Vol. 85 Wednesday, No. 185 September 23, 2020

Pages 59643–60046

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 85, No. 185

Wednesday, September 23, 2020

Agriculture Department Employment and Training Administration See Animal and Plant Health Inspection Service NOTICES See Rural Housing Service Change in Status of an Extended Benefit Program: Nebraska, 59825 Animal and Plant Health Inspection Service NOTICES Energy Department Environmental Assessments; Availability, etc.: Cogongrass Control Efforts in Alabama, Georgia, See Federal Energy Regulatory Commission NOTICES Mississippi, and South Carolina, 59735 Energy Conservation Program: Army Department Petition for Waiver of GE Appliances, a Haier Company NOTICES from the Room Air Conditioner Test Procedure; Environmental Impact Statements; Availability, etc.: Grant of Interim Waiver, 59770–59778 Army Training Land Retention at Pohakuloa Training Meetings: Area in Hawai’i; Correction, 59753–59754 Electricity Advisory Committee, 59769–59770 Secretary of Energy Advisory Board, 59768–59769 Civil Rights Commission NOTICES Environmental Protection Agency Meetings: RULES Maryland Advisory Committee, 59735–59736 Air Quality State Implementation Plans; Approvals and Promulgations: Commerce Department California; San Joaquin Valley Unified Air Pollution See International Trade Administration Control District and Feather River Air Quality See National Oceanic and Atmospheric Administration Management District, 59672 PROPOSED RULES Commodity Futures Trading Commission Air Quality State Implementation Plans; Approvals and PROPOSED RULES Promulgations: Margin Requirements for Uncleared Swaps for Swap California; Northern Sierra Air Quality Management Dealers and Major Swap Participants, 59702–59718 District; Stationary Source Permits, 59729–59732 Community Development Financial Institutions Fund NOTICES Cancellation Order for Certain Pesticide Registrations and NOTICES Amendments to Terminate Uses, 59793–59796 Funding Opportunity: Clean Water Act; Final Affirmative Determination: Allocation Availability Inviting Applications for the Virginia; Sarah Creek and Perrin River Vessel Sewage No- Calendar Year 2020 Allocation Round of the New Discharge Zone, 59796–59797 Markets Tax Credit Program, 59853–59862 Clean Water Act; Tentative Affirmative Determination: Council of the Inspectors General on Integrity and Maryland; City of Annapolis and Anne Arundel County Efficiency Vessel Sewage No-Discharge Zone for Thirteen NOTICES Waters, 59788–59793 Senior Executive Service Performance Review Board Membership, 59749–59753 Executive Office for Immigration Review PROPOSED RULES Defense Department Procedures for Asylum and Withholding of Removal, See Army Department 59692–59700 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59754 Federal Aviation Administration Meetings: RULES Defense Health Board, 59756–59757 Airworthiness Directives: Privacy Act; Systems of Records, 59754–59768 Bell Helicopter Textron Canada Limited Helicopters, 59661–59663 Drug Enforcement Administration MD Helicopters Inc. (MDHI), Helicopters, 59663–59665 NOTICES Amendment of Class E Airspace: Importer of Controlled Substances Application: Frankfort, MI, 59667–59668 Caligor Coghlan Pharma Services, 59824 Amendment of Phoenix Sky Harbor Class Legal Description, 59665–59667 Education Department Removal of Colored Federal Airways Amber 7, Green 11, RULES and Amendment of Amber 1: Direct Grant Programs; State-Administered Formula Grant Alaska, 59668–59669 Programs; Non Discrimination on the Basis of Sex in PROPOSED RULES Education Programs or Activities Receiving Federal Amendment of Class and E Airspace: Financial Assistance; etc., 59916–59982 Helena, MT, 59700–59702

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Federal Communications Commission Food and Drug Administration RULES PROPOSED RULES Assessment and Collection of Regulatory Fees for Fiscal Regulations Regarding Intended Uses, 59718–59729 Year 2020, 59864–59914 Requirements for Additional Traceability Records for Certain Foods, 59984–60038 Federal Deposit Insurance Corporation NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals: Submissions, and Approvals, 59797–59800 Use of Public Human Genetic Variant Databases to Support Clinical Validity for Genetic and Genomic- Based In Vitro Diagnostics, 59801–59803 Federal Energy Regulatory Commission Drug Products Not Withdrawn from Sale for Reasons of NOTICES Safety or Effectiveness: Application: PREXXARTAN (Valsartan) Oral Solution, 20 Milligrams/ Duke Energy Progress, LLC, 59778–59779 5 Milliliters and 80 Milligrams/20 Milliliters, 59803 Combined Filings, 59779, 59781–59782 Guidance: Environmental Assessments; Availability, etc.: Draft Guidance for Cannabidiol, 59804–59805 Northern Natural Gas Co.; Clifton to Palmyra A-Line Meetings: Abandonment Project, 59779–59780 Cannabidiol and Other Cannabinoids: Sex and Gender Equipment and Services Produced or Provided by Certain Differences in Use and Responses, 59804 Entities Identified as Risks to National Security, 59785– 59788 Health and Human Services Department Initial Market-Based Rate Filings Including Requests for See Food and Drug Administration Blanket Section 204 Authorizations: See Health Resources and Services Administration Townsite Solar, LLC, 59784 See National Institutes of Health Institution of Section 206 Proceeding and Refund Effective NOTICES Date: Agency Information Collection Activities; Proposals, PJM Interconnection, LLC, 59783 Submissions, and Approvals, 59809–59810 License Application: Northern States Power Co.–Wisconsin, 59783–59784 Health Resources and Services Administration Permit Application: NOTICES Kinetic Power, LLC, 59782–59783 Geographic Eligibility for Federal Office of Rural Health Nevada PSH Energy Storage, LLC, 59780–59781 Policy Grants, 59806–59809 Petition for Declaratory Order: Meetings: Rockies Express Pipeline, LLC, 59778 Council on Graduate Medical Education; Correction, Supplemental Notice of Technical Conference: 59805–59806 Carbon Pricing in Organized Wholesale Electricity Markets, 59785 Homeland Security Department See U.S. Customs and Border Protection RULES Federal Maritime Commission Asylum Interview Interpreter Requirement Modification NOTICES Due to COVID–19, 59655–59661 Agreements Filed, 59800 Ratification of Department Actions, 59651–59654

