivery: West Building of waters of the United States, including regarding intergovernmental consultation on Ground Floor, Room W12–140, 1200 52.03 acres of wetlands, 0.98 acre/1,875 Federal programs and activities apply to this New Jersey Avenue SE, Washington, linear feet of perennial streams, and program.) DC, between 9 a.m. and 5 p.m., ET, 2.70 acres of other open waters. The Authority: 23 U.S.C. 139 (l)(1). Monday through Friday, except Federal Record of Decision and Section 404 Holidays. Issued on: May 28, 2020. permit authorize these discharges. • Fax: (202) 493–2251. The USACE Section 404 permit and Ivan Marrero, To avoid duplication, please use only Record of Decision are available by Division Administrator, Federal Highway one of these four methods. See the contacting USACE at the address Administration, Salt Lake City, Utah. ‘‘Public Participation’’ portion of the provided above. This notice applies to [FR Doc. 2020–12207 Filed 6–4–20; 8:45 am] SUPPLEMENTARY INFORMATION section for the Section 404 permit and Record of BILLING CODE 4910–RY–P instructions on submitting comments. Decision and all laws under which such FOR FURTHER INFORMATION CONTACT: Ms. actions were taken, including but not Christine A. Hydock, Chief, Medical limited to the following laws and their DEPARTMENT OF TRANSPORTATION Programs Division, 202–366–4001, implementing regulations: Federal Motor Carrier Safety [email protected], FMCSA, 1. General: National Environmental Administration Department of Transportation, 1200 Policy Act [42 U.S.C. 4321–4351]. New Jersey Avenue SE, Room W64–224, 2. Air: Clean Air Act [42 U.S.C. 7401– [Docket No. FMCSA–2013–0445; FMCSA– Washington, DC 20590–0001. Office 7671(q)]. 2018–0052] hours are from 8:30 a.m. to 5 p.m., ET, 3. Wildlife: Endangered Species Act Monday through Friday, except Federal [16 U.S.C. 1531–1544 and Section Qualification of Drivers; Exemption holidays. If you have questions 1536], Fish and Wildlife Coordination Applications; Epilepsy and Seizure regarding viewing or submitting Act [16 U.S.C. 661–667(d)]; Migratory Disorders material to the docket, contact Docket Bird Treaty Act [16 U.S.C. 703–712]; AGENCY: Federal Motor Carrier Safety Operations, (202) 366–9826. The Bald and Golden Eagle Protection SUPPLEMENTARY INFORMATION: Act [16 U.S.C. 668]; The Magnuson- Administration (FMCSA), DOT. Stevens Fishery Conservation and ACTION: Notice of renewal of I. Public Participation exemptions; request for comments. Management Act [16 U.S.C. 1801 et seq]. A. Submitting Comments 4. Historic and Cultural Resources: SUMMARY: Section 106 of the National Historic FMCSA announces its If you submit a comment, please Preservation Act of 1966, as amended decision to renew exemptions for three include the docket number for this [16 U.S.C. 470(f) et seq.]; individuals from the requirement in the notice (Docket No. FMCSA–2013–0445 5. Social and Economic: Civil Rights Federal Motor Carrier Safety or Docket No. FMCSA–2018–0052), Act of 1964 [42 U.S.C. 2000(d)– Regulations (FMCSRs) that interstate indicate the specific section of this 2000(d)(1)]; American Indian Religious commercial motor vehicle (CMV) document to which each comment Freedom Act [42 U.S.C. 1996]; Farmland drivers have ‘‘no established medical applies, and provide a reason for each Protection Policy Act (FPPA) [7 U.S.C. history or clinical diagnosis of epilepsy suggestion or recommendation. You 4201–4209]. or any other condition which is likely may submit your comments and 6. Wetlands and Water Resources: to cause loss of consciousness or any material online or by fax, mail, or hand Clean Water Act (Section 404, Section loss of ability to control a CMV.’’ The delivery, but please use only one of 401, Section 319) [33 U.S.C. 1251– exemptions enable these individuals these means. FMCSA recommends that 1377]; who have had one or more seizures and you include your name and a mailing 7. Executive Orders: E.O. 11990 are taking anti-seizure medication to address, an email address, or a phone Protection of Wetlands; E.O. 11988 continue to operate CMVs in interstate number in the body of your document Floodplain Management; E.O. 12898, commerce. so that FMCSA can contact you if there Federal Actions to Address DATES: Each group of renewed are questions regarding your Environmental Justice in Minority exemptions were applicable on the submission.
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To submit your comment online, go to exemptions from the FMCSRs for a 2- Commercial Driver’s License http://www.regulations.gov/ year period to align with the maximum Information System and the Motor docket?D=FMCSA-2013-0445 or http:// duration of a driver’s medical Carrier Management Information System www.regulations.gov/docket?D=FMCSA- certification. are searched for crash and violation 2018-0052. Click on the ‘‘Comment The physical qualification standard data. For non-CDL holders, the Agency Now!’’ button and type your comment for drivers regarding epilepsy found in reviews the driving records from the into the text box on the following 49 CFR 391.41(b)(8) states that a person State Driver’s Licensing Agency. These screen. Choose whether you are is physically qualified to drive a CMV factors provide an adequate basis for submitting your comment as an if that person has no established predicting each driver’s ability to individual or on behalf of a third party medical history or clinical diagnosis of continue to safely operate a CMV in and then submit. epilepsy or any other condition which interstate commerce. Therefore, FMCSA If you submit your comments by mail is likely to cause the loss of concludes that extending the exemption or hand delivery, submit them in an consciousness or any loss of ability to for each renewal applicant for a period unbound format, no larger than 81⁄2 by control a CMV. of 2 years is likely to achieve a level of 11 inches, suitable for copying and In addition to the regulations, FMCSA safety equal to that existing without the electronic filing. If you submit has published advisory criteria 1 to exemption. comments by mail and would like to assist medical examiners (MEs) in In accordance with 49 U.S.C. 31136(e) know that they reached the facility, determining whether drivers with and 31315(b), the following groups of please enclose a stamped, self-addressed certain medical conditions are qualified drivers received renewed exemptions in postcard or envelope. to operate a CMV in interstate the month of July and are discussed FMCSA will consider all comments commerce. below. and material received during the The three individuals listed in this As of July 1, 2020, and in accordance comment period. notice have requested renewal of their with 49 U.S.C. 31136(e) and 31315(b), exemptions from the epilepsy and B. Viewing Documents and Comments the following two individuals have seizure disorders prohibition in satisfied the renewal conditions for To view comments, as well as any § 391.41(b)(8), in accordance with obtaining an exemption from the documents mentioned in this notice as FMCSA procedures. Accordingly, epilepsy and seizure disorders being available in the docket, go to FMCSA has evaluated these prohibition in the FMCSRs for interstate http://www.regulations.gov/docket?D= applications for renewal on their merits CMV drivers: FMCSA-2013-0445 or http:// and decided to extend each exemption Jesse Hansen (MN) and Nicholas www.regulations.gov/docket?D=FMCSA- for a renewable 2-year period. Ramirez (AL) 2018-0052 and choose the document to III. Request for Comments The drivers were included in docket review. If you do not have access to the number FMCSA–2018–0052. Their internet, you may view the docket Interested parties or organizations exemptions are applicable as of July 1, online by visiting Docket Operations in possessing information that would 2020, and will expire on July 1, 2022. Room W12–140 on the ground floor of otherwise show that any, or all, of these As of July 14, 2020, and in accordance the DOT West Building, 1200 New drivers are not currently achieving the with 49 U.S.C. 31136(e) and 31315(b), Jersey Avenue SE, Washington, DC statutory level of safety should the following individual has satisfied 20590, between 9 a.m. and 5 p.m., ET, immediately notify FMCSA. The the renewal conditions for obtaining an Monday through Friday, except Federal Agency will evaluate any adverse exemption from the epilepsy and holidays. To be sure someone is there to evidence submitted and, if safety is seizure disorders prohibition in the help you, please call (202) 366–9317 or being compromised or if continuation of FMCSRs for interstate CMV drivers: (202) 366–9826 before visiting Docket the exemption would not be consistent Operations. with the goals and objectives of 49 Ronald Blount (GA) U.S.C. 31136(e) and 31315(b), FMCSA The driver was included in docket C. Privacy Act will take immediate steps to revoke the number FMCSA–2013–0445. His In accordance with 5 U.S.C. 553(c), exemption of a driver. exemption is applicable as of July 14, DOT solicits comments from the public 2020, and will expire on July 14, 2022. IV. Basis for Renewing Exemptions to better inform its rulemaking process. V. Conditions and Requirements DOT posts these comments, without In accordance with 49 U.S.C. 31136(e) edit, including any personal information and 31315(b), each of the three The exemptions are extended subject the commenter provides, to applicants has satisfied the renewal to the following conditions: (1) Each www.regulations.gov, as described in conditions for obtaining an exemption driver must remain seizure-free and the system of records notice (DOT/ALL– from the epilepsy and seizure disorders maintain a stable treatment during the 14 FDMS), which can be reviewed at prohibition. The three drivers in this 2-year exemption period; (2) each driver www.transportation.gov/privacy. notice remain in good standing with the must submit annual reports from their Agency, have maintained their medical treating physicians attesting to the II. Background monitoring and have not exhibited any stability of treatment and that the driver Under 49 U.S.C. 31136(e) and medical issues that would compromise has remained seizure-free; (3) each 31315(b), FMCSA may grant an their ability to safely operate a CMV driver must undergo an annual medical exemption from the FMCSRs for no during the previous 2-year exemption examination by a certified ME, as longer than a 5-year period if it finds period. In addition, for Commercial defined by § 390.5; and (4) each driver such exemption would likely achieve a Driver’s License (CDL) holders, the must provide a copy of the annual level of safety that is equivalent to, or medical certification to the employer for greater than, the level that would be 1 These criteria may be found in APPENDIX A TO retention in the driver’s qualification achieved absent such exemption. The PART 391—MEDICAL ADVISORY CRITERIA, file, or keep a copy of his/her driver’s section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, statute also allows the Agency to renew and 5, which is available on the internet at https:// qualification file if he/she is self- exemptions at the end of the 5-year www.gpo.gov/fdsys/pkg/CFR-2015-title49-vol5/pdf/ employed. The driver must also have a period. FMCSA grants medical CFR-2015-title49-vol5-part391-appA.pdf. copy of the exemption when driving, for
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presentation to a duly authorized ADDRESSES: You may submit comments To submit your comment online, go to Federal, State, or local enforcement identified by the Federal Docket http://www.regulations.gov, put the official. The exemption will be Management System (FDMS) Docket No. docket number, FMCSA–2013–0125, rescinded if: (1) The person fails to FMCSA–2013–0125, FMCSA–2014– FMCSA–2014–0102, FMCSA–2015– comply with the terms and conditions 0102, FMCSA–2015–0327, FMCSA– 0327, FMCSA–2015–0328, FMCSA– of the exemption; (2) the exemption has 2015–0328, FMCSA–2015–0329, 2015–0329, FMCSA–2017–0059, or resulted in a lower level of safety than FMCSA–2017–0059, or FMCSA–2017– FMCSA–2017–0060, in the keyword was maintained before it was granted; or 0060 using any of the following box, and click ‘‘Search.’’ When the new (3) continuation of the exemption would methods: screen appears, click on the ‘‘Comment not be consistent with the goals and • Federal eRulemaking Portal: Go to Now!’’ button and type your comment objectives of 49 U.S.C. 31136(e) and http://www.regulations.gov. Follow the into the text box on the following 31315(b). online instructions for submitting screen. Choose whether you are submitting your comment as an VI. Preemption comments. • Mail: Docket Operations; U.S. individual or on behalf of a third party During the period the exemption is in Department of Transportation, 1200 and then submit. effect, no State shall enforce any law or New Jersey Avenue SE, West Building If you submit your comments by mail regulation that conflicts with this Ground Floor, Room W12–140, or hand delivery, submit them in an exemption with respect to a person Washington, DC 20590–0001. unbound format, no larger than 81⁄2 by operating under the exemption. • Hand Delivery: West Building 11 inches, suitable for copying and VII. Conclusion Ground Floor, Room W12–140, 1200 electronic filing. If you submit New Jersey Avenue SE, Washington, comments by mail and would like to Based on its evaluation of the three know that they reached the facility, exemption applications, FMCSA renews DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal please enclose a stamped, self-addressed the exemptions of the aforementioned postcard or envelope. drivers from the epilepsy and seizure Holidays. • Fax: (202) 493–2251. FMCSA will consider all comments disorders prohibition in § 391.41(b)(8). and material received during the To avoid duplication, please use only In accordance with 49 U.S.C. 31136(e) comment period. and 31315(b), each exemption will be one of these four methods. See the valid for 2 years unless revoked earlier ‘‘Public Participation’’ portion of the B. Viewing Documents and Comments by FMCSA. SUPPLEMENTARY INFORMATION section for To view comments, as well as any instructions on submitting comments. documents mentioned in this notice as Larry W. Minor, FOR FURTHER INFORMATION CONTACT: Ms. being available in the docket, go to Associate Administrator for Policy. Christine A. Hydock, Chief, Medical http://www.regulations.gov. Insert the [FR Doc. 2020–12146 Filed 6–4–20; 8:45 am] Programs Division, 202–366–4001, docket number, FMCSA–2013–0125, BILLING CODE 4910–EX–P [email protected], FMCSA, FMCSA–2014–0102, FMCSA–2015– Department of Transportation, 1200 0327, FMCSA–2015–0328, FMCSA– New Jersey Avenue SE, Room W64–224, 2015–0329, FMCSA–2017–0059, or DEPARTMENT OF TRANSPORTATION Washington, DC 20590–0001. Office FMCSA–2017–0060, in the keyword Federal Motor Carrier Safety hours are from 8:30 a.m. to 5 p.m., ET, box, and click ‘‘Search.’’ Next, click the Administration Monday through Friday, except Federal ‘‘Open Docket Folder’’ button and holidays. If you have questions choose the document to review. If you [Docket No. FMCSA–2013–0125; FMCSA– regarding viewing or submitting do not have access to the internet, you 2014–0102; FMCSA–2015–0327; FMCSA– material to the docket, contact Docket may view the docket online by visiting 2015–0328; FMCSA–2015–0329; FMCSA– Operations, (202) 366–9826. 2017–0059; FMCSA–2017–0060] the Docket Operations in Room W12– SUPPLEMENTARY INFORMATION: 140 on the ground floor of the DOT Qualification of Drivers; Exemption West Building, 1200 New Jersey Avenue I. Public Participation Applications; Hearing SE, Washington, DC 20590, between 9 A. Submitting Comments a.m. and 5 p.m., ET, Monday through AGENCY: Federal Motor Carrier Safety Friday, except Federal holidays. To be Administration (FMCSA), DOT. If you submit a comment, please sure someone is there to help you, ACTION: Notice of renewal of include the docket number for this please call (202) 366–9317 or (202) 366– exemptions; request for comments. notice (Docket No. FMCSA–2013–0125, 9826 before visiting Docket Operations. FMCSA–2014–0102, FMCSA–2015– SUMMARY: FMCSA announces its 0327, FMCSA–2015–0328, FMCSA– C. Privacy Act decision to renew exemptions for 22 2015–0329, FMCSA–2017–0059, or In accordance with 5 U.S.C. 553(c), individuals from the hearing FMCSA–2017–0060), indicate the DOT solicits comments from the public requirement in the Federal Motor specific section of this document to to better inform its rulemaking process. Carrier Safety Regulations (FMCSRs) for which each comment applies, and DOT posts these comments, without interstate commercial motor vehicle provide a reason for each suggestion or edit, including any personal information (CMV) drivers. The exemptions enable recommendation. You may submit your the commenter provides, to these hard of hearing and deaf comments and material online or by fax, www.regulations.gov, as described in individuals to continue to operate CMVs mail, or hand delivery, but please use the system of records notice (DOT/ALL– in interstate commerce. only one of these means. FMCSA 14 FDMS), which can be reviewed at DATES: Each group of renewed recommends that you include your www.transportation.gov/privacy. exemptions were applicable on the name and a mailing address, an email dates stated in the discussions below address, or a phone number in the body II. Background and will expire on the dates provided of your document so that FMCSA can Under 49 U.S.C. 31136(e) and below. Comments must be received on contact you if there are questions 31315(b), FMCSA may grant an or before July 6, 2020. regarding your submission. exemption from the FMCSRs for no
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longer than a 5-year period if it finds Commercial Driver’s License Leroy Carter (OH) such exemption would likely achieve a Information System and the Motor Brodey DiPasquale (MD) level of safety that is equivalent to, or Carrier Management Information System greater than, the level that would be are searched for crash and violation Richard Fisher (PA) achieved absent such exemption. The data. For non-CDL holders, the Agency Kimberly Foss (OR) statute also allows the Agency to renew reviews the driving records from the Dustin McFaddin (TX) exemptions at the end of the 5-year State Driver’s Licensing Agency. These period. FMCSA grants medical factors provide an adequate basis for Marcel Paul (WA) exemptions from the FMCSRs for a 2- predicting each driver’s ability to Jason Winemiller (IL) year period to align with the maximum continue to safely operate a CMV in The drivers were included in docket duration of a driver’s medical interstate commerce. Therefore, FMCSA number FMCSA–2017–0060. Their certification. concludes that extending the exemption exemptions are applicable as of June 29, The physical qualification standard for each of these drivers for a period of for drivers regarding hearing found in 2 years is likely to achieve a level of 2020, and will expire on June 29, 2022. 49 CFR 391.41(b)(11) states that a safety equal to that existing without the V. Conditions and Requirements person is physically qualified to drive a exemption. CMV if that person first perceives a In accordance with 49 U.S.C. 31136(e) The exemptions are extended subject forced whispered voice in the better ear and 31315(b), the following groups of to the following conditions: (1) Each at not less than 5 feet with or without drivers received renewed exemptions in driver must report any crashes or the use of a hearing aid or, if tested by the month of June and are discussed accidents as defined in § 390.5; and (2) use of an audiometric device, does not below. report all citations and convictions for have an average hearing loss in the As of June 17, 2020, and in disqualifying offenses under 49 CFR 383 better ear greater than 40 decibels at 500 accordance with 49 U.S.C. 31136(e) and and 49 CFR 391 to FMCSA; and (3) each Hz, 1,000 Hz, and 2,000 Hz with or 31315(b), the following 11 individuals driver prohibited from operating a without a hearing aid when the have satisfied the renewal conditions for motorcoach or bus with passengers in audiometric device is calibrated to obtaining an exemption from the interstate commerce. The driver must American National Standard (formerly hearing requirement in the FMCSRs for also have a copy of the exemption when ASA Standard) Z24.5—1951. interstate CMV drivers: This standard was adopted in 1970 driving, for presentation to a duly Paul Aseka (TX) authorized Federal, State, or local and was revised in 1971 to allow drivers James Bogart (KS) to be qualified under this standard enforcement official. In addition, the Thomas Buretz (FL) exemption does not exempt the while wearing a hearing aid, 35 FR Glenn Ferguson (TX) individual from meeting the applicable 6458, 6463 (April 22, 1970) and 36 FR Anthony Panto (NJ) 12857 (July 3, 1971). William Symonds (IL) CDL testing requirements. Each The 22 individuals listed in this Steven Tipton (IA) exemption will be valid for 2 years notice have requested renewal of their Daniel Tricolici (MA) unless rescinded earlier by FMCSA. The exemptions from the hearing standard Wayne Turner (IL) exemption will be rescinded if: (1) The in § 391.41(b)(11), in accordance with Fernando Velasquez (TX) person fails to comply with the terms FMCSA procedures. Accordingly, Scott Weeaks (OK) and conditions of the exemption; (2) the FMCSA has evaluated these The drivers were included in docket exemption has resulted in a lower level applications for renewal on their merits numbers FMCSA–2013–0125, FMCSA– of safety than was maintained before it and decided to extend each exemption 2015–0327, FMCSA–2015–0328, was granted; or (3) continuation of the for a renewable 2-year period. FMCSA–2015–0329, and FMCSA–2017– exemption would not be consistent with III. Request for Comments 0059. Their exemptions are applicable the goals and objectives of 49 U.S.C. as of June 17, 2020, and will expire on 31136(e) and 31315(b). Interested parties or organizations June 17, 2022. possessing information that would As of June 25, 2020, and in VI. Preemption otherwise show that any, or all, of these accordance with 49 U.S.C. 31136(e) and During the period the exemption is in drivers are not currently achieving the 31315(b), the following three effect, no State shall enforce any law or statutory level of safety should individuals have satisfied the renewal regulation that conflicts with this immediately notify FMCSA. The conditions for obtaining an exemption Agency will evaluate any adverse from the hearing requirement in the exemption with respect to a person evidence submitted and, if safety is FMCSRs for interstate CMV drivers: operating under the exemption. being compromised or if continuation of the exemption would not be consistent Alfredo Ramirez (TX) VII. Conclusion Julie Ramirez (TX) with the goals and objectives of 49 Hayden Teesdale (TX) Based upon its evaluation of the 22 U.S.C. 31136(e) and 31315(b), FMCSA The drivers were included in docket exemption applications, FMCSA renews will take immediate steps to revoke the the exemptions of the aforementioned exemption of a driver. number FMCSA–2014–0102. Their exemptions are applicable as of June 25, drivers from the hearing requirement in IV. Basis for Renewing Exemptions 2020, and will expire on June 25, 2022. § 391.41(b)(11). In accordance with 49 In accordance with 49 U.S.C. 31136(e) As of June 29, 2020, and in U.S.C. 31136(e) and 31315(b), each and 31315(b), each of the 22 applicants accordance with 49 U.S.C. 31136(e) and exemption will be valid for two years has satisfied the renewal conditions for 31315(b), the following eight unless revoked earlier by FMCSA. individuals have satisfied the renewal obtaining an exemption from the Larry W. Minor, hearing requirement. The 22 drivers in conditions for obtaining an exemption this notice remain in good standing with from the hearing requirement in the Associate Administrator for Policy. the Agency. In addition, for Commercial FMCSRs for interstate CMV drivers: [FR Doc. 2020–12192 Filed 6–4–20; 8:45 am] Driver’s License (CDL) holders, the Robert Cates (NM) BILLING CODE 4910–EX–P
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DEPARTMENT OF TRANSPORTATION FMCSA–2013–0165, Docket No. FMCSA–2010–0050; FMCSA–2010– FMCSA–2013–0166, Docket No. 0082; FMCSA–2011–0366; FMCSA– Federal Motor Carrier Safety FMCSA–2013–0167, Docket No. 2011–0379; FMCSA–2012–0104; Administration FMCSA–2013–0169, Docket No. FMCSA–2012–0106; FMCSA–2013– [Docket No. FMCSA–1999–6156; FMCSA– FMCSA–2013–0174, Docket No. 0029; FMCSA–2013–0165; FMCSA– 1999–6480; FMCSA–2004–17195; FMCSA– FMCSA–2014–0002, Docket No. 2013–0166; FMCSA–2013–0167; 2005–22194; FMCSA–2006–23773; FMCSA– FMCSA–2014–0003, Docket No. FMCSA–2013–0169; FMCSA–2013– 2006–24015; FMCSA–2006–24783; FMCSA– FMCSA–2014–0004, Docket No. 0174; FMCSA–2014–0002; FMCSA– 2007–0071; FMCSA–2007–27897; FMCSA– FMCSA–2014–0005, Docket No. 2014–0003; FMCSA–2014–0004; 2008–0021; FMCSA–2009–0011; FMCSA– FMCSA–2014–0006, Docket No. FMCSA–2014–0005; FMCSA–2014– 2010–0050; FMCSA–2010–0082; FMCSA– FMCSA–2015–0056, Docket No. 0006; FMCSA–2015–0056; FMCSA– 2011–0366; FMCSA–2011–0379; FMCSA– FMCSA–2015–0347, Docket No. 2015–0347; FMCSA–2015–0348; 2012–0104; FMCSA–2012–0106; FMCSA– FMCSA–2015–0348, Docket No. FMCSA–2015–0351; FMCSA–2016– 2013–0029; FMCSA–2013–0165; FMCSA– 0024; FMCSA–2016–0028; FMCSA– 2013–0166; FMCSA–2013–0167; FMCSA– FMCSA–2015–0351, Docket No. 2013–0169; FMCSA–2013–0174; FMCSA– FMCSA–2016–0024, Docket No. 2016–0029; FMCSA–2017–0017; 2014–0002; FMCSA–2014–0003; FMCSA– FMCSA–2016–0028, Docket No. FMCSA–2017–0024; FMCSA–2018– 2014–0004; FMCSA–2014–0005; FMCSA– FMCSA–2016–0029, Docket No. 0012), indicate the specific section of 2014–0006; FMCSA–2015–0056; FMCSA– FMCSA–2017–0017, Docket No. this document to which each comment 2015–0347; FMCSA–2015–0348; FMCSA– FMCSA–2017–0024, or Docket No. applies, and provide a reason for each 2015–0351; FMCSA–2016–0024; FMCSA– FMCSA–2018–0012 using any of the suggestion or recommendation. You 2016–0028; FMCSA–2016–0029; FMCSA– following methods: may submit your comments and 2017–0017; FMCSA–2017–0024; FMCSA– • Federal eRulemaking Portal: Go to material online or by fax, mail, or hand 2018–0012] http://www.regulations.gov. Follow the delivery, but please use only one of these means. FMCSA recommends that Qualification of Drivers; Exemption online instructions for submitting you include your name and a mailing Applications; Vision comments. • Mail: Docket Operations; U.S. address, an email address, or a phone AGENCY: Federal Motor Carrier Safety Department of Transportation, 1200 number in the body of your document Administration (FMCSA), DOT. New Jersey Avenue SE, West Building so that FMCSA can contact you if there ACTION: Notice of renewal of Ground Floor, Room W12–140, are questions regarding your exemptions; request for comments. Washington, DC 20590–0001. submission. • Hand Delivery: West Building To submit your comment online, go to SUMMARY: FMCSA announces its Ground Floor, Room W12–140, 1200 http://www.regulations.gov, put the decision to renew exemptions for 72 New Jersey Avenue SE, Washington, docket number, FMCSA–1999–6156; individuals from the vision requirement DC, between 9 a.m. and 5 p.m., ET, FMCSA–1999–6480; FMCSA–2004– in the Federal Motor Carrier Safety Monday through Friday, except Federal 17195; FMCSA–2005–22194; FMCSA– Regulations (FMCSRs) for interstate Holidays. 2006–23773; FMCSA–2006–24015; commercial motor vehicle (CMV) • Fax: (202) 493–2251. FMCSA–2006–24783; FMCSA–2007– drivers. The exemptions enable these To avoid duplication, please use only 0071; FMCSA–2007–27897; FMCSA– individuals to continue to operate CMVs one of these four methods. See the 2008–0021; FMCSA–2009–0011; in interstate commerce without meeting ‘‘Public Participation’’ portion of the FMCSA–2010–0050; FMCSA–2010– the vision requirements in one eye. SUPPLEMENTARY INFORMATION section for 0082; FMCSA–2011–0366; FMCSA– 2011–0379; FMCSA–2012–0104; DATES: Each group of renewed instructions on submitting comments. FMCSA–2012–0106; FMCSA–2013– exemptions were applicable on the FOR FURTHER INFORMATION CONTACT: Ms. 0029; FMCSA–2013–0165; FMCSA– dates stated in the discussions below Christine A. Hydock, Chief, Medical 2013–0166; FMCSA–2013–0167; and will expire on the dates stated in Programs Division, (202) 366–4001, FMCSA–2013–0169; FMCSA–2013– the discussions below. Comments must [email protected], FMCSA, 0174; FMCSA–2014–0002; FMCSA– be received on or before July 6, 2020. Department of Transportation, 1200 New Jersey Avenue SE, Room W64–224, 2014–0003; FMCSA–2014–0004; ADDRESSES: You may submit comments Washington, DC 20590–0001. Office FMCSA–2014–0005; FMCSA–2014– identified by the Federal Docket hours are from 8:30 a.m. to 5 p.m., ET, 0006; FMCSA–2015–0056; FMCSA– Management System (FDMS) Docket No. Monday through Friday, except Federal 2015–0347; FMCSA–2015–0348; FMCSA–1999–6156, Docket No. holidays. If you have questions FMCSA–2015–0351; FMCSA–2016– FMCSA–1999–6480, Docket No. regarding viewing or submitting 0024; FMCSA–2016–0028; FMCSA– FMCSA–2004–17195, Docket No. material to the docket, contact Docket 2016–0029; FMCSA–2017–0017; FMCSA–2005–22194, Docket No. Operations, (202) 366–9826. FMCSA–2017–0024; FMCSA–2018– FMCSA–2006–23773, Docket No. 0012, in the keyword box, and click SUPPLEMENTARY INFORMATION: FMCSA–2006–24015, Docket No. ‘‘Search.’’ When the new screen FMCSA–2006–24783, Docket No. I. Public Participation appears, click on the ‘‘Comment Now!’’ FMCSA–2007–0071, Docket No. button and type your comment into the A. Submitting Comments FMCSA–2007–27897, Docket No. text box on the following screen. Choose FMCSA–2008–0021, Docket No. If you submit a comment, please whether you are submitting your FMCSA–2009–0011, Docket No. include the docket number for this comment as an individual or on behalf FMCSA–2010–0050, Docket No. notice (Docket No. FMCSA–1999–6156; of a third party and then submit. FMCSA–2010–0082, Docket No. FMCSA–1999–6480; FMCSA–2004– If you submit your comments by mail FMCSA–2011–0366, Docket No. 17195; FMCSA–2005–22194; FMCSA– or hand delivery, submit them in an FMCSA–2011–0379, Docket No. 2006–23773; FMCSA–2006–24015; unbound format, no larger than 81⁄2 by FMCSA–2012–0104, Docket No. FMCSA–2006–24783; FMCSA–2007– 11 inches, suitable for copying and FMCSA–2012–0106, Docket No. 0071; FMCSA–2007–27897; FMCSA– electronic filing. If you submit FMCSA–2013–0029, Docket No. 2008–0021; FMCSA–2009–0011; comments by mail and would like to
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know that they reached the facility, level of safety that is equivalent to, or 75 FR 9480; 75 FR 13653; 75 FR 14656; please enclose a stamped, self-addressed greater than, the level that would be 75 FR 19674; 75 FR 22176; 75 FR 25917; postcard or envelope. achieved absent such exemption. The 75 FR 27622; 75 FR 27623; 75 FR 28682; FMCSA will consider all comments statute also allows the Agency to renew 75 FR 36778; 75 FR 36779; 75 FR 39729; and material received during the exemptions at the end of the 5-year 76 FR 54530; 77 FR 5874; 77 FR 13689; comment period. period. FMCSA grants medical 77 FR 15184; 77 FR 17107; 77 FR 17108; B. Viewing Documents and Comments exemptions from the FMCSRs for a 2- 77 FR 17117; 77 FR 23797; 77 FR 26816; year period to align with the maximum 77 FR 27847; 77 FR 27850; 77 FR 29447; To view comments, as well as any duration of a driver’s medical 77 FR 33017; 77 FR 36338; 77 FR 38384; documents mentioned in this notice as certification. 77 FR 38386; 77 FR 44708; 78 FR 34143; being available in the docket, go to The physical qualification standard 78 FR 47818; 78 FR 52602; 78 FR 62935; http://www.regulations.gov. Insert the for drivers regarding vision found in 49 78 FR 63307; 78 FR 64271; 78 FR 64274; docket number, FMCSA–1999–6156; CFR 391.41(b)(10) states that a person is 78 FR 76395; 78 FR 77778; 78 FR 78477; FMCSA–1999–6480; FMCSA–2004– physically qualified to drive a CMV if 79 FR 1908; 79 FR 2748; 79 FR 10611; 17195; FMCSA–2005–22194; FMCSA– that person has distant visual acuity of 79 FR 13085; 79 FR 14331; 79 FR 14333; 2006–23773; FMCSA–2006–24015; at least 20/40 (Snellen) in each eye 79 FR 14571; 79 FR 18391; 79 FR 18392; FMCSA–2006–24783; FMCSA–2007– without corrective lenses or visual 79 FR 21996; 79 FR 22003; 79 FR 23797; 0071; FMCSA–2007–27897; FMCSA– acuity separately corrected to 20/40 79 FR 27043; 79 FR 27681; 79 FR 28588; 2008–0021; FMCSA–2009–0011; (Snellen) or better with corrective 79 FR 29495; 79 FR 29498; 79 FR 35212; FMCSA–2010–0050; FMCSA–2010– lenses, distant binocular acuity of at 79 FR 35218; 79 FR 35220; 79 FR 38649; 0082; FMCSA–2011–0366; FMCSA– least 20/40 (Snellen) in both eyes with 79 FR 38661; 79 FR 47175; 80 FR 59225; 2011–0379; FMCSA–2012–0104; or without corrective lenses, field of 80 FR 59230; 81 FR 1284; 81 FR 1474; ° FMCSA–2012–0106; FMCSA–2013– vision of at least 70 in the horizontal 81 FR 6573; 81 FR 15401; 81 FR 17237; 0029; FMCSA–2013–0165; FMCSA– meridian in each eye, and the ability to 81 FR 20433; 81 FR 20435; 81 FR 21655; 2013–0166; FMCSA–2013–0167; recognize the colors of traffic signals 81 FR 28136; 81 FR 28138; 81 FR 39320; FMCSA–2013–0169; FMCSA–2013– and devices showing red, green, and 81 FR 42054; 81 FR 48493; 81 FR 52516; 0174; FMCSA–2014–0002; FMCSA– amber. 81 FR 66718; 81 FR 66720; 81 FR 66722; 2014–0003; FMCSA–2014–0004; The 72 individuals listed in this 81 FR 81230; 81 FR 90050; 81 FR 91239; FMCSA–2014–0005; FMCSA–2014– notice have requested renewal of their 81 FR 96196; 82 FR 20962; 82 FR 37499; 0006; FMCSA–2015–0056; FMCSA– exemptions from the vision standard in 82 FR 58262; 83 FR 6919; 83 FR 6922; 2015–0347; FMCSA–2015–0348; § 391.41(b)(10), in accordance with 83 FR 6925; 83 FR 15195; 83 FR 15232; FMCSA–2015–0351; FMCSA–2016– FMCSA procedures. Accordingly, 83 FR 24146; 83 FR 28320; 83 FR 28325; 0024; FMCSA–2016–0028; FMCSA– FMCSA has evaluated these 83 FR 28332; 83 FR 45749). They have 2016–0029; FMCSA–2017–0017; applications for renewal on their merits submitted evidence showing that the FMCSA–2017–0024; FMCSA–2018– and decided to extend each exemption vision in the better eye continues to 0012, in the keyword box, and click for a renewable 2-year period. meet the requirement specified at ‘‘Search.’’ Next, click the ‘‘Open Docket III. Request for Comments § 391.41(b)(10) and that the vision Folder’’ button and choose the Interested parties or organizations impairment is stable. In addition, a document to review. If you do not have review of each record of safety while access to the internet, you may view the possessing information that would otherwise show that any, or all, of these driving with the respective vision docket online by visiting the Docket deficiencies over the past 2 years Operations in Room W12–140 on the drivers are not currently achieving the statutory level of safety should indicates each applicant continues to ground floor of the DOT West Building, meet the vision exemption 1200 New Jersey Avenue SE, immediately notify FMCSA. The Agency will evaluate any adverse requirements. These factors provide an Washington, DC 20590, between 9 a.m. adequate basis for predicting each and 5 p.m., ET, Monday through Friday, evidence submitted and, if safety is being compromised or if continuation of driver’s ability to continue to drive except Federal holidays. To be sure safely in interstate commerce. someone is there to help you, please call the exemption would not be consistent with the goals and objectives of 49 Therefore, FMCSA concludes that (202) 366–9317 or (202) 366–9826 extending the exemption for each before visiting Docket Operations. U.S.C. 31136(e) and 31315(b), FMCSA will take immediate steps to revoke the renewal applicant for a period of 2 years C. Privacy Act exemption of a driver. is likely to achieve a level of safety In accordance with 5 U.S.C. 553(c), equal to that existing without the IV. Basis for Renewing Exemptions DOT solicits comments from the public exemption. to better inform its rulemaking process. In accordance with 49 U.S.C. 31136(e) In accordance with 49 U.S.C. 31136(e) DOT posts these comments, without and 31315(b), each of the 72 applicants and 31315(b), the following groups of edit, including any personal information has satisfied the renewal conditions for drivers received renewed exemptions in the commenter provides, to obtaining an exemption from the vision the month of July and are discussed www.regulations.gov, as described in standard (see 64 FR 54948; 64 FR 68195; below. As of July 8, 2020, and in the system of records notice (DOT/ALL– 65 FR 159; 65 FR 20251; 67 FR 10475; accordance with 49 U.S.C. 31136(e) and 14 FDMS), which can be reviewed at 67 FR 38311; 69 FR 8260; 69 FR 17263; 31315, the following 46 individuals www.transportation.gov/privacy. 69 FR 26921; 69 FR 31447; 70 FR 57353; have satisfied the renewal conditions for 70 FR 72689; 71 FR 6824; 71 FR 6826; obtaining an exemption from the vision II. Background 71 FR 14566; 71 FR 19602; 71 FR 27033; requirement in the FMCSRs for Under 49 U.S.C. 31136(e) and 71 FR 30227; 71 FR 32183; 71 FR 41310; interstate CMV drivers (64 FR 68195; 65 31315(b), FMCSA may grant an 72 FR 39879; 72 FR 52419; 73 FR 6242; FR 20251; 67 FR 38311; 69 FR 17263; exemption from the FMCSRs for no 73 FR 11989; 73 FR 15567; 73 FR 16950; 69 FR 26921; 69 FR 31447; 70 FR 57353; longer than a 5-year period if it finds 73 FR 27014; 73 FR 27015; 73 FR 28186; 70 FR 72689; 71 FR 6826; 71 FR 14566; such exemption would likely achieve a 73 FR 36955; 74 FR 41971; 75 FR 9477; 71 FR 19602; 71 FR 27033; 71 FR 30227;
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72 FR 39879; 72 FR 52419; 73 FR 6242; Thomas W. Smith (PA) As of July 20, 2020, and in accordance 73 FR 11989; 73 FR 15567; 73 FR 16950; Steven S. Smith, Jr. (PA) with 49 U.S.C. 31136(e) and 31315, the 73 FR 27014; 73 FR 27015; 73 FR 28186; Russell J. Soland (MN) following three individuals have 74 FR 41971; 75 FR 9477; 75 FR 9480; Michael J. Tisher (AK) satisfied the renewal conditions for 75 FR 13653; 75 FR 14656; 75 FR 19674; Peter A. Troyan (MI) obtaining an exemption from the vision 75 FR 22176; 75 FR 27622; 75 FR 27623; Willard H. Weerts (IL) requirement in the FMCSRs for 75 FR 28682; 76 FR 54530; 77 FR 5874; Marvin L. Wernimont (IA) interstate CMV drivers (64 FR 54948; 65 Richard W. Wylie (CT) 77 FR 13689; 77 FR 15184; 77 FR 17107; FR 159; 67 FR 10475; 69 FR 8260; 71 FR 77 FR 17108; 77 FR 17117; 77 FR 23797; The drivers were included in docket 6824; 71 FR 32183; 71 FR 41310; 73 FR 77 FR 26816; 77 FR 27847; 77 FR 27850; numbers FMCSA–1999–6480; FMCSA– 11989; 73 FR 36955; 75 FR 36778; 75 FR 77 FR 29447; 77 FR 38386; 78 FR 34143; 2004–17195; FMCSA–2005–22194; 36779; 77 FR 38384; 79 FR 35218; 81 FR 78 FR 47818; 78 FR 52602; 78 FR 62935; FMCSA–2006–23773; FMCSA–2006– 90050; 81 FR 96196; 83 FR 28325): 24015; FMCSA–2007–0071; FMCSA– 78 FR 63307; 78 FR 64271; 78 FR 64274; Daniel R. Franks (OH) 78 FR 76395; 78 FR 77778; 78 FR 78477; 2007–27897; FMCSA–2008–0021; FMCSA–2009–0011; FMCSA–2010– Larry L. Jarvis (VA) 79 FR 1908; 79 FR 2748; 79 FR 10611; Charles E. Johnston (MO) 79 FR 13085; 79 FR 14331; 79 FR 14333; 0050; FMCSA–2011–0366; FMCSA– The drivers were included in docket 79 FR 14571; 79 FR 18391; 79 FR 18392; 2011–0379; FMCSA–2012–0104; numbers FMCSA–1999–6156; and 79 FR 21996; 79 FR 22003; 79 FR 23797; FMCSA–2013–0029; FMCSA–2013– FMCSA–2006–24783. Their exemptions 79 FR 27043; 79 FR 27681; 79 FR 28588; 0165; FMCSA–2013–0166; FMCSA– are applicable as of July 20, 2020, and 79 FR 29495; 79 FR 29498; 79 FR 38649; 2013–0167; FMCSA–2013–0169; will expire on July 20, 2022. 80 FR 59225; 80 FR 59230; 81 FR 1284; FMCSA–2013–0174; FMCSA–2014– As of July 22, 2020, and in accordance 81 FR 1474; 81 FR 6573; 81 FR 15401; 0002; FMCSA–2014–0003; FMCSA– with 49 U.S.C. 31136(e) and 31315, the 81 FR 17237; 81 FR 20433; 81 FR 20435; 2014–0004; FMCSA–2014–0005; following five individuals have satisfied 81 FR 21655; 81 FR 28136; 81 FR 28138; FMCSA–2015–0056; FMCSA–2015– the renewal conditions for obtaining an 81 FR 48493; 81 FR 52516; 81 FR 66718; 0347; FMCSA–2015–0348; FMCSA– exemption from the vision requirement 81 FR 91239; 81 FR 96196; 82 FR 20962; 2015–0351; FMCSA–2016–0024; in the FMCSRs for interstate CMV 82 FR 37499; 82 FR 58262; 83 FR 6919; FMCSA–2017–0017; and FMCSA–2017– drivers (79 FR 35212; 79 FR 47175; 81 83 FR 6922; 83 FR 6925; 83 FR 15195; 0024. Their exemptions are applicable FR 96196; 83 FR 28325): 83 FR 15232; 83 FR 24146; 83 FR 28325; as of July 8, 2020, and will expire on 83 FR 28332): July 8, 2022. Abdulahi Abukar (KY) As of July 12, 2020, and in accordance Larry Adams, Jr. (FL) Gregory K. Banister (SC) with 49 U.S.C. 31136(e) and 31315, the Amanuel W. Behon (WA) Dean R. Allen (OR) following individual has satisfied the Scott E. Ames (ME) Bradley C. Hansell (OR) renewal conditions for obtaining an Seth D. Sweeten (ID) Alphonso A. Barco (SC) exemption from the vision requirement The drivers were included in docket Craig J. Belles (NY) in the FMCSRs for interstate CMV number FMCSA–2014–0006. Their Dwight A. Bennett (MD) drivers (75 FR 25917; 75 FR 39729; 77 exemptions are applicable as of July 22, Kolby Blackner (UT) FR 36338; 79 FR 35220; 81 FR 81230; 2020, and will expire on July 22, 2022. Bobby R. Brooks (GA) 83 FR 28325): Levi A. Brown (MT) As of July 29, 2020, and in accordance Clare H. Buxton (MI) with 49 U.S.C. 31136(e) and 31315, the William Bucaria, Jr. (FL) The driver was included in docket following three individuals have Edwin L. Bupp (PA) number FMCSA–2010–0082. The satisfied the renewal conditions for Estra Cadet (FL) exemption is applicable as of July 12, obtaining an exemption from the vision Michael B. Canedy (MN) 2020, and will expire on July 12, 2022. Freddie A. Carrasquillo (TX) As of July 19, 2020, and in accordance requirement in the FMCSRs for William C. Christy (FL) with 49 U.S.C. 31136(e) and 31315, the interstate CMV drivers (81 FR 42054; 81 Steven W. Day (MO) following 12 individuals have satisfied FR 66722; 83 FR 28325): Johnny Dillard (SC) the renewal conditions for obtaining an David L. Evers (MN) Ryan C. Dugan (NY) exemption from the vision requirement Michael E. Jones (IL) Paul W. Fettig (SD) in the FMCSRs for interstate CMV Noel V. Munoz (NM) Brian R. Gallagher (TX) drivers (81 FR 39320; 81 FR 66720; 83 The drivers were included in docket Brian W. Gillund (MN) FR 28320; 83 FR 28325; 83 FR 45749): number FMCSA–2016–0029. Their Horace N. Goss (TX) Louis D. Faw (NC) exemptions are applicable as of July 29, James B. Grega (PA) Ryan N. Goyne (AR) 2020, and will expire on July 29, 2022. Daniel W. Henderson (TN) Bradley C. Helsel (OR) As of July 30, 2020, and in accordance John C. Henricks (OH) Kenneth B. Julian (OK) with 49 U.S.C. 31136(e) and 31315, the Michael T. Huso (MN) Keith Kebschull (IL) following two individuals have satisfied William D. Jackson (MN) Jeffrey N. Lake (IL) the renewal conditions for obtaining an Danny J. Johnson (MN) James K. Matthey (PA) exemption from the vision requirement Thomas M. Kaley (PA) J. B. Rodriguez Mata (TX) in the FMCSRs for interstate CMV James M. Knef (NJ) Corey L. Spring (AR) drivers (77 FR 33017; 77 FR 44708; 79 Ty N. Mason (PA) Travis D. Summerville (IL) FR 38661; 81 FR 96196; 83 FR 28325): Richard J. McKenzie, Jr. (MD) Lora D. Swindall (AL) Christopher J. Meerten (OR) Francis J. Toth (PA) Damon G. Gallardo (CA) Elmore Nicholson, Jr. (AL) The drivers were included in docket Gregory A. Reinert (MN) Thomas G. Ohlson (NY) numbers FMCSA–2016–0028; and The drivers were included in docket John L. Ratayczak (WI) FMCSA–2018–0012. Their exemptions number FMCSA–2012–0106. Their LeRoy W. Scharkey (MN) are applicable as of July 19, 2020, and exemptions are applicable as of July 30, James S. Seeno (NV) will expire on July 19, 2022. 2020, and will expire on July 30, 2022.
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V. Conditions and Requirements DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief, Medical The exemptions are extended subject Federal Motor Carrier Safety Programs Division, 202–366–4001, to the following conditions: (1) Each Administration [email protected], FMCSA, driver must undergo an annual physical Department of Transportation, 1200 examination (a) by an ophthalmologist [Docket No. FMCSA–2013–0109; FMCSA– New Jersey Avenue SE, Room W64–224, or optometrist who attests that the 2013–0444; FMCSA–2015–0322; FMCSA– Washington, DC 20590–0001. Office 2018–0050] vision in the better eye continues to hours are from 8:30 a.m. to 5 p.m., ET, meet the requirements in 49 CFR Qualification of Drivers; Exemption Monday through Friday, except Federal 391.41(b)(10), and (b) by a certified Applications; Epilepsy and Seizure holidays. If you have questions medical examiner (ME), as defined by Disorders regarding viewing or submitting § 390.5, who attests that the driver is material to the docket, contact Docket otherwise physically qualified under AGENCY: Federal Motor Carrier Safety Operations, (202) 366–9826. § 391.41; (2) each driver must provide a Administration (FMCSA), DOT. SUPPLEMENTARY INFORMATION: ACTION: Notice of renewal of copy of the ophthalmologist’s or I. Public Participation optometrist’s report to the ME at the exemptions; request for comments. time of the annual medical examination; A. Submitting Comments SUMMARY: FMCSA announces its and (3) each driver must provide a copy decision to renew exemptions for 12 If you submit a comment, please of the annual medical certification to individuals from the requirement in the include the docket number for this the employer for retention in the Federal Motor Carrier Safety notice (Docket No. FMCSA–2013–0109; driver’s qualification file or keep a copy Regulations (FMCSRs) that interstate FMCSA–2013–0444; FMCSA–2015– of his/her driver’s qualification if he/her commercial motor vehicle (CMV) 0322; FMCSA–2018–0050), indicate the is self-employed. The driver must also drivers have ‘‘no established medical specific section of this document to have a copy of the exemption when history or clinical diagnosis of epilepsy which each comment applies, and driving, for presentation to a duly or any other condition which is likely provide a reason for each suggestion or authorized Federal, State, or local to cause loss of consciousness or any recommendation. You may submit your enforcement official. The exemption loss of ability to control a CMV.’’ The comments and material online or by fax, will be rescinded if: (1) The person fails exemptions enable these individuals mail, or hand delivery, but please use to comply with the terms and who have had one or more seizures and only one of these means. FMCSA conditions of the exemption; (2) the are taking anti-seizure medication to recommends that you include your exemption has resulted in a lower level continue to operate CMVs in interstate name and a mailing address, an email of safety than was maintained before it commerce. address, or a phone number in the body of your document so that FMCSA can was granted; or (3) continuation of the DATES: Each group of renewed contact you if there are questions exemption would not be consistent with exemptions were applicable on the regarding your submission. the goals and objectives of 49 U.S.C. dates stated in the discussions below To submit your comment online, go to 31136(e) and 31315(b). and will expire on the dates stated in http://www.regulations.gov, put the the discussions below. Comments must VI. Preemption docket number, FMCSA–2013–0109; be received on or before July 6, 2020. FMCSA–2013–0444; FMCSA–2015– During the period the exemption is in ADDRESSES: You may submit comments 0322; FMCSA–2018–0050, in the effect, no State shall enforce any law or identified by the Federal Docket keyword box, and click ‘‘Search.’’ When regulation that conflicts with this Management System (FDMS) Docket No. the new screen appears, click on the exemption with respect to a person FMCSA–2013–0109; Docket No. ‘‘Comment Now!’’ button and type your operating under the exemption. FMCSA–2013–0444, Docket No. comment into the text box on the FMCSA–2015–0322, or Docket No. following screen. Choose whether you VI. Conclusion FMCSA–2018–0050 using any of the are submitting your comment as an following methods: individual or on behalf of a third party Based upon its evaluation of the 72 • Federal eRulemaking Portal: Go to exemption applications, FMCSA renews and then submit. http://www.regulations.gov. Follow the If you submit your comments by mail the exemptions of the aforementioned online instructions for submitting or hand delivery, submit them in an drivers from the vision requirement in comments. unbound format, no larger than 81⁄2 by § 391.41(b)(10), subject to the • Mail: Docket Operations; U.S. 11 inches, suitable for copying and requirements cited above. In accordance Department of Transportation, 1200 electronic filing. If you submit with 49 U.S.C. 31136(e) and 31315(b), New Jersey Avenue SE, West Building comments by mail and would like to each exemption will be valid for 2 years Ground Floor, Room W12–140, know that they reached the facility, unless revoked earlier by FMCSA. Washington, DC 20590–0001. please enclose a stamped, self-addressed • Hand Delivery: West Building Larry W. Minor, postcard or envelope. Ground Floor, Room W12–140, 1200 FMCSA will consider all comments Associate Administrator for Policy. New Jersey Avenue SE, Washington, and material received during the [FR Doc. 2020–12197 Filed 6–4–20; 8:45 am] DC, between 9 a.m. and 5 p.m., ET, comment period. BILLING CODE 4910–EX–P Monday through Friday, except Federal Holidays. B. Viewing Documents and Comments • Fax: (202) 493–2251. To view comments, as well as any To avoid duplication, please use only documents mentioned in this notice as one of these four methods. See the being available in the docket, go to ‘‘Public Participation’’ portion of the http://www.regulations.gov. Insert the SUPPLEMENTARY INFORMATION section for docket number, FMCSA–2013–0109; instructions on submitting comments. FMCSA–2013–0444; FMCSA–2015–
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0322; FMCSA–2018–0050, in the exemptions from the epilepsy and Henry Counts, Jr. (MD) keyword box, and click ‘‘Search.’’ Next, seizure disorders prohibition in David P. Crowe (VA) click the ‘‘Open Docket Folder’’ button § 391.41(b)(8), in accordance with Michael D. Davis (ME) and choose the document to review. If FMCSA procedures. Accordingly, Dennis Gilles (IN) you do not have access to the internet, FMCSA has evaluated these Eric McVetty (NH) you may view the docket online by applications for renewal on their merits Stephen Soden (LA) visiting Docket Operations in Room and decided to extend each exemption Kevin L. Sprinkle (NC) Alan K. Washabaugh (PA) W12–140 on the ground floor of the for a renewable 2-year period. DOT West Building, 1200 New Jersey The drivers were included in docket III. Request for Comments Avenue SE, Washington, DC 20590, numbers FMCSA–2013–0109; FMCSA– between 9 a.m. and 5 p.m., ET, Monday Interested parties or organizations 2015–0322; FMCSA–2018–0050. Their through Friday, except Federal holidays. possessing information that would exemptions are applicable as of June 9, To be sure someone is there to help you, otherwise show that any, or all, of these 2020, and will expire on June 9, 2022. please call (202) 366–9317 or (202) 366– drivers are not currently achieving the As of June 24, 2020, and in 9826 before visiting Docket Operations. statutory level of safety should accordance with 49 U.S.C. 31136(e) and immediately notify FMCSA. The 31315(b), the following four individuals C. Privacy Act Agency will evaluate any adverse have satisfied the renewal conditions for In accordance with 5 U.S.C. 553(c), evidence submitted and, if safety is obtaining an exemption from the DOT solicits comments from the public being compromised or if continuation of epilepsy and seizure disorders to better inform its rulemaking process. the exemption would not be consistent prohibition in the FMCSRs for interstate DOT posts these comments, without with the goals and objectives of 49 CMV drivers: edit, including any personal information U.S.C. 31136(e) and 31315(b), FMCSA Heath Crowe (LA) the commenter provides, to will take immediate steps to revoke the Domenick Panfile (NJ) www.regulations.gov, as described in exemption of a driver. Thomas Tincher (NC) Duane Troff (MN) the system of records notice (DOT/ALL– IV. Basis for Renewing Exemptions 14 FDMS), which can be reviewed at The drivers were included in docket www.transportation.gov/privacy. In accordance with 49 U.S.C. 31136(e) number FMCSA–2013–0444. Their and 31315(b), each of the 12 applicants exemptions are applicable as of June 24, II. Background has satisfied the renewal conditions for 2020, and will expire on June 24, 2022. Under 49 U.S.C. 31136(e) and obtaining an exemption from the V. Conditions and Requirements 31315(b), FMCSA may grant an epilepsy and seizure disorders exemption from the FMCSRs for no prohibition. The 12 drivers in this The exemptions are extended subject longer than a 5-year period if it finds notice remain in good standing with the to the following conditions: (1) Each such exemption would likely achieve a Agency, have maintained their medical driver must remain seizure-free and level of safety that is equivalent to, or monitoring and have not exhibited any maintain a stable treatment during the greater than, the level that would be medical issues that would compromise 2-year exemption period; (2) each driver achieved absent such exemption. The their ability to safely operate a CMV must submit annual reports from their statute also allows the Agency to renew during the previous 2-year exemption treating physicians attesting to the exemptions at the end of the 5-year period. In addition, for Commercial stability of treatment and that the driver period. FMCSA grants medical Driver’s License (CDL) holders, the has remained seizure-free; (3) each exemptions from the FMCSRs for a 2- Commercial Driver’s License driver must undergo an annual medical year period to align with the maximum Information System and the Motor examination by a certified ME, as duration of a driver’s medical Carrier Management Information System defined by § 390.5; and (4) each driver certification. are searched for crash and violation must provide a copy of the annual The physical qualification standard data. For non-CDL holders, the Agency medical certification to the employer for for drivers regarding epilepsy found in reviews the driving records from the retention in the driver’s qualification 49 CFR 391.41(b)(8) states that a person State Driver’s Licensing Agency. These file, or keep a copy of his/her driver’s is physically qualified to drive a CMV factors provide an adequate basis for qualification file if he/she is self- if that person has no established predicting each driver’s ability to employed. The driver must also have a medical history or clinical diagnosis of continue to safely operate a CMV in copy of the exemption when driving, for epilepsy or any other condition which interstate commerce. Therefore, FMCSA presentation to a duly authorized is likely to cause the loss of concludes that extending the exemption Federal, State, or local enforcement consciousness or any loss of ability to for each renewal applicant for a period official. The exemption will be control a CMV. of 2 years is likely to achieve a level of rescinded if: (1) The person fails to In addition to the regulations, FMCSA safety equal to that existing without the comply with the terms and conditions has published advisory criteria 1 to exemption. of the exemption; (2) the exemption has assist medical examiners (MEs) in In accordance with 49 U.S.C. 31136(e) resulted in a lower level of safety than determining whether drivers with and 31315(b), the following groups of was maintained before it was granted; or certain medical conditions are qualified drivers received renewed exemptions in (3) continuation of the exemption would to operate a CMV in interstate the month of June and are discussed not be consistent with the goals and commerce. below. objectives of 49 U.S.C. 31136(e) and The 12 individuals listed in this As of June 9, 2020, and in accordance 31315(b). notice have requested renewal of their with 49 U.S.C. 31136(e) and 31315(b), the following eight individuals have VI. Preemption 1 These criteria may be found in Appendix A To satisfied the renewal conditions for During the period the exemption is in Part 391—Medical Advisory Criteria, section H. obtaining an exemption from the effect, no State shall enforce any law or Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5, regulation that conflicts with this which is available on the internet at https:// epilepsy and seizure disorders www.gpo.gov/fdsys/pkg/CFR-2015-title49-vol5/pdf/ prohibition in the FMCSRs for interstate exemption with respect to a person CFR-2015-title49-vol5-part391-appA.pdf. CMV drivers: operating under the exemption.
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VII. Conclusion if we have questions regarding your There is no limit on the length of the submission. Based on its evaluation of the 12 attachments. exemption applications, FMCSA renews Instructions: All submissions received Where do I go to read public comments, the exemptions of the aforementioned must include the agency name and and find supporting information? drivers from the epilepsy and seizure specific docket number. All comments Go to the docket online at http:// disorders prohibition in § 391.41(b)(8). received will be posted without change to the docket at www.regulations.gov, www.regulations.gov., keyword search In accordance with 49 U.S.C. 31136(e) MARAD–2020–0077 or visit the Docket and 31315(b), each exemption will be including any personal information provided. For detailed instructions on Management Facility (see ADDRESSES for valid for 2 years unless revoked earlier hours of operation). We recommend that by FMCSA. submitting comments, see the section entitled Public Participation. you periodically check the Docket for Larry W. Minor, new submissions and supporting FOR FURTHER INFORMATION CONTACT: material. Associate Administrator for Policy. Bianca Carr, U.S. Department of [FR Doc. 2020–12194 Filed 6–4–20; 8:45 am] Transportation, Maritime Will my comments be made available to BILLING CODE 4910–EX–P Administration, 1200 New Jersey the public? Avenue SE, Room W23–453, Yes. Be aware that your entire Washington, DC 20590. Telephone 202– DEPARTMENT OF TRANSPORTATION comment, including your personal 366–9309, Email [email protected]. identifying information, will be made Maritime Administration SUPPLEMENTARY INFORMATION: As publicly available. described by the applicant the intended [Docket No. MARAD–2020–0077] service of the vessel GIGSPACE H20 is: May I submit comments confidentially? If you wish to submit comments Requested Administrative Waiver of —Intended Commercial Use of Vessel: under a claim of confidentiality, you the Coastwise Trade Laws: Vessel Our vessel will be used to carry up to should submit three copies of your GIGSPACE H20 (Sailing Catamaran); a maximum of 12 passengers who are complete submission, including the Invitation for Public Comments engaged in safe boating education, and instruction, as well as site seeing information you claim to be confidential AGENCY: Maritime Administration, DOT. throughout the ports she serves. business information, to the Department ACTION: Notice. —Geographic Region Including Base of of Transportation, Maritime Operations: ‘‘California’’ (Base of Administration, Office of Legislation SUMMARY: The Secretary of Operations: San Diego, CA) and Regulations, MAR–225, W24–220, Transportation, as represented by the —Vessel Length and Type: 43’ sailing 1200 New Jersey Avenue SE, Maritime Administration (MARAD), is catamaran Washington, DC 20590. Include a cover authorized to grant waivers of the U.S.- letter setting forth with specificity the The complete application is available build requirements of the coastwise basis for any such claim and, if possible, for review identified in the DOT docket trade laws to allow the carriage of no a summary of your submission that can as MARAD–2020–0077 at http:// more than twelve passengers for hire on be made available to the public. vessels, which are three years old or www.regulations.gov. Interested parties more. A request for such a waiver has may comment on the effect this action Privacy Act been received by MARAD. The vessel, may have on U.S. vessel builders or In accordance with 5 U.S.C. 553(c), and a brief description of the proposed businesses in the U.S. that use U.S.-flag DOT solicits comments from the public service, is listed below. vessels. If MARAD determines, in to better inform its rulemaking process. accordance with 46 U.S.C. 12121 and DATES: Submit comments on or before DOT posts these comments, without MARAD’s regulations at 46 CFR part July 6, 2020. edit, to www.regulations.gov, as 388, that the issuance of the waiver will ADDRESSES: You may submit comments described in the system of records have an unduly adverse effect on a U.S.- notice, DOT/ALL–14 FDMS, accessible identified by DOT Docket Number vessel builder or a business that uses MARAD–2020–0077 by any one of the through www.dot.gov/privacy. To U.S.-flag vessels in that business, a facilitate comment tracking and following methods: waiver will not be granted. Comments • Federal eRulemaking Portal: Go to response, we encourage commenters to should refer to the vessel name, state the http://www.regulations.gov. Search provide their name, or the name of their commenter’s interest in the waiver MARAD–2020–0077 and follow the organization; however, submission of application, and address the waiver instructions for submitting comments. names is completely optional. Whether criteria given in section 388.4 of • Mail or Hand Delivery: Docket or not commenters identify themselves, MARAD’s regulations at 46 CFR part Management Facility is in the West all timely comments will be fully 388. Building, Ground Floor of the U.S. considered. If you wish to provide Department of Transportation. The Public Participation comments containing proprietary or Docket Management Facility location confidential information, please contact address is: U.S. Department of How do I submit comments? the agency for alternate submission Transportation, MARAD–2020–0077, Please submit your comments, instructions. 1200 New Jersey Avenue SE, West including the attachments, following the (Authority: 49 CFR 1.93(a), 46 U.S.C. 55103, Building, Room W12–140, Washington, instructions provided under the above 46 U.S.C. 12121) DC 20590, between 9 a.m. and 5 p.m., heading entitled ADDRESSES. Be advised * * * * * Monday through Friday, except on that it may take a few hours or even By Order of the Maritime Administrator. Federal holidays. days for your comment to be reflected on the docket. In addition, your Dated: June 2, 2020. Note: If you mail or hand-deliver your T. Mitchell Hudson, Jr., comments, we recommend that you include comments must be written in English. your name and a mailing address, an email We encourage you to provide concise Secretary, Maritime Administration. address, or a telephone number in the body comments and you may attach [FR Doc. 2020–12171 Filed 6–4–20; 8:45 am] of your document so that we can contact you additional documents as necessary. BILLING CODE 4910–81–P
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DEPARTMENT OF TRANSPORTATION Washington, DC 20590. Telephone 202– Will my comments be made available to 366–9309, Email [email protected]. the public? Maritime Administration SUPPLEMENTARY INFORMATION: As Yes. Be aware that your entire [Docket No. MARAD–2020–0075] described by the applicant the intended comment, including your personal service of the vessel AZETA is: identifying information, will be made Requested Administrative Waiver of publicly available. the Coastwise Trade Laws: Vessel —Intended Commercial Use of Vessel: AZETA (Sailing Catamaran); Invitation ‘‘Luxury high end sightseeing and May I submit comments confidentially? for Public Comments vacation charter from half day to 7 If you wish to submit comments day inclusive of food and activities under a claim of confidentiality, you AGENCY: Maritime Administration, DOT. such as kayaking, fishing, snorkeling, should submit three copies of your ACTION: Notice. scuba diving, music entertainment.’’ complete submission, including the —Geographic Region Including Base of information you claim to be confidential SUMMARY: The Secretary of Operations: ‘‘Florida, Alabama, business information, to the Department Transportation, as represented by the of Transportation, Maritime Maritime Administration (MARAD), is Louisiana, Mississippi, Texas’’ (Base of Operations: St. Petersburg, FL) Administration, Office of Legislation authorized to grant waivers of the U.S.- and Regulations, MAR–225, W24–220, —Vessel Length and Type: 51′ build requirements of the coastwise 1200 New Jersey Avenue SE, catamaran trade laws to allow the carriage of no Washington, DC 20590. Include a cover more than twelve passengers for hire on The complete application is available letter setting forth with specificity the vessels, which are three years old or for review identified in the DOT docket basis for any such claim and, if possible, more. A request for such a waiver has as MARAD–2020–0075 at http:// a summary of your submission that can been received by MARAD. The vessel, www.regulations.gov. Interested parties be made available to the public. and a brief description of the proposed may comment on the effect this action Privacy Act service, is listed below. may have on U.S. vessel builders or DATES: Submit comments on or before businesses in the U.S. that use U.S.-flag In accordance with 5 U.S.C. 553(c), July 6, 2020. vessels. If MARAD determines, in DOT solicits comments from the public ADDRESSES: You may submit comments accordance with 46 U.S.C. 12121 and to better inform its rulemaking process. identified by DOT Docket Number MARAD’s regulations at 46 CFR part DOT posts these comments, without MARAD–2020–0075 by any one of the 388, that the issuance of the waiver will edit, to www.regulations.gov, as following methods: have an unduly adverse effect on a U.S.- described in the system of records • Federal eRulemaking Portal: Go to vessel builder or a business that uses notice, DOT/ALL–14 FDMS, accessible http://www.regulations.gov. Search U.S.-flag vessels in that business, a through www.dot.gov/privacy. To MARAD–2020–0075 and follow the waiver will not be granted. Comments facilitate comment tracking and instructions for submitting comments. should refer to the vessel name, state the response, we encourage commenters to • Mail or Hand Delivery: Docket commenter’s interest in the waiver provide their name, or the name of their Management Facility is in the West application, and address the waiver organization; however, submission of Building, Ground Floor of the U.S. criteria given in section 388.4 of names is completely optional. Whether Department of Transportation. The MARAD’s regulations at 46 CFR part or not commenters identify themselves, Docket Management Facility location 388. all timely comments will be fully address is: U.S. Department of considered. If you wish to provide Transportation, MARAD–2020–0075, Public Participation comments containing proprietary or 1200 New Jersey Avenue SE, West How do I submit comments? confidential information, please contact Building, Room W12–140, Washington, the agency for alternate submission DC 20590, between 9 a.m. and 5 p.m., Please submit your comments, instructions. Monday through Friday, except on including the attachments, following the (Authority: 49 CFR 1.93(a), 46 U.S.C. 55103, Federal holidays. instructions provided under the above 46 U.S.C. 12121) Note: If you mail or hand-deliver your heading entitled ADDRESSES. Be advised Dated: June 2, 2020. that it may take a few hours or even comments, we recommend that you include By Order of the Maritime Administrator. days for your comment to be reflected your name and a mailing address, an email T. Mitchell Hudson, Jr., address, or a telephone number in the body on the docket. In addition, your of your document so that we can contact you comments must be written in English. Secretary, Maritime Administration. if we have questions regarding your We encourage you to provide concise [FR Doc. 2020–12172 Filed 6–4–20; 8:45 am] submission. comments and you may attach BILLING CODE 4910–81–P Instructions: All submissions received additional documents as necessary. There is no limit on the length of the must include the agency name and DEPARTMENT OF TRANSPORTATION specific docket number. All comments attachments. received will be posted without change Where do I go to read public comments, Pipeline and Hazardous Materials to the docket at www.regulations.gov, and find supporting information? Safety Administration including any personal information provided. For detailed instructions on Go to the docket online at http:// Hazardous Materials: Notice of submitting comments, see the section www.regulations.gov, keyword search Applications For New Special Permits entitled Public Participation. MARAD–2020–0075 or visit the Docket AGENCY: Pipeline and Hazardous FOR FURTHER INFORMATION CONTACT: Management Facility (see ADDRESSES for Materials Safety Administration Bianca Carr, U.S. Department of hours of operation). We recommend that (PHMSA), DOT. Transportation, Maritime you periodically check the Docket for ACTION: List of applications for special Administration, 1200 New Jersey new submissions and supporting permits. Avenue SE, Room W23–453, material.
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SUMMARY: In accordance with the ADDRESSES: Record Center, Pipeline and Washington, DC 20590–0001, (202) 366– procedures governing the application Hazardous Materials Safety 4535. for, and the processing of, special Administration, U.S. Department of SUPPLEMENTARY INFORMATION: permits from the Department of Transportation, Washington, DC 20590. Copies of Transportation’s Hazardous Material Comments should refer to the the applications are available for Regulations, notice is hereby given that application number and be submitted in inspection in the Records Center, East the Office of Hazardous Materials Safety triplicate. If confirmation of receipt of Building, PHH–30, 1200 New Jersey has received the application described comments is desired, include a self- Avenue Southeast, Washington DC. herein. Each mode of transportation for addressed stamped postcard showing This notice of receipt of applications which a particular special permit is the special permit number. for special permit is published in requested is indicated by a number in FOR FURTHER INFORMATION CONTACT: accordance with part 107 of the Federal the ‘‘Nature of Application’’ portion of Donald Burger, Chief, Office of hazardous materials transportation law the table below as follows: 1—Motor Hazardous Materials Approvals and (49 U.S.C. 5117(b); 49 CFR 1.53(b)). vehicle, 2—Rail freight, 3—Cargo vessel, Permits Division, Pipeline and 4—Cargo aircraft only, 5—Passenger- Hazardous Materials Safety Issued in Washington, DC, on June 1, 2020. carrying aircraft. Administration, U.S. Department of Donald P. Burger, DATES: Comments must be received on Transportation, East Building, PHH–30, Chief, General Approvals and Permits or before July 6, 2020. 1200 New Jersey Avenue Southeast, Branch.
SPECIAL PERMITS DATA
Application No. Applicant Regulation(s) affected Nature of the special permits thereof
21049–N .. Ferrellgas, L.P ...... 180.205(c) ...... To authorize the transportation in commerce of 2,338 filled cylinders that had not been requalified before the requalification became due. (mode 1). 21051–N .. Lab Vendor, LLC ...... 173.196(a), 173.196(b), 173.199(a), To authorize the transportation of certain chemicals and 173.199(d), 178.603, 178.609(d). cryogenically preserved (refrigerated and deep fro- zen) infectious, biological substances packaged in special packaging in a specially designed, dedicated refrigerated truck by highway. (mode 1). 21053–N .. Wisconsin Central Ltd ...... 172.203(a), 174.24, 174.26(a) ...... To authorize the use of electronic means to maintain and communicate on-board train consist and shipping paper information in lieu of paper documentation when hazardous materials are transported by rail. (mode 2). 21054–N .. Siemens Energy, Inc ...... 173.56(b) ...... To authorize the transportation in commerce of a Class 1 material under an alternate Class 1 designation. (modes 1, 4). 21055–N .. AVL Powertrain Engineer- 172.101(j), 173.185(a)(1), 173.185(b)(3) .. To authorize the transportation in commerce of a single ing, Inc. prototype lithium ion battery that exceeds 35 kg aboard cargo-only aircraft. (mode 4). 21056–N .. Cummins Inc ...... 173.185(a)(1) ...... To authorize the transportation in commerce of proto- type lithium batteries by cargo-only aircraft. (mode 4). 21057–N .. Spaceflight, Inc ...... 173.185(a)(1) ...... To authorize the transportation in commerce of low pro- duction lithium ion batteries contained in equipment via cargo-only aircraft. (mode 4). 21058–N .. Versum Materials, Inc ...... 180.209 ...... To authorize the transportation in commerce of cyl- inders with a water capacity not exceeding 125 lbs. that have been retested every 10 years as opposed to the 5-year retest frequency required in § 180.209. In addition, it is requested that the special permit pro- vide relief from § 180.209(b)(1)(iv) in that combined acoustic emission and ultrasonic examination (AE/UE) or 100% UE methods are authorized in lieu of hydro- static testing. (modes 1, 2, 3). 21059–N .. Union Pacific Railroad 172.203(a), 174.24, 174.26(a) ...... To authorize the use of electronic means to maintain Company Inc. and communicate on-board train consist information in lieu of paper documentation when hazardous mate- rials are transported by rail. (mode 2). 21060–N .. Central Specialties, Inc ...... To authorize the transportation in commerce of storage tanks for the purpose of transporting liquefied petro- leum gas. (mode 1).
[FR Doc. 2020–12120 Filed 6–4–20; 8:45 am] BILLING CODE 4909–60–P
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DEPARTMENT OF TRANSPORTATION herein. Each mode of transportation for Hazardous Materials Approvals and which a particular special permit is Permits Division, Pipeline and Pipeline and Hazardous Materials requested is indicated by a number in Hazardous Materials Safety Safety Administration the ‘‘Nature of Application’’ portion of Administration, U.S. Department of the table below as follows: 1—Motor Transportation, East Building, PHH–30, Hazardous Materials: Notice of vehicle, 2—Rail freight, 3—Cargo vessel, 1200 New Jersey Avenue Southeast, Applications for Modifications to 4—Cargo aircraft only, 5—Passenger- Washington, DC 20590–0001, (202) 366– Special Permits carrying aircraft. 4535. AGENCY: Pipeline and Hazardous DATES: Comments must be received on SUPPLEMENTARY INFORMATION: Copies of Materials Safety Administration or before June 22, 2020. the applications are available for (PHMSA), DOT. ADDRESSES: Record Center, Pipeline and inspection in the Records Center, East Building, PHH–30, 1200 New Jersey ACTION: Hazardous Materials Safety List of applications for Avenue Southeast, Washington DC. modification of special permits. Administration U.S. Department of Transportation Washington, DC 20590. This notice of receipt of applications SUMMARY: In accordance with the Comments should refer to the for special permit is published in procedures governing the application application number and be submitted in accordance with part 107 of the Federal for, and the processing of, special triplicate. If confirmation of receipt of hazardous materials transportation law permits from the Department of comments is desired, include a self- (49 U.S.C. 5117(b); 49 CFR 1.53(b)). Transportation’s Hazardous Material addressed stamped postcard showing Issued in Washington, DC, on June 1, 2020. Regulations, notice is hereby given that the special permit number. Donald P. Burger, the Office of Hazardous Materials Safety FOR FURTHER INFORMATION CONTACT: Chief, General Approvals and Permits has received the application described Donald Burger, Chief, Office of Branch.
SPECIAL PERMITS DATA
Application No. Applicant Regulation(s) affected Nature of the special permits thereof
10814–M ...... Spellman High Voltage Elec- 173.302a ...... To modify the special permit to update the reference draw- tronics Corporation. ings in the permit. (modes 1, 2, 3, 4, 5) 11054–M ...... Welker, Inc ...... 173.301(f)(2), 173.302a(a)(1), To modify the special permit to authorize an exemption from 173.304a(a)(1), § 178.36(h) for thread shear on cylinder tie bolts and to 173.304a(d)(3)(i), correct size descriptions on some authorized cylinders. 173.201(c), 173.202(c), (modes 1, 2, 3, 4) 173.203(c), 177.840(a)(1), 178.36(h), 178.36(m). 11859–M ...... Cobham Mission Systems Or- 173.301(f), 173.302a(a), To modify the special permit to authorize the use of Argon chard Park Inc. 178.65. in a missile gas storage system. (modes 1, 2, 4) 12102–M ...... Haz Mat Services, Incor- 173.56(i) ...... To modify the special permit to authorize additional Class 3 porated. and Division 4.1 explosives. (modes 1, 3) 12303–M ...... Halliburton Company ...... 173.201, 173.301(f), To modify the special permit to provide revised drawings for 173.302a, 173.304a. the RDT sample chamber arrangement covered by the special permit. (modes 1, 2, 3, 4) 14301–M ...... Gascon A Division Of 178.274(b)(1), 178.276(a)(2), To modify the special permit to authorize a new calculation Southey Holdings (Pty) Ltd. 178.276(b)(1). method for calculating allowable external pressure. (modes 1, 2, 3) 14656–M ...... Purepak Technology Corpora- 173.158(f)(3) ...... To modify the special permit to authorize an additional tion. marking option to the outside of the package. (modes 1, 2, 3) 14784–M ...... Weldship Corporation ...... 180.209(a), 180.209(b), To modify the special permit to clarify that either AE/UE or 180.209(b)(1)(iv). 100% UE testing is authorized for the ten year requalifica- tion period of cylinders. (modes 1, 2, 3)
[FR Doc. 2020–12121 Filed 6–4–20; 8:45 am] ACTION: Notice of actions on special Administration, U.S. Department of BILLING CODE 4909–60–P permit applications; request for Transportation Washington, DC 20590. comments. Comments should refer to the application number and be submitted in DEPARTMENT OF TRANSPORTATION SUMMARY: In accordance with the procedures governing the application triplicate. If confirmation of receipt of comments is desired, include a self- Pipeline and Hazardous Materials for, and the processing of, special addressed stamped postcard showing Safety Administration permits from the Department of Transportation’s Hazardous Material the special permit number. Hazardous Materials: Notice of Actions Regulations, notice is hereby given that FOR FURTHER INFORMATION CONTACT: on Special Permits the Office of Hazardous Materials Safety Donald Burger, Chief, Office of has received the application described Hazardous Materials Approvals and AGENCY: Pipeline and Hazardous herein. Permits Division, Pipeline and Materials Safety Administration DATES: Comments must be received on Hazardous Materials Safety (PHMSA), DOT. or before July 6, 2020. Administration, U.S. Department of ADDRESSES: Record Center, Pipeline and Transportation, East Building, PHH–30, Hazardous Materials Safety 1200 New Jersey Avenue Southeast,
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Washington, DC 20590–0001, (202) 366– Building, PHH–30, 1200 New Jersey hazardous materials transportation law 4535. Avenue Southeast, Washington DC. (49 U.S.C. 5117(b); 49 CFR 1.53(b)). SUPPLEMENTARY INFORMATION: Copies of This notice of receipt of applications Issued in Washington, DC, on June 1, 2020. the applications are available for for special permit is published in Donald P. Burger, inspection in the Records Center, East accordance with part 107 of the Federal Chief, General Approvals and Permits Branch.
SPECIAL PERMITS DATA—GRANTED
Application No. Applicant Regulation(s) affected Nature of the special permits thereof
10704–M ...... Airgas USA, LLC ...... 172.200, 172.400, 172.500, To modify the special permit to authorize additional 2.2 173.302(a), 174.1, 177.800. hazmat. 11911–M ...... Transfer Flow, Inc ...... 177.834(h), 178.700(c)(1) ...... To modify the special permit to authorize two new fuel cap designs. 12479–M ...... Luxfer Inc ...... 173.302a(a)(1) ...... To modify the special permit to authorize passenger car- rying vessel as a mode of transport. 13270–M ...... Joyson Safety Systems Ac- 173.301(a)(1), 173.302(a) ...... To modify the special permit to remove the five year from quisition LLC. manufacture date restriction for transporting. 14175–M ...... Praxair, Inc ...... 180.209(b)(1)(iii), To modify the special permit to clarify what is a package 180.209(b)(1)(iv). and what is a packaging and to authorize a 10-year retest interval for individual DOT specification 3A or 3AA cyl- inders, not exceeding 125 pounds water capacity config- ured into bundles. 14601–M ...... Gulbrandsen Chemicals, Inc .. 173.302a(a)(1) ...... To modify the special permit to authorize the option of re- moving the safety relief system from non-DOT specifica- tion spherical pressure vessels manufactured in accord- ance with the special permit. 15848–M ...... Ambri Inc ...... 173.222(c)(1) ...... To modify the special permit to clarify certain batteries, cells and power systems and the marking requirements for them and to authorize party status to the special permit. 20324–M ...... General Dynamics Mission 172.101(j), 173.185(a)(1)(i) .... To modify the special permit to authorize the transportation Systems, Inc. in commerce of slightly modified designs of approved bat- teries and cells. 20669–M ...... Louisiana Energy Services, 173.420 ...... To modify the special permit to authorize natural uranium. Llc. 20825–M ...... Space Exploration Tech- 172.300, 172.400, 173.302(a) To modify the special permit to authorize additional origina- nologies Corp. tion and destination locations. 20907–M ...... Versum Materials, Inc ...... 171.23(a), 171.23(a)(3) ...... To modify the special permit to remove the requirement for a dedicated fleet for delivery and allow 3rd party vendors to make deliveries. 20942–N ...... Better Horse Inc ...... 172.101(i)(1), 172.200(a), To authorize the transportation in commerce of the Division 172.320(a), 172.400(a), 1.4S articles specified herein as limited quantities. 172.500(a), 173.60(a), 173.63(b). 20969–N ...... Porsche Logistik Gmbh ...... 172.101(j) ...... To authorize the transportation in commerce of lithium bat- teries exceeding 35 kg by cargo-only aircraft. 20994–N ...... SK Innovation Co., Ltd ...... 172.101(j) ...... To authorize the transportation in commerce of lithium ion batteries that exceed 35 kg by cargo-only aircraft. 20996–N ...... Norfolk Southern Railway 174.85(a) ...... To authorize the transportation in commerce of hazardous Company. materials by rail without buffer cars between placarded cars and engines. 21004–M ...... Actia Corporation ...... 173.185(e) ...... To modify the special permit to authorize up to 150 low pro- duction lithium ion batteries to be shipped by motor vehi- cle. 21019–N ...... Halpern Import Company ...... 173.308(c)(2) ...... To authorize the transportation in commerce of lighters in non-DOT specification packaging by private or contract motor carrier, or by common carrier in a motor vehicle under exclusive use, between manufacturing sites, dis- tribution centers and retail outlets. 21024–N ...... Spaceflight, Inc ...... 173.185(a) ...... To authorize the transportation in commerce of low produc- tion lithium batteries contained in equipment that exceed 35 kg by cargo-only aircraft. 21046–N ...... CSX Transportation, Inc ...... 172.203(a), 174.26 ...... To authorize the use of electronic means to maintain and communicate onboard train consist information in place of using paper documentation when hazardous materials are transported by rail, subject to special conditions as pre- scribed in the special permit. (mode 2). 21052–N ...... Siena Plastics LLC ...... 178.601(g)(5)(ii), 178.606 ...... To authorize the manufacture, mark, sale and use of plastic jerricans that have not passed the 28 day stack test. COVID–19 request for hand sanitizer (mode 1).
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SPECIAL PERMITS DATA—DENIED
Application No. Applicant Regulation(s) affected Nature of the special permits thereof
15347–M ...... Raytheon Missile Systems Co 173.301, 173.302a ...... To modify the special permit to authorize passenger car- rying aircraft as a mode of transportation. 20874–N ...... Zhejiang Terong Machinery ...... To authorize the transportation in commerce of 2P con- Co., Ltd. tainers containing liquefied gas. 21005–N ...... Federal Cartridge Company .. 172.203(a), 173.56(h) ...... To authorize the transportation in commerce of ‘‘small arms’’ not conforming to the definition of cartridges, small arms as UN0014. 21007–N ...... Tradewater LLC ...... 173.306(a)(1) ...... To authorize the transportation in commerce of refrigerant gases as limited quantities when in receptacles exceeding 4 fluid ounces. 21023–N ...... Tire Seal, Inc ...... 173.304(d) ...... To authorize the manufacture, mark, sale, and use of cer- tain non-DOT specification inner containers for the trans- portation in commerce of the hazardous materials author- ized by this special permit. 21039–N ...... Advance Stores Company In- 173.6 ...... To authorize the transportation in commerce of hazardous corporated. materials by third-party delivery services as materials of trade in quantities that exceed what is currently author- ized.
SPECIAL PERMITS DATA—WITHDRAWN
Application No. Applicant Regulation(s) affected Nature of the special permits thereof
20991–N ...... Veolia ES Technical Solu- 173.51, 173.54(a), 173.56(b), To authorize the one-time, one-way transportation of unap- tions, LLC. 173.21(b). proved cartridges for tools for the purpose of disposal. 21017–N ...... GBF, Inc ...... 173.199(e) ...... To authorize the transportation in commerce of Category B infectious substances (COVID–19) without requiring ship- pers to have the required training. 21038–N ...... Volvo Cars Of North America, 172.101(j) ...... To authorize the transportation in commerce of lithium ion LLC. batteries exceeding 35 kg net weight by cargo-only air- craft.
[FR Doc. 2020–12122 Filed 6–4–20; 8:45 am] Comments: Comments should identify of your comments, and send two copies. BILLING CODE 4909–60–P the associated OMB approval # 2138– To receive confirmation that DOT 0040 and Docket ID Number DOT–OST– received your comments, include a self- 2014–0031. Persons wishing the addressed stamped postcard. Internet DEPARTMENT OF TRANSPORTATION Department to acknowledge receipt of users may access all comments received their comments must submit with those by DOT at http://www.regulations.gov. Bureau of Transportation Statistics comments a self-addressed stamped All comments are posted electronically postcard on which the following without charge or edits, including any [Docket ID Number DOT–OST–2014–0031] statement is made: Comments on OMB personal information provided. # 2138–0040, Docket—DOT–OST–2014– Privacy Act: Anyone is able to search Agency Information Collection: 0031. The postcard will be date/time the electronic form of all comments Activity Under OMB Review; Report of stamped and returned. Traffic and Capacity Statistics—The T– received into any of our dockets by the 100 System ADDRESSES: You may submit comments name of the individual submitting the identified by DOT Docket ID Number comment (or signing the comment, if AGENCY: Bureau of Transportation DOT–OST–2014–0031 by any of the submitted on behalf of an association, Statistics (BTS), DOT. following methods: business, labor union, etc.). You may ACTION: Notice. Federal eRulemaking Portal: Go to review DOT’s complete Privacy Act http://www.regulations.gov. Follow the Statement in the Federal Register SUMMARY: In compliance with the online instructions for submitting published on April 11, 2000 (65 FR Paperwork Reduction Act of 1995, comments. 19477–78). Public Law 104–13, the Bureau of Mail: Docket Services: U.S. Transportation Statistics invites the Department of Transportation, 1200 Docket: For access to the docket to general public, industry and other New Jersey Avenue SE, West Building read background documents or governmental parties to comment on the Ground Floor, Room W12–140, comments received, go to http:// continuing need for and usefulness of Washington, DC 20590–0001. www.regulations.gov. or the street DOT requiring U.S. and foreign air Hand Delivery or Courier: West address listed above. Follow the online carriers to file traffic and capacity data Building Ground Floor, Room W12–140, instructions for accessing the dockets. pursuant to 14 CFR 241.19 and Part 217, 1200 New Jersey Avenue SE, between 9 Electronic Access respectively. These reports are used to a.m. and 5 p.m. ET, Monday through measure air transportation activity to, Friday, except Federal holidays. You may access comments received from, and within the United States. Fax: 202–366–3383. for this notice at http:// DATES: Written comments should be Instructions: Identify docket number, www.regulations.gov, by searching submitted by July 6, 2020. DOT–OST–2014–0031, at the beginning docket DOT–OST–2014–0031.
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FOR FURTHER INFORMATION CONTACT: develop airport profiles and establish industry. For this purpose, summary Jennifer Rodes, Office of Airline priorities for airport inspections. traffic and capacity data as well as the Information, RTS–42, Room E34–420, detailed segment and market data are Acquisitions and Mergers OST–R, BTS, 1200 New Jersey Avenue essential. These data must be timely and SE, Washington, DC 20590–0001, While the Justice Department has the inclusive to be relevant for analyzing Telephone Number (202) 366–8513, Fax primary responsibility over air carrier emerging issues and must be based Number (202) 366–3383 or EMAIL acquisitions and mergers, the upon uniform and reliable data [email protected]. Department reviews the transfer of submissions that are consistent with the SUPPLEMENTARY INFORMATION: international routes involved to Department’s regulatory requirements. determine if they would substantially OMB Approval No. 2138–0040. Mail Rates Title: Report of Traffic and Capacity reduce competition, or determine if the Statistics—The T–100 System. transaction would be inconsistent with The Department is responsible for Form No.: Schedules T–100 and T– the public interest. In making these establishing international and intra- 100(f). determinations, the proposed Alaska mail rates. International mail Type of Review: Extension of a transaction’s effect on competition in rates are set based on scheduled currently approved collection. the markets served by the affected air operations in four geographic areas: Respondents: Certificated, commuter carriers is analyzed. This analysis Trans-border, Latin America, operations and foreign air carriers that operate to, includes, among other things, a over the Atlantic Ocean and operations from or within the United States. consideration of the volume of traffic over the Pacific Ocean. Separate rates and available capacity, the flight are set for mainline and bush Alaskan T100 Form segments and origins-destinations operations. The rates are updated every Number of Respondents: 119. involved, and the existence of entry six months to reflect changes in unit Number of Annual responses 1,428. barriers, such as limited airport slots or costs in each rate-making entity. Traffic Total Burden per Response: 6 hours. gate capacity. Also included is a review and capacity data are used in Total Annual Burden: 8,568 hours. of the volume of traffic handled by each conjunction with cost data to develop T100F Form air carrier at specific airports and in the required unit cost data. specific markets which would be Essential Air Service Number of Respondents: 190. affected by the proposed acquisition or Number of Annual responses 2,280. merger. The Justice Department uses T– The Department reassesses service Total Burden per Response: 2 hours. 100 data in carrying out its levels at small domestic communities to Total Annual Burden: 4,560 hours. responsibilities relating to airline assure that capacity levels are adequate Needs and Uses: competition and consolidation. to accommodate current demand. Airport Improvement Traffic Forecasting System Planning at Airports The Federal Aviation Administration The FAA uses traffic, operational and The FAA is charged with uses enplanement data for U.S. airports capacity data as important safety administering a series of grants that are to distribute the annual Airport indicators and to prepare the air carrier designed to accomplish the necessary Improvement Program (AIP) entitlement traffic and operation forecasts. These airport planning for future development funds to eligible primary airports, i.e., forecast are used by the FAA, airport and growth. These grants are made to airports which account for more than managers, the airlines and others in the state metropolitan and regional aviation 0.01 percent of the total passengers air travel industry as planning and authorities to fund needed airport enplaned at U.S. airports. Enplanement budgeting tools. systems planning work. Individual data contained in Schedule T–100/T– airport activity statistics, nonstop 100(f) are the sole data base used by the Airport Capacity Analysis market data, and service segment data FAA in determining airport funding. The mix of aircraft types are used in are used to prepare airport activity level U.S. airports receiving significant determining the practical annual forecasts. service from foreign air carriers capacity (PANCAP) at airports as Review of IATA Agreements operating small aircraft could be prescribed in the FAA Advisory receiving less than their fair share of Circular Airport Capacity Criteria Used The Department reviews all of the AIP entitlement funds. Collecting in Preparing the National Airport Plan. International Air Transport Association Schedule T–100(f) data for small aircraft The PANCAP is a safety-related measure (IATA) agreements that relate to fares, operations will enable the FAA to more of the annual airport capacity or level of rates, and rules for international air fairly distribute these funds. operations. It is a predictive measure transportation to ensure that the agreements meet the public interest Air Carrier Safety which indicates potential capacity problems, delays, and possible airport criteria. Current and historic summary The FAA uses traffic, operational and expansions or runway construction traffic and capacity data, such as capacity data as important safety needs. If the level of operations at an revenue ton-miles and available ton- indicators and to prepare the air carrier airport exceeds PANCAP significantly, miles, by aircraft type, type of service, traffic and operation forecasts that are the frequency and length of delays will and length of haul are needed to used in developing its budget and increase, with a potential concurrent conduct these analyses: To (1) develop staffing plans, facility and equipment risk of accidents. Under this program, the volume elements for passenger/ funding levels, and environmental the FAA develops ways of increasing cargo cost allocations, (2) evaluate impact and policy studies. The FAA airport capacity at congested airports. fluctuations in volume of scheduled and monitors changes in the number of air charter services, (3) assess the carrier operations as a way to allocate Airline Industry Status Evaluations competitive impact of different inspection resources and in making The Department apprizes Congress, operations such as charter versus decisions as to increased safety the Administration and others of the scheduled, (4) calculate load factors by surveillance. Similarly, airport activity effect major changes or innovations are aircraft type, and (5) monitor traffic in statistics are used by the FAA to having on the air transportation specific markets.
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Foreign Air Carriers Applications DEPARTMENT OF THE TREASURY (2) the accuracy of the agency’s estimate of the burden of the collection of Foreign air carriers are required to Bureau of the Fiscal Service information; (3) ways to enhance the submit applications for authority to quality, utility, and clarity of the operate to the United States. In Proposed Collection of Information: information to be collected; (4) ways to reviewing these applications the U.S. Treasury Auction Submitter minimize the burden of the collection of Department must find that the requested Agreement information on respondents, including authority is encompassed in a bilateral through the use of automated collection ACTION: Notice and request for agreement, other intergovernmental techniques or other forms of information comments. understanding, or that granting the technology; and (5) estimates of capital application is in the public interest. In SUMMARY: The Department of the or start-up costs and costs of operation, the latter cases, T–100 data are used in Treasury, as part of its continuing effort maintenance, and purchase of services assessing the level of benefits that to reduce paperwork and respondent to provide information. carriers of the applicant’s homeland burden, invites the general public and Dated: June 2, 2020. presently are receiving from their U.S. other Federal agencies to take this Bruce A. Sharp, operations. These benefits are compared opportunity to comment on proposed Bureau Clearance Officer. and balanced against the benefits U.S. and/or continuing information [FR Doc. 2020–12186 Filed 6–4–20; 8:45 am] carriers receive from their operations to collections, as required by the BILLING CODE 4810–AS–P the applicant’s homeland. Paperwork Reduction Act of 1995. Air Carrier Fitness Currently the Bureau of the Fiscal Service within the Department of the DEPARTMENT OF THE TREASURY The Department determines whether Treasury is soliciting comments U.S. air carriers are and continue to be concerning the U.S. Treasury Auction Internal Revenue Service fit, willing and able to conduct air Submitter Agreement. Electronic Tax Administration service operations without undue risk to DATES: Written comments should be Advisory Committee Meeting passengers and shippers. The received on or before August 4, 2020 to Department monitors a carrier’s load be assured of consideration. AGENCY: Internal Revenue Service (IRS), factor, operational, and enplanement ADDRESSES: Direct all written comments Treasury. data to compare with other carriers with and requests for additional information ACTION: Notice of meeting. similar operating characteristics. to Bureau of the Fiscal Service, Bruce A. Carriers that expand operations at a high Sharp, Room #4006–A, PO Box 1328, SUMMARY: The Electronic Tax rate are monitored more closely for Parkersburg, WV 26106–1328, or Administration Advisory Committee safety reasons. [email protected]. (ETAAC) will hold a virtual public meeting on Wednesday, June 24, 2020. SUPPLEMENTARY INFORMATION: International Civil Aviation FOR FURTHER INFORMATION CONTACT: Mr. Organization Title: U.S. Treasury Auction Submitter Agreement. Sean Parman, Office of National Public Liaison, at (202) 317–6247, or send an Pursuant to an international OMB Number: 1530–0056. email to [email protected]. agreement, the United States is Form Number: FS Form 5441 and FS SUPPLEMENTARY INFORMATION: obligated to report certain air carrier Form 5441–2. Notice is hereby given pursuant to section data to the International Civil Aviation Abstract: The information is 10(a)(2) of the Federal Advisory Organization (ICAO). The traffic data requested from entities wishing to Committee Act, 5 U.S.C. App. (1988), supplied to ICAO are extracted from the participate in U.S. Treasury Securities that a virtual public meeting of the U.S. air carriers’ Schedule T–100 auctions via TAAPS. ETAAC will be held on Wednesday, submissions. Current Actions: Revision of a currently approved collection. June 24, 2020 from 9:00 a.m. to 11:00 The Confidential Information Type of Review: Regular. a.m. The purpose of the ETAAC is to Protection and Statistical Efficiency Act Affected Public: Depository provide continuing advice with regard of 2002 (44 U.S.C. 3501 note), requires Institutions, Brokers/Dealers, to the development and implementation a statistical agency to clearly identify Assessment Management Companies, of the IRS organizational strategy for information it collects for non-statistical Pension Funds, and other Institutional electronic tax administration. ETAAC is purposes. BTS hereby notifies the Investors. an organized public forum for respondents and the public that BTS Estimated Number of Respondents: discussion of electronic tax uses the information it collects under 1,050. administration issues such as this OMB approval for non-statistical Estimated Time per Respondent: 5 prevention of identity theft and refund purposes including, but not limited to, minutes. fraud. It supports the overriding goal publication of both Respondent’s Estimated Total Annual Burden that paperless filing should be the identity and its data, submission of the Hours: 88. preferred and most convenient method information to agencies outside BTS for Request for Comments: Comments of filing tax and information returns. review, analysis and possible use in submitted in response to this notice will ETAAC members convey the public’s regulatory and other administrative be summarized and/or included in the perceptions of IRS electronic tax matters. request for OMB approval. All administration activities, offer comments will become a matter of constructive observations about current Issued on May 13, 2020. public record. Comments are invited on: or proposed policies, programs and William Chadwick, Jr., (1) Whether the collection of procedures, and suggest improvements. Director, Office of Airline Information, information is necessary for the proper Please call or email Sean Parman to Bureau of Transportation Statistics. performance of the functions of the confirm your attendance. Mr. Parman [FR Doc. 2020–12159 Filed 6–4–20; 8:45 am] agency, including whether the can be reached at 202–317–6247 or BILLING CODE 4910–9X–P information shall have practical utility; [email protected]. Should you wish
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the ETAAC to consider a written The Committee advises the Chief 92–463, as amended, closing portions of statement, please call 202–317–6247 or Research and Development Officer on this meeting is in accordance with 5 email: [email protected]. the relevance and feasibility of proposed U.S.C. 552b(c)(6) and (c)(9)(B). Dated: June 2, 2020. projects and the scientific validity and The Committee will not accept oral propriety of technical details, including comments from the public for the open John Lipold, protection of human subjects. portion of the meeting. Members of the Designated Federal Official, Branch Chief, The session will be open to the public public who wish to attend the open National Public Liaison. for approximately 30 minutes at the teleconference should call 1–800–767– [FR Doc. 2020–12265 Filed 6–4–20; 8:45 am] start of the meeting for the discussion of 1750 using the passcode 22524#. Those BILLING CODE 4830–01–P administrative matters and the general who plan to attend or wish additional status of the program. The remaining information should contact Grant portion of the meeting will be closed to Huang, MPH, Ph.D., Director, the public for the Committee’s review, Cooperative Studies Program (10X2), DEPARTMENT OF VETERANS discussion, and evaluation of research Department of Veterans Affairs, 810 AFFAIRS and development applications. Vermont Avenue NW, Washington, DC During the closed portion of the 20420, at (202) 443–5700 or by email at Cooperative Studies Scientific meeting, discussions and [email protected]. Those wishing to Evaluation Committee, Amended recommendations will deal with submit written comments may send Notice of Meeting qualifications of personnel conducting them to Dr. Huang at the same address the studies, staff and consultant and email. The Department of Veterans Affairs critiques of research proposals and gives notice under the Federal Advisory similar documents, and the medical Dated: June 2, 2020. Committee Act that the Cooperative records of patients who are study LaTonya L. Small, Studies Scientific Evaluation Committee subjects, the disclosure of which would Federal Advisory Committee Management will hold a meeting on July 15, 2020 by constitute a clearly unwarranted Officer. videoconference. The meeting will invasion of personal privacy. As [FR Doc. 2020–12248 Filed 6–4–20; 8:45 am] begin at 8:30 a.m. and end at 4:30 p.m. provided by section 10(d) of Public Law BILLING CODE P
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Part II
Department of the Treasury
Office of the Comptroller of the Currency 12 CFR Parts 25 and 195 Community Reinvestment Act Regulations; Rule
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DEPARTMENT OF THE TREASURY Community Reinvestment Act (CRA).3 of Proposed Rulemaking (ANPR) 5 and The OCC believes that the CRA the more than 7,500 comments on the Office of the Comptroller of the regulatory framework must be Notice of Proposed Rulemaking (NPR or Currency strengthened and modernized. The goals proposal),6 have been constructive and of this reform are to make the informative. The OCC’s final rule adopts 12 CFR Parts 25 and 195 framework more objective, transparent, many important changes suggested by or [Docket ID OCC–2018–0008] consistent in application, and reflective made in response to stakeholders and, of changes in banking. Accomplishing as a result, better achieves the goals of RIN 1557–AE34 these goals would make the CRA reform. framework a better tool to encourage II. Overview of Final Rule Community Reinvestment Act national banks and savings associations Regulations (banks) 4 to engage in more activities to The final rule makes changes in four AGENCY: Office of the Comptroller of the serve the needs of their communities, areas of the CRA framework. Currency, Treasury. particularly in low- and moderate- Specifically, the final rule: (1) Clarifies and expands the bank lending, ACTION: Final rule; temporary final rule. income (LMI) communities and other communities that have been investment, and services (collectively, SUMMARY: The Office of the Comptroller underserved under previous versions of qualifying activities or CRA activities) of the Currency (OCC) is adopting a the CRA regulatory framework. that qualify for positive CRA final rule to strengthen and modernize Together, the OCC-regulated banks consideration; (2) updates how banks the Community Reinvestment Act (CRA) covered by this final rule conduct a delineate the assessment areas in which by clarifying and expanding the majority of all CRA activity in the they are evaluated; (3) provides activities that qualify for CRA credit; United States. additional methods for evaluating CRA updating where activities count for CRA The OCC has engaged stakeholders performance in a consistent and credit; creating a more consistent and and sought public input on CRA reform objective manner; and (4) requires objective method for evaluating CRA over the past three years. Stakeholders reporting that is timely and transparent. performance; and providing for more generally agree with the need for reform The new framework incentivizes timely and transparent CRA-related data and with the goals of increasing the banks to achieve specific performance collection, recordkeeping, and amount of CRA activity, expanding the goals; this is in contrast to the previous reporting. geographic scope of where CRA rule, under which banks received activities are measured, and improving ratings based primarily on a curve DATES: This rule is effective on October the ability of regulators and the public compared to their peers’ performance. 1, 2020. Banks must comply with the to measure CRA activity levels. Timely and transparent CRA data, final amendments by October 1, 2020, Disagreements about reform focus including CRA performance evaluations January 1, 2023, or January 1, 2024, as almost entirely on the details of how to (CRA PEs), will provide meaningful applicable, except that appendix C to achieve these goals under a modernized information to all stakeholders, rather part 25 expires January 1, 2024. See CRA regulatory framework, not whether than to relatively few experts. SUPPLEMENTARY INFORMATION for to modernize the framework. This final rule augments and makes compliance details. Stakeholders’ perspectives on the changes to aspects of the current FOR FURTHER INFORMATION CONTACT: specific details of reform, including framework that have unintentionally Vonda Eanes, Director for CRA and Fair those expressed in the more than 1,500 inhibited banks’ CRA activity by Lending Policy, Bobbie K. Kennedy, comments on the OCC’s Advance Notice creating uncertainty about which Technical Expert for CRA and Fair activities qualify and how much those Lending, or Karen Bellesi, Director for 3 Public Law 95–128, 91 Stat. 1147 (1977), activities contribute to a bank’s CRA Community Development, Bank codified at 12 U.S.C. 2901 et seq. The CRA was rating. As a result, many banks engage Supervision Policy, (202) 649–5470; or enacted to promote access to credit by encouraging only in CRA activities for which they banks to serve their entire communities. During this Karen McSweeney, Special Counsel, time period, in the 1960s and 1970s, Congress also previously received CRA consideration Allison Hester-Haddad, Counsel, Emily enacted fair lending laws to address fairness and and commit capital and credit only in R. Boyes, Counsel, or Elizabeth Small, access to housing and credit. In 1968, Congress amounts they are confident will receive Senior Attorney, Chief Counsel’s Office, passed the Fair Housing Act, 42 U.S.C. 3601 et seq., positive consideration—at the cost of to prohibit discrimination in renting or buying a (202) 649–5490, Office of the home. In 1974, Congress passed the Equal Credit innovation and responsiveness. In Comptroller of the Currency, 400 7th Opportunity Act, 15 U.S.C. 1691 et seq. (amended addition to disincentivizing all but the Street SW, Washington, DC 20219. For in 1976), to prohibit creditors from discriminating most clear-cut CRA activities by banks, persons who are deaf or hearing against an applicant on the basis of race, color, the current framework’s lack of religion, national origin, sex, marital status, or age. impaired, TTY users may contact (202) These fair lending laws provide a legal basis for consistent and objective evaluations and 649–5597. prohibiting discriminatory lending practices, such timely and transparent reporting SUPPLEMENTARY INFORMATION: as redlining. Interagency Fair Lending Examination inhibits the public’s ability to Procedures, p. iv (Aug. 2009), available at https:// understand how and to what extent I. Introduction www.ffiec.gov/PDF/fairlend.pdf. 4 The rulemaking authority of the Office of Thrift banks are meeting community credit The Office of the Comptroller of the Supervision (OTS) and the Director of the OTS, needs. Currency (OCC or agency) 1 is adopting respectively, relating to savings associations was Moreover, the predominantly a final rule 2 to strengthen and transferred to the OCC in Title III of the Dodd– subjective nature of the current modernize implementation of the Frank Wall Street Reform and Consumer Protection framework means that an individual Act, Public Law 111–203, 124 Stat. 1376, 1522 (2010). As a result, the OCC has CRA rulewriting bank’s CRA rating is not a reliable 1 The OCC is the primary regulator for national authority for both federal and state savings indicator of the actual volume of that banks and federal savings associations. associations, in addition to national banks. In bank’s CRA activity. In the OCC’s 2 The Federal Deposit Insurance Corporation addition, as used throughout this rulemaking, the analysis of historical CRA ratings (FDIC) has elected not to join this final rule. To term bank or banks also includes uninsured federal reflect this, the final rule includes conforming and branches that result from an acquisition described technical changes from the Notice of Proposed in section 5(a)(8) of the International Banking Act 5 83 FR 45053 (Sept. 5, 2018). Rulemaking published on Jan. 9, 2020 (85 FR 1204). of 1978 (12 U.S.C. 3103(a)(8)). 6 85 FR 1204 (Jan. 9, 2020).
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distributions, the agency found that it is supporting community reinvestment gathers deposits—and the current extremely rare for banks to receive and development. In addition, the framework. To close the gap, under the ratings in the two lowest ratings—needs qualifying activities criteria capture final rule, banks that collect deposits to improve and substantial activities that are consistent with the above a threshold percentage of their noncompliance. Less than three percent statutory purpose of the CRA but that total retail domestic deposits from of banks received such ratings, while generally may not receive credit, such outside of their physical branch nearly 74 percent of the banks were as: (1) Certain activities in identified footprint must delineate additional rated satisfactory and almost 24 percent areas of need beyond LMI areas (i.e., assessment areas in those areas where were rated outstanding.7 Using the underserved areas, distressed areas, they draw more than a certain Home Mortgage Disclosure Act (HMDA) disaster areas, Indian country and other percentage of deposits. The final rule and CRA small business loan and small tribal and native lands); 9 and (2) a sets the threshold percentage for farm loan data, the agency found only limited set of activities that benefit a requiring a bank to delineate these a weak positive relationship between a whole community, while maintaining deposit-based assessments areas at a bank’s CRA rating and its CRA an appropriate focus on LMI level that will not affect the vast activities. While incorporating neighborhoods. Where appropriate, the majority of traditional banks but that community development (CD) lending criteria exclude activities that may have will generally capture other banks and investments helped explain some of qualified for CRA consideration in the whose business models are significantly the variation in CRA ratings, a past, like loans to middle- and upper- different than the models used when the significant amount of the variation income borrowers in LMI census tracts, CRA regulations were last reformed, remained unexplained.8 in order to emphasize activities that such as internet banks and banks with By moving from a system that is support LMI populations and areas and large amounts of deposits sourced primarily subjective to one that is other communities of need. outside of the area where its main office primarily objective and that increases Assessment areas. The purpose of the is located. clarity for all banks, CRA ratings will be CRA is to encourage banks to engage in The final rule recognizes, however, more reliable, reproducible, and CRA qualifying activities in those areas the continuing significance of branches. comparable overtime. Under the where they collect deposits. Over forty The final rule retains the requirement agency’s final rule, the same facts and years ago (when the CRA was enacted) that banks delineate assessment areas circumstances will be evaluated in a and through 1995 (when the last major around their physical deposit-taking similar manner regardless of the revisions to the CRA regulatory locations, in recognition of the particular region or particular examiner. framework were made), bank branches importance of branches to the CRA. CRA activities will be treated in a were the primary means by which banks Branches continue to play a large and consistent manner from bank to bank. gathered deposits and, in turn, delivered important role in meeting certain Qualifying Activities. Since 1977, financial products and services to their communities’ needs and serving certain banks, regulators, community groups, customers. During this period, the populations. By preserving facility- and others have evaluated CRA number and placement of branches based assessment areas in the final rule, activities in the absence of closely reflected the distribution of the the agency continues to encourage comprehensive criteria for what areas where banks received deposits. In banks to maintain their branches. qualified for CRA consideration or a list this historical context, the focus in the In creating a framework that equalizes of activities that have previously current regulations solely on branch treatment between traditional branch- based banks and banks that gather received credit. As a result, the locations for determining where bank activities given CRA consideration have deposits through the internet and other CRA activities are considered made varied from examiner to examiner, bank non-branch-based channels, the agency sense; it ensured that banks reinvest to bank, region to region, and time has relied on its supervisory experience capital and credit in the communities period over time period. The and judgment, as well as an from which they draw deposits due to modernized framework in the final rule understanding of the banking industry. their branch presence and addressed eliminates these variations in treatment. The agency chose to leverage its certain issues that would arise if banks The modernized framework sets forth experience and judgment in part took deposits from one community and criteria for qualifying activities that because the currently available deposit lent that capital in another, perhaps capture the activities that currently data is incomplete and does not provide receive CRA consideration and are more profitable or affluent, community. the depositors’ locations. widely recognized by stakeholders as Over the past 25 years, however, an Measurements. Because the CRA increasingly large number of banks regulatory framework historically has have, in whole or in part, adopted new 7 Distribution of ratings is based on the OCC’s not provided a consistent and objective analysis of the Federal Financial Institutions business models in which they collect means to measure a bank’s CRA activity, Examination Council (FFIEC) CRA data and covers significant deposits from areas far examiners have been left to apply their over 1,500 CRA PEs published between 2006 and outside of their physical branch 2018, pertaining to banks with assets over the small best subjective judgment to assess a bank asset size that are regulated by the OCC, FDIC, footprint. The current regulatory bank’s performance and to assign or Board of Governors of the Federal Reserve framework’s reliance on branch ratings. To do this, examiners System (Board). footprint as the sole basis for delineating considered two primary aspects of a 8 Findings on the relationship between ratings a bank’s CRA assessment areas thus no and CRA qualifying lending activities are based on bank’s CRA activity: (1) The distribution several analyses using different data sources: FFIEC longer aligns adequately with where a of the number of its retail lending CRA data for over 1,500 CRA PEs published given bank does business. As this activities (i.e., home mortgage loans, between 2006 and 2018, pertaining to banks with misalignment grows, the gap has grown small loans to businesses, small loans to assets over the small bank asset size that are between the purpose of the CRA—to regulated by the OCC, Board, or FDIC; a sample of farms, and consumer loans); and (2) and over 200 CRA PEs completed between 2011 and assess a bank’s CRA activity where it the impact of the dollar value of CD 2018, pertaining to over 150 OCC-regulated banks activities. When measuring the with assets over the small bank asset size; and data 9 As discussed below, in response to comments, compiled by the Board from nearly 1,900 CRA PEs the agency changed the definition of Indian country distribution of retail lending, examiners completed between 2005 and 2017, pertaining to and added a new definition for other tribal and evaluated the geographic and borrower over 1,200 banks. native lands in the final rule. distribution of this activity. When
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measuring the dollar impact of CRA understanding of the CRA activities of objective and transparent to enable activities, examiners generally measured individual banks and of cross-sections consistent application of the rule, the dollar amount of retail lending and of the industry. Over time, better data thereby providing regulatory certainty CD activities, as well as the hours of CD will allow the agency to adjust for covered institutions.13 Achieving services engaged in by a bank. periodically the thresholds in the new these objectives would, over time, Examiners also considered qualitative framework (e.g., for delineating deposit encourage insured depository factors that are more difficult to assessment areas and for the level of institutions 14 to better meet the credit, quantify, such as responsiveness, performance necessary to achieve each investment, and other financial services innovativeness, and complexity. The rating category). Objective measures, needs of their entire communities, final rule builds on these existing reported in a transparent manner, will including LMI areas, by conducting methods of assessing CRA performance allow interested parties to assess more CRA activity and serving more of by spelling out the distribution and performance and progress for their communities, including identified impact analysis in new performance themselves. This information will areas of need. The proposal applied to standards upon which examiners can improve and accelerate decision making insured depository institutions base their judgments in determining by the agency and ensure that ratings regulated by both the OCC and FDIC, ratings. At a later date, the agency will are more accurate reflections of the level which include national banks, federal set the objective thresholds and of CRA activity being conducted. and state savings associations, and state benchmarks for the level of performance III. Background banks that are not members of the necessary to achieve each rating Federal Reserve System. category; these thresholds and The agency’s current efforts to To achieve the purpose of benchmarks will be applied as of the strengthen and modernize the CRA encouraging banks to conduct more compliance date applicable to each regulatory framework began in 2018 but CRA activities in the communities they bank. attempts at reform have spanned the serve, including LMI areas, the proposal To provide a more objective and past decade. The agency, along with the introduced changes to modernize the consistent means of evaluating these Board and the FDIC, worked together on CRA rule to reflect changes in banking activities, the final rule establishes an an ANPR, which the OCC issued in over the past 25 years. The evaluation method that assesses a bank’s August 2018 and, as noted above, improvements embodied in the retail lending and CD activities by received more than 1,500 comments.10 proposed changes fell into four general considering: (1) The distribution of During that same period, the OCC, FDIC, categories. First, the proposal sought to retail lending activities relative to LMI and Board engaged with stakeholders, clarify what bank activities qualify for populations and LMI census tracts in a including civil rights organizations, positive CRA consideration. Second, the bank’s assessment areas; and (2) the community groups, members of proposal sought to update how banks impact of all CRA activity, measured in Congress, academics, and banks, to delineate the assessment areas in which dollars. Quantifying these activities will obtain their perspectives and feedback they are evaluated. Third, the proposal help provide a more complete picture of on all aspects of the CRA and potential sought to evaluate bank CRA the impact of a bank’s CRA activity. The improvements that could be made to the performance more objectively. And final rule also provides quantitative CRA regulatory framework. While the fourth, the proposal sought to provide credit for branches in, or that serve, LMI feedback confirmed that the CRA has more transparent and timely reporting. census tracts or other identified areas of historically been an important tool for The proposal clarified which need. Furthermore, the final rule promoting lending, investment, and activities would have been qualifying by provides for consideration of the services for community revitalization in including detailed qualifying activities qualitative aspects of CRA activities by neighborhoods across the country, many criteria and requiring the periodic including an assessment of a bank’s stakeholders stated that the current CRA publication of a non-exhaustive, performance context. To promote more regulatory framework lacks objectivity, illustrative list of examples of qualifying consistent consideration of these transparency, and fairness; is applied activities. The proposal also established qualitative aspects, the final rule inconsistently; and is hard to a process for banks to seek agency contains performance context factors understand. Stakeholders observed that confirmation that an activity is a that are based on the factors in the evaluation under the current regulatory qualifying activity.15 current regulation and on input from framework of banks’ CRA activities— The proposal expanded where CRA examiners. As discussed below, the including what type of activities count, activity counts by requiring banks to agency will issue guidance to help where they count, and how they delineate deposit-based assessment further standardize how examiners count—is inconsistent, opaque, and areas where they have significant apply performance context in CRA complex.11 concentrations of retail domestic evaluations. In December 2019, the OCC and FDIC deposits. The proposal provided an Reporting. Under the current CRA (agencies) jointly released the objective method to measure CRA regulatory framework, banks’ CRA PEs proposal 12 noted above, which was can be extremely lengthy and in excess designed to strengthen and modernize 13 Some commenters on the ANPR stated that: (1) of 1,000 pages. CRA PEs can also be the regulations that implement the CRA. CRA PEs and ratings are subjective and inconsistent years in the making, in which case they The proposed changes were designed to and (2) the current framework is applied provide an outdated and stale make the CRA regulations more inconsistently and hard to understand. assessment of bank performance. They 14 12 U.S.C. 1813(c)(2). can be difficult to use, and it can be 15 As discussed below, the final rule retains for 10 Supra note 5. certain banks the small bank performance standards hard to draw comparisons from bank-to- 11 85 FR 1204, 1206 (Jan. 9, 2020). in the current regulations and the community bank or from one bank’s evaluation to 12 See, e.g., OCC News Release 2019–147 (Dec. 12, development test for wholesale and limited purpose the next. As a result of the changes in 2019), available at https://occ.gov/news-issuances/ banks, which is renamed the wholesale and limited the final rule, examiners will be able to news-releases/2019/nr-ia-2019-147.html; FDIC FIL– purpose performance standards. See 12 CFR 25.25; 81–2019 (Dec. 13, 2019), available at https:// 25.26; 195.25; 195.26. The agency intends for these produce more consistent, useful, and www.fdic.gov/news/news/financial/2019/ standards to be applied consistent with the current timely CRA PEs that will enable banks, fil19081.html. The NPR was published in the regulations except as expressly provided for in this regulators, and others to have a better Federal Register on Jan. 9, 2020. See supra 6. final rulemaking.
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activity by establishing new general service, and qualifying activities in CRA proposed requirement that a bank performance standards to evaluate CRA deserts. delineate deposit-based assessment activities. The proposal also required In contrast, many commenters areas only if it receives 50 percent or banks to collect, maintain, and report expressed concern that the expanded more of its deposits from areas outside certain data related to their qualifying qualifying activities criteria could divert its assessment areas to a lower activities, certain non-qualifying activity from LMI individuals and percentage; and (2) delineating deposit- activities, retail domestic deposits, communities, as well as from businesses based assessment areas based on a performance context, and assessment and farms most in need of credit. Other bank’s deposit market share in given areas. As with other regulatory commenters recommended that any list geographic markets, instead of the initiatives, the OCC would have of examples of qualifying activities be percentage of the particular bank’s provided guidance and assistance to published for public comment before deposits, as proposed. They also help ensure compliance.16 inclusion in a final rule, or they simply expressed concern that the proposal’s These proposed changes were recommended against a list. Others approach to providing banks credit for designed to promote greater regulatory asserted that a list would be confusing, activities outside of their assessment certainty and consistency, which the could discourage activities that are not areas was underdeveloped and would agency believes will encourage banks to listed, and would raise legal issues encourage banks to engage in activities engage in more activities. Increased because of alleged procedural that are larger in dollar value and easier objectivity coupled with more deficiencies with the proposed to do. comprehensive data collection and qualifying activities list confirmation The agency also received comments reporting would allow observers to process. on the performance standards set out in know the extent of CRA activity banks Some industry commenters also the proposal. Some of these commenters are conducting, what sorts of CRA criticized aspects of the proposal, supported tailored benchmarks for the activities are being conducted, and including that the proposal undervalued CRA evaluation measure.18 They stated where that activity is occurring. This retail loans originated and sold within that the pass/fail nature of the retail additional transparency would promote 90 days. lending distribution tests,19 CD With respect to the proposal’s greater accountability through more minimums, and significant portion treatment of where qualifying activities objective ratings and improved ability to threshold did not provide the count, many commenters supported the compare a bank’s performance against appropriate flexibility for the diversity proposed approach. Some industry the industry and its peers over time. of banking business models and local commenters and community groups community conditions. Instead, they IV. Comments Received on the NPR expressed concern, however, about the supported gradations in performance The OCC received more than 7,500 data on which the deposit-based levels for these standards. Some comments on the proposal, representing assessment area concept was based, and commenters questioned whether retail a wide range of viewpoints.17 These some also questioned whether this comments came from a variety of concept would address CRA hot spots domestic deposits, as defined in the stakeholders and interested parties, and credit deserts. Commenters from proposal, is the appropriate including the banking industry, industry that discussed the deposit- denominator for the CRA evaluation community and other advocacy groups, based assessment area framework measure. Congress, state and local governments, opposed the establishment of deposit- Several industry commenters asserted academia, and the general public. based assessment areas because of that the data analysis and rationale Commenters endorsed the potential costs to collect additional data, behind the proposed performance clarifications regarding qualifying concerns about the safety and standards were not adequately set forth activities, the establishment of a soundness of lending in areas where in the NPR or were unclear. Some qualifying activities list, and the banks have no physical presence, and commenters requested that the agency creation of a confirmation process. the belief that these new assessment make publicly available the relevant Some supported providing CRA credit areas would exacerbate CRA hot spots data and analysis upon which it relied. for all activities that formerly qualified and deserts. Some of these commenters These commenters advocated for further as economic development, and others generally supported retaining the data gathering and testing of the supported credit for all legally-binding facility-based assessment areas and performance standards prior to the commitments to lend. Some industry either making changes to the proposed issuance of the final rule. commenters and community groups thresholds for deposit-based assessment Community groups and other supported credit for all loans to non- areas or to the treatment of out-of- commenters expressed concern that the LMI individuals in LMI areas. Other assessment area qualifying activities. proposed performance standards could industry commenters also supported Some commenters supported the ability lead to a focus on large transactions at multipliers for donations, volunteer of banks to tailor their assessment areas the expense of smaller activities, which to geographic areas smaller than a they believe would be more responsive 16 As the agency has done in other circumstances, county to reflect only the areas where to community needs. They also opposed such as the current expected credit loss accounting banks can be reasonably expected to allowing a bank to receive a satisfactory standard that was issued in June 2016, the agency overall rating automatically if it plans to develop webinars and other guidance and serve, as is possible under the current resources to help ensure compliance with the final regulations. received a satisfactory rating in a rule. See Current Expected Credit Losses (CECL) Some community groups criticized Methodology, available at https://www.occ.gov/ the proposed deposit-based assessment 18 Other commenters supported the proposed use topics/supervision-and-examination/bank- of multipliers for certain activities. Additionally, operations/accounting/current-expected-credit- area thresholds on the grounds that they commenters suggested that benchmarks be losses/index-current-expected-credit-losses.html. were not adequately supported and said established for each major type of qualifying 17 The NPR’s comment period was initially set to the proposal would either do little to activity. end on Mar. 9, 2020. In response to requests from alleviate or would exacerbate CRA 19 Under the proposal, the retail lending stakeholders and to ensure that members of the distribution tests are used to evaluate a bank’s retail public had ample time to review and comment on deserts, particularly in small and rural lending activities, which include home mortgage the proposal, the comment period was extended communities. Those groups loans, small loans to businesses, small loans to until Apr. 8, 2020. See 85 FR 10996 (Feb. 26, 2020). recommended: (1) Changing the farms, and consumer loans.
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significant portion of its assessment burdens by relying on existing datasets activities will receive credit in the areas and in those assessment areas and data collection processes and by future.22 where it receives a significant amount of offering webinars and seminars to assist The proposal included detailed deposits. These commenters supported banks. qualifying activities criteria that a more complex and subjective After carefully reviewing and clarified what type of activities would approach that would retain the existing considering all of the comments count for CRA credit and expanded the tests and maintain qualitative received, the OCC is adopting this final activities that would count to include considerations while adding rule. Although commenters disagreed additional activities that were consistent quantitative guidelines, as well as with the approach outlined in the with the stated purpose of the CRA. The additional gradations to the retail proposal, the agency ultimately agreed proposal also provided a process for lending distribution tests. with the minority of commenters who confirming whether an activity is Some industry commenters and expressed support for the proposed qualifying before commencement of the others advocated for the small bank framework. The lodestar for this new activity and included a publicly exemption threshold to be higher than CRA framework is increased available non-exhaustive, illustrative the proposed $500 million, transparency, objectivity, and list of examples of qualifying activities recommending that, at a minimum, the consistency in application, which will that meet or do not meet the criteria in exemption cover banks that are help the OCC achieve the objective of the rule (CRA illustrative list). intermediate small banks 20 under the the CRA—to encourage banks to meet These proposed changes addressed current regulations. In contrast, the credit needs of their entire current impediments to engaging in community groups and other communities, including LMI CRA activities and would have provided commenters opposed the small bank individuals and areas. The agency is banks with greater certainty and exemption or any increase in the also cognizant that not every aspect of predictability regarding whether certain thresholds because the small bank every CRA activity can be quantified activities would qualify for CRA credit. performance standards do not evaluate and, for those items, it has sought to The OCC received many comments on CD activity. In addition, some industry qualitatively capture the subjective the proposed qualifying activities; the commenters voiced concerns with the elements. This new framework will OCC’s responses are set forth below. NPR’s treatment of banks that are strengthen and modernize the CRA Qualifying activities criteria and designated as wholesale and limited regulations and encourage banks to scope. In the proposal, the agency purpose banks under the current more effectively help meet the credit clarified the activities that would regulations. needs of their entire communities, qualify for CRA credit by defining a The OCC also received numerous including LMI individuals and qualifying activity as an activity that comments on proposed data collection, communities, by conducting more CRA helps meet the credit needs of a bank’s recordkeeping, and reporting activities and serving more of their entire community, including LMI individuals and communities and requirements. Commenters expressed communities. In the OCC’s view, these setting forth clearly defined qualifying concern that the costs associated with outcomes better align with, and thus are activities criteria, which identified the the data requirements would outweigh a better way to implement the CRA types of activities that would meet the the benefits associated with the changes. statute than, the current framework. credit needs of banks’ communities. The These commenters highlighted the Moreover, in response to comments, the proposed criteria included activities ongoing nature of the costs and the final rule takes a more incremental that currently qualify for CRA potential need for several additional approach to reform that appropriately personnel with specialized skills. These consideration. In this regard, the agency accounts for the differences among the commenters also explained that most incorporated some of the guidance on categories of institutions that are subject banks cannot rely on or modify their activities that currently receive credit to the CRA. current systems to produce or maintain under the Interagency Questions and the data; if the requested data are V. Section-by-Section Discussion Answers Regarding Community available, the data are frequently stored Reinvestment (Interagency Q&As),23 A. Qualifying Activities in different systems. In some cases, the such as affordable housing for middle- required data simply do not exist, Overview. Since 1977, community income individuals and families in especially for consumer loans. stakeholders, banks, and regulators have high-cost areas, into the qualifying Commenters also emphasized the costs evaluated banks’ CRA performance activities criteria. The proposed criteria of geocoding deposit accounts, without an approved illustrative list of also expanded the activities that would particularly for small banks, which may qualifying CRA activities. Without an count as qualifying activities to include require manual research and input for a illustrative list or detailed qualifying other activities that meet the credit non-negligible amount of data. These activities criteria, the activities that have needs of economically disadvantaged commenters also explained the received credit have varied from bank to painstaking steps and documentation bank, region to region, and time period 22 For example, while stakeholders expressed associated with validating and verifying over time period.21 Thus, to avoid the support for banks engaging in activities outside of uncertainty created by the lack of clarity their assessment areas, banks are inhibited from the accuracy of the new data collection. doing so today due to the limitations on where Other commenters suggested regarding which activities will receive qualifying activities can count outside of additional, more granular data CRA credit, banks currently tend to assessment areas and the uncertainty of not reporting, and many community groups gravitate to a few types of activities that knowing if they have done enough in their and individuals suggested making have received consideration in the past assessment areas for their outside activities to count in circumstances where banks may count qualifying information collected under the final because they are more confident those activities outside of their assessment areas. regulations publicly available. Some Commenters to the CRA ANPR stated that the commenters recommended that the 21 Under this approach, banks often are uncertain ambiguity over what types of activities qualify for agency take steps to minimize data about whether an activity will qualify for CRA CRA consideration under the current framework consideration until their supervisory agency makes discourages certain types of CRA activity in LMI collection, recordkeeping, and reporting a determination in a CRA evaluation, which often census tracts and other identified areas of need. See happens years after the bank engaged in the activity 85 FR 1204, 1207 (Jan. 9, 2020). 20 12 CFR 25.12(u); 195.12(u). in question. 23 See 81 FR 48505 (July 25, 2016).
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individuals and entities, LMI census with the term CD investment.25 A few investments are described in the tracts, and other identified areas of need industry commenters sought Interagency Q&As, which explain how in banks’ communities. This expansion clarification as to whether the proposal they are considered under the lending recognized that there are additional intended to expand the range of test, investment test, or both.27 Equity activities that meet the credit needs of investments eligible for CRA credit to equivalent investments that meet the these populations and areas that are encompass investments that would not definition of CD investment and one of consistent with the statutory purpose of be considered public welfare the qualifying activities criteria will the CRA but that do not currently investments under the OCC’s receive credit under the final rule. qualify for CRA credit. The proposed regulations, 12 CFR part 24 (part 24).26 Moreover, all CD investments are changes generally expanded, not Commenters also asked whether part 24 eligible for a multiplier. Thus, even reduced, the type of activities that would be amended by replacing the though the final rule does not provide would have qualified for CRA credit but current cross-reference to qualified the same formula for determining the remained consistent with the statutory investment with a reference to CD consideration provided for equity purpose of encouraging banks to serve investment. The agency is clarifying that equivalent investments as described in their entire communities, including LMI the purpose of the proposed change the Interagency Q&As, the final rule neighborhoods. from qualified investment to CD nonetheless recognizes the value that The OCC received a variety of investment was to use consistent these activities contribute to comments on the proposed qualifying terminology for loans, investments, and communities. activities criteria and related services with a CD purpose. In this Consumer loans. The NPR would definitions. Some commenters regard, the agency is also clarifying that have defined consumer loans with supported the expansion and activities that currently receive CRA reference to the Call Report,28 and these clarification of the activities that would consideration as qualified investments loans would have been included in all qualify for CRA credit. Others argued would receive CRA consideration as CD CRA evaluations as retail loans. that the proposal contravened the text investments. The OCC, as part of its Specifically, the proposal defined and purpose of the CRA by not focusing ongoing regulatory activities, strives to consumer loan as a loan reported on the appropriately on LMI communities and ensure that nomenclature is up-to-date Call Report, Schedule RC–C, Loans and individuals, and they expressed concern and consistent across its regulations. Lease Financing Receivables, Part 1, that, if adopted, the proposal would The OCC anticipates that it will Item 6, Loans to individuals for negatively impact, and reduce consider and make any needed household, family, and other personal investment in or benefits to, these areas adjustments to part 24. The OCC is expenditures.29 and populations. Commenters expressed adopting the CD investment definition The agency received several their opinion that the proposal would with minor clarifying changes to make comments on the definition of consumer incentivize banks to focus on higher clear that monetary donations and in- loans and their inclusion in CRA dollar projects rather than smaller, more kind donations are two separate types of evaluations. Many of these commenters targeted loans, investments, and grants. investments and is separately defining expressed concern with the inclusion of Some community group and industry monetary donation and in-kind consumer lending activities because of commenters suggested that banks donation. the burden associated with collecting should continue to receive credit for The agency is also clarifying that, as more general areas of economic proposed, the criteria for qualifying 27 See Interagency Q&As §§ __.22(d)—1 and __ development, workforce development, activities encompasses activities that .23(b)—1, 81 FR at 48540. 28 Call Report means the Consolidated Reports of and job creation activities. At least a few currently receive CRA consideration, as Condition and Income as filed under 12 U.S.C. 161. community group and industry well as additional activities that meet 29 As defined in the proposal, consumer loans commenters noted that the exclusion of the credit needs of economically would have included: (1) Credit card, which is an economic development activities would disadvantaged individuals and entities extension of credit to an individual for household, directly harm financing intermediaries. and LMI census tracts and other family, and other personal expenditures arising from credit cards; (2) other revolving credit plan, A few commenters expressed concern identified areas of need in banks’ which is an extension of credit to an individual for that the proposal would negatively communities, while maintaining an household, family, and other personal expenditures impact funds such as the University appropriate focus on LMI arising from prearranged overdraft plans and other Growth Fund. The agency carefully neighborhoods. Under the final rule, CD revolving credit plans not accessed by credit cards; (3) automobile loan, which is a consumer loan considered these comments and investments will include activities that extended for the purpose of purchasing new and concluded that some changes should be meet the new qualifying activities used passenger cars and other vehicles, such as made to the proposed qualifying criteria. minivans, vans, sport-utility vehicles, pickup activities criteria to emphasize LMI A commenter noted that the proposal trucks, and similar light trucks for personal use; and was silent on the treatment of equity (4) other consumer loan, which is any other loan activities in appropriate circumstances to an individual for household, family, and other and to correct the inadvertent exclusion equivalent investments and requested personal expenditures (other than those that meet of certain activities that qualify under that these investments be included in the definition of a loan secured by real estate and the current framework. The OCC’s the qualifying activities criteria. The other than those for purchasing or carrying responses to commenters’ concerns and commenter noted that these types of securities), including low-cost education loans, which is any private education loan, as defined in revisions to the qualifying activities § 140(a)(8) of the Truth in Lending Act (15 U.S.C. criteria and related definitions are 25 The NPR defined a CD investment as a lawful 1650(a)(8)) (including a loan under a state or local discussed below. investment, membership share, deposit, legally- education loan program), originated by the bank for CD investments. The proposal binding commitment to invest that is reported on a student at an institution of higher education, as the Call Report, Schedule RC–L, or monetary or in- that term is generally defined in sections 101 and replaced the term qualified kind donation that meets the community 102 of the Higher Education Act of 1965 (20 U.S.C. 24 investment in the current regulation development qualifying activities criteria. 1001 and 1002) and the implementing regulations 26 Under current 12 CFR 24.3, a public welfare published by the U.S. Department of Education, 24 The current CRA regulations define a qualified investment is one that (1) primarily benefits LMI with interest rates and fees no greater than those of investment as a lawful investment, deposit, individuals, LMI areas, or other areas targeted by a comparable education loans offered directly by the membership share, or grant that has as its primary governmental entity for redevelopment or (2) would U.S. Department of Education. Such rates and fees purpose community development. 12 CFR 25.12(t); receive consideration under the CRA regulations as are specified in § 455 of the Higher Education Act 195.12(t). a qualified investment. of 1965 (20 U.S.C. 1087e).
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data for consumer lending, particularly LMI individuals, such as certain individuals and families and those for activities that are currently on a overdraft products. The agency provided in Indian country.33 bank’s balance sheet. Other commenters emphasizes that its expectation is that Some commenters expressed concern expressed concern that the high dollar all CRA activities, including consumer that the proposal would eliminate home volume of certain consumer lending, lending, will be conducted in a safe and mortgage lending to middle- and upper- such as credit card lending, may mean sound manner and consistent with the income individuals and families in LMI that banks engaged in those activities OCC’s relevant guidance.31 census tracts as a qualifying retail have little incentive to engage in other activity.34 Commenters also stated that types of CRA activities. Considering these factors, the final rule includes consumer loans provided the issue of gentrification associated A few community groups and with giving CRA consideration for home to LMI individuals and in Indian individuals expressed concern about mortgage loans to middle- and upper- country or other tribal or native lands in including consumer lending in CRA income individuals and families is evaluations because of the potential the qualifying activities criteria but mostly confined to large coastal negative impact on borrowers if those removes credit cards and overdraft metropolitan areas, and the proposal products were not offered with products from the definition of would prolong economic distress in LMI affordable rates and terms. These consumer loan to reduce the burden communities in these areas. commenters offered a variety of associated with information gathering At least a few community groups and suggestions for addressing their and to ensure that banks have an individual commenters stated that concerns, including limiting CRA credit incentive to engage in a variety of CRA excluding CRA credit for certain home for consumer loans to those that are safe activities that benefit LMI individuals. lending in LMI census tracts would and sound and offered at reasonable The agency did not further restrict the create negative externalities because of rates and with terms that are not categories of consumer loans to ensure the limited information about borrowers detrimental to LMI individuals. that CRA credit will be given for and neighborhoods, and depressed Commenters suggested several ways the providing consumers with access to a housing markets in LMI tracts would agency could limit the type of consumer variety of consumer lending products make small business lending more loans that receive CRA credit under and is otherwise adopting the consumer difficult. Although the OCC is adopting both the CRA evaluation measure and loan definition as proposed. The agency the qualifying criteria related to home the retail lending distribution tests. A expects that, as part of its ongoing mortgage loans as proposed, as few industry commenters suggested that discussed below, the agency agrees that consideration of consumer lending administration of the regulation, it will it is important that banks lend in LMI should be optional unless it involves a provide guidance needed on various census tracts and have added a substantial majority of the bank’s aspects of the rule, including on the geographic distribution test for home lending, as under the current documentation needed to demonstrate mortgage loans. framework.30 that a consumer loan qualifies for CRA In contrast, several commenters credit. Further, as discussed below, the Small loans to businesses and small supported providing credit for agency will consider the qualitative loans to farms retail lending. In the consumer loans. For example, aspects of qualifying activities through NPR, the agencies proposed increasing community groups noted that smaller- performance context, as well as the small loan to a business and the dollar lending at low rates is scarce and evidence of discriminatory or other small loan to a farm loan size thresholds highly needed. Two industry illegal credit practices. to loans of $2 million or less. The agencies also proposed increasing the commenters recommended that all Home mortgage loans. The agency’s consumer lending in LMI census tracts business and farm revenue size objective in reforming CRA is to thresholds that receive positive receive CRA credit. increase transparency and objectivity in The agency generally agrees that consideration under CRA to businesses consumer lending should be a all aspects of the CRA to incentivize and farms with gross annual revenues of component of CRA evaluations because banks to provide more CRA activities to $2 million or less.35 These proposed consumer loan products can be an those populations and communities that increases were based generally on important means for LMI individuals to banks serve, including to LMI inflation since the thresholds were gain access to credit. Further, many individuals or families and areas. To instituted 25 years ago, rounded up to banks are exiting the home mortgage achieve these objectives, the proposal the next million. The agencies also lending market and instead engaging in defined home mortgage loans with proposed the same loan size thresholds other types of lending activity, reference to the Call Report 32 but related to small loans to farms and small including consumer lending. The generally limited CRA credit to home agency, however, is cognizant of the mortgage loans made to LMI individuals 33 To focus on LMI home mortgage lending, the challenges to capturing the information and families to give proper emphasis to proposal did not apply the retail lending geographic needed to evaluate credit card lending LMI lending activities. Specifically, the distribution test to home mortgage loans. 34 These commenters argued that the change and believes that, given the nature of the proposed qualifying activities criteria would: (1) Thwart the CRA objective of economic lending and the impact it has on LMI included home mortgage loans to LMI integration; (2) ignore research on the educational individuals and communities, it may and other benefits to LMI individuals and families of living and working in integrated communities; not be appropriate for the CRA to be 31 See e.g., OCC Bulletin 2018–14, Installment (3) hasten displacement by making it more difficult used to incentivize banks’ credit card Lending: Core Lending Principles for Short-Term, for LMI borrowers to receive loans in gentrifying lending. The agency also recognizes that Small-Dollar Installment Lending (May 23, 2018). areas; (4) cause banks to focus on loans to LMI certain lending activities that meet the 32 The final rule continues to define home households in non-LMI tracts; and (5) be proposed definition of consumer loan mortgage loans by reference to the Call Report. In inconsistent with the CRA statute’s mandate for response to a commenter’s concern, the agency is banks to serve their entire community. may not provide adequate benefit to clarifying that construction loans for 1–4 family 35 The proposal defined businesses and farms that residential properties to builders and consumers are meet the revenue thresholds as small businesses 30 A commenter also stated that the agency should home mortgage loans for CRA purposes if they are and small farms. For the reasons described below, define substantial majority in the current reported on Item 1.a.(1) of Schedule RC–C of the these terms were replaced in the final rule with the framework. Call Report. terms CRA-eligible business and CRA-eligible farm.
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loans to businesses to provide applicable to small loans to businesses account for inflation since they were consistency in treatment. and small loans to farms. instituted in 1995. The agency received conflicting In response to the proposed increase In response to the comments, the comments from community groups, to the revenue thresholds for the size of agency is also revising the terms used to industry, and government stakeholders a small business or small farm, some define the type of businesses and farms on the increases to the loan size and commenters expressed concern that the banks can receive CRA credit for revenue size thresholds. Certain increased thresholds would divert financing. As such, the final rule commenters supported the increases, lending away from the smallest replaces the terms small business and with some arguing that the thresholds businesses with the greatest credit small farm with the terms CRA-eligible should be increased even further and needs, which they stated are the business and CRA-eligible farm. indexed to inflation going forward. In primary engines of economic growth The NPR also proposed annual contrast, other commenters opposed the and job creation.36 Another commenter, adjustments to the loan size and increases, with several industry, who asserted the existing thresholds revenue size thresholds. Some community, and individual commenters were too expansive, suggested a two- commenters expressed concern that stating that it was unclear why the prong test: $1 million or less in gross annual adjustments would be too agencies had selected $2 million for the annual revenues and loans must be frequent and may increase the risk of thresholds. The commenters generally targeted to small businesses owned by error. Some industry commenters expressed the concern that increases to underserved borrowers or small suggested that the adjustments should these thresholds could incentivize businesses that operate primarily in be made every 5 or 10 years. In contrast, banks to make larger loans to larger underserved communities. Similarly, a several industry commenters expressed businesses. Certain commenters argued community group stated that loans to support for adjustments to the loan size that the existing loan size and revenue large corporate agricultural operations and revenue size thresholds, including thresholds were too large. A community should be excluded and asserted that one that supported annual adjustments. group also asserted that the proposed more information is necessary to Regarding the form of adjustments, increases to the loan size and revenue understand the impact of the increased commenters suggested simple thresholds may diminish the prospects revenue size thresholds. As opposed to incremental adjustments, not percentage for black-owned businesses to access a revenue limit, a community group adjustments, to reduce the burden with capital in comparison to white-owned recommended that the OCC consider the regard to data collection and data businesses. profile of the business borrowing the integrity requirements. The final rule In response to the proposed loan size funds to incentivize banks to serve requires that the $1.6 million thresholds thresholds, some commenters supported business owners from groups that have be adjusted for inflation once every five the proposal and stated that increasing been, and continue to be, excluded from years to balance concerns regarding the loan sizes would divert less financing access to credit from banks. burden associated with changes to the from the smallest businesses and farms Other commenters supported thresholds with the OCC’s interest in than increasing the revenue thresholds increasing the revenue size thresholds. ensuring that the thresholds keep pace and noted that higher loan amounts may The U.S. Small Business Administration with inflation. be needed in more expensive areas. (SBA) stated that qualifying retail loans The OCC also received comments on Commenters suggested that the current under the CRA should not be limited to other aspects of the small loan to a small loan to a business threshold of $1 businesses with $2 million or less in business definition. Community groups million could be updated to $1.6 annual revenue and in amounts of $2 recommended that credit cards and million to account for inflation million or less. Specifically, the SBA subprime products not qualify for CRA according to the U.S. Government stated that the agency could not define credit under the retail lending Accountability Office. However, small business in a way that differed distribution test applicable to small commenters stated that increases from the SBA’s standards without loans to businesses. The final rule beyond that amount are not supported obtaining its approval. An industry defines small loans to businesses by by data because neither the overall commenter supported using the SBA reference to the Call Report to reduce average nor the average for the highest standards for the definition of small complexity and to be consistent with quartile of loans to businesses with business and small farm. Another the current regulation. However, the revenues over $1 million approached industry commenter suggested that, in agency will consider qualitative aspects the $1 million loan limit. To address the addition to a $2 million revenue of qualifying activities, such as the ones concerns about disincentivizing smaller threshold, there should be a 20- referenced by commenters, as part of loans, one commenter suggested that employee limit. performance context. banks should receive double credit for After considering these comments, the At least a few industry commenters the smallest small business loans. agency is adopting a smaller increase to also urged the agencies to include loans After considering these comments, the the revenue thresholds of $1.6 million to businesses secured by real estate in final rule includes a smaller increase to instead of the proposed $2 million, the definition of a small loan to a the loan size thresholds of $1.6 million which reflects the increase resulting business. Under the current framework instead of the proposed $2 million, from inflation rounded to the next these loans are treated as home which more closely reflects the increase hundred thousand. These increased mortgage loans. In the OCC’s view, this resulting from inflation. Based on the revenue size thresholds are intended to remains an appropriate treatment of agency’s analysis, this threshold encourage economic development and these loans because it is consistent with accounts for inflation since the $1 job creation and recognize that the how these loans are categorized on the 37 million small loan to a business size thresholds have not been increased to Call Report, and the agency is not threshold was introduced in 1995, revising the treatment of these loans as rounded up to the next $100,000 36 For example, commenters argued that the change is unsupported by research and noted that 37 Consistent with the proposal, home mortgage increment instead of the next million as 76 percent of firms have receipts under $100,000, loans, small loans to businesses, small loans to was proposed. This loan size threshold and another 19 percent have receipts between farms, and consumer loans (i.e., retail loans) are also standardizes the threshold $100,000 and $999,999. defined with reference to the Call Report.
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part of the final rulemaking. Some of and standby letters of credit due to how Upon consideration of all the these commenters also requested that these types of commitments to lend comments on this topic, the agency the agencies clarify whether and when would be quantified. These commenters agrees with commenters that suggested banks could classify small loans to stated that banks should receive credit that providing CRA credit for affordable businesses and small loans to farms as for the value of standby letters of credit housing should be focused on LMI CD loans, because how these loans are and other legally binding commitments individuals and families. Therefore, the classified would affect banks’ ability to to lend because: (1) Banks are legally final rule does not include the proposed meet the CD minimum and the retail bound to the commitments; (2) the value middle-income rental housing in high- lending distribution tests, discussed of the line of credit reflects the cost areas components of the affordable below. The agency is clarifying that consumer’s access to credit; (3) banks housing criterion or the definition of loans that meet the criteria for both: (1) must hold capital against noncancelable high-cost area. CD loans; and (2) small loans to lines; and (4) some projects mandate The proposal also clarified that businesses or small loans to farms could having such letters of credit. affordable housing encompasses receive credit in the bank’s CRA The agency agrees that certain legally naturally occurring affordable housing evaluation measure or assessment-area binding commitments to lend, such as (e.g., unsubsidized rental housing with CRA evaluation measures as either: (1) standby letters of credit, are important rents that are affordable to LMI CD loans; or (2) retail small loans to to facilitating beneficial CRA projects individuals and families). To qualify businesses or farms—but not both (i.e., across the United States. In particular, under this aspect of the affordable the dollar value of these loans can only legally binding commitments to lend housing criterion, the housing must be be counted once). If a bank elects, the that provide credit enhancements are likely to partially or primarily benefit quantified value of these loans could necessary to get many affordable individuals or families as demonstrated count towards satisfying the CD housing projects off the ground. by median rents that do not and are not minimum. Even if a bank elects to However, general lines of credit that are projected at the time of the transaction consider a small loan to a business or not drawn, in the OCC’s view, do not to exceed 30 percent of 80 percent of the small loan to a farm as a CD loan for provide the same value as legally area median income. Several purposes of the CRA evaluation binding commitments to lend, such as commenters expressed concern that the measures and CD minimums, the bank standby letters of credit. To address the criterion did not require that the must include all loans that meet the commenters’ concern, the final rule housing be occupied by LMI individuals retail loan criteria in the retail lending provides that legally binding or families and suggested that the distribution tests. Further, under the commitments to lend, such as standby criterion be revised to include that final rule, commenters’ concerns with letters of credit that can provide needed requirement. the more qualitative aspects of CRA- credit enhancements for qualifying While the agency understands eligible business and CRA-eligible farm- activities to commence or continue, are commenters’ desire to ensure that LMI related activities, such as what type of quantified based on the dollar value of individuals or families occupy the businesses benefit and whether banks the commitment. Other general affordable units that banks receive are making smaller loans, will be commitments to lend are quantified, as credit for under the CRA, in the OCC’s addressed through the application of proposed, based on the on-balance-sheet view, the proposed criterion is performance context and, in certain funded portion of the credit line appropriate given the importance of circumstances, through the use of because that value most accurately maintaining the nation’s affordable multipliers, discussed below. reflects the bank’s CRA commitment. housing stock.39 Adding a requirement Other than the changes described The agency has revised the that banks ensure that LMI individuals above, the agency is adopting the CRA- quantification section to reflect this or families are actually occupying the eligible business, CRA-eligible farm, policy decision. The final rule also unsubsidized affordable rental units small loan to a farm, and small loan to redefines the type of commitments to would be too burdensome for banks, if a business definition as proposed. The lend that qualify as CD activities to not infeasible, particularly for units agency has implemented conforming focus on the legally binding with long-term tenants. Such a edits throughout the rule to reflect the commitments to lend described above. requirement would create a competitive changes discussed above in this section. Affordable housing. The proposal disadvantage that would further push Commitments to lend. The NPR would have provided credit for banks out of LMI housing finance. defined a CD loan as a loan, line of activities that finance or support Specifically, if banks require borrowers credit, or contingent commitment to affordable housing that partially or to ascertain the income level of current lend that meets the CD qualifying primarily benefit middle-income and prospective tenants before financing activities criteria.38 The proposal individuals or families in high-cost the maintenance, rehabilitation, or defined contingent commitments to areas as demonstrated by: (1) A construction of unsubsidized affordable lend as legally binding commitments to governmental set-aside requirement; or housing at the outset or on an on-going extend credit in instances where (2) being undertaken in conjunction basis, borrowers may choose to forgo another bank initially funded, or with a government affordable housing bank financing and seek non-bank committed to fund, a project but cannot, program for middle-income individuals financing to avoid the increased for financial or legal reasons, advance or families in high-cost areas. Some burdens. Further, banks may decide that unanticipated additional funds commenters supported these the additional burdens do not justify necessary to complete the project. components of the affordable housing providing loans to borrowers for The agency received comments criterion, but others opposed them, unsubsidized affordable housing. Thus, asserting that, under the proposal, banks arguing that LMI individuals and would not receive sufficient CRA credit families face the greatest housing 39 See Preserving Affordable Rental Housing: A for certain legally binding commitments burdens, and the criteria could divert Snapshot of Growing Needs, Current Threats, and resources from them. Commenters Innovative Solutions, Office of Policy Development to lend, such as revolving credit lines & Research, U.S. Department of Housing and Urban suggested expanding the middle-income Development (Summer 2013), available at https:// 38 A line of credit also meets the definition of criteria to include owner-occupied as www.huduser.gov/portal/periodicals/em/ retail loan. well as rental housing. summer13/highlight1.html.
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the requirements suggested by definition of community support Community group commenters stated commenters, while well intentioned, services to expressly include workforce that loans and investments that support could have the long-term consequence development and job training programs projects, programs, or organizations of diminishing affordable housing to make clear that banks will receive with a mission of community or options for LMI individuals and credit for financing or supporting those economic development or those defined families. This would be contrary to the types of programs for LMI individuals. as community/economic development objective of the agency’s reform efforts Otherwise, the agency adopts the by federal, state, local, or tribal regarding the CRA. Therefore, the community support services definition governments should be presumed to agency is adopting this component of as proposed. qualify for CRA credit. One industry the affordable housing criterion as Economic development. Under the commenter suggested that, by granting proposed with a clarifying revision.40 current regulatory framework, CD CRA credit for investing in SBICs and Community groups recommended activities include those that promote other programs administered by that only acquisitions or re-financings economic development by financing government agencies—but not in by non-profits and local governments businesses or farms that meet the size privately funded programs—the that commit to improve or maintain the eligibility standards of the Small agencies are allowing the SBA and other housing stock at a level consistent with Business Development Center (SBDC) 41 agencies to be the exclusive gatekeepers the local housing code should be CRA or Small Business Investment Company of CRA credit. eligible. As noted below, the agency will (SBIC) programs or have gross annual Eliminating CRA credit for activities consider qualitative aspects of a bank’s revenues of $1 million or less. The that currently qualify as economic qualifying activities through Interagency Q&As explain what type of development was not the OCC’s performance context, including whether activities are considered to promote purpose. To address commenters’ activities that finance affordable economic development.42 Certain concerns, the final rule revises the housing are consistent with local aspects of this guidance are not well qualifying activities criteria by adding housing codes. Two commenters understood, particularly job creation, an economic development criterion. expressed their belief that examiners retention, and improvement, providing This new criterion is a consolidation of have applied the phrase express, bona little incentive for banks to engage in three proposed criteria with two fide intent, purpose, or mandate activities that could help their additional components that capture inconsistently under the current communities. The proposal did not activities permitted under the current framework, resulting in costly and retain the term economic development framework but inadvertently excluded burdensome ownership structures for and instead sought to identify activities in the proposal, including activities that affordable housing. As discussed below, that would qualify under the current promote job creation or retention for the final rule includes an illustrative list framework as economic development LMI individuals.43 Under the final rule, of qualifying activities and a process for activities through more detailed and CD activities include those that finance confirming that a particular activity objective qualifying activities criteria. or support economic development, meets the qualifying activities criteria, For example, one of the criteria in the which means activities that provide which will help to improve consistent proposal that was designed to capture financing for or support: (1) Federal, treatment of qualifying activities under economic development activities was state, local, or tribal government the final rule. the criterion regarding technical programs, projects, or initiatives that Community support services. The assistance and supportive services, such partially or primarily serve small proposal defined community support as shared space, technology, or businesses or small farms as those terms services as activities, such as child care, administrative assistance for businesses are defined in the programs, projects, or education, health services, and housing or farms that meet the size eligibility initiatives; (2) job creation or job services, that partially or primarily serve standards of SBDC and SBIC programs. retention partially or primarily for LMI or assist LMI individuals or families. A Commenters expressed concern that individuals; (3) retaining existing, or few community groups and industry certain activities that qualify under the attracting new, businesses, farms, or commenters noted the importance of current framework would no longer residents to LMI census tracts, workforce development activities for have qualified under the proposal. underserved areas, distressed areas, LMI individuals and stated that such Commenters suggested that to ensure designated disaster areas consistent activities should receive CRA credit. It these activities receive CRA credit the with a disaster recovery plan, or Indian was the OCC’s purpose that the agency should eliminate the reference to country and other tribal and native proposed qualifying activities criteria technical assistance and supportive lands; (4) a Small Business would include workforce development services in the qualifying activities Administration Certified Development and job training programs for LMI criteria or revise the reference so these Company, as that term is defined in 13 individuals. Although the examples activities are examples of, not required, CFR 120.10, a SBIC, as described in 13 provided in the community support uses of loan funds. Commenters also CFR part 107, a New Markets Venture services definition were, and are, not requested clarification on what Capital company, as described in 13 exhaustive, the final rule revises the activities satisfy the technical assistance CFR part 108, a qualified Community and supportive services criteria. Development Entity, as defined in 26 40 In addition to the changes described above, the CFR 45D(c), or a U.S. Department of OCC made two clarifying changes to the affordable 41 The preambles to the proposed and final rules Agriculture (USDA) Rural Business housing criterion: (1) The OCC replaced the term abbreviate SBA Certified Development Companies ‘‘benefit’’ with the more specific phrase ‘‘inhabited as SBDCs. One commenter suggested that the Investment Company, as defined in 7 by’’ in the affordable housing criterion to clarify references to these entities in the rule and in the that affordable housing must be likely to or be Interagency Q&As should use the abbreviation CDC 43 A few commenters offered suggestions on how inhabited by LMI individuals or families and made for Certified Development Companies instead. The to track job creation. Suggestions included using other technical conforming revisions; and (2) the agency notes that, in the CRA context, CDC Participant Individual Record Layout data collected OCC clarified that affordable housing activities typically refers to community development by the U.S. Departments of Labor and Education include owner-occupied housing purchased, corporation and the use of SBDC is intended to and using job creation statistics from the Bureau of refinanced, or improved by or on behalf of LMI avoid confusion. Labor Statistics. The OCC plans to consider these individuals or families, except for home mortgage 42 See Interagency Q&As § ll.12(g)(3)—1, 81 FR comments as it develops guidance for implementing loans provided directly to individuals or families. at 48526. the qualifying activities criteria.
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CFR 4290.50; or (5) technical assistance possible in its administration of the from other projects that benefit LMI and supportive services, such as shared regulation going forward. communities that are most in need of space, technology, or administrative Essential community facilities. The resources and may even harm these assistance for businesses or farms that NPR included a criterion for essential communities.47 At least a few meet the size-eligibility standards of the community facilities that partially or community groups and one industry SBIC, as described in 13 CFR part 107. primarily benefit LMI individuals or commenter suggested that essential Additionally, as discussed above, the families, LMI census tracts, or other infrastructure projects should only criteria in the proposal related to identified areas of need. At least a few receive CRA credit if the bank technical assistance and supportive community groups and one industry documents that the infrastructure services incorporated the size eligibility commenter suggested that essential benefits LMI communities. A few standards for the SBDC and SBIC community facilities must benefit or community group commenters programs. This standard was one of two serve LMI communities. A few recommended that CRA credit should size standards provided in the community group commenters argued only be provided if the project primarily Interagency Q&As related to economic that certain facilities that do not actually serves LMI individuals and development.44 The proposal did not serve LMI communities would meet this communities, unless the activity is in a include the other size standard in the definition. Commenters asserted that it rural area. A few community groups Interagency Q&As—businesses or farms was unclear whether CRA credit would also suggested restricting credit for with gross annual revenues of $1 be provided for facilities that only essential infrastructure projects to million or less. Some commenters tangentially benefit LMI individuals or circumstances where access to funding recommended that the OCC revise the families, LMI census tracts, and other is limited. Another community group criterion to include the size standard of identified communities of need. These suggested that there should be gross annual revenues of $1 million or commenters also noted their belief that protections for LMI communities that less in place of the one in the proposal. banks are likely to finance these face displacement due to redevelopment The OCC reviewed the SBA regulations activities without a CRA incentive. One projects. The agency agrees that CRA activity and determined that the SBIC program industry commenter argued that should focus on LMI individuals and size standards encompass both healthcare facilities should receive CRA census tracts and other identified areas businesses and farms with gross annual credit for the entire investment of need. In response to these comments, revenues of $1 million or less and those regardless of who benefits. The comments provided on the the OCC revised this criterion to require that meet the size-eligibility standards proposed essential community facilities that essential infrastructure activities of the SBDC program. Therefore, the criterion and definition appear to reflect must partially or primarily serve: (1) agency is not implementing the a misunderstanding of the proposal. As LMI individuals or families; or (2) LMI commenters’ suggestions. Businesses proposed, essential community facilities census tracts, distressed areas, and farms that meet commenters’ projects would only have received CRA underserved areas, disaster areas suggested size eligibility standards also credit if they partially or primarily consistent with a disaster recovery plan, meet the size eligibility standards of the benefit or serve LMI individuals or or Indian country or other tribal and SBIC program.45 The agency is also families, LMI census tracts, or other native lands. This revision revising the proposed size standard in identified areas of need.46 The proposal acknowledges the importance of these the technical assistance and supportive provided that banks would receive full types of projects to communities in services economic development credit for activities that primarily helping to attract new or retain existing criterion component by removing the benefit or serve these communities and businesses and residents. As discussed reference to the SBDC program to pro-rata credit for activities that below, the agency will accept eliminate that additional redundancy. partially benefit or serve these reasonable methods for calculating the A few industry commenters expressed communities. As discussed below, the portion of an activity that benefits or concern about overlapping and agency will accept reasonable methods serves LMI individuals, small inconsistent definitions and for calculating the benefit to LMI businesses, small farms, LMI census qualifications for activities involving populations and other identified tracts, or the identified communities of businesses and farms in the retail communities of need. Otherwise, the need. As noted elsewhere, the agency lending and CD criteria in the proposal. OCC is adopting the essential will consider qualitative aspects of a The OCC acknowledges that loans to community facilities definition and bank’s CRA activities as part of businesses or farms of varying sizes criterion as proposed. receive credit under different qualifying Essential infrastructure. The agency 47 The agencies also received comments from activities criteria. These varying community groups and industry commenters on the proposed including a CD criterion for method of financing essential infrastructure, in business and farm size thresholds were essential infrastructure. The proposal particular, municipal bonds and tax increment included in the proposal to ensure that did not limit CRA credit for essential financing bonds (TIFs). A number of commenters certain activities that already qualified infrastructure projects to those that suggested that municipal bonds, or municipal for CRA credit continue to qualify under bonds that only partially benefit LMI individuals, partially or primarily benefitted or should not be included as qualifying activities, the revised regulations. The agency will served LMI individuals or families, LMI while other commenters supported fully valuing work to ensure that qualifying activities areas, or other identified areas of need, municipal bonds. A few community group criteria and related definitions are provided these populations and commenters suggested that the financing of TIFs consistent to the maximum extent should not receive CRA credit or only receive credit communities received some benefit to the extent TIF expenditures directly serve LMI from the projects. Several community households and census tracts, while one industry 44 See Interagency Q&As § _l.12(g)(3)—1, 81 FR groups expressed concern that the commenter suggested that TIFs used by at 48526. essential infrastructure criterion was too municipalities should qualify for CRA credit. 45 The $1 million or less gross annual revenue Because municipal bonds and TIFs are common size standard suggested by commenters would also broad and would divert resources away methods for financing essential infrastructure, the mean that certain activities that finance businesses OCC is not making any changes in the final rule in with revenues in excess of $1 million but that meet 46 For the sake of clarity, the agency removed the response to these comments but does note that, as the SBIC size eligibility standards would no longer word benefit from the criterion to focus on these in the proposal, municipal bonds are excluded from meet the qualifying activities criteria. facilities serving their communities. the final rule’s multiplier provisions.
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performance context, including how the USDA’s definition of family farm is the agency is adopting the family farm responsive the essential infrastructure not based on a revenue threshold. definition and criterion as proposed. projects are to the communities they An individual commenter also Federal, state, local, or tribal serve. recommended an alternative definition government programs, projects, and initiatives. The proposed qualifying The OCC also received comments on for family farm based on the definition activities criteria included a CD the definition of essential infrastructure. of farm in the Agriculture Improvement criterion for activities that finance or Suggestions for revisions to the Act of 2018.49 Two industry otherwise support federal, state, local, definition included: (1) Adding commenters also requested clarification or tribal programs, projects, or renewable energy production and on the types of farming entities that are 50 initiatives that benefit or serve LMI distribution; (2) adding abatement of considered family farms. The final individuals or families, small businesses certain environmental hazards; (3) rule continues to rely on the expertise or small farms, or LMI census tracts or adding activities that promote climate of the USDA in defining family farms other identified areas of need. resilience; and (4) clarifying whether and retains the cross-reference to the Commenters suggested that the agencies any public infrastructure project Farm Service Agency of the USDA’s should clarify and more clearly define receives credit. The agency does not definition of family farm. Under the what is included in government believe changing the definition of final rule, banks and interested parties programs, projects, or initiatives, essential infrastructure is necessary may request confirmation that activities including by clarifying whether the because, depending on the facts and involving specific farms meet the family criteria are inclusive of local, state, and circumstances, the suggested types of farm definition and qualifying activities federal revitalization undertaken via the projects may already receive credit criterion. establishment of specified geographies under the proposed qualifying activities The proposal provided credit for CD (e.g., Enterprise Zones, Historic criteria. As explained in the preamble to activities that provide financing for or Underutilized Business Zones). They the proposal, depending on the facts support a family farm’s: (1) Purchase or also suggested the criteria be more and circumstances, activities that lease of farm land, equipment, and other precise due to the potential for finance or support affordable housing, farm-related inputs; (2) receipt of contentious projects. Industry essential community facilities, or technical assistance and supportive commenters suggested that the criterion essential infrastructure may include: (1) services, such as shared space, should be adjusted to allow for Renewable energy, energy-efficiency, or technology, or administrative assistance programs to benefit areas of identified water conservation equipment or through an intermediary; or (3) sale and need so that state and local governments projects associated with affordable trade of family farm products.51 The can determine which activities should housing, essential community facilities, agency intended for the family farm qualify. or essential infrastructure; or (2) the qualifying activities criterion to provide The agency carefully considered the abatement or remediation of, or other CRA credit for activities that finance or commenters’ concerns. The agency actions to correct, environmental support family farm production and the continues to believe that, in many hazards, such as lead-based paint, lead sale and trade of a family farm’s own circumstances, communities are in the pipes (such as those used in antiquated products. The proposal could also have best position to identify their needs and water supply systems), asbestos, mold, provided CRA credit for activities that design projects, programs, and or radon that is present in the housing, finance or support activities other than initiatives that help to address those facilities, or site where the housing or production, such as a family farm with needs. This criterion is meant to provide facilities are located. In addition, as capacity for buying and warehousing the flexibility to encompass a variety of with essential community facilities, the crops produced by others and programs, projects, and initiatives that agency is clarifying that all subsequently selling and trading them serve LMI individuals and families, LMI infrastructure projects that meet the on the open market. While these are census tracts, and other identified areas definition and the criterion are essential beneficial activities and should be of need. Nonetheless, the agency infrastructure for purposes of the CRA. encouraged, they go beyond the needs of appreciates the need for clarity. Banks As such, the agency is adopting the the family farm to finance its own and interested parties that have essential infrastructure definition as production and, in the OCC’s judgment, questions about activities should proposed. do not fit within the scope of the CRA. reference the CRA illustrative list or utilize the qualifying activity Family farms. As proposed, family To clarify that these activities will not qualify, the final rule limits the confirmation process in the final rule. farm was defined using the definition As such, other than consolidating the from the Farm Service Agency of the qualifying criteria to activities that finance or support a family farm’s own component of this criteria that involves USDA.48 Some commenters supported financing or supporting small the inclusion of family-farm related production, including the sale and trade, of its own products. Otherwise, businesses or small farms with the other activities in the proposal. Many related activities under the new commenters stated, however, that the 49 economic development criterion, the proposal used a revenue threshold of Public Law 115–334, 132 Stat. 4490 (2018). OCC is adopting these criteria as 50 A commenter also noted concerns with the 52 $10 million for family farms which, they biased nature of farm lending and alleged racial proposed, with a minor clarifying edit. argued, is unsupported by research or discrimination against African-American-owned Financial literacy. The NPR would analysis. These comments appear to be farms. Lending disparities correlated with race or have provided credit for all financial based on a misunderstanding. In ethnicity are of concern to the agency, and the literacy and education or homebuyer agency addresses lending discrimination-related providing an example of an activity on concerns through the federal fair lending laws. counseling activities, regardless of the the CRA illustrative list, the agency 51 One industry commenter recommended that income level of the beneficiary of the used a family farm with gross annual the OCC include operating loans, such as crop and revenues of $10 million. This was only livestock loans, in the qualifying activities criteria. 52 As with other criterion, the final rule uses more an example; the Farm Service Agency of The proposal would have provided credit for these specific terminology and removes the term benefit loans because they provide financing for farm- to clarify that these programs, projects, and related inputs. These activities also will qualify initiatives must serve LMI individuals or families, 48 See 7 CFR 761.2(b). under the final rule. LMI census tracts, or other identified areas of need.
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activity.53 Some commenters argued benefit of, financial literacy extends or allotments. Areas that are not covered that these activities should only receive well beyond LMI individuals, families, by the final rule’s changes to the credit if they are targeted to LMI and census tracts. Given these proposal are only part of Indian country individuals or families for the considerations, the agency is adopting if they meet the statutory definition of framework to be consistent with the the financial literacy criterion as 18 U.S.C. 1151, which includes statutory purpose of the CRA. The proposed. reservations, dependent Indian agency disagrees with these comments, Indian country. The proposal would communities, and allotments. The which are premised on the incorrect have defined Indian country by agency notes that case law has assumption that the CRA statute and reference to 18 U.S.C. 1151 and interpreted the statute to cover informal regulations are intended to exclusively provided credit for certain activities in reservations,56 and the term dependent benefit LMI individuals and Indian country. A few industry and Indian communities specifically to communities. The language in the CRA community groups said that the cover ‘‘a limited category of Indian statute expressly contemplates that statutory definition of Indian country lands that are neither reservations nor banks should be encouraged to meet the was too narrow and would exclude allotments, and that satisfy two credit needs of their entire lands that are typically thought of as requirements—first, they must have communities, including their LMI Indian country. These commenters been set aside by the [f]ederal neighborhoods. Thus, while LMI- provided options for expanding the [g]overnment for the use of the Indians focused activities are important, the definition, such as including various as Indian land; second, they must be existing regulations give CRA Census Bureau statistical areas or by under federal superintendence.’’ 57 consideration for farm and business adding areas that would be covered by One community group recommended lending, which these commenters have the Inspiring Nationally Vibrant that the agency provide credit for not challenged. Moreover, since 2005, Economies Sustaining Tribes Act of activities funded by the government or the CRA regulations have provided 2020 bill, which has been proposed and receiving tribal authorization or consideration for activities that referred to the Senate Committee on support. All retail loans in Indian revitalize or stabilize distressed or Finance.55 At least one community country and other tribal and native underserved nonmetropolitan middle- group requested that Hawaiian Home lands qualify for CRA credit under the income areas.54 Lands, which are held in trust by the final rule. The CD criteria also include Where appropriate, the OCC has state of Hawaii, and State Designated certain tribal government programs, placed particular emphasis on Tribal Statistical Areas be considered projects, or initiatives and other incentivizing increased activities but remain distinct from federal activities related to Indian country and targeted to LMI individuals, families, designations of Indian country. One other tribal and native lands. As noted and census tracts. This includes limiting commenter suggested that activities in below, activities need not be in Indian CRA consideration in the CRA census tracts adjacent to a reservation or country or other tribal and native lands evaluation measure to mortgages made within a number of miles from a to be a qualifying activity if they benefit to LMI individuals and families. The reservation border qualify for CRA or serve those areas. For activities agency has, however, also sought to give credit. whose qualifying status is ambiguous, credit for activities that do not The agency agrees that the proposed the OCC encourages interested parties to exclusively benefit LMI individuals, definition should be expanded to cover seek confirmation as provided in the families, and census tracts in additional areas typically thought of as final rule. Another commenter circumstances where the OCC has Indian country or other tribal and native suggested that government agency and determined that it is appropriate to lands. As noted above, the final rule tribal leaders be consulted regarding any ensure banks are serving their entire continues to define Indian country by expansion or inclusion of the CRA in communities and where such activities reference to the definition in 18 U.S.C. their communities. The agency engaged are much needed (i.e., other identified 1151 but adds Census Bureau- in significant outreach prior to issuing areas of need). The agency believes that designated Tribal Census Tracts, the NPR and received feedback from providing financial literacy and Oklahoma Tribal Statistical Areas, many stakeholders that informed the education or homebuyer counseling to a Tribal Designated Statistical Areas, proposal and the final rule, including broad audience, including but not American Indian Joint-Use Areas, and those that would be affected by the limited to LMI communities, is Alaska Native Village Statistical Areas. inclusion of activities in Indian country The final rule also includes other tribal consistent with both the language and and other tribal and native lands. the spirit of the CRA. The need for, and and native lands as a new defined term, Opportunity zones. The proposal which includes Hawaiian Home Lands would have given credit for qualified 53 Two community groups stated that, for several and State Designated Tribal Statistical opportunity funds that benefit LMI reasons, non-profits are better suited to deliver Areas. Activities that qualify in Indian qualified opportunity zones. A few financial education services. They suggested that country will also qualify in other tribal CRA credit be awarded for banks’ support of and industry commenters expressed support investment in non-profits’ financial literacy and and native lands. In the final rule, the for providing credit to investments in education programs rather than encouraging banks OCC made conforming revisions to the opportunity zones. Some community to provide the services directly. Under the proposal qualifying activities criteria and the and the final rule, banks may receive CRA credit for groups relayed concerns about such financial literacy activities conducted by the bank measure of a bank’s branch distribution provision of credit because these or financed by a bank and provided by a non-profit. in the CRA evaluation measure. investments could finance projects that Two commenters recommended that the OCC Commenters also sought clarity on do not benefit LMI individuals or provide CRA credit for digital literacy training to whether Indian country would include LMI individuals focused on using internet banking communities. These commenters lands not in a reservation and no longer services as a type of financial literacy program. If provided examples of such projects, in a state of original allotment or the digital literacy training meets a CD criterion, the including luxury condominiums. A few agency will award CRA credit. Banks that intend to include lands that were once within the offer these programs may discuss them with their boundaries of native nations even if examiners or use the qualifying list confirmation 56 Oklahoma Tax Comm’n v. Sac & Fox Nation, process to ensure that the services they provide will they were not technically reservations 508 U.S. 114, 123 (1993). qualify. 57 Alaska v. Native Vill. of Venetie Tribal Gov’t, 54 See 70 FR 44256 (Aug. 2, 2005). 55 S. 3181, 116th Cong. (2019–2020). 522 U.S. 520, 527 (1998).
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commenters also expressed the view contrary, banks have received CRA financial and nonfinancial support. The that investments in qualified credit for decades for loans and other agency has adopted these provisions as opportunity funds already receive financing involving athletic facilities proposed, with minor changes to clarify enough support and should not receive that increase opportunities for that activities and ventures, other than a multiplier. Commenters criticized the economically disadvantaged individuals those expressly included in the basis for designating opportunity zones and areas. A review of publicly proposal, may qualify for CRA credit. because they are based on 2010 data and accessible CRA PEs provides many Underserved areas, distressed areas, may not actually benefit areas currently examples of this credit, dating back to and CRA deserts. The proposal would identified as LMI. Commenters that at least 1993. Many of the examples have revised the definitions of supported providing credit for involve repairs to local high school and distressed nonmetropolitan middle- investments in qualified opportunity municipal facilities that serve local income area and underserved funds proposed a safe harbor or communities. Some involve creative nonmetropolitan middle-income area to presumption in which certain activities projects involving multiuse facilities include additional census tracts where would be presumed to benefit LMI and school facilities, and some involve there are unmet financial needs and to communities. professional sports stadiums. simplify the terms used to describe The OCC’s purpose in adding a In response to comments received on these areas. Specifically, proposal criterion for qualified opportunity funds the proposal, the agency has replaced removed the requirement that a that benefit qualified opportunity zones the stadium example with an example distressed area be a nonmetropolitan in LMI census tracts was to incentivize that better reflects the type of athletic area in recognition that there may be banks to help meet the needs of LMI facilities that have been approved middle-income census tracts in individuals and communities located in historically. In addition, the agency is metropolitan statistical areas (MSA) that opportunity zones, which are areas the clarifying that under the final rule the experience high rates of poverty, federal government has identified as agency will continue to review and give unemployment, or population loss and, needing economic development and job CRA credit for loans and other financing therefore, need financial resources. creation. The OCC is clarifying that to involving athletic facilities that increase Similarly, the proposal would also have qualify under the opportunity zone opportunities for economically revised the definition of underserved criterion, activities that finance or disadvantaged individuals and areas. area to remove the requirement that support qualified opportunity funds Under the final rule, the agency will these census tracts be nonmetropolitan must benefit LMI qualified opportunity consider the facts and circumstances of zones.58 Whether an activity benefits an specific projects involving athletic areas to address urban banking deserts LMI qualified opportunity zone will facilities, either in the context of a CRA that lack access to financial services. depend on the facts and circumstances evaluation or pursuant to a request for Commenters suggested that the of the activity, including whether it is confirmation that an activity is a agency proposed these definitions responsive to the needs of LMI qualifying activity. without sufficient research. The agency individuals, families, and communities Ventures undertaken in cooperation disagrees with this contention. The in the opportunity zone. The OCC made with minority depository institutions, agency decided how to modify the no changes to this criterion and has women’s depository institutions, existing definitions to capture areas adopted it as proposed. Although the Community Development Financial with unmet financial needs based on agency is not revising the criterion to Institutions (CDFI), or low-income credit publicly available census tract provide specific safe harbors or unions. The proposal included demographic information, such as presumptions for certain investments in ‘‘ventures undertaken, including capital population density, poverty rates, qualified opportunity funds, as with all investments and loan participations, by unemployment, population loss, and activities, a bank may request a bank in cooperation with a minority availability of bank branches. confirmation that a particular qualified depository institution, women’s Commenters also argued that because opportunity fund meets the qualifying depository institution, [CDFI], or low- the agency did not provide information activities criteria using the process income credit union’’ as qualifying about the census tracts that would be contained in the final rule. activities if the ventures help meet the affected, the public was unable to Sports stadiums. The proposal credit needs of the communities in provide meaningful comment.59 To the included as an example on the CRA which these institutions are chartered, contrary, the proposal included clear illustrative list an investment in a including by promoting the definitions based on publicly available qualified opportunity fund established sustainability and profitability of those information for distressed areas and to finance improvements to an athletic institutions themselves. Commenters underserved areas, enabling stadium in an opportunity zone that is largely supported the clarification commenters to provide meaningful also an LMI census tract. The OCC regarding activities with minority comment. Furthermore, at least one received numerous comments depository institution, women’s commenter was in fact able to use expressing concern with this example. depository institution, or low-income publicly available information to review There is a misperception that the credit union and CDFIs and suggested which census tracts would likely be proposal would have created a new additional examples of activities that affected by the proposal, as commenters incentive by giving banks CRA credit for should be included in the final rule. did for the proposed definition of high- financing athletic facilities. To the The agency agrees that additional cost areas.60 It is clear from the activities undertaken with these comments received that commenters 58 One community group suggested that it is institutions should qualify for CRA were able to look at the definitions unclear whether qualified opportunity funds can credit. The agency notes that the make investments through a lower-tier entity, included in the proposal and to use noting that many investors have established two- examples following the term ventures in public data related to those definitions tier structures in which investments are made the proposal—capital investments and through the subsidiary. To the extent that loan participations—are illustrative and 59 See, e.g., Comment Letter: National Community commenters have questions about the requirements not exhaustive. The agency intends the or structure of qualified opportunity funds, those Reinvestment Coalition (NCRC), from J. Van Tol and questions should be directed to the Internal term ventures to broadly encompass, for J. Taylor, at 28 (Apr. 8, 2020). Revenue Service. example, deposits, loans, and other 60 Id.
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to analyze and comment on the including by looking at tracts with low originated through an FHA loan proposal. levels of retail lending after considering program is provided to an LMI Many commenters, citing research the demographics of an area or areas individual or family, it will receive showing continuing racial disparities in where there are transportation barriers. credit because it meets the qualifying lending, expressed the view that The agency agrees that it is important to activities criteria even if it is not communities of color should be encourage CRA activities in areas that included on the illustrative list. included in the definition of experience lower than expected levels However, in response to comments, the underserved areas. Congress enacted the of lending and investments, often OCC has revised the examples to clarify CRA with the purpose of encouraging known as CRA deserts, and believes that that FHA-guaranteed loans to LMI sound lending to a bank’s entire many of these areas would likely be individuals or families qualify for CRA community, and CRA requires the OCC encompassed within distressed and consideration. to assess banks’ records of meeting the underserved areas due to the Persons with disabilities. Some credit needs of their entire community, demographic makeup of these commenters recommended that the including LMI neighborhoods. Although communities. In the agency’s judgment, proposal be revised to address the needs the CRA statutory language does not the proposed definitions of distressed of LMI persons with disabilities and explicitly address communities of color, area and underserved area accurately provided several specific suggestions. of course a bank’s entire community identify the majority of economically They also suggested that the agency includes communities of color. distressed areas and other areas with discuss the applicability of the Adjustments to the current framework, limited access to financial services. The Americans with Disabilities Act (ADA). including those made to the definitions agency adopts these definitions as The agency notes that activities that of distressed area and underserved area, proposed. benefit or serve LMI individuals with will help ensure that banks do more, not To encourage banks to engage in disabilities would meet several of the less, in LMI census tracts and other qualifying activities in CRA deserts, in qualifying activities criteria in the final identified areas of need, including areas response to comments received on this rule. In addition, the initial CRA that may have historically been affected issue, the final rule adopts a definition illustrative list includes examples of by redlining or other forms of unlawful of CRA desert and provides multipliers activities that support persons with discrimination. The OCC believes the for qualifying activities in these areas. disabilities. Under the final rule, banks reforms contained in the final rule will The final rule defines CRA desert as an and interested parties can request have the positive result of benefiting area that has been confirmed by the confirmation that additional activities minority populations by increasing agency to be a CRA desert because it has meet the qualifying activities criteria. activities in areas that often have a high significant unmet CD or retail lending Affiliate activities. In the proposal, minority population. Further, a bank’s needs and where: (1) Few banks have qualifying activities included activities CRA performance will be adversely branches or non-branch deposit-taking in which banks substantively engaged affected by evidence of discrimination facilities; (2) there is less retail or CD and for which they provided the or other illegal credit practices.’’ lending than would be expected based economic resources, but which were The agency notes that MSAs that on demographic or other factors; or (3) done in the name of another party, such experience high rates of poverty, the area lacks community development as an affiliate. The agency received unemployment, or population loss are organizations or infrastructure. The final comments on the treatment of qualified often correlated with high populations rule also provides that the agency will activities undertaken by bank affiliates. of racial minorities. Accordingly, the maintain an illustrative list of CRA Some community group commenters proposed definitions of distressed area deserts and includes a process for banks stated that giving banks a choice of and underserved area would have the to obtain confirmation that an area whether to include an affiliate’s positive result of incentivizing CRA meets the definition of a CRA desert. activities opens up the framework to activities in certain areas with high Because geographies that meet the abuse. They argued that affiliate populations of racial minorities. Thus, definition of CRA desert are subject to activities should always be included the agency’s proposal achieves the change based on increases in the level because the distinction between benefit urged by the commenters who of CRA activities directed to the area, affiliates’ activities and those of a bank support explicitly addressing each bank that seeks to use a multiplier is often unclear. Alternatively, communities of color in the CRA for an activity in a CRA desert must commenters suggested that the OCC regulations. Therefore, the agency is not obtain confirmation from the agency adjust a bank’s CRA ratings if its implementing the proposed reforms.61 that the geography is or continues to be affiliate’s activities varied widely from Commenters suggested several a CRA desert. the bank’s activities with respect to alternative methods of defining Federal Housing Administration abusive practices and the populations distressed or underserved census tracts, (FHA) loan products. Commenters served. A few members of the public stated that the proposal did not address and some community groups stated that 61 A commenter also noted that the agency failed certain single-family FHA loan products if banks receive credit for affiliate to consider its statutory duty to affirmatively further provided to LMI individuals. These activities, the agency must consider fair housing under the Fair Housing Act, 42 U.S.C. comments reflect a misunderstanding of evidence of discriminatory or other 3608(d), because the proposed rule would have the effect of making affordable housing unavailable. See the proposal. The proposed qualifying illegal credit practices of those affiliates. 42 U.S.C. 3604(a). Lending disparities correlated activities criteria do not include any In contrast, several commenters with race, ethnicity, or other protected status are of reference to single-family FHA loan representing industry trade groups concern to the agency. As discussed in this products; however, the CRA illustrative supported retaining the optionality. One preamble, the agency supervises banks’ compliance with the federal fair lending laws and regulations list included in the proposal did include industry commenter specifically through its examination and enforcement functions. some examples of qualifying activities recommended that activities conducted Further, the final rule does not, on its face or involving FHA loan products. As noted by an affiliated foundation, under through implementation, make any housing below, the CRA illustrative list provided common control of the bank’s unavailable in violation of the Fair Housing Act. Moreover, the final rule increases incentives for along with the proposal is a non- shareholders, be counted as qualifying financing housing affordable to LMI individuals exhaustive, illustrative list of examples activities of the bank. Two industry and families. of qualifying activities. If a loan commenters recommended that the
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agency permit banks to exclude affiliate examples of activities that would not agency will make these decisions based activities from the retail lending provide community members with upon all available information.64 distribution tests. financial inclusion and economic After considering the specific The agency has carefully considered opportunity, with one commenter suggestions the agency received, the the comments received. In the final rule, referencing the examples involving in- OCC will endeavor to publish the CRA the agency decided to limit kind donations of computer equipment illustrative list on its website in a consideration of CRA activities to those and provision of homebuyer education searchable format. The final rule conducted directly by a bank to be more to buyers of single-family housing. One provides that the agency will respond consistent with the CRA statute. The community group commenter suggested directly to requests for confirmation and agency has made clarifying edits that the housing tax credit example on post those responses to its website. The throughout the rule to reflect this policy the illustrative list should be clarified so OCC will do so consistent with its decision. The CRA statute grants the that only 60% of the units meet the 30% internal processes, policies, and agency the authority to evaluate the of 80% of the area median income procedures. Banks can reference those CRA performance of insured depository requirement. Certain community group responses as interpretive guidance to institutions. The agency notes, however, commenters opposed the list but determine whether particular activities that it considers qualifying activities to supported the confirmation process. A meet the qualifying activities criteria. be conducted by a bank if the bank few commenters also suggested that a The agency plans to update the CRA finances or otherwise supports a best practice guide, informed by illustrative list on an annual basis with qualifying activity, even if the community and consumer-serving the activities that were determined to transaction involves an intermediary. organizations and public input, would meet and not to meet the qualifying The final rule will not require or be better than a list. activities criteria during that year. provide the option for banks to consider Other commenters requested that the affiliates’ activities. In response, the agency reiterates that CRA illustrative list identify CD CRA illustrative list. The proposal the list is illustrative only. It is not a lending, CD investment, and CD provided that the agency would complete list of activities that meet the services separately. Because any CD maintain a publicly available, non- regulatory criteria; no such list exists, loan, investment, or service qualifies exhaustive, illustrative list of examples nor will it exist under the final rule. under the rule if it satisfies one or more of qualifying activities that meet the Banks will receive CRA credit for any CD criteria, the agency does not plan to rule’s qualifying activities criteria, as activity that satisfies the qualifying further segregate the list by type of CD well as examples of activities that the activities criteria, regardless of whether activity unless it is necessary based on agency has determined, in response to it is on the CRA illustrative list. the facts and circumstances (e.g., the specific inquiries, do not qualify. The Moreover, the OCC encourages banks to activity can only be a CD investment). proposal also established a process for engage in innovative activities that are Another commenter requested that the a bank or interested party to submit a responsive to the needs of their list include guidance on the necessary form through the OCC’s website to seek communities and, where there is documentation for each activity. As agency confirmation that an activity is uncertainty, to confirm with the agency noted above, the agency plans to a qualifying activity and stated that the that an activity not on the CRA provide guidance on the application of CRA illustrative list would be updated illustrative list is qualifying.63 the final rule. each time an activity is confirmed to be Commenters also addressed the One industry commenter or determined not to be a qualifying process in the proposal for banks to seek recommended expanding the activity. In addition, the proposal agency confirmation that an activity is confirmation process to include provided that the list would also be a qualifying activity. Commenters noted confirmation of whether a branch would published in the Federal Register at that limiting this process to banks be included in the numerator of the least every three years, at which time would deprive interested persons of the branch distribution component of the the agency would seek public comment opportunity to gain important clarity CRA evaluation measure, discussed on the list. Following this, the agency and participate in the CRA process. Two below. Branches in LMI census tracts could add activities to the list that meet community groups recommended that and other identified areas of need are the qualifying activities criteria or local input should inform the not qualifying activities. As such, the remove activities that no longer meet confirmation process, and one industry qualifying activities confirmation the criteria.62 commenter suggested that a joint group process does not include these The agency received a number of consider confirmation requests, branches. Under the final rule, as comments on the proposed CRA including representatives from the discussed below, if a branch is not illustrative list of qualifying activities originating district or regional office. and the processes for updating the list. The agency agrees that public input and 64 Commenters also addressed the statement in Several commenters expressed concern the proposal’s preamble that the agencies would active stakeholder engagement is collaborate on the CRA illustrative list, stating that that the list would be viewed as a important to achieve the goals of the the manner in which this collaboration would occur complete list of permissible activities, as CRA, and the final rule allows any was unclear. One industry commenter opposed to an illustrative list of interested party to request confirmation recommended that the agencies respond jointly to examples. Others stated that a list confirmation requests. One community group that an activity is a qualifying activity. recommended that the CRA illustrative list reflect would serve to discourage banks from Because the question of whether an consensus among the OCC, FDIC, and the Board. A engaging in activities that are not on the activity meets the qualifying criteria is state regulator recommended that state regulators list, thereby limiting innovation. Some a matter of agency interpretation, the have input as well. State regulators may provide community group commenters stated input on the illustrative list using the confirmation or notice and comment process described in the that the CRA illustrative list included 63 In this regard, the agency notes that the final final rule. The FDIC and the Board are not joining rule encourages innovativeness and responsiveness this rulemaking, and therefore presumably will not 62 The initial proposed illustrative list was through multipliers to the quantified dollar value of be maintaining illustrative lists comparable to the available for review on the agency’s website at the the activities and through consideration of these OCC’s list. However, the OCC notes that it time the proposal was published, as well as in qualitative aspects of CRA activities as part of coordinates with these agencies on a routine and section V of the proposal. performance context. ongoing basis regarding areas of common interest.
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located in an LMI census tract or other rely on the CRA illustrative list. which banks are ready to engage. The identified area of need, a bank must Moreover, the commenter argued, proposal also established a process for demonstrate that it serves one of those frequent revisions could make the list a bank to submit a form through the areas to be included in the numerator of susceptible to changes based on agency’s website to seek agency the branch distribution component of political pressure, rather than public confirmation that an activity is a the CRA evaluation measure. policy rationales. The commenter also qualifying activity.67 The final rule A few community groups argued that suggested that activities removed from adopts this process. the periodic updates to the CRA the list should qualify for credit for two The CRA illustrative list issued on the illustrative list each time an activity is additional years to further enable OCC’s website in conjunction with this confirmed to be or determined not to be reliance on the list and allow banks to final rule includes additional or a qualifying activity should be subject to better modulate product development modified examples conforming to notice and comment under the and political headwinds. The agency changes in the regulatory text, along Administrative Procedure Act (APA). agrees with the commenter that a five- with technical and clarifying changes. The agency disagrees. The CRA year review would increase the ability Additionally, the OCC added several illustrative list is a non-exclusive of banks to rely on the list and provide examples to provide further guidance or compilation of activities that the agency them with certainty, particularly in light to address input from commenters, has determined do or do not meet the of how long some activities take to start including examples addressing qualifying activities criteria. The list up and wind down, and the agency has activities that respond to the current itself does not set forth the regulatory made this change in the final rule. With pandemic and the technology and qualifying activities criteria, nor do respect to the two-year grace period, the health services needs of LMI changes to the list in any way alter or agency does not believe such change is individuals. otherwise affect these criteria. Under the necessary because a bank that received Other than the changes discussed final rule, the periodic updates of the credit for an activity that is above, the final rule adopts the CRA list will reflect the agency’s opinions on subsequently removed from the list illustrative list and confirmation process whether specific scenarios presented by (because it no longer meets the provisions as proposed. banks or interested parties meet the regulatory criteria) will continue to Qualitative aspects of qualifying qualifying activities criteria. These receive CRA credit while the activity activities. At least a few community opinions on the applicability of the rule remains on the bank’s balance sheet. groups and individual commenters are interpretive rules, which are In response to suggestions that the stated that the proposal’s failure to commonly issued by a government CRA illustrative list be updated more consider qualitative criteria for CRA agency in response to requests for frequently, the agency notes that it plans activities could result in products guidance from the public on how to update it on an annual basis in receiving credit even though they do not statutes and regulations apply in response to requests from any bank or support pathways for LMI individuals to specific situations.65 These interested party for confirmation that an move to lower-cost products. Other interpretations provide stakeholders and activity qualifies. For the reasons commenters suggested that qualitative other interested parties with timely described above, the agency is not performance context considerations information and foster a more nimble adopting a more frequent public notice should only supplement a bank’s and responsive government. Under the and comment update process. presumptive rating. As previously APA, an interpretive rule is exempt Certain community groups noted, the general policy direction of 66 from notice and comment. recommended that banks only receive the agency’s reform is to increase the With respect to the periodic credit for activities on the CRA level of transparency, objectivity, and publication of the CRA illustrative list illustrative list if they benefit LMI consistency of application throughout in the Federal Register every three individuals. The agency is not adopting the CRA regulation. The need for years, some commenters stated that this this recommendation because the final transparency, objectivity, and should take place no more often than rule, like the current regulations, consistency is a point of general every five years because a more frequent provides CRA credit for some activities agreement among commenters review could impede banks’ ability to with benefits that extend beyond LMI throughout the reform process, in which individuals and families. the agency has engaged over the past 65 The critical feature of interpretive rules is that The agency received numerous several years. Increasing transparency, they are issued by an agency to advise the public comments requesting that the approval of an agency’s construction of the statutes and rules time for a request for consideration of a objectivity, and consistency will that it administers. Attorney General’s Manual on new activity should be shorter than the increase business certainty and in turn, the Administrative Procedure Act 30 n.3 (1947); incentivize a greater amount of accord Perez v. Mortgage Bankers Association, 575 six months that was proposed. Other U.S. 92 (2015) (citations omitted). While commenters recommended a qualifying activities. The qualifying interpretive rules do not require notice and conditional review and approval activities criteria and CRA evaluation comment, and therefore may be issued more process, potentially with a prompter measure, for example, provide this expeditiously than legislative rules, interpretive increase in transparency, objectivity, rules may not set legal expectations that extend conditional determination. The agency beyond the underlying statute or regulation. Id. does not think that a conditional and consistency. At the same time, as (noting that interpretive rules do not have the force approval process is warranted because it discussed in the performance context and effect of law). could create uncertainty. The agency section below, the agency recognizes 66 5 U.S.C. 553(b)(A). See also Shalala v. that not every aspect of CRA can be Guernsey Memorial Hospital, 514 U.S. 87, 99–100 does agree, however, that to be useful, (1995) (noting that an APA rulemaking is not the approval process should be quantified and made objective. required for an interpretive rule that does not effect shortened, and the final rule provides Moreover, the agency believes that a change in agency regulations); cf. American qualitative considerations are an Mining Congress v. Mine Safety & Health for a 60-day approval process, with the Administration, 995 F.2d 1106, 1112 (D.C. Cir. option of a 30-day extension. To manage important component of CRA 1993) (noting that one indicia of an interpretive rule the agency’s resources effectively, the 67 is whether, absent the interpretive rule, the agency agency expects to prioritize those Under the final rule, an activity is confirmed would have a legal basis for taking an enforcement as a qualifying activity if the requestor is not action or other action to confer benefits or ensure requests relating to activities with informed of an objection within the time allotted for the performance of duties). definite terms and parameters and in confirmation.
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evaluations and, therefore, will consider of Labor Statistics (BLS) for the job experience. Specifically, in the agency’s qualitative aspects of banks’ CRA category of the service provided for the experience, evaluations have focused on performance through the application of number of hours provided. The proposal three aspects of banks’ service-related performance context, including whether solicited feedback on other methods of activities: (1) Branch distribution; (2) the bank is being responsive to quantifying CD services, including using product offerings that are tailored to community needs. As discussed below, a standard figure such as the median meet the needs of LMI individuals; and the performance context factors hourly compensation value for the (3) CD services. The final rule does not contained in the proposed and final banking industry, which was retain the service test as it appears in the rules and the standardized application approximately $36 when calculated current framework. Under the final rule, of those factors will help ensure greater based on prior Call Report data.70 A few retail banking services and delivery transparency and consistency in industry and community group systems and CD services will be application of even the qualitative commenters objected to the method accounted for both quantitatively and components of the CRA review. used to quantify CD services in the qualitatively. Retail banking services and CD proposal, suggesting that it would The agency will account for retail services. The proposal did not include provide varying amounts of credit for banking services and delivery systems a service test, which under the current CD services, would not adequately qualitatively as part of performance framework is used to evaluate banks’ reflect the positive impact that CD context. The agency considered options retail banking services and delivery services have on communities, and for quantifying retail bank services and systems 68 and CD services. The would be unduly burdensome to track delivery systems but determined that proposal instead sought comment on given the credit provided for CD these aspects of a bank’s business do not how retail banking services and delivery services. A few commenters offered lend themselves to quantification and systems, other than branch distribution, suggestions on other ways to quantify or are best evaluated using qualitative could be quantified or whether they value service hours, including the criteria. As discussed below, the final should be considered as part of suggestion that a standard figure be used rule also retains the branch distribution performance context. The proposal for all volunteer hours. component of the CRA evaluation included in the CRA evaluation measure The agency also received comments measure and enhances the amount of a component that accounted for the regarding the elimination of the service credit that a bank may receive for distribution of branches in LMI areas test. While certain commenters branches in LMI census tracts and other and other identified areas of need. acknowledged that performance under identified areas of need. The proposal also sought comment on the service test can be confusing and With regard to CD services, the agency the proposed method of quantifying CD does not rely on quantifiable criteria, revised the treatment of CD services in services (i.e., bank employee time spent many community groups, individuals, the final rule. To reduce the burden volunteering as a representative of the and government commenters asserted associated with tracking the bank on qualifying activities or that the service test remains important. compensation rates associated with the supporting qualifying activities of Commenters further argued that different job categories in the BLS data, another bank or that are cooperative minimizing consideration of bank the final rule quantifies CD services ventures with a minority depository accounts and other services and based on the standard figure for the institution, women’s depository branches that serve LMI individuals and median hourly compensation value for institution, or low-income credit union communities would result in LMI the banking industry calculated using or CDFI).69 The NPR quantified the communities becoming more dependent Call Report data, which is $38 based on dollar value of CD services based on the on check cashing and other high-cost 2019 Call Report data. In addition, as hourly salary as estimated by the Bureau services. These commenters argued that discussed below, the quantified dollar the service test should be retained and value of CD services will be adjusted by 68 Under the current framework, the service test improved in the final rule to provide multipliers, as applicable. is used to evaluate a bank’s distribution of banks greater incentive to provide In administering the CRA regulations, branches, record of opening and closing branches, the agency will take appropriate steps— the availability and effectiveness of the bank’s affordable deposit accounts and other alternative systems for delivering retail banking banking services to LMI individuals and such as providing examination tools and services to LMI individuals and in LMI census communities. Some industry, guidance—to ensure consistent tracts, and the range of services provided in low- community group, government, and application of performance context. The , moderate-, middle-, and upper-income census agency will incorporate consideration of tracts and the degree to which they are tailored to public commenters indicated support meet the needs of those census tracts. for including the provision of retail a bank’s retail banking services targeted 69 to LMI individuals, record of opening A few industry commenters supported the banking services to LMI communities in proposal to no longer limit CD services to the and closing branches, and availability the CRA evaluation measure. Other provision of professional services or financial and effectiveness of its alternative commenters made recommendations on literacy. In contrast, four commenters suggested that systems for delivering retail banking CRA credit for volunteer services should be limited various products and services that services in LMI census tracts and to LMI to activities that are unique to skillsets relevant to should be considered or suggested that banking and financial expertise. A few community individuals, the qualitative aspects of its banks be incentivized to offer retail group commenters and two government branch distribution, and the qualitative products and services to particular commenters suggested limiting CRA credit for aspects of CD services in the volunteer services, including to supporting communities such as LMI, minority, or standardized application of performance organizations with a primary CD purpose or to the immigrant communities. extent the activity benefits LMI individuals. The The agency carefully considered context. In the agency’s view, these are final rule, like the proposal, no longer requires that important aspects of a bank’s CRA CD services be related to the provision of financial commenters’ concerns and believes that services (i.e., banks would receive credit for all the proposal accounted for services performance that are best considered volunteer hours, including manual labor, provided appropriately and was consistent with qualitatively, not quantitatively. to a CD project). As explained in the proposal, this Commenters also requested clarity on the agency’s actual examination expansion recognizes that support for a CD project whether activities conducted in a may take many forms, all of which are required for the project to meet the needs of a community, and 70 The proposal stated that the $36 per hour figure middle-income census tract which is that all these forms of support should qualify for was based on BLS data. In fact, the figure was surrounded by LMI tracts will qualify as CRA credit, consistent with the goals of CRA. calculated using data from the Call Report. a CD service. Under the final rule and
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consistent with the guidance in the conforming edits related to these services of military banks; national or current Interagency Q&As,71 if a bank changes throughout the final rule. regional funds; documented, verified can demonstrate that an activity meets Other suggested qualifying activities. collaboration with community partners, the qualifying activities criteria it will Some commenters suggested the such as investments in workforce receive CRA credit. Stated another way, agencies identify additional activities development programs, financial qualifying activities do not need to that would qualify for CRA education partnerships, and occur in LMI census tracts or other consideration, including for example, microlending or small-dollar loan identified areas of need to benefit or CD corporations; CD venture capital programs; and membership in and all serve those areas. organizations; work done to enhance activity in their region’s Federal Home Purchases of qualifying activities. The digital literacy and/or broadband and Loan Bank. proposal provided that qualifying digital access; disaster relief efforts; Regarding revitalization and activities are retail loans and CD programs and products focused on stabilization efforts, some community activities that help meet the credit needs general education; and environmental group, industry, and government of a bank’s entire community, including initiatives. Commenters also suggested commenters stated their opposition to LMI communities, if they meet the miscellaneous housing activities should the removal of the revitalization and qualifying activities criteria at the time be considered, including housing stabilization criteria from the definition the activity is originated, made, or counseling, foreclosure prevention of CD or stated that the criteria should conducted. The proposal further stated efforts, loss mitigation efforts, and be added back into the regulation. that if an activity is subsequently activities of state housing finance Regarding the consideration of various purchased by another bank, it is a agencies. Other commenters suggested activities, a few commenters offered qualifying activity if it meets the criteria qualifying activities should include suggestions on possible criteria to in this section at the time of purchase. investments, lending, and services consider activities. A few commenters The agency received comments involving legal assistance for LMI discussed whether LMI individuals indicating that it was unclear whether individuals or supporting interest on should be the focus of qualifying banks were required to requalify lawyer trust accounts; efforts to remove activities. Community group purchased loans and investments by language barriers; hours of bank commenters stated that no new CD collecting data on the activity at the operation; equity investments in financing should count as qualifying if time of purchase or whether the minority depository institutions, those investments decrease a bank’s purchasing bank could rely on the women’s depository institutions, or low- investments in core CRA activities, information provided at the time the income credit unions and loan which include lending to LMI loan was originated or the investment participations sold to and from minority individuals. Community group was made. The final rule includes depository institutions, women’s commenters stated that all investments clarifying edits to the qualifying depository institutions, or low-income should be analyzed for their impact on activities criteria section regarding the credit unions, including investments historically redlined communities. subsequent purchase of activities. In made by those institution in other such Other commenters offered suggestions particular, the agency clarified how a institutions, loans to non-profits and on qualifying activities criteria that bank determines whether an activity other support of social and racial justice could be used to consider activities, that is subsequently purchased by advocacy non-profit organizations; including that the agency could require another bank is considered a qualifying activities related to rural development; banks to secure endorsements of activity. The final rule clarifies that if a SBA 504 loans and 7(a) loans; microloan activities from local community leaders; bank purchases a loan or investment intermediaries (as defined in 13 CFR consider community wealth building that was a qualifying activity, it remains 120.701); financing or support for SBICs models; and incentivize prime products so unless the agency determines prior to regardless of the location of the SBIC or rather than high-cost products. the sale that the activity is no longer a its investments; activities that support The final rule addresses these qualifying activity. Essentially, if a bank communities of color; tax credits and suggestions by providing clear, yet purchases a loan or investment that met other community reinvestment grants; flexible, criteria describing what the qualifying activities criteria when it and lending that helps reduce the activities will count as CRA qualifying was originated or made, and based on combined cost of housing and activities. Many of the suggestions made the facts provided at that time it still transportation, including vehicle loans by commenters are likely to meet the meets the qualifying activities criteria, it that support transportation to and from qualifying activities criteria and some remains a qualifying activity (i.e., banks employment. are included in the CRA illustrative list. do not have to requalify purchased Other commenters suggested In addition, the agency will consider activities based on the facts at the time qualifying activities should include additions to the CRA illustrative list on of purchase by, for example, obtaining activities such as payday loan a case-by-case basis and periodically the current income of a borrower who alternatives, including small dollar seek public comment and update the was LMI when the loan was originated). loans benefitting LMI; activities related to child-care; activities related to list. Rather, whether activities qualify is Quantifying a bank’s qualifying based on the facts at the time originated revitalization efforts; financing in support of projects under a local activities, general. Except for retail loans or made). In contrast, if a loan or sold within 90 days of origination and investment no longer meets the government’s Community Development Block Grant; creative placemaking activities that are not held on a bank’s qualifying activities criteria at the time balance sheet, the proposal would have of purchase based on the information projects; activities that provide borrowers access to asset building generally quantified qualifying activities provided when it was originated or based on their average month-end on- made then it will not be a qualifying products; activities that increase credit balance-sheet value.72 The proposal activity for the purchasing bank. The scores; investments in account opening partnerships that measurably improve OCC also made several technical and 72 One industry commenter suggested that there financial inclusion; investments into the was a conflict between: (1) The proposed regulatory 71 See Interagency Q&As, § ll.12(g)—2, 81 FR at Puerto Rico Housing and Human text’s description of the value of an activity as the 48525. Development Trust Fund; products and average of the dollar value as of the close of
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included separate provisions for 2018 HMDA data 74 to estimate: (1) How ensures that banks with an originate-to- quantifying activities that are not held many banks have originate-to-sell sell business model are not on a bank’s balance sheet. The proposal business models and how many are disadvantaged. The agency believes the quantified most activities based on their portfolio lenders; 75 (2) what percentage change to the rule addresses any on-balance-sheet value to recognize the of the LMI home mortgage origination concerns about an inconsistency value of stable commitments to market those banks represent; and (3) between the proposed regulatory text communities and disincentivize how assigning different weights would and preamble regarding the treatment of churning of activities. However, the impact the CRA evaluation measures of loans originated and sold within 90 agency also recognizes that providing portfolio lenders and banks with days. The agency also is clarifying that initial credit to borrowers or originate-to-sell business models. The this treatment applies only to retail organizations is enormously valuable. agency’s analysis revealed that loans. To account for this value, the proposal originating and selling retail loans The agency received comments from quantified retail loans that were sold accounts for a non-trivial portion of the community groups, individuals, and within 90 days of origination at 25 LMI home mortgage market and a government commenters suggesting percent of the dollar value at weight equivalent to three months of consideration of originations and origination. holding the loan on the bank’s balance investments instead of or in addition to At least a few community groups sheet may not sufficiently reflect the balance sheet activity. These expressed the view that the proposal’s magnitude of the origination dollar commenters suggested that considering approach to retail loans sold within 90 volume for banks that originate to sell only balance sheets, and not days of origination may result in fewer vis-a`-vis banks that hold the loans in originations, could result in banks retail loan originations and penalize portfolio. Thus, the agency has revised meeting targets based on their current banks that originate loans to sell in the the rule so that retail loan originations balance sheets and engaging in less CRA secondary market. At least a few sold at any time within 365 days will activities. Additionally, community industry commenters voiced similar receive credit for 100 percent of the group and industry commenters concerns that the proposal undervalued origination value. Specifically, under suggested that the agencies should originations for retail loans that are sold the final rule, retail loans originated and factor into ratings whether banks have and disfavored the originate-to-sell sold within a year are quantified based decreased originations of equity business model.73 Both community on their full origination value. This investments or affordable housing loans group and industry commenters focused method increases the valuation of these relative to the prior assessment period. on this issue as it pertained to mortgage loans as compared to how they would One government commenter suggested loans. have been valued based on an on- that there should be a minimum level of The agency understands the concerns balance-sheet quantification. For affordable housing investment required that these commenters have raised and example, a $100,000 mortgage loan that and community group commenters and agrees that retail loan originations are an was originated in month one and was on a government commenter suggested important type of credit for populations a bank’s balance sheet as of the last day there should be minimum holding and communities of need. Further, the of the month for months one, two, and periods for CRA qualifying activities. agency’s intent is not to favor one three, before being sold in month four Industry and community group business model over another. To would receive a value of $100,000 for commenters discussed potential harm examine the impact of various that twelve-month period. If that loan caused to the bank by using the balance weighting schemes, the agency used the was valued based on its on-balance- sheet approach, which included sheet value, assuming the on-balance- increasing safety and soundness risks business on the last day of the month for each sheet value remained constant, it would and penalizing banks with limited month the activity remained on-balance sheet; and have received a value of $25,000 toward portfolio capacity. One industry (2) the preamble’s description of the value of a that year’s on-balance-sheet value. By commenter suggested the treatment is mortgage backed security (MBS) purchased and inconsistent with the Basel III capital sold over a one-month period. The agency providing that additional credit to retail recognizes the ambiguity created by the text of the loans originated and sold within one rules, which recognize that ownership proposed regulation and has removed the phrase for year, the agency recognizes the of servicing assets entails an ongoing each month the loan or investment is on-balance importance of originations and also financial commitment even when the sheet from the final rule. The agency also made a loan is sold. technical change in the final rule by adding the word quantified before the phrase dollar value. 74 Only banks with assets of $2.5 billion or greater With regard to CD loans, the agency 73 These commenters gave several reasons for were included in the analysis. Also excluded were: believes that the on-balance-sheet value their position, including: (1) Originating mortgage (1) Institutions regulated by the National Credit of these activities best reflects the value loans is costly because banks have to create and Union Administration and HUD; (2) institutions for to the community.76 Further, maintain consumer compliance infrastructure, which the agencies did not have deposit or asset considering the on-balance-sheet value ensure adherence to the underwriting guidelines of size information; (3) institutions reporting no home the Government Sponsored Entities (GSE) and other mortgage loan balances on the Call Report; and (4) encourages banks to provide the credit secondary market participants, and conduct loans where the values of income, area median and investment terms that best fit the marketing and outreach; (2) selling to the secondary family income, or loan amount were missing. needs of the beneficiary. Therefore, the market helps banks manage interest rate risk and 75 For the purposes of this analysis, to determine agency is not changing the general expands a bank’s ability to finance mortgages; (3) how many loans were sold by a bank, the agency product offerings that are retained on balance sheet used the purchaser code in the HMDA data that treatment of CD loans and CD (such as balloon or adjustable rate mortgages) are identifies whether the loan was sold within the investment.77 not as affordable to LMI individuals; (4) holding HMDA calendar year. This may underestimate the A few community groups, some loans on book to avoid the 75 percent haircut would number of loans an institution sells, particularly government commenters, and one not be an efficient use of capital; (5) limiting CRA loans originated near the end of the 2018 that were individual commenter argued that the credit would drive banks from residential mortgage sold in 2019. Subject to these assumptions, the lending and cede this territory to non-banks; (6) this agency assumed a bank was a portfolio bank if the undervaluation would drive banks to sell fewer proportion of LMI loans originated in 2018 that 76 The final rule also quantifies CD investments mortgages on the secondary market and cause the were sold in 2018 was less than 25 percent. that are held on a bank’s balance sheet based on CRA and GSE Affordable Housing Goals to not be Conversely, the agency assumed a bank was an their on-balance-sheet value. aligned; and (7) incentivizing the retention of LMI originate-to-sell bank if the proportion of LMI loans 77 As discussed below, the agency revised the loans in portfolio could threaten safety and originated in 2018 and sold in 2018 was at least 75 quantification method for commitments to lend and soundness. percent. LIHTC and NMTC syndications.
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proposal undervalues Low Income sponsoring bank, a bank that purchases qualifying activity. An example of a Housing Tax Credit (LIHTC) and New an interest in a LIHTC or NMTC reasonable method of calculating the Markets Tax Credit (NMTC) syndication and holds the investment pro-rata share that the agency would syndications or sponsorship activities, on its balance sheet will also receive accept was illustrated in the comments thus discouraging banks from credit for the quantified dollar value of from one community group: The supporting activities such as affordable the investment, adjusted for applicable construction of a new rail line that goes housing. These commenters observed multipliers. In the agency’s view, the through 10 census tracts and serves four that syndication activities are largely final rule’s treatment of syndication or LMI tracts with multiple stations would not reflected on banks’ balance sheets. sponsorship activities supporting LIHTC clearly benefit LMI tracts.79 In this If syndicators or sponsors were not and NMTC funds will give appropriate scenario, the pro-rata credit could willing to take on this role, these credit to these activities without reasonably be 40 percent of the dollar commenters expressed concern that overvaluing them in comparison to amount of a bank’s construction loan for other banks that make investments in other qualifying activities. the project because four of the 10 census funds supporting these projects Quantifying a bank’s qualifying tracts are LMI. Similar calculations (community banks in particular) might activities, pro-rata credit. The proposal based on the facts and circumstances of not be able to participate in these also expanded the circumstances in a given qualifying activity would activities. Several industry commenters which banks receive pro-rata credit for likewise be reasonable. Other examples suggested that the agency provide qualifying activities beyond those of a reasonable basis for the calculation substantial CRA credit for these activities that receive credit under the of pro-rata LMI benefit of a qualifying activities. Some commenters suggested current framework. Under the current activity would include, as applicable, credit for a percentage, such as 50 framework, only activities involving the percentage of: (1) Students at a percent, of the total value of the mixed-income housing that includes a school that are eligible for free or syndication for the term of the set-aside required by federal, state, or reduced-price meals under the USDA’s investment. local government for affordable housing National School Lunch Program; (2) After careful consideration of these for LMI individuals receive pro-rata individuals who receive or are eligible comments and the agency’s experience, credit. Under the proposal, in for Medicaid; and (3) recipients of the agency agrees that appropriate quantifying the value of CD activities, government assistance programs that consideration should be given to the certain CD activities that provide some have income qualifications equivalent activities of syndicators and sponsors.78 benefit to, but do not primarily benefit, to, or stricter than, the definitions of To this end, the final rule provides specified populations, entities, or areas LMI as defined by the CRA credit for these activities as follows: would receive pro-rata credit equal to regulations.80 In the agency’s judgment, Banks serving as syndicators or the partial benefit provided. the process for determining and sponsors of funds supporting LIHTC or Some commenters, including supporting the use of pro-rata credit is NMTC projects will receive credit for members of Congress, government, sufficiently robust and involved that the total dollar value of the fund in the community groups, and industry, banks are unlikely to spend resources year it was originated, without the opposed the proposal to provide pro- piecing together small prorated amounts application of a multiplier, to provide rata credit for activities that only of CRA activities to meet their CRA CRA credit for the bank’s role in partially benefit LMI communities. evaluation measures.81 Other than the syndicating or sponsoring the LIHTC or Certain community groups expressed changes described above, the agency is NMTC investment. The syndicating or concern regarding the provision for pro- adopting the quantification provisions sponsoring bank will also receive rata credit for certain qualifying as proposed. additional credit for the LIHTC or activities and stated that such credit Qualifying activities value, general. NMTC investment after the transaction should be given only if the benefit to Under the proposal, banks evaluated is complete. If the bank holds a portion LMI individuals or communities can be under the general performance of the syndication on its balance sheet, reliably estimated and verified. Some standards would have determined their it will be quantified in the same manner industry commenters expressed support bank presumptive ratings and as other CD investments. Specifically, for the provision of pro-rata credit but assessment area presumptive ratings by the syndicating or sponsoring bank will asked for clarity on how to assign such first calculating their qualifying receive credit for the portion of the credit to qualifying activities. The activities values, which are the sum of investment that it retains on its balance agency believes that pro-rata credit is the quantified dollar value of qualifying sheet based on the average on-balance- appropriate and that such credit should activities that receive credit after being sheet value of the investment, as be given only where the bank can adjusted by multipliers. The final rule adjusted for applicable multipliers. The provide a reasonable estimate of the makes several changes to the syndicating or sponsoring bank will also benefit to LMI individuals or families, quantification of the qualifying receive credit for the portion of the CRA-eligible businesses or farms, or activities included in banks’ qualifying syndication that is sold. For the LMI census tracts or other identified activities value and assessment area syndicating or sponsoring bank, the areas of need. The burden is on the bank qualifying activities values. The final portion of the investment that is sold is to demonstrate the impact of its rule also clarifies that a bank’s quantified as 50 percent of the dollar investment, including providing value of the portion of the syndication support for the pro-rata share of credit 79 See, e.g., Comment letter, National Community sold in the year it is sold without the used to quantify its qualifying activities. Reinvestment Coalition (NCRC), from J. Van Tol and application of multipliers. In addition to Given the variety of CRA activities and J. Taylor, at 25 (Apr. 8, 2020). 80 These examples are reasonable proxies derived the credit provided to the syndicating or the array of facts and circumstances that from the Interagency Q&As. See Interagency Q&As may be involved, however, the agency § ll.12(g)(2)—1, 81 FR at 48526. 78 See GAO–17–285R, Low Income Housing Tax does not believe that a one-size-fits-all 81 The agency also made a clarifying change Credits: The Role of Syndicators at 7 (Feb. 16, 2017) approach for calculating the proportion related to the calculation of the partial benefit and (describing multiple roles of syndicators in of benefit is feasible or appropriate. The primary benefit associated with certain qualifying developing and monitoring LIHTC projects) activities. Specifically, the final rule defines the available at https://www.gao.gov/products/GAO-17- agency will accept reasonable methods terms partially and primarily as opposed to 285R . for calculating the pro-rata share of a partially benefit and primarily benefit.
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qualifying activities value and that the agency would have to update minority depository institutions, assessment area qualifying activities and refine the multipliers frequently to women’s depository institutions, or low- values include the quantified dollar respond to new circumstances and income credit unions to the value of all qualifying activities questions. Community group, industry, communities they serve, the final rule originated, made, performed, or on the and public commenters also suggested a includes a two times multiplier for bank’s balance sheet during the year and range of additional restrictions for use of qualifying activities involving those removes language related to the a multiplier.82 institutions. Fourth, the final rule consideration of affiliate activities. In contrast, certain industry includes an additional two times Aside from these revisions and the commenters supported the concept of multiplier for qualifying activities in changes described below with regard to multipliers and stated that the agency CRA deserts. The CRA desert multiplier multipliers, the agency is adopting the should provide larger multipliers.83 applies to all qualifying activities qualifying activities value provisions as Commenters also recommended conducted in a CRA desert and would proposed. providing multipliers for additional be in addition to the multipliers that Qualifying activities value, qualifying activities.84 Additionally, apply based on the type of qualifying multipliers. Under the proposal, banks two industry commenters recommended activity or whether it was generated by would have calculated their qualifying counting the value of a donation or a branch in an LMI census tract. A bank activities value and assessment area grant for at least one full evaluation must request that the OCC confirm that qualifying activities values (i.e., the period. an area is a CRA desert before receiving numerator in the CRA evaluation The agency agrees that certain the CRA desert multiplier. The final rule measure) using the quantified dollar activities are particularly valuable to includes a process for confirming that a value of their qualifying activities, as LMI communities and other identified geographic area is a CRA desert where adjusted for applicable multipliers. In areas of need. Further, the dollar value multipliers would apply to banks’ the proposal, multipliers would have of certain activities may not accurately qualifying activities. Lastly, under the applied to several different types of reflect the positive impact that the final rule, the agency may determine qualifying activities including: (1) All activities provide to these communities. that because of the responsiveness, CD loans, CD investments, and CD However, the agency also recognizes the innovativeness, or complexity of certain services undertaken in conjunction with potential for multipliers to result in qualifying activities eligible for a CDFIs, except activities related to banks to achieving certain levels of multiplier, the activities should receive mortgage-backed securities; (2) all other performance while conducting less an increased multiplier of up to four CD investments, except for CD dollar volume of CD activities, which times their quantified dollar value. A investments in mortgage-backed could have a negative effect on those bank may request a determination that securities and municipal bonds; and (3) same communities. an activity is eligible for an increased After considering the comments all other affordable housing-related CD multiplier as part of the qualifying received in opposition and in support of loans. The purpose and design of the activity confirmation process or during the use of multipliers for certain multipliers was to incentivize banks to a CRA evaluation. In addition to engage in activities that were qualifying activities, the OCC made several revisions to the treatment of multipliers that may apply to these particularly valuable and important activities, the impact of these activities from a CRA perspective by giving banks multipliers in the final rule. First, to ensure that the use of multipliers does to the LMI community and other additional value towards their CRA identified areas of need will be evaluation measures for these activities. not reduce the level of CD activities that considered as part of performance The agency received comments that banks conduct, a bank is not eligible for context. both opposed and supported the use of multipliers until the quantified dollar multipliers. Some community groups values of its current period CD activities One industry commenter expressed stated that the use of multipliers and the are approximately equal to the concern that, in their view, purchases of proposal’s reliance on banks conducting quantified dollar values of CD activities mortgage-backed securities (MBS) are their own analyses would lead to a considered in its prior evaluation effectively disfavored under the decrease in CRA activity. Community period. Second, in response to proposal because they do not receive the groups also expressed their belief that comments that branches in LMI census benefit of a multiplier. The commenter multipliers would reduce the tracts and CD services were not noted that MBS provide a significant transparency regarding whether the appropriately valued in the proposal, source of liquidity to the mortgage dollar values used in CRA evaluations the final rule adds retail loans generated market by enabling banks to make reflected the raw dollar amount or by branches in LMI census tracts and additional loans and that MBS are a tool multiplied dollars, frustrating the CD services to the list of activities used by state housing finance agencies purpose of the CRA and making it more eligible for a two times multiplier. to provide opportunities for LMI challenging to determine whether banks Third, to recognize the importance of borrowers to purchase first homes. The were meeting community needs. These agency agrees with the commenter— commenters suggested that the agency 82 Commenters also suggested recalibration of MBS play an important role in the should apply less weight to activities multipliers including a regular public feedback mortgage market, particularly with process. respect to liquidity in the financial that are less responsive, similar to how 83 Recommendations included increasing current evaluations weigh retail lending multipliers for (1) capital investments in CDFIs and marketplace. The absence of a by volume. In the alternative, these minority depository institutions, women’s multiplier for MBS should not be commenters recommended that if depository institutions, or low-income credit interpreted as an expression of disfavor. unions; (2) donations and grants; (3) CD services; multipliers are used, the agency should and (4) other activities that support CDFIs and However, in the context of CRA, the disallow them for banks that reduced affordable-housing related CD loans. agency believes that other activities are the dollar amount of CD activity 84 Commenters suggested adding additional more impactful to a bank’s community conducted in the current evaluation multipliers for (1) small dollar loan programs; (2) and it is these activities that the agency period compared to what the bank mortgage loans to LMI borrowers; (3) other housing- sought to encourage by applying a related activities, such as first-time homebuyer conducted in the prior evaluation loans; and (4) activities involving housing finance multiplier. The final rule continues to period. These commenters also asserted agencies. balance these considerations by
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including MBS as a qualifying activity Qualifying activities value, the quantified dollar value of all but excluding them from the multiplier calculation. Under the final rule, a bank qualifying activities, adjusted by any provisions. Other than the changes would calculate its qualifying activities applicable multiplier, as follows: described above, the agency is adopting value and assessment area qualifying the multipliers as proposed. activities values by taking the sum of
Conforming, clarifying, and technical requirement that banks delineate teller machines (ATM) is outdated changes. Other than the changes assessment areas that include their because customers can now use their explained above, the agency also made physical deposit-taking locations (i.e., smartphones and other technologies to conforming, clarifying, and technical facility-based assessment areas), thus make deposits. Some of these changes throughout the final rule to preserving the importance of branches. commenters suggested that banks reflect the changes to the qualifying The inclusion of both facility-based and should instead have the option of activities-related definitions, qualifying deposit-based assessment areas in the delineating an assessment area around activities criteria, CRA illustrative list proposal reflected the agency’s policy deposit-taking ATMs, but not be and confirmation process, qualifying determination that banks should be required to do so. Similarly, one activities quantification, and qualifying required to meet the needs of their advocacy group suggested that a bank activities value and to clarify these communities where they have branches, should not be required to create a provisions. where they receive deposits, and where facility-based assessment area in an area their customers are located. with only deposit-taking ATMs and no B. Assessment Areas The agency grounded this policy branches if the deposits in that area are Overview. The CRA directs the agency decision on its understanding and 2.5 percent or less of the bank’s total to encourage banks to engage in CRA observations of the industry and retail domestic deposits. activities in areas where they draw supervisory experience. The OCC relied The OCC recognizes the importance of resources by collecting deposits. When primarily on its regulatory branches and believes that the proposal the regulations were last significantly understanding and observations of the appropriately accounted for them in the revised in 1995, bank branches closely industry, and supervisory experience to assessment area context. In the final reflected the distribution of a bank’s inform its regulatory judgment because rule, the OCC retains the requirement to deposits and were the primary means of deposit data today is incomplete and delineate facility-based assessment areas delivering products and services to bank not reported in a manner that provides around banks’ physical deposit-taking customers. By focusing assessment areas depositors’ locations. The current data locations, including full-service on branches where deposits are limitations make it impossible to branches. However, the agency agrees collected, the current regulation helped ascertain the volume of deposits from with concerns expressed by commenters to ensure that banks reinvested capital depositors’ geographic locations. The about the delineation of assessment and credit in the communities from agency’s proposal with respect to areas around deposit-taking ATMS. In which they drew resources and avoided assessment areas received many the agency’s examination experience, the primary policy concern of banks comments. The OCC’s responses to deposit-taking ATMs are often in the taking deposits from one community these comments are set forth in the same area as a branch that would also and lending that capital in another, sections below. require the delineation of an assessment perhaps more profitable or affluent, Facility-based assessment areas, area. If a deposit-taking ATM is the only community. delineation. The proposal would have means by which the bank is drawing Further, the existing means of required banks to delineate a facility- deposits, it is likely to be a very minor delineating assessment areas works well based assessment area anywhere it had amount of retail domestic deposits. This for most traditional banks that operate its main office, a branch, or a non- would make the assessment area and collect deposits through their branch deposit-taking facility, as well as delineation costly, with limited utility, physical deposit-taking locations. The the surrounding areas where the bank because the CRA framework generally current system does not, however, had originated or purchased a incentivizes banks to engage in CRA account for the advent of internet banks substantial portion of its qualifying activities commensurate with deposits. and other banks that collect significant retail loans. These facility-based Therefore, in the final rule, banks may, portions of their deposits outside of assessment areas would have ensured but are not required to, delineate their current assessment areas. As a that CRA activity continued to have a assessment areas around deposit-taking result, there is a gap between the way local community focus where banks ATMs.85 assessment areas are delineated under maintained a physical presence and the current framework and where some conducted a substantial portion of their 85 The agency acknowledges that the statute banks receive the majority of their lending activity. requires it to produce written evaluations that will deposits. Several industry and community continue to state the agency’s CRA conclusions and To close the gap, the proposal would group commenters stated that branches, contain facts and data supporting those conclusions for each metropolitan area and nonmetropolitan have required banks that collect a large particularly full-service ones, are area of a state containing a deposit-taking facility, portion of their deposits outside their important and should not be devalued including deposit-taking ATMs, consistent with the assessment areas to delineate additional, in delineating assessment areas. Some CRA statute. 12 U.S.C. 2906(b)(1)(B), (d)(3)(A), non-overlapping deposit-based industry commenters stated that the (e)(1). The data collection and recordkeeping requirements of the final rule, as well as CRA assessment areas where they draw large proposal’s requirement that banks evaluations, will provide examiners with enough amounts of deposits. The proposal also delineate a facility-based assessment facts and data upon which to draw a conclusion in retained the current regulation’s area around deposit-taking automated the metropolitan areas containing a deposit-taking
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Some industry commenters asked for investment needed to receive an delineating additional deposit-based clarity on how substantial portion of outstanding or satisfactory in their assessment areas, thereby providing lending activity is defined. The final deposit-based assessment areas, additional incentives to engage in rule requires that banks’ facility-based especially because the proposal required activities that benefit these areas. assessment areas include locations a bank to delineate deposit-based However, commenters suggested a surrounding the deposit-taking facilities assessment areas at the smallest variety of different methods for where they originate or purchase a geographical areas from which it delineating assessment areas beyond substantial portion of their qualifying received five percent of its deposits. physical bank locations based on their retail loans. This is based on the current The agency carefully considered these favored policy outcomes. Some framework’s assessment area comments and believes that the commenters proposed lending-based delineation requirements, and the proposal’s use of deposit-based assessment areas, while others proposed agency intends to interpret this concept assessment areas will not lead to unsafe assessment areas determined by a consistent with its current treatment. or unsound activities for several combination of lending activity and the Further, the final rule retains the reasons. First, as specifically stated in location of deposits. Other commenters statement that a bank’s assessment areas the proposal, the regulation would not argued that the proposal’s assessment must not reflect illegal discrimination or require banks to engage in any activities area framework should require a bank to arbitrarily exclude LMI census tracts, that are inconsistent with safe and delineate assessment areas where it taking into account the bank’s size and sound operations. To the contrary, the engages in a significant amount of financial condition. OCC anticipates that banks can meet the lending or where it receives a Deposit-based assessment area, standards in the proposal with safe and substantial portion of its deposits, even delineation. The proposal also would sound loans, investments, and services if more than 50 percent of its deposits have required that banks that received on which the banks expect to make a come from inside its assessment areas. more than 50 percent of their retail profit. Second, once a deposit Commenters also suggested that domestic deposits from outside of their relationship is established, banks assessment areas should capture the facility-based assessment areas (50 usually build upon the relationship to great majority of a bank’s business, percent threshold) delineate separate establish other customer relationships including lending activity, by deposit-based assessment areas in the and offer other products to the potentially looking to the bank’s smallest geographic area from which depositors. The proposal’s five percent marketing and advertising. they received five percent or more of threshold was high enough to ensure In addition to proposing that the their retail domestic deposits (five that a bank would only be required to assessment area delineation percent threshold). These deposit-based delineate an assessment area if it requirements incorporate lending, assessment areas were intended to received a significant amount of retail commenters suggested that banks ensure the CRA regulation keeps pace domestic deposits from that area, which should delineate deposit-based with the evolution of modern banking would indicate that the bank had assessment areas based on banks’ (including the emergence of internet familiarity with the market because of market share of deposits in an area or banks and other banks whose business relationships the bank is building with the number of deposit accounts, instead models generate deposits from areas not these depositors. of on the distribution of the volume of tied to their physical location), However, the agency acknowledges banks’ own deposits. Others suggested consistent with the CRA’s purpose to that the lack of a physical presence in that assessment areas should focus on ensure that banks help meet credit a bank’s deposit-based assessment areas where community credit needs are needs where they collect deposits. may present some difficulties, greatest. Some industry commenters suggested especially with respect to engaging in While some commenters asked for the that using a bank’s concentration of the level of CD activity required to assessment area reforms to apply to all deposits to determine where it receive a satisfactory or outstanding banks, other commenters advocated for delineated additional assessment areas rating. To provide banks with additional the method of delineating additional would lead banks to engage in unsafe or flexibility, the final rule allows a bank assessment areas to be tailored to the unsound activities by requiring them to to delineate its deposit-based type of bank. Some industry lend and invest in areas where they assessment areas at any geographical commenters asked for the option of new have no physical presence. Similarly, level up to the state level, including at assessment areas around banks’ some expressed their view that banks the metropolitan divisions, MSA, or affiliates. may be at a disadvantage serving non-MSA level, instead of requiring it to This addition of deposit-based deposit-based assessment areas as delineate at the smallest geographical assessment areas was intended to compared to banks with physical area where it has a five percent further the purposes of the CRA statute locations in those areas because of a concentration of its retail domestic and ensure that the CRA regulations lack of knowledge of community needs deposits, provided the deposit-based keep pace with the changes the agency and opportunities and that banks would assessment areas do not overlap facility- has observed in the banking industry in not be able to serve their deposit-based based assessment areas. This change recent years. The OCC has observed an assessment areas as well as their will provide banks with additional increase in the number of internet banks facility-based assessment areas. Industry flexibility to engage in safe and sound and the use of internet platforms for commenters also stated that it would be activities in a broader geographic area collecting deposits, making deposit- burdensome to gain knowledge of that includes the area from which the based assessment areas increasingly deposit-based assessment areas’ bank is receiving the five percent relevant. Additionally, by allowing community needs and opportunities. concentration of retail domestic banks to receive credit for qualifying Other industry commenters expressed deposits. Moreover, it will allow banks activities outside of a bank’s assessment their belief that banks may struggle to to receive assessment area credit for areas and using a CRA evaluation achieve the level of CD lending and qualifying activities in more rural or measure based on a bank’s total retail underserved areas where banks domestic deposits (not just the amount ATM, even if a bank chooses not to delineate an generally do not gather deposits in a of retail domestic deposits in an assessment area there. significant enough amount to warrant assessment area), the proposal would
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have incentivized banks to conduct CRA would mitigate CRA hot spots.86 assessment areas, where their depositors qualifying activities outside of their Industry commenters also criticized the actually reside.88 assessment areas. proposal’s deposit-based assessment Third, because a bank’s CRA Further, instead of seeking to define area framework as inflexible and evaluation measure in any given non-traditional business models or to suggested it would prevent banks from assessment area would have been a exempt or tailor deposit-based offering services to communities. They portion of the volume of retail domestic assessment area delineation stated that the proposal would not result deposits a bank received from that area, requirements for different bank business in additional banking services in rural artificial CRA hot spots would have models, the agency used a percentage of areas, distressed areas, Indian country, been reduced. To the extent that the retail domestic deposits received from and other CRA deserts because these proposed framework focused banks’ areas outside of a bank’s facility-based areas would be highly unlikely to be CRA obligations on areas where they assessment areas as a trigger for deposit-based assessment areas as receive a larger volume of deposits, this delineating deposit-based assessment defined by the proposal. is consistent with CRA’s statutory areas. Specifically, the 50 percent The agency agrees that it is important purpose to ensure banks meet the credit needs of the communities where they threshold is designed to ensure that the to encourage activities in credit deserts collect deposits. However, to further regulation addresses those banks that and minimize artificial CRA hot spots.87 mitigate the concern that deposit-based receive a significant volume of retail But contrary to what commenters have domestic deposits from areas outside of assessment areas would create new CRA stated, the agency believes that the hot spots, the agency is amending the their branch network. The 50 percent framework of the proposal, including threshold provides flexibility to address proposal to add flexibility. The final deposit-based assessment areas, would rule allows a bank to delineate its the banking industry as it evolves (e.g., have incentivized bank activity in LMI traditional banks may increase their deposit-based assessment areas at any census tracts and other identified areas geographical area up to the state level. reliance on technology to generate of need, especially in response to the The agency recognizes that the deposits in areas outside of their COVID–19 pandemic. The proposal traditional branch footprint). In addition proposal’s method of delineating would have mitigated artificial hot spots to being flexible enough to capture the assessment areas did not, by itself, and direct CRA activity to areas from evolving nature of banking, the address the problem of CRA deserts. which banks receive deposits in three proposed deposit-based assessment area However, the agency does not believe ways. First, the proposal would have delineation requirements also are further revisions to the proposed given banks CRA credit for activities adaptable to different business models. assessment area provisions are conducted in underserved and appropriate; instead, the agency agrees Finally, commenters voiced some distressed areas, disaster areas, and with commenters who suggested that concerns about the potential for Indian country anywhere in the country. additional incentives, such as negative incentives under a deposit- Second, the agency notes that many multipliers, would encourage lending based assessment area framework. For commenters appear to have and investment in CRA deserts and have example, commenters stated that the misunderstood the purpose of made this change in the final rule. framework would have incentivized assessment areas and how the proposal Additionally, the agency notes that the banks to chase large-dollar depositors. would have worked. The proposal’s proposal would have allowed banks to The OCC disagrees with this assertion. assessment area framework, including receive CRA credit in the bank’s CRA The agency’s goal in adding deposit- deposit-based assessment areas, would evaluation measure for loans to LMI based assessment areas was to have been a mechanism of ensuring borrowers, regardless of location, and incentivize banks to meet the needs of banks are serving the communities in for CD activities conducted in distressed their customers that are located outside which they and their customers are and underserved areas, regardless of of their facility-based assessment areas. located and not a device to limit where whether those areas are in a bank’s Some commenters suggested that the banks would have been able to receive assessment area. Under the proposal, proposal’s deposit-based assessment CRA credit. Because the proposal because a bank’s CRA evaluation areas would exacerbate credit deserts. required a bank that met the 50 percent measure is based on its total retail Commenters also stated that the deposit- threshold to delineate deposit-based domestic deposits, and not just its retail based assessment area concept would assessment areas, those banks would be domestic deposits in its assessment areas, banks would be incentivized to focus CRA activities in population evaluated on whether they conducted conduct qualifying activities in areas centers that are typically already well- activities in other areas of the country outside of their assessment area, served by banks, thereby reinforcing— outside of their facility-based not reducing—the CRA hot spot including in underserved and rural problem. Some of these commenters areas. The OCC does not believe the 86 See Enterprise Community Partners, Inc., from voiced concerns that deposit-based P. Almodovar, at XX (Apr. 20, 2020). (‘‘The comments necessitated changes to the assessment areas (and therefore CRA proposed rule offers greater flexibility to banks to proposed assessment area provisions. hotspots) would be created in affluent designate state-wide non-metropolitan [assessment Although the agency carefully areas]. This could be particularly beneficial for rural considered commenters’ concerns and areas instead of in LMI communities, areas and may mitigate some of the problems of rural areas, Indian country, and other CRA deserts.’’ suggestions, the final rule retains the underserved areas because of the 87 The current CRA regulations allow artificial deposit-based assessment area concentration of deposits. Two industry CRA hot spots to develop by only allowing banks framework because it aligns more commenters specifically noted the to delineate assessment areas around their physical closely with the statutory purpose of the deposit-taking locations. Since banks generally only CRA. inclusion of custody banks and get CRA credit for activities around their physical corporate deposits as reasons for the deposit-taking locations, including their main potential exacerbation of CRA hot spots. office, and banks may locate their main office in 88 This is particularly the case for internet banks, However, one community group stated certain geographies for reasons unrelated to their which under the current framework only receive concentration of depositors in those geographies, credit for CRA activities conducted around their that deposit-based assessment areas artificial CRA hot spots are created. main offices.
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Thresholds for deposit-based than the account holder’s address, and areas in the near or medium term. assessment areas. The proposal uses a definition of deposits different Therefore, the final rule adopts the 50 included two thresholds for delineating than the proposed definition of percent and five percent thresholds as deposit-based assessment areas: (1) The deposits. Additionally, not all banks proposed. five percent threshold; and (2) the 50 geocode deposits by customer address. Some industry commenters voiced percent threshold. Some community Accordingly, the OCC was unable to concern that the frequency of changes in group and industry commenters argued estimate the number of deposit-based deposit levels that may cause banks to that the proposal’s deposit-based assessment areas that banks would be be over the threshold one quarter and assessment areas framework was not required to delineate under the below the next, particularly with based on data and, therefore, analysis of proposed framework. However, despite quarterly reporting, and requested it was impossible. These commenters these limitations, given the importance clarity about how to handle shifting noted that it was difficult to assess of the CRA and the agency’s policy of deposit levels. On a similar note, some whether the five and 50 percent ensuring that banks engage in CRA community groups voiced that deposit- thresholds are appropriate, given the activities in communities where they based assessment areas were not limited nature of existing data. receive deposits, consistent with the transparent because they would not Commenters encouraged the agency to CRA statute, the OCC believes it is know banks’ delineated assessment conduct further testing and to further appropriate to rely on its experience, areas until after CRA examinations are consider potential consequences before knowledge of the banking system, and complete due to the changing nature of calibrating the thresholds. supervisory judgment to establish initial depositors’ locations. One solution that With regard to the 50 percent thresholds. The thresholds in the final was suggested by industry commenters threshold, some community group rule reflect the agency’s supervisory was to require delineation only after commenters remarked that the 50 experience. Specifically, the thresholds deposit levels in an area remain above percent threshold was too high and were set high enough to ensure that the thresholds for one or two years. For recommended eliminating it and simply internet banks would have an obligation the reasons discussed above, the OCC delineating assessment areas where to engage in CRA activities in those concludes that the five percent banks have five percent or more of communities where these banks would threshold is appropriate, but it deposits in a geographic area, such as an be familiar enough with the area, based acknowledges that deposit levels MSA. Other commenters suggested that on the banks’ concentration of deposits, fluctuate. Although the agency does not the 50 percent threshold would have to engage in lending, investment, and believe that quarterly fluctuations in retail domestic deposits should obviate excluded areas where banks have only other activities in a safe and sound 90 a bank’s obligations to a community, the a small portion of their total retail manner. In the OCC’s expert agency believes it is appropriate to domestic deposits but a large market judgment, these thresholds are set at allow banks to change their assessment share, such as rural counties and levels that would address the current area delineations if their level of retail smaller cities. To ensure that more large use of technology in the banking domestic deposits falls below five banks have assessment areas in industry and anticipate a future in percent for a longer period of time. For underserved communities, these which banks may increasingly leverage technology to generate deposits outside this reason and others discussed below, commenters suggested lowering the of their primary markets without the final rule will permit banks to thresholds for all banks or for large overburdening banks with numerous change their assessment area banks or using a market share threshold small assessment areas. Furthermore, delineations once a year. of five percent. Alternatively, other the proposed thresholds are sufficiently Outside of assessment area qualifying industry commenters thought that the high to give the OCC confidence that, activities. The proposal included all 50 percent threshold was too low and based on its supervisory experience and qualifying activities conducted by a should be higher to capture only true knowledge of the banking industry, bank in the calculation of the bank’s internet banks. traditional branch-based banks are CRA evaluation measure. The proposal Regarding the five percent threshold, unlikely to be required to designate would not, however, have permitted a commenters had a variety of opinions. additional deposit-based assessment bank to receive a satisfactory or Some industry commenters thought that outstanding bank presumptive CRA the five percent threshold was too low www.fdic.gov/regulations/resources/call/sod- rating unless the bank received a and suggested it be increased, possibly reporting-instructions.pdf. satisfactory or outstanding rating in a to 15 percent, to ensure that banks are 90 Some commenters stated that the deposit-based significant portion of its assessment only required to delineate deposit-based assessment areas would require banks to engage in activities in areas that they may be unfamiliar with areas that accounted for a significant assessment areas where they engage in and that this could create safety and soundness amount of the bank’s retail domestic a meaningful volume of activity. In problems. A core component of the OCC’s mission deposits. contrast, some community group is to ensure that national banks and federal savings Many community group and industry commenters believed that the threshold associations operate in a safe and sound manner. In the OCC’s expert judgment, deposit-based commenters expressed support for was too high and expressed the concern assessment areas will not result in unsafe or banks conducting qualifying activities that few, if any MSAs, would meet the unsound activities. To receive a satisfactory or an outside of their assessment areas. five percent threshold. outstanding CRA rating in a deposit-based However, one commenter questioned assessment area under the final rule, banks are The OCC acknowledges that there are required to engage in qualifying activities that are whether providing CRA credit for limited data on deposits because the commensurate with the volume of deposits they activities outside of assessment areas current reporting framework attributes receive from that assessment area. This level of was contrary to legislative intent. Some 89 activity will not result in an outsized risk to capital. commenters advocated for providing deposits to a branch location, rather Moreover, given both the five and 50 percent thresholds, any deposit-based assessment area more weight or credit for activities 89 The current framework relies on FDIC would include a sizeable portion of a bank’s retail conducted within a bank’s assessment Summary of Deposits (SOD) data, which instruct domestic deposits gathered from depositors located areas than activities outside of banks to assign deposits to each office in a manner outside of the bank’s facility-based assessment areas assessment areas. Others recommended consistent with their existing internal record- with whom the bank has preexisting relationships. keeping practices. FDIC SOD Instructions, June 30, These relationships will give the bank insight into requiring banks to first meet a level of 2019, retrieved Apr. 30, 2020, available at https:// the lending needs of the area. performance or make reasonable efforts
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to meet needs inside assessment areas its assessment area delineations once a bank’s assessment area as set forth in before receiving credit for activities year. the current regulation, a bank could no outside assessment areas. Some Size of assessment area delineations. longer obtain assessment area-level CRA community group commenters proposed The proposal would have required that credit for CD projects in that broader that instead of using deposit-based banks’ assessment areas be at least a area. The OCC appreciated this concern assessment areas, the OCC should whole county or county equivalent, when drafting the proposal and consider allowing deposits received via unlike the current framework which provided a method for determining the internet to be considered as being provides that banks may include only activity location that allows a bank to received from a cyber community rather the portion of a political subdivision, allocate credit for CD activities that than a geography and to allow the such as a county, that it reasonably can serve a larger area to assessment areas obligations based on these cyber be expected to serve. Some commenters within the larger area served by the deposits to be fulfilled by qualifying expressed concern that, under the activity. Specifically, the final rule activities conducted elsewhere. proposal, assessment areas could be no allows banks to allocate credit for CD The OCC recognizes the concerns smaller than a county or county activities: (1) To an assessment area associated with providing credit for equivalent because some counties are within a broader area served by an outside-of-assessment area activities and quite large and represent geographic activity if the bank can document that believes that the proposal appropriately areas that may be unreasonable for some the services or funding it provided was addresses these concerns. The CRA banks to serve. Other commenters asked allocated to a particular project that is evaluation measure takes into account the OCC to clarify that, even with in or that serves the assessment area; or all of a bank’s qualifying activities, county-level assessment areas, banks (2) across all of the areas served by the including activities outside of a bank’s would not be penalized for lending, activity, including any assessment areas assessment areas, while the assessment investing, and conducting services in if that cannot be documented.91 The area CRA evaluation measure ensures only a portion of a county as long as the OCC also recognized that, for deposit- that adequate qualifying activities are banks’ activities did not reflect illegal based assessment areas, banks should conducted within banks’ assessment discrimination or the exclusion of LMI have additional flexibility to receive areas to satisfy local needs. By areas. Some commenters expressed credit for retail and CD activities that accounting for qualifying activities concerns about the burden of collecting serve a larger area than the smallest wherever they are conducted, the CRA data at the census tract level and asked geographic area where the bank gathers that assessment areas be defined at the evaluation measure functions similar to at least five percent of its retail domestic county level. the suggestion for a cyber community. deposits. Accordingly, the final rule will The OCC acknowledges commenters’ Further, while in many instances, provide banks with the option of concerns regarding the minimum size of delineating deposit-based assessment assessment areas capture most of a assessment areas. The proposal set the bank’s community, the bank may collect areas at the state level. For these county or county equivalent level as the reasons, the OCC concludes that it is not deposits from areas outside of minimum size of an assessment area to assessment areas (both facility- and necessary to retain credit for qualifying improve transparency and improve the activities in the broader statewide or deposit-based). Thus, providing credit ability to compare CRA performance for activities outside of assessment areas regional area that contains a bank’s across banks. Further, based upon the assessment area. allows banks to serve their entire OCC’s observations and experience, community, resulting in the Non-branch deposit-taking facility. permitting banks to delineate The proposal defined non-branch fulfillment—not the contravention—of assessment areas below the county level the statutory purpose of the CRA. deposit-taking facility as a banking has produced some anomalous results facility other than a branch owned or Accordingly, the OCC did not adopt any where banks delineate just a few of the commenters’ suggestions in the operated by, or operated exclusively for, relatively small census tracts as their the bank that is authorized to take final rule. branches as an assessment area when Changes to assessment area deposits that is located in any state or their lending activity indicates that they territory of the United States of delineations. The proposal generally can and do serve larger geographic America. Some industry commenters allowed a bank to change its assessment areas. The agency’s intent was not to requested that the OCC clarify what area delineations once during each impose restrictions on the size of constitutes a non-branch deposit-taking evaluation period but specified that assessment areas that would negatively facility. These commenters proposed a banks must not change their assessment impact banks. If a bank delineated its variety of potential definitions for the area delineations within the annual assessment area at the county level but term. Some advocated limiting the term period used to determine an assessment was unable to effectively serve the to cover facilities that are authorized to area CRA evaluation measure. Some entire county the agency would take consumer deposits, rather than all commenters stated that the relative consider the bank’s presence in the deposits generally. Others requested infrequency with which banks may market and its competitive position as update their assessment area part of performance context in eliminating the requirement that the delineations under the proposal had the determining the bank’s assigned rating. facility be automated and unstaffed effect of limiting growth and expansion. After considering the benefits of because that requirement creates The OCC notes that the proposal limiting assessment area delineations to confusion as to whether a piece of accounted for expansion by also the county or county equivalent level equipment, such as a banker’s mobile allowing banks to change their and the ability to account for phone or a computer tablet used by a assessment area delineations pursuant commenters’ concerns through customer to make a deposit online, to an approved application for a merger performance context, the agency is would be construed as creating a non- or consolidation. Nevertheless, to allow adopting the assessment area size branch deposit-taking facility. banks additional flexibility to account limitation as proposed. 91 As part of its ongoing administration of the for other changes in branching strategies Other commenters remarked that by rule, the OCC plans to issue guidance, as needed, or depositor concentrations, the final abandoning the concept of the broader to explain or clarify the method for the allocation rule permits a bank the option to change statewide or regional area that serves a process described in the final rule.
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Following consideration of these defined as deposits intended primarily underrepresents a bank’s capacity to comments, the OCC revised the for personal, household, or family use engage in qualifying activities. Further, definition of non-branch deposit-taking rather than as proposed, which would there are no unique features of listed facility in the final rule to clarify that have included deposits of individuals, deposits that justify their exclusion from these facilities must be available to the partnerships, and corporations. Industry the definition of retail domestic general public. As such, facilities that commenters argued that their suggested deposits.101 Similarly, the OCC are for personal use or are located in an definition would more accurately concludes that permitting a full area that is not available to the general represent a bank’s capacity to engage in exclusion of non-brokered reciprocal public do not meet the definition of qualifying activities for the benefit of deposits, as suggested by commenters, non-branch deposit-taking facility. The individuals, small businesses, and small would not be adequately tailored to definition of non-branch deposit-taking farms.94 Other industry commenters address the concerns raised.102 Instead, facility is otherwise adopted as suggested that, in addition to brokered the final rule requires that any deposit proposed. The agency is also clarifying deposits, other types of deposits should amount that is sent to another that the definition of non-branch be excluded from the rules’ definition of institution through a reciprocal deposit-taking facility as proposed and retail domestic deposits including arrangement must be included in the in the final rule does not include the corporate deposits,95 sweep deposits,96 sending bank’s measure of retail terms automated or unstaffed.92 non-brokered reciprocal deposits,97 domestic deposits and assigned to the Finally, one community group health savings accounts (HSAs),98 listed appropriate assessment area. Reciprocal commenter requested that the OCC deposits,99 and prepaid card funding.100 deposits received from another bank do clarify that the term maintains means The OCC has carefully considered the not need to be included in the that the bank has a permanent or semi- comments received and adopted a few calculation of a bank’s retail domestic permanent branch or non-branch suggested changes. The agency deposits. This treatment addresses deposit-taking facility at the physical determined that using deposits intended commenters’ concerns and avoids any location. The OCC will address primarily for personal, household, or double counting of deposits. questions of this sort, about the family use (RC–E, items 6a, 6b, 7a(1), Consistent with the proposal, the final particular application of the rule to a 7b(1)) would be too narrow and rule defines retail domestic deposits as specific set of factual circumstances, the deposits of individuals, through interpretation and guidance as 94 These commenters noted that their suggested partnerships, and corporations reported part of the agency’s ongoing definition, which is captured on Call Report in the Call Report as RC–E, item 1. In Schedule RC–E, items 6a, 6b, 7a(1), and 7b(1), is administration of the rule, as is done currently not required to be reported for banks with addition, the final rule clarifies that today. Other than the changes described $1 billion or less in assets. As a result, these retail domestic deposits include sent, above, the OCC is adopting the commenters suggest that if their definition is but not received, non-brokered definition of non-branch deposit-taking adopted, the rule should exempt banks with $1 reciprocal deposits, listed deposits, and billion or less in assets from the general facility as proposed. performance standards and the delineation of municipal deposits. The final rule states Retail domestic deposits. The deposit-based assessment areas. that banks may exclude prepaid card proposal would have defined retail 95 Commenters argued that these deposits should funding, HSA deposits, sweep deposits, domestic deposits used for purposes of be excluded because they fluctuate greatly and and brokered deposits from their retail delineating assessment areas and in the unpredictably. domestic deposits. In the OCC’s view, general performance standards as the 96 Commenters urged the exclusion of sweep deposits (that are not considered brokered) from the the modified definition of retail total domestic deposits of individuals, definition of retail domestic deposits because they domestic deposits better reflects the partnerships, and corporations, as are not associated with particular communities. reported on Schedule RC–E, item 1, of Commenters noted that sweep deposits are from 101 Listing services are, in effect, a form of the Call Report, excluding brokered transactions that move cash overnight from a advertising, just as a depositor might find deposits.93 This Call Report item brokerage account at a broker-dealer into an FDIC information on a bank’s own website or a website insured deposit account. that makes a bank’s deposit rates available to the excludes municipal deposits and 97 Commenters suggested the exclusion of non- public without the bank’s authorization. Many deposits from foreign governments or brokered reciprocal deposits because the bank factors distinguish deposits received via a listing entities. receiving these deposits does not know the identity service from brokered deposits including: (1) The Commenters suggested several or location of the underlying beneficial owners and listing service does not place the deposits with a changes to the proposed definition of banks that receive non-brokered reciprocal deposits bank; (2) the listing service is compensated solely ordinarily have no relationship with the individual by subscription fees, which are paid either by the retail domestic deposits. Community or community from which a reciprocal deposit subscriber or by the banks whose rates are being group commenters argued that retail originates. Commenters also noted that community listed; (3) if the fees are paid by the bank, the fee domestic deposits should not exclude banks are ill-equipped to bear such long-distance is not a function of the estimated dollar amount of municipal deposits because they are a compliance burdens and that these deposits may the deposits raised from the listing; and (4) the trigger the creation of additional assessment areas form of community wealth (derived listing service may not steer funds to a specific for minority depository institution and CDFIs in institution. Given these differences from brokered from taxes and fees on residents) and high income geographies that are in less need of deposits, listed deposits that are included in Call reflect the resources of actual and CRA activity. Report Schedule RC–E, line 1 are included in the potential bank customers. 98 Commenters argued that HSA account deposits definition of retail domestic deposits. Industry commenters suggested that should be excluded because banks do not have 102 In a reciprocal deposit network, banks act as control over the geographic distribution of HSA retail domestic deposits should be agents placing deposits at other banks in the deposits. HSAs are owned by account holders, and network. The amounts sent out by a bank exactly banks do not necessarily maintain a direct match the amounts received from the bank. Within 92 In the final rule, the term ATM also does not relationship with these account holders. the network, each bank that directly accepts a include a requirement that the facility be unstaffed. 99 Commenters suggested excluding listed deposit from a depositor can obtain the address of 93 In response to a comment requesting deposits because the associated depositors are not the depositor whose deposit is parceled out to other clarification, the OCC notes that the final rule’s necessarily tied to the community in which the banks. The bank that receives deposits directly from exclusion of brokered deposits from the definition bank maintains a market footprint. These depositors depositors also knows the total amount of those of retail domestic deposits does not reflect a value tend to use listing services to find the best rate deposits (i.e., the portion retained by the bank, and judgment regarding brokered deposits. As stated in available for a given deposit type and, in the case the portion that the other receiving banks have the proposed rule, brokered deposits were excluded of a certificate of deposit, term. received). In contrast, the banks that receive the from the definition of retail domestic deposits 100 Commenters urged the exclusion of prepaid deposits from another bank in a network have no because they are not associated with any individual card funding because prepaid cards do not have an ongoing relationship with the depositor (or the or community. address associated with the purchaser or end user. community where that depositor lives).
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capacity of a bank and the resources it today, examiners evaluate the thresholds; 105 and (3) whether the bank could appropriately use to engage in geographic and borrower distribution of engaged in a specified minimum level of CRA activities. The agency adopts the a bank’s retail lending activity using CD lending and investments. The bank proposed definition of retail domestic retail lending distribution tests. When performance standards would have deposits with the changes described measuring impact today, examiners evaluated banks’ CRA activities herein. measure and assess the dollar value of throughout the country by assessing: (1) Finally, two industry commenters a bank’s CD lending and investment and The rating a bank received in a asked how the FDIC’s brokered deposit the level of retail lending activities. significant portion of its assessment rulemaking could impact the proposed Examiners also consider qualitative areas and in assessment areas definition of retail domestic deposits for factors that are more difficult to quantify representing a significant portion of its CRA purposes. Because the FDIC has such as retail banking services and CD deposits; (2) the impact of a bank’s not yet finalized its rulemaking on services and the responsiveness, qualifying activities; and (3) whether the brokered deposits,103 the OCC innovativeness, and complexity of a bank engaged in a minimum level of CD determines that it is not appropriate to bank’s activities. lending and investments. make changes to the final rule based on The proposal built upon current The proposal also would have potential future changes. The agency practices to provide more objective and retained the qualitative considerations will continue to monitor and consider consistent means of evaluating the that apply under the current framework any impacts the FDIC’s changes may distribution of the number of qualifying for important factors that are difficult to have on the CRA regulations and activities (e.g., units) and the impact quantify, such as responsiveness, provide additional guidance or propose (e.g., dollar value) of the activities. The complexity, and innovativeness. The changes to its rules, as needed. proposal did so in three ways. First, the proposal would have introduced Other issues raised. Commenters proposal would have included almost standards for the consideration of raised questions about specific issues, the same tests used for evaluating retail performance context to enable the OCC such as how geographic units should be loan distribution under the current to recognize and account for specific clustered to receive credit for the framework but would have added facts and circumstances relating to a deposit-based assessment area clarity by describing the tests and bank’s CRA capacity and opportunities thresholds, how brokered deposits including objective thresholds. Second, in a transparent manner. should be calculated, and what the proposal would have assessed the The proposal allowed small banks to measures the agency will put in place to impact of all of a bank’s CRA’s opt into the general performance ensure accurate reporting of deposit- activities, as opposed to focusing on CD standards; those small banks that chose based assessment area delineations. The loans and investments, as is done under not to opt in would be evaluated under OCC plans to issue guidance to address the current framework. Assessing all small bank performance standards these more specific issues relating to the activities would give a more complete consistent with the current 106 application of the rule, as appropriate. picture of the impact or dollar value of regulations. The proposal also Conforming changes. The agency a bank’s CRA activity. Finally, the continued to give all banks the option made conforming changes throughout proposal would have provided a to be evaluated under a strategic plan. the final rule to reflect the changes mechanism for consistent consideration Unlike the current framework, the related to the assessment area of the more qualitative attributes of CRA proposal did not include separate provisions and related definitions but is activity by including a set of regulatory performance standards for intermediate otherwise adopting these provisions as factors for evaluating performance small banks or for wholesale or limited proposed. context. purpose banks. Although many commenters agreed Performance standards in general. C. Objective Method To Measure CRA that the current CRA framework should The proposal set out general Performance be reformed, they disagreed with performance standards to provide a Overview. As described above, the specific elements of the proposal or had more objective method of assessing CRA current CRA regulatory framework alternative suggestions for specific performance. These general provides a framework for examiners to reforms. These differences simply performance standards would have use their judgment in assessing reflect different policy preferences. For performance criteria and assigning evaluated banks’ CRA activities in an assessment area by assessing: (1) The ratings. Under the current framework, 105 The impact component responds to ratings may not always correlate with distribution of the number of qualifying stakeholder comments about the need for more retail loans to LMI individuals, CRA- lending, investment, and services in banks’ the amount or value of CRA activity that assessment areas and in other identified areas of banks conduct and may vary from bank eligible farms, CRA-eligible businesses, and LMI geographies in a community as need. It would have provided a transparent means to bank, even if those banks engaged in of evaluating the impact of a bank’s qualifying measured through the retail lending activities by establishing empirical benchmarks for a similar volume of comparable 104 activities. distribution tests; (2) whether the assessing the dollar value of qualifying activities quantified dollar value of a bank’s that, if set high enough, could incentivize more Without a clear method to quantify CRA activities. These benchmarks would have been their observations, examiners have qualifying activities met specific ratings tied to a bank’s level of retail domestic deposits, developed a variety of more objective consistent with the CRA statute’s purpose of approaches that they use to assess 104 The distribution component would have been encouraging banks to engage in activities in areas the same method the agency uses to assess retail where they draw resources by taking deposits. performance and assign ratings. While lending today. The only change in the proposal was 106 As proposed, a small bank was a bank with these processes vary, they all consider based on ideas shared with the agencies by the assets of $500 million or less in each of the previous two attributes of a bank’s CRA activity— Board. These ideas provide a quantifiable method four calendar quarters. Like the current asset-size the distribution and the impact of CRA for determining if a bank’s portion of major retail thresholds, the $500 million threshold would have lending activities targeted to LMI individuals or in been adjusted annually based on changes in the activity. When measuring distributions LMI areas is sufficient to achieve a rating of Consumer Price Index for Urban Wage Earners and satisfactory or outstanding. Specifically, the Clerical Workers. See CPI For Urban Wage Earners 103 See Unsafe and Unsound Banking Practices: proposal would have established thresholds for the And Clerical Workers, Social Security Brokered Deposits Restrictions, 85 FR 7453 (Feb. demographic and peer comparators based on a Administration, available at https://www.ssa.gov/ 10, 2020). review of historical CRA PEs. OACT/STATS/cpiw.html.
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example, arguing that the CRA measure to ensure that the framework expressed support for keeping both the evaluation measure lacked empirical continues to incentivize important (and current small bank and intermediate support and would cause a decrease in at times smaller dollar value) activities small bank size categories in the final CRA activities, some commenters that are presently accounted for and rule and allowing both categories of recommended taking an approach that incentivized through qualitative banks to be evaluated using the current would retain the subjective approach of evaluations. Further, the agency performance standards.110 Some of the current framework.107 These believes that providing credit in the these commenters disagreed with the commenters do not object to measuring CRA evaluation measure for CD services proposed small bank definition. Some the dollar value of activities per se; in and branch distributions, while industry commenters advocated for fact, they support retaining the current evaluating other retail banking services raising the asset size for small banks.111 framework, which measures the dollar and alternative delivery systems Commenters noted that when the small value of CD activities.108 In essence, the through the application of performance and intermediate small bank thresholds commenters disagree with the agency context, obviates the need for a separate were established in 2005, 70.8 percent that the dollar value of retail lending test for services in the final rule. of banks qualified for the small bank test activities should be measured. With respect to commenters’ and 21.8 percent qualified for the After a careful review of these assertions that the proposed general intermediate small bank test. Applying comments, the OCC has determined that performance standards would decrease those same percentages to the the proposal’s objective approach is the level of CRA spending, the agency distribution of bank asset sizes today, more effective in achieving the purposes notes that one analysis provided to these commenters suggested that of the CRA statute: Incenting more CRA support some of these assertions was eligibility for the small bank test should dollars into LMI communities and other flawed.109 As noted in the preamble to be capped at approximately $500 identified areas of need. Commenters the proposal, the CRA evaluation million, and eligibility for the generally seek to retain as much measure and associated benchmarks intermediate small bank test should be subjectivity in the CRA regulations as were based on the agencies’ analysis of capped at approximately $2.5 billion.112 possible on the premise that assessing the available data about banks’ on- Another community group argued that CRA performance should largely balance-sheet qualifying activities. The small banks should be required rather involve judging difficult qualitative preamble to the NPR explained the data than permitted to opt in to the factors related to a bank’s activities. The used for this analysis, the method of proposal’s general performance OCC disagrees with this policy course. analysis, and the limitations of existing standards.113 While subjectivity may be viewed by data. It also explained that over time the The OCC agrees with commenters some as an effective mechanism for data collection, recordkeeping, and who stated that the current small bank enabling advocacy, a more subjective reporting requirements in the proposal asset size threshold does not reflect the and qualitative framework is limited in would remedy limits in the current data current state of the banking industry its ability to encourage banks to invest collection and allow the agencies to and with the commenters who more money into communities, which is fine-tune the CRA evaluation measure recommended retaining the current ultimately the goal of the CRA. benchmarks, if appropriate. The Moreover, the commenters’ assertions benchmarks were set to provide clarity 110 One community group advocated for applying incorrectly suggest that the CRA and objectivity about the minimum the small bank exemption to mission-focused evaluation measure is the proposal’s level of activities that would result in a banks, including CDFIs, regardless of asset size. only method of evaluating banks’ CRA rating of satisfactory. The OCC believes 111 Specifically, some commenters recommended raising the proposal’s small bank threshold to the performance and, therefore, that its method of estimating the CRA current small bank threshold applicable to misunderstands how the proposal evaluation measure benchmarks for intermediate small banks of $1.305 billion; other operates. As the agencies noted in the corresponding rating categories was commenters suggested other thresholds, both higher preamble to the proposal, like the economically sound and resulted in and lower than $500 million. These commenters generally felt that, given the extent of the regulatory current framework, the proposal reasonable estimations of the changes applicable to banks evaluated under the includes multiple measures that operate benchmarks. In addition to these general performance standards, the $500 million together to assess both qualitative and benchmarks, the proposal included threshold provided an insufficient accommodation quantitative aspects of a bank’s other design features to incentivize for community banks, many of which have more banks to engage in a higher volume and than $500 million in assets. performance. Other facets of the 112 Other commenters suggested keeping the proposed framework—such as variety of activities, and in more areas, intermediate small bank category and raising the multipliers, CD minimums, and the to benefit the communities they serve. intermediate small bank threshold to various levels quantification of LMI branches—operate In addition to general policy including $5 billion or $10 billion. in conjunction with the CRA evaluation differences about the direction of reform 113 The commenter argued that the $500 million and critiques about data, some small bank threshold would result in classifying some banks that are currently intermediate small 107 See Comment letter, NCRC, from J. Van Tol commenters disagreed with specific banks as small banks and, because the small bank and J. Taylor, at 9 (Apr. 8, 2020) (‘‘NCRC supports details. For example, some commenters performance standards do not have a CD test, those reform, but NCRC believes that incremental reforms banks would no longer be required to engage in CD building on the existing regulations would more 109 One commenter’s assertion that the proposal activities. The agency notes that although the effectively and transparently clarify what counts, will cause a loss of lending activity is based on an commenter argued against the proposal’s objective achieve assessment area reform (where activity analysis developed more than a year in advance of approach and for the subjective evaluation methods counts) and establish how those activities count in the issuance of the NPR and is based on a of the current framework, community group determining bank CRA ratings.’’) misperception. Specifically, the analysis was based commenters also argued that that if the agencies 108 Id., at 80 (Apr. 8, 2020) (‘‘Instead of using a on a Federal Reserve Bank of Philadelphia study adopted the proposed objective approach, all banks ratio measure as the presumptive rating, a ratio published in June 2017, which described what should be subject to the approach. This all-or- such as CD financing divided by deposits (or assets could happen in Philadelphia if activities in certain nothing approach to reform would conflict with the or Tier 1 capital) could continue to be used on a areas became ineligible for CRA credit. The community group’s stated opinions about the [CD] test as one measure on that test, not the proposal, however, does not eliminate eligibility for superiority of the current subjective framework and determinative measure.’’). The recommendation of activities in any geographic areas. In contrast, the the need for an incremental approach to reform. retaining the current assessment of CD activities, proposal would require certain banks to create Another commenter recommended that the OCC which measure the dollar value of these activities, additional assessment areas, expanding the apply the general performance standard to small shows commenters do not object to measuring the geographic areas where the agencies would evaluate banks if small banks perform as well as larger dollar value of activities. banks’ CRA performance. banks.
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intermediate small category. As a result, criteria and the assessment area The agency is also clarifying that the the final rule preserves the current provisions, including the requirement to proposal did not eliminate categorization of banks: Small, delineate a deposit-based assessment consideration of services accounted for intermediate small, and large banks, area if a bank receives more than 50 under the current framework’s service while making some adjustments to the percent of its deposits from areas test. Instead, the final rule continues to current thresholds and terminology. The outside of its facility-based assessment give qualitative consideration to final rule includes a $600 million areas.117 In this way, the final rule’s services as commenters suggested threshold for small banks, which is approach will provide additional through the use of performance context, consistent with other government flexibility to smaller institutions and the final rule quantifies those standards for small financial without sacrificing the OCC’s goal of service activities that are readily institutions.114 Although some small achieving transformational CRA reform quantifiable.119 Compared to the current banks previously classified as that provides clarity and encourages service test, the proposed approach, intermediate small banks will no longer banks to conduct more CRA qualifying which is adopted in the final rules, have express CD requirements in the activities. In particular, because larger better achieves the OCC’s goals of final rule, CD lending activities banks engage in a larger share of the increasing objectivity while also giving conducted by any small bank will CRA activities today and hold much of due consideration to the qualitative continue to be evaluated as a part of that the nation’s deposits, allowing the opt- nature of service activities. bank’s CRA evaluation.115 The final rule in for smaller institutions and requiring retains the intermediate small category, larger banks to meet the new General performance standards. renaming it intermediate banks, and requirements will ensure that, on the Under the proposal, a bank evaluated adopts the commenters’ proposed whole, the banking industry is under the general performance ceiling of up to $2.5 billion, based on incentivized to engage in more standards would have received a commenters’ analysis of where the qualifying activities. The OCC also no presumptive assessment area rating intermediate small bank threshold longer uses the term ‘‘bank-level’’ to based on: (1) Its performance on the would have to be set to capture the same refer to bank ratings or components of geographic and borrower lending portion of the industry as it captured in bank performance under the distribution tests for each of its major 2005. In the final rule, banks with performance standards and make other retail lending product lines with at least greater than $2.5 billion in assets are conforming changes throughout the 20 loans in that assessment area; (2) the subject to the general performance final rule. average of its annual assessment area standards and banks with less than $2.5 Some industry commenters CRA evaluation measures; and (3) the billion in assets can opt in to the general recommended that the agencies retain quantified value of its CD loans and performance standards.116 the separate performance standards for investments in that assessment area. A Both small banks and intermediate wholesale and limited purpose banks bank evaluated under the general banks will also be subject to the final that are in the current regulation performance standards would be rule’s clarified qualifying activities because those banks engage in no or assigned a bank rating based on: (1) Its limited retail activity. Some of these rating in a significant portion of its 114 For example, the SBA defines a small bank commenters noted that some elements assessment areas and in assessment one with less than $600 million in assets. of the general performance standards, areas that represent a significant portion 115 The OCC has clarified this by adding retail such as the retail lending distribution of its deposits; (2) the average of its and community development to describe the type of CRA activities that the agency will evaluate. tests and the branch distribution annual CRA evaluation measures; and 116 The OCC also made several other changes to measure, would disadvantage wholesale the definition of small banks and to the opt in and limited purpose banks and as well as specific requirements associated with process in the final rule. Specifically, one recommended retaining the current lending outside of a bank’s assessment areas. The commenter recommended that the agencies use an treatment of these banks. Under the agency considered these comments and, as eight-quarter lookback to determine if a bank is a explained in the preamble to the proposal, have small bank. The OCC recognizes the importance of proposal, these banks would have been considered various alternatives to evaluating CRA certainty regarding the bank size category and evaluated under the general performance for banks other than small banks. The applicable CRA requirements but does not believe performance standards or a strategic agency is making various revisions to the proposed that allowing banks to be above the next highest plan. The OCC agrees with these rule, including adding intermediate banks and size threshold for two years before becoming subject making various changes to the performance to the applicable requirements is appropriate. commenters and believes that the standards as explained below. The agency believes Therefore, the final rule classifies banks as small current performance standards the performance standards set out in the final rule banks or intermediate banks if their assets are applicable to wholesale and limited will provide greater regulatory consistency and within the applicable threshold for four of the purpose banks are well suited to certainty in evaluating banks’ CRA performance. previous five quarters. The final rule does, however, 119 Commenters that urged retention of the provide an intermediate, wholesale, or limited evaluating those banks. Therefore, in the current method of evaluating services argued that purpose bank that ceases to meet the definition of final rule, wholesale or limited purpose services should be considered qualitatively and that an intermediate, wholesale, or limited purpose bank banks have the same definition and are quantifying the value of services would minimize two years to comply with the general performance subject to the same CD test as under the consideration given to services, which they believe standards-related provisions of the final rule. 118 would result in LMI communities being more Commenters supported limiting the number of current regulations. dependent on fringe non-bank services. For times a small bank that opts in to the general example, these commenters oppose quantifying and performance standards can opt out again or even 117 Small and intermediate banks would be adding the value of retail services to the CRA eliminating the one-time opt out option. The agency subject to the same performance standards as they evaluation measure because they argue that such an is retaining the one-time opt out option as proposed are subject to today, including the same retail objective approach would not give enough in order to preserve some flexibility for community lending distribution tests. consideration to LMI deposit accounts, which are banks. Some commenters stated that agencies 118 Other community group and industry usually small. These commenters suggested a should not require that small banks opt in or opt commenters suggested a number of alternative number of methods for continuing to evaluate out of the general performance standard six months performance standards and frameworks including, services qualitatively, but more consistently. For prior to the start of its next evaluation period as for instance, suggestions that the general example, these commenters suggested the use of provided in the proposal. Moreover, the agency performance standards could be optional for all standardized tables to present information such as agrees that the requirement to opt-in or opt-out at banks or could apply initially to only a small service hours, giving qualitative factors 20 percent least six months before the start of its next number of large banks. Industry commenters to 30 percent of the service test score, and providing evaluation cycle is not needed and has removed it suggested that the agencies add tailored standards guidelines for comparing pricing for LMI and non- from the final rule. for certain banks, such as CDFIs and military banks LMI customers within and across banks.
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(3) the quantified value of its total CD commenters stated that a bank could comparators allows the tests to be loans and investments. pass the proposed distribution test with sensitive to market fluctuations and the peer comparator even if it reduces accounts for variance in demand tied to i. Assessing a Bank’s Distribution of the lending to LMI borrowers and local demographic and economic Number of Retail Loans communities and failed the test with the conditions—something many As proposed, a major retail lending demographic comparator. Further, many commenters supported. Further, the product line would have been defined community group and other proposed retail lending distribution as any retail lending product line that commenters contrasted the approach in tests would have only evaluated a composed at least 15 percent of a bank’s the proposal with the current bank’s major retail lending product overall dollar volume of retail loan framework, expressing the view that lines, a definition, which as described originations during the evaluation retail lending distribution currently above, has been further refined in the period. Such product lines would have counts for much more of the overall final rule, and only would have assessed been evaluated under the retail lending rating.120 the distribution of those loans in distribution tests in each assessment The OCC considered several options assessment areas where a bank engaged area in which the bank originated 20 to provide additional flexibility to the in a non-trivial volume of originations. loans in that product line during the application of the retail lending If a bank does not receive a presumptive evaluation period. The retail lending distribution tests, including allowing rating of satisfactory or outstanding distribution tests contained in the banks to still receive a rating of solely because it narrowly failed one proposal are analogous to the retail satisfactory or outstanding, even if they retail lending distribution test, lending distribution tests applied under failed one or more retail lending examiners may consider that factor the current CRA framework, however, distribution tests. The OCC also when applying performance context to the proposal made minimal alterations considered assigning numerical scores determine a final rating.121 to add clear, objective standards that are which could be averaged across In the agency’s view, requiring a bank consistently applied across all banks. assessment areas. The OCC believes that to pass all applicable retail lending Under the proposal, a bank could the retail lending distribution tests are distribution tests with respect to its have passed the geographic distribution a very important method of evaluating most important retail lending product test or the borrower distribution test by a bank’s CRA performance. Further, lines in an assessment area is consistent meeting or exceeding a threshold with respect to assigning a numerical with the purpose of the retail lending associated with the demographic score to each assessment area, the OCC distribution tests. Accordingly, the retail comparator (which would be based on determined that this overly complex lending distribution tests in the final the demographics of the given approach did not provide additional rule are pass/fail as proposed and banks assessment area) or a threshold benefit. must pass all applicable retail lending associated with the peer comparator The OCC believes the proposed distribution tests in a given area to be (which would be based on peers’ approach was sufficiently flexible to eligible to receive a presumptive rating performance in the given assessment account for anomalies in assessment of satisfactory or outstanding.122 area). Assessment under the peer area performance and differences among The agencies received conflicting comparator would be based on the loans banks but rigorous enough to comments on the proposed definition of originated by all banks subject to the incentivize banks to engage in major retail product line. A few general performance standards. originations to LMI borrowers, CRA- community group commenters said that Community groups and industry eligible businesses, CRA-eligible farms, the retail lending distribution tests commenters opposed the proposed and in LMI areas. As noted above, the should be performed on all retail pass/fail nature of the proposal’s retail proposed retail distribution tests are lending distribution tests and supported similar to the retail lending distribution lending product lines with at least 20 establishing gradations for the retail tests applied under the current CRA originations during the evaluation lending distribution test. Industry framework, which many commenters period because a bank could be a major commenters noted that a bank would support. Allowing banks to pass the lender in an area even if the product have failed the retail lending geographic distribution tests using line does not account for 15 percent of distribution test for an assessment area either the demographic or peer its overall retail lending portfolio. Those if it failed the test for a single product commenters stated that this method line. They further noted that this would 120 Additionally, some commenters urged the would avoid excluding lending in rural have disadvantaged banks with fewer agencies to reformulate the retail lending and underserved areas and would be distribution tests. These commenters suggested a consistent with the statutory mandate, assessment areas because it would have variety of options, including evaluating distribution been more difficult for them to achieve only at the bank level rather than at the assessment 121 a satisfactory rating in a significant area level, excluding assessment areas where the The agency notes that, with respect to banks with specialized business models, the final rule will portion of their assessment areas. bank has a small market share, or providing a single borrower and geographic distribution test for each provide banks with the option of receiving a Community group commenters assessment area applicable to all major retail wholesale or limited purpose designation and being recommended assigning ratings and lending product lines. Further, a few commenters evaluated under separate performance standards. numerical scores, which could be used addressed application of the test to deposit based Small and intermediate banks will have the option of being evaluated under the general performance to average scores across assessment assessment areas, urging that these assessment areas should be excluded from the test, subject to a standards, including the retail lending distribution areas, based on performance relative to modified test, or subject to the test at the bank’s tests, or separate standards. Further, banks may also the comparators. Some community option. As discussed in this section, the OCC request approval of a strategic plan. Accordingly, group commenters also opposed believes that requiring banks to pass all applicable the final rule provides ample flexibility to accommodate banks of different sizes and with allowing banks to pass the retail lending retail lending distribution tests in all assessments is appropriate because the tests assess the bank’s different business models. distribution tests by meeting or significant product lines in areas where the bank 122 Although some commenters stated that this exceeding either the demographic or has a significant relationship with the community, framework did not provide an appropriate weight peer comparator thresholds, rather than as demonstrated through its physical presence or to the retail lending distribution tests, in reality, requiring banks to meet or exceed both. concentration of deposits. This is especially true in under the proposal and the final rule, a bank’s light of the final rule’s changes to the assessment performance on its retail lending distribution tests Noting that it was unclear why the loan threshold and the definition of major retail is just as important as its performance on the CRA agencies proposed this approach, these lending product line. evaluation measure or the CD minimums.
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which they argue includes the the application of the rule are better banks with enough clarity and notice. obligation to evaluate banks’ addressed as part of the agency’s Therefore, the final rule provides that a responsiveness. ongoing administration of the CRA major retail lending product line will be In the OCC’s judgment, eliminating framework, including through examiner based on the bank’s originations in the the definition of major retail lending and other interpretive guidance. two years preceding the beginning of its product lines would be problematic. As Additionally, community group, evaluation period and will not change a preliminary matter, the OCC notes that industry, and trade group commenters during the evaluation period. The OCC the definition in the proposal did not suggested changes to the definition of acknowledges that using this definition introduce a new concept; instead, it major retail lending product line. These means that if a bank makes a meaningful articulated in regulation the varying commenters suggested: (1) Raising the shift in its business strategy during its unwritten processes that examiners use threshold for major retail lending evaluation period, the bank’s major under the current framework to product lines to 30 percent; (2) lowering retail lending product lines may not determine which retail lending products the threshold for major retail lending accurately reflect the bank’s business are significant enough to subject to retail product lines; (3) using a market share strategy. In the OCC’s experience, major lending distribution tests. The OCC threshold; (4) using a range of 15 to 30 shifts in business models generally take continues to believe that CRA percent to define major retail lending time to be realized, and, thus, the evaluations should account for banks’ product lines; (5) a number of methods benefits of providing additional business models and strategies by for determining whether a product line certainty by defining major retail applying the retail lending distribution is a major retail lending product line, lending product lines prior to an tests to major retail lending product including relying on a lookback period evaluation period outweigh any lines. Applying the retail lending and only considering a product line if drawbacks to this approach. However, distribution test to product lines where it remains within a specified range for the final rule also allows banks to select a bank only conducts a nominal amount three to five years; and (6) not applying more than two retail lending product of lending could disincentivize a bank the retail lending distribution tests to lines, at their option. from serving the unique needs of its product lines that cross the 15 percent Some industry commenters said the community. However, a retail product threshold during an evaluation 20-loan threshold for applying a retail that represents at least 15 percent of the period.123 lending distribution test in an bank’s retail loan originations is a The agency carefully considered assessment area: (1) Was too low to be significant enough part of the bank’s commenters and have made a number of statistically valid; (2) could affect banks’ business strategy that the retail lending changes in the final rule. The final rule willingness to conduct accommodation distribution tests should apply. As includes minor changes to clarify that, lending; and (3) did not account for the explained elsewhere in this rulemaking, although the 15 percent threshold for length of an evaluation period. These the OCC believes that the other major retail lending product line commenters suggested various components of the general performance remains unchanged, each of the three alternatives including that: (1) The 20- standards will sufficiently motivate consumer lending product lines will be loan threshold be increased to a banks to engage in qualifying activities treated as a separate product line for threshold ranging from 30- to 100-loans in rural and underserved areas. purposes of reaching that threshold. on an annual or evaluation-period basis; Commenters from industry and trade Additionally, the final rule provides (2) that the final rule adopt a threshold groups sought clarification on the that a bank will only be required to have of either 15 percent of originations or 20 meaning and application of various at most two major retail lending product loans, whichever is lower; or (2) the elements of the proposed retail lending lines. If more than two retail lending threshold be higher for smaller loans. distribution tests. Specifically, these product lines compose more than 15 The OCC agrees that the 20-loan commenters sought clarity on the percent of a bank’s retail lending, the threshold is too low for an entire meaning of the phrase bank-level dollar two largest retail lending product lines evaluation period and may lead to banks volume of total retail loan originations will be considered major retail lending being evaluated for loans in areas where in the proposed definition of major product lines. they engage in a very low volume of retail lending product line. To provide In addition, the OCC agrees with lending or where one additional (or one additional clarity, the OCC revised the commenters that basing the definition of fewer) qualifying origination would phrase the bank-level dollar volume of major retail lending product lines on the likely affect the outcome of a retail total retail lending originations to the origination volume during the lending distribution test. To address bank’s dollar volume of total retail loan evaluation period would not provide this, the final rule adopts a 20-loan per originations. A bank’s dollar volume of year threshold. total retail loan originations is the sum 123 Other commenters opposed allowing Industry commenters noted that the of the origination value of all of the consumer lending product lines to be major retail proposed retail lending distribution lending product lines or suggested they should only bank’s qualifying and non-qualifying be major retail lending product lines at the bank’s tests did not evaluate purchases in retail loans. These commenters also option or if consumer lending constituted a addition to originations, thereby asked detailed questions about specific substantial majority of a bank’s lending. These deviating from the retail lending situations such as: Whether the current commenters expressed a number of concerns, for distribution tests performed as a part of example, that evaluating consumer lending could balance or the available amount for lead to expanding risky or harmful lending to LMI the current CRA lending test. According credit cards and lines of credit would individuals and burdensome information to these commenters, many retail loans, constitute a major product line; whether collection. The OCC considered these comments such as CRA-eligible business loans, credit line increases would constitute and concerns, but as discussed in this preamble, the home mortgage loans, and various credit definition of major retail lending product line has originations and how renewals, been modified in the final rule to ensure it only card products, can span multiple extensions, and other modifications captures significant product lines. The agency feels evaluation periods. In order to would be treated under the new it is appropriate to assess whether the bank’s most encourage banks to originate these loans framework; and whether direct and significant retail lending product lines serves LMI on a consistent basis and across a wide individuals and geographies. Any evidence of indirect auto lending would be discriminatory or other illegal credit practices array of assessment areas, these evaluated separately. In the agency’s associated with these products will be considered commenters asserted that it is crucial view, these detailed questions regarding prior to assigning a final rating, as discussed below. that: (1) There be a market where banks
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can sell these loans to other banks with with the agency’s objective of distribution of retail lending to LMI CRA responsibilities; and (2) banks encouraging banks to lend to areas of individuals or CRA-eligible businesses continue to have both purchased loans need and can be accomplished or in LMI areas is significantly lower and originated loans evaluated in all concomitantly with the goal of than expected in a given market based retail lending distribution tests.124 encouraging mortgage lending to LMI on the performance of other market The OCC appreciates these individuals by continuing to limit participants subject to the general commenters’ concerns but notes that, consideration in the CRA evaluation performance standards. Accordingly, unlike the current framework, the measures to mortgages made to LMI the OCC is not making any changes to proposal would have also evaluated a individuals.127 Accordingly, in the final how the peer comparators are defined, bank’s CRA performance based on the rule, a geographic distribution test but the final rule does clarify the on-balance-sheet value of its qualifying applies to the home mortgage loan description of the peer comparators by activities, including purchased product line for all banks, consistent more clearly describing the components qualifying retail loans. The purpose of with the current framework. of what is being compared. the retail lending distribution tests is to Industry commenters opposed the Additionally, the final rule corrects the evaluate whether a bank’s retail loan proposed peer comparator for several inadvertent error in the proposal by originations are serving the needs of reasons. They cautioned that it was both revising the consumer loan LMI individuals and communities when underinclusive and overinclusive demographic comparator to low- and compared to the bank’s total retail loan because it did not include banks not moderate-income households. originations. Because purchases of subject to the general performance Under the proposal, the agencies qualifying retail loans are sufficiently standards (e.g., Board-regulated banks), would have collected and provided accounted for in the CRA evaluation but included all banks subject to the public data that would have allowed measure, the OCC is not making any general performance standards without banks to apply the borrower distribution changes to the final rule in response to accounting for size, capacity or tests for home mortgage and consumer these concerns. specialization. Instead, commenters loans, small loans to businesses, and The agencies did not apply a suggested that the agencies consider small loans to farms, and the geographic geographic lending distribution test to using multiple peer comparators based distribution test for small loans to farms the home mortgage loan product line or on bank asset size. Industry commenters and small loans to businesses. However, the consumer loan product line in the also stated that peer consumer lending the agencies recognized that, even if the proposal. The preamble to the proposal data was limited, and that peer data proposal were implemented, banks explained that the geographic generally could be stale by the time of would have needed to rely on private distribution tests for home mortgage and its release. Further, one industry datasets for the small loans to consumer loans was not included commenter asked for clarification businesses and small loans to farms because the agencies did not want to regarding the demographic comparator borrower distribution tests. The give positive consideration to loans that for consumer loans, noting that the agencies invited comment on options could have been provided to middle- or FFIEC demographic database does not for tailoring this requirement, which high-income borrowers in LMI areas. contain such an income may have required banks to purchase Industry and community group demographic.128 datasets, by, for example, allowing commenters recommended applying a In the agency’s view, comparing all banks below a certain asset size to use geographic distribution test to the home banks subject to the general publicly available data as a proxy. mortgage loan product line under the performance standards is appropriate Industry commenters asserted that the general performance standards. These and the data would be sufficient for its requirement that banks perform their commenters emphasized the importance purpose: To determine whether a bank’s own retail lending distribution tests of encouraging banks to engage in would increase compliance costs, mortgage lending in LMI areas. They Institute, Mixed-Income Living: Anticipated and particularly for community banks, by Realized Benefits for Low-Income Households, shifting distribution calculations from argued that such lending, even if it Cityscape: A Journal of Policy Development and results in mixed-income neighborhoods, Research, Jul. 2013), at 15; Diane K. Levy, Zach examiners to banks. They noted that this has a stabilizing effect on LMI areas. McDade, Kassie Dumlao, Urban Institute, Effects would likely necessitate additional These commenters suggested that from Living in Mixed-Income Communities for Low- employee training and hiring. Several Income Families: A Review of the Literature (Nov. commenters recommended that the evaluating all of a bank’s home mortgage 2010). This research found that mixed-income lending in LMI areas would help LMI communities provide benefits to low-income agencies prohibit the use of private people and areas.125 families. However, it also noted that not all datasets and instead provide datasets to Upon careful consideration of the expected benefits have materialized. banks. Commenters suggested that, even comments received, the OCC agrees that 127 Although the OCC remains concerned about if the agencies provided a dataset that avoiding displacement, the agency believes that banks could use at their option, large encouraging mortgage and consumer looking at lending in LMI census tracts for the retail lending in LMI communities can help lending distribution tests, while only allowing banks would be able to shop around for the economic development of these home mortgages to LMI individuals to count in a the dataset that provided the best communities.126 This goal is consistent bank’s CRA evaluation measure, will mitigate any available comparators. Some displacement concerns while encouraging banks to commenters recommended exemptions lend in LMI areas that may need additional access 124 In addition, at least two commenters suggested to credit. from the retail lending distribution tests that MBS be considered within the retail lending 128 Several other commenters argued that using when the agencies’ data is insufficient. distribution tests rather than as a CD activity. peer comparators sets up a race to the bottom. The The OCC understands and agrees with 125 However, a few commenters that expressed OCC believes that the final rule’s evaluation the concerns about the use of concern about displacement of LMI individuals in framework, including the specific CRA evaluation LMI census tracts suggested other alternatives, measure benchmarks that will be established, will proprietary data and is revising the final including limiting consideration of home mortgage encourage banks to engage in more qualifying rule to require examiners, not banks, to lending in LMI geographies to middle income activities. Additionally, the agency will be able to calculate the retail lending distribution households, high-cost geographies, or based on review the performance standards, including the tests, consistent with the current property values. thresholds associated with the retail lending 126 Many studies have shown the importance of distribution test peer comparators on an ongoing framework. Banks will not be required encouraging mixed-income housing. See Diane K. basis to ensure the framework is achieving the to purchase any data. The OCC believes Levy, Zach McDade, Kassie Bertumen, Urban agency’s goals. that it has access to datasets, including
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the datasets used today, that are ratings categories. Under the current to achieve any particular rating sufficient to establish the demographic framework, examiners measure the category. comparators for the small loans to impact of banks’ CRA activities in a In the proposal, a bank would have business and small loans to farms retail number of ways and examiners make calculated its bank CRA evaluation lending distribution tests. their own varying judgments about how measure and assessment area CRA ii. Assessing the Impact of a Bank’s much activity is enough to receive a evaluation measure annually by taking Qualifying Activities rating of satisfactory or outstanding. In the sum of: (1) A bank’s qualifying the proposal, the impact of a bank’s To provide clarity and consistency to activities value divided by the average of the CRA evaluation process, the qualifying activities would have been its quarterly retail domestic deposits; proposal included a uniform method of assessed through the calculation of its and (2) a calculation that accounts for a measuring the impact of a bank’s CRA evaluation measure and banks bank’s branch distribution. The CRA qualifying activities and specified clear would have known the benchmarks for evaluation measure would have been benchmarks required to achieve specific the level of qualifying activity necessary calculated as follows:
The agencies received many not aimed at a methodology to assess regarding any ratio-based approach for comments opposing the proposal’s one past performance. Instead, the testimony measuring bank performance. CRA was ratio approach for measuring CRA criticized a proposed provision that passed despite this opposition and, performance. These comments would have required banks to predict rather than detailing in the statute how misapprehend what was proposed; the what future ‘‘proportion of consumer performance would be measured, proposal did not contain one ratio. The deposits . . . will be reinvested by a Congress has authorized the agencies to proposal’s performance standards that lender in [an] area.’’ 130 The witness determine through regulation the the agencies would have used to assess made no similar criticism of using a appropriate approach for evaluating and banks’ CRA performance would involve ratio-based framework for assessing past examining banks’ performance.133 tens, if not hundreds, of measures for performance. Rather, the same witness Consistent with that authority, the most banks. Furthermore, the proposal stated ‘‘the past record of the ratio of OCC’s approach to measuring CRA would have retained the concept of aggregate loans made to deposits performance advances the purpose of performance context, which would have received for a submarket area can be the statute.134 provided a mechanism for qualitatively useful. . . . Presumably, the regulatory Advocating for a more subjective evaluating a bank’s capacity and agencies would obtain such data’’ in approach to CRA, a community group opportunity to engage in qualifying order to evaluate whether a bank is commenter expressed concern that the activities and its responsiveness to meeting the credit needs of areas it is CRA evaluation measure may not be community needs. While some elements already chartered to do business.131 consistent with the CRA statutory of the general performance standards These commenters also observed that requirement that a bank must help to would have looked at a bank’s witnesses and senators participating in meet the credit needs of its entire qualifying activities compared to its the 1977 hearings claimed that community in a safe and sound manner. deposits, a bank’s ratings under the encouraging banks to meet the credit To the contrary, the OCC expects that all proposal would also have been based on needs of the areas from which they bank activities are conducted in a safe the bank’s performance on the retail receive deposits was an attempt at credit and sound manner. The OCC will use lending distribution tests and allocation that would lead to market performance context as necessary to 132 performance context information. inefficiency. The OCC disagrees with address factors such as financial Therefore, the term one ratio, which was the commenters’ interpretation of these condition, loan product demand, or used in many comments, is simply a statements. These statements in the relevant demographic conditions that misapprehension or a hearings more broadly opposed any may affect a bank’s ability to engage in mischaracterization of the OCC’s governmental pressure through the CRA 133 approach. to reinvest deposits in depositors’ 12 U.S.C. 2905, 2906. 134 See, e.g., 123 Cong. Rec. 17630 (1977) One community group commenter communities and are not conclusive for understanding congressional intent (statement of Sen. Proxmire) (describing CRA’s stated that using a ratio-based purpose as follows: ‘‘I am talking about the fact that framework to assess past performance banks . . . will take their deposits from a 130 by measuring loans-to-deposits in a Hearings Before the S. Comm. on Banking, community and instead of reinvesting them in that Housing, and Urban Affairs, U.S. Senate 95–1 (Mar. community . . . they will actually or figuratively primary service area is contrary to the 23, 24, and 25, 1977) at 151 (testimony of Henry draw a red line on a map around the areas of their CRA statute because this type of model Schechter, Director of Department of Urban Affairs, city, sometimes in the inner city, sometimes in the was proposed in the first version of the AFL–CIO) (‘‘[t]here is almost no way of knowing older neighborhoods, sometimes ethnic and 1977 bill, was criticized in how large a demand for various types of credit will sometimes black, but often encompassing a great emanate from residents and business people of the area of their neighborhood. The agency also knows congressional hearings about the bill, local community, and how much of such a volume that small town banks sometimes ship their funds and ultimately was not enacted.129 The of credit could be granted consistent with the safe to the major money markets in search of higher OCC disagrees. The hearing witness and sound operation of such institutions’’). interest rates, to the detriment of local housing, to 131 testimony cited by the commenters was Id. the detriment of small business, and farm credit 132 See, e.g., id. at 153; 315–16; 324; 335; 368; needs . . . Therefore, the committee included 428. Sen. William Proxmire, Chairman, S. Comm. [CRA] to reaffirm that banks and thrift institutions 129 This commenter also stated that a single loan- on Banking, Housing, and Urban Affairs refuted are indeed chartered to serve the convenience and to-deposit ratio was rejected during the 1995 these concerns. Id. at 2 (‘‘To criticize reinvestment needs of their communities, and as the bill makes regulatory revisions in favor of multiple metrics. incentives as a form of credit allocation is clear, convenience and needs does not just mean Like the current regulations, the proposal contained disingenuous .... I think that debate in the drive-in teller windows and Christmas Club multiple metrics. context of the reinvestment bill as a red herring.’’). accounts. It means loans.’’).
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CRA activities in a safe and sound development projects, which will boost Community group and industry manner. Once the empirical benchmarks their qualifying activities values more commenters also cautioned that the are set, as discussed below, the OCC than smaller-dollar loans and balance sheet-based approach would not also anticipates adjusting the empirical investments. The OCC does not believe provide enough credit for smaller-dollar benchmarks periodically based on this concern will be realized because the activities, such as LMI mortgage lending available data. denominator of the CRA evaluation and CRA-eligible business lending, Some community group commenters measure in the proposal would have thereby disincentivizing them. Other voiced concerns that the proposed CRA depended on a bank’s market presence, commenters were concerned that the evaluation measure would have been as measured by its retail domestic CRA evaluation measure would de- more complex and rigid than the current deposits. Small banks have fewer emphasize mortgage lending or other system and the measures and deposits and thus would have had specific activities like bank investments benchmarks would not be tailored to smaller CRA obligations than large in CDFIs. Community groups local credit needs. Some industry banks. Accordingly, even though large commented that disincentivizing lower commenters expressed similar concerns banks may be better able to engage in dollar loans would particularly that the CRA evaluation measure and large projects, that would not disadvantage rural areas, underserved associated benchmarks would not have disadvantage smaller banks. The OCC areas, and persistent poverty counties, taken into consideration the diversity of believes that the CRA evaluation which receive a higher proportion of bank business models, community measure adequately accounts for bank small-dollar mortgage loans. At least needs and opportunities, and local size by using retail domestic deposits in one industry commenter disagreed with economic conditions. They the denominator and did not make any these commenters, stating that banks recommended that the final rule changes in response to this concern in would need to engage in smaller-dollar implement more tailored measures or the final rule. activities because there were too few benchmarks. The first component of the CRA large dollar activities available. Several Although the OCC considered evaluation measure would have community group commenters stated explicitly tailoring the CRA evaluation measured the value of qualifying that using the CRA evaluation measure measure to account for local community activities as a proportion of total retail and CD minimums to determine a conditions, it did not believe the domestic deposits. The proposal would bank’s presumptive rating could allow a incremental benefits of such an have valued most qualifying loans and bank to determine it has met its approach were worth the added investments based on their average on- presumptive rating goal before the end complexity. Further, the agency believes balance sheet value during the of its evaluation period. Then a bank that the proposed CRA evaluation evaluation period. Community groups would be able to cease or slow CD measure was already sufficiently and some industry commenters opposed activities for the remainder of its flexible and adequately tailored to local the on-balance sheet approach of the evaluation period which could disrupt needs. The proposed CRA evaluation first component of the CRA evaluation local CD efforts. Other commenters measure and benchmarks provided an measure. Community groups described thought banks would not be objective standard for assessing a bank’s the CRA evaluation measure as a incentivized to partner with community reinvestment in the communities from simplistic, narrow measure that would: organizations after they met the which it receives deposits and would (1) Reduce reinvestment; (2) encourage minimums because responsiveness will have scaled the bank’s obligation to large, long-term, and easy deals that no longer be evaluated. banks finance in the ordinary course of reflect its presence in the market, as To address these concerns, business; 136 (3) be inconsistent with the measured by the dollar volume of retail commenters offered a number of statutory written evaluation domestic deposits it receives from an potential solutions. Community groups requirement; and (4) solely determine a area. Furthermore, prior to assigning recommended the inclusion of a single bank’s rating at the expense of other assessment area and bank ratings, the transaction limit and evaluating the factors, including qualitative ones.137 OCC would have assessed performance number of retail loan originations and Community group and government context factors, which would have purchases, as is done under the current commenters suggested that the measure accounted for the specific facts and framework, rather than their on-balance was too simplistic because it aggregated circumstances that affect a bank’s CRA sheet dollar value, to encourage all types of activities and failed to capacity and opportunities. Because the originations and purchases of loans. distinguish between types of activities, proposed CRA evaluation measure, and Some industry and community group like CD activities and retail activities, the entire general performance commenters recommended that the and product categories that may be more standards framework, is sufficiently proposal focus on the number of loans or less useful for LMI borrowers.138 flexible to account for the variance in more broadly, not just with respect to bank business models, community 136 Alternatively, one commenter suggested that retail lending. Other industry needs and opportunities, and local the approach could overvalue LMI home mortgage commenters recommended giving banks economic conditions, the OCC did not lending and recommended an alternative that a percentage goal for the number of each adopt any changes to the CRA would include the lesser of originations or the type of retail loan category that should evaluation or its calculation to address amount on the balance sheet. 137 be qualifying loans. One commenter 135 Some commenters stated the framework these concerns. would effectively short-change CD activities in even recommended adding a floor for Some industry commenters stated that comparison to other CRA activities. Some different types of activities. Community the CRA evaluation measure commenters also suggested that qualitative criteria groups also recommended retention of disproportionately advantages large account for 20 percent to 30 percent of a component the separate lending, investment, and banks because these banks have greater test score. 138 Some commenters also argued that aggregating service tests from the current framework opportunity to participate in large different types of activities would reduce transparency about how the bank is serving its with respect to different types of qualifying 135 Because the agency acknowledges the community’s needs. The OCC notes that although activities by observing its performance on the retail limitations of the existing data, the final rule does the final rule aggregates activities for the purposes lending distribution tests and CD minimums, its not include specific CRA evaluation measure of the CRA evaluation measure, stakeholders will data reporting, and through the information benchmarks associated with each rating category. still have information about a bank’s performance included in its CRA PE.
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to provide a more holistic approach.139 a bank’s qualifying activities. The OCC necessary. Moreover, a single Other commenters suggested measuring disagrees with commenters who suggest transaction limit could discourage large dollar loans and investments that the proposed CRA evaluation activities like affordable housing and separately from other activities. measure would have reduced infrastructure projects that have a large Prior to the issuance of the proposal, reinvestment because the agencies dollar value, but help meet the needs of the agencies heard many complaints would have had the ability to set the LMI communities and other from stakeholders that the current CRA evaluation measure benchmark at underserved communities.141 Moreover, framework’s focus on new activity levels high enough to increase banks’ the other elements of the final rule inappropriately incentivized short-term reinvestment into the communities from would address commenters’ concerns, over long-term activities and which they receive deposits. including the retail lending distribution investments.140 Commenters indicated Additionally, by comparing the tests, some modifications that have been this was problematic because many quantified dollar value of a bank’s CRA made to the quantification of certain businesses, individuals, and CD activity to a bank’s retail lending types of retail loan originations in the programs and projects need stable, long- deposits the CRA evaluation measure rule,142 and the addition of some term funding. As discussed in the would have helped the agencies fulfill multipliers for retail lending preamble to the proposal, evaluating the the statutory purpose of CRA, which is activities.143 For these reasons, the OCC outstanding dollar value of on-balance to encourage banks to reinvest deposits is not adding a single transaction limit sheet CRA activities would have solved into the communities from which they in the final rule. this issue by assessing a bank’s ongoing receive them, without requiring a commitment to its communities and specific business model. Furthermore, Some industry commenters stated that encouraging stable sources of funding. by providing multipliers for activities assets or Tier 1 capital should be the The CRA evaluation measure’s focus on conducted in CRA deserts and using denominator for the CRA evaluation the value of on-balance sheet loans and performance context factors to examine measure instead of retail domestic investments would also have the responsiveness of activities, the final deposits because assets better reflect a disincentivized churning of activities rule will encourage smaller dollar bank’s capacity to engage in qualifying that provide banks CRA credit without activities and activities in CRA deserts. activities. These commenters noted that providing new value or long-term The agencies recognized that the CRA using deposits would result in larger stability to the communities that banks evaluation measure alone is not obligations for community banks serve. Further, the proposal would adequate to assess a bank’s CRA because of their business models than if continue to apply performance context performance. For this reason, the the CRA evaluation measure used factors that would evaluate a bank’s proposal included other quantitative assets. These commenters also suggested responsiveness to communities’ needs and qualitative assessments of a bank’s that using Tier 1 capital or assets would throughout its evaluation period. CRA performance. For example, at the be easier for banks to implement than The CRA evaluation measure will assessment area level, the proposal also requiring banks to geocode deposits. encourage banks to engage in more would have included the retail lending The OCC believes that the introduction qualifying activities by providing them distribution tests, which would have of the intermediate bank category and the flexibility to engage in qualifying evaluated the distribution of a bank’s intermediate bank performance activities that best fit and complement number of originations and a measure of standards in the final rule will address their business models and the needs of a bank’s CD activities as compared with most of these commenters’ concerns. their communities. By aggregating its retail domestic deposits. A bank’s Furthermore, the OCC believes that for different types of qualifying activities, presumptive rating would have been most banks, retail domestic deposits the proposal does not dictate a bank’s based on its rating in a significant adequately reflect a bank’s capacity to business model or strategy, but rather portion of its assessment areas, its CRA engage in qualifying activities. To the evaluates the impact of the full scope of evaluation measure, and a measure of its extent a bank is subject to unique CD activities. Performance context constraints, examiners will consider 139 A number of community group commenters factors would have been used to assess those constraints when applying specifically opposed elimination of the investment many qualitative factors for the bank, performance context factors or a bank test. They expressed concerns that doing so would including in each assessment area. A may submit a strategic plan. decrease investment in affordable housing projects, bank’s assigned rating would have been make it more difficult for CDFIs to raise equity, and decrease the availability of grants. The OCC based on its presumptive rating. The 141 Infrastructure projects are critical for believes that the retention of a separate investment assigned rating and the explanation for underserved communities. See Kolby test is not necessary to encourage these types of the rating, along with the facts and data Kickingwoman, Infrastructure in Indian Country activities. As discussed above, the final rule supporting the rating and conclusions needs to be ‘fair and equitable,’ July 12, 2019, provides a number of incentives for banks to engage available at https://indiancountrytoday.com/news/ in CD investments and activities with CDFIs, would have been included in a bank’s infrastructure-in-indian-country-needs-to-be-fair- including by providing a multiplier for those PE. This robust framework, with its and-equitable-6gL-b6cvqUuWkVx91Z64fg activities. many methods of evaluation, makes the (discussing the need to improve infrastructure in 140 Many ANPR commenters mentioned this retention of the separate tests used Indian country); Donna Kimura, Developers Reveal the Costs of Doing Business, July 1, 2017, available problem. See National Association of Affordable today superfluous. Housing Lenders at 12, https:// at https://www.housingfinance.com/news/ _ www.regulations.gov/document?D=OCC-2018-0008- The OCC considered including a developers-reveal-the-costs-of-doingbusiness o 0981 (‘‘Currently, only investments (but not loans) single transaction limit in the proposal, (discussing the cost associated with building made in prior exam periods continue to generate but as stated in the preamble to the affordable housing). CRA credit. This system perversely gives banks proposal, because the proposal would 142 The OCC recognizes the importance of more credit for making and then renewing a short- encouraging retail loan originations and, in term loan than for making a long-term loan in the have assessed the performance of banks response to commenters who suggested that the first place. We also observe that examiners do not that are subject to the general proposed CRA evaluation measure does not consistently recognize the value of investments performance standards by considering adequately value originations that are sold within made in prior exam periods.’’); American Bankers the distribution of retail lending one year, the final rule will provide additional Association at 25, https://www.regulations.gov/ credit for those loans. document?D=OCC-2018-0008-0583; Opportunity activities and the dollar value of 143 The OCC has added multipliers for retail Finance Network at 5, https://www.regulations.gov/ qualifying activities, the OCC does not lending activities in CRA deserts and generated document?D=OCC-2018-0008-0525. believe that a single transaction limit is from LMI branches.