Federal Motor Carrier Safety Administration Housing and Urban Development Department NOTICES NOTICES Entry-Level Driver Training: Agency Information Collection Activities; Proposals, United Parcel Service, Inc.; Reconsideration of Denial of Submissions, and Approvals: Application for Exemption, 59850–59851 Emergency Waivers Reporting, 59816–59817 Qualification of Drivers; Exemption Applications: Grant Drawdown Payment Request/Line of Credit Control Epilepsy and Seizure Disorders, 59848–59850 System, 59817–59818 Hearing, 59847–59848, 59851–59853 Interior Department Federal Transit Administration See Fish and Wildlife Service See Ocean Energy Management Bureau RULES NOTICES Project Management Oversight, 59672–59681 Meetings: Exxon Valdez Oil Spill Public Advisory Committee, Fish and Wildlife Service 59821–59822 PROPOSED RULES Endangered and Threatened Species: International Trade Administration Removal of the Nashville Crayfish from Federal List, NOTICES 59732–59734 Antidumping or Countervailing Duty Investigations, Orders, NOTICES or Reviews: Endangered and Threatened Species: Stainless Steel Butt-Weld Pipe Fittings from Italy, 59736– Recovery Permit Application, 59818–59819 59737 Permit Application: Foreign Endangered Species; Marine Mammals, 59819– Justice Department 59821 See Drug Enforcement Administration

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See Executive Office for Immigration Review Postal Regulatory Commission NOTICES Labor Department New Postal Products, 59833 See Employment and Training Administration See Occupational Safety and Health Administration Postal Service NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings; Sunshine Act, 59834 Submissions, and Approvals: Concrete and Masonry Construction Standard, 59825– Presidential Documents 59826 PROCLAMATIONS Logging Operations Standards, 59826 Special Observances: Producer Price Index Survey, 59826–59827 Minority Enterprise Development Week (Proc. 10073), Senior Executive Service: 59643–59644 Performance Review Board Appointments, 59827–59828 National Hispanic Heritage Month (Proc. 10076), 60039– 60042 National Institutes of Health National Historically Black Colleges and Universities NOTICES Week (Proc. 10075), 59647–59648 Building Interdisciplinary Research Careers in Women’s Prescription Opioid and Heroin Epidemic Awareness Health Annual Meeting, and the Specialized Centers of Week (Proc. 10074), 59645–59646 EXECUTIVE ORDERS Research Excellence Annual Meeting Keynote Address, Health and Medical Care: 59814 Prescription Drug Prices; Reduction Efforts (EO 13948), Meetings: 59649–59650 Center for Scientific Review, 59810–59814 Iran; Blocking Property of Certain Persons With Respect to National Cancer Institute, 59811–59812, 59814 Conventional Arms Activities (EO 13949), 60043–60046 National Institute of Nursing Research, 59812–59813, 59815 Rural Housing Service National Institute on Aging, 59815 PROPOSED RULES Multi-Family Housing Direct Loan Programs: National Oceanic and Atmospheric Administration Changes Related to Rental Assistance and Asset NOTICES Management, 59682–59692 Takes of Marine Mammals Incidental to Specified Activities: Securities and Exchange Commission Seattle Multimodal Project at Colman Dock in NOTICES Washington State, 59737–59749 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59844–59845 National Science Foundation Order Granting Exemption Applications: NOTICES Nasdaq BX, Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Agency Information Collection Activities; Proposals, Nasdaq MRX, LLC, and Nasdaq PHLX, LLC, 59843– Submissions, and Approvals: 59844 Graduate Research Fellowships Program, 59831 Self-Regulatory Organizations; Proposed Rule Changes: Cboe BZX Exchange, Inc., 59836–59843 National Security Commission on Artificial Intelligence Nasdaq PHLX, LLC, 59834–59836 NOTICES The Nasdaq Stock Market, LLC, 59845–59847 Meetings: National Security Commission on Artificial Intelligence, Surface Transportation Board 59830–59831 NOTICES Solicitation of Written Comments: Quarterly Rail Cost Adjustment Factor, 59847 National Security Commission on Artificial Intelligence, Transportation Department 59829–59830 See Federal Aviation Administration Nuclear Regulatory Commission See Federal Motor Carrier Safety Administration See Federal Transit Administration NOTICES Environmental Impact Statements; Availability, etc.: Treasury Department Interim Storage Partners Consolidated Interim Storage See Community Development Financial Institutions Fund Facility Project, 59831–59833 U.S. Customs and Border Protection Occupational Safety and Health Administration RULES NOTICES Temporary Travel Restrictions Applicable to Land Ports of Grant of Expansion of Recognition: Entry and Ferries Service Between the QAI Laboratories, Ltd., 59828–59829 and Canada, 59670–59672 Temporary Travel Restrictions Applicable to Land Ports of Ocean Energy Management Bureau Entry and Ferries Service Between the United States NOTICES and Mexico, 59669–59670 Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Geological and Geophysical Explorations of the Outer Submissions, and Approvals: Continental Shelf, 59822–59824 Create/Update Importer Identity Form, 59815–59816

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Part V Presidential Documents, 60039–60046 Separate Parts In This Issue

Part II Reader Aids Federal Communications Commission, 59864–59914 Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice Part III of recently enacted public laws. Education Department, 59916–59982 To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/ Part IV accounts/USGPOOFR/subscriber/new, enter your e-mail Health and Human Services Department, Food and Drug address, then follow the instructions to join, leave, or Administration, 59984–60038 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 Proclamations: 10073...... 59643 10074...... 59645 10075...... 59647 10076...... 60041 Executive Orders: 13948...... 59649 13949...... 60043 6 CFR Ch. I ...... 59651 7 CFR Proposed Rules: 3560...... 59682 8 CFR Ch. I ...... 59651 208...... 59655 Proposed Rules: 1003...... 59692 1208...... 59692 1240...... 59692 14 CFR 39 (2 documents) ...... 59661, 59663 71 (3 documents) ...... 59665, 59667, 59668 Proposed Rules: 71...... 59700 17 CFR Proposed Rules: 23...... 59702 19 CFR Ch. I (4 documents)...... 59651, 59669, 59670 Ch. IV...... 59651 21 CFR Proposed Rules: 1...... 59984 201...... 59718 801...... 59718 34 CFR 75...... 59916 76...... 59916 106...... 59916 606...... 59916 607...... 59916 608...... 59916 609...... 59916 40 CFR 52...... 59672 Proposed Rules: 52...... 59729 47 CFR 1...... 59864 49 CFR 633...... 59672 50 CFR Proposed Rules: 17...... 59732

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Federal Register Presidential Documents Vol. 85, No. 185

Wednesday, September 23, 2020

Title 3— Proclamation 10073 of September 11, 2020

The President Minority Enterprise Development Week, 2020

By the President of the United States of America

A Proclamation Each day, more than one million minority-owned employers in the United States contribute to the economic vitality of our Nation. These incredible enterprises uplift their surrounding communities and help fuel the futures, livelihoods, and dreams of Americans throughout the country. During Minor- ity Enterprise Development Week, we celebrate the contributions of our great minority-owned businesses and reaffirm our commitment to supporting their continued growth, development, and success. Since my first day in office, I have been committed to fostering an environ- ment where all businesses, including minority-owned businesses, can thrive. The historic 2017 Tax Cuts and Jobs Act provided for the biggest tax cuts and reforms in American history, benefitting all Americans. This legislation also created Opportunity Zones, a landmark program that encourages invest- ment in distressed communities and creates jobs for those who are most in need of opportunities for economic empowerment. My Administration has also cut burdensome regulations at an unprecedented rate, loosening Government restraints on growth and allowing minority-owned businesses to thrive. To reinforce our commitment to these critical enterprises, in April of this year, the Department of Commerce, through the Minority Business Development Agency (MBDA), announced the creation of the Minority Busi- ness Enterprise Inner City Innovation HUBs, which will award $2.8 million over 2 years to support minority-owned businesses. Through this initiative, we are helping to fund and sustain minority-owned startups, including those that support digital innovation, machine learning and artificial intel- ligence, and technology transfer. My Administration has also been relentlessly committed to helping minority- owned businesses recover from the economic hardships brought on by the coronavirus pandemic. As part of the historic Coronavirus Aid, Relief, and Economic Security (CARES) Act, which I signed into law in March of this year, the Federal Government has allocated $10 million in supplemental funding to MBDA Business Centers and minority chambers of commerce to provide training and advising services for minority business enterprises, empowering them to be leaders in our economic recovery. In addition, the nearly 9,000 Opportunity Zones created by the Tax Cuts and Jobs Act have produced $75 billion in investment for countless minority neighbor- hoods throughout the United States. My Administration understands that supporting minority businesses promotes a strong national economy, and we will do everything in our power to assist minority-owned businesses as our Nation continues our economic resurgence. This week and every week, we celebrate the vast contributions minority- owned businesses make to our great country. As President, I will always proudly stand by minority entrepreneurs and their businesses. My Adminis- tration will continue to promote their interests and decrease regulatory bur- dens to help them unleash their full potential. NOW, THEREFORE, I, DONALD . 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 September 13 through

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September 19, 2020, as Minority Enterprise Development Week. I call upon the people of the United States to observe this week with programs, cere- monies, and activities to recognize the many contributions of American minority business enterprises. IN WITNESS WHEREOF, I have hereunto set my hand this eleventh day of September, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fifth.