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In the second component of the CRA one sixth, or 16.7 percent, of the six distribution as a part of its CRA evaluation measure, the number of the percent CRA evaluation measure that evaluation measure.147 bank’s branches located in LMI census would have been required to satisfy the Industry commenters noted that the tracts, Indian country, underserved CRA evaluation measure prong of the CRA evaluation measure does not areas, and distressed areas during the general performance standards for a account for branches that serve LMI same annual period used to calculate satisfactory rating. However, a bank neighborhoods, Indian country, the qualifying activities value would would have only received the one underserved areas, and distressed areas have been divided by the bank’s total percentage point of CRA evaluation but are not in those areas, such as those number of branches in that annual measure credit if 100 percent of its in an adjacent or nearby census tract. period and multiplied by .01. This branches were in an LMI, distressed, The OCC agrees that branches that are calculation would have quantified a underserved, or Indian Country. The in adjacent or nearby census tracts can bank’s distribution of branches and OCC used branch information from the still serve those areas. The final rule increased a bank’s CRA evaluation FDIC’s Summary of Deposit (SOD) 145 includes in the numerator of the branch measure by up to one percentage point data and demographic information from distribution measure both: (1) The based on the proportion of a bank’s various sources to identify the bank branches in those specified areas. branches in distressed, underserved, number of branches in LMI census Community group commenters and LMI census tracts and in Indian tracts, Indian country and other tribal opposed the CRA evaluation measure’s country and other tribal and native and native lands census tracts, method for quantifying branches on the lands census tracts.146 The OCC used underserved areas, and distressed areas; grounds that it would reduce that information to analyze the and (2) the branches that serve those consideration of branches.144 They proportion of branches in distressed, areas, divided by the total number of stated that branches were likely to underserved, LMI, and Indian country branches in that assessment area. account for a small portion of the CRA and other tribal and native lands census However, banks will need to evaluation measure when compared tracts by bank and calculate the median demonstrate that the branch serves a with the current 25 percent weighting proportion of branches in distressed, sizable portion of individuals from for the service test, which they underserved, LMI and Indian country those communities for the branch to be recommended be retained. They also and other tribal and native lands for included in the numerator of the branch noted research suggesting that the branches with assets of $2.5 billion or distribution measure. The agency does current service test has prevented more. The analysis showed that, for not expect to give credit to branches not branch closures in LMI communities banks subject to the general located in LMI tracts and that serve only and warned that the CRA evaluation performance standards, the median a small or nominal amount of the nearby measure would likely lead to branch percentage of a bank’s branches in those LMI community. loss by reducing the weight given to areas in 2019 was approximately 28 Three industry commenters requested branches. A number of industry percent. To ensure that banks are still commenters also recommended that the clarification as to how the CRA receiving appropriate credit for their evaluation measure would be calculated agencies increase the credit provided for branch distribution, the final rule the measure of a bank’s distribution of for banks following a merger or provides that a bank’s branch acquisition, noting that it is common for branches. distribution will be multiplied by .02, The agencies sought to give a bank’s merging institutions to operate different meaning that a bank with a branch branch distribution appropriate weight. systems for a period of time after the distribution close to the median will Under the current CRA regulations, for transaction closes. The OCC intends to receive .56 percent of credit as part of a bank evaluated under the service test, evaluate the surviving bank under the its CRA evaluation measure. However, a bank’s branch distribution generally terms of the final rule when a merger banks will not be able to receive more accounts for 50 percent of the service occurs during an evaluation cycle, than one percent credit for their branch test, which is 25 percent of a bank’s similar to how evaluations are CRA rating. This means that branch conducted in these circumstances under distributions today technically account 145 See Deposit Market Share Reports—Summary the current framework. For banks of Deposits, FDIC, available at https:// for approximately 12.5 percent of a www7.fdic.gov/sod/. Only branch types 11, 12, and subject to the general performance bank’s CRA rating. However, because 23 were included in this analysis. standards, investments that remain branch distributions are not quantified 146 The OCC used the FDIC SOD data to obtain outstanding after the merger will and there are no objective targets, it is the address of branches with branch codes 11 and included in the calculation of the CRA 12. The agency identified distressed middle-income not clear how much credit a bank will census tracts using the definitions in the proposal, evaluation measure, and the surviving receive for a given branch distribution. along with FFIEC census data files, BLS County bank will be subject to the data In the proposal, a bank could have Unemployment data, American Community Survey collection, recordkeeping, and reporting received up to one percent credit for its data, and the Census 2000 and Census 2010. obligations of the rule. Consistent with the proposal and the final rule, the branch distribution, which would be OCC identified underserved middle-income census tracts relying on the most recently available data 147 The OCC considered alternative ways to 144 Additionally, some community group and maintained by the Economic Research Service of provide credit for branches, including the myriad other commenters expressed concern that the the U.S. Department of Agriculture as well as tract of ways suggested by commenters. However, the proposal would not incentivize branches in LMI centroid coordinates from a mapping software OCC believes that the incremental benefits that communities. Other commenters noted that the application to identify census tracts where there these approaches would provide in some unique proposal would not consider branch openings and were no branches in the census tract and no circumstances do not warrant the additional closings and would treat a bank with one branch branches within a specified distance to the tract complication. By giving banks credit for their in an LMI area more favorably than a bank with a centroid. LMI census tracts were identified based branch distribution directly through the CRA large number of branches (but not 100 percent) in on FFIEC census data files. Indian country was evaluation measure, the final rule provides a simple LMI areas. Commenters offered a number of identified by using the most Census Bureau’s and clear mechanism of providing banks a suggestions for giving additional credit to branches, American Indian Alaska Native and Native predictable amount of credit for their branch such as deducting CRA value for branch closures Hawaiian (AIANNH) TIGER geography file. The distribution. The final rule also gives examiners the in underserved neighborhoods, increasing the OCC included Indian other tribal and native lands flexibility to consider other elements of a bank’s multiplier to .025, or more or giving credit for census tracts in this calculation based on the delivery systems and branching strategy while maintaining unprofitable branches. changes made to the final rule. applying performance context factors.
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iii. Ensuring Banks Are Responsive to conducted data analysis to determine the quantified dollar value of CD loans Local Needs how to establish a numerical threshold and CD investments, divided by the As proposed, to receive a bank to define significant portion in the final average of the bank’s retail domestic presumptive rating of satisfactory or rule. Some commenters recommended a deposits would have needed to meet or outstanding, a bank had to receive at threshold of 80 percent, but some were exceed two percent. The CD minimums least a satisfactory or outstanding, concerned that an 80 percent threshold would have applied for both the bank respectively, in those assessment areas: would effectively apply a higher presumptive rating and the assessment (1) That represent a significant portion standard to small banks, which typically area presumptive rating. of its assessment areas; and (2) where it have fewer assessment areas. The OCC Some industry commenters said that receives a significant portion of its retail recognizes that, for banks with fewer the CD minimums would have been too domestic deposits. The proposal did not assessment areas, defining significant rigid because they did not account for define significant portion but asked portion as 80 percent would effectively local community conditions. Some of require these banks to achieve commenters for suggestions for how this these commenters recommended that satisfactory or outstanding in 100 phrase should be defined. the CD minimums, on their own, Many negative comments on this percent of their assessment areas, account for community needs and local provision were based on the imposing a higher requirement on them. conditions and that there was no need Using the FDIC’s SOD data as a proxy for a separate application of misapprehension that the agencies had 148 defined significant portion as 50 for the number of assessment areas, performance context factors.149 A few percent. Some community group the OCC was able to estimate the other commenters criticized the pass or commenters expressed concern that number of assessment areas for banks in fail nature of the CD minimums and different asset size categories and the requiring a bank to achieve a suggested various alternatives. A few distribution of those assessment area satisfactory or outstanding in a commenters suggested that the counts. For banks with assets between significant portion of its assessment minimum apply only at the bank level, $2.5 billion and $10 billion, the median areas to receive those bank ratings could or that a lower minimum apply at the estimated number of assessment areas is result in the bank disregarding some assessment area level than at the bank five. After considering this analysis, 150 assessment areas, which could level. along with commenters’ suggestions and exacerbate the problem of CRA deserts, The OCC believes that accounting for the OCC’s supervisory judgment, the and would be inconsistent with the local community attributes is important. final rule does not use the term statutory mandate to evaluate banks’ The proposed CD minimums would significant portion. Instead, the final efforts to serve their entire communities. have been only one of three rule provides that for a bank with more performance standards and were meant These commenters advocated for a CRA than five assessment areas to receive a rating system that takes into to reflect the minimum amount of CD presumptive rating of satisfactory or activity that the agencies expect all consideration performance in all outstanding, the bank must receive at assessment areas and has gradations of banks to engage in. The CD minimums least the corresponding rating in: (1) 80 would have automatically accounted for performance (not just pass/fail percent of its assessment areas, and (2) thresholds). One commenter suggested a local conditions because they would in assessment areas from which the have been based on the level of retail 100-point scoring system or an bank receives at least 80 percent of the averaging of assessment area scores in domestic deposits a bank receives from retail domestic deposits it receives from a given area. The agencies would have all aspects of the rating system, not just its assessment areas. For a bank with the CRA evaluation measure. However, further assessed local community five or fewer assessment areas, the final conditions and needs through the at least one of these commenters stated rule provides additional flexibility and that if the term significant portion had application of performance context states that, to receive a presumptive factors. The performance context factors to be defined, they supported an 80 rating of satisfactory or outstanding, a percent threshold over a 50 percent bank must receive at least the 149 threshold. Other commenters, A few industry and community group corresponding rating in: (1) 50 percent commenters criticized the proposed CD minimum, representing community groups and of its assessment areas, and (2) in the stating that it would favor larger transactions over industry, suggested thresholds that assessment areas from which it receives small ones. A few community group and other commenters suggested further refinements such as ranged from 40 percent to 100 percent. at least 80 percent of its retail domestic Other industry commenters said that the applying minimums to both lending and investment deposits received from its assessment activity or weighting favored activities more pass-fail thresholds in the proposed areas. heavily. As discussed in this preamble, the agency rating system did not account for believes that other elements of this framework, nuances inherent in banks’ CRA activity iv. Ensuring Banks Engage in a including performance context factors and in communities with varying needs. Minimum Level of CD Activities multipliers, will ensure that smaller-dollar transactions and other responsive activities are Although these commenters also The general performance standards in appropriately incentivized. advocated for gradations, they stated the proposal established minimums for 150 Community groups raised concerns that the that if gradations were not adopted, then a bank’s quantified dollar value of CD minimums would have been reached easily because the agencies should adopt a significant of CD multipliers and the expanded qualifying lending and investment as compared to criteria. Additionally, some commenters, including portion threshold that is no more than retail domestic deposits to achieve a community groups, expressed concern that banks 50 percent. One community group satisfactory or an outstanding rating. To could meet the CD minimum through lending commenter recommended that the achieve a presumptive rating of alone, which might decrease investments. As noted agencies distinguish between the below, the final rule does not adopt a specified satisfactory or outstanding, the sum of minimum level of CD activities. The OCC will percentage required for a satisfactory gather additional data and conduct additional rating and an outstanding rating, which 148 For branches in MSAs, each MSA with at least analysis to ensure that the CD minimums are set at they suggested should be 65 percent and one branch was counted as an assessment area for an appropriate level for the framework in the final 75 percent, respectively. the bank. Branches in non-MSA areas, the number rule, which also adopts some changes that restrict of non-MSA counties in which the bank has at least the applicability of CD multipliers and the The OCC reviewed the suggestions of one branch, was divided by two to obtain an qualifying activities criteria, including the adoption commenters, used its supervisory estimate of the bank’s count of assessment areas for of a CD floor that must be met before any judgment and experience and branches in non-MSA areas. multipliers apply.
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in the proposal provided consideration the rule provides a multiplier for most percent of the relevant demographic of a bank’s ability to engage in the CD investments to ensure banks are comparator and at 65 percent of the volume of CD lending and investment incentivized to conduct investments. relevant peer comparator. required to meet the CD minimums, as The OCC believes that the CD Commenters described the rationale well as local needs, opportunities, and minimums as proposed provide a for the proposed CRA evaluation economic conditions. Such information meaningful assessment of whether a measure benchmarks, CD minimum, would have been considered by bank has engaged in a sufficient level of and retail lending distribution tests examiners as they assessed whether a CD activities, as a proportion of the thresholds as unclear and inadequate. bank’s presumptive rating should be retail domestic deposits, to be eligible to Commenters expressed differing views adjusted. receive a satisfactory or outstanding. on whether these benchmarks, Some industry commenters stated that Consistent with the statute, the final minimums and thresholds would be by only providing credit for CD rule creates an obligation for banks to difficult or easy to satisfy or whether activities that occur outside of banks’ serve their assessment areas and their they should be increased or assessment areas in the bank CRA entire community, including by decreased.155 They argued that the evaluation measure, the proposal would requiring banks to provide a minimum agencies did not sufficiently describe have made it harder for banks to meet amount of CD activities to be eligible to the data, rationale, or methodology for the assessment area CD minimums.151 receive a rating of satisfactory or the establishment of these thresholds, The OCC does not agree with this outstanding. However, as discussed making it difficult to assess and assertion. Under the proposal, banks below, the final rule does not set out a comment on them.156 Both community subject to the general performance specific level of activity for the CD group and industry commenters standards are required to engage in a minimum. recommended that the agencies disclose minimum level of CD activities in each the data used to determine the v. Presumptive Ratings Benchmarks, benchmarks, thresholds, and minimums of their assessment areas based on their Thresholds, and Minimums retail domestic deposits received from and recommended alternative numbers the assessment area. These banks would The proposal would have established based on their own analyses. also have to engage in a minimum level the empirical benchmarks for the Community group commenters also of CD activities across the country based average CRA evaluation measure 153 recommended more gradations to on their total retail domestic deposits. associated with each rating category, encourage more CRA activity, address Providing banks credit for engaging in thresholds for passing the retail lending the high share of banks receiving qualifying activities outside of their distribution tests, and a two percent satisfactory ratings, and develop more assessment areas was designed to incent minimum for CD activities as a rigorous grading. Some industry activities in underserved communities percentage of retail domestic commenters stated that the agencies that are often not a part of any bank’s deposits.154 The proposal set 11 percent were limited in their ability to leverage assessment area and to provide banks as the initial CRA evaluation measures existing data to test the proposed with flexibility to achieve their overall benchmark for outstanding, six percent performance standards and thus should CD obligations. as the initial benchmark for satisfactory, not finalize the proposal at this time. One community group noted that if and three percent as the initial Other commenters suggested the the final rule does not distinguish benchmark for needs to improve. An agencies issue a new proposal. between prior period and new CD average CRA evaluation measure of less The proposed performance standards investments for the purposes of the CD than three percent would have been were based on analyses of currently minimums, then banks will not have an associated with the substantial available historical data, using some incentive to engage in new activity. noncompliance rating category. The assumptions to estimate how banks Others were concerned that the CD proposal set the benchmark for passing would have performed from 2011 minimums aggregated both CD loans the retail lending distribution tests at 55 through 2017 under the proposal’s and investments into one category. framework. The historical data used was Some commenters suggested separate 153 The average CRA evaluation measure refers to the best available data and included the average of a bank’s annual CRA evaluation CRA PEs, Call Report data, FFIEC CRA thresholds for CD loans and CD measures for an evaluation period or the average of investments.152 The OCC recognizes the the bank’s annual assessment area CRA evaluation data, HMDA data, and credit bureau importance of incentivizing new CD measure for an evaluation period. data. The proposal clearly explained the activities and, accordingly, has revised 154 The agencies used the FFIEC’s CD lending sources used and the analysis methods the final rule to provide that a bank data and CD investment data from a sample of over and also acknowledged that data 200 CRA PEs from OCC-regulated banks completed limitations existed for the purposes of cannot receive a multiplier for any between 2011 and 2018 to estimate the on-balance activities conducted unless the sheet value of all banks’ CD activities as a determining the appropriate quantified dollar value of its current proportion of retail domestic deposits in the sample benchmarks. Commenters had sufficient period CD activities approximately of banks analyzed in 2017. This data set did not access to the data utilized by the include estimates of qualifying municipal bonds or agencies in formulating the proposed equals the quantified dollar value of its mortgage-backed securities. This analysis showed prior period CD activities. Additionally, that the estimated median on-balance sheet value of benchmarks to enable meaningful although the final rule does not provide CD loans and investments divided by retail comment on the proposed benchmarks. a separate minimum for investments, domestic deposits in 2017 was 1.9 percent for banks As discussed in the preamble to the with assets of $2.5 billion or more. The OCC also proposal, the agencies were able to rely reviewed the publicly available Board data, which 151 The agency notes that, actually, under the is based on a sample of CRA PEs. While it does not proposal, activities that serve a broader geographic include all CD loans and investments or all retail 155 For example, some industry and other region that includes one or more assessment areas domestic deposits because the data does not commenters expressed concern that the CD would still have received some credit in those include information on all assessment areas, the minimum was set too high and may be difficult to assessment areas, as described in the activity OCC’s analysis of the Board’s data shows that the achieve in some assessment areas, such as those location section of the final rule. estimated median on-balance sheet value of CD where there is intense competition for CD activities, 152 In particular, many commenters were loans and investment divided by retail domestic or for certain banks. concerned that banks would gravitate toward debt deposits was about 2.3 percent for banks with assets 156 Some commenters complained that the OCC instead of providing investments, unless a separate of at least $2.5 billion within a bank’s evaluation relied on historical data without explaining why CD investment minimum is established. period. that was appropriate.
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on this data to propose potential still expects to periodically review and small banks in the current CRA benchmarks and thresholds based on a adjust these benchmarks. regulations, including the currently reasonable range of potential Community groups criticized the retail lending distribution tests, unless benchmarks and thresholds and solicit proposal’s lack of explanation for the they were evaluated under an approved comment. Over time, the data statement in the preamble that the strategic plan or elected to opt into the collection, recordkeeping, and reporting agencies expect to review the CRA general performance standards. requirements in the proposal would evaluation measure benchmarks every Performance context factors and have remedied the existing data three years and questioned how the discriminatory and other illegal credit limitations. agencies would adjust for economic practices would have continued to be Although the OCC was not limited in cycles. Similarly, industry commenters considered in evaluating a small bank’s its ability to leverage the existing data, expressed concern that the benchmarks performance. The proposal’s definitions the agency agrees that the existing data would lag the economic cycle, as well of qualifying loans and CD services also was limited, rendering the agencies’ and as subject banks to political volatility. would have applied to small banks. commenters’ choice of thresholds One industry commenter suggested a Small banks that engaged in qualifying uncertain. While the proposed three-fold approach: (1) Providing banks activities as described in the proposal thresholds for each of the three the option to use benchmarks set shortly would have received consideration for components of the objective evaluation after their evaluation periods ended; (2) those activities to the extent that they framework were reasonable, the agency establishing dynamic thresholds that do were consistent with the small bank believes it would be appropriate to not lag the market but are adjusted as performance standards and Appendix gather more information and further infrequently as possible; and (3) using A. Small banks also would have been calibrate the benchmarks, thresholds, general downward adjustments during subject to the proposal’s changes to the and minimums. In addition, although evaluation periods in the case of a assessment area delineation the OCC issued a Request for market-altering event. A few industry requirements and would have been Information (RFI) to gather additional comments included additional required to delineate deposit-based information to assist in revising the suggestions, such as providing banks assessment areas to the same extent as thresholds and benchmarks in the with at least one full evaluation cycle of other banks. In addition, under the proposal as appropriate,157 the data that notice before applying higher proposed framework, small banks the OCC gathered in response was too benchmarks. would have continued to refer to Although the OCC considered ways to limited to reliably calibrate these relevant guidance in the Interagency adjust the CRA evaluation measures measures for all banks subject to the Q&As and existing policies and automatically to account for changing general performance standards. procedures, including with respect to economic conditions, it did not adopt state and multistate metropolitan Accordingly, the final rule does not any such measures in the final rule statistical area (MMSA) ratings. contain benchmarks for the CRA because, depending on the nature of the evaluation measure, a specific CD circumstances affecting the banking Some commenters were concerned minimum, or thresholds for the retail industry, different adjustments might be that by raising the small bank threshold lending distribution tests. The OCC has necessary. Additionally, implementing to include banks that are currently concluded it is appropriate to finalize dynamic adjustments to the CRA intermediate small banks the agencies each component of the objective evaluation measures would sacrifice the would not encourage those banks to evaluation framework contained in the certainty provided by establishing engage in CD activities. That is not the proposal (with revisions as described measures at the beginning of a bank’s case. Although the proposed small bank above) and to separately gather more evaluation period. Further, all sources performance standards did not include data and conduct further analysis to of data the OCC could use to make such a separate CD test, banks subject to the calibrate the benchmarks, thresholds, adjustments would likely also be lagging small bank performance standards and minimums associated with each of indicators. Instead, the final rule would would have been able to engage in such the three components of the framework. allow examiners to consider various activities. Under the current small bank The framework in the final rule is the external factors affecting a bank or all performance standards that the proposal product of the careful application of the banks’ ability to meet their CRA carried forward, as explained in OCC’s supervisory experience and evaluation measures, including Interagency Q&As, if a small bank policy judgments, analyses of available unanticipated market factors or performs any CD lending or CD lending- data, and consideration of public economic disruptions, through the related investment activities, those comments. Finalizing the framework application of performance context activities are considered during the achieves the agency’s goal of producing factors prior to assigning a final rating. evaluation of the bank’s performance. a more objective, transparent, and Banks would be subject to the As stated in Appendix A of Part 25, all consistent way to evaluate CRA performance standards in place at the CD investments, even those that are not performance. The OCC will issue beginning of their evaluation period, lending related, are considered in another Notice of Proposed Rulemaking which the OCC believes provides banks assessing whether a bank’s performance shortly that will explain the process the with ample notice. is outstanding. The proposal would not agency will engage in to calibrate more Small and intermediate bank have changed the current approach to precisely the requirements for each of performance standards. Under the evaluating small bank performance. the three components of the objective proposal, small banks would not have However, to clarify that to the extent evaluation framework. After receipt and been evaluated pursuant to the general that small banks can and do conduct CD consideration of comments to another performance standards that consider a lending and CD lending-related Notice of Proposed Rulemaking and bank’s CRA evaluation measure and the activities, such activities will be looked additional data collection and analysis, retail lending distribution tests. Instead, upon favorably in CRA evaluations, the the OCC will set specific benchmarks, small banks would have continued to be OCC revised the final rule to change thresholds, and minimums. The OCC evaluated according to the small bank lending-related activities to retail and performance standards applicable to community development lending- 157 See 85 FR 1285 (Jan. 10, 2020). small banks that are not intermediate related activities. Other than this
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change, the OCC finalized the small the OCC believed was flexible enough to performance ratings. With respect to bank performance standards as accommodate all types of banks, the submissions of these comments, the proposed. The OCC finalized Appendix agency acknowledges commenters’ OCC will continue to explore A as proposed because it specifically concerns about wholesale and limited technological and other methods to mentions that all CD investments are purpose banks. The OCC agrees that the facilitate these submissions. considered in assessing whether a current wholesale and limited purpose Some community groups stated that bank’s performance is outstanding. performance standards provide an performance context factors should The final rule also reintroduced the effective framework to evaluate the CRA identify community needs through intermediate small bank performance performance of those banks. The final analysis of economic and demographic standards used in the current rule exempts these banks from the data, as well as community framework, with one change. general performance standards and comments.160 The OCC agrees and notes Intermediate small banks are now called carries forward the performance that the proposal provided for this type intermediate banks to achieve better standards for wholesale and limited of identification of community needs clarity in terminology; however, they purpose banks that are in the current both directly and indirectly through will be evaluated in the same manner as rule.159 several performance context factors. intermediate small banks are currently. In relation to the addition of the Because of the diversity of the banking In addition, both intermediate and small wholesale and limited purpose bank industry, however, a one-size-fits-all banks can continue to refer to relevant provisions, the agency has made approach to community engagement guidance in the Interagency Q&As and conforming changes throughout the does not exist. There are currently many existing policies and procedures, final rule. methods of assessing the local demand including with respect to state and Performance context. The proposal set for qualifying activities and the MMSA ratings. forth performance context factors that available opportunities to satisfy this Other than the changes explained the agencies would have considered in demand by engaging with their above and technical and conforming determining a bank’s assigned rating communities. For instance, banks may edits, the small bank provisions are and assessment area assigned ratings. sponsor events, forums, and other adopted as proposed. In relation to the Banks subject to the general activities where community addition of the intermediate bank performance standards would have organizations, such as religious provisions and changes to the small submitted performance context organizations, CDFIs, CD practitioners, bank provisions, the agency has made information in a standardized format and housing-related non-profits, can conforming changes throughout the using a form on the agencies’ websites attend and provide feedback on local final rule. to address the performance context needs and opportunities. Banks may Wholesale and limited purpose banks. factors. In addition, the agencies would also respond to written comments from The proposal did not carry forward the have established evaluation procedures community stakeholders on different separate performance standards for to help ensure that examiners applied qualifying activity opportunities that wholesale and limited purpose banks performance context factors arise or conduct demographic and that are in the current rule. Commenters consistently. The performance context economic research on finance needs in objected to this approach and stated that factors would have focused on the their community. Finally, banks may wholesale and limited purpose banks capacity of the bank to engage in look to reliable sources that articulate have been appropriately granted distinct qualifying activities, as well as both the local needs and opportunities based on CRA treatment in the past 25 years demand for and the opportunity to interactions with the community and because their business models can differ engage in qualifying activities in the other types of research. markedly from most other banks. These communities that the bank serves. Two examples of such reliable commenters noted that designation as a Some community group commenters sources include the Federal Home Loan wholesale bank means that the bank voiced concerns that public comments Banks’ Targeted Community Lending cannot be in the business of extending would be considered in a constrained Plans (FHLB TCLPs) and local or state home mortgage, CRA-eligible business, manner under the proposal. These Consolidated Plans submitted to HUD CRA-eligible farm, or consumer loans to commenters stated that the proposal did for community planning and 161 retail customers, but these wholesale not expressly provide that the public development programs. FHLB TCLPs, banks may engage in limited retail could comment on banks’ CRA which were referenced in the proposed lending on an accommodation basis. For performance. These commenters also regulation text, evaluate community designation as a limited purpose bank, observed that the agencies did not lending and affordable housing needs, an institution must offer only a narrow discuss whether they would facilitate reflect market research conducted in product line (such as credit card or public comments. and localized to a FHLB’s district, and The final rule ensures that the OCC motor vehicle loans) to a regional or are developed in consultation with the will be able to gather and assess broader market. The commenters FHLB’s Advisory Council, members, valuable written public comments about asserted that it is inappropriate to apply housing associates, and public and local needs and opportunities submitted the general performance standards to private economic development to a bank or the evaluating agency as a 162 these banks and that the agencies organizations in the FHLB’s district. part of applying performance context should continue to apply the wholesale Each FHLB Advisory Council has 7 to factors. As these comments are 15 persons drawn from community and and limited purpose performance considered prior to the issuance of CRA non-profit organizations actively standards in the current rule because ratings, the rule does not diminish the involved in providing or promoting LMI those standards appropriately assess the 158 impact of public comments on CRA CRA performance of these banks. 160 Although the proposal adopted a Community group commenters also advocated 159 Based on the agency’s determination that the for requiring banks to meet with community groups more streamlined approach to CRA that final rule will only consider activities conducted by or other stakeholders and specifically suggested a bank, the final rule does not carry forward the recognizing community benefits agreements for 158 One commenter additionally noted that the provision on affiliate activities in the current identifying community needs. strategic plan option is a poor fit for banks that framework’s community development test for 161 12 CFR 1290.6(a)(5); 24 CFR part 91. currently are designated as wholesale banks. wholesale and limited purpose banks. 162 12 CFR 1290.6(a)(5).
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housing in the district.163 HUD capture qualitative factors, such as the that the proposal’s discussion of Consolidated Plans, which the agency responsiveness of an activity to certain performance context factors suggests has added as an example in the local needs. Although the proposed that it would be used mainly to excuse regulation text as a source that identifies framework did not assign an explicit banks’ failure to hit the targets.166 local needs and opportunities, provide value to qualitative factors, such as the As proposed, no element of information on the local or state responsiveness of an activity, it would performance context factors would have jurisdiction’s estimated affordable have evaluated these factors through the had a predetermined weight and housing and CD needs and market application of performance context consideration of performance context conditions based on U.S. Census data, factors. Although the OCC continues to factors could have resulted in examiners local studies, consultation with social believe that the application of adjusting a bank’s rating upwards or service agencies, and other public performance context factors is the downwards. To provide clarity, the input.164 The final rule was revised to appropriate place to evaluate these and proposal set forth the criteria the refer to both the FHLB TCLPs and HUD other qualitative factors, as discussed agencies believed generally affect a Consolidated Plans and to clarify that above, the final rule also adds a bank’s ability and opportunity to engage these plans are only examples of two multiplier of up to four times an in qualifying activities. The agencies reliable sources that articulate local activities’ quantified dollar value based would have also considered the needs and opportunities. on the OCC’s determination of the responsiveness, innovativeness, and The OCC recognizes the value of activity’s responsiveness, complexity of a bank’s qualifying banks’ engagement with their innovativeness, or complexity.165 activities. Due to the wide variety of communities. Community engagement Although the proposed framework was factors and circumstances that may enables banks to better determine and designed to bring clarity and affect bank performance or understand local needs and the consistency to the agency’s evaluation opportunities, the OCC continues to availability of local opportunities to of a bank’s CRA performance, it also believe that it is important to allow address these needs. The agency sought to provide flexibility for a bank examiners to assess these specific encourages banks to actively engage to engage in the CRA activities most qualitative factors by applying their communities in a manner appropriate for its unique context. The performance context factors for the bank commensurate with the banks’ size, OCC and commenters agree about the and in each assessment area. scope of activities, capacity, and importance of assessing qualitative Accordingly, other than the changes resources. The final rule evaluates the factors. The OCC believes that described above, OCC has adopted the effectiveness of a bank’s engagement framework in the final rule that allows performance context section as with its community, regardless of its multipliers for some qualitative factor proposed. However, the OCC plans to method of engagement, as a part of the along with providing for some issue guidance to examiners to promote application of performance context qualitative application of examiner consistent application of the factors. The agency will assess the judgment in a more systematic manner performance context factors. Discriminatory or other illegal credit responsiveness of a bank’s qualifying is the best approach. Accordingly, the practices. As proposed, the agencies’ activities to local needs, as well as the final rule will continue to assess evaluation of a bank’s CRA performance innovativeness, complexity, and qualitative factors, like responsiveness, would have been adversely affected by flexibility of these activities; the through the application of performance evidence of discriminatory or other availability of market opportunities to context factors and allows for the meet the local needs; and written illegal credit practices. Specifically, in application of multipliers for qualitative comments about local needs and assigning a CRA rating, an agency factors in some cases. opportunities submitted to the bank or would have first evaluated a bank’s Some industry commenters asked for the OCC. performance for the applicable time Some community groups and a few the agency to clarify how performance period and then made any adjustments members of the public recommended context factors would be factored into to the presumptive rating that would lowering ratings if banks finance the proposed CRA benchmarks and have been warranted based on the activities that cause displacement or associated ratings and how banks can application of the performance context other harm. The OCC agrees that it is provide the information on the relevant factors, as described above, and any important to consider both positive and factors. Other industry commenters evidence of discriminatory or other negative qualitative aspects of a bank’s suggested that the performance context illegal credit practices, consistent with CRA performance. Accordingly, certain factors should only be additive to a the agency’s policies and procedures. qualifying activities criteria require that bank’s overall CRA score, as a Commenters expressed differing a bank demonstrate that its activities downgrade would defeat the purpose of views on the appropriate effect of benefit or serve a targeted population, a quantitative system or should not be discriminatory or other illegal credit entity, or areas. Further, the rule required if a bank was satisfied with its practices on banks’ ratings. Some considers the responsiveness of a bank’s presumptive rating. Community group commenters requested additional qualifying activities to local needs as commenters expressed concern that the information on the effect of evidence of part of the application of performance proposal did not sufficiently value discriminatory or other illegal credit context factors. Lastly, as discussed performance context factors. Some practices on bank ratings. Such below, the rule retains consideration of community group commenters stated discriminatory and other illegal credit 166 Industry and community group commenters 165 At least one community group commenter also suggested different elements that could be practices, which also can result in thought that the range of retail banking services considered as part of performance context, such as downward adjustments to ratings. should not be evaluated in performance context (1) a bank’s free retail banking services; (2) a bank’s Many commenters expressed concern because it asserted that the application of affordable housing activities; (3) a bank’s available that the proposed CRA evaluation performance context factors is largely bank driven. loan terms and conditions; (4) the unique issues measure would not appropriately As described in the preamble to the proposal, the related to military-base banks; (5) a standard for agency plans to issue additional guidance for measuring diversity and inclusion; and (6) specified examiners on how to evaluate the performance CD activities. The OCC notes that most of these 163 12 U.S.C. 1430(j)(11). context factors in the final rule, including how to elements are covered by the performance context 164 24 CFR 91.205, 91.305. evaluate the range of retail banking services. factors in the proposal and the final rule.
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evidence, whether within or outside an its CRA responsibilities and to be unique characteristics and needs of the assessment area, affects bank ratings evaluated based on its performance bank. under the final rule. An assessment area under the plan. Under the proposal, a Some industry commenters expressed rating only considers evidence of bank’s strategic plan would have been concern that the nine-month timeframe discriminatory other illegal credit developed with public participation and for regulatory approval of a strategic practices that occur within the would have included measurable goals plan is too long. These commenters assessment area. This rule does not for helping to meet the credit needs— recommended that the timeframe change the OCC’s policy for determining particularly the needs of LMI census should be revised to 90 days with a the effect of evidence of discriminatory tracts and individuals—of its potential 30-day extension for good or other illegal credit practices on the assessment area(s) and entire cause. They also stated that CRA rating of a bank. Several community through qualifying amendments to strategic plans should commenters suggested that the agencies activities. be approved within 90 days and that apply additional scrutiny and bolster absent a change in business model, Some industry commenters stated that reviews for evidence of discriminatory, strategic plans up for renewal should the proposal’s strategic plan option abusive, predatory, or otherwise illegal always be approved. The OCC notes that appeared to be limited to larger or non- credit practices in connection with the timeframe for regulatory approval of traditional banks and recommended that evaluations of banks’ CRA performance, a strategic plan in the proposal was six such as by including quantitative the agencies make this option more months. The agency agrees that the analysis of lending to communities of accessible to all banks. The OCC timeframe for approval of a strategic color and more detailed descriptions of believes that these commenters may plan can and should be shorter. The banks’ compliance with anti- have misunderstood the availability of final rule states that the OCC will discrimination and consumer protection the strategic plan option. This option is determine whether to approve strategic laws. One commenter suggested that open to all banks, not just larger or non- plans within 90 days with an option for CRA evaluations should ensure that traditional banks. However, as one 30-day extension for good cause. communities of color have fair access to performance context factors will be Further, absent a change in business the banking system. Two community applied for all banks under the general model or other material circumstances, groups recommended that the agencies performance standards, and the final the agency expects that applications for retroactively downgrade CRA ratings rule includes separate performance renewals of strategic plans that have when fair lending examinations find standards for small, intermediate, previously been approved under this violations that occurred during a prior wholesale, and limited-purpose banks, final rule will be approved. period and that the agencies wait to there may be only limited circumstances In light of the reintroduction of the issue CRA ratings and approve licensing where strategic plans will be beneficial wholesale and limited purpose applications until the completion of to banks. performance standards, the final rule ongoing fair lending examinations. Some commenters also recommended also eliminates the requirement that The OCC assesses and examines exempting strategic plan banks from the small banks that do not engage in retail banks for compliance with consumer assessment area requirements of the lending submit a strategic plan, as these protection laws and regulations as part general performance standards. banks can now receive a wholesale bank of its ongoing supervisory activities and Allowing banks to propose the areas designation. Other than these changes takes such action as may be appropriate where they are evaluated without any and other technical edits, the OCC has under the applicable laws and constraints would cause great finalized the strategic plan section as regulations to address any deficiencies uncertainty in CRA evaluations. Banks proposed. or violations.167 As in the past, the OCC evaluated under the strategic plan Assigned ratings. The OCC largely will continue to take evidence of option are subject to the same statutory adopts the assigned rating sections as discriminatory or other illegal credit provisions that require the OCC to proposed, with clarifying edits to practices into account in evaluating evaluate performance in certain accommodate the addition of the CRA performance. Depending on the geographic areas. For these reasons, the intermediate size category and the circumstances, a bank’s assigned rating OCC has decided to not exempt strategic inclusion of separate performance may be lower than its presumptive plan banks from the assessment area standards for wholesale and limited rating due to such evidence. After requirements. However, the rule does purpose banks. The final rule also considering the comments, the agency is not otherwise tie the evaluation of a rectifies an inadvertent omission in the finalizing the discriminatory and other strategic plan to evaluation under the proposal by clarifying that the agency illegal credit practices section as general performance standards. The will consider any evidence of proposed. The OCC will apply its strategic plan option provides flexibility discriminatory or other illegal credit current policies and procedures but does not result in lower practices when assigning ratings for regarding the consideration of expectations for bank performance. banks evaluated under a strategic plan. discriminatory and other illegal credit The final rule also clarifies that state or Some industry commenters requested practices. MMSA ratings will be assigned based on guidance on how to draft strategic Strategic plans. Under the proposal, a the ratings assigned to the assessment plans.168 Since there is more than one bank would have had the option to areas within that state or MMSA. The appropriate way to draft a strategic plan, develop a strategic plan for addressing OCC plans to provide additional the OCC plans to provide general guidance to examiners about how to 167 guidance for banks on this issue. In some instances, regulatory agencies other assign those ratings. than the OCC may have supervisory and/or However, the OCC notes that each Conforming, clarifying, and technical enforcement authority with respect to the law or strategic plan should be tailored to the regulation at issue. For example, the Consumer changes. Other than the changes Financial Protection Bureau has supervisory and explained above and technical, primary enforcement authority under Equal Credit 168 One industry commenter suggested Opportunity Act for insured depository institutions incorporating existing strategic plan guidelines. The clarifying, and conforming edits, the with more than $10 billion in total assets. 12 U.S.C. OCC expects to leverage existing guidance to the agency is the performance standards as 5481(12)(D), 5481(14), and 5515(a)(1). extent practicable. proposed.
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D. Data Collection, Recordkeeping, and not currently collect or have direct requirement that banks collect and Reporting access to, with industry commenters maintain information on the value of Today’s CRA regulatory framework noting that costs associated with each retail domestic deposit account at results in CRA PEs that can be in excess information collection would outweigh the end of the quarter and the physical of 1,000 pages. Current CRA PEs are benefits. address of each depositor would require The OCC recognizes that there are difficult to read and use and make it that this data be captured, validated, costs associated with the final rule’s challenging to draw comparisons from retained, and not modified during the data requirements—both the upfront bank to bank or from one bank entire evaluation period. To do this, costs of developing and implementing evaluation period to the next. By banks would likely have to move the new systems and the costs of ongoing defining qualifying activities data out of one system and into another, data collection and maintenance. The which commenters noted was not consistently and making CRA clarity and certainty provided to banks something that most banks currently do evaluations more objective, the proposal by the final rule will offset these costs and would be costly to implement. would have enabled examiners to and the added benefit to the banks and Some commenters also voiced concerns produce more standardized CRA PEs in stakeholders warrants such additional that capturing depositors’ physical less time than the current framework. costs. Third-party service providers may address every time they move would be More systematic and standardized also be able to help banks meet these costly.169 Other commenters remarked information would enable the OCC to new data-related requirements in a cost- that the proposal’s requirement to assess the level of qualifying activities effective manner due to their economies geocode at the census tract level would being conducted by banks. More of scale. Furthermore, certain changes to require the manual coding of some complete and accessible information the proposed qualifying activities, accounts. These commenters suggested will improve and accelerate decision assessment areas, and performance that even a revision enabling banks to making for regulators and stakeholders. standards adopted in the final rule will geocode deposit accounts to the county Greater transparency through more likely reduce the costs of the new level would difficult, especially for comparable and timely data and framework’s data requirements. The small banks. A few commenters information will increase accountability data that banks will collect under the provided suggestions for reducing the by ensuring that ratings are more final rule may also provide them with burden associated with geocoding, accurate reflections of the level of CRA non-CRA-related benefits, for example, including: (1) Using system reports activities that banks conduct. Common by providing them with new based on zip codes to identify retail definitions and better data over time information about, and insights into, the domestic deposits within and outside will allow the OCC to adjust the communities they serve as well as the assessment areas; (2) providing a thresholds and benchmarks for activities of peers and the broader developed process to enable banks to delineating deposit-based assessment industry. make this determination; (3) allowing areas and the levels of performance A few commenters expressed concern banks to use the address provided at necessary to achieve certain rating regarding how the OCC will address account opening or the address on file, categories. Objective measures, reported data integrity issues and made certain even if that address is a P.O box; (4) in a transparent manner, will allow requests and recommendations, correlating deposit account addresses to banks to assess performance and including that the agency provide safe counties or assessment areas; (5) progress. harbors, clarifying accuracy geocoding retail domestic deposits only Consequently, the final rule includes expectations, and not use data enhanced data collection, on an as-needed or annual basis, or in inaccuracies as a basis for rating a bank response to a triggering event; or (6) recordkeeping, and reporting less than satisfactory. One commenter requirements to support the new CRA providing exemptions in certain recommended that the agency provide a circumstances for maintaining geocoded regulatory framework. Like the means for offsetting the costs associated 170 proposal, the final rule includes data retail domestic deposit data. with data retention and provide a work- The agency appreciates these collection and reporting requirements through period in data retention to concerns. However, to implement the for banks evaluated under the general avoid overly burdensome immediate performance standards adopted in this performance standards or a strategic impacts. The OCC believes that the final rule, which will enable the agency plan and separate requirements for long-term benefits will outweigh the to better assess banks’ CRA performance banks evaluated under the small bank costs. to serve their entire communities, the performance standards. The final rule A few industry commenters also OCC needs to know, as of the end of also adds separate requirements for the expressed concerns about the cost of each quarter, the value of a bank’s retail reintroduced categories of intermediate, collecting data on consumer loans wholesale, and limited purpose banks. because banks may not have the 169 Although the USA PATRIOT Act requires that Data collection for banks evaluated physical addresses associated with the a bank collect the physical address for a new under the general performance loans. The OCC recognizes that depositor, accounts opened prior to 2001 without standards or a strategic plan. As set consumer loans present unique data this information were grandfathered. Public Law forth in the proposal, a bank evaluated challenges. To address these concerns, 107–56, 115 Stat. 272 (2001). Some of these accounts may still be missing this information. under the general performance under the final rule, credit cards are no 170 Two industry commenters requested standards or a strategic plan would be longer included in a bank’s CRA confirmation that banks could rely on the physical required to collect and maintain a evaluation. Having removed credit cards address provided by the depositor without variety of data about its qualifying from the definition of consumer loan, additional verification. The OCC confirms that banks may rely on the physical address provided activities and where each activity took the OCC determined that it was by the depositor. Another commenter sought clarity place. Some industry commenters and appropriate to simplify the compliance on the frequency of retail deposit data collection community groups expressed concerns dates, as discussed below. and reporting. The final rule requires quarterly that these proposed requirements would Industry commenters sought clarity collection of the value and the physical address and associated Federal Information Processing necessitate the development and on the frequency of the proposal’s Standards (FIPS) code for each retail domestic implementation of costly new data deposit data collections. The deposit account. Banks will have to report their systems for information that banks may commenters stated that the proposed average quarterly retail domestic deposits annually.
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deposit account and the physical banks’ balance sheets or may have been for CRA credit and suggested that the address of each depositor. Furthermore, gathered at too remote a time to be OCC develop a new method to obtain the agency does not believe that the new relevant. Accordingly, the retroactive information about these loans. The OCC data collection requirements will be as application of requirements to measure recognizes that the new framework will burdensome as industry commenters a bank’s current portfolio would be not align with other existing data suggest because banks are generally challenging. In response to these reporting requirements and processes already collecting much of this data in concerns, the agency is grandfathering but the benefits of clarity and the ordinary course of business, activities that would have received transparency regarding CRA activities although it may not be contained on the positive consideration in a CRA provided by the final rule outweighs the same systems. For these reasons, the evaluation under the current framework costs of maintaining and reporting data. final rule adopts these provisions and are on a bank’s balance sheet on the Additionally, as discussed above, the generally as proposed, but clarifies that effective date of the final rule, other framework in the final rule provides retail domestic deposit accounts need to than home mortgage loans and banks the flexibility to treat qualifying be geocoded to the county level, not the consumer loans provided to middle- small loans to farm or qualifying small census tract level, because the county is and upper-income individuals in LMI loans to businesses that also qualify the smallest permissible assessment area census tracts. Grandfathered activities under a CD criterion as CD loans for under the final rule. As provided in the will be considered qualifying activities purpose of meeting the CD minimums. final rule, the OCC will prescribe the for purposes of calculating the bank’s A few industry commenters argued machine-readable form for collecting CRA evaluation measure but will be that the proposal’s requirement that and maintaining CRA data, and the OCC subject to more limited data collection, banks collect non-qualifying home plans to provide further detail on the recordkeeping, and reporting mortgage and consumer loan origination data that banks must collect and requirements, discussed below. data, should be removed in the final maintain. Regarding retail lending data, rule.171 The final rule retains this With respect to the proposed industry commenters and community provision, however, because the agency requirement that banks collect and groups recommended that the OCC use needs this information to conduct a maintain certain balance sheet existing datasets and reporting bank’s retail lending distribution test information, industry commenters were structures, such as those related to and to determine the appropriate peer generally opposed to this provision, HMDA data, rather than create a new comparators for those tests. although some expressed a willingness framework. HMDA data would not Furthermore, although the proposal to collect and maintain this information provide the OCC with the information it would not have required banks to on CD activities. The agency notes, needs for purposes of evaluating CRA collect data on non-qualifying small however, that the on-balance sheet performance. First, many banks subject loans to businesses and small loans to values required to be collected and to CRA are not HMDA reporters. farms, the final rule extends the data maintained in the final rule will provide Second, HMDA data only includes collection requirements to include these information about the origination value the OCC with an important measure of loans because this data is needed to a bank’s qualifying activities. Because of home mortgages and does not contain evaluate bank performance, conduct a the performance standards in the final the on-balance sheet value of these bank’s retail lending distribution test, rule include consideration of this data, loans needed under the final rule’s and determine the appropriate peer the final rule also retains the performance standard framework. The comparators for those tests. requirement for banks to collect and OCC needs banks to collect and The final rule includes other revisions maintain this information. maintain this on-balance sheet to the data collection provisions. As proposed, banks subject to the information to implement the general performance standard would framework in the final rule. Specifically, to ensure that the OCC can have to collect, maintain, and report A community group noted that if validate banks’ retail lending their presumptive ratings and the results qualifying activities data includes distribution tests, CRA evaluation of their CRA evaluation measure multipliers, stakeholders will be unable measures, and presumptive ratings, calculations and retail lending to assess whether CRA activity is banks must collect and maintain distribution tests. The proposal did not increasing and the needs of local supporting documentation related to require that banks collect, maintain, or communities are being met. Consistent these calculations. The final rule also report the results of their CD minimums with the proposal, the final rule requires requires that banks collect, maintain calculations, which were also a banks to collect and maintain the and report information on the number of component of the general performance quantified dollar value of activities home mortgage loans originated in LMI standards. Commenters suggested that before applying multipliers. The final census tracts. In addition, the final rule the final rule should include data rule also adds a requirement that banks reduces the length of time that banks collection, recordkeeping, and reporting collect and maintain an indicator of must maintain data by providing that requirements for the CD minimums. The whether a multiplier applies. Therefore, data must be maintained until the final rule includes data collection and the final rule will provide all completion of the relevant CRA recordkeeping requirements for banks’ stakeholders with more transparency evaluation. CD minimum calculations and the regarding banks’ CRA activities than A few industry commenters expressed supporting documentation associated exists today. In addition, multipliers concerns regarding the proposed with these calculations. will not apply to CD activities unless a requirements to collect, maintain, and Certain industry commenters noted bank maintains approximately the same report data on CD services, citing that the proposal is unclear about how level of CD activities as in the prior concerns that the costs of doing so to treat a bank’s existing book of period. business. Commenters further noted that One industry commenter noted that 171 Another commenter expressed concern that much of the information required by the increasing the size of small loans to the proposal would require banks to collect and maintain information on denied consumer loan proposal, such as addresses or income businesses and farms will result in the applications. The OCC notes that the final rule does information, may not have been corresponding Call Report codes no not require banks to collect information on denied gathered for loans that are already on longer capturing all loans that qualify consumer loan applications.
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would outweigh any CRA benefit.172 but this section is otherwise adopted as impose any reporting requirements on The final rule’s CD-related data proposed. banks evaluated under the small bank collection, recordkeeping, and reporting Evaluation under the wholesale and performance standards. requirements are necessary to assess and limited purpose bank performance Data collection for grandfathered validate banks’ CRA performance under standards. The final rule maintains the activities. Some industry commenters the revised framework. Nonetheless, the wholesale and limited purpose bank requested additional clarity on the OCC acknowledges the burden issues performance standards from the current treatment of a bank’s existing book of raised by commenters. The final rule framework, while making the expanded business under the proposal. These revises the treatment of CD services as qualifying activities criteria in the new commenters noted that the data required suggested by commenters to use a qualifying activities section applicable to be collected under the proposal may standard for the median hourly to those banks. The final rule requires not have been gathered at origination for compensation value for the banking banks evaluated under the wholesale these loans, or that it may have been industry based on Call Report data for and limited purpose performance gathered at too remote a time to be (1) median salaries and employee standards to collect and maintain relevant. The agency recognizes that benefits from Schedule RI, Item 7.a; and information about CD activities, identifying qualifying on-balance sheet (2) the median number of full-time including an indication of which new activities may be burdensome. The final equivalent employees from Schedule RI qualifying activity criteria these rule provides for grandfathering of Memorandum Item 5. activities satisfy. These banks will also existing on-balance sheet activities that Other commenters suggested that the be required to collect and maintain either qualified in previous CRA agencies increase data collection related information on retail domestic deposits, evaluations or would have qualified to retail banking services, in part to including the physical address of the under the current CRA framework. For determine whether products and depositor, and their assessment areas. grandfathered qualifying activities, the services are affordable. The agency is This data collection is necessary to final rule includes only the data not including additional data collection ensure that the OCC has the information collection requirements necessary to related to retail banking services in the required to evaluate banks’ CRA determine the quantified dollar value of final rule, but it notes that banks are performance. those activities. The agency expects that Evaluation under the small and required to report performance context banks will identify on-balance sheet intermediate bank performance information. activities that would not qualify under One industry commenter noted that standards. As proposed, banks the current CRA framework but qualify the frequency of the data collection, evaluated under the small bank under this final rule based on the recordkeeping, and reporting performance standards were generally information that was or would have requirements did not match the six- exempt from the data collection, been gathered at the time of origination. month review period for the qualifying recordkeeping, and reporting Although there may be some data activities list confirmation process, requirements except they would have collection burden associated with the which is reduced to 60 days in the final been required to collect and maintain look back process for activities that now rule. The data requirements and the information on retail domestic deposits, qualify for CRA credit, the agency qualifying activities confirmation including the physical address of the anticipates that this look back will not process serve different purposes and the depositor. These requirements were be overly burdensome because full applicable periods would not included in the proposal to determine compliance with the new regulations necessarily begin at the same time, whether a bank was required to will not be required until January 1, making alignment unnecessary. delineate deposit-based assessment One industry commenter requested areas and allow the agencies to validate 2023, and the number of these now that the OCC clarify that the banks can those determinations. The proposal qualifying activities will likely be very use the address of the account holder of sought comments on whether there were small. record as the address for an omnibus or other ways to limit the recordkeeping Activity Location. The proposal set intermediate deposit account. Another burden on small banks. forth provisions explaining how banks industry commenter requested clarify In response, some industry would determine the location of an the information and documentation commenters stated that small banks activity for purposes of the data needed for CD loans. The final rule should be exempt from the retail collection requirements. Industry requires banks to collect and maintain domestic deposit data collection and commenters suggested alternatives for supporting documentation. The agency recordkeeping provisions in the determining the location of certain notes that banks bear the burden of proposal because of the burdens activities with a broad geographic focus. establishing that qualifying activities are associated with this provision. Some The final rule does not revise the eligible for CRA credit and the community groups opposed allowing treatment of activity location. The information they collect will permit the small banks to opt out of the deposit- agency believes that banks should get OCC to confirm the activities’ eligibility. related data collection and record- credit in their assessment areas for The OCC will provide additional keeping requirements. The OCC believes activities that serve or benefit their guidance on the final rule’s data that the proposed data collection and assessment areas because this is most collection requirements related to the recordkeeping requirements for small consistent with the statutory purpose of general performance standards and the banks evaluated under the small bank CRA. For purposes of determining other performance standards discussed performance standards are appropriate, activity location, qualifying activities below. and the final rule adopts them as that are not conducted within In addition to the changes discussed proposed and applies them to assessment areas will receive credit in a above, the final rule includes intermediate banks. Reporting small or bank’s qualifying activities value and conforming and technical changes intermediate bank retail domestic not in any bank assessment area throughout the data collection section, deposit data is not necessary because qualifying activities value. Qualifying the OCC will validate assessment area activities that are partially allocated to 172 Other commenters suggested that the tracking delineations during evaluations. an assessment area will receive CRA of CD service hours be optional. Therefore, the final rule does not credit in the bank’s qualifying activities
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for the amount of the activity that is not purpose banks. The final rule otherwise based on any on-balance sheet amount allocated to another assessment area. adopts the recordkeeping section as plus the allowance for credit losses One industry commenter suggested proposed. related to the commitment itself. that banks use the FFIEC website for Data reporting. The proposal required After considering these and other geocoding and that banks should not be banks evaluated under the general comments, the agency is adopting the expected to conduct further research. performance standards to report to the reporting requirements as proposed, The final rule’s performance standards OCC some, but not all, of the CRA- with a few changes. The final rule require banks to identify the location of related data that these banks are requires banks to report the results of their loans and other activities but do required to collect and maintain. their retail lending distribution tests and not specify the method of geocoding. If Community groups recommended, their presumptive ratings at the end of a bank cannot identify the location of its instead, that all CRA-related data that the evaluation period, not annually as qualifying activities it will receive credit banks collect and maintain should be proposed, in recognition of the fact that for those activities in its bank CRA reported and made public. Several banks cannot determine the test results evaluation measure. commenters recommended county- and presumptive ratings until the end of One industry commenter requested level, or ideally census tract-level, the evaluation period. The final rule clarification as to whether the rule reporting of CD activities, retail lending, also clarifies that banks will only have requires aggregate or separate collection and deposit data. These commenters to report performance context and reporting of LMI categories. The were concerned that the limited public information prior to their CRA OCC confirms that data collected for data in the proposal would not provide evaluations. LMI census tracts may be aggregated the public with enough information A few industry commenters made because the rule does not separately about banks’ CRA performance. With recommendations related to the method evaluate low-income and moderate- respect to concerns that the final rule of reporting information including income tracts for performance standards will not make enough CRA-related suggesting that the agency create portals purposes. information available to the public, the or spreadsheets to assist banks with The agency is adopting these agency notes that all facts and data these requirements. The OCC will provisions as proposed, with a minor supporting the agency’s conclusions and provide banks with a reporting form to change to clarify that banks are expected ratings will continue to be available in assist them in meeting these to record the location of a consumer banks’ publicly available CRA PEs. The requirements. loan at the time of origination.173 As OCC is committed to improving Several industry commenters stated explained above, under the final rule, a transparency under the CRA and, as it that it was unclear whether over- or bank would not be expected to track, accumulates data over time, will work underreporting would result in over time, the borrower’s income or to develop aggregate reporting of penalties, and one commenter suggested other qualifying criteria or re-classify activities by various geographies, while that the agency incorporate aspects of qualifying activities as non-qualifying if ensuring that confidential supervisory the current framework that do not income or other qualifying criteria information, confidential commercial contemplate penalties regarding CRA change. information, and personally identifiable data. The OCC notes that the CRA is Finally, some industry commenters information are appropriately protected. designed to encourage banks to engage recommended that the agency clarify At this time, however, the final rule in activities. The agency will work with the data collection requirements for CD does not adjust the scope of the public banks to ensure accuracy of reported activities that serve multiple locations. data reporting. As with any other rule, data but, as with the current framework, The agency will provide guidance to the agency will issue guidance as part the agency does not contemplate further clarify these requirements. of the administration of the rule to penalties regarding CRA data, especially Recordkeeping. As with the proposal, provide clarity on when banks will have since the CRA statute does not provide the final rule will require banks to to report data to the agency. a basis for OCC enforcement actions.174 collect and maintain all necessary data One industry commenter One industry commenter argued that in machine readable form. To facilitate recommended that the agency make any reporting or disclosure reporting of presumptive ratings compliance with the data collection and requirements that do not serve a specific optional, rather than mandatory. The record-keeping requirements, the OCC purpose under the new framework, such agency notes that the purposes of the will provide additional guidance on the as activities that do not count toward new framework include enhanced specific data points that a bank will the CRA evaluation measure, would transparency and tracking of CRA need to collect and maintain and the violate the Paperwork Reduction Act. activity. Therefore, the final rule format in which the data will need to be The agency notes that all the continues to require reporting of recorded. One industry commenter information required by the data presumptive ratings, which will be requested confirmation that CRA data collection, recordkeeping, and reporting validated by the OCC examiners. requirements is needed to determine may be maintained in any system and One industry commenter stated that provided in any machine-readable and validate bank performance. the reporting requirements for Industry commenters also sought format. The final rule requires banks to contingent commitments to lend were maintain the data in machine readable clarification regarding aspects of the unclear and recommended reporting the reporting requirements. The agency format, as prescribed by the OCC, to commitment rather than the outstanding confirms that banks must report ensure the validity and integrity of the amount. The final rule, like the qualifying donations, which are data. The agency made conforming proposal, requires reporting of the included in the quantified dollar value revisions in the final rule to apply the quantified dollar value of qualifying of their CD investments. The agency recordkeeping requirements to loans and CD investments. As described also notes that more detailed reporting intermediate, wholesale, and limited above, the quantified dollar value of of originated loans is required for the certain commitments to lend and legally 173 The agency believes the proposal was clear about the time at which the bank should record the binding commitments to invest is the 174 Auth. of the Fed. Fin. Supervisory Agencies location of the activity for other types of activities full amount of the commitment. Other Under the Cmty. Reinvestment Act, 18 U.S. Op. Off. and, therefore, no other clarification is needed. commitments to lend are quantified Legal Counsel 249 (1994).
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purposes of the retail lending reporting requirements to satisfy a Disclosure Statements issued under the distribution test. However, banks must bank’s CRA data collection, final rule.175 also report the quantified dollar value of recordkeeping, and reporting One industry commenter all qualifying CD and retail loans, requirements. Similarly, one community recommended that performance whether originated or purchased. group suggested that the agency standards data not be disclosed to the The final rule also includes reporting recognize bank data reported under public because they would not represent requirements for wholesale and limited certain federal programs and that performance over the entire evaluation purpose banks. The agency included regulators develop protocols and period. The agency agrees and notes that reporting requirements for these banks procedures to share data while the final rule requires reporting of to be consistent with the proposal and protecting proprietary information. presumptive ratings and retail the current framework. Specifically, Because the data collection, distribution tests only at the end of an under the proposal, banks that meet the evaluation period. recordkeeping, and reporting definition of wholesale or limited A few community groups and purpose bank in the final rule would requirements in the final rule are industry commenters recommended that have been evaluated under the general necessary to assess and validate CRA data on the geographic location of performance standards, unless they had performance, the agency is not adopting deposits be made publicly available if assets of $500 million or less. Further, these recommendations. The agency deposit-based assessment areas are wholesale and limited purpose banks cannot ensure that these alternative adopted. As described above, the agency have reporting requirements under the reporting requirements will provide the will make public aggregate data based current framework. The final rule information needed for CRA purposes. on the information reported by banks. requires that wholesale and limited Other than the changes discussed above, However, the final rule does not include purpose banks report information on the agency is finalizing the reporting public disclosure of deposit data their CD loans and CD investments, section as proposed. consistent with the current CRA assessment areas, and performance Public disclosures. Under the framework. The information about a context. The final rule also includes proposal, the agency would have made bank’s deposit-based assessment areas conforming edits related to the reporting will be included in banks’ CRA PEs. The requirements for wholesale and limited certain information that banks provide publicly available through individual agency does not think additional purpose banks. information is necessary, especially in In addition to the revisions described and aggregate CRA Disclosure Statements, allowing stakeholders to light of the additional reporting burden above, the final rule includes the that disclosure would require. observe trends and monitor and following clarifying and conforming The proposal would also have revisions: (1) Adds the words as compare banks’ CRA activities. In retained many of the current applicable to the performance standards addition, the agency would have regulation’s provisions related to the reporting requirements to clarify that published each bank’s ratings and a list public file,176 planned evaluation not all banks that must report data will of banks rated outstanding. Banks that schedules,177 public notice by banks,178 have information to report; (2) removes received a bank assigned rating of and the CRA notice.179 Banks still the data collection certification outstanding would have received a would have needed to provide public requirement given that the final rule certificate or seal of achievement to notice to the communities they serve. does not permit banks to include display on their websites and in their Banks would also have needed to affiliate activities; (3) changes the term main office and branches. One industry provide CRA-related information to quantified value to the term quantified commenter suggested that the agency community members upon request. dollar value to be consistent throughout also publish a list of banks rated CRA-related information would have the final rule; and (4) makes other satisfactory. Because each bank’s rating included information about banks’ technical and conforming revisions will be published in its CRA PE and the branches, locations, and services, related to the changes discussed above. comments received from the public Certain industry commenters list is intended to identify and related to assessment area needs and suggested that banks operating under encourage outstanding CRA strategic plans should be exempt from performance, the final rule adopts the opportunities, and responses to those data collection, recordkeeping, and public disclosure provisions as comments. Other than technical and reporting requirements that are not proposed, except for a minor change conforming edits, the agency is adopting measured in the bank’s strategic plan. replacing quantified value with these provisions as proposed. One commenter noted that the data quantified dollar value to use consistent Under the proposal, banks would not could be misleading to those who are terminology throughout the rule. Banks have had to provide data reported unaware that a bank is operating under that are rated satisfactory are through HMDA in the public file. Some community groups opposed removing a strategic plan. Like the proposal, the encouraged to inform their customers final rule generally subjects banks and communities of such a rating. 175 The OCC has treated and will continue to treat operating under a strategic plan to the One industry commenter requested confidential commercial information submitted to same data collection, recordkeeping, that the agency take steps to protect the agency in accordance with 12 CFR 4.16, and reporting obligations as banks consistent with Food Marketing Institute v. Argus banks’ financial information and their operating under the general Leader Media, 139 S. Ct. 2356, 2363 (2019), and the customers’ information in the CRA Step-by-Step Guide for Determining if Commercial performance standards, unless Disclosure Statements. The agency or Financial Information Obtained from a Person is determined otherwise in writing by the recognizes the importance of protecting Confidential Under Exemption 4 of the FOIA (U.S. OCC. The agency will consider Department of Justice, Oct. 7, 2019), available at appropriate exemptions from specific this information and will, consistent https://www.justice.gov/oip/step-step-guide- data collection, recordkeeping, and with applicable law, appropriately determining-if-commercial-or-financial- protect confidential supervisory information-obtained-person-confidential. reporting requirements based on 176 information, confidential commercial 12 CFR 25.43, 195.43. individual facts and circumstances. 177 12 CFR 25.45, 195.45. Several industry commenters information, and personally identifiable 178 12 CFR 25.44, 195.44. suggested that the agency allow CDFI information from disclosure in the CRA 179 12 CFR part 25 Appendix B.
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HMDA data from banks’ public files and Some community groups expressed notes, however, with improved data and suggested adding supplemental concern about the five-year evaluation more objective evaluations, the agency requirements if HMDA data is cycle for banks rated outstanding, expects that evaluations will be insufficient. They also opposed including that it would not sufficiently published quickly and more replacing HMDA data with Call Report incentivize banks to consistently help to consistently after the close of an data because the latter does not include meet the credit needs of their evaluation. borrower income information. Because communities and that data considered Conforming, clarifying, and technical the final rule does not rely on HMDA in merger transactions could be stale. In changes. Other than the changes data, the agency is not requiring that the contrast, an industry commenter explained above and conforming, public file include HMDA data in the recommended that the evaluation clarifying, and technical revisions, the final rule. HMDA data will remain period for a bank rated satisfactory be OCC is adopting the data collection, publicly available on the Consumer four years. The agency notes that the recordkeeping, and reporting Financial Protection Bureau’s concern about inconsistent performance requirements as proposed. 180 website. is mitigated by the fact that the final E. Other Issues Additionally, under the proposal, rule incentivizes banks to consistently banks would no longer have been meet the needs of their communities by Effective date, compliance dates, and limited to providing public notice or the using the average on-balance sheet value transition. The agencies proposed an public file through physical means. of many qualifying loans and effective date of the first day of the first Instead, banks would have had the investments. The agency also calendar quarter that would have begun option to provide public notice or the emphasizes that, while it is maintaining at least 60 days after the issuance of the public file on their websites. The the expectation of a general five-year final rule. The proposal also included a preamble to the proposal indicated that evaluation cycle for banks rated transition period, implemented through if a community member who requested outstanding, the final rule requires varying compliance dates following the CRA-related information did not have banks to report data annually, including effective date, to allow banks to revise access to the internet, banks could offer banks with outstanding ratings that their systems for collecting, to print out the information at that would be evaluated every five years. In maintaining, and reporting data and to person’s expense, instead of copying the addition, the agency will continue to establish processes for calculating their information from the physical file. make available all banks’ annual CRA qualifying activities values and CRA One community group opposed the Disclosure Statements, which include evaluation measures and determining proposal of allowing banks to charge a information about the aggregate their presumptive ratings. Specifically, fee for physical copies of the public file, quantified dollar value of the bank’s the proposal provided a bank other than which is permitted by the current qualifying activities by category and the a small bank with: (1) One year after the rule.181 The final rule, like the proposal, number of retail loans in each county, rule’s effective date to comply with the allows banks to make the public file by type. The annually-reported rule’s assessment area, data collection, available to the public through any information will allow the agency and and recordkeeping requirements; and (2) means. The agency encourages banks to interested stakeholders to track and two years after the rule’s effective date make the public file as accessible as monitor bank performance. The agency to comply with the rule’s reporting possible and consider not charging fees does not plan to implement the requirements. The proposal provided small banks with one year after the for physical copies. commenters’ recommendation that Evaluation periods and issuance of banks with satisfactory performance rule’s effective date to comply with the CRA PEs. The proposal did not specify have four-year evaluation periods rule’s assessment area and applicable the length of CRA evaluation periods. because it expects all banks should data collection and recordkeeping However, the proposal stated that banks strive to achieve satisfactory requirements. No bank had to comply that received an outstanding CRA performance and the five-year with the remaining requirements of the assigned rating would have been subject evaluation cycle was meant to recognize rule—and thus be evaluated under the to a five-year CRA evaluation period, exceptional performance. new framework—until it completed its evaluation period that concluded unless the data reported indicates that One industry commenter immediately after the reporting an earlier evaluation is warranted. Some recommended that the final rule define requirements compliance date in the commenters suggested that the final rule the term evaluation period. The agency proposal, including any extensions specify the length of evaluation periods. believes that the preamble to the proposal and this final rule make clear approved by its relevant agencies. The agency believes that the current The proposal provided small banks regulatory framework, in which the that the term refers to the multiyear period over which a bank’s CRA that opted into the general performance regulation does not specify the length of standards, as of the final rule’s effective an evaluation period, continues to be performance is evaluated and assigned a rating. The final rule does not include date, and those banks that no longer appropriate and the agency will meet the definition of a small bank with: continue its current practice of it as a defined term. Two community groups and two (1) Two years to comply with the rule’s publishing evaluation schedules to industry commenters recommended that assessment area, data collection, and provide sufficient clarity and flexibility. the agency issue CRA PEs within a pre- recordkeeping requirements, after the Although the agency is finalizing the determined amount of time from the rule’s effective date or after the bank no rule without specifying the length of an end of the CRA evaluation. The agency longer met the definition of a small evaluation period, the agency expects intends to issue CRA PEs in as timely bank; and (2) three years to comply with that, in general, evaluation periods will a manner as possible. Because a variety the rule’s reporting requirements, after be between three years and five years in of factors can cause some CRA PEs to the rule’s effective date or after the bank length. require more time to complete than no longer met the definition of a small expected, including the consideration of bank. However, small banks that chose 180 HMDA data can be accessed here: https:// www.consumerfinance.gov/data-research/hmda/ discriminatory and other illegal credit to opt into the general performance historic-data/. practices, the agency is not adopting a standards after the effective date would 181 12 CFR 25.43(d), 195.43(d). time limit in the final rule. The agency have received: (1) One year after the
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bank opted in to comply with the rule’s with the following sections of the final tests, procedures, processes, definitions, assessment area, data collection, and rule by January 1, 2023: (1) Qualifying or another element of the current recordkeeping requirements; and (2) two activities quantification; (2) qualifying framework; or (2) the new framework in years after the bank opts in to comply activities value; (3) assessment area; (4) the final rule. The final rule also with the rule’s reporting requirements. performance standards, in general; (5) provides that the alternative compliance Several industry commenters CRA evaluation measure; (6) retail provisions containing the current suggested that the implementation lending distribution tests; (7) general framework will expire on January 1, period for the new regulatory framework performance standards and ratings; (8) 2024, at which point all banks must be would have been too short, specifically data collection; (9) recordkeeping; and in compliance with all provisions of the with respect to the data collection, (10) reporting. final rule. recordkeeping, and reporting • Banks subject to the wholesale or With respect to the possible effect of provisions. They offered a variety of limited purpose bank performance COVID–19 on a bank’s ability to meet reasons to support this view, including standards must comply with the the compliance dates, the OCC notes the COVID–19 pandemic. One industry following sections by January 1, 2023: that the economic challenges commenter also suggested providing (1) Assessment area; (2) wholesale or experienced in LMI communities as a additional time to comply for banks that limited purpose bank performance result of the COVID–19 pandemic make are required to delineate new deposit- standards; (3) data collection for it critical that implementation of this based assessment areas. Another wholesale and limited purpose banks rule not be delayed so that the benefits industry commenter recommended that evaluated under the wholesale or the agencies implement a ratings floor to of the new rule can reach these limited purpose bank performance communities as soon as possible. protect against downgrades during the standards; (4) recordkeeping; and (5) Industry commenters specifically transition to the new framework. Many reporting for banks evaluated under the discussed the compliance dates in the other commenters asked for additional general performance standards, the context of the burden of the proposal’s clarification on how the phased in wholesale or limited purpose bank mandatory inclusion of consumer compliance dates would work. performance standards, or a strategic The agency has carefully considered lending, including the applicable data plan. these comments and understands that collection, recordkeeping, and reporting • Banks subject to the small and the cost and time frame associated with requirements. According to these intermediate bank performance complying with the final rule will vary commenters, consumer loan data is standards must comply with the from institution to institution. However, typically stored in multiple data following sections by January 1, 2024: considering that the final rule increased systems and the costs required for (1) Assessment area; (2) small and the small bank size threshold and compliance would discourage banks intermediate bank performance reintroduced the performance standards from offering these products. One standards; (3) retail domestic deposit applicable to intermediate banks and industry commenter suggested removing data collection for small and wholesale and limited purpose banks, all loans for which reporting processes intermediate banks evaluated under the the final rule includes more streamlined are not currently in place from the small and intermediate bank compliance dates based on the qualifying activities component of the performance standards; and (4) applicable performance standards. The CRA evaluation measure numerator to recordkeeping. final rule also includes a provision hasten compliance. The final rule also clarifies that addressing the transition from the The OCC recognizes the specific data current framework to the framework in during the period between October 1, 2020 and the compliance dates in the collection challenges presented by the final rule. consumer loans, particularly with Specifically, the final rule’s effective final rule applicable to the different respect to credit cards. Since the final date of October 1, 2020 is the first day types of banks, the provisions of the rule includes a more limited definition of the first calendar quarter that begins current regulation will remain in effect at least 60 days after the issuance of the as an alternative compliance option 183 of consumer loans that does not include final rule. The streamlined compliance to provide flexibility for banks that have credit cards, the final rule does not dates in the final rule allow banks 182 to a CRA evaluation during this period. provide extended compliance dates for determine individually when to The OCC retains the authority to ensure consumer lending. implement the various systems changes an orderly transition between the two Commenters also requested that the required to comply with this rule by the frameworks and will work with banks agencies provide examples of how the compliance dates in the final rule. that are impacted by the transition transition periods will apply to banks Accordingly: during this time. Accordingly, the OCC evaluated under the different • Banks subject to the general may permit banks to rely on: (1) The performance tests and standards. The performance standards must comply applicable performance standards and chart below provides examples: COMPLIANCE DATES
Qualifying activities quantification, qualifying Assessment area, data Bank type activities value, general collection, and record- Reporting requirements All other requirements performance standards, keeping requirements, as and presumptive ratings applicable
Banks other than small, intermediate, wholesale, January 1, 2023 ...... January 1, 2023 ...... January 1, 2023 ...... October 1, 2020. and limited purpose banks. Wholesale and limited purpose banks ...... Not Applicable ...... January 1, 2023 ...... January 1, 2023 ...... October 1, 2020.
182 The streamlined compliance dates also apply the definition of a small, intermediate, wholesale, 183 The final rule includes a new Appendix C for to banks that elect to opt in to the general or limited purpose bank. the alternative compliance provisions that sets forth performance standards and banks that cease to meet parts 25 and 195 in effect on the date prior to October 1, 2020.
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COMPLIANCE DATES—Continued
Qualifying activities quantification, qualifying Assessment area, data Bank type activities value, general collection, and record- Reporting requirements All other requirements performance standards, keeping requirements, as and presumptive ratings applicable
Small and intermediate banks ...... Not Applicable ...... January 1, 2024 ...... Not Applicable ...... October 1, 2020.
Special purpose banks. One or tailoring of requirements for minority bonds, private funds, securities, or other commenter requested confirmation that depository institutions, women’s permissible investments. As described banks currently designated as special depository institutions, or low-income below, the numerator of the CRA purpose banks would be exempt under credit unions, CDFIs, and other mission- evaluation measure considers the on- the final rule. Though the proposal did focused banks. The OCC has a statutory balance sheet value of qualifying not include the term special purpose obligation to assess bank performance. activities. If a financing is on-balance banks, its scope did not include certain Although the mission of these banks sheet as of the close of business of the exempt banks, which covers the same increases the likelihood that banks are last day of the month, it will count banks exempted as special purpose helping to meet the credit needs of their toward the bank’s CRA evaluation banks under of the current rule.184 The communities, the agency must still measure whether it is a new loan or a final rule maintains this exemption. evaluate and rate their performance. renewal. Effect of CRA performance on One industry commenter Severability. The agency intends for applications. The proposal included a recommended defining minority each section or provision of this final section on the effect of CRA depository institutions and women’s rule to be severable from the remainder performance on applications that was depository institutions to include banks of the rule. In addition, although the based on the current regulatory where a majority of the directors and a agency has addressed four categories of framework. The agency received several majority, or a significant percentage, of CRA-related issues in this rulemaking: comments on the use and effect of CRA senior officers are minorities or women. (1) Qualifying activities; (2) assessment ratings. Because these terms are defined in the areas; (3) measurement of CRA A few commenters asked about the CRA statute, the OCC is not altering the performance; and (4) data collection, effect of presumptive ratings on a definitions in the final rule. recordkeeping, and reporting, it could covered application. The agency intends Military banks. One industry have finalized any one or any to use assigned, not presumptive, commenter supported the proposal’s combination of the four categories on its ratings when evaluating an application inclusion of a definition of military own because each section and provision for which CRA performance is bank but recommended that it be within each section can stand and considered and notes that presumptive modified to include on-base branches of operate alone. The final rule includes ratings may be subject to upward or banks or to allow assessment areas to language providing that if any section or downward adjustments after consist only of the base on which a any provision of any section of the final considering performance context factors branch is located. The commenter also rule is held to be invalid or stayed for and evidence of discriminatory or other recommended a separate performance any reason, it is the OCC’s intention that illegal credit practices. The agency will, standards section for military banks. the remaining sections and provisions of however, evaluate all the facts and The OCC believes that the general the final rule shall continue in effect. circumstances of each application and performance standards are sufficiently Conforming, clarifying, and technical use all available information to inform flexible so that separate performance changes. Other than the changes its judgement and decision on the standards for military banks are not discussed in this section and the statutory factors. necessary. They will be evaluated like sections above and conforming, Commenters also offered suggestions other banks with similar levels of retail clarifying, and technical changes, the (1) on the impact of CRA ratings including domestic deposits, but, as indicated in authority, purposes, and scope not allowing negative community group the proposal and the final rule, their provisions; (2) the effect of CRA comments to delay mergers or assessment areas will consist of the performance on applications; and (3) the acquisitions of a bank rated satisfactory entire United States. They will only be definitions in are adopted as proposed. or outstanding on its most recent CRA evaluated under the bank performance evaluation. The agency intends to standards, not the assessment area F. Miscellaneous follow its applicable guidance on the performance standards. Thus, the Prohibition against the use of impact of CRA ratings on licensing agency adopts the provisions related to interstate branches primarily for deposit applications.185 Accordingly, the agency military banks as proposed. production. The agency is adopting the is adopting these provisions as Financings and renewals. One provisions on the prohibition against proposed. commenter indicated that it was unclear use of interstate branches primarily for Minority depository institutions, whether the term financing includes deposit production (Subpart F) as women’s depository institutions, or low- renewals as customarily defined in proposed with conforming changes. income credit unions, CDFIs, and other commercial lending as opposed to the Integration of Parts 25 and 195. As mission-focused banks. A few current CRA regulation’s definition. The proposed, this final rule also commenters recommended exemptions commenter recommended using the Call consolidates the OCC’s national bank Report definition of financing and and federal savings association CRA 184 See 12 CFR 25.11(c)(3); 195.11(c)(2). recommended an expanded definition rules by applying Part 25 to savings 185 See e.g., OCC Bulletin 2017–51, Community of renewals to align with common associations and removing the current Reinvestment Act: Impact of CRA Ratings on OCC’s CRA rule for savings associations, Licensing Applications, (Nov. 8, 2017), available at banking usage. The final rule defines https://el.occ/news-issuances/bulletins/2017/ financing as permissible equity or debt 12 CFR 195. The OCC received no bulletin-2017-51.html. facilities, such as loans, lines of credit, comments on this consolidation.
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Mapping tools. One industry nongovernmental entities or persons with the OCC, at least three months commenter and one community group that are made in fulfillment of the CRA, prior to the proposed effective date of suggested that the agencies develop and require that those agreements be the designation. 12 CFR 25.15(b). mapping tools, such as a CRA map of made available to the public and the • Banks that are not small banks must the United States to identify potential appropriate federal banking agency.189 submit certain information for each CRA gaps or a map to identify gaps in Further, the regulations require parties assessment area and for the bank level assessment areas. The agency will to a covered agreement to file reports on the Performance Context Form. 12 consider developing these tools over with the appropriate federal banking CFR 25.16(c). time but is not adopting them as part of agency for the duration of the • A bank must submit a strategic plan the final rule. agreement. The agency emphasizes if the bank: (1) Would otherwise be Release of RFI data. On January 10, again the continued importance of evaluated under § 25.13 and does not 2020, the agency published an RFI complying with the Disclosure and maintain retail domestic deposits on- seeking four types of bank-specific data Reporting of CRA-Related Agreement balance sheet or (2) a bank not covered or information to assist in drafting a regulations to ensure public awareness under paragraph (b)(1) of this section final rule.186 Commenters argued that of the terms and conditions of covered may submit a strategic plan for the OCC was required to release the data agreements. approval. 12 CFR 25.18. and information the agency received in • A bank evaluated under the general response to the RFI to provide the VI. Regulatory Analysis performance standards in § 25.13 and a public with a meaningful opportunity to Paperwork Reduction Act of 1995 bank evaluated under a strategic plan under § 25.18, unless otherwise comment on the NPR. However, the RFI Certain provisions of the final rule determined in writing by the OCC, must included an express statement that the contain ‘‘collection of information’’ collect and maintain the information agency would treat any confidential requirements within the meaning of the required by 12 CFR 25.21 until commercial information submitted in Paperwork Reduction Act (PRA) of completion of the relevant CRA response to the RFI in accordance with 1995.190 In accordance with the evaluation. 12 CFR 25.21. relevant rules, guidance, and case requirements of the PRA, the OCC may 187 • A small or intermediate bank law. not conduct or sponsor, and a The OCC received a total of 67 evaluated under the small and respondent is not required to respond comments on the RFI. Of these, 61 intermediate bank performance to, an information collection unless it comments were not responsive to the standards under § 25.14 must collect displays a currently valid Office of information request and were posted to and maintain data on the value of each Management and Budget (OMB) control the RFI public docket. Because the retail domestic deposit account and the number. The OCC reviewed the final remaining six comments, which were physical address of each depositor. 12 rule and determined that it revises responsive, contained confidential CFR 25.22. certain information collection commercial information, the OCC is not • A wholesale or limited purpose requirements previously cleared by making them public. Because of the bank evaluated under the wholesale and OMB under OMB Control No. 1557– limited number of responses to the RFI, limited purpose performance standards 0160. The OCC has submitted the the agency did not rely on any RFI data in § 25.15 must collect and maintain revised information collection to OMB in formulating the final rule. As noted qualifying community development for review under section 3507(d) of the above, the agency will be issuing loan, community development PRA (44 U.S.C. 3507(d)) and section another rulemaking to set the investment, and community 1320.11 of the OMB’s implementing benchmarks for the objective evaluation development service and retail domestic regulations (5 CFR 1320). OMB filed a measures. deposit data until the completion of the comment in response to the OCC’s CRA sunshine requirements. In relevant CRA evaluation. 12 CFR 25.23. submission requesting that the OCC addition to the proposed data collection, • Banks must keep the data collected resubmit it at the final rule stage. recordkeeping, and reporting provisions under § 25.21 through § 25.23 in contained in this proposal, the agencies Current Actions machine readable form (as prescribed by noted that Congress required the Under the final rule: the OCC) until the completion of their agencies to issue rules implementing the • next CRA evaluation. 12 CFR 25.25. Interested parties may request that • CRA Sunshine Requirements as part of the OCC confirm that an activity is a Banks evaluated under the general the Gramm-Leach-Bliley Act of 1999.188 qualifying activity by submitting a performance standards in § 25.13 and The agency’s Disclosure and Reporting complete Qualifying Activity banks evaluated under a strategic plan of CRA-Related Agreements regulations Confirmation Request Form. 12 CFR under § 25.18, unless otherwise define and address written agreements 25.05(c)(1). determined in writing by the OCC, must between financial institutions and • Banks must request that the OCC report the information required by 12 confirm that an area is a CRA credit CFR 25.26. 12 CFR 25.26. 186 • See 85 FR 1285 (Jan. 10, 2020). Specifically, desert before receiving the CRA credit Banks must maintain a public file the RFI sought data or information on: (1) Retail that includes all written comments and domestic deposit activities; (2) qualifying activities; desert multiplier in an evaluation (3) retail loans originated and sold within 90 days; period. 12 CFR 25.06(b), (c)(1). responses; a copy of the public section and (4) other retail loan. • A bank must delineate one or more of the bank’s most recent CRA 187 See, e.g., 12 CFR 4.16; Food Marketing assessment areas within which the OCC performance evaluation; a list of the Institute v. Argus Leader Media, 139 S. Ct. 2356, evaluates the bank’s record of helping to bank’s branches, their street addresses, 2363 (2019); and Step-by-Step Guide for and census tracts; a list of the branches Determining if Commercial or Financial meet the credit needs of its community. Information Obtained from a Person is Confidential 12 CFR 25.09. opened or closed, their street addresses, Under Exemption 4 of the FOIA (U.S. Department • To receive a designation as a and geographies; a list of services of Justice, Oct. 7, 2019), available at https:// wholesale or limited purpose bank, a offered; a map of each assessment area; www.justice.gov/oip/step-step-guide-determining-if- and any other information the bank commercial-or-financial-information-obtained- bank must file a request, in writing, person-confidential. chooses. Banks with strategic plans 188 See 12 U.S.C. 1831y; 12 CFR parts 35, 207, 189 See 12 CFR part 35. must include a copy of the plan. Banks 346. 190 44 U.S.C. 3501–3521. with less than satisfactory ratings must
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include a description of their current issuing this final rule to strengthen and certainty in evaluating banks’ CRA efforts to improve their performance in modernize implementation of the CRA. performance, which are essential for helping to meet the credit needs of their During the past 25 years, technology banks to achieve the intent and purpose entire community. The banks must and the expansion of interstate banking of the statute: To help meet the credit update the description quarterly. Banks have transformed the financial services needs of their communities, consistent must make all of this information industry, how banks deliver their with their safe and sound operations. services, and how customers choose to available to the public. This information B. Significant Issues Raised by Public bank. These changes affect banks of all must be current as of April 1 of each Comments on IRFA year. 12 CFR 25.28. sizes and are most evident in banks that OCC Title of Information Collection: have a limited physical presence or rely The OCC received comments from the Community Reinvestment Act. heavily on technology to deliver their Office of Advocacy of the U.S. Small Frequency: On occasion. products and services. As banking has Business Administration (Advocacy) Affected Public: Businesses or other evolved, banks’ communities have specifically addressing the OCC’s IRFA for-profit. evolved beyond those that are solely included in the proposed rule pursuant. Estimated number of respondents: identifiable by the delineated areas Advocacy asserted that there may be 285. surrounding banks’ physical locations. less burdensome alternatives that the Total estimated annual burden: At the same time, communities’ needs OCC should consider under its 603,260 hours. for community development (CD) obligation to comply with the RFA. Comments continue to be invited on: lending and investment have evolved, Advocacy further stated that requiring a a. Whether the collections of and the OCC has gained a greater small bank to incur the same regulatory information are necessary for the proper understanding of those needs. The burden as a much larger bank is performance of the OCC’s functions, current CRA regulatory framework has inconsistent with the RFA. The OCC including whether the information has not kept pace with the transformation of notes that the final rule imposes practical utility; banking and has had the unintended different requirements on small and b. The accuracy or the estimate of the consequence of incentivizing banks to intermediate banks than on larger banks. burden of the information collections, limit some of their CD loans and Specifically, the final rule provides that including the validity of the investments. small banks, defined as having assets of methodology and assumptions used; Furthermore, the current CRA rules $600 million or less, and intermediate c. Ways to enhance the quality, have created uncertainty for banks about banks, defined as having more assets utility, and clarity of the information to which activities qualify for CRA credit than a small bank but less than $2.5 be collected; and how much those activities billion in assets, may operate under the d. Ways to minimize the burden of the contribute to a bank’s CRA rating. The current CRA small bank and information collections on respondents, current framework lacks consistent and intermediate small bank performance including through the use of automated objective evaluations and timely and standards, instead of the final rule’s collection techniques or other forms of transparent reporting for certain more complex general performance information technology; and activities, which inhibits stakeholders’ standards. These standards are more e. Estimates of capital or startup costs ability to understand how and to what tailored to the size of small and and costs of operation, maintenance, extent banks are meeting community intermediate banks and their lending and purchase of services to provide credit needs. practices. This approach differs from the information. The goals of this final rule are to make proposed rule, which only would have the CRA framework more objective, exempted banks with $500 million or Regulatory Flexibility Act transparent, consistent in application, less in assets from the general Section 3(a) of the Regulatory and reflective of changes in banking. performance standards. In addition, Flexibility Act (RFA), 5 U.S.C. 601 et Accomplishing these goals would make small and intermediate banks are seq, requires an agency to provide an the CRA framework a better tool to generally exempt from the enhanced initial regulatory flexibility analysis encourage banks to engage in more data collection, recordkeeping, and (IRFA) with a proposed rule and a final activities to serve the needs of their reporting requirements contained in the regulatory flexibility analysis (FRFA) communities, particularly in low- and final rule, with certain exceptions. The with a final rule if the agency cannot moderate-income communities and small and intermediate bank certify that the proposed or final rule other communities that have been exemptions from the general will not have a significant economic underserved under previous versions of performance standards and the data impact on a substantial number of small the CRA regulatory framework. collection, recordkeeping, and reporting entities.191 In accordance with the RFA, Specifically, this final rule: (1) requirements will reduce regulatory the OCC published an IRFA with the Clarifies and expands the bank lending, burden for small and intermediate CRA proposed rule. The OCC is now investment, and services (collectively, banks. Therefore, small and publishing a FRFA for the final rule.192 qualifying activities or CRA activities) of intermediate banks as defined in the national banks, Federal branches of a final rule will not be subject to the same A. Statement of the Need for and foreign bank, Federal savings regulatory burden under the final rule as Objectives of the Final Rule associations, and State savings larger banks. As discussed in the SUPPLEMENTARY associations that qualify for positive Advocacy also noted that the OCC INFORMATION section above, the OCC is CRA consideration; (2) updates how may have misstated the economic banks delineate the assessment areas in impact on OCC-regulated small banks. 191 Small Business Administration (SBA) which they are evaluated; (3) provides However, after reviewing the IRFA we regulations currently define small entities to additional methods for evaluating bank have determined that the numbers include banks and savings associations with total CRA performance in a consistent and presented in the IRFA accurately reflect assets of $600 million or less, and trust banks with objective manner; and (4) requires the OCC’s estimates. The IRFA focused total assets of $41.5 million or less. 13 CFR 121.201. 192 Further OCC analysis of the final rule under reporting that is timely and transparent. on where the impact was economically the RFA is available at: http://www.regulations.gov, Together, these changes will provide significant. Specifically, the OCC stated Docket ID OCC–2018–0008. greater regulatory consistency and that 782 small entities would be
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impacted, but only 72 small entities banks should not be punished because D. Small Entities Affected by the Final would have a significant economic their business plan requires them to sell Rule impact totaling $36 million, or $500,000 loans in less than 90 days. Advocacy Small Business Administration per bank or small entity. We believe the stated that allowing small banks to regulations define ‘‘small entities’’ for Advocacy mistakenly concluded that receive 100 percent credit regardless of banking purposes, as entities with total the $36 million cost estimate was for all the length of time they hold a loan may assets of $600 million or less.194 The 782 small entities. incentivize them to provide additional OCC currently supervises approximately C. OCC Response to Chief Counsel for service to their communities. The OCC 745 small entities. The final rule would Advocacy of the Small Business agrees that retail loan originations are an affect approximately 708 of those Administration important type of credit for certain entities.195 populations and communities of need. The OCC received comments on the Further, the OCC also did not intend to E. Projected Reporting, Recordkeeping, final rule from Advocacy in addition to favor one business model over another. and Other Compliance Requirements of those on the OCC’s IRFA as described In response to this and similar Final Rule above. Advocacy generally supported comments, the final rule provides that As described above, the final rule sets efforts to update and clarify the OCC’s retail loan originations sold at any time forth new qualifying activities criteria; CRA regulations but noted that the within 365 days of origination will assessment area delineation proposed rule would be unduly receive credit for 100 percent of the requirements; general performance burdensome for small banks. origination value. standards; and data collection, Advocacy’s specific comments and recordkeeping, and reporting Advocacy recommended that the OCC recommendations on the proposed rule requirements. The final rule generally and the OCC’s response to these exempt small banks from the applies to national banks, Federal comments follows below. requirement to collect and maintain branches of a foreign bank, Federal Advocacy stated that the proposed information on depositors necessary for savings associations, and State savings definition of ‘‘small bank’’ ($500 million the designation of deposit-based associations. However, the final rule in assets) is problematic and that unless assessment areas. The OCC disagrees exempts small banks, defined as having authorized by statute, a Federal agency with this recommendation. This assets of $600 million or less, and must use the U.S. Small Business collection requirement serves an intermediate banks, defined as having Administration’s (SBA) size standard important role in the CRA framework in more assets than a small bank but less unless a different standard is approved that it will enable the OCC to identify than $2.5 billion in assets, from the new by the SBA Administrator and the bank’s assessment areas and general performance standards and the published for notice and comment. The therefore to better assess a bank’s CRA related data collection, recordkeeping, OCC agrees that the definition should be performance. The final rule does, and reporting requirements, with the changed and adopts $600 million however, clarify that retail domestic exception of the retail domestic deposit threshold for small banks in the final deposits need to be geocoded to the data requirements. Instead, small banks rule. This threshold is now consistent county level, not the census tract level. may operate under the current CRA with the threshold for small banks Advocacy also stated that the small bank and intermediate small bank included in the SBA’s size standards proposed compliance dates are performance standards. These banks defining small business concerns.193 confusing and that small banks should also may opt in to the new performance Under the proposal, a small bank be allowed a consistent three years to standards, in which case they would be could elect to opt in to the general comply. To minimize this confusion, subject the data collection, performance standards six months prior the final rule adopts a more streamlined recordkeeping, and reporting to the start of its next evaluation period. transition period for most requirements requirements of the final rule or may However, it could elect no more than and generally increases the transition choose to be evaluated under an once to opt out of the general period for all banks. Specifically, small approved strategic plan. A summary of performance standards. Advocacy banks that do not opt-in to the general the new requirements contained in the suggested that there should not be a performance standards must comply final rule is set forth below. limit on the number of times that a with the rule’s assessment areas, data Assessment area delineation small bank can opt in and out of the collection, and recordkeeping requirements. Generally, a bank must general standard. The OCC believes that requirements, as applicable, by January delineate one or more assessment areas providing a small bank with the 1, 2024, which generally increases the within which the OCC evaluates the opportunity to opt in or out of the transition time for these requirements bank’s record of helping to meet the general performance standards one time by more than two years as compared to credit needs of its community. The final provides a small bank with adequate the proposal. Further, the final rule rule requires that a bank delineate flexibility to select the CRA framework clarifies that the new qualifying that best meets its needs. 194 activities criteria section, qualifying See 13 CFR 121.201 (Sector 52, Subsector Advocacy noted that the proposed 522). rule provides that a bank will only activities confirmation process, and 195 The OCC bases its estimate of the number of receive credit for 25 percent of the CRA desert confirmation process will be small entities on the SBA’s size thresholds for commercial banks and savings institutions, and origination value for loans sold within effective as of the effective date of the final rule. As a result, small and trust companies, which are $600 million and $41.5 90 days of origination. If a loan is held million, respectively. Consistent with the General for greater than 90 days, the bank intermediate banks will be able to Principles of Affiliation 13 CFR 121.103(a), we receives 100 percent credit. If the loan immediately take advantage of the count the assets of affiliated financial institutions clarity provided by these elements. when determining if we should classify an OCC- is held for less than 90 days, the bank supervised institution as a small entity. The OCC only receives 25 percent credit. Advocacy also provided several uses December 31, 2019, to determine size because Advocacy noted that this policy may be comments addressing the OCC’s initial a ‘‘financial institution’s assets are determined by regulatory flexibility analysis. These averaging the assets reported on its four quarterly unfair to small banks because small financial statements for the preceding year.’’ See comments are discussed in section B., footnote 8 of the U.S. Small Business 193 13 CFR 121.201. above. Administration’s Table of Size Standards.
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‘‘facility-based’’ assessment areas For banks choosing the option of a general performance standards or a encompassing each location where the strategic plan, the plan must include a strategic plan are required to maintain bank maintains a main office, a branch, delineation of the bank’s assessment and collect data on, among other things, or a non-branch deposit-taking facility areas(s) that meets the requirements of a description of the activity and a that is not an ATM as well as the § 25.09(a)–(d). In addition, the plan may statement certifying that the activity surrounding locations in which the include assessment area delineations would have received positive CRA bank has originated or purchased a that reflect its target geographic market consideration on the day prior to the substantial portion of its qualifying as defined by the bank in its strategic effective date of the final rule and is on retail loans. The geographic levels for plan. For a de novo bank, the a bank’s balance sheet on the effective delineation of facility-based assessment assessment area delineations should date of the final rule. These banks are areas could be any of the following: One include the projected location of its also required to collect and maintain a MSA; the whole nonmetropolitan area facilities, retail domestic deposit base, list of their assessment areas and within of a state; one or more whole, and lending activities. each assessment area, each county or contiguous MDs in a single MSA; or one Data collection, recordkeeping, and county-equivalent, MD, or more whole, contiguous counties or reporting requirements. For a bank nonmetropolitan area, MSA, or state. county-equivalents in one MSA or evaluated under the general This assessment area information must nonmetropolitan area. A facility-based performance standards or a strategic be reported annually. These banks must assessment area may not extend beyond plan, the final rule requires that the also collect and maintain information an MSA or state boundary unless the bank must collect and maintain, along on deposit-taking facilities. assessment area is located in a with supporting documentation, certain multistate MSA. If a bank serves a performance standards data, including For wholesale and limited purpose geographic area that extends beyond a the bank’s retail lending distribution banks, the final rule requires that these state boundary, the bank must delineate test ratios, the bank’s CRA evaluation banks collect and maintain information separate assessment areas for the areas measure and each assessment-area CRA about qualifying CD loans, investments, in each state. If a bank serves a evaluation measure, the bank’s CD and services, including, but not limited geographic area that extends beyond an minimum and each assessment-area to, the qualifying activity criteria that MSA boundary, the bank must delineate level CD minimum, and the bank’s the loan, investment, or service satisfies. separate assessment areas for the areas presumptive ratings. Banks are required These banks must also collect and inside and outside the MSA. The final to report the distribution test ratios and maintain data regarding assessment rule also provides that banks may, but presumptive ratings at the end of the areas and deposit-taking facilities. are not required to, delineate facilities- evaluation period, whereas, banks must Wholesale and limited purpose banks based assessment areas around deposit- report the CRA evaluation measure on must also provide the certification taking ATMs. an annual basis. For all qualifying retail described above for grandfathered In addition to requiring the and CD loans, CD investments, and CD qualifying activities. They also must delineation of facility-based assessment services, banks will be required to report on an annual basis the value of areas, the final rule also mandates that collect and maintain data including, but CD loans and investments as well as if a bank receives 50 percent or more of not limited to: The location of the loan, their assessment area data, among other its total retail domestic deposits from investment, or service; an indicator of things. areas outside of its facility-based whether a multiplier applies to the loan, Under the final rule, all banks must assessment areas, the bank must investment or service; and the collect and maintain the value of each delineate separate, non-overlapping qualifying activities criteria that the retail domestic deposit account and the ‘‘deposit-based’’ assessment areas. loan, investment, or service satisfies. On physical address of each depositor. These deposit-based assessment areas an annual basis, these banks must report Moreover, banks evaluated under the can be delineated at any geographical the quantified dollar value of qualifying general performance standards or a level where the bank receives five retail loans, CD loans, CD investments, strategic plan must annually report their percent or more of its retail domestic and CD services. The final rule also average quarterly retail domestic deposits, including a state; an MSA; the requires these banks to collect and deposits as of the close of business on whole nonmetropolitan area of a state; maintain data for originations of non- the last day of each quarter. These banks one or more whole, contiguous MDs in qualifying home mortgage loans, small as well as wholesale and limited a single MSA; the remaining geographic loans to businesses, small loans to purpose banks must also report area of a state, MSA, nonmetropolitan farms, and consumer loans made by the performance context information before area, or MD other than where it has a bank. Banks must annually report, the beginning of their CRA performance facility-based assessment area; or one or among other things, the total number of evaluation. more whole, contiguous counties or retail loans (home mortgage loans, small county-equivalents in one MSA or loans to a business, small loans to a All banks must keep the data they are nonmetropolitan area. With limited farm, or consumer loan) that are required to collect in a machine- exceptions, an assessment area originated during the annual period; the readable form as prescribed by the OCC. delineation can only change once per number of these loans that are As in the current rule, banks also must year and must not change within the originated in low- and moderate-income maintain a public file that includes, annual period used to determine an census tracts at the county or county among other things, written comments assessment area CRA evaluation equivalent level; the number of home related to assessment area needs, a copy measure. mortgage and consumer loans originated of the public section of the bank’s most Small banks, intermediate banks, to low- and moderate-income borrowers; recent performance evaluation, and for wholesale banks, and limited purpose and the number of small loans to banks approved to be assessed under a banks would follow the same proposed businesses and small loans to farms strategic plan, a copy of that plan. rules on assessment area delineation as originated to CRA-eligible businesses Finally, as in the current rule, banks other banks, but military banks would and farms, respectively. must make available to the public a have the entire United States and its For grandfathered qualifying notice explaining to customers that they territories as their assessment area. activities, banks evaluated under the are entitled to certain information.
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F. Description of Steps Taken To intermediate bank performance intermediate small banks to transition to Minimize the Significant Economic standards will still be able to engage in a new framework. The final rule Impact on Small Entities and CD activities and these activities will be therefore reintroduces the concept of Alternatives Considered examined by the OCC in CRA intermediate small bank (renamed As discussed below and in the examinations. The final rule’s approach ‘‘intermediate bank’’), defined as a bank SUPPPLEMENTAL INFORMATION section, the provides additional flexibility to, and with assets of greater than a small bank OCC has sought to incorporate minimizes regulatory burden on, but $2.5 billion or under, and applies flexibility into the final rule and lessen smaller institutions while at the same the current intermediate small bank burden and complexity for smaller time encourages small banks to conduct performance standards to these banking entities wherever possible, more CRA qualifying activities. intermediate banks. As a result, the OCC The final rule also allows small and consistent with the goals of the CRA, finds that 188 additional banks will be intermediate banks to opt into the safety and soundness, and other evaluated under the less complicated general performance standards or applicable law. performance standards of the current choose to be evaluated under an 196 Community Bank Exemption for rule. Further, this approach will approved strategic plan. These options Certain Requirements. The OCC eliminate the transition cost and burden allow small and intermediate banks to recognizes that, in general, community that would have been imposed on these choose the performance standards that banks operate under different business intermediate banks that would have best fit their needs and objectives. Some plans and with more limited resources been subject to the general performance commenters supported limiting the and staffing levels than larger banks. standards under the proposed rule. number of times a small bank that opts Therefore, the final rule allows small Definition of ‘‘small bank’’ and in to the general performance standards and intermediate size banks to operate ‘‘intermediate bank.’’ As indicated can opt out again or even eliminating above, the current rule’s definition of under the current CRA small bank and the one-time opt out option. One intermediate small bank performance ‘‘small bank’’ is a bank with assets of commenter suggested that the OCC less than $1.305 billion and of standards, which are more tailored to should not limit the number of times their size and lending practices, instead ‘‘intermediate small bank’’ is a bank that a small bank can opt in and out of with assets of between $326 million and of the final rule’s more complex general the general standard. After considering performance standards. However, $1.305 billion, and both small banks these alternatives, OCC is retaining the and intermediate small banks comply community banks can take advantage of one-time opt out option as proposed in the qualifying activities criteria and the with performance standards more order to preserve some flexibility for tailored to their size. The proposed rule qualifying activities list in the final rule, community banks. Some commenters which provide greater regulatory defined ‘‘small bank’’ as a bank with stated that agencies should not require $500 million or less in assets and did certainty, objectivity, transparency, and that small banks opt in or opt out of the consistency for what qualifies for CRA. not include intermediate small banks. general performance standard six Some commenters recommended raising Small banks also follow the final rule’s months prior to the start of its next new assessment area delineation the proposal’s small bank threshold to evaluation period as provided in the the current small bank threshold of requirements, which update the existing proposal. The agency agrees that the requirements to reflect the modern $1.305 billion. Other commenters requirement to opt-in or opt-out at least opposed any increase in the small bank banking environment. The OCC notes six months before the start of its next that these new assessment area threshold so that more banks would be exam cycle is not needed and has governed by the general performance delineation requirements may not removed it from the final rule. increase the compliance burden as standard, which they found to be a Intermediate banks. The proposed better evaluation of CD activity. Still banks may be able to demonstrate that rule did not carryover the concept of more than 50 percent of their retail other commenters suggested various intermediate small banks. The current different thresholds, both higher and domestic deposits fall within their rule’s threshold for small banks is facility-based assessment area(s). The lower than $500 million. The OCC $1.305 billion. Banks with assets of considered these various threshold OCC believes that this approach in the between $326 million and $1.305 billion final rule will provide additional alternatives and has increased the asset are defined as intermediate small banks. threshold for small banks in the final flexibility for smaller banks without Under the current rule, small banks rule to $600 million or less, to be sacrificing the OCC’s goal of achieving with assets of under $326 million are adjusted annually for inflation. This transformational CRA reform that evaluated under a streamlined threshold better reflects the current state provides clarity and encourages banks assessment method focusing on retail of the industry and is now consistent to conduct more CRA qualifying lending. Intermediate small banks are with the threshold for small banks activities. evaluated under the same lending The OCC notes that some commenters included in the SBA’s size standards performance criteria as the small 197 opposed the small bank exemption, defining small business concerns. institutions, but also are evaluated on Some commenters advocated arguing that the small bank performance their community development including an intermediate small bank standards do not adequately evaluate activities. The proposed rule defined threshold in the final rule and raising it CD activity. These commenters instead ‘‘small bank’’ as a bank with $500 to a higher level, including $5 billion or asked the OCC to evaluate all banks, million or less in assets and did not $10 billion. As indicated above, the including small banks, under the include intermediate small banks. The OCC agrees that the final rule should general performance standards. The OCC has reevaluated the proposed rule’s include an exception for more smaller OCC disagrees with these commenters regulatory framework and agrees with banks. Therefore, the OCC has included and has rejected this alternative commenters that banks that are in the final rule a definition for approach because of the cost and considered intermediate small banks regulatory burden imposing the general under the current rule should not be 196 This number is based on data accessed from performance standards would have on required to comply with the final rule’s the OCC’s Financial Institution Data Retrieval community banks, as discussed above. general performance standards and that System (FINDRS) on May 14, 2020. Banks subject to the small bank and it would be especially burdensome for 197 13 CFR 121.201.
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intermediate bank, based on the current bank’s CRA performance. However, the required, section 205 of the Unfunded rule’s definition of intermediate small final rule clarifies that retail domestic Mandates Act also requires the OCC to bank, and has increased the asset size deposits need to be geocoded to the identify and consider a reasonable threshold for these banks from $1.305 county level, not the census tract level. number of regulatory alternatives before million in the current CRA rule to $2.5 The OCC does not think that reporting promulgating a rule. billion. This $2.5 billion threshold is of small bank and intermediate retail The OCC has determined that the intended to capture the same portion of domestic deposit data is necessary final rule is likely to result in the the industry as captured by the because the OCC will validate expenditure by the private sector of intermediate small bank threshold when assessment area delineations during $154 million or more. Therefore, the it was adopted in 2005. examinations. Therefore, the final rule OCC has prepared a budgetary impact As a result of these increases in asset does not impose any reporting analysis and identified and considered size for small and intermediate banks, requirements on banks evaluated under alternative approaches. The full text of only banks with greater than $2.5 billion the small bank performance standards. the OCC’s analyses under the Unfunded in assets are subject to the more Compliance dates. The final rule Mandates Act is available at: http:// complex general performance standards, clarifies that the new qualifying www.regulations.gov, Docket ID OCC– unless a small or intermediate bank activities criteria section, the qualifying 2018–0008. elects to opt into the general activities confirmation process, and the performance standards. These threshold CRA desert conformation process will Congressional Review Act changes therefore increase the number be effective as of the effective date of the For purposes of the Congressional of banks that are exempt from the final rule. As a result, small banks will Review Act, the Office of Management general performance standards and the be able to immediately take advantage of and Budget (OMB) makes a data, reporting, and most of the the clarity provided by these elements. determination as to whether a final rule recordkeeping requirements. To minimize confusion with respect to constitutes a ‘‘major rule.’’ 198 If a rule The final rule provides that to meet other applicable requirements, the final is deemed a ‘‘major rule’’ by OMB, the the small bank and intermediate bank rule adopts a more streamlined Congressional Review Act generally threshold, the banks must have $600 compliance period that increases the provides that the rule may not take million or $2.5 billion, respectively, or transition time available. In general, effect until at least 60 days following its less in assets in four of the previous five banks subject to the general publication.199 calendar quarters. The OCC disagreed performance standards (banks over $2.5 The Congressional Review Act defines with a request by a commenter to use an billion in assets) must comply with all a ‘‘major rule’’ as any rule that the eight-quarter lookback instead, which sections of this rule, except those Administrator of the Office of the commenter stated would provide related to the new qualifying activities Information and Regulatory Affairs of adequate lead time to comply with the criteria or confirmation processes, by the OMB finds has resulted in or is general performance standards. The January 1, 2023, which generally likely to result in: (1) An annual effect OCC recognizes the importance of increases the compliance time for the on the economy of $100,000,000 or certainty regarding bank size category assessment area, data collection, and more; (2) a major increase in costs or and applicable CRA requirements but recordkeeping requirements by more prices for consumers, individual does not believe that allowing banks to than one year as compared to the industries, Federal, State, or local be above the next highest size threshold proposal. Small and intermediate banks government agencies, or geographic for two years before becoming subject to must comply with the rule’s assessment regions; or (3) significant adverse effects the applicable requirements is areas, data collection, and on competition, employment, necessary. The final rule does, however, recordkeeping requirements, as investment, productivity, innovation, or provide an intermediate bank that applicable, by January 1, 2024, which on the ability of United States-based ceases to meet the definition of an generally increases the compliance time enterprises to compete with foreign- intermediate bank two years to comply for these requirements by more than based enterprises in domestic and with the general performance standards- two. The final rule also provides export markets.200 related provisions of the final rule. The flexibility for banks to comply with the As required by the Congressional OCC believe this two-year period new provisions prior to these Review Act, the OCC will submit the provides an adequate transition period compliance dates. The OCC believes final rule and other appropriate reports for intermediate banks to implement the that these transition periods will to Congress and the Government general performance standards. provide small and intermediate banks Accountability Office for review. Data Collection, Recordkeeping and with adequate time to comply with the Reporting. Under the final rule, small rule without delaying the improvements Riegle Community Development and banks and intermediate banks that are the rule makes to CRA implementation. Regulatory Improvement Act of 1994 evaluated under the small bank and Unfunded Mandates Reform Act of 1995 Section 302(a) of the Riegle intermediate bank performance Community Development and standards, respectively, are generally Section 202 of the Unfunded Regulatory Improvement Act of 1994 exempt from the enhanced data Mandates Reform Act of 1995 requires that the OCC, in determining collection, recordkeeping, and reporting (Unfunded Mandates Act) (2 U.S.C. the effective date and administrative requirements contained in the final rule, 1532) requires that the OCC prepare a compliance requirements for new with the exception of the requirement to budgetary impact statement before regulations that impose additional collect and maintain information on promulgating a rule that includes any reporting, disclosure, or other retail domestic deposits, including the Federal mandate that may result in the requirements on insured depository physical address of the depositor. The expenditure by State, local, and Tribal institutions, considers, consistent with OCC declined to exempt small banks governments, in the aggregate, or by the principles of safety and soundness and from this collection requirement. private sector, of $100 million or more Depositor information will enable the (adjusted annually for inflation, 198 5 U.S.C. 801 et seq. OCC to identify the bank’s assessment currently $154 million) in any one year. 199 5 U.S.C. 801(a)(3). areas and therefore to better assess a If a budgetary impact statement is 200 5 U.S.C. 804(2).
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the public interest, any administrative before such time.205 The October 1, 25.15 Wholesale and limited purpose bank burdens that such regulations would 2020, effective date of this final rule performance standards. place on depository institutions, meets both the APA and RCDRIA 25.16 Consideration of performance including small depository institutions, effective date requirements, as it will context. and customers of depository take effect at least 30 days after its 25.17 Discriminatory and other illegal credit practices. institutions, as well as the benefits of publication date of June 5, 2020 and on 201 25.18 Strategic plan. such regulations. The OCC has the first day of a calendar quarter 25.19 Assigned ratings. considered the changes made by this following publication, October 1, 2020. 25.20 State/multistate metropolitan final rule and believe that the effective List of Subjects statistical area assigned rating. date of October 1, 2020, along with the transition periods included in the final 12 CFR Part 25 Subpart E—Data Collection, Recordkeeping, and Reporting rule and described above, will provide Community development, Credit, national banks, State banks, Federal 25.21 Data collection for banks evaluated Investments, National banks, Reporting under the general performance standards branches of a foreign bank, Federal and recordkeeping requirements, savings associations, and State savings in § 25.13 or a strategic plan under Savings associations. § 25.18. associations with adequate time to 25.22 Retail domestic deposit data comply with the rule’s requirements. 12 CFR Part 195 collection for small and intermediate The OCC also has considered the Banks, Banking, Community banks evaluated under the small and administrative burden of the final rule’s development, Credit, Investments, intermediate bank performance administrative compliance requirements Reporting and recordkeeping standards in § 25.14. and addressed them by exempting small requirements. 25.23 Data collection for wholesale and banks, defined as having assets of $600 limited purpose banks evaluated under For the reasons discussed in the million or less, and intermediate banks, the wholesale and limited purpose bank preamble, and under the authority of 12 defined as having more assets than a performance standards in § 25.15. U.S.C. 93a, the Office of the Comptroller small bank but less than $2.5 billion in 25.24 Activity location. of the Currency amends 12 CFR part 25 assets, from the new general 25.25 Recordkeeping. and removes part 195 as follows: 25.26 Reporting for banks evaluated under performance standards and the data the general performance standards in collection, recordkeeping, and recording PART 25—COMMUNITY § 25.13, the wholesale and limited requirements, with a few exceptions. In REINVESTMENT ACT AND purpose bank performance standards in addition, as discussed above, the OCC INTERSTATE DEPOSIT PRODUCTION § 25.15, or a strategic plan under § 25.18. has addressed the administrative REGULATIONS 25.27 Public disclosures. burdens in the final rule by including 25.28 Content and availability of public file. transition periods for compliance with ■ 1. The authority citation for part 25 is 25.29 Availability of planned evaluation the rule of between more than two to revised to read as follows: schedule. 25.30 Public notice by banks. four years, depending on the size of the Authority: 12 U.S.C. 21, 22, 26, 27, 30, 36, bank, among other things. Further 93a, 161, 215, 215a, 481, 1462a, 1463, 1464, Subpart A—General discussion of the consideration by the 1814, 1816, 1828(c), 1835a, 2901 through OCC of these administrative compliance 2908, 3101 through 3111, and 5412(b)(2)(B). § 25.01 Authority, purposes, scope, and requirements is found in other sections severability. ■ 2. Revise subparts A through E and of the final rule’s SUPPLEMENTARY add subpart D to read as follows: (a) Authority. The authority for this INFORMATION section. Subpart A—General part is 12 U.S.C. 21, 22, 26, 27, 30, 36, Effective Date 93a, 161, 215, 215a, 481, 1462a, 1463, Sec. 1464, 1814, 1816, 1828(c), 1835a, 2901 The APA 202 requires that a 25.01 Authority, purposes, scope, and substantive rule must be published not severability. through 2907, and 3101 through 3111. less than 30 days before its effective 25.02 Effect of CRA performance on (b) Purposes. In enacting the date, unless, among other things, the applications. Community Reinvestment Act (CRA), rule grants or recognizes an exemption 25.03 Definitions. Congress required each appropriate or relieves a restriction.203 Section Subpart B—Qualifying Activities Federal financial supervisory agency to 302(b) of the Riegle Community 25.04 Qualifying activities criteria. assess an institution’s record of meeting Development and Regulatory 25.05 Qualifying activities confirmation the credit needs of its entire community, Improvement Act of 1994 (RCDRIA) and illustrative list. including low- and moderate-income requires that regulations issued by a 25.06 CRA desert confirmation. communities, consistent with the safe Federal banking agency 204 imposing 25.07 Qualifying activities quantification. and sound operation of such institution, additional reporting, disclosure, or other 25.08 Qualifying activities value. and take that record into account in its requirements on insured depository Subpart C—Assessment Area evaluation of an application for a institutions take effect on the first day 25.09 Assessment area. deposit facility by such institution. This of a calendar quarter that begins on or part is intended to carry out the after the date of publication of the final Subpart D—Performance Evaluations purposes of the CRA by: rule, unless, among other things, the 25.10 Performance standards and ratings, in (1) Establishing the framework and agency determines for good cause that general. criteria by which the Office of the the regulations should become effective 25.11 CRA evaluation measure. 25.12 Retail lending distribution tests. Comptroller of the Currency (OCC) 25.13 General performance standards and assesses a bank’s record of helping to 201 12 U.S.C. 4802(a). presumptive rating. meet the credit needs of its entire 202 Codified at 5 U.S.C. 551 et seq. 25.14 Small and intermediate bank community, including low- and 203 5 U.S.C. 553(d). performance standards. 204 For purposes of RCDRIA, ‘‘Federal banking moderate-income communities, agency’’ means the OCC, FDIC, and Board. See 12 consistent with the safe and sound U.S.C. 4801. 205 12 U.S.C. 4802(b). operation of the bank; and
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(2) Providing that the OCC takes that (d) Severability. Each section of this Affiliate has the meaning this term is record into account in considering part is severable from the other sections given in Regulation W, 12 CFR 223.2(a) certain applications. of this Part. If any section or any and (b), as of October 1, 2020 and (c) Scope—(1) General. This part provision of any section is held to be includes non-member banks. applies to all banks as defined in § 25.03 invalid or stayed for any reason, it is the Area median income means: except as provided in paragraphs (c)(2) OCC’s intention that the remaining (1) The median family income for the and (c)(3) of this section. sections and provisions of this part shall metropolitan statistical area, if a person (2) Federal branches and agencies—(i) continue in effect. or census tract is located in a This part applies to all insured Federal metropolitan statistical area, or for the branches and to any Federal branch that § 25.02 Effect of CRA performance on metropolitan division, if a person or is uninsured that results from an applications. census tract is located in a metropolitan acquisition described in section 5(a)(8) (a) CRA performance. Among other statistical area that has been subdivided of the International Banking Act of 1978 factors, the OCC takes into account the into metropolitan divisions; or (12 U.S.C. 3103(a)(8)). record of performance under the CRA of (2) The statewide nonmetropolitan (ii) Except as provided in paragraph each applicant bank in considering an median family income, if a person or (c)(2)(i) of this section, this part does not application for: census tract is located outside a apply to Federal branches that are (1) The establishment of a domestic metropolitan statistical area. uninsured, limited Federal branches, or branch or non-branch deposit-taking Assessment area means a geographic Federal agencies, as those terms are facility; area delineated in accordance with defined in part 28 of this chapter. (2) The relocation of the main office § 25.09. (3) Certain exempt banks. This part or a domestic branch; Automated teller machine (ATM) does not apply to banks that do not (3) Under the Bank Merger Act (12 means an automated banking facility perform commercial or retail banking U.S.C. 1828(c)), the merger or owned or operated by, or operated services by granting credit or offering consolidation with or the acquisition of exclusively for, the bank at which credit-related products or services to the assets or assumption of liabilities of an deposits are received, cash dispersed, or public in the ordinary course of insured depository institution; money lent. business, other than as incident to their (4) The conversion of an insured Average means the statistical mean. specialized operations and done on an depository institution to a national bank Bank means a national bank accommodation basis. These banks charter; (including a Federal branch as defined include banker’s banks, as defined in 12 (5) A savings association charter; and in part 28 of this chapter) or a savings U.S.C. 24 (Seventh), and banks that (6) Acquisitions subject to section association, the deposits of which are engage only in one or more of the 10(e) of the Home Owners’ Loan Act (12 insured by the FDIC pursuant to Chapter following activities: Providing cash U.S.C. 1467a(e)). 16 of Title 12, as described in 12 U.S.C. management-controlled disbursement (b) Charter application. An applicant 1813(c)(2), except as provided in services or serving as correspondent (other than an insured depository § 25.01(c). banks, trust companies, or clearing institution) for a national bank or a Branch means a staffed banking agents. Federal savings association charter must facility authorized as a branch, whether (4) Compliance dates—(i) Banks other submit with its application a shared or unshared, including, for than small, intermediate, wholesale, and description of how it will meet its CRA example, a mini-branch in a grocery limited purpose banks must comply objectives, if applicable. The OCC takes store or a branch operated in with §§ 25.07—25.13, 25.21, 25.25, and the description into account in conjunction with any other local 25.26 by January 1, 2023. considering the application and may business or non-profit organization. The (ii) Wholesale and limited purposes deny or condition approval on that term ‘‘branch’’ only includes a banks must comply with §§ 25.09, basis. ‘‘domestic branch’’ as that term is 25.23, 25.25, and 25.26 by January 1, (c) Interested parties. The OCC takes defined in section 3(o) of the Federal 2023. into account any views expressed by Deposit Insurance Act (FDIA) (12 U.S.C. (iii) Small and intermediate banks interested parties that are submitted in 1813(o)). must comply with §§ 25.09, 25.22, and accordance with the OCC’s procedures Call Report means Consolidated 25.25, as applicable, by January 1, 2024. set forth in part 5 of this chapter in Reports of Condition and Income as (5) Transition provision. To provide considering CRA performance in an filed under 12 U.S.C. 161. for an orderly transition, for any CRA application listed in paragraphs (a) and Commitment to lend means a legally performance evaluation conducted on or (b) of this section. binding commitment to extend credit, after October 1, 2020. and before the (d) Denial or conditional approval of such as a standby letter of credit. compliance date of this part that is application. A bank’s record of Community Development Financial applicable to the bank being evaluated, performance may be the basis for Institution has the same meaning as this the OCC may permit a bank to rely on denying or conditioning approval of an term is given in 12 U.S.C. 4702(5). the applicable performance standards application listed in paragraph (a) of Community development investment and tests, procedures, processes, this section. means a lawful investment, membership definitions or other element of: (e) Insured depository institution. For share, deposit, legally binding (i) Parts 25 or 195 of this chapter, as purposes of this section, the term commitment to invest that is reported applicable, in effect on the date prior to ‘‘insured depository institution’’ has the on the Call Report, Schedule RC–L, or October 1, 2020 (as set forth in appendix same meaning as this term is given in monetary or in-kind donation that meets C of this part); or 12 U.S.C. 1813. the criteria of § 25.04(c). (ii) Part 25 set forth in this final rule. Community development loan means (6) Expiration date. Parts 25 and 195 § 25.03 Definitions. a loan, line of credit, or commitment to of this chapter that are in effect on the For purposes of this part, the lend that meets the criteria of § 25.04(c). date prior to October 1, 2020 (as set following definitions apply: Community development services forth in appendix C of this part) expire Activity means a loan, investment, or means bank employee time spent on January 1, 2024. service by a bank. volunteering as a representative of the
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bank on activities that meet the criteria (1) Few banks have branches or non- (3) Item 1.d Loans secured by of § 25.04(c) or supporting activities that branch deposit-taking facilities; multifamily (5 or more) residential meet the criteria of § 25.04(c)(2), (11). A (2) There is less retail or community properties. bank employee may receive expense development lending than would be Income levels are: reimbursement for volunteer time expected based on demographic or other (1) Low-income, which means an related to the community development factors; or individual income that is less than 50 activity. (3) The area lacks community percent of the area median income or a Compensation means the median development organizations or median family income that is less than hourly compensation value (i.e., total infrastructure. 50 percent in a census tract. salaries and benefits divided by full- CRA-eligible business means a (2) Moderate-income, which means an time equivalent employees) for the business that has gross annual revenues individual income that is at least 50 banking industry based on aggregate of no greater than $1.6 million. The OCC percent and less than 80 percent of the Call Report data for median salaries and will adjust the $1.6 million threshold area median income, or a median family employee benefits from Schedule RI, for inflation every five years, and the income that is at least 50 percent and Item 7.a and the median number of full- adjustment to the threshold will be less than 80 percent in a census tract. time equivalent employees from made publicly available. (3) Middle-income, which means an Schedule RI Memorandum Item 5. CRA-eligible farm means a farm with individual income that is at least 80 Consumer loan means a loan reported gross annual revenues of no greater than percent and less than 120 percent of the on the Call Report, Schedule RC–C, $1.6 million. The OCC will adjust the area median income, or a median family Loans and Lease Financing Receivables, $1.6 million threshold for inflation income that is at least 80 percent and Part 1, Item 6, Loans to individuals for every five years, and the adjustment to less than 120 percent in a census tract. household, family, and other personal the threshold will be made publicly (4) Upper-income, which means an expenditures other than overdraft plans available. individual income that is 120 percent or that is a: Distressed area means a middle- more of the area median income, or a (1) Other revolving credit plan, which income census tract identified by the median family income that is 120 is an extension of credit to an individual OCC that meets one or more of the for household, family, and other percent or more in a census tract. following conditions: Indian country means an area that is personal expenditures arising from (1) An unemployment rate of at least revolving credit plans not accessed by (1) Covered by 18 U.S.C. 1151; or 1.5 times the national average; (2) A Tribal Census Tract, an credit cards; (2) A poverty rate of 20 percent or Oklahoma Tribal Statistical Area, a (2) Automobile loan, which is a more; or Tribal Designated Statistical Area, an consumer loan extended for the purpose (3) A population loss of 10 percent or Alaskan Native Village Statistical Area, of purchasing new and used passenger more between the previous and most or an American Indian Joint-Use Area, cars and other vehicles such as recent decennial census or a net as those terms are defined by the Census minivans, vans, sport-utility vehicles, migration loss of five percent or more Bureau. pickup trucks, and similar light trucks over the five-year period preceding the for personal use; and most recent census. In-kind donation means a (3) Other consumer loan, which is any Essential community facility means a contribution of goods, commodities, or other loan to an individual for public facility, including, but not other non-monetary resources. household, family, and other personal limited to, a school, library, park, Intermediate bank means a bank with expenditures (other than those that meet hospital or health care facility, and assets that exceed the small bank asset the definition of a ‘‘loan secured by real public safety facility. size threshold provided in the small estate’’ and other than those for Essential infrastructure means: bank definition, as adjusted, and that purchasing or carrying securities), (1) Public infrastructure, including, had assets of $2.5 billion or less in four including low-cost education loans, but not limited to, public roads, bridges, of the previous five calendar quarters; which is any private education loan, as tunnels; and the dollar figures in this definition shall defined in section 140(a)(8) of the Truth (2) Essential telecommunications be adjusted annually and published by in Lending Act (15 U.S.C. 1650(a)(8)) infrastructure, mass transit, water the OCC, based on the year-to-year (including a loan under a state or local supply and distribution, utilities supply change in the average of the Consumer education loan program), originated by and distribution, sewage treatment and Price Index for Urban Wage Earners and the bank for a student at an ‘‘institution collection, and industrial parks. Clerical Workers, not seasonally of higher education,’’ as that term is Family farm has the same meaning as adjusted, for each twelve-month period generally defined in sections 101 and the term is given by the Farm Service ending in November, with rounding to 102 of the Higher Education Act of 1965 Agency of the U.S. Department of the nearest $100,000. (20 U.S.C. 1001 and 1002) and the Agriculture in 7 CFR 761.2(b) as of the Limited purpose bank means a bank implementing regulations published by effective date of this rule. that offers only a narrow product line the U.S. Department of Education, with Financing means permissible equity (such as automobile loans) to a regional interest rates and fees no greater than or debt facilities, such as loans, lines of or broader market and for which a those of comparable education loans credit, bonds, private funds, securities, designation as a limited purpose bank is offered directly by the U.S. Department or other permissible investments. in effect, in accordance with § 25.15(b). of Education. Such rates and fees are Home mortgage loan means a loan Major retail lending product line specified in section 455 of the Higher reported on the Call Report, Schedule means a bank’s retail lending product Education Act of 1965 (20 U.S.C. RC–C, Loans and Lease Financing line that for the two years prior to the 1087e). Receivables, Part I, specifically: beginning of the evaluation period: CRA desert means an area that the (1) Item 1.a.(1) 1–4 family residential (1) Composed at least 15 percent of OCC has confirmed to be a CRA desert construction loans; the bank’s dollar volume of total retail under § 25.06 because it has significant (2) Item 1.c Loans secured by 1–4 loan originations and was the first or unmet community development or retail family residential properties (includes second largest retail lending product lending needs and where: closed-end and open-end loans); or line by dollar volume; and
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(2) At the bank’s option, composed at and communities, in accordance with Small loan to a business means a loan least 15 percent of the bank’s dollar § 25.04. reported on the Call Report, Schedule volume of total retail loan originations. Qualifying loan means a retail loan RC–C, Loans and Lease Financing Low-income credit union has the same that meets the criteria in § 25.04(b) or a Receivables, Part 1, Item 1.e, Secured by meaning as this term is given in 12 CFR community development loan that nonfarm nonresidential properties, or 701.34. meets the criteria in § 25.04(c). Item 4, Commercial and industrial Metropolitan division has the same Retail domestic deposit means a loans, and of no greater than $1.6 meaning as published in the Office of ‘‘deposit’’ as defined in section 3(l) of million. The OCC will adjust the $1.6 Management and Budget’s Standards for the FDIA (12 U.S.C. 1813(l)) and held in million threshold for inflation every five Delineating Metropolitan and the United States that is: years, and the adjustment to the Micropolitan Statistical Areas or (1) Reported on Schedule RC–E of the threshold will be made publicly successor publication thereof. Call Report, as item 1 or item 3; or available. Metropolitan statistical area has the (2) A non-brokered ‘‘reciprocal Small loan to a farm means a loan same meaning as published in the Office deposit’’ as defined in 12 U.S.C. reported on the Call Report, Schedule of Management and Budget’s Standards 1831(f)(i)(2)(E) for the institution RC–C, Loans and Lease Financing for Delineating Metropolitan and sending the non-brokered ‘‘reciprocal Receivables, Part 1, Item 1.b, Secured by Micropolitan Statistical Areas or deposit’’ but retail domestic deposit farmland, or Item 3, Loans to finance successor publication thereof. does not mean: agricultural production and other loans Military bank means a bank whose (i) A deposit; to farmers, and of no greater than $1.6 (A) Obtained, directly or indirectly, business predominately consists of million. The OCC will adjust the $1.6 from or through the mediation or serving the needs of military personnel million threshold for inflation every five who serve or have served in the armed assistance of a ‘‘deposit broker’’ as defined in section 29 of the FDIA (12 years, and the adjustment to the forces (including the U.S. Army, Navy, threshold will be made publicly Marine Corp., Air Force, and Coast U.S.C. 1831f(g)); (B) Originated from an affiliated or available. Guard) or dependents of military non-affiliated broker-dealer sweep Underserved area means a middle- personnel. A bank whose business transaction; income census tract: predominantly consists of serving the (C) Held in a Health Savings Account (1) Identified by the OCC as meeting needs of military personnel or their established in accordance with 26 the criteria for population size, density, dependents means a bank whose most U.S.C. 223; and dispersion that indicate the area’s important customer group is military (D) Held in a prepaid card account population is sufficiently small, thin, personnel or their dependents. established in accordance with 12 CFR and distant from a population center Minority depository institution means 1005.1 et seq.; or that the census tract is likely to have a depository institution as defined in 12 (ii) A non-brokered reciprocal deposit difficulty financing the fixed costs of U.S.C. 2907(b)(1). as defined in 12 U.S.C. 1831(f)(i)(2)(E) meeting essential community needs. Monetary donation means a grant, for the institution receiving a non- The OCC will use as the basis for these monetary contribution, or monetary brokered ‘‘reciprocal deposit.’’ designations the ‘‘urban influence donation. Retail lending product line means: codes,’’ numbered ‘‘7,’’ ‘‘10,’’ ‘‘11,’’ and Non-branch deposit-taking facility (1) The home mortgage loan product ‘‘12,’’ maintained by the Economic means a non-branch banking facility line, which includes all home mortgage Research Service of the U.S. Department owned or operated by or operated loans; of Agriculture; or exclusively for the bank and available to (2) The small loan to a business (2) Identified by the OCC as: the general public, which is authorized product line, which includes all small (i) Not having a branch of any bank to take deposits and is located in any loans to businesses; within: state or territory of the United States of (3) The small loan to a farm product (A) 2 miles from the center of the America. line, which includes all small loans to census tract if it is an urban census Nonmetropolitan area means any area farms; tract, as defined by the Federal that is not located in a metropolitan (4) The other revolving credit plan Financial Institutions Examination statistical area. product line, which includes all Council Census data; Other tribal and native lands means consumer other revolving credit plans; (B) 5 miles from the center of the State Designated Tribal Statistical Areas, (5) An automobile loan product line, census tract if it is a mixed census tract, as defined by the Census Bureau, and which includes all automobile loans; or as defined by the Federal Financial Hawaiian Home Lands. (6) The other consumer loan product Institutions Examination Council Partially means 50 percent or less of line, which includes all other consumer Census data; the dollar value of the activity or of the loans. (C) 10 miles from the center of the individuals or census tracts served by Retail loan means a home mortgage census tract if it is a rural census tract, the activity. loan, small loan to a business, small as defined by the Federal Financial Primarily means: loan to a farm, or consumer loan. Institutions Examination Council (1) Greater than 50 percent of the Small bank means a bank that had Census data; or dollar value of the activity or of the assets of $600 million or less in four of (D) 5 miles from the center of the individuals or census tracts served by the previous five calendar quarters; the census tract if the census tract is an the activity; or dollar figures in this definition shall be island area, as defined by the Federal (2) The express, bona fide intent, adjusted annually and published by the Financial Institutions Examination purpose, or mandate of the activity as OCC, based on the year-to-year change Council Census data; and stated, for example in a prospectus, loan in the average of the Consumer Price (ii) Not having any branch within the proposal, or community action plan. Index for Urban Wage Earners and census tract. Qualifying activity means an activity Clerical Workers, not seasonally Wholesale bank means a bank that is that helps to meet the credit needs of a adjusted, for each twelve-month period not in the business of extending home bank’s entire community, including ending in November, with rounding to mortgage, small loans to businesses, low- and moderate-income individuals the nearest $100,000. small loans to farms, or consumer loans
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to retail customers, and for which a rents that do not and are not projected meet the size eligibility standards of the designation is in effect, in accordance at the time of the transaction to exceed Small Business Investment Company with § 25.15(b). 30 percent of 80 percent of the area program, as described in 13 CFR part Women’s depository institution means median income; 107; a depository institution as defined in 12 (B) That is partially or primarily (5) Essential community facilities that U.S.C. 2907(b)(2). inhabited by low- or moderate-income partially or primarily serve: individuals or families as demonstrated (i) Low- or moderate-income Subpart B—Qualifying Activities by an affordable housing set-aside individuals or families; or (ii) Low- or moderate-income census § 25.04 Qualifying activities criteria. required by a federal, state, local, or tribal government; or tracts, distressed areas, underserved (a) General—(1) A retail loan, a (C) That is undertaken in conjunction areas, disaster areas consistent with a community development loan, a with an explicit federal, state, local, or disaster recovery plan, or Indian community development investment, or tribal government affordable housing country or other tribal and native lands; a community development service that program for low- or moderate-income (6) Essential infrastructure that helps to meet the credit needs of a individuals or families; or partially or primarily serves: bank’s entire community, including (ii) Owner-occupied housing (i) Low- or moderate-income low- and moderate-income purchased, refinanced, or improved by individuals or families; or communities, is a qualifying activity if or on behalf of low- or moderate-income (ii) Low- or moderate-income census it meets the criteria in this section at the individuals or families, except for home tracts, distressed areas, underserved time the activity is originated, made, or mortgage loans provided directly to areas, disaster areas consistent with a conducted. individuals or families; disaster recovery plan, or Indian (2) Notwithstanding paragraph (a)(1) (2) Another bank’s community country or other tribal and native lands; of this section, a loan or investment that development loan, community (7) A family farm’s: was a qualifying activity and is development investment, or community (i) Purchase or lease of farm land, subsequently sold remains a qualifying development service; equipment, and other farm-related activity unless the OCC determined (3) Community support services inputs for the family farm’s use in prior to the sale that the activity is no which means activities, such as child operating the farm; longer a qualifying activity. care, education, workforce development (ii) Receipt of technical assistance and (3) Notwithstanding paragraphs (a)(1) and job training programs, health supportive services for the family farm’s and (a)(2) of this section, other than services, and housing services, that own production, such as shared space, home mortgage loans or consumer loans partially or primarily serve or assist technology, or administrative assistance provided to middle- or upper-income low- or moderate-income individuals or through an intermediary; or individuals in low- or moderate-income families; (iii) Sale and trade of family farm census tracts, an activity that would (4) Economic development, which products grown or produced by the have received positive consideration in means activities that provide financing family farm; a CRA performance evaluation on the for or support businesses or farms, (8) Federal, state, local, or tribal date prior to October 1, 2020 and is on including: government programs, projects, or a bank’s balance sheet on the effective (i) Activities that promote job creation initiatives that: date of this rule is a qualifying activity. or job retention partially or primarily for (i) Partially or primarily serve low- or (b) Retail loans. A home mortgage low- or moderate-income individuals; moderate-income individuals or loan, small loan to a business, small (ii) Federal, state, local, or tribal families; or loan to a farm, or consumer loan is a government programs, projects, or (ii) Are consistent with a bona fide qualifying activity if it is: initiatives that partially or primarily government revitalization, stabilization, (1) Provided to a: serve small businesses or small farms as or recovery plan for a low- or moderate- (i) Low- or moderate-income those terms are defined in the programs, income census tract; a distressed area; individual or family; projects, or initiatives; an underserved area; a disaster area; or (ii) CRA-eligible business; or (iii) Retaining existing, or attracting Indian country or other tribal and native (iii) CRA-eligible farm; new, businesses, farms, or residents to lands; (2) Located in Indian country or other low- or moderate-income census tracts, (9) Financial literacy programs or tribal and native lands; underserved areas, distressed areas, education or homebuyer counseling; (3) A small loan to a business located designated disaster areas consistent (10) Owner-occupied and rental in a low- or moderate-income census with a disaster recovery plan, or Indian housing development, construction, tract; or country or other tribal and native lands; rehabilitation, improvement, or (4) A small loan to a farm located in (iv) A Small Business Administration maintenance in Indian country or other a low- or moderate-income census tract. Certified Development Company, as that tribal and native lands; (c) Community development loans, term is defined in 13 CFR 120.10, a (11) Qualified opportunity funds, as community development investments, Small Business Investment Company, as defined in 26 U.S.C. 1400Z–2(d)(1), that and community development services. described in 13 CFR part 107, a New benefit low- or moderate-income A community development loan, Markets Venture Capital company, as qualified opportunity zones, as defined community development investment, or described in 13 CFR part 108, a in 26 U.S.C. 1400Z–1(a); or community development service is a qualified Community Development (12) Other activities and ventures qualifying activity if it provides Entity, as defined in 26 CFR 45D(c), or undertaken, including capital financing for or supports: a U.S. Department of Agriculture Rural investments and loan participations, by (1) Affordable housing, which means: Business Investment Company, as a bank in cooperation with a minority (i) Rental housing: defined in 7 CFR 4290.50; or depository institution, women’s (A) That is likely to be partially or (v) Technical assistance and depository institution, Community primarily inhabited by low- or supportive services, such as shared Development Financial Institution, or moderate-income individuals or space, technology, or administrative low-income credit union, if the activity families as demonstrated by median assistance for businesses or farms that helps to meet the credit needs of local
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communities in which these institutions paragraph (a) of this section on a kind donation is the fair market value of are chartered, including activities that periodic basis in response to requests the donation, as adjusted by paragraph indirectly help to meet community for confirmation described in paragraph (e) of this section. credit needs by promoting the (b) of this section, the OCC will publish (c) Monetary donation quantification. sustainability and profitability of those the qualifying activities list no less The quantified dollar value of a institutions and credit unions. frequently than every five years for monetary donation is the actual dollar notice and comment to determine value of the donation, as adjusted by § 25.05 Qualifying activities confirmation whether the list should change. If the paragraph (e) of this section. and illustrative list. OCC determines that a qualifying loan (d) Qualifying loan and other (a) Qualifying activities list. The OCC or community development investment community development investment maintains a publicly available no longer meets the criteria in § 25.04, quantification. The quantified dollar illustrative list at www.occ.gov of non- that loan or community development value of a qualifying loan or a exhaustive examples of qualifying investment will not be considered a community development investment activities that meet, and may include qualifying activity for any subsequent not included in paragraph (b) or (c) of activities that do not meet, the criteria purchasers. this section, is: in § 25.04. (1) Except for qualifying loans in (b) Confirmation of a qualifying § 25.06 CRA desert confirmation. paragraph (d)(2), the average of the activity. An interested party may request (a) CRA desert list. The OCC dollar value, as of the close of business that the OCC confirm that an activity maintains a publicly available on the last day of the month, of: meets the criteria in § 25.04 and is a illustrative list at www.occ.gov of areas (i) The outstanding balance of a loan qualifying activity in accordance with that were consistent with the definition or investment, as adjusted by paragraph paragraph (c) of this section. in § 25.03 at the time a bank requested (e) of this section; (1) When the OCC confirms that an confirmation of a CRA desert. (ii) Any legally binding commitment activity is consistent with the criteria in (b) Confirmation of a CRA desert. A to invest, to the extent not reflected in § 25.04, the OCC will notify the bank must request that the OCC confirm paragraph (d)(1)(i) of this section and as requestor, publish its decision, and may that an area is a CRA desert in adjusted by paragraph (e) of this section; add the activity to the list of activities accordance with paragraph (c) of this and that meet the qualifying activities section before receiving the CRA desert (iii) Any commitment to lend, to the criteria described in paragraph (a) of multiplier in § 25.08(b) in an evaluation extent not reflected in paragraph this section, incorporating any period, even if that area is on the CRA (d)(1)(ii) of this section and as adjusted conditions imposed, if applicable. desert list in paragraph (a) of this in paragraph (e) of this section; or (2) When the OCC determines that an section. (2) For qualifying retail loans sold activity is not consistent with the (1) When the OCC confirms that an within 365 days of origination, the criteria in § 25.04, the OCC will notify area is consistent with the definition of dollar value of the loan at origination. the requestor, publish its decision, and CRA desert in § 25.03, the OCC will (3) For community development may add this activity to the list of notify the requestor and may add this investment funds that are syndicated or activities that do not meet the qualifying area to the list of CRA deserts as sponsored by the bank for the purpose activities criteria described in § 25.04. described in paragraph (a) of this of obtaining financing from other (c) Process—(1) An interested party section. investors and support one or more may request that the OCC confirm that (2) When the OCC determines that an projects that are eligible for low-income an activity is a qualifying activity by area is not consistent with the definition housing tax credits or new markets tax submitting a complete Qualifying of CRA desert in § 25.03, the OCC will credits: Activity Confirmation Request Form notify the requestor. (i) The total dollar value of the fund available on www.occ.gov. (c) Process—(1) A bank may request in the year of origination; and (2) In responding to a confirmation that the OCC confirm that an area is a (ii) One half of the total dollar value request that an activity is consistent CRA desert by submitting a request to of the portion of the fund that is sold in with the criteria in § 25.04, the OCC will the OCC detailing why the area is the year that it is sold. consider: consistent with the definition of CRA (e) Portion of partially qualifying (i) The information on the Qualifying desert in § 25.03. activities. The quantified dollar value of Activity Confirmation Request Form; (2) In responding to a confirmation a partially qualifying activity is (ii) Whether the activity is consistent request that an activity is consistent calculated by multiplying the percentage with the safe and sound operation of the with the definition of CRA desert in of the activity that is qualifying by the bank; and § 25.03, the OCC will consider: full dollar value of the qualifying (iii) Any other information the OCC (i) The information provided by the activity quantified under paragraphs deems relevant. bank; and (a)—(d) of this section. (3) The OCC may impose conditions (ii) Any other information the OCC on its confirmation to ensure that an deems relevant. § 25.08 Qualifying activities value. activity is consistent with the criteria in (a) Bank’s qualifying activities value. § 25.04. § 25.07 Qualifying activities quantification. A bank evaluated under § 25.13 (4) Unless notified by the OCC that it (a) Community development service calculates its qualifying activities value is extending the confirmation period to quantification. The quantified dollar annually based on the quantified dollar 90 days, an activity is confirmed as a value of a community development value of all qualifying activities qualifying activity if the requestor is not service is the compensation multiplied originated, made, performed, or on the informed of an OCC objection within 60 by the total number of hours one or bank’s balance sheet during the year. days of submission of a complete more the employees spent performing The qualifying activities value equals Qualifying Activity Confirmation the service, as adjusted by paragraph (e) the sum, during a given annual period, Request Form. of this section. of: (d) Modifying the qualifying activities (b) In-kind donation quantification. (1) The quantified dollar value of list. In addition to updating the list in The quantified dollar value of an in- qualifying loans and community
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development investments originated, quantified dollar value of the qualifying or more of the facilities in paragraph made, or performed by the bank during activities in CRA deserts, except for (b)(1) of this section. the year or on the bank’s balance sheet activities quantified under § 25.07(d)(3), (3) A facility-based assessment area during the year, as adjusted in will be adjusted by multiplying the must be delineated to consist of: paragraph (b) of this section; and quantified dollar value by 2. (i) One whole metropolitan statistical (2) The aggregate: (4) Qualifying activities that receive a area (using the metropolitan statistical (i) Quantified dollar value of multiplier under paragraphs (b)(2) and area boundaries that were in effect as of community development services (b)(3) of this section may be eligible for January 1 of the calendar year in which conducted during the year, as adjusted a multiplier of up to 4 times their the delineation is made); in paragraph (b) of this section; quantified dollar value based on the (ii) The whole nonmetropolitan area (ii) Quantified dollar value of in-kind OCC’s determination of the activity’s of a state; donations made during the year, as responsiveness, innovativeness, or (iii) One or more whole, contiguous adjusted in paragraph (b) of this section; complexity. metropolitan divisions in a single metropolitan statistical area (using the and (c) Assessment area qualifying (iii) Quantified dollar value of metropolitan division boundaries that activities value. A bank evaluated under monetary donations made during the were in effect as of January 1 of the § 25.13 calculates its assessment area year, as adjusted in paragraph (b) of this calendar year in which the delineation qualifying activities value for each section. is made); or (b) Multipliers—(1) To be eligible for assessment area by using the process (iv) One or more whole, contiguous the multipliers in paragraphs (b)(2) and described in paragraph (a) of this counties or county equivalents in a (b)(3) of this section, the quantified section for qualifying activities located single metropolitan statistical area or dollar value of a bank’s current in the assessment area and originated, nonmetropolitan area. evaluation period community made, or performed by the bank during (4) A bank may delineate its facility- development loans, community the year or were on the bank’s balance based assessment area(s) in the smallest development investments, and sheet during the year. geographic area where it maintains a community development services must Subpart C—Assessment Area main office, branch, or non-branch be approximately equal to the quantified deposit-taking facility or may delineate dollar value of these activities § 25.09 Assessment area. a larger assessment area that includes considered in the bank’s prior (a) General. A bank must delineate these locations, as provided in evaluation period. The quantified dollar one or more assessment areas within paragraph (b)(3) of this section. value of qualifying activities originated, which the OCC evaluates the bank’s (5) A facility-based assessment area made, conducted or purchased by a record of helping to meet the credit may not extend beyond a metropolitan bank during the evaluation period after needs of its community. The OCC statistical area or state boundary unless this requirement is met will be adjusted reviews the delineation for compliance the assessment area is located in a using the multipliers in paragraphs with the requirements of this section. multistate metropolitan statistical area. (b)(2)–(b)(3) of this section, as Unless pursuant to an approved If a bank serves a geographic area that applicable. application covered under § 25.02(a)(3) extends beyond a state boundary, the (2) When calculating the bank’s for a merger or consolidation with an bank must delineate separate qualifying activity value or an insured depository institution, an assessment areas for the areas in each assessment area qualifying activities assessment area delineation can only state. If a bank serves a geographic area value, the quantified dollar value of the change once a year and must not change that extends beyond a metropolitan following qualifying activities, except within the annual period used to statistical area boundary, the bank must for activities quantified under determine an assessment area CRA delineate separate assessment areas for § 25.07(d)(3), will be adjusted by evaluation measure under § 25.11(c). the areas inside and outside the multiplying the quantified dollar value metropolitan statistical area. (b) Facility-based assessment by 2. (c) Deposit-based assessment (i) Activities provided to or that area(s)—(1) A bank must delineate an area(s)—(1) A bank that receives 50 support minority depository assessment area encompassing each percent or more of its retail domestic institutions, women’s depository location where the bank maintains a deposits from geographic areas outside institutions, Community Development main office, a branch, or a non-branch of its facility-based assessment areas Financial Institutions, and low-income deposit-taking facility that is not an must delineate separate, non- credit unions, except activities related ATM as well as the surrounding overlapping assessment areas where it to mortgage-backed securities; locations in which the bank has receives 5 percent or more of its retail (ii) Other community development originated or purchased a substantial domestic deposits. investments, except community portion of its qualifying retail loans. (2) A deposit-based assessment area development investments in mortgage- Assessment areas delineated under this must be delineated to consist of: backed securities and municipal bonds; paragraph may contain one or more of (i) One whole state; (iii) Other community development these facilities and may also contain one (ii) One whole metropolitan statistical services; or more deposit-taking ATMs. area (using the metropolitan statistical (iv) Other affordable housing-related (2) A bank may delineate an area boundaries that were in effect as of community development loans; and assessment area encompassing locations January 1 of the calendar year in which (v) Retail loans generated by branches where it maintains a deposit-taking the delineation is made); in low- and moderate-income census ATM as well as the surrounding (iii) The whole nonmetropolitan area tracts. locations in which the bank has of a state; (3) In addition to any multiplier under originated or purchased a substantial (iv) One or more whole, contiguous paragraph (b)(2) of this section, when portion of its qualifying retail loans. metropolitan divisions in a single calculating the bank’s qualifying Assessment areas delineated under this metropolitan statistical area (using the activities value or an assessment area paragraph may contain one or more of metropolitan division boundaries that qualifying activities value, the these facilities and may also contain one were in effect as of January 1 of the
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calendar year in which the delineation (2) Small bank and intermediate bank purpose bank that opts out from the is made); performance standards—(i) The OCC general performance standards will (v) The remaining geographic area of applies the small bank and intermediate revert to being evaluated according to a state, metropolitan statistical area, bank performance standards, as the corresponding performance nonmetropolitan area, or metropolitan provided in § 25.14, in evaluating the standards described in paragraphs (a)(2) division other than where it has a performance of a small bank or and (a)(3) of this section, unless the facility-based assessment area; or intermediate bank, unless the bank is bank is evaluated under an approved (vi) One or more whole, contiguous evaluated under an approved strategic strategic plan as described under (a)(4) counties or county equivalents in a plan as described under paragraph (a)(4) of this section. single metropolitan statistical area or of this section or elects to opt in to the (c) Safe and sound operations. This nonmetropolitan area. general performance standards under part and the CRA do not require a bank (3) A bank may delineate its deposit- paragraph (b) of this section. to make loans or investments or to based assessment area(s) in the smallest (ii) The OCC assigns a small bank provide services that are inconsistent geographic area where it receives 5 evaluated under the small bank and with safe and sound operations. To the percent or more of its retail domestic intermediate bank performance contrary, the OCC anticipates that banks deposits or may delineate a larger standards in § 25.14 lending test and can meet the standards of this part with assessment area that includes these bank ratings as provided for in safe and sound loans, investments, and geographic areas, as provided in Appendix A of this part. services on which the banks expect to paragraph (b)(2) of this section. (iii) The OCC assigns an intermediate make a profit. Banks are permitted and (d) Limitations on delineation of bank evaluated under the small bank encouraged to develop and apply assessment areas. A bank’s assessment and intermediate bank performance flexible underwriting standards for areas must not: standards in § 25.14 lending test, loans that benefit low- or moderate- (1) Reflect illegal discrimination; or community development test, and bank income census tracts or individuals, (2) Arbitrarily exclude low- or ratings as provided in Appendix A of moderate-income census tracts, taking only if consistent with safe and sound this part. operations. into account the bank’s size and (3) Wholesale and limited purpose financial condition. bank performance standards—(i) The § 25.11 CRA evaluation measure. (e) Military banks. Notwithstanding OCC applies the wholesale and limited (a) CRA evaluation measure. A bank the requirements of this section, a purpose bank performance standards, as evaluated as described in § 25.13 will military bank’s assessment area will provided in § 25.15, in evaluating the determine its bank and assessment area consist of the entire United States of performance of a wholesale or limited CRA evaluation measures annually as America and its territories. A military purpose bank, unless the bank is part of its CRA performance evaluation. bank will only be evaluated under evaluated under an approved strategic (b) Determination of the bank’s CRA § 25.13(c). plan as described under paragraph (a)(4) evaluation measure. A bank’s CRA (f) Banks evaluated under strategic of this section or elects to opt in to the evaluation measure is the sum of: plans. A bank evaluated under a general performance standards under (1) The bank’s annual qualifying strategic plan will delineate its paragraph (b) of this section. activities values calculated under assessment area(s) in accordance with (ii) The OCC assigns a wholesale or § 25.08(a) divided by the average the requirements of § 25.18(g)(2). limited purpose bank evaluated under quarterly value of the bank’s retail (g) Use of assessment area(s). The the wholesale and limited purpose bank domestic deposits as of the close of OCC uses the assessment area(s) performance standards in § 25.15 business on the last day of each quarter delineated by a bank in its evaluation of community development test and bank for the same period used to calculate the the bank’s CRA performance unless the ratings as provided for in Appendix A annual qualifying activities value; and OCC determines that the assessment of this part. (2) The number of the bank’s branches area(s) do not comply with the (4) Strategic plan. The OCC evaluates located in or that serve low- or requirements of this section. the performance of a bank under a moderate-income census tracts, strategic plan if the bank submits, and Subpart D—Performance Evaluations distressed areas, underserved areas, and the OCC approves, a strategic plan as Indian country or other tribal and native § 25.10 Performance standards and provided in § 25.18. lands divided by its total number of ratings, in general. (b) General performance standards branches as of the close of business on (a) Performance standards. The OCC opt in. A small, intermediate, wholesale, the last day of the same period used to assesses the CRA performance of a bank or limited purpose bank may elect to opt calculate the annual qualifying activities in an examination as follows: in to be evaluated under the general value multiplied by .02. (1) General performance standards— performance standards described in (3) If the value calculated in (i) The OCC assesses the CRA paragraph (a)(1) of this section. A small, paragraph (b)(2) of this section exceeds performance of a bank other than banks intermediate, wholesale, or limited .01, then the bank’s CRA evaluation described in paragraphs (a)(2), (a)(3), purpose bank that elects to be evaluated measure is the sum of the value and (a)(4) of this section based on the under the general performance calculated in paragraph (b)(1) of this bank’s application of the general standards must collect, maintain, and section and .01. performance standards and report the data required for other banks (c) Determination of the assessment determination of its presumptive ratings under §§ 25.21, 25.25, and 25.26. Once area CRA evaluation measure. A bank’s under § 25.13. a small, intermediate, wholesale, or assessment area CRA evaluation (ii) The OCC determines the assigned limited purpose bank elects to opt in, it measure is determined in each ratings for a bank evaluated under must complete at least one evaluation assessment area and is the sum of: § 25.13 as provided in § 25.19. period under the general performance (1) The bank’s annual assessment area (iii) The OCC determines the state or standards and may elect no more than qualifying activities value calculated multistate metropolitan statistical area once to opt out of the general under § 25.08(c); divided by the average ratings for a bank evaluated under performance standards. A small, quarterly value of the bank’s assessment § 25.13 as provided in § 25.20. intermediate, wholesale, or limited area retail domestic deposits as of the
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close of business on the last day of each low- and moderate-income census (c) Borrower distribution test—(1) quarter for the same period used to tracts. Home mortgage lending product line. calculate the annual assessment area (ii) Geographic peer comparator. The The OCC determines whether a bank qualifying activities value; and geographic peer comparator is all peer passes the borrower distribution test for (2) The number of the bank’s branches home mortgage loans originated in low- a home mortgage lending product line located in or that serve low- or and moderate-income areas in the by comparing the bank’s home mortgage moderate-income census tracts, assessment area as a percentage of all loans originated to low- and moderate- distressed areas, underserved areas, and peer home mortgage loans in the income families in the assessment area Indian country or other tribal and native assessment area, where peers are all as a percentage of the bank’s home lands in the assessment area divided by banks evaluated under the general mortgage loans originated in the its total number of branches in the performance standards in § 25.13. assessment area to either the associated assessment area as of the close of (2) Small loan to a business product borrower demographic comparator or business on the last day of the same line. The OCC determines whether a the associated borrower peer period used to calculate the annual bank passes the geographic distribution comparator. assessment area qualifying activities test for the small loan to a business (i) Borrower demographic comparator. value multiplied by .02. product line by comparing the bank’s The borrower demographic comparator (3) If the value calculated in small loans to businesses originated in is the percentage of low- and moderate- paragraph (c)(2) of this section exceeds low- or moderate-income census tracts income families in the assessment area. .01, then the bank’s assessment area in the assessment area as a percentage (ii) Borrower peer comparator. The CRA evaluation measure is the sum of of the bank’s small loans to businesses borrower peer comparator is all peer the value calculated in paragraph (c)(1) originated in the assessment area to home mortgage loans originated to low- of this section and .01. either the associated geographic or moderate-income families in the (d) Average annual CRA evaluation demographic comparator or the assessment area as a percentage of all measures. For each evaluation period, a associated geographic peer comparator. peer home mortgage loans originated in bank will calculate the average of its: (i) Geographic demographic the assessment area, where peers are all (1) Annual CRA evaluation measures comparator. The geographic banks evaluated under the general for each year in the evaluation period; demographic comparator is the performance standards in § 25.13. and percentage of businesses in the (2) Automobile lending product line, (2) Annual assessment area CRA assessment area that are in low- and other revolving credit plan product line, evaluation measures for each year in the moderate-income census tracts. or other consumer loan product line. evaluation period, separately for each (ii) Geographic peer comparator. The The OCC determines whether a bank assessment area. geographic peer comparator is all peer passes the borrower distribution test for § 25.12 Retail lending distribution tests. small loans to businesses originated in the automobile lending product line, (a) General. In each assessment area, low- and moderate-income census tracts other revolving credit plan product line, for a bank evaluated as described in in the assessment area as a percentage or other consumer loan product line by § 25.13 the OCC will apply a: of all peer small loans to businesses comparing the bank’s product line loans (1) Geographic distribution test for its originated in the assessment area, where to low- and moderate-income home mortgage product line, small loan peers are all banks evaluated under the households in the assessment area as a to a business product line, or small loan general performance standards in percentage of the bank’s product line to a farm product line if those product § 25.13. loans originated in the assessment area lines are major retail lending product (3) Small loan to a farm product line. to either the associated demographic lines with 20 or more originations per The OCC determines whether a bank borrower comparator or the associated year in the assessment area during the passes the geographic distribution test peer comparator. evaluation period; and for the small loan to a farm product line (i) Borrower demographic comparator. (2) Borrower distribution test for each by comparing the bank’s small loans to The borrower demographic comparator major retail lending product line with farms originated in low- or moderate- is the percentage of low- and moderate- 20 or more originations per year in the income census tracts in the assessment income households in the assessment assessment area during the evaluation area as a percentage of the bank’s small area. period. loans to farms originated in the (ii) Borrower peer comparator. The (b) Geographic distribution test—(1) assessment area to the associated borrower peer comparator is all peer Home mortgage product line. The OCC geographic demographic comparator or product line loans originated to low- or determines whether a bank passes the the associated geographic peer moderate-income households as a geographic distribution test for the comparator. percentage of all peer product line loans home mortgage product line by (i) Geographic demographic originated in the assessment area, where comparing the bank’s home mortgage comparator. The geographic peers are all banks evaluated under the loans originated in low- and moderate- demographic comparator is the general performance standards in income tracts in the assessment area as percentage of farms in the assessment § 25.13. a percentage of the bank’s home area that are in low- and moderate- (3) Small loan to a business product mortgage loans originated in the income census tracts. line. The OCC determines whether a assessment area to either the associated (ii) Geographic peer comparator. The bank passes the borrower distribution geographic demographic comparator or geographic peer comparator is all peer test for the small loan to a business the associated geographic peer small loans to farms originated in low- product line by comparing the bank’s comparator. and moderate-income census tracts in small loans to businesses originated to (i) Geographic demographic the assessment area as a percentage of CRA-eligible businesses in the comparator. The geographic all peer small loans to farms originated assessment area as a percentage of the demographic comparator is the in the assessment area, where peers are bank’s small loans to businesses percentage of owner-occupied housing all banks evaluated under the general originated in the assessment area to units in the assessment area that are in performance standards in § 25.13. either the associated demographic
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borrower comparator or the associated (2) Public notice and comment. The domestic deposits that it receives from peer comparator. OCC will provide for a public notice its assessment areas. (i) Borrower demographic comparator. and comment period on any proposed (iii) Community development The borrower demographic comparator adjustments to the performance minimum. The total quantified dollar is the percentage of CRA-eligible standards prior to finalizing the value of community development loans businesses in the assessment area. adjustments. and community development (ii) Borrower peer comparator. The (c) Bank performance standards—(1) investments conducted during the borrower peer comparator is all peer Outstanding. The outstanding evaluation period, including any small loans to businesses to CRA- performance standards are: applicable multipliers from § 25.08(b), eligible businesses originated in the (i) CRA evaluation measure. The divided by the average quarterly value assessment area as a percentage of all bank’s average annual CRA evaluation of the bank’s total retail domestic small loans to businesses originated in measure during the evaluation period is deposits as of the close of business on the assessment area, where peers are all outstanding; the last day of each quarter of the banks evaluated under the general (ii) Assessment area ratings—(A) evaluation period is satisfactory. performance standards in § 25.13. Except as provided in paragraph (3) Needs to improve. The needs to (4) Small loan to a farm product line. (c)(1)(ii)(B) of this section, the bank improve performance standard is an The OCC determines whether a bank received an assigned rating of average annual CRA evaluation measure passes the borrower distribution test for outstanding in— during the evaluation period that needs the small loan to a farm product line by (1) 80 percent of its assessment areas; to improve. comparing the bank’s small loans to and (4) Substantial noncompliance. The farms originated to CRA-eligible farms (2) Assessment areas from which it substantial noncompliance standard is in the assessment area as a percentage receives 80 percent of its retail domestic an average annual CRA evaluation of the bank’s small loans to farms deposits that it receives from its measure during the evaluation period originated in the assessment area to assessment areas; and that is substantially noncompliant. either the associated demographic (B) For a bank with five or fewer (d) Assessment area performance borrower comparator or the associated assessment areas, the bank received an standards—(1) Outstanding. The peer comparator. assigned rating of outstanding in assessment area outstanding (i) Borrower demographic comparator. (1) 50 percent of its assessment areas; performance standards are: The borrower demographic comparator and (i) Retail lending distribution tests. is the percentage of CRA-eligible farms (2) Assessment areas from which it The bank must pass both the geographic in the assessment area. receives 80 percent of its retail domestic and borrower distribution tests for the (ii) Borrower peer comparator. The deposits that it receives from its major retail lending product lines borrower peer comparator is all peer assessment areas. evaluated in § 25.12; small loans to farms to CRA-eligible (iii) Community development (ii) CRA evaluation measure. The farms originated in the assessment area minimum. The total quantified dollar bank’s average annual assessment area as a percentage of all peer small loans value of community development loans CRA evaluation measures during the to farms, where peers are all banks that and community development evaluation period is outstanding; and are evaluated under the general investments conducted during the (iii) Community development performance standards in § 25.13. evaluation period, including any minimum. The quantified dollar value applicable multipliers from § 25.08(b), of community development loans and § 25.13 General performance standards divided by the average quarterly value of community development investments and presumptive rating. the bank’s total retail domestic deposits conduct in the assessment area during (a) General. The bank’s presumptive as of the close of business on the last the evaluation period, including any rating and its assessment area day of each quarter of the evaluation applicable multipliers from § 25.08(b), presumptive rating(s) for banks assessed period is outstanding. divided by the average quarterly value of under this section are determined by (2) Satisfactory. The satisfactory the bank’s retail domestic deposits evaluating whether a bank has met all performance standards are: received from the assessment area as of the performance standards associated (i) CRA evaluation measure. The the close of business on the last day of with a given rating category. A bank will bank’s average annual CRA evaluation each quarter of the evaluation period is use the performance standards in effect measure during the evaluation period is outstanding. on the first day of its evaluation period satisfactory. (2) Satisfactory. The assessment area for the duration of its evaluation period, (ii) Assessment area ratings—(A) satisfactory performance standards are: unless the bank elects to use Except as provided in paragraph (i) Retail lending distribution tests. performance standards published later (c)(2)(ii)(B) of this section, the bank The bank must pass both the geographic during the evaluation period. If the bank received an assigned rating of at least and borrower distribution tests for the elects to use a later-published satisfactory in major retail lending product lines performance standard, that performance (1) 80 percent of its assessment areas; evaluated in § 25.12; standard will apply during the entire and (ii) CRA evaluation measure. The evaluation period. (2) Assessment areas from which the bank’s average assessment area CRA (b) Performance standards bank receives at least 80 percent of its evaluation measure during the adjustments. The OCC will periodically retail domestic deposits that it receives evaluation period is satisfactory; and adjust the performance standards. from its assessment areas; and (iii) Community development (1) Factors considered. When (B) For a bank with five or fewer minimum. The quantified dollar value adjusting the performance standards, assessment areas the bank received an of community development loans and the OCC will consider factors such as assigned rating of at least satisfactory in community development investments the level of qualifying activities (1) 50 percent of its assessment areas; conducted in the assessment area during conducted by all banks, market and the evaluation period, including any conditions, and unmet needs and (2) Assessment areas from which the applicable multipliers from § 25.08(b), opportunities. bank receives 80 percent of its retail divided by the average quarterly value of
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the bank’s retail domestic deposits (3) The extent to which the bank a broader statewide or regional area that received from the assessment area as of provides community development includes the bank’s assessment area(s). the close of business on the last day of services; and (2) Benefits outside assessment each quarter of the evaluation period is (4) The bank’s responsiveness through area(s). The OCC considers the satisfactory. such activities to community community development investments, (3) Needs to improve. The assessment development lending, community community development loans, and area needs to improve performance development investment, and community development services that standard is an average assessment area community development service needs. benefit areas outside the bank’s CRA evaluation measure during the (d) Small bank and intermediate bank assessment area(s), if the bank has evaluation period that needs to improve. performance ratings. The OCC rates the adequately addressed the needs of its (4) Substantial noncompliance. The performance of a small bank or assessment area(s). assessment area substantial intermediate bank evaluated under this (e) Community development noncompliance performance standard is section as provided in appendix A of performance rating. The OCC rates a an average assessment area CRA this part. bank’s community development evaluation measure during the performance as provided in appendix A evaluation period that is substantially § 25.15 Wholesale and limited purpose of this part. noncompliant. bank performance standards. (a) Scope. The OCC assesses a § 25.16 Consideration of performance § 25.14 Small and intermediate bank context. performance standards. wholesale or limited purpose bank’s (a) General. Performance context is (a) Performance criteria—(1) Small record of helping to meet the credit used to assess how the factors in banks. The OCC evaluates the record of needs of its assessment area(s) through paragraph (b) of this section affect a a small bank of helping to meet the its community development lending, credit needs of its assessment area(s) community development investments, bank’s capacity and opportunity to meet pursuant to the criteria in paragraph (b) or community development services. the performance standards described in of this section. (b) Designation as a wholesale or §§ 25.13, 25.14, 25.15 or 25.18. Based on (2) Intermediate banks. The OCC limited purpose bank. In order to that assessment, the OCC may adjust: evaluates the record of an intermediate receive a designation as a wholesale or (1) The assessment area and bank bank of helping to meet the credit needs limited purpose bank, a bank shall file presumptive ratings in § 25.13; or of its assessment area(s) pursuant to the a written request with the OCC, at least (2) The small, intermediate, criteria set forth in paragraphs (b) and three months prior to the proposed wholesale, and limited purpose bank (c) of this section. effective date of the designation. If the ratings, as described in appendix A. (b) Lending test. A small bank’s or OCC approves the designation, it (b) Performance context factors. In intermediate bank’s lending remains in effect until the bank requests assessing performance context, the OCC performance is evaluated pursuant to revocation of the designation or until considers and documents the effect of the following criteria: one year after the OCC notifies the bank the following factors when determining (1) The bank’s loan-to-deposit ratio, that the OCC has revoked the the assigned rating: adjusted for seasonal variation, and, as designation on its own initiative. (1) The bank’s explanation of how its appropriate, other retail and community (c) Performance criteria. The OCC capacity to meet the performance development lending-related activities, evaluates the community development standards described in §§ 25.13, 25.14, such as loan originations for sale to the performance of a wholesale or limited 25.15 or 25.18 was affected by: secondary markets, community purpose bank pursuant to the following (i) The bank’s product offerings and development loans, or community criteria: business strategy; development investments; (1) The number and amount of (ii) The bank’s unique constraints, (2) The percentage of loans and, as community development loans such as its financial condition, safety appropriate, other retail and community (including originations and purchases of and soundness limitations, or other development lending-related activities loans and other community factors; located in the bank’s assessment area(s); development loan data provided by the (iii) The innovativeness, complexity, (3) The bank’s record of lending to bank, such as data on loans outstanding, and flexibility of the bank’s qualifying and, as appropriate, engaging in other commitments, and letters of credit), activities; retail and community development community development investments, (iv) The bank’s development of lending-related activities for borrowers or community development services; business infrastructure and staffing to of different income levels and (2) The use of innovative or complex support the purpose of this part; and businesses and farms of different sizes; (4) The geographic distribution of the community development investments, (v) The responsiveness of the bank’s bank’s loans; and community development loans, or qualifying activities to the needs of the (5) The bank’s record of taking action, community development services and community; if warranted, in response to written the extent to which the investments are (2) The bank’s explanation of how its complaints about its performance in not routinely provided by private opportunity to engage in qualifying helping to meet credit needs in its investors; and activities was affected by: assessment area(s). (3) The bank’s responsiveness to (i) The demand for qualifying (c) Community development test. An credit and community development activities, including, for example, credit intermediate bank’s community needs. needs and market opportunities development performance also is (d) Benefits to assessment area(s)—(1) identified in a Federal Home Loan Bank evaluated pursuant to the following Benefits inside assessment area(s). The Targeted Community Lending Plan as criteria: OCC considers all community provided for in 12 CFR 1290.6(a)(5) or (1) The number and amount of development investments, community a U.S. Department of Housing & Urban community development loans; development loans, and community Development Consolidated Plan as (2) The number and amount of development services that benefit areas provided for in 24 CFR part 91, as community development investments; within the bank’s assessment area(s) or applicable;
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(ii) The demand for retail loans in credit needs of its assessment area(s) reasonable period of time for the bank low- or moderate-income census tracts; under a strategic plan if: to provide the information, and and (1) The bank has submitted the plan informing the bank that failure to (iii) Demographic factors (e.g., to the OCC as provided for in this provide the information requested will housing costs, unemployment rates section; result in no further consideration being variation); (2) The OCC has approved the plan; given to the plan. (3) The bank’s competitive (3) The plan is in effect; and (g) Plan content—(1) Performance environment, as demonstrated by peer (4) The bank has been operating under standards—(i) A plan must specify performance. an approved plan for at least one year. measurable goals for helping to meet the (4) Any written comments about (b) Plan submission—(1) Required credit needs of the bank’s community assessment area needs and submission. A bank must submit a and in each of its assessment areas, opportunities submitted to the bank or strategic plan that meets the particularly the needs of low- and the OCC; and requirements of this section if the bank moderate-income census tracts and low- (5) Any other information deemed would otherwise be evaluated under and moderate-income individuals and relevant by the OCC. § 25.13 and does not maintain retail families, through qualifying activities. (c) Form. Banks, other than small and domestic deposits on-balance sheet; or (ii) A plan must address the types and intermediate banks, must submit the (2) Optional submission. A bank not volume of qualifying activities the bank information in paragraph (b) of this covered under paragraph (b)(1) of this will conduct. A plan may focus on one section on the performance context form section may submit a strategic plan to or more types of qualifying activities available on www.occ.gov, including for the OCC for approval. considering the bank’s capacity and each assessment area. (c) Data reporting. The OCC’s constraints, product offerings, and approval of a plan does not affect the business strategy. § 25.17 Discriminatory and other illegal bank’s data collection, recordkeeping, credit practices. (2) Assessment area delineation. A and reporting obligations, if any, in plan must include a delineation of the (a) Evidence of discriminatory or other §§ 25.21, 25.22, 25.25, and 25.26, unless bank’s assessment areas(s) that meets illegal credit practices. A bank’s CRA otherwise determined in writing by the the requirements of § 25.09(a) through performance is adversely affected by OCC. The OCC may require additional (d). In addition, the plan may include evidence of discriminatory or other bank-specific data collection, assessment area delineations that reflect illegal credit practices. In assessing a recordkeeping, and reporting under a its target geographic market as defined bank’s CRA performance, the OCC’s strategic plan, as appropriate. evaluation will consider evidence of (d) Plans in general—(1) Term. A plan by the bank in its strategic plan. For a discriminatory or other illegal credit may have a term of no more than five de novo bank, the assessment area practices including but not limited to: years, and any multi-year plan must delineations should include the (1) Discrimination against applicants include annual interim measurable projected location of its deposit-taking on a prohibited basis in violation, for goals under which the OCC evaluates facilities, retail domestic deposit base, example, of the Equal Credit the bank’s performance. and lending activities. Opportunity Act or the Fair Housing (2) Multiple assessment areas. A bank (3) Confidential information. A bank Act; with more than one assessment area may submit additional information to (2) Violations of the Home Ownership may prepare a single plan for all of its the OCC on a confidential basis, to the and Equity Protection Act; assessment areas or separate plans for extent permitted by law, but the goals (3) Violations of section 5 of the one or more of its assessment areas. stated in the plan must be sufficiently Federal Trade Commission Act; (e) Public participation in plan specific to enable the public and the (4) Violations of section 8 of the Real OCC to judge the merits of the plan. Estate Settlement Procedures Act; development. Before submitting a plan to the OCC for approval, a bank must: (4) Satisfactory and outstanding (5) Violations of the Truth in Lending performance standards. A plan must Act provisions regarding a consumer’s (1) Solicit public comment on the plan for at least 30 days by submitting specify measurable goals that constitute right of rescission; satisfactory performance. A plan may (6) Violations of the Military Lending the plan for publication on the OCC’s specify measurable goals that constitute Act; and website and by publishing notice in at (7) Violations of the Servicemembers least one newspaper of general outstanding performance. If a bank Civil Relief Act. circulation in each assessment area submits, and the OCC approves, both (b) Effect of evidence of covered by the plan; and satisfactory and outstanding discriminatory or other illegal credit (2) During the public comment performance goals, the OCC considers practices. In determining the effect of period, make copies of the plan the bank eligible for an outstanding evidence of practices described in available for review by the public and performance rating. paragraph (a) of this section on the provide copies of the plan upon request (h) Plan approval—(1) Timing. The bank’s assigned rating, the OCC for a reasonable fee to cover copying, OCC will act upon a plan within 90 considers the nature, extent, and printing, or mailing, if applicable. days after the OCC receives the strength of the evidence of the practices; (f) Submission of plan. The bank must complete plan and other material the policies and procedures that the submit its complete plan to the OCC at required under paragraph (g) of this bank has in place to prevent the least six months prior to the proposed section. If the OCC does not act within practices; any corrective action that the effective date of the plan. The bank this time period, the plan will be bank has taken or has committed to must also submit with its plan a deemed approved unless the OCC take, including voluntary corrective description of any written public extends the review period for good action resulting from self-assessment; comments received, including how the cause for no more than 30 days. and any other relevant information. plan was revised in light of the (2) Public participation. In evaluating comments received. If the OCC the plan’s goals, the OCC considers any § 25.18 Strategic plan. determines the plan is not complete, the written public comment on the plan and (a) General. The OCC assesses a OCC will notify the bank specifying the any response by the bank to any written bank’s record of helping to meet the information needed, designating a public comment on the plan.