[FR Doc. 2020–21114 Filed 9–22–20; 8:45 am] Billing code 3295–F0–P

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Proclamation 10074 of September 11, 2020 Prescription Opioid and Heroin Epidemic Awareness Week, 2020

By the President of the United States of America

A Proclamation During Prescription Opioid and Heroin Epidemic Awareness Week, we reaf- firm our unwavering commitment to ending the opioid crisis in our country, and we pledge to help our friends, family, and colleagues with addiction as they work toward a drug-free life. Addiction undercuts human personal potential, damages families, and disrupts relationships. This month, and every month, we must continue to raise awareness about the dangers of opioid misuse and resolve to build a healthier and happier Nation. Since my first day in office, my Administration has taken aggressive action to confront and dismantle the driving forces behind the opioid crisis. In October 2017, we declared the opioid crisis a public health emergency, and in 2018, we secured $6 billion in new funding to fight the opioid crisis. Most recently, I signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which strengthened these efforts by providing millions of dollars in emergency grant funding to healthcare providers treating those with substance use disorders. Additionally, to ensure that access to addiction support services remains uninterrupted, I eased the regulatory burdens on the Drug Enforcement Administration and the Department of Health and Human Services, which are now ensuring greater access to treatment by expanding telehealth options. To fight over prescribing, a significant contributor to the widespread opioid addiction, my Administration launched the Safer Prescribing Plan in 2018, which built on our early progress and set an ambitious goal of cutting opioid prescription fills by one-third within 3 years. This initiative is a major reason why the total amount of opioid prescriptions filled in America has dropped by 31 percent since I took office. We have also developed partnerships between the Office of National Drug Control Policy, the Truth Initiative, and the Ad Council to educate young adults about the dangers of misusing opioids. These efforts are preventing Americans from falling victim to the potent and dangerous grip of opioid addiction. My Administration is also taking decisive action to keep dangerous drugs out of our country. Synthetic opioids are extremely deadly and generally originate outside of the United States. Our Nation’s law enforcement officers are working night and day to keep this poison from crossing our borders. In 2018 alone, they seized almost 5,000 pounds of fentanyl at our border— enough to kill 1.2 billion individuals, the equivalent of every American four times over. Although we have made great progress through these actions, my Administration remains as committed as ever to using the power of Federal law and the expertise of our Nation’s dedicated law enforcement officials to prevent the illegal importation and distribution of opioids, which could otherwise devastate countless American families. To help those already struggling with addiction, my Administration is work- ing to champion evidence-based treatments and provide recovery support resources. In 2018, I signed the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Com- munities Act, which uses a whole-of-government approach to better monitor

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prescribing, improve treatment, prevent addiction, and curb the use of illegal drugs. We have also awarded nearly $50 million in planning grants to 15 States to increase the capacity of Medicaid providers to deliver substance use disorder treatment and recovery services. And beginning in January of this year, Medicare began covering services for its beneficiaries at opioid treatment programs. Together, these efforts will help expand treatment access and provide crucial support to those who need it. This Prescription Opioid and Heroin Epidemic Awareness Week, we redouble our efforts to defeat our Nation’s opioid crisis. We can never forget the hundreds of thousands of lives lost, nor the families forever altered due to this scourge. We will always support those around us who are suffering from addiction, encourage those struggling in private to reach out for help, and celebrate those who have found a pathway from addiction to recovery. Together, we will continue to build awareness and work toward a healthier, safer society where every community, family, and individual can flourish. 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 September 13 through September 19, 2020, as Prescription Opioid and Heroin Epidemic Awareness Week. I call upon my fellow Americans to observe this week with activities of awareness and remembrance of the lives lost and commitments to continue the fight. IN WITNESS WHEREOF, I have hereunto set my hand this eleventh day of September, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fifth.

[FR Doc. 2020–21116 Filed 9–22–20; 8:45 am] Billing code 3295–F0–P

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Proclamation 10075 of September 11, 2020 National Historically Black Colleges and Universities Week, 2020

By the President of the United States of America

A Proclamation For more than 180 years, our Nation’s Historically Black Colleges and Univer- sities (HBCUs) have exhibited remarkable excellence in higher education and served as engines of opportunity and advancement for thousands of Black Americans. During National Historically Black Colleges and Univer- sities Week, we celebrate the achievements of HBCUs and their students and pledge our continuing support to the nearly 300,000 individuals currently pursuing their dreams at HBCUs throughout the United States. For nearly two centuries, HBCU graduates have profoundly shaped American life and culture. In science and technology, HBCU graduates have led the way in innovation, like engineer and inventor Otis Boykin, who held more than 20 patents during his lifetime, including for a wire precision resistor used in radios and televisions, and for a control unit used in pacemakers that helped save countless lives. From thought leaders like Booker . Wash- ington and civil rights heroes like Martin Luther King, Jr., to great legal minds like Thurgood Marshall and renowned authors like James Weldon Johnson, our Republic is more vibrant because of HBCUs and their students. My Administration will always stand beside these wonderful colleges and universities as they pursue their mission to provide their students with a high-quality education. In order to further promote the success of HBCUs in the years to come, I signed an Executive Order in February of 2017 on the White House Initiative to Promote Excellence and Innovation at Historically Black Colleges and Universities. This action established the President’s Board of Advisors on HBCUs, and as a result, 32 Federal depart- ments and agencies now have plans in place to help HBCUs secure available Federal resources and opportunities. Additionally, my Administration re- cently released a Framework for the Development of a Federal HBCU Com- petitiveness Strategy, further facilitating productive partnerships between HBCU students and faculty members and public and private-sector entities. This year, National HBCU Week also coincides with the 150th anniversary of two of South Carolina’s great historically black institutions: Allen Univer- sity and Benedict College. Our Nation joins these schools in celebrating this significant milestone and their incredible legacies. Last year, at Benedict College, I was proud to highlight an increase of more than 13 percent in Federal funding for HBCUs under my Administration. In addition, I signed into law the FUTURE Act, which reauthorized more than $85 million in funding for HBCUs, securing permanent funding for our Nation’s histori- cally black institutions and helping ensure their financial security for future generations. My Administration has also continued to prioritize HBCUs during the coronavirus pandemic, and we remain committed to helping them safely reopen for in-person classes. As part of this effort, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which I signed into law in March of this year, provided $930 million in higher education emergency relief funds for HBCUs. During these challenging times, my Administration is working to meet the needs of these great institutions and their students

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as they seek to safely reopen their doors. We know full well the important role they will play in our ongoing national recovery. HBCUs help empower young Americans from all backgrounds to achieve their American Dream. This week, we proudly reaffirm our support for HBCUs and pledge to continue to promote their success and provide support to their vital educational mission. 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 September 20 through September 26, 2020, as National Historically Black Colleges and Universities Week, and further proclaim September 21, 2020, as National HBCU Colors Day. I call upon educators, public officials, professional organizations, cor- porations, and all Americans to proudly don institutional colors and observe this week and day with appropriate programs, ceremonies, and activities that acknowledge the countless contributions these institutions and their alumni have made to our country. I call upon all Americans to observe this week with appropriate programs, ceremonies, and activities and to boldly, joyfully, and proudly don institutional colors. IN WITNESS WHEREOF, I have hereunto set my hand this eleventh day of September, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fifth.

[FR Doc. 2020–21126 Filed 9–22–20; 8:45 am] Billing code 3295–F0–P

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Executive Order 13948 of September 13, 2020

Lowering Drug Prices by Putting America First

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. Purpose. Americans pay more per capita for prescription drugs than residents of any other developed country in the world. It is unacceptable that Americans pay more for the exact same drugs, often made in the exact same places. Other countries’ governments regulate drug prices by negotiating with drug manufacturers to secure bargain prices, leaving Ameri- cans to make up the difference—effectively subsidizing innovation and) lower-cost drugs for the rest of the world. The Council of Economic Advisers has found that Americans finance much of the biopharmaceutical innovation that the world depends on, allowing foreign governments, many of which are the sole healthcare payers in their respective countries, to enjoy bargain prices for such innovations. Americans should not bear extra burdens to compensate for the shortfalls that result from the nationalized public healthcare systems of wealthy countries abroad. In addition to being unfair, high drug prices in the United States also have serious economic and health consequences for patients in need of treatment. High prices cause Americans to divert too much of their scarce resources to pharmaceutical treatments and away from other productive uses. High prices are also a reason many patients skip doses of their medica- tions, take less than the recommended doses, or abandon treatment altogether. The consequences of these behaviors can be severe. For example, patients may develop acute conditions that result in poor clinical outcomes or that require drastic and expensive medical interventions. In most markets, the largest buyers pay the lowest prices, but this has not been true for prescription drugs. The Federal Government is the largest payer for prescription drugs in the world, but it pays more than many smaller buyers, including other developed nations. When the Federal Govern- ment purchases a drug covered by Medicare—the cost of which is shared by American seniors who take the drug and American taxpayers—it should insist on, at a minimum, the lowest price at which the manufacturer sells that drug to any other developed nation. Sec. 2. Policy. (a) It is the policy of the United States that the Medicare program should not pay more for costly Part B or Part D prescription drugs or biological products than the most-favored-nation price. (b) The ‘‘most-favored-nation price’’ shall mean the lowest price, after adjusting for volume and differences in national gross domestic product, for a pharmaceutical product that the drug manufacturer sells in a member country of the Organisation for Economic Co-operation and Development (OECD) that has a comparable per-capita gross domestic product. Sec. 3. Payment Model on the Most-Favored-Nation Price in Medicare Part B. To the extent consistent with law, the Secretary of Health and Human Services shall immediately take appropriate steps to implement his rule- making plan to test a payment model pursuant to which Medicare would pay, for certain high-cost prescription drugs and biological products covered by Medicare Part B, no more than the most-favored-nation price. The model would test whether, for patients who require pharmaceutical treatment, pay- ing no more than the most-favored-nation price would mitigate poor clinical outcomes and increased expenditures associated with high drug costs.