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(3) Criteria for evaluating a plan. The the ratings assigned to its assessment collected and maintained. A bank OCC evaluates a plan’s goals by areas within that state or multistate subject to this section must collect and considering the extent and breadth of metropolitan statistical area. maintain the following data and the qualifying activities including: supporting documentation for all (i) Community development loans, Subpart E [Redesignated as Subpart F] qualifying activities and certain non- community development investments, ■ qualifying activities conducted by the and community development services; 3. Redesignate subpart E as subpart F bank: and and redesignate §§ 25.61 through 25.65 (1) Qualifying loan data. Except as (ii) The use of innovative, flexible, or as §§ 25.31 through 25.35, respectively. provided in paragraph (c)(8) of this complex qualifying activities. ■ 4. Add new subpart E to read as section, for each qualifying loan: (i) Plan amendment. During the term follows: (i) A unique number or alpha-numeric of a plan, a bank may request the OCC symbol to identify the relevant loan file; to approve an amendment to the plan on Subpart E—Data Collection, (ii) An indicator of whether the loan grounds that there has been a material Recordkeeping, and Reporting is a retail loan or a community change in circumstances. The OCC Sec. development loan; reserves the right to require a bank that 25.21 Data collection for banks evaluated (iii) Date of: requests an amendment to a plan to under the general performance standards (A) Origination for loans originated by comply with the public participation in § 25.13 or a strategic plan under the bank, if applicable; process described in paragraph (e) of § 25.18. (B) Purchase for loans not originated this section. 25.22 Retail domestic deposit data by the bank, if applicable; and collection for small banks evaluated (C) Sale if the loan is a retail loan and § 25.19 Assigned ratings. under the small bank performance sold by the bank within 365 days of (a) General performance standards— standards in § 25.14. origination; (1) Bank’s assigned rating. The OCC 25.23 Data collection for wholesale and (iv) An indicator of whether the loan limited purpose banks evaluation under determines the assigned rating for a the wholesale and limited purpose was originated or purchased by the bank evaluated under § 25.13 based on performance standards in § 25.15. bank; its presumptive rating under § 25.13, 25.24 Activity location. (v) The loan amount at origination or adjusted for performance context under 25.25 Recordkeeping. purchase; § 25.16, and consideration of 25.26 Reporting for banks evaluated under (vi) The outstanding dollar amount of discriminatory or other illegal credit the general performance standards in the loan, as of the close of business on practices under § 25.17. § 25.13, the wholesale and limited the last day of the month, for each (2) Assessment area assigned rating. purpose bank performance standards in month that the loan is on-balance sheet; The OCC determines the assessment 25.15, or a strategic plan under § 25.18. (vii) The loan location and the area assigned ratings for a bank 25.27 Public disclosures. associated Federal Information 25.28 Content and availability of public file. evaluated under § 25.13 based on its 25.29 Availability of planned evaluation Processing Standards code for the assessment area presumptive rating schedule. metropolitan statistical area, state, under § 25.13, adjusted for performance 25.30 Public notice by banks. county or county equivalent, and census context under § 25.16 and consideration tract; of discriminatory or other illegal credit § 25.21 Data collection for banks evaluated (viii) Portion of the community practices under § 25.17. under the general performance standards in development loan that is partially (b) Strategic plans assigned rating. A § 25.13 or a strategic plan under § 25.18. qualifying, if applicable; bank operating under a strategic plan (a) General. A bank evaluated under (ix) An indicator of whether a will receive, as applicable, an assigned the general performance standards in multiplier applies; rating, assessment area assigned ratings, § 25.13 and a bank evaluated under a (x) The income or gross annual and state-level and multistate strategic plan under § 25.18, unless revenue of the borrower; and metropolitan statistical area assigned otherwise determined in writing by the (xi) The criteria in § 25.04 that the ratings of satisfactory or outstanding if OCC, must collect and maintain the loan satisfies or that it is on the it has met the measurable goals in the information required by this section illustrative list referenced in § 25.05 and plan that correspond to those ratings until the completion of the relevant whether it serves a particular after considering performance context CRA evaluation. assessment area, if applicable. under § 25.16 and discriminatory or (b) Performance standards data. A (2) Other loan data. A bank must other illegal credit practices under bank must collect and maintain, along collect and maintain the following data § 25.17. with supporting documentation, its: and supporting documentation for (1) Retail lending distribution test originations of non-qualifying home § 25.20 State/multistate metropolitan ratios calculated under § 25.12 for the mortgage loans, small loans to statistical area assigned rating. borrower distribution and geographic businesses, small loans to farms, and For a bank evaluated under § 25.13 distribution tests for each major retail consumer loans by the bank: with interstate branches, the OCC will lending product line evaluated in the (i) A unique number or alpha-numeric assign a rating for each state where the assessment area; symbol to identify the relevant loan file; bank has a facility-based assessment (2) CRA evaluation measure and each (ii) The date of origination; area and each multistate metropolitan assessment-area CRA evaluation (iii) The loan amount at origination; statistical area where the bank has a measure calculated under § 25.11; (iv) The loan location and the main office, branch, or non-branch (3) Community development associated Federal Information deposit-taking facility in two or more minimum and each assessment-area Processing Standards code for the states in the multistate metropolitan level community development metropolitan statistical area, state, statistical area. The state or multistate minimum calculated under § 25.13; and county or county equivalent, and census metropolitan statistical area assigned (4) Presumptive ratings under § 25.13. tract; and rating for that state or multistate (c) Qualifying activities and retail (v) The income or gross annual metropolitan statistical area is based on domestic deposit data required to be revenue of the borrower.
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(3) Number of home mortgage. For the satisfies or that it is on the illustrative depositor as of the close of business on home mortgage product line, for each list referenced in § 25.05 and whether it the last day of each quarter during the county or county equivalent: serves a particular assessment area, if examination period. (i) The number of loans originated; applicable. (d) Assessment areas. A bank must (ii) The number of loans originated in (8) Community development services collect and maintain a list of its low- and moderate-income census data. For each community development assessment area(s) showing within the tracts; and service: assessment area(s) each: (iii) The number of loans originated to (i) A unique number or alpha-numeric (1) County or county equivalent; low- and moderate-income borrowers. symbol identifying the community (2) Metropolitan division; (4) Number of small loans to development service; (3) Nonmetropolitan area; businesses. For the small loan to a (ii) The quantified dollar value of the (4) Metropolitan statistical area; or business product line, for each county community development service; (5) State. or county equivalent: (iii) A description of the community (e) Deposit-taking facilities. For each (i) The number of loans originated; development service; deposit-taking facility, a bank must (ii) The number of loans originated in (iv) The date the community collect and maintain low- and moderate-income census development service was performed; (1) An indicator of whether it was a tracts; and (v) The community development branch or a non-branch deposit-taking (iii) The number of loans originated to service location and the associated facility; and CRA-eligible businesses. Federal Information Processing (2) The physical address and the (5) Number of small loans to farms. Standards code for the metropolitan associated Federal Information For the small loan to a farm product line statistical area, state, county or county Processing Standards code for the for each county or county equivalent: equivalent, and census tract, if metropolitan statistical area, state, (i) The number of loans originated; applicable; county or county equivalent, and census (ii) The number of loans originated in (vi) Portion of the community tract. low- and moderate-income census development service that is partially § 25.22 Retail domestic deposit data tracts; and qualifying, if applicable; (iii) The number of loans originated to collection for small and intermediate banks (vii) An indicator of whether a CRA-eligible farms. evaluated under the small and intermediate (6) Number of consumer loans. For multiplier applies; and bank performance standards in § 25.14. (viii) The qualifying activity criteria each other consumer loan product line A small or intermediate bank in § 25.04 that the community as defined in § 25.03, for each county or evaluated under the small and development service satisfies or that it county equivalent: intermediate bank performance (i) The number of loans originated; is on the illustrative list referenced in standards in § 25.14 must collect and and § 25.05. maintain data on the value of each retail (ii) The number of loans originated to (9) Grandfathered qualifying domestic deposit account and the low- and moderate-income borrowers. activities. For each activity that qualifies physical address of each depositor as of (7) Community development under § 25.04(a)(1)(3): the close of business on the last day of investment data. Except as provided in (i) A unique number or alpha-numeric each quarter during the examination paragraph (c)(8) of this section, for each symbol identifying activity; period until the completion of its next community development investment: (ii) The outstanding dollar value of CRA evaluation. (i) A unique number, alpha-numeric the activity, as of the close of business symbol, or another mechanism to on the last day of the month, for each § 25.23 Data collection for wholesale and identify the community development month that the activity is on-balance limited purpose banks evaluated under the sheet, wholesale and limited purpose bank investment; performance standards in § 25.15. (ii) Date of community development (iii) A description of the activity, investment by the bank; including whether it is a retail loan, (a) General. A wholesale or limited (ii) The outstanding dollar value of community development loan, or purpose bank evaluated under the the community development community development investment; wholesale and limited purpose bank investment, as of the close of business (iv) The activity location and the performance standards in § 25.15 must on the last day of the month, for each associated Federal Information collect and maintain the information month that the investment is on-balance Processing Standards code for the required by this section until the sheet, if applicable; metropolitan statistical area, state, completion of the relevant CRA (iii) The quantified dollar value of the county or county equivalent, and census evaluation. monetary donation, if applicable; tract, if applicable; (b) Qualifying community (iv) The quantified dollar value of the (v) Portion of the activity that is development loan, community in-kind donation, if applicable; partially qualifying, if applicable; development investment, and (v) The community development (vi) An indicator of whether a community development service investment location and the associated multiplier applies; and required to be collected and maintained. Federal Information Processing (vii) A statement certifying that the A bank subject to this section must Standards code for the metropolitan activity would have received positive collect and maintain the following data statistical area, state, county or county consideration in a CRA performance and supporting documentation for all equivalent, and census tract, if evaluation on the date prior to October qualifying community development applicable; 1, 2020. loans, community development (vi) Portion of the community (10) Retail domestic deposit data. The investments, and community development investment that is partially value of each retail domestic deposit development services conducted by the qualifying, if applicable; account and the physical address and bank: (vii) An indicator of whether a associated Federal Information (1) Qualifying community multiplier applies; and Processing Standards code for the development loan data. Except as (viii) The criteria in § 25.04 that the metropolitan statistical area, state, and provided in paragraph (b)(4) of this community development investment county or county equivalent of each section for each qualifying loan:
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(i) A unique number or alpha-numeric (4) Grandfathered qualifying (b) For the purpose of this part, the symbol to identify the relevant loan file; activities. For each activity that qualifies location of a community development (ii) Date of: under § 25.04(d): loan, a community development (A) Origination for loans originated by (i) A unique number or alpha-numeric investment, or a community the bank, if applicable; and symbol identifying the activity; development service is: (B) Purchase for loans not originated (ii) The origination value of the (1) The address of a particular project by the bank, if applicable; community development loan or the to the extent a bank can document that (iii) An indicator of whether the loan community development investment; the services or funding it provided was was originated or purchased by the (iii) A description of the activity, allocated to that particular project; or bank; including whether it is a community (2) Determined by allocating the (iv) The loan amount at origination or development loan or community activity across all of a bank’s assessment purchase; development investment; areas and other metropolitan statistical (v) The loan location and the (iv) The activity location and the areas or non-metropolitan statistical associated Federal Information associated Federal Information areas served by the activity according to Processing Standards code for the Processing Standards code for the the share of the bank’s deposits in those metropolitan statistical area, state, metropolitan statistical area, state, areas, treating the bank’s deposits in the county or county equivalent, and census county or county equivalent, and census region served by the activity as if they tract; and tract, if applicable; and were all of the bank’s deposits, to the (vi) The criteria in § 25.04 that the (v) A statement certifying that the extent the bank cannot document that loan satisfies or that it is on the activity that would have received the services or funding it provided was illustrative list referenced in § 25.05 and positive consideration in a CRA allocated to a particular project. whether it serves a particular performance evaluation on the date assessment area, if applicable. prior to October 1, 2020. § 25.25 Recordkeeping. (2) Community development Banks must keep the data collected investment data. Except as provided in (c) Retail domestic deposit data. The value of each retail domestic deposit under § 25.21, § 25.22, and § 25.23 in paragraph (b)(4) of this section, for each machine readable form (as prescribed by community development investment: account and the physical address and associated Federal Information the OCC) until the completion of their (i) A unique number, alpha-numeric next CRA evaluation. symbol, or another mechanism to Processing Standards code for the identify the community development metropolitan statistical area, state, and § 25.26 Reporting for banks evaluated investment; county or county equivalent of each under the general performance standards in (ii) Date of community development depositor as of the close of business on § 25.13, the wholesale and limited purpose investment by the bank; the last day of each quarter during the bank performance standards in § 25.15, or (iii) The value of the community examination period. a strategic plan under § 25.18. development investment; (d) Assessment areas. A bank must (a) General. Banks evaluated under (iv) The community development collect and maintain a list of its the general performance standards in investment location and the associated assessment area(s) showing within the § 25.13, the wholesale and limited Federal Information Processing assessment area(s) each: purpose bank performance standards in Standards code for the metropolitan (1) County or county equivalent; § 25.15, or a strategic plan under statistical area, state, county or county (2) Metropolitan division; § 25.18, unless otherwise determined in equivalent, and census tract, if (3) Nonmetropolitan area; writing by the OCC, must report the applicable; and (4) Metropolitan statistical area; or information required by this section. (v) The criteria in § 25.04 that the (5) State. (b) Performance standards, qualifying community development investment (e) Deposit-taking facilities. For each activities, and retail domestic deposits satisfies or that it is on the illustrative deposit-taking facility, a bank must data reporting—(1) Banks evaluated list referenced in § 25.05 and whether it collect and maintain under the general performance serves a particular assessment area, if (1) An indicator of whether it was a standards or a strategic plan—(i) A bank applicable. branch or a non-branch deposit-taking evaluated under the general (3) Community development services facility; and performance standards or under a data. For each community development (2) The physical address and the strategic plan must report to the OCC: service: associated Federal Information (A) On an annual basis, the (i) A unique number or alpha-numeric Processing Standards code for the information required by § 25.21(b)(2), as symbol identifying the community metropolitan statistical area, state, applicable; and development service; county or county equivalent, and census (B) At the end of the evaluation (ii) A description of the community tract. period, the information required by development service; § 25.21(b)(1) and (b)(4), as applicable. (iii) The date the community § 25.24 Activity location. (ii) On an annual basis, a bank subject development service was performed; (a) For the purpose of this part: to this section must report to the OCC (iv) The community development (1) A consumer loan is located at the the following data for all qualifying service location and the associated borrower’s physical address on file with activities conducted during the annual Federal Information Processing the bank at the time of origination; period: Standards code for the metropolitan (2) A home mortgage loan is located (A) The quantified dollar value of statistical area, state, county or county at the address of the property to which qualifying retail loans; equivalent, and census tract, if the loan relates; and (B) The quantified dollar value of applicable; and (3) A business or farm loan is located community development loans; (v) The qualifying activity criteria in at the physical address of the main (C) The quantified dollar value of § 25.04 that the community business facility or farm or the physical community development investments; development service satisfies or that it address where the loan proceeds will be and is on the illustrative list referenced in applied, as indicated by the borrower; (D) The quantified dollar value of § 25.05. and community development services.
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(iii) A bank subject to this section (1) The number of home mortgage (4) A list of branches opened or closed must annually report to the OCC the loan originations; by the bank during the current year and information required by § 25.21(c)(3)–(6) (2) The number of home mortgage each of the prior two calendar years, for loans originated during the annual loan originations to low- or moderate- their street addresses, and census tracts; period. income individuals and families; (5) A list of services (including hours (iv) A bank subject to this section (3) The number of originations for of operation, available loan and deposit must annually report its average each consumer loan product line; products, and transaction fees) generally quarterly retail domestic deposits as of (4) The number of originations to low- offered at the bank’s branches and the close of business on the last day of or moderate- income individuals and descriptions of material differences in each quarter. families for each consumer loan product the availability or cost of services at (2) Banks evaluated under the line; particular branches, if any. At its option, wholesale and limited purpose bank (5) The number of small loans to a bank may include information performance standards. On an annual businesses; regarding the availability of alternative basis, a bank evaluated under the (6) The number of small loans to systems for delivering retail banking wholesale and limited purpose bank businesses in low- and moderate- services (e.g., ATMs, ATMs not owned performance standards must report income census tracts; or operated by or exclusively for the following data for all qualifying (7) The number of small loans to bank, banking by telephone or activities conducted during the annual businesses provided to CRA-eligible computer, loan production offices, and period: businesses; bank-at-work or bank-by-mail (i) The value of community (8) The number of small loans to programs); development loans; and farms; (6) A map of each assessment area (ii) The value of community (9) The number of small loans to showing the boundaries of the area and development investments. farms in low- and moderate-income identifying the counties or county (c) Assessment area data. For each census tracts; and equivalents contained within the area, assessment area, a bank subject to this (10) The number of small loans to either on the map or in a separate list; section must annually report to the OCC farms provided to CRA-eligible farms; and the information required by § 25.21(e). (c) Availability of CRA disclosure (7) Any other information the bank (d) Performance context information. statements. The OCC will annually chooses. A bank subject to this section must make publicly available the aggregate (b) Additional information available report performance context information and individual CRA Disclosure to the public—(1) Banks with strategic on the form required by § 25.16(c) before Statements, described in paragraphs (a) plans. A bank that has been approved to the beginning of its CRA performance and (b) of this section. be assessed under a strategic plan must evaluation. (d) Availability of ratings. The OCC include in its public file a copy of that (e) Form. A bank subject to this will make available the ratings of all plan. A bank need not include section must use the CRA data reporting OCC-regulated banks and a list of all information submitted to the OCC on a form available at www.occ.gov to meet banks that achieve an assigned rating of confidential basis in conjunction with the reporting requirements in this outstanding. A bank that achieves an the plan. section. outstanding assigned rating will receive (2) Banks with less than satisfactory a certificate or seal of achievement that § 25.27 Public disclosures. ratings. A bank that received a less than may be displayed on its website and in satisfactory rating during its most recent (a) Individual CRA Disclosure its main office, branches, and non- examination must include in its public Statement. The OCC prepares annually branch deposit-taking facilities. file a description of its current efforts to a CRA Disclosure Statement for each improve its performance in helping to bank evaluated under § 25.13 that § 25.28 Content and availability of public file. meet the credit needs of its entire contains the bank’s: community. The bank must update the (1) Quantified dollar value of (a) Information available to the description quarterly. public. A bank must maintain a public qualifying retail loans; (c) Availability of public information. (2) Quantified dollar value of file that includes the following A bank must make available to the community development loans; information: public the information required in this (3) Quantified dollar value of (1) All written comments received section. community development investments; from the public for the current year and (d) Updating. Except as otherwise and each of the prior two calendar years that provided in this section, a bank must (4) Quantified dollar value of specifically relate to assessment area ensure that the information required by community development services. needs and opportunities, and any this section is current as of April 1 of (b) Aggregate CRA Disclosure response to the comments by the bank, each year. Statement. The OCC prepares annually, if neither the comments nor the for each county, an aggregate CRA responses contain statements that reflect § 25.29 Availability of planned evaluation Disclosure Statement of home mortgage, adversely on the good name or schedule. consumer, small loans to businesses, reputation of any persons other than the The OCC will make available at least and small loans to farms lending by all bank or publication of which would 30 days in advance of the beginning of banks subject to reporting under this violate specific provisions of law; each calendar quarter a list of banks part. This disclosure statement includes (2) A copy of the public section of the scheduled for CRA evaluations in that the following information, at the county bank’s most recent CRA Performance quarter. level, from all banks evaluated under Evaluation prepared by the OCC. The § 25.13, except that the OCC may adjust bank must place this copy in the public § 25.30 Public notice by banks. the form of the disclosure if necessary, file within 30 business days after its A bank must make available to the because of special circumstances, to receipt from the OCC; public the notice set forth in Appendix protect the privacy of a borrower or (3) A list of the bank’s branches, their B of this part. Parenthetical text must be bank: street addresses, and census tracts; adjusted by each bank as appropriate.
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Bracketed text must be included if (including low- and moderate-income a ‘‘satisfactory’’ on the other test may receive applicable. individuals) and businesses and farms of rating of ‘‘outstanding.’’ ■ different sizes that is reasonable given the (B) A small bank that meets each of the 5. Revise paragraph (a) of newly demographics of the bank’s assessment standards for a ‘‘satisfactory’’ rating under designated § 25.32 to read as follows: area(s); the lending test and exceeds some or all of those standards may warrant consideration § 25.32 Definitions. (D) A record of taking appropriate action, when warranted, in response to written for an assigned rating of ‘‘outstanding.’’ In * * * * * complaints, if any, about the bank’s assessing whether a bank’s performance is (a) Bank means, unless the context performance in helping to meet the credit ‘‘outstanding,’’ the OCC considers the extent indicates otherwise, a national bank and needs of its assessment area(s); and to which the bank exceeds each of the a foreign bank as that term is defined in (E) A reasonable geographic distribution of performance standards for a ‘‘satisfactory’’ 12 U.S.C. 3101(7) and 12 CFR 28.11(i). loans given the bank’s assessment area(s). rating and its performance in making (ii) Eligibility for an ‘‘outstanding’’ lending community development investments and its * * * * * test rating. A small bank or intermediate performance in providing branches and other services and delivery systems that enhance § 25.33 [Amended] bank that meets each of the standards for a ‘‘satisfactory’’ rating under this paragraph credit availability in its assessment area(s). ■ 6. In newly designated § 25.33 amend and exceeds some or all of those standards (iii) Needs to improve or substantial paragraph (b)(2) by removing ‘‘§ 25.64’’ may warrant consideration for a lending test noncompliance overall ratings. A small bank and adding ‘‘§ 25.34’’ in its place. rating of ‘‘outstanding.’’ or intermediate bank may also receive a rating of ‘‘needs to improve’’ or ‘‘substantial ■ 7. Revise Appendix A to part 25 to (iii) Needs to improve or substantial noncompliance ratings. A small bank or noncompliance’’ assigned rating depending read as follows: intermediate bank may also receive a lending on the degree to which its performance has Appendix A to Part 25—Small Bank, test rating of ‘‘needs to improve’’ or failed to meet the standards for a ‘‘substantial noncompliance’’ depending on ‘‘satisfactory’’ rating. Intermediate Bank, Wholesale Bank, (c) Banks evaluated under the wholesale and Limited Purpose Bank Ratings the degree to which its performance has failed to meet the standard for a and limited purpose bank performance (a) Ratings in general—(1) In assigning a ‘‘satisfactory’’ rating. standards. The OCC assigns each wholesale rating, the OCC evaluates a small bank’s, (2) Community development test ratings for or limited purpose bank’s performance one of intermediate bank’s, wholesale bank’s, or intermediate banks—(i) Eligibility for a the four following ratings. limited purpose bank’s performance under satisfactory community development test (1) Outstanding. The OCC rates a wholesale or limited purpose bank’s the applicable performance criteria in § 25.14 rating. The OCC rates an intermediate bank’s performance ‘‘outstanding’’ if, in general, it and § 25.15, adjusting for performance community development performance demonstrates: context in § 25.16 and consideration of any ‘‘satisfactory’’ if the bank demonstrates (i) A high level of community development evidence of discriminatory and illegal credit adequate responsiveness to the community loans, community development services, or practices as described in § 25.17. This development needs of its assessment area(s) community development investments, includes consideration of low-cost education through community development loans, particularly investments that are not loans provided to low-income borrowers and community development investments, and routinely provided by private investors; activities in cooperation with minority community development services. The (ii) Extensive use of innovative or complex depository institutions, women’s depository adequacy of the bank’s response will depend community development loans, community institutions, and low-income credit unions. on its capacity for such community development investments, or community (2) A bank’s performance need not fit each development activities, its assessment area’s development services; and aspect of a particular rating profile in order need for such community development (iii) Excellent responsiveness to credit and to receive that rating, and exceptionally activities, and the availability of such community development needs in its strong performance with respect to some opportunities for community development in assessment area(s). aspects may compensate for weak the bank’s assessment area(s). (2) Satisfactory. The OCC rates a wholesale performance in others. The bank’s overall (ii) Eligibility for an outstanding or limited purpose bank’s performance performance, however, must be consistent community development test rating. The ‘‘satisfactory’’ if, in general, it demonstrates: with safe and sound banking practices and OCC rates an intermediate bank’s community (i) An adequate level of community generally with the appropriate rating profile development performance ‘‘outstanding’’ if development loans, community development as follows. the bank demonstrates excellent services, or community development (b) Banks evaluated under the small bank responsiveness to community development investments, particularly investments that and intermediate bank performance needs in its assessment area(s) through are not routinely provided by private standards—(1) Lending test ratings—(i) community development loans, community investors; Eligibility for a satisfactory lending test development investments, and community (ii) Occasional use of innovative or rating. The OCC rates a small bank’s or development services, as appropriate, complex community development loans, intermediate bank’s lending performance considering the bank’s capacity and the need community development investments, or ‘‘satisfactory’’ if, in general, the bank and availability of such opportunities for community development services; and demonstrates: community development in the bank’s (iii) Adequate responsiveness to credit and (A) A reasonable loan-to-deposit ratio assessment area(s). community development needs in its (considering seasonal variations) given the (iii) Needs to improve or substantial assessment area(s). bank’s size, financial condition, the credit noncompliance ratings. An intermediate (3) Needs to improve. The OCC rates a needs of its assessment area(s), and taking bank may also receive a community wholesale or limited purpose bank’s into account, as appropriate, other retail and development test rating of ‘‘needs to performance as ‘‘needs to improve’’ if, in community development lending-related improve’’ or ‘‘substantial noncompliance’’ general, it demonstrates: activities such as loan originations for sale to depending on the degree to which its (i) A poor level of community development the secondary markets and community performance has failed to meet the standards loans, community development services, or development loans and community for a ‘‘satisfactory’’ rating. community development investments, development investments; (3) Bank rating—(i) Eligibility for a particularly investments that are not (B) A majority of its loans and, as satisfactory rating. No intermediate bank may routinely provided by private investors; appropriate, other retail and community receive an assigned rating of ‘‘satisfactory’’ (ii) Rare use of innovative or complex development lending-related activities, are in unless it receives a rating of at least community development loans, community its assessment area; ‘‘satisfactory’’ on both the lending test and development investments, or community (C) A distribution of loans to and, as the community development test. development services; and appropriate, other retail and community (ii) Eligibility for an outstanding rating— (iii) Poor responsiveness to credit and development lending-related activities for (A) An intermediate bank that receives an community development needs in its individuals of different income levels ‘‘outstanding’’ rating on one test and at least assessment area(s).
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(4) Substantial noncompliance. The OCC Your comments, together with any response community, including low- and rates a wholesale or limited purpose bank’s by us, will be considered by the Comptroller moderate-income neighborhoods, performance in ‘‘substantial noncompliance’’ in evaluating our CRA performance and may consistent with the safe and sound if, in general, it demonstrates: be made public. operation of the bank; and (i) Few, if any, community development You may ask to look at any comments (2) Providing that the OCC takes that loans, community development services, or received by the Deputy Comptroller. You community development investments, may also request from the Deputy record into account in considering particularly investments that are not Comptroller an announcement of our certain applications. routinely provided by private investors; applications covered by the CRA filed with (c) Scope—(1) General. This part (ii) No use of innovative or complex the Comptroller. (We are an affiliate of (name applies to all banks except as provided qualified community development loans, of holding company), a (entity type) holding in paragraphs (c)(2) and (c)(3) of this community development investments, or company. You may request from the (title of section. community development services; and responsible official), Federal Reserve Bank of (2) Federal branches and agencies. (i) (iii) Very poor responsiveness to credit and lllllllll (address) an This part applies to all insured Federal community development needs in its announcement of applications covered by the branches and to any Federal branch that assessment area(s). CRA filed by (entity type) holding is uninsured that results from an companies.) ■ 8. Revise Appendix B to read as acquisition described in section 5(a)(8) ■ follows: Effective October 1, 2020 to January 1, of the International Banking Act of 1978 2024, add Appendix C to part 25 to read (12 U.S.C. 3103(a)(8)). Appendix B to Part 25—Community as follows: Reinvestment Act Notice (ii) Except as provided in paragraph Appendix C to Part 25—Community (c)(2)(i) of this section, this part does not Under the Federal Community Reinvestment Act Regulations apply to Federal branches that are Reinvestment Act (CRA), the Comptroller of uninsured, limited Federal branches, or the Currency (OCC) evaluates our record of (Alternative Compliance) helping to meet the credit needs of this Federal agencies, as those terms are community, consistent with safe and sound Note: The content of this appendix defined in part 28 of this chapter. operations. The OCC also takes this record reproduces parts 25 and 195 implementing (3) Certain special purpose banks. into account when deciding on certain the Community Reinvestment Act as of the This part does not apply to special applications submitted by us. date prior to October 1, 2020. purpose banks that do not perform Your involvement is encouraged. commercial or retail banking services by You are entitled to certain information PART 25—COMMUNITY granting credit to the public in the about our operations and our performance REINVESTMENT ACT AND ordinary course of business, other than under the CRA, including, for example, INTERSTATE DEPOSIT PRODUCTION as incident to their specialized information about our branches, such as their REGULATIONS operations. These banks include location and services provided at them; the banker’s banks, as defined in 12 U.S.C. public section of our most recent CRA Subpart A—General Performance Evaluation, prepared by the 24 (Seventh), and banks that engage OCC; and comments received from the public § 25.11 Authority, purposes, and scope. only in one or more of the following activities: providing cash management relating to assessment area needs and (a) Authority and OMB control opportunities, as well as our responses to controlled disbursement services or number—(1) Authority. The authority those comments. You may review this serving as correspondent banks, trust for subparts A, B, C, D, and E is 12 information today by reviewing the public companies, or clearing agents. file which is available at (web address and/ U.S.C. 21, 22, 26, 27, 30, 36, 93a, 161, or physical address at which the public file 215, 215a, 481, 1814, 1816, 1828(c), § 25.12 Definitions. can be reviewed and copied). 1835a, 2901 through 2907, and 3101 For purposes of this part, the You may also have access to the following through 3111. following definitions apply: additional information, which we will make (2) OMB control number. The (a) Affiliate means any company that available to you after you make a request to information collection requirements controls, is controlled by, or is under us: (1) A map showing the assessment area contained in this part were approved by containing a select branch, which is the area common control with another company. in which the OCC evaluates our CRA the Office of Management and Budget The term ‘‘control’’ has the meaning performance for that particular community; under the provisions of 44 U.S.C. 3501 given to that term in 12 U.S.C. (2) branch addresses and associated branch et seq. and have been assigned OMB 1841(a)(2), and a company is under facilities and hours in any assessment area; control number 1557–0160. common control with another company (3) a list of services we provide at those (b) Purposes. In enacting the if both companies are directly or locations; (4) our most recent rating in the Community Reinvestment Act (CRA), indirectly controlled by the same assessment area; and (5) copies of all written the Congress required each appropriate company. comments received by us that specifically Federal financial supervisory agency to (b) Area median income means: relate to the needs and opportunities of a assess an institution’s record of helping given assessment area, and any responses we (1) The median family income for the have made to those comments. If we are to meet the credit needs of the local MSA, if a person or geography is located operating under an approved strategic plan, communities in which the institution is in an MSA, or for the metropolitan you may also have access to a copy of the chartered, consistent with the safe and division, if a person or geography is plan. sound operation of the institution, and located in an MSA that has been At least 30 days before the beginning of to take this record into account in the subdivided into metropolitan divisions; each quarter, the OCC publishes a agency’s evaluation of an application for or nationwide list of the (entity type) that are a deposit facility by the institution. This (2) The statewide nonmetropolitan scheduled for CRA examination in that part is intended to carry out the median family income, if a person or quarter. This list is available from the Deputy purposes of the CRA by: Comptroller (address). You may send written geography is located outside an MSA. comments regarding the needs and (1) Establishing the framework and (c) Assessment area means a opportunities of any of the (entity type)’s criteria by which the Office of the geographic area delineated in assessment area(s) to (name, address, and Comptroller of the Currency (OCC) accordance with § 25.41. email address of official at bank) and Deputy assesses a bank’s record of helping to (d) Automated teller machine (ATM) Comptroller (address and email address). meet the credit needs of its entire means an automated, unstaffed banking
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facility owned or operated by, or (1) Has as its primary purpose line (such as credit card or motor operated exclusively for, the bank at community development; vehicle loans) to a regional or broader which deposits are received, cash (2) Is related to the provision of market and for which a designation as dispersed, or money lent. financial services; and a limited purpose bank is in effect, in (e) Bank means a national bank (3) Has not been considered in the accordance with § 25.25(b). (including a Federal branch as defined evaluation of the bank’s retail banking (o) Loan location. A loan is located as in part 28 of this chapter) with Federally services under § 25.24(d). follows: insured deposits, except as provided in (j) Consumer loan means a loan to one (1) A consumer loan is located in the § 25.11(c). or more individuals for household, geography where the borrower resides; (f) Branch means a staffed banking family, or other personal expenditures. (2) A home mortgage loan is located facility authorized as a branch, whether A consumer loan does not include a in the geography where the property to shared or unshared, including, for home mortgage, small business, or small which the loan relates is located; and example, a mini-branch in a grocery farm loan. Consumer loans include the (3) A small business or small farm store or a branch operated in following categories of loans: loan is located in the geography where conjunction with any other local (1) Motor vehicle loan, which is a the main business facility or farm is business or nonprofit organization. consumer loan extended for the located or where the loan proceeds (g) Community development means: purchase of and secured by a motor otherwise will be applied, as indicated (1) Affordable housing (including vehicle; by the borrower. multifamily rental housing) for low- or (2) Credit card loan, which is a line (p) Loan production office means a moderate-income individuals; of credit for household, family, or other staffed facility, other than a branch, that (2) Community services targeted to personal expenditures that is accessed is open to the public and that provides low- or moderate-income individuals; by a borrower’s use of a ‘‘credit card,’’ lending-related services, such as loan (3) Activities that promote economic as this term is defined in § 1026.2 of this information and applications. development by financing businesses or title; (q) Metropolitan division means a farms that meet the size eligibility (3) Other secured consumer loan, metropolitan division as defined by the standards of the Small Business which is a secured consumer loan that Director of the Office of Management Administration’s Development is not included in one of the other and Budget. Company or Small Business Investment categories of consumer loans; and (r) MSA means a metropolitan Company programs (13 CFR 121.301) or (4) Other unsecured consumer loan, statistical area as defined by the Director have gross annual revenues of $1 which is an unsecured consumer loan of the Office of Management and million or less; or that is not included in one of the other Budget. (4) Activities that revitalize or categories of consumer loans. (s) Nonmetropolitan area means any stabilize— (k) Geography means a census tract area that is not located in an MSA. (i) Low- or moderate-income delineated by the United States Bureau (t) Qualified investment means a geographies; of the Census in the most recent lawful investment, deposit, membership (ii) Designated disaster areas; or share, or grant that has as its primary (iii) Distressed or underserved decennial census. purpose community development. nonmetropolitan middle-income (l) Home mortgage loan means a (u) Small bank—(1) Definition. Small geographies designated by the Board of closed-end mortgage loan or an open- bank means a bank that, as of December Governors of the Federal Reserve end line of credit as these terms are 31 of either of the prior two calendar System, Federal Deposit Insurance defined under § 1003.2 of this title, and years, had assets of less than $1.305 Corporation, and OCC, based on— that is not an excluded transaction (A) Rates of poverty, unemployment, under § 1003.3(c)(1) through (10) and billion. Intermediate small bank means and population loss; or (13) of this title. a small bank with assets of at least $326 (B) Population size, density, and (m) Income level includes: million as of December 31 of both of the dispersion. Activities revitalize and (1) Low-income, which means an prior two calendar years and less than stabilize geographies designated based individual income that is less than 50 $1.305 billion as of December 31 of on population size, density, and percent of the area median income, or either of the prior two calendar years. dispersion if they help to meet essential a median family income that is less than (2) Adjustment. The dollar figures in community needs, including needs of 50 percent, in the case of a geography. paragraph (u)(1) of this section shall be low- and moderate-income individuals. (2) Moderate-income, which means an adjusted annually and published by the (h) Community development loan individual income that is at least 50 OCC, based on the year-to-year change means a loan that: percent and less than 80 percent of the in the average of the Consumer Price (1) Has as its primary purpose area median income, or a median family Index for Urban Wage Earners and community development; and income that is at least 50 and less than Clerical Workers, not seasonally (2) Except in the case of a wholesale 80 percent, in the case of a geography. adjusted, for each twelve-month period or limited purpose bank: (3) Middle-income, which means an ending in November, with rounding to (i) Has not been reported or collected individual income that is at least 80 the nearest million. by the bank or an affiliate for percent and less than 120 percent of the (v) Small business loan means a loan consideration in the bank’s assessment area median income, or a median family included in ‘‘loans to small businesses’’ as a home mortgage, small business, income that is at least 80 and less than as defined in the instructions for small farm, or consumer loan, unless the 120 percent, in the case of a geography. preparation of the Consolidated Report loan is for a multifamily dwelling (as (4) Upper-income, which means an of Condition and Income. defined in § 1003.2(n) of this title); and individual income that is 120 percent or (w) Small farm loan means a loan (ii) Benefits the bank’s assessment more of the area median income, or a included in ‘‘loans to small farms’’ as area(s) or a broader statewide or regional median family income that is 120 defined in the instructions for area that includes the bank’s assessment percent or more, in the case of a preparation of the Consolidated Report area(s). geography. of Condition and Income. (i) Community development service (n) Limited purpose bank means a (x) Wholesale bank means a bank that means a service that: bank that offers only a narrow product is not in the business of extending home
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mortgage, small business, small farm, or (4) Institutional capacity and regulations published by the U.S. consumer loans to retail customers, and constraints, including the size and Department of Education, with interest for which a designation as a wholesale financial condition of the bank, the rates and fees no greater than those of bank is in effect, in accordance with economic climate (national, regional, comparable education loans offered § 25.25(b). and local), safety and soundness directly by the U.S. Department of limitations, and any other factors that Education. Such rates and fees are Subpart B—Standards for Assessing significantly affect the bank’s ability to specified in section 455 of the Higher Performance provide lending, investments, or Education Act of 1965 (20 U.S.C. services in its assessment area(s); 1087e). § 25.21 Performance tests, standards, and (5) The bank’s past performance and (f) Activities in cooperation with ratings, in general. the performance of similarly situated minority- or women-owned financial (a) Performance tests and standards. lenders; institutions and low-income credit The OCC assesses the CRA performance (6) The bank’s public file, as unions. In assessing and taking into of a bank in an examination as follows: described in § 25.43, and any written account the record of a nonminority- (1) Lending, investment, and service comments about the bank’s CRA owned and nonwomen-owned bank tests. The OCC applies the lending, performance submitted to the bank or under this part, the OCC considers as a investment, and service tests, as the OCC; and factor capital investment, loan provided in §§ 25.22 through 25.24, in (7) Any other information deemed participation, and other ventures evaluating the performance of a bank, relevant by the OCC. undertaken by the bank in cooperation except as provided in paragraphs (a)(2), (c) Assigned ratings. The OCC assigns with minority- and women-owned (a)(3), and (a)(4) of this section. to a bank one of the following four financial institutions and low-income (2) Community development test for ratings pursuant to § 25.28 and credit unions. Such activities must help wholesale or limited purpose banks. The appendix A of this part: ‘‘outstanding’’; meet the credit needs of local OCC applies the community ‘‘satisfactory’’; ‘‘needs to improve’’; or communities in which the minority- development test for a wholesale or ‘‘substantial noncompliance’’ as and women-owned financial limited purpose bank, as provided in provided in 12 U.S.C. 2906(b)(2). The institutions and low-income credit § 25.25, except as provided in paragraph rating assigned by the OCC reflects the unions are chartered. To be considered, (a)(4) of this section. bank’s record of helping to meet the such activities need not also benefit the (3) Small bank performance credit needs of its entire community, bank’s assessment area(s) or the broader standards. The OCC applies the small including low- and moderate-income statewide or regional area that includes bank performance standards as provided neighborhoods, consistent with the safe the bank’s assessment area(s). in § 25.26 in evaluating the performance and sound operation of the bank. of a small bank or a bank that was a (d) Safe and sound operations. This § 25.22 Lending test. small bank during the prior calendar part and the CRA do not require a bank (a) Scope of test. (1) The lending test year, unless the bank elects to be to make loans or investments or to evaluates a bank’s record of helping to assessed as provided in paragraphs provide services that are inconsistent meet the credit needs of its assessment (a)(1), (a)(2), or (a)(4) of this section. The with safe and sound operations. To the area(s) through its lending activities by bank may elect to be assessed as contrary, the OCC anticipates banks can considering a bank’s home mortgage, provided in paragraph (a)(1) of this meet the standards of this part with safe small business, small farm, and section only if it collects and reports the and sound loans, investments, and community development lending. If data required for other banks under services on which the banks expect to consumer lending constitutes a § 25.42. make a profit. Banks are permitted and substantial majority of a bank’s (4) Strategic plan. The OCC evaluates encouraged to develop and apply business, the OCC will evaluate the the performance of a bank under a flexible underwriting standards for bank’s consumer lending in one or more strategic plan if the bank submits, and loans that benefit low- or moderate- of the following categories: motor the OCC approves, a strategic plan as income geographies or individuals, only vehicle, credit card, other secured, and provided in § 25.27. if consistent with safe and sound other unsecured loans. In addition, at a (b) Performance context. The OCC operations. bank’s option, the OCC will evaluate applies the tests and standards in (e) Low-cost education loans provided one or more categories of consumer paragraph (a) of this section and also to low-income borrowers. In assessing lending, if the bank has collected and considers whether to approve a and taking into account the record of a maintained, as required in § 25.42(c)(1), proposed strategic plan in the context bank under this part, the OCC considers, the data for each category that the bank of: as a factor, low-cost education loans elects to have the OCC evaluate. (1) Demographic data on median originated by the bank to borrowers, (2) The OCC considers originations income levels, distribution of household particularly in its assessment area(s), and purchases of loans. The OCC will income, nature of housing stock, who have an individual income that is also consider any other loan data the housing costs, and other relevant data less than 50 percent of the area median bank may choose to provide, including pertaining to a bank’s assessment income. For purposes of this paragraph, data on loans outstanding, commitments area(s); ‘‘low-cost education loans’’ means any and letters of credit. (2) Any information about lending, education loan, as defined in section (3) A bank may ask the OCC to investment, and service opportunities in 140(a)(7) of the Truth in Lending Act consider loans originated or purchased the bank’s assessment area(s) (15 U.S.C. 1650(a)(7)) (including a loan by consortia in which the bank maintained by the bank or obtained under a state or local education loan participates or by third parties in which from community organizations, state, program), originated by the bank for a the bank has invested only if the loans local, and tribal governments, economic student at an ‘‘institution of higher meet the definition of community development agencies, or other sources; education,’’ as that term is generally development loans and only in (3) The bank’s product offerings and defined in sections 101 and 102 of the accordance with paragraph (d) of this business strategy as determined from Higher Education Act of 1965 (20 U.S.C. section. The OCC will not consider data provided by the bank; 1001 and 1002) and the implementing these loans under any criterion of the
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lending test except the community assessment area, the bank shall elect to a bank pursuant to the following development lending criterion. have the OCC consider, in accordance criteria: (b) Performance criteria. The OCC with paragraph (c)(1) of this section, all (1) The dollar amount of qualified evaluates a bank’s lending performance the loans within that lending category in investments; pursuant to the following criteria: that particular assessment area made by (2) The innovativeness or complexity (1) Lending activity. The number and all of the bank’s affiliates. of qualified investments; amount of the bank’s home mortgage, (3) The OCC does not consider (3) The responsiveness of qualified small business, small farm, and affiliate lending in assessing a bank’s investments to credit and community consumer loans, if applicable, in the performance under paragraph (b)(2)(i) of development needs; and bank’s assessment area(s); this section. (4) The degree to which the qualified investments are not routinely provided (2) Geographic distribution. The (d) Lending by a consortium or a third by private investors. geographic distribution of the bank’s party. Community development loans home mortgage, small business, small (f) Investment performance rating. originated or purchased by a consortium The OCC rates a bank’s investment farm, and consumer loans, if applicable, in which the bank participates or by a based on the loan location, including: performance as provided in appendix A third party in which the bank has of this part. (i) The proportion of the bank’s invested: lending in the bank’s assessment area(s); (1) Will be considered, at the bank’s § 25.24 Service test. (ii) The dispersion of lending in the option, if the bank reports the data (a) Scope of test. The service test bank’s assessment area(s); and pertaining to these loans under evaluates a bank’s record of helping to (iii) The number and amount of loans § 25.42(b)(2); and meet the credit needs of its assessment in low-, moderate-, middle-, and upper- (2) May be allocated among area(s) by analyzing both the availability income geographies in the bank’s participants or investors, as they choose, and effectiveness of a bank’s systems for assessment area(s); for purposes of the lending test, except delivering retail banking services and (3) Borrower characteristics. The that no participant or investor: the extent and innovativeness of its distribution, particularly in the bank’s (i) May claim a loan origination or community development services. assessment area(s), of the bank’s home loan purchase if another participant or (b) Area(s) benefitted. Community mortgage, small business, small farm, investor claims the same loan development services must benefit a and consumer loans, if applicable, based origination or purchase; or bank’s assessment area(s) or a broader on borrower characteristics, including statewide or regional area that includes the number and amount of: (ii) May claim loans accounting for more than its percentage share (based on the bank’s assessment area(s). (i) Home mortgage loans to low-, (c) Affiliate service. At a bank’s moderate-, middle-, and upper-income the level of its participation or investment) of the total loans originated option, the OCC will consider, in its individuals; assessment of a bank’s service (ii) Small business and small farm by the consortium or third party. (e) Lending performance rating. The performance, a community development loans to businesses and farms with gross service provided by an affiliate of the annual revenues of $1 million or less; OCC rates a bank’s lending performance as provided in appendix A of this part. bank, if the community development (iii) Small business and small farm service is not claimed by any other loans by loan amount at origination; and § 25.23 Investment test. institution. (iv) Consumer loans, if applicable, to (a) Scope of test. The investment test (d) Performance criteria—retail low-, moderate-, middle-, and upper- banking services. The OCC evaluates the income individuals; evaluates a bank’s record of helping to meet the credit needs of its assessment availability and effectiveness of a bank’s (4) Community development lending. systems for delivering retail banking The bank’s community development area(s) through qualified investments that benefit its assessment area(s) or a services, pursuant to the following lending, including the number and criteria: amount of community development broader statewide or regional area that includes the bank’s assessment area(s). (1) The current distribution of the loans, and their complexity and bank’s branches among low-, moderate-, (b) Exclusion. Activities considered innovativeness; and middle-, and upper-income geographies; (5) Innovative or flexible lending under the lending or service tests may (2) In the context of its current practices. The bank’s use of innovative not be considered under the investment distribution of the bank’s branches, the or flexible lending practices in a safe test. bank’s record of opening and closing and sound manner to address the credit (c) Affiliate investment. At a bank’s branches, particularly branches located needs of low- or moderate-income option, the OCC will consider, in its in low- or moderate-income geographies individuals or geographies. assessment of a bank’s investment or primarily serving low- or moderate- (c) Affiliate lending. (1) At a bank’s performance, a qualified investment income individuals; option, the OCC will consider loans by made by an affiliate of the bank, if the (3) The availability and effectiveness an affiliate of the bank, if the bank qualified investment is not claimed by of alternative systems for delivering provides data on the affiliate’s loans any other institution. retail banking services (e.g., ATMs, pursuant to § 25.42. (d) Disposition of branch premises. ATMs not owned or operated by or (2) The OCC considers affiliate Donating, selling on favorable terms, or exclusively for the bank, banking by lending subject to the following making available on a rent-free basis a telephone or computer, loan production constraints: branch of the bank that is located in a offices, and bank-at-work or bank-by- (i) No affiliate may claim a loan predominantly minority neighborhood mail programs) in low- and moderate- origination or loan purchase if another to a minority depository institution or income geographies and to low- and institution claims the same loan women’s depository institution (as these moderate-income individuals; and origination or purchase; and terms are defined in 12 U.S.C. 2907(b)) (4) The range of services provided in (ii) If a bank elects to have the OCC will be considered as a qualified low-, moderate-, middle-, and upper- consider loans within a particular investment. income geographies and the degree to lending category made by one or more (e) Performance criteria. The OCC which the services are tailored to meet of the bank’s affiliates in a particular evaluates the investment performance of the needs of those geographies.
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(e) Performance criteria—community the investments or services are not (5) The bank’s record of taking action, development services. The OCC claimed by any other institution; and if warranted, in response to written evaluates community development (2) Community development lending complaints about its performance in services pursuant to the following by affiliates, consortia and third parties, helping to meet credit needs in its criteria: subject to the requirements and assessment area(s). (1) The extent to which the bank limitations in § 25.22(c) and (d). (c) Community development test. An provides community development (e) Benefit to assessment area(s)—(1) intermediate small bank’s community services; and Benefit inside assessment area(s). The development performance also is (2) The innovativeness and OCC considers all qualified evaluated pursuant to the following responsiveness of community investments, community development criteria: development services. loans, and community development (1) The number and amount of (f) Service performance rating. The services that benefit areas within the community development loans; (2) The number and amount of OCC rates a bank’s service performance bank’s assessment area(s) or a broader qualified investments; as provided in appendix A of this part. statewide or regional area that includes the bank’s assessment area(s). (3) The extent to which the bank § 25.25 Community development test for (2) Benefit outside assessment area(s). provides community development wholesale or limited purpose banks. The OCC considers the qualified services; and (a) Scope of test. The OCC assesses a investments, community development (4) The bank’s responsiveness through wholesale or limited purpose bank’s loans, and community development such activities to community record of helping to meet the credit services that benefit areas outside the development lending, investment, and needs of its assessment area(s) under the bank’s assessment area(s), if the bank services needs. (d) Small bank performance rating. community development test through has adequately addressed the needs of The OCC rates the performance of a its community development lending, its assessment area(s). bank evaluated under this section as qualified investments, or community (f) Community development provided in appendix A of this part. development services. performance rating. The OCC rates a (b) Designation as a wholesale or bank’s community development § 25.27 Strategic plan. limited purpose bank. In order to performance as provided in appendix A (a) Alternative election. The OCC will receive a designation as a wholesale or of this part. assess a bank’s record of helping to meet limited purpose bank, a bank shall file § 25.26 Small bank performance the credit needs of its assessment area(s) a request, in writing, with the OCC, at standards. under a strategic plan if: least three months prior to the proposed (1) The bank has submitted the plan (a) Performance criteria—(1) Small effective date of the designation. If the to the OCC as provided for in this banks that are not intermediate small OCC approves the designation, it section; banks. The OCC evaluates the record of remains in effect until the bank requests (2) The OCC has approved the plan; a small bank that is not, or that was not revocation of the designation or until (3) The plan is in effect; and during the prior calendar year, an one year after the OCC notifies the bank (4) The bank has been operating under intermediate small bank, of helping to that the OCC has revoked the an approved plan for at least one year. meet the credit needs of its assessment designation on its own initiative. (b) Data reporting. The OCC’s area(s) pursuant to the criteria set forth (c) Performance criteria. The OCC approval of a plan does not affect the in paragraph (b) of this section. bank’s obligation, if any, to report data evaluates the community development (2) Intermediate small banks. The performance of a wholesale or limited as required by § 25.42. OCC evaluates the record of a small (c) Plans in general—(1) Term. A plan purpose bank pursuant to the following bank that is, or that was during the prior criteria: may have a term of no more than five calendar year, an intermediate small years, and any multi-year plan must (1) The number and amount of bank, of helping to meet the credit community development loans include annual interim measurable needs of its assessment area(s) pursuant goals under which the OCC will (including originations and purchases of to the criteria set forth in paragraphs (b) loans and other community evaluate the bank’s performance. and (c) of this section. (2) Multiple assessment areas. A bank development loan data provided by the (b) Lending test. A small bank’s with more than one assessment area bank, such as data on loans outstanding, lending performance is evaluated may prepare a single plan for all of its commitments, and letters of credit), pursuant to the following criteria: assessment areas or one or more plans qualified investments, or community (1) The bank’s loan-to-deposit ratio, for one or more of its assessment areas. development services; adjusted for seasonal variation, and, as (3) Treatment of affiliates. Affiliated (2) The use of innovative or complex appropriate, other lending-related institutions may prepare a joint plan if qualified investments, community activities, such as loan originations for the plan provides measurable goals for development loans, or community sale to the secondary markets, each institution. Activities may be development services and the extent to community development loans, or allocated among institutions at the which the investments are not routinely qualified investments; institutions’ option, provided that the provided by private investors; and (2) The percentage of loans and, as same activities are not considered for (3) The bank’s responsiveness to appropriate, other lending-related more than one institution. credit and community development activities located in the bank’s (d) Public participation in plan needs. assessment area(s); development. Before submitting a plan (d) Indirect activities. At a bank’s (3) The bank’s record of lending to to the OCC for approval, a bank shall: option, the OCC will consider in its and, as appropriate, engaging in other (1) Informally seek suggestions from community development performance lending-related activities for borrowers members of the public in its assessment assessment: of different income levels and area(s) covered by the plan while (1) Qualified investments or businesses and farms of different sizes; developing the plan; community development services (4) The geographic distribution of the (2) Once the bank has developed a provided by an affiliate of the bank, if bank’s loans; and plan, formally solicit public comment
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on the plan for at least 30 days by substantially its plan goals for a bank performance standards, or an publishing notice in at least one satisfactory rating, the OCC will approved strategic plan, as applicable. newspaper of general circulation in each evaluate the bank’s performance under (b) Lending, investment, and service assessment area covered by the plan; the lending, investment, and service tests. The OCC assigns a rating for a and tests, the community development test, bank assessed under the lending, (3) During the period of formal public or the small bank performance investment, and service tests in comment, make copies of the plan standards, as appropriate. accordance with the following available for review by the public at no (g) Plan approval—(1) Timing. The principles: cost at all offices of the bank in any OCC will act upon a plan within 60 (1) A bank that receives an assessment area covered by the plan and calendar days after the OCC receives the ‘‘outstanding’’ rating on the lending test provide copies of the plan upon request complete plan and other material receives an assigned rating of at least for a reasonable fee to cover copying required under paragraph (e) of this ‘‘satisfactory’’; and mailing, if applicable. section. If the OCC fails to act within (2) A bank that receives an (e) Submission of plan. The bank shall this time period, the plan shall be submit its plan to the OCC at least three ‘‘outstanding’’ rating on both the service deemed approved unless the OCC test and the investment test and a rating months prior to the proposed effective extends the review period for good date of the plan. The bank shall also of at least ‘‘high satisfactory’’ on the cause. lending test receives an assigned rating submit with its plan a description of its (2) Public participation. In evaluating of ‘‘outstanding’’; and informal efforts to seek suggestions from the plan’s goals, the OCC considers the members of the public, any written public’s involvement in formulating the (3) No bank may receive an assigned public comment received, and, if the plan, written public comment on the rating of ‘‘satisfactory’’ or higher unless plan was revised in light of the plan, and any response by the bank to it receives a rating of at least ‘‘low comment received, the initial plan as public comment on the plan. satisfactory’’ on the lending test. released for public comment. (3) Criteria for evaluating plan. The (c) Effect of evidence of (f) Plan content—(1) Measurable OCC evaluates a plan’s measurable goals discriminatory or other illegal credit goals. (i) A bank shall specify in its plan using the following criteria, as practices. (1) The OCC’s evaluation of a measurable goals for helping to meet the appropriate: bank’s CRA performance is adversely credit needs of each assessment area (i) The extent and breadth of lending affected by evidence of discriminatory covered by the plan, particularly the or lending-related activities, including, or other illegal credit practices in any needs of low- and moderate-income as appropriate, the distribution of loans geography by the bank or in any geographies and low- and moderate- among different geographies, businesses assessment area by any affiliate whose income individuals, through lending, and farms of different sizes, and loans have been considered as part of investment, and services, as individuals of different income levels, the bank’s lending performance. In appropriate. the extent of community development connection with any type of lending (ii) A bank shall address in its plan all lending, and the use of innovative or activity described in § 25.22(a), three performance categories and, flexible lending practices to address evidence of discriminatory or other unless the bank has been designated as credit needs; credit practices that violate an a wholesale or limited purpose bank, (ii) The amount and innovativeness, applicable law, rule, or regulation shall emphasize lending and lending- complexity, and responsiveness of the includes, but is not limited to: related activities. Nevertheless, a bank’s qualified investments; and (i) Discrimination against applicants different emphasis, including a focus on (iii) The availability and effectiveness on a prohibited basis in violation, for one or more performance categories, of the bank’s systems for delivering example, of the Equal Credit may be appropriate if responsive to the retail banking services and the extent Opportunity Act or the Fair Housing characteristics and credit needs of its and innovativeness of the bank’s Act; assessment area(s), considering public community development services. (ii) Violations of the Home Ownership comment and the bank’s capacity and (h) Plan amendment. During the term and Equity Protection Act; constraints, product offerings, and of a plan, a bank may request the OCC (iii) Violations of section 5 of the business strategy. to approve an amendment to the plan on Federal Trade Commission Act; (2) Confidential information. A bank grounds that there has been a material (iv) Violations of section 8 of the Real may submit additional information to change in circumstances. The bank shall Estate Settlement Procedures Act; and the OCC on a confidential basis, but the develop an amendment to a previously goals stated in the plan must be approved plan in accordance with the (v) Violations of the Truth in Lending sufficiently specific to enable the public public participation requirements of Act provisions regarding a consumer’s and the OCC to judge the merits of the paragraph (d) of this section. right of rescission. plan. (i) Plan assessment. The OCC (2) In determining the effect of (3) Satisfactory and outstanding goals. approves the goals and assesses evidence of practices described in A bank shall specify in its plan performance under a plan as provided paragraph (c)(1) of this section on the measurable goals that constitute for in appendix A of this part. bank’s assigned rating, the OCC ‘‘satisfactory’’ performance. A plan may considers the nature, extent, and specify measurable goals that constitute § 25.28 Assigned ratings. strength of the evidence of the practices; ‘‘outstanding’’ performance. If a bank (a) Ratings in general. Subject to the policies and procedures that the submits, and the OCC approves, both paragraphs (b) and (c) of this section, bank (or affiliate, as applicable) has in ‘‘satisfactory’’ and ‘‘outstanding’’ the OCC assigns to a bank a rating of place to prevent the practices; any performance goals, the OCC will ‘‘outstanding,’’ ‘‘satisfactory,’’ ‘‘needs to corrective action that the bank (or consider the bank eligible for an improve,’’ or ‘‘substantial affiliate, as applicable) has taken or has ‘‘outstanding’’ performance rating. noncompliance’’ based on the bank’s committed to take, including voluntary (4) Election if satisfactory goals not performance under the lending, corrective action resulting from self- substantially met. A bank may elect in investment and service tests, the assessment; and any other relevant its plan that, if the bank fails to meet community development test, the small information.
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§ 25.29 Effect of CRA performance on were in effect as of January 1 of the predominantly consists of serving the applications. calendar year in which the delineation needs of military personnel or their (a) CRA performance. Among other is made) or one or more contiguous dependents who are not located within factors, the OCC takes into account the political subdivisions, such as counties, a defined geographic area may delineate record of performance under the CRA of cities, or towns, in which the bank has its entire deposit customer base as its each applicant bank in considering an its main office, branches, and deposit- assessment area. application for: taking ATMs. (g) Use of assessment area(s). The (1) The establishment of a domestic (c) Geographic area(s) for other banks. OCC uses the assessment area(s) branch; The assessment area(s) for a bank other delineated by a bank in its evaluation of (2) The relocation of the main office than a wholesale or limited purpose the bank’s CRA performance unless the or a branch; bank must: OCC determines that the assessment (3) Under the Bank Merger Act (12 (1) Consist generally of one or more area(s) do not comply with the U.S.C. 1828(c)), the merger or MSAs or metropolitan divisions (using requirements of this section. consolidation with or the acquisition of the MSA or metropolitan division assets or assumption of liabilities of an boundaries that were in effect as of § 25.42 Data collection, reporting, and insured depository institution; and January 1 of the calendar year in which disclosure. (4) The conversion of an insured the delineation is made) or one or more (a) Loan information required to be depository institution to a national bank contiguous political subdivisions, such collected and maintained. A bank, charter. as counties, cities, or towns; and except a small bank, shall collect, and (b) Charter application. An applicant (2) Include the geographies in which maintain in machine readable form (as (other than an insured depository the bank has its main office, its prescribed by the OCC) until the institution) for a national bank charter branches, and its deposit-taking ATMs, completion of its next CRA shall submit with its application a as well as the surrounding geographies examination, the following data for each description of how it will meet its CRA in which the bank has originated or small business or small farm loan objectives. The OCC takes the purchased a substantial portion of its originated or purchased by the bank: description into account in considering loans (including home mortgage loans, (1) A unique number or alpha- the application and may deny or small business and small farm loans, numeric symbol that can be used to condition approval on that basis. and any other loans the bank chooses, identify the relevant loan file; (c) Interested parties. The OCC takes such as those consumer loans on which (2) The loan amount at origination; into account any views expressed by the bank elects to have its performance (3) The loan location; and interested parties that are submitted in assessed). (4) An indicator whether the loan was accordance with the OCC’s procedures (d) Adjustments to geographic area(s). to a business or farm with gross annual set forth in part 5 of this chapter in A bank may adjust the boundaries of its revenues of $1 million or less. considering CRA performance in an assessment area(s) to include only the (b) Loan information required to be application listed in paragraphs (a) and portion of a political subdivision that it reported. A bank, except a small bank or (b) of this section. reasonably can be expected to serve. An a bank that was a small bank during the (d) Denial or conditional approval of adjustment is particularly appropriate in prior calendar year, shall report application. A bank’s record of the case of an assessment area that annually by March 1 to the OCC in performance may be the basis for otherwise would be extremely large, of machine readable form (as prescribed by denying or conditioning approval of an unusual configuration, or divided by the OCC) the following data for the prior application listed in paragraph (a) of significant geographic barriers. calendar year: this section. (e) Limitations on the delineation of (1) Small business and small farm (e) Insured depository institution. For an assessment area. Each bank’s loan data. For each geography in which purposes of this section, the term assessment area(s): the bank originated or purchased a ‘‘insured depository institution’’ has the (1) Must consist only of whole small business or small farm loan, the meaning given to that term in 12 U.S.C. geographies; aggregate number and amount of loans: 1813. (2) May not reflect illegal (i) With an amount at origination of discrimination; $100,000 or less; Subpart C—Records, Reporting, and (3) May not arbitrarily exclude low- or (ii) With amount at origination of Disclosure Requirements moderate-income geographies, taking more than $100,000 but less than or into account the bank’s size and equal to $250,000; § 25.41 Assessment area delineation. financial condition; and (iii) With an amount at origination of (a) In general. A bank shall delineate (4) May not extend substantially more than $250,000; and one or more assessment areas within beyond an MSA boundary or beyond a (iv) To businesses and farms with which the OCC evaluates the bank’s state boundary unless the assessment gross annual revenues of $1 million or record of helping to meet the credit area is located in a multistate MSA. If less (using the revenues that the bank needs of its community. The OCC does a bank serves a geographic area that considered in making its credit not evaluate the bank’s delineation of its extends substantially beyond a state decision); assessment area(s) as a separate boundary, the bank shall delineate (2) Community development loan performance criterion, but the OCC separate assessment areas for the areas data. The aggregate number and reviews the delineation for compliance in each state. If a bank serves a aggregate amount of community with the requirements of this section. geographic area that extends development loans originated or (b) Geographic area(s) for wholesale substantially beyond an MSA boundary, purchased; and or limited purpose banks. The the bank shall delineate separate (3) Home mortgage loans. If the bank assessment area(s) for a wholesale or assessment areas for the areas inside is subject to reporting under part 1003 limited purpose bank must consist and outside the MSA. of this title, the location of each home generally of one or more MSAs or (f) Banks serving military personnel. mortgage loan application, origination, metropolitan divisions (using the MSA Notwithstanding the requirements of or purchase outside the MSAs in which or metropolitan division boundaries that this section, a bank whose business the bank has a home or branch office (or
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outside any MSA) in accordance with required for other banks pursuant to more but less than 80 percent, 80 or the requirements of part 1003 of this paragraphs (a) and (b) of this section. more but less than 90 percent, 90 or title. (g) Assessment area data. A bank, more but less than 100 percent, 100 or (c) Optional data collection and except a small bank or a bank that was more but less than 110 percent, 110 or maintenance—(1) Consumer loans. A a small bank during the prior calendar more but less than 120 percent, and 120 bank may collect and maintain in year, shall collect and report to the OCC percent or more; machine readable form (as prescribed by by March 1 of each year a list for each (iii) A list showing each geography in the OCC) data for consumer loans assessment area showing the which the bank reported a small originated or purchased by the bank for geographies within the area. business or small farm loan; and consideration under the lending test. A (h) CRA Disclosure Statement. The (iv) The number and amount of small bank may maintain data for one or more OCC prepares annually for each bank business and small farm loans to of the following categories of consumer that reports data pursuant to this section businesses and farms with gross annual loans: Motor vehicle, credit card, other a CRA Disclosure Statement that revenues of $1 million or less; secured, and other unsecured. If the contains, on a state-by-state basis: (3) The number and amount of small bank maintains data for loans in a (1) For each county (and for each business and small farm loans located certain category, it shall maintain data assessment area smaller than a county) inside each assessment area reported by for all loans originated or purchased with a population of 500,000 persons or the bank and the number and amount of within that category. The bank shall fewer in which the bank reported a small business and small farm loans maintain data separately for each small business or small farm loan: located outside the assessment area(s) category, including for each loan: (i) The number and amount of small reported by the bank; and (i) A unique number or alpha-numeric business and small farm loans reported (4) The number and amount of symbol that can be used to identify the as originated or purchased located in community development loans reported relevant loan file; low-, moderate-, middle-, and upper- as originated or purchased. (ii) The loan amount at origination or income geographies; (i) Aggregate disclosure statements. (ii) A list grouping each geography purchase; The OCC, in conjunction with the Board according to whether the geography is (iii) The loan location; and of Governors of the Federal Reserve low-, moderate-, middle-, or upper- System and the Federal Deposit (iv) The gross annual income of the income; Insurance Corporation, prepares borrower that the bank considered in (iii) A list showing each geography in annually, for each MSA or metropolitan making its credit decision. which the bank reported a small division (including an MSA or (2) Other loan data. At its option, a business or small farm loan; and metropolitan division that crosses a bank may provide other information (iv) The number and amount of small state boundary) and the concerning its lending performance, business and small farm loans to nonmetropolitan portion of each state, including additional loan distribution businesses and farms with gross annual an aggregate disclosure statement of data. revenues of $1 million or less; small business and small farm lending (d) Data on affiliate lending. A bank (2) For each county (and for each by all institutions subject to reporting that elects to have the OCC consider assessment area smaller than a county) under this part or parts 195, 228, or 345 loans by an affiliate, for purposes of the with a population in excess of 500,000 of this title. These disclosure statements lending or community development test persons in which the bank reported a indicate, for each geography, the or an approved strategic plan, shall small business or small farm loan: number and amount of all small collect, maintain, and report for those (i) The number and amount of small business and small farm loans loans the data that the bank would have business and small farm loans reported originated or purchased by reporting collected, maintained, and reported as originated or purchased located in institutions, except that the OCC may pursuant to paragraphs (a), (b), and (c) geographies with median income adjust the form of the disclosure if of this section had the loans been relative to the area median income of necessary, because of special originated or purchased by the bank. For less than 10 percent, 10 or more but less circumstances, to protect the privacy of home mortgage loans, the bank shall than 20 percent, 20 or more but less a borrower or the competitive position also be prepared to identify the home than 30 percent, 30 or more but less of an institution. mortgage loans reported under part 1003 than 40 percent, 40 or more but less (j) Central data depositories. The OCC of this title by the affiliate. than 50 percent, 50 or more but less makes the aggregate disclosure (e) Data on lending by a consortium than 60 percent, 60 or more but less statements, described in paragraph (i) of or a third party. A bank that elects to than 70 percent, 70 or more but less this section, and the individual bank have the OCC consider community than 80 percent, 80 or more but less CRA Disclosure Statements, described development loans by a consortium or than 90 percent, 90 or more but less in paragraph (h) of this section, third party, for purposes of the lending than 100 percent, 100 or more but less available to the public at central data or community development tests or an than 110 percent, 110 or more but less depositories. The OCC publishes a list approved strategic plan, shall report for than 120 percent, and 120 percent or of the depositories at which the those loans the data that the bank would more; statements are available. have reported under paragraph (b)(2) of (ii) A list grouping each geography in this section had the loans been the county or assessment area according § 25.43 Content and availability of public originated or purchased by the bank. to whether the median income in the file. (f) Small banks electing evaluation geography relative to the area median (a) Information available to the under the lending, investment, and income is less than 10 percent, 10 or public. A bank shall maintain a public service tests. A bank that qualifies for more but less than 20 percent, 20 or file that includes the following evaluation under the small bank more but less than 30 percent, 30 or information: performance standards but elects more but less than 40 percent, 40 or (1) All written comments received evaluation under the lending, more but less than 50 percent, 50 or from the public for the current year and investment, and service tests shall more but less than 60 percent, 60 or each of the prior two calendar years that collect, maintain, and report the data more but less than 70 percent, 70 or specifically relate to the bank’s
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performance in helping to meet business days of its receipt from the (ii) Within five calendar days of the community credit needs, and any OCC. request, all the information in the public response to the comments by the bank, (2) Banks required to report Home file relating to the assessment area in if neither the comments nor the Mortgage Disclosure Act (HMDA) data. which the branch is located. responses contain statements that reflect A bank required to report home (d) Copies. Upon request, a bank shall adversely on the good name or mortgage loan data pursuant part 1003 provide copies, either on paper or in reputation of any persons other than the of this title shall include in its public another form acceptable to the person bank or publication of which would file a written notice that the institution’s making the request, of the information violate specific provisions of law; HMDA Disclosure Statement may be in its public file. The bank may charge (2) A copy of the public section of the obtained on the Consumer Financial a reasonable fee not to exceed the cost bank’s most recent CRA Performance Protection Bureau’s (Bureau’s) website of copying and mailing (if applicable). Evaluation prepared by the OCC. The at www.consumerfinance.gov/hmda. In (e) Updating. Except as otherwise bank shall place this copy in the public addition, a bank that elected to have the provided in this section, a bank shall file within 30 business days after its OCC consider the mortgage lending of ensure that the information required by receipt from the OCC; an affiliate shall include in its public this section is current as of April 1 of (3) A list of the bank’s branches, their file the name of the affiliate and a each year. street addresses, and geographies; written notice that the affiliate’s HMDA § 25.44 Public notice by banks. (4) A list of branches opened or closed Disclosure Statement may be obtained at A bank shall provide in the public by the bank during the current year and the Bureau’s website. The bank shall each of the prior two calendar years, lobby of its main office and each of its place the written notice(s) in the public branches the appropriate public notice their street addresses, and geographies; file within three business days after (5) A list of services (including hours set forth in appendix B of this part. Only receiving notification from the Federal a branch of a bank having more than one of operation, available loan and deposit Financial Institutions Examination products, and transaction fees) generally assessment area shall include the Council of the availability of the bracketed material in the notice for offered at the bank’s branches and disclosure statement(s). descriptions of material differences in branch offices. Only a bank that is an (3) Small banks. A small bank or a affiliate of a holding company shall the availability or cost of services at bank that was a small bank during the particular branches, if any. At its option, include the next to the last sentence of prior calendar year shall include in its the notices. A bank shall include the a bank may include information public file: regarding the availability of alternative last sentence of the notices only if it is (i) The bank’s loan-to-deposit ratio for an affiliate of a holding company that is systems for delivering retail banking each quarter of the prior calendar year services (e.g., ATMs, ATMs not owned not prevented by statute from acquiring and, at its option, additional data on its additional banks. or operated by or exclusively for the loan-to-deposit ratio; and bank, banking by telephone or (ii) The information required for other § 25.45 Publication of planned computer, loan production offices, and banks by paragraph (b)(1) of this section, examination schedule. bank-at-work or bank-by-mail if the bank has elected to be evaluated The OCC publishes at least 30 days in programs); under the lending, investment, and advance of the beginning of each (6) A map of each assessment area service tests. calendar quarter a list of banks showing the boundaries of the area and (4) Banks with strategic plans. A bank scheduled for CRA examinations in that identifying the geographies contained that has been approved to be assessed quarter. within the area, either on the map or in under a strategic plan shall include in a separate list; and its public file a copy of that plan. A Subpart D [Reserved] (7) Any other information the bank bank need not include information chooses. Subpart E—Prohibition Against Use of submitted to the OCC on a confidential (b) Additional information available Interstate Branches Primarily for basis in conjunction with the plan. to the public—(1) Banks other than Deposit Production small banks. A bank, except a small (5) Banks with less than satisfactory bank or a bank that was a small bank ratings. A bank that received a less than § 25.61 Purpose and scope. during the prior calendar year, shall satisfactory rating during its most recent (a) Purpose. The purpose of this include in its public file the following examination shall include in its public subpart is to implement section 109 (12 information pertaining to the bank and file a description of its current efforts to U.S.C. 1835a) of the Riegle-Neal its affiliates, if applicable, for each of improve its performance in helping to Interstate Banking and Branching the prior two calendar years: meet the credit needs of its entire Efficiency Act of 1994 (Interstate Act). (i) If the bank has elected to have one community. The bank shall update the (b) Scope. (1) This subpart applies to or more categories of its consumer loans description quarterly. any national bank that has operated a considered under the lending test, for (c) Location of public information. A covered interstate branch for a period of each of these categories, the number and bank shall make available to the public at least one year, and any foreign bank amount of loans: for inspection upon request and at no that has operated a covered interstate (A) To low-, moderate-, middle-, and cost the information required in this branch that is a Federal branch for a upper-income individuals; section as follows: period of at least one year. (B) Located in low-, moderate-, (1) At the main office and, if an (2) This subpart describes the middle-, and upper-income census interstate bank, at one branch office in requirements imposed under 12 U.S.C. tracts; and each state, all information in the public 1835a, which requires the appropriate (C) Located inside the bank’s file; and Federal banking agencies (the OCC, the assessment area(s) and outside the (2) At each branch: Board of Governors of the Federal bank’s assessment area(s); and (i) A copy of the public section of the Reserve System, and the Federal Deposit (ii) The bank’s CRA Disclosure bank’s most recent CRA Performance Insurance Corporation) to prescribe Statement. The bank shall place the Evaluation and a list of services uniform rules that prohibit a bank from statement in the public file within three provided by the branch; and using any authority to engage in
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interstate branching pursuant to the (e) Host State means a State in which circumstances where there was a low Interstate Act, or any amendment made a covered interstate branch is loan-to-deposit ratio because of the by the Interstate Act to any other established or acquired. nature of the acquired institution’s provision of law, primarily for the (f) Host state loan-to-deposit ratio business or loan portfolio; purpose of deposit production. generally means, with respect to a (3) Whether covered interstate particular host state, the ratio of total branches have a high concentration of § 25.62 Definitions. loans in the host state relative to total commercial or credit card lending, trust For purposes of this subpart, the deposits from the host state for all banks services, or other specialized activities, following definitions apply: (including institutions covered under including the extent to which the (a) Bank means, unless the context the definition of ‘‘bank’’ in 12 U.S.C. covered interstate branches accept indicates otherwise: 1813(a)(1)) that have that state as their deposits in the host state; (1) A national bank; and home state, as determined and updated (4) The CRA ratings received by the (2) A foreign bank as that term is periodically by the appropriate Federal bank, if any; defined in 12 U.S.C. 3101(7) and 12 CFR banking agencies and made available to (5) Economic conditions, including 28.11(j). the public. the level of loan demand, within the (b) Covered interstate branch means: (g) Out-of-State bank holding communities served by the covered (1) Any branch of a national bank, and company means, with respect to any interstate branches; any Federal branch of a foreign bank, State, a bank holding company whose (6) The safe and sound operation and that: home State is another State. condition of the bank; and (i) Is established or acquired outside (h) State means state as that term is (7) The OCC’s CRA regulations the bank’s home State pursuant to the defined in 12 U.S.C. 1813(a)(3). (subparts A through D of this part) and interstate branching authority granted (i) Statewide loan-to-deposit ratio interpretations of those regulations. by the Interstate Act or by any means, with respect to a bank, the ratio amendment made by the Interstate Act of the bank’s loans to its deposits in a § 25.65 Sanctions. to any other provision of law; or state in which the bank has one or more (a) In general. If the OCC determines (ii) Could not have been established covered interstate branches, as that a bank is not reasonably helping to or acquired outside of the bank’s home determined by the OCC. meet the credit needs of the State but for the establishment or communities served by the bank in the acquisition of a branch described in § 25.63 Loan-to-deposit ratio screen. host state, and that the bank’s statewide paragraph (b)(1)(i) of this section; and (a) Application of screen. Beginning loan-to-deposit ratio is less than 50 (2) Any bank or branch of a bank no earlier than one year after a covered percent of the host state loan-to-deposit controlled by an out-of-State bank interstate branch is acquired or ratio, the OCC: holding company. established, the OCC will consider (1) May order that a bank’s covered (c) Federal branch means Federal whether the bank’s statewide loan-to- interstate branch or branches be closed branch as that term is defined in 12 deposit ratio is less than 50 percent of unless the bank provides reasonable U.S.C. 3101(6) and 12 CFR 28.11(i). the relevant host State loan-to-deposit assurances to the satisfaction of the (d) Home State means: ratio. OCC, after an opportunity for public (1) With respect to a State bank, the (b) Results of screen. (1) If the OCC comment, that the bank has an State that chartered the bank; determines that the bank’s statewide acceptable plan under which the bank (2) With respect to a national bank, loan-to-deposit ratio is 50 percent or will reasonably help to meet the credit the State in which the main office of the more of the host state loan-to-deposit needs of the communities served by the bank is located; ratio, no further consideration under bank in the host state; and (3) With respect to a bank holding this subpart is required. (2) Will not permit the bank to open company, the State in which the total (2) If the OCC determines that the a new branch in the host state that deposits of all banking subsidiaries of bank’s statewide loan-to-deposit ratio is would be considered to be a covered such company are the largest on the less than 50 percent of the host state interstate branch unless the bank later of: loan-to-deposit ratio, or if reasonably provides reasonable assurances to the (i) July 1, 1966; or available data are insufficient to satisfaction of the OCC, after an (ii) The date on which the company calculate the bank’s statewide loan-to- opportunity for public comment, that becomes a bank holding company under deposit ratio, the OCC will make a the bank will reasonably help to meet the Bank Holding Company Act; credit needs determination for the bank the credit needs of the community that (4) With respect to a foreign bank: as provided in § 25.64. the new branch will serve. (i) For purposes of determining (b) Notice prior to closure of a covered whether a U.S. branch of a foreign bank § 25.64 Credit needs determination. interstate branch. Before exercising the is a covered interstate branch, the home (a) In general. The OCC will review OCC’s authority to order the bank to State of the foreign bank as determined the loan portfolio of the bank and close a covered interstate branch, the in accordance with 12 U.S.C. 3103(c) determine whether the bank is OCC will issue to the bank a notice of and 12 CFR 28.11(o); and reasonably helping to meet the credit the OCC’s intent to order the closure (ii) For purposes of determining needs of the communities in the host and will schedule a hearing within 60 whether a branch of a U.S. bank state that are served by the bank. days of issuing the notice. controlled by a foreign bank is a covered (b) Guidelines. The OCC will use the (c) Hearing. The OCC will conduct a interstate branch, the State in which the following considerations as guidelines hearing scheduled under paragraph (b) total deposits of all banking subsidiaries when making the determination of this section in accordance with the of such foreign bank are the largest on pursuant to paragraph (a) of this section: provisions of 12 U.S.C. 1818(h) and 12 the later of: (1) Whether covered interstate CFR part 19. (A) July 1, 1966; or branches were formerly part of a failed (B) The date on which the foreign or failing depository institution; Appendix A to Part 25—Ratings bank becomes a bank holding company (2) Whether covered interstate (a) Ratings in general. (1) In assigning a under the Bank Holding Company Act. branches were acquired under rating, the OCC evaluates a bank’s
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performance under the applicable (E) A good record of serving the credit (G) It has made a low level of community performance criteria in this part, in needs of highly economically disadvantaged development loans. accordance with §§ 25.21 and 25.28. This areas in its assessment area(s), low-income (v) Substantial noncompliance. The OCC includes consideration of low-cost education individuals, or businesses (including farms) rates a bank’s lending performance as being loans provided to low-income borrowers and with gross annual revenues of $1 million or in ‘‘substantial noncompliance’’ if, in activities in cooperation with minority- or less, consistent with safe and sound general, it demonstrates: women-owned financial institutions and operations; (A) A very poor responsiveness to credit low-income credit unions, as well as (F) Use of innovative or flexible lending needs in its assessment area(s), taking into adjustments on the basis of evidence of practices in a safe and sound manner to account the number and amount of home discriminatory or other illegal credit address the credit needs of low- or moderate- mortgage, small business, small farm, and practices. income individuals or geographies; and consumer loans, if applicable, in its (2) A bank’s performance need not fit each (G) It has made a relatively high level of assessment area(s); aspect of a particular rating profile in order community development loans. (B) A very small percentage of its loans are to receive that rating, and exceptionally (iii) Low satisfactory. The OCC rates a made in its assessment area(s); strong performance with respect to some bank’s lending performance ‘‘low (C) A very poor geographic distribution of aspects may compensate for weak satisfactory’’ if, in general, it demonstrates: loans, particularly to low- or moderate- performance in others. The bank’s overall (A) Adequate responsiveness to credit income geographies, in its assessment area(s); performance, however, must be consistent needs in its assessment area(s), taking into (D) A very poor distribution, particularly in with safe and sound banking practices and account the number and amount of home generally with the appropriate rating profile mortgage, small business, small farm, and its assessment area(s), of loans among as follows. consumer loans, if applicable, in its individuals of different income levels and (b) Banks evaluated under the lending, assessment area(s); businesses (including farms) of different investment, and service tests—(1) Lending (B) An adequate percentage of its loans are sizes, given the product lines offered by the performance rating. The OCC assigns each made in its assessment area(s); bank; bank’s lending performance one of the five (C) An adequate geographic distribution of (E) A very poor record of serving the credit following ratings. loans in its assessment area(s); needs of highly economically disadvantaged (i) Outstanding. The OCC rates a bank’s (D) An adequate distribution, particularly areas in its assessment area(s), low-income lending performance ‘‘outstanding’’ if, in in its assessment area(s), of loans among individuals, or businesses (including farms) general, it demonstrates: individuals of different income levels and with gross annual revenues of $1 million or (A) Excellent responsiveness to credit businesses (including farms) of different less, consistent with safe and sound needs in its assessment area(s), taking into sizes, given the product lines offered by the operations; account the number and amount of home bank; (F) No use of innovative or flexible lending mortgage, small business, small farm, and (E) An adequate record of serving the credit practices in a safe and sound manner to consumer loans, if applicable, in its needs of highly economically disadvantaged address the credit needs of low- or moderate- assessment area(s); areas in its assessment area(s), low-income income individuals or geographies; and (B) A substantial majority of its loans are individuals, or businesses (including farms) (G) It has made few, if any, community made in its assessment area(s); with gross annual revenues of $1 million or development loans. (C) An excellent geographic distribution of less, consistent with safe and sound (2) Investment performance rating. The loans in its assessment area(s); operations; OCC assigns each bank’s investment (D) An excellent distribution, particularly (F) Limited use of innovative or flexible performance one of the five following ratings. in its assessment area(s), of loans among lending practices in a safe and sound manner (i) Outstanding. The OCC rates a bank’s individuals of different income levels and to address the credit needs of low- or investment performance ‘‘outstanding’’ if, in businesses (including farms) of different moderate-income individuals or geographies; general, it demonstrates: sizes, given the product lines offered by the and (A) An excellent level of qualified bank; (G) It has made an adequate level of investments, particularly those that are not (E) An excellent record of serving the community development loans. routinely provided by private investors, often credit needs of highly economically (iv) Needs to improve. The OCC rates a in a leadership position; disadvantaged areas in its assessment area(s), bank’s lending performance ‘‘needs to (B) Extensive use of innovative or complex low-income individuals, or businesses improve’’ if, in general, it demonstrates: qualified investments; and (including farms) with gross annual revenues (A) Poor responsiveness to credit needs in (C) Excellent responsiveness to credit and of $1 million or less, consistent with safe and its assessment area(s), taking into account the community development needs. sound operations; number and amount of home mortgage, small (ii) High satisfactory. The OCC rates a (F) Extensive use of innovative or flexible business, small farm, and consumer loans, if bank’s investment performance ‘‘high lending practices in a safe and sound manner applicable, in its assessment area(s); satisfactory’’ if, in general, it demonstrates: to address the credit needs of low- or (B) A small percentage of its loans are (A) A significant level of qualified moderate-income individuals or geographies; made in its assessment area(s); investments, particularly those that are not and (C) A poor geographic distribution of loans, (G) It is a leader in making community particularly to low- or moderate-income routinely provided by private investors, development loans. geographies, in its assessment area(s); occasionally in a leadership position; (ii) High satisfactory. The OCC rates a (D) A poor distribution, particularly in its (B) Significant use of innovative or bank’s lending performance ‘‘high assessment area(s), of loans among complex qualified investments; and satisfactory’’ if, in general, it demonstrates: individuals of different income levels and (C) Good responsiveness to credit and (A) Good responsiveness to credit needs in businesses (including farms) of different community development needs. its assessment area(s), taking into account the sizes, given the product lines offered by the (iii) Low satisfactory. The OCC rates a number and amount of home mortgage, small bank; bank’s investment performance ‘‘low business, small farm, and consumer loans, if (E) A poor record of serving the credit satisfactory’’ if, in general, it demonstrates: applicable, in its assessment area(s); needs of highly economically disadvantaged (A) An adequate level of qualified (B) A high percentage of its loans are made areas in its assessment area(s), low-income investments, particularly those that are not in its assessment area(s); individuals, or businesses (including farms) routinely provided by private investors, (C) A good geographic distribution of loans with gross annual revenues of $1 million or although rarely in a leadership position; in its assessment area(s); less, consistent with safe and sound (B) Occasional use of innovative or (D) A good distribution, particularly in its operations; complex qualified investments; and assessment area(s), of loans among (F) Little use of innovative or flexible (C) Adequate responsiveness to credit and individuals of different income levels and lending practices in a safe and sound manner community development needs. businesses (including farms) of different to address the credit needs of low- or (iv) Needs to improve. The OCC rates a sizes, given the product lines offered by the moderate-income individuals or geographies; bank’s investment performance ‘‘needs to bank; and improve’’ if, in general, it demonstrates:
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(A) A poor level of qualified investments, particularly in low- and moderate-income (iii) Excellent responsiveness to credit and particularly those that are not routinely geographies and to low- and moderate- community development needs in its provided by private investors; income individuals; assessment area(s). (B) Rare use of innovative or complex (C) Its services (including, where (2) Satisfactory. The OCC rates a wholesale qualified investments; and appropriate, business hours) do not vary in or limited purpose bank’s community (C) Poor responsiveness to credit and a way that inconveniences its assessment development performance ‘‘satisfactory’’ if, community development needs. area(s), particularly low- and moderate- in general, it demonstrates: (v) Substantial noncompliance. The OCC income geographies and low- and moderate- (i) An adequate level of community rates a bank’s investment performance as income individuals; and development loans, community development being in ‘‘substantial noncompliance’’ if, in (D) It provides an adequate level of services, or qualified investments, general, it demonstrates: community development services. particularly investments that are not (A) Few, if any, qualified investments, (iv) Needs to improve. The OCC rates a routinely provided by private investors; particularly those that are not routinely bank’s service performance ‘‘needs to (ii) Occasional use of innovative or provided by private investors; improve’’ if, in general, the bank complex qualified investments, community (B) No use of innovative or complex demonstrates: development loans, or community qualified investments; and (A) Its service delivery systems are development services; and (C) Very poor responsiveness to credit and unreasonably inaccessible to portions of its (iii) Adequate responsiveness to credit and community development needs. assessment area(s), particularly to low- or community development needs in its (3) Service performance rating. The OCC moderate-income geographies or to low- or assessment area(s). assigns each bank’s service performance one moderate-income individuals; (3) Needs to improve. The OCC rates a of the five following ratings. (B) To the extent changes have been made, wholesale or limited purpose bank’s (i) Outstanding. The OCC rates a bank’s its record of opening and closing branches community development performance as service performance ‘‘outstanding’’ if, in has adversely affected the accessibility its ‘‘needs to improve’’ if, in general, it general, the bank demonstrates: delivery systems, particularly in low- or demonstrates: (A) Its service delivery systems are readily moderate-income geographies or to low- or (i) A poor level of community development accessible to geographies and individuals of moderate-income individuals; loans, community development services, or different income levels in its assessment (C) Its services (including, where qualified investments, particularly area(s); appropriate, business hours) vary in a way investments that are not routinely provided (B) To the extent changes have been made, that inconveniences its assessment area(s), by private investors; its record of opening and closing branches particularly low- or moderate-income (ii) Rare use of innovative or complex has improved the accessibility of its delivery geographies or low- or moderate-income qualified investments, community systems, particularly in low- or moderate- individuals; and development loans, or community income geographies or to low- or moderate- (D) It provides a limited level of development services; and income individuals; community development services. (iii) Poor responsiveness to credit and (C) Its services (including, where (v) Substantial noncompliance. The OCC community development needs in its appropriate, business hours) are tailored to rates a bank’s service performance as being assessment area(s). the convenience and needs of its assessment in ‘‘substantial noncompliance’’ if, in (4) Substantial noncompliance. The OCC area(s), particularly low- or moderate-income general, the bank demonstrates: rates a wholesale or limited purpose bank’s geographies or low- or moderate-income (A) Its service delivery systems are community development performance in individuals; and unreasonably inaccessible to significant ‘‘substantial noncompliance’’ if, in general, it (D) It is a leader in providing community portions of its assessment area(s), particularly demonstrates: development services. to low- or moderate-income geographies or to (i) Few, if any, community development (ii) High satisfactory. The OCC rates a low- or moderate-income individuals; loans, community development services, or bank’s service performance ‘‘high (B) To the extent changes have been made, qualified investments, particularly satisfactory’’ if, in general, the bank its record of opening and closing branches investments that are not routinely provided demonstrates: has significantly adversely affected the by private investors; (A) Its service delivery systems are accessibility of its delivery systems, (ii) No use of innovative or complex accessible to geographies and individuals of particularly in low- or moderate-income qualified investments, community different income levels in its assessment geographies or to low- or moderate-income development loans, or community area(s); individuals; development services; and (B) To the extent changes have been made, (C) Its services (including, where (iii) Very poor responsiveness to credit and its record of opening and closing branches appropriate, business hours) vary in a way community development needs in its has not adversely affected the accessibility of that significantly inconveniences its assessment area(s). its delivery systems, particularly in low- and assessment area(s), particularly low- or (d) Banks evaluated under the small bank moderate-income geographies and to low- moderate-income geographies or low- or performance standards—(1) Lending test and moderate-income individuals; moderate-income individuals; and ratings. (i) Eligibility for a satisfactory (C) Its services (including, where (D) It provides few, if any, community lending test rating. The OCC rates a small appropriate, business hours) do not vary in development services. bank’s lending performance ‘‘satisfactory’’ if, a way that inconveniences its assessment (c) Wholesale or limited purpose banks. in general, the bank demonstrates: area(s), particularly low- and moderate- The OCC assigns each wholesale or limited (A) A reasonable loan-to-deposit ratio income geographies and low- and moderate- purpose bank’s community development (considering seasonal variations) given the income individuals; and performance one of the four following bank’s size, financial condition, the credit (D) It provides a relatively high level of ratings. needs of its assessment area(s), and taking community development services. (1) Outstanding. The OCC rates a into account, as appropriate, other lending- (iii) Low satisfactory. The OCC rates a wholesale or limited purpose bank’s related activities such as loan originations for bank’s service performance ‘‘low community development performance sale to the secondary markets and satisfactory’’ if, in general, the bank ‘‘outstanding’’ if, in general, it demonstrates: community development loans and qualified demonstrates: (i) A high level of community development investments; (A) Its service delivery systems are loans, community development services, or (B) A majority of its loans and, as reasonably accessible to geographies and qualified investments, particularly appropriate, other lending-related activities, individuals of different income levels in its investments that are not routinely provided are in its assessment area; assessment area(s); by private investors; (C) A distribution of loans to and, as (B) To the extent changes have been made, (ii) Extensive use of innovative or complex appropriate, other lending-related activities its record of opening and closing branches qualified investments, community for individuals of different income levels has generally not adversely affected the development loans, or community (including low- and moderate-income accessibility of its delivery systems, development services; and individuals) and businesses and farms of
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different sizes that is reasonable given the (B) A small bank that is not an public section of our most recent CRA demographics of the bank’s assessment intermediate small bank that meets each of Performance Evaluation, prepared by the area(s); the standards for a ‘‘satisfactory’’ rating Comptroller; and comments received from (D) A record of taking appropriate action, under the lending test and exceeds some or the public relating to our performance in when warranted, in response to written all of those standards may warrant helping to meet community credit needs, as complaints, if any, about the bank’s consideration for an overall rating of well as our responses to those comments. performance in helping to meet the credit ‘‘outstanding.’’ In assessing whether a bank’s You may review this information today. needs of its assessment area(s); and performance is ‘‘outstanding,’’ the OCC At least 30 days before the beginning of (E) A reasonable geographic distribution of considers the extent to which the bank each quarter, the Comptroller publishes a loans given the bank’s assessment area(s). exceeds each of the performance standards nationwide list of the banks that are (ii) Eligibility for an ‘‘outstanding’’ lending for a ‘‘satisfactory’’ rating and its scheduled for CRA examination in that test rating. A small bank that meets each of performance in making qualified investments quarter. This list is available from the Deputy the standards for a ‘‘satisfactory’’ rating and its performance in providing branches Comptroller (address). You may send written under this paragraph and exceeds some or all and other services and delivery systems that comments about our performance in helping of those standards may warrant consideration enhance credit availability in its assessment to meet community credit needs to (name for a lending test rating of ‘‘outstanding.’’ area(s). and address of official at bank) and Deputy (iii) Needs to improve or substantial (iii) Needs to improve or substantial Comptroller (address). Your letter, together noncompliance ratings. A small bank may noncompliance overall ratings. A small bank with any response by us, will be considered also receive a lending test rating of ‘‘needs to may also receive a rating of ‘‘needs to by the Comptroller in evaluating our CRA improve’’ or ‘‘substantial noncompliance’’ improve’’ or ‘‘substantial noncompliance’’ performance and may be made public. depending on the degree to which its depending on the degree to which its You may ask to look at any comments performance has failed to meet the standard performance has failed to meet the standards received by the Deputy Comptroller. You for a ‘‘satisfactory’’ rating. for a ‘‘satisfactory’’ rating. may also request from the Deputy (2) Community development test ratings for (e) Strategic plan assessment and rating— Comptroller an announcement of our intermediate small banks—(i) Eligibility for a (1) Satisfactory goals. The OCC approves as applications covered by the CRA filed with satisfactory community development test ‘‘satisfactory’’ measurable goals that the Comptroller. We are an affiliate of (name rating. The OCC rates an intermediate small adequately help to meet the credit needs of of holding company), a bank holding bank’s community development performance the bank’s assessment area(s). company. You may request from the (title of ‘‘satisfactory’’ if the bank demonstrates (2) Outstanding goals. If the plan identifies responsible official), Federal Reserve Bank of adequate responsiveness to the community a separate group of measurable goals that lllllllll (address) an development needs of its assessment area(s) substantially exceed the levels approved as announcement of applications covered by the through community development loans, ‘‘satisfactory,’’ the OCC will approve those CRA filed by bank holding companies. qualified investments, and community goals as ‘‘outstanding.’’ (b) Notice for branch offices. development services. The adequacy of the (3) Rating. The OCC assesses the bank’s response will depend on its capacity performance of a bank operating under an Community Reinvestment Act Notice for such community development activities, approved plan to determine if the bank has Under the Federal Community its assessment area’s need for such met its plan goals: Reinvestment Act (CRA), the Comptroller of community development activities, and the (i) If the bank substantially achieves its the Currency evaluates our record of helping availability of such opportunities for plan goals for a satisfactory rating, the OCC to meet the credit needs of this community community development in the bank’s will rate the bank’s performance under the consistent with safe and sound operations. assessment area(s). plan as ‘‘satisfactory.’’ The Comptroller also takes this record into (ii) Eligibility for an outstanding (ii) If the bank exceeds its plan goals for account when deciding on certain community development test rating. The a satisfactory rating and substantially applications submitted by us. OCC rates an intermediate small bank’s achieves its plan goals for an outstanding Your involvement is encouraged. community development performance rating, the OCC will rate the bank’s You are entitled to certain information ‘‘outstanding’’ if the bank demonstrates performance under the plan as about our operations and our performance excellent responsiveness to community ‘‘outstanding.’’ under the CRA. You may review today the development needs in its assessment area(s) (iii) If the bank fails to meet substantially public section of our most recent CRA through community development loans, its plan goals for a satisfactory rating, the evaluation, prepared by the Comptroller, and qualified investments, and community OCC will rate the bank as either ‘‘needs to a list of services provided at this branch. You development services, as appropriate, improve’’ or ‘‘substantial noncompliance,’’ may also have access to the following considering the bank’s capacity and the need depending on the extent to which it falls additional information, which we will make and availability of such opportunities for short of its plan goals, unless the bank available to you at this branch within five community development in the bank’s elected in its plan to be rated otherwise, as calendar days after you make a request to us: assessment area(s). provided in § 25.27(f)(4). (1) A map showing the assessment area (iii) Needs to improve or substantial Appendix B to Part 25—CRA Notice containing this branch, which is the area in noncompliance ratings. An intermediate which the Comptroller evaluates our CRA small bank may also receive a community (a) Notice for main offices and, if an performance in this community; (2) development test rating of ‘‘needs to interstate bank, one branch office in each information about our branches in this improve’’ or ‘‘substantial noncompliance’’ state. assessment area; (3) a list of services we depending on the degree to which its Community Reinvestment Act Notice provide at those locations; (4) data on our performance has failed to meet the standards lending performance in this assessment area; for a ‘‘satisfactory’’ rating. Under the Federal Community and (5) copies of all written comments (3) Overall rating—(i) Eligibility for a Reinvestment Act (CRA), the Comptroller of received by us that specifically relate to our satisfactory overall rating. No intermediate the Currency evaluates our record of helping CRA performance in this assessment area, small bank may receive an assigned overall to meet the credit needs of this community and any responses we have made to those rating of ‘‘satisfactory’’ unless it receives a consistent with safe and sound operations. comments. If we are operating under an rating of at least ‘‘satisfactory’’ on both the The Comptroller also takes this record into approved strategic plan, you may also have lending test and the community development account when deciding on certain access to a copy of the plan. test. applications submitted by us. [If you would like to review information (ii) Eligibility for an outstanding overall Your involvement is encouraged. about our CRA performance in other rating. (A) An intermediate small bank that You are entitled to certain information communities served by us, the public file for receives an ‘‘outstanding’’ rating on one test about our operations and our performance our entire bank is available at (name of office and at least ‘‘satisfactory’’ on the other test under the CRA, including, for example, located in state), located at (address).] may receive an assigned overall rating of information about our branches, such as their At least 30 days before the beginning of ‘‘outstanding.’’ location and services provided at them; the each quarter, the Comptroller publishes a
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nationwide list of the banks that are special purpose savings associations have gross annual revenues of $1 scheduled for CRA examination in that that do not perform commercial or retail million or less; or quarter. This list is available from the Deputy banking services by granting credit to (4) Activities that revitalize or Comptroller (address). You may send written the public in the ordinary course of stabilize— comments about our performance in helping to meet community credit needs to (name business, other than as incident to their (i) Low- or moderate-income and address of official at bank) and Deputy specialized operations. These geographies; Comptroller (address). Your letter, together associations include banker’s banks, as (ii) Designated disaster areas; or with any response by us, will be considered defined in 12 U.S.C. 24 (Seventh), and (iii) Distressed or underserved, by the Comptroller in evaluating our CRA associations that engage only in one or nonmetropolitan middle-income performance and may be made public. more of the following activities: geographies designated by the You may ask to look at any comments Providing cash management controlled appropriate Federal banking agency received by the Deputy Comptroller. You disbursement services or serving as based on— may also request from the Deputy (A) Rates of poverty, unemployment, Comptroller an announcement of our correspondent associations, trust applications covered by the CRA filed with companies, or clearing agents. and population loss; or the Comptroller. We are an affiliate of (name (B) Population size, density, and of holding company), a bank holding § 195.12 Definitions. dispersion. Activities revitalize and company. You may request from the (title of For purposes of this part, the stabilize geographies designated based responsible official), Federal Reserve Bank of following definitions apply: on population size, density, and lllllllll (address) an (a) Affiliate means any company that dispersion if they help to meet essential announcement of applications covered by the controls, is controlled by, or is under community needs, including needs of CRA filed by bank holding companies common control with another company. low- and moderate-income individuals. PART 195—COMMUNITY The term ‘‘control’’ has the meaning (h) Community development loan REINVESTMENT given to that term in 12 U.S.C. means a loan that: 1841(a)(2), and a company is under (1) Has as its primary purpose Subpart A—General common control with another company community development; and if both companies are directly or (2) Except in the case of a wholesale § 195.11 Authority, purposes, and scope. indirectly controlled by the same or limited purpose savings association: (a) Authority. This part is issued company. (i) Has not been reported or collected under the Community Reinvestment Act (b) Area median income means: by the savings association or an affiliate of 1977 (CRA), as amended (12 U.S.C. (1) The median family income for the for consideration in the savings 2901 et seq.); section 5, as amended, and MSA, if a person or geography is located association’s assessment as a home sections 3, and 4, as added, of the Home in an MSA, or for the metropolitan mortgage, small business, small farm, or Owners’ Loan Act of 1933 (12 U.S.C. division, if a person or geography is consumer loan, unless the loan is for a 1462a, 1463, and 1464); and sections 4, located in an MSA that has been multifamily dwelling (as defined in 6, and 18(c), as amended of the Federal subdivided into metropolitan divisions; § 1003.2(n) of this title); and Deposit Insurance Act (12 U.S.C. 1814, or (ii) Benefits the savings association’s 1816, 1828(c)). (2) The statewide nonmetropolitan assessment area(s) or a broader (b) Purposes. In enacting the CRA, the median family income, if a person or statewide or regional area that includes Congress required each appropriate geography is located outside an MSA. the savings association’s assessment Federal financial supervisory agency to (c) Assessment area means a area(s). assess an institution’s record of helping geographic area delineated in (i) Community development service to meet the credit needs of the local accordance with § 195.41. means a service that: communities in which the institution is (d) Automated teller machine (ATM) (1) Has as its primary purpose chartered, consistent with the safe and means an automated, unstaffed banking community development; sound operation of the institution, and facility owned or operated by, or (2) Is related to the provision of to take this record into account in the operated exclusively for, the savings financial services; and agency’s evaluation of an application for association at which deposits are (3) Has not been considered in the a deposit facility by the institution. This received, cash dispersed, or money lent. evaluation of the savings association’s part is intended to carry out the (e) [Reserved] retail banking services under purposes of the CRA by: (f) Branch means a staffed banking § 195.24(d). (1) Establishing the framework and facility authorized as a branch, whether (j) Consumer loan means a loan to one criteria by which the appropriate shared or unshared, including, for or more individuals for household, Federal banking agency assesses a example, a mini-branch in a grocery family, or other personal expenditures. savings association’s record of helping store or a branch operated in A consumer loan does not include a to meet the credit needs of its entire conjunction with any other local home mortgage, small business, or small community, including low- and business or nonprofit organization. farm loan. Consumer loans include the moderate-income neighborhoods, (g) Community development means: following categories of loans: consistent with the safe and sound (1) Affordable housing (including (1) Motor vehicle loan, which is a operation of the savings association; and multifamily rental housing) for low or consumer loan extended for the (2) Providing that the appropriate moderate-income individuals; purchase of and secured by a motor Federal banking agency takes that (2) Community services targeted to vehicle; record into account in considering low- or moderate-income individuals; (2) Credit card loan, which is a line certain applications. (3) Activities that promote economic of credit for household, family, or other (c) Scope—(1) General. This part development by financing businesses or personal expenditures that is accessed applies to all savings associations farms that meet the size eligibility by a borrower’s use of a ‘‘credit card,’’ except as provided in paragraph (c)(2) of standards of the Small Business as this term is defined in § 1026.2 of this this section. Administration’s Development title; (2) Certain special purpose savings Company or Small Business Investment (3) Other secured consumer loan, associations. This part does not apply to Company programs (13 CFR 121.301) or which is a secured consumer loan that
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is not included in one of the other Director of the Office of Management and service tests, as provided in categories of consumer loans; and and Budget. §§ 195.22 through 195.24, in evaluating (4) Other unsecured consumer loan, (r) MSA means a metropolitan the performance of a savings which is an unsecured consumer loan statistical area as defined by the Director association, except as provided in that is not included in one of the other of the Office of Management and paragraphs (a)(2), (a)(3), and (a)(4) of categories of consumer loans. Budget. this section. (k) Geography means a census tract (s) Nonmetropolitan area means any (2) Community development test for delineated by the United States Bureau area that is not located in an MSA. wholesale or limited purpose savings of the Census in the most recent (t) Qualified investment means a associations. The appropriate Federal decennial census. lawful investment, deposit, membership banking agency applies the community (l) Home mortgage loan means a share, or grant that has as its primary development test for a wholesale or closed-end mortgage loan or an open- purpose community development. limited purpose savings association, as end line of credit as these terms are (u) Small savings association—(1) provided in § 195.25, except as provided defined under § 1003.2 of this title and Definition. Small savings association in paragraph (a)(4) of this section. that is not an excluded transaction means a savings association that, as of (3) Small savings association under § 1003.3(c)(1) through (10) and December 31 of either of the prior two performance standards. The appropriate (13) of this title. calendar years, had assets of less than Federal banking agency applies the (m) Income level includes: $1.305 billion. Intermediate small small savings association performance (1) Low-income, which means an savings association means a small standards as provided in § 195.26 in individual income that is less than 50 savings association with assets of at evaluating the performance of a small percent of the area median income or a least $326 million as of December 31 of savings association or a savings median family income that is less than both of the prior two calendar years and association that was a small savings 50 percent in the case of a geography. less than $1.305 billion as of December association during the prior calendar (2) Moderate-income, which means an 31 of either of the prior two calendar year, unless the savings association individual income that is at least 50 years. elects to be assessed as provided in percent and less than 80 percent of the (2) Adjustment. The dollar figures in paragraphs (a)(1), (a)(2), or (a)(4) of this area median income or a median family paragraph (u)(1) of this section shall be section. The savings association may income that is at least 50 and less than adjusted annually and published by the elect to be assessed as provided in 80 percent in the case of a geography. OCC based on the year-to-year change in paragraph (a)(1) of this section only if it (3) Middle-income, which means an the average of the Consumer Price Index collects and reports the data required for individual income that is at least 80 for Urban Wage Earners and Clerical other savings associations under percent and less than 120 percent of the Workers, not seasonally adjusted, for § 195.42. area median income or a median family each twelve-month period ending in (4) Strategic plan. The appropriate income that is at least 80 and less than November, with rounding to the nearest Federal banking agency evaluates the 120 percent in the case of a geography. million. performance of a savings association (4) Upper-income, which means an (v) Small business loan means a loan under a strategic plan if the savings individual income that is 120 percent or included in ‘‘loans to small businesses’’ association submits, and the appropriate more of the area median income or a as defined in the instructions for Federal banking agency approves, a median family income that is 120 preparation of the Thrift Financial strategic plan as provided in § 195.27. percent or more in the case of a Report (TFR) or Consolidated Reports of (b) Performance context. The geography. Condition and Income (Call Report), as appropriate Federal banking agency (n) Limited purpose savings appropriate. applies the tests and standards in association means a savings association (w) Small farm loan means a loan paragraph (a) of this section and also that offers only a narrow product line included in ‘‘loans to small farms’’ as considers whether to approve a (such as credit card or motor vehicle defined in the instructions for proposed strategic plan in the context loans) to a regional or broader market preparation of the TFR or Call Report, of: and for which a designation as a limited as appropriate. (1) Demographic data on median purpose savings association is in effect, (x) Wholesale savings association income levels, distribution of household in accordance with § 195.25(b). means a savings association that is not income, nature of housing stock, (o) Loan location. A loan is located as in the business of extending home housing costs, and other relevant data follows: mortgage, small business, small farm, or pertaining to a savings association’s (1) A consumer loan is located in the consumer loans to retail customers, and assessment area(s); geography where the borrower resides; for which a designation as a wholesale (2) Any information about lending, (2) A home mortgage loan is located savings association is in effect, in investment, and service opportunities in in the geography where the property to accordance with § 195.25(b). the savings association’s assessment which the loan relates is located; and area(s) maintained by the savings (3) A small business or small farm Subpart B—Standards for Assessing association or obtained from community loan is located in the geography where Performance organizations, state, local, and tribal the main business facility or farm is governments, economic development located or where the loan proceeds § 195.21 Performance tests, standards, agencies, or other sources; otherwise will be applied, as indicated and ratings, in general. (3) The savings association’s product by the borrower. (a) Performance tests and standards. offerings and business strategy as (p) Loan production office means a The appropriate Federal banking agency determined from data provided by the staffed facility, other than a branch, that assesses the CRA performance of a savings association; is open to the public and that provides savings association in an examination as (4) Institutional capacity and lending-related services, such as loan follows: constraints, including the size and information and applications. (1) Lending, investment, and service financial condition of the savings (q) Metropolitan division means a tests. The appropriate Federal banking association, the economic climate metropolitan division as defined by the agency applies the lending, investment, (national, regional, and local), safety
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and soundness limitations, and any under a state or local education loan (2) The appropriate Federal banking other factors that significantly affect the program), originated by the savings agency considers originations and savings association’s ability to provide association for a student at an purchases of loans. The appropriate lending, investments, or services in its ‘‘institution of higher education,’’ as Federal banking agency will also assessment area(s); that term is generally defined in consider any other loan data the savings (5) The savings association’s past sections 101 and 102 of the Higher association may choose to provide, performance and the performance of Education Act of 1965 (20 U.S.C. 1001 including data on loans outstanding, similarly situated lenders; and 1002) and the implementing commitments and letters of credit. (6) The savings association’s public regulations published by the U.S. (3) A savings association may ask the file, as described in § 195.43, and any Department of Education, with interest appropriate Federal banking agency to written comments about the savings rates and fees no greater than those of consider loans originated or purchased association’s CRA performance comparable education loans offered by consortia in which the savings submitted to the savings association or directly by the U.S. Department of association participates or by third the appropriate Federal banking agency; Education. Such rates and fees are parties in which the savings association and specified in section 455 of the Higher has invested only if the loans meet the (7) Any other information deemed Education Act of 1965 (20 U.S.C. definition of community development relevant by the appropriate Federal 1087e). loans and only in accordance with banking agency. (f) Activities in cooperation with paragraph (d) of this section. The (c) Assigned ratings. The appropriate minority- or women-owned financial appropriate Federal banking agency will Federal banking agency assigns to a institutions and low-income credit not consider these loans under any savings association one of the following unions. In assessing and taking into criterion of the lending test except the four ratings pursuant to § 195.28 and account the record of a nonminority- community development lending appendix A of this part: ‘‘outstanding’’; owned and nonwomen-owned savings criterion. ‘‘satisfactory’’; ‘‘needs to improve’’; or association under this part, the (b) Performance criteria. The ‘‘substantial noncompliance,’’ as appropriate Federal banking agency appropriate Federal banking agency provided in 12 U.S.C. 2906(b)(2). The considers as a factor capital investment, evaluates a savings association’s lending rating assigned by the appropriate loan participation, and other ventures performance pursuant to the following Federal banking agency reflects the undertaken by the savings association in criteria: savings association’s record of helping cooperation with minority- and women- (1) Lending activity. The number and to meet the credit needs of its entire owned financial institutions and low- amount of the savings association’s community, including low- and income credit unions. Such activities home mortgage, small business, small moderate-income neighborhoods, must help meet the credit needs of local farm, and consumer loans, if applicable, consistent with the safe and sound communities in which the minority- in the savings association’s assessment operation of the savings association. and women-owned financial area(s); (d) Safe and sound operations. This institutions and low-income credit (2) Geographic distribution. The part and the CRA do not require a unions are chartered. To be considered, geographic distribution of the savings savings association to make loans or such activities need not also benefit the association’s home mortgage, small investments or to provide services that savings association’s assessment area(s) business, small farm, and consumer are inconsistent with safe and sound or the broader statewide or regional area loans, if applicable, based on the loan operations. To the contrary, the that includes the savings association’s location, including: appropriate Federal banking agency assessment area(s). (i) The proportion of the savings anticipates savings associations can association’s lending in the savings § 195.22 Lending test. meet the standards of this part with safe association’s assessment area(s); and sound loans, investments, and (a) Scope of test. (1) The lending test (ii) The dispersion of lending in the services on which the savings evaluates a savings association’s record savings association’s assessment area(s); associations expect to make a profit. of helping to meet the credit needs of its and Savings associations are permitted and assessment area(s) through its lending (iii) The number and amount of loans encouraged to develop and apply activities by considering a savings in low-, moderate-, middle-, and upper- flexible underwriting standards for association’s home mortgage, small income geographies in the savings loans that benefit low- or moderate- business, small farm, and community association’s assessment area(s); income geographies or individuals, only development lending. If consumer (3) Borrower characteristics. The if consistent with safe and sound lending constitutes a substantial distribution, particularly in the savings operations. majority of a savings association’s association’s assessment area(s), of the (e) Low-cost education loans provided business, the appropriate Federal savings association’s home mortgage, to low-income borrowers. In assessing banking agency will evaluate the small business, small farm, and and taking into account the record of a savings association’s consumer lending consumer loans, if applicable, based on savings association under this part, the in one or more of the following borrower characteristics, including the appropriate Federal banking agency categories: Motor vehicle, credit card, number and amount of: considers, as a factor, low-cost other secured, and other unsecured (i) Home mortgage loans to low-, education loans originated by the loans. In addition, at a savings moderate-, middle-, and upper-income savings association to borrowers, association’s option, the appropriate individuals; particularly in its assessment area(s), Federal banking agency will evaluate (ii) Small business and small farm who have an individual income that is one or more categories of consumer loans to businesses and farms with gross less than 50 percent of the area median lending, if the savings association has annual revenues of $1 million or less; income. For purposes of this paragraph, collected and maintained, as required in (iii) Small business and small farm ‘‘low-cost education loans’’ means any § 195.42(c)(1), the data for each category loans by loan amount at origination; and education loan, as defined in section that the savings association elects to (iv) Consumer loans, if applicable, to 140(a)(7) of the Truth in Lending Act have the appropriate Federal banking low-, moderate-, middle-, and upper- (15 U.S.C. 1650(a)(7)) (including a loan agency evaluate. income individuals;
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(4) Community development lending. (e) Lending performance rating. The (b) Area(s) benefitted. Community The savings association’s community appropriate Federal banking agency development services must benefit a development lending, including the rates a savings association’s lending savings association’s assessment area(s) number and amount of community performance as provided in appendix A or a broader statewide or regional area development loans, and their of this part. that includes the savings association’s complexity and innovativeness; and assessment area(s). § 195.23 Investment test. (5) Innovative or flexible lending (c) Affiliate service. At a savings (a) Scope of test. The investment test practices. The savings association’s use association’s option, the appropriate evaluates a savings association’s record of innovative or flexible lending Federal banking agency will consider, in of helping to meet the credit needs of its practices in a safe and sound manner to its assessment of a savings association’s assessment area(s) through qualified address the credit needs of low- or service performance, a community investments that benefit its assessment moderate-income individuals or development service provided by an area(s) or a broader statewide or regional geographies. affiliate of the savings association, if the area that includes the savings (c) Affiliate lending. (1) At a savings community development service is not association’s assessment area(s). association’s option, the appropriate claimed by any other institution. (b) Exclusion. Activities considered Federal banking agency will consider (d) Performance criteria—retail loans by an affiliate of the savings under the lending or service tests may not be considered under the investment banking services. The appropriate association, if the savings association Federal banking agency evaluates the provides data on the affiliate’s loans test. (c) Affiliate investment. At a savings availability and effectiveness of a pursuant to § 195.42. savings association’s systems for (2) The appropriate Federal banking association’s option, the appropriate Federal banking agency will consider, in delivering retail banking services, agency considers affiliate lending pursuant to the following criteria: subject to the following constraints: its assessment of a savings association’s (i) No affiliate may claim a loan investment performance, a qualified (1) The current distribution of the origination or loan purchase if another investment made by an affiliate of the savings association’s branches among institution claims the same loan savings association, if the qualified low-, moderate-, middle-, and upper- origination or purchase; and investment is not claimed by any other income geographies; (ii) If a savings association elects to institution. (2) In the context of its current (d) Disposition of branch premises. have the appropriate Federal banking distribution of the savings association’s Donating, selling on favorable terms, or agency consider loans within a branches, the savings association’s making available on a rent-free basis a particular lending category made by one record of opening and closing branches, branch of the savings association that is or more of the savings association’s particularly branches located in low- or located in a predominantly minority affiliates in a particular assessment area, moderate-income geographies or neighborhood to a minority depository the savings association shall elect to primarily serving low- or moderate- institution or women’s depository have the appropriate Federal banking income individuals; institution (as these terms are defined in agency consider, in accordance with (3) The availability and effectiveness 12 U.S.C. 2907(b)) will be considered as paragraph (c)(1) of this section, all the of alternative systems for delivering a qualified investment. loans within that lending category in retail banking services (e.g., ATMs, (e) Performance criteria. The that particular assessment area made by ATMs not owned or operated by or appropriate Federal banking agency all of the savings association’s affiliates. exclusively for the savings association, evaluates the investment performance of (3) The appropriate Federal banking banking by telephone or computer, loan a savings association pursuant to the agency does not consider affiliate production offices, and bank-at-work or following criteria: bank-by-mail programs) in low- and lending in assessing a savings (1) The dollar amount of qualified moderate-income geographies and to association’s performance under investments; paragraph (b)(2)(i) of this section. (2) The innovativeness or complexity low- and moderate-income individuals; (d) Lending by a consortium or a third of qualified investments; and party. Community development loans (3) The responsiveness of qualified (4) The range of services provided in originated or purchased by a consortium investments to credit and community low-, moderate-, middle-, and upper- in which the savings association development needs; and income geographies and the degree to participates or by a third party in which (4) The degree to which the qualified which the services are tailored to meet the savings association has invested: investments are not routinely provided the needs of those geographies. (1) Will be considered, at the savings by private investors. (e) Performance criteria—community association’s option, if the savings (f) Investment performance rating. development services. The appropriate association reports the data pertaining The appropriate Federal banking agency Federal banking agency evaluates to these loans under § 195.42(b)(2); and rates a savings association’s investment community development services (2) May be allocated among performance as provided in appendix A pursuant to the following criteria: participants or investors, as they choose, of this part. for purposes of the lending test, except (1) The extent to which the savings that no participant or investor: § 195.24 Service test. association provides community (i) May claim a loan origination or (a) Scope of test. The service test development services; and loan purchase if another participant or evaluates a savings association’s record (2) The innovativeness and investor claims the same loan of helping to meet the credit needs of its responsiveness of community origination or purchase; or assessment area(s) by analyzing both the development services. (ii) May claim loans accounting for availability and effectiveness of a (f) Service performance rating. The more than its percentage share (based on savings association’s systems for appropriate Federal banking agency the level of its participation or delivering retail banking services and rates a savings association’s service investment) of the total loans originated the extent and innovativeness of its performance as provided in appendix A by the consortium or third party. community development services. of this part.