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Sec. 4. Payment Model on the Most-Favored-Nation Price in Medicare Part D. To the extent consistent with law, the Secretary shall take appropriate steps to develop and implement a rulemaking plan, selecting for testing, consistent with section 1315a(b)(2)(A) of title 42, United States Code, a payment model pursuant to which Medicare would pay, for Part D prescrip- tion drugs or biological products where insufficient competition exists and seniors are faced with prices above those in OECD member countries that have a comparable per-capita gross domestic product to the United States, after adjusting for volume and differences in national gross domestic product, no more than the most-favored-nation price, to the extent feasible. The model should test whether, for patients who require pharmaceutical treat- ment, paying no more than the most-favored-nation price would mitigate poor clinical outcomes and increased expenditures associated with high drug costs. Sec. 5. Revocation of Executive Order. The Executive Order of July 24, 2020 (Lowering Drug Prices by Putting America First), is revoked. Sec. 6. General Provisions. (a) Nothing in this order shall be construed 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. (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, September 13, 2020.

[FR Doc. 2020–21129 Filed 9–22–20; 8:45 am] Billing code 3295–F0–P

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Rules and Regulations Federal Register Vol. 85, No. 185

Wednesday, September 23, 2020

This section of the FEDERAL REGISTER ACTION: Ratification. through its Acting Secretary, is ratifying contains regulatory documents having general a number of previous actions by the applicability and legal effect, most of which SUMMARY: The Department of Homeland Department. The Department continues are keyed to and codified in the Code of Security, through its Acting Secretary, is to maintain that prior succession orders Federal Regulations, which is published under publishing notification of the designating Chad Wolf as Acting 50 titles pursuant to 44 U.S.C. 1510. ratification of a number of previous Secretary are valid and that Acting actions by the Department. The attached The Code of Federal Regulations is sold by Secretary Wolf had the authority to take the Superintendent of Documents. ratification provides the public with certainty, by resolving any potential the actions being ratified in the attached defect in the validity of those actions. appendix. The Department issued this ratification and is now publishing it in DEPARTMENT OF HOMELAND DATES: The ratification was signed on SECURITY September 17, 2020, and relates back to the Federal Register out of an the original date of each action that it abundance of caution. Neither the 6 CFR Chapter I ratifies. ratification nor the publication is a statement that the ratified actions would 8 CFR Chapter I FOR FURTHER INFORMATION CONTACT: Leo be invalid absent the ratification. (Chip) Boucher, Assistant General 19 CFR Chapters I and IV Counsel, Administrative Law, Office of Ian Brekke, Deputy the General Counsel, Department of General Counsel, U.S. Department of Ratification of Department Actions Homeland Security, Washington, DC Homeland Security. 20528, (202) 447–3623. Appendix AGENCY: Department of Homeland SUPPLEMENTARY INFORMATION: The Security (DHS). Department of Homeland Security, BILLING CODE 9112–FP–P

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[FR Doc. 2020–21055 Filed 9–21–20; 11:15 am] BILLING CODE 9112–FP–C

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DEPARTMENT OF HOMELAND power to take all actions ‘‘necessary for pandemic Coronavirus Disease 2019 SECURITY carrying out’’ the immigration laws, (COVID–19) by seeking to slow the including the INA, id. 1103(a)(3). The transmission and spread of the disease 8 CFR Part 208 HSA also transferred to DHS during asylum interviews before USCIS responsibility for affirmative asylum [CIS No. 2671–20; DHS Docket No. USCIS– asylum officers. To that end, this 2020–0017] applications, i.e., applications for temporary rule will require in certain asylum made outside the removal instances aliens to be interviewed for RIN 1615–AC59 context. See 6 U.S.C. 271(b)(3). That this discretionary asylum benefit using authority has been delegated within competent government interpreters. Asylum Interview Interpreter DHS to U.S. Citizenship and Requirement Modification Due to Immigration Services (USCIS). USCIS C. The COVID–19 Pandemic COVID–19 asylum officers determine, in the first instance, whether an alien’s affirmative On January 31, 2020, the Secretary of AGENCY: U.S. Citizenship and asylum application should be granted. Health and Human Services declared a Immigration Services, Department of See 8 CFR 208.4(b), 208.9. With limited public health emergency under section Homeland Security (DHS). exception, the Department of Justice 319 of the Public Health Service Act (42 ACTION: Temporary final rule. Executive Office for Immigration U.S.C. 247d), in response to COVID–19.1 Review has exclusive authority to On March 13, 2020, President Trump SUMMARY: This rule temporarily (for 180 adjudicate asylum applications filed by declared a National Emergency days) amends existing Department of aliens who are in removal proceedings. concerning the COVID–19 outbreak to Homeland Security (DHS) regulations to See INA 103(), 240; 8 U.S.C. 1103(g), provide that asylum applicants who control the spread of the virus in the 1229a. This broad division of functions 2 cannot proceed with the interview in United States. The President’s and authorities informs the background proclamation declared that the English are no longer required to of this rule. provide interpreters at the asylum emergency began in the United States interview but rather must ordinarily B. Legal Framework for Asylum on March 1, 2020. proceed with DHS-provided telephonic Asylum is a discretionary benefit that COVID–19 is a communicable disease interpreters. generally can be granted to eligible caused by a novel (new) coronavirus, DATES: This rule is effective September aliens who are physically present or SARS-CoV–2 and appears to spread 23, 2020, through March 22, 2021. who arrive in the United States, easily and sustainably within FOR FURTHER INFORMATION CONTACT: irrespective of their status, subject to the communities.3 The virus is thought to Maureen Dunn, Chief, Humanitarian requirements in section 208 of the INA, transfer primarily by person-to-person Affairs Division, Office of Policy and 8 U.S.C. 1158, and implementing contact through respiratory droplets Strategy, U.S. Citizenship and regulations, see 8 CFR pts. 208, 1208. produced when an infected person Immigration Services (USCIS), Section 208(d)(5) of the INA, 8 U.S.C. coughs or sneezes; it may also transfer Department of Homeland Security, 20 1158(d)(5), imposes several mandates through contact with surfaces or objects Massachusetts Ave. NW, Suite 1100, and procedural requirements for the contaminated with these droplets.4 Washington, DC 20529–2140; telephone consideration of asylum applications. There is also evidence of Congress also specified that the 202–272–8377 (this is not a toll-free presymptomatic and asymptomatic Attorney General and Secretary of number). transmission, in which an individual Individuals with hearing or speech Homeland Security ‘‘may provide by regulation for any other conditions or infected with COVID–19 is capable of impairments may access the telephone spreading the virus to others before numbers above via TTY by calling the limitations on the consideration of an application for asylum,’’ so long as exhibiting symptoms or without ever toll-free Federal Information Relay exhibiting symptoms, respectively.5 The Service at 1–877–889–5627 (TTY/TDD). those limitations are ‘‘not inconsistent with this chapter.’’ INA 208(d)(5)(B), 8 ease of transmission presents a risk of a SUPPLEMENTARY INFORMATION: U.S.C. 1158(d)(5)(B). In sum, the current surge in hospitalizations for COVID–19, I. Legal Authority To Issue This Rule statutory framework leaves the Attorney which would reduce available hospital and Other Background General (and, after the HSA, also the capacity. Secretary) significant discretion to A. Legal Authority Symptoms include fever, cough, and regulate consideration of asylum shortness of breath, and typically appear The Secretary of Homeland Security applications. USCIS regulations (Secretary) publishes this temporary promulgated under this authority set final rule pursuant to his authorities agency procedures for asylum 1 HHS, Determination of Public Health concerning asylum determinations. The interviews, and require that applicants Emergency, 85 FR 7316 (Feb. 7, 2020). 2 Proclamation 9994 of March 13, 2020, Declaring Homeland Security Act of 2002 (HSA), unable to proceed in English ‘‘must a National Emergency Concerning the Coronavirus Public Law 107–296, as amended, provide, at no expense to the Service, a Disease (COVID–19) Outbreak, 85 FR 15337 (Mar. transferred many functions related to competent interpreter fluent in both 18, 2020). See also https://www.whitehouse.gov/ the execution of Federal immigration English and the applicant’s native presidential-actions/proclamation-declaring- national-emergency-concerning-novel-coronavirus- law to the newly created DHS. The HSA language or any other language in which disease-covid-19-outbreak/ (last visited Mar. 25, amended the Immigration and the applicant is fluent.’’ 8 CFR 208.9(g). 2020). Nationality Act (INA or the Act), This requirement means that all asylum 3 CDC, How COVID–19 Spreads (Jun. 16, 2020), charging the Secretary ‘‘with the applicants who cannot proceed in https://www.cdc.gov/coronavirus/2019-ncov/ administration and enforcement of this English must bring an interpreter to prevent-getting-sick/how-covid-spreads.html. chapter and all other laws relating to the their interview, posing a serious health 4 Id. 5 CDC, Public Health Guidance for Community- immigration and naturalization of risk in the current climate. Related Exposure (Jul. 31, 2020), https:// aliens,’’ INA 103(a)(1), 8 U.S.C. Accordingly, this temporary rule will www.cdc.gov/coronavirus/2019-ncov/php/public- 1103(a)(1), and granted the Secretary the address the international spread of health-recommendations.