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§ 195.25 Community development test for (e) Benefit to assessment area(s)—(1) in other lending-related activities for wholesale or limited purpose savings Benefit inside assessment area(s). The borrowers of different income levels and associations. appropriate Federal banking agency businesses and farms of different sizes; (a) Scope of test. The appropriate considers all qualified investments, (4) The geographic distribution of the Federal banking agency assesses a community development loans, and savings association’s loans; and wholesale or limited purpose savings community development services that (5) The savings association’s record of association’s record of helping to meet benefit areas within the savings taking action, if warranted, in response the credit needs of its assessment area(s) association’s assessment area(s) or a to written complaints about its under the community development test broader statewide or regional area that performance in helping to meet credit through its community development includes the savings association’s needs in its assessment area(s). lending, qualified investments, or assessment area(s). (c) Community development test. An community development services. (2) Benefit outside assessment area(s). intermediate small savings association’s (b) Designation as a wholesale or The appropriate Federal banking agency community development performance limited purpose savings association. In considers the qualified investments, also is evaluated pursuant to the order to receive a designation as a community development loans, and following criteria: wholesale or limited purpose savings community development services that (1) The number and amount of association, a savings association shall benefit areas outside the savings community development loans; file a request, in writing, with the association’s assessment area(s), if the (2) The number and amount of qualified investments; appropriate Federal banking agency, at savings association has adequately (3) The extent to which the savings least three months prior to the proposed addressed the needs of its assessment association provides community effective date of the designation. If the area(s). appropriate Federal banking agency development services; and (f) Community development (4) The savings association’s approves the designation, it remains in performance rating. The appropriate responsiveness through such activities effect until the savings association Federal banking agency rates a savings to community development lending, requests revocation of the designation or association’s community development investment, and services needs. until one year after the appropriate performance as provided in appendix A (d) Small savings association Federal banking agency notifies the of this part. performance rating. The appropriate savings association that the appropriate Federal banking agency rates the Federal banking agency has revoked the § 195.26 Small savings association performance standards. performance of a savings association designation on its own initiative. evaluated under this section as provided (c) Performance criteria. The (a) Performance criteria—(1) Small in appendix A of this part. appropriate Federal banking agency savings associations that are not evaluates the community development intermediate small savings associations. § 195.27 Strategic plan. performance of a wholesale or limited The appropriate Federal banking agency (a) Alternative election. The purpose savings association pursuant to evaluates the record of a small savings appropriate Federal banking agency will the following criteria: association that is not, or that was not assess a savings association’s record of (1) The number and amount of during the prior calendar year, an helping to meet the credit needs of its community development loans intermediate small savings association, assessment area(s) under a strategic plan (including originations and purchases of of helping to meet the credit needs of its if: loans and other community assessment area(s) pursuant to the (1) The savings association has development loan data provided by the criteria set forth in paragraph (b) of this submitted the plan to the appropriate savings association, such as data on section. Federal banking agency as provided for loans outstanding, commitments, and (2) Intermediate small savings in this section; letters of credit), qualified investments, associations. The appropriate Federal (2) The appropriate Federal banking or community development services; banking agency evaluates the record of agency has approved the plan; (2) The use of innovative or complex a small savings association that is, or (3) The plan is in effect; and qualified investments, community that was during the prior calendar year, (4) The savings association has been development loans, or community an intermediate small savings operating under an approved plan for at development services and the extent to association, of helping to meet the credit least one year. which the investments are not routinely needs of its assessment area(s) pursuant (b) Data reporting. The appropriate provided by private investors; and to the criteria set forth in paragraphs (b) Federal banking agency’s approval of a (3) The savings association’s and (c) of this section. plan does not affect the savings responsiveness to credit and community (b) Lending test. A small savings association’s obligation, if any, to report development needs. association’s lending performance is data as required by § 195.42. (d) Indirect activities. At a savings evaluated pursuant to the following (c) Plans in general—(1) Term. A plan association’s option, the appropriate criteria: may have a term of no more than five Federal banking agency will consider in (1) The savings association’s loan-to- years, and any multi-year plan must its community development deposit ratio, adjusted for seasonal include annual interim measurable performance assessment: variation, and, as appropriate, other goals under which the appropriate (1) Qualified investments or lending-related activities, such as loan Federal banking agency will evaluate community development services originations for sale to the secondary the savings association’s performance. provided by an affiliate of the savings markets, community development (2) Multiple assessment areas. A association, if the investments or loans, or qualified investments; savings association with more than one services are not claimed by any other (2) The percentage of loans and, as assessment area may prepare a single institution; and appropriate, other lending-related plan for all of its assessment areas or (2) Community development lending activities located in the savings one or more plans for one or more of its by affiliates, consortia and third parties, association’s assessment area(s); assessment areas. subject to the requirements and (3) The savings association’s record of (3) Treatment of affiliates. Affiliated limitations in § 195.22(c) and (d). lending to and, as appropriate, engaging institutions may prepare a joint plan if
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the plan provides measurable goals for capacity and constraints, product flexible lending practices to address each institution. Activities may be offerings, and business strategy. credit needs; allocated among institutions at the (2) Confidential information. A (ii) The amount and innovativeness, institutions’ option, provided that the savings association may submit complexity, and responsiveness of the same activities are not considered for additional information to the savings association’s qualified more than one institution. appropriate Federal banking agency on investments; and (d) Public participation in plan a confidential basis, but the goals stated (iii) The availability and effectiveness development. Before submitting a plan in the plan must be sufficiently specific of the savings association’s systems for to the appropriate Federal banking to enable the public and the appropriate delivering retail banking services and agency for approval, a savings Federal banking agency to judge the the extent and innovativeness of the association shall: merits of the plan. savings association’s community (1) Informally seek suggestions from (3) Satisfactory and outstanding goals. development services. members of the public in its assessment A savings association shall specify in its (h) Plan amendment. During the term area(s) covered by the plan while plan measurable goals that constitute of a plan, a savings association may developing the plan; ‘‘satisfactory’’ performance. A plan may request the appropriate Federal banking (2) Once the savings association has specify measurable goals that constitute agency to approve an amendment to the developed a plan, formally solicit public ‘‘outstanding’’ performance. If a savings plan on grounds that there has been a comment on the plan for at least 30 days association submits, and the appropriate material change in circumstances. The by publishing notice in at least one Federal banking agency approves, both savings association shall develop an newspaper of general circulation in each ‘‘satisfactory’’ and ‘‘outstanding’’ amendment to a previously approved assessment area covered by the plan; performance goals, the appropriate plan in accordance with the public and Federal banking agency will consider participation requirements of paragraph the savings association eligible for an (3) During the period of formal public (d) of this section. ‘‘outstanding’’ performance rating. (i) Plan assessment. The appropriate comment, make copies of the plan (4) Election if satisfactory goals not available for review by the public at no Federal banking agency approves the substantially met. A savings association goals and assesses performance under a cost at all offices of the savings may elect in its plan that, if the savings association in any assessment area plan as provided for in appendix A of association fails to meet substantially its this part. covered by the plan and provide copies plan goals for a satisfactory rating, the of the plan upon request for a appropriate Federal banking agency will § 195.28 Assigned ratings. reasonable fee to cover copying and evaluate the savings association’s (a) Ratings in general. Subject to mailing, if applicable. performance under the lending, paragraphs (b) and (c) of this section, (e) Submission of plan. The savings investment, and service tests, the the appropriate Federal banking agency association shall submit its plan to the community development test, or the assigns to a savings association a rating appropriate Federal banking agency at small savings association performance of ‘‘outstanding,’’ ‘‘satisfactory,’’ ‘‘needs least three months prior to the proposed standards, as appropriate. to improve,’’ or ‘‘substantial effective date of the plan. The savings (g) Plan approval—(1) Timing. The noncompliance’’ based on the savings association shall also submit with its appropriate Federal banking agency will association’s performance under the plan a description of its informal efforts act upon a plan within 60 calendar days lending, investment and service tests, to seek suggestions from members of the after it receives the complete plan and the community development test, the public, any written public comment other material required under paragraph small savings association performance received, and, if the plan was revised in (e) of this section. If the appropriate standards, or an approved strategic plan, light of the comment received, the Federal banking agency fails to act as applicable. initial plan as released for public within this time period, the plan shall (b) Lending, investment, and service comment. be deemed approved unless the tests. The appropriate Federal banking (f) Plan content—(1) Measurable appropriate Federal banking agency agency assigns a rating for a savings goals. (i) A savings association shall extends the review period for good association assessed under the lending, specify in its plan measurable goals for cause. investment, and service tests in helping to meet the credit needs of each (2) Public participation. In evaluating accordance with the following assessment area covered by the plan, the plan’s goals, the appropriate Federal principles: particularly the needs of low- and banking agency considers the public’s (1) A savings association that receives moderate-income geographies and low- involvement in formulating the plan, an ‘‘outstanding’’ rating on the lending and moderate-income individuals, written public comment on the plan, test receives an assigned rating of at through lending, investment, and and any response by the savings least ‘‘satisfactory’’; services, as appropriate. association to public comment on the (2) A savings association that receives (ii) A savings association shall plan. an ‘‘outstanding’’ rating on both the address in its plan all three performance (3) Criteria for evaluating plan. The service test and the investment test and categories and, unless the savings appropriate Federal banking agency a rating of at least ‘‘high satisfactory’’ on association has been designated as a evaluates a plan’s measurable goals the lending test receives an assigned wholesale or limited purpose savings using the following criteria, as rating of ‘‘outstanding’’; and association, shall emphasize lending appropriate: (3) No savings association may receive and lending-related activities. (i) The extent and breadth of lending an assigned rating of ‘‘satisfactory’’ or Nevertheless, a different emphasis, or lending-related activities, including, higher unless it receives a rating of at including a focus on one or more as appropriate, the distribution of loans least ‘‘low satisfactory’’ on the lending performance categories, may be among different geographies, businesses test. appropriate if responsive to the and farms of different sizes, and (c) Effect of evidence of characteristics and credit needs of its individuals of different income levels, discriminatory or other illegal credit assessment area(s), considering public the extent of community development practices. (1) The appropriate Federal comment and the savings association’s lending, and the use of innovative or banking agency’s evaluation of a savings
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association’s CRA performance is (4) A Federal thrift charter; and area(s) for a savings association other adversely affected by evidence of (5) Acquisitions subject to section than a wholesale or limited purpose discriminatory or other illegal credit 10(e) of the Home Owners’ Loan Act (12 savings association must: practices in any geography by the U.S.C. 1467a(e)). (1) Consist generally of one or more savings association or in any assessment (b) Charter application. An applicant MSAs or metropolitan divisions (using area by any affiliate whose loans have for a Federal thrift charter shall submit the MSA or metropolitan division been considered as part of the savings with its application a description of boundaries that were in effect as of association’s lending performance. In how it will meet its CRA objectives. The January 1 of the calendar year in which connection with any type of lending appropriate Federal banking agency the delineation is made) or one or more activity described in § 195.22(a), takes the description into account in contiguous political subdivisions, such evidence of discriminatory or other considering the application and may as counties, cities, or towns; and credit practices that violate an deny or condition approval on that (2) Include the geographies in which applicable law, rule, or regulation basis. the savings association has its main includes, but is not limited to: (c) Interested parties. The appropriate office, its branches, and its deposit- (i) Discrimination against applicants Federal banking agency takes into taking ATMs, as well as the surrounding on a prohibited basis in violation, for account any views expressed by geographies in which the savings example, of the Equal Credit interested parties that are submitted in association has originated or purchased Opportunity Act or the Fair Housing accordance with the applicable a substantial portion of its loans Act; comment procedures in considering (including home mortgage loans, small (ii) Violations of the Home Ownership CRA performance in an application business and small farm loans, and any and Equity Protection Act; listed in paragraphs (a) and (b) of this other loans the savings association (iii) Violations of section 5 of the section. chooses, such as those consumer loans Federal Trade Commission Act; (d) Denial or conditional approval of on which the savings association elects (iv) Violations of section 8 of the Real application. A savings association’s to have its performance assessed). Estate Settlement Procedures Act; and record of performance may be the basis (d) Adjustments to geographic area(s). (v) Violations of the Truth in Lending for denying or conditioning approval of A savings association may adjust the Act provisions regarding a consumer’s an application listed in paragraph (a) of boundaries of its assessment area(s) to right of rescission. this section. include only the portion of a political (2) In determining the effect of (e) Insured depository institution. For subdivision that it reasonably can be evidence of practices described in purposes of this section, the term expected to serve. An adjustment is paragraph (c)(1) of this section on the ‘‘insured depository institution’’ has the particularly appropriate in the case of savings association’s assigned rating, the meaning given to that term in 12 U.S.C. an assessment area that otherwise appropriate Federal banking agency 1813. would be extremely large, of unusual considers the nature, extent, and configuration, or divided by significant strength of the evidence of the practices; Subpart C—Records, Reporting, and geographic barriers. the policies and procedures that the Disclosure Requirements (e) Limitations on the delineation of an assessment area. Each savings savings association (or affiliate, as § 195.41 Assessment area delineation. applicable) has in place to prevent the association’s assessment area(s): practices; any corrective action that the (a) In general. A savings association (1) Must consist only of whole savings association (or affiliate, as shall delineate one or more assessment geographies; applicable) has taken or has committed areas within which the appropriate (2) May not reflect illegal to take, including voluntary corrective Federal banking agency evaluates the discrimination; action resulting from self-assessment; savings association’s record of helping (3) May not arbitrarily exclude low- or and any other relevant information. to meet the credit needs of its moderate-income geographies, taking community. The appropriate Federal into account the savings association’s § 195.29 Effect of CRA performance on banking agency does not evaluate the size and financial condition; and applications. savings association’s delineation of its (4) May not extend substantially (a) CRA performance. Among other assessment area(s) as a separate beyond an MSA boundary or beyond a factors, the appropriate Federal banking performance criterion, but the state boundary unless the assessment agency takes into account the record of appropriate Federal banking agency area is located in a multistate MSA. If performance under the CRA of each reviews the delineation for compliance a savings association serves a applicant savings association, and for with the requirements of this section. geographic area that extends applications under section 10(e) of the (b) Geographic area(s) for wholesale substantially beyond a state boundary, Home Owners’ Loan Act (12 U.S.C. or limited purpose savings associations. the savings association shall delineate 1467a(e)), of each proposed subsidiary The assessment area(s) for a wholesale separate assessment areas for the areas savings association, in considering an or limited purpose savings association in each state. If a savings association application for: must consist generally of one or more serves a geographic area that extends (1) The establishment of a domestic MSAs or metropolitan divisions (using substantially beyond an MSA boundary, branch or other facility that would be the MSA or metropolitan division the savings association shall delineate authorized to take deposits; boundaries that were in effect as of separate assessment areas for the areas (2) The relocation of the main office January 1 of the calendar year in which inside and outside the MSA. or a branch; the delineation is made) or one or more (f) Savings associations serving (3) The merger or consolidation with contiguous political subdivisions, such military personnel. Notwithstanding the or the acquisition of the assets or as counties, cities, or towns, in which requirements of this section, a savings assumption of the liabilities of an the savings association has its main association whose business insured depository institution requiring office, branches, and deposit-taking predominantly consists of serving the appropriate Federal banking agency ATMs. needs of military personnel or their approval under the Bank Merger Act (12 (c) Geographic area(s) for other dependents who are not located within U.S.C. 1828(c)); savings associations. The assessment a defined geographic area may delineate
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its entire deposit customer base as its the location of each home mortgage loan loans the data that the savings assessment area. application, origination, or purchase association would have reported under (g) Use of assessment area(s). The outside the MSAs in which the savings paragraph (b)(2) of this section had the appropriate Federal banking agency association has a home or branch office loans been originated or purchased by uses the assessment area(s) delineated (or outside any MSA) in accordance the savings association. by a savings association in its evaluation with the requirements of part 1003 of (f) Small savings associations electing of the savings association’s CRA this title. evaluation under the lending, performance unless the appropriate (c) Optional data collection and investment, and service tests. A savings Federal banking agency determines that maintenance—(1) Consumer loans. A association that qualifies for evaluation the assessment area(s) do not comply savings association may collect and under the small savings association with the requirements of this section. maintain in machine readable form (as performance standards but elects prescribed by the appropriate Federal evaluation under the lending, § 195.42 Data collection, reporting, and banking agency) data for consumer investment, and service tests shall disclosure. loans originated or purchased by the collect, maintain, and report the data (a) Loan information required to be savings association for consideration required for other savings associations collected and maintained. A savings under the lending test. A savings pursuant to paragraphs (a) and (b) of association, except a small savings association may maintain data for one or this section. association, shall collect, and maintain more of the following categories of (g) Assessment area data. A savings in machine readable form (as prescribed consumer loans: Motor vehicle, credit association, except a small savings by the appropriate Federal banking card, other secured, and other association or a savings association that agency) until the completion of its next unsecured. If the savings association was a small savings association during CRA examination, the following data for maintains data for loans in a certain the prior calendar year, shall collect and each small business or small farm loan category, it shall maintain data for all report to the appropriate Federal originated or purchased by the savings loans originated or purchased within banking agency by March 1 of each year association: that category. The savings association a list for each assessment area showing (1) A unique number or alpha- shall maintain data separately for each the geographies within the area. numeric symbol that can be used to category, including for each loan: (h) CRA Disclosure Statement. The identify the relevant loan file; (i) A unique number or alpha-numeric appropriate Federal banking agency (2) The loan amount at origination; symbol that can be used to identify the prepares annually for each savings (3) The loan location; and relevant loan file; association that reports data pursuant to (4) An indicator whether the loan was (ii) The loan amount at origination or this section a CRA Disclosure Statement to a business or farm with gross annual purchase; that contains, on a state-by-state basis: revenues of $1 million or less. (iii) The loan location; and (1) For each county (and for each (b) Loan information required to be (iv) The gross annual income of the assessment area smaller than a county) reported. A savings association, except borrower that the savings association with a population of 500,000 persons or a small savings association or a savings considered in making its credit fewer in which the savings association association that was a small savings decision. reported a small business or small farm association during the prior calendar (2) Other loan data. At its option, a loan: year, shall report annually by March 1 savings association may provide other (i) The number and amount of small to the appropriate Federal banking information concerning its lending business and small farm loans reported agency in machine readable form (as performance, including additional loan as originated or purchased located in prescribed by the agency) the following distribution data. low-, moderate-, middle-, and upper- data for the prior calendar year: (d) Data on affiliate lending. A income geographies; (1) Small business and small farm savings association that elects to have (ii) A list grouping each geography loan data. For each geography in which the appropriate Federal banking agency according to whether the geography is the savings association originated or consider loans by an affiliate, for low-, moderate-, middle-, or upper- purchased a small business or small purposes of the lending or community income; farm loan, the aggregate number and development test or an approved (iii) A list showing each geography in amount of loans: strategic plan, shall collect, maintain, which the savings association reported (i) With an amount at origination of and report for those loans the data that a small business or small farm loan; and $100,000 or less; the savings association would have (iv) The number and amount of small (ii) With amount at origination of collected, maintained, and reported business and small farm loans to more than $100,000 but less than or pursuant to paragraphs (a), (b), and (c) businesses and farms with gross annual equal to $250,000; of this section had the loans been revenues of $1 million or less; (iii) With an amount at origination of originated or purchased by the savings (2) For each county (and for each more than $250,000; and association. For home mortgage loans, assessment area smaller than a county) (iv) To businesses and farms with the savings association shall also be with a population in excess of 500,000 gross annual revenues of $1 million or prepared to identify the home mortgage persons in which the savings less (using the revenues that the savings loans reported under part 1003 of this association reported a small business or association considered in making its title by the affiliate. small farm loan: credit decision); (e) Data on lending by a consortium (i) The number and amount of small (2) Community development loan or a third-party. A savings association business and small farm loans reported data. The aggregate number and that elects to have the appropriate as originated or purchased located in aggregate amount of community Federal banking agency consider geographies with median income development loans originated or community development loans by a relative to the area median income of purchased; and consortium or third party, for purposes less than 10 percent, 10 or more but less (3) Home mortgage loans. If the of the lending or community than 20 percent, 20 or more but less savings association is subject to development tests or an approved than 30 percent, 30 or more but less reporting under part 1003 of this title, strategic plan, shall report for those than 40 percent, 40 or more but less
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than 50 percent, 50 or more but less protect the privacy of a borrower or the (6) A map of each assessment area than 60 percent, 60 or more but less competitive position of an institution. showing the boundaries of the area and than 70 percent, 70 or more but less (j) Central data depositories. The identifying the geographies contained than 80 percent, 80 or more but less appropriate Federal banking agency within the area, either on the map or in than 90 percent, 90 or more but less makes the aggregate disclosure a separate list; and than 100 percent, 100 or more but less statements, described in paragraph (i) of (7) Any other information the savings than 110 percent, 110 or more but less this section, and the individual savings association chooses. than 120 percent, and 120 percent or association CRA Disclosure Statements, (b) Additional information available more; described in paragraph (h) of this to the public—(1) Savings associations (ii) A list grouping each geography in section, available to the public at central other than small savings associations. A the county or assessment area according data depositories. The appropriate savings association, except a small to whether the median income in the Federal banking agency publishes a list savings association or a savings geography relative to the area median of the depositories at which the association that was a small savings income is less than 10 percent, 10 or statements are available. association during the prior calendar more but less than 20 percent, 20 or year, shall include in its public file the more but less than 30 percent, 30 or § 195.43 Content and availability of public following information pertaining to the file. more but less than 40 percent, 40 or savings association and its affiliates, if more but less than 50 percent, 50 or (a) Information available to the applicable, for each of the prior two more but less than 60 percent, 60 or public. A savings association shall calendar years: more but less than 70 percent, 70 or maintain a public file that includes the (i) If the savings association has more but less than 80 percent, 80 or following information: elected to have one or more categories more but less than 90 percent, 90 or (1) All written comments received of its consumer loans considered under more but less than 100 percent, 100 or from the public for the current year and the lending test, for each of these more but less than 110 percent, 110 or each of the prior two calendar years that categories, the number and amount of more but less than 120 percent, and 120 specifically relate to the savings loans: percent or more; association’s performance in helping to (A) To low-, moderate-, middle-, and upper-income individuals; (iii) A list showing each geography in meet community credit needs, and any response to the comments by the (B) Located in low-, moderate-, which the savings association reported middle-, and upper-income census a small business or small farm loan; and savings association, if neither the comments nor the responses contain tracts; and (iv) The number and amount of small (C) Located inside the savings statements that reflect adversely on the business and small farm loans to association’s assessment area(s) and good name or reputation of any persons businesses and farms with gross annual outside the savings association’s other than the savings association or revenues of $1 million or less; assessment area(s); and (3) The number and amount of small publication of which would violate (ii) The savings association’s CRA business and small farm loans located specific provisions of law; Disclosure Statement. The savings inside each assessment area reported by (2) A copy of the public section of the association shall place the statement in the savings association and the number savings association’s most recent CRA the public file within three business and amount of small business and small Performance Evaluation prepared by the days of its receipt from the appropriate farm loans located outside the appropriate Federal banking agency. Federal banking agency. assessment area(s) reported by the The savings association shall place this (2) Savings associations required to savings association; and copy in the public file within 30 report Home Mortgage Disclosure Act (4) The number and amount of business days after its receipt from the (HMDA) data. A savings association community development loans reported appropriate Federal banking agency; required to report home mortgage loan as originated or purchased. (3) A list of the savings association’s data pursuant part 1003 of this title (i) Aggregate disclosure statements. branches, their street addresses, and shall include in its public file a written The appropriate Federal banking geographies; notice that the institution’s HMDA agency, in conjunction with the Board (4) A list of branches opened or closed Disclosure Statement may be obtained of Governors of the Federal Reserve by the savings association during the on the Consumer Financial Protection System and the Federal Deposit current year and each of the prior two Bureau’s (Bureau’s) website at Insurance Corporation or the OCC, as calendar years, their street addresses, www.consumerfinance.gov/hmda. In appropriate, prepares annually, for each and geographies; addition, a savings association that MSA or metropolitan division (5) A list of services (including hours elected to have the appropriate Federal (including an MSA or metropolitan of operation, available loan and deposit banking agency consider the mortgage division that crosses a state boundary) products, and transaction fees) generally lending of an affiliate shall include in and the nonmetropolitan portion of each offered at the savings association’s its public file the name of the affiliate state, an aggregate disclosure statement branches and descriptions of material and a written notice that the affiliate’s of small business and small farm differences in the availability or cost of HMDA Disclosure Statement may be lending by all institutions subject to services at particular branches, if any. obtained at the Bureau’s website. The reporting under this part or parts 25, At its option, a savings association may savings association shall place the 228, or 345 of this title. These disclosure include information regarding the written notice(s) in the public file statements indicate, for each geography, availability of alternative systems for within three business days after the number and amount of all small delivering retail banking services (e.g., receiving notification from the Federal business and small farm loans ATMs, ATMs not owned or operated by Financial Institutions Examination originated or purchased by reporting or exclusively for the savings Council of the availability of the institutions, except that the appropriate association, banking by telephone or disclosure statement(s). Federal banking agency may adjust the computer, loan production offices, and (3) Small savings associations. A form of the disclosure if necessary, bank-at-work or bank-by-mail small savings association or a savings because of special circumstances, to programs); association that was a small savings
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association during the prior calendar public notice set forth in appendix B of (including farms) with gross annual revenues year shall include in its public file: this part. Only a branch of a savings of $1 million or less, consistent with safe and (i) The savings association’s loan-to- association having more than one sound operations; deposit ratio for each quarter of the assessment area shall include the (F) Extensive use of innovative or flexible lending practices in a safe and sound manner prior calendar year and, at its option, bracketed material in the notice for to address the credit needs of low- or additional data on its loan-to-deposit branch offices. Only a savings moderate-income individuals or geographies; ratio; and association that is an affiliate of a and (ii) The information required for other holding company shall include the last (G) It is a leader in making community savings associations by paragraph (b)(1) two sentences of the notices. development loans. of this section, if the savings association (ii) High satisfactory. The appropriate has elected to be evaluated under the § 195.45 Publication of planned Federal banking agency rates a savings lending, investment, and service tests. examination schedule. association’s lending performance ‘‘high (4) Savings associations with strategic The appropriate Federal banking satisfactory’’ if, in general, it demonstrates: (A) Good responsiveness to credit needs in plans. A savings association that has agency publishes at least 30 days in advance of the beginning of each its assessment area(s), taking into account the been approved to be assessed under a number and amount of home mortgage, small strategic plan shall include in its public calendar quarter a list of savings business, small farm, and consumer loans, if file a copy of that plan. A savings associations scheduled for CRA applicable, in its assessment area(s); association need not include examinations in that quarter. (B) A high percentage of its loans are made information submitted to the Appendix A to Part 195—Ratings in its assessment area(s); appropriate Federal banking agency on (C) A good geographic distribution of loans a confidential basis in conjunction with (a) Ratings in general. (1) In assigning a in its assessment area(s); the plan. rating, the appropriate Federal banking (D) A good distribution, particularly in its agency evaluates a savings association’s assessment area(s), of loans among (5) Savings associations with less than performance under the applicable individuals of different income levels and satisfactory ratings. A savings performance criteria in this part, in businesses (including farms) of different association that received a less than accordance with §§ 195.21 and 195.28. This sizes, given the product lines offered by the satisfactory rating during its most recent includes consideration of low-cost education savings association; examination shall include in its public loans provided to low-income borrowers and (E) A good record of serving the credit file a description of its current efforts to activities in cooperation with minority- or needs of highly economically disadvantaged improve its performance in helping to women-owned financial institutions and areas in its assessment area(s), low-income meet the credit needs of its entire low-income credit unions, as well as individuals, or businesses (including farms) community. The savings association adjustments on the basis of evidence of with gross annual revenues of $1 million or discriminatory or other illegal credit less, consistent with safe and sound shall update the description quarterly. practices. operations; (c) Location of public information. A (2) A savings association’s performance (F) Use of innovative or flexible lending savings association shall make available need not fit each aspect of a particular rating practices in a safe and sound manner to to the public for inspection upon profile in order to receive that rating, and address the credit needs of low- or moderate- request and at no cost the information exceptionally strong performance with income individuals or geographies; and required in this section as follows: respect to some aspects may compensate for (G) It has made a relatively high level of (1) At the main office and, if an weak performance in others. The savings community development loans. interstate savings association, at one association’s overall performance, however, (iii) Low satisfactory. The appropriate branch office in each state, all must be consistent with safe and sound Federal banking agency rates a savings information in the public file; and banking practices and generally with the association’s lending performance ‘‘low appropriate rating profile as follows. satisfactory’’ if, in general, it demonstrates: (2) At each branch: (b) Savings associations evaluated under (A) Adequate responsiveness to credit (i) A copy of the public section of the the lending, investment, and service tests— needs in its assessment area(s), taking into savings association’s most recent CRA (1) Lending performance rating. The account the number and amount of home Performance Evaluation and a list of appropriate Federal banking agency assigns mortgage, small business, small farm, and services provided by the branch; and each savings association’s lending consumer loans, if applicable, in its (ii) Within five calendar days of the performance one of the five following ratings. assessment area(s); request, all the information in the public (i) Outstanding. The appropriate Federal (B) An adequate percentage of its loans are file relating to the assessment area in banking agency rates a savings association’s made in its assessment area(s); which the branch is located. lending performance ‘‘outstanding’’ if, in (C) An adequate geographic distribution of (d) Copies. Upon request, a savings general, it demonstrates: loans in its assessment area(s); (A) Excellent responsiveness to credit (D) An adequate distribution, particularly association shall provide copies, either needs in its assessment area(s), taking into in its assessment area(s), of loans among on paper or in another form acceptable account the number and amount of home individuals of different income levels and to the person making the request, of the mortgage, small business, small farm, and businesses (including farms) of different information in its public file. The consumer loans, if applicable, in its sizes, given the product lines offered by the savings association may charge a assessment area(s); savings association; reasonable fee not to exceed the cost of (B) A substantial majority of its loans are (E) An adequate record of serving the credit copying and mailing (if applicable). made in its assessment area(s); needs of highly economically disadvantaged (e) Updating. Except as otherwise (C) An excellent geographic distribution of areas in its assessment area(s), low-income provided in this section, a savings loans in its assessment area(s); individuals, or businesses (including farms) association shall ensure that the (D) An excellent distribution, particularly with gross annual revenues of $1 million or in its assessment area(s), of loans among less, consistent with safe and sound information required by this section is individuals of different income levels and operations; current as of April 1 of each year. businesses (including farms) of different (F) Limited use of innovative or flexible sizes, given the product lines offered by the lending practices in a safe and sound manner § 195.44 Public notice by savings savings association; to address the credit needs of low- or associations. (E) An excellent record of serving the moderate-income individuals or geographies; A savings association shall provide in credit needs of highly economically and the public lobby of its main office and disadvantaged areas in its assessment area(s), (G) It has made an adequate level of each of its branches the appropriate low-income individuals, or businesses community development loans.
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(iv) Needs to improve. The appropriate (A) An excellent level of qualified the convenience and needs of its assessment Federal banking agency rates a savings investments, particularly those that are not area(s), particularly low- or moderate-income association’s lending performance ‘‘needs to routinely provided by private investors, often geographies or low- or moderate-income improve’’ if, in general, it demonstrates: in a leadership position; individuals; and (A) Poor responsiveness to credit needs in (B) Extensive use of innovative or complex (D) It is a leader in providing community its assessment area(s), taking into account the qualified investments; and development services. number and amount of home mortgage, small (C) Excellent responsiveness to credit and (ii) High satisfactory. The appropriate business, small farm, and consumer loans, if community development needs. Federal banking agency rates a savings applicable, in its assessment area(s); (ii) High satisfactory. The appropriate association’s service performance ‘‘high (B) A small percentage of its loans are Federal banking agency rates a savings satisfactory’’ if, in general, the savings made in its assessment area(s); association’s investment performance ‘‘high association demonstrates: (C) A poor geographic distribution of loans, satisfactory’’ if, in general, it demonstrates: (A) Its service delivery systems are particularly to low- or moderate-income (A) A significant level of qualified accessible to geographies and individuals of geographies, in its assessment area(s); investments, particularly those that are not different income levels in its assessment (D) A poor distribution, particularly in its routinely provided by private investors, area(s); assessment area(s), of loans among occasionally in a leadership position; (B) To the extent changes have been made, individuals of different income levels and (B) Significant use of innovative or its record of opening and closing branches businesses (including farms) of different complex qualified investments; and has not adversely affected the accessibility of sizes, given the product lines offered by the (C) Good responsiveness to credit and its delivery systems, particularly in low- and savings association; community development needs. moderate-income geographies and to low- (E) A poor record of serving the credit (iii) Low satisfactory. The appropriate and moderate-income individuals; needs of highly economically disadvantaged Federal banking agency rates a savings (C) Its services (including, where areas in its assessment area(s), low-income association’s investment performance ‘‘low appropriate, business hours) do not vary in individuals, or businesses (including farms) satisfactory’’ if, in general, it demonstrates: a way that inconveniences its assessment with gross annual revenues of $1 million or (A) An adequate level of qualified area(s), particularly low- and moderate- less, consistent with safe and sound investments, particularly those that are not income geographies and low- and moderate- operations; routinely provided by private investors, income individuals; and (F) Little use of innovative or flexible although rarely in a leadership position; (D) It provides a relatively high level of lending practices in a safe and sound manner (B) Occasional use of innovative or community development services. to address the credit needs of low- or complex qualified investments; and (iii) Low satisfactory. The appropriate moderate-income individuals or geographies; (C) Adequate responsiveness to credit and Federal banking agency rates a savings association’s service performance ‘‘low and community development needs. (G) It has made a low level of community satisfactory’’ if, in general, the savings (iv) Needs to improve. The appropriate development loans. association demonstrates: Federal banking agency rates a savings (v) Substantial noncompliance. The (A) Its service delivery systems are association’s investment performance ‘‘needs appropriate Federal banking agency rates a reasonably accessible to geographies and to improve’’ if, in general, it demonstrates: savings association’s lending performance as individuals of different income levels in its (A) A poor level of qualified investments, being in ‘‘substantial noncompliance’’ if, in assessment area(s); particularly those that are not routinely general, it demonstrates: (B) To the extent changes have been made, (A) A very poor responsiveness to credit provided by private investors; its record of opening and closing branches needs in its assessment area(s), taking into (B) Rare use of innovative or complex has generally not adversely affected the account the number and amount of home qualified investments; and accessibility of its delivery systems, mortgage, small business, small farm, and (C) Poor responsiveness to credit and particularly in low- and moderate-income consumer loans, if applicable, in its community development needs. geographies and to low- and moderate- assessment area(s); (v) Substantial noncompliance. The income individuals; (B) A very small percentage of its loans are appropriate Federal banking agency rates a (C) Its services (including, where made in its assessment area(s); savings association’s investment performance appropriate, business hours) do not vary in (C) A very poor geographic distribution of as being in ‘‘substantial noncompliance’’ if, a way that inconveniences its assessment loans, particularly to low- or moderate- in general, it demonstrates: area(s), particularly low- and moderate- income geographies, in its assessment area(s); (A) Few, if any, qualified investments, income geographies and low- and moderate- (D) A very poor distribution, particularly in particularly those that are not routinely income individuals; and its assessment area(s), of loans among provided by private investors; (D) It provides an adequate level of individuals of different income levels and (B) No use of innovative or complex community development services. businesses (including farms) of different qualified investments; and (iv) Needs to improve. The appropriate sizes, given the product lines offered by the (C) Very poor responsiveness to credit and Federal banking agency rates a savings savings association; community development needs. association’s service performance ‘‘needs to (E) A very poor record of serving the credit (3) Service performance rating. The improve’’ if, in general, the savings needs of highly economically disadvantaged appropriate Federal banking agency assigns association demonstrates: areas in its assessment area(s), low-income each savings association’s service (A) Its service delivery systems are individuals, or businesses (including farms) performance one of the five following ratings. unreasonably inaccessible to portions of its with gross annual revenues of $1 million or (i) Outstanding. The appropriate Federal assessment area(s), particularly to low- or less, consistent with safe and sound banking agency rates a savings association’s moderate-income geographies or to low- or operations; service performance ‘‘outstanding’’ if, in moderate-income individuals; (F) No use of innovative or flexible lending general, the savings association (B) To the extent changes have been made, practices in a safe and sound manner to demonstrates: its record of opening and closing branches address the credit needs of low- or moderate- (A) Its service delivery systems are readily has adversely affected the accessibility of its income individuals or geographies; and accessible to geographies and individuals of delivery systems, particularly in low- or (G) It has made few, if any, community different income levels in its assessment moderate-income geographies or to low- or development loans. area(s); moderate-income individuals; (2) Investment performance rating. The (B) To the extent changes have been made, (C) Its services (including, where appropriate Federal banking agency assigns its record of opening and closing branches appropriate, business hours) vary in a way each savings association’s investment has improved the accessibility of its delivery that inconveniences its assessment area(s), performance one of the five following ratings. systems, particularly in low- or moderate- particularly low- or moderate-income (i) Outstanding. The appropriate Federal income geographies or to low- or moderate- geographies or low- or moderate-income banking agency rates a savings association’s income individuals; individuals; and investment performance ‘‘outstanding’’ if, in (C) Its services (including, where (D) It provides a limited level of general, it demonstrates: appropriate, business hours) are tailored to community development services.
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(v) Substantial noncompliance. The (ii) Rare use of innovative or complex (2) Community development test ratings for appropriate Federal banking agency rates a qualified investments, community intermediate small savings associations—(i) savings association’s service performance as development loans, or community Eligibility for a satisfactory community being in ‘‘substantial noncompliance’’ if, in development services; and development test rating. The appropriate general, the savings association (iii) Poor responsiveness to credit and Federal banking agency rates an intermediate demonstrates: community development needs in its small savings association’s community (A) Its service delivery systems are assessment area(s). development performance ‘‘satisfactory’’ if unreasonably inaccessible to significant (4) Substantial noncompliance. The the savings association demonstrates portions of its assessment area(s), particularly appropriate Federal banking agency rates a adequate responsiveness to the community to low- or moderate-income geographies or to wholesale or limited purpose savings development needs of its assessment area(s) low- or moderate-income individuals; association’s community development through community development loans, (B) To the extent changes have been made, performance in ‘‘substantial noncompliance’’ qualified investments, and community its record of opening and closing branches if, in general, it demonstrates: development services. The adequacy of the has significantly adversely affected the (i) Few, if any, community development savings association’s response will depend accessibility of its delivery systems, loans, community development services, or on its capacity for such community particularly in low- or moderate-income qualified investments, particularly development activities, its assessment area’s geographies or to low- or moderate-income investments that are not routinely provided need for such community development individuals; by private investors; activities, and the availability of such (C) Its services (including, where (ii) No use of innovative or complex opportunities for community development in appropriate, business hours) vary in a way qualified investments, community the savings association’s assessment area(s). that significantly inconveniences its development loans, or community (ii) Eligibility for an outstanding assessment area(s), particularly low- or development services; and community development test rating. The moderate-income geographies or low- or (iii) Very poor responsiveness to credit and appropriate Federal banking agency rates an moderate-income individuals; and community development needs in its intermediate small savings association’s (D) It provides few, if any, community assessment area(s). community development performance development services. (d) Savings associations evaluated under ‘‘outstanding’’ if the savings association (c) Wholesale or limited purpose savings the small savings association performance demonstrates excellent responsiveness to associations. The appropriate Federal standard—(1) Lending test ratings. (i) community development needs in its banking agency assigns each wholesale or Eligibility for a satisfactory lending test assessment area(s) through community limited purpose savings association’s rating. The appropriate Federal banking development loans, qualified investments, community development performance one of agency rates a small savings association’s and community development services, as the four following ratings. lending performance ‘‘satisfactory’’ if, in appropriate, considering the savings general, the savings association (1) Outstanding. The appropriate Federal association’s capacity and the need and banking agency rates a wholesale or limited demonstrates: availability of such opportunities for purpose savings association’s community (A) A reasonable loan-to-deposit ratio community development in the savings development performance ‘‘outstanding’’ if, (considering seasonal variations) given the association’s assessment area(s). in general, it demonstrates: savings association’s size, financial (iii) Needs to improve or substantial (i) A high level of community development condition, the credit needs of its assessment noncompliance ratings. An intermediate loans, community development services, or area(s), and taking into account, as small savings association may also receive a qualified investments, particularly appropriate, other lending-related activities investments that are not routinely provided such as loan originations for sale to the community development test rating of by private investors; secondary markets and community ‘‘needs to improve’’ or ‘‘substantial (ii) Extensive use of innovative or complex development loans and qualified noncompliance’’ depending on the degree to qualified investments, community investments; which its performance has failed to meet the development loans, or community (B) A majority of its loans and, as standards for a ‘‘satisfactory’’ rating. development services; and appropriate, other lending-related activities, (3) Overall rating—(i) Eligibility for a (iii) Excellent responsiveness to credit and are in its assessment area; satisfactory overall rating. No intermediate community development needs in its (C) A distribution of loans to and, as small savings association may receive an assessment area(s). appropriate, other lending-related activities assigned overall rating of ‘‘satisfactory’’ (2) Satisfactory. The appropriate Federal for individuals of different income levels unless it receives a rating of at least banking agency rates a wholesale or limited (including low- and moderate-income ‘‘satisfactory’’ on both the lending test and purpose savings association’s community individuals) and businesses and farms of the community development test. development performance ‘‘satisfactory’’ if, different sizes that is reasonable given the (ii) Eligibility for an outstanding overall in general, it demonstrates: demographics of the savings association’s rating. (A) An intermediate small savings (i) An adequate level of community assessment area(s); association that receives an ‘‘outstanding’’ development loans, community development (D) A record of taking appropriate action, rating on one test and at least ‘‘satisfactory’’ services, or qualified investments, when warranted, in response to written on the other test may receive an assigned particularly investments that are not complaints, if any, about the savings overall rating of ‘‘outstanding.’’ routinely provided by private investors; association’s performance in helping to meet (B) A small savings association that is not (ii) Occasional use of innovative or the credit needs of its assessment area(s); and an intermediate small savings association complex qualified investments, community (E) A reasonable geographic distribution of that meets each of the standards for a development loans, or community loans given the savings association’s ‘‘satisfactory’’ rating under the lending test development services; and assessment area(s). and exceeds some or all of those standards (iii) Adequate responsiveness to credit and (ii) Eligibility for an ‘‘outstanding’’ lending may warrant consideration for an overall community development needs in its test rating. A small savings association that rating of ‘‘outstanding.’’ In assessing whether assessment area(s). meets each of the standards for a a savings association’s performance is (3) Needs to improve. The appropriate ‘‘satisfactory’’ rating under this paragraph ‘‘outstanding,’’ the appropriate Federal Federal banking agency rates a wholesale or and exceeds some or all of those standards banking agency considers the extent to which limited purpose savings association’s may warrant consideration for a lending test the savings association exceeds each of the community development performance as rating of ‘‘outstanding.’’ performance standards for a ‘‘satisfactory’’ ‘‘needs to improve’’ if, in general, it (iii) Needs to improve or substantial rating and its performance in making demonstrates: noncompliance ratings. A small savings qualified investments and its performance in (i) A poor level of community development association may also receive a lending test providing branches and other services and loans, community development services, or rating of ‘‘needs to improve’’ or ‘‘substantial delivery systems that enhance credit qualified investments, particularly noncompliance’’ depending on the degree to availability in its assessment area(s). investments that are not routinely provided which its performance has failed to meet the (iii) Needs to improve or substantial by private investors; standard for a ‘‘satisfactory’’ rating. noncompliance overall ratings. A small
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savings association may also receive a rating under the CRA, including, for example, available to you at this branch within five of ‘‘needs to improve’’ or ‘‘substantial information about our branches, such as their calendar days after you make a request to us: noncompliance’’ depending on the degree to location and services provided at them; the (1) A map showing the assessment area which its performance has failed to meet the public section of our most recent CRA containing this branch, which is the area in standards for a ‘‘satisfactory’’ rating. Performance Evaluation, prepared by the which the [OCC or FDIC] evaluates our CRA (e) Strategic plan assessment and rating— [OCC or FDIC]; and comments received from performance in this community; (2) (1) Satisfactory goals. The appropriate the public relating to our performance in information about our branches in this Federal banking agency approves as helping to meet community credit needs, as assessment area; (3) a list of services we ‘‘satisfactory’’ measurable goals that well as our responses to those comments. provide at those locations; (4) data on our adequately help to meet the credit needs of You may review this information today. lending performance in this assessment area; the savings association’s assessment area(s). At least 30 days before the beginning of and (5) copies of all written comments (2) Outstanding goals. If the plan identifies each quarter, the [OCC or FDIC] publishes a a separate group of measurable goals that nationwide list of the savings associations received by us that specifically relate to our substantially exceed the levels approved as that are scheduled for CRA examination in CRA performance in this assessment area, ‘‘satisfactory,’’ the appropriate Federal that quarter. This list is available from the and any responses we have made to those banking agency will approve those goals as [OCC Deputy Comptroller (address) or FDIC comments. If we are operating under an ‘‘outstanding.’’ appropriate regional director (address)]. You approved strategic plan, you may also have (3) Rating. The appropriate Federal may send written comments about our access to a copy of the plan. banking agency assesses the performance of performance in helping to meet community [If you would like to review information a savings association operating under an credit needs to (name and address of official about our CRA performance in other approved plan to determine if the savings at savings association) and the [OCC Deputy communities served by us, the public file for association has met its plan goals: Comptroller (address) or FDIC appropriate our entire savings association is available at (i) If the savings association substantially regional director (address)]. Your letter, (name of office located in state), located at achieves its plan goals for a satisfactory together with any response by us, will be (address).] rating, the appropriate Federal banking considered by the [OCC or FDIC] in At least 30 days before the beginning of agency will rate the savings association’s evaluating our CRA performance and may be each quarter, the [OCC or FDIC] publishes a performance under the plan as ‘‘satisfactory.’’ made public. nationwide list of the savings associations (ii) If the savings association exceeds its You may ask to look at any comments that are scheduled for CRA examination in plan goals for a satisfactory rating and received by the [OCC Deputy Comptroller or that quarter. This list is available from the substantially achieves its plan goals for an FDIC appropriate regional director]. You may [OCC Deputy Comptroller (address) or FDIC outstanding rating, the appropriate Federal also request from the [OCC Deputy appropriate regional office (address)]. You banking agency will rate the savings Comptroller or FDIC appropriate regional may send written comments about our association’s performance under the plan as director] an announcement of our ‘‘outstanding.’’ performance in helping to meet community applications covered by the CRA filed with credit needs to (name and address of official (iii) If the savings association fails to meet the [OCC or FDIC]. We are an affiliate of substantially its plan goals for a satisfactory at savings association) and the [OCC or (name of holding company), a savings and FDIC]. Your letter, together with any rating, the appropriate Federal banking loan holding company. You may request response by us, will be considered by the agency will rate the savings association as from the (title of responsible official), Federal [OCC or FDIC] in evaluating our CRA either ‘‘needs to improve’’ or ‘‘substantial Reserve Bank of lllllllll performance and may be made public. noncompliance,’’ depending on the extent to (address) an announcement of applications which it falls short of its plan goals, unless covered by the CRA filed by savings and loan You may ask to look at any comments the savings association elected in its plan to holding companies. received by the [OCC Deputy Comptroller or be rated otherwise, as provided in (b) Notice for branch offices. FDIC appropriate regional director]. You may § 195.27(f)(4). also request an announcement of our Community Reinvestment Act Notice applications covered by the CRA filed with Appendix B to Part 195—CRA Notice Under the Federal Community the [OCC Deputy Comptroller or FDIC (a) Notice for main offices and, if an Reinvestment Act (CRA), the [Office of the appropriate regional director]. We are an interstate savings association, one branch Comptroller of the Currency (OCC) or Federal affiliate of (name of holding company), a office in each state. Deposit Insurance Corporation (FDIC)] savings and loan holding company. You may evaluates our record of helping to meet the request from the (title of responsible official), Community Reinvestment Act Notice credit needs of this community consistent Federal Reserve Bank of lllllllll Under the Federal Community with safe and sound operations. The [OCC or (address) an announcement of applications Reinvestment Act (CRA), the [Office of the FDIC] also takes this record into account covered by the CRA filed by savings and loan Comptroller of the Currency (OCC) or Federal when deciding on certain applications holding companies. Deposit Insurance Corporation (FDIC)] submitted by us. evaluates our record of helping to meet the Your involvement is encouraged. PART 195—[REMOVED] credit needs of this community consistent You are entitled to certain information with safe and sound operations. The [OCC or about our operations and our performance ■ FDIC] also takes this record into account under the CRA. You may review today the 9. Remove part 195. when deciding on certain applications public section of our most recent CRA Joseph M. Otting, submitted by us. evaluation, prepared by the [OCC or FDIC] Comptroller of the Currency. Your involvement is encouraged. and a list of services provided at this branch. You are entitled to certain information You may also have access to the following [FR Doc. 2020–11220 Filed 6–4–20; 8:45 am] about our operations and our performance additional information, which we will make BILLING CODE 4810–33–P
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Part III
Department of Homeland Security
U.S. Customs and Border Protection 19 CFR Parts 24 and 111 Modernization of the Customs Brokers Regulations; Proposed Rule
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DEPARTMENT OF HOMELAND 10th Floor, Washington, DC 20229– against other persons for conducting SECURITY 1177. customs business without the required Instructions: All submissions received broker’s license. Section 641 authorizes U.S. Customs and Border Protection must include the agency name and the Secretary of the Treasury to docket number for this rulemaking. All prescribe rules and regulations relating 19 CFR Parts 24 and 111 comments received will be posted to the customs business of brokers as without change to http:// may be necessary to protect the public [Docket No. USCBP–2020–0009] www.regulations.gov, including any and the revenue of the United States personal information provided. For and to carry out the provisions of RIN 1651–AB16 detailed instructions on submitting section 641. Modernization of the Customs Brokers comments and additional information The regulations issued under the Regulations on the rulemaking process, see the authority of section 641 are set forth in ‘‘Public Participation’’ heading of the part 111 of title 19 of the Code of AGENCY: U.S. Customs and Border SUPPLEMENTARY INFORMATION section of Federal Regulations (CFR) (19 CFR part Protection, DHS. this document. 111) and provide for, among other ACTION: Notice of proposed rulemaking. Docket: For access to the docket to things, the rules for license and permit read background documents or requirements; recordkeeping and other SUMMARY: This document proposes to comments received, go to http:// duties and responsibilities of brokers; amend the U.S. Customs and Border www.regulations.gov. Submitted the grounds and procedures for the Protection (CBP) regulations by comments may be inspected during revocation or suspension of broker modernizing the customs brokers regular business days between the hours licenses and permits; the grounds for regulations to coincide with the of 9 a.m. and 4:30 p.m. at the Trade and the assessment of monetary penalties; development of CBP trade initiatives Commercial Regulations Branch, and fee payment requirements including, the Automated Commercial Regulations and Rulings, Office of applicable to brokers under section 641 Environment (ACE) and the Centers of Trade, U.S. Customs and Border and 19 U.S.C. 58c(a)(7). Excellence and Expertise (Centers). Protection, 90 K Street NE, 10th Floor, Customs brokers are private Specifically, CBP proposes to transition Washington, DC. Arrangements to individuals and/or business entities all brokers to national permits and to inspect submitted comments should be (partnerships, associations or eliminate broker districts and district made in advance by calling Ms. Cammy corporations) that are licensed and permits. CBP is also proposing, among Canedo at (202) 325–0439. regulated by CBP to assist importers in other changes, to update the responsible conducting customs business. Customs FOR FURTHER INFORMATION CONTACT: brokers have an enormous responsibility supervision and control oversight Melba Hubbard, Chief, Broker framework, ensure that customs to their clients and to CBP that requires Management Branch, (202) 863–6986, them to properly prepare importation business is conducted within the United [email protected]. States, and require that the customs documentation, file these documents broker have direct communication with SUPPLEMENTARY INFORMATION: timely and accurately, classify and the importer. Additionally, CBP Public Participation value goods properly, pay duties, taxes, proposes to raise the broker license and fees, safeguard their clients’ Interested persons are invited to application fees to recover some of the information, and protect their licenses participate in this rulemaking by costs associated with reviewing the from misuse. submitting written data, views, or customs broker license application and The current broker regulations are arguments on all aspects of this conducting the necessary vetting for based on the district system in which proposed rule. U.S. Customs and Border individuals and business entities (i.e., entry, entry summary, and post- Protection (CBP) also invites comments corporations, partnerships, and summary activity are all handled by the that relate to the economic, associations). The Department of the ports within a district, for which a environmental, or federalism effects that broker district permit is required. As a Treasury retains authority over CBP might result from this regulatory general rule, all merchandise imported regulations relating to customs revenue change. Comments that will provide the into the United States is required to be in accordance with the Homeland most assistance to CBP will reference a entered, unless specficially excepted. Security Act of 2002. Accordingly, CBP specific portion of the rule, explain the The act of entering merchandise is publishing a concurrent notice of reason for any recommended change, consists of the filing of paper or proposed rulemaking to eliminate all and include data, information or electronic documents with CBP references to customs broker district authority that support such containing sufficient information to permit fees (See ‘‘Removal of References recommended change. enable CBP to determine whether to Customs Broker District Permit Fee’’ imported merchandise may be released RIN 1515–AE43). Background from CBP custody. See 19 CFR DATES: Comments must be received on Section 641 of the Tariff Act of 1930, 141.0a(a). Additionally, entry summary or before August 4, 2020. as amended (19 U.S.C. 1641), provides refers to documentation that enables ADDRESSES: You may submit comments, that individuals and business entities CBP to assess duties, and collect identified by docket number, by one of must hold a valid customs broker’s statistics on imported merchandise, and the following methods: license and permit to transact customs determine whether other requirements • Federal eRulemaking Portal at business on behalf of others. The statute of law or regulation are met. See 19 CFR http://www.regulations.gov. Follow the also sets forth standards for the issuance 141.0a(b). Pursuant to the regulations, instructions for submitting comments of broker licenses and permits; provides customs business also refers to post- via Docket No. USCBP–2020–0009. for disciplinary action against brokers in summary activity, including the refund, • Mail: Trade and Commercial the form of suspension or revocation of rebate, or drawback of duties, taxes, or Regulations Branch, Regulations and such licenses and permits or assessment other charges. A district is the Rulings, Office of Trade, U.S. Customs of monetary penalties; and, provides for geographic area covered by a customs and Border Protection, 90 K Street NE, the assessment of monetary penalties broker permit other than a national
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permit. Brokers are required to maintain The other relevant major development to operate through a single, national a physical presence within the district was the creation of ACE. In an effort to permit. The amendments proposed in so that the broker is physically close to modernize the business processes this NPRM incorporate the feedback the port of entry to file any paperwork essential to securing U.S. borders, received from the broker community, as associated with an entry, entry facilitating the flow of legitimate well as recommendations made by the summary, or post-summary activity. shipments, and targeting illicit goods COAC, and aim to reflect the modern CBP operating environment, the The Impact of the Centers of Excellence pursuant to the Customs Modernization importance of electronic mail (email) as and Expertise and the Automated Act (Mod Act) (passed as part of the a means of communication, and the Commercial Environment on Brokers North American Free Trade Agreement Implementation Act (NAFTA), Pub. L. electronic processes available for the Two major developments, the 103–182 § 623 (1993)), and the Security acceptance of broker information which establishment of the Centers of and Accountability for Every (SAFE) should alleviate some burden on the Excellence and Expertise (Centers) and Port Act of 2006 (Pub. L. 109–347, 120 ports, brokers, and importers. the creation of the Automated Stat. 1884), CBP developed ACE to CBP proposes to modernize the Commercial Environment (ACE), have eventually replace the Automated customs broker regulations contained in fundamentally changed the traditional Commercial System (ACS) as the CBP- 19 CFR part 111 to align with the ways that customs brokers and CBP authorized electronic data interchange development of CBP trade initiatives, interact. Beginning in 2012, CBP (EDI) system. including ACE and the Centers. developed a test to incrementally On October 13, 2015, CBP published Specifically, this document proposes to transition the operational trade an interim final rule in the Federal transition all brokers to national permits functions that traditionally reside with Register (80 FR 61278) that designated and expand the scope of the national ports of entry and port directors to the ACE as a CBP-authorized EDI system. permit authority to allow national Centers and Center directors. The The designation of ACE as a CBP- permit holders to conduct all customs Centers were established in strategic authorized EDI system was effective business throughout the customs locations around the country to focus November 1, 2015. In the interim final territory of the United States. To CBP’s trade expertise on industry- rule, CBP stated that ACS would be accomplish this, CBP proposes to specific issues and provide tailored phased out and anticipated that ACS eliminate broker districts, district support for importers. CBP established would no longer be supported for permits, district permit waivers, and the these Centers to facilitate trade, reduce electronic entry and entry summary requirement for brokers to maintain transaction costs, increase compliance filing. Filers were encouraged to adjust district offices. Upon adoption of a final with applicable import laws, and their business practices so that they rule, CBP will provide guidance to those achieve uniformity of treatment at the would be prepared when ACS was brokers with only a district permit(s) ports of entry for the identified decommissioned. explaining the process to transition their industries. On December 20, 2016, CBP ACE now offers the operational district permit(s) to a national permit. published an interim final rule in the capabilities necessary to enable users to CBP is also proposing, among other Federal Register (81 FR 92978) which transmit a harmonized set of import changes, to update the responsible codified the role of the Centers. This data elements, via a ‘‘single window,’’ to supervision and control oversight interim final rule transferred to the obtain the release and clearance of framework, ensure that customs Centers and Center directors a variety of goods. As a result, the International business is conducted within the United post-release trade functions that were Trade Data System (ITDS) eliminates States, and require that the customs handled by port directors, including redundant reporting requirements and broker have direct communication with decisions and processing related to facilitates the transition from paper- the importer. The proposed changes are entry summaries; decisions and based reporting and other procedures to designed to enable customs brokers to processing related to all types of faster and more cost-effective electronic meet the challenges of the modern protests; suspension and extension of submissions to, and communication operating environment while liquidations; decisions and processing among, government agencies. These maintaining a high level of service in concerning free trade agreements and electronic capabilities that allow brokers customs business. duty preference programs; decisions Currently, the broker license to file entry information in ACE reduce concerning warehouse withdrawals application fee is $200. 19 CFR the need for brokers to be physically wherein the goods are entered into the 111.12(a); 111.96(a). In conducting a close to the ports of entry, as currently commerce of the United States; all study on the costs associated with the required under the district permit functions and decisions concerning broker license application, CBP regulations. country of origin marking issues; determined that fees of $463 for functions concerning informal entries; Discussion of Proposed Amendments individuals and $815 for business and classification and appraisement of entities (i.e., corporations, partnerships, merchandise. Proposed Major Changes to How Brokers and associations) would be necessary to With the transfer of trade functions to May Operate recover the costs associated with the Centers, a significant portion of Over the past several years CBP has reviewing the customs broker license these activities, including entry conducted outreach to the broker application and conducting the summary and post-summary, are now community through webinars, port necessary vetting for individuals and handled directly by the Centers. The meetings, and broker association business entities. However, in an effort Center structure is based on subject meetings, to solicit feedback on the role to minimize the financial burden to matter expertise, as opposed to of the broker in this updated business prospective customs brokers while also geographic location, placing them environment. In addition, in light of the recovering some of the increasing costs outside of the district system as it changes to CBP’s operational structure associated with reviewing the customs currently exists. The current broker and electronic capabilities, the broker license application and regulations based on the district system Commercial Customs Operations conducting the necessary vetting, CBP is do not fully reflect how trade functions Advisory Committee (COAC) proposing to increase the customs are being processed by CBP. recommended that CBP enable brokers broker license application fee to only
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$300 for individuals and $500 for decision making authority on broker Commissioner. Corresponding changes business entities. While CBP is management related issues. The to reflect the name Executive Assistant proposing to raise the application fees, appropriate Executive Director, Office of Commissioner throughout part 111 are there will be several cost savings as a Trade is the Executive Director proposed in §§ 111.1, 111.14, 111.15, result of eliminating the district permit responsible for broker management. 111.16, 111.17, 111.19, 111.28, 111.42, requirement and other proposed The term ‘‘broker’s office of record’’ 111.45, 111.51, 111.52, 111.53, 111.55, changes to the broker regulations. The defines the office designated by a 111.56, 111.57, 111.61, 111.67, 111.74, current application fee for a district or customs broker as the broker’s primary 111.76, 111.77, 111.79, and 111.81 (19 national permit is $100 per permit. 19 location that oversees the CFR 111.1, 111.14, 111.15, 111.16, CFR 111.19(a); 111.96(b). In addition, a administration of all activities 111.17, 111.19, 111.28, 111.42, 111.45, customs broker must pay an annual conducted under a national permit. 111.51, 111.52, 111.53, 111.55, 111.56, customs broker permit user fee of Currently, a broker is required to 111.57, 111.61, 111.67, 111.74, 111.76, $147.89 for each district and national maintain a physical office in each 111.77, 111.79, 111.81). Corresponding permit that they hold. 19 CFR 24.22(h). district where he or she is permitted. changes to reflect the name Office of The annual customs broker permit user See 19 CFR 111.19. Under the proposed Trade throughout part 111 are proposed fee is subject to adjustment each fiscal national permit system, the broker will in §§ 111.1, 111.19 and 111.30. (19 CFR year in accordance with the Fixing have the freedom to determine where to 111.1, 111.19, 111.30). America’s Surface Transportation Act establish his or her office(s) within the The current definition of ‘‘permit’’ (FAST Act). 19 CFR 24.22(k). 84 FR customs territory of the United States. In means any permit issued to a broker 37902 (August 2, 2019). For a complete order to ensure reliable channels of under § 111.19. CBP proposes to change discussion of the cost/benefit analysis communication between CBP and the the word ‘‘any’’ to ‘‘a’’ to account for the for adjusting the fees, see the ‘‘Executive broker, CBP proposes that the broker’s proposed elimination of district permits. Orders 13563, 12866, and 13771’’ office of record must be provided in the Without district permits, the only section below. application for a national permit and permit available under § 111.19 will be A summary of the specific proposed kept up to date. The term ‘‘designated a national permit. changes to 19 CFR part 111 is set forth Center’’ defines the Center of Excellence The current definition of ‘‘responsible below. and Expertise through which an supervision and control’’ in § 111.1 individual, partnership, association, or provides a list of factors that CBP will Part 111 corporation submits an application for a consider in determining whether a As discussed in the Background broker’s license, or as otherwise broker is exercising responsible section above, CBP published an interim designated by CBP for currently supervision and control. CBP has final rule that transferred certain trade licensed brokers. Upon adoption of a determined that the factors which CBP functions from the port director to the final rule, CBP will provide guidance will consider in determining whether a Center director. Similarly, certain broker informing licensed brokers of the broker is exercising responsible management functions previously designated Center for license and permit supervision and control should be set performed by the port director will be administration purposes. Currently, an forth in revised § 111.28, entitled, transferred to the Centers as part of this applicant submits his or her broker ‘‘Responsible supervision.’’ As a result, proposed rule. As a result, CBP license application to the director of the this document proposes to amend the proposes replacing references in part port where the applicant intends to do definition of ‘‘responsible supervision 111 to the ‘‘ports’’ and ‘‘port directors’’ business. See 19 CFR 111.12. The port and control’’ by moving the list of with references to ‘‘the Centers’’ and where an applicant submits his or her factors from §§ 111.1 through 111.28. ‘‘directors of the designated Centers’’ license application serves as the This document proposes to re-order (discussed further below). Specifically, primary point of contact between CBP the definition of ‘‘Department of CBP proposes amendments to sections and the broker for administrative Homeland Security’’ so that it appears 111.1, 111.2, 111.12, 111.14, 111.15, purposes. Under the proposed changes, in proper alphabetical order between 111.16, 111.19, 111.21, 111.28, 111.30, the designated Center would become the the existing definition of ‘‘Customs 111.45, 111.56, 111.57, 111.59, 111.60, primary point of contact. business’’ and the new definition of 111.61, 111.62, 111.63, 111.64, 111.67, This document also proposes to ‘‘Designated Center.’’ remove the definitions for ‘‘district’’ and 111.72, 111.78, and 111.96. (19 CFR Elimination of District Rule 111.1, 111.2, 111.12, 111.14, 111.15, ‘‘region’’ found in § 111.1. Given that 111.16, 111.19, 111.21, 111.28, 111.30, these two terms relate specifically to The current regulations in § 111.2 111.45, 111.56, 111.57, 111.59, 111.60, district permits and this document require a customs broker to maintain a 111.61, 111.62, 111.63, 111.64, 111.67, proposes to eliminate district permits, license and a district permit. To account 111.72, 111.78, 111.96). In addition, these terms will no longer be necessary. for the increased electronic capability CBP proposes to add a definition of a In addition, CBP proposes to amend that the ACE Single Window now new term, ‘‘designated Center,’’ three terms found in § 111.1: ‘‘Assistant allows, this document proposes discussed under Subpart A below. Commissioner,’’ ‘‘permit,’’ and amendments to the customs brokers ‘‘responsible supervision and control.’’ permitting framework. Currently, a Subpart A, General Provisions (19 CFR 111.1). The Trade Facilitation district permit is the official document Definitions for terms used throughout and Trade Enforcement Act of 2015 that allows a licensed customs broker to part 111 are found in § 111.1. CBP (TFTEA) (Pub. L. 114–125), signed into conduct customs business on behalf of proposes to add three new terms: law on February 24, 2016, changed the others in a particular geographic area ‘‘appropriate Executive Director, Office title ‘‘Assistant Commissioner’’ for the known as a broker district. A district of Trade’’, ‘‘broker’s office of record’’ Office of Trade to ‘‘Executive Assistant permit is required when a broker has and ‘‘designated Center.’’ Commissioner.’’ TFTEA also changed been issued a broker license and intends The term ‘‘appropriate Executive the name of the ‘‘Office of International to conduct customs business in a Director, Office of Trade’’ defines the Trade’’ to the ‘‘Office of Trade.’’ As a particular broker district. If a broker Executive Director within the Office of result, CBP proposes to update these intends to conduct customs business at Trade who has been delegated first level terms in the definition of Assistant ports within multiple broker districts, a
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broker must apply for a district permit practice, and the broker community and broker license application and for each broker district where the broker CBP have agreed that this requirement conducting the necessary vetting for plans to conduct customs business. should be set forth in the regulations. individuals and business entities. The Alternatively, a customs broker may Proposed paragraph (b) requires each fee study documenting the proposed fee apply for a district permit waiver broker to maintain a current point of changes, entitled ‘‘Customs Broker limited to the geographical region in contact for issues related to the License Application Fee Study,’’ has which the broker operates. transaction of customs business. been included in the docket of this In addition to district permits, CBP rulemaking (Docket No. USCBP–2020– Subpart B, Procedure To Obtain regulations provide for a national permit 0009). If implemented, however, this fee License or Permit which allows a broker to conduct only rate could become an economic four activities in all districts: Place an Once a prospective broker passes the disincentive to those pursuing a career employee in the facility of a client for customs broker examination, he or she as a customs broker. In an effort to whom the broker is conducting customs must obtain a license before he or she minimize the financial burden to business; file electronic drawback is allowed to conduct customs business prospective customs brokers while also claims; participate in remote location on behalf of others. Section 111.12 sets recovering some of the increasing costs filing; and make representations before forth the application requirements to associated with reviewing the customs Customs on issues arising out of an obtain a license. Paragraph (a) describes broker license application and entry or concerning merchandise the license application procedures and conducting the necessary vetting, CBP covered by an entry after the entry fee requirements. Paragraph (b) explains has decided not to increase the fees to summary has been accepted. See current that notice will be posted at the ports that level but to limit the increase of the 19 CFR 111.2(b)(2)(i)(A–D). where applications are received and that customs broker license application fee This document proposes to eliminate written comments on the applicants are from $200 to only $300 for an district permits and allow a national invited. Paragraph (c) describes the individual license application, and from permit holder to conduct any type of procedures for the withdrawal of an $200 to $500 for a partnership, customs business within the customs application for a broker license. association, or corporation license territory of the United States. This In paragraph 111.12(a), CBP proposes application. represents a full expansion of the to update the place of submission for an CBP proposes to not set forth the activities allowed under a national application from the port where the specific application fee in § 111.12 but permit. CBP has determined that brokers broker intends to do business to the to cross-reference the relevant fees may need to make contact with CBP Center designated by CBP after the provision in part 111 at § 111.96(a). CBP personnel across the customs territory applicant has passed the brokers exam. proposes similarly to streamline the due to the existence of the Centers and References to port director will become regulations by removing specific fee the increasingly automated Center director throughout this amounts throughout part 111 and environment, so there is no longer a paragraph. CBP also proposes to replacing them with references to the reason to restrict national permit eliminate the requirement in paragraph relevant paragraph of the fees provision holders to the four activities currently 111.12(a) that an application be found in § 111.96. allowed. To achieve these changes, CBP submitted under oath to ease the burden CBP proposes to remove paragraph (b) proposes to amend the title of § 111.2 by on applicants. CBP also proposes to of § 111.12 on posting notice of removing the word ‘‘district.’’ CBP also remove the language prescribing the applications because CBP has not found proposes to replace references to method by which applicants are that this provision provides the agency ‘‘Customs’’ with ‘‘CBP’’ and references required to submit fingerprints since with any useable information. Very little to ‘‘the port director’’ with ‘‘the director they are no longer collected via information was received from the of the designated Center’’ which will fingerprint cards, but rather through public in response to the posted notice allow the agency greater flexibility to CBP systems. Eliminating restrictions on of applications and the information conduct broker management at the the methods for collecting fingerprints obtained through a background ports, the Centers, or at Headquarters. would provide CBP as well as the investigation is sufficient for CBP to The most significant changes proposed applicant with greater flexibility. make a determination on the broker would amend paragraph 111.2(b) by Currently, a Center director may reject license application. In § 111.12(c), CBP renaming paragraph (b) as, ‘‘National an application as improperly filed if it proposes to replace ‘‘port director’’ with Permit.’’ In addition, CBP proposes to fails to meet one of the basic ‘‘director of the designated Center’’ and remove the existing text in paragraphs requirements set forth in § 111.11. CBP to remove the specific application fee (b)(1) and (b)(2) and replace them with proposes to add wording to this section amount for the reason discussed above. a sentence reading, ‘‘A national permit to allow a Center director to reject an Section 111.13 provides details and issued to a broker under § 111.19 of this incomplete application as well. procedures for the customs broker part will constitute sufficient permit Currently, an applicant must submit examination for an individual broker’s authority for the broker to conduct two copies of the application under oath license. CBP proposes to remove the customs business within the customs with a $200 application fee and references to the $390 examination fee territory of the United States as defined supporting documentation to the port amount throughout this section while in § 101.1 of title 19.’’ where he or she intends to do business. retaining the cross-reference to § 111.96 The application fee is currently the which lists all of the relevant fees in one Customs Business same for both individual and business section. Paragraph (c) describes the Section 111.3 is currently reserved. license applicants. As part of the review circumstances under which a special CBP proposes a new § 111.3 entitled, of part 111, CBP conducted a fee study examination can be requested, including ‘‘Customs business.’’ The proposed new and determined that CBP would need to when a brokerage firm loses the section contains two paragraphs. collect fees of $463 for individuals and individual broker who was exercising Proposed paragraph (a) requires that $815 for business entities (i.e., responsible supervision and control customs business must be conducted corporations, partnerships, and over an office in another district. Due to within the customs territory of the associations) to recover the costs the proposed elimination of district United States. This is CBP’s current associated with reviewing the customs permits and the corresponding
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requirement to employ at least one to deny a broker license to an individual a denied application. In addition, CBP individual broker to exercise associated with terrorist groups, proposes adding telephone and other responsible supervision and control organized crime, or groups advocating acceptable means to the methods of over the customs business conducted in the overthrow of the government. communication available by which an each district, CBP proposes to revise the Current paragraphs (c) and (d) are applicant may request to provide further third sentence in paragraph (c) to reflect redesignated as (b) and (c), respectively, information to CBP when an application the elimination of district permits. in § 111.14. In redesignated paragraph is denied. This addition would provide Paragraph (e) describes exam results (b), CBP proposes to replace port greater flexibility for both CBP and the given to the examinee by written notice director with director of the designated applicant. and paragraph (f) explains how an Center. In addition, CBP proposes to Section 111.18 governs reapplication examinee can file a written appeal of a update the phrase ‘‘report of for a license. CBP proposes to add a failing grade. CBP proposes to amend investigation’’ to ‘‘supporting requirement that previously denied both paragraphs to allow the use of documentation’’ because background applicants address how the deficiencies written or electronic notice of the exam investigations are no longer conducted in their prior applications have been results as well as written or electronic by ICE. Redesignated paragraph (c) remedied. This change ensures that appeal requests and decisions. currently requires the applicant to those applicants filing a reapplication Examinees who wish to appeal the appear in person before one or more do not simply file the same application examination results or request review of representatives of the Assistant again. the appeal decision should submit those Commissioner for the purpose of requests in accordance with the undergoing further written or oral Elimination of District Permits instructions provided in the results inquiry into the applicant’s qualification Section 111.19 provides the letter. for a license. To allow greater flexibility procedures for obtaining broker permits, Section 111.14 describes the for both CBP and the applicant, CBP responsible supervision and control investigation of a license applicant. CBP proposes amendments to redesignated requirements for permits, and review proposes to update the title of § 111.14 paragraph (c) to include other approved procedures for the denial of a permit. to specify that the investigation being methods of communication in addition Currently, an initial district permit is conducted is on the background of the to the requirement that the applicant issued, with the $100 permit fee waived, license applicant. In the past, a make an in-person appearance before when a broker’s license is granted. A background investigation had been the appropriate Executive Director, broker may subsequently apply for conducted by an Immigration and Office of Trade. In addition, CBP additional district permits and a Customs Enforcement (ICE) special proposes to remove the word national permit. An application fee of agent in charge. However, because CBP investigation in paragraph (c), while $100 is required for each additional now uses its own automated systems to retaining the reference to additional district permit or for a national permit. conduct broker background inquiry, so as not to cause confusion 19 CFR 111.19(b) and (f); 111.96(b). In investigations and no longer refers with the primary background addition, all permits, district and applications to an ICE special agent in investigation. charge, CBP proposes to remove Section 111.16 provides the notice national, are subject to an annual paragraph (a) on referral of applications procedures and grounds for denial of a customs broker permit user fee which for investigation. CBP proposes license. Paragraph (b) of § 111.16 sets has been set at $147.89 for fiscal year redesignating paragraph (b) as paragraph forth the grounds for denial of a license. 2020. 19 CFR 24.22(h); 111.96(c). 84 FR (a). Currently, § 111.14 states explicitly Currently, the grounds for denial of a 37902 (August 2, 2019). Currently, that an investigation of the applicant is license include: (1) Any cause which national permits are issued by the based on the application. CBP is would justify suspension or revocation Broker Management Branch at CBP clarifying that the scope of the of the license of a broker; (2) failure to Headquarters. background investigation specifically meet any of the basic requirements for The COAC issued a recommendation includes information obtained as part of a license; (3) failure to establish that CBP enable brokers to operate the interview. CBP proposes to include business integrity and good character; through a single, national permit. The information from the interview in (4) any willful misstatement of pertinent full text of the COAC recommendations, redesignated paragraph (a)(1) to reflect facts in the license application; (5) any ‘‘Commercial Customs Operations that any willful misstatements or conduct which would be deemed unfair Advisory Committee Term to Date omission of pertinent facts made either in commercial transactions; or (6) a Recommendations (4/27/16, 7/27/16, on the application or during the reputation or record of criminal, 11/17/16, 3/1/17)’’ can be found in interview can provide grounds for dishonest, or unethical conduct. CBP Docket No. USCBP–2020–0009. The denying a broker license. See 19 CFR proposes to expand the grounds COAC further explained that CBP must 111.16. As CBP examines an applicant’s sufficient to justify denial of a license to modernize its permitting framework to business integrity, which includes also include: The failure to establish align broker permitting with the financial reports as part of the financial responsibility; the omission of challenges and opportunities of 21st background investigation, CBP proposes pertinent facts in the application or century electronic entry and entry to add financial responsibility to the interview; detrimental commercial summary processing. Upon due scope of that background investigation transactions; and any other relevant consideration of COAC’s to make clear that it is part of the information uncovered over the course recommendation, and other input background investigation. CBP also of the background investigation. received by CBP from the brokerage proposes to expand the scope of Section 111.17 sets forth the review community, this document proposes to background investigation to include any procedures in the event that a license amend CBP’s permit issuing procedures association with any individuals or application is denied. in § 111.19. CBP proposes to eliminate groups that may present a risk to In paragraph (a), CBP proposes district permits to move to a national- national security or a risk to the revenue tightening the language regarding an only permit system and to revise the collection of the United States. This applicant’s request to provide additional heading text to reflect this change. addition would allow CBP the flexibility information or arguments in support of Specifically, CBP proposes to revise
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paragraph (a) to reflect the general will exercise responsible supervision ‘‘permit.’’ Current regulations allow for purpose of a national permit. and control over the activities the presentation of information or Current paragraph (a) provides that conducted under the national permit. If arguments in support of the application each person granted a broker’s license the application is on behalf of a by personal appearance, or in writing, or will also receive a district permit for the partnership, association, or corporation, both. This allows for, but does not district of the port where the license the applicant is not required to be an require, the presentation of additional was delivered without paying the officer of the partnership, association, or information to address any deficiencies permit application fee. 19 CFR corporation, but must be a licensed in the original application. Currently in 111.19(a); 111.96(b). Under this broker employed by the partnership, practice, many applicants appeal proposal, with the elimination of the association, or corporation. withouth providing additional district permit, there will no longer be Current paragraph (c) of § 111.19 information or arguments resulting in a a need for a customs broker to have describes permit fees. (19 CFR denial of the appeal. In redesignated more than one permit. As a result, CBP 111.19(c)). As CBP is proposing to paragraph (e)(1), CBP proposes will no longer issue the first permit free eliminate district permits, CBP proposes tightening the language regarding the of charge. Instead, any applicant who in a concurrent notice of proposed request to clarify that the applicant must obtains a passing grade on the rulemaking, published elsewhere in this provide additional information or examination for an individual broker’s issue of the Federal Register, arguments in support of a denied license may apply for a national permit. conforming amendments to this section application. CBP proposes greater The national permit application may be by removing all references to fees for flexibility for both CBP and the submitted concurrently with or after the district permits. (See ‘‘Removal of applicant by allowing the information to submission of an application for a References to Customs Broker District be presented in person, by telephone or broker’s license. Permit Fee’’ RIN 1515–AE43.) by other acceptable means. Current paragraph (b) provides the Current paragraph (d) discusses Under the current regulations, procedures for submission of an responsible supervision and control paragraph (d) requires district permit application for an initial or additional requirements in the district permit holders to exercise responsible district permit. (19 CFR 111.19(b)). CBP context as well as procedures for supervision and control over activities proposes to revise this paragraph to obtaining a district permit waiver in conducted under the district permit. As describe the procedures for application situations that qualify for exception. (19 district permits will be eliminated in and issuance of a national permit, taking CFR 111.19(d)). Under this proposal, the this proposed rule, CBP is proposing to much of the content of current responsible supervision and control revise paragraph (f) to make clear that paragraph (f) describing the current requirements are provided in § 111.28. the individual broker who qualifies the application for a national permit. The Since CBP proposes to eliminate district national permit will exercise revisions include general procedures permits, the need to maintain a place of responsible supervision and control and specific application requirements. business at each port where an over the activities conducted under that An application for a national permit application for a district permit has national permit. must be in the form of a letter or CBP- been filed and to employ at least one approved electronic submission to the licensed broker in each district where a Subpart C, Duties and Responsibilities director of the designated Center and permit is held, where those of Customs Brokers must include the following: Broker requirements have not been waived, is Section 111.21 currently provides license number and date of issuance if no longer necessary; accordingly, CBP requirements for broker records. CBP available; the name and title of the proposes to remove paragraph (d). The proposes adding a new paragraph (b) national permit qualifier for elimination of these requirements and redesignating current paragraphs (b) partnership, association, or corporation resulting from the proposal to move to and (c) as (c) and (d), respectively. applicants; legal status and business an expanded national permit system, Proposed paragraph (b) provides that name information for partnership, would greatly lessen the burden on each broker must provide notification to association, or corporation applicants; affected customs brokers of conducting his designated Center of any known contact information of the office customs business throughout the U.S. breach of electronic or physical records designated as the office of record as customs territory. relating to the broker’s customs defined in § 111.1; contact information Current paragraph (e), describing CBP business. Notification to CBP must be for the licensed broker or action on a permit application and the provided within 72 hours of the knowledgeable employee responsible maintenance of a list of permitted discovery of the breach with a list of all for issues related to the transaction of brokers, is redesignated as paragraph compromised importer identification customs business; contact information (d). In redesignated paragraph (d), CBP numbers. This information will allow for each individual broker employed by proposes to remove reference to district for better targeting analysis which partnership, association, or corporation permits, to replace port director with contributes to CBP’s overall risk applicants; a list of all employees, with director of the designated Center, and management approach. required employee information; a plan update cross references within the In addition, CBP proposes to amend for responsible supervision, control and paragraph. In addition, the list of redesignated paragraph (d) to require compliance; location where records will permitted brokers will now be identification of a designated be maintained; contact information for maintained centrally by CBP as opposed recordkeeping contact who must be a the knowledgeable employee to by individual port directors. As knowledgeable employee who will serve responsible for customs and financial discussed above, current paragraph (f) is as the party responsible for broker-wide recordkeeping; and a receipt or other revised and the current content has been financial and recordkeeping evidence that all required fees have revised and included in new paragraph requirements. Each broker must been paid. The fees must be paid at the (b). maintain accurate and current contact designated Center or online with Current paragraph (g) is redesignated information for the designated submission of the permit application. In as paragraph (e) and CBP proposes recordkeeping contact within a CBP- addition, the proposed amendments set amending the paragraph heading to authorized electronic data interchange forth that the national permit applicant insert the word ‘‘national’’ before (EDI) system. If a CBP-authorized EDI
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system is not available, the proposed privately controlled sources, whether read ‘‘Responsible supervision and amendments allow for written via a subscription service or not. CBP control.’’ As part of its submission to the designated Center as does not condone the disclosure of recommendations to move to only a an alternative. Under a national permit information that was not obtained national permit framework, the COAC framework, the maintenance of current properly and has been released without recommended that the section on broker points of contact will be essential proper authority. ‘‘responsible supervision and control’’ to facilitate efficient processing of To account for changes in include ‘‘requirements that customs entries and entry summaries. organizational structure, CBP also brokerage firms employ an adequate Section 111.23 sets forth the location proposes replacing the list of specific number of licensed brokers to ensure in which a broker may retain its records covered government employees to responsible supervision and control relating to customs transactions. whom the broker records can be over their customs business.’’ To Currently, paragraph (a) provides that a disclosed with a general reference to address this concern, CBP proposes to customs broker may retain customs representatives of the Department of add a sentence to paragraph (a) to read records at any location within the U.S. Homeland Security. Finally, CBP as follows: ‘‘A sole proprietorship, customs territory. (19 CFR 111.23(a)). proposes to include court orders and partnership, association, or corporation CBP proposes to amend paragraph (a) to written authorization by the client in must employ a sufficient number of require that a customs broker must the exemptions to the confidentiality licensed brokers relative to the job maintain customs records, including requirement. complexity, similarity of subordinate any electronic records, within the U.S. Section 111.25 provides that a broker tasks, physical proximity of customs territory. In addition, CBP must maintain records in a way that subordinates, abilities and skills of proposes removing the last sentence of they are readily available for inspection, employees, and abilities and skills of paragraph (a) dealing with the copying, reproduction or other official the managers.’’ examination of records by CBP. CBP use by authorized CBP personnel. This As noted above, this document proposes to revise this sentence and document proposes to reorganize proposes to move the list of factors CBP place it in a new paragraph (b) to § 111.25 into three paragraphs: considers when determining whether a § 111.25 discussed below. Paragraph (a)—general; paragraph (b)— customs broker is exercising responsible Section 111.24 addresses the examination request; and paragraph supervision and control from the confidentiality of broker records, stating (c)—recordkeeping requirements. definition of ‘‘responsible supervision in part that the broker must not disclose Proposed paragraph (a) contains all but and control’’ in § 111.1 to paragraph (a) their contents or any information the last sentence of the current language of § 111.28 with some modifications and connected with the records to any found in § 111.25. In addition, CBP additions to reflect the changes of persons other than the clients to whom proposes replacing the list of specific moving to only a national permit they pertain, the client’s surety on a government representatives that may framework. The current list of factors particular entry, and to CBP or other inspect, copy, reproduce and use broker found in § 111.1 states that CBP will U.S. government officials, except on records with a general reference to consider all factors listed. CBP proposes subpoena by a court of competent representatives of the Department of to amend the introductory sentence of jurisdiction. CBP interprets the current Homeland Security. Proposed paragraph the list of factors to state that CBP may provision to provide that, with limited (b) contains language found in current consider the relevant factors from exceptions, including certain accredited § 111.23(a) which requires that among those listed on a case-by-case officers or agents of the United States requested records be made available at basis. and the surety involved in a particular the broker district that covers the CBP CBP proposes to retain the ten factors transaction, brokers may not disclose port to which the records relate. To currently found in § 111.1 with the client information to third persons account for the proposed elimination of following amendments: except when ordered to by a court. To broker districts, CBP proposes to amend (1) CBP proposes to amend the first overcome this confidentiality this language to require that the factor which currently reads, ‘‘The requirement, a broker needs to merely recordkeeping contact designated in training required of employees of the request, and receive, a written release § 111.21(d) make requested records brokers,’’ to, ‘‘The training provided to from the client authorizing disclosure of available at a location specified by broker employees.’’ These proposed that client’s information. CBP’s Department of Homeland Security changes are intended to place the longstanding position on this matter is (DHS) employees within thirty (30) obligation to provide training of that absent written client consent, a calendar days. This change would allow employees on the broker. broker may not share client information. CBP greater flexibility in where it could (2) In the second factor which CBP continues to believe that protection examine the records. currently provides for the issuance of of the client’s business information Section 111.27 provides for the audit written instructions and guidelines to remains a paramount concern. At the or inspection of broker records. Due to employees of the broker, CBP proposes same time, however, CBP recognizes the creation of DHS and the subsequent to remove the word ‘‘written’’ to include that the blanket prohibition of the transfer of the U.S. Customs Service electronic resources. current regulation is no longer a good fit from the Department of the Treasury to (3) CBP proposes to amend the fourth for the more modern and efficient DHS, CBP proposes to remove the factor covering reject rates by business practices brought about by the reference to officials of the Treasury considering the reject rate relative to the changing structure and environment of Department and update it with a overall volume of transactions the business community. As a result, reference to DHS officials to reflect conducted by the broker. Comparing the CBP proposes to amend § 111.24 by current practice. number of rejections with the broker’s providing an exception for information overall volume of entries gives better that properly is available from a source Responsible Supervision and Control context to evaluate the quality of open to the public. The intent of the Section 111.28 provides specific responsible supervision and control. additional language is to permit requirements relating to the exercise of (4) CBP proposes to change the word disclosure of information that properly responsible supervision and control. ‘‘maintenance’’ to ‘‘accessibility’’ in the is available from government sources or CBP is modifying the heading text to fifth factor which addresses CBP
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resources available to broker employees. broker’s officer(s) (not returning calls or information concerning the triennial Simply maintaining current editions of emails, etc.) also evidences failure of status report and procedures for the the relevant laws and regulations does responsible supervision and control. termination of a brokerage business. not indicate responsible supervision Paragraph (b) of § 111.28 describes a This document proposes changes to the and control, ensuring access to these broker’s requirement to report timing and method by which a broker documents, whether hard copy or information regarding its employees to must notify CBP of changes in his or her electronic, is more important in CBP. CBP proposes to restructure business address, organization name, determining responsible supervision paragraph (b) with (b)(1) covering and other updates required by § 111.30. and control. current employees, (b)(2) covering new Paragraph (a) covers change of address. (5) CBP proposes to amend the sixth employees, and (b)(3) covering CBP proposes to revise paragraph (a) to factor requiring the availability of ‘‘an terminated employees. With each of change the timing requirement from individually licensed broker’’ to ‘‘a these paragraphs CBP is proposing that immediate notification in writing to sufficient number of individually employee lists be submitted and notification within ten (10) calendar licensed brokers’’ for necessary updated through a CBP-authorized days through a CBP-authorized consultation with broker employees to electronic data interchange (EDI) electronic data interchange (EDI) better account for the proposed national system. If a CBP-authorized EDI system system. EDI is the method in which the permit operating environment. This is not available, the proposed trade transmits data electronically to change reflects the COAC amendments allow for written CBP systems. If a CBP-authorized EDI recommendation to establish a national submission to the designated Center as system is not available, the proposed permit framework with the requirement an alternative. This document also amendments allow for written that brokers employ an adequate proposes to provide uniformity for submission to the designated Center as number of licensed brokers to ensure reporting deadlines across the various an alternative. These changes are responsible supervision and control. categories of employees. The proposed intended to provide greater flexibility Under the current permit framework, a changes would allow a broker thirty (30) for both the broker and CBP. licensed broker (usually the district calendar days to notify CBP of changes Paragraph (b) of § 111.30 covers permit qualifier) must be present at the to any of the information required under changes in an organization. CBP physical office location in the district to this section regardless of whether the proposes to revise the introduction to offer guidance to employees. Under the employee is current, new or terminated. paragraph (b) to change the timing proposed national permit framework it CBP proposes also to simplify the requirement from immediate will be crucial that licensed brokers are employee information that must be notification in writing to the port readily available to employees, both in provided to account for the proposed director to notification within ten (10) person or virtually. elimination of districts and moving to a calendar days in writing to the director national permit-only system. The (6) CBP proposes to remove the of the designated Center. CBP then proposed elements include: Name, reference to ‘‘district’’ in factor nine proposes to redesignate current social security number, date and place addressing permit qualifier involvement paragraph (b)(2) as (b)(3) and adding a of birth, date of hire, and current home in brokerage operations to correspond new paragraph (b)(2) to require that a address. This proposed change with the proposed elimination of broker brokerage notify CBP of the date on represents a reduction in the districts. which a licensed employee ceases to be information reporting requirements. Current factors three, seven, eight and the national permit qualifier for Finally, CBP proposes removing the ten remain unchanged. purposes of § 111.19(a), and the name of requirement that the employee lists be In addition, CBP proposes to add five the licensed employee who will succeed provided in writing to allow for new factors that may be considered: as the permit qualifier. Currently, CBP (1) The timeliness of processing electronic submission. requires updated information when entries and payment of duty, tax, or Due to the reorganization of paragraph there is a change in a brokerage’s license other debt or obligation owing to the (b), CBP proposes to redesignate current qualifier. Under the proposed national Government for which the broker is paragraph (b)(3) as paragraph (c) and to permit system, the licensed member or responsible, or for which the broker has update the cross-references in new officer who qualifies the brokerage for received payment from a client; paragraph (c) to account for proposed the license may be different from the (2) communications between CBP and changes to paragraph (b). In addition, licensed employee who qualifies the the broker; CBP proposes to redesignate current (3) the broker’s responsiveness and paragraphs (c) and (d) as paragraphs (d) brokerage for the national permit. action to communications, direction, and (e). Redesignated paragraph (d) Paragraph (c) of § 111.30 covers name and notices from CBP; covers termination of a broker who is a changes. CBP proposes to amend (4) communications between the qualifying member of a partnership or a paragraph (c) to account for the broker and its officer(s); and, qualifying officer of an association or proposed elimination of district permits. (5) the broker’s responsiveness and corporation. Redesignated paragraph (e) Paragraph (d) of § 111.30 describes the action to communications and direction addresses changes in ownership of a requirements of the status report. CBP from its officer(s). broker. To account for the proposed proposes to update the paragraph The new factors are being proposed elimination of district permits, CBP header to triennial status report to better due to their importance in the modern proposes to update the submission reflect industry terminology. In brokerage environment and their requirement from each port through addition, CBP proposes changes to importance in evidencing the proper which a permit has been granted to the allow for electronic filing by allowing transaction of customs business. A director of the designated Center in both submission of payment or valid proof of broker filing entries late, paying the redesignated paragraphs. payment with the triennial status report. government late, or not returning client Section 111.30 provides the CBP also proposes to allow for filing communications are all evidence of notification requirements for when a through a CBP-authorized EDI system failure to exercise responsible broker changes his or her business when available. If a CBP-authorized EDI supervision and control. A broker not address, organization, name, or location system is not available, the proposed communicating well with CBP or the of business records, as well as amendments allow for written
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submission to the designated Center as giving of, any information or testimony chain security, fee transparency, and to an alternative. showing that the broker should have help ensure that unlicensed persons are CBP proposes to reorganize paragraph known that the information is false or not benefitting from the customs (d)(2) in order to add a new paragraph misleading. business conducted. This proposed (d)(2)(ii). Specifically, current In addition, CBP proposes to add a change is also consistent with a COAC paragraphs (d)(2)(i), (ii), and (iii) new sentence requiring a broker to recommendation that CBP require that become (d)(2)(i)(A), (B) and (C) and a document and report to CBP when the brokers obtain a power of attorney new paragraph (d)(2)(ii) is added to broker separates or terminates the directly from the importer of record. read: An individual broker not actively broker’s representation of a client as a The COAC recommended further that engaged in transacting business as a result of the broker determining that the nothing should prevent the broker from broker must provide CBP his or her client is intentionally attempting to communicating directly with the current mailing address, and state defraud or otherwise commit any importer of record. whether or not he or she still meets the criminal act against the U.S. Section 111.39 describes the applicable requirements of §§ 111.11 Government. Under the current CBP requirements for brokers giving advice and 111.19 and has not engaged in any regulations, when brokers discover that to clients. Currently, paragraph (a) conduct that could constitute grounds a client has not complied with the law requires a broker not to withhold from for suspension or revocation under or made errors or omissions in or provide false information to a client. § 111.53. This new paragraph is added documents, affidavits, or other paper CBP proposes moving part of the second to ensure that CBP maintains current required by law, the broker must advise sentence from paragraph (a) to a new contact information on inactive brokers. the client promptly of the paragraph (b) titled ‘‘Due diligence’’ Next, CBP proposes to reorganize noncompliance, error, or omission. See and, in that paragraph, adding language paragraph (d)(3) into paragraph (d)(3)(i) 19 CFR 111.39(b). The proposed new to specify that a broker must practice which requires information on the requirement puts an affirmative duty on due diligence in providing advice on the broker’s office of record as well as the the broker to document and report to proper payment of any duty, tax, or license and permit qualifier for the CBP when the broker terminates other debt or obligation owing to the partnership, association or corporation. representation of a client as a result of U.S. Government. The proposed changes create consistent determining that the client is attempting CBP next proposes redesignating use of terminology and reflect the to defraud or otherwise commit any current paragraphs (b) and (c) as a new importance of maintaining current criminal act against the U.S. paragraphs (c) and (d). Current contacts under the proposed national Government. This requirement covers paragraph (b) concerns what a broker permit framework. In addition, CBP situations where a broker advises the should do when the broker is aware that proposes a new paragraph (d)(3)(ii) to client of a noncompliance, error, or a client has not complied with the law require that a partnership, association or omission, the client directs the broker to or has made an error in or omission corporation broker also affirm in their continue such noncompliance, error, or from any document, affidavit, or other triennial report that they continue to omission, and in response the broker paper which the law requires the client meet all applicable requirements. The terminates its relationship with the to execute. That paragraph is proposed proposed new paragraph is consistent client. The proposed changes will allow to be updated by removing the word with the triennial reporting brokers to act as ‘‘force multipliers’’ in ‘‘paper’’ and replacing it with ‘‘record’’ requirements for individual brokers. combating fraud and other schemes so as to include any electronic records. In paragraph (d)(4) of § 111.30 against the government. Finally, CBP proposes adding a new regarding failure to file a triennial report Section 111.36 addresses broker sentence to the end of new paragraph (c) timely, CBP proposes to remove relations with unlicensed persons, to require that the broker must advise references to port director as the CBP including freight forwarders. The the client on the proper corrective officer who transmits a notice of regulation sets forth conditions under actions required and retain a record of suspension and update them with which a broker may compensate a the broker’s communication with the references to CBP to provide the agency freight forwarder for referring brokerage client in accordance with 19 CFR with flexibility as to where CBP broker business. One of the conditions is that 111.23. The proposed new language management is conducted—at the port, the freight forwarder cannot, in a adds an affirmative duty to document at a Center of Excellence and Expertise, compensation agreement, forbid or the broker’s communication with the or at Headquarters. In addition, when a prevent direct communication between client. This clarifies the brokers’ role as broker wishes to have his or license the importer or other parties in interest ‘‘force multipliers’’ by contributing to reinstated CBP proposes to allow a and the broker. CBP proposes adding the informed compliance of their broker to submit proof of payment of the drawback claimants to the persons that clients. There are no proposed changes required fee within 60 days of the notice a freight forwarder cannot forbid or to redesignated paragraph (d). of suspension at the time of the filing of prevent direct communication with by a Section 111.45 provides for the required triennial report to allow for broker in a compensation agreement. In revocation of a broker’s license and/or online payment separate from addition, CBP proposes a new permit by operation of law, the submission of the report. Finally, CBP requirement that a broker must not rely corresponding notification requirements proposes to replace references to on a customs power of attorney granted for CBP, and the continuing obligations Customs Bulletin with Federal Register by a freight forwarder, but rather that of the broker at issue. Paragraph (a) as the means of publishing notice of the broker must obtain a customs power describes revocation of a license. CBP broker license revocations to reflect of attorney directly from the importer of proposes to revise paragraph (a) to add current practice. Documents published record or drawback claimant. This that the national permit for a in the Federal Register are reproduced proposed amendment is intended to partnership, association, or corporation in the Customs Bulletin. clarify that the freight forwarder cannot will also be revoked if the partnership, Section 111.32 governs false serve as a barrier to communications association, or corporation fails to information. CBP proposes to modify between the broker and the importer of employ a licensed customs broker who the section to make clear that a broker record or drawback claimant and to qualifies the national permit for any must not give, or solicit or procure the address issues of identity theft, supply continuous period of 180 days. In
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addition, CBP proposes to add a new addition, CBP proposes to change the client offices to determine the necessary sentence to the end of paragraph (a) to word ‘‘will’’ to ‘‘may’’ to allow for witnesses and representatives. provide that if the license of a agency discretion in pursing civil or Section 111.74 describes the decision partnership, association, or corporation administrative investigation of and notice of suspension, revocation or is revoked by operation of law, CBP will disciplinary complaints against a a monetary penalty. CBP proposes to notify the organization of the broker. remove the reference to publication in revocation. Section 111.56 provides for the the Customs Bulletin because Paragraph (b) of § 111.45 describes review of the investigation report. This documents published in the Federal revocation of a permit. To account for provision currently references the report Register are reproduced in the Customs the proposed elimination of district of investigation which is a term specific Bulletin. permits, CBP proposes to amend the to the process involving investigation by Section 111.76 provides for heading to read ‘‘Annual broker permit the special agent in charge. Because CBP procedures by which a broker may fee,’’ to remove the current language no longer refers all complaints or apply to CBP to reopen a case if an referring to requirements specific to charges to the special agent in charge, appeal is not filed. Paragraph (a) district permits, and to replace it with this document proposes to replace describes the grounds for reopening the language providing that: If a broker fails ‘‘report of investigation’’ with ‘‘report case. Currently paragraph (a) provides to pay the annual permit user fee on the investigation of complaints, or if that a broker may make written pursuant to § 111.96(c), the permit is there is no report on the investigation of application in duplicate to reopen the revoked by operation of law. In complaints, other documentary case to have the order set aside or addition, the director of the designated evidence,’’ to better reflect current modified. CBP proposes to remove the Center will notify the broker in writing practice. requirement to file in writing and to file in duplicate, and to allow for electronic of the failure to pay and revocation of Section 111.62 describes the content communication and to better reflect the the permit. requirements for a notice of charges. Current paragraph (c) of § 111.45 current electronic business CBP proposes to amend paragraph (d) to describes the notification of revocation environment. remove the 10-day notice of the time procedures. Since CBP proposes to Section 111.77 describes how CBP and place of a hearing. CBP will address notice in paragraphs (a) and (b), will provide notice of a vacated or continue to provide notice of the time it is proposed to rename paragraph (c) modified order. CBP proposes to remove and place of a hearing as provided for ‘‘Publication’’ and revise the provision the reference to publication in the in paragraph 111.64(a). In addition, to provide that notice of any revocation Customs Bulletin because documents paragraph (e) states that the broker may under this section will be published in published in the Federal Register are file verified answers to any charges the Federal Register to reflect current reproduced in the Customs Bulletin. prior to the hearing. Currently, the practice. Section 111.81 covers settlement and Paragraph (d) of § 111.45 provides broker is required to file his or her compromise. CBP proposes to remove that even if a broker’s license or permit verified answers in duplicate. CBP the language regarding approval of the is revoked by law, other sanctions may proposes to remove the requirement to Secretary of Homeland Security, or his still be applicable. CBP proposes to file in duplicate to better reflect the designee, as the authority to settle and update the second cross-reference to current electronic business compromise has been delegated from reflect other proposed changes to this environment. the Secretary of Homeland Security to section. Section 111.63 covers service of the Commissioner of U.S. Customs and notice and statement of charges. Border Protection and subsequently to Subpart D, Cancellation, Suspension, or Paragraph (a) covers individual brokers. the Executive Assistant Commissioner, Revocation of License or Permit, and CBP proposes to amend paragraph (a)(2) as discussed in detail below, making Monetary Penalty in Lieu of Suspension by removing the requirement that the such approval no longer necessary. or Revocation return card be signed solely by the Section 111.53 provides the grounds addressee. In practice, this is unlikely to Subpart E, Monetary Penalty and for suspension or revocation of a license happen and amending the paragraph to Payment of Fees or permit. CBP proposes to redesignate allow for certified mail, return receipt Section 111.91 provides the grounds current paragraph (g) as paragraph (h) in requested, addressed to the broker’s for imposition of a monetary penalty order to add a new paragraph (g). office of record brings the requirement and sets forth the maximum penalty. Proposed paragraph (g) will cover in to line with paragraph (c) on certified CBP proposes to update the cross convictions of committing or conspiring mail and evidence of service. In reference to § 111.53 to reflect the to commit an act of terrorism as addition, CBP proposes to amend additional grounds for suspension or described in section 2332b of title 18, paragraph (c) by removing the word revocation of a license or permit United States Code. (See 19 U.S.C. ‘‘duly’’ and by adding reference to the proposed in this document. 1641(d)(1)(G)). broker’s office of record. This change Section 111.96 describes fees required Section 111.55 covers the will permit CBP to rely upon mailing to throughout part 111. As discussed investigation of complaints. This section the addresses provided to CBP by the above, CBP has conducted a fee study to currently provides that every broker. review the license application fee. The disciplinary complaint or charge against Section 111.67 provides for fee study documenting the proposed fee a broker will be forwarded for information relating to the hearing. changes, entitled ‘‘Customs Broker investigation to the special agent in Current paragraph (e) provides that the License Application Fee Study,’’ has charge. CBP does not refer all Assistant Commissioner will designate been included in the docket of this complaints or charges to a special agent the government representative. CBP rulemaking (Docket No. USCBP–2020– in charge. To better reflect the current proposes to remove paragraph (e) to 0009). Paragraph (a) describes the practice, CBP proposes to replace better reflect current practice as license application fee, the examination references to the special agent in charge attorneys from the Office of Chief fee and the fingerprint fee. The current with references to the appropriate Counsel represent the government at all license application fee is $200. Based on investigative authority within DHS. In broker hearings and work with the the findings of the fee study, CBP
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proposes to increase the license 111.14, 111.15, 111.16, 111.17, 111.19, describes the customs broker permit application fee and charge different fees 111.28, 111.30, 111.51, 111.52, 111.53, user fee. In a concurrent notice of for individual license applications and 111.55, 111.56, 111.57, 111.61, 111.66, proposed rulemaking, published partnership, association or corporation 111.69, 111.70, 111.71, 111.72, 111.74, elsewhere in this issue of the Federal license applications. Specifically, CBP 111.75, 111.76, 111.77, 111.79, and Register, CBP proposes conforming proposes an increase in the license 111.81. (19 CFR 111.13, 111.14, 111.15, amendments to § 24.22(h) and (i)(9) to application fee from $200 to $300 for an 111.16, 111.17, 111.19, 111.28, 111.30, eliminate all references to broker district individual license application and from 111.51, 111.52, 111.53, 111.55, 111.56, permit fees (See ‘‘Removal of References $200 to $500 for a partnership, 111.57, 111.61, 111.66, 111.69, 111.70, to Customs Broker District Permit Fee’’ association, or corporation license 111.71, 111.72, 111.74, 111.75, 111.76, RIN 1515–AE43). application. 111.77, 111.79, and 111.81.) The Part 111 Paragraph (b) of § 111.96 describes the proposed changes reflect the delegation permit application fee. CBP proposes to orders in place to allow for greater The authority for part 111 currently revise the paragraph to reflect the flexibility in administering broker- provides a specific authority citation for proposed elimination of district permits. related decisions within CBP and DHS. § 111.3. When the text of § 111.3 was Paragraph (c) of § 111.96 describes the Nomenclature Updates transferred to § 111.2 in a final rule permit user fee. To reflect the proposed published in the Federal Register (65 elimination of district permits, CBP is This document also proposes to FR 13880) on March 15, 2000, CBP proposing in a concurrent notice of update the nomenclature throughout inadvertently did not revise the specific proposed rulemaking, published part 111. As noted above, to reflect the authority citation for either section. CBP elsewhere in this issue of the Federal establishment of the Centers, CBP proposes to correct this by revising the Register, conforming amendments to proposes replacing references in part specific authority citation for § 111.2 by eliminate all references to customs 111 to the ports and port directors with adding that this section is also issued broker district permit fees, including references to the Centers and directors under 19 U.S.C. 1484 and 4798, and by proposed amendments to paragraph (c) of the designated Centers. Also removing the specific authority citation of § 111.96 (See ‘‘Removal of References previously discussed, CBP proposes to for § 111.3. to Customs Broker District Permit Fee’’ update all instances of Assistant Commissioner to Executive Assistant Executive Orders 13563, 12866, and RIN 1515–AE43). 13771 Paragraph (d) of § 111.96 describes the Commissioner and all instances of status report fee. CBP proposes to Office of International Trade to Office of Executive Orders 13563 and 12866 amend the paragraph header to read Trade. In addition, CBP proposes a direct agencies to assess the costs and triennial status report fee which grammatical change to paragraph (a)(1) benefits of available regulatory matches industry terminology. In of § 111.42, by amending the word alternatives and, if regulation is addition, CBP proposes to explain that ‘‘Customs’’ to be in the lower case. (19 necessary, to select regulatory the triennial status report must be filed CFR 111.42). Finally, due to the approaches that maximize net benefits through the CBP-authorized EDI system, renaming of U.S. Customs to Customs (including potential economic, if available. If a CBP-authorized EDI and Border Protection (CBP) this environmental, public health and safety system is not available, the triennial document proposes to replace effects, distributive impacts, and status report must be filed with the references to Customs with CBP in equity). Executive Order 13563 director of the designated Center. §§ 111.2, 111.12, 111.21, 111.25, 111.28, emphasizes the importance of 111.30, 111.53, 111.91, 111.92, 111.94, quantifying both costs and benefits, of Delegation of Authority and 111.96. (19 CFR 111.2, 111.12, reducing costs, of harmonizing rules, The Secretary of Homeland Security 111.21, 111.25, 111.28, 111.30, 111.53, and of promoting flexibility. Executive and CBP officials are empowered to 111.91, 111.92, 111.94, 111.96). Order 13771 (‘‘Reducing Regulation and delegate authority. Changes made in the Other Conforming Amendments Controlling Regulatory Costs’’) directs proposed regulations reflect areas where agencies to reduce regulation and the Secretary of Homeland Security and Part 24 control regulatory costs and provides CBP officials have, or might, delegate Part 24 of title 19 of the CFR (19 CFR that ‘‘for every one new regulation certain decision-making authority. DHS part 24) sets forth the regulations issued, at least two prior regulations be Delegation Number 7108 (May 5, 2015) regarding customs financial and identified for elimination, and that the delegates the authority regarding the accounting procedures. Section 24.1 cost of planned regulations be prudently denial, revocation, suspension, or provides for the collection of Customs managed and controlled through a cancellation of customs brokers’ duties, taxes, fees, interest, and other budgeting process.’’ licenses and permits as well as charges. To reflect the proposed This rule is not a ‘‘significant settlements and penalties from the elimination of the district permit, this regulatory action,’’ under section 3(f) of Secretary of Homeland Security to the document proposes conforming Executive Order 12866. Accordingly, Commissioner of Customs and Border amendments to § 24.1(a)(3)(i). Section OMB has not reviewed this regulation. Protection. Additional delegations of 24.22 describes the customs This proposed rule is expected to be an authority that have been made within Consolidated Omnibus Budget E.O. 13771 deregulatory action. CBP has CBP are reflected in the proposed Reconciliation Act (COBRA) user fees prepared the following analysis to help regulatory text. CBP proposes changes to and limitations for certain services. inform stakeholders of the impacts of reflect these delegations in §§ 111.13, Specifically, paragraph (h) of § 24.22 this proposed rule.
TABLE 1—SUMMARY OF CHANGES AS A RESULT OF THE RULE
Provision Section Change Cost/benefit
111.1 ...... Subpart A.. Update/eliminate definitions; change primary Neutral—changes reflect current practice and point of contact to designated Center. statutory changes.
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TABLE 1—SUMMARY OF CHANGES AS A RESULT OF THE RULE—Continued
Provision Section Change Cost/benefit
111.2 ...... Subpart A .. Eliminate district permits and require national $40,000 annualized net benefit. See section 3.14. permits. 111.3 ...... Subpart A .. Requires customs business to be conducted Neutral—clarifies current regulations and reflects within the customs territory of the US; brokers current practice. must maintain a point of contact. 111.11 ...... Subpart A .. Adds that Center director may reject an incom- Benefit—increases effeciency. plete application. 111.12(a) ...... Subpart B .. Updates the place of submission for applications; Benefit—increases efficiency and reduces the removes requirement that applications are sub- burden on applicants. mitted under oath. 111.12(b) ...... Subpart B .. Remove requirement to post notice of applica- Benefit—reduces the burden on CBP. tions. 111.13 ...... Subpart B .. Revisions to reflect new national permit system; Neutral—the costs of the new fee system are ad- written and electronic notification of examina- dressed in section 3.14. tion results. 111.14 ...... Subpart B .. Clarifies that CBP may use information from the Neutral—reflects current practice. interview in background investigation. 111.16 ...... Subpart B .. Expansion of the grounds to justify the denial of Benefit—increases professionalism. a license. 111.17 ...... Subpart B .. Adds new method to communicate further infor- Benefit—greater flexibility. mation to CBP for appeal of an application de- nial. 111.18 ...... Subpart B .. Requires applicants to provide new or corrected Benefit—fewer application appeals will be re- information when re-applying. jected for lack of new information. Cost—appli- cants will need to expend time in collecting and submitting information. 111.19 ...... Subpart B .. Replacing district permits with national permits .... $40,000 annualized net benefit. See section 3.14. 111.19(b) ...... Subpart B .. Revision of the procedures to apply for a permit Neutral—the process is very similar, but with a to account for the switch from district to na- national permit. tional permits. 111.19(c) ...... Subpart B .. Revision of permit fees ...... See ‘‘Removal of References to Customs Broker District Permit Fee’’ RIN 1515–AE43. 111.19(d) ...... Subpart B .. Elimination of the requirement to maintain a Benefit—allows for greater flexibility and effi- place of business in each port where a district ciency for brokers and CBP. permit is held. 111.19(e) ...... Subpart B .. Language updates to reflect the change to na- See above. tional permits and designated Centers. 111.19(g) ...... Subpart B .. Clarifies applicants must provide additional infor- Benefit—increases professionalism and de- mation or arguments in support of a denied ap- creases time spent by CBP acquiring informa- plication; allows information to be provided tion. Cost—requires applicants to expend time through various communication methods. in providing additional information. 111.21 ...... Subpart C .. Requires brokers to notify CBP of any electronic Benefit—enhances CBP’s risk management ap- records breach and to provide CBP a des- proach. See section 3.3/section 3.8. ignated point of contact for recordkeeping in addition to the current contact provided for fi- nancial queries. 111.23 ...... Subpart C .. Requires that electronic records be stored within Benefit—increases security. See section 3.3. the customs territory of the U.S. 111.24 ...... Subpart C .. Clarifies disclosure rules ...... Benefit reduces confusion. See section 3.9. 111.25 ...... Subpart C .. Revises guidelines for CBP inspection of broker Neutral—see section 3.4. records with the elimination of broker districts. 111.27 ...... Subpart C .. Update of language to reflect the transition of re- Neutral—reflects the current environment. sponsibilities from Treasury to DHS following the creation of DHS. 111.28 ...... Subpart C .. Clarifying requirements in relation to responsible Benefit—increases flexibility. See section 3.10. supervision and control and allows for elec- tronic submission of employee lists. 111.30 ...... Subpart C .. Modification to the timing requirement for when a Benefit—increases professionalism, keeps CBP broker notifies CBP of information changes, in- better informed, and allows greater efficiency cluding a new requirement for inactive brokers for broker’s changing status. Cost—inactive to provide CBP with up-to-date contact infor- brokers will expend time to submit their infor- mation. mation. 111.32 ...... Subpart C .. Places an affirmative burden on the broker to re- Cost—$2,907 annually port to CBP when a broker terminates a client Benefit—improves CBP’s awareness of potential relationship as a result of determining that the illegal activity. See section 3.5. client is attempting to defraud the U.S. govern- ment. 111.36 ...... Subpart C .. Modifies the requirements for brokers when deal- Neutral—time spent does not change. See sec- ing with freight forwarders. tion 3.6.
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TABLE 1—SUMMARY OF CHANGES AS A RESULT OF THE RULE—Continued
Provision Section Change Cost/benefit
111.39 ...... Subpart C .. Guidelines for how brokers may behave with cli- Neutral—reflects current practice See section ents; requires brokers to advise clients of cor- 3.11. rective actions and maintain communication records. 111.45 ...... Subpart C .. Updates to reflect the change to national permits Neutral—specifies national permit. 111.53 ...... Subpart D .. Adds conviction of committing or conspiring to Benefit—increases professionalism. commit an act of terrorism to the grounds for suspension or revocation of a license or permit. 111.55 ...... Subpart D .. Updates to reflect the current practice of not re- Neutral—reflects current practice. ferring all complaints to a special agent. 111.56 ...... Subpart D .. Updates to reflect current practice in the inves- Neutral—reflects current practice. tigation of a complaint. 111.62 ...... Subpart D.. Updates to requirements for notification of Neutral—reflects improved technology. charges to reflect new electronic options. 111.63 ...... Subpart D .. Removes the requirement that a return card be Benefit—increases efficiency. signed solely by the addressee; permits CBP to rely upon the mailing address provided by the broker. 111.67 ...... Subpart D .. Updates to reflect the current practice of Office of Neutral—reflects current practice. Chief Counsel representing the government. 111.74 ...... Subpart D .. Eliminates the requirement to publish suspen- Benefit—reduces the burden on CBP. sion, revocation, or penalty notices in the Cus- toms Bulletin. 111.76 ...... Subpart D .. Allows for electronic communication when filing Benefit—increases efficiency. an appeal. 111.77 ...... Subpart D .. Eliminates the requirement that CBP provide no- Benefit—reduces the burden on CBP. tice of a vacated or modified order in the Cus- toms Bulletin. 111.81 ...... Subpart D .. Updates to the signing requirement for a settle- Neutral—reflects delegation of existing authority. ment to reflect delegation of authorities. 111.96 ...... Subpart E .. Updates to the user application fee ...... See above.
1. Need and Purpose of Rule guidance in these matters, at little or no percent. The net annualized cost savings cost to CBP or customs brokers. ranges from approximately $40,000 to The primary purpose of this rule is to Monetized costs for customs brokers $39,700 using a 3 and 7 percent formalize recent changes in the would result from no longer receiving a discount rate, respectively. permiting of licensed customs brokers. first district permit concurrent with a Customs brokers are private To take advantage of new technologies broker’s license, and the requirement for individuals and/or business entities and reflect a changing trade brokers to notify CBP when separating (partnerships, associations or environment, CBP is switching from a from a client relationship due to corporations) that are licensed and district permit system to a national attempted fraud or criminal acts. The regulated by CBP to assist importers in permit system. Licensed brokers who five-year total monetized cost of the rule conducting customs business. Customs have traditionally been required to ranges from $44,000 discounted at 3 brokers have an enormous responsibility apply for and operate under a permit for percent to $39,200 discounted at 7 to their clients and to CBP that requires each district in which they do business percent. The annualized cost is them to properly prepare importation may now work under a single, national approximately $9,600 using both 3 and documentation, file these documents permit. 7 percent. Customs brokers who do not timely and accurately, classify and The rule also proposes changes in the concurrently receive their first district value goods properly, pay duties, taxes, license application fees charged by CBP, permit with their brokers license would and fees, safeguard their clients’ which CBP proposes to increase to cover save the cost of district permit fees. information, and protect their licenses a greater portion of the costs CBP has Additionally, CBP and customs brokers from misuse. always faced. Because these costs are would save time for applying for and In an effort to perform these duties being moved from CBP to brokers, they reviewing district permit applications and responsibilities efficiently, customs are considered a transfer. Finally, the and waivers. The five-year total brokers have embraced recent rule contains several provisions meant monetized cost savings from this rule technological advances such as making to professionalize the broker industry, ranges from $227,100 discounted at 3 the programming and business process formalize current practices into percent to $202,100 discounted at 7 changes necessary to use the Automated regulations, and adapt regulations to percent. The annualized cost savings Commercial Environment (ACE). ACE reflect technological advancements. The ranges from $49,600 using a 3 percent provides a single, centralized access majority of brokers already follow many discount rate to $39,700 using a 7 point to connect CBP and the trade of these practices, like storing records percent discount rate. The switch to a community. Through ACE, manual electronically within the customs national permit and the other changes to processes are streamlined and territory of the United States and this rule lead to an overall net automated, and the international trade reporting clients they know have monetized total five-year cost savings community is able to more easily and attempted to commit fraud. This rule ranging from $183,100 discounted at 3 efficiently comply with U.S. laws and provides better and more concrete percent to $163,000 discounted at 7 regulations. CBP itself has also
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endeavored to embrace these • Must pass the customs broker broker has the option of receiving his/ technological advances, to not only license examination within 3 years of her first district permit concurrently more efficiently perform its duties of submitting the license application; with the receipt of the customs broker facilitating legitimate trade while • Must be a U.S. citizen and attain the license, in which case the $100 permit making sure that proper revenue is age of 21 prior to submitting the license fee is waived. Even if this option is collected, but also to provide more application; used, the customs broker is still efficient tools for customs brokers to file • Must possess good moral character; responsible for the annual user fee of and monitor the information and $147.89.6 However, this option is not submissions necessary for a timely and • Must pay the requisite fee. exercised often for individual customs accurate entry filing. One of the central Business entity customs broker broker license holders. Currently, developments that will allow CBP to license eligibility: according to a CBP Broker Management Branch estimate, approximately two (2) perform its operational trade functions Partnerships more effectively is the transition to the percent of individual customs broker • Centers of Excellence and Expertise Must have at least one member of license holders get their first district (Centers). Beginning in 2012, CBP the partnership who is a licensed permit concurrently issued with the developed a test to incrementally customs broker; and receipt of their broker’s license. The • transition the operational trade Must pay the requisite fee. majority of individuals do not take functions that traditionally reside with Associations and Corporations advantage of this benefit. Most licensed brokers file exclusively under a port directors to the Centers. The • Centers were established in strategic Must have at least one officer who corporate permit and do not need to get is a licensed customs broker; an individual permit, saving them the locations around the country to focus • CBP’s trade expertise on industry- Must be empowered under its annual user fee. On the other hand, specific issues and provide tailored articles of association or articles of according to CBP’s Broker Management support for importers. CBP established incorporation to transact customs Branch, 100 percent of current corporate business as a broker; and license holders get their first district these Centers to facilitate trade, reduce • transaction costs, increase compliance Must pay the requisite fee. permit concurrently issued with their with applicable import laws, and Currently, CBP requires all customs broker license. achieve uniformity of treatment at the prospective brokers, both individuals A broker who intends to conduct ports of entry for the identified and business entities, to submit CBP customs business at a port within a industries. On December 20, 2016, CBP Form 3124: Application for Customs district for which the broker does not published an interim final rule in the Broker License to the port of entry at have a permit must submit an Federal Register (81 FR 92978) ending which they intend to conduct customs application for a district permit in a the Centers test and establishing the business. CBP Form 3124 is used to letter to the director of the port at which Centers as a permanent organizational verify that prospective customs brokers the broker intends to conduct customs component of CBP. The current broker satisfy the requirements for receiving a business. Each application for a district regulations are based on the district customs broker’s license. The customs permit must set forth or attach the system in which entry, entry summary, territory of the United States is divided following: • The applicant’s broker license and post-summary activity are all into seven customs regions. Within each number and date of issuance; handled by the ports within a permit region, the customs territory of the United States is further divided into • The address where the applicant’s district. With the transfer of trade office will be located within the district functions to the Centers, a significant districts; there are currently 2 34 and the email address and telephone portion of these activities, including approximately 40 customs districts. Currently, a district permit is required number of that office; entry summary and post-summary, are • for each district in which a customs A copy of a document which now handled directly by the Centers. reserves the applicant’s business name The Center structure is based on subject broker intends to conduct customs business. Each district permit requires a with the State or local government; matter expertise, as opposed to • The name, broker license number, geographic location, placing them one-time permit fee of $100 and an annual user fee of $147.89.5 A customs office address(es), telephone number, outside of the district system as it and email address of the individual currently exists. With this proposed 2 Source: Discussions with the CBP Broker broker who will exercise responsible rule, CBP proposes to modernize the Management Branch on 3/15/2017. supervision and control over the regulations governing customs brokers 3 Customs districts are not evenly divided customs business transacted in the to better reflect the current work amongst the seven customs regions (one region may district; environment and streamline the have more or fewer customs districts than another). • A list of all other districts for which customs broker permitting process. 4 In addition to the 40 geographically defined the applicant has a permit to transact customs districts, there are three special districts customs business; 2. Background that are responsible for specific types of imported merchandise. According to the Broker Management • The place where the applicant’s It is the responsibility of CBP to Branch, these special districts include districts 60, brokerage records will be retained and ensure that only qualified individuals 70 and 80. District 60 refers to entries made by the name of the applicant’s designated vessels under their own power. District 70 refers to and business entities can perform recordkeeping contact; and shipments with a value under $800. District 80 • customs business on behalf of others. refers to mail shipments. These three special A list of all persons who the CBP accomplishes this task by only districts do not require the use of a licensed broker applicant knows will be employed in issuing licenses to individuals and with a specific district permit and as a result are the district with all the required not affected by this provision. employee information. business entities that meet the below 5 19 CFR 24.22(h). The user fee is subject to 1 The applicant for the district permit criteria: adjustment based on inflation. Proposed Individual customs broker license amendments to the regulatory provisions regarding must have a place of business at the port requirements: the district permit user fee are found in the companion Department of the Treasury NPRM 6 User fees are addressed in ‘‘Removal of entitled. See ‘‘Removal of References to Customs References to Customs Broker District Permit Fee’’ 1 See 19 CFR part 111. Broker District Permit Fee’’ RIN 1515–AE43. RIN 1515–AE43.
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where the application is filed, or must designated Center, and include the adoption of a final rule, CBP will have made firm arrangements following: provide guidance to those brokers with satisfactory to the port director to • The applicant’s broker license only a district permit(s) explaining the establish a place of business, and must number and date of issuance; process to transition their district exercise responsible supervision and • If the applicant is a partnership, permit(s) to a national permit. control of that place of business once association, or corporation, the name Currently, customs brokers who do not the permit is granted. Instead of a and title of the national permit qualifier; have a national permit must maintain an customs broker getting multiple district • The address, telephone number, office and have a separate district permits, he or she could also apply for and email address of the office permit for each district in which the a national permit for the purpose of designated by the applicant as the broker wants to conduct customs transacting customs business in all broker’s office of record; that office will business. For some brokers, this means districts within the customs territory of be noted in the national permit when having many small offices across the the United States as defined in 19 CFR issued; country. This rule removes the • part 101. The national permit A copy of a document which requirement to have a separate local application may be submitted reserves the applicant’s business name office in each district in which customs concurrently with or after the with the State or local government; brokers do business. Since, under a • submission of an application for a The name, telephone number, and national permitting structure, customs broker’s license. email address of the licensed broker or brokers are no longer required to have knowledgeable employee to be available CBP first introduced national permits a representative in each district in to CBP to respond to issues related to in 2000 to allow a broker to conduct a which they conduct customs business, the transaction of customs business; limited set of activities in districts for brokers could organize themselves to • The name, broker license number (if which the broker does not have a better suit their specific business needs. designated), office address, telephone district permit. When it was first Furthermore, brokers that currently number, and email address of each introduced, a national permit allowed only hold active district permits will be individual broker who will exercise licensed brokers to place an employee granted a national permit at no cost. responsible supervision and control in the facility of a client for whom the Upon adoption of a final rule, CBP will over the customs business of the broker is conducting customs business; provide guidance to those brokers with applicant under the national permit; only a district permit(s) explaining the file electronic drawback claims; • A supervision plan describing how process to transition their district participate in remote location filing; and the broker will exercise responsible permit(s) to a national permit. make representations after the entry supervision and control, including According to CBP’s Broker Management summary has been accepted. In the compliance with § 111.28 (see 19 CFR Branch, the customs brokers that will be years since the national permit was 111.28); transitioned to national permits introduced, and with the full • The place where the applicant’s represent 6 percent of active brokers. implementation of ACE, almost every brokerage records relating to customs The remainder either have no permit at activity performed under a district business conducted under the national all or already have a national permit. permit was added to the national permit will be retained and the name of permit. Only those activities, such as the applicant’s designated Projection of Customs Broker Licenses the filing of paper entries and certain recordkeeping contact (see 19 CFR and Permits payment submissions, that require 111.22 and 111.23); CBP’s Broker Management Branch physical presence at a port currently • The name, telephone number, and provided historical data from 2011– require a district permit instead of a email address of the knowledgeable 2016, the full range of quality data national permit. With the national employee responsible for broker-wide available, The 2,093 permitted brokers permit system, these restrictions will no records maintenance and financial longer apply. This proposed rule will hold a combined total of 3,067 active recordkeeping requirements; 7 allow a national permit holder to • A list of all employees of the broker, district permits. This is an average of conduct any type of customs business in together with the specific employee approximately 1.5 district permits per all districts within the customs territory information prescribed in § 111.28(b) for district permit holder. Using this figure, of the United States. This represents a each of those employees (19 CFR we can project how many district full expansion of the activities allowed 111.28(b)); and permits would have been held by under a national permit. CBP has • A receipt or other evidence showing licensed brokers over the period of the determined that in the increasingly that the fees specified in § 111.96(b) and analysis, from 2017 through 2021 under automated environment brokers may (c) have been paid (19 CFR 111.96(b) the baseline condition (i.e., if this rule need to make contact with CBP and (c)). is not promulgated). This is shown in personnel across the customs territory In an effort to modernize the Exhibit 2 below. and there is no longer a reason to permitting process for customs brokers, restrict national permit holders. this proposed rule would eliminate the 7 1,258 brokers who hold at least 1 district permit district permitting process and concurrently hold a national permit. Additionally, Currently, an application for a 13 licensed brokers hold a national permit without national permit must be in the form of automatically grant each current district holding any district permits and are unaffected by a letter submitted to the director of the permit holder a national permit. Upon this rule.
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EXHIBIT 2—PROJECTION OF NEW INDIVIDUAL AND CORPORATE PERMITS
New New New individual New corporate individual permits corporate permits Year licenses (13% of new licenses (100% of new issued individual issued corporate (10% annual licenses (9% annual licenses growth rate) × 1.5) growth rate) × 1.5)
2017 ...... 762 149 97 146 2018 ...... 839 164 106 159 2019 ...... 922 180 115 173 2020 ...... 1,015 198 126 188 2021 ...... 1,116 218 137 205
Total ...... 4,654 908 581 871 Note: Values may not sum to total due to rounding.
3. Proposed Rule Amendments: Costs, has determined that these fees are no covered by fees is covered by funds Benefits, and Transfer Payments longer sufficient to cover its costs.8 appropriated by CBP. The proposed The study found that fees of $463 and increased fees paid by brokers would In this proposed rule, CBP is $815 are necessary to recover the costs replace appropriated funds. CBP proposing regulatory changes that associated with reviewing the customs recognizes that the proposed fee include: Increasing fees for the customs broker license application for changes may have a distributional broker license application; eliminating individuals and business entities, impact on prospective customs brokers. district permits so each customs broker respectively. These fees, however, are In order to inform stakeholders of all only needs one national permit to significantly higher than the current fees potential effects of the proposed rule, conduct customs business; mandating and, if implemented, these fee rates CBP has analyzed the distributional that each broker must provide could become an economic disincentive effects of the proposed rule in section notification to CBP of any known breach to those pursuing a career as a customs ‘‘3.15 Distributional Impacts.’’ of records within 72 hours of discovery; broker. Therefore, in an effort to requiring that upon request by CBP to minimize the financial burden to 3.2 Permit Application Fee examine records, brokers make all prospective customs brokers while also Currently brokers are required to pay records available to CBP within thirty recovering a larger portion of the costs a $100 permit application fee in (30) calendar days at the location associated with reviewing and vetting connection with each permit specified by CBP; requiring that customs the license application, CBP has application by either an individual or brokers obtain a customs power of decided to limit the increase of the corporation. The applicant has the attorney directly from the importer of license application fee to $300 for option of concurrently receiving its first record or drawback claimant, not a individuals and $500 for business district permit with its customs broker’s freight forwarder, to transact customs entities; the remainder of the costs license and therefore forgoing the $100 business for that importer or drawback would continue to be covered by permit application fee for its first claimant; and requiring that a broker appropriated funds. Although these fee district permit. However, some brokers document and report to CBP when the increases represent an increased do not request an initial district permit broker separates from or cancels a client expense for prospective customs at the time they get their license. When as a result of the broker’s determining brokers, these fee increases do not this is the case and the broker later that the client is intentionally increase overall costs to society as these applies for a district permit, or if brokers attempting to use the services of the costs are already being paid by CBP’s make a request to obtain a permit for broker to defraud or otherwise commit appropriated funds. additional districts, then they must any criminal act against the U.S. When assessing costs of proposed submit the following information to CBP Government. Finally, this rule would rules, agencies must take care to not as set forth in 19 CFR 111.19(b): allow CBP to make numerous non- include transfer payments in their cost (1) The applicant’s broker license substantive changes and conforming analysis. As described in OMB Circular number and date of issuance; A–4, transfer payments occur when edits in an effort to modernize the (2) The address where the applicant’s ‘‘. . . monetary payments from one regulations governing customs brokers office will be located within the district group [are made] to another [group] that and to clarify existing language in the and the telephone number of that office; do not affect total resources available to regulations to better reflect what is (3) A copy of a document which already occurring. We will now explore society.’’ Examples of transfer payments include payments for insurance and fees reserves the applicant’s business name the costs, benefits, and payment with the state or local government; transfers of each provision separately. paid to a government agency for services that an agency already provides. CBP’s (4) The name of the individual broker 3.1 Broker License Fee processing of the customs broker license who will exercise responsible application is an established service that supervision and control over the Currently CBP charges $200 fees per already requires a fee payment. As such, customs business transacted in the individual or business entity for the the fee associated with each service is district; broker license application. These fees considered a transfer payment. (5) A list of all other districts for are used to offset the costs associated Currently, the shortfall in funding not which the applicant has a permit to with servicing the brokers. Based on a transact customs business; fee study, entitled ‘‘Customs Broker 8 The fee study is included in the docket of this (6) The place where the applicant’s License Application Fee Study,’’ CBP rulemaking (docket number USCBP–2020–0009). brokerage records will be retained and
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the name of the applicant’s designated period of analysis from 2017 through have to pay for the remaining 290 recordkeeping contact; and 2021. Of these 5,235 licenses, 581 permits for a cost of $29,000 ($100 (7) A list of all persons who the would be issued to corporations which permit application fee * 290 corporate applicant knows will be employed in would result in 871 corporate district permits). As a result of this rule, these the district, together with the specific permits (as mentioned above, each 581 corporate brokers will each have to employee information for each of those customs broker permit holder currently get a single national permit and pay the prospective employees. has 1.5 district permits on average). $100 permit application fee for each As a result of this rule, the options Additionally, as mentioned above, 100 national permit for a total cost of above pertaining to district permits will percent of corporations exercise the $58,100 (581 national permits * $100 no longer exist and all brokers will have option of concurrently receiving their permit application fee). This results in to get a single national permit to first district permit with their customs an additional cost to these corporate conduct customs business. broker’s license, therefore saving the brokers of $29,100 ($58,100¥$29,000) As shown in Exhibit 2 above, absent $100 permit application fee for their this proposed rule there would be 5,235 first district permit. This means that, over the period of the analysis from total (4,654 individual + 581 corporate) absent this rule, corporations would get 2017 through 2021. Please see Exhibit 3 new broker licenses issued over the 581 permits for free and would then below for a breakdown of these costs.
EXHIBIT 3—COSTS FOR CORPORATE PERMIT HOLDERS OVER THE PERIOD OF ANALYSIS ($2018)
Number of Costs for Costs for new corporate Number of corporate corporate Rule’s cost Year broker permits brokers brokers for corporate licenses issued without rule with rule brokers issued ($) ($) ($)
2017 ...... 97 146 4,900 9,700 4,900 2018 ...... 106 159 5,300 10,600 5,300 2019 ...... 115 173 5,800 11,500 5,800 2020 ...... 126 188 6,300 12,600 6,300 2021 ...... 137 205 6,800 13,700 6,800
Total ...... 581 871 29,000 58,100 29,100 Note: Values may not sum to total due to rounding.
As shown above in Exhibit 2, if this with their broker’s license, saving the permits). Under this proposed rule, rule were not in effect there would be $100 permit application fee charged for these 93 individual brokers would each 4,654 new individual broker licenses the first district permit. Using the need a single national permit for a total resulting in 908 new individual permits average of 1.5 district permits per of 93 permits resulting in a total cost of over the period of analysis. According to customs broker permit holder, we $9,300 ($100 national permit CBP’s Broker Management Branch, estimate that these 93 individual application fee * 93 national permits). individual brokers do not get their first customs brokers would get 140 district As a result of this rule, this two (2) district permit issued concurrently with permits over the period of the analysis percent of individual brokers will bear their customs broker’s licenses nearly as if this rule did not go into effect. Since, an additional total cost of $4,600 often as corporations. Approximately absent this rule, the brokers would get ($9,300¥$4,700) over the period of two (2) percent of individual customs 93 out of the 140 permits for free, analysis. Please see Exhibit 4 below for broker license holders, or 93 of the brokers would have to pay for the a breakdown of these costs. estimated 4,654 new brokers, get their remaining 47 permits for a cost of first district permit issued concurrently $4,700 ($100 permit application fee * 47
EXHIBIT 4—COSTS FOR THE TWO (2) PERCENT OF INDIVIDUAL PERMIT HOLDERS OVER THE PERIOD OF ANALYSIS ($2018)
Number of individual Costs for Costs for Rule’s costs licenses Number of 2% of 2% for 2% of Year issued for permits individual individual individual the 2% issued brokers brokers brokers of permit without rule with rule ($) holders ($) ($)
2017 ...... 15 23 800 1,500 800 2018 ...... 17 25 800 1,700 800 2019 ...... 18 28 1,000 1,800 900 2020 ...... 20 30 1,000 2,000 1,000 2021 ...... 23 33 1,100 2,200 1,100
Total ...... 93 140 4,700 9,300 4,600 Note: Values may not sum to total due to rounding.
The remaining 98 percent of holders do not get their first district license, if they get any permits at all. Of individual customs broker permit permit concurrently with their broker’s the 13,624 active licensed brokers,
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approximately 15 percent hold at least and receive a permit after their license fee for every permit. With the national one permit. Because 2 percent of those is issued. Under the current permit permit system, these brokers would pay are corporate license holders and only 2 system, using an average of 1.5 permits $51,200 for 512 national permits, percent of individuals get a permit per broker, 512 individual customs resulting in a savings of $25,600. Please concurrently with their license, about broker permit holders pay $76,800 for see Exhibit 5 below for an itemization 11 percent of licensed brokers apply for 768 permits, because they pay the $100 of these costs.
EXHIBIT 5—COSTS SAVINGS FOR THE 98 PERCENT OF INDIVIDUAL PERMIT HOLDERS OVER THE PERIOD OF ANALYSIS ($2018)
Number of individual Costs for Costs for Rule’s cost licenses Number of 11% of 11% of savings for Year issued for permits individual individual 11% of the 11% issued brokers brokers individual of permit without rule with rule brokers holders ($) ($) ($)
2017 ...... 84 126 12,600 8,400 10900 4,200 2018 ...... 92 138 13,800 9,200 4,600 2019 ...... 101 152 15,200 10,100 5,100 2020 ...... 112 167 16,800 11,200 5,600 2021 ...... 123 184 18,400 12,300 6,100
Total ...... 512 768 76,800 51,200 25,600 Note: Values may not sum to total due to rounding.
Any brokers who apply for more than estimated number of permits requested 768 permits. Summing these two one permit will experience a time separately from individual licenses for figures, we find that all individual savings as a result of this rule because the entire period of the analysis is taken customs brokers will pay $100 for 814 they will only need to apply for a single from Exhibit 4 and Exhibit 5. Exhibit 4 permits. Exhibit 6 shows the removal of permit. Currently brokers spend implies there are 47 permits for which the application for these permits will approximately three hours to collect and 2% of individual customs brokers result in a monetized time savings submit the appropriate documentation currently pay $100 ($4,700 permit costs worth $75,200. This cost savings is to CBP.9 The rule’s elimination of these without rule/$100 per permit). Exhibit 5 based on CBP’s estimated fully-loaded applications will result in time savings explicitly shows that 11% of individual hourly time value for customs brokers of for the brokers as well as CBP. The customs brokers currently pay $100 for $30.79.10
EXHIBIT 6—TIME SAVINGS MONETIZED FOR BROKER DISTRICT PERMIT APPLICATIONS SEPARATE FROM LICENSE APPLICATIONS OVER THE PERIOD OF ANALYSIS ($2018)
Number of permits Hourly Rule’s cost Year issued time-burden savings for separate for permit individual from license application brokers
2017 ...... 133 3 $12,300 2018 ...... 147 3 13,600 2019 ...... 161 3 14,900 2020 ...... 178 3 16,400 2021 ...... 195 3 18,000
Total ...... 814 3 75,200 Note: Values may not sum to total due to rounding.
Relatedly, CBP would see cost savings permit application review process. CBP processing, including time to review due to the elimination of the district estimates that it takes two hours of CBP and approve an application and create
9 Source: Email correspondence with the CBP National Occupational Employment and Wage total compensation to wages and salaries ratio data: Broker Management Branch on May 16, 2019. Estimates, United States—Median Hourly Wage by U.S. Bureau of Labor Statistics. Employer Costs for 10 CBP bases the $30.79 hourly time value for Occupation Code: 43–5011.’’ Updated April 2, Employee Compensation. Employer Costs for customs brokers on the Bureau of Labor Statistics’ 2019. Available at https://www.bls.gov/oes/2018/ Employee Compensation Historical Listing March (BLS) 2018 median hourly wage rate for Cargo and may/oes_nat.htm. Accessed November 20, 2019. 2004–December 2018, ‘‘Table 3. Civilian workers, Freight Agents ($20.77), which CBP assumes best The total compensation to wages and salaries ratio by occupational group: employer costs per hours represents the wage for brokers, by the ratio of BLS’ is equal to the calculated average of the 2018 worked for employee compensation and costs as a average 2018 total compensation to wages and quarterly estimates (shown under Mar., June, Sep., percentage of total compensation, 2004–2018 by salaries for Office and Administrative Support Dec.) of the total compensation cost per hour Respondent Type: Office and administrative occupations (1.4801), the assumed occupational worked for Office and Administrative Support support occupations.’’ Available at https:// group for brokers, to account for non-salary occupations divided by the calculated average of www.bls.gov/web/ecec/ececqrtn.pdf. Accessed June employee benefits, and rounded. Source of median the 2018 quarterly estimates (shown under Mar., 4, 2019. wage rate: U.S. Bureau of Labor Statistics. June, Sep., Dec.) of wages and salaries cost per hour Occupational Employment Statistics, ‘‘May 2018 worked for the same occupation category. Source of
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and deliver the permit to the estimated cost savings of $143,200 over a CBP fully loaded wage rate of $87.94 12 applicant.11 Exhibit 7 shows CBP’s total the period of analysis. This is based on for CBP staff reviewing applications.
EXHIBIT 7—TIME SAVINGS MONETIZED FOR CBPOS REVIEWING DISTRICT PERMIT APPLICATIONS OVER THE PERIOD OF ANALYSIS ($2018)
Number of Hourly permits time-burden Rule’s cost Year issued for permit savings separate application for CBP from license review
2017 ...... 133 2 $23,500 2018 ...... 147 2 25,800 2019 ...... 161 2 28,400 2020 ...... 178 2 31,200 2021 ...... 195 2 34,400
Total ...... 814 2 143,200
Lastly, the district permit waiver the request and makes a memorandum, and for headquarters to described in current § 111.19(d)(2) recommendation to headquarters. make the final decision.14 As shown in would be eliminated with the rule. Headquarters reviews and issues the Exhibits 8 and 9 there is a total cost Currently requests for a district permit decision.13 According to the CBP Broker savings of $5,031 ($1,601 + $3,430), as waiver must be submitted to the port Management Branch this process takes this entire process is eliminated under director and include a description of two hours for brokers, including the national permit framework. Waiver responsible supervision and control application processing and mailing estimates for calendar years 2019 to procedures and information on the paper documents to CBP. It takes an 2021 are based on compound annual volume and type of customs business hour and a half for CBP to do the waiver growth rate from calendar years 2017 conducted. The port director reviews analysis, prepare the recommendation and 2018.
EXHIBIT 8—TIME SAVINGS MONETIZED FOR APPLICANTS REQUESTING DISTRICT PERMIT WAIVERS OVER THE PERIOD OF ANALYSIS ($2018)
Number of Rule’s broker Hourly cost-savings Year district time-burden for brokers permit for waiver requesting waivers application waivers
2017 ...... 17 2 $1,047 2018 ...... 6 2 369 2019 ...... 2 2 123 2020 ...... 1 2 62 2021 ...... 0 2 0
Total ...... 26 2 1,601
EXHIBIT 9—TIME SAVINGS MONETIZED FOR CBPOS REVIEWING DISTRICT PERMIT WAIVER APPLICATIONS OVER THE PERIOD OF ANALYSIS ($2018)
Number of Hourly broker time-burden Rule’s Year district for waiver cost-savings permit application for CBP waivers review
2017 ...... 17 1.5 $2,243 2018 ...... 6 1.5 791 2019 ...... 2 1.5 264 2020 ...... 1 1.5 132 2021 ...... 0 1.5 0
Total ...... 26 1.5 3,430
11 Source: Email correspondence with the CBP by 2080 work hours per year gives a median hourly Customs and Border Protection, Office of Finance Broker Management Branch on May 16, 2019. wage of $66.84. CBP then adds premium pay and on June 12, 2019. 12 CBP bases the $87.94 hourly time value for CBP non-salary costs for a median, fully-loaded hourly 13 See 19 CFR 111.19(d)(2). staff on a median annual loaded wage rate, wage rate of $87.94. Source of salary and benefit 14 Source: Email correspondence with the CBP including salary and benefits, of $139,034. Dividing information: Email correspondence with the U.S. Broker Management Branch on May 16, 2019.
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Exhibit 10 provides a summary of the application and $100 fee over the period indicates a savings and a positive costs and cost-savings pertaining to the of analysis. Note that a negative number number indicates a cost. removal of the district permit
EXHIBIT 10—COSTS AND COST-SAVINGS WITH REMOVAL OF DISTRICT PERMITS FOR CY2017–2021 ($2018)
Costs/ Costs/ Savings savings for savings for for individuals corporations CBP Savings Costs for Time Costs for Time Review Review for 11% the 2% savings corporation savings of permits waivers
2017 ...... ¥$4,200 $800 ¥$12,300 $4,900 ¥$1,000 ¥$23,500 ¥$2,200 2018 ...... ¥$4,600 $800 ¥$13,600 $5,300 ¥$400 ¥$25,800 ¥$800 2019 ...... ¥$5,100 $900 ¥$14,900 $5,800 ¥$100 ¥$28,400 ¥$300 2020 ...... ¥$5,600 $1,000 ¥$16,400 $6,300 ¥100 ¥$31,200 ¥100 2021 ...... ¥$6,100 $1,100 ¥$18,000 $6,800 $0 ¥$34,400 $0
Total ...... ¥$25,600 $4,600 ¥$75,200 $29,000 ¥$1600 ¥$143,200 ¥$3,400
Net Cost ...... ¥$96,200 $27,500 ¥$146,700
3.3 Record of Transactions examine records, the designated draft the report. According to the U.S. recordkeeping contact must make all Bureau of Labor Statistics, the 2018 Each broker must keep current, in a records available to CBP within thirty median hourly earnings of an attorney is correct and itemized manner, records of (30) calendar days, or any longer $145.33.15 These five (5) reports accounts reflecting all his or her timeframe as specified by CBP, at the represent an additional burden to the financial transactions as a broker. The location specified by CBP. We are broker and will result in a total annual broker must keep and maintain on file making this change in the regulations to cost of $2,907 (4 hours per report * 5 copies of all correspondence and other make sure brokers continue to give CBP reports * $145.33 annual wage rate for records relating to customs business. the requested information and to an attorney) or a total cost of $14,533 With this proposed rule, each broker specifically state for clarity that brokers over the period of analysis from 2017– must provide notification to the need to keep records in the United 2021. designated Center of any known breach States. As we are only explicitly stating of electronic or physical records relating an existing requirement for the sake of 3.6 Customs Power of Attorney to customs business. Notification to CBP clarity, this will result in no additional A customs broker is required to have must be provided within 72 hours of the burden for customs brokers. a customs power of attorney (POA) prior discovery of the breach with a list of all to transacting any customs business on known compromised importer 3.5 Termination of Client Relationship behalf of the importer of record. (See 19 identification numbers. Brokers already In this proposed rule, we will now CFR 141.46). Currently, an agent of the compile this information through their require that a broker document and importer of record (IOR), which could normal course of business and they can report to CBP when it separates from a be a freight forwarder that is properly report the information to CBP in any client relationship as a result of the designated by the IOR, may issue a POA format they choose. CBP assumes data broker’s determining that the client is on behalf of the IOR to a customs breaches are rare, but includes this intentionally attempting to use the broker. In such instances, the customs requirement as a preventive measure. broker’s services to defraud or otherwise CBP assumes this provision has commit any criminal act against the U.S. 15 CBP bases the $145.33 hourly time value on the virtually no cost to the brokers due to Government. This is an entirely new median hourly wage rate for lawyers, SOC 23–1011, the infrequency of data breaches. CBP provision, so we do not have data on ($58.13) multiplied by 2.5 to account for benefits will use this information in its targeting and other costs of employment. Source: U.S. Bureau how often clients may use a broker’s of Labor Statistics. Occupational Employment of imports for inspection, which will services to defraud or otherwise commit Statistics, ‘‘May 2018 National Occupational help make imports safer. criminal acts against the U.S. Employment and Wage Estimates, United States— Government. However, we do not Median Hourly Wage by Occupation Code.’’ 3.4 Records Availability Updated April 2, 2019. Available at http:// expect this to happen often based on www.bls.gov/oes/2018/may/oes_nat.htm. Accessed Currently, during the period of stakeholder feedback. CBP’s Broker June 4, 2019. retention (5 years after the date of Management Branch estimates this to The DHS ICE ‘‘Safe-Harbor Procedures for entry), the broker must maintain its occur approximately 5 times per year Employers Who Receive a No-Match Letter’’ used records in such a manner that they can and each resulting report will take a multiplier of 2.5 to convert in-house attorney wages to the cost of outsourced attorney based on be readily examined by CBP when brokers approximately four (4) hours to information received in public comment to that necessary. Records required to be draft. CBP requests comment on these rule. We believe the explanation and methodology maintained under this provision must estimates. used in the Final Small Entity Impact Analysis be made available upon reasonable To estimate the time cost spent remains sound for using 2.5 as a multiplier for outsourced labor wages in this rule, see page G–4 notice for inspection, copying, writing and submitting this report to [Aug. 25, 2008] [http://www.regulations.gov/ reproduction or other official use by CBP, we must first determine a value of #!documentDetail;D=ICEB-2006-0004-0922]. representatives of the Department of time for the individuals who would be Additionally, this methodology was also utilized in Homeland Security. Additionally, preparing and submitting this report. the analysis for the DHS USCIS final rule establishing a registration fee requirement for customs brokers currently have the We expect that, in most cases, this petitioners seeking to file H–1B petitions on behalf option to store records offsite. Under the information will be submitted by of cap subject aliens. See 84 FR 60307 (November proposed rule, upon request by CBP to customs brokers employing attorneys to 8, 2019).
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broker may never have any contact with requirement. The public would benefit of practice as these factors for the IOR, only its agent (the forwarder). as the public now has more clarity responsible supervision already exist With this proposed rule, the broker regarding the requirement without and are just being moved and formally must get a customs POA directly from needing to contact CBP. stated in the regulations to clarify what the importer of record or drawback 3.9 Records Confidentiality already should be occurring. claimant and not via the freight Additionally, CBP is clarifying some forwarder or any other third party agent. Currently, records pertaining to the of the requirements on the reporting of This gives the broker direct access to the clients of the broker are to be considered employee information by brokers, for IOR when entering into the POA, which confidential and the broker must not consistency. In this rule, CBP is increases transparency in the disclose their contents or any proposing to remove the requirement for verification process. According to CBP’s information connected with the records the broker to report each employee’s last Broker Management Branch, it takes to any other persons except the relevant home address, email address, the name approximately 1.75 hours for the broker surety, other than specifically described and address of each former employer, to get a customs POA from the freight Government representatives with regard and if the employee had been employed forwarder. This time estimate will not to a particular entry or due to a by the broker for less than three years, change once the intermediary is subpoena. This is not changing under the dates of employment for the three- removed and the broker must get the the proposed rule. However, this year period preceding current customs POA directly from the importer description is being clarified to now employment with the broker. The rule of record or drawback claimant, instead state that these records may not be retains the requirement that brokers of allowing a freight forwarder or other disclosed to any persons other than the report other information, including third-party to do so on their behalf. ones mentioned above and to the employee names, social security Since brokers are currently required to representatives of the Department of numbers, dates and places of birth, get a customs POA, and importers Homeland Security except by court dates of hire, and current home already provide a POA, this provision order, subpoena (as mentioned above), addresses. An updated list must be would not result in any additional or when authorized in writing by the submitted to the director of the burden to brokers. The new provision client. This has already been the designated Center and updated in ACE only requires direct contact between the practice, but has been the subject of if any of the information required broker and the IOR. confusion so we are providing needed changes, including notation of new or clarification. Finally, the revised 3.7 Professionalism terminated employees. This update language clarifies that the must be submitted within thirty (30) We are making a number of changes confidentiality provision does not apply calendar days of the change. However, in an effort to increase professionalism to information that is in the public brokers already have an up-to-date list and clarify what brokers should already domain, which has been a point of of their employees’ contact information. be doing. We recognized this need as we confusion for some brokers. This new requirement amounts to a routinely field questions about these routine submission each month in ACE topics and we wanted to clarify best 3.10 Responsible Supervision and with data that the brokers already practices for the trade. The next several Control routinely keep. They are likely to do sections describe the current process, Brokers often have employees this at the same time as making their and what is changing as a result of this working for them who are not licensed other filings or routine reports so rule, for new requirements related to brokers. These employees help with submitting one more existing document Customs Business, Records information collection and submission is not an additional measureable burden Confidentiality, Responsible of entry documentation to CBP. Each on customs brokers. Supervision and Control, and Advice to broker is responsible for exercising Client. responsible supervision and control 3.11 Advice to Client 3.8 Customs Business over the transaction of the customs Currently, if a broker knows that a business done under its broker license. client has not complied with the law or Currently, customs business must be This requirement is in existence conducted within the customs territory has made an error in, or omission from, currently and is not changing as a result any document, affidavit, or other record of the United States as it is defined in of this rule. However, this rule proposes § 101.1 of the CBP regulations. which the law requires the client to to move the list of factors CBP considers execute, the broker must advise the Furthermore, each broker must when determining whether a customs designate a licensed broker or client promptly of that noncompliance, broker is exercising responsible error, or omission. In the proposed rule knowledgeable employee to be available supervision and control from the to CBP to respond to issues related to we are adding that the broker must also definition of ‘‘responsible supervision advise the client on the proper the transacting of customs business and and control’’ in §§ 111.1 through 111.28. each broker must maintain accurate and corrective actions required and retain a (19 CFR 111.1, 111.28). This list is of a record of the broker’s communication current point of contact information in substantive nature and is more a CBP-authorized electronic data with the client in accordance with appropriately located in the section on § 111.23. (19 CFR 111.23). CBP proposes interchange (EDI) system. Under this responsible supervision and control as proposed rule, these requirements are to add the requirement that the broker opposed to the definitions section. CBP also explain the proper corrective action not changing; we are just now putting has always maintained that the current the language in the regulations requiring factors are not exhaustive and in the CBP website at https://www.cbp.gov/trade/ a specific point of contact be maintained proposed rule, CBP is simply clarifying programs-administration/customs-brokers. The in an EDI. CBP gets questions on this existing requirements that brokers, for website is updated more frequently than the provision from the public, so adding the most part, are already complying regulations themselves. CBP provides guides on this additional language to the 16 how to become a broker, broker exam information, with in practice. This is not a change validating the power of attorney, broker regulation would clarify the provision compliance, employing convicted felons, fees, for the public. There are no costs to this 16 Brokers looking for more information beyond national permits, and triennial reports, as well as provision because it does not change the what is stated in CBP regulations can consult the webinars and informed compliance publications.
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to better advise the client and to clarify who receive their first district permit EXHIBIT 11—TOTAL ANNUAL the level of professionalism that is concurrently with their broker’s license UNDISCOUNTED COSTS FOR BRO- expected in the broker/importer will need to pay for their permit and the KERS ($2018), 2017–2021—Contin- relationship. Additionally, we are costs resulting from the new ued adding that the record of this requirement that a broker document and communication could be reviewed by report to CBP when it separates from a Year Total costs CBP on a routine visit to the broker. client relationship as a result of Brokers will not have to report any attempted fraud or criminal acts. Exhibit 2020 ...... 10,200 errors or omissions but in the case that 11 shows the total annual cost of the 2021 ...... 10,900 an error or omission is discovered, this rule. Over the 5-year period of analysis, Total ...... 48,200 would help a broker show that it this rule will cost brokers about $48,200 advised the client on how to correct the undiscounted. Note: Values may not sum to total due to situation. Most brokers are already in rounding. EXHIBIT 11—TOTAL ANNUAL compliance with this requirement, so Exhibit 12 shows the present value this provision will not add a significant UNDISCOUNTED COSTS FOR BRO- and annualized costs of the rule over the burden to customs brokers. KERS ($2018), 2017–2021 period of analysis (2017–2021) at a three (3) and seven (7) percent discount rate. 3.12 Total Costs Year Total costs Total costs range from $39,200 to The total monetized costs for customs 2017 ...... $8,500 $44,000, depending on the discount rate brokers include a $100 fee that two (2) 2018 ...... 9,000 used. Annualized costs are about percent of individual customs brokers 2019 ...... 9,600 $9,600.
EXHIBIT 12—TOTAL PRESENT VALUE AND ANNUALIZED COSTS, FROM 2017–2021 ($2018)
Total present value costs Annualized costs 3% 7% 3% 7%
$44,000 ...... $39,200 $9,600 $9,600
3.13 Total Benefits greater clarity for brokers in EXHIBIT 13—TOTAL ANNUAL understanding the rules and regulations The total annual monetized cost UNDISCOUNTED COSTS-SAVINGS by which they must abide, greater data savings for customs brokers are the FOR BROKERS AND CBP ($2018), result of monetary savings from security, and better reporting of 2017–2021—Continued switching from a district permitting potential fraud to CBP. system to a national permitting system. Total Year costs-savings Namely, there is a time savings and fee EXHIBIT 13—TOTAL ANNUAL UNDISCOUNTED COSTS-SAVINGS savings of $100 per permit application Total ...... 249,100 for individual customs brokers who do FOR BROKERS AND CBP ($2018), not concurrently receive their first 2017–2021 Note: Values may not sum to total due to rounding. district permit with their broker license. There is also a time savings to CBP due Year Total Exhibit 14 shows the present value to the removal of the district permit costs-savings and annualized costs-savings of the rule waiver application reviews. As shown over the period of analysis (2017–2021) in Exhibit 13, total undiscounted 2017 ...... $43,300 at a three (3) and seven (7) percent savings over the period of analysis is 2018 ...... 45,100 discount rate. Total costs-savings range 2019 ...... 48,800 $249,100. In addition to these quantified from $202,100 to $227,100, depending 2020 ...... 53,400 benefits, there are unquantified benefits on the discount rate used. Annualized 2021 ...... 58,500 resulting from this rules’ updates. These costs-savings range from $49,301 to benefits include increased $49,592, depending on the discount rate professionalism of the broker industry, used.
EXHIBIT 14—TOTAL PRESENT VALUE AND ANNUALIZED COSTS-SAVINGS, FROM 2017–2021 ($2018)
Total present value costs-savings Annualized costs-savings 3% 7% 3% 7%
$227,100 ...... $202,100 $49,592 $49,301
3.14 Net Benefits present value net benefits of this rule estimate that 859 brokers will receive over a 5 year period of analysis from their broker licenses (762 individual Exhibit 15 summarizes the monetized 2017–2021 ranges from $163,000 to licenses plus 97 corporate licenses). The costs and benefits of this rule to $183,100 and the annualized net benefit adoption of this rule will result in an individual and business entity customs is approximately $40,000. In 2017, we average annual net benefit per broker in brokers. As shown, the total monetized
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2017 of $47 ($40,000 annualized net benefits/859 total new brokers for 2017).
EXHIBIT 15—PRESENT VALUE AND ANNUALIZED NET BENEFIT OF RULE ($2018), 2017–2021
3% discount rate 7% discount rate Present value Annualized Present value Annualized
Total Cost ...... $44,000 $9,600 $39,200 $9,600 Total Benefit ...... 227,100 49,600 202,100 49,300 Total Net Benefit ...... 183,100 40,000 163,000 39,700
3.15 Distributional Impact regulations on small entities. A small against the U.S. Government. Under the proposed rule, the customs entity may be a small business (defined Furthermore, CBP is also proposing to broker license application will change as any independently owned and make various non-substantive changes from $200 for both individuals and operated business not dominant in its and conforming edits to clarify the business entities to $300 for individuals field that qualifies as a small business existing language in the regulations to and $500 for business entities. concern per the Small Business Act); a better reflect what is already occurring. small organization (defined as any not- Consequently, CBP’s proposed fee The proposed rule would apply to all for-profit enterprise which is would increase by $100 for individuals customs brokers, regardless of size. independently owned and operated and and $300 for business entities. As Accordingly, the proposed rule would is not dominant in its field; or a small discussed in section 2, CBP estimates affect a substantial number of small governmental jurisdiction (defined as a that over the next five years, 4,654 entities. However, as stated above in the individuals and 581 business entities locality with fewer than 50,000 people). In an effort to modernize the Executive Orders 13563, 12866, and will be issued a new customs broker 13771 section, the proposed rule would license. Using these estimates and the regulations governing customs brokers, CBP is proposing regulatory changes result in an average annualized savings proposed fee increases, CBP estimates per customs broker of $47. Additionally, that the proposal will result in an that include: Eliminating district permits so each customs broker only as discussed above, the customs broker increased transfer payment from brokers license application fee increase for the to the government of approximately needs one national permit, which 5,235 new customs brokers over the $639,700 over the next five years (4,654 reduces the fees owed; mandating that period of analysis would result in a individual applications * $100 proposed each broker must provide notification to distributional impact of $639,700, with fee increase = $465,400; 581 business CBP of any known breach of its records entity applications * $300 proposed fee within 72 hours of discovery; requiring 4,654 individual applicants paying an increase = $174,300; $465,400 + brokers to make all records available to additional $100 and 581 corporate $174,300 = $639,700). Although the CBP, upon request within thirty (30) applicants paying an additional $300 proposed fee changes will increase costs calendar days at the location specified over a 5-year period. Including for individuals and business entities, by CBP; mandating that customs brokers distributional impacts, the rule costs CBP has determined that these proposed now obtain a customs power of attorney brokers either $61 or $261 per year, or increases are necessary in order to directly from the importer of record or less than 1 percent of annual revenue recover some of the costs of provide the drawback claimant, not a freight for brokers of any size. Please see services necessary to facilitate the forwarder, to transact customs business Exhibit 16 for a breakdown of customs broker license application for that importer or drawback claimant; brokerages by size. Because the process. and requiring that a broker must distributional impact and saving are document and report to CBP when it relatively small on a per broker basis, 4. Regulatory Flexibility Act separates from or terminates this rule will not have a significant The Regulatory Flexibility Act (5 representation of a client as a result of economic impact on customs brokers. U.S.C. 601 et seq.), as amended by the the broker’s determining the client is Accordingly, CBP certifies that this rule Small Business Regulatory Enforcement intentionally attempting to use the does not have a significant economic and Fairness Act of 1996, requires services of a broker to defraud or impact on a substantial number of small agencies to assess the impact of otherwise commit any criminal act entities.
EXHIBIT 16—ANNUAL REVENUE BY FIRM SIZE 17
Estimated Annual revenue Number number of ($) of firms Small permitted brokers
<100,000 ...... 2,195 Yes ...... 323 100,000–499,999 ...... 4,935 Yes ...... 727 500,000–999,999 ...... 2,330 Yes ...... 343 1,000,000–2,499,999 ...... 2,429 Yes ...... 358 2,500,000–4,999,999 ...... 1,208 Yes ...... 178 5,000,000–7,499,999 ...... 540 Yes ...... 80
17 Source: U.S. Census Bureau, ‘‘2012 SUSB Freight Transportation Arrangement, Last Revised 2012/econ/susb/2012-susb-annual.html. Accessed Annual Data Tables by Establishment Industry,’’ July 30, 2019. https://www.census.gov/data/tables/ January 14, 2020. Data by Enterprise Receipt Size, NAICS 4885
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EXHIBIT 16—ANNUAL REVENUE BY FIRM SIZE 17—Continued
Estimated Annual revenue Number number of ($) of firms Small permitted brokers
7,500,000–9,999,999 ...... 284 Yes ...... 42 10,000,000–14,999,999 ...... 282 Yes ...... 42 >15,000,000 ...... 815 No ...... 0
Total ...... 15,018 ...... 2,093
5. Paperwork Reduction Act PART 24—CUSTOMS FINANCIAL AND The additions and revisions read as In accordance with the Paperwork ACCOUNTING PROCEDURE follows: Reduction Act of 1995 (Pub. L. 104–13, ■ 1. The general authority citation for § 111.1 Definitions. 44 U.S.C. 3507) an agency may not part 24 continues to read as follows: * * * * * conduct, and a person is not required to Appropriate Executive Director, Office Authority: 5 U.S.C. 301; 19 U.S.C. 58a– respond to, a collection of information of Trade. ‘‘Appropriate Executive unless the collection of information 58c, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1505, Director, Office of Trade’’ means the displays a valid control number Executive Director responsible for assigned by OMB. The collections of 1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 3717, 9701; Pub. L. 107–296, 116 Stat. 2135 broker management. information contained in these (6 U.S.C. 1 et seq.). regulations are provided for by OMB * * * * * * * * * * Broker’s office of record. ‘‘Broker’s control number 1651–0034 (CBP office of record’’ means the office Regulations Pertaining to Customs § 24.1 [Amended] designated by a customs broker as the Brokers) and by OMB control number ■ 2. In § 24.1, paragraph (a)(3)(i) is broker’s primary location that oversees 1651–0076 (Recordkeeping amended by removing the phrases ‘‘who the administration of the provisions of Requirements). This rule does not does not have a permit for the district this part regarding all activities change the burden under these (see the definition of ‘‘district’’ at conducted under a national permit. information collections. § 111.1 of this chapter) where the entry * * * * * Signing Authority is filed,’’ and ‘‘which is unconditioned Designated Center. ‘‘Designated geographically’’ from the third sentence. This document is being issued in Center’’ means the Center of Excellence accordance with 19 CFR 0.1(b)(1), PART 111—CUSTOMS BROKERS and Expertise (Center) through which an which provides that the Secretary of the individual, partnership, association, or Treasury delegated to the Secretary of ■ 3. The authority citation for part 111 corporation submits an application for a Homeland Security the authority to is revised to read as follows: broker’s license under § 111.12(a), or to prescribe and approve regulations Authority: 19 U.S.C. 66, 1202 (General which an already-licensed broker is relating to customs revenue functions Note 3(i), Harmonized Tariff Schedule of the otherwise assigned. on behalf of the Secretary of the United States), 1624; 1641. * * * * * Treasury for when the subject matter is Section 111.2 also issued under 19 U.S.C. Executive Assistant Commissioner. not listed as provided by Treasury 1484, 1498; ‘‘Executive Assistant Commissioner’’ Department Order No. 100–16. Section 111.96 also issued under 19 U.S.C. means the Executive Assistant Accordingly, this proposed rule to 58c, 31 U.S.C. 9701. Commissioner of the Office of Trade at amend such regulations may be signed ■ 4. In § 111.1: the Headquarters of U.S. Customs and by the Secretary of Homeland Security ■ a. Add the definition ‘‘Appropriate Border Protection. (or his or her delegate). Executive Director, Office of Trade’’ in * * * * * List of Subjects alphabetical order; Responsible supervision and control. ■ b. Remove the definition ‘‘Assistant ‘‘Responsible supervision and control’’ 19 CFR Part 24 Commissioner’’; means that degree of supervision and Accounting, Claims, Customs duties ■ c. Add the definitions ‘‘Broker’s office control necessary to ensure the proper and inspection, Harbors, Reporting and of record’’ and ‘‘Designated Center’’ in transaction of the customs business of a recordkeeping requirements, Taxes. alphabetical order; broker, including actions necessary to ■ d. Remove the definition ‘‘District’’; ensure that an employee of a broker 19 CFR Part 111 ■ e. Add athe definition ‘‘Executive provides substantially the same quality Administrative practice and Assistant Commissioner’’; of service in handling customs procedure, Brokers, Customs duties and ■ f. Amend the definition of ‘‘Permit’’ transactions that the broker is required inspection, Penalties, Reporting and by removing the word ‘‘any’’ and adding to provide. See § 111.28 for a list of recordkeeping requirements. in its place the word ‘‘a’’; factors which CBP may consider when ■ g. Remove the definition ‘‘Region’’; evaluating responsible supervision and Proposed Amendments to the CBP ■ h. Revise the definition ‘‘Responsible control. Regulations supervision and control’’; and * * * * * For the reasons set forth in the ■ i. Designate the definition ■ 5. In § 111.2: preamble, parts 24 and 111 of title 19 of ‘‘Department of Homeland Security or ■ a. Amend the section heading by the Code of Federal Regulations (19 CFR any representative of the Department of removing the word ‘‘district’’; parts 24 and 111) are proposed to be Homeland Security’’ in alphabetical ■ b. Amend paragraph (a)(2)(ii)(A)(1) by amended as set forth below. order. removing ‘‘the port director’’ and
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‘‘Customs’’ and adding in their place the applicant attains a passing grade on the ‘‘submitting a written or electronic term ‘‘CBP’’; examination. The application must be request’’ in the third sentence. ■ c. Amend paragraph (a)(2)(ii)(A)(2) by: executed on CBP Form 3124. The ■ 4. Removing the words ‘‘Executive ■ 1. Removing the word ‘‘port’’ and application must be accompanied by the Assistant Commissioner’’ and adding in adding the words ‘‘of the designated application fee prescribed in § 111.96(a) their place the words ‘‘appropriate Center’’ after the word ‘‘director’’; and and one copy of the appropriate Executive Director’’; ■ 2. Removing the last sentence. attachment required by the application ■ 9. In § 111.14: ■ d. Amend paragraph (a)(2)(ii)(B) by form (Articles of Agreement or an ■ a. Revise the section heading;. removing the word ‘‘port’’ wherever it affidavit signed by all partners, Articles ■ b. Remove paragraph (a); appears and adding ‘‘of the designated of Agreement of the association, or the ■ c. Redesignate paragraph (b) as Center’’ after the word ‘‘director’’ Articles of Incorporation). If the paragraph (a) and revise the newly wherever it appears; and applicant proposes to operate under a redesignated paragraph; ■ e. Revise paragraph (b). trade or fictitious name in one or more ■ The revision reads as follows: States, evidence of the applicant’s d. Redesginate paragraph (c) as authority to use the name in each of paragraph (b) and revise the newly § 111.2 License and permit required. those States must accompany the redesignated paragraph; and * * * * * application. An application for an ■ e. Redesignate paragraph (d) as (b) National permit. A national permit individual license must be submitted paragraph (c) and revise the newly issued to a broker under § 111.19 will within the 3-year period after the redesignated paragraph. constitute sufficient permit authority for applicant took and passed the The revisions read as follows: the broker to conduct customs business examination referred to in § 111.11(a)(4) within the customs territory of the § 111.14 Background investigation of the and § 111.13. The Center director may license applicant. United States as defined in § 101.1 of require an individual applicant to this chapter. provide a copy of the notification that (a) Scope of background investigation. ■ 6. Add § 111.3 to read as follows: the applicant passed the examination A background investigation under this section will ascertain facts relevant to § 111.3 Customs business. (see § 111.13(e)) and will require the applicant to submit fingerprints at the the question of whether the applicant is (a) Location. Customs business must time of the interview. The Center qualified and will cover, but need not be be conducted within the customs director may reject an application as limited to: territory of the United States as defined improperly filed if the application is (1) The accuracy of the statements in § 101.1 of this chapter. incomplete or, if on its face, the made in the application and interview; (b) Point of contact. A licensed application demonstrates that one or (2) The business integrity and customs broker, or partnership, more of the basic requirements set forth financial responsibility of the applicant; association, or corporation, conducting in § 111.11 has not been met at the time and customs business under a national of filing; in either case the application (3) When the applicant is an permit must designate a knowledgeable and fee will be returned to the filer individual (including a member or a point of contact to be available to CBP without further action. partnership or an officer of an during and outside of normal operating * * * * * association or corporation), the hours to respond to customs business character and reputation of the issues. The licensed customs broker, or § 111.13 [Amended] applicant, including any association partnership, association, or corporation, ■ 8. In § 111.13: with any individuals or groups that may must maintain accurate and current ■ a. Amend paragraph (b) by removing present a risk to the security or to the point of contact information in a CBP- ‘‘$390’’; revenue collection of the United States. authorized electronic data interchange ■ b. Amend paragraph (c) by (b) Referral to Headquarters. The (EDI) system. If a CBP-authorized EDI ■ 1. Removing the words ‘‘an office in director of the designated Center will system is not available, then the another district (see § 111.19(d)) and the forward the application and supporting information must be provided in writing permit for that additional district would documentation to the appropriate to the director of the designated Center. be revoked by operation of law under Executive Director Office of Trade. The ■ 7. In § 111.12: the provisions of 19 U.S.C. 1641(c)(3) Center director will also submit his or ■ a. Paragraph (a) is revised; and § 111.45(b)’’ and adding in their her recommendation for action on the ■ b. Paragraph (b) is removed; and place the words ‘‘the transaction of application. ■ c. Redesignate paragraph (c) as customs business’’; and (c) Additional inquiry. The paragraph (b); ■ 2. Removing ‘‘$390’’; appropriate Executive Director, Office of ■ d. In newly redesignated paragraph ■ c. Amend paragraph (d) by removing Trade, may require further inquiry if (b): ‘‘$390’’; ■ 1. Remove the word ‘‘port’’; ■ d. Amend paragraph (e) by adding the additional facts are deemed necessary to ■ 2. Add the words ‘‘of the designated words ‘‘or electronic’’ after the word evaluate the application. The Center’’ after the word ‘‘director’’ and; ‘‘written’’; and appropriate Executive Director, Office of ■ 3. Remove the words ‘‘$200 ■ e. Amend paragraph (f) by: Trade, may also require the applicant application fee’’ and add in their place ■ 1. Adding the words ‘‘or electronic’’ (or in the case of a partnership, the words ‘‘application fee set forth in between the words ‘‘written’’ and association, or corporation, one or more § 111.96(a)’’. ‘‘appeal’’ and between the words of its members or officers) to appear in The revisions read as follows: ‘‘written’’ and ‘‘notice’’ in the first person or by another approved method sentence; before the appropriate Executive § 111.12 Application for license. ■ 2. Adding the words ‘‘or electronic’’ Director, Office of Trade, or his or her (a) Submission of application and fee. between the words ‘‘written’’ and representatives for the purpose of An application for a broker’s license ‘‘notice’’ in the second sentence; and undergoing further written or oral must be timely submitted to the director ■ 3. Removing the word ‘‘writing’’ and inquiry. of the Center identified by CBP after the adding in its place the words ■ 10. Revise § 111.15 to read as follows.
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§ 111.15 Issuance of license. information or arguments in support of under that national permit. The national If the appropriate Executive Director, the application and may request to permit application may be submitted Office of Trade, finds that the applicant appear in person, by telephone, or by concurrently with or after the is qualified and has paid all applicable other acceptable means of submission of an application for a fees prescribed in § 111.96(a), the communication. This filing and request broker’s license. An applicant applying Executive Assistant Commissioner will must be received by the appropriate for a national permit on behalf of a issue a license. A license for an Executive Director, Office of Trade partnership, association, or corporation individual who is a member of a within sixty (60) calendar days of the must be a licensed broker employed by partnership or an officer of an denial. the partnership, association, or association or corporation will be issued (b) By the Executive Assistant corporation. An application for a in the name of the individual licensee Commissioner. Upon the decision of the national permit under this paragraph and not in his or her capacity as a appropriate Executive Director, Office of must be in the form of a letter or CBP- member or officer of the organization Trade, affirming the denial of an approved electronic submission to the with which he or she is connected. The application for a license, the applicant director of the designated Center. The license will be forwarded to the director may file with the Executive Assistant application must set forth or attach the of the designated Center, who will Commissioner, in writing, a request for following: deliver it to the licensee. any additional review that the Executive (1) The applicant’s broker license ■ 11. In § 111.16, revise paragraphs (a) Assistant Commissioner, deems number and date of issuance if and (b) to read as follows: appropriate. This request must be available; received by the Executive Assistant (2) If the applicant is applying for a § 111.16 Denial of a license. Commissioner within sixty (60) national permit on behalf of a (a) Notice of denial. If the appropriate calendar days of the affirmation by the partnership, association, or corporation: Executive Director, Office of Trade, appropriate Executive Director, Office of The name of the partnership, determines that the application for a Trade, of the denial of the application association, or corporation and the title license should be denied for any reason, for a license. held by the applicant within the notice of denial will be given by him or (c) By the Court of International partnership, association, or corporation; her to the applicant and to the director Trade. Upon a decision of the Executive (3) If the applicant is applying for a of the designated Center. The notice of Assistant Commissioner affirming the national permit on behalf of a denial will state the reasons why the denial of an application for a license, partnership, association, or corporation: license was not issued. the applicant may appeal the decision to A copy of the documentation issued by (b) Grounds for denial. The grounds the Court of International Trade, a State, or local government that sufficient to justify denial of an provided that the appeal action is establishes the legal status and reserves application for a license include, but commenced within sixty (60) calendar the business name of the partnership, need not be limited to: days after the date of entry of the association, or corporation; (1) Any cause which would justify Executive Assistant Commissioner’s (4) The address, telephone number, suspension or revocation of the license decision. and email address of the office of a broker under the provisions of § 111.18 [Amended] designated by the applicant as the office § 111.53; of record as defined in § 111.1. The ■ (2) The failure to meet any 13. Amend § 111.18 by adding the office will be noted in the national requirement set forth in § 111.11; phrase ‘‘and addressing how permit when issued; (3) A failure to establish the business deficiencies have been remedied’’ after (5) The name, telephone number, and integrity and financial responsibility of the term ‘‘§ 111.12’’. email address of the point of contact the applicant; ■ 14. In § 111.19: described in § 111.3(b) to be available to (4) A failure to establish the good ■ a. Revise the section heading; CBP to respond to issues related to the character and reputation of the ■ b. Revise paragraphs (a) and (b); transaction of customs business; applicant; ■ d. Remove paragraph (d); (5) Any willful misstatement or ■ e. Redesignate paragraph (e) as (6) If the applicant is applying for a omission of pertinent facts in the paragraph (d) and revise the newly national permit on behalf of a application or interview for the license; redesignated paragraph; partnership, association, or corporation: (6) Any conduct which would be ■ f. Revise paragraph (f); and The name, broker license number, office deemed unfair or detrimental in ■ g. Redesignate paragraph (g) as address, telephone number, and email commercial transactions by accepted paragraph (e) and revise the newly address of each individual broker standards; redesignated paragraph. employed by the partnership, (7) A reputation imputing to the The revisions read as follows: association, or corporation; applicant criminal, dishonest, or (7) A list of all employees together unethical conduct, or a record of that § 111.19 National permit. with the specific employee information conduct; or (a) General. A national permit is prescribed in § 111.28 for each (8) Any other relevant information required for the purpose of transacting employee; uncovered over the course of the customs business throughout the (8) A supervision plan describing how background investigation. customs territory of the United States as responsible supervision and control will ■ 12. Revise § 111.17 to read as follows. defined in § 101.1 of this chapter. be exercised over the customs business (b) Application for a national permit. conducted under the national permit, § 111.17 Review of the denial of a license. An applicant who obtains a passing including compliance with § 111.28; (a) By the appropriate Executive grade on the examination for an (9) The location where records will be Director, Office of Trade. Upon the individual broker’s license may apply retained (see § 111.23); denial of an application for a license, for a national permit. The applicant will (10) The name, telephone number, the applicant may file with the exercise responsible supervision and and email address of the knowledgeable appropriate Executive Director, Office of control (as described in § 111.28 of this employee responsible for broker-wide Trade, in writing, additional part) over the activities conducted records maintenance and financial
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recordkeeping requirements (see ■ b. Add a new paragraph (b); and records referred to in this part in such § 111.21(d)); and ■ c. Revise the newly redesignated a manner that they may readily be (11) A receipt or other evidence paragraph (d). examined. Records required to be showing that the fees specified in The addition and revision read as maintained under the provisions of this § 111.96(b) and (c) have been paid in follows: part must be made available upon accordance with paragraph (b) of this § 111.21 Record of transactions. reasonable notice for inspection, section. copying, reproduction or other official * * * * * use by representatives of the * * * * * (b) Each broker must provide Department of Homeland Security (d) Action on application; list of notification to the broker’s designated (DHS) within the prescribed period of permitted brokers. The director of the Center of any known breach of retention or within any longer period of designated Center who receives the electronic or physical records relating to time during which they remain in the application will review to determine the broker’s customs business. possession of the broker. whether the applicant meets the Notification to CBP must be provided (b) Examination request. Upon requirements of paragraphs (a) and (b) of within 72 hours of the discovery of the request by DHS to examine records, the this section. If the director of the breach with a list of all compromised designated Center is of the opinion that importer identification numbers (see 19 designated recordkeeping contact (see the national permit should not be CFR 24.5). § 111.21(d)), must make all records issued, he or she will submit his or her available to DHS within thirty (30) * * * * * calendar days, or such longer time as written reasons for that opinion to the (d) Each broker must designate a specified by DHS, at the location appropriate Executive Director, Office of knowledgeable employee as the party specified by DHS. Trade, CBP Headquarters, for responsible for brokerage-wide (c) Recordkeeping requirements. appropriate instructions on whether to recordkeeping requirements. Each Records subject to the requirements of grant or deny the national permit. The broker must maintain accurate and part 163 of this chapter must be made appropriate Executive Director, Office of current point of contact information in available to DHS in accordance with the Trade, CBP Headquarters, will notify the a CBP-authorized electronic data provisions of that part. applicant if his or her application is interchange (EDI) system. If a CBP- denied. CBP will issue a national permit authorized EDI system is not available, § 111.27 [Amended] to an applicant who meets the then the information must be provided ■ 19. Amend § 111.27 by removing the requirements of paragraphs (a) and (b) of in writing to the director of the phrase ‘‘the port director and other this section. CBP will maintain and designated Center. proper officials of the Treasury make available to the public an ■ 16. In § 111.23, revise paragraph (a) to Department’’ and adding in its place the alphabetical list of permitted brokers. read as follows:. phrase ‘‘DHS, or other duly accredited (e) Review of the denial of a national officers or agents of the United States,’’. permit—(1) By the Executive Assistant § 111.23 Retention of records. ■ 20. In § 111.28: Commissioner. Upon the denial of an (a) Place of retention. A licensed ■ a. Revise the section heading ; application for a national permit under customs broker must maintain the ■ b. Revise paragraph (a); this section, the applicant may file with records referred to in this part, including any records stored in ■ c. Revise paragraph (b); the Executive Assistant Commissioner, ■ d. Redesignte paragraphs (c) and (d) as in writing, additional information or electronic formats, within the customs territory of the United States and in (d) and (e); arguments in support of the denied ■ accordance with the provisions of this e. Add a new paragraph (c); application and may request to appear ■ part and part 163 of this chapter. f. Amend newly redesignated in person, by telephone, or by other paragraph (d) by: * * * * * acceptable means of communication. ■ 1. Removing the words ‘‘Assistant ■ 17. Revise § 111.24 to read as follows: This filing and request must be received Commissioner’’ and adding in their by the Executive Assistant § 111.24 Records confidential. place the words ‘‘appropriate Executive Commissioner within sixty (60) The records referred to in this part Director, Office of Trade,’’; and calendar days of the denial. and pertaining to the business of the ■ 2. Removing the phase ‘‘each port (2) By the Court of International clients serviced by the broker are to be through which a permit has been Trade. Upon a decision of the Executive considered confidential, and the broker granted to the partnership, association, Assistant Commissioner affirming the must not disclose their contents or any or corporation’’ and adding in its place denial of an application for a national information connected with the records the phrase ‘‘the designated Center’’; and permit under this section, the applicant to any persons other than those clients, ■ g. Revising newly redesignated may appeal the decision to the Court of their surety on a particular entry, and paragraph (e). International Trade, provided that the representatives of the Department of The additions and revisions read as appeal action is commenced within Homeland Security (DHS), or other duly follows: sixty (60) calendar days after the date of accredited officers or agents of the entry of the decision by the Executive § 111.28 Responsible supervision and United States, except on subpoena or control. Assistant Commissioner. court order by a court of competent (f) Responsible supervision and jurisdiction, or when authorized in (a) General. Every individual broker control. The individual broker who writing by the client. This operating as a sole proprietor, every qualifies for the national permit will confidentiality provision does not apply licensed member of a partnership that is exercise responsible supervision and to information that properly is available a broker, and every licensed officer of an control (as described in § 111.28 of this from a source open to the public. association or corporation that is a part) over the activities conducted ■ 18. Revise § 111.25 to read as follows: broker must exercise responsible under that national permit. supervision and control (see § 111.1) ■ 15. In § 111.21: § 111.25 Records must be available. over the transaction of the customs ■ a. Redesignate paragraphs (b) and (c) (a) General. During the period of business of the sole proprietorship, as paragraphs (c) and (d); retention, the broker must maintain the partnership, association, or corporation.
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A sole proprietorship, partnership, permit holder must submit to the a copy of the written notice to the association, or corporation must employ director of the designated Center, a list director of the designated Center. When a sufficient number of licensed brokers of the names of persons currently a change in ownership results in the relative to the job complexity, similarity employed by the broker. The list of addition of a new principal to the of subordinate tasks, physical proximity employees must be submitted prior to organization, and whether or not of subordinates, abilities and skills of issuance of a national permit under ownership shares in the broker are employees, and abilities and skills of § 111.19 and before the broker begins to publicly traded, CBP reserves the right the managers. While the determination transact customs business. For each to conduct a background investigation of what is necessary to perform and employee, the broker must provide the on the new principal. The director of maintain responsible supervision and name, social security number, date and the designated Center will notify the control will vary depending upon the place of birth, date of hire, and current broker if CBP objects to the new circumstances in each instance, factors home address. After the initial principal, and the broker will be given which CBP may consider in its submission, an updated list must be a reasonable period of time to remedy discretion and to the extent any are submitted to a CBP-authorized the situation. If the background relevant include, but are not limited to electronic data interchange (EDI) system investigation uncovers information the following: if any of the information required by which would have been the basis for a (1) The training provided to broker this paragraph changes. If a CBP- denial of an application for a broker’s employees; authorized EDI system is not available, license and the principal’s interest in (2) The issuance of instructions and then the information must be provided the broker is not terminated to the guidelines to broker employees; in writing to the director of the satisfaction of the director of the (3) The volume and type of business designated Center. The update must be designated Center, suspension or of the broker; submitted within thirty (30) calendar revocation proceedings may be initiated (4) The reject rate for the various days of the change. under subpart D of this part. For customs transactions relative to overall (2) New employees. Within thirty (30) purposes of this paragraph, a volume; (5) The broker employees’ calendar days of the start of ‘‘principal’’ means any person having at accessibility to current editions of CBP employment of a new employee(s), the least a five (5) percent capital, regulations, the Harmonized Tariff broker must submit a list of new beneficiary or other direct or indirect Schedule of the United States, and CBP employee(s) with the information interest in the business of a broker. ■ issuances; required under paragraph (b)(1) of this 21. In § 111.30: ■ (6) The availability of a sufficient section to a CBP-authorized EDI system. a. Paragraphs (a) and (b) are revised; ■ number of individually licensed brokers The broker may submit a list of the new b. In paragraph (c), the first sentence for necessary consultation with employees or an updated list of all is revised; ■ employees of the broker; employees, specifically noting the new c. In paragraph (d): (7) The frequency of supervisory visits employee(s). If a CBP-authorized EDI ■ 1. The paragraph heading is amended of an individually licensed broker to system is not available, then the by removing the word ‘‘Status’’ and another office of the broker that does not information must be provided in writing adding in its place the words ‘‘Triennial have an individually licensed broker; to the director of the designated Center. status’’; (8) The frequency of audits and (3) Terminated employees. Within ■ 2. Paragraphs (1) through (3) are reviews by an individually licensed thirty (30) calendar days after the revised; broker of the customs transactions termination of employment of an ■ 3. Paragraph (4) is amended by: handled by employees of the broker; employee, the broker must submit a list ■ i. Removing the words ‘‘the port (9) The extent to which the of terminated employee(s) to a CBP- director’’ and the word ‘‘Customs’’ individually licensed broker who authorized EDI system. The broker may before the word ‘‘records’’ and adding in qualifies the permit is involved in the submit a list of the terminated each place the word ‘‘CBP’’; operation of the brokerage and employees or an updated list of all ■ ii. Removing the word ‘‘pays’’ and communications between CBP and the employees, specifically noting the adding in its place the words ‘‘submits broker; terminated employee(s). If a CBP- payment or proof of payment of’’; and (10) Any circumstances which authorized EDI system is not available, ■ iii. Removing the words ‘‘Customs indicate that an individually licensed then the information must be provided Bulletin’’ and adding in their place the broker has a real interest in the in writing to the director of the words ‘‘Federal Register’’; and operations of a broker; designated Center. ■ d. In paragraph (e), remove the words (11) The timeliness of processing (c) Broker’s responsibility. ‘‘each port where the broker was entries and payment of duty, tax, or Notwithstanding a broker’s transacting business within each district other debt or obligation owing to the responsibility for providing the for which a permit has been issued to Government for which the broker is information required in paragraph (b) of the broker’’ and add in their place the responsible, or for which the broker has this section, in the absence of words ‘‘the designated Center’’. received payment from a client; culpability by the broker, CBP will not The revisions read as follows: (12) Communications between CBP hold the broker responsible for the § 111.30 Notification of change in address, and the broker; accuracy of any information that is (13) The broker’s responsiveness and organization, name, or location of business provided to the broker by the employee. action to communications, direction, records; status report; termination of brokerage business. and notices from CBP; * * * * * (14) Communications between the (e) Change in ownership. If the (a) Change of address. A broker is broker and its officer(s); and, ownership of a broker changes and responsible for providing CBP with the (15) The broker’s responsiveness and ownership shares in the broker are not broker’s current addresses, which action to communications and direction publicly traded, the broker must include the broker’s office of record from its officer(s). immediately provide written notice of address as defined in § 111.1 and, if the (b) Employee information—(1) that fact to the appropriate Executive broker is not actively engaged in Current employees. Each national Director, Office of Trade, and must send transacting business as a broker, the
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broker’s non-business address. If a the triennial status report must be filed grounds for suspension or revocation broker does not receive mail at the with the director of the designated under § 111.53 of this part. broker’s office of record or non-business Center. A report received during the * * * * * address, the broker must also provide month of February will be considered ■ 22. Section 111.32 is revised to read CBP with a valid address at which he or filed timely. No form or particular as follows: she receives mail. When address format is required. information changes, or the broker is no (2) Individual—(i) Each individual § 111.32 False information. longer actively engaged in transacting broker must state in the report required A broker must not file or procure or business as a broker, he or she must under paragraph (d)(1) of this section assist in the filing of any claim, or of update his or her address information whether he or she is actively engaged in any document, affidavit, or other within ten (10) calendar days through a transacting business as a broker. If he or papers, known by such broker to be CBP-authorized electronic data she is so actively engaged, the broker false. In addition, a broker must not interchange (EDI) system. If a CBP- must also: give, or solicit or procure the giving of, authorized EDI system is not available, (A) State the name under which, and any information or testimony that the then address updates must be provided the address at which, the broker’s broker knew or should have known was in writing within ten (10) calendar days business is conducted if he or she is a false or misleading in any matter to the director of the designated Center. sole proprietor; pending before the Department of (b) Change in organization. A Homeland Security or to any (B) State the name and address of his partnership, association, or corporation representative of the Department of or her employer if he or she is employed broker must update within ten (10) Homeland Security. A broker also must by another broker, unless his or her calendar days in writing to the director document and report to CBP when the employer is a partnership, association or of the designated Center any of the broker separates from or cancels corporation broker for which he or she following: representation of a client as a result of is a qualifying member or officer for (1) The date on which a licensed determining the client is intentionally purposes of § 111.11(b) or (c)(2); and member or officer ceases to be the attempting to use the broker to defraud qualifying member or officer for (C) State whether or not he or she still or otherwise commit any criminal act purposes of § 111.11(b) or (c)(2), and the meets the applicable requirements of against the U.S. Government. name of the licensed member or officer § 111.11 and § 111.19 of this part and ■ 23. In § 111.36, revise paragraph (c)(3) who will succeed as the license has not engaged in any conduct that to read as follows: qualifier; could constitute grounds for suspension or revocation under § 111.53 of this part. § 111.36 Relations with unlicensed (2) The date on which a licensed persons. employee ceases to be the national (ii) An individual broker not actively permit qualifier for purposes of engaged in transacting business as a * * * * * (c) * * * § 111.19(a), and the name of the broker must provide CBP with the (3) The broker must obtain a customs licensed employee who will succeed as broker’s current mailing address, and power of attorney directly from the the national permit qualifier; and state whether or not he or she still meets importer of record or drawback (3) Any change in the Articles of the applicable requirements of § 111.11 claimant, and not via a freight Agreement, Charter, Articles of and § 111.19 of this part and has not forwarder, to transact customs business Association, or Articles of Incorporation engaged in any conduct that could for that importer of record or drawback relating to the transaction of customs constitute grounds for suspension or claimant. No part of the agreement of business, or any other change in the revocation under § 111.53 of this part. compensation between the broker and legal nature of the organization (for (3) Partnership, association, or the forwarder, nor any action taken example, conversion of a general corporation—(i) Each partnership, pursuant to the agreement, can forbid or partnership to a limited partnership, association, or corporation broker must prevent direct communication between merger with another organization, state in the report required under the importer of record, drawback divestiture of a part of the organization, paragraph (d)(1) of this section the name claimant, or other party in interest and or entry into bankruptcy protection). under which its business as a broker is the broker; and (c) Change in name. A broker who being transacted, the broker’s office of changes his or her name, or who record (see § 111.1), the name and * * * * * ■ proposes to operate under a trade or address of each licensed member of the 24. In § 111.39: ■ fictitious name in one or more States a. Paragraph (a) is revised; partnership or licensed officer of the ■ and is authorized by State law to do so, association or corporation, including the b. Paragraphs (b) and (c) are must submit to the appropriate license qualifier under § 111.11(b) or redesignated as paragraphs (c) and (d); ■ c. A new paragraph (b) is added; and Executive Director, Office of Trade, at (c)(2) and the name of the licensed ■ d. Newly redesignated paragraph (c) is the Headquarters of U.S. Customs and employee who is the national permit amended by: Border Protection, evidence of his or her qualifier under § 111.19(a), and whether ■ 1. Removing the word ‘‘paper’’ and authority to use that name. * * * the partnership, association, or adding in its place the word ‘‘record’’; corporation is actively engaged in * * * * * and (d) Triennial status report—(1) transacting business as a broker. The ■ 2. Adding a sentence to the end of the General. Each broker must file a report must be signed by a licensed paragraph. triennial status report with CBP on member or officer. The additions and revisions reads as February 1 of each third year after 1985. (ii) A partnership, association, or follows: The report must be filed through the corporation broker must state whether CBP-authorized EDI system and or not the partnership, association, or § 111.39 Advice to client. accompanied by payment or valid proof corporation broker still meets the (a) Withheld or false information. A of payment of the triennial status report applicable requirements of § 111.11 and broker must not withhold information fee prescribed in § 111.96(d). If a CBP- § 111.19 of this part and has not engaged relative to any customs business from a authorized EDI system is not available, in any conduct that could constitute client who is entitled to the information.
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The broker must not knowingly impart the underlying events that could cause ■ d. Redesignate paragraph (g) as to a client false information relative to a revocation by operation of law under paragraph (h); and any customs business. this section. If the license or permit of ■ e. Add a new paragraph (g). (b) Due diligence. A broker must a partnership, association, or The addition reads as follows: exercise due diligence to ascertain the corporation is revoked by operation of correctness of any information which law, CBP will notify the organization of § 111.53 Grounds for suspension or the broker imparts to a client, including the revocation. revocation of license or permit. advice to the client on the proper (b) Annual broker permit fee. If a * * * * * payment of any duty, tax, or other debt broker fails to pay the annual permit (g) The broker has been convicted of or obligation owing to the U.S. user fee pursuant to § 111.96(c), the committing or conspiring to commit an Government. permit is revoked by operation of law. act of terrorism as described in section (c) * * *The broker must advise the The director of the designated Center 2332b of title 18, United States Code; client on the proper corrective actions will notify the broker in writing of the or’’ required and retain a record of the failure to pay and the revocation of the * * * * * broker’s communication with the client permit. ■ 30. Revise § 111.55 to read as follows: in accordance with § 111.23 of this part. (c) Publication. Notice of any * * * * * revocation under this section will be § 111.55 Investigation of complaints. published in the Federal Register. Every complaint or charge against a § 111.42 [Amended] * * * * * broker which may be the basis for ■ 25. In § 111.42: ■ 27. In § 111.51: disciplinary action may be forwarded ■ a. Paragraph (a)(1) is amended by ■ a. Paragraph (a) is revised; for investigation to the appropriate removing the word ‘‘Customs’’ and ■ b. Paragraph (b) is amended by: investigative authority within DHS. The adding in its place the word ‘‘customs’’; ■ 1. Removing the words ‘‘Assistant investigative authority will submit a and Commissioner’’ and adding in their final report on the investigation of ■ b. Paragraph (a)(3) is amended by: place the words ‘‘appropriate Executive complaints to the director of the ■ 1. Adding the word ‘‘Executive’’ Director, Office of Trade,’’; and designated Center and send a copy of before the word ‘‘Assistant’’; and ■ 2. Removing the word ‘‘Secretary’’ the report to the appropriate Executive ■ 2. Adding the phrase ‘‘, or his or her and adding in its place the words Director, Office of Trade. designee,’’ after the words ‘‘Assistant ‘‘Executive Assistant Commissioner’’. ■ 31. Revise § 111.56 to read as follows: Commissioner’’. The revision reads as follows: ■ 26. In § 111.45: § 111.56 Review of report on the ■ a. Paragraphs (a), (b), and (c) are § 111.51 Cancellation of license or permit. investigation of complaints. revised; and (a) Without prejudice. The appropriate The director of the designated Center ■ b. In paragraph (d), remove the cross- Executive Director, Office of Trade, may will review the report on the reference ‘‘or (b)’’ in the second cancel a broker’s license or permit investigation of complaints, or if there is sentence. ‘‘without prejudice’’ upon written no report on the investigation of The revisions read as follows: application by the broker if the complaints, other documentary appropriate Executive Director, Office of § 111.45 Revocation by operation of law. evidence, to determine if there is Trade, determines that the application sufficient basis to recommend that (a) License and permit. If a broker that for cancellation was not made in order charges be preferred against the broker. is a partnership, association, or to avoid proceedings for the suspension The Center director will then submit his corporation fails to have, during any or revocation of the license or permit. If or her recommendation with supporting continuous period of 120 days, at least the appropriate Executive Director, reasons to the appropriate Executive one member of the partnership or at Office of Trade, determines that the Director, Office of Trade, for final least one officer of the association or application for cancellation was made determination together with a proposed corporation who holds a valid in order to avoid those proceedings, he statement of charges when individual broker’s license, that failure or she may cancel the license or permit recommending that charges be will, in addition to any other sanction ‘‘without prejudice’’ only with preferred. that may be imposed under this part, authorization from the Executive ■ 32. Revise § 111.57 to read as follows: result in the revocation by operation of Assistant Commissioner. law of the license and the national * * * * * § 111.57 Determination by appropriate permit issued to the partnership, Executive Director, Office of Trade. association, or corporation. If a broker § 111.52 [Amended] The appropriate Executive Director, that is a partnership, association, or ■ 28. Amend § 111.52 by removing the Office of Trade, will make a corporation fails to employ, during any words ‘‘Assistant Commissioner’’ and determination on whether or not continuous period of 180 days, a adding in their place the words charges should be preferred, and will licensed customs broker who is the ‘‘appropriate Executive Director, Office notify the director of the designated national permit qualifier for the broker, of Trade,’’. Center of the decision. that failure will, in addition to any other ■ 29. In § 111.53: sanction that may be imposed under ■ a. Remove the word ‘‘Customs’’ § 111.59 [Amended] this part, result in the revocation by wherever they appear and add in their ■ 33. In § 111.59, paragraphs (a) and (b) operation of law of the national permit place the term ‘‘CBP’’; are amended by removing the word issued to the partnership, association, or ■ b. Amend paragraph (e) by removing ‘‘port’’ before the word ‘‘director’’ and corporation. CBP will notify the broker the words ‘‘Assistant Commissioner’’ adding the words ‘‘of the designated in writing of an impending revocation and adding in their place the words Center’’ after the word ‘‘director’’. by operation of law under this section ‘‘appropriate Executive Director, Office thirty (30) calendar days before the of Trade’’; § 111.60 [Amended] revocation is due to occur, if the broker ■ c. Amend paragraph (f) by removing ■ 34. In § 111.60, remove the word has provided advance notice to CBP of the word ‘‘or’’ following the semicolon; ‘‘port’’ and add the words ‘‘of the
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designated Center’’ after the word (a) * * * ■ 45. Revise § 111.74 to read as follows: ‘‘director’’. (2) By certified mail, return receipt ■ 35. Revise § 111.61 to read as follows: requested, addressed to the broker’s § 111.74 Decision and notice of office of record (or other address as suspension or revocation or monetary penalty. § 111.61 Decision on preliminary provided pursuant to § 111.30). proceedings. If the Executive Assistant The director of the designated Center * * * * * (c) Certified mail; evidence of service. Commissioner finds that one or more of will prepare a summary of any oral When service under this section is by the charges in the statement of charges presentations made by the broker or the certified mail to the broker’s office of is not sufficiently proved, the broker’s attorney and forward it to the record (or other address as provided suspension, revocation, or monetary appropriate Executive Director, Office of pursuant to § 111.30), the receipt of the penalty action may be based on any Trade, together with a copy of each return card signed or marked will be remaining charges if the facts alleged in paper filed by the broker. The director satisfactory evidence of service. the charges are established by the of the designated Center will also give evidence. If the Executive Assistant to the appropriate Executive Director, § 111.64 [Amended] Commissioner in the exercise of Office of Trade, his or her ■ 38. In § 111.64, paragraph (a) is discretion and based solely on the recommendation on action to be taken amended by removing the word ‘‘port’’ record, issues an order suspending a as a result of the preliminary and adding the words ‘‘of the designated broker’s license or permit for a specified proceedings. If the appropriate Center’’ after the word ‘‘director’’. period of time or revoking a broker’s Executive Director, Office of Trade, license or permit or, except in a case determines that the broker has § 111.66 [Amended] described in § 111.53(b)(3), assessing a satisfactorily responded to the proposed ■ 39. Section 111.66 is amended by monetary penalty in lieu of suspension charges and that further proceedings are removing the words ‘‘Secretary of or revocation, the appropriate Executive not warranted, he or she will so inform Homeland Security, or his designee,’’ Director, Office of Trade, will promptly the director of the designated Center and adding in its place the words provide written notification of the order who will notify the broker. If no ‘‘Executive Assistant Commissioner’’. to the broker and, unless an appeal from response is filed by the broker or if the § 111.67 [Amended] the order of the Executive Assistant appropriate Executive Director, Office of ■ Commissioner is filed by the broker (see Trade, determines that the broker has 40. In § 111.67: ■ a. Paragraph (d) is amended by § 111.75), the appropriate Executive not satisfactorily responded to all of the Director, Office of Trade, will publish a proposed charges, he or she will advise removing the word ‘‘port’’ wherever it appears and adding the words ‘‘of the notice of the suspension or revocation, the director of the designated Center of designated Center’’ after the word or the assessment of a monetary penalty, that fact and instruct him or her to ‘‘director’’ wherever it appears; and in the Federal Register. If no appeal prepare, sign, and serve a notice of ■ b. Paragraph (e) is removed. from the order of the Executive charges and the statement of charges. If Assistant Commissioner is filed, an one or more of the charges in the § 111.69 [Amended] order of suspension or revocation or proposed statement of charges was ■ 41. Section 111.69 is amended by assessment of a monetary penalty will satisfactorily answered by the broker in removing the words ‘‘Secretary of become effective sixty (60) calendar the preliminary proceedings, the Homeland Security, or his designee’’ days after issuance of written appropriate Executive Director, Office of and adding in their place the words notification of the order unless the Trade, will instruct the director of the ‘‘Executive Assistant Commissioner’’. Executive Assistant Commissioner finds designated Center to omit those charges that a more immediate effective date is from the statement of charges. § 111.70 [Amended] ■ in the national or public interest. If a ■ 36. In § 111.62: 42. Section 111.70 is amended by monetary penalty is assessed and no ■ a. Revise paragraph (d); and removing the words ‘‘Secretary of appeal from the order of the Executive ■ b. Amend paragraph (e) by removing Homeland Security, or his designee’’ Assistant Commissioner is filed, the phrase ‘‘, in duplicate’’ and the word and adding in their place the words payment of the penalty must be ‘‘port’’, and adding the words ‘‘of the ‘‘Executive Assistant Commissioner’’. tendered within sixty (60) calendar days designated Center’’ after the word after the effective date of the order, and, ‘‘director’’. § 111.71 [Amended] The revision reads as follows: ■ 43. Section 111.71 is amended by if payment is not tendered within that removing the words ‘‘Secretary of sixty (60)-day period, the license or § 111.62 Contents of notice of charges. Homeland Security, or his designee’’ permit of the broker will immediately be * * * * * and adding in their place the words suspended until payment is made. (d) The broker will be notified of the ‘‘Executive Assistant Commissioner’’. § 111.75 [Amended] time and place of a hearing on the ■ 44. Revise § 111.72 to read as follows: ■ charges; and 46. In § 111.75: § 111.72 Dismissal subject to new ■ a. In the section heading, remove the * * * * * proceedings. word ‘‘Secretary’s’’ and add in its place ■ 37. In § 111.63: ■ a. Remove the word ‘‘port’’wherever it If the Executive Assistant the words ‘‘Executive Assistant Commissioner finds that the evidence appears and add the words ‘‘of the Commissioner’s’’; produced at the hearing indicates that a ■ designated Center’’ after the word b. Remove the words ‘‘Secretary of proper disposition of the case cannot be ‘‘director’’ wherever it appears; and Homeland Security, or his designee’’ ■ b. Paragraphs (a)(2) and (c) are made on the basis of the charges and add in their place the words revised. preferred, he or she may instruct the ‘‘Executive Assistant Commissioner’’; The revisions read as follows: director of the designated Center to and serve appropriate charges as a basis for ■ c. Remove the word ‘‘Secretary’s’’ and § 111.63 Service of notice and statement new proceedings to be conducted in add in its place the words ‘‘Executive of charges. accordance with the procedures set Assistant Commissioner’s’’. * * * * * forth in this subpart. ■ 47. In § 111.76:
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■ a. In paragraph (a), remove the word § 111.78 [Amended] individual license application and $500 ‘‘written’’ and the words ‘‘in duplicate’’ ■ 49. Section 111.78 is amended by for a partnership, association, or in the first sentence; and remove the removing the word ‘‘port’’ and adding corporation license application to defray words ‘‘Assistant Commissioner’’ and the words ‘‘of the designated Center’’ the costs to CBP in processing the add in their place the words after the word ‘‘director’’. application. Each individual who ‘‘appropriate Executive Director, Office intends to take the examination of Trade,’’; and § 111.79 [Amended] provided for in § 111.13 of this part ■ b. Paragraph (b) is revised. ■ 50. Section 111.79 is amended by must pay a $390 examination fee before The revision reads as follows: removing the words ‘‘Assistant taking the examination. An individual Commissioner’’ and adding in their § 111.76 Reopening the case. who submits an application for a license place the words ‘‘appropriate Executive must also pay a fingerprint check and * * * * * Director, Office of Trade,’’ wherever (b) Procedure. The appropriate processing fee; the director of the they appear. designated Center will inform the Executive Director, Office of Trade, will ■ 51. Revise § 111.81 to read as follows. forward the application, together with a applicant of the current Federal Bureau recommendation for action thereon, to § 111.81 Settlement and compromise. of Investigation fee for conducting fingerprint checks and the CBP the Executive Assistant Commissioner. The Executive Assistant fingerprint processing fee, the total of The Executive Assistant Commissioner Commissioner, may settle and which must be paid to CBP before may grant or deny the application to compromise any disciplinary reopen the case and may order the proceeding which has been instituted further processing of the application taking of additional testimony before the under this subpart according to the will occur. appropriate Executive Director, Office of terms and conditions agreed to by the (b) Permit application fee. An Trade. The appropriate Executive parties including, but not limited to, the application fee of $100 must be paid in Director, Office of Trade, will notify the assessment of a monetary penalty in lieu connection with a national permit applicant of the decision by the of any proposed suspension or issued under § 111.19 of this part to Executive Assistant Commissioner. If revocation of a broker’s license or defray the processing costs, including the Executive Assistant Commissioner permit. costs associated with an application for grants the application and orders a reinstatement of a permit that was hearing, the appropriate Executive § 111.91 [Amended] revoked by operation of law or Director, Office of Trade, will set a time ■ 52. In § 111.91: otherwise. and place for the hearing and give due ■ a. The introductory text is amended * * * * * written notice of the hearing to the by removing the word ‘‘Customs’’ and applicant. The procedures governing the adding in its place the term ‘‘CBP’’; and (d) Triennial status report fee. The new hearing and recommended decision ■ b. Paragraph (a) is amended by triennial status report required under of the hearing officer will be the same removing the phrase ’’ §§ 111.53 (a) § 111.30(d) must be accompanied by a as those governing the original through (f)’’ and adding in its place the fee of $100 to defray the costs of proceeding. The original order of the phrase ‘‘§ 111.53 (a) through (g)’’. administering the reporting Executive Assistant Commissioner will requirement. The report must be filed remain in effect pending conclusion of § 111.92 [Amended] through the CBP-authorized EDI system the new proceedings and issuance of a ■ 53. In § 111.92, amend paragraph (a) and accompanied new order under § 111.77. by removing the word ‘‘Customs’’ and by payment or valid proof of payment ■ 48. Revise § 111.77 to read as follows: adding in its place the term ‘‘CBP’’. of the triennial status report fee § 111.77 Notice of vacated or modified § 111.94 [Amended] prescribed by this section. If a CBP- order. ■ 54. Section 111.94 is amended by authorized EDI system is not available, If, pursuant to § 111.76 or for any removing the word ‘‘Customs’’ wherever the triennial status report must be filed other reason, the Executive Assistant it appears and adding in its place the with the director of the designated Commissioner issues an order vacating term ‘‘CBP’’. Center. or modifying an earlier order under ■ 55. In § 111.96, revise paragraphs (a), * * * * * § 111.74 suspending or revoking a (b) and (d) to read as follows. Dated: March 3, 2020. broker’s license or permit, or assessing a monetary penalty, the appropriate § 111.96 Fees. Chad F. Wolf, Executive Director, Office of Trade, will (a) License fee; examination fee; Acting Secretary, Department of Homeland notify the broker in writing and will fingerprint fee. Each applicant for a Security. publish a notice of the new order in the broker’s license pursuant to § 111.12 of [FR Doc. 2020–04711 Filed 6–4–20; 8:45 am] Federal Register. this part must pay a fee of $300 for an BILLING CODE 9111–14–P
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Part IV
Bureau of Consumer Financial Protection
12 CFR Part 1005 Remittance Transfers Under the Electronic Fund Transfer Act (Regulation E); Final Rule
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BUREAU OF CONSUMER FINANCIAL governing international remittance or fewer remittance transfers to that PROTECTION transfers. First, the Bureau is adopting designated recipient’s institution in the amendments to increase a safe harbor prior calendar year. 12 CFR Part 1005 threshold in the Rule. Under both EFTA With respect to both exceptions, the [Docket No. CFPB–2019–0058] and the Rule, the term ‘‘remittance Bureau is adopting a transition period transfer provider’’ is defined, in part, to for insured institutions that exceed, as RIN 3170–AA96 mean any person that provides applicable, the 1,000-transfer or 500- remittance transfers for a consumer in transfer thresholds in a certain year. Remittance Transfers Under the the normal course of its business.3 As This transition period will allow these Electronic Fund Transfer Act originally adopted, the normal course of institutions to continue to provide (Regulation E) business safe harbor threshold stated estimates for a reasonable period of time AGENCY: Bureau of Consumer Financial that a person is deemed not to be while they come into compliance with Protection. providing remittance transfers for a the requirement to provide exact consumer in the normal course of its amounts. Additionally, the Bureau ACTION: Final rule; official business if the person provided 100 or released a statement on April 10, 2020 interpretation. fewer remittance transfers in the announcing that in light of the COVID– SUMMARY: The Electronic Fund Transfer previous calendar year and provides 100 19 pandemic, for remittance transfers Act, as amended by the Dodd-Frank or fewer remittance transfers in the that occur on or after July 21, 2020, and Wall Street Reform and Consumer current calendar year.4 The Bureau is before January 1, 2021, the Bureau does Protection Act, establishes certain adopting amendments to increase the not intend to cite in an examination or protections for consumers sending normal course of business safe harbor initiate an enforcement action in international money transfers, or threshold from 100 transfers annually to connection with the disclosure of exact 5 remittance transfers. The Bureau of 500 transfers annually. These changes third-party fees and exchange rates Consumer Financial Protection’s to the normal course of business safe against any insured institution that will (Bureau) remittance rule in Regulation E harbor threshold appear in the be newly required to disclose exact (Remittance Rule or Rule) implements definition of remittance transfer third-party fees and exchange rates after these protections. The Bureau is provider in § 1005.30(f) and related the temporary exception expires. The temporary exception and its amending Regulation E and the official commentary. statutorily mandated expiration date are interpretations of Regulation E to Second, the Bureau is adopting in existing § 1005.32(a)(1) and (2); the provide tailored exceptions to address tailored exceptions to the Remittance Bureau’s amendments to add the new compliance challenges that insured Rule to address compliance challenges exceptions appear in new institutions may face in certain insured institutions may face in certain circumstances upon the expiration of a § 1005.32(b)(4) and (5) and related circumstances upon the expiration of a commentary, along with conforming statutory exception that allows insured statutory exception that allows insured institutions to disclose estimates to changes in existing §§ 1005.32(c), institutions to disclose estimates instead 1005.33(a)(1)(iii)(A), and 1005.36(b)(3) of exact amounts to consumers. That consumers of the exchange rate and covered third-party fees instead of exact and in the existing commentary exception expires on July 21, 2020. In accompanying §§ 1005.32, addition, the Bureau is increasing a safe amounts (the temporary exception). This exception expires on July 21, 2020. 1005.32(b)(1), (c)(3) and (d), and harbor threshold in the Rule related to 1005.36(b). Lastly, the Bureau is whether a person makes remittance Specifically, with respect to the exchange rate, the Bureau is adopting a adopting technical corrections in transfers in the normal course of its § 1005.32(c)(4) and existing commentary business. new, permanent exception that permits insured institutions to estimate the that accompany §§ 1005.31(b)(1)(viii) DATES: This final rule is effective July exchange rate for a remittance transfer and 1005.32(b)(1). These technical 21, 2020. to a particular country if, among other corrections do not change or alter the FOR FURTHER INFORMATION CONTACT: things, the designated recipient will meaning of the existing regulatory text David Gettler, Paralegal Specialist, receive funds in the country’s local and commentary. Yaritza Velez, Counsel, or Krista Ayoub, currency and the insured institution Due to changes in requirements by the or Jane Raso, Senior Counsels, Office of made 1,000 or fewer remittance Office of the Federal Register, when Regulations, at 202–435–7700. If you transfers in the prior calendar year to amending commentary the Bureau is require this document in an alternative that country when the designated now required to reprint certain electronic format, please contact CFPB_ recipients received funds in the subsections being amended in their [email protected]. country’s local currency. With respect to entirety rather than providing more targeted amendatory instructions. The SUPPLEMENTARY INFORMATION: covered third-party fees, the Bureau is adopting a new, permanent exception sections of commentary included in this I. Summary of the Final Rule that will permit insured institutions to document show the language of those sections as amended by this final rule. The Bureau is adopting several estimate covered third-party fees for a The Bureau is releasing an unofficial, amendments to the Remittance Rule,1 remittance transfer to a designated informal redline to assist industry and which implements section 919 of the recipient’s institution if, among other other stakeholders in reviewing the Electronic Fund Transfer Act (EFTA) 2 things, the insured institution made 500 changes that it is making to the 1 77 FR 6194 (Feb. 7, 2012); as amended on 77 3 EFTA section 919(g)(3), codified at 15 U.S.C. regulatory text and commentary of the 6 FR 40459 (July 10, 2012), 77 FR 50243 (Aug. 20, 1693o–1(g)(3); 12 CFR 1005.30(f)(1). Remittance Rule. 2012), 78 FR 6025 (Jan. 29, 2013), 78 FR 30661 (May 4 12 CFR 1005.30(f)(2)(i). 22, 2013), 78 FR 49365 (Aug. 14, 2013), 79 FR 5 As used in this document, ‘‘100 transfers 6 This redline can be found on the Bureau’s 55970 (Sept. 18, 2014), 81 FR 70319 (Oct. 12, 2016), annually’’ or ‘‘500 transfers annually’’ refers to the regulatory implementation page for the Remittance and 81 FR 83934 (Nov. 22, 2016) (together, normal course of business safe harbor threshold, Rule, at https://www.consumerfinance.gov/policy- Remittance Rule or Rule). which is based on the number of remittance compliance/guidance/remittance-transfer-rule/. If 2 15 U.S.C. 1693 et seq. EFTA section 919 is transfers provided in the previous and current any conflicts exist between the redline and the text codified at 15 U.S.C. 1693o–1. calendar years. of the Remittance Rule or this final rule, the rules
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II. Background volume of all remittance transfers sent banking network is a decentralized for consumers in the United States (43 network of bilateral banking A. Market Overview percent attributed to banks and 2 relationships between the world’s tens Consumers in the United States send percent attributed to credit unions). of thousands of banks and credit unions. billions of dollars in remittance In addition, MSBs differ from banks Most institutions only maintain transfers to recipients in foreign and credit unions in the means by relationships with a relatively small countries each year. The term which they provide remittance transfers. number of correspondent banks but can ‘‘remittance transfers’’ is sometimes Traditionally, MSBs sending remittance nonetheless ensure that their customers’ used to describe consumer-to-consumer transfers have predominantly relied on remittance transfers are able to reach a transfers of small amounts of money, a storefront model and a network of the wide number of recipient financial often made by immigrants supporting MSBs’ employees and agents (such as institutions worldwide. Banks and friends and relatives in other countries. grocery stores and neighborhood credit unions can reach these The term may also include, however, convenience stores).9 Because MSBs institutions even if the banks and credit consumer-to-business payments of receive and disburse funds either larger amounts, for instance, to pay through their own employees or agents, unions do not have control over, or a bills, tuition, or other expenses. the payment system by which MSBs relationship with, all of the participants Money services businesses (MSBs) as facilitate remittance transfers is involved in the transmission of a well as banks and credit unions send typically referred to as a ‘‘closed remittance transfer. As discussed in remittance transfers on behalf of network’’ payment system. A single greater detail in the section-by-section consumers. MSBs, however, provide the entity in this system—the MSB—exerts analysis of § 1005.32(a) below, the overwhelming majority of remittance a high degree of end-to-end control over decentralized nature of the transfers for consumers in the United a transaction. Such level of control correspondent banking system has States. For example, in the Bureau’s means, among other things, that an presented certain challenges to the October 2018 Remittance Rule entity that uses a closed network ability of banks and credit unions to Assessment Report,7 which is discussed payment system to send remittance disclose precise and reliable in detail below, the Bureau observed transfers can disclose to its customers information about the terms and costs of that in 2017, MSBs provided precise and reliable information about remittance transfers to its customers approximately 95.5 percent of all the terms and costs of a remittance before these institutions send remittance remittance transfers for consumers. The transfer before the entity sends the transfers on their customers’ behalf. average amount of a remittance transfer remittance transfer on its customers’ sent by MSBs on behalf of consumers behalf. B. Remittance Rulemaking Under was approximately $381. In contrast to MSBs, banks and credit Section 1073 of the Dodd-Frank Act Banks and credit unions generally unions have predominantly utilized an Prior to the Dodd-Frank Wall Street send fewer remittance transfers on ‘‘open network’’ payment system made Reform and Consumer Protection Act behalf of consumers than MSBs. The up of the correspondent banking (Dodd-Frank Act),12 Bureau found that in 2017, banks and network 10 to send remittance transfers remittance transfers credit unions conducted 4.2 and 0.2 on behalf of consumers.11 The open fell largely outside of the scope of percent of all remittance transfers, network payment system based on the Federal consumer protection laws. respectively. However, the average correspondent banking network lacks a Section 1073 of the Dodd-Frank Act amount that banks and credit unions single, central operator. This feature amended EFTA by adding new section transferred was much greater than the distinguishes it from closed network 919, which created a comprehensive average amount transferred by MSBs. payment systems. The correspondent system for protecting consumers in the For example, based on the Bureau’s United States who send remittance analysis, the average transfer size of a 9 Id. at 54. As noted in the Assessment Report, transfers to individuals and businesses increased access to digital devices has impacted the in foreign countries. EFTA applies bank-sent remittance transfer was more traditional MSB model by enabling more MSB- than $6,500.8 As such, based on facilitated transfers to be conducted via the internet. broadly in terms of the types of information it received as part of its See also id. at 102. remittance transfers it covers. EFTA assessment of the Remittance Rule in 10 Generally speaking, a correspondent banking section 919(g)(2) defines ‘‘remittance network is made up of individual correspondent transfer’’ as the electronic transfer of connection with the Assessment Report, banking relationships, which consist of bilateral while banks and credit unions provide arrangements under which one bank funds by a sender in any State to a small percentage of the overall number (correspondent) holds deposits owned by other designated recipients located in foreign of remittance transfers, because the banks (respondents) and provides payment and countries that are initiated by a other services to those respondent banks. See, e.g., remittance transfer provider; only small average amount of the transfers they Bank for Int’l Settlements, Correspondent Banking, send is higher than MSBs, banks and at 9 (2016) (2016 BIS Report), https://www.bis.org/ dollar transactions are excluded from credit unions collectively sent cpmi/publ/d147.pdf. this definition.13 EFTA also applies approximately 45 percent of the dollar 11 The Bureau notes that some methods of broadly in terms of the providers subject sending cross-border money transfers, including remittance transfers, include elements of closed and themselves, as published in the Federal Register, open payment networks and some providers may 12 Public Law 111–203, 124 Stat. 1376 (2010). are the controlling documents. also rely on both types of systems to facilitate 13 15 U.S.C. 1693o–1(g)(2). As adopted in the 7 Bureau of Consumer Fin. Prot., Remittance Rule different transfers. For example, the Bureau Remittance Rule, the term ‘‘remittance transfer’’ Assessment Report (Oct. 2018, rev. Apr. 2019) understands that banks may offer low-cost means: ‘‘[The] electronic transfer of funds requested (Assessment Report), https:// international fund transfers to its commercial by a sender to a designated recipient that is sent by .consumerfinance.gov///bcfp_remittance-rule- clients through the use of the automated clearing a remittance transfer provider. The term applies assessment_report_corrected_2019-03.pdf. The house (ACH) system, and a minority of banks also regardless of whether the sender holds an account Bureau’s initial rule and certain amendments took offer international ACH to their consumer clients. with the remittance transfer provider, and effect in October 2013. As explained in the See Bd. of Governors of the Fed. Reserve Sys., regardless of whether the transaction is also an Assessment Report, the Assessment Report Report to Congress on the Use of the ACH System electronic fund transfer, as defined in [subpart A of considers all rules that took effect through and Other Payment Mechanisms for Remittance Regulation E].’’ The Rule’s definition specifically November 2014 and refers to them collectively as Transfers to Foreign Countries, at 7 (May 2019), excludes (1) transfer amounts of $15 or less and (2) the Remittance Rule. See Assessment Report at 115. https://www.federalreserve.gov/publications/2019- certain securities and commodities transfers. 12 8 Id. at 73. may-ach-report-other-payment-mechanisms.htm. CFR 1005.30(e).
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to it, including MSBs, banks, and credit exception that would permit insured 2019 Proposal and one comment letter unions. institutions to estimate covered third- from an anonymous commenter who The Bureau adopted subpart B of party fees for a remittance transfer to a supported it. Regulation E to implement EFTA particular designated recipient’s Lastly, the Bureau notes that some of section 919 through a series of institution if, among other things, the the comments the Bureau received rulemakings that were finalized in 2012 insured institution made 500 or fewer raised issues that are beyond the scope and 2013, and which became effective remittance transfers to that designated of the 2019 Proposal. For example, a on October 28, 2013.14 The Bureau recipient’s institution in the prior number of commenters that represented subsequently amended subpart B calendar year. credit unions, their trade associations, several times.15 The Rule provides three Along with these amendments, the and credit union members urged the significant consumer protections: It Bureau proposed to make several Bureau to eliminate the Remittance specifies the information that must be conforming changes in the existing Rule Rule’s cancellation rights or modify the disclosed to consumers who send and related commentary. The 2019 existing requirements to enable remittance transfers, including Proposal proposed an effective date of consumers to waive their rights. To the information related to the exact cost of July 21, 2020 for all these amendments. extent that a comment was within the a remittance transfer; it provides Finally, the 2019 Proposal sought scope of the 2019 Proposal, the Bureau consumers with cancellation and refund comment on a permanent exception in has considered it in adopting this final rights; and it specifies procedures and the Rule (in § 1005.32(b)(1)) permitting rule. providers to use estimates for transfers other requirements for providers to B. Other Outreach follow in resolving errors. to certain countries and the process for adding countries to the safe harbor Prior to the issuance of the 2019 III. Summary of the Rulemaking countries list maintained by the Bureau. Proposal, the Bureau received feedback Process The comment period for the 2019 regarding the Remittance Rule through A. 2019 Proposal Proposal closed on January 21, 2020. both formal and informal channels. In The Bureau received approximately 100 addition, over the years, the Bureau has On December 3, 2019, the Bureau comments and three ex parte engaged in ongoing market monitoring issued a notice of proposed rulemaking communications from a trade and other outreach to industry and other relating to the expiration of the association representing large bank stakeholders regarding the Remittance temporary exception and the normal remittance providers and a trade Rule. The following is a brief summary course of business safe harbor threshold, association representing credit unions, of some of this outreach. which was published in the Federal respectively. Nearly half of the Register on December 6, 2019 (2019 comments were submitted by industry Assessment and 2017–2018 RFIs Proposal).16 In the 2019 Proposal, the commenters, specifically banks and The Bureau conducted an assessment Bureau proposed to increase the normal credit unions, their trade associations, of the Remittance Rule (Assessment), as course of business safe harbor threshold and their service providers. Commenters required pursuant to section 1022(d) of from 100 transfers annually to 500 also included a trade association the Dodd-Frank Act.17 In 2017, the transfers annually. The Bureau also representing MSBs, several consumer Bureau issued a request for information proposed tailored exceptions to the groups, a regional bank of the Federal (RFI) in connection with the Remittance Rule to address compliance Reserve System, a virtual currency Assessment, and received challenges that insured institutions company, and individuals. approximately 40 comment letters.18 As might face upon the expiration of the Industry commenters were generally referenced above, in October 2018, the temporary exception on the ability of supportive of the Bureau’s proposed Bureau published the results of the insured institutions to comply with the changes to increase the normal course of Assessment in the Assessment Report, Rule’s requirements to disclose the business safe harbor threshold from 100 providing insights into the effectiveness exchange rate and covered third-party transfers annually to 500 transfers of the Rule and its provisions. fees. Specifically, with respect to the annually. They were also generally Separately, in 2018, the Bureau issued exchange rate, the Bureau proposed to supportive of the Bureau’s proposal to a series of RFIs as part of a call for adopt a new, permanent exception in adopt new tailored exceptions from the evidence to ensure the Bureau is the Remittance Rule that would permit general requirement to disclose exact fulfilling its proper and appropriate insured institutions to estimate the amounts in order to address the impact functions to best protect consumers, and exchange rate for a remittance transfer of the temporary exception’s expiration received a total of approximately 34 to a particular country if, among other on July 21, 2020, but some industry comments on the Remittance Rule in things, the designated recipient will commenters also noted that while they response.19 receive funds in the country’s local generally supported the Bureau’s currency and the insured institution proposal to address the impact of the 2019 RFI made 1,000 or fewer remittance expiration of the temporary exception, Based on comments and other transfers in the prior calendar year to they also thought the Bureau’s proposed feedback from various remittance that country when the designated amendments did not go far enough to transfer providers and their trade recipients received funds in the preserve the use of the temporary country’s local currency. With respect to exception. In contrast, consumer groups 17 Section 1022(d) requires the Bureau to conduct covered third-party fees, the Bureau were opposed to the proposed changes. an assessment of each significant rule or order adopted by the Bureau under Federal consumer proposed to adopt a new, permanent There were approximately 60 financial law and to publish a report of such comment letters submitted by assessment not later than five years after the rule 14 77 FR 6194 (Feb. 7, 2012); as amended on 77 individuals. Credit union members or order’s effective date. 12 U.S.C. 5512(d). FR 40459 (July 10, 2012); 77 FR 50243 (Aug. 20, submitted nearly all of these letters and 18 82 FR 15009 (Mar. 24, 2017). The comment 2012); 78 FR 6025 (Jan. 29, 2013); 78 FR 30661 (May they expressed support for the 2019 letters are available on the public docket at https:// 22, 2013); and 78 FR 49365 (Aug. 14, 2013). www.regulations.gov/document?D=CFPB-2017- 15 79 FR 55970 (Sept. 18, 2014), 81 FR 70319 (Oct. Proposal. The Bureau also received one 0004-0001. See also Assessment Report at 149. 12, 2016), and 81 FR 83934 (Nov. 22, 2016). comment letter from an anonymous 19 https://www.regulations.gov/ 16 84 FR 67132 (Dec. 6, 2019). commenter who did not support the document?D=CFPB-2017-0004-0001.
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associations in response to the RFIs V. Section-by-Section Analysis basis for identifying persons who described above, as well as its own occasionally provide remittance Section 1005.30 Remittance Transfer analysis, the Bureau published an RFI transfers, but not in the normal course Definitions on April 20, 2019 (2019 RFI) 20 to seek of their business. The Bureau also noted information and data about the potential 30(f) Remittance Transfer Provider that 100 transfers per year is equivalent negative effects of the expiration of the 30(f)(2) Normal Course of Business to an average of approximately two temporary exception and potential transfers per week, or the number of options to address its impact. The 2019 EFTA section 919(g)(3) defines transfers needed to satisfy the needs of RFI also sought information on possible ‘‘remittance transfer provider’’ to be a a handful of customers sending money changes to the current normal course of person or financial institution providing abroad monthly.31 business safe harbor threshold in and remittance transfers for a consumer in In the 2019 Proposal, the Bureau the ‘‘normal course of its business.’’ 23 proposed to raise the normal course of whether an exception for ‘‘small 24 financial institutions’’ may be The Rule uses a similar definition. It business safe harbor threshold from 100 appropriate. states that whether a person provides remittance transfers to 500 remittance remittance transfers in the normal transfers, in response to feedback it has IV. Legal Authority course of its business depends on the received over the years from banks, facts and circumstances, including the Section 1073 of the Dodd-Frank Act credit unions, and their trade total number and frequency of transfers associations in which these entities created a new section 919 of EFTA sent by the provider.25 The Rule requiring remittance transfer providers asserted that the 100-transfer threshold currently contains a safe harbor is too low. For reasons set forth herein, to provide disclosures to senders of whereby a person that provides 100 or remittance transfers, pursuant to rules the Bureau is adopting this aspect of the fewer remittance transfers in each of the proposal as proposed. prescribed by the Bureau. In particular, previous and current calendar years is providers must provide a sender a deemed not to be providing remittance The Bureau’s Proposal written pre-payment disclosure transfers in the normal course of its The Bureau proposed to raise the containing specified information business, and therefore is outside of the normal course of business safe harbor applicable to the sender’s remittance Rule’s coverage.26 threshold from 100 to 500 remittance transfer, including the amount to be When the Bureau finalized the normal transfers by proposing to revise part of received by the designated recipient. course of business 100-transfer safe existing § 1005.30(f)(2)(i). The proposed The provider must also provide a harbor threshold in August 2012, it revision stated that a person is deemed written receipt that includes the stated that it intended to monitor that not to be providing remittance transfers information provided on the pre- threshold over time.27 The Bureau for a consumer in the normal course of payment disclosure, as well as acknowledged, among other things, that its business if the person provided 500 21 additional specified information. In the administrative record contained or fewer transfers in the previous addition, EFTA section 919(d) directs little data on the overall distribution calendar year and provides 500 or fewer the Bureau to promulgate rules and frequency of remittance transfers to transfers in the current calendar year. regarding appropriate error resolution support treating any particular number The Bureau also proposed to revise part standards and cancellation and refund of transactions as outside the normal of existing § 1005.30(f)(2)(ii) regarding policies. course of business.28 After explaining the current normal course of business In addition to the Dodd-Frank Act’s the limitations in the data it did have, safe harbor transition period to reflect statutory mandates, EFTA section 904(a) the Bureau stated that it did not believe the proposed 500-transfer normal course authorizes the Bureau to prescribe it could rely on the data received to of business safe harbor threshold and regulations necessary to carry out the describe the number of remittance the proposed effective date of July 21, purposes of EFTA. The express transfers provided by ‘‘typical’’ entities 2020. Specifically, the proposed purposes of EFTA, as amended by the or to identify a clear pattern in the revision to § 1005.30(f)(2)(ii) stated that Dodd-Frank Act, are to establish ‘‘the distribution of providers by the number if, beginning on July 21, 2020, a person rights, liabilities, and responsibilities of of transfers provided.29 The Bureau that provided 500 or fewer remittance participants in electronic fund and concluded that the data collected at the transfers in the previous calendar year remittance transfer systems’’ and to time provided some additional support provides more than 500 remittance provide ‘‘individual consumer for the 100-transfer normal course of transfers in the current calendar year, rights.’’ 22 EFTA section 904(c) further business safe harbor threshold, and that and if that person is then providing provides that regulations prescribed by the threshold was ‘‘not so low as to be remittance transfers for a consumer in the Bureau may contain any meaningless.’’ 30 The Bureau the normal course of its business classifications, differentiations, or other determined at that time that a normal pursuant to § 1005.30(f)(1), the person provisions, and may provide for such course of business safe harbor threshold has a reasonable period of time, not to adjustments or exceptions for any class of 100 was high enough that persons exceed six months, to begin complying of electronic fund transfers or would not risk exceeding the safe harbor with subpart B of Regulation E. Further, remittance transfers that the Bureau based on making transfers for just two the Bureau proposed to add new deems necessary or proper to effectuate or three customers each month, while § 1005.30(f)(2)(iii) to address the the purposes of the title, to prevent low enough to serve as a reasonable transition period for persons qualifying circumvention or evasion, or to facilitate for the normal course of business safe compliance. As described in more detail 23 EFTA section 919(g)(3); 15 U.S.C. 1693o– harbor. Proposed § 1005.30(f)(2)(iii) 1(g)(3). stated that if a person who previously below, the changes herein are adopted 24 See 12 CFR 1005.30(f)(1). provided remittance transfers in the pursuant to the Bureau’s authority 25 Comment 30(f)–2.i. under EFTA section 904(a) and (c). 26 12 CFR 1005.30(f)(2)(i). normal course of its business in excess 27 77 FR 50243, 50252 (Aug. 20, 2012). of the normal course of business safe 20 84 FR 17971 (Apr. 29, 2019). 28 Id. at 50251–52. harbor threshold set forth in 21 EFTA section 919(a); 15 U.S.C. 1693o–1(a). 29 Id. 22 EFTA section 902(b); 15 U.S.C. 1693(b). 30 Id. at 50252. 31 Id. at 50251.
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§ 1005.30(f)(2) determines that, as of a beginning on the proposed effective date identified themselves as credit union particular date, it will qualify for the of July 21, 2020. This proposed members, and one anonymous normal course of business safe harbor, it comment was based on the example in commenter generally supported the may cease complying with the existing comment 30(f)–2.iv, with proposal to increase the normal course requirements of subpart B of Regulation modifications to reflect the changes the of business safe harbor threshold from E with respect to any remittance Bureau proposed to § 1005.30(f)(2), 100 to 500 remittance transfers transfers for which payment is made which are discussed in detail above. annually. The credit union members after that date. Proposed Finally, the Bureau proposed to add and about half of the industry § 1005.30(f)(2)(iii) also provided that the new comment 30(f)–2.v to explain a commenters, including the credit requirements of EFTA and Regulation E, person’s continued obligations under unions and credit union trade including those set forth in §§ 1005.33 the Rule with respect to transfers for associations, recommended a higher and 1005.34, as well as the requirements which payment was made before the threshold of 1,000 transfers; one set forth in § 1005.13, continue to apply person qualifies for the normal course of community bank trade association to transfers for which payment is made business safe harbor. The proposed recommended 1,200 transfers. In prior to that date. comment stated that proposed contrast, consumer groups opposed the The Bureau also proposed changes to § 1005.30(f)(2)(iii) addresses situations proposal and urged the Bureau instead the existing commentary accompanying where a person who previously was to lower the current normal course of § 1005.30(f) to align the commentary required to comply with subpart B of business safe harbor threshold.32 with the proposed changes to existing Regulation E newly qualifies for the Similar to the feedback the Bureau § 1005.30(f)(2) and provide further revised normal course of business safe has received on the normal course of clarification related to the proposed harbor in proposed § 1005.30(f)(2)(i). It business safe harbor threshold in the 500-transfer normal course of business explained that proposed past, industry commenters stated that safe harbor threshold. Specifically, the § 1005.30(f)(2)(iii) states that the compliance costs related to the Bureau proposed to revise the last requirements of EFTA and Regulation E, Remittance Rule have caused many sentence in existing comment 30(f)–2.i including those set forth in §§ 1005.33 credit unions and community banks that to avoid potential conflict or confusion and 1005.34 (which address procedures provide remittance transfers as an with the proposed normal course of for resolving errors and procedures for accommodation to their account- business safe harbor threshold of 500 cancellation and refund of remittance holding customers to limit the number transfers. The Bureau also proposed to transfers, respectively), as well as the of transfers they provide or exit the revise existing comments 30(f)–2.ii and requirements set forth in § 1005.13 market altogether. Several of these iii regarding the normal course of (which, in part, governs record commenters explained that for them, business safe harbor and transition retention), continue to apply to transfers offering remittance transfer services is period by changing 100 to 500 for which payment is made prior to the not a separate or profit-making line of throughout for consistency with the date the person qualifies for the normal business, and that many of them do not proposed changes to § 1005.30(f)(2)(i) course of business safe harbor in provide enough transfers to cover their and (ii). In addition, the Bureau § 1005.30(f)(2)(i). The proposed compliance costs. These commenters proposed to add a sentence in comment comment also explained that qualifying also stated that the undue burden 30(f)–2.ii stating that on July 21, 2020, for the safe harbor in § 1005.30(f)(2)(i) caused by complying with the the normal course of business safe likewise does not excuse compliance Remittance Rule has led to consumer harbor threshold in § 1005.30(f)(2)(i) with any other applicable law or harm in the form of decreased access to changed from 100 transfers to 500 regulation. For example, if a remittance remittance transfer services at credit transfers, to incorporate the change in transfer is also an electronic fund unions and community banks because the commentary. The Bureau also transfer, any requirements in subpart A these entities have limited the number proposed to renumber existing comment of Regulation E that apply to the transfer of transfers they provide or increased 30(f)–2.iv as 30(f)–2.iv.A (in order to continue to apply, regardless of whether prices to cover their compliance costs. add two additional examples, described the person must comply with subpart B. The industry commenters and credit below), revise the heading for this Relevant requirements in subpart A of union members that recommended a comment to make clear that it provides Regulation E may include, but are not normal course of business safe harbor an example of the normal course of limited to, those relating to initial threshold of 1,000 or 1,200 remittance business safe harbor and transition disclosures, change-in-terms notices, transfers also generally supported the period for the 100-transfer normal liability of consumers for unauthorized Bureau’s proposal to raise the current course of business safe harbor threshold transfers, and procedures for resolving threshold from 100 transfers annually to that was effective prior to the proposed errors. 500 transfers annually. These industry effective date of July 21, 2020, and The Bureau sought comment on its commenters, all of which were credit change the verb tense from present to proposal to increase the normal course unions and credit union trade past throughout the example. of business safe harbor threshold as well associations, stated that a 1,000-transfer In addition, the Bureau proposed to as on its proposed revisions and normal course of business safe harbor add new comment 30(f)–2.iv.B to additions to the accompanying threshold is more appropriate to provide an example of how the normal commentary. alleviate burden for credit unions and course of business safe harbor applies to would allow credit unions that stopped a person that provided 500 or fewer Comments Received or limited providing remittance transfers in 2019 and provides 500 or Most commenters to the 2019 transfers to reenter the market or resume fewer transfers in 2020. The Bureau also Proposal responded to the Bureau’s services. Several of these commenters proposed to add new comment 30(f)– proposed changes to the normal course 2.iv.C, which provides an example of of business safe harbor threshold. 32 The Bureau also received a letter from an the normal course of business safe Industry commenters, including banks, anonymous commenter that generally opposed any changes to the Remittance Rule that would harbor and transition period for the 500- credit unions, and trade associations, as compromise transparency to the public and stated transfer normal course of business safe well as a regional bank in the Federal that any cost savings by institutions would not be harbor threshold that would be effective Reserve System, individuals who passed on to consumers.
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also asserted that banks and credit remittance transfer and will also take Another bank commenter responded unions are not major players in the steps to help consumers when there are to the Bureau’s request for comment on remittance market, and as such, raising errors related to their transfers. whether the phrase ‘‘payment is made’’ the threshold to 1,000 transfers would Relatedly, several other industry is the appropriate standard on which to result in a minimal impact on the total commenters, including a few credit hinge various of the Remittance Rule number of transfers that would be union trade associations and one provisions, including those related to excluded from the Remittance Rule, community bank trade association, the transition period for coming into which would mean that the consumer stated that credit unions and compliance after ceasing to qualify for impact would also be minimal. One community banks have strong the normal course of business safe credit union trade association stated connections to the communities they harbor, and stated that the Bureau that providing fewer than 1,000 serve and that they exist to serve their should continue using the term as it is transfers is not enough to generate customers. One of the credit union trade an easily understood term that is meaningful income for most credit associations also stated that credit consistent with the current regulation. unions. One credit union stated that a unions do not charge high fees or One bank and one credit union small increase to the normal course of prevent consumers from having reliable responded to the Bureau’s request for business safe harbor threshold would information about their transactions. comment on the proposed effective date only present transitional issues for In response to the Bureau’s request for of July 21, 2020 for the proposed normal entities that continue to experience comment on basing the normal course of course of business safe harbor threshold steady organizational growth. The credit business safe harbor threshold on a and agreed that July 21, 2020 should union members stated that remittance metric other than the number of also be the effective date for that transfers are significant and popular remittance transfers, one credit union threshold. services offered to credit union trade association recommended a two- Several industry commenters urged members and noted that credit unions prong approach, whereby an entity the Bureau to address coverage under believe that the current Remittance Rule would qualify for the safe harbor if it the Remittance Rule using standards is ‘‘an unnecessary barrier’’ to such met either an asset-size threshold of $1 other than the normal course of business service. The community bank trade billion or a threshold of 1,000 safe harbor threshold. One credit union association that recommended raising remittance transfers. One bank trade association and one credit union the normal course of business safe commenter opposed using anything suggested exempting credit unions harbor threshold to 1,200 stated that a other than the number of remittance entirely from the Rule, stating that the safe harbor at that threshold would transfers, stating that using another disclosure and error resolution ensure that consumers have access to metric, such as the percentage of an requirements have caused credit unions remittance transfer services at entity’s customers that send remittance to discontinue remittance transfer community banks and would allow transfers, would be unduly burdensome services due to the significant to monitor. community banks to compete in the compliance costs, and that such an A few commenters expressed general remittance market, thereby preserving it exemption would cultivate a support for the Bureau’s proposed as a safe, convenient, secure, and commentary related to the normal competitive remittance market, given reasonably priced option for consumers. course of business safe harbor transition that only the largest and most In short, the commenters that period. One bank trade association technologically sophisticated supported the Bureau’s proposal stated recommended that the Bureau clarify institutions can afford to comply with that raising the normal course of that the current transition period the Rule. One trade association business safe harbor threshold would provision in existing § 1005.30(f)(2)(ii) representing community banks and ease compliance burden on institutions continue to apply to the Rule, as another representing credit unions that provide a low volume of remittance amended, so that when an entity recommended implementing a small transfers, many of which are credit exceeds the normal course of business financial institution exemption with an unions and community banks, and safe harbor threshold, it will have six asset size threshold of $5 billion or $10 would benefit consumers who are months to come into compliance (as set billion. One trade association that customers at these institutions, forth in the current Rule). However, one represents community banks and credit particularly those located in rural areas. bank commenter suggested that for unions recommended an exemption for The regional bank in the Federal entities that cease to satisfy the recurring remittance transfers and for Reserve System also stated that the requirements of the Rule’s normal transfers under a certain dollar amount, Bureau’s proposal would help ensure course of business safe harbor (and such as $10,000. the engagement of all insured therefore must come into compliance As noted above, consumer groups institutions, especially small to mid-size with the Rule), the Bureau should adopt were opposed to the Bureau’s proposal institutions that have occasional a transition period longer than six to raise the normal course of business remittance transfer demands. months. As noted above, the Bureau safe harbor threshold. Consumer groups Additionally, a few commenters proposed to keep the transition period stated that under the current 100- suggested that consumers that are provision in existing § 1005.30(f)(2)(ii) transfer normal course of business safe customers of entities that would newly unchanged.33 harbor threshold, nearly all depository qualify for the proposed normal course institutions are not required to comply of business safe harbor would not 33 As described in detail above, the 2019 Proposal with the Remittance Rule, and that this necessarily lose their protections related would have provided that if a person that provided fact alone justifies implementing a 500 or fewer remittance transfers in the previous lower threshold.34 These consumer to remittance transfers. For example, calendar year provides more than 500 remittance one bank trade association stated that transfers in the current calendar year, and if that based on their membership feedback, person is then providing remittance transfers for a 34 Consumer groups specifically cited the entities that are no longer subject to the consumer in the normal course of its business Assessment Report, which states that at the time of pursuant to § 1005.30(f)(1), then the person has a the report, approximately 80 percent of banks and Remittance Rule will still provide their reasonable period of time, which must not exceed 75 percent of credit unions that offer remittance customers with information about the six months, to begin complying with the Remittance transfers were below the 100-transfer normal course fees associated with sending a Rule. of business safe harbor threshold.
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groups stated that Congress intended the remittance transfers, but not in the proposed. Specifically, the Bureau is term ‘‘remittance transfer provider’’ to normal course of business. These adopting revisions to existing have broad coverage and the normal commenters noted that the Bureau § 1005.30(f)(2)(i) and (ii) and comments course of business exemption to be dismissed suggestions to raise the 30(f)–2.i through 2.iv, and adding new narrow. These commenters stated that normal course of business safe harbor § 1005.30(f)(iii) and new comments an exemption that covers three-quarters threshold to a number higher than 100 30(f)–2.iv.B, 30(f)–2.iv.C, and 30(f)–2.v, of banks and credit unions is not narrow in 2012 when it finalized the current as proposed. or limited in scope, which contradicts threshold, and that the Bureau has not As discussed below, the Bureau Congress’s intent and the Bureau’s adequately explained or justified its believes that the term ‘‘normal course of conclusion from 2012 when it finalized change in position. In addition, these business’’ is ambiguous. Since the the 100-transfer normal course of commenters stated that a threshold of adoption of the current normal course of business safe harbor threshold. These 500 remittance transfers annually (or an business safe harbor in 2012, the Bureau commenters stated that a 500-transfer average of about ten transfers per week) normal course of business safe harbor sounds quite normal, not occasional. has conducted outreach and research threshold would bring the safe harbor These commenters added that the issue and met with industry stakeholders and even closer to a complete depository of the normal course of business safe consumer groups to better understand institution exemption and therefore harbor threshold is whether entities the remittance transfer market. Based on would be more at odds with Congress’s offer remittance transfers normally, not its experience and expertise, as well as intent and the Bureau’s earlier whether they are trying to attract new the data and information gained since determination. customers or provide services to current 2012, the Bureau concludes that a more Further, consumer groups stated that ones. Moreover, consumer groups stated appropriate understanding of ‘‘normal the Bureau’s proposal would harm that the Bureau’s claim that compliance course of business’’ that better reflects consumers by excluding tens or costs are disproportionate for entities Congress’s purpose in writing this hundreds of thousands of remittance providing 500 or fewer transfers is not standard should take into consideration transfers from the Rule’s protections, supported by the findings in the a multitude of factors including including a consumer’s right to accurate Assessment Report and does not justify disproportionate costs that entities may disclosures and error resolution. These the proposal because the concept of encounter because of the Remittance commenters added that losing these normal course of business does not tie Rule; the frequency and regularity of protections would be especially critical to an entity’s cost of doing business. remittance transfers; whether transfers for transfers provided by banks, given These commenters also noted that the are offered as an accommodation for that bank transfers tend to be higher- Assessment Report found that prices customers; and a consideration of the value transfers, which would in turn have decreased since the Rule took extent of consumer harm that could mean that more of the consumer’s effect, and that preliminary analysis of arise from excluding certain providers. money would be at stake if there was an statistically robust data sets suggests Applying these factors, and after error or the money was lost. These that the Rule may have contributed to considering the comments received, the commenters stated that the Bureau the price decline. Bureau concludes that a 500-transfer recognized this type of risk in 2012 Finally, consumer groups stated that normal course of business safe harbor when it rejected industry suggestions to the Bureau’s proposal conflates the threshold better serves the purposes of exempt all open network transfers above expiring temporary exception that the normal course of business provision a certain dollar amount, but that now allows insured institutions to provide in the statutory definition of remittance the Bureau appeared to have changed its estimates in certain circumstances with transfer provider. The Bureau concludes position without explanation. the proposed normal course of business that this provision is intended to Consumer groups also stated that safe harbor threshold that would exempt balance several goals, including exempting most depository institutions most of these institutions from coverage excluding from coverage providers that from the Rule’s disclosure requirements altogether. These commenters stated do not normally send remittance by raising the normal course of business that the fact that expanding the normal transfers and would thus bear safe harbor threshold would harm course of business safe harbor would disproportionate costs to do so, while covered providers because the exempted ease the burden of the expiring preserving coverage of providers that entities would be permitted to appear to temporary exception is immaterial service the vast majority of consumers offer less expensive and faster because the cost an entity might bear and are more equipped to bear the costs remittance services than those offered due to the expiration of the temporary of compliance. by the covered providers. In addition, exception has nothing to do with commenters noted that consumers whether the entity provides remittance When the Bureau finalized the current would not be able to compare prices or transfers in the normal course of 100-transfer normal course of business easily identify which providers were business. These commenters noted that safe harbor threshold in August 2012, required to comply with the Rule and the temporary exception is not widely the Bureau did not have the benefit of offer its protections. Consumer groups used by the entities the Bureau knowing the information the Bureau also stated that any downward price proposed to exempt by expanding the knows today regarding industry’s pressure resulting from transparency normal course of business safe harbor experience in the remittance transfer could be reduced because so many and cited bank Call Report data market since the Remittance Rule went institutions would no longer be indicating that less than 10 percent of into effect in October 2013. As providing the required disclosure the entities providing between 100 and described in the August 2012 final rule, information. 500 transfers per year use the temporary the Bureau primarily considered the Consumer groups also stated that the exception today. frequency of remittance transfers Bureau did not provide data to support provided when determining the the assertion that a 500-transfer normal The Final Rule appropriate threshold for whether an course of business safe harbor threshold For the reasons set forth herein, the entity provides transfers in the normal may be more appropriate to identify Bureau is finalizing the changes to course of its business. The Bureau stated persons who occasionally provide § 1005.30(f) and related commentary as at the time that it believed that:
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[T]he inclusion of the phrase ‘‘normal compliance costs, including in response revenues from those transfers are not course of business’’ in the statutory to the 2019 Proposal, the Bureau has enough to cover, the level of fixed and definition of ‘‘remittance transfer provider’’ better information than it did in 2012 to variable compliance costs necessitated was meant to exclude persons that provide understand the impact of the Rule and remittance transfers on a limited basis. As a by the Remittance Rule. As noted above, result, the fact that a person provides only a recognizes that certain entities that many of the industry commenters that small number of remittance transfers can make a limited number of remittance supported raising the normal course of strongly indicate that the person is not transfers per year as an accommodation business safe harbor threshold indicated providing such transfers in the normal course to their customers face challenges that compliance costs related to the of its business.35 complying with the Remittance Rule. Remittance Rule have caused many The Bureau also stated that it was The Bureau has determined that the credit unions and community banks that ‘‘concerned that a person who provides term ‘‘normal course of business’’ is provide remittance transfers as an more than 100 transfers in a calendar reasonably interpreted to take account accommodation to their account- year is more likely than other persons to of this burden. holding customers to limit the number be providing remittance transfers in the Applying these and other relevant of transfers they provide or exit the normal course of its business, such as by considerations to the normal course of market altogether. Several of these making transfers generally available to business safe harbor threshold, the commenters also stated that they would its customers, and by providing them Bureau concludes that raising the consider reentering the market or more frequently,’’ and that it did not normal course of business safe harbor resuming offering remittance transfer have ‘‘industry-wide information threshold from 100 to 500 remittance services if the Bureau raised the normal linking commenters’ suggested higher transfers annually appropriately course of business safe harbor threshold thresholds either to the definition of implements, and is a reasonable because they would not have to bear the ‘normal course of business,’ or to other interpretation of, the statutory definition costs discussed above. In the factors that commenters suggested were of remittance transfer provider as a Assessment Report, the Bureau relevant, such as the cost of person or financial institution providing explained that it did not find evidence compliance’’ with the Rule.36 remittance transfers in the normal that, on net, banks or credit unions After more than six years of outreach course of its business, whether or not ceased or limited providing remittance to industry and other stakeholders the consumer holds an account with transfers because the normal course of 39 examining data and information, such a person. As stated in the 2019 business safe harbor threshold was too including for purposes of the Proposal, the Bureau believes that a low.40 To the extent this has occurred, Assessment, the Bureau has a better threshold of 500 transfers is more however, the Bureau expects that raising understanding of the various appropriate to identify persons who the normal course of business safe considerations, as described above, that occasionally provide remittance harbor threshold from 100 to 500 bear on whether an entity is providing transfers, but not in the normal course remittance transfers annually will remittance transfers in the normal of their business. Five hundred transfers encourage at least some entities to course of its business and are therefore annually is equivalent to an average of reenter the market or resume offering relevant in determining the appropriate approximately 10 transfers per week, remittance transfer services, which threshold for provision of a safe harbor. which the Bureau believes allows would benefit consumers and allow In particular, the Bureau is now aware entities to send a relatively limited smaller entities to compete with other of the disproportionate compliance number of transfers without having to providers. burden borne by certain entities that incur the costs of developing and Further, the Bureau believes that provide a limited number of remittance implementing processes and procedures raising the normal course of business transfers per year. As discussed in the to comply with the Rule or the costs of safe harbor threshold to 500 remittance Assessment Report, entities incur continued compliance with the Rule. transfers appropriately balances the ongoing costs, such as those attributed The Bureau believes that, at this goals of ensuring that most transfers to developing information and volume, entities are generally offering remain covered, and that the number of compliance systems, training staff, and remittance transfers as an affected consumers overall remain contracting with other institutions to accommodation for their account- relatively small. As discussed in part VI fulfill certain Rule requirements, when holding customers. below, the data now available through coming into and remaining in The Bureau also believes that a 500- Call Reports 41 indicate that a compliance with the Remittance Rule.37 transfer normal course of business safe These costs are fixed, in the sense that harbor threshold will help ensure substantial proportion of banks and entities must incur them to provide any participation in the remittance market of credit unions make between 101 and remittance transfers that comply with all entities, including small and mid- 500 remittance transfers per year, the Remittance Rule. Institutions that size banks and credit unions that have although their percentage of the overall occasional remittance transfer demands, annual volume of remittance transfers is provide relatively small numbers of 42 remittance transfers (which tend to be while minimally impacting consumers. quite small. Specifically, based on the smaller institutions) have fewer Based on the feedback from industry Bureau’s analysis of the 2018 Call transactions to produce revenues commenters on their experience in the through which to recover the fixed remittance transfer market and the costs 40 Assessment Report at 133–35. associated with providing remittance 41 Banks and credit unions are required to submit compliance costs associated with the quarterly ‘‘Call Reports’’ by the Federal Financial 38 transfers, the Bureau understands that Rule. Therefore, based on this Institutions Examination Council (FFIEC) and the information and the feedback from an entity that provides a low number of National Credit Union Administration (NCUA), industry over the years regarding remittance transfers may experience respectively. For a more detailed description of compliance challenges because the these reporting requirements, see Assessment Report at 24. 35 limited number of transfers it provides 77 FR 50244, 50249–50 (Aug. 20, 2012). 42 As used in this document, ‘‘between 101 and 36 Id. at 50251. is insufficient to justify, and the 500’’ means 101 or more and 500 or fewer—that is, 37 Assessment Report at 117–20. above the current safe harbor threshold but at or 38 See id. See also 84 FR 17971, 17975 (Apr. 29, 39 EFTA section 919(g)(3); 15 U.S.C. 1693o– below the new 500-transfer normal course of 2019) (Remittance RFI 2019). 1(g)(3). business safe harbor threshold.
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Report data,43 raising the threshold from to their transfers. In addition, several of business safe harbor threshold, and as 100 to 500 transfers would remove other industry commenters, including a noted above, the Bureau believes a 500- approximately 414 banks and 247 credit few credit union trade associations and transfer threshold is a more appropriate unions (which represent 54.6 percent one community bank trade association, threshold, after consideration of the and 62.4 percent of such entities noted their strong connections to the multitude of factors noted above as well currently covered by the Remittance communities they serve and stated that as the comments received. For these Rule, respectively). These entities they exist to serve their customers. One reasons, the Bureau declines at this time account for 0.83 percent (92,623) of of the credit union trade associations to raise the normal course of business bank transfers, and 6.3 percent (49,347) stated that credit unions provide safe harbor threshold to a number other of credit union transfers, for a total of reliable information about remittance than 500 transfers annually. approximately 141,970 transfers that transfers and charge reasonable rates. The Bureau is also retaining the would no longer be covered by the Further, the Bureau recognizes that maximum time period allowed for a Rule.44 Banks overall provided 11.1 raising the normal course of business person to come into compliance with million transfers and credit unions safe harbor threshold to 500 remittance the Remittance Rule as ‘‘not to exceed provided 790,000 transfers, while MSBs transfers annually will address six months’’ after the person is deemed provided 325 million transfers in compliance challenges separate from the to be providing transfers in the normal 2017.45 Therefore, given that the compliance challenges related to the course of business. As noted above, an combined number of bank and credit expiration of the temporary exception industry commenter requested that the union transfers that would no longer be that the Bureau is addressing in the Bureau clarify that the existing covered at a threshold of 500 annual changes it is adopting in § 1005.32, transition period provision in transfers represents only a minimal discussed below. As explained above, § 1005.30(f)(2)(ii) continue to apply so percentage of all remittance transfers the Bureau believes that a 500-transfer that when an entity exceeds the made annually—specifically, less than normal course of business safe harbor threshold, it has six months to come one-tenth of one percent (0.054 threshold better serves the purposes of into compliance. Another industry percent)—and based on an extrapolation the normal course of business provision commenter suggested making the of this data,46 the Bureau believes that in the statutory definition of remittance transition period for entities that the total number of consumers that transfer provider and is therefore qualified for the normal course of might be impacted by the revised appropriate. business safe harbor threshold but then normal course of business safe harbor The Bureau declines at this time to exceed the threshold (and therefore threshold is relatively small. raise the normal course of business safe must comply with the Remittance Rule) The Bureau also concludes, based on harbor threshold to a number higher at least six months. The Bureau believes the feedback of several industry than 500 remittance transfers, as the that the transition period is sufficiently commenters, that consumers that are credit union members and a number of clarified in the changes the Bureau is customers of the entities that will newly industry commenters recommended. As finalizing in § 1005.30(f)(2)(ii) and (iii) qualify for the revised normal course of noted above and based on the as well as the accompanying business safe harbor threshold might discussion herein, the Bureau believes commentary, and therefore declines to still receive protections similar to those that a threshold of 500 transfers is more make additional changes. The Bureau provided under the Remittance Rule. appropriate to identify persons who also declines to further extend the For instance, as noted above, one bank occasionally provide remittance transition period because the Bureau is trade association stated that entities that transfers, but not in the normal course not persuaded that a longer transition are no longer subject to the Remittance of their business. As discussed in the period is necessary. Rule will still provide their customers 2019 Proposal, the Bureau proposed a Further, the Bureau is keeping the with information about the fees 500-transfer normal course of business phrase ‘‘payment is made.’’ As associated with sending a remittance safe harbor threshold because it discussed in the 2019 Proposal, the transfer and will also take steps to help believed that raising the threshold to Bureau noted that existing language in consumers when there are errors related 500 transfers would appropriately § 1005.30(f)(2)(ii) regarding the six- implement the purposes of EFTA month transition period that a person 43 Banks and credit unions continue to update section 919, including the statutory has to come into compliance with the their Call Reports over time, so these numbers are definition of remittance transfer Rule, as well as the proposed language current based on the Call Reports as archived in November 2019 following the December 2019 provider (and its normal course of in § 1005.30(f)(2)(iii) regarding the NPRM. business provision), by helping to transition period for a person that 44 The 414 banks account for 1.98 percent of the reduce burden for banks and credit qualifies for the normal course of $101 billion in remittance transfers provided by unions that provide transfers only as an business safe harbor, both peg their banks in 2018. Credit unions do not report the accommodation to their customers, requirements on the phrase ‘‘payment is dollar volume of remittance transfers on their Call Reports. thereby ensuring that banks and credit made.’’ The Bureau also noted that the 45 In the Assessment Report, the Bureau estimated unions continue to offer the service to phrase ‘‘payment is made’’ is used the number of remittance transfers in 2017 to be 325 benefit consumers and do not bear a numerous times throughout the Rule million (see Assessment Report at 63–64) and that disproportionate cost to do so. The and believed that it provided a clear and more than 95 percent of transfers were provided by MSBs in 2017. The Bureau does not have an proposed threshold was based on consistent test as to whether any estimate of the total transfers in 2018 but assumed limited information, and as such, in the particular remittance transfer is subject that 95 percent of transfers were provided by MSBs 2019 Proposal, the Bureau requested to the Rule. The Bureau solicited in 2018 to calculate this proportion. data or other evidence that would have comment on this aspect of the proposal, 46 The Call Report data track the number of assisted it in determining what number and as noted above, one industry remittance transfers, not the number of consumers. Remittance transfer providers may provide transfers would be most appropriate for the commenter responded to this issue and to the same consumer multiple times per year, and normal course of business safe harbor stated that the Bureau should continue consumers may use more than one provider in a threshold. The Bureau did not receive using the phrase as it is easily year. The number of transfers gives an upper bound data or other evidence indicating that a understood and consistent with the for the number of consumers that may be affected by the new normal course of business safe harbor specific higher number would have current regulation. Lastly, the Bureau threshold. been a more appropriate normal course did not receive any comments
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suggesting changes to the other 32(a) Temporary Exception for Insured As discussed in part II above, banks proposed revisions to the commentary Institutions and credit unions have predominantly accompanying § 1005.30(f), and as such, utilized an ‘‘open network’’ payment As noted above, EFTA section 919 the Bureau is adopting them as system made up of the correspondent sets forth a temporary exception that proposed. banking network to send remittance permits certain financial institutions to Other approaches suggested by transfers on behalf of consumers, and disclose estimates instead of exact commenters. The Bureau also declines most banks and credit unions only amounts to consumers under certain to base the normal course of business maintain a relatively small number of circumstances until July 21, 2020. The safe harbor threshold on a standard correspondent banking relationships. As Bureau implemented the temporary other than the number of remittance such, in many cases involving exception in § 1005.32. Section transfers. As noted above, one industry remittance transfers sent via the 1005.32(a)(1) provides that a remittance commenter recommended a two-prong correspondent banking network, the transfer provider may give estimates in approach, whereby an entity would sending institution must find a chain of compliance with § 1005.32(c) for the qualify for the normal course of one or more intermediary financial exchange rate (if applicable), covered business safe harbor if it met either an institutions to transmit funds from the third-party fees, and certain other asset-size threshold of $1 billion or a sending institution to the designated disclosure information if the provider remittance transfer threshold of 1,000. recipient’s institution. meets three conditions: (1) The provider Another industry commenter opposed There are two basic ways such a chain must be an insured institution; (2) the using any standard other than the works where the originating (sending) provider must not be able to determine number of remittance transfers, stating institution has no correspondent the exact amounts to be disclosed for that using another metric, such as the banking relationship with the reasons beyond its control; and (3) the percentage of an entity’s customers that designated recipient’s institution: (1) transfer generally must be sent from the send remittance transfers, would be The ‘‘serial’’ method, and (2) the sender’s account with the insured unduly burdensome to monitor. The ‘‘cover’’ method (also known as the institution. Section 1005.32(a)(2) Bureau agrees that basing the normal ‘‘split and cover’’ method).49 Sending a provides that the temporary exception course of business safe harbor threshold remittance transfer using the serial shall expire on July 21, 2020. Section on something other than the number of method means that the payment 1005.32(a)(3) provides that insured transfers would introduce complexity. instructions are transferred, and the depository institutions, insured credit In addition, the Bureau believes that a transferred funds are settled,50 one step unions, and uninsured U.S. branches normal course of business safe harbor at a time between each of the financial and agencies of foreign depository provides the most certainty if it is based institutions in the transmittal route. institutions are considered ‘‘insured on a bright-line measure that permits Each connected pair of financial institutions’’ for purposes of the entities to identify easily whether they institutions in the transmittal route have temporary exception. Importantly, qualify, especially if it is a measure with a correspondent banking relationship MSBs are not ‘‘insured institutions’’ for which industry is already familiar. with each other, which enables fund purposes of the temporary exception. settlement.51 By current market 1005.32 Estimates EFTA section 919 expressly limits the practice, each intermediary financial As discussed in part II above, a length of the temporary exception to institution typically deducts a fee from significant consumer protection July 21, 2020, and this rule cannot and the payment amount, which results in provided by the Remittance Rule is the does not change that fact. However, this the recipient of the payment not requirement that remittance transfer final rule discusses this provision as receiving the full amount of the original providers disclose certain information background to the two new exceptions payment order.52 Sending a remittance to consumers that send remittance in § 1005.32(b)(4) and (5) the Bureau is transfer using the cover method means transfers. Relatedly, a significant adopting in this final rule to provide that the payment information is consumer protection established by tailored exceptions to address conveyed from the sending institution EFTA section 919 is that remittance compliance challenges that insured to the designated recipient’s institution, transfer providers generally must institutions may face in certain while settlement is handled separately disclose (both prior to and at the time circumstances upon the expiration of through correspondent banks.53 Further, the consumer pays for the transfer) the the temporary exception and to preserve current market practice is such that exact exchange rate and the amount to consumers’ access to certain remittance correspondent banks typically do not be received by the designated recipient transfers. deduct transaction fees from payments of a remittance transfer.47 Challenges of Insured Institutions in sent using the cover method.54 Accordingly, the Rule generally Disclosing Exact Amounts requires that providers disclose to 49 See 2016 BIS Report at 33–34. senders the exact amount of currency In 2012, when the Bureau adopted 50 ‘‘Settlement’’ generally refers to the that the designated recipient will § 1005.32(a), it stated the following in ‘‘discharge[ing of] obligations in respect of funds or the notice of final rulemaking: securities transfers between two or more parties.’’ receive. Existing EFTA section 919 and Bank for Int’l Settlements, A glossary of terms used § 1005.32 of the Rule, however, set forth Congress specifically recognized that it in payments and settlement systems, at 45 (2003), several exceptions to this general would be difficult for financial institutions to https://www.bis.org/cpmi/glossary_030301.pdf. requirement, including the temporary meet certain disclosure requirements with 51 Id. at 34. exception in existing § 1005.32(a). As regard to open network transactions and 52 Id. at 37. tailored a specific accommodation to allow 53 such, the Bureau proposed to provide Every cross-border money transfer, including use of reasonably accurate estimates for an remittance transfers, sent via the correspondent two new permanent, tailored exceptions interim period until financial institutions can banking network has two components: The in light of the expiration of the develop methods to determine exact payment information and the settlement temporary exception in existing disclosures, such as fees and taxes charged instruction. Whereas these two components travel by third parties.48 together when using the serial method, the cover § 1005.32. method separates the payment information from the settlement instructions. 47 15 U.S.C. 1693o–1(a)(1) and (2). 48 77 FR 6194, 6208 (Feb. 7, 2012). 54 2016 BIS Report at 37.
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As discussed above, the temporary developments continue to progress. payment system must adhere. That exception permits insured institutions Examples include: (1) The continued standardization and uniformity, in turn, to disclose estimates (rather than exact growth and expanding functionality of can provide a great deal of certainty to amounts) of the exchange rate and the Society for Worldwide Interbank all participants in such a system as to covered third-party fees (and other Financial Telecommunication the terms and conditions that will apply amounts that have to be estimated (SWIFT)’s ‘‘global payment innovation’’ to individual transactions within that because the exchange rate and covered (gpi) tracking product, which can system. third-party fees are estimated). With increase the amount of up-front To the degree banks and credit unions respect to the exchange rate, insured information available to sending increase their reliance on closed institutions and their trade associations institutions, and the expansion of the network payment systems for sending have reported to the Bureau that major payment card networks’ capacity remittance transfers and other cross- because exchange rates fluctuate, to support cross-border payments; 57 (2) border money transfers, the Bureau sending institutions comply with the the continued growth of ‘‘fintech’’ notes that this could result in greater requirement to disclose exact exchange nonbank remittance transfer providers standardization and ease by which rates by ‘‘fixing’’ the exchange rate at and their further expansion into sending institutions can know exact the time a sender requests a remittance partnerships and other relationships covered third-party fees and exchange transfer. They do this by converting the with banks and credit unions, which rates. The Bureau also believes that funds to the applicable foreign currency allow such entities to tap into the closed expanded adoption of SWIFT’s gpi up-front themselves, or by using their network payment systems that nonbank product or Ripple’s suite of products correspondent bank or third-party remittance transfer providers have could similarly allow banks and credit 58 service provider (instead of having an developed; and (3) the continued unions to know the exact final amount intermediary financial institution or the growth and expanding partnerships of that recipients of remittance transfers designated recipient’s institution virtual currency companies, such as will receive before they are sent. perform the foreign currency Ripple, which offer both a payments However, based on the Bureau’s conversion). Insured institutions may messaging platform to support cross- market monitoring and experience as face a number of hurdles with respect to border money transfers as well as a well as feedback the Bureau has virtual currency, XRP, which can be converting funds to certain currencies received from banks, credit unions, and used to effect settlement of those up-front. In such cases, they may rely on their trade associations regarding the transfers.59 the temporary exception with respect to impending expiration of the temporary the disclosure of the exchange rate.55 These developments suggest that in the future there may be means by which exception, the Bureau in the 2019 With respect to covered third-party Proposal stated that it did not believe fees, insured institutions and their trade banks and credit unions could reduce their reliance on estimates, but there are that it was likely in the short-to-medium associations have told the Bureau that if term that the developments described banks and credit unions send remittance limits on the degree to which the developments can solve the problem. above would be able to fully eliminate transfers using the serial method (where reliance on the correspondent banking sending institutions do not have a All of the developments apply elements of a closed network payment system to network as the predominant method for correspondent relationship with all of banks and credit unions to send the financial institutions in the cross-border money transfers sent by banks and credit unions. As discussed remittance transfers. There are remittance transfer’s transmittal route), thousands of financial institutions they cannot control or even know what in part II above, in a closed network payment system, a single entity worldwide that could receive remittance transaction fees another financial transfers with new financial institutions institution in the payment chain generally exerts a high degree of end-to- end control over a transaction. This being added to the network (or leaving imposes without having a the market) on regular basis. If, as noted correspondent relationship with that control generally facilitates standardization and uniformity over above, the different approaches financial institution. As such, they rely described above share the similarity of on the temporary exception with respect terms, conditions, and processes to which participants in a closed network replicating some elements of a closed to the disclosure of covered third-party network payment system, the fees. 57 SWIFT provides financial messaging services approaches likely would need to enroll Recent market developments and that support a large share of all cross-border all or most of those financial institutions potential solutions. In the Assessment interbank payments sent via correspondent banks. into their platforms to offer banks and Report, the Bureau observed that the See, e.g., Press Release, SWIFT, SWIFT enables credit unions up-front certainty when remittance market has undergone payments to be executed in seconds (Sept. 23, 2019), https://www.swift.com/news-events/press- sending transfers for which they substantial change since the Rule releases/swift-enables-payments-to-be-executed-in- currently rely on the temporary became effective. Specifically, the seconds; John Adams, Small cross-border deals play exception. It may be costly, excessively Assessment Report described several a big role for Visa, Mastercard, PaymentsSource (May 21, 2019), https://www.paymentssource.com/ time-consuming, or otherwise difficult developments regarding the growth and news/small-cross-border-deals-play-a-big-role-for- to enroll all or even most of these incorporation of innovative technologies visa-mastercard. institutions, especially the smaller ones. by providers of cross-border money 58 See, e.g., Zoe Murphy, TransferWise launches Accordingly, the Bureau proposed in TransferWise for Banks in the U.S. with Novo, transfers and other companies that 2019 to provide tailored permanent 56 Tearsheet (Sept. 26, 2019), https://tearsheet.co/new- support such providers. banks/transferwise-launches-transferwise-for- exceptions that would allow insured The Bureau has continued to monitor banks-in-the-u-s-with-novo/. institutions to estimate, as applicable, the remittance transfer market since the 59 See, e.g., Press Release, Ripple, Ripple the exchange rate, covered third-party Announces Strategic Partnership with Money publication of the Assessment Report fees, and other disclosure information and observes that most of these Transfer Giant, MoneyGram (June 17, 2019), https:// www.ripple.com/insights/ripple-announces- impacted by the estimation of those strategic-partnership-with-money-transfer-giant- amounts, to address compliance 55 Section 1005.32(b) also contains other moneygram/; Sharon Kimathi, PNC becomes first challenges that insured institutions may exceptions that permit the estimation of the US bank on RippleNet, FinTech Futures (Aug. 29, exchange rate in certain circumstances. 2019), https://www.fintechfutures.com/2019/08/ face in certain circumstances upon the 56 Assessment Report at 97–106. pnc-becomes-first-us-bank-on-ripplenet/. expiration of the temporary exception
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and to preserve consumers’ access to adopts the two new exceptions in circumstances upon the expiration of certain remittance transfers. § 1005.32(b)(4) and (5) generally as the temporary exception and to preserve proposed, to address compliance consumers’ access to certain remittance Comments Received challenges that insured institutions may transfers. For reasons set forth herein, Several trade associations and one face in certain circumstances upon the the Bureau is adopting the proposed bank suggested alternatives to proposed expiration of the temporary exception exception generally as proposed. § 1005.32(b)(4) and (5) in determining and to preserve consumers’ access to The Bureau’s Proposal whether insured institutions can certain remittance transfers. estimate the exchange rate or covered Except as discussed in the section-by- Proposed § 1005.32(b)(4)(i) provided third-party fees, respectively. One bank section analysis of § 1005.32(b)(5) that for disclosures described in opposed proposed § 1005.32(b)(4) and below, this final rule also does not §§ 1005.31(b)(1) through (3) and (5) and instead encouraged the Bureau adopt an alternative basis under which 1005.36(a)(1) and (2), estimates may be to make the temporary exception an insured institution can rely upon for provided for a remittance transfer to a permanent. One trade association estimating the exchange rates or covered particular country in accordance with representing community banks opposed third-party fees even if the institution § 1005.32(c) for the amounts required to proposed § 1005.32(b)(4) and (5) and exceeds the volume thresholds set forth be disclosed under § 1005.31(b)(1)(iv) urged the Bureau to utilize its EFTA in § 1005.32(b)(4) and (5). This final rule through (vii) if the designated recipient section 904(c) authority to exempt does not adopt the alternative basis of the remittance transfer will receive insured institutions from providing suggested by the trade association funds in the country’s local currency exact exchange rates and covered third- commenter that the Bureau require and all of the following conditions are party fees, allowing them to continue to additional recordkeeping by insured met: (1) The remittance transfer rely on estimates in their disclosures institutions in the event that they rely provider is an insured institution as when they are unable to determine upon proposed § 1005.32(b)(4) or (5) defined in § 1005.32(a)(3); (2) the accurate information, without attaching after exceeding the thresholds in the insured institution cannot determine the a threshold to the exceptions. One credit prior calendar year. The Bureau does exact exchange rate for that particular union and one trade association not believe this alternative basis is remittance transfer at the time it must representing credit unions sufficiently objective to be used to provide the applicable disclosures; (3) recommended that the Bureau consider determine if an insured institution is in the insured institution made 1,000 or simplified exceptions that treat a compliance with the Remittance Rule. fewer remittance transfers in the prior sending institution’s reliance on The Bureau believes that the exceptions calendar year to the particular country exchange rate and covered third-party in § 1005.32(b)(4) and (5) are better for which the designated recipients of fee amounts provided by its approaches in that these exceptions will those transfers received funds in the correspondent bank as sufficient for create bright-line thresholds to country’s local currency; and (4) the disclosure purposes. Another trade estimating exchange rates and covered remittance transfer generally is sent association urged the Bureau to provide third-party fees and that the Bureau’s from the sender’s account with the an alternative basis under which an exceptions are better tailored to address insured institution. insured institution can rely upon for the problems faced by institutions in Proposed § 1005.32(b)(4) applied only estimating the exchange rates or covered determining exact amounts. The Bureau if the designated recipient of the third-party fees even if the institution believes that the clarity of the two new remittance transfer receives funds in the exceeds the volume thresholds. For exceptions in § 1005.32(b)(4) and (5) are country’s local currency. Proposed example, this trade association more likely than the suggested § 1005.32(b)(4)(i) also generally applied indicated that the Bureau could require alternative to reduce uncertainty and to the following disclosures set forth in additional recordkeeping by insured promote compliance. § 1005.31(b)(1)(iv) through (vii) institutions in the event that they rely respectively: (1) The exchange rate (as upon proposed § 1005.32(b)(4) or (5) 32(b) Permanent Exceptions applicable); (2) if ‘‘covered third-party after exceeding the thresholds in the 32(b)(4) Permanent Exception for fees’’ as defined in § 1005.30(h) are prior calendar year. Estimation of the Exchange Rate by an imposed, the total amount that will be Insured Institution transferred to the recipient inclusive of The Final Rule Proposed § 1005.32(b)(4) provided the covered third-party fees; (3) the As discussed above, the temporary that insured institutions may estimate amount of any covered third-party fees; exception will expire on July 21, 2020, the exchange rate (and other disclosure and (4) the amount that will be received and this final rule cannot and does not information that depend on the by the designated recipient (after change that fact. As discussed in the exchange rate) that must be provided in deducting any covered third-party fees). 2019 Proposal, EFTA section 919 the disclosures required by Proposed § 1005.32(b)(4)(ii) provided, expressly limits the length of the §§ 1005.31(b)(1) through (3) and however, that the total amount that will temporary exception to July 21, 2020. 1005.36(a)(1) and (2) in certain be transferred to the recipient inclusive As such, the exception will expire on of covered third-party fees, the amount circumstances. This proposed exception July 21, 2020. of covered third-party fees, and the was designed to provide a tailored For similar reasons, this final rule amount that will be received by the permanent exception to address does not adopt provisions that would designated recipient (after deducting compliance challenges that insured replicate the temporary exception, as covered third-party fees) may be institutions may face in certain one trade association commenter and estimated under proposed one bank commenter suggested the § 1005.32(b)(4)(i) only if the exchange 60 allowing them to continue relying on estimates in Bureau should do. This final rule their disclosures when they are unable to determine rate is permitted to be estimated under accurate information, without attaching a threshold proposed § 1005.32(b)(4)(i) and the 60 As noted above, one trade association to the exemptions. Also, a bank commenter asked estimated exchange rate affects the commenter urged the Bureau to utilize its EFTA the Bureau to adopt simplified exceptions that treat section 904(c) authority by exempting insured a sending institution’s reliance on exchange rate amount of such disclosures. For institutions from providing exact estimates of and covered third-party fee amounts provided by a example, if a remittance transfer will be exchange rates and covered third-party fees and correspondent as sufficient for disclosure purposes. received by the designated recipient in
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the same currency as the one in which Proposed comment 32(b)(4)–2.i set example, one credit union indicated the transfer is funded, the insured forth that for purposes of determining that these proposed exceptions would institution would not disclose an whether an insured institution made help financial institutions to reenter the exchange rate for the transfer, and the 1,000 or fewer remittance transfers in international funds transfer system total amount that will be transferred to the prior calendar year to a particular without placing undue risk and burdens the recipient inclusive of covered third- country pursuant to proposed on the institution for issues outside party fees, the amount of covered third- § 1005.32(b)(4)(i)(C), the number of their control. A trade association party fees, and the amount that will be remittance transfers provided includes representing credit unions indicated received by the designated recipient transfers in the prior calendar year to that it supported these proposed (after deducting covered third-party that country if the designated recipients exceptions and appreciated the Bureau’s fees) will not be affected by an exchange of those transfers received funds in the efforts to manage consumer protection rate. In that case, an insured institution country’s local currency regardless of while fostering an environment in could not have used proposed whether the exchange rate was which credit unions can provide and § 1005.32(b)(4) to estimate those estimated for those transfers. The develop affordable products and disclosures. The insured institution, proposed comment provided an services to their members. One service however, may be able to use another example to illustrate. Also, proposed provider indicated that the proposed permanent exception set forth in comment 32(b)(4)–2.ii provided that for exceptions would help ensure that § 1005.32(b), including the exception in purposes of the 1,000-transfer threshold, entities that make a limited number of proposed § 1005.32(b)(5), to estimate the number of remittance transfers does remittance transfers can remain those disclosures if the conditions of not include remittance transfers to a competitive in the global payments those provisions are met. country in the prior calendar year if the space without incurring the burden of Proposed comment 32(b)(4)–1 designated recipients of those transfers compliance costs. provided guidance on whether an did not receive the funds in the Several trade associations insured institution cannot determine the country’s local currency. The proposed representing credit unions urged the exact exchange rate applicable to a comment contained an example to Bureau to revise proposed remittance transfer at the time the illustrate. § 1005.32(b)(4) and (5) to increase the disclosures must be given. Specifically, The Bureau also proposed conforming threshold amount for exchange rates proposed comment 32(b)(4)–1 stated changes to the following provisions to and covered third-party fees to 2,000 that for purposes of proposed reference the proposed exception in transfers in the prior calendar year. § 1005.32(b)(4)(i)(B), an insured § 1005.32(b)(4) if the temporary Several of these trade associations institution cannot determine the exact exception in § 1005.32(a) currently is indicated that to align proposed exchange rate required to be disclosed referenced and pertains to the exceptions in proposed § 1005.32(b)(4) under § 1005.31(b)(1)(iv) for a estimation of the exchange rate: (1) and (5) with their recommendation that remittance transfer to a particular § 1005.32(c); (2) § 1005.33(a)(1)(iii)(A); the Bureau raise the normal course of country where the designated recipient (3) § 1005.36(b)(3); (4) comment 32–1; business safe harbor threshold to 1,000 of the transfer will receive funds in the (5) comment 32(b)(1)–4.ii; (6) comment transfers, the Bureau should country’s local currency if the exchange 32(d)–1; and (7) comment 36(b)–3. correspondingly increase the thresholds rate for the transfer is set by a person for proposed § 1005.32(b)(4) and (5) to Comments Received other than (1) the insured institution; (2) 2,000 or fewer transfers in the prior an institution that has a correspondent The Bureau received a significant calendar year. Another trade association relationship with the insured number of comments on proposed representing credit unions indicated institution; (3) a service provider for the § 1005.32(b)(4) from banks, credit that a 2,000-transfer threshold in the insured institution; or (4) a person that unions, their trade associations, and prior calendar year would allow more acts as an agent of the insured their service providers. The Bureau institutions that are not primarily institution. The Bureau believed that received approximately 60 comment remittance transfer businesses to be proposed comment 32(b)(4)–1 set forth letters from individual consumers; positioned to continue to offer the circumstances in which an insured nearly all of whom were credit union remittances without incurring the institution could not determine the members. The Bureau received two higher costs (normally passed through exchange rate for a particular transfer comments from consumer groups. to the consumer) that will likely result sent through correspondent banks in an Comments from credit unions, banks, should the temporary exception simply open network payment system and their trade associations, and their expire in July 2020. Another trade sought comment on this provision. service providers. Many industry association representing credit unions Proposed comment 32(b)(4)–1.i set commenters provided the same suggested that the threshold amounts in forth an example of when an insured comments for both proposed proposed § 1005.32(b)(4) and (5) should institution cannot determine an exact § 1005.32(b)(4) related to estimating the be the same, and the Bureau should exchange rate under proposed exchange rate and proposed raise both thresholds to 2,000 in the § 1005.32(b)(4)(i)(B) for a remittance § 1005.32(b)(5) related to estimating prior calendar year. This trade transfer. Proposed comment 32(b)(4)– covered third-party fees. These association indicated that having the 1.ii would set forth two examples of comments generally are addressed in same threshold for both proposed whether an insured institution could this section in relation to § 1005.32(b)(4) exceptions would be easier to determine an exact exchange rate under and are addressed in the section-by- implement from an operational proposed § 1005.32(b)(4)(i)(B) for a section analysis of § 1005.32(b)(5) in perspective because the adoption of remittance transfer, and thus the relation to § 1005.32(b)(5). differing thresholds on a per member insured institution may not use the Many industry commenters basis could introduce complicated proposed exception in proposed encouraged the Bureau to adopt tracking issues. § 1005.32(b)(4) to estimate the proposed § 1005.32(b)(4) and (5) to With respect to the threshold amounts disclosures required under permit insured institutions to estimate in proposed § 1005.32(b)(4) and (5), one § 1005.31(b)(1)(iv) through (vii) for the the exchange rate and covered third- trade association indicated that the remittance transfer. party fees in certain circumstances. For Bureau should exclude correspondent
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remittance transfers serviced by a trade association supported proposed the thresholds for proposed financial institution from the threshold § 1005.32(b)(4) and indicated that the § 1005.32(b)(4) and (5) to 2,000 or fewer amounts. Another trade association cost of keeping up with all of the transfers in the prior calendar year to indicated that the Bureau should potential exchange rates is an additional reflect a ‘‘normal course of business’’ exclude closed loop transfers from being regulatory burden that has discouraged threshold set at 1,000 transfers. One considered for purposes of the smaller community banks from offering individual commenter supported the thresholds under § 1005.32(b)(4) and (5). this service. proposed exceptions in proposed This trade association indicated that One trade association believed that § 1005.32(b)(4) and (5), asserting that closed loop offerings involve agency- the 1,000 transfer-threshold under they would benefit insured institutions type relationships with recipient proposed § 1005.32(b)(4) was but not likely harm consumers. One institutions and do not require appropriate if, as discussed below, the individual commenter opposed the estimation, but they are distinct from Bureau encourages broader use of the proposed exceptions in § 1005.32(b)(4) wire transfers and should not be permanent exception for transfers to and (5), asserting that these exceptions counted towards the threshold amounts. certain countries in existing prevent transparency for the public and One trade association representing § 1005.32(b)(1). This trade association consumers. credit unions indicated that the Bureau indicated that a remittance transfer Consumer groups. The Bureau should commit to revisiting the provider’s ability to disclose an received two comment letters from sufficiency of the thresholds in exchange rate is not necessarily tied to consumer groups. These consumer proposed § 1005.32(b)(4) and (5) shortly the number of transfers in local groups opposed both the proposed after implementation of a final rule to currency that it sends to a particular exceptions in proposed § 1005.32(b)(4) ensure that costs borne by country. This trade association and (5), citing three primary concerns: correspondents ineligible to use indicated that, even if a provider sends (1) Market data, including data related estimates are not passed on to more than the prescribed number of to financial institution remittance community institutions that do not transfers in local currency to a country, transfers, do not support the need for themselves exceed the thresholds. depository institutions may still need to the rule changes; (2) there is insufficient One bank requested that the Bureau estimate exchange rates due to the legal justification for the broad changes provide guidance regarding application idiosyncrasies of certain currencies. proposed in the 2019 Proposal; and (3) of thresholds set forth in proposed This trade association believed that the Bureau has not sufficiently studied § 1005.32(b)(4) and (5) if an institution their members could address these the impact of the proposed amendments merges with another or acquires another idiosyncrasies without the need to on consumers to assess the need for the institution. This bank indicated that the increase the 1,000-transfer threshold if, amendments and any possible negative Bureau should provide a grace period of as discussed below, the Bureau impacts. These consumer groups also at least six months when this occurs, as encourages broader use of the asserted that these proposed exceptions the combination of two remittance permanent exception for transfers to would further harm consumers and transfer providers could result in the certain countries in existing contradict congressional intent by, in number of transfers exceeding a § 1005.32(b)(1). effect, converting an exception that threshold and thereby imposing One trade association requested that Congress designated as temporary requirements that had not applied the Bureau clarify whether remittance (ending in July 2020) into exceptions before. The bank indicated that when transfer providers must disclose an that are permanent, for many of the this happens, the institution that exchange rate in situations in which the financial institutions that use it today. remains should be afforded sufficient sender instructs the remittance transfer They thus asserted that adopting the time to adjust its processes and provider to send the transfer in U.S. exceptions as proposed would harm procedures to the Remittance Rule’s dollars, but the provider knows that the consumers by limiting the protections requirements. general market practice in the recipient and benefits they receive from the Rule, Two trade associations indicated that country is to convert transfers received including the ability to know precisely the Bureau should establish a six-month in U.S. dollars into the local currency. how much money a recipient will transition period after an insured The Bureau received no comments receive, the ability to accurately identify institution exceeds the threshold from industry specifically on proposed the cheapest provider, and access to full amounts in proposed § 1005.32(b)(4) comment 32(b)(4)–1 that set forth error resolution protections when the and (5) during which the institution guidance on whether, under proposed amount received is different from the could still avail itself of the new § 1005.32(b)(4)(i)(B), an insured amount disclosed. These consumer proposed exceptions. They asserted this institution cannot determine the exact groups suggested that the Bureau should would ease the compliance burden for exchange rate applicable to a remittance withdraw its proposal in its entirety and institutions that cross a threshold transfer at the time the disclosures must instead consider ways to expand the towards the end of a calendar year. be given. applicability of EFTA’s protections for In the 2019 Proposal, the Bureau Individual commenters. Nearly all of remittances. solicited comment on whether the the individual commenters were credit The consumer groups also indicated proposed exceptions in proposed union members. These individual that, if the Bureau does adopt proposed § 1005.32(b)(4) and (5) should contain a commenters suggested that the Bureau § 1005.32(b)(4) and (5), the Bureau sunset provision. Several banks and a should increase the thresholds for the should not make these exceptions trade association urged the Bureau not proposed exceptions in § 1005.32(b)(4) permanent. They indicated that the to sunset proposed § 1005.32(b)(4) and and (5) to 2,000 or fewer transfers. Bureau’s analysis recognizes that market (5). They asserted that sunset provisions These individual commenters indicated evolutions are giving financial create unnecessary uncertainty for that to align proposed exceptions in institutions more options for disclosing consumers and institutions. proposed § 1005.32(b)(4) and (5) with exact exchange rates and fees, but Several industry commenters their recommendation that the Bureau inexplicably creates exceptions that provided comments that related raise the normal course of business safe lasts forever. They indicated that in specifically to proposed § 1005.32(b)(4) harbor threshold to 1,000 transfers, the doing so, the Bureau ignores the for estimating the exchange rate. One Bureau should correspondingly increase important forcing effect of a compliance
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deadline, the existing trend away from to obtain exact exchange rates for that some insured institutions eliminating or reliance on the temporary exception, currency. Based on the comments curtailing remittance transfer services and the evolution of methods for received on the 2019 Proposal and other because they could not determine and sending money. outreach and research, the Bureau disclose exact exchange rates for those In the 2019 Proposal, the Bureau determines that the disproportionate countries. requested comment on whether cost of sending to certain countries is a Each of the four conditions set forth proposed § 1005.32(b)(4) and (5) should primary factor in whether an insured in § 1005.32(b)(4)(i)(A) through (D) is apply to providers that are not insured institution will perform the currency discussed in more detail below. institutions. The consumer groups exchange and thus whether it would The remittance transfer provider is an indicated that the Bureau should not know the exact exchange rate to provide insured institution. This final rule extend these proposed exceptions to in its disclosures. In cases in which the adopts § 1005.32(b)(4)(i)(A) as proposed non-insured institutions. They indicated volume is less than the proposed 1,000- to provide that the remittance transfer that rolling back already-required transfer threshold in the previous provider must be an insured institution protections in other segments of the calendar year to a particular country in as defined in § 1005.32(a)(3). In the 2019 market would harm consumers and the country’s local currency, the Bureau Proposal, the Bureau solicited comment undermine the purpose of EFTA. They concludes that if the insured institution on whether the proposed exception in believed there is no reason or authority cannot estimate the exchange rate for a § 1005.32(b)(4) should be extended to for extending any new exceptions to particular transfer to that country, the apply to remittance transfer providers non-insured entities. institution would no longer continue to that are not insured institutions, including MSBs and broker-dealers. The Final Rule make transfers to that country in the country’s local currency because the This final rule does not extend the As set forth herein, this final rule costs associated with performing the exception in § 1005.32(b)(4) to apply to adopts § 1005.32(b)(4) and comments currency exchange upfront outweigh the remittance transfer providers that are 32(b)(4)–1 and –2 as proposed. As benefits given the relatively few not insured institutions. In response to explained in more detail below, this transfers sent to the country. The the 2019 Proposal, the consumer group final rule adds comment 32(b)(4)–3 to Bureau determines that if these commenters did not support extending provide a transition period for insured institutions discontinued providing the exception in § 1005.32(b)(4) to institutions that exceed the 1,000- such transfers, consumer access to providers that are not insured transfer threshold under § 1005.32(b)(4) remittance transfer services for certain institutions. No industry commenters in a certain year, which would allow countries may be reduced or eliminated. commented on this issue. The Bureau them to continue to provide estimates of As discussed in more detail above in the believes that it is appropriate to apply the exchange rate for a reasonable the exception in § 1005.32(b)(4) only to section-by-section analysis of period of time while they come into insured institutions. The exception in § 1005.32(a), it appears increasingly compliance with the requirement to § 1005.32(b)(4) is primarily designed to unlikely that any new technologies or provide exact exchange rates. This final address providers’ concerns about partnerships will be able to fully rule also adopts conforming changes as knowing the exact exchange rate at the eliminate insured institutions’ reliance proposed to the following provisions to time disclosures are provided for on estimates in the short-to-medium reference the exception in remittance transfers sent via term. The Bureau concludes that some § 1005.32(b)(4) where the temporary correspondent banks in an open financial institutions may lack the scale exception in § 1005.32(a) currently is network payment system. The Bureau for it to be practicable to cover the costs referenced and pertains to the believes that the great majority of these estimation of the exchange rate: (1) of establishing and maintaining transfers are provided by insured § 1005.32(c); (2) § 1005.33(a)(1)(iii)(A); currency-trading desks and managing institutions and that, in turn, these open (3) § 1005.36(b)(3); (4) comment 32–1; the risk of exchange rate trading of network transfers are the most common (5) comment 32(b)(1)–4.ii; (6) comment currency for certain countries, or to use type of remittance transfer provided by 32(d)–1; and (7) comment 36(b)–3. service providers, correspondent insured institutions. Based on the comments received on institutions, or persons that act as the The insured institution cannot the 2019 Proposal and prior outreach insured institution’s agent to obtain determine the exact exchange rate for and research, the Bureau believes that exact exchange rates for those the transfer at the time it must provide the data it has collected support the currencies. the applicable disclosures. This final adoption of § 1005.32(b)(4) and Also, the Bureau determines that, rule adopts § 1005.32(b)(4)(i)(B) as comments 32(b)(4)–1 through –3. The when the temporary exception expires, proposed to require that, at the time the Bureau’s legal authority to adopt these if the Rule did not allow estimates of the insured institution must provide the provisions is discussed below. exchange rate in certain circumstances, disclosure required by § 1005.31(b)(1) Based on the comments received on some insured institutions that continue through (3) or § 1005.36(a)(1) or (2), as the 2019 Proposal and prior outreach to offer remittance transfer services may applicable, the insured institution and research, the Bureau determines see costs increase when sending cannot determine the exact exchange that if an insured institution is sending transfers to certain countries because rate required to be disclosed under 1,000 or fewer remittance transfers to a these institutions may have to change § 1005.31(b)(1)(iv) for that remittance particular country in the country’s local how they provide remittance transfers to transfer. This final rule also adopts currency, it may be unduly costly for disclose exact exchange rates. This comment 32(b)(4)–1 as proposed to the institution to establish and maintain would lead to increased prices for provide guidance on whether an insured currency-trading desk capabilities and consumers. In addition, the Bureau institution cannot determine the exact risk management policies and practices concludes that prices for consumers exchange rate applicable to a remittance related to foreign exchange trading of may also increase for transfers to certain transfer at the time the disclosures must that currency. It also may be unduly countries due to reduced competition if be given. The Bureau did not receive costly to use service providers, the number of remittance transfer any specific comments on correspondent institutions, or persons providers offering remittance transfers § 1005.32(b)(4)(i)(B) or comment that act as the insured institution’s agent to such countries were reduced due to 32(b)(4)–1. The Bureau notes that if the
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insured institution can determine the loop transfers, the insured institution for a reasonable period of time while exact exchange rate required to be does not need to estimate the exchange they come into compliance with the disclosed under § 1005.31(b)(1)(iv) for rate because it has set up currency- requirement to provide exact exchange the remittance transfer, the insured trading desk capabilities and risk rates. Specifically, comment 32(b)(4)–3 institution may not use the exception in management policies and practices provides that if an insured institution in § 1005.32(b)(4) to estimate the exchange related to foreign exchange trading of the prior calendar year did not exceed rate, even if the insured institution that currency, or arranged to use service the 1,000-transfer threshold to a made 1,000 or fewer remittance providers, correspondent institutions, or particular country pursuant to transfers in the prior calendar year to persons that act as the insured § 1005.32(b)(4)(i)(C), but does exceed the particular country as set forth in institution’s agent to obtain exact the 1,000-transfer threshold in the § 1005.32(b)(4)(i)(C). exchange rates for that currency. The current calendar year, the insured The insured institution made 1,000 or Bureau does not believe that these institution has a reasonable amount of fewer remittance transfers in the prior closed loop transfers should be time after exceeding the 1,000-transfer calendar year to the particular country excluded from the 1,000-transfer threshold to begin providing exact for which the designated recipients of threshold because those transfers might exchange rates in disclosures (assuming those transfers received funds in the make it more likely that it is cost it cannot rely on another exception in country’s local currency. This final rule effective for the insured institution to § 1005.32 to estimate the exchange rate). adopts § 1005.32(b)(4)(i)(C) as proposed extend these existing capabilities to The reasonable amount of time must not to provide that, with respect to the cover additional transfers. exceed the later of six months after country to which the remittance transfer In this final rule, the Bureau also exceeding the 1,000-transfer threshold is being sent, the insured institution declines to commit to revisit the in the current calendar year or January must have made 1,000 or fewer sufficiency of the thresholds in 1 of the next year. Comment 32(b)(4)–3 remittance transfers in the prior proposed § 1005.32(b)(4) and (5) shortly also provides an example to illustrate calendar year to the particular country after implementation of a final rule to this guidance. for which the designated recipients of ensure that costs borne by The Bureau concludes that this those transfers received funds in the correspondents ineligible to use transition period will facilitate country’s local currency. Several estimates are not passed on to compliance with the Remittance Rule by industry commenters suggested that the community institutions that do not allowing institutions a reasonable Bureau should increase this threshold themselves exceed the thresholds. The amount of time to establish currency- amount to 2,000 transfers in the Bureau expects that larger insured trading desk capabilities and develop previous year. Nonetheless, these institutions that cannot estimate the risk management policies and practices commenters did not provide specific exchange rate or covered third-party related to foreign exchange trading of data on why this higher threshold is fees for their own transfers under the that currency, or to enter into needed to protect access to transfers to exceptions in § 1005.32(b)(4) or (5) will agreements with service providers, certain countries. The Bureau continue to act as correspondent banks correspondent institutions, or persons determines that the 1,000-transfer for sending institutions that can that act as the insured institution’s agent threshold adopted in § 1005.32(b)(4) is continue to estimate the exchange rate to obtain exact exchange rates for that consistent with its goal to provide a or covered third-party fees under the currency. Without this provision, tailored permanent exception to address exceptions in § 1005.32(b)(4) or (5) for insured institutions may find it difficult compliance challenges that insured their transfers. The Bureau will or impossible to comply with the institutions may face in certain continue to monitor the remittance requirement to provide exact exchange circumstances upon the expiration of market, including monitoring the rate disclosures starting January 1 of the the temporary exception and to preserve impact of the new exceptions in next year if they exceed the 1,000- consumers’ access to remittance § 1005.32(b)(4) and (5), and will revisit transfer threshold late in the current transfers sent to certain countries. the thresholds if it concludes that it may year. The Bureau determines this With respect to the threshold amount be appropriate to change them. transition period also may help to for proposed § 1005.32(b)(4)(i)(C), one The remittance transfer is sent from address issues raised by industry trade association indicated that the the sender’s account with the insured commenters related to mergers and Bureau should exclude correspondent institution. This final rule adopts acquisitions, if the combination of two remittance transfers serviced by a § 1005.32(b)(4)(i)(D) as proposed to remittance transfer providers could financial institution from the count. The provide that the remittance transfer result in the number of transfers Bureau agrees and further believes that must be sent from the sender’s account exceeding a threshold and thereby the 2019 Proposal was, and this final with the insured institution; provided, imposing requirements that had not rule is, clear that the 1,000-transfer however, for the purposes of applied before. threshold set forth in § 1005.32(b)(4)(i)(D), a sender’s account Permanent exception. In the 2019 § 1005.32(b)(4)(i)(C) only includes does not include a prepaid account, Proposal, the Bureau solicited comment transfers in the previous year that are unless the prepaid account is a payroll on whether the Bureau should adopt a made by the insured institution in its card account or a government benefit sunset provision with respect to the role as the remittance transfer provider. account. The Bureau did not receive any exception in proposed § 1005.32(b)(4). The 1,000-transfer threshold does not comments on this provision. Consumer group commenters indicated include transfers where an insured Transition period. In response to that if the Bureau does adopt proposed institution is acting as a correspondent comments received on the 2019 § 1005.32(b)(4), the Bureau should not on behalf of a sending institution. Proposal, the Bureau is adding a new make this exception permanent. They The Bureau is not excluding closed comment 32(b)(4)–3 to provide a indicated that the Bureau’s analysis loop transfers from being included in transition period for institutions that recognizes that market evolutions are the number of transfers that count exceed the 1,000-transfer threshold giving financial institutions more toward the threshold under under § 1005.32(b)(4) in a certain year, options for disclosing exact exchange § 1005.32(b)(4)(i)(C). The Bureau which would allow them to continue to rates and fees and noted the important understands that with respect to closed provide estimates of the exchange rate forcing effect of a compliance deadline,
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the existing trend away from reliance on unless the remittance transfer provider marketplace, therefore effectuating one the temporary exception, and the has actual knowledge regarding the of EFTA’s purposes. If the temporary evolution of methods for sending currency in which the funds will be exception expired without the Bureau money. Several banks and a trade received for the transfer. Actual taking any mitigation measures, the association urged the Bureau not to knowledge does not include knowledge Bureau concludes that certain insured sunset proposed § 1005.32(b)(4). They that the general market practice in the institutions may stop sending transfers asserted that sunset provisions create recipient country is to convert transfers to certain countries, therefore unnecessary uncertainty for consumers received in U.S. dollars into the local potentially reducing competition for and institutions. currency. If a sender does not know the those transfers. This potential loss of The Bureau is not adopting a sunset currency in which funds will be competition could be detrimental to provision with respect to received, the provider may assume that consumers because the price of transfers § 1005.32(b)(4). The Bureau agrees the currency in which funds will be could increase or because it could certain developments in the market received is the currency in which the become less convenient to send them.62 could make it practicable for insured remittance transfer is funded. institutions to disclose exact exchange Legal authority. To effectuate the 32(b)(5) Permanent Exception for rates for transfers, but the Bureau cannot purposes of EFTA and to facilitate Estimation of Covered Third-Party Fees forecast when technological and market compliance, the Bureau is using its by an Insured Institution developments will permit this to occur. EFTA section 904(a) and (c) authority to Proposed § 1005.32(b)(5) provided Instead of setting a specific sunset date, adopt a new exception under that in certain circumstances, insured the Bureau will continue to monitor the § 1005.32(b)(4). Under its EFTA section institutions may estimate covered third- market and make any changes to the 904(c) authority, the Bureau ‘‘may party fees (and other disclosure exception as necessary through the provide for such adjustments and information that depend on the covered notice and comment process. The exceptions for any class of electronic third-party fees) that must be included Bureau concludes that this process will fund transfers or remittance transfers, as in the disclosures required by allow it to respond better to changes in in the judgment of the Bureau are §§ 1005.31(b)(1) through (3) and market conditions, rather than adopting necessary or proper to effectuate the 1005.36(a)(1) and (2). This proposed a specific sunset date in the face of purposes of this subchapter, to prevent exception was designed to provide a technological and market uncertainty. circumvention or evasion thereof, or to tailored permanent exception to address Guidance on when the disclosure of facilitate compliance therewith.’’ 61 The compliance challenges that insured an exchange rate is required. One trade Bureau believes that this exception institutions may face in certain association requested that the Bureau would facilitate compliance with EFTA, circumstances upon the expiration of clarify if remittance transfer providers preserve consumer access, and the temporary exception and to preserve must disclose an exchange rate in effectuate its purposes. Specifically, the consumers’ access to certain remittance situations in which the sender instructs Bureau interprets ‘‘facilitate transfers. For the reasons set forth the remittance transfer provider to send compliance’’ to include enabling or herein, the Bureau is adopting the the transfer in U.S. dollars, but the fostering continued operation in proposed exception generally as provider knows that the general market conformity with the law. The Bureau proposed. practice in the recipient country is to believes that this exception is targeted The term ‘‘covered third-party fees’’ is convert transfers received in U.S. to facilitate compliance in those defined in § 1005.30(h)(1) to mean any dollars into the local currency. As circumstances where it may be fees (other than ‘‘non-covered third- discussed in the 2019 Proposal, current infeasible or impracticable (due to party fees’’ described in § 1005.30(h)(2)) comment 31(b)(1)(iv)–1 provides disproportionate cost) for insured that a person other than the remittance guidance on how a remittance transfer institutions to determine the exchange transfer provider imposes on the provider can determine in which rate because of an insufficient number transfer. Fees imposed on a remittance currency the designated recipient will of transfers to a particular country. transfer by an intermediary institution receive the funds. The comment Moreover, in the circumstances where are covered third-party fees. In addition, provides that for purposes of institutions may be able to take fees imposed by a designated recipient’s determining whether an exchange rate is advantage of this disclosure exception, institution on a remittance transfer are applied to the transfer, if a remittance the insured institutions remain subject covered third-party fees if the transfer provider does not have specific to the Remittance Rule’s other designated recipient’s institution acts as knowledge regarding the currency in requirements, including the continued an agent for the remittance transfer which the funds will be received, the obligation to provide disclosures and provider. provider may rely on a sender’s the requirements related to error In contrast, the term ‘‘non-covered representation as to the currency in resolution and cancellation rights. The third-party fees’’ is defined in which funds will be received. For Bureau’s authority, therefore, is tailored § 1005.30(h)(2) as any fees imposed by example, if a sender requests that a to providing an adjustment for the the designated recipient’s institution for remittance transfer be deposited into an specific compliance difficulties or receiving a remittance transfer into an account in U.S. dollars, the provider challenges that insured institutions face account except if the institution acts as need not disclose an exchange rate, even in providing exact disclosures that an agent of the remittance transfer if the account is denominated in could cause those institutions to reduce provider. Fees a designated recipient’s Mexican pesos and the funds are or cease offering transfers to certain institution imposes on a remittance converted prior to deposit into the countries, which in turn could mean transfer are non-covered third-party fees account. Thus, under the existing that consumers have less access to if the designated recipient’s institution commentary, a remittance transfer remittance transfer services or have to provider may rely on a sender’s pay more for them. By preserving such 62 As the Bureau stated in the 2019 RFI, the representation as to the currency in access, the exception could also help Bureau recognizes the value to consumers of being able to send remittance transfers directly from a which funds will be received for maintain competition in the checking account to the account of a recipient in purposes of determining whether an a foreign country through their bank or credit exchange rate is applied to the transfer, 61 15 U.S.C. 1693b(c). union. 84 FR at 17974.
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does not act as an agent of the to estimate that disclosure if the recipient’s institution acts as an agent of remittance transfer provider. The term conditions of those exceptions are met. the insured institution; (3) an insured ‘‘agent’’ is defined in § 1005.30(a) to Proposed comment 32(b)(5)–1 institution has an agreement with the mean an agent, authorized delegate, or provided guidance on when an insured designated recipient’s institution with person affiliated with a remittance institution cannot determine the exact respect to the imposition of covered transfer provider, as defined under State covered third-party fees as applicable to third-party fees on the remittance or other applicable law, when such a remittance transfer at the time the transfer; or (4) an insured institution agent, authorized delegate, or affiliate disclosures must be given. Specifically, knows at the time the disclosures are acts for that remittance transfer proposed comment 32(b)(5)–1 provided given that the only intermediary provider. that for purposes of § 1005.32(b)(5)(i)(B), financial institutions that will impose an insured institution cannot determine, covered third-party fees on the transfer The Bureau’s Proposal at the time it must provide the are those institutions that have a Proposed § 1005.32(b)(5)(i) generally applicable disclosures, the exact correspondent relationship with or act provided that for disclosures described covered third-party fees required to be as an agent for the insured institution, in §§ 1005.31(b)(1) through (3) and disclosed under § 1005.31(b)(1)(vi) for a or have otherwise agreed upon the 1005.36(a)(1) and (2), estimates may be remittance transfer to a designated covered third-party fees with the provided for a remittance transfer to a recipient’s institution when all of the insured institution. The Bureau initially particular designated recipient’s following conditions are met: (1) The concluded that proposed comment institution in accordance with insured institution does not have a 32(b)(5)–2 set forth the circumstances in § 1005.32(c) for the amounts required to correspondent relationship with the which an insured institution can be disclosed under § 1005.31(b)(1)(vi) designated recipient’s institution; (2) the determine the exact covered third-party through (vii), if all of the following designated recipient’s institution does fees for remittance transfers sent conditions are met: (1) The remittance not act as an agent of the insured through correspondent banks in an open transfer provider is an insured institution; (3) the insured institution network payment system and sought institution, as defined in § 1005.32(a)(3); does not have an agreement with the comment on this provision. (2) the insured institution cannot designated recipient’s institution with Proposed comment 32(b)(5)–3.i determine the exact covered third-party respect to the imposition of covered provided that for purposes of fees for a remittance transfer to a third-party fees on the remittance determining whether an insured particular designated recipient’s transfer (e.g., an agreement whereby the institution made 500 or fewer institution at the time it must provide designated recipient’s institution agrees remittance transfers in the prior the applicable disclosures; (3) the to charge back any covered third-party calendar year to a particular designated insured institution made 500 or fewer fees to the insured institution rather recipient’s institution pursuant to remittance transfers in the prior than impose the fees on the remittance proposed § 1005.32(b)(5)(i)(C), the transfer); and (4) the insured institution number of remittance transfers provided calendar year to that designated does not know at the time the includes remittance transfers in the recipient’s institution; and (4) the disclosures are given that the only prior calendar year to that designated remittance transfer generally is sent intermediary financial institutions that recipient’s institution regardless of from the sender’s account with the will impose covered third-party fees on whether the covered third-party fees insured institution. the transfer are those institutions that were estimated for those transfers. The Proposed § 1005.32(b)(5)(i) generally have a correspondent relationship with proposed comment provided an applied to the following disclosures set or act as an agent for the insured example to illustrate. forth in § 1005.31(b)(1)(vi) through (vii) institution, or have otherwise agreed Proposed comment 32(b)(5)–3.ii respectively: (1) The amount of any upon the covered third-party fees with provided that for purposes of the covered third-party fees; and (2) the the insured institution. The Bureau proposed 500-transfer threshold, the amount that will be received by the initially concluded that proposed number of remittance transfers includes designated recipient (after deducting comment 32(b)(5)–1 set forth the remittance transfers provided to the any covered third-party fees). Proposed circumstances in which an insured designated recipient’s institution in the § 1005.32(b)(5)(ii) provided, however, institution cannot determine the exact prior calendar year regardless of that the amount that will be received by covered third-party fees for remittance whether the designated recipients the designated recipient (after deducting transfers sent through correspondent received the funds in the country’s local covered third-party fees) may be banks in an open network payment currency or in another currency. The estimated under proposed system and sought comment on this proposed comment provided an § 1005.32(b)(5)(i) only if covered third- provision. example to illustrate. party fees are permitted to be estimated In contrast, proposed comment The Bureau also proposed conforming under proposed § 1005.32(b)(5)(i) and 32(b)(5)-2 provided that for purposes of changes to the following provisions to the estimated covered third-party fees proposed § 1005.32(b)(5)(i)(B), an reference the proposed exception in affect the amount of such disclosure. insured institution can determine, at the § 1005.32(b)(5) where the temporary For example, if the covered third-party time it must provide the applicable exception in § 1005.32(a) currently is fees for a remittance transfer may not be disclosures, exact covered third-party referenced and pertains to the estimated under proposed fees for a remittance transfer, and thus estimation of covered third-party fees: § 1005.32(b)(5), the amount that will be the insured institution may not use the (1) § 1005.32(c); (2) received by the designated recipient exception in proposed § 1005.32(b)(5) to § 1005.33(a)(1)(iii)(A); (3) (after deducting any covered third-party estimate the disclosures required under § 1005.36(b)(3); (4) comment 32–1; (5) fees) may not be estimated under § 1005.31(b)(1)(vi) or (vii) for the comment 32(c)(3)–1; and (6) comment proposed § 1005.32(b)(5). The insured transfer, if any of the following 36(b)–3. institution, however, could be able to conditions are met: (1) An insured use another permanent exception set institution has a correspondent Comments Received forth in § 1005.32(b), including the relationship with the designated Similar to proposed § 1005.32(b)(4), proposed exception in § 1005.32(b)(4), recipient’s institution; (2) the designated the Bureau received a significant
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number of comments on proposed comment is addressed in the section-by- exclude remittance transfers delivered § 1005.32(b)(5) from banks, credit section analysis of § 1005.32(b)(4). in U.S. dollars from the threshold count, unions, their trade associations, and Several industry commenters regardless of whether money is their service providers. The Bureau also provided comments that related converted into local currency before received approximately 60 comments specifically to proposed § 1005.32(b)(5) final delivery in U.S. dollars. Two trade from individual consumers, nearly all of for estimating covered third-party fees. associations indicated that the Bureau whom were credit union members. The Two trade associations requested that should count recipient institutions by Bureau received two comments from the Bureau increase the threshold to the first eight digits in a bank identifier consumer groups. 1,000 or fewer transfers to a particular code, which identify a bank at a country Comments from credit unions, banks, designated recipient’s institution in the level. These trade associations urged the their trade associations, and their prior calendar year. These trade Bureau to count transfers at a country, service providers. As discussed in more associations indicated that a 1,000- rather than global level, given that detail in the section-by-section analysis transfer threshold is more appropriate multinational banks typically have very of § 1005.32(b)(4), many industry due to repetitive requests by consumer different policies from one country to commenters provided the same to send transfers to a single institution. the next. comments for both proposed One credit union urged the Bureau to The Bureau did not receive any § 1005.32(b)(4) related to estimating the increase the threshold to 3,000 or fewer comments from industry specifically on exchange rate and proposed transfers to a particular designated proposed comments 32(b)(5)–1 and –2 § 1005.32(b)(5) related to estimating recipient’s institution in the prior that set forth guidance on whether covered third-party fees. Many industry calendar year. This credit union under proposed § 1005.32(b)(5)(i)(B) an commenters encouraged the Bureau to indicated that the 3,000-transfer insured institution cannot determine the adopt proposed § 1005.32(b)(4) and (5) threshold amount is a more accurate exact covered third-party fees applicable to permit insured institutions to number that reflects when an institution to a remittance transfer at the time the estimate the exchange rate and covered is unable to determine an exact amount disclosures must be given. Individual commenters. Nearly all of third-party fees, respectively, in certain of covered third-party fees. One trade association suggested that the individual commenters were credit circumstances. Several trade insured institutions should be permitted union members. These individual associations representing credit unions to send more than 500 transfers in the commenters suggested that the Bureau urged the Bureau to revise both prior year to a particular designated should increase the thresholds for the proposed § 1005.32(b)(4) and (5) to recipient’s institution and still qualify proposed exceptions in § 1005.32(b)(4) increase the threshold amounts to 2,000 for the exception, if one of the following and (5) to 2,000 or fewer transfers. transfers in the prior calendar year. conditions applies: (i) Establishing a These individual commenters indicated Another trade association indicated that relationship management application that to align proposed exceptions in the Bureau should exclude closed loop (RMA) or correspondent or agency proposed § 1005.32(b)(4) and (5) with transfers from being considered for arrangement with a recipient institution their recommendation that the Bureau purposes of the thresholds under would exceed the provider’s risk raise the normal course of business safe proposed § 1005.32(b)(4) and (5). One tolerance; (ii) regulatory compliance harbor threshold to 1,000 transfers, the bank requested that the Bureau provide challenges posed by another rule or Bureau should correspondingly increase guidance regarding application of the guideline that prevent the provider from the thresholds for proposed thresholds set forth in proposed establishing these relationships or other § 1005.32(b)(4) and (5) to 2,000 or fewer § 1005.32(b)(4) and (5) if an institution regulatory restrictions; (iii) a recipient transfers in the prior calendar year to merges with another or acquires another institution refuses to have an RMA or reflect a ‘‘normal course of business’’ institution. Two trade associations correspondent or agency arrangement threshold set at 1,000 transfers. One indicated that the Bureau should with the provider; (iv) a recipient individual commenter supported the establish a six-month transition period institution is in a jurisdiction where proposed exceptions in proposed after an insured institution exceeds the instructions (such as OUR codes) 63 are § 1005.32(b)(4) and (5), asserting that threshold amounts in proposed routinely disregarded; or (v) the they would benefit insured institutions § 1005.32(b)(4) and (5) during which the remittance transfer is instructed in a but not likely harm consumers. One institution could still avail itself of the currency that is not the local currency. individual commenter opposed the new proposed exceptions. In the 2019 This trade association indicated that proposed exceptions in § 1005.32(b)(4) Proposal, the Bureau solicited comment during an examination, a regulator can and (5), asserting that these exceptions on whether the proposed exceptions in evaluate that the provider did in fact prevent transparency for the public and proposed § 1005.32(b)(4) and (5) should document risk or regulatory compliance consumers. be sunset. Several banks and a trade reasons for being unable to establish an Consumer groups. The Bureau association urged the Bureau not to RMA. received comment letters from two sunset proposed § 1005.32(b)(4) and (5). Several industry commenters consumer groups. As discussed in more These comments are addressed with suggested that the Bureau exclude detail in the section-by-section analysis respect to § 1005.32(b)(5) below. certain transfers from the 500-transfer of § 1005.32(b)(4), these consumer One trade association representing threshold or clarify whether certain groups opposed both of the proposed credit unions indicated that the Bureau transfers are included within the exceptions in proposed § 1005.32(b)(4) should commit to revisiting the threshold. One trade association and (5). These consumer groups sufficiency of the thresholds in indicated that the Bureau should indicated that the Bureau should proposed § 1005.32(b)(4) and (5) shortly withdraw its proposal in its entirety and after implementation of a final rule to 63 As discussed in greater detail in the 2019 instead consider ways to expand the ensure that costs borne by Proposal, the OUR code instructs financial applicability of EFTA’s protections for correspondents ineligible to use institutions that receive payment instructions sent remittances. The consumer groups also via SWIFT that the sending institution will bear all estimates are not passed on to of the payment transaction fees and the recipient of indicated that if the Bureau does adopt community institutions that do not the payment will not pay any such fees. 84 FR proposed § 1005.32(b)(4) and (5), the themselves exceed the thresholds. This 67132, 67148 (Dec. 6, 2019). Bureau should not make these
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exceptions permanent. The consumer (1) § 1005.32(c); (2) and research, the Bureau concludes that groups also indicated that the Bureau § 1005.33(a)(1)(iii)(A); (3) if it does not provide any additional should not extend these proposed § 1005.36(b)(3); (4) comment 32–1; (5) exceptions that allow estimates of exceptions to non-insured institutions. comment 32(c)(3)–1; and (6) comment covered third-party fees after the 36(b)–3. temporary exception expires, some The Final Rule In light of the comments received on insured institutions may choose to stop This final rule adopts § 1005.32(b)(5) the 2019 Proposal and prior outreach sending remittance transfers to and comments 32(b)(5)–1 and –2 and research, the Bureau concludes that recipients with accounts at certain generally as proposed with one revision the data it collected support the designated recipient’s institutions. to § 1005.32(b)(5). As revised, adoption of § 1005.32(b)(5) and These insured institutions may choose § 1005.32(b)(5) permits an insured comments 32(b)(5)–1 through –5. The to stop providing certain remittance institution to continue to use Bureau’s legal authority to adopt these transfers because they deem the costs of § 1005.32(b)(5) to provide estimates of provisions is discussed below. determining exact covered third-party covered third-party fees for a remittance Based on the comments received on fees to be prohibitively expensive. The transfer sent to a particular designated the 2019 Proposal and prior outreach Bureau concludes that if these recipient’s institution even if the and research, the Bureau determines institutions discontinue providing such insured institution sent more than 500 that if an insured institution is sending transfers, consumer access to remittance transfers to the designated recipient’s 500 or fewer transfers annually to a transfer services for certain designated institution in the prior calendar year, if given designated recipient’s institution, recipient’s institutions may be reduced a United States Federal statute or it may be unduly costly for the insured or eliminated. As discussed in more regulation prohibits the insured institution to establish the necessary detail above in the section-by-section institution from being able to determine relationships to know the covered third- analysis of § 1005.32(a), it appears the exact covered third-party fees, and party fees that would apply to a unlikely in the short-to-medium term the insured institution meets the other remittance transfer at the time the that any new technologies or conditions set forth in § 1005.32(b)(5).64 disclosures must be given. For example, partnerships will be able to fully This final rule adopts comment based on comments received on the eliminate insured institutions’ reliance 32(b)(5)–3 as proposed with one 2019 Proposal and prior outreach and on estimates. revision to clarify that the 500-transfer research, the Bureau understands that Also, the Bureau concludes that in a threshold applicable to a particular insured institutions sending remittance scenario in which the Bureau provides designated recipient’s institution in the transfers through correspondent banks no new exception to allow estimates of past calendar year only includes in an open network payment system covered third-party fees when the transfers to the designated recipient’s would know the exact amount of temporary exception expires, insured institution and any of its branches in the covered third-party fees that will apply institutions that continue to offer country to which the particular transfer to a remittance transfer at the time remittance transfer services may see described in § 1005.32(b)(5) is sent. This disclosures are given if the insured costs increase when sending transfers to final rule also adds a new comment institution has a correspondent certain designated recipient’s 32(b)(5)–4 to provide additional relationship with the designated institutions if insured institutions have guidance on the provision related to recipient’s institution. The Bureau to change the ways they provide United States Federal statutes or understands that another way in which remittance transfers in order to disclose regulations as discussed above. This the insured institution may know at the exact covered third-party fees. The final rule also adds new comment time the disclosures must be given the Bureau expects that this could lead to 32(b)(5)–5 to provide a transition period exact amount of covered third-party fees increased prices for consumers. In for institutions that exceed the 500- for a particular remittance transfer is addition, the Bureau determines that transfer threshold-amount under through using the cover method under prices for consumers may also increase § 1005.32(b)(5) in a certain year, which the SWIFT network, as discussed above. for transfers to certain designated would allow them to continue to To use the cover method, the insured recipient’s institutions (due to reduced provide estimates of covered third-party institution would need an RMA with competition) if the number of fees for a reasonable period of time the designated recipient’s institution. remittance transfer providers offering while they come into compliance with The Bureau understands that there are remittance transfers to such designated the requirement to provide exact costs to maintaining the relationships recipient’s institutions is reduced due to covered third-party fees. Each of these that are needed to enable insured some providers eliminating or curtailing revisions are discussed in more detail institutions to provide exact disclosures transfer services because they could not below. This final rule also adopts of covered third-party fees for determine and disclose exact covered conforming changes to the following remittance transfers.65 Based on third-party fees for those designated provisions to reference the exception in comments on the 2019 Proposal, and recipient’s institutions. § 1005.32(b)(5) where the temporary prior outreach and research, the Bureau Each of the four conditions set forth exception in § 1005.32(a) currently is determines that anticipated transfer in § 1005.32(b)(5)(i)(A) through (D) is referenced and pertains to the volume from an insured institution to a discussed in more detail below. estimation of covered third-party fees: The remittance transfer provider is an particular designated recipient’s insured institution. This final rule institution is an important factor in the 64 This provision only applies if a United States adopts § 1005.32(b)(5)(i)(A) as proposed insured institution’s decision about Federal statute or regulation prohibits the insured to provide that the remittance transfer whether to form and maintain such institution from being able to determine the exact provider must be an insured institution covered third-party fees. The Bureau notes, relationships. as defined in § 1005.32(a)(3). In the 2019 however, that the permanent exception in Based on the comments received on § 1005.32(b)(1) allows estimates in certain Proposal, the Bureau solicited comment the 2019 Proposal, and prior outreach circumstances if a remittance transfer provider on whether the proposed exception in cannot determine the exact amounts when the disclosure is required because the laws of the 65 See Financial Stability Bd., FSB Correspondent § 1005.32(b)(5) should be extended to recipient country do not permit such a Banking Data Report, at 4, 44 (2017); 2016 BIS apply to remittance transfer providers determination. Report at 11. that are not insured institutions,
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including MSBs and broker-dealers, and in § 1005.32(b)(5)(i)(C) is consistent relationship that allows the insured the reasons why the proposed exception with its goal to provide a tailored institution to know the exact covered should apply to these persons. For the permanent exception to address third-party fees. The Bureau concludes same reasons discussed in the section- compliance challenges that insured that these closed loop transfers should by-section analysis of § 1005.32(b)(4), institutions may face in certain not be excluded from the 500-transfer this final rule does not extend the circumstances upon the expiration the threshold because these transfers might exception in § 1005.32(b)(5) to apply to temporary exception and to preserve make it more likely that it is cost remittance transfer providers that are consumers’ access to remittances effective for the insured institution to not insured institutions. transfers to certain designated extend these existing relationships to The insured institution cannot recipient’s institutions. cover additional transfers. determine the exact covered third-party This final rule revises comment The Bureau also is not excluding fees for a remittance transfer to a 32(b)(5)–3 from the proposal to clarify remittance transfers delivered in U.S. particular designated recipient’s that the 500-transfer threshold dollars or in a currency other than the institution at the time it must provide applicable to a particular designated country’s local currency from the the applicable disclosures. This final recipient’s institution in the past threshold amount under rule adopts § 1005.32(b)(5)(i)(B) as calendar year only includes transfers to § 1005.32(b)(5)(i)(C). The Bureau proposed to provide that, at the time the the designated recipient’s institution concludes that these transfers are insured institution must provide, as and any of its branches in the country relevant to whether it is cost effective to applicable, the disclosure required by to which the particular transfer develop relationships necessary to § 1005.31(b)(1) through (3) or described in § 1005.32(b)(5) is sent. New determine exact covered third-party fees § 1005.36(a)(1) or (2), the insured comment 32(b)(5)–3.iii provides the regardless of whether the transfers are institution cannot determine the exact following example: If the particular delivered in U.S. dollars or in a covered third-party fees required to be remittance transfer described in currency other than the country’s local disclosed under § 1005.31(b)(1)(vi) for § 1005.32(b)(5) is being sent to the currency. that remittance transfer. This final rule designated recipient’s institution Bank A United States Federal statute or also adopts comments 32(b)(5)–1 and –2 XYZ in Nigeria, the number of regulation prohibits the insured as proposed that provide guidance on remittance transfers for purposes of the institution from being able to determine when an insured institution can or 500-transfer threshold would include the exact covered third-party fees. One cannot determine the exact covered remittances transfers in the previous trade association suggested that insured third-party fees as applicable to a calendar year that were sent to Bank institutions should be permitted to send remittance transfer at the time the XYZ, or to its branches, in Nigeria. The more than 500 transfers in the prior year disclosures must be given. The Bureau 500-transfer threshold would not to a particular designated recipient’s did not receive specific comments on include remittance transfers that were institution and still qualify for the § 1005.32(b)(5)(i)(B) and comments sent to branches of Bank XYZ that were exception, if regulatory compliance 32(b)(5)(i)–1 and –2. The Bureau notes located in any country other than that if the insured institution can Nigeria. Based on outreach, the Bureau challenges posed by another rule or determine the exact covered third-party recognizes that correspondent guideline exists that prevent the fees required to be disclosed under relationships or RMAs with designated provider from establishing the necessary § 1005.31(b)(1)(iv) for the remittance recipient’s institutions are formed for a relationships to determine exact covered transfer, the insured institution may not particular country and the same third-party fees, or other regulatory use the exception in § 1005.32(b)(5) to relationship does not cover all countries restriction. estimate the exchange rate, even if the in which that designated recipient’s The Bureau believes that it is insured institution made 500 or fewer institution operates. appropriate for an insured institution to remittance transfers in the prior With respect to the threshold amount be able to estimate covered third-party calendar year to the designated for proposed § 1005.32(b)(5)(i)(C), one fees if a United States Federal statute or recipient’s institution as set forth in trade association indicated that the regulation prohibits the insured § 1005.32(b)(5)(i)(C). Bureau should exclude from the institution from being able to determine The insured institution made 500 or threshold correspondent remittance the exact covered third-party fees and fewer remittance transfers in the prior transfers serviced by a financial the insured institution meets the other calendar year to that designated institution. The Bureau agrees and conditions set forth in § 1005.32(b)(5). recipient’s institution. This final rule further believes that the 2019 Proposal This final rule revises proposed adopts the 500-transfer threshold in was, and this final rule is, clear that the § 1005.32(b)(5)(i)(C) to permit an § 1005.32(b)(5)(i)(C) as proposed but, as 500-transfer threshold set forth in insured institution to still use discussed below, is providing additional § 1005.32(b)(5)(i)(C) only includes § 1005.32(b)(5) to provide estimates of guidance on which transfers count in transfers in the previous year that are covered third-party fees for a remittance this threshold. Several industry made by the insured institution in its transfer sent to a particular designated commenters suggested that the Bureau role as the remittance transfer provider. recipient’s institution even if the should increase this threshold amount The 500-transfer threshold does not insured institution sent more than 500 to 1,000, 2,000, or 3,000 transfers in the include transfers where an insured transfer to the designated recipient’s previous year. Nonetheless, these institution is acting as a correspondent institution in the prior calendar year if commenters did not provide specific on behalf of a sending institution. a United States Federal statute or data on why these higher thresholds are The Bureau is not excluding closed regulation prohibits the insured needed to protect access to transfers to loop transfers from being included in institution from being able to determine particular designated recipient’s the threshold amount under the exact covered third-party fees and institutions because it would not be cost § 1005.32(b)(5)(i)(C). The Bureau the insured institution meets the other effective to establish the necessary understands with respect to closed loop conditions set forth in § 1005.32(b)(5). relationships to obtain exact covered transfers, the insured institution does This final rule also adopts new third-party fees. The Bureau believes not need to estimate covered third-party comment 32(b)(5)–4 to provide that the 500-transfer threshold adopted fees because they have an agency-type additional guidance on the United
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States Federal statute or regulation adopting these suggestions. The Bureau provision, insured institutions may find provision in § 1005.32(b)(5)(i)(C). concludes that these conditions do not it difficult or impossible to comply with New comment 32(b)(5)–4 provides establish objective criteria that are both the requirement to provide exact that a United States Federal statute or outside the provider’s control and are covered third-party fee disclosures regulation prohibits the insured sufficiently clear such that the Bureau starting January 1 of the next year if they institution from being able to determine and the industry would be able to exceed the 500-transfer threshold late in the exact covered third-party fees for the determine whether these conditions are the current year. The Bureau concludes remittance transfer if the United States met. that this transition period also may help Federal statute or regulation (1) The remittance transfer is sent from to address issues raised by industry prohibits the insured institution from the sender’s account with the insured commenters related to mergers and disclosing exact covered third-party fees institution. This final rule adopts acquisitions, if the combination of two in disclosures for transfers to a § 1005.32(a)(5)(i)(D) as proposed to remittance transfer providers could designated recipient’s institution; or (2) provide that the remittance transfer result in the number of transfers makes it infeasible for the insured must be sent from the sender’s account exceeding a threshold and thereby institution to form a relationship with with the insured institution; provided, imposing requirements that had not the designated recipient’s institution however, for the purposes of applied before. and that relationship is necessary for the § 1005.32(b)(5), a sender’s account Permanent exception. In the 2019 insured institution to be able to would not include a prepaid account, Proposal, the Bureau solicited comment determine, at the time it must provide unless the prepaid account is a payroll on whether the Bureau should adopt a the applicable disclosures, exact card account or a government benefit sunset provision with respect to the covered third-party fees. For example, if account. The Bureau did not receive exception in proposed § 1005.32(b)(5). a correspondent relationship is specific comments on this provision. For the same reasons discussed in the necessary for an insured institution to Transition period. In response to section-by-section analysis of be able to determine the exact covered comments received on the 2019 § 1005.32(b)(4), the Bureau is not third-party fees for transfers to a Proposal, the Bureau is adding a new adopting a sunset provision with respect designated recipient’s institution and a comment 32(b)(5)–5 to provide a to § 1005.32(b)(5). transition period for institutions that United States Federal statute or Legal authority. To effectuate the exceed the 500-transfer threshold- regulation makes it infeasible for the purposes of EFTA and to facilitate amount under § 1005.32(b)(5) in a insured institution to establish that compliance, the Bureau is using its relationship, the insured institution may certain year, which would allow them to EFTA section 904(a) and (c) authority to use § 1005.32(b)(5) to provide estimates continue to provide estimates of covered add a new exception under of covered third-party fees for a third-party fees for a reasonable period § 1005.32(b)(5). Under its EFTA section remittance transfer sent to the of time while they come into 904(c) authority, the Bureau ‘‘may designated recipient’s institution even if compliance with the requirement to provide for such adjustments and the insured institution sent more than provide exact covered third-party fees. exceptions for any class of electronic 500 transfers to the designated Specifically, comment 32(b)(5)–5 fund transfers or remittance transfers, as recipient’s institution in the prior provides that if an insured institution in in the judgment of the Bureau are calendar year, as long as the insured the prior calendar year did not exceed necessary or proper to effectuate the institution meets the other conditions the 500-transfer threshold to a particular set forth in § 1005.32(b)(5). The Bureau designated recipient’s institution purposes of this subchapter, to prevent pursuant to § 1005.32(b)(5)(i)(C), but circumvention or evasion thereof, or to is not aware of, nor did commenters 66 identify, any United States Federal does exceed the 500-transfer threshold facilitate compliance therewith.’’ The statute or regulation that would both in the current calendar year, the insured Bureau determines that the exception make it infeasible for insured institution has a reasonable amount of would facilitate compliance with EFTA, institutions to establish such a time after exceeding the 500-transfer preserve consumer access, and relationship or the other types of threshold to begin providing exact effectuate its purposes. Specifically, the relationships described in comment covered third-party fees in disclosures Bureau interprets ‘‘facilitate 32(b)(5)–2 while still allowing the (assuming that a United States Federal compliance’’ to include enabling or insured institution to make remittance statute or regulation does not prohibit fostering continued operation in transfers to a designated recipient’s the insured institution from being able conformity with the law. The Bureau institution. to determine the exact covered third- concludes that the exception set forth in The trade association commenter party fees, or the insured institution § 1005.32(b)(5) is targeted to facilitate discussed above also suggested that cannot rely on another exception in compliance in those circumstances insured institutions should be permitted § 1005.32 to estimate covered third- where it would be unduly burdensome to send more than 500 transfers in the party fees). The reasonable amount of for an insured institution to determine prior year to a particular designated time must not exceed the later of six covered third-party fees (i.e., it may be recipient’s institution and still qualify months after exceeding the 500-transfer infeasible or impracticable, due to for the exception, if any of the following threshold in the current calendar year or disproportionate cost or conflict with conditions apply: (i) Establishing an January 1 of the next year. Comment United States Federal statute or RMA or correspondent or agency 32(b)(5)–5 also provides an example to regulation). Moreover, in the arrangement with a recipient institution illustrate this guidance. circumstances in which institutions would exceed the provider’s risk The Bureau determines that this may be able to take advantage of this tolerance; (ii) a recipient institution transition period will facilitate disclosure exception, the insured refuses to have an RMA or compliance with the Remittance Rule by institutions remain subject to the correspondent or agency arrangement allowing institutions a reasonable Remittance Rule’s other requirements, with the provider; or (iii) a recipient amount of time to establish the including the continued obligation to institution is in a jurisdiction where relationships necessary with designated provide disclosures and the instructions (such as OUR codes) are recipient’s institutions to provide routinely disregarded. The Bureau is not covered third-party fees. Without this 66 15 U.S.C. 1693b(c).
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requirements related to error resolution determined that the recipient country countries whose laws the Bureau has and cancellation rights. does not legally allow, or the methods decided prevent remittance transfer The Bureau’s authority, therefore, is by which transactions are made in the providers from determining, at the time tailored to providing an adjustment for recipient country do not allow, a the required disclosures must be the specific compliance difficulties or remittance transfer provider to know the provided, the exact exchange rate on the challenges that insured institutions face amount of currency the designated date of availability for a transfer in providing exact disclosure of covered recipient will receive. If these involving a currency exchange.70 The third-party fees that could cause those conditions are met, the provider may Bureau also explained that the safe institutions to reduce or cease offering use a reasonably accurate estimate of the harbor countries list was subject to transfers to certain institutions, which foreign currency to be received, based change, and provided instructions for in turn could mean that consumers have on the exchange rate the provider contacting the Bureau to request that less access to remittance transfer conveyed to the sender at the time the countries be added or removed from the services or have to pay more for them. sender initiated the transaction.68 list.71 Since 2012, the Bureau has not By preserving such access, the The Bureau implemented section added any additional countries to this exception also could help maintain 919(c) of EFTA in § 1005.32(b)(1), list. competition in the marketplace, creating a ‘‘permanent exception for The Bureau has received feedback therefore effectuating one of EFTA’s transfers to certain countries.’’ The over the years from some remittance purposes. If the temporary exception exception is available in two situations. transfer providers and their trade expired without the Bureau taking any First, § 1005.32(b)(1)(i) permits associations regarding the Bureau’s mitigation measure, the Bureau providers to use estimates if they cannot countries list. In the 2019 RFI, the concludes certain insured institutions determine exact amounts because (A) Bureau sought comment on what other may stop sending transfers to some the laws of the recipient country do not countries, if any, should be added to the designated recipient’s institutions, permit such a determination, or (B) the list because their laws do not permit the therefore reducing sender access and method by which transactions are made determination of exact amounts at the competition for those transfers. This in the recipient country does not permit time the pre-payment disclosure must potential loss of market participants such determination. Comment 32(b)(1)– be provided.72 In response, several could be detrimental to senders because 2.i explains that, for example, under the industry commenters, including trade it could result in a reduced ability to first category, the laws do not permit associations, banks, and a credit union, send transfers to some designated exact disclosures when the exchange made various requests, primarily recipient’s institutions or an increase rate is determined after the provider suggesting that particular countries or the price of remittance transfers.67 sends the transfer or at the time of regions be added to the list. A few of these commenters requested that the Technical Corrections receipt. Comment 32(b)(1)–3 offers an example of a situation that qualifies for Bureau make other changes to the This final rule adopts several the methods exception. The example permanent exception in § 1005.32(b)(1) technical corrections to the existing provided is a situation where to address, for example, difficulties in regulatory text and commentary. These transactions are sent via international obtaining accurate fee and exchange rate technical corrections address clerical ACH on terms negotiated between the information that they assert occur when errors the Bureau found in the U.S. government and the recipient sending open network transfers. A Remittance Rule. First, the Bureau is country’s government, under which the group of trade association commenters making a technical correction to existing exchange rate is a rate set by the also suggested that the Bureau loosen § 1005.32(c)(4) by italicizing the heading recipient country’s central bank or other and revise its requirements for the of this subsection (‘‘Amount of currency governmental authority after the inclusion of additional countries on the that will be received by the designated provider sends the remittance transfer. countries list as a way to mitigate the recipient’’). Second, the Bureau is Comments 32(b)(1)–4.i through iii expiration of the temporary exception. making a technical correction to existing provide additional examples of In the 2019 Proposal, the Bureau did comment 31(b)(1)(viii)–2 to fix two situations that do and do not qualify for not propose to make any changes to misspelled cross-references to other the methods exception. § 1005.32(b)(1) or to the Bureau’s safe sections of the regulatory text and Second, § 1005.32(b)(1)(ii) offers a harbor countries list, but again sought commentary. Third, the Bureau is safe harbor allowing remittance transfer comment on the permanent exception in making a technical correction to existing providers to disclose estimates instead § 1005.32(b)(1) and on the countries list. comment 32(b)(1)–5 by adding a definite of exact amounts for remittance The Bureau asked commenters to article (‘‘the’’) that should have been in transfers to certain countries as provide feedback on a number of issues, the commentary text. These technical determined by the Bureau. However, the such as the current composition of the corrections do not change or alter the Rule does not allow a remittance countries list, the substantive criteria by meaning of the existing regulatory text transfer provider to use this safe harbor which the Bureau adds countries to the and commentary. if the provider has information that a countries list, and the processes and The Permanent Exception in country’s laws or the method by which transactions are conducted in that (Countries List), http://files.consumerfinance.gov/f/ § 1005.32(b)(1) and the Bureau’s Safe 201209_CFPB_Remittance-Rule-Safe-Harbor- Harbor Countries List country in fact permits a determination Countries-List.pdf. The Bureau subsequently Section 919(c) of EFTA) allows the of the exact disclosure amount. published that list in the Federal Register. 78 FR In 2012, the Bureau issued a list of 66251 (Nov. 5, 2013). Bureau to write regulations specific to five countries—Aruba, Brazil, China, 70 Countries List at 3. transfers to certain countries if it has 71 Ethiopia, and Libya—that qualify for Id. at 3–4. 72 69 The Bureau also asked that commenters 67 As the Bureau stated in the 2019 RFI, the this safe harbor. The list contains describe how the relevant laws prevent such a Bureau recognizes the value to consumers of being determination, and whether the countries were ones able to send remittance transfers directly from a 68 EFTA section 919(c)(2), codified at 15 U.S.C. for which remittance transfer services were not checking account to the account of a recipient in 1693o–1(c)(2). currently being provided, or whether providers a foreign country though their bank or credit union. 69 Bureau of Consumer Fin. Prot., Remittance were relying on estimates. 84 FR 17971, 17977 (Apr. 84 FR at 17974. Rule Safe Harbor Countries List (Sept. 26, 2012) 29, 2019).
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standards by which the Bureau countries list. The Bureau also will expressly limits the length of the considers requests to make changes to make determinations in response to the temporary exception to July 21, 2020. the countries list (e.g., whether the pending request to add two countries to The Bureau, therefore, cannot and is not Bureau should articulate a more the countries list. extending the exception. As such, the detailed list of information and temporary exception will expire on July Effective Date documents that an applicant should 21, 2020. submit to make such a request of the In the 2019 Proposal, the Bureau The Bureau recognizes, however, the Bureau). The Bureau also solicited proposed to have the proposed serious impact that the COVID–19 comment on whether insured amendments take effect on July 21, 2020 pandemic is having on consumers and institutions expected that new and sought comment on the proposed the operations of many entities. In permanent exceptions would address effective date. The Bureau also sought addition, the Bureau recognizes that, for their concerns regarding providing comment on any compliance issues that insured institutions providing estimates or whether they would might arise for insured institutions remittance transfers for their customers, additionally need to rely on when transitioning from use of the the expiration of the statutory temporary § 1005.32(b)(1). The Bureau noted in the temporary exception to use of the two exception to the Remittance Rule’s 2019 Proposal that its focus in this proposed permanent exceptions set requirement to disclose the exact costs rulemaking was to address the forth in proposed § 1005.32(b)(4) and of remittance transfers will deepen the expiration of the temporary exception (5). In addition, the Bureau solicited potential impact on those customers. and the safe harbor threshold. feedback on whether a mid-year change Moreover, insured institutions that are Accordingly, the Bureau cautioned that, in the normal course of business safe remittance transfer providers play a in light of its timeframe for doing so, it harbor threshold would pose any vital role in ensuring that consumers would give priority to addressing those complications for providers or cause can send money abroad. This access is issues over the issues relating to the confusion, and if so, whether the Bureau especially critical in responding to the countries list. should make the change to the normal dramatic effects on the finances of Five commenters, including one course of business safe harbor threshold consumers, both in the United States effective on some later date, such as credit union, one regional bank in the and abroad, as a result of the January 1, 2021. Federal Reserve System, and three trade coronavirus crisis. The Bureau therefore associations addressed § 1005.32(b)(1) Five commenters, including three trade associations and two credit issued a statement on April 10, 2020 to and the countries list. Two of the trade announce that, for remittances that association commenters asked the unions, addressed the effective date. The two credit union commenters occur on or after July 21, 2020, and Bureau to revise the procedures the before January 1, 2021, the Bureau does Bureau uses to evaluate requests to expressed support for the proposed July 21, 2020 effective date. A trade not intend to cite in an examination or change the countries list. One of these initiate an enforcement action in commenters suggested specific changes, association representing banks urged the Bureau to establish the earliest possible connection with the disclosure of actual such as providing a list of specific third-party fees and exchange rates evidence required for submission when effective date. One credit union against any insured institution that will making requests and publishing the commenter stated that a 30-day be newly required to disclose actual Bureau’s determinations. This implementation period would provide third-party fees and exchange rates after commenter, which represents large ample time for implementation. Two the temporary exception expires.73 banks, along with two other trade associations representing large The Bureau’s statement is in addition commenters, including a trade banks and other financial institutions to the actions it is taking in this final association representing credit unions urged the Bureau to extend the and a regional bank in the Federal temporary exception for one year to rule. As set forth above in greater detail Reserve System, also provided provide entities time to transition to the in the section-by-section analyses of suggestions for revising the substantive new permanent exceptions. Both cited § 1005.32(b)(4) and (5), this final rule criteria to determine whether a country the need for providers to have time to adopts a transition period for insured qualifies for the permanent exception. assess their eligibility for the new institutions that exceed, as applicable, One of the trade association permanent exceptions. One of these the 1,000-transfer or 500-transfer commenters, which represents MSBs, commenters also identified specific thresholds in a certain year for the asked the Bureau to add two specific challenges associated with permanent exceptions found in countries to the list and provided implementing the expiration of the § 1005.32(b)(4) and (5). These transition information supporting that request. temporary exception, such as periods will allow these institutions to Finally, the credit union commenter transitioning from providing estimates, continue provide estimates for a stated its belief that finalizing the entering into new agreements, and reasonable period of time after they exceptions in proposed § 1005.32(b)(4) establishing new currency desks. No cross the relevant thresholds (whenever and (5) would obviate the need for the commenters addressed the mid-year that occurs, even if beyond January 1, permanent exception set forth in effective date of the revised normal 2021) while they come into compliance § 1005.32(b)(1). course of business safe harbor with the requirement to provide exact The Bureau noted in the 2019 thresholds. amounts. Proposal that its focus in this The Bureau is finalizing the effective VI. Dodd-Frank Act Section 1022(b) rulemaking was to address the date as proposed. As such, the Analysis expiration of the temporary exception amendments adopted in this final rule and the normal course of business safe will take effect on July 21, 2020. This A. Overview harbor threshold. Therefore, the Bureau effective date ensures that providers can The Bureau has considered the is not amending § 1005.32(b)(1) or the take advantage of the revised normal potential benefits, costs and impacts of countries list as part of this final rule. course of business safe harbor threshold However, the Bureau will update the and the new permanent exceptions 73 See https://files.consumerfinance.gov/f/ process it uses to consider requests to when the temporary exception expires. documents/cfpb_policy-statement_remittances- add or remove countries from the As discussed above, EFTA section 919 covid-19_2020-04.pdf.
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this final rule.74 In developing this final designated recipient’s institution in the transfers in the prior and current rule, the Bureau has consulted with prior calendar year, or a United States calendar years. appropriate Federal agencies regarding Federal statute or regulation prohibits With respect to the provisions of this the consistency of this final rule with the insured institution from being able final rule, the Bureau’s analysis prudential, market, or systemic to determine the exact covered third- considers the benefits and costs to objectives administered by such party fees, and (b) the insured remittance transfer providers (covered agencies as required by section institution cannot determine the exact persons) as well as to senders 1022(b)(2)(B) of the Dodd-Frank Act.75 covered third-party fees for that (consumers). The Bureau has discretion This final rule amends several particular transfer at the time it must in any rulemaking to choose an elements of the Remittance Rule. (1) It provide the applicable disclosures. appropriate scope of analysis with raises the normal course of business safe The Bureau generally considered the respect to benefits, costs, and impacts, harbor threshold for providing benefits, costs, and impacts of this final as well as an appropriate baseline or remittance transfers in the normal rule against a baseline in which the baselines. course of business from 100 transfers Bureau takes no action. The baseline B. Data Limitations and Quantification annually to 500 transfers annually. under this approach includes the of Benefits, Costs, and Impacts Under this change, a person that following: (1) The expiration of the The discussion in this impact analysis provided 500 or fewer remittance Rule’s existing temporary exception, relies on data the Bureau gathered prior transfers in the previous calendar year which allows insured institutions to to issuing the 2019 Proposal, which and provides 500 or fewer remittance disclose estimates instead of exact include data obtained from industry, transfers in the current calendar year is amounts to consumers under certain deemed not to be providing remittance other regulatory agencies, and publicly circumstances, and (2) the normal available sources, and in response to its transfers in the normal course of its course of business safe harbor threshold business and thus is not subject to the 2019 Proposal. Over the years, the of 100 transfers in the current Rule. Bureau has done extensive outreach on Rule. (2) This final rule provides a The impact analysis discusses two permanent exception that allows many of the issues that this final rule baselines in sequence, as follows. First, addresses, including conducting the insured institutions to estimate the for purposes of considering the normal exchange rate (and other disclosure Assessment and issuing the Assessment course of business safe harbor threshold Report as required under section information that depend on the of 500 transfers, the Bureau uses a exchange rate) under certain conditions 1022(d) of the Dodd-Frank Act, issuing baseline that assumes the temporary the 2019 RFI, meeting with consumer when sending to a country, principally exception will expire and the proposed that (a) the designated recipient of the groups, holding discussions with a permanent exceptions are not adopted number of remittance transfer providers remittance transfer will receive funds in (first baseline). Second, for purposes of the country’s local currency, (b) the that are banks and credit unions of considering the permanent exceptions different sizes and consulting with other insured institution made 1,000 or fewer for exchange rate and covered third- transfers in the prior calendar year to stakeholders before the Bureau issued party fees, the Bureau uses a baseline in the 2019 Proposal, and requesting that country for which the designated which the temporary exception has recipients of those transfers received comment in the 2019 Proposal. The expired and the agency has amended Bureau received some data in response funds in the country’s local currency, the normal course of business safe and (c) the insured institution cannot to each of these outreach efforts. harbor threshold, so entities that However, as discussed further below, determine the exact exchange rate for provide 500 or fewer transfers in the that particular transfer at the time it the data with which to quantify the previous and current calendar years are potential costs, benefits, and impacts of must provide the applicable disclosures. excluded but the proposed permanent (3) This final rule provides a permanent this final rule are generally limited. exceptions are not adopted (second Quantifying the benefits of this final exception that permits insured baseline). Because this final rule rule for consumers presents certain institutions to estimate covered third- increases the normal course of business challenges. As discussed further below, party fees (and other disclosure safe harbor threshold from 100 transfers this final rule will tend to preserve information that depend on the amount annually to 500 transfers annually, access to wire transfers, a form of of those fees) under certain conditions certain entities that are currently remittance transfer provided when sending to a designated covered by the Rule and are currently overwhelmingly by insured institutions, recipient’s institution, principally that benefitting from the temporary and will tend to hold steady the pricing (a) the insured institution made 500 or exception will be exempt from the Rule of wire transfers for certain, but not fewer remittance transfers to that entirely. These entities will obtain no necessarily all, consumers who send additional reduction in burden from the wire transfers. This final rule allows 74 Specifically, section 1022(b)(2)(A) of the Dodd- Frank Act (12 U.S.C. 5512(b)(2)(A)) requires the permanent exceptions for the exchange some insured institutions to continue to Bureau to consider the potential benefits and costs rate and covered third-party fees that estimate, as applicable, the exchange of the regulation to consumers and covered persons, the Bureau is adopting in this final rule, rate, covered third-party fees, and other including the potential reduction of access by because they will be excepted entirely disclosure information that depend on consumers to consumer financial products or services; the impact of the proposed rule on insured from the Rule, as amended. Given this, those amounts when certain depository institutions and insured credit unions the Bureau determines it is appropriate circumstances are met, while other with $10 billion or less in total assets as described to consider the reduction in burden insured institutions will be required to in section 1026 of the Dodd-Frank Act (12 U.S.C. from the permanent exceptions against provide exact amounts in disclosures. 5516); and the impact on consumers in rural areas. a baseline in which the Bureau has Determining the number of consumers 75 Section 1022(b)(2)(B) of the Dodd-Frank Act (12 U.S.C. 5512(b)(2)(B)) requires that the Bureau amended the normal course of business experiencing these different effects and consult with the appropriate prudential regulators safe harbor threshold. In other words, the impact on consumers would require or other Federal agencies prior to proposing a rule the Bureau considers the potential representative market-wide data on the and during the comment process regarding benefits, costs, and impacts of the prevalence of consumers who receive consistency of the proposed rule with prudential, market, or systemic objectives administered by such permanent exceptions only on insured exact amounts as opposed to estimated agencies. institutions that provide more than 500 amounts in disclosures required by the
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Rule, information on the difference institutions to provide estimates for the 1. Raising the Normal Course of between the estimated amounts and the exchange rate, covered third-party fees, Business Safe Harbor Threshold to 500 actual amounts, as well as information and other disclosure information that Transfers Annually on the costs to remittance transfer depend on those amounts under certain This section considers the benefits, providers of providing the exact circumstances on banks and credit costs, and impacts of raising the normal disclosure amounts. The Bureau would unions that currently provide more than course of business safe harbor threshold then need to predict the responses of 500 transfers annually. from 100 transfers annually to 500 remittance transfer providers to these As explained above, the Bureau is not transfers annually. This analysis costs and the prevalence of consumers aware of any MSB remittance transfer proceeds in two steps. First, it examines who would receive exact amounts providers that will qualify for the 500- the information available to the Bureau versus estimated amounts in disclosures transfer normal course of business safe to determine the likely impact of the under this final rule. The Bureau does harbor threshold (and thus will not be change. Second, the analysis then not have the data needed to quantify subject to the Rule). In particular, the considers the likely benefits, costs, and these effects, nor could it readily Bureau believes that all MSBs that impacts of this change. quantify the benefits to consumers of provide remittance transfers provide This final rule raises the normal these effects. course of business safe harbor threshold In light of these data limitations, the more than 500 transfers annually. Further, the two permanent exceptions from 100 transfers annually to 500 analysis below provides both a transfers annually. Under this final rule, quantitative and qualitative discussion apply only to insured institutions and do not apply to MSBs. a person that provided 500 or fewer of the potential benefits, costs, and remittance transfers in the previous impacts of this final rule. Where In light of the above, this final rule calendar year and provides 500 or fewer possible given the data available, the overall could affect MSBs only remittance transfers in the current Bureau makes quantitative estimates indirectly, through shifts in the volume calendar year will be deemed not to be based on economic principles. Where of remittance transfers sent by MSBs providing remittance transfers in the the data are limited or not available, the relative to the volume sent by insured normal course of its business and thus Bureau relies on general economic institutions. The Bureau determines, will not be subject to the Rule. Based on principles and the Bureau’s experience however, that these shifts will be their respective Call Reports,79 414 and expertise in consumer financial limited because MSBs provide a banks and 247 credit unions provided markets to provide a qualitative somewhat different service than banks between 101 and 500 transfers in either discussion of the potential benefits, and credit unions to meet different 2017 or 2018, but not more than 500 in costs, and impacts of this final rule. consumer demands. For example, as either year.80 As such, due to the C. Potential Benefits and Costs to discussed in part II above, in the increase in the normal course of Covered Persons and Consumers Assessment Report, the Bureau found business safe harbor threshold, although that the dollar value of the average these banks and credit unions are As discussed above in explaining the remittance transfer provided by MSBs is currently covered by the Remittance baselines, the cost to certain insured typically much smaller (approximately Rule, they will not be covered after this institutions of the expiration of the $381 on average) than the dollar value final rule takes effect. These institutions temporary exception will be mitigated, of transfers (more than approximately represent 55 percent of banks providing although to differing extents, by the $6,500 on average) provided by banks or more than 100 transfers and 62 percent increase in the normal course of credit unions.77 Thus, in general, if of credit unions providing more than business safe harbor threshold and the some insured institutions increase the 100 transfers. Thus, under this final permanent exceptions that permit cost of sending remittance transfers or rule, 661 previously covered institutions insured institutions to provide estimates cease sending remittance transfers to no longer need to provide exact of the exchange rate and covered third- certain countries and/or designated disclosures or meet any of the other party fees in certain circumstances. In recipient’s institutions when the requirements of the Rule. Comparing particular, insured institutions that temporary exception expires, the Bureau these numbers to calculations from 2017 currently provide between 101 and 500 determines that consumers who had and earlier in the Assessment Report, 76 transfers in the prior and current been using these insured institutions to the number of banks and credit unions calendar years are no longer covered by send wire transfers will generally shift providing between 101 and 500 the Rule and will therefore no longer be to other insured institutions and not to transfers has not changed much from required by the Rule to provide MSBs. The Bureau therefore expects year to year, so is likely to be disclosures. The permanent exceptions only a modest impact relative to the representative of the relief in burden permitting estimation of exchange rate market today on MSBs from the when this final rule takes effect. and covered third-party fees do not have expiration of the temporary exception, any additional effect on the insured Benefits and Costs to Insured with or without this final rule. Thus, the Institutions institutions (and their customers) that Bureau expects only a modest impact on As discussed above, 414 banks and the Rule no longer covers. The Bureau MSBs from this final rule relative to 247 credit unions subject to the Rule therefore believes that it is appropriate either baseline.78 to consider the benefits and costs to consumers and covered persons of this 79 As noted above in the section-by-section 77 Assessment Report at 68, 73. analysis of § 1005.30(f), banks and credit unions are final rule through considering: (1) The 78 Entities besides insured institutions and required to submit quarterly ‘‘Call Reports’’ by the effects of the increase in the normal traditional MSBs can be remittance transfer FFIEC and the NCUA, respectively. For a more course of business safe harbor threshold; providers, including broker-dealers. The Bureau detailed description of these reporting and (2) the effects of the new permanent lacks data on the number of remittance transfers requirements, see Assessment Report at 24. sent by these entities. The Bureau understands that 80 The 2018 transfers of a bank or credit union is exceptions to allow certain insured broker-dealers may use wire services provided by included in this calculation if it provided between banks for remittance transfers and that a broker- 101 and 500 transfers in either 2017 or 2018, even 76 As noted above in the section-by-section dealer’s reliance on the temporary exception may if, for example, it transferred 100 or fewer transfers analysis of § 1005.30(f), ‘‘between 101 and 500’’ mirror that of the banks with whom they are in 2018. Similarly, it is excluded if it provided more means 101 or more and 500 or fewer. associated. than 500 transfers in either year.
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under the first baseline will no longer of business safe harbor threshold on the information necessary to quantify these incur the compliance costs of the Rule market for remittance transfers costs. The Bureau has received under the 500-transfer normal course of discussed in the Assessment Report,83 relatively few complaints from business safe harbor threshold. The the Bureau expects that the net change consumers arising from transfers Bureau does not have a precise estimate in remittance transfers and market provided by banks and credit unions not of the costs these institutions will stop participation will likely be small for covered by the Rule.88 The Assessment incurring. However, the Assessment insured institutions that are no longer Report found that consumers asserted Report discusses the kinds of covered by the Rule because of the errors for as many as 1.9 percent of compliance costs faced by providers increase in the normal course of 81 transfers and cancelled between 0.29 covered by the Rule. These costs business safe harbor threshold to 500 and 4.5 percent of transfers depending include staff training costs, information transfers. on the provider.89 Some banks and acquisition costs for disclosures, and Benefits and Costs to Consumers error investigation and resolution costs. credit unions providing between 101 In addition, if any banks and credit In 2018, insured institutions that and 500 remittance transfers annually unions were restricting the number of would not have been covered if the may continue to provide certain of these remittance transfers that they provide to normal course of business safe harbor protections to their customers, although 100 or fewer in order to qualify for the threshold was set at 500 transfers perhaps in a more limited manner than existing normal course of business safe provided approximately 141,900 required by the Rule. For example, in harbor threshold, it is possible they may transfers.84 These transfers represent 1.2 response to the 2019 Proposal, as noted decide to start providing more percent of calendar year 2018 transfers in the section-by-section analysis of remittance transfers after the threshold by insured institutions providing more § 1005.30(f)(2), one bank trade is increased to 500 transfers. However, than 100 transfers in either 2017 or association commenter asserted that the Assessment Report indicates that 2018.85 The Assessment Report found entities that are no longer subject to the banks and credit unions did not limit that these numbers have been fairly Remittance Rule will still provide their the number of transfers to stay under the stable from year to year before 2018, so customers with information about the existing normal course of business safe are likely to be representative of the fees and charges associated with harbor threshold, nor did banks or decrease in the number of covered sending a remittance transfer and will credit unions appear to cease providing transfers when this final rule takes also take steps to help consumers when effect.86 remittance transfers because of the there are errors related to their transfers. Rule.82 These facts suggest it is unlikely This final rule has potential benefits that many institutions will start and costs to the customers of banks and As noted above, it is possible that, to providing more remittance transfers credit unions providing between 101 the extent any banks and credit unions because of the increase in the normal and 500 remittance transfers annually. intentionally provide 100 or fewer course of business safe harbor threshold. The benefits include potentially lower transfers (so as to qualify for the existing Finally, it is possible that some prices for consumers if the remittance normal course of business safe harbor insured institutions will see effects from transfer provider passes on to them any threshold), they may decide to increase the increased normal course of business reduction in regulatory compliance their transfers under this final rule. The safe harbor threshold because of the costs. As discussed in the Assessment Assessment Report did not find that preferences of their customers. One Report, at least some bank and credit banks or credit unions were limiting the possibility is that the customers of union providers reported to the Bureau number of transfers they provided to insured institutions that are excluded that in response to the Rule, they stay under the existing 100-transfer from coverage because of the increase in increased the price they charged normal course of business safe harbor the normal course of business safe consumers to provide remittance threshold or that banks or credit unions 87 harbor threshold to 500 transfers may transfers. Excepting such entities from had stopped providing remittance decide to use insured institutions that the Rule’s coverage could result in transfers because of the Rule.90 Thus, remain subject to the Rule to send decreased prices by these banks and the Bureau concludes that there will not credit unions for sending remittance remittance transfers. These customers be much if any increase in access to transfers. may prefer receiving the protections the remittance transfer services resulting Rule affords them (e.g., receiving pre- The costs to customers of banks and from the increase in the normal course payment disclosures and receipts, or credit unions providing between 101 of business safe harbor threshold. availing themselves of the Rule’s error and 500 remittance transfers annually resolution rights), even if they have to are the potential loss of the Rule’s pre- pay more for remittance transfers. payment disclosures, which may 88 From April 1, 2013 through December 31, 2017, about 0.4 percent of complaints the Bureau has Conversely, if the insured institutions facilitate comparison shopping, and received are about ‘‘international money transfers’’ that are no longer covered by the Rule other Rule protections, including including remittance transfers. Id. at 113–16. The due to the increase in the normal course cancellation and error resolution rights. number of complaints may be low because of business safe harbor threshold lower The Bureau does not have the providers are complying with the law. Another possibility is that some consumers who send the price they charge to send remittance remittance transfers may have limited English transfers, some consumers may switch 83 Id. at 133–37. proficiency, and therefore, be less likely to know to those institutions. Given the 84 These numbers are from the bank and credit that they can submit complaints to the Bureau or inconvenience of consumers changing union Call Reports. The total represents may be less likely to seek help from a government approximately 92,600 bank transfers and 49,300 agency than other consumers. These percentages are from one institution to another credit union transfers. based on all complaints about international institution, such as closing their account 85 These numbers are from the bank and credit transfers, not just complaints made when the at one bank and opening an account at union Call Reports. The dollar volume of the provider is an insured institution. another bank, and the analysis of the transfers provided by banks providing between 101 89 Id. at 126, 131. These percentages were and 500 transfers in either 2017 or 2018, but not calculated with data on both insured institutions impact of the 100-transfer normal course more than 500 in either year, was $2 billion. Credit and other providers. The Assessment Report unions do not report their dollar volume. cautions that the data is not necessarily 81 Assessment Report at 117–20. 86 Assessment Report at 76–77, 83–84. representative of a particular set of institutions. 82 Id. at 133–38. 87 Id. at 94. 90 Id. at 133–38.
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Alternatives 2018. Again, the other impacts as final rule (i.e., banks and credit unions In the 2019 Proposal, the Bureau described above for a normal course of that provide more than 500 remittance considered an alternative 200-transfer business safe harbor threshold of 500 transfers annually). threshold for the normal course of transfers would follow for a 200-transfer According to their Call Reports, of 343 business safe harbor threshold. There threshold. banks providing more than 500 transfers were 156 banks and 138 credit unions As discussed in greater detail in the in 2017 or 2018, 48 (14 percent) section-by-section analysis of reported using the temporary exception in 2018 that provided between 101 and 91 200 transfers in either 2017 or 2018, but § 1005.30(f)(2), the 2019 Proposal in 2018. These 48 banks estimate they not more than 200 in either year, based solicited comment on basing the normal used the temporary exception for on their respective Call Reports. As course of business safe harbor on the approximately 770,000 transfers in percentage of an entity’s customers that reported above, the corresponding 2018, representing approximately 7.0 send remittance transfers. A limitation percent of all transfers by banks numbers under this final rule are 414 on the ability of the Bureau to consider providing more than 500 transfers banks and 247 credit unions. Thus, this the impacts of potential alternatives is annually. The Bureau does not have final rule more than doubles the number the lack of institutional-level data or comparable information on the use of of banks that are not subject to the Rule representative averages for groups of the temporary exception for credit relative to an alternative normal course institutions on, among other things, the unions, and as such, assumes that credit of business safe harbor threshold of 200 percentage of customers that send union usage is similar to that of banks.92 remittance transfers. The corresponding remittance transfers, the average number Specifically, assuming that the same relative increase under this final rule for of remittance transfers sent by proportion of credit unions providing credit unions is 79 percent. Under the customers who send remittance more than 500 transfers annually use alternative, the banks and credit unions transfers, and the distribution of the temporary exception as banks and that would not be subject to the Rule transfers across customers (e.g., whether use the temporary exception for the represent 21 percent of banks providing sending remittance transfers is same proportion of transfers as banks, more than 100 transfers in either 2017 concentrated among a small share of around 21 credit unions would have or 2018 and 35 percent of credit unions customers or dispersed). The numbers used the temporary exception for 52,000 providing more than 100 transfers in of consumers and covered persons transfers. Thus, absent any mitigation to either 2017 or 2018. As reported above, affected by different per-customer address the potential impact of the the corresponding numbers under this thresholds would depend on this expiration of the temporary exception final rule are 55 percent for banks and information. The qualitative effects on (other than the expansion of the normal 62 percent for credit unions. The other consumers and covered persons that course of business safe harbor threshold impacts as described above for a normal would not be covered by the Rule at described above), it is reasonable to course of business safe harbor threshold different normal course of business safe estimate that the approximately 70 of 500 transfers would follow for a harbor thresholds would be as described insured institutions using the temporary threshold of 200 transfers. above. In the 2019 Proposal, the Bureau exception for approximately 822,000 The total number of transfers in 2018 requested data and other information transfers would need to undertake for banks and credit unions that that would be useful for quantifying the certain adjustments.93 provided between 101 and 200 transfers number of affected consumers and Bank Call Reports do not differentiate in either 2017 or 2018, but not more persons sending remittance transfers between the use of the temporary than 200 in either year, were 19,900 and the benefits and costs on the exception for exchange rates and bank transfers and 18,200 credit union affected consumers and persons, but did covered third-party fees. From transfers. As reported above, the not receive such information. discussions with some large banks and corresponding numbers under this final a trade association representing a 2. Permanent Exceptions To Estimate rule are approximately 92,600 bank number of the largest banks, the Bureau Exchange Rates and Covered Third- transfers and 49,300 credit union understands that the temporary Party Fees transfers. Thus, this final rule more than exception generally is not used by very quadruples the number of bank transfers This section considers the benefits, large banks to estimate exchange rates and more than doubles the number of costs, and impacts of the two permanent because providing the exact exchange credit union transfers that are not exceptions being adopted in this final rate is not difficult for such banks. Over subject to the Rule relative to the rule that will allow remittance transfer alternative. Under the alternative, the providers that are insured institutions to 91 It is possible that there are more banks using bank and credit union transfers in 2018 estimate the exchange rate and covered the temporary exception than report it on their Call that would not be subject to this final third-party fees in certain Reports. For example, smaller bank providers that rely on a larger service provider may not accurately rule represent 0.18 percent of transfers circumstances. This analysis proceeds report their usage. by banks providing more than 100 in two steps. First, it examines the 92 In the 2019 Proposal, the Bureau requested data transfers in either 2017 or 2018, and information available to the Bureau to and other information on the use of the temporary 2.31 percent of transfers by credit determine the likely impact of the exception by credit unions, and in particular by unions providing more than 100 expiration of the existing temporary credit unions providing more than 500 transfers annually. Commenters did not provide any such transfers in either 2017 or 2018. Overall exception. Second, the analysis then data or other information. this is 0.32 percent of transfers in 2018 considers the likely benefits, costs, and 93 According to their Call Reports, 34 banks by insured institutions providing greater impacts of the permanent exceptions. providing between 101 and 500 remittance transfers than 100 transfers in either 2017 or For reasons explained above, the annually relied on the temporary exception for 6,500 transfers. Assuming proportional use for 2018. The corresponding numbers analysis generally considers only the credit unions providing between 101 and 500 under this final rule are 0.83 percent for impacts of the expiration of the remittance transfers annually, approximately 20 bank transfers and 6.3 percent for credit temporary exception and adoption of credit unions relied on the temporary exception for union transfers. As reported above, this the new permanent exceptions on banks 3,500 transfers. For a baseline in which the normal course of business safe harbor threshold was not is 1.2 percent of all 2018 transfers by and credit unions that do not qualify for increased, the impacts on consumers and covered insured institutions providing more the normal course of business safe persons considered would also apply to these than 100 transfers in either 2017 or harbor threshold, as amended by this transfers and covered persons.
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the years, banks, credit unions, and threshold, as amended, and do not covered third-party fees, rather than their trade associations suggested that qualify for the new permanent exchange rates. Thus, the Bureau there could still exist difficulties for exception that allows insured concludes that the additional costs certain large banks to provide exact institutions to estimate the exchange under the second baseline would be exchange rates to specific countries. rate under certain conditions. The relatively modest overall, and adopting However, they did not provide permanent exception for estimating the the permanent exception will mitigate examples or data on the number of large exchange rate would tend to mitigate most of the increase that would banks or transfers for which providing the cost increases and reductions in the otherwise occur. Further, as noted in the the exact exchange rate would be provision of remittance transfers at 2019 Proposal, it is the Bureau’s difficult. Accordingly, the analysis insured institutions that would understanding from discussion with assumes that a substantial majority of otherwise occur. some large banks and a trade association the remittance transfers and institutions representing a number of the largest Benefits and Costs to Insured using the temporary exception are using banks that providing exact exchange Institutions it exclusively for covered third-party rates is not generally difficult for very fees. In the 2019 Proposal, the Bureau Under the second baseline, insured large banks. However, several trade requested data and other information on institutions that will continue to be association commenters asserted, in the share of remittance transfers that covered by the Rule (because they send response to the 2019 Proposal, that large rely on the temporary exception to remittance transfers in excess of the banks may have difficulties providing estimate exchange rates alone, covered 500-transfer threshold in the normal exact exchange rates in certain third-party fees alone, and both course of their business) and that have circumstances. Thus, to the extent that exchange rates and covered third-party been using the temporary exception to very large banks would have an fees, but did not receive relevant estimate exchange rates will either need advantage under the second baseline in information. to provide exact exchange rate providing transfers to particular disclosures or stop sending those countries, the permanent exception for Permanent Exception for Estimation of transfers. To provide exact exchange the exchange rate will mitigate this the Exchange Rate by an Insured rate disclosures, these insured advantage by allowing smaller Institution institutions will incur certain costs. An institutions to continue to estimate This final rule provides a permanent insured institution may need to exchange rates in disclosures for certain exception that allows insured establish and maintain currency-trading remittance transfers. institutions to estimate the exchange desk capabilities and risk management As discussed above, in the 2019 rate (and other disclosure information policies and practices related to the Proposal, the Bureau requested data and that depend on the exchange rate) under foreign currency and country at issue or other information about the share of certain conditions when sending to a to use service providers, correspondent remittance transfers that relied on the country. Principally, these conditions institutions, or persons that act as the temporary exception to estimate are that the designated recipient of the insured institution’s agent. These exchange rates alone, and both exchange remittance transfer will receive funds in additional costs may also differ across rates and covered third-party fees. The the country’s local currency and (a) the insured institutions, due to differences Bureau did not receive such insured institution made 1,000 or fewer in existing arrangements with service information. transfers in the prior calendar year to providers or correspondent institutions, Further, the Bureau recognizes that that country where the designated the ability to negotiate changes in those the magnitudes of the effects of the recipients received funds in the arrangements, the expertise of existing expiration of the temporary exception to country’s local currency, and (b) the staff, and the likely volume of transfers. estimate the exchange rate and the insured institution cannot determine the Insured institutions may also differ in mitigating effects of the permanent exact exchange rate for that particular the level of commitment to sending exception for estimating the exchange transfer at the time it must provide the remittance transfers to particular rate are uncertain. Thus, the potential applicable disclosures. countries, based on the needs of their additional costs under the second The information available to the customers, and thus their willingness to baseline from the inability to estimate Bureau indicates that insured incur additional costs. Overall, the exchange rates by certain insured institutions primarily use the temporary requirement to disclose exact exchange institutions may be larger than the exception to estimate covered third- rates under the second baseline could Bureau has assumed. As a result, the party fees. However, as discussed cause some insured institutions to cease permanent exception to estimate below, the Bureau understands that providing transfers to certain countries. exchange rates may not mitigate all of certain insured institutions may incur These effects would likely differ across the impact of the expiration of the additional costs in order to disclose insured institutions. temporary exception. exact exchange rates. Further, these The Bureau determines that adopting For reasons discussed in the section- costs, as well as the willingness to incur the permanent exception for estimating by-section analysis of § 1005.32(b)(4), them, may differ across insured the exchange rate will tend to mitigate under this final rule, if an insured institutions. Thus, under the second these costs and impacts. The Bureau institution in the prior calendar year did baseline (i.e., baseline in which the asked for information in its 2019 not exceed the 1,000-transfer threshold temporary exception expires and the Proposal about the percentage of to a particular country, but does exceed Bureau raises the normal course of transfers by recipient country that rely the 1,000-transfer threshold in the business safe harbor threshold to 500 on the temporary exception for current calendar year, the insured transfers), it is possible that the exchange rates and the portion of those institution will have a reasonable requirement to disclose exact exchange transfers that could rely on the amount of time after exceeding the rates may cause some insured permanent exception being proposed. It 1,000-transfer threshold to begin institutions to cease providing transfers did not receive this information. providing the exact exchange rate to certain countries to the extent that However, the Bureau understands that (assuming it cannot rely on another these institutions will not qualify for the insured institutions predominantly use exception in § 1005.32 to estimate the normal course of business safe harbor the temporary exception to estimate exchange rate). This final rule provides
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that the reasonable amount of time must the exact exchange rate and send the be small. Lastly, as discussed in the not exceed the later of six months after transfer.95 Assessment Report and noted above, the exceeding the 1,000-transfer threshold Under this final rule, due to the Bureau reviewed evidence from its in the current calendar year or January adoption of the permanent exception for consumer complaints database and did 1 of the next year. estimating the exchange rate, more not find evidence of significant The transition period may benefit consumers will be able to continue to consumer complaints regarding the use insured institutions by giving them use their preferred insured institution to of estimates for exchange rates or for some additional time in which to send transfers. These consumers may covered third-party fees.96 provide remittance transfers while also also be able to do so at lower prices As discussed above, this final rule establishing additional agreements with under the Rule if, without the Rule and provides that if an insured institution in correspondent institutions or third-party under the second baseline, an insured the prior calendar year did not exceed service providers, or develop their own institution would pass on the higher the 1,000-transfer threshold to a systems to provide exact exchange rates. costs incurred to obtain exact exchange particular country but does exceed the The transition period also ensures that rate information. 1,000 transfer threshold in the current an insured institution that estimates The cost to these consumers is that calendar year, the insured institution exchange rates and inadvertently they will receive estimated disclosures. has a reasonable amount of time after exceeds the 1,000-transfer threshold Disclosures that include exact exchange exceeding the 1,000-transfer threshold will not violate the Rule during the rate information make it easier for a to begin providing exact exchange rates transition period. The Bureau does not consumer to know whether a designated in disclosures (assuming that it cannot have information on how frequently recipient is going to receive an intended rely on another exception in § 1005.32 institutions are below 1,000 transfers to sum of money, or the amount in U.S. to estimate the exchange rate). While the a particular country in one year and dollars that the consumer must send to Bureau does not have information on exceed the 1,000-transfer threshold in a deliver a specific amount of foreign how many transfers might be affected, it subsequent year or how common it is currency to a designated recipient. expects the number of transfers to be for an insured institution to exceed the Requiring the disclosure of exact relatively small and, as such, the costs 1,000-transfer threshold by a large exchange rates may also make it easier to consumers of receiving estimates for number of transfers. The Bureau for consumers to compare prices across additional transfers is likely to be understands that relatively few insured providers. The permanent exception for limited. Further, by allowing providers institutions provide most of the estimating exchange rates may therefore additional flexibility, the transition remittance transfers that insured impose a cost on certain consumers in period adopted in this final rule may institutions provide. In addition, while the form of these foregone benefits. help reduce costs. In turn, these cost some insured institutions provide However, these costs may not be large savings may be passed on to consumers, remittance transfers to many countries to the extent that there is not a great and help to maintain consumer access on their customers’ behalf, some difference between the estimated to the extent that the extra flexibility the countries are the destination of far more amounts and the actual amounts. In transition period will provide make it remittance transfers than others.94 Thus, addition, the estimated amount may less likely that insured institutions the Bureau understands that the number turn out to be the actual amount. If the would stop providing remittance of remittance transfers that most insured estimated and actual amounts are transfers to stay below the 1,000-transfer institutions provide to an individual frequently the same, the costs to threshold. country likely stays consistently above consumers will be low. Overall, however, the evidence Permanent Exception for Estimation of or below 1,000 transfers. It is not available to the Bureau suggests that the Covered Third-Party Fees by an Insured possible, however, to determine from costs to consumers of allowing insured Institution these facts how many insured institutions to use the permanent institutions will rely on the transition As noted above, under the second exception to estimate the exchange rate period. baseline (i.e., the baseline in which the are not likely to be significant. Further, temporary exception expires and the Benefits and Costs to Consumers the Bureau believes the permanent Bureau raises the normal course of exception for estimating the exchange Under the second baseline, in which business safe harbor threshold to 500 rate will be used for only a small the temporary exception expires and the transfers), the Bureau estimates that portion of all remittance transfers sent Bureau raises the normal course of approximately 70 insured institutions by insured institutions. As such, the business safe harbor threshold from 100 would need to stop providing estimated potential negative impact on transfers annually to 500 transfers disclosures for approximately 822,000 comparison shopping noted above may annually, the preferred insured transfers. Based on its analysis of institution for some consumers might available information, the Bureau 95 These consumers may also consider using an expects that many of these insured not be able to provide an exact exchange MSB to send transfers if it is too difficult or rate disclosure for transfers to certain expensive to find an insured institution that can institutions could form additional countries, for reasons discussed above. send the transfer. MSBs are generally able to relationships or set up new systems to Some consumers, therefore, would need provide exact exchange rate information for the disclose exact covered third-party fees reasons discussed in part II above. Some MSBs for a large portion of the transfers to seek out an alternate remittance compete with insured institutions for high-value transfer provider to send transfers to transfers in some corridors. However, MSBs currently using the temporary exception those countries. The Bureau generally provide a somewhat different service than understands that to the extent that a banks and credit unions to meet different consumer 96 Assessment Report at 113–16. The Assessment demands, as reflected in the differences in the Report categorizes complaints into the type of consumer’s preferred insured institution average transfer amount for MSBs ($381) and banks complaint and estimates for exchange rates or for cannot provide the exact exchange rate, and credit unions ($6,500) (Assessment Report at covered third-party fees were not an important there would likely be a less preferred 68, 73). The Bureau therefore considers that there source of complaint by themselves. However, 7 insured institution that could provide would be relatively few consumers, under the percent of complaints were for the ‘‘Wrong amount second baseline, who use an MSB because they find charged or received’’ and 0.5 percent for it too difficult or expensive to use an insured ‘‘Unexpected or other fees’’ which may contain 94 See Assessment Report at 60, 77. institution. complaints related to inaccurate estimates.
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to estimate covered third-party fees. As reduce any substitution from insured the exact covered third-party fees and described in detail in the 2019 Proposal, institutions to MSBs. In either case, the insured institution cannot determine in formulating the proposed permanent consumers would lose the convenience the exact covered third-party fees for exception for covered third-party fees, and other benefits of transferring with that particular transfer at the time it the Bureau held discussions with banks their preferred bank or credit union. must provide the applicable disclosures. and a trade association representing a Finally, it is also possible that no Relative to the baseline, in which all number of the largest banks, reviewed insured institution or MSB (or bank or credit union transfers that take comments from the 2019 RFI, and combination of MSBs), at any price, place would have to provide exact analyzed Call Reports from banks that could send to certain designated disclosures, only (1) and (3) represent a have reduced their reliance on the recipient’s institutions. This would change considered for the costs or temporary exception. Based on the occur if no insured institution is able to benefits of the permanent exception for information received from these provide exact disclosures and no MSB estimating covered third-party fees sources, the Bureau was preliminarily (or combination of MSBs) is able to because (2) represents no impacts persuaded that banks would be willing transfer high enough amounts to certain relative to the second baseline. to set up the relationships or establish designated recipient’s institutions. The Bureau has no evidence that any other systems (such as international The Bureau does not have the United States Federal statute or ACH) necessary to their ability to information necessary to quantify how regulation prohibits an insured disclose exact covered third-party fees many transfers would fall into each institution from being able to determine and reduce their reliance on estimates to category. For purposes of the analysis exact covered third-party fees for any around half of the number of transfers below, the Bureau assumes that under remittance transfer. Thus, to the best of for which they used the temporary the second baseline, customers of an the Bureau’s knowledge, no transfers exception in 2018. The Bureau has no insured institution that would no longer fall into category (3) above. To the information that would suggest a send remittance transfers to a extent there are transfers that fall under different conclusion for credit unions. designated recipient’s institution would this provision, there are benefits to both Based on the limited information generally search for and find a different insured institutions and consumers available, the Bureau determines that insured institution that would send the from the added flexibility. Insured insured institutions will implement transfer. The Bureau considers it institutions benefit by still being able to these operational changes and provide unlikely that no insured institution or provide transfers that they could not exact disclosures for around half of the MSB (or combination of MSBs), at any otherwise provide. Consumers benefit number of transfers for which they used price, could send the desired amount of by maintaining access to remittance the temporary exception in 2018, and funds to a designated recipient’s transfers at their preferred institution their customers will gain the benefit of institution. In response to the 2019 that might not take place otherwise. Proposal, a group of trade association receiving exact disclosures. However, Benefits and Costs to Insured commenters representing large banks implementing these operational changes Institutions noted that the Bureau may be overly is likely to come at some cost to insured As stated above, under the baseline in institutions, and some of these costs optimistic in this assumption that other remittance transfer providers would still which the temporary exception expires could be passed on to consumers. Note and the Bureau raises the normal course that these costs are not costs of this final be able to send transfers and that the costs of switching remittance transfer of business safe harbor threshold to 500 rule; they are costs incurred under the providers may be high for consumers. transfers, the Bureau estimates that baseline in which the temporary Note again that these are all costs approximately 70 insured institutions exception expires and the Bureau incurred under the baseline in which would need to stop providing estimated increases the normal course of business the temporary exception expires disclosures for approximately 822,000 safe harbor threshold from 100 transfers without the new exception. If the costs transfers. While the Bureau does not annually to 500 transfers annually. under the baseline would be larger than have market-wide information, the There are a limited number of the Bureau predicts, the mitigation of information provided by certain large outcomes for the remaining half of these costs by the new permanent banks suggests that there are few transfers for which insured institutions exception for estimating covered third- designated recipient’s institutions to used the temporary exception in 2018 party fees would also be larger. which these large banks individually and which could not be sent with Transfers that are actually provided send more than 500 transfers in a year estimated disclosures under the second under the second baseline will fall into and with which these large banks would baseline. Consumers requesting these three main categories relative to covered not be able or willing to set up a transfers would need to find an third-party fees: (1) Transfers that are relationship sufficient to provide exact alternative remittance transfer provider. below the threshold for covered third- disclosures of covered third-party fees. The alternative remittance transfer party fees, and therefore disclose Based on this information, the Bureau provider would most likely be an estimates, but under the second baseline expects that under both the second insured institution that provides enough would have been provided with exact baseline and the permanent exception remittance transfers to the designated disclosures at a higher price or by a for estimating covered third-party fees, recipient’s institution that the sending remittance transfer provider other than these 70 institutions will form roughly insured institution either has the consumer’s first choice; (2) transfers the same number of relationships and relationships or would form additional that are above the threshold for covered will provide exact disclosures for about relationships or set up new systems to third-party fees, and so will be provided half of these transfers. Forming these provide exact covered third-party fee with exact disclosures for such fees relationships comes at some cost to disclosures. The alternative provider under both this final rule and the insured institutions, and some of these might also be an MSB. As discussed second baseline; or (3) transfers that do costs could be passed on to consumers. above, however, MSBs provide a not receive exact disclosures because a One trade association commenter somewhat different service than banks United States Federal statute or representing banks questioned the and credit unions to meet different regulation prohibits the insured Bureau’s expressed expectation in the consumer demands. This would tend to institution from being able to determine 2019 Proposal that insured institutions
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would form new relationships or some additional time in which to the insured institution has a reasonable contract with service providers to provide remittance transfers while amount of time after exceeding the 500- provide exact disclosures. However, relying on the permanent exception for transfer threshold to begin providing service providers for insured covered third-party fees while also exact third-party fees in disclosures. institutions are often insured establishing additional agreements with While the Bureau does not have institutions themselves making their other institutions or develop systems to information on how many transfers correspondent network available to provide exact covered third-party fees. might be affected, it expects the number smaller and more regional institutions. The transition period also ensures that of transfers to be relatively small and, as As explained above, under the second an insured institution that estimates such, the costs to consumers of baseline, the other half of the remittance covered third-party fees and receiving estimates for additional transfers for which estimated inadvertently exceeds the 500-transfer transfers to be limited. Further, by disclosures are currently provided threshold will not violate the Rule allowing providers additional would no longer be provided by the during the transition period. The Bureau flexibility, the transition period may insured institutions that currently send does not have information on how help reduce costs, which may be passed them but would be sent by different frequently institutions move from below on to consumers, and maintain insured institutions.97 Based on the the threshold in one year to exceeding consumer access to the extent that the information available from certain large the 500-transfer threshold in a extra flexibility makes it less likely that banks, under the permanent exception subsequent year. However, the Bureau insured institutions would stop for estimating covered third-party fees, expects that relatively few transfers will providing transfers to stay below the the Bureau expects that the insured be affected because remittance transfers threshold. institutions that currently send these are generally concentrated in a few Alternatives transfers would continue to send them. corridors and among relatively few large In response to the 2019 Proposal, one banks, which will always be above the For purposes of considering the large credit union commenter estimated 500-transfer threshold. effects of the permanent exceptions that that two-thirds of its current remittance allow insured institutions to estimate transfers would be covered under the Benefits and Costs to Consumers exchange rates and covered third-party new permanent exception. Based on the Under category (1) above, certain fees under certain circumstances, the information provided in its comment senders of remittance transfers would Bureau used the second baseline (i.e., letter, it appears that the credit union have been provided with exact the baseline in which the temporary had not yet sought to contract with a disclosures under the second baseline exception expires and the Bureau large bank, join the SWIFT network to but at a higher price or by a remittance amended the normal course of business be eligible to form RMAs, or otherwise transfer provider other than the safe harbor threshold from 100 transfers form correspondent relationships, as consumer’s first choice. As discussed annually to 500 transfers annually). The would be necessary under the above, the Bureau expects that the Bureau instead considered the effects of expiration of the temporary exception if permanent exception for estimating these permanent exceptions relative to it wished to continue to provide covered third-party fees if an insured the first baseline, under which the remittance transfer at its current levels. institution makes 500 or fewer transfers temporary exception expires and the For transfers under category (1) above, to a designated recipient’s institution in Bureau maintains the existing normal insured institutions can provide the prior calendar year will mitigate all course of business safe harbor threshold estimated disclosures under the or almost all of the costs to consumers at 100 transfers annually. In this case, permanent exception concerning from the loss of access to transfers to the permanent exceptions that would covered third-party fees, so these certain designated recipient’s allow institutions to estimate exchange insured institutions would not need to institutions under the second baseline. rates and covered third-party fees would form additional relationships. These These remittance transfers represent the have effects on insured institutions that insured institutions would benefit from most important benefit of the permanent provide between 101 and 500 not turning away potential customers exception for estimating covered third- remittance transfers per year and the and by being able to continue providing party fees for consumers. While the consumers on whose behalf these a valuable service to their customers. Bureau does not have the information to institutions send remittance transfers. These benefits might be significant, quantify the number of transfers in this These effects would be in addition to although they are difficult to quantify. category or the exact value to the effects on insured institutions that This final rule also provides a consumers, the benefit to consumers of provide more than 500 remittance transition period for insured institutions continued access is potentially large. transfers per year and the consumers on that exceed the 500-transfer normal Under category (1) above, consumers whose behalf these insured institutions course of business safe harbor threshold will receive disclosures containing send remittance transfers. under § 1005.32(b)(5) in the current estimates. As discussed above in As discussed above, 414 banks and calendar year, which will allow them to considering the impact of the permanent 247 credit unions provided between 101 continue to provide estimates of covered exception for the exchange rate, the use and 500 transfers in either 2017 or 2018, third-party fees for a reasonable period of estimates for covered third-party fees but not more than 500 in either year. In of time (i.e., the later of six months or may make it more difficult for 2018, they respectively sent about January 1 of next year) while they come consumers to engage in comparison 92,600 and 49,300 transfers. These into compliance with the requirement to shopping and impose a cost on banks and credit unions would remain provide exact covered third-party fees consumers by making disclosures less covered by the Rule under the first (assuming that these institutions cannot accurate. baseline since the normal course of rely on another exception in § 1005.32). As discussed above, this final rule business safe harbor threshold remains The transition period may benefit provides that if an insured institution in at 100 transfers. However, all of these insured institutions by giving them the prior calendar year did not exceed insured institutions would necessarily the 500-transfer threshold to a particular meet the respective 500-transfer and 97 At least one commenter on the 2019 Proposal country but does exceed the 500-transfer 1,000-transfer threshold requirements in noted the large cost of this dislocation. threshold in the current calendar year, the permanent exceptions. Thus, all of
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these insured institutions could permanent exceptions for estimating the total. Credit unions do not report continue to disclose estimates for exchange rate and covered third-party reliance on the temporary exception, but exchange rates and covered third-party fees in this final rule. According to the assuming reliance on the temporary fees to the extent that they already do bank Call Report data, only 18 of these exception is similar for credit unions, so. The ability to disclose estimates banks reported using the temporary the four credit unions that provided under the permanent exceptions would exception, and they did so for more than 500 transfers in either 2017 mitigate costs relative to the first approximately 66,600 transfers. As or 2018 and were located in rural areas baseline. discussed above, the Bureau would have used the temporary The insured institutions providing understands that remittance transfer exception for approximately 900 between 101 and 500 transfers currently providers that are smaller depository transfers. provide error resolution rights and meet institutions and credit unions obtain Consumers in rural areas may have the other conditions of the Rule. These information about exchange rates and access to fewer remittance transfers insured institutions would continue to covered third-party fees from a limited providers and therefore may benefit do so under the first baseline and with number of service providers that are more than other consumers from a rule the alternative rule considered here, i.e., either very large insured institutions or change that keeps more insured that provided only the permanent large nonbank service providers. Given institutions in the market or helps exceptions for estimating exchange rates this reliance, the impacts of the reduce costs to the extent that cost and covered third-party fees. permanent exceptions, described above, reductions are passed on to consumers. will also generally be the specific However, these consumers will also D. Potential Specific Impacts of the impacts for depository institutions and disproportionately lose consumer Final Rule credit unions with $10 billion or less in protections relative to other consumers, 1. Depository Institutions and Credit total assets. under the second baseline, to the extent Unions With $10 Billion or Less in Total that the banks and credit unions that 2. Impact on Consumers in Rural Areas Assets, as Described in Section 1026 provide remittance transfers to these Consumers in rural areas may As stated above, based on their Call consumers will be disproportionately experience different impacts from this Reports, 414 banks and 247 credit excluded from the Rule (due to the final rule than other consumers. The unions provided between 101 and 500 increase in the normal course of safe Bureau has discretion to define rural transfers in either 2017 or 2018, but not harbor threshold) or use the permanent areas as appropriate for this impact more than 500 in either year. Of these, exceptions adopted in this final rule to analysis. For the impact analysis in this 386 banks and all 247 credit unions had estimate covered third-party fees and section, the Bureau used its 2018 rural $10 billion or less in total assets in the exchange rate. As stated above, the counties list.98 The Bureau compared 2018. Some of these insured institutions 414 banks and 247 credit unions that the address each bank and credit union currently provide exact disclosures provided between 101 and 500 transfers reported on its Call Report with this (based on Call Report data) and all of in either 2017 or 2018, but not more rural county list to determine if that them would have to provide exact than 500 in either year, represent 55 bank or credit union was located in a disclosures under the first baseline (i.e., percent of the banks and 62 percent of rural county. This comparison is limited the no-action baseline). None of these the credit unions that provided more to the location listed in the Call Report, insured institutions will be covered by than 100 transfers in both years. In rural which is generally the headquarters of the Rule under the increase in the areas, the corresponding 83 banks and the bank or credit union. There are normal course of business safe harbor 15 credit unions represented 75 percent likely rural branches of insured threshold from 100 transfers annually to of the banks and 79 percent of the credit institutions with headquarters located 500 transfers annually. It follows that a unions that provided more than 100 in non-rural areas, so this comparison large majority of the banks and all of the transfers in both years in rural areas. captures only a portion of the impact of credit unions affected by the change in Thus, the increase in the normal course this final rule on consumers in rural the normal course of business safe of business safe harbor threshold will areas. harbor threshold from 100 transfers have somewhat larger effects in rural According to the Call Reports, 83 areas in both preserving access to annually to 500 transfers annually have banks provided between 101 and 500 $10 billion or less in assets. Thus, the remittance transfer providers and remittance transfers in either 2017 or possibly reducing the protections impacts of the increase in the normal 2018, but not more than 500 in either course of business safe harbor threshold, provided by the Rule, as described year, and were headquartered in rural above. described above, will also generally be counties. These banks provided 17,000 the specific impacts for depository transfers in 2018. Further, 15 credit VII. Regulatory Flexibility Act Analysis institutions and credit unions with $10 unions provided between 101 and 500 The Regulatory Flexibility Act (RFA), billion or less in total assets. remittance transfers in either 2017 or as amended by the Small Business In addition, 190 banks and 142 credit 2018, but not more than 500 in either Regulatory Enforcement Fairness Act of unions with $10 billion or less in assets year, and were headquartered in rural 1996, requires each agency to consider in 2018 provided more than 500 counties. These credit unions provided the potential impact of its regulations on transfers in 2017 or 2018. As discussed 2,200 transfers. Finally, three banks small entities, including small above, some of these banks and credit provided more than 500 transfers in businesses, small governmental units, unions currently provide exact either 2017 or 2018, were located in and small not-for-profit organizations.99 disclosures, and all of them will have to rural areas, and reported relying on the The RFA defines a ‘‘small business’’ as provide exact disclosures under the temporary exception. These banks a business that meets the size standard second baseline. These banks and credit reported that they relied on the developed by the Small Business unions will not be directly affected by temporary exception for 2,000 transfers Administration pursuant to the Small the change in the normal course of business safe harbor threshold. They 98 See https://www.consumerfinance.gov/policy- 99 5 U.S.C. 601 et seq. The Bureau is not aware may be affected, compared to the second compliance/guidance/rural-and-underserved- of any small governmental units or not-for-profit baseline, by the adoption of the counties-list/. organizations to which this final rule would apply.
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Business Act.100 Potentially affected Accordingly, the Director certifies that The Bureau concludes that the overall small entities include insured this final rule will not have a significant impact of the increase in the normal institutions that have $600 million or economic impact on a substantial course of business safe harbor threshold less in assets and that provide number of small entities. from 100 transfers annually to 500 remittance transfers in the normal transfers annually and allowing limited VIII. Paperwork Reduction Act course of their business.101 use of estimates for covered third-party The RFA generally requires an agency Under the Paperwork Reduction Act fee and exchange rate disclosures is to conduct an initial regulatory of 1995 (PRA),105 Federal agencies are small. In addition, the Bureau concludes flexibility analysis (IRFA) and a final generally required to seek approval from that this final rule will have no material regulatory flexibility analysis (FRFA) of the Office of Management and Budget change in burden on remittance transfer any rule subject to notice-and-comment (OMB) for information collection providers that are non-depository rulemaking requirements, unless the requirements prior to implementation. financial institutions. The Bureau agency certifies that the rule will not Under the PRA, the Bureau may not recognizes, however, that it lacks data have a significant economic impact on conduct or sponsor, and, with which to determine the precise a substantial number of small notwithstanding any other provision of impact of this final rule. The Bureau entities.102 The Bureau also is subject to law, a person is not required to respond requested comments or data concerning certain additional procedures under the to, an information collection unless the information that would assist the RFA involving the convening of a panel information collection displays a valid Bureau with making a determination on to consult with small business control number assigned by OMB. the impact of allowing limited use of representatives prior to proposing a rule This final rule amends 12 CFR part estimates in certain disclosures on the for which an IRFA is required.103 Bureau’s current collection of At the proposed rule stage, the Bureau 1005 (Regulation E), which implements EFTA. The Bureau’s OMB control information pursuant to Regulation E, determined that an IRFA was not but received no comments on this required because the proposal, if number for Regulation E is 3170–0014. Under Regulation E, the Bureau aspect of the 2019 Proposal. adopted, would not have a significant Current Total Annual Burden Hours generally accounts for the paperwork economic impact on a substantial on Bureau Respondents, Regulation E: burden for the following respondents number of small entities. The Bureau 3,445,033. did not receive any comments on this pursuant to its administrative Current Total Annual Burden Hours analysis. For this final rule, the Bureau enforcement authority: Federally on Bureau Respondents, Subpart B only: also determines that this determination insured depository institutions with 1,471,808. is accurate. Under the no-action more than $10 billion in total assets, Estimated Total Annual Burden baseline, the temporary exception their depository institution affiliates, Hours on Bureau Respondents under expires, and therefore no remittance and certain non-depository institutions. the Rule, Subpart B only: 1,448,938. transfer providers—including small The Bureau and the Federal Trade Estimated Change in Total Annual entities—will be able to provide Commission (FTC) generally both have Burden Hours on Bureau Respondents estimates using that exception. Under enforcement authority over non- under the Rule: ¥22,870. this final rule, certain small entities that depository institutions subject to The Bureau has determined that this would otherwise be covered by the Regulation E. Accordingly, the Bureau final rule does not contain any new or Remittance Rule will not be covered by would generally allocate to itself half of substantively revised information the Rule and certain other small entities this final rule’s estimated reduction in collection requirements as defined by will be able to provide estimates in burden on non-depository financial the PRA and that the burden estimate certain circumstances. Thus, the Bureau institutions subject to Regulation E, but for the previously approved information concludes that this final rule will only estimates no reduction in burden on collections should be revised as reduce burden on small entities relative these institutions from this final rule. explained above. The Bureau will file a to the baseline.104 Other Federal agencies, including the request with OMB to adjust the burden FTC, are responsible for estimating and as discussed above. This request will be 100 5 U.S.C. 601(3) (the Bureau may establish an reporting to the Office of Management filed under OMB control number 3170– alternative definition after consultation with the and Budget (OMB) the paperwork 0014. Small Business Administration and an opportunity burden for the institutions for which for public comment). IX. Congressional Review Act 101 Small Bus. Admin., Table of Small Business they have enforcement and/or Size Standards Matched to North American supervision authority. They may use the Pursuant to the Congressional Review Industry Classification System Codes, https:// Bureau’s burden estimation Act,106 the Bureau will submit a report www.sba.gov/sites/default/files/files/Size_ Standards_Table.pdf. methodology, but need not do so. containing this rule and other required 102 5 U.S.C. 603 through 605. information to the U.S. Senate, the U.S. 103 5 U.S.C. 609. will need to begin providing exact disclosures, even House of Representatives, and the 104 In general, given the expiration of the without the exceptions on use of estimates. Using Comptroller General of the United temporary exception and this final rule, some small the credit union Call Reports, the Bureau finds that States prior to this final rule’s published there were 133 credit unions with assets under $600 entities that currently provide estimates will be able effective date. The Office of Information to continue to provide estimates for some or all of million covered by the Rule in 2018 (because they their remittance transfers and some will need to provided more than 100 transfers in 2017 or 2018). and Regulatory Affairs has designated begin providing exact disclosures. Using the bank Of these credit unions, only 30 send an amount of this rule as not a ‘‘major rule’’ as Call Reports, however, the Bureau finds that only transfers that exceeds this final rule’s normal course defined by 5 U.S.C. 804(2). one small bank will need to begin providing exact of business safe harbor threshold of 500 transfers. disclosures. Specifically, the Bureau finds that there The credit union Call Reports do not report X. Signing Authority were 82 banks in 2018 with assets under $600 utilization of the temporary exception. However, million covered by the Rule (because they provided since one of the 12 small banks that are covered by The Director of the Bureau, having greater than 100 transfers in 2017 or 2018). Of these this final rule uses the temporary exception, the reviewed and approved this document banks, only 12 send an amount of transfers that Bureau considers it reasonable to suppose that is delegating the authority to exceeds this final rule’s normal course of business approximately two of the 30 small credit unions safe harbor threshold of 500 transfers. Further, only that are covered by this final rule use the temporary electronically sign this document to one of these 12 banks currently reports relying on exception. the temporary exception. Thus, only one small bank 105 44 U.S.C. 3501 et seq. 106 5 U.S.C. 801 et seq.
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Laura Galban, a Bureau Federal Register requirements of this subpart with estimated under paragraph (b)(4)(i) of Liaison, for purposes of publication in respect to any remittance transfers for this section only if the exchange rate is the Federal Register. which payment is made after that date. permitted to be estimated under The requirements of the Act and this paragraph (b)(4)(i) of this section and List of Subjects in 12 CFR Part 1005 part, including those set forth in the estimated exchange rate affects the Automated teller machines, Banking, §§ 1005.33 and 1005.34, as well as the amount of such disclosures. Banks, Consumer protection, Credit requirements set forth in § 1005.13, (5) Permanent exception for unions, Electronic fund transfers, continue to apply to transfers for which estimation of covered third-party fees by National banks, Remittance transfers, payment is made prior to that date. an insured institution. (i) Except as Reporting and recordkeeping * * * * * provided in paragraph (b)(5)(ii) of this requirements, Savings associations. ■ section, for disclosures described in 3. Amend § 1005.32 by: §§ 1005.31(b)(1) through (3) and Authority and Issuance ■ A. Adding paragraphs (b)(4) and (5); 1005.36(a)(1) and (2), estimates may be ■ For the reasons set forth above, the B. In paragraph (c), removing ‘‘(a) or provided for a remittance transfer to a Bureau amends Regulation E, 12 CFR (b)(1)’’ and adding in its place ‘‘(a) or particular designated recipient’s part 1005, as set forth below: (b)(1), (4), or (5)’’; institution in accordance with ■ C. In paragraph (c)(4), italicizing the paragraph (c) of this section for the PART 1005—ELECTRONIC FUND heading ‘‘Amount of currency that will amounts required to be disclosed under TRANSFERS (REGULATION E) be received by the designated § 1005.31(b)(1)(vi) through (vii), if all of recipient’’. the following conditions are met: ■ 1. The authority citation for part 1005 The additions read as follows: (A) The remittance transfer provider continues to read as follows: § 1005.32 Estimates. is an insured institution as defined in Authority: 12 U.S.C. 5512, 5581; 15 U.S.C. paragraph (a)(3) of this section; 1693b. Subpart B is also issued under 12 * * * * * (B) At the time the insured institution U.S.C. 5601 and 15 U.S.C. 1693o–1. (b) * * * must provide, as applicable, the (4) Permanent exception for disclosure required by § 1005.31(b)(1) Subpart B—Requirements for estimation of the exchange rate by an through (3) or § 1005.36(a)(1) or (2), the Remittance Transfers insured institution. (i) Except as insured institution cannot determine the provided in paragraph (b)(4)(ii) of this ■ exact covered third-party fees required 2. Amend § 1005.30 by revising section, for disclosures described in paragraphs (f)(2)(i)(A) and (B) and to be disclosed under § 1005.31(b)(1)(vi) §§ 1005.31(b)(1) through (3) and for that remittance transfer; (f)(2)(ii), and adding paragraph (f)(2)(iii), 1005.36(a)(1) and (2), estimates may be to read as follows: (C) The insured institution made 500 provided for a remittance transfer to a or fewer remittance transfers in the prior § 1005.30 Remittance transfer definitions. particular country in accordance with calendar year to that designated * * * * * paragraph (c) of this section for the recipient’s institution, or a United States (f) * * * amounts required to be disclosed under Federal statute or regulation prohibits (2) * * * § 1005.31(b)(1)(iv) through (vii), if the the insured institution from being able (i) * * * designated recipient of the remittance to determine the exact covered third- (A) Provided 500 or fewer remittance transfer will receive funds in the party fees required to be disclosed transfers in the previous calendar year; country’s local currency and all of the under § 1005.31(b)(1)(vi) for that and following conditions are met: remittance transfer; and (B) Provides 500 or fewer remittance (A) The remittance transfer provider (D) The remittance transfer is sent transfers in the current calendar year. is an insured institution as defined in from the sender’s account with the (ii) Transition period—coming into paragraph (a)(3) of this section; insured institution; provided however, compliance. Beginning on July 21, 2020, (B) At the time the insured institution for the purposes of this paragraph, a if a person that provided 500 or fewer must provide, as applicable, the sender’s account does not include a remittance transfers in the previous disclosure required by § 1005.31(b)(1) prepaid account, unless the prepaid calendar year provides more than 500 through (3) or § 1005.36(a)(1) or (2), the account is a payroll card account or a remittance transfers in the current insured institution cannot determine the government benefit account. calendar year, and if that person is then exact exchange rate required to be (ii) The disclosure in providing remittance transfers for a disclosed under § 1005.31(b)(1)(iv) for § 1005.31(b)(1)(vii) may be estimated consumer in the normal course of its that remittance transfer; under paragraph (b)(5)(i) of this section business pursuant to paragraph (f)(1) of (C) The insured institution made only if covered third-party fees are this section, the person has a reasonable 1,000 or fewer remittance transfers in permitted to be estimated under period of time, not to exceed six the prior calendar year to the particular paragraph (b)(5)(i) of this section and months, to begin complying with this country for which the designated the estimated covered third-party fees subpart. Compliance with this subpart recipients of those transfers received affect the amount of such disclosure. will not be required for any remittance funds in the country’s local currency; * * * * * transfers for which payment is made and during that reasonable period of time. (D) The remittance transfer is sent § 1005.33 [Amended] (iii) Transition period—qualifying for from the sender’s account with the ■ 4. Amend § 1005.33(a)(1)(iii)(A) by the safe harbor. If a person who insured institution; provided however, removing ‘‘(a), (b)(1) or (b)(2)’’ and previously provided remittance for the purposes of this paragraph, a adding in its place ‘‘(a) or (b)(1), (2), (4), transfers in the normal course of its sender’s account does not include a or (5)’’. business in excess of the safe harbor prepaid account, unless the prepaid threshold set forth in this paragraph account is a payroll card account or a § 1005.36 [Amended] (f)(2) determines that, as of a particular government benefit account. ■ 5. Amend § 1005.36(b)(3) by removing date, it will qualify for the safe harbor, (ii) The disclosures in ‘‘(a) or (b)(1)’’ and adding in its place it may cease complying with the § 1005.31(b)(1)(v) through (vii) may be ‘‘(a) or (b)(1), (4), or (5)’’.
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■ 6. In supplement I to part 1005: provider’’ and is not subject to the subpart B. Assume that in this case, a ■ a. Under Section 1005.30—Remittance requirements of subpart B. For purposes of reasonable period of time is six months. Transfer Definitions, revise 30(f) determining whether a person qualifies for Thus, compliance with subpart B was not Remittance Transfer Provider. the safe harbor under § 1005.30(f)(2)(i), the required for remittance transfers made on or ■ b. Under Section 1005.31— number of remittance transfers provided before March 5, 2015 (i.e., six months after includes any transfers excluded from the September 5, 2014). After March 5, 2015, the Disclosures, revise 31(b)(1)(viii) definition of ‘‘remittance transfer’’ due person was required to comply with subpart Statement When Additional Fees and simply to the safe harbor. In contrast, the B if, based on the facts and circumstances, Taxes May Apply. number of remittance transfers provided does the person provided remittance transfers in ■ c. Under Section 1005.32—Estimates: not include any transfers that are excluded the normal course of business and was thus ■ 1. Revise introductory paragraph 1 from the definition of ‘‘remittance transfer’’ a remittance transfer provider. and 32(b)(1) Permanent Exceptions for for reasons other than the safe harbor, such B. Example of safe harbor for a person that Transfers to Certain Countries; as small value transactions or securities and provided 500 or fewer transfers in 2019 and ■ 2. Add 32(b)(4) Permanent Exception commodities transfers that are excluded from provides 500 or fewer transfers in 2020. On the definition of ‘‘remittance transfer’’ by July 21, 2020, the safe harbor threshold in for Estimation of the Exchange Rate by § 1005.30(f)(2)(i) changed from 100 an Insured Institution, and 32(b)(5) § 1005.30(e)(2). iii. Transition period. A person may cease remittance transfers to 500 remittance Permanent Exception for Estimation of to satisfy the requirements of the safe harbor transfers. Thus, beginning on July 21, 2020, Covered Third-Party Fees by an Insured described in § 1005.30(f)(2)(i) if, beginning on pursuant to § 1005.30(f)(2)(i), a person is Institution; and July 21, 2020, the person provides in excess deemed not to be providing remittance ■ 3. Revise 32(c)(3) Covered Third-Party of 500 remittance transfers in a calendar year. transfers for a consumer in the normal course Fees, and 32(d) Bases for Estimates for For example, if a person that provided 500 of its business if the person provided 500 or Transfers Scheduled Before the Date of or fewer remittance transfers in the previous fewer remittance transfers in the previous calendar year provides more than 500 calendar year and provides 500 or fewer Transfer. remittance transfers in the current calendar ■ d. Under Section 1005.36—Transfers remittance transfers in the current calendar year, the safe harbor applies to the first 500 year. If a person provided 500 or fewer Scheduled Before the Date of Transfer, transfers in 2019 and provides 500 or fewer revise 36(b) Accuracy. remittance transfers that the person provides in the current calendar year. For any remittance transfers in 2020, that person The revisions and additions read as additional remittance transfers provided in qualifies for the safe harbor threshold in follows: the current calendar year and for any 2020. For example, assume that a person remittance transfers provided in the provided 200 remittance transfers in 2019 Supplement I to Part 1005—Official and 400 remittance transfers in 2020. The subsequent calendar year, whether the Interpretations safe harbor will apply to the person’s person provides remittance transfers for a transfers in 2020 beginning on July 21, 2020, Section 1005.30—Remittance Transfer consumer in the normal course of its as well as the person’s first 500 transfers in Definitions business, as defined in § 1005.30(f)(1), and is 2021. See comment 30(f)-2.iv.C for an * * * * * thus a remittance transfer provider for those example regarding the transition period if the additional transfers, depends on the facts and 30(f) Remittance Transfer Provider 500-transfer safe harbor is exceeded. circumstances. Section 1005.30(f)(2)(ii) C. Example of safe harbor and transition 1. Agents. A person is not deemed to be provides a reasonable period of time, not to period for the 500-transfer safe harbor acting as a remittance transfer provider when exceed six months, for such a person to begin threshold beginning on July 21, 2020. it performs activities as an agent on behalf of complying with subpart B, if that person is Assume that a person provided 490 a remittance transfer provider. then providing remittance transfers in the remittance transfers in 2020 and 490 such 2. Normal course of business. i. General. normal course of its business. At the end of transfers in 2021. The safe harbor will apply Whether a person provides remittance that reasonable period of time, such person to the person’s transfers in 2021, as well as transfers in the normal course of business would be required to comply with subpart B the person’s first 500 remittance transfers in depends on the facts and circumstances, unless, based on the facts and circumstances, 2022. However, if the person provides a 501st including the total number and frequency of the person is not a remittance transfer transfer on September 5, 2022, the facts and remittance transfers sent by the provider. For provider. circumstances determine whether the person example, if a financial institution generally iv. Examples. A. Example of safe harbor provides remittance transfers in the normal does not make remittance transfers available and transition period for 100-transfer safe course of business and is thus a remittance to customers, but sends a couple of such harbor threshold effective prior to July 21, transfer provider for the 501st and any transfers in a given year as an 2020. Assume that a person provided 90 subsequent remittance transfers that it accommodation for a customer, the remittance transfers in 2012 and 90 such provides in 2022. Furthermore, the person institution does not provide remittance transfers in 2013. The safe harbor applied to would not qualify for the safe harbor transfers in the normal course of business. In the person’s transfers in 2013, as well as the described in § 1005.30(f)(2)(i) in 2023 contrast, if a financial institution makes person’s first 100 remittance transfers in because the person did not provide 500 or remittance transfers generally available to 2014. However, if the person provided a fewer remittance transfers in 2022. However, customers (whether described in the 101st transfer on September 5, 2014, the facts for the 501st remittance transfer provided in institution’s deposit account agreement, or in and circumstances determine whether the 2022, as well as additional remittance practice) and makes transfers more frequently person provided remittance transfers in the transfers provided thereafter in 2022 and than on an occasional basis, the institution normal course of business and was thus a 2023, if that person is then providing provides remittance transfers in the normal remittance transfer provider for the 101st and remittance transfers for a consumer in the course of business. any subsequent remittance transfers that it normal course of business, the person will ii. Safe harbor. On July 21, 2020, the safe provided in 2014. Furthermore, the person have a reasonable period of time, not to harbor threshold in § 1005.30(f)(2)(i) changed would not have qualified for the safe harbor exceed six months, to come into compliance from 100 remittance transfers to 500 described in § 1005.30(f)(2)(i) in 2015 with subpart B of Regulation E. Assume that remittance transfers. Under § 1005.30(f)(2)(i), because the person did not provide 100 or in this case, a reasonable period of time is six beginning on July 21, 2020, a person that fewer remittance transfers in 2014. However, months. Thus, compliance with subpart B is provided 500 or fewer remittance transfers in for the 101st remittance transfer provided in not required for remittance transfers made on the previous calendar year and provides 500 2014, as well as additional remittance or before March 5, 2023 (i.e., six months after or fewer remittance transfers in the current transfers provided thereafter in 2014 and September 5, 2022). After March 5, 2023, the calendar year is deemed not to be providing 2015, if that person was then providing person is required to comply with subpart B remittance transfers in the normal course of remittance transfers for a consumer in the if, based on the facts and circumstances, the its business. Accordingly, a person that normal course of business, the person had a person provides remittance transfers in the qualifies for the safe harbor in reasonable period of time, not to exceed six normal course of business and is thus a § 1005.30(f)(2)(i) is not a ‘‘remittance transfer months, to come into compliance with remittance transfer provider.
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v. Continued compliance for transfers for party fees. In this scenario, the provider may a law or regulation of the recipient country which payment was made before a person only provide the disclaimer regarding taxes requires the person making funds directly qualifies for the safe harbor. Section collected on the remittance transfer by a available to the designated recipient to apply 1005.30(f)(2)(iii) addresses situations where a person other than the provider, as applicable. an exchange rate that is: person who previously was required to See Model Form A–30(c). i. Set by the government of the recipient comply with subpart B of Regulation E newly 2. Optional disclosure of non-covered country after the remittance transfer provider qualifies for the safe harbor in third-party fees and taxes collected by a sends the remittance transfer or § 1005.30(f)(2)(i). That section states that the person other than the provider. When a ii. Set when the designated recipient requirements of EFTA and Regulation E, remittance transfer provider knows the non- receives the funds. including those set forth in §§ 1005.33 and covered third-party fees or taxes collected on 2. Example illustrating when exact 1005.34 (which address procedures for the remittance transfer by a person other than amounts can and cannot be determined resolving errors and procedures for the provider that will apply to a particular because of the laws of the recipient country. cancellation and refund of remittance transaction, § 1005.31(b)(1)(viii) permits the i. The laws of the recipient country do not transfers, respectively), as well as the provider to disclose the amount of such fees permit a remittance transfer provider to requirements set forth in § 1005.13 (which, in and taxes. Section 1005.32(b)(3) additionally determine the exact exchange rate required to part, governs record retention), continue to permits a provider to disclose an estimate of be disclosed under § 1005.31(b)(1)(iv) when, apply to transfers for which payment is made such fees and taxes, provided any estimates for example, the government of the recipient prior to the date the person qualifies for the are based on reasonable source of country, on a daily basis, sets the exchange safe harbor in § 1005.30(f)(2)(i). Qualifying information. See comment 32(b)(3)–1. For rate that must, by law, apply to funds for the safe harbor in § 1005.30(f)(2)(i) example, a provider may know that the received and the funds are made available to likewise does not excuse compliance with designated recipient’s institution imposes an the designated recipient in the local currency the day after the remittance transfer provider any other applicable law or regulation. For incoming wire fee for receiving a transfer. sends the remittance transfer. example, if a remittance transfer is also an Alternatively, a provider may know that ii. In contrast, the laws of the recipient electronic fund transfer, any requirements in foreign taxes will be collected on the country permit a remittance transfer provider subpart A of Regulation E that apply to the remittance transfer by a person other than the to determine the exact exchange rate required transfer continue to apply, regardless of remittance transfer provider. In these whether the person must comply with to be disclosed under § 1005.31(b)(1)(iv) examples, the provider may choose, at its when, for example, the government of the subpart B. Relevant requirements in subpart option, to disclose the amounts of the A may include, but are not limited to, those recipient country ties the value of its relevant recipient institution fee and tax as currency to the U.S. dollar. relating to initial disclosures, change-in- part of the information disclosed pursuant to terms notices, liability of consumers for 3. Method by which transactions are made § 1005.31(b)(1)(viii). The provider must not in the recipient country. The method by unauthorized transfers, and procedures for include that fee or tax in the amount resolving errors. which transactions are made in the recipient disclosed pursuant to § 1005.31(b)(1)(vi) or country does not permit a remittance transfer 3. Multiple remittance transfer providers. If (b)(1)(vii). Fees and taxes disclosed under the remittance transfer involves more than provider to determine exact amounts § 1005.31(b)(1)(viii) must be disclosed in the required to be disclosed when transactions one remittance transfer provider, only one set currency in which the funds will be received. of disclosures must be given, and the are sent via international ACH on terms See comment 31(b)(1)(vi)–1. Estimates of any negotiated between the United States remittance transfer providers must agree non-covered third-party fees and any taxes among themselves which provider must take government and the recipient country’s collected on the remittance transfer by a government, under which the exchange rate the actions necessary to comply with the person other than the provider must be requirements that subpart B imposes on any is a rate set by the recipient country’s central disclosed in accordance with § 1005.32(b)(3). or all of them. Even though the providers bank or other governmental authority after must designate one provider to take the * * * * * the provider sends the remittance transfer. 4. Example illustrating when exact actions necessary to comply with the Section 1005.32—Estimates requirements that subpart B imposes on any amounts can and cannot be determined or all of them, all remittance transfer 1. Disclosures where estimates can be used. because of the method by which transactions providers involved in the remittance transfer Sections 1005.32(a) and (b)(1), (b)(4), and are made in the recipient country. remain responsible for compliance with the (b)(5) permit estimates to be used in certain i. The method by which transactions are applicable provisions of the EFTA and circumstances for disclosures described in made in the recipient country does not Regulation E. §§ 1005.31(b)(1) through (3) and 1005.36(a)(1) permit a remittance transfer provider to and (2). To the extent permitted in determine the exact exchange rate required to Section 1005.31—Disclosures § 1005.32(a) and (b)(1), (b)(4), and (b)(5), be disclosed under § 1005.31(b)(1)(iv) when * * * * * estimates may be used in the pre-payment the provider sends a remittance transfer via international ACH on terms negotiated 31(b) Disclosure Requirements disclosure described in § 1005.31(b)(1), the receipt disclosure described in between the United States government and * * * * * § 1005.31(b)(2), the combined disclosure the recipient country’s government, under 31(b)(1)(viii) Statement When Additional described in § 1005.31(b)(3), and the pre- which the exchange rate is a rate set by the Fees and Taxes May Apply Required payment disclosures and receipt disclosures recipient country’s central bank on the disclaimer when non-covered third-party fees for both first and subsequent preauthorized business day after the provider has sent the and taxes collected by a person other than remittance transfers described in remittance transfer. the provider may apply. If non-covered third- § 1005.36(a)(1) and (2). Section 1005.32(b)(2) ii. In contrast, a remittance transfer party fees or taxes collected by a person other permits estimates to be used for certain provider would not qualify for the than the provider apply to a particular information if the remittance transfer is § 1005.32(b)(1)(i)(B) methods exception if it remittance transfer or if a provider does not scheduled by a sender five or more business sends a remittance transfer via international know if such fees or taxes may apply to a days before the date of the transfer, for ACH on terms negotiated between the United particular remittance transfer, disclosures described in § 1005.36(a)(1)(i) States government and a private-sector entity § 1005.31(b)(1)(viii) requires the provider to and (a)(2)(i). or entities in the recipient country, under include the disclaimer with respect to such which the exchange rate is set by the fees and taxes. Required disclosures under * * * * * institution acting as the entry point to the § 1005.31(b)(1)(viii) may only be provided to 32(b) Permanent Exceptions recipient country’s payments system on the the extent applicable. For example, if the next business day. However, a remittance designated recipient’s institution is an agent 32(b)(1) Permanent Exceptions for Transfers transfer provider sending a remittance of the provider and thus, non-covered third- to Certain Countries transfer using such a method may qualify for party fees cannot apply to the transfer, the 1. Laws of the recipient country. The laws the § 1005.32(a) temporary exception or the provider must disclose all fees imposed on of the recipient country do not permit a exception set forth in § 1005.32(b)(4). the remittance transfer and may not provide remittance transfer provider to determine iii. A remittance transfer provider would the disclaimer regarding non-covered third- exact amounts required to be disclosed when not qualify for the § 1005.32(b)(1)(i)(B)
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methods exception if, for example, it sends The following example illustrates when an in the prior calendar year when the a remittance transfer via international ACH insured institution cannot determine an exact designated recipients of those transfers did on terms negotiated between the United exchange rate under § 1005.32(b)(4)(i)(B) for not receive the funds in the country’s local States government and the recipient a remittance transfer: currency. For example, an insured institution country’s government, under which the A. An insured institution or its service does not exceed the 1,000-transfer threshold exchange rate is set by the recipient country’s provider does not set the exchange rate in the prior calendar year if the insured central bank or other governmental authority required to be disclosed under institution provides 700 remittance transfers before the sender requests a transfer. § 1005.31(b)(1)(iv), and the rate is set when to a country in the prior calendar year when 5. Safe harbor list. If a country is included the funds are deposited into the recipient’s the designated recipients of those transfers on a safe harbor list published by the Bureau account by the designated recipient’s received funds in the country’s local under § 1005.32(b)(1)(ii), a remittance institution that does not have a currency and also sends 400 remittance transfer provider may provide estimates of correspondent relationship with, and does transfers to the same country in the prior the amounts to be disclosed under not act as an agent of, the insured institution. calendar year when the designated recipients § 1005.31(b)(1)(iv) through (vii). If a country ii. Examples where an insured institution of those transfers did not receive funds in the does not appear on the Bureau’s list, a can determine the exact exchange rate. The country’s local currency. remittance transfer provider may provide following examples illustrate when an 3. Transition period. If an insured estimates under § 1005.32(b)(1)(i) if the insured institution can determine an exact institution in the prior calendar year did not provider determines that the recipient exchange rate under § 1005.32(b)(4)(i)(B) for exceed the 1,000-transfer threshold to a country does not legally permit or the a remittance transfer, and thus the insured particular country pursuant to method by which transactions are conducted institution may not use the exception in § 1005.32(b)(4)(i)(C), but does exceed the in that country does not permit the provider § 1005.32(b)(4) to estimate the disclosures 1,000-transfer threshold in the current to determine exact disclosure amounts. required under § 1005.31(b)(1)(iv) through calendar year, the insured institution has a 6. Reliance on Bureau list of countries. A (vii) for the remittance transfer: reasonable amount of time after exceeding remittance transfer provider may rely on the A. An insured institution has a the 1,000-transfer threshold to begin list of countries published by the Bureau to correspondent relationship with an providing exact exchange rates in disclosures determine whether the laws of a recipient intermediary financial institution (or the (assuming it cannot rely on another country do not permit the remittance transfer intermediary financial institution acts as an exception in § 1005.32 to estimate the provider to determine exact amounts agent of the insured institution) and that exchange rate). The reasonable amount of required to be disclosed under intermediary financial institution sets the time must not exceed the later of six months § 1005.31(b)(1)(iv) through (vii). Thus, if a exchange rate required to be disclosed under after exceeding the 1,000-transfer threshold country is on the Bureau’s list, the provider § 1005.31(b)(1)(iv) for a remittance transfer. in the current calendar year or January 1 of may give estimates under this section, unless B. An insured institution or its service the next year. For example, assume an a remittance transfer provider has provider converts the funds into the local insured institution did not exceed the 1,000- information that a country on the Bureau’s currency to be received by the designated transfer threshold to a particular country list legally permits the provider to determine recipient for a remittance transfer using an pursuant to § 1005.32(b)(4)(i)(C) in 2020, but exact disclosure amounts. exchange rate that the insured institution or does exceed the 1,000-transfer threshold on 7. Change in laws of recipient country. its service provider sets. The insured December 1, 2021. The insured institution i. If the laws of a recipient country change institution can determine the exact exchange would have a reasonable amount of time after such that a remittance transfer provider can rate for purposes of § 1005.32(b)(4)(i)(B) for December 1, 2021 to begin providing exact determine exact amounts, the remittance the remittance transfer even if the insured exchange rates in disclosures (assuming it transfer provider must begin providing exact institution does not have a correspondent cannot rely on another exception in § 1005.32 amounts for the required disclosures as soon relationship with an intermediary financial to estimate the exchange rate). In this case, as reasonably practicable if the provider has institution in the transmittal route or the the reasonable amount of time must not information that the country legally permits designated recipient’s institution, and an exceed June 1, 2022 (which is six months the provider to determine exact disclosure intermediary financial institution in the after the insured institution exceeds the amounts. transmittal route or the designed recipient’s 1,000-transfer threshold in the previous ii. If the laws of a recipient country change institution does not act as an agent of the year). such that a remittance transfer provider insured institution. 32(b)(5) Permanent Exception for cannot determine exact disclosure amounts, 2. Threshold. For purposes of determining Estimation of Covered Third-Party Fees by an the remittance transfer provider may provide whether an insured institution made 1,000 or Insured Institution estimates under § 1005.32(b)(1)(i), even if fewer remittance transfers in the prior 1. Insured institution cannot determine the that country does not appear on the list calendar year to a particular country exact covered third-party fees. For purposes published by the Bureau. pursuant to § 1005.32(b)(4)(i)(C): of § 1005.32(b)(5)(i)(B), an insured institution * * * * * i. The number of remittance transfers cannot determine, at the time it must provide provided includes transfers in the prior the applicable disclosures, the exact covered 32(b)(4) Permanent Exception for calendar year to that country when the third-party fees required to be disclosed Estimation of the Exchange Rate by an designated recipients of those transfers under § 1005.31(b)(1)(vi) for a remittance Insured Institution received funds in the country’s local transfer to a designated recipient’s institution 1. Determining the exact exchange rate. For currency regardless of whether the exchange when all of the following conditions are met: purposes of § 1005.32(b)(4)(i)(B), an insured rate was estimated for those transfers. For i. The insured institution does not have a institution cannot determine, at the time it example, an insured institution exceeds the correspondent relationship with the must provide the applicable disclosures, the 1,000-transfer threshold in the prior calendar designated recipient’s institution; exact exchange rate required to be disclosed year if the insured institution provided 700 ii. The designated recipient’s institution under § 1005.31(b)(1)(iv) for a remittance remittance transfers to a country in the prior does not act as an agent of the insured transfer to a particular country where the calendar year when the designated recipients institution; designated recipient of the transfer will of those transfers received funds in the iii. The insured institution does not have receive funds in the country’s local currency country’s local currency when the exchange an agreement with the designated recipient’s if a person other than the insured institution rate was estimated for those transfers and institution with respect to the imposition of sets the exchange rate for that transfer, except also sends 400 remittance transfers to the covered third-party fees on the remittance where that person has a correspondent same country in the prior calendar year when transfer (e.g., an agreement whereby the relationship with the insured institution, that the designated recipients of those transfers designated recipient’s institution agrees to person is a service provider for the insured received funds in the country’s local charge back any covered third-party fees to institution, or that person acts as an agent of currency and the exchange rate for those the insured institution rather than impose the the insured institution. transfers was not estimated. fees on the remittance transfer); and i. Example where an insured institution ii. The number of remittance transfers does iv. The insured institution does not know cannot determine the exact exchange rate. not include remittance transfers to a country at the time the disclosures are given that the
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only intermediary financial institutions that transfers did not receive funds in the pursuant to § 1005.32(b)(5)(i)(C) in 2020, but will impose covered third-party fees on the country’s local currency. does exceed the 500-transfer threshold on transfer are those institutions that have a iii. The number of remittance transfers December 1, 2021. The insured institution correspondent relationship with or act as an includes remittance transfers provided to the would have a reasonable amount of time after agent for the insured institution, or have designated recipient’s institution and any of December 1, 2021 to begin providing exact otherwise agreed upon the covered third- its branches in the country to which the covered third-party fees in disclosures party fees with the insured institution. particular transfer described in (assuming that a United States Federal statute 2. Insured institution can determine the § 1005.32(b)(5) is being sent. For example, if or regulation does not prohibit the insured exact covered third-party fees. For purposes the particular remittance transfer described institution from being able to determine the of § 1005.32(b)(5)(i)(B), an insured institution in § 1005.32(b)(5) is being sent to the exact covered third-party fees, or the insured can determine, at the time it must provide designated recipient’s institution Bank XYZ institution cannot rely on another exception the applicable disclosures, exact covered in Nigeria, the number of remittance transfers in § 1005.32 to estimate covered third-party third-party fees, and thus the insured for purposes of the 500-transfer threshold fees). In this case, the reasonable amount of institution may not use the exception in would include remittances transfers in the time must not exceed June 1, 2022 (which is § 1005.32(b)(5) to estimate the disclosures previous calendar year that were sent to Bank six months after the insured institution required under § 1005.31(b)(1)(vi) or (vii) for XYZ, or to its branches, in Nigeria. The 500- exceeds the 500-transfer threshold in the the transfer, if any of the following transfer threshold would not include previous year). conditions are met: remittance transfers that were sent to * * * * * i. An insured institution has a branches of Bank XYZ that were located in correspondent relationship with the any country other than Nigeria. 32(c) Bases for Estimates designated recipient’s institution; 4. United States Federal statute or * * * * * ii. The designated recipient’s institution regulation. An insured institution can still 32(c)(3) Covered Third-Party Fees acts as an agent of the insured institution; use § 1005.32(b)(5) to provide estimates of iii. An insured institution has an covered third-party fees for a remittance 1. Potential transmittal routes. A agreement with the designated recipient’s transfer sent to a particular designated remittance transfer from the sender’s account at an insured institution to the designated institution with respect to the imposition of recipient’s institution even if the insured recipient’s institution may take several covered third-party fees on the remittance institution sent more than 500 transfers to the routes, depending on the correspondent transfer; or designated recipient’s institution in the prior relationships each institution in the iv. An insured institution knows at the calendar year if a United States Federal transmittal route has with other institutions. time the disclosures are given that the only statute or regulation prohibits the insured In providing an estimate of the fees required intermediary financial institutions that will institution from being able to determine the to be disclosed under § 1005.31(b)(1)(vi) impose covered third-party fees on the exact covered third-party fees required to be pursuant to the § 1005.32(a) temporary transfer are those institutions that have a disclosed under § 1005.31(b)(1)(vi) for the exception or the exception under correspondent relationship with or act as an remittance transfer and the insured § 1005.32(b)(5), an insured institution may institution meets the other conditions set agent for the insured institution, or have rely upon the representations of the otherwise agreed upon the covered third- forth in § 1005.32(b)(5). A United States designated recipient’s institution and the party fees with the insured institution. Federal statute or regulation specifically institutions that act as intermediaries in any 3. Threshold. For purposes of determining prohibits the insured institution from being one of the potential transmittal routes that it whether an insured institution made 500 or able to determine the exact covered third- reasonably believes a requested remittance fewer remittance transfers in the prior party fees for the remittance transfer if the transfer may travel. calendar year to a particular designated United States Federal statute or regulation: recipient’s institution pursuant to i. Prohibits the insured institution from 32(d) Bases for Estimates for Transfers § 1005.32(b)(5)(i)(C): disclosing exact covered third-party fees in Scheduled Before the Date of Transfer i. The number of remittance transfers disclosures for transfers to a designated 1. In general. When providing an estimate provided includes remittance transfers in the recipient’s institution; or pursuant to § 1005.32(b)(2), § 1005.32(d) prior calendar year to that designated ii. Makes it infeasible for the insured requires that a remittance transfer provider’s recipient’s institution regardless of whether institution to form a relationship with the estimated exchange rate must be the the covered third-party fees were estimated designated recipient’s institution and that exchange rate (or estimated exchange rate) for those transfers. For example, an insured relationship is necessary for the insured that the remittance transfer provider would institution exceeds the 500-transfer threshold institution to be able to determine, at the have used or did use that day in providing in the prior calendar year if an insured time it must provide the applicable disclosures to a sender requesting such a institution provides 300 remittance transfers disclosures, exact covered third-party fees. remittance transfer to be made on the same to the designated recipient’s institution in the 5. Transition period. If an insured day. If, for the same-day remittance transfer, prior calendar year when the covered third- institution in the prior calendar year did not the provider could utilize an exception party fees were estimated for those transfers exceed the 500-transfer threshold to a permitting the provision of estimates in and also sends 400 remittance transfers to the particular designated recipient’s institution § 1005.32(a) or (b)(1), or (4), the provider may designated recipient’s institution in the prior pursuant to § 1005.32(b)(5)(i)(C), but does provide estimates based on a methodology calendar year and the covered third-party exceed the 500-transfer threshold in the permitted under § 1005.32(c). For example, fees for those transfers were not estimated. current calendar year, the insured institution if, on February 1, the sender schedules a ii. The number of remittance transfers has a reasonable amount of time after remittance transfer to occur on February 10, includes remittance transfers provided to the exceeding the 500-transfer threshold to begin the provider should disclose the exchange designated recipient’s institution in the prior providing exact covered third-party fees in rate as if the sender was requesting the calendar year regardless of whether the disclosures (assuming that a United States transfer be sent on February 1. However, if designated recipients received the funds in Federal statute or regulation does not at the time payment is made for the requested the country’s local currency or in another prohibit the insured institution from being transfer, the remittance transfer provider currency. For example, an insured institution able to determine the exact covered third- could not send any remittance transfer until exceeds the 500-transfer threshold in the party fees, or the insured institution cannot the next day (for reasons such as the prior calendar year if the insured institution rely on another exception in § 1005.32 to provider’s deadline for the batching of provides 300 remittance transfers to the estimate covered third-party fees). The transfers), the remittance transfer provider designated recipient’s institution in the prior reasonable amount of time must not exceed can use the rate (or estimated exchange rate) calendar year when the designated recipients the later of six months after exceeding the that the remittance transfer provider would of those transfers received funds in the 500-transfer threshold in the current calendar have used or did use in providing disclosures country’s local currency and also sends 400 year or January 1 of the next year. For that day with respect to a remittance transfer remittance transfers to the same designated example, assume an insured institution did requested that day that could not be sent recipient’s institution in the prior calendar not exceed the 500-transfer threshold to a until the following day. year when the designated recipients of those particular designated recipient’s institution * * * * *
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Section 1005.36—Transfers Scheduled Before subsequent preauthorized remittance transfer provided pursuant to § 1005.36(a)(1)(i) or the Date of Transfer unless and until it is superseded by a receipt (a)(2)(i), unless a figure was an estimate or * * * * * provided pursuant to § 1005.36(a)(2)(i). For based on an estimate disclosed pursuant to each subsequent preauthorized remittance § 1005.32. Thus, for example, if a provider 36(b) Accuracy transfer, only the most recent receipt disclosed its fee as $10 in a receipt provided 1. Use of estimates. In providing the provided pursuant to § 1005.36(a)(1)(i) or pursuant to § 1005.36(a)(1)(i) and that receipt disclosures described in § 1005.36(a)(1)(i) or (a)(2)(i) must be accurate as of the date each contained an estimate of the exchange rate (a)(2)(i), remittance transfer providers may subsequent transfer is made. pursuant to § 1005.32(b)(2), the second use estimates to the extent permitted by any 3. Receipts. A receipt required by receipt provided pursuant to of the exceptions in § 1005.32. When § 1005.36(a)(1)(ii) or (a)(2)(ii) must accurately § 1005.36(a)(1)(ii) must also disclose the fee estimates are permitted, however, they must reflect the details of the transfer to which it as $10. be disclosed in accordance with § 1005.31(d). pertains and may not contain estimates 2. Subsequent preauthorized remittance pursuant to § 1005.32(b)(2). However, the * * * * * transfers. For a subsequent transfer in a series remittance transfer provider may continue to Dated: May 6, 2020. of preauthorized remittance transfers, the disclose estimates to the extent permitted by Laura Galban, receipt provided pursuant to § 1005.32(a) or (b)(1), (4), or (5). In providing Federal Register Liaison, Bureau of Consumer § 1005.36(a)(1)(i), except for the temporal receipts pursuant to § 1005.36(a)(1)(ii) or Financial Protection. disclosures in that receipt required by (a)(2)(ii), § 1005.36(b)(2) and (3) do not allow § 1005.31(b)(2)(ii) (Date Available) and a remittance transfer provider to change [FR Doc. 2020–10278 Filed 6–4–20; 8:45 am] (b)(2)(vii) (Transfer Date), applies to each figures previously disclosed on a receipt BILLING CODE 4810–AM–P
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Part V
Department of the Interior
Bureau of Ocean Energy Management 30 CFR Part 550 Air Quality Control, Reporting, and Compliance; Final Rule
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DEPARTMENT OF THE INTERIOR Preamble Table of Contents CAA Clean Air Act DOI Department of the Interior I. Preamble Acronyms and Terms Bureau of Ocean Energy Management DOCD Development Operations II. Background and Legal Authority Coordination Document A. Background 30 CFR Part 550 DPP Development and Production Plan B. Key Provisions of the Final Rule EA Environmental Assessment C. BOEM’s Air Quality Modeling Studies [Docket ID: BOEM–2018–0038] EET Emission Exemption Threshold D. Summary of Key Changes Since the EIS Environmental Impact Statement Proposed Rule RIN 1010–AE02 E.O. Executive Order III. Summary of Public Comments EP Exploration Plan A. Overview of Comments FR Federal Register Air Quality Control, Reporting, and B. Why does BOEM need to update the air Compliance GOM Gulf of Mexico quality regulations? GOMR Gulf of Mexico Region C. Why issue a rule before the regional air IC Information Collection AGENCY: Bureau of Ocean Energy quality studies are complete? Management (BOEM), Interior. IRIA Initial Regulatory Impact Analysis D. Responses to General Comments Made MACI Maximum Allowable Concentration ACTION: Final rule. About the Proposed Rule Increases E. Comments on the Regulatory Impact and MMS Minerals Management Service SUMMARY: On April 5, 2016, BOEM Information Collection Analyses NAAQS National Ambient Air Quality published a proposed rule that would IV. Section-by-Section Analysis of the Final Standards amend the regulations related to air Rule NASEM National Academy of Sciences, quality measurement, evaluation, and V. Key Statutes and Executive Orders Engineering, and Medicine control for oil, gas, and sulfur A. Statutes NGO Non-governmental Organization 1. Congressional Review Act NTL Notice to Lessees and Operators operations on the Outer Continental 2. Data Quality Act Shelf (OCS). The rule proposed OCS Outer Continental Shelf 3. National Environmental Policy Act OCSLA Outer Continental Shelf Lands Act significant revisions to existing 4. Paperwork Reduction Act OIRA Office of Information and Regulatory regulations. This final rule amends the 5. Regulatory Flexibility Act Affairs (a sub agency within OMB) air quality management regulations 6. Small Business Regulatory Enforcement OMB Office of Management and Budget applicable to activities that BOEM Fairness Act PM Particulate Matter 7. Unfunded Mandates Reform Act authorizes on the OCS of the United PM2.5 Particulate Matter less than or equal States in the Central and Western Gulf B. Executive Orders to 2.5 microns diameter (i.e., fine PM) 1. Governmental Actions and Interference PM10 Particulate Matter less than or equal of Mexico (GOM) west of 87.5 degrees With Constitutionally Protected Property longitude and adjacent to the North to 10 microns diameter Rights (E.O. 12630) PRA Paperwork Reduction Act Slope Borough of the State of Alaska. 2. Regulatory Planning and Review (E.O. ROW Right-of-Way The air quality regulatory program 12866) RUE Right-of-Use-and-Easement (AQRP) is a component of the review 3. Civil Justice Reform (E.O. 12988) SBA Small Business Administration and approval of plans for the 4. Protection of Children From Secretary Secretary of the Interior exploration, development, and Environmental Health and Safety Risks S.O. Secretary’s Order production of oil, gas, and sulfur on the (E.O. 13045) SILs Significant Impact Levels 5. Federalism (E.O. 13132) SLs Significance Levels OCS to comport with the Secretary of 6. Consultation With Tribes and Alaska the Interior’s separate and distinct TSP Total Suspended Particulates Native Claims Settlement Act USEPA U.S. Environmental Protection statutory authority governing air quality. Corporations (E.O. 13175 and Related Agency This final rule implements the Secretary Authorities) VOC Volatile Organic Compound of the Interior’s statutory responsibility 7. Effects on the Energy Supply (E.O. to ensure that conventional energy 13211) II. Background and Legal Authority 8. Improving Regulation and Regulatory activities authorized under the Outer A. Background Continental Shelf Lands Act (OCSLA) Review (E.O. 13563) 9. Enhancing Coordination of National The Outer Continental Shelf Lands do not preclude compliance with Efforts in the Arctic (E.O. 13689) National Ambient Air Quality Standards Act (OCSLA) provides the Secretary of 10. Reducing Regulation and Controlling the Interior (Secretary), acting through (NAAQS) to the extent those activities Regulatory Costs (E.O. 13771) significantly affect the air quality of any 11. Promoting Energy Independence and the Bureau of Ocean Energy State. Economic Growth (E.O. 13783) Management (BOEM), with the 12. Implementing an America-First authority to ‘‘prescribe and amend such DATES: This rule is effective on July 6, Offshore Energy Strategy (E.O. 13795) rules and regulations as he determines 2020. to be necessary and proper in order to FOR FURTHER INFORMATION CONTACT: I. Preamble Acronyms and Terms provide for the prevention of waste and Peter Meffert, Bureau of Ocean Energy To ease the reading of this preamble conservation of resources of the Outer Management, Office of Policy, and for reference purposes, the Continental Shelf (OCS), and the Regulation, and Analysis, at following acronyms and terms are used protection of correlative rights therein’’ [email protected] or by mail to in the preamble: and that ‘‘notwithstanding any other 45600 Woodland Road, Sterling, VA AKOCSR Alaska OCS Region provisions herein, such rules and 20166 or by calling (703) 787–1610. You ANCSA Alaska Native Claims Settlement regulations shall, as of their effective may also contact Deanna Meyer- Act date, apply to all operations conducted Pietruszka, Bureau of Ocean Energy AQRP Air Quality Regulatory Program under a lease issued or maintained Management, Chief, Office of Policy, ASLM Assistant Secretary for Land and under the provisions of this Regulation, and Analysis, at Minerals Management subchapter.’’ 43 U.S.C. 1334(a). OCSLA [email protected] or ASRC Arctic Slope Regional Corporation is clear on the Secretary’s by mail to 1849 C Street NW, Mail Stop BACT Best Available Control Technology BOEM Bureau of Ocean Energy responsibilities to ensure ‘‘compliance 5238, Washington, DC 20240 or by Management with the National Ambient Air Quality calling (202) 208–6352. BSEE Bureau of Safety and Environmental Standards [(NAAQS)]’’, however the SUPPLEMENTARY INFORMATION: Enforcement plain language also states that his
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authority to regulate is limited to themselves also criteria air pollutants) is Executive order, the President directed ‘‘activities authorized under this [Act]’’ Volatile Organic Compounds (VOCs). that: ‘‘The heads of agencies shall that ‘‘significantly affect the air quality The legislative history of section 5(a) review all existing regulations, orders, of any State.’’ For instance, OCSLA of OCSLA provides more insight into guidance documents, policies, and any itself does not require or permit the Congressional intent. The 1978 other similar agency actions operation of vessels in support of Conference Report notes that while one (collectively, agency actions) that activities under a lease. version of the original legislation potentially burden the development or OCSLA’s provisions on air quality included ‘‘very broad authority, with use of domestically produced energy provide the Secretary a much narrower few guidelines, to promulgate resources . . .’’ and directed the head of authority to regulate when compared regulations’’ it was ultimately the final, each agency to finalize a report detailing with the breadth of those authorities adopted language known to us in the the aforementioned agency actions that granted to the Environmental Protection statute that ‘‘does provide statutory potentially burden domestic energy Agency (USEPA) in the Clean Air Act guidelines and requirements for certain development. On October 24, 2017, the types of regulations’’ in order to provide (CAA). Under later amendment to the DOI finalized and published in the ‘‘a mechanism for coordinated CAA, the CAA Amendments of 1990, Federal Register the ‘‘Review of the bureaucratic action.’’ S. Rep. 95–1091 at section 328 of the CAA clearly outlines Department of the Interior Actions that the separate and distinct jurisdictional 82–83 (1978). Furthermore, this same report notes Potentially Burden Domestic Energy.’’ authority of the USEPA, limiting the 82 FR 5052, Nov. 1, 2017. This report applicability of USEPA’s regulatory that conferees intended that regulations promulgated by the Secretary would, identified BOEM’s review of the authority only to specific areas of the proposed air quality rule. OCS in consultation with the Secretary. ‘‘. . . not generally require that the air 42 U.S.C. 7627. Congress further mass above the OCS itself be brought Separately, on April 28, 2017, curtailed the geographic extent of into compliance . . .’’ but instead President Trump issued E.O. 13795, USEPA’s jurisdiction on the OCS in the would control emissions from seaward ‘‘Implementing an America-First Consolidated Appropriations Act of sources ‘‘. . . to prevent a significant Offshore Energy Strategy.’’ In section 8 2012 (Pub. L. 112–74), which effect on the air quality of an adjacent of that Executive order, the President transferred regulatory authority for air onshore area.’’ Id. at 85–86. It is directed that: ‘‘The Secretary of the quality for operations in the Arctic OCS apparent from this Conference Report Interior shall take all steps necessary to adjacent to the North Slope Borough of that Congress contemplated greater review BOEM’s Proposed Rule entitled the State of Alaska from the USEPA to authorities, but instead chose statutory ‘Air Quality Control, Reporting, and DOI. direction that sought to both de-conflict Compliance,’ 81 FR 19718 (April 5, Unlike the USEPA, whose regulatory and define a separate and distinct 2016), along with any related rules and regulatory regimen for the Secretary, mandate is much broader and guidance, and, if appropriate, shall, as expecting that some authorized applicable to many types of air soon as practicable and consistent with activities on the OCS may not have pollutants, DOI’s regulatory authority law, consider whether the proposed significant effects due to their being under section 5(a) of OCSLA is focused rule, and any related rules and located ‘‘many miles’’ from an adjacent on the six criteria air pollutants for guidance, should be revised or onshore area. Id. at 86. Subsequent to which the USEPA has defined National withdrawn.’’ Notably, both Executive the passage of this statutory direction Ambient Air Quality Standards provided by the OCSLA Amendments of orders only directed the review of (NAAQS) in accordance with the 1978, the Department of the Interior agency actions and did not direct requirements of the Clean Air Act (DOI) promulgated air quality specific outcomes for rulemakings, (CAA). These pollutants are Sulfur regulations for the OCS in 1980, which leaving decisions to the discretion of the Dioxide, Nitrogen Oxide, Carbon incorporated the NAAQS, as established Secretary, consistent with applicable Monoxide, Lead, Ozone, and Particulate at that time. laws. Matter, of which there are several forms, On April 5, 2016, BOEM published a BOEM has carefully reviewed the two of which, PM , and PM , have 2.5 10 proposed rule (81 FR 19718, April 5, available alternatives to ensure defined NAAQS.1 The amount of any 2016) to update the current air quality compliance with all relevant subsequent given criteria pollutant that may affect regulations that were promulgated by Executive and Secretary’s orders, any State is influenced by two factors, the Secretary of the Interior (Secretary) including those related to energy the direct emission and dispersion of over 39 years ago (45 FR 15128, March independence and regulatory reform. the criteria pollutant and the formation 7, 1980). While the existing regulatory Moreover, BOEM reviewed all of a criteria pollutant caused by the process is adequate, the regulations emissions of other pollutants. Those air comments received during the public copied USEPA’s significance levels comment period for the proposed rule, pollutants that contribute to the (SLs) and Maximum Allowable formation of a criteria air pollutant are in accordance with the Administrative Concentration Increases (MACIs) at the Procedure Act (APA). Reexamination of known as precursor air pollutants. time of promulgation (1980). The Historically, the precursor air pollutant the public comments from the 2016 corresponding values in the USEPA proposed rule was necessary since it is that BOEM has regulated (in addition to regulations have been updated since those precursor air pollutants that are questionable whether all provisions of DOI’s regulations were adopted. the 2016 proposed rule would survive On May 23, 2016, BOEM provided a 1 judicial review. The existing BOEM regulations refer to total 14-day comment period extension to the suspended particulates (TSP), which was a criteria This final rule revises the regulations air pollutant at the time the regulations were original 60-day public comment period, originally published. Total suspended particulates thus extending the public comment so that they adequately reflect current means any form of particulate matter (i.e., solid period to June 20, 2016 (81 FR 32259). SLs while ensuring that the regulatory particles or droplets) suspended in the air that has On March 28, 2017, President Trump administration of the Secretary’s a diameter of 100 microns or less. PM10 and PM2.5 distinct statutory authorities does not go are subsets of TSP because they represent forms of issued Executive Order (E.O.) 13783, particulate matter having a diameter of 10 or 2.5 ‘‘Promoting Energy Independence and beyond the authorities granted to the microns or less, respectively. Economic Growth.’’ In section 2 of that Secretary in OCSLA.
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B. Key Provisions of the Final Rule numbers are appropriately placed and exceed the EET for TSP,6 to use readily accessible here. modeling to determine whether their BOEM is adopting the following key • Clarifying the Emission Exemption facility would cause an exceedance of provisions from the proposed rule in 7 Threshold (EET) Terminology. The the SLs for PM10 and PM2.5, not TSP. this final rule: • Application to Development • existing regulations use several different Compliance with the NAAQS. The terms interchangeably, as they relate to Operations Coordination Document values for primary and secondary the ‘‘Emissions Exemption Amount.’’ (DOCDs). This final rule clarifies that NAAQS are currently set forth in the EET formulas in current §§ 550.303 2 These include ‘‘exemption amount’’ and USEPA regulations at 40 CFR part 50. ‘‘exempt emissions.’’ BOEM is adding a and 550.304 apply to Development and Consistent with the proposed rule, this definition of the term ‘‘emissions Production Plans (DPPs) and DOCDs. final rule defines the term ‘‘NAAQS,’’ exemption threshold,’’ which replaces This clarification will not lead to a deletes the outdated lists of specific the term ‘‘exemption amount’’ used in change in practice because BOEM has criteria air pollutants, and retains the the existing regulations. The existing always applied the existing air quality existing regulation that requires references to the term ‘‘exempt regulations to DPPs and DOCDs. The compliance with the NAAQS. Currently, emissions’’ are also being clarified by proposed rule included this § 550.303(g)(2)(i)(B) provides that no reference to the new defined term. clarification. Conforming changes are concentration of an air pollutant shall These changes merely clarify made in other provisions of the final exceed the concentration permitted terminology. rule as described in the Section-by- under the national secondary ambient • Replacing the Term Total Section analysis. air quality standard or the concentration • Suspended Particulates (TSP). This final Criteria Air Pollutants. The final permitted under the national primary rule replaces the former criteria air rule replaces the term ‘‘air pollutant’’ air quality standard, whichever pollutant ‘‘total suspended with the term ‘‘criteria air pollutant.’’ concentration is lowest for the air particulates’’ 5 with the new criteria Criteria air pollutants include Sulfur pollutant for the period of exposure. pollutants ‘‘particulate matter 10’’ Dioxide, Nitrogen Oxide, Carbon BOEM and its predecessor agencies 3 (PM ) and ‘‘particulate matter 2.5’’ Monoxide, Lead, Ozone, Particulate have required compliance with both 10 (PM ) in the list of air pollutants in the Matter, for which two forms, PM2.5, and primary and secondary standards 2.5 tables at §§ 550.303(e) and 550.304(c). PM10, have been defined. Under because OCSLA’s mandate makes no BOEM is aware that the USEPA has OCSLA, the Secretary’s authority is to distinction between them. This final determined that PM and PM are ensure compliance with the NAAQS to rule also clarifies that DOI’s reporting 10 2.5 more relevant indicators of particle the extent that authorized activities and compliance requirements apply to pollution impact on human health and significantly affect the air quality of any the emissions of all pollutants on the public welfare than TSP. Nevertheless, State. As noted above, USEPA has OCS for which a national ambient air for the time being, TSP has been defined NAAQS for six common air quality standard has been defined.4 pollutants, known as ‘‘criteria air • retained in the EET formulas at Updating the Significance Levels §§ 550.303(d) and 550.304(b). Although pollutants.’’ In addition to the criteria (SLs) Table. The term ‘‘Significance the USEPA replaced TSP as a NAAQS air pollutants, DOI regulates VOCs, Level’’ is defined to reference the values pollutant in 1987 and has discontinued which can affect the formation of in the table at § 550.303(e), which are the use of TSP in most of its air quality criteria pollutants. Many other ‘‘air based on the values currently set forth regulations, BOEM does not believe that pollutants’’ are not within the scope of in USEPA regulations at 40 CFR the bureau has an adequate scientific OCSLA’s statutory mandate, as they are 51.165(b)(2). These updated values and basis for replacing the EET formula for not covered under the NAAQS.8 As their updated criteria air pollutants TSP at this time. Hence, BOEM is discussed in the proposed rule, BOEM replace the outdated table of SLs in the continuing the use of TSP in the EET has clarified throughout the final rule existing §§ 550.303(e) and 550.304(c), formulas. BOEM’s recent GOM and what was meant by the use of the term dating from 1980. BOEM may update Alaska air quality studies provide ‘‘air pollutant’’ in the existing these SLs as warranted through future insights into the EET formulas, regulations. Before this change, BOEM rulemaking. In contrast to the proposed informing potential future regulatory used the term ‘‘air pollutant’’ with rule’s approach of merely cross- differing meanings.9 changes. At the same time, BOEM • referencing to the USEPA’s regulations, believes that it is important for Dispersion Modeling. As noted the final rule provides a table of SLs for operators to evaluate the impacts of previously, this final rule does not lessees and operators as a quick incorporate any of the provisions from criteria air pollutants PM10 and PM2.5. reference. Instead of searching for For this reason, this rulemaking replaces relevant SLs in another agency’s 6 Because TSP is no longer a criteria pollutant, the the TSP significance level values with USEPA has deleted SLs for TSP from its SLs table; regulations, and given that USEPA’s those of PM and PM in the table of regulations are different from DOI’s, the 10 2.5 similarly, this rule’s new SLs table no longer Significance Levels—Air Pollution contains an SL value for TSP. Concentrations at §§ 550.303(e) and 7 Although the final rule requires operators, 2 Primary NAAQS standards provide for public 550.304(c). Going forward, the SLs table whose emissions exceed the EET for TSP, to use health protection, including that of sensitive modeling to determine whether their facility would will no longer contain any values for populations such as asthmatics, children, and the cause an exceedance of the SLs for PM10 and PM2.5, elderly. Secondary NAAQS standards provide for TSP. Because the SLs for PM10 and not TSP, where modeling indicates an exceedance public welfare protection, including protection PM2.5 are a more appropriate basis for of the SL for either PM10 or PM2.5, TSP evaluation against decreased visibility and damage to animals, evaluating PM pollution, this final rule in relation to the values in the table listing the crops, vegetation, and buildings. Maximum Allowable Concentration Increases 3 BOEM’s predecessor agencies are the U.S. will require operators, whose emissions (MACI) might be necessary. Geological Survey, Bureau of Land Management, 8 For example, hazardous air pollutants and Minerals Management Service (MMS), and Bureau 5 TSP represents PM having a diameter of 100 greenhouse gases have no NAAQS and therefore fall of Ocean Energy Management, Regulation, and microns or less; in contrast, PM10 represents PM outside the scope of BOEM’s AQRP. 9 Enforcement. have a diameter of 10 microns or less. PM2.5 The section by section discussion of 30 CFR 4 See 43 U.S.C. 1334(a)(8), which requires represents PM having a diameter of two and one- 550.105 provides details on where each of these ‘‘compliance with the national ambient air quality half microns or less. Thus, PM2.5 is a subset of PM10 uses of ‘‘air pollutant’’ are found in the existing standards. and PM10 is a subset of TSP. regulations.
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the proposed rule regarding the use of factors to more accurately assess the D. Summary of Key Changes Since the photochemical models to evaluate the emissions being emitted by equipment Proposed Rule formation of ozone or fine PM. Because used by OCS lessees and operators and This final rule amends regulations the existing regulations cross-reference to evaluate the emissions for lead, PM2.5, implementing section 5(a)(8) of OCSLA the recently updated USEPA modeling PM10, TSP, and ammonia. (43 U.S.C. 1334(a)(8)), which requires guidelines, which include guidelines on C. BOEM’s Air Quality Modeling Studies the Secretary to promulgate regulations photochemical modeling, this final rule ‘‘for compliance with the national This final rule updates outdated clarifies that those cross-references are ambient air quality standards pursuant standards and benchmarks, but defers applicable only to the portions of to the Clean Air Act (42 U.S.C. 7401 et consideration for further regulatory USEPA’s modeling guidelines that deal seq.), to the extent that activities changes until the BOEM studies with dispersion modeling. BOEM will authorized under [OCSLA] significantly discussed below can all be completed not require photochemical modeling affect the air quality of any State.’’ and evaluated. under any circumstances at this time. BOEM administers these existing Once the ongoing air quality studies are In 2013 and 2014, BOEM initiated two air quality modeling studies to evaluate regulations, which have been completed and evaluated, BOEM may fundamentally the same since their reevaluate this position if it determines the impact of OCS operations on the air quality of the neighboring States. The publication in 1980. This final rule that OCS sources significantly adopts some provisions of the proposed contribute to the formation of ozone or first of these studies was focused on air quality adjacent to the North Slope rule. fine PM. Over the past 40 years, the existing • Borough of Alaska; the second Air Quality Spreadsheets. Along regulations have required lessees and addressed Gulf of Mexico (GOM) air with this rulemaking, BOEM is updating operators to: 13 the Office of Management and Budget quality. 1. Submit information on air In 2018, BOEM completed its Alaska (OMB)-approved air quality emissions from their OCS oil, gas, and study, the ‘‘Arctic Air Quality Impact spreadsheets BOEM–0138 and BOEM– sulfur activities projected to occur Assessment Modeling Study,’’ 0139, which are applicable to under any proposed EP, DPP, or DOCD conducted by the Eastern Research Exploration Plans (EPs), DOCDs, and (collectively referred to in this final rule Group, Inc. (ERG), Ramboll Group A/S, DPPs, respectively.10 These are forms as ‘‘plans’’).14 and the University of Alaska (not part of the regulations themselves) 11 2. Determine whether projected that operators use to report the Fairbanks. This study assessed emissions of certain air pollutants information on air emissions required in BOEM’s current EETs, and proposed exceed the applicable EET. the regulations, primarily the emissions neither new EETs nor changes to the 3. Model the potential impacts of associated with their proposed plans. existing EETs. BOEM has proposed a certain air pollutants when projected These spreadsheets require the operator follow-up study entitled ‘‘Updating the emissions exceed an applicable EET that to identify the relevant types of Emissions Exemption Thresholds (EETs) could potentially cause significant air Using Classification and Regression equipment that will be used in quality impacts to a State. As part of this Tree (CART) Analysis Study’’ for connection with its OCS operations. The review, BOEM first analyzes whether BOEM’s Studies Development Plan.12 air quality spreadsheets provide the modeled emissions would cause an This follow-on study also would emissions factors that correspond to increase in the ambient concentration of evaluate the consistency in the EETs each of the equipment types and that any criteria air pollutant in any State to between the Alaska and GOM regions, BOEM uses to determine the amount of exceed an SL. If no SL is exceeded, no develop separate EETs for Alaska if emissions generated for every relevant appropriate, and address any comments criteria air pollutant, TSP, or Volatile 13 You can find an explanation of the process that on the methods used to formulate new Organic Compound (VOC) under the BOEM and its predecessor agency, the MMS, used EETs that are received from the National to develop these requirements in the preamble to plan. The spreadsheets enable the Academies of Science, Engineering, and the proposed rule (44 FR 27449 (May 10, 1979)) and operator to quantify the total emissions Medicine (NASEM). the final existing air quality rule (45 FR 15128 by type of air pollutant for all The second referenced air quality (March 7, 1980)). Although BOEM presently equipment included in the EP, DPP, or manages the air quality regulatory program (AQRP), modeling study is entitled, ‘‘Air Quality the U.S. Geological Survey largely wrote the DOCD, and then determine whether Modeling in the Gulf of Mexico’’ (GM– original air quality regulations, which the Secretary such emissions would or would not 14–01), conducted by the ERG, Ramboll approved. Since that time, MMS and then the exceed the relevant EETs. Group A/S, and Alpine Geophysics. The Bureau of Ocean Energy Management, Regulation In particular, BOEM is updating the and Enforcement administered this program, before study was completed in September BOEM took responsibility for the AQRP in October spreadsheets with emissions factors for 2019, has undergone an independent 2011. new types of equipment that are not peer review, and is posted on BOEM’s 14 In its evaluation of emissions through the use currently listed (particularly those website at https://espis.boem.gov/ of the air quality spreadsheets, BOEM has relevant to operations on the Alaska final%20reports/BOEM_2019-057.PDF. historically and continues to require operators to OCS). BOEM is also modifying the report emissions based on the maximum rated BOEM is currently reviewing the results capacity or maximum emissions estimate for their spreadsheet data requirements of the NASEM peer review and intends proposed type of equipment. Because any piece of consistent with the regulations as to evaluate the NASEM equipment may emit more or less of any given air amended. A detailed description of the recommendations in the near future. pollutant at any given time, depending on factors spreadsheet changes is included in the such as the type of fuel used, the length of time a piece of equipment is operated, the capacity section of this preamble under the 11 Paula Fields Simma, Bebhinn Do, Bart utilization of the equipment, the workloads applied, heading ‘‘Paperwork Reduction Act.’’ Brashers, Till Stoeckius & Ralph Morris, Arctic Air the level of maintenance, etc., BOEM’s spreadsheets As part of this rulemaking, the air Quality Impact Assessment Modeling Study: Final calculate the highest level of emissions for each quality spreadsheets are being updated Project Report (2018) (report prepared by Eastern type of air pollutant that any piece of equipment is Research Group, Inc., and Ramboll under BOEM capable of emitting over any given period of time. with newer, more up-to-date emissions contract M12PC00014), available at https:// The existing air quality spreadsheets calculate the www.boem.gov/BOEM-2018-020/. highest annual and peak hour emissions for each 10 Available at: https://www.boem.gov/Air- 12 Bureau of Ocean Energy Management, Studies type of equipment and those numbers are the ones Quality-Reporting/ or at https://www.boem.gov/ Development Plan 2020–2022 (2019), available at used to evaluate whether the emissions exemption BOEM-OCS-Operation-Forms/. https://www.boem.gov/FY-2020-2022-SDP/. threshold has or has not been exceeded.
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further analysis is required. In the event practical to cite in this preamble every • Extended to Indian tribes the same that an SL is exceeded, if that provision in the proposed rule that opportunity afforded to States to exceedance occurs in an attainment area BOEM is not adopting in this final rule. comment on BOEM’s consideration of a (i.e., an area where the NAAQS are not However, several of the more significant plan.20 When the CAA was amended in exceeded), a further analysis is required proposed revisions that BOEM has not 1990 to change the status of the Tribes to determine if the increase would included in this final rule are discussed with respect to air quality, Congress exceed the Maximum Allowable in the parts of the preamble responding made no mention of extending Concentration Increase (MACI) for that to general comments and the Section- analogous authority more broadly to air pollutant. If not, no further analysis by-Section analysis. Among those other agencies. OCSLA was not is required and the plan would be proposed changes that BOEM is not mentioned in the discussion of these approved. If the MACI is exceeded, adopting in the final rule are those that CAA amendments and no efforts were appropriate mitigations or controls would have: made on the part of Congress to extend would be required. • Required the consideration of this authority more broadly. 4. Control any emissions source emissions from transiting support • Set criteria for adopting future EET proposed for or on any facility that vessels, vehicles, or aircraft in the EET changes without additional modeling indicates could cause or analysis.15 rulemaking.21 • contribute to an exceedance of the Required BOEM’s evaluation of air • Established new single source NAAQS. quality impacts arising from all right-of- photochemical modeling requirements The proposed rule would have use and easement grants (RUEs) and 22 for ozone and PM2.5 that may be 16 significantly revised the existing right-of-way grants (ROWs). formed in the atmosphere from OCS • Required re-certification of existing regulations and would have more facilities’ emissions.23 facilities for compliance with existing closely aligned DOI’s regulations with • Replaced the table of MACI in 30 air quality standards on a periodic basis. those of the USEPA. The proposed rule CFR 550.303(g)(2)(i)(A) 24 with a cross- sought to require operators to include in • Changed the location at which BOEM evaluates air quality impacts reference to the codified USEPA their regulated emissions, the emissions Ambient Air Increments.25 from activities that are not expressly from the coastal point nearest the • Established new requirements for authorized under OCSLA. However, the offshore facility’s most significant how and when lessees and operators Secretary’s statutory requirements differ impact on a State’s air quality based on should measure and report emissions on substantially from those of the USEPA prevailing winds to such a point on the an ongoing basis. and so, based on BOEM’s reassessment seaward boundary of a State’s • Added various provisions intended of the proposed rule in light of the submerged lands.17 to make the AQRP similar to that of public comments, such alignment is not • Specified how emissions should be determined and evaluated by equipment USEPA’s. appropriate. For example, compared to • the time periods for plan review under type and various usage rates (i.e., Used the term ‘‘significant impact OCSLA, the CAA and USEPA emissions factors).18 level’’ (SIL) in lieu of the term • 26 regulations provide for a very different Added new criteria for aggregating ‘‘significance level’’ (SL). process and timeframes for evaluating emissions from multiple facilities to evaluate air quality impacts.19 20 For a more detailed summary, see Part V. Key air quality permits. Congress, in • providing the Secretary with this Added a detailed methodology for Statutes and Executive Orders, Subpart B. Executive implementing emission reduction Orders, section 5. Consultation with Tribes and distinct statutory authority, specifically Alaska Native Claims Settlement Act Corporations noted in the Conference Report that it credits in lieu of emission reductions (E.O. 13175 and Other Authorities). did not intend the ‘‘. . . application of from controls applied to facilities, 21 For more detailed summaries, see Part II. section 5(a)(8) regulations [to] interfere expanding on treatment of the matter in Background and Legal Authority, Subpart C. the existing regulations. BOEM’s Air Quality Modeling Studies and Subpart with the time periods provided in the D. Key Provisions of the Final Rule (Replacing the conference report for review and Term TSP). Also see Part IV. Section-by-Section 15 BOEM is not reducing the reporting Analysis of Final Rule, Subpart B. Plans and approval of exploration plans, and requirements, themselves, as the emissions of all development and production plans.’’ S. Information (§ 550.218—What Air Emissions support vessels will still be reported in accordance Information Must Accompany the EP?). Rept. 95–1091, p. 86. Based largely on in with the requirements of subpart B. In addition, 22 PM , or fine PM, is an airborne contaminant the extensive public comments received support vessels that are temporarily connected 2.5 either to the seabed or to a facility (such as well composed of particles having a diameter less than to the proposed rule, BOEM has reworking vessels) will continue to be treated as or equal to 2.5 micrometers. determined that such an extensive facility emissions, in accordance with existing 23 BOEM is using the USEPA’s latest modeling alignment could: (1) Unduly burden the requirements for facilities, and will continue to be guidance in Appendix W in a prudent manner industry; (2) potentially complicate and considered as part of the EET analysis. For a more consistent with BOEM’s authorities and is working detailed summary, see Part IV. Section-by-Section with the USEPA through the Interagency duplicate other Federal agency Analysis of Final Rule, Subpart B. Plans and Workgroup on Air Quality Modeling (IWAQM). For requirements; (3) possibly raise legal Information (§ 550.218—What Air Emissions more detailed summaries of the modeling questions regarding DOI’s authority to Information Must Accompany the EP?). processes, see Part II. Background and Legal adopt some of the proposed changes; 16 For a more detailed summary, see Part IV. Authority, Subpart D. Key Provisions of the Final Section-by-Section Analysis of Final Rule, Subpart Rule (Dispersion Modeling), and Part IV. Section- and (4) potentially prevent BOEM from C. Pollution Prevention and Control. by-Section Analysis of Final Rule, Subpart B. Plans complying with the statutorily 17 For a more detailed summary, see Part IV. and Information (§ 550.218—What Air Emissions mandated timeframes for completing Section-by-Section Analysis of Final Rule, Subpart Information Must Accompany the EP?). exploration and development plan C. Pollution Prevention and Control (Paragraph 24 To improve readability and avoid any reviews. For these reasons, BOEM has (e)(1)—Significance Levels). confusion, all further regulatory section references 18 For a more detailed summary, see Part II. in the main body of this notice are to 30 CFR part determined that the extensive revisions Background and Legal Authority, Subpart D. Key 550 unless otherwise specified. Footnotes will in the proposed rule are unnecessary. Provisions of the Final Rule (Air Quality contain the complete citation. This final rule incorporates a limited Spreadsheets). 25 For a more detailed summary, see Part IV. number of the changes in the proposed 19 For a more detailed summary, see Part IV. Section-by-Section Analysis of the Final Rule, Subpart C. Pollution Prevention and Control. rule and retains the fundamental Section-by-Section Analysis, Subpart C. Pollution Prevention and Control (Paragraph (j)—Review of 26 For more details, see Part IV. Section-by- structure of the existing regulations. Facilities with Emissions Below the Exemption Section Analysis of the Final Rule, Subpart C. Because of this, it would not be Amount). Pollution Prevention and Control.
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• Adopted a cross-reference to the comments: Arena Offshore; Anadarko proposed regulatory provisions that regulations of the USEPA; instead, a Petroleum; ASRC Exploration; Barry BOEM is not adopting from the table of updated relevant and applicable Graham Oil Service LLC; British proposed rule; however, some such SLs applied by BOEM is included in Petroleum; BR Petrobras; Chevron comments have been addressed when this final rule, as described above. Corporation; Diamond Offshore; Edison necessary to clarify BOEM’s action on • In addition, the proposed rule Chouest Offshore; Fieldwood Energy; specific rule sections. raised the issue of whether the SLs used Gulfmark Americas Inc.; Hornbeck by states should be incorporated into Offshore Services; Murphy Oil; LLOG B. Why does BOEM need to update the the table of SLs.27 Upon further review Exploration; Odyssea Marine; Otto air quality regulations? of the comments received, BOEM has Candies LLC; Rowan Companies; Seacor Comment: Some comments stated that determined to continue to use the Marine LLC; Sea Support Ventures LLC; in various environmental analyses values reflected in USEPA regulations 28 Shell Oil; Tidewater Marine; BOEM concluded that the OCS facilities in implementing the NAAQS. The Transocean; Walter Oil; and W&T it regulates do not significantly impact existing regulation at Offshore. State air quality. Those commenters § 550.303(g)(2)(i)(B) provides that no The following non-governmental questioned why BOEM proposed concentration of an air pollutant shall organizations (NGOs) submitted extensive revisions to its air quality exceed the concentration permitted comments: Alaska Inter-Tribal Council; regulations despite the fact that the under the national secondary ambient Alaska Wilderness League; Center for existing AQRP seems to be doing an air quality standard or the concentration American Progress; Center for Biological adequate job of protecting State air permitted under the national primary Diversity; Clean Air Task Force; quality. Some commenters also asserted air quality standard, whichever Earthjustice; Friends of the Earth; that BOEM’s 2012–2017 GOM lease sale concentration is lowest for the air Greenpeace USA; and the Gulf environmental impact statement (EIS) 29 pollutant for the period of exposure. Restoration Network. as well as various other BOEM This section from the existing Various Federal, State, local, quasi- documents specifically stated that the regulations will continue to be applied governmental, and tribal organizations existing regulations have prevented to ensure that no plan for an OCS also provided comments, including the adverse onshore air quality impacts. facility will be approved if it would following: Arctic Slope Regional Those commenters argued, for that cause an exceedance of the NAAQS in Corporation; Arctic Inupiat Offshore; reason, that no changes are necessary for any State. North Slope Borough; the State of the air quality regulations. Alaska; the State of Louisiana; the State III. Summary of Public Comments Response: This final rule maintains of Texas; USEPA; the National Park the BOEM air quality existing A. Overview of Comments Service; the U.S. Forest Service; the Fish regulations with only a few changes and BOEM received 81 written comments, and Wildlife Service; and the U.S. Coast retains the regulatory framework that consisting of several thousand pages of Guard. In addition, BOEM held has been in place since March 1980. text, to the proposed rule. Only three meetings with a number of tribal groups, This final rule is intended primarily to comments were submitted by as discussed more fully in Part V. Key update obsolete or irrelevant provisions individuals. The remaining comments Statutes, Subpart B. Executive Orders, in the regulations that no longer reflect were submitted on behalf of section 5. Consultation with Tribes and NAAQS standards and benchmarks. For organizations. Many comments were Alaska Native Claims Settlement Act example, USEPA’s current list of criteria submitted on behalf of multiple parties; Corporations (E.O. 13175 and Related air pollutants no longer includes TSP, Authorities). therefore, the number of organizations but does include PM10 and PM2.5. This In general, industry and industry that submitted comments is final rule adds SLs for PM10 and PM2.5 trade groups took the position that the significantly larger than the number of and updates criteria air pollutants and emissions generated from OCS sources comments BOEM received. SLs that the USEPA has revised since The following industry and trade do not represent a significant source of 1980. groups submitted comments: Alaska Oil air pollution to the States and that the C. Why issue a rule before the regional and Gas Association (AOGA); American existing regulatory approach is Petroleum Institute (API); Offshore adequate. They also raised the concern air quality studies are complete? Operators Committee (OOC); National that some of the proposed changes Comment: Some comments Ocean Industries Association (NOIA); would force them to incur high costs questioned proceeding with a final air Independent Petroleum Association of that would negatively impact quality rule while a study of air quality America (IPAA); International exploration and development. in the GOM region (GOMR) is ongoing. Association of Drilling Contractors Environmental NGOs generally took the Response: Partly based on these (IADC); Offshore Marine Services opposite view, arguing that the comments, the final rule does not adopt Association (OMSA); Jackson Offshore regulations are outdated and inadequate the provisions to which the commenters Operators; International Marine to ensure that OCS facilities do not were objecting. Although the GOM Contractors Association (IMCA); Truck adversely impact the air quality of the region study is complete, it is being peer and Engine Manufacturers Association States. The following includes more reviewed and BOEM plans to consider (TEMA); and Louisiana Mid-Continent detailed description of certain and respond to that peer review once Oil and Gas Association. comments received on the proposed completed. Additionally, the following rulemaking. BOEM addresses comments This final rule adopts the values that companies submitted individual relevant to specific regulatory the USEPA currently lists in 40 CFR provisions in the Section-by-Section 27 While BOEM discussed this proposal in the Analysis of the Final Rule in Part IV. of 29 Gulf of Mexico OCS Region, Bureau of Ocean preamble to the proposed rule and solicited the preamble, to the extent that those Energy Mgmt., Gulf of Mexico OCS Oil and Gas comment on it, BOEM did not include this proposal comments are relevant to the changes Lease Sales: 2012–2017, Western Planning Area in the proposed regulatory text. BOEM is making in this final rule. In Lease Sales 229, 233, 238, 246, and 248, Central 28 For a more detailed summary, see Part IV. Planning Area Lease Sales 227, 231, 235, 241, and Section-by-Section Analysis of the Final Rule, most cases BOEM is not specifically 247, Final Environmental Impact Statement (2012) Subpart C. Pollution Prevention and Control. addressing comments related to the (OCS EIS/EA BOEM 2012–019).
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51.165(b)(2) as SLs to be used by BOEM. jurisdiction may have little recourse to paragraph (e), which lists the USEPA’s The final rule also replaces outdated provide meaningful input aside from SLs for criteria pollutants from 1980, for SLs for the former criteria air pollutant those provided in the formal rulemaking that air pollutant, shall be deemed to TSP in §§ 550.303(e) and 550.304(c) process unless a complete exemption is significantly affect the air quality of the with PM10 and PM2.5 SLs. The GOMR granted. Given the separate and distinct onshore area for that air pollutant. study is not relevant to these revisions. legal authorities of the USEPA and Additionally, the existing § 550.303(f)(2) BOEM intends to use the information BOEM, BOEM believes that updating defines ‘‘significantly affect’’ with from its GOMR and Alaska studies to the NAAQS through the rulemaking respect to VOC emissions as the inform future policy determinations and process best affords ‘‘interested persons projected emissions of VOC from any National Environmental Policy Act an opportunity to participate’’ through facility which is not exempt under (NEPA) reviews. The studies also will notice and comment while also paragraph (d), which lists the exemption provide information on the cumulative adhering to the principles outlined in threshold equations, for that air effects of activities that BOEM section 1 of E.O. 13771 ‘‘Regulatory pollutant [i.e., referring to an EET for authorizes. BOEM is evaluating the Planning and Review,’’ which include: VOC] shall be deemed to significantly results of a peer-review process of the designing regulations ‘‘in the most cost- affect the air quality of the onshore area GOM study which BOEM conducted in effective manner to achieve the for VOC. This final rule continues using accordance with the OMB’s ‘‘Final regulatory objective;’’ tailoring SLs as the indicator of whether Information Quality Bulletin for Peer regulations ‘‘to impose the least burden emissions significantly affect the air Review,’’ under which agencies must on society . . .;’’ and drafting quality of any State and updates the SL undertake a peer review of influential regulations to be ‘‘simple and easy to values to conform with the NAAQS as scientific information by specialists in understand, with the goal of minimizing updated by the USEPA. the field who were not involved in the potential for uncertainty and In the regulation as amended by this producing the draft, before they litigation arising from such final rule, there are two exceptions to disseminate the information to the uncertainty.’’ the use of the SLs to determine whether public. This Bulletin also imposes Comment: Some comments suggested emissions significantly affect the air minimum requirements for the peer that BOEM should utilize two sets of quality of any State. First, with respect review of highly influential scientific SLs, one for attainment areas and one to VOCs, BOEM has retained the assessments. BOEM has determined that for non-attainment areas. These existing policy whereby an exceedance the GOMR study is a highly influential commenters argued that the proposed of the EET for VOCs is the criteria for assessment and is complying with OMB SLs were too stringent for attainment determining whether emissions of VOCs peer review requirements as outlined in areas. Other comments suggested that significantly affect the air quality of any the OMB Bulletin for Peer Review. the regulations should include interim State. Second, BOEM recognizes that an SILs, recommended in USEPA air pollutant concentration could exceed D. Responses to Other Comments Made guidance. Some comments suggested the relevant NAAQS in rare About the Proposed Rule that DOI establish its own SL valuations circumstances when OCS emissions of Comment: Some comments suggested for each criteria air pollutant—perhaps criteria air pollutants from a facility that that BOEM simplify the explanation of with a ‘‘default’’ level at 5 percent of the has an impact below the SLs are the term NAAQS found in existing NAAQS—independent of the USEPA considered with the background § 550.303(g)(2)(i)(B) by referring to the SIL valuations.’’ concentrations of a relevant onshore list of NAAQS in 40 CFR part 50. Response: BOEM is updating the SL area. In either of these two situations, Response: BOEM finds it unnecessary values to those the USEPA has BOEM would treat the plan in the same to reference 40 CFR part 50 and believes established and applying these values to manner as it would handle a situation that the existing reference to NAAQS in both attainment and non-attainment where the SLs had been exceeded. the referenced paragraph is sufficient. areas. BOEM has not established Comment: Some comments However, this final rule provides separate SLs for attainment and non- questioned the proposed rule’s definitions for ‘‘NAAQS’’ and ‘‘criteria attainment areas in the final rule. The definitions of ‘‘attainment area’’ and air pollutant’’ (which refers to the USEPA values set forth at 40 CFR ‘‘non-attainment area’’ because none NAAQS) in §§ 550.105 and 550.302. The 51.165(b)(2) apply in both areas; States closely align with USEPA’s usages. In final rule makes corresponding changes also generally have one set of SLs for particular, some commenters noted that to add ‘‘criteria air pollutant’’ where both areas in their permitting programs. BOEM’s use of ‘‘non-attainment area’’ is ‘‘NAAQS’’ are discussed. The APA Comment: Various comments narrower than that of the USEPA’s specifically states that ‘‘a sanction may requested that BOEM interpret what it because BOEM does not consider not be imposed or a substantive rule or means by the phrase ‘‘significantly whether an area that is itself in order issued except within jurisdiction affect the air quality of any State.’’ 43 attainment with the NAAQS may delegated to the agency and as U.S.C. 1334(a)(8). Several commenters nevertheless be considered non- authorized by law.’’ 5 U.S.C. 558. suggested that BOEM define this phrase attainment, as USEPA may do, because Adopting by reference a separate and in terms of causing an exceedance of the it may cause a nearby area to fall into distinct regulatory agency’s regulations NAAQS; others, in terms of contributing non-attainment. could lead to a future scenario in which to an exceedance. One commenter Response: The existing regulations an agency may promulgate a asserted that an exceedance of a SL and use the terms ‘‘attainment area’’ and rulemaking, as defined in the APA as a the corresponding NAAQS should both ‘‘non-attainment area’’ differently than ‘‘statement of general or particular be required to qualify as significantly the USEPA. The USEPA’s regulations applicability and future effect designed affecting the air quality of a State. provide for multiple categories of areas to implement, interpret, or prescribe law Response: The existing § 550.303(f)(1) beyond these two categories (e.g., or policy,’’ that may have a significant defines that phrase as the projected attainment areas, maintenance areas, impact on states, localities, or a emissions of any air pollutant other than unclassifiable areas) whereas DOI’s regulated community over which that VOC from any facility which result in regulations treat all areas outside ‘‘non- agency has no statutory jurisdiction or an onshore ambient air concentration attainment’’ as attainment areas. The expertise. In such cases, the agency with above the SL determined under existing regulations deliberately use this
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simplified nomenclature to streamline not intended to identify when commenters urged that BOEM must the regulations, because the USEPA’s photochemical modeling should be regulate such sources directly. categories are not relevant to employed. Second, BOEM has not Response: BOEM is not adopting implementing the Secretary’s statutory determined that an appropriate single- these proposed provisions. As explained authority. BOEM also left the definition source photochemical model relevant to in more detail later, the proposed more limited because OCSLA’s statutory OCS operations exists; thus, there is no provisions were legally questionable mandate is more limited than USEPA’s BOEM-approved photochemical model. and raised numerous practical under the CAA; considering the impact Third, BOEM must wait until its air problems. of OCS emissions on an area whose non- quality studies are completed and fully Comment: Some commenters OCS emissions might impact a third evaluated before it can determine expressed support for BOEM regulating area is outside the scope of OCSLA’s whether OCS operations cause sufficient pollutants for which there is no statutory mandate. BOEM is not making emissions of precursors to PM2.5 and NAAQS, including greenhouse gasses. any substantive change to the definition ozone to significantly affect the air Response: BOEM requested comment of either attainment or non-attainment quality of any State. on this issue but did not propose any areas. In order to avoid confusion, the final particular regulatory provisions. Comment: Generally, industry rule clarifies that the cross-reference to BOEM’s ability to regulate air quality is commenters objected to the proposal to the USEPA’s appendix W applies only limited to the authority provided to the add photochemical modeling to dispersion modeling. Secretary in section 5(a)(8). The authority granted in section 5(a)(8) is requirements when the EETs for PM or Comment: Some commenters stated limited to ensure compliance with the ozone precursors are exceeded. These that the proposed rule would have NAAQS, and therefore that provision commenters argued that BOEM has not impaired BOEM’s ability to timely does not grant authority to regulate determined that OCS operations are process applications for plan approvals. emissions that have no relation to responsible for any State exceedance of Response: BOEM agrees that many of PM or ozone NAAQS. They asserted attaining a NAAQS. the proposed provisions would have that the contrary has always been true: Comment: BOEM received comments added substantial burdens to both OCS operations have never significantly opposed to the proposed provisions BOEM staff in reviewing plans and to affected any State with respect to PM or requiring that in certain circumstances operators’ ability to fully conform to the ozone. Next, these commenters pointed emissions from multiple facilities be proposed rule’s provisions. OCSLA out that BOEM has not approved a combined. Commenters expressed mandates particular timeframes for photochemical model for secondary concerns about the practical difficulties approval of EPs and DPPs (43 U.S.C. formation of PM or ozone. They state in complying with these provisions and 1334(c)(1) and 1351(h)(1)) and the that the USEPA had not established any pointed out that BOEM failed to provide regulations similarly provide a photochemical modeling guidelines. sufficient reasons why such provisions timeframe for review of DOCDs (30 CFR Finally, they pointed out that the were necessary. proposed rule did not contain criteria 550.267). The proposed rule would have Response: BOEM is not adopting the for determining when to model ozone made meeting these deadlines difficult. proposed provisions. BOEM agrees that formation and argued that including Congress specifically noted in the 1978 the proposed provisions were such criteria in the final rule would Conference Report that the regulations unnecessary, and BOEM believes that likely be arbitrary. under section 5(a)(8) should not these proposed provisions were unduly Response: BOEM does not intend to ‘‘interfere with the time periods burdensome. require photochemical modeling under provided . . . for review and approval’’ Comment: Some commenters raised this final rule. The regulations do not of plans. Moreover, BOEM is aware that both legal and practical problems with currently require photochemical the procedure and the associated the proposal to evaluate impacts at the modeling. The existing §§ 550.218 and timeframes for making and appealing State’s seaward boundary. The 550.249, however, require lessees and permitting decisions under the CAA are commenters assert that there is a lack of operators to follow the modeling very different from those under its reliable information about the guidelines in USEPA’s regulations at 40 authorities. Congress too was aware of background concentrations at the state CFR part 51, appendix W. This cross- these differences when they passed seaward boundary because of a lack of reference introduces ambiguity because legislation to transfer authority to offshore monitors. Moreover, they the USEPA updated appendix W after regulate air quality on the Arctic OCS in pointed out that different states have the proposed rule was published and 2011. Consolidated Appropriations Act, different seaward boundaries under the established guidelines for evaluating 2012, Public Law 112–74, section 432, Submerged Lands Act. These ozone and secondary PM formation, December 23, 2011; see also, The commenters noted that it is appropriate which may in some cases result in American Energy Initiative, Part 4: H.R. to consider NAAQS compliance and photochemical modeling for these ll, The Jobs and Energy Permitting associated onshore impacts at the pollutants. BOEM has determined that Act of 2011: Hearing Before the shoreline and inland where public incorporating photochemical modeling Subcommittee on Energy and Power of exposure and protection is the primary into this final rule is inappropriate for the Committee on Energy and focus. Other commenters expressed several reasons. First, the existing Commerce, 112th Cong. 37 (2011). In support for this aspect of the proposal. regulations do not contain EETs any case, BOEM is not finalizing the Response: As discussed in more detail addressing secondary criteria air proposed provisions that gave rise to below, BOEM is not adopting this aspect pollutant formation except for the VOC these comments. of the proposal. BOEM generally agrees EET and regulations do not provide a SL Comment: Some commenters voiced with the practical difficulties over for ozone. Without these, BOEM lacks a opposition to the proposed provision on which commenters expressed concerns. basis for determining when ozone ‘‘Mobile Support Craft.’’ Others The clearly expressed intent of Congress modeling should be required and what complained that the proposed in the 1978 Conference Report was that the results should be measured against. requirement was unclear as to whether the regulations under section 5(a)(8) In the case of PM, the SL for PM2.5 was sources on support vessels would be regulate the onshore impacts to State air based on dispersion modeling and was subject to control requirements. Other quality.
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Comment: Proposed § 550.310(c) benefits of the rule (in terms of would have redefined ‘‘air pollutant,’’ would have required lessees to re- emissions reductions) compared to the and would have used those terms submit previously approved plans at burdens (i.e., costs), necessity, practical consistent with their definitions least every 10 years to verify compliance utility, burden reduction, and accuracy throughout the regulations. The with the existing air quality regulations, of the proposed collections. The proposed definition of ‘‘air pollutant’’ including those provisions relating to comments raised a number of questions was very broad and included categories new information gathering and regarding the calculations and estimates of emissions (i.e., hazardous air reporting requirements. provided by BOEM with the proposed pollutants) that fell outside the Some commenters suggested that the rule. Secretary’s statutory authority to proposed requirement to re-submit Response: Commenters questioned regulate because NAAQS have not been plans every 10 years could be the estimated IC costs under the established for them. inconsistent with section 25(h)(3) of proposed rule. Partly in response to The final rule completely eliminates a OCSLA, which indicates that BOEM those comments, the final rule does not regulatory definition for ‘‘air should review existing plans ‘‘based appreciably impact the annual burden pollutant’’ 30 and adds a definition for upon changes in available information hours or non-hour costs currently ‘‘criteria air pollutant.’’ The final rule and other onshore or offshore authorized under OMB control numbers replaces the term ‘‘air pollutant’’ with conditions affecting or impacted by 1010–0114 (30 CFR part 550, subpart A, ‘‘criteria air pollutant’’ in §§ 550.105, development and production pursuant ‘‘General’’), 1010–0151 (30 CFR part 550.302, and 550.303(f)(1) and to such plan.’’ Current § 550.303(j) 550, subpart B, ‘‘Plans and (g)(2)(i)(B), and in the definitions of authorizes the Regional Supervisor to Information’’), and 1010–0057 (30 CFR ‘‘attainment area’’ and ‘‘nonattainment require submittal of additional part 550, subpart C, ‘‘Pollution area.’’ The final rule replaces the term information when he or she judges an Prevention and Control’’). Therefore, ‘‘air pollutant’’ with ‘‘criteria air individual facility alone or in BOEM is not seeking OMB approval for pollutant and VOC’’ in §§ 550.105 and combination with others may any new annual burden hours or non- 550.302 definitions of ‘‘best available significantly affect the air quality of an hour cost burdens. control technology (BACT).’’ The final onshore area. These same commenters Because the final rule does not change rule replaces the term ‘‘air pollutant’’ have asserted that this existing overall IC burdens, BOEM only will with ‘‘criteria air pollutant or VOC’’ in regulatory provision should be seek OMB approval for revising the air § 550.303(h). The final rule replaces the sufficient for BOEM to address any quality spreadsheets, BOEM–0138 and term ‘‘air pollutant’’ with ‘‘criteria air isolated situation where one or more BOEM–0139. pollutant, VOC, or TSP’’ in facilities may be causing harm to any §§ 550.249(a)(2) and 550.283(a)(4). The State(s). For these reasons, commenters IV. Section-by-Section Analysis of the final rule replaces the term ‘‘air assert that BOEM should not require the Final Rule pollutant’’ with ‘‘criteria air pollutant, routine resubmission and additional This part of the preamble provides a VOC, and TSP’’ in §§ 550.303(d) and approval of existing plans. section-by-section analysis of the 550.304(b). The final rule replaces the Response: BOEM has decided not to regulations promulgated in this final term ‘‘air pollutant other than VOC’’ adopt these proposed provisions. Based rule. with ‘‘criteria air pollutant’’ in on its review of the public comments Part 550—Oil and Gas and Sulphur §§ 550.303(g)(1) and (2) and received, BOEM has determined that 550.304(d)(1). Finally, the final rule requiring a periodic re-review of all Operations in the Outer Continental Shelf deletes the phrase ‘‘for that air plans would be inappropriate. BOEM pollutant’’ in § 550.303(f)(2) because the believes that reconsideration of previous Subpart A—General existing provision only relates to VOCs. approvals should not be undertaken § 550.105 Definitions These changes clarify the existing lightly and is not warranted based on regulations to address perceived the mere passage of time. Operators The existing regulations define ‘‘air inconsistency.31 depend on BOEM’s approval of their pollutant’’ as any combination of agents’ The definition set out in the plans, and BOEM should not upset for which the USEPA has established regulatory text below is essentially the these expectations without good cause. primary or secondary NAAQS. 30 CFR same as that in the proposed rule. For these reasons, the proposal to 550.302. Under the CAA, such However, the proposed rule also periodically re-review and re-approve combinations of agents are defined as included a reference to 40 CFR part 50, existing plans is not being adopted with ‘‘criteria air pollutants.’’ which BOEM has not adopted for the this final rule. However, the regulations use the term reasons previously described. This BOEM’s responses to other ‘‘air pollutant’’ inconsistently and, in aspect of the final rule (i.e., eliminating stakeholder commenters are available in some instances, contrary to its the ‘‘air pollutant’’ definition, but Part III. Summary of Public Comments, definition. For example, § 550.303(e) adding a similar one for ‘‘criteria air Subpart E. Comments on the Regulatory discusses ‘‘air pollutants other than pollutant’’) is not substantively different Impact and Information Collection VOCs,’’ suggesting that VOCs meet the from the existing regulations and will Analyses, and Part IV. Section-by- definition of an air pollutant; and have no effect on the administration of Section Analysis of the Final Rule of § 550.303(d) implies that VOCs meet the the AQRP. this preamble below. definition of ‘‘air pollutant’’ because the Consistent with a similar change referenced exemption formulas for made in other places throughout this E. Comments on the Regulatory Impact ‘‘emissions from the facility for each air and Information Collection Analyses pollutant’’ include a formula for VOCs. 30 Instead of a specialized regulatory definition, Comments: Ten comments addressed However, VOCs fall outside the stated BOEM will rely on the plain dictionary meaning of both BOEM’s initial regulatory impact definition of ‘‘air pollutant’’ because the term ‘‘air pollutant’’ in this part. analysis (IRIA) and information NAAQS have not been established for 31 The criteria pollutants are Sulfur Dioxide, Nitrogen Oxide, Carbon Monoxide, Lead, Ozone, collection (IC) analysis; an additional 12 them. and Particulate Matter, of which there are several comments focused solely on the IRIA. The proposed rule would have added forms, two of which, PM2.5, and PM10, have defined Overall, the commenters addressed the a definition for ‘‘criteria air pollutant,’’ NAAQS.
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final rule, BOEM is updating the Consistent with a similar change § 550.218(a) in the existing regulations, definition of the terms ‘‘attainment made in other places throughout this but the list of pollutants is replaced area’’ and ‘‘non-attainment area’’ by final rule, BOEM is updating the with reference to ‘‘criteria air replacing the term ‘‘air pollutant’’ with definition so that it also applies to pollutants,’’ as defined by the USEPA. ‘‘criteria air pollutant’’ in the definition DOCDs. Thus, the updated definition of The lessee or operator must submit the of each of these terms. ‘‘emission offsets’’ in § 550.105 reads as information required by this section BOEM is making this change for set out in the regulatory text below. with the EP and BOEM will use the clarification purposes only. The final Consistent with a similar change submitted information in evaluating the rule definition of ‘‘attainment area’’ made in other places throughout this EP. BOEM made appropriate changes to excludes part of the proposed definition final rule, BOEM is updating the implement this provision in both that would have referred to USEPA definition so that it also applies to § 550.218(a) and (e). regulations explicitly and instead DOCDs. Thus, the updated definition of Because of the change to the continues BOEM’s practice of referring ‘‘existing facility’’ in § 550.105 reads as regulatory text, which replaced the to attainment areas by stating that these set out in the regulatory text below. enumeration of specific criteria consist of all areas not designated as The effect of this change is to include pollutants with a reference to criteria non-attainment.32 the DOCD among the list of plans pollutants generally, additional criteria By the same token, the definition of referenced in the definition. The final pollutants were added to § 550.218(a). ‘‘non-attainment area’’ in § 550.105 rule does not make any of the other Of these, three criteria air pollutants would change. The meaning of the proposed changes to this definition. (lead, PM , and PM ) will have BOEM is moving the definition of 2.5 10 definition of the term ‘‘non-attainment reporting requirements without an EET ‘‘volatile organic compound’’ from area’’ remains the same as in both the corresponding to those air pollutants. § 550.302 to § 550.105, where existing and proposed regulation. As stated in the proposed rule, BOEM alphabetical order dictates. That term is Although the existing regulations refer lacks sufficient data to update the EETs used in subpart B, but is not defined in to air pollutant, and not criteria air at this time. pollutant, the definition of air pollutant the existing regulations until subpart C. Subpart B of the existing regulations in the existing regulations was limited Because the definitions in subpart C specifies what data and information to criteria pollutants. This use of the technically apply only to subpart C, must be included in a plan. Subpart C term air pollutant is misleading because BOEM is adding this term to the general it typically has a broader meaning. For definition section in subpart A. specifies how that data should be analyzed and what the operator must example, hazardous pollutants would Subpart B—Plans and Information not be covered. Secondly, the existing do, depending on the results of the regulations referred to air pollutants as § 550.218—What Air Emissions analysis. Although BOEM modified both including and excluding Information Must Accompany the EP? subpart B of the existing regulations several years ago to require operators to precursors, specifically VOCs. In this Paragraph (e) in the proposed rule report PM and PM emissions, that final rule, we define only the term provided that for every facility 10 2.5 change was not accompanied by a ‘‘criteria air pollutant’’ and, in each described in your plan, you must corresponding change to subpart C. As relevant provision, specifically mention identify the maximum projected a result, although BOEM requires any non-criteria pollutant we are emissions for each criteria and major operators to report PM and PM data, referencing (e.g., TSP and VOCs). precursor air pollutant by calculating 10 2.5 the EET formula for PM in §§ 550.303(d) BOEM left the definition more limited the annual rate (for each calendar year), and 550.304(b) requires an analysis of because OCSLA’s statutory mandate is the maximum 12-month rolling sum, data for TSP. Unfortunately, the existing more limited than that imposed under and the maximum peak hourly rate for regulations did not explain how to the CAA considering the impact of OCS your facility emissions under paragraph resolve the discrepancy between subpart emissions on an area whose non-OCS (c)(2) and your attributed emissions B’s data reporting requirements and emissions might impact a third area is under paragraph (d)(6). subpart C’s data utilization outside the scope of OCSLA’s statutory This would have required lessees and requirements. mandate. operators to provide emissions data on For the same reason, the definition of an annual, 12-month rolling sum, and Because BOEM has determined that it BACT was also revised in §§ 550.105 maximum and peak hourly basis for does not yet have a proper scientific and 550.203. In this instance the term criteria air pollutants, VOCs, and basis to consider revising the formulas ‘‘air pollutant’’ referred both to criteria ammonia. in §§ 550.303(d) and 550.304(b), BOEM air pollutants 33 and VOCs and the The final rule does not implement the has decided to instead update definition of BACT was changed proposed rule requirement for lessees §§ 550.218(a) and 550.249(a), applicable accordingly.34 and operators to provide and analyze to exploration and development plans 12-month rolling sum emissions. This respectively, to specify that operators 32 The USEPA has multiple designations for areas final rule also does not implement the should also report data for TSP. As that BOEM refers to as ‘‘attainment areas,’’ and noted previously, because the SL for BOEM regulations do not mirror the USEPA proposed rule requirement that regulations, in part because of this. Given OCSLA’s operators report emissions data for TSP has been replaced by new SLs for more limited air quality mandate, there is no reason ammonia. PM10 and PM2.5, if an operator uses the for BOEM to classify onshore areas into more As was the case with the proposed EET formula for TSP and determines categories. rule, § 550.218(a) requires lessees and that its emissions exceed the EET, it 33 The Solicitor’s Office prepared a memorandum would be required to model emissions from Associate Solicitor, Energy and Resources, to operators to include in their EPs a table Deputy Assistant Secretary, Land and Minerals showing both projected emissions of all of PM10 and PM2.5, not TSP, and to Management, Authority to Require Air Pollution criteria air pollutants for which there is compare the results with the Controls on Vessels in Transit to Outer Continental a NAAQS and projected emissions of significance levels for PM10 and PM2.5. Shelf Facilities (June 15, 1987). In the event that the significance levels 34 The definition of air pollutant in BOEM’s VOCs. The requirement is the same as existing regulations did not clearly make a for PM10 and PM2.5 are exceeded, distinction between criteria air pollutants and those VOCs) but contribute to the formation of criteria air additional modeling of TSP may be pollutants that are not criteria air pollutants (i.e., pollutants. This rule intends to correct that error. required to determine whether the
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emissions exceed the MACIs, as defined BOEM to review plans. Furthermore, requiring reporting of annual emissions in 30 CFR 550.303(g)(2)(i)(A). BOEM’s studies will provide relevant and peak hourly emissions, as defined In order to determine if the projected information as to whether or not OCS in § 550.218(a)(1), but does not adopt emissions associated with its plan sources may impact State air quality the proposed reporting requirements for exceed the relevant SLs, the operator with respect to ozone or PM. a 12-month rolling sum. The regional air would be required to use a BOEM- Accordingly, it would be unwarranted quality studies will evaluate the approved model, in accordance with the to require the complex photochemical cumulative effects of OCS emissions on existing requirements of § 550.218(e) modeling to evaluate ozone or PM the States and whether any additional and (f), in the case of an EP, or formation. As stated previously, this emissions tests or evaluations may be § 550.249(e) and (f), in the case of a final rule does not adopt any necessary. DOCD or DPP. Any dispersion modeling requirements for photochemical The proposed provision to add a would also have to be conducted using modeling. To resolve any potential maximum 12-month rolling sum a methodology consistent with USEPA confusion regarding the cross-reference provision was intended to address modeling requirements outlined in to appendix W in the existing situations where a proposed plan would appendix W of 40 CFR part 51, in regulations, BOEM is modifying the involve drilling beginning in one accordance with the existing relevant language in §§ 550.218(e) and calendar year and ending in a requirements of § 550.218(e), in the case 550.249(e) to clarify that the regulations subsequent calendar year, thereby of an EP, or § 550.249(e), in the case of as amended by this final rule do not, splitting the emissions across calendar a DPP. under any circumstances, require that years and potentially undercounting the This final rule amends §§ 550.218(e) an operator apply photochemical actual annual emissions. Commenters and 550.249(e) to make clear that the modeling to its analysis of its air noted that there are many ways to reference to appendix W is applicable pollutant emissions. The existing calculate rolling averages and that there only insofar as it is relevant to language provides that when BOEM are also multiple ways to utilize the dispersion models. On January 17, 2017, requires air quality modeling, you must results in attempting to model the subsequent to the publication of the air use the guidelines in appendix W of 40 effects of emissions at various quality proposed rule, the USEPA CFR part 51 with a model approved by destination points. These same published a final rule entitled, the Director. The revised language commenters noted that most air quality ‘‘Revisions to the Guideline on Air provides that when BOEM requires air models are not equipped to handle Quality Models: Enhancements to the quality dispersion modeling, you must multiple annual projects and this AERMOD Dispersion Modeling System use the guidelines in appendix W of 40 requirement would ‘‘add an extra and Incorporation of Approaches To CFR part 51 for dispersion modeling burden to post-processing the model Address Ozone and Fine Particulate with a model approved by the Director. results that is not included in most Matter’’ (82 FR 5182, EPA–HQ–OAR– The USEPA’s current list of criteria modeling systems. Such uncertainty 2015–0310; FRL–9956–23–OAR, RIN air pollutants includes ozone and the could lead to considerable modeling 2060–AS54). This final rule updated the USEPA has defined a NAAQS for ozone. costs of questionable value that have not list of approved air quality models and OCS operations do not result in the been anticipated by the agency.’’ the modeling guidelines associated with emission of ozone directly. To address Because BOEM has decided that it the remaining USEPA-approved air this, however, BOEM does evaluate would be best to first evaluate in quality models. Notably, the USEPA emissions of VOCs, which is an ozone connection with its studies where and rule newly allowed the use of single- precursor, under the existing under what circumstances emissions source chemical transport models, regulations. from multi-year operation of OCS which typically involve photochemical The proposed rule would have facilities may affect the States, BOEM modeling, to evaluate the impacts of eliminated § 550.218 entitled, ‘‘What air has determined that this requirement new and modified emissions sources emissions information must accompany should not be implemented until more with respect to the formation of ozone the EP?’’ from the existing regulations information about such effects has been and the secondary formation of PM2.5 because all BOEM air quality evaluated. when more general analyses for an area requirements in subpart B of part 550 of BOEM is deferring any consideration are not sufficient. But, this amendment the existing regulations were proposed about amending the regulations to add to appendix W did not require the use to be consolidated in a new § 550.205. new EETs corresponding to non-annual of such models either. Still because BOEM received a number of emissions averaging times for the appendix W is cross-referenced in comments to the effect that it would be criteria air pollutants pending the BOEM’s existing regulations, the update simpler to make changes to the relevant evaluation of results of its air quality made by the USEPA could have been sections, rather than consolidate them studies. For that reason, in this final interpreted to imply that BOEM would into a new section. Given the more rule, BOEM has made no changes to the also support the potential use of limited nature of this final rule time intervals or forms for which photochemical modeling for ozone and compared with the proposed rule, reporting is required in either secondary formation of PM2.5. This final BOEM has decided to leave the existing § 550.218(a)(1) or § 550.249(a)(1). rule makes clear that this is not the case. regulatory organization intact and Lessees or operators will continue to Based in part on the public comments instead make the limited amendments provide peak hourly and total annual received, BOEM understands that single directly to the relevant sections. emissions, but not 3-hour, 8-hour, or 24- source photochemical modeling is only The proposed rule would have hour, or rolling emissions data, nor any starting to be used, that its use and required that lessees and operators new data related to the form of the application is complex, and that the identify the emissions of facilities and NAAQS (e.g., the number of times that costs of doing such modeling can be support vessels separately and report a pollutant concentration level is high. Also, the timeframes for review of both in terms of an ‘‘annual rate (for exceeded). CAA permits that involve each calendar year), the maximum 12- The proposed rule stated in photochemical modeling under month rolling sum, and the maximum § 550.205(b) that lessees and operators appendix W are much longer than the peak hourly rate.’’ This final rule retains must in each plan, for each criteria and timeframes required by the OCSLA for the existing regulation’s language major precursor air pollutant, calculate
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the attributed projected annual for PM2.5 and BOEM does not have an OCSLA does not require BOEM to emissions for each mobile support craft EET for PM2.5, it is unclear how a consider vessel traffic to and from OCS (MSC). Instead, this final rule requires formula should be determined. facilities in order to determine modeling in § 550.218(a) (for EPs) that lessees and Although BOEM is modifying the air and control requirements, BOEM is not operators provide tables showing the quality spreadsheets to calculate adopting the proposed changes on this projected emissions of criteria air ammonia emissions on behalf of point. Existing §§ 550.224 and 550.257 pollutants, volatile organic compounds operators, BOEM has determined not to require operators to report emissions (VOC), and TSP generated by your add an EET for ammonia or to add any from their support vessels within 25 proposed exploration activities. As requirements (including requirements miles of their facilities in their EP or previously stated, the final rule does not for photochemical modeling) for DPP or DOCD, and this final rule does adopt the proposed reporting ammonia to this final rule, though not affect those sections. requirements for a 12-month rolling BOEM will continue to evaluate and sum. review its study results. § 550.249—What air emissions As noted previously, BOEM refers to This final rule is not adopting the information must accompany the DPP or air pollutants that contribute to the proposed changes regarding MSC as was DOCD? formation of a criteria air pollutant as proposed in a new section 30 CFR For the same reasons as discussed precursor air pollutants. In order to 550.205. The proposed section would under § 550.218 above, BOEM has made ensure that the NAAQS standards for have required lessees and operators to changes to § 550.249(a) and (e) that these pollutants are not exceeded, DOI add vessel emissions to those of mirror those changes made to § 550.218. must also regulate the emissions of both facilities and the proposed Subpart C In addition, BOEM has replaced the the criteria air pollutants and the would have required lessees and term ‘‘air pollutant’’ with ‘‘criteria air precursor air pollutants. Historically, operators to compare the total emissions pollutant, VOC, or TSP’’ in the one the major precursor air pollutant that against the EETs. place the term appears in paragraph DOI has regulated is Volatile Organic The final rule is not adopting these (a)(2). This latter change, which is Compounds (VOCs). In addition to proposed changes for two reasons. First, consistent with the proposed rule, does VOCs, the proposed rule identified it is questionable whether BOEM has not change the substantive requirements Hydrogen Sulfide (H2S) as a precursor legal authority to include vessel of this paragraph. for Sulfur Dioxide (SO2); Nitrogen emissions as proposed. The Secretary’s As noted in the discussion for Oxides (NOX), VOCs and Carbon statutory authority is distinct from that § 550.218(e), BOEM is modifying the Monoxide (CO), as precursors for Ozone of the USEPA under the CAA. The CAA requirement to perform air quality (O3); and NOX, VOCs, Fine Particulate explicitly authorizes the Administrator modeling using the guidelines of the Matter (PM2.5), Sulfur Oxides (SOX) and of the USEPA to regulate emissions from USEPA’s appendix W to clarify that Ammonia (NH3), as precursors for PM2.5. vessels servicing or associated with an operators must only comply with the The proposed rule suggested that DOI OCS source within 25 miles of the OCS modeling guidelines of appendix W to require the collection of additional data source in specific areas of the OCS. 42 the extent that they are required to on these precursors and that new U.S.C. 7627. In contrast, OCSLA only perform dispersion modeling. formulas be created to evaluate authorizes the Secretary to regulate air BOEM did not receive any comments precursor pollutants in their capacity as pollutants from ‘‘activities authorized’’ that would be relevant to the changes precursors. In particular, DOI suggested by OCSLA. OCSLA, section 5(a)(8). The made to this section of the final rule. that lessees and operators be required to Office of the Solicitor has previously start reporting ammonia emissions. opined that vessel traffic to and from § 550.283—When must I revise or VOCs and ammonia were classified as OCS facilities is not an activity supplement the approved EP, DPP, or ‘‘major precursor pollutants’’ under the ‘‘authorized’’ under OCSLA, rendering DOCD? proposed rule because these precursors requirements to count vessel emissions BOEM has replaced the term ‘‘air were included in the list of pollutants in regulating facilities potentially pollutant’’ with ‘‘criteria air pollutant, for which States would be required to beyond the scope of the Secretary’s VOC, or TSP’’ in § 550.283(a)(4), to gather emissions data to comply with statutory authority.35 For these reasons, make the wording consistent with the USEPA requirements. the proposed provision is not changes made to the other sections of The final rule does not adopt the appropriate in implementing section the rule. This change is consistent with concept of ‘‘major precursor pollutant’’ 5(a)(8) of OCSLA. BOEM’s interpretation of the existing that was included in the proposed rule. Second, in addition to legal concerns, regulatory text. Because this section As is the case in the existing commenters pointed out practical deals with when a revision to an EP, regulations, the only non-criteria air difficulties involved in requiring DPP, or DOCD is required, and VOCs pollutants included in the final rule are operators to prepare plans with the and TSP are specifically listed in VOCs and TSP. The proposed rule highly specific details about vessel existing §§ 550.218 and 550.249, the would also have included ammonia emissions sources that the proposed existing provision has been interpreted under the heading of ‘‘major precursor rule would have required. Commenters to include VOCs and TSP. pollutant.’’ BOEM has decided not to also pointed out that no state has BOEM did not receive any comments add ammonia at this time. There were identified emissions from vessels that would be relevant to the changes several reasons for this. First, as is the supporting OCS operations as a made to this section of the final rule. case with all the EETs, BOEM does not significant contributor to onshore air believe that it has an adequate scientific pollutant concentrations. For these Subpart C—Pollution Prevention and basis for establishing new formulas. reasons, and because section 5(a)(8) of Control Indeed, BOEM never had an EET for The proposed rule would have ammonia. Second, it is not clear that 35 The Solicitor’s Office prepared a memorandum replaced all references to exploration or ammonia is emitted from OCS facilities from Associate Solicitor, Energy and Resources, to development plans with a generic term Deputy Assistant Secretary, Land and Minerals in quantities sufficient to cause a Management, Authority to Require Air Pollution ‘‘plan’’ and the new term ‘‘plan’’ would significant effect to any State. Third, Controls on Vessels in Transit to Outer Continental have encompassed all EPs, DPPs, since ammonia is primarily a precursor Shelf Facilities (June 15, 1987). DOCDs, RUEs, pipeline ROWs, and
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lease term pipelines. Section 550.205 of § 550.302—Definitions Concerning Air has not been used consistently and in the proposed rule, which outlined all of Quality line with the requirements specified in the reporting requirements, was BOEM made the following changes in the regulations that refer to the term ‘‘air accordingly entitled, ‘‘What air this final rule in a manner consistent pollutant.’’ To correct this problem, BOEM has emissions information must be with the proposed rule: submitted with my Plan (EPs, DPPs, Air pollutant. The term ‘‘air replaced the definition of the term ‘‘air pollutant’’ with a definition of the term DOCDs, or application for a RUE, pollutant’’ was defined in § 550.302 in ‘‘criteria air pollutant’’ and made related pipeline ROW, or lease term pipeline)?’’ the existing regulations to mean any edits to the existing regulations to The intention was that all EPs, DPPs, combination of agents for which the address these issues, as previously DOCDs, RUEs, pipeline ROWs, and Environmental Protection Agency (EPA) noted in discussion of subpart A, above. lease term pipeline applications would has established, pursuant to section 109 be subject to the same air quality The proposed rule would have of the Clean Air Act, a national primary revised the definition of ‘‘air pollutant’’ requirements. This approach was or secondary ambient air quality consistent with the proposed rule’s goal to include hazardous air pollutants and standard. greenhouse gases, as well as criteria air to consolidate all air quality This definition is essentially the requirements in one place, rather than pollutants and precursor air pollutants. definition for ‘‘criteria air pollutants,’’ BOEM received comments both in favor follow the structure of the existing not for air pollutants generally, since it regulations that lists separate and opposed to expanding the scope of excludes many substances defined by requirements, in separate sections, for the regulations beyond criteria air the USEPA as air pollutants (e.g., each type of plan. pollutants and precursor air pollutants. Because BOEM no longer intends to precursor air pollutants or hazardous air Generally, industry argued that the consolidate all the air quality data pollutants), including some air Secretary’s authority under OCSLA did requirements into one section, the pollutants referenced in DOI’s existing not permit BOEM to regulate for changes that BOEM is implementing regulations (i.e., hydrogen sulfide and anything else. Environmental groups with this final rule are made separately VOC). argued the opposite. After reviewing the by section. The text of subpart C of part The existing definitions of the terms comments, BOEM determined that 550 in the existing regulations refers ‘‘attainment area,’’ ‘‘non-attainment limiting the scope of this rulemaking to only to EPs and DPPs. Because BOEM area,’’ and BACT all contain the term that of the existing regulations would be also uses DOCDs to review and approve ‘‘air pollutant’’ and this final rule appropriate. Although this final rule has production plans, BOEM is replacing all replaces the term ‘‘air pollutant,’’ in replaced some references to specific references to DPP with references to those definitions with either the newly pollutants with general references to DPPs or DOCDs, or both (depending on defined term ‘‘criteria air pollutant’’ or criteria air pollutants, it does not add or the context). BOEM is not including the ‘‘criteria air pollutant or VOC,’’ as subtract any air pollutants from the list proposed references to pipeline ROWs, appropriate. of criteria pollutants in the existing RUEs, and lease term pipelines in this To ensure that there is no confusion regulations. final rule. BOEM ensures that lessees regarding the meaning of the term Emission exemption threshold (EET). and operators address lease term ‘‘criteria air pollutant,’’ BOEM has According to OCSLA, the Secretary pipelines and RUEs within the DPP or included a definition of the term shall prescribe regulations to ensure DOCD review process. See existing ‘‘criteria air pollutant’’ in § 550.302 compliance with the NAAQS to the § 550.241 (regarding lease term providing that it’s any air pollutant for extent that certain authorized activities pipelines) and Notice to Lessees and which the Environmental Protection ‘‘significantly affect the air quality of Operators (NTL) No. 2015–N06 Agency (EPA) has established a national any State.’’ There are two ways that (regarding RUEs). Since our existing primary or secondary ambient air operators can demonstrate this. They program relies on plan reviews and quality standard pursuant to section 109 can perform a detailed analysis of their since lease term pipelines and any of the Clean Air Act. proposed pollutant emissions through facilities on a RUE must be described in Despite the fact that the existing the use of complex air quality models. a plan, this issue can readily be definition of air pollutant in § 550.303 Alternately, they can demonstrate that addressed under BOEM’s and the refers only to criteria air pollutants, the their emissions are below a BOEM- Bureau of Safety and Environmental usage of the term ‘‘air pollutants’’ in the determined exemption level. This has Enforcement’s (BSEE) procedures for existing regulations may have been read long been the practice employed under implementing the existing regulations. to mean that the regulations were OCSLA’s distinct authorities. The proposed references to lease-term applicable more broadly. For instance, The adoption and use of the term pipelines and RUEs are unneeded. § 550.303(e) refers to ‘‘air pollutants ‘‘Emissions Exemption Threshold’’ does According to the requirements other than VOC,’’ even though VOC is not make any substantive change to the outlined in NTL No. 2007–G09, BOEM not within the scope of the definition of air quality regulations. BOEM has collects information on emissions from ‘‘air pollutant.’’ Section 550.303(d) always had a mechanism to determine the installation or operation of any new requires the evaluation of various air whether an offshore operator proposing or modified accessory platform on a pollutants, including VOC. Section to explore or develop oil and gas on the ROW whenever an application is 550.283, discussed above, refers to OCS should be exempt from air quality submitted to BSEE. Based on BOEM’s conditions under which a lessee or modeling. BOEM has historically used a review of the information that BSEE has operator would be required to submit a number of terms (e.g., exemption collected, BOEM is not aware of any revised plan as being any time ‘‘you amount, exempt emissions, ‘‘E,’’ exempt such facilities on ROWs that would propose to increase the emissions of an plans, and exemption levels) to define exceed the EETs, and so BOEM believes air pollutant to an amount that exceeds these values. This change is being made that such facilities are not causing the amount specified in your approved to establish a single term and to clarify significant effects to any State’s air EP, DPP, or DOCD;’’ a reference which, the purpose and intent of the existing quality. Therefore, BOEM is not given the apparent purpose of the exemptions calculations and does not adopting the proposed language on provision, should also include VOCs affect the formulas, or their usage, in ROWs with this final rule. and TSP. Thus, the term ‘‘air pollutant’’ any way.
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The term ‘‘threshold’’ reflects the fact decided to remove the qualifier regulation that have developed over 39 that emissions reported in a plan below ‘‘expressed as short tons per year (tpy)’’ years. To accomplish this, in the final that amount do not require the operator from the proposed definition of EET, but rule, BOEM is updating the table to model its air quality impacts. On the retain the reference to tons per year in utilizing the values of the SLs in other hand, emissions above the §§ 550.303(d) and 550.304(b) of the final USEPA’s regulation to address these ‘‘threshold’’ are subject to further air rule. disparities. The proposed rule quality modeling and evaluation and Other commenters suggested that recognized that the USEPA’s SLs would may be subject to mitigation BOEM modify the proposed definition not always be appropriate to apply to of EET so that the definition of EET requirements. For that reason, BOEM offshore operations and would have refers only to criteria air pollutants. believes that the term ‘‘threshold’’ more given BOEM the authority to grant a accurately reflects the nature and BOEM is not making this suggested departure to exempt such SL revisions purpose of the EETs. change since the existing regulations BOEM added a definition in this final include a formula for VOCs, and the from applying under BOEM regulations. rule to clarify the purpose and use of the final rule does not change this or change The final rule will avoid the problem by acronym EET. The proposed rule in the types of pollutants that the AQRP allowing DOI to promulgate updates to § 550.302 defined this term as the regulates. the SLs table in the future, with notice maximum allowable rate of projected National Ambient Air Quality and comment as necessary, and to make emissions, calculated for each air Standards (NAAQS). BOEM has added an independent determination as to pollutant, expressed as short tons per a definition of National Ambient Air which USEPA revisions should be year (tpy), above which facilities would Quality Standards. adopted offshore and which should not be subject to the requirement to perform The proposed rule would have in accordance with OCSLA’s modeling. defined the term with explicit cross- authorities. The final rule in § 550.302 defines the references to particular USEPA’s Emissions Offset/Existing Facility. In term as the rate of projected emissions, regulations. Instead, BOEM has addition to the changes noted above, the calculated for a criteria air pollutant or provided a definition clarifying what VOC or TSP, above which a facility the NAAQS are, and under what definitions of the terms ‘‘emissions would be subject to the requirements of statutory authority they are offset’’ and ‘‘existing facility’’ in § 550.303(e) through (i) or § 550.304(b) promulgated. BOEM determined that § 550.302 have been modified in this through (e).36 although the NAAQS appear at a section to add a reference to DOCD, In drafting the final rule, BOEM came number of locations in 40 CFR part 50, where the existing regulation definitions to realize that the qualifiers ‘‘maximum it is not difficult for a lessee or operator refer inconsistently to either an allowable’’ and ‘‘above which facilities to find the relevant provisions, and, if ‘‘Exploration Plan or a Development and would be subject to the requirement to they cannot, they can contact BOEM for Production Plan’’ or an ‘‘Exploration perform modeling’’ might cause assistance in locating them. Referencing Plan or Development and Production confusion vis-a`-vis the provisions in specific provisions could introduce Plan.’’ This merely clarifies BOEM’s §§ 550.303(j) and 550.304(f), which confusion should USEPA reorganize or existing interpretation that the relate to the review of facilities with renumber their regulations. regulations include DOCDs among the emissions below the EET. Accordingly, Significant Impact Level (SIL). The list of plans referenced in these the final rule clarifies that the EETs are proposed rule would have defined the definitions. The proposed rule included specifically applicable in the context of term ‘‘Significant Impact Level’’ in language to consistently apply all §§ 550.303(e)–(i) and 550.304(b)–(e) of § 505.302 as an ambient air benchmark requirements to EPs, DPPs, and DOCDs. the regulations. In contrast, the use of or limit that applies to the ambient air the EET is not necessary for BOEM to impact of the emissions of a criteria air BOEM did not receive any comments make a determination under pollutant, as set out in the table in 40 that would be relevant to the changes §§ 550.303(j) and 550.304(f) as to CFR 51.165(b)(2), and would have used made to this section of the final rule. whether its approval may or may not SIL in lieu of the existing term BOEM did receive comments pertaining cause a significant effect to any State. ‘‘Significance Level.’’ to the proposed provisions that would Commenters raised a question as to This final rule does not define the have added requirements for ‘‘emissions why BOEM would establish EETs only term ‘‘Significance Level’’ with credits’’ (which, in the proposed rule, in terms of annual emissions, given that reference to the USEPA’s regulations was the term that would have replaced many of the NAAQS and SLs, which because BOEM is instead providing a ‘‘emissions offsets’’). However, BOEM is would have been cross-referenced by table of the relevant SLs that are to be not adopting those proposed substantive the proposed rule, relate only to short- applied as part of the air quality changes and is instead merely making term effects (e.g., 3-hour emissions). regulatory program. BOEM is finalizing the clarification regarding DOCDs BOEM will review EETs for such short- the rule using the existing term described above. BOEM has never term effects as are warranted once the ‘‘Significance Level,’’ as it is used in the encountered an instance in which regional modeling air quality studies are current regulation, to set the level above operators have used the existing completed and evaluated. Instead of which impacts from emissions of regulatory provision for emissions specifying the units (i.e., tons per year) criteria air pollutants on a State’s air offsets. Further, most States’ comments for the EET in the definition of EET, as quality would be significant under highlighted the differences in their was proposed, BOEM has decided to section 5(a)(8) of OCSLA. specify the units in § 550.303(d) in the The proposed rule would have onshore programs, and BOEM is not final rule, where the EETs are actually replaced the current table setting forth aware of any instance of OCS activities set forth. For that reason, BOEM has the significance levels (SLs) in 30 CFR causing significant onshore air quality 550.303 and 550.304 with a cross- impacts. 36 BOEM is not updating the EET formulas at this reference to USEPA regulations at 40 time. Because the current EET formulas do not CFR 51.165(b)(2). The purpose was to directly account for all the criteria pollutants, the formulas would apply to the same pollutants as are address the disparities between BOEM’s found in the existing BOEM regulations. table and those presented in that USEPA
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§ 550.303—Facilities Described in a original emissions amounts could double those of PM10 and roughly four New or Revised Exploration Plan, continue to be used (assuming that no times the volume of PM2.5. Thus, if Development and Production Plan, or changes to the facility were being BOEM were to simply substitute PM10 Development Operations Coordination proposed that would give cause to alter for TSP in the EET formula, this would Document the original estimates). BOEM did not have the effect of potentially allowing a intend that the proposed rule would Paragraphs (a)–(c)—New Plans, much higher level of emissions to occur have required lessees and operators to under an existing exemption. Applicability of § 550.303 to Existing recalculate their emissions with every TSP includes a broad range of particle Facilities, Revised Facilities revision of their plan, regardless of sizes, and under windy conditions can The only change made to these whether the proposed changes would be predominantly composed of large paragraphs is to add the phrase affect the amount of air pollution wind-blown soil particles of relatively ‘‘Development Operations Coordination emitted. The regulation at low toxicity. USEPA has determined Document’’ after ‘‘Development and § 550.283(a)(4) specifies that a plan that PM10 and PM2.5 are better indicators Production Plan’’ anywhere that the needs to be revised when the lessee or of particulate health impacts than TSP, latter phrase is mentioned. BOEM made operator proposes to ‘‘[i]ncrease the and now uses only PM10 and PM2.5 in this change to reflect its long-term emissions of an air pollutant to an formulating SLs and NAAQS for practice with respect to these closely amount that exceeds the amount particulates.39 related plan documents, for the reasons specified in your approved EP, DPP, or This final rule does not add EET previously described in the discussion DOCD.’’ Except for the change in the use formulas specifically for PM10 or PM2.5 of definitions. of the term ‘‘air pollutant’’ as previously emissions for several reasons. BOEM is BOEM did not receive any comments discussed, § 550.283(a)(4) is unchanged just completing and evaluating its that would be relevant to the changes with this final rule; thus, BOEM has modeling studies in the GOMR and in made to these paragraphs of the final retained the original language and intent the Alaska OCS Region (AKOCSR) and rule. of the existing regulations (i.e., that an needs to evaluate the results and update of the air emissions, and the potentially follow-up studies to Paragraph (d)—Exemption formulas associated analysis, must be provided consider whether PM10 and PM2.5 EET We have made a minor clarification to only if a proposed plan revision would formulas should be considered. In the text of § 550.303(d). In the existing increase the amount of air emissions addition, PM10 and PM2.5 emissions are regulations, the first part of paragraph released).38 both components of TSP. For this (d) reads: We made five additional changes to reason, if the EET for TSP is exceeded, it is likely that the emissions of PM To determine whether a facility described § 505.303(d), all of which were included 10 in a new, modified, or revised Exploration in the proposed rule and none of which and PM2.5 may also be exceeded, Plan or Development and Production Plan is commenters opposed. thereby significantly affecting an exempt from further air quality review, the First, the term ‘‘emission exemption adjacent State. lessee shall use the highest annual-total threshold’’ replaces the term ‘‘emissions This final rule will create a situation amount of emissions from the facility for exemption amount’’ used in the existing where there will be SLs for PM10 and each air pollutant calculated in § 550.249(a) regulations. PM2.5 but not corresponding EETs. or § 550.218(a) of this part . . . Second, although the proposed rule However, BOEM has consistently The location of the word ‘‘calculated’’ suggested replacing TSP with PM10 in interpreted the existing regulations to in this sentence may cause confusion. the existing EET formula for require facilities to model for all SLs The sections to which the sentence particulates, BOEM has determined that and NAAQS that might be exceeded applies refer to the amount of emissions doing so would have the effect of when emissions of any air pollutant generated by a facility for each type of lowering the air quality standards for exceeds an EET. For PM, exceedance of air pollutant, not to the air pollutants particulates. Although TSP is a largely- the EET for TSP will require the lessee themselves. To clarify the meaning, outdated measure of the mass or operator to model for both PM10 and BOEM has reworded the sentence as concentration of PM in the air that PM2.5. In the event that modeling results follows: counts particles up to 100 microns in indicate that the SL for either PM2.5 or diameter, for any given facility the PM10 would be exceeded, a lessee or To determine whether a facility described emissions of TSP would typically be operator would be expected to in an initial, modified, supplemental, or undertake appropriate mitigation revised Exploration Plan, Development and Production Plan, or Development Operations lessees and operators to resubmit and reevaluate air measures based on the regulations and Coordination Document is exempt from emissions every 10 years, a provision that BOEM is BOEM’s policies. Because BOEM has further air quality review, the lessee must use not finalizing as part of this rule. Although the not replaced the MACI table in comments were made in another context, BOEM the highest annual-total amount of emissions has determined that it would be beneficial to clarify § 550.303(g)(2)(i)(A), lessees and from the facility calculated for each criteria the meaning of the text to address any confusion operators are required, when exceeding air pollutant, VOC, and TSP listed in arising from the ambiguity of the existing the SLs for PM10, to apply the TSP § 550.249(a) or § 550.218(a) . . . regulation. values in the MACI table to ensure 38 In addition to the changes discussed here, sufficient reduction in impacts in Separately, commenters questioned BOEM is also changing the word ‘‘shall’’ in the meaning of the word ‘‘calculated’’ in § 550.303(d) and (e)(1), and (h) and in § 550.304(b) attainment areas. the proposed rule, asking whether and (c), to ‘‘must,’’ and BOEM is changing ‘‘shall’’ Third, the final rule in § 550.303(d) BOEM intended this term to mean that to ‘‘will’’ in §§ 550.303(f) and 550.304(d). These explicitly references the DOCD as a changes merely modernize usage and clarify the covered plan, conforming to BOEM’s the emissions amounts associated with meaning of these paragraphs, and they do not revised or supplemental plans would change their meaning. BOEM acknowledges that long-standing practice in reviewing both need to be recalculated every time a this rulemaking will leave the word ‘‘shall’’ in some lessee or operator revised, modified, or provisions of Part 550, which are unaffected by this 39 See USEPA, Integrated Review Plan for the 37 rulemaking, and, while BOEM intends to make National Ambient Air Quality Standards for supplemented a plan or whether the similar edits in the future, no implication of Particulate Matter, EPA 452/R–08–004, March 2008, differences in meaning should be drawn the use of available at https://www3.epa.gov/ttn/naaqs/ 37 The comments were made in reference to ‘‘will’’ or ‘‘must’’ in these amended paragraph, standards/pm/data/2008_03_final_integrated_ proposed rule provision that would have required while ‘shall’ remains in un-amended sections. review_plan.pdf.
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DPPs and DOCDs for compliance with respect to the table of SLs, BOEM has not exempt under paragraph (d) for air these regulations. continued its longstanding practice of pollutants other than VOC, the lessee Fourth, as proposed, the final rule in utilizing NO2 as an indicator pollutant shall use an approved air quality model § 550.303(d) substitutes the term for NOX, consistent with the practice of to determine whether the projected ‘‘initial’’ for the term ‘‘new’’ in reference the USEPA. The use of NO2 as an emissions of those air pollutants from to plans. Any time a lessee or operator indicator of NOX is conservative, and is the facility result in an onshore ambient proposes a new facility, BOEM must consistent with BOEM’s approach of air concentration above the significance review it for compliance with the requiring operators to report emissions levels set out in paragraph (e). AQRP. The term ‘‘initial’’ in reference to based on the maximum potential The proposed rule would have a plan reflects the reality that a lessee emissions from their equipment. addressed this modeling requirement as or operator may update a plan to add an BOEM did not receive any other stated above through a revised proposed additional facility. Under those comments that would be relevant to the § 550.303(f), which would have required circumstances, even though BOEM changes made to this paragraph of the that if your projected emissions or would not consider the plan to be a new final rule. complex total emissions of the precursor plan, it would still be the first (i.e., or criteria air pollutant exceed the Paragraph (e)(1)—Significance Levels initial) plan for the additional facility applicable emissions exemption and would therefore be subject to the The proposed rule would have threshold, then further review and/or requirement for an air quality review. In replaced the table of SLs from the controls are required, in accordance addition, lessees or operators may existing regulations at §§ 550.303(e) and with: submit supplemental plans, so BOEM 550.304(c) with a cross-reference to the (1) If the exceedance is for VOCs, you added the term ‘‘supplemental’’ to the corresponding USEPA regulations. must control your emissions of VOCs in types of plan submissions requiring Instead, BOEM has updated the table to accordance with § 550.306, for a short- review. reflect those SLs that are currently term facility, or § 550.307, for a long- Fifth, the final rule in § 550.303(d) identified in the regulations of the term facility. replaces the phrase ‘‘for each air USEPA at 40 CFR 51.165(b)(2). By using (2) If the exceedance is for any criteria pollutant’’ with the phrase ‘‘for each this table, BOEM provides lessees and air pollutant, then you must conduct criteria air pollutant, VOC, and TSP’’ to operators with a simple consolidated modeling in accordance with § 550.304. align with the change in the definitions listing of the relevant SLs values, This final rule retains the existing in § 550.105, using the term ‘‘criteria air organized by air pollutant and averaging definition in § 550.303(e), except for pollutant’’ instead of ‘‘air pollutant,’’ time. Rather than including a cross- referring to ‘‘criteria air pollutants’’ and to address the fact that this final reference to the USEPA tables, BOEM rather than to ‘‘air pollutants other than rule will retain existing EETs for criteria believes that it would be better for VOC’’ and referring to the updated SLs air pollutants,40 VOCs, and TSP. BOEM to make a determination about table, consistent with changes elsewhere For the reasons discussed above in the the appropriateness of applying future in this final rule. Section 550.303(e) will context of § 550.218, this final rule is changes to USEPA’s SLs to the OCS. now provide that for a facility not not adopting the proposed changes The SLs in this regulation may not exempt under paragraph (d), the lessee regarding MSC, and, accordingly, always be identical to those of the must use a BOEM approved air quality § 550.303(d), like the rest of §§ 550.303 USEPA SLs for that reason. The model to determine whether projected and 550.304, will continue to refer to a proposed rule implicitly recognized this emissions of criteria air pollutants from facility’s emissions and not, as because it would have added a the facility result in an onshore ambient proposed, ‘‘projected emissions’’ more provision to the regulations to allow air concentration above any SL set forth broadly.41 While BOEM has BOEM to issue exceptions to those SLs in the table in paragraph (e). traditionally maintained that the that BOEM determined would not be The proposed rule would have proposed framework for attributing MSC relevant. Rather than including a cross- changed BOEM’s interpretation of the emissions was permissible under reference to a USEPA table and then word ‘‘State’’ in the statutory phrase section 5(a)(8) of OCSLA, the Solicitor’s providing a list of exceptions, BOEM ‘‘significantly affect the air quality of Office has pointed out that the has determined that it would be more any State.’’ Specifically, the proposed Secretary’s statutory authority under appropriate to produce DOI’s own table rule would have defined ‘‘State’’ to OCSLA is distinct from that of the of relevant SLs. That way, BOEM can include submerged lands adjacent to the USEPA under the CAA. OCSLA does update the SLs table in the future, State shoreline to the State seaward not require considering attributed whenever it is appropriate to do so, boundary, changed the distance term in emissions from vessels in order to whether to accommodate any changes in the emission exemption formulas, and determine modeling and control the SLs that are made by the USEPA in required that non-exempt plans provide obligations. Moreover, the practical 40 CFR 51.165(b)(2) or for some other modeling results, which would include considerations discussed above weigh reason. air quality effects over offshore State against doing so. Paragraph (e) in the existing submerged lands in addition to onshore Because of the manner in which the regulations lists the SLs to use in effects. This final rule leaves in place USEPA defines criteria pollutants, it is modeling if a proposed plan has the current and long-standing approach, sometimes unclear under what projected emissions in excess of an EET. as reflected in the existing regulations, circumstances they refer to nitrogen DOI adopted the USEPA’s SLs in the of evaluating impacts to the air quality oxides (NOX) generally and under what existing regulations as they existed in of a State at its shoreline. circumstances they refer to nitrogen 1980. However, the USEPA has updated Some commenters objected to the dioxide (NO2) in particular. With the SLs since then and the SLs in the proposal to use the State seaward existing regulations can be updated. boundary, pointing to OCSLA legislative 40 The existing regulations do not have EET This final rule updates the table of SLs history that they assert would support formulas for PM10, PM2.5, lead, or ozone. This final in the existing regulations with the congressional intent to protect onshore rule will not add EETs for any pollutants. 41 This was one feature of proposed § 550.205. In USEPA’s current values. air quality—not to regulate offshore air the existing regulations, information on vessel The existing regulations at quality. Commenters also raised emissions is dealt with in §§ 550.224 and 550.257. § 550.303(e) provide that for a facility practical difficulties with the proposed
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change, pointing out that because the interpreting ‘‘State’’ to include modeled concentration of an air seaward boundary of Texas is much submerged lands out to the State pollutant cannot exceed the NAAQS (as farther offshore than other producing seaward boundary, and thus leaves in described below this provision is being Gulf States, a facility off the coast of place this aspect of the existing changed by replacing ‘‘air pollutant’’ Texas would have a lower exemption regulation. with ‘‘criteria air pollutant’’). Second, amount than one the same distance off The proposed rule contained a because the States can oppose an OCS the coast of Louisiana. They also provision that would have authorized plan, both under the existing air quality maintained that the proposal to require the deferral or waiver of new SILs in regulations and under the Coastal Zone modeling of impacts over State order to avoid adding new USEPA Management Act’s consistency submerged lands would be difficult due designated SILs that might not be certification process, there are existing to the lack of offshore monitoring relevant to OCS operations. Because mechanisms for triggering review of stations and information about BOEM has instead elected to update the proposed decisions to approve plans background pollutant concentrations. SLs table with a new table containing when there is an exceedance of the the USEPA SLs currently found in 40 Other commenters, however, expressed NAAQS. general support for extending CFR 51.165(b)(2), that provision is no consideration of impacts to the State longer necessary and has not been In the existing regulations, this seaward boundary, and one commenter included in this final rulemaking. paragraph sets the criteria for what argued that evaluating impacts over the The final rule also makes clarifying BOEM means by the word ‘‘significant’’ entirety of a State (including offshore edits that eliminate the use of the in the context of the OCSLA mandate submerged lands) was required by existing phrase ‘‘any air pollutant other ‘‘for compliance with the national section 5(a)(8) of OCSLA. than VOC’’ in § 505.303(e). This ambient air quality standards pursuant While the term ‘‘State,’’ read in particular change does not affect the to the CAA (42 U.S.C. 7401 et seq.), to isolation from its context in the meaning of the existing provision and the extent that activities authorized statutory phrase ‘‘significantly affect the reflects the deletion of the defined term under [OCSLA] significantly affect the air quality of any State’’ could be ‘‘air pollutant’’ discussed earlier. air quality of any State.’’ Although interpreted to include offshore Paragraph (e)(2)—Significance Levels BOEM received many comments, submerged lands of the State, the particularly from industry, to the effect context and purpose reflected in the This provision is being added to that BOEM’s historical environmental legislative history demonstrates clarify that, in the event that the EET for analyses had previously concluded that TSP is exceeded, air quality modeling congressional focus on the health effects air pollutant emissions associated with will be required not of TSP but instead on the onshore population. OCS activities have not had a significant of PM and PM .42 In the event that The goal expressed in the first clause 10 2.5 effect on the air quality of the States, that modeling determines that an SL for of section 5(a)(8) of OCSLA is to ensure these comments did not relate to the compliance with the NAAQS, and the PM2.5 or PM10 is exceeded in any State, this would be interpreted by BOEM to standard established for significance in NAAQS have historically been the air quality regulations. BOEM’s established based on an evaluation of indicate that the incremental amount of policy of using the SLs to define impacts to onshore populations and the criteria air pollutant ‘‘significantly significance has been in place since the resources. See e.g., USEPA, Integrated affects the air quality of a State.’’ This beginning of DOI’s AQRP and BOEM Science Assessment for Particulate final rule replaces the values for the SLs did not propose to change this policy as Matter, Second External Review Draft, of TSP with new SLs for PM10 and part of the proposed air quality rule. July 2009. PM2.5. Going forward, the SLs table will Also, the existing regulations, which no longer contain any values for TSP. Although BOEM has been consistent in consider onshore impacts on a State’s The SLs for PM10 and PM2.5, which are following this policy, paragraph (e) of air quality, more closely matches the criteria air pollutants, are a more this section is now being updated with intent of Congress as expressed in the appropriate basis for evaluating PM the USEPA SLs currently found at 40 Conference Committee report to the pollution and must be used for any air CFR 51.165(b)(2). 1978 OCLSA amendments. In two quality modeling, as well as for The phrase ‘‘air pollutant other than separate passages, that report describes evaluating the effectiveness of any VOC’’ is replaced with the newly the application of the regulations mitigation or controls that may be used. defined term ‘‘criteria air pollutant.’’ prescribed by section 5(a)(8) as focusing Paragraph (f)—Significance Finally, the term ‘‘air pollutant’’ has on effects to ‘‘adjacent onshore areas’’ Determinations been replaced with ‘‘criteria air and not impacts over offshore pollutant’’ in the two additional places Based on the comments received in submerged lands. S. Rep. 95–1091, at where the term is used in the paragraph, response to the proposed rule, there pp. 85–86 (1978). consistent with similar changes and Moreover, two practical may be situations in which emissions do not result in an exceedance of the rationale given elsewhere in this final considerations support a decision not to rule. As was noted in the proposed rule, adopt this aspect of the proposed rule. SLs but the area does not comply with the existing regulations do not use the First, BOEM is in the process of the NAAQS. However, the existing terms ‘‘air pollutant’’ and ‘‘criteria air completing its study of the EET regulations provide a way of addressing pollutant’’ consistently throughout. This formulas, so any changes to the distance such situations should they arise. First, final rule ensures that every term is term in the formulas would be existing § 550.303(g)(2)(i)(B) already used properly and consistently and premature. Second, the lack of provides that, in a situation where an monitoring stations offshore and the operator has exceeded the EETs and appropriate changes to the usage of resulting lack of data about background must submit modeling information, the these terms were made wherever concentrations would make necessary. determinations about the offshore 42 Air quality modeling of TSP may still be As is the case with paragraph (d) of required in limited cases if the SLs for PM are this section, this final rule is not impacts of a facility’s emissions exceeded and the analysis of the MACI becomes uncertain. For all these reasons, BOEM necessary (since the MACI table retains TSP in 30 adopting the proposed changes is not adopting the proposed changes CFR 503.303(g)(2)(i)(A)). regarding MSC.
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Paragraph (f)(1)—Significance BOEM has only rarely had to apply Paragraph (j)—Review of Facilities With Determinations the MACI table in an evaluation of any Emissions Below the Exemption The terms ‘‘air pollutant other than plan. Because of this, it is not clear that Amount VOC’’ and ‘‘air pollutant’’ have been the existing MACI table is necessary or The proposed rule contained replaced with ‘‘criteria air pollutant’’ in relevant to evaluate emissions from OCS provisions requiring the aggregation of those places in this paragraph where facilities. Furthermore, it is unclear emissions across multiple facilities and these terms were used. whether emissions from OCS facilities facilities covered by multiple plans. cumulatively cause significant Comments submitted in response to the Paragraph (f)(2)—Significance degradation in State air quality in Determinations proposed rule raised many concerns attainment areas, particularly with about the practicality and implications This paragraph was revised for clarity respect to SOX and TSP, the two of such consolidation. The major but without making any substantive pollutants which are referenced in the concern expressed was the fact that change in the meaning of the text. The MACI table. Until BOEM makes such a adding nearby facilities could thereby paragraph in the existing regulations determination, BOEM does not intend to implicate other facilities in the vicinity was changed from providing that the update this table. Once BOEM has more of those added and those facilities projected emissions of VOC from any information about potential updates to could, in turn, be located nearby other facility which is not exempt under other aspects of the regulation, it may facilities, and so forth. Thus, the paragraph (d) for that air pollutant shall decide to make changes to this table. requirement to consolidate emissions be deemed to significantly affect the air Paragraph (g)(2)(i)(B) across multiple nearby facilities could quality of the onshore area for VOC to lead to a ‘‘chain reaction’’ that would providing that the projected emissions The only change made to this potentially be unbounded or, at the of VOC from any facility which is not paragraph was to replace the reference least, be very confusing to operators. exempt under paragraph (d) will be to ‘‘air pollutant other than VOC’’ with Aside from that, the practicalities of deemed to significantly affect the air ‘‘criteria air pollutant.’’ This change getting emissions data from competing quality of the onshore area for VOC.43 conforms this paragraph with similar companies would make it very difficult Paragraphs (g)(1) and (2) changes made throughout Subpart C and for operators to comply with these discussed previously. The only change made to these proposed requirements. BOEM agrees For the reasons described previously, that these are valid concerns and has paragraphs was to replace the reference BOEM has determined that it would be to ‘‘air pollutant other than VOC’’ with elected not to finalize that proposal. The best not to implement a formal cross- final rule retains the existing paragraph ‘‘criteria air pollutant.’’ This change reference to the USEPA’s regulations conforms this paragraph with similar (j) under which the regional supervisor setting out the NAAQS as in the may require the consolidation of changes made throughout subpart C and proposed rule. discussed previously. emissions reporting from multiple Instead, BOEM has added a definition facilities if, in his or her determination, Paragraph (g)(2)(i)(A) of the term ‘‘NAAQS’’ that refers to the such emissions would cause a The proposed rule would have statutory authority for establishing significant effect to any State. replaced the MACI table with a cross- NAAQS to the list of definitions. Consistent with the proposed rule’s reference to the USEPA’s table of Paragraph (h)—Controls Required on terminology, the final rule replaces the Ambient Air Increments. This final rule Temporary Facilities term ‘‘exemption amount’’ with the does not implement that change. phrase ‘‘emission exemption threshold.’’ The regulations employ the table of Consistent with a similar change Consistent with the changes made MACIs in this paragraph as a criterion made in other places throughout this elsewhere in this rule, the reference to for determining whether required final rule, BOEM is replacing the term ‘‘Exploration Plan or Development and controls are sufficient for facilities that ‘‘air pollutant’’ with the term ‘‘criteria Production Plan’’ is replaced by significantly affect attainment areas (i.e., air pollutant or VOC.’’ The existing text ‘‘Exploration Plan, Development and areas that are in compliance with the of § 550.303(h) provides that the lessee Production Plan, or Development NAAQS). The concept of MACI in the shall apply BACT to reduce projected Operations Coordination Document.’’ AQRP originally came from the emissions of any air pollutant from a USEPA’s Prevention of Significant temporary facility which significantly § 550.304—Existing Facilities Deterioration (PSD) program. The affects the air quality of an onshore area Section 550.303 refers to plans for USEPA’s PSD program is designed of a State. new facilities or to those that are primarily to prevent the air quality in an With this change, the text of described in a plan that was approved attainment area from deteriorating § 505.303(h) will provide that the lessee after 1980, and § 550.304 refers to substantially from a prior baseline. The must apply BACT to reduce projected facilities that are described in a plan statutory requirements for the PSD emissions of any criteria air pollutant or approved before 1980. The proposed program are described in detail in the VOC from a temporary facility that rule would have eliminated this CAA, but OCSLA contains no reference significantly affect the air quality of an distinction and established one set of to preventing deterioration within onshore area of a State. requirements for all plans. Because the attainment areas. The existing rule establishes what a final rule is more limited in scope than significant impact would be for both the proposed rule, BOEM has retained 43 When the VOC EET is exceeded then, under criteria pollutants and VOCs, and it § 550.304 and has made changes to § 550.303(f)(2), the projected emissions are deemed would be incongruous for this provision § 550.304 that conform to those changes to significantly affect a state. This treatment of VOCs is different from the treatment of the other to apply to criteria pollutants, but not made in the corresponding parts of pollutants in the regulations, for which the VOCs. This change in terminology is § 550.303. determination whether emissions will significantly consistent with the proposed rule, Although the vast majority of plans affect a state is based on their modeled impacts which proposed to consistently use the related to facilities still in operation within the onshore area of a state. This distinction is part of the reason that BOEM consistently refers terms criteria air pollutant and air post-date 1980, public comments to criteria pollutants and VOCs separately. pollutant. received from industry did indicate that
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there are still a small number of offshore the term ‘‘significance level,’’ consistent this rulemaking is not a major facilities that were approved under a with a similar change made elsewhere rulemaking, as defined by 5 U.S.C. plan that pre-dated 1980. If such a in this rule; however, this change has no 804(2), because this rulemaking has not facility were to emit pollutants in effect on the substance of these and is unlikely to result in: sufficient amounts so as to significantly regulations. Moreover, consistent with • An annual effect on the economy of affect the air quality of any State, BOEM adding the definition of ‘‘criteria air $100,000,000 or more; could utilize OCSLA’s existing authority pollutant’’ to the regulations, this final • a major increase in costs or prices to require that appropriate action be rule removes the phrase ‘‘for that air for consumers, individual industries, taken to mitigate these emissions. For pollutant’’ in paragraph (d). Finally, Federal, State, or local government these reasons, BOEM has determined BOEM is modifying paragraph (d)(2) to agencies, or geographic regions; or • that leaving the existing § 550.304 as delete the term ‘‘air pollutant.’’ The significant adverse effects on amended would be more appropriate paragraph does not deal with any air competition, employment, investment, than either substantially revising or pollutant other than VOCs and the use productivity, innovation, or on the deleting it. of the term ‘‘air pollutant’’ is needlessly ability of United States-based enterprises to compete with foreign- Paragraph (b)—Exemption Formulas confusing. This change does not affect the meaning of the provision. based enterprises in domestic and The changes made to this paragraph BOEM did not receive any comments export markets. are analogous to those made in that would be relevant to the changes 2. Data Quality Act § 550.303(d), as noted above. made to this paragraph of the final rule. In developing this rule, BOEM did not Paragraph (c)—Significance Levels Paragraph (e)—Controls Required conduct or use a study, experiment, or The primary change made to this Consistent with a similar change survey requiring peer review under the paragraph is to replace the existing table made in other places throughout this Data Quality Act (Pub. L. 106–554, app. with a cross-reference to the new BOEM final rule, BOEM is replacing the term C, sec. 515, 114 Stat. 2763, 2763A–153– table of SLs in § 550.303(e). ‘‘air pollutant’’ in § 550.304(e)(1) with 154). BOEM received one comment Just as in § 550.303(e), the final rule the term ‘‘criteria air pollutant or VOC.’’ relevant to the Data Quality Act, also also makes clarifying edits that The existing text of § 550.304(e)(1) known as the Information Quality Act eliminate the use of the existing phrase provides that the projected emissions of (IQA). The commenter asserted that the ‘‘any air pollutant other than VOC’’ in any air pollutant which significantly draft Environmental Assessment (EA) this paragraph. This particular change affect the air quality of an onshore area under NEPA seems to be subject to the does not affect the meaning of the shall be reduced through the application IQA and, therefore, should have been existing provision and reflects the of BACT. made available to the public to aid deletion of the defined term ‘‘air With this change, the text of this comment. However, contrary to the pollutant’’ discussed earlier. Also, paragraph will provide that the commenter’s assertion, the draft EA is consistent with the change made to projected emissions of any criteria air not subject to the IQA. In any case, § 550.303(e), the changes to this pollutant or VOC that significantly BOEM did make the draft EA publicly paragraph clarify that, in the event that affect the air quality of an onshore area available for review and public input the EET for TSP is exceeded, air quality must be reduced through the during the proposed rulemaking by modeling for SLs will be required, not application of BACT. placing that document in the public of TSP, but instead of PM10 and PM2.5. This change does not change the docket along with the proposed rule. The values for the SLs of TSP are being meaning of the provision and mirrors 3. National Environmental Policy Act replaced with new SLs for PM10 and the change made to paragraph (h). PM2.5. Going forward, the SLs table will BOEM is making it for the same reasons BOEM has developed a final EA and no longer contain any values for TSP. as for the change in that paragraph. made a finding that this final rule does The SLs for PM10 and PM2.5, which are BOEM did not receive any comments not have a significant impact on the criteria air pollutants, are a more that would be relevant to the changes quality of the human environment appropriate basis for evaluating PM made to this paragraph of the final rule. under the NEPA. The final EA and pollution and must be used for any air Finding of No Significant Impacts quality modeling, as well as for Paragraph (f)—Review of Facilities With (FONSI) are available for review in evaluating the effectiveness of any Emissions Below the Exemption conjunction with this final rule at mitigation or controls that may be used. Amount www.regulations.gov (in the Search box, BOEM did not receive any comments Consistent with the terminology in enter BOEM–2018–0038). that would be relevant to the changes the proposed rule, the final rule changes 4. Paperwork Reduction Act (PRA) made in this paragraph of the final rule. the term ‘‘exemption amount’’ to ‘‘emissions exemption threshold’’ to The PRA (44 U.S.C. 3501–3521) Paragraph (d)—Significance correspond to the use of this term provides that an agency may not Determinations elsewhere in the final rule. conduct or sponsor, and a person is not Under the existing regulations, BOEM did not receive any comments required to respond to a ‘‘collection of § 550.304(d) describes what constitutes that would be relevant to the changes information,’’ unless the collection of ‘‘significant emissions’’ with respect to made to this paragraph of the final rule. information is approved by OMB and it the OCSLA requirement that OCS displays a currently valid OMB control operations must not ‘‘significantly affect V. Key Statutes and Executive Orders number. Collections of information the air quality of any State.’’ Facilities A. Key Statutes include requests and requirements that that pre-date the 1980 adoption of the an individual, partnership, or regulations are subject to the 1. Congressional Review Act corporation obtain information, and requirements of this section. The text of Pursuant to the Congressional Review report it to a Federal agency (44 U.S.C. this paragraph is unchanged with three Act 5 U.S.C. 801 et seq., the Office of 3502(3); 5 CFR 1320.3(c) and (k)). This exceptions. First, in paragraph (d)(1), Information and Regulatory Affairs final rule contains a collection of the new text uses the acronym SL for (OIRA) of the OMB has determined that information that BOEM submitted to
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OMB for review and approval under the This clarification will not increase Respondents/Affected Public: PRA. This PRA section of the final rule annual burden hours. Respondents are Federal oil and gas or relates to the OMB control numbers • BOEM is updating the spreadsheets sulfur lessees or operators. associated with information collection so that emissions from transiting Total Estimated Number of Annual under 30 CFR part 550, subparts B and support vessels will no longer be Response: 4,266 response. C. The proposed rule, soliciting considered as part of the EET Total Estimated Number of Annual comments on the collections of evaluation. The rule is not, however, Burden Hours: 436,438 hours. information for 60 days, was published changing the requirement that emissions Respondent’s Obligation: Some in the Federal Register on April 5, 2016 from vessels temporarily attached either responses to the information collection (81 FR 32259). BOEM received ten to the seabed or to another facility must are required to obtain or retain a benefit, comments on the collections of be accounted for as part of the EET and some are mandatory. information. Commenters raised a evaluation process. This means that Frequency of Collection: The number of issues specific to individual some sources may fall under the frequency of the response varies, but collections of information and estimated definition of ‘‘facility’’ depending on primarily responses are required only costs associated with the proposal. their function (i.e., a vessel transiting to on occasion. Although BOEM made certain changes and from a facility would need to report Total Estimated Annual Nonhour related to information collection in the the associated emissions, but those Burden Cost: $3,939,435. final rule, it did not do so directly in emissions would not be added in with BOEM is updating the air quality response to the comments received. the facility emissions for the purpose of spreadsheets, BOEM–0138 (EP Air This final rule retains most of the text the EET analysis; however, emissions Quality Screening Checklist) and of the existing regulations while making generated from the same vessel during BOEM–1039 (DOCD/DPP Air Quality only a small number of the changes workover operations would be added in Screening Checklist), in response to this originally proposed. The proposed rule with the facility emissions). In some final rule. BOEM intends for these forms changes were far greater than those cases, therefore, emissions from the to be comprehensive and to meet the implemented in this final rule. BOEM same source may need to be separately needs of different lessees and operators. has determined that the changes in the reported to account for the different BOEM uses the data from these forms to final rule are necessary to update functions (e.g., transiting versus well determine the effect of the air emissions outdated standards and benchmarks. operations) that they intend to perform. on the environment. These forms aim to The changes related to collection of Title of Collection: Air Quality provide a way for the designated information include: Control, Reporting, and Compliance. operator to document the emissions • Updating the table of SLs in the OMB Control Number: Information sources and facilitate the calculation of existing regulations, dating from 1980, Collection burdens associated with 30 emissions, which BOEM evaluates with current SLs at 40 CFR 51.165(b)(2). CFR part 550, subpart A, are approved against the EETs. As recommended in Annual burden hours will not be under OMB Control Number 1010–0114 and submitted to OMB in the proposed significantly impacted. (30, 635 annual burden hours, $165,492 rulemaking, the new spreadsheets • Updating the data collection non-hour costs; expires January 31, would split the PM data into two requirements from the existing 2020). Information Collection burdens categories, PM10 and PM2.5 and would regulations, dating from 1980, with a associated with 30 CFR part 550, clarify that the reporting requirement for statement requiring operators to provide subpart B, are approved under OMB PM would include both filterable and TSP data in subpart B in §§ 550.218 and Control No. 1010–0151, Plans and condensable PM, in accordance with 550.249. This requirement was implied Information (436,438 annual burden USEPA guidelines. by the necessity to apply TSP estimates hours; $3,939,435 non-hour costs; The proposed rulemaking also to the EET formulas in subpart C, expires June 30, 2021). Information included reporting requirements for §§ 550.303 and 550.304; however, the Collection burdens associated with 30 lead and ammonia and BOEM proposed requirement to actually collect the data CFR part 550, subpart C, are approved corresponding changes to those forms. analyzed in subpart C was not under OMB Control No. 1010–0057 Lead is a criteria air pollutant and has previously mentioned as a requirement (35,200 annual burden hours; $0 non- a defined NAAQS. For that reason, in subpart B. Annual burden hours will hour costs; expires May 31, 2021). information on lead emissions will still not be significantly impacted. This rule does not add new be required with this final rule. • Although BOEM has not replaced information collection requirements or BOEM is not adding any reporting the EET formula for TSP with an change the burden estimates. However, requirement for ammonia in this final identical formula for PM10, as suggested BOEM is submitting OMB control rule. Instead, BOEM will modify the in the proposed rule, BOEM has number 1010–0151 for revisions with spreadsheets so that they calculate and replaced TSP with two categories of publication of the final rule. The final display ammonia emissions along with criteria air pollutants, PM10 and PM2.5 in rule will modify two forms, BOEM– the list of other pollutants reported. the table of SLs as part of this final rule. 0138 and BOEM–0139. This latter change would impose no This change will provide more clarity to Form Number: additional burdens on operators since OCS lessees and operators, but will not • BOEM–0137, OCS Plan Information the spreadsheets will use the activity impact annual burden hours. Form data already being provided by • BOEM updated the paragraph that • BOEM–0138, EP Air Quality operators to calculate that amount of refers to the EETs to clarify that the Screening Checklist ammonia that would be generated by formulas apply to both DPPs and • BOEM–0139, DOCD/DPP Air Quality any given plan. BOEM will use this DOCDs. This update will not change Screening Checklist information about ammonia to inform current practice because the air quality • BOEM–0141, ROV Survey Report potential future policy making. regulations have always applied to DPPs • BOEM–0142, Environmental Impact In addition to changing the data and DOCDs, and the spreadsheets are Analysis Worksheet collection to accommodate different already set up for both DPPs and Type of Review: Revision of a types of pollutants, BOEM will also DOCDs. BOEM’s spreadsheets currently approved information update these forms as discussed in the automatically calculate the formulas. collection. proposed rule to reflect the addition of
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unique emissions sources that are 5. Impact of This Final Rule on Small procedures. There will not be an applicable to Alaska. In the past, Entities, Regulatory Flexibility Act increase in compliance burdens as a BOEM’s air quality spreadsheets could (RFA) result of this rule because this final air not be used in the Alaska region because The RFA, 5 U.S.C. 601–612, requires quality rule does not impose new they did not encompass the unique agencies to analyze the economic information reporting or air quality types of equipment that were necessary impact of regulations when a significant modeling requirements, it does not to properly evaluate emissions from economic impact on a substantial change any requirements for air quality Alaskan operations. number of small entities is likely. If the monitoring on the part of lessees or With the publication of this final rule, agency certifies that the rule will not operators, and it does not implement the BOEM submitted the updated forms, have a significant economic impact on proposed requirements for additional BOEM–0138 and BOEM–0139, to OMB a substantial number of small entities, emissions reductions measures. The for approval under OMB Control then this analysis is not required. regulatory updates will not add Number 1010–0151. Once OMB As defined by the Small Business paperwork or other burdens to small or approves OMB Control Number 1010– Administration (SBA), a small entity is other entities operating in OCS areas 0151, BOEM will publish the updated one that is ‘‘independently owned and under BOEM’s air quality jurisdiction. forms on the BOEM OCS Operation operated and which is not dominant in None of these changes increase or Forms website at: https:// its field of operation.’’ What decrease the burden on small or other www.boem.gov/BOEM-OCS-Operation- characterizes a small business varies entities operating on the OCS. The effect Forms/. from industry to industry in order to of this final rule is simply to clarify As part of our continuing effort to properly reflect industry size requirements and update BOEM reduce paperwork and respondent differences. This final rule will affect regulations to reflect current practice; burdens, BOEM invites the public and lease operators that are conducting OCS therefore, BOEM certifies that this rule other Federal agencies to comment on exploration and development operations will not have a significant economic any aspect of this information in the Gulf of Mexico and adjacent to impact on a substantial number of small collection, including: the North Slope Borough of Alaska. entities. (1) Whether or not the collection of BOEM’s analysis shows this could 6. Small Business Regulatory information is necessary, including include about 70 companies with active Enforcement Fairness Act whether or not the information will operations. Of the 70 companies, 21 have practical utility; (∼30 percent) are large and 49 (∼70 This rule is not a major rule under 5 U.S.C. 804(2), the Small Business (2) The accuracy of our estimate of the percent) are small. Entities that will Regulatory Enforcement Fairness Act, burden for this collection of operate under this rule primarily fall because this rule: information; under the SBA’s North American Industry Classification System (NAICS) (a) Will not have an annual effect on (3) Ways to enhance the quality, codes 211120 (Crude Petroleum the economy of $100 million or more; utility, and clarity of the information to Extraction) and 211130 (Natural Gas be collected; and (b) will not cause a major increase in Extraction). For NAICS classifications costs or prices for consumers, (4) Ways to minimize the burden of 211120 and 211130, SBA defines a individual industries, Federal, State, or the collection of information on small business as one with fewer than local government agencies, or respondents. 1,251 employees. geographic regions; and The collection of information does not BOEM’s analysis shows that there are (c) will not have significant adverse include questions of a sensitive nature. 49 small companies with active effects on competition, employment, BOEM protects proprietary information operations on the OCS, and all of these investment, productivity, innovation, or according to section 26 of OCSLA; the companies would be impacted by the the ability of U.S.-based enterprises to Freedom of Information Act (5 U.S.C. rule if they engage in activities that compete with foreign-based enterprises. 522), the DOI’s implementing require an air quality review. Most of regulations at 43 CFR part 2; and the these entities are likely to engage in 7. Unfunded Mandates Reform Act regulations at 30 CFR 550.197, Data and such activities (i.e., exploration and/or This rule does not impose an information to be made available to the development of offshore mineral public or for limited inspection, and 30 unfunded mandate on State, local, or resources). BOEM has determined that tribal governments, or the private sector, CFR 556.104, Information collection and this final rule will affect a substantial proprietary information. of more than $100 million per year. The number of small entities. However, as rule does not have a significant or Send your comments and suggestions the rule does not increase costs unique effect on State, local, or tribal on this information collection to the compared to the baseline, it will not governments or the private sector. Desk Officer for the Department of the impose additional costs on small Therefore, a statement containing the Interior at OMB–OIRA at (202) 395– entities. _ information required by the Unfunded 5806 (fax) or OIRA Submission@ The regulatory changes in this final Mandates Reform Act (2 U.S.C. 1531 et omb.eop.gov (email). Please provide a rule are technical corrections or reflect seq.) is not required. copy of your comments to the updates to the list of USEPA criteria Information Collections Clearance pollutants, primary and secondary B. Executive Orders Officer, Office of Policy, Regulation, and NAAQS, and their relevant SL values. 1. Governmental Actions and Analysis; Bureau of Ocean Energy Because operators have already been Interference With Constitutionally Management; U.S. Department of the designing their plans based upon Protected Property Rights (E.O. 12630) Interior; VAM–BOEM DIR; 45600 USEPA’s updated NAAQS, BOEM does Woodland Road, Sterling, VA 20166; or not anticipate that these definitional This rule does not affect a taking of by email to [email protected]. and technical updates will have a private property or otherwise have Please reference Air Quality Control, significant impact on operators. Other takings implications under E.O. 12630. Reporting, and Compliance (Final changes are definitional or intended to Therefore, a takings implication Rulemaking) in your comments. confirm and codify existing policies or assessment is not required.
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2. Regulatory Planning and Review (E.O. practice over the past several years has have been caused by the proposed rule 12866) been to review plans it has received may or may not occur. E.O. 12866 provides that the OIRA against these same SLs. Accordingly, In accordance with the existing will review all significant rules. The BOEM has determined that using the regulations, EPs, DPPs or DOCDs proposed rule was deemed significant updated SLs will not cause any increase submitted by lessees and operators must both because of its potentially in costs compared to the baseline. show whether regulated air pollutant substantial economic impact and BOEM is seeking approval from OMB emissions are below the exemption because it raised certain issues that for changes to the air quality threshold or below the SLs in order to could have significant policy spreadsheets necessitated by this rule. avoid applying controls.45 If a plan’s implications. Although, the scope of These include adding columns to allow maximum estimated emissions are separate reporting of PM2.5 and PM10, as below the exemption threshold, no this final rule is much more limited 44 than the proposed rule, OMB has well as lead. None of these changes additional modeling or controls is nevertheless determined that this rule would impose any additional costs on required. According to both the existing should be classified as significant operators because current BOEM regulations and this final rule, if the because of the overall importance of air practice is to have BOEM’s spreadsheets maximum emissions estimated for a quality to the potentially affected States perform the emissions calculations proposed plan are above the exemption and the potential implications of the based on an inventory of the types of threshold, lessees must model emissions proposed rule on the oil and gas equipment and activity levels provided to determine if the plan’s emissions will industry. The rule is considered by the operators. There is no change that remain below the SLs. If the plan’s significant for policy reasons, not for will be required of operators as a result emissions exceed an SL, then, under economic reasons, however, because the of this rule because BOEM will update both the existing regulations (baseline) final rule would not cause a substantial all the necessary data in the and this final rule, BOEM requires impact to either the regulated entities or spreadsheets so that the new lessees and operators to implement any other potentially affected parties. information required by this rule will be BACT to reduce the proposed facility’s Unlike the proposed rule, as compared calculated automatically for the air quality impact on the State. to the current AQRP, this rule would operator. Because the EET for TSP has Congress transferred air quality impose no additional burdens or costs never been exceeded, and also because jurisdiction for the OCS adjacent to the and would likely cause a minor the EET for TSP is not being updated North Slope Borough of Alaska to DOI reduction in such burdens and costs. with this rulemaking, it is likely that the in December 2011. Potential minor BOEM has compared the costs and change to the SLs will not have any differences in practice between the benefits of the provisions in this final effect on the mitigation that BOEM GOMR and AKOCSR in implementing rule to the baseline scenario. The requires of operators. the air quality regulations do not result baseline scenario represents BOEM’s This final rule updates BOEM’s in material compliance differences. best assessment of what U.S. OCS existing requirements, but does not add Practical differences are minor and the operations would be like absent this any new procedures to the air quality sheer quantity of GOM EPs and DOCDs regulatory action. The baseline includes review program, nor does it add any dwarf the one or two plans BOEM compliance with existing BOEM reporting requirements. It does not add expects to receive each year in the regulations and current established any incremental burden to industry to AKOCSR. procedures for the Department of the meet the criteria BOEM uses to review This final rule retains most of the Interior’s (DOI) administered air-quality plans nor does it change what lessees existing air quality regulations and jurisdiction in the Gulf of Mexico and operators must do to ensure makes only minor changes, as discussed (GOM) and adjacent to the North Slope compliance with OCSLA. The plan above. These changes are primarily Borough of Alaska. requirements, operating requirements, updates to outdated air quality In comments on the proposed rule, and compliance and monitoring standards and benchmarks. BOEM is industry stakeholders asserted that requirements of BOEM’s regulations updating the table of SLs in the existing BOEM’s proposed rule cost estimates remain unchanged. This final air quality regulations, dating from 1980, with the were significantly underestimated. rule does not impose any new air values currently found in the USEPA These same stakeholders also asserted quality modeling requirements, it does table at 40 CFR 51.165(b)(2). Other that BOEM’s benefits were over-stated not require any new air quality changes are mostly to clarify since the emissions reductions were monitoring on the part of lessees or terminology. unlikely to occur. BOEM evaluated the operators, and it does not implement BOEM believes that this rule is comments and information provided by any additional emissions reductions deregulatory in nature, both because it the commenters and concurs that the measures. replaces onerous provisions of the compliance costs in the proposed rule’s None of the regulatory changes in this proposed rule with provisions that are regulatory impact analysis were final rule increase or decrease the much simpler and because it corrects a underestimated and the benefits were regulatory burden compared to current number of inconsistencies and overestimated. practice. BOEM does not expect any inaccuracies in the existing regulations This final rule will result in no changes in OCS air quality emissions in such a manner as to reduce the changes to compliance burdens and no resulting from this rule; the air pollution complexity of the regulatory process. change in benefits compared to BOEM’s reductions that BOEM estimated may BOEM does not expect any changes in existing regulations and practices. The OCS air quality resulting from this rule. 44 Although the new rule is not adding any new major change in this final rule with EET or SL for lead, because §§ 550.218 and 550.249 respect to the SLs is the deletion of now refer to ‘‘criteria air pollutants,’’ BOEM is 45 There is an exception to this noted in current annual and 24-hour averaging times for adding a separate column to report lead. As with 30 CFR 550.303(j). If BOEM determines that a TSP and the insertion of annual and 24- other pollutants, when the operator enters activity proposed plan would result in one or more facilities information (e.g. fuel usage and duration) the lead to be installed that could generate a level of hour averaging times for both PM10 and emissions would be automatically calculated and pollution that would exceed the SLs or NAAQS, PM2.5. Although the final rule requires populated into the spreadsheet based upon an BOEM could require additional analysis and the use of updated USEPA SLs, BOEM’s emissions factor embedded in the spreadsheet. modeling (regardless of the EET analysis).
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3. Civil Justice Reform (E.O. 12988) various consultation authorities that Alabama-Coushatta Tribes of Texas, the This rule complies with the BOEM will follow in consulting with Kickapoo Traditional Tribe of Texas, requirements of E.O. 12988. tribes and ANCSA Corporations. and the Ysleta Del Sur Pueblo of Texas. Specifically, this rule: DOI recognizes and respects the No federally recognized tribes in Alaska (a) Meets the criteria of section 3(a) distinct, unique, and individual cultural or the GOM accepted the invitation. requiring that all regulations be traditions and values of Alaska Native One ANCSA Corporation, the Arctic reviewed to eliminate errors and people and statutory relationship Slope Regional Corporation (ASRC), ambiguity and be written to minimize between ANCSA Corporations and the accepted the invitation and engaged in litigation; and Federal Government. In developing this consultation with BOEM. Their (b) meets the criteria of section 3(b)(2) rule, BOEM determined, based on DOI’s concerns related primarily to the requiring that all regulations be written consultation policies and the criteria in amount of new information that could in clear language and contain clear legal E.O. 13175, that the rule will not cause be required of lessees and operators in standards. a substantial, direct effect on any connection with the new rule, the federally recognized Indian tribe or 4. Protection of Children From increased complexity of the rulemaking, ANCSA Corporation. 81 FR at 19795. and the timing of the rulemaking Environmental Health and Safety Risks The proposed rule preamble discussed (E.O. 13045) relative to the ongoing Alaska regional the reasons for this determination with air quality study. BOEM has taken all of E.O. 13045, Protection of Children relation to the overall goals of the the concerns raised by ASRC into from Environmental Health Risks and rulemaking. This final rule is much consideration and has removed a Safety Risks, requires that narrower in scope than the proposed number of rule provisions, in part in environmental and related rules rule, and any effects that the proposed response to some of the comments made separately evaluate the potential impact rule might have had on tribes or ANCSA by the ASRC and other tribal to children. The USEPA has Corporations are more limited in this organizations. determined, and BOEM agrees, that final rule. children are an at-risk group for health Despite this determination on the 7. Effects on the Energy Supply (E.O. effects associated with exposures to proposed rule, BOEM offered to hold 13211) certain air pollutants, including some consultations with tribes and ANCSA This rule is not a significant energy pollutants released or formed from OCS Corporations during the proposal action as defined in E.O. 13211. operations. BOEM has evaluated this comment period. To determine whether Therefore, a Statement of Energy Effects final rule according to the requirements tribes or ANCSA Corporations wanted is not required. of E.O. 13045 and determined that this to consult, BOEM provided, or offered final rule is not an economically to provide, information to several 8. Improving Regulation and Regulatory significant rule and does not create an federally recognized tribes in Alaska Review (E.O. 13563) environmental risk to health or a risk to 46 (Kotzebue IRA, Inpuiat Community of E.O. 13563 reaffirms the principles of safety that may disproportionately affect the Arctic Slope, Native Village of E.O. 12866 while calling for children. Wainwright, Native Village of Point improvements in the Nation’s regulatory 5. Federalism (E.O. 13132) Hope, Native Village of Point Lay, system to promote predictability, to Native Village of Kaktovik, Native Under the criteria in section 1 of E.O. reduce uncertainty, and to use the best, Village of Nuiqsut, and Native Village of most innovative, and least burdensome 13132, this rule does not have sufficient Barrow) and in the GOM. BOEM federalism implications to warrant the tools for achieving regulatory ends. The received several requests for E.O. directs agencies to consider preparation of a federalism summary consultation, and in July 2016, BOEM impact statement. Therefore, a regulatory approaches that reduce followed through with invitations for burdens and maintain flexibility and federalism summary impact statement is government-to-government not required. freedom of choice for the public where consultations with the federally these approaches are relevant, feasible, 6. Consultation With Tribes and Alaska recognized tribes listed above and and consistent with regulatory Native Claims Settlement Act several ANCSA Corporations (Kuupik objectives. E.O. 13563 emphasizes Corporations (E.O. 13175 and Other Corporation, Inc.; Kaktovik Inupiat further that regulations must be based Authorities) Corporation; the Northwest Arctic on the best available science and that DOI strives to strengthen its Native Association (NANA, also known the rulemaking process must allow for government-to-government relationship as the NANA Regional Corporation); public participation and an open with federally recognized tribes through Cully Corporation; Ukpeagvik Inupiat exchange of ideas. We have developed a commitment to consultation with Corporation; Arctic Slope Regional this rule in a manner consistent with tribes and recognition of their right to Corporation; Kikiktagruk Inupiat these requirements. self-governance and tribal sovereignty. Corporation; Tikigaq Corporation; and 9. Enhancing Coordination of National E.O. 13175 and DOI’s tribal consultation Olgoonik Corporation). BOEM also Efforts in the Arctic (E.O. 13689) policy, which implements the E.O., invited the following tribes in the GOM provide for procedures for consultation to consult: The Poarch Band of Creek E.O. 13689 recognizes the Arctic has with tribes when taking an action with Indians of Alabama, the Mississippi critical long-term strategic, ecological, tribal implications. DOI has extended its Band of Choctaw Indians, the cultural, and economic value, and it is consultation policy to Alaska Native Chitimacha Tribe of Louisiana, the imperative we continue to protect our Claims Settlement Act (ANCSA) Coushatta Tribe of Louisiana, the Jena national interests in the region, which Corporations. Furthermore, BOEM Band of Choctaw Indians, the Tunica- include national defense; sovereign recently issued its own expanded Tribal Biloxi Indian Tribe of Louisiana, the rights and responsibilities; maritime Consultation Guidance on June 29, 2018 safety; energy and economic benefits; 46 The Tribe, a sovereign entity, is commonly (https://www.boem.gov/Tribal- called the Kotzebue IRA due to its organization environmental stewardship; promotion Engagement/https://www.boem.gov/ pursuant to the 1934 Indian Reorganization Act as of science and research; and Tribal-Engagement/), identifying amended for Alaska in 1936. preservation of the rights, freedoms, and
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uses of the sea as reflected in are no incremental compliance costs in Administration’s policy. This final rule international law. this rulemaking and the concerns reflects the Secretary’s clean air E.O. 13689 also recognizes it is vital associated with the high cost of the responsibilities mandated under 43 that Federal agencies work together to proposed air quality rule are no longer U.S.C. 1334(a)(8). It also, as discussed enhance coordination on Arctic efforts. relevant. This final rule streamlines elsewhere in this preamble, avoids Pursuant to this goal, the E.O. information collection and provides adding requirements that could have establishes an Arctic Executive Steering compliance clarity to the regulated been unduly burdensome, that would be Committee (Steering Committee), to entities. Therefore, BOEM considers this premature in light of the evaluation of provide ‘‘guidance to executive final rule to be deregulatory. recent studies, and that were based on departments and agencies (agencies) an attempt to align with requirements and enhance coordination of Federal 11. Promoting Energy Independence and Economic Growth (E.O. 13783) under the CAA in spite of the Arctic policies across agencies and differences between that statute and offices, and, where applicable, with E.O. 13783 section 2 requires agencies section 1334(a)(8). State, local, and Alaska Native Tribal to ‘‘review all existing regulations, governments and similar Alaska Native orders, guidance documents, policies, List of Subjects in 30 CFR Part 550 organizations, academic and research and any other similar agency actions’’ Administrative practice and institutions, and the private and with the goal of eliminating provisions procedure, Air pollutant, Air pollution, nonprofit sectors.’’ DOI is a member of that impede domestic energy Air quality, Arctic, Attainment area, this Steering Committee. production. Section 2(a) exempts agency Continental shelf, Compliance, Criteria Consistent with DOI’s long-standing actions ‘‘that are mandated by law, air pollutants, Development plan, commitment to coordinate with other necessary for the public interest, and Development and production plan, Federal agencies on Arctic matters, consistent with the policy [to remove Environmental protection, Exploration BOEM worked with the Steering unnecessary regulatory burdens on plan, Federal lands, Federal land Committee and other relevant agencies domestic energy production while manager, New source review, Non- in developing this rule. Within DOI, promoting clean air and water within attainment area, Oil, gas, and sulfur these agencies included the BSEE, the the constraints of current statutes].’’ exploration, Oil, gas, and sulfur U.S. Fish and Wildlife Service, the BOEM determined in coordination with development, Oil pollution, Oil National Park Service, and the Bureau of DOI and OMB that the E.O. 13783 production, Outer Continental Shelf, Land Management. In addition, BOEM principles should be applied to the Ozone, Penalties, Pipelines, Precursor consulted extensively with the USEPA proposed rule. Consequently, BOEM is pollutants, Prevention of significant and the U.S. Forest Service within the publishing this final rule consistent deterioration, Reporting and Department of Agriculture. with OCSLA’s statutory mandate to recordkeeping requirements, Sulfur. The E.O. also recognizes ‘‘it is in the ensure OCS domestic energy activities best interest of the Nation for the authorized under OCSLA comply with Casey Hammond, Federal Government to maximize the NAAQS under the CAA. The final Principal Deputy Assistant Secretary, transparency and promote collaboration rule promotes the public interest and Exercising the Authority of the Assistant where possible with the State of Alaska, clean air, while also eliminating many Secretary, Land and Minerals Management. Alaska Native Tribal governments and of the proposed rule’s unnecessary and For the reasons stated in the similar Alaska Native organizations, and premature provisions that may not have preamble, BOEM amends 30 CFR part local, private-sector, and nonprofit- withstood judicial review. This is done 550 as follows: sector stakeholders.’’ BOEM has in an effort to reduce compliance costs complied with this order, as described on industry and to narrowly tailor the PART 550—OIL AND GAS AND further in the section K, which is regulatory system to BOEM’s specific SULFUR OPERATIONS IN THE OUTER entitled, ‘‘Consultation with Tribes and statutory jurisdiction, pending CONTINENTAL SHELF Alaska Native Claims Settlement Act evaluation of the results of air quality ■ 1. The authority citation for part 550 Corporations (E.O. 13175) and Other studies. continues to read as follows: Authorities,’’ above. 12. Implementing an America-First Authority: 30 U.S.C. 1751; 31 U.S.C. 9701; 10. Reducing Regulation and Offshore Energy Strategy (E.O. 13795) 43 U.S.C. 1334. Controlling Regulatory Costs (E.O. E.O. 13795 section 2 states that U.S. ■ 13771) 2. In § 550.105: policy is ‘‘to encourage energy ■ a. Remove the definition of ‘‘Air E.O. 13771 (January 30, 2017) directs exploration and production, including pollutant’’; federal agencies to reduce the regulatory on the [OCS], in order to maintain the ■ b. Revise the definition of burden on regulated entities and control Nation’s position as a global energy ‘‘Attainment area’’; regulatory costs. E.O. 13795 directs the leader and foster energy security and ■ c. In the definition of ‘‘Best available DOI to reconsider its proposed rule on resilience . . . while ensuring that any control technology’’, remove ‘‘air air quality compliance. The proposed such activity is safe and pollutant’’ everywhere it appears and rule would have changed BOEM’s air environmentally responsible.’’ Section 8 add in its place ‘‘criteria air pollutant quality regulatory program (AQRP) to specifically directs the Secretary to and VOC’’; align BOEM’s regulatory scheme with review the proposed rule and ■ d. Add a definition for ‘‘Criteria air various aspects of USEPA’s regulations ‘‘consistent with law, consider whether pollutant’’ in alphabetical order; under the CAA. That alignment would [it] . . . should be revised or ■ e. Revise the definitions of ‘‘Emission have resulted in an AQRP that imposed withdrawn.’’ Consequently, BOEM offsets’’, ‘‘Existing facility’’, and a significant increase in the regulatory reviewed the proposed rule through the ‘‘Nonattainment area’’; and burden on industry. In contrast, this section 2 policy lens and eliminated or ■ f. Add a definition for ‘‘Volatile final rule is limited in scope to those revised many of the provisions in this organic compound’’ in alphabetical provisions mandated by OCSLA and final rule by striking a balance between order. which do not impose additional cost OCS energy development and clean air The revisions and additions read as burdens on industry. As a result, there responsibilities consistent with this follows:
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§ 550.105 Definitions. (e) Non-exempt drilling units. A ■ d. Add the definitions for ‘‘Criteria air * * * * * description of how you will comply pollutant’’ and ‘‘Emission exemption Attainment area means, for any with § 550.303 when the projected threshold’’ in alphabetical order; criteria air pollutant, an area which is emissions reported under paragraph (a) ■ e. Revise the definitions of ‘‘Emission shown by monitored data or which is of this section are greater than the offsets’’ and ‘‘Existing facility’’; calculated by air quality modeling (or respective emission exemption ■ f. Add the definition for ‘‘National other methods determined by the thresholds (EET) calculated using the Ambient Air Quality Standard’’ in Administrator of the Environmental formulas in § 550.303(d). When BOEM alphabetical order; and Protection Agency (EPA) to be reliable) requires air quality dispersion ■ g. Revise the definitions of not to exceed any primary or secondary modeling, you must use the guidelines ‘‘Nonattainment area’’ and ‘‘Volatile ambient air quality standards in appendix W of 40 CFR part 51 for organic compound’’. established by EPA. dispersion modeling with a model The revisions and additions read as approved by the Director. You must also * * * * * follows: Criteria air pollutant means any air submit the best available meteorological pollutant for which the EPA has information and data consistent with § 550.302 Definitions concerning air established a primary or secondary the model(s) used. quality. national ambient air quality standard * * * * * * * * * * pursuant to section 109 of the Clean Air ■ 4. In § 550.249: Attainment area means, for any Act. ■ a. Revise paragraph (a) introductory criteria air pollutant, an area which is * * * * * text; shown by monitored data or which is Emission offsets mean emission ■ b. In paragraph (a)(2), remove ‘‘air calculated by air quality modeling (or reductions obtained from facilities, pollutant’’ and add in its place ‘‘criteria other methods determined by the either onshore or offshore, other than air pollutant, VOC, or TSP’’; and Administrator of EPA to be reliable) not the facility or facilities covered by the ■ c. Revise paragraph (e). to exceed any primary or secondary proposed Exploration Plan (EP), The revisions read as follows: ambient air quality standards Development and Production Plan § 550.249 What air emissions information established by EPA. (DPP), or Development Operations must accompany the DPP or DOCD? * * * * * Coordination Document (DOCD). * * * * * Criteria air pollutant means any air * * * * * (a) Projected emissions. Tables pollutant for which the EPA has Existing facility, as used in § 550.303, showing the projected emissions of established a primary or secondary means an Outer Continental Shelf (OCS) criteria air pollutants, volatile organic national ambient air quality standard facility described in an Exploration compounds (VOC), and total suspended pursuant to section 109 of the Clean Air Plan, a Development and Production particulates (TSP) generated by your Act. Plan, or a Development Operations proposed development and production Emission exemption threshold (EET) Coordination Document, approved activities. before June 2, 1980. means the rate of projected emissions, * * * * * calculated for a criteria air pollutant or * * * * * (e) Non-exempt facilities. A VOC or TSP, above which a facility Nonattainment area means, for any description of how you will comply would be subject to the requirements of criteria air pollutant, an area which is with § 550.303 when the projected § 550.303(e) through (i) or § 550.304(b) shown by monitored data or which is emissions reported under paragraph (a) through (e). calculated by air quality modeling (or of this section are greater than the other methods determined by the Emission offsets mean emission respective emission exemption reductions obtained from facilities, Administrator of EPA to be reliable) to thresholds (EET) calculated using the exceed any primary or secondary either onshore or offshore, other than formulas in § 550.303(d). When BOEM the facility or facilities covered by the ambient air quality standard established requires air quality dispersion by EPA. proposed Exploration Plan (EP), modeling, you must use the guidelines Development and Production Plan * * * * * in appendix W of 40 CFR part 51 for (DPP), or Development Operations Volatile organic compound (VOC) dispersion modeling with a model Coordination Document (DOCD). means any organic compound that is approved by the Director. You must also Existing facility, as used in § 550.303, emitted to the atmosphere as a vapor. submit the best available meteorological means an OCS facility described in an Unreactive compounds are excluded information and data consistent with Exploration Plan, a Development and from the preceding sentence of this the model(s) used. definition. Production Plan, or a Development * * * * * Operations Coordination Document * * * * * approved before June 2, 1980. ■ 3. In § 550.218, revise paragraphs (a) § 550.283 [Amended] introductory text and (e) to read as ■ 5. In § 550.283(a)(4), remove ‘‘air * * * * * follows: pollutant’’ and add in its place ‘‘criteria National Ambient Air Quality air pollutant, VOC, or TSP’’. Standard (NAAQS) means a national air § 550.218 What air emissions information ■ 6. In § 550.302: quality standard for any given criteria must accompany the EP? ■ a. Remove the definition of ‘‘Air air pollutant, established pursuant to * * * * * pollutant’’; section 109 of the Clean Air Act. (a) Projected emissions. Tables ■ b. Revise the definition of Nonattainment area means, for any showing the projected emissions of ‘‘Attainment area’’; criteria air pollutant, an area which is criteria air pollutants, volatile organic ■ c. In the definition of ‘‘Best available shown by monitored data or which is compounds (VOC), and total suspended control technology’’, remove ‘‘air calculated by air quality modeling (or particulates (TSP) generated by your pollutant’’ everywhere it appears and other methods determined by the proposed exploration activities. add in its place ‘‘criteria air pollutant Administrator of EPA to be reliable) to * * * * * and VOC’’; exceed any primary or secondary
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ambient air quality standard established ■ f. In paragraph (g)(2)(i)(B), remove ‘‘air EET = 3400*D2/3 for carbon monoxide by EPA. pollutant’’ everywhere it appears and (CO); and EET = 33.3*D for total * * * * * add in its place ‘‘criteria air pollutant’’; suspended particulates (TSP), sulfur Volatile organic compound (VOC) and dioxide (SO2), nitrogen oxides (NOX), means any organic compound that is ■ g. Revise paragraph (h) and the utilizing NO2 as the indicator pollutant emitted to the atmosphere as a vapor. heading of paragraph (j). for NOX, and VOC (where EET is the Unreactive compounds are excluded The revisions read as follows: emission exemption threshold from the preceding sentence of this expressed in short tons per year, and D definition. § 550.303 Facilities described in a new or revised Exploration Plan, Development and is the distance of the proposed facility ■ 7. In § 550.303: Production Plan, or Development from the closest onshore area of a State ■ a. Revise the section heading; Operations Coordination Document. expressed in statute miles). If the ■ b. In paragraphs (a) and (c), remove * * * * * amount of these projected emissions is ‘‘Exploration Plans and Development less than or equal to the emission and Production Plans’’ and add in its (d) Exemption formulas. To determine whether a facility described in an exemption threshold (EET) for the place ‘‘Exploration Plans, Development corresponding criteria air pollutant, and Production Plans, and Development initial, modified, supplemental, or revised Exploration Plan, Development VOC, and TSP, the facility is exempt Operations Coordination Documents’’; from further air quality review required ■ c. In paragraphs (b)(1) and (j), remove and Production Plan, or Development Operations Coordination Document is under paragraphs (e) through (i) of this ‘‘Exploration Plan or Development and section. Production Plan’’ and add in its place exempt from further air quality review, ‘‘Exploration Plan, Development and the lessee must use the highest annual- (e) Significance levels (SLs). (1) For a Production Plan, or Development total amount of emissions from the facility not exempt under paragraph (d) Operations Coordination Document’’; facility calculated for each criteria air of this section, the lessee must use a ■ d. Revise paragraphs (d), (e), and (f); pollutant, VOC, and TSP listed in BOEM approved air quality model to ■ e. In paragraphs (g)(1) and (2) § 550.249(a) or § 550.218(a) and determine whether projected emissions introductory text, remove ‘‘air pollutant compare these emissions to the from the facility result in an onshore other than VOC’’ add in its place emission exemption threshold (EET) ambient air concentration above any SL ‘‘criteria air pollutant’’; calculated using the following formulas: set forth in the following table:
TABLE 1 TO PARAGRAPH (e)(1)—SIGNIFICANCE LEVELS (SLS)
Averaging time 1 hour 3 hour 8 hour 24 hour Annual (mg/m3) (μg/m3) (mg/m3) (μg/m3) (μg/m3)
Criteria Air Pollutant: Sulfur Dioxide ...... 25.0 ...... 5.0 1.0 PM10 ...... 5.0 1.0 PM2.5 ...... 1.2 0.3 Nitrogen Dioxide 1 ...... 1.0 Carbon Monoxide...... 2.0 ...... 0.5 ......
1 NO2 is the indicator pollutant for NOX.
(2) In the event that the emissions of (h) Controls required on temporary § 550.218(a) and compare these TSP exceed the EET for TSP, the lessee facilities. The lessee must apply BACT emissions to the emission exemption must use a BOEM approved air quality to reduce projected emissions of any threshold (EET) calculated using the model to determine whether the criteria air pollutant or VOC from a following formulas: EET = 3400*D2/3 for projected emissions from the facility temporary facility that significantly carbon monoxide (CO); and EET = result in an onshore ambient air affect the air quality of an onshore area 33.3*D for total suspended particulates concentration above the SL for either of a State. (TSP), sulfur dioxide (SO2), nitrogen PM10 or PM2.5. * * * * * oxides (NOX), utilizing NO2 as the (f) Significance determinations. (1) (j) Review of facilities with emissions indicator pollutant for NOX and VOC The projected emissions of any criteria below the emission exemption (where EET is the emission exemption air pollutant from any facility that result thresholds. *** threshold expressed in short tons per in an onshore ambient air concentration * * * * * year, and D is the distance of the above a SL determined under paragraph ■ 8. In § 550.304, revise paragraphs (b), proposed facility from the closest (e) of this section for that criteria air (c), (d), and (e)(1) and the heading of onshore area of a State expressed in pollutant will be deemed to paragraph (f) to read as follows: statute miles). If the amount of these significantly affect the air quality of the projected emissions is less than or equal § 550.304 Existing facilities. onshore area for that criteria air to the emission exemption threshold pollutant. * * * * * (EET) for the corresponding criteria air (b) Exemption formulas. To determine pollutant, VOC, and TSP, the facility is (2) The projected emissions of VOC whether an existing facility is exempt exempt from further air quality review from any facility which is not exempt from further air quality review, the required under paragraphs (c) through under paragraph (d) of this section will lessee must use the highest annual-total (e) of this section. be deemed to significantly affect the air amount of emissions from the facility (c) Significance levels. For a facility quality of the onshore area for VOC. calculated for each criteria air pollutant, not exempt under paragraph (b) of this * * * * * VOC, and TSP listed in § 550.249(a) or section, the lessee must use a BOEM
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approved air quality model to determine air pollutant from any facility that result (1) The projected emissions of any whether the projected emissions from in an onshore ambient air concentration criteria air pollutant or VOC that the facility result in an onshore ambient above an SL determined under significantly affect the air quality of an air concentration above any SL set forth paragraph (c) of this section for that onshore area must be reduced through in § 550.303(e). In the event that the criteria air pollutant, will be deemed to the application of BACT. emissions of TSP exceed the EET for significantly affect the air quality of the * * * * * TSP, the lessee must use a BOEM onshore area for that criteria air approved air quality model to determine pollutant. (f) Review of facilities with emissions whether the projected emissions from (2) The projected emissions of VOC below the emission exemption the facility result in an onshore ambient from any facility, which is not exempt thresholds. *** air concentration above the SL for either under paragraph (b) of this section, will * * * * * PM10 or PM2.5. be deemed to significantly affect the air [FR Doc. 2020–11573 Filed 6–4–20; 8:45 am] (d) Significance determinations. (1) quality of the onshore area for VOC. BILLING CODE 4310–MR–P The projected emissions of any criteria (e) * * *
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Part VI
The President
Proclamation 10044—African-American Music Appreciation Month, 2020 Proclamation 10045—Great Outdoors Month, 2020 Proclamation 10046—National Caribbean-American Heritage Month, 2020 Proclamation 10047—National Homeownership Month, 2020 Proclamation 10048—National Ocean Month, 2020 Executive Order 13926—Advancing International Religious Freedom Memorandum of June 2, 2020—Providing Continued Federal Support for Governors’ Use of the National Guard To Respond to COVID–19 and To Facilitate Economic Recovery
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Federal Register Presidential Documents Vol. 85, No. 109
Friday, June 5, 2020
Title 3— Proclamation 10044 of May 29, 2020
The President African-American Music Appreciation Month, 2020
By the President of the United States of America
A Proclamation The lyrics and melodies of African-American music have played a powerful role in defining America’s unique soundscape. From the soulful streets of the Big Easy to the recording studios of Los Angeles, African-American music has shaped our American culture. During African-American Music Appreciation Month, we pay tribute to the monumental achievements of African-American artists who pioneered and evolved the blues, jazz, gospel, rock and roll, rap, hip-hop, and other iconic genres. Throughout our Nation’s history, African-American music has expressed the pain and suffering brought on by injustice as well as the faith and joy of the resilient American spirit. Sam Cooke’s triumphant ‘‘A Change Is Gonna Come’’ gave wind to the sails of millions of African Americans in their righteous fight for equality during the Civil Rights Movement. The divine voice of Mahalia Jackson, the ‘‘Queen of Gospel,’’ helped heal our grieving Nation in the days following the assassination of Martin Luther King, Jr. At major sporting events, African-American musical icons, such as Whitney Houston and Ray Charles, have captivated America with striking renditions of patriotic ballads such as the National Anthem and ‘‘America the Beautiful.’’ This month, we lost the Architect of Rock and Roll, Richard Wayne Penniman—better known and beloved as Little Richard—who is re- sponsible for breaking down racial barriers through the universal love of his music. He was an unforgettable entertainer, an innovator, and an Amer- ican icon. Our Nation mourns his passing. This month, we express our appreciation for the countless contributions of African-American singers, songwriters, and musicians, whose remarkable talents continue to inspire the soul of our Nation. With classic guitar riffs, memorable hymns, and uplifting beats, the works of African-American artists undeniably represent true musical excellence. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim June 2020 as African- American Music Appreciation Month. I call upon public officials, educators, and all the people of the United States to observe this month with appropriate activities and programs that raise awareness and appreciation of African- American music.
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IN WITNESS WHEREOF, I have hereunto set my hand this twenty-ninth day of May, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fourth.
[FR Doc. 2020–12415 Filed 6–4–20; 11:15 am] Billing code 3295–F0–P
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Proclamation 10045 of May 29, 2020
Great Outdoors Month, 2020
By the President of the United States of America
A Proclamation Our Nation is blessed with abundant natural beauty that can be enjoyed every season from coast to coast. During Great Outdoors Month, we celebrate the majestic mountains, forests, canyons, beaches, and rivers that provide recreation and renewal for all Americans, enriching our lives and strength- ening an enduring connection to our national heritage. Our parks, recreational areas, and public lands are some of our greatest national treasures. For centuries, Americans have looked to the sprawling expanse of America’s outdoor spaces as a source of adventure, sustenance, and inspiration. From the lands and waters that constitute our National Park System, to State, local, and city parks, to our own backyards, every unique experience of the great outdoors helps improve our health and offers opportunities for families, friends, and communities to connect over a shared appreciation for the natural world. My Administration remains committed to restoring and preserving our land, air, and waters while also opening up more recreational opportunities for all Americans. We have provided increased access to public lands, expanding hunting and fishing opportunities at national wildlife refuges and national fish hatcheries across 1.7 million acres. Last year, I was proud to sign the largest public lands legislation in a decade, designating 1.3 million new acres of wilderness and increasing recreational access for hunters, fish- ers, boaters, and campers. Additionally, I announced that the United States will be joining the One Trillion Trees Initiative, an ambitious effort to bring together government and private sector partners and further our com- mitment to maintaining our natural world. Through these actions, we are actively promoting a conservation ethic that drives responsible stewardship of our environment. Whether hiking on world-class trails, camping under the stars, or fishing our Nation’s abundant waterways, exploring the great outdoors provides adventurers of all ages endless opportunities to create lifelong memories. This month, we pause to appreciate the extraordinary natural beauty of our country, and we recommit to protecting and preserving our natural wonders for future generations. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim June 2020 as Great Outdoors Month. I urge all Americans to explore the great outdoors while acting as stewards of our lands and waters.
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IN WITNESS WHEREOF, I have hereunto set my hand this twenty-ninth day of May, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fourth.
[FR Doc. 2020–12416 Filed 6–4–20; 11:15 am] Billing code 3295–F0–P
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Proclamation 10046 of May 29, 2020
National Caribbean-American Heritage Month, 2020
By the President of the United States of America
A Proclamation From America’s earliest days, Caribbean Americans have contributed to the success, spirit, and character of our Nation. For generations, their skills, knowledge, innovation, and initiative have enhanced and advanced many aspects of our society. During National Caribbean-American Heritage Month, we celebrate the rich history and vibrant culture of the more than 4 million Americans with origins in the Caribbean. Caribbean Americans have helped improve our Nation by leading commu- nities, advancing science and medicine, and advocating for the common good. We are especially grateful for the Caribbean-American men and women who proudly wear our Nation’s uniform as members of the Armed Forces and those serving as first responders, medical professionals, and other essen- tial personnel on the front lines in the fight against the coronavirus. Our Nation is safer, stronger, and healthier because of their service and sacrifices. Caribbean Americans have also left indelible marks on American culture. Roberto Clemente, a native of Puerto Rico and legendary baseball player, is one of many shining examples. He not only had a stunning Hall of Fame baseball career, but he also dutifully served our Nation as a member of the United States Marine Corps Reserve for 6 years and served others throughout his life with profound care and compassion. Like so many other Caribbean Americans, he continues to inspire us today and remind us of the strong connection the United States will always have with the Caribbean region. The United States is also the primary trading partner for the Caribbean nations that make up our Nation’s ‘‘third border.’’ My Administration is dedicated to maintaining and strengthening our partnerships within the Caribbean regions, which are forged through bonds of friendship, diplomacy, and a shared commitment to democratic principles. We will continue stra- tegic engagement in the areas of human rights, maritime security, crime prevention and interdiction, education, health, energy, economic growth, and disaster recovery and relief. Stability in the Caribbean—achieved through increased trade, job creation and investment, and efforts to counter organized crime and illicit trafficking—ensures a more secure, prosperous United States. This month, we pay tribute to Caribbean Americans for all they have done to drive our country forward. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim June 2020 as National Caribbean-American Heritage Month. I encourage all Americans to join in celebrating the history, culture, and achievements of Caribbean Americans with appropriate ceremonies and activities.
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IN WITNESS WHEREOF, I have hereunto set my hand this twenty-ninth day of May, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fourth.
[FR Doc. 2020–12418 Filed 6–4–20; 11:15 am] Billing code 3295–F0–P
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Proclamation 10047 of May 29, 2020
National Homeownership Month, 2020
By the President of the United States of America
A Proclamation For generations, homeownership has sustained and empowered Americans. Recently, we have been reminded that our homes are central to our health, our independence, and the well-being of our families. In response to the coronavirus outbreak, millions of Americans have transformed their homes into safe havens, virtual workplaces, classrooms, and, most importantly, places to nurture hopes and dreams for the future. During National Homeown- ership Month, we acknowledge the many benefits of secure and affordable homeownership. Thanks to my Administration’s swift and decisive action to assist millions of homeowners affected by the coronavirus, we have protected the wealth that hardworking Americans have built up through homeownership. To help ensure that homeowners do not lose their homes unnecessarily due to this crisis, I signed into law the unprecedented Coronavirus Aid, Relief, and Economic Security (CARES) Act. This legislation provided direct cash pay- ments to Americans and authorized mortgage-payment relief for eligible homeowners with federally backed mortgages struggling to make their pay- ments. As our Nation’s economy begins to recover, my Administration remains focused on getting government out of the way of responsible homeownership and reforming our housing finance system. We have supported affordable homeownership by eliminating outdated and unnecessary regulations, and we are strengthening investment in underserved communities through the designation of Opportunity Zones. Through the work of the White House Council on Eliminating Regulatory Barriers to Affordable Housing, we are continuing to collaborate with States and local jurisdictions to ease the burden of regulations that needlessly hinder opportunities for Americans to become homeowners. Additionally, last year, the Department of the Treas- ury and the Department of Housing and Urban Development released plans to define the limited role of the Federal Government in the housing finance system, enhance taxpayer protections against future bailouts, and promote competition in the housing finance system. This month, we renew our commitment to helping pave the way for more Americans to achieve the financial benefits and stability of homeownership. Building on the roaring success we were experiencing prior to the coronavirus pandemic, our economy will rebound and create the jobs that Americans need to achieve the American dream of owning a home. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim June 2020 as National Homeownership Month.
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IN WITNESS WHEREOF, I have hereunto set my hand this twenty-ninth day of May, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fourth.
[FR Doc. 2020–12421 Filed 6–4–20; 11:15 am] Billing code 3295–F0–P
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Proclamation 10048 of May 29, 2020
National Ocean Month, 2020
By the President of the United States of America
A Proclamation Our ocean and coastal waterways are essential to our national security, international trade, maritime commerce, global competitiveness, and trans- portation. The jobs of more than 3 million Americans depend on our ocean economy, which generates more than $300 billion of economic activity annu- ally. During National Ocean Month, we reaffirm our commitment to respon- sible stewardship of our ocean resources to strengthen and expand economic opportunities, while also ensuring that the natural beauty and wonder of the oceans are preserved and maintained for future generations. There is much that remains undiscovered in the world’s vast oceans, and my Administration is working to improve our understanding of its incredible resources. Today, roughly 18.6 percent of our Nation’s oil and gas production is conducted offshore, employing thousands of Americans and helping keep prices low for American families and businesses. There is enormous oppor- tunity for our country to bolster these numbers and expand this critical and profitable industry, generating even more jobs for hardworking Ameri- cans. Only 40 percent of the United States Exclusive Economic Zone (EEZ), an oceanic area larger than the combined land area of the 50 States, has been mapped. Even less of the EEZ’s natural resources have been character- ized through exploration. For this reason, last year, I signed a historic Presidential Memorandum that prioritizes mapping, exploring, and character- izing our ocean waters. Building upon these efforts, last month I signed an Executive Order Promoting American Seafood Competitiveness and Eco- nomic Growth. This Executive Order will increase America’s competitiveness in the seafood industry and create new opportunities for American products in the global marketplace, including through continued support of our com- mercial fisheries and promotion of domestic aquaculture. My Administration is committed to expanding maritime commerce, increasing seafood produc- tion, promoting conservation, enhancing national security, and advancing energy exploration, development, and production by expanding efforts to study, understand, and unlock the full potential of our oceans. As we continue to unlock the economic opportunities in these flourishing bodies of water, my Administration is also diligently working to put an end to one of the biggest challenges facing the global environment: increased pollution in the oceans. Recognizing that 80 percent of marine litter comes from land-based resources resulting from insufficient solid waste manage- ment, we have been working hard, with our domestic and international partners, to improve waste management systems around the world and deploy innovative technologies to put an end to the mass amounts of litter washing into our shared waters. In addition, I signed the Save Our Seas Act of 2018 into law, which prioritizes cleanup activities and addresses inter- national sources of pollution. The task of balancing the uses of America’s oceans cannot be accomplished by the Federal Government alone. The 2019 White House Summit on Partner- ships in Ocean Science and Technology highlighted that our continued
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use, conservation, observation, and exploration of the ocean requires innova- tive engagement and collaboration with key partners, including private indus- tries, States, territories, academia, philanthropic groups, Native American and Tribal organizations, and other stakeholders. By working together and harnessing our collective power, knowledge, and experience, we can better promote resource stewardship, create and maintain jobs for American work- ers, and ensure our Nation’s prosperity while conserving the marine environ- ment. Many of the most pressing challenges facing mankind may have solutions in the oceans. My Administration is committed to advancing technology and innovation to better understand how our oceans may help us address current and future challenges facing our Nation. Establishing energy infra- structure, discovering and developing novel marine-derived pharmaceuticals, improving weather predictions, and advancing offshore aquaculture oper- ations are just some examples of innovative initiatives supported by my Administration. These bold efforts have the potential to promote economic prosperity, create jobs, and strengthen our maritime and homeland security for current and future generations of Americans. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim June 2020 as National Ocean Month. This month, I call upon Americans to reflect on the value and importance of oceans not only to our security, environment, and economy but also as a source of recreation and enjoyment. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-ninth day of May, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fourth.
[FR Doc. 2020–12428 Filed 6–4–20; 11:15 am] Billing code 3295–F0–P
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Executive Order 13926 of June 2, 2020
Advancing International Religious Freedom
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section 1. Policy. (a) Religious freedom, America’s first freedom, is a moral and national security imperative. Religious freedom for all people worldwide is a foreign policy priority of the United States, and the United States will respect and vigorously promote this freedom. As stated in the 2017 National Security Strategy, our Founders understood religious freedom not as a creation of the state, but as a gift of God to every person and a right that is fundamental for the flourishing of our society. (b) Religious communities and organizations, and other institutions of civil society, are vital partners in United States Government efforts to advance religious freedom around the world. It is the policy of the United States to engage robustly and continually with civil society organizations—including those in foreign countries—to inform United States Government policies, programs, and activities related to international religious freedom. Sec. 2. Prioritization of International Religious Freedom. Within 180 days of the date of this order, the Secretary of State (Secretary) shall, in consulta- tion with the Administrator of the United States Agency for International Development (USAID), develop a plan to prioritize international religious freedom in the planning and implementation of United States foreign policy and in the foreign assistance programs of the Department of State and USAID. Sec. 3. Foreign Assistance Funding for International Religious Freedom. (a) The Secretary shall, in consultation with the Administrator of USAID, budget at least $50 million per fiscal year for programs that advance inter- national religious freedom, to the extent feasible and permitted by law and subject to the availability of appropriations. Such programs shall include those intended to anticipate, prevent, and respond to attacks against individ- uals and groups on the basis of their religion, including programs designed to help ensure that such groups can persevere as distinct communities; to promote accountability for the perpetrators of such attacks; to ensure equal rights and legal protections for individuals and groups regardless of belief; to improve the safety and security of houses of worship and public spaces for all faiths; and to protect and preserve the cultural heritages of religious communities. (b) Executive departments and agencies (agencies) that fund foreign assist- ance programs shall ensure that faith-based and religious entities, including eligible entities in foreign countries, are not discriminated against on the basis of religious identity or religious belief when competing for Federal funding, to the extent permitted by law. Sec. 4. Integrating International Religious Freedom into United States Diplo- macy. (a) The Secretary shall direct Chiefs of Mission in countries of par- ticular concern, countries on the Special Watch List, countries in which there are entities of particular concern, and any other countries that have engaged in or tolerated violations of religious freedom as noted in the Annual Report on International Religious Freedom required by section 102(b) of the International Religious Freedom Act of 1998 (Public Law 105–292), as amended (the ‘‘Act’’), to develop comprehensive action plans to inform and support the efforts of the United States to advance international religious
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freedom and to encourage the host governments to make progress in elimi- nating violations of religious freedom. (b) In meetings with their counterparts in foreign governments, the heads of agencies shall, when appropriate and in coordination with the Secretary, raise concerns about international religious freedom and cases that involve individuals imprisoned because of their religion. (c) The Secretary shall advocate for United States international religious freedom policy in both bilateral and multilateral fora, when appropriate, and shall direct the Administrator of USAID to do the same. Sec. 5. Training for Federal Officials. (a) The Secretary shall require all Department of State civil service employees in the Foreign Affairs Series to undertake training modeled on the international religious freedom training described in section 708(a) of the Foreign Service Act of 1980 (Public Law 96–465), as amended by section 103(a)(1) of the Frank R. Wolf International Religious Freedom Act (Public Law 114–281). (b) Within 90 days of the date of this order, the heads of all agencies that assign personnel to positions overseas shall submit plans to the President, through the Assistant to the President for National Security Affairs, detailing how their agencies will incorporate the type of training described in sub- section (a) of this section into the training required before the start of overseas assignments for all personnel who are to be stationed abroad, or who will deploy and remain abroad, in one location for 30 days or more. (c) All Federal employees subject to these requirements shall be required to complete international religious freedom training not less frequently than once every 3 years. Sec. 6. Economic Tools. (a) The Secretary and the Secretary of the Treasury shall, in consultation with the Assistant to the President for National Security Affairs, and through the process described in National Security Presidential Memorandum–4 of April 4, 2017 (Organization of the National Security Council, the Homeland Security Council, and Subcommittees), develop rec- ommendations to prioritize the appropriate use of economic tools to advance international religious freedom in countries of particular concern, countries on the Special Watch List, countries in which there are entities of particular concern, and any other countries that have engaged in or tolerated violations of religious freedom as noted in the report required by section 102(b) of the Act. These economic tools may include, as appropriate and to the extent permitted by law, increasing religious freedom programming, realign- ing foreign assistance to better reflect country circumstances, or restricting the issuance of visas under section 604(a) of the Act. (b) The Secretary of the Treasury, in consultation with the Secretary of State, may consider imposing sanctions under Executive Order 13818 of December 20, 2017 (Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption), which, among other things, implements the Global Magnitsky Human Rights Accountability Act (Public Law 114– 328). Sec. 7. Definitions. For purposes of this order: (a) ‘‘Country of particular concern’’ is defined as provided in section 402(b)(1)(A) of the Act; (b) ‘‘Entity of particular concern’’ is defined as provided in section 301 of the Frank R. Wolf International Religious Freedom Act (Public Law 114– 281); (c) ‘‘Special Watch List’’ is defined as provided in sections 3(15) and 402(b)(1)(A)(iii) of the Act; and (d) ‘‘Violations of religious freedom’’ is defined as provided in section 3(16) of the Act. Sec. 8. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
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(i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
THE WHITE HOUSE, June 2, 2020.
[FR Doc. 2020–12430 Filed 6–4–20; 11:15 am] Billing code 3295–F0–P
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Memorandum of June 2, 2020 Providing Continued Federal Support for Governors’ Use of the National Guard To Respond to COVID–19 and To Facili- tate Economic Recovery
Memorandum for the Secretary of Defense [and] the Secretary of Home- land Security
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121–5207 (the ‘‘Stafford Act’’), and section 502 of title 32, United States Code, it is hereby ordered as follows: Section 1. Policy. It continues to be the policy of the United States to foster close cooperation and mutual assistance between the Federal Govern- ment and the States and territories in the battle against the threat posed by the spread of COVID–19, especially as the United States transitions to a period of increased economic activity and recovery in those areas of the Nation where the threat posed by COVID–19 has been sufficiently mitigated. To date, activated National Guard forces around the country have provided critical support to Governors as the Governors work to address the needs of those populations within their respective States and territories especially vulnerable to the effects of COVID–19, including those in nursing homes, assisted living facilities, and other long-term care or congregate set- tings. This need to focus efforts to protect especially vulnerable populations from the threat posed by COVID–19 will persist. Therefore, to continue to provide maximum support to the States and territories as they make decisions about the responses required to address local conditions in their respective jurisdictions with respect to combatting the threat posed by COVID–19 and, where appropriate, facilitating their economic recovery, I am taking the actions set forth in section 2 of this memorandum: Sec. 2. Termination and Extension. The 100 percent Federal cost share for the States’ and territories’ use of National Guard forces authorized pursu- ant to my prior memoranda dated March 22, 28, and 30, 2020, and April 2, 7, and 13, 2020, each titled ‘‘Providing Federal Support for Governors’ Use of the National Guard to Respond to COVID–19,’’ and my prior memo- randa dated April 20 and 28, 2020, and May 8 and 20, 2020, each titled ‘‘Providing Continued Federal Support for Governors’ Use of the National Guard to Respond to COVID–19 and to Facilitate Economic Recovery,’’ shall extend to, and shall be available for orders of any length authorizing duty through August 21, 2020. Such orders include duty necessary to comply with health protection protocols recommended by the Centers for Disease Control and Prevention of the Department of Health and Human Services or other health protection measures agreed to by the Department of Defense and the Federal Emergency Management Agency of the Department of Home- land Security. Sec. 3. General Provisions. (a) Nothing in this memorandum shall be con- strued to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
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(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (d) The Secretary of Defense is authorized and directed to publish this memorandum in the Federal Register.
THE WHITE HOUSE, Washington, June 2, 2020
[FR Doc. 2020–12431 Filed 6–4–20; 11:15 am] Billing code 3295–F0–P
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Reader Aids Federal Register Vol. 85, No. 109 Friday, June 5, 2020
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JUNE
Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 39...... 34088, 34090 Presidential Documents 2 CFR 71...... 33536 910...... 32977 Executive orders and proclamations 741–6000 Proposed Rules: The United States Government Manual 741–6000 3 CFR 39 ...... 33043, 33046, 33583, 34118, 34121, 34136, 34139, Other Services Proclamations: 34141, 34371, 34375 Electronic and on-line services (voice) 741–6020 10043...... 34353 71 ...... 33587, 33589, 33590, Privacy Act Compilation 741–6050 10044...... 34941 34144, 34146, 34148 10045...... 34943 10046...... 34945 15 CFR ELECTRONIC RESEARCH 10047...... 34947 744...... 34495, 34503 10048...... 34949 World Wide Web 774...... 34306 Executive Orders: Full text of the daily Federal Register, CFR and other publications 13925...... 34079 16 CFR is located at: www.govinfo.gov. 13926...... 34951 1253...... 33015 Federal Register information and research tools, including Public Administrative Orders: Proposed Rules: Inspection List and electronic text are located at: Memorandums: 317...... 34548 www.federalregister.gov. Memorandum of June 2, 2020 ...... 34955 17 CFR E-mail 7 CFR 229...... 33290 FEDREGTOC (Daily Federal Register Table of Contents Electronic 230...... 33290 1...... 34085 Mailing List) is an open e-mail service that provides subscribers 232...... 33290 with a digital form of the Federal Register Table of Contents. The Proposed Rules: 239...... 33290 digital form of the Federal Register Table of Contents includes 301...... 34537 240...... 33020, 33290 HTML and PDF links to the full text of each document. 9 CFR 243...... 33290 249...... 33290 To join or leave, go to https://public.govdelivery.com/accounts/ Proposed Rules: 270...... 33290 USGPOOFR/subscriber/new, enter your email address, then 310...... 33031 274...... 33290 follow the instructions to join, leave, or manage your 352...... 33034 subscription. 19 CFR 10 CFR PENS (Public Law Electronic Notification Service) is an e-mail Proposed Rules: service that notifies subscribers of recently enacted laws. 9...... 33527 24...... 34549, 34836 50...... 34087 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 111...... 34549, 34836 35...... 33527 and select Join or leave the list (or change settings); then follow 21 CFR the instructions. Proposed Rules: 9...... 33581 112...... 34508 FEDREGTOC and PENS are mailing lists only. We cannot 35...... 33581 573...... 33538 respond to specific inquiries. 72...... 33582 Reference questions. Send questions and comments about the 170...... 34370 26 CFR Federal Register system to: [email protected] 431 ...... 33036, 34111, 34541 Proposed Rules: 1...... 34050 The Federal Register staff cannot interpret specific documents or 12 CFR regulations. 3...... 32980 27 CFR 6...... 32980 9...... 34095 FEDERAL REGISTER PAGES AND DATE, JUNE 7...... 33530 18...... 33539 25...... 34734 19...... 33539 32977–33526...... 1 30...... 32991 24...... 33539 33527–34084...... 2 160...... 33530 25...... 33539 34085–34352...... 3 195...... 34734 26...... 33539 34353–34492...... 4 208...... 32980, 32991 27...... 33539 34493–34956...... 5 217...... 32980 28...... 33539 324...... 32980 30...... 33539 364...... 32991 70...... 33539 741...... 32991 1005...... 34870 29 CFR Proposed Rules: Proposed Rules: 745...... 34545 1614...... 33049 13 CFR 30 CFR 120...... 33004, 33010 550...... 34912 14 CFR 31 CFR 29...... 34493 569...... 34510
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