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2 to 14 days after exposure.6 Many states and businesses are believes this approach will support the Manifestations of severe disease have beginning the initial phases of agency in reopening operations to the included severe pneumonia, acute reopening, yet there are numerous public for in-person services, while respiratory distress syndrome, septic challenges. The CDC has posted protecting the workforce, stakeholders, shock, and multi-organ failure.7 guidance for workplaces who plan to and communities to the greatest extent According to the World Health reopen, which include: Ensuring social possible. Organization (WHO), approximately distancing, such as installing physical USCIS contractor-provided telephonic 3.4% of reported COVID–19 cases have barriers, modifying workspaces, closing interpreters must be at least 18 years of resulted in death globally.8 This communal spaces, staggering shifts, age and pass a security and background mortality rate is higher among older limit travel and modify commuting investigation by the USCIS Office of adults or those with compromised practices.13 Security and Integrity (‘‘OSI’’). They immune systems.9 Older adults and cannot be the applicant’s attorney or II. Purpose of This Temporary Final representative of record; a witness people who have severe chronic Rule medical conditions such as serious heart testifying on the applicant’s behalf; a conditions and lung disease are also at In light of the pandemic and to representative or employee of the higher risk for more serious COVID–19 protect its workforce and help mitigate applicant’s country of nationality or, if illness.10 the spread of COVID–19, USCIS stateless, the applicant’s country of last As of July 31, 2020, there were temporarily suspended all face-to-face habitual residence; a person who approximately 17,106,007 cases of services with the public from March 18, prepares an Application for Asylum and COVID–19 globally, resulting in 2020 to June 4, 2020. In an effort to for Withholding of Removal or Refugee/ approximately 668,910 deaths; promote safety as USCIS continues to Asylee Petition for a fee, or who works approximately 4,405,932 cases have reopen offices to the public for in- for such a preparer/attorney; or, a been identified in the United States, person services and resume necessary person with a close relationship to the with new cases being reported daily, operations, DHS has determined, for 180 applicant as deemed by the Asylum and approximately 150,283 reported days, to no longer require asylum Office, such as a family member. All deaths due to the disease.11 applicants who are unable to proceed contract interpreters must be located Unfortunately, there is currently no with the interview in English to provide within the United States and its vaccine against COVID–19. Treatment is an interpreter. Rather, asylum territories (i.e., Puerto Rico, Guam, etc.). Additionally, under the International currently limited to supportive care to applicants will ordinarily be required to Religious Freedom Act of 1998, USCIS manage symptoms. Hospitalization may proceed with government-provided must ensure that ‘‘persons with be required in severe cases and telephonic contract interpreters so long potential biases against individuals on mechanical respiratory support may be as they speak one of the 47 languages the grounds of religion, race, needed in the most severe cases. Testing found on the Required Languages for nationality, membership in a particular is available to confirm suspected cases Interpreter Services BPA/GSA Language social group, or political opinion . . . of COVID–19 infection. At present, the Schedule (‘‘GSA Schedule’’). If the shall not in any manner be used to time it takes to receive results varies, applicant does not speak a language on interpret conversations between aliens based on type of test used, laboratory the GSA Schedule or elects to speak a language that is not on the GSA and inspection or asylum officers.’’ 22 capacity, and geographic location, U.S.C. 6473(a). among other factors.12 Schedule, the applicant will be required to bring his or her own interpreter to the Per contractual requirements, the interview who is fluent in English and contract interpreters are carefully vetted 6 CDC, Coronavirus Disease 2019 (COVID–19) and tested. They must pass rigorous (Mar. 16, 2020), https://www.cdc.gov/coronavirus/ the elected language (not on the GSA 2019-ncov/symptoms-testing/symptoms.html. schedule). background checks as well as 7 CDC, Interim Clinical Guidance for Management By providing telephonic contract demonstrate fluency in reading and of Patients with Confirmed Coronavirus Disease interpreters, the risk of contracting speaking English as well as the language (COVID–19) (Mar. 7, 2020), https://www.cdc.gov/ COVID–19 for applicants, attorneys, of interpretation. The Contractor must coronavirus/2019-ncov/hcp/clinical-guidance- interpreters, and USCIS employees will test and certify the proficiency of each management-patients.html. interpreter as part of their quality 8 WHO Director-General’s Opening Remarks at be reduced by requiring fewer people to the Media Briefing on COVID–19 (Mar. 3, 2020), attend asylum interviews in person. In control plan. USCIS contractors must https://www.who.int/dg/speeches/detail/who- addition, it may alleviate an applicant’s provide interpreters capable of director-general-s-opening-remarks-at-the-media- challenge in securing an interpreter. accurately interpreting the intended briefing-on-covid-19---3-march-2020. meaning of statements made by the 9 CDC, Interim Clinical Guidance for Management USCIS may be able to conduct of Patients with Confirmed Coronavirus Disease additional asylum interviews because asylum officer, applicant, (COVID–19) (Mar. 7, 2020), https://www.cdc.gov/ there will be more physical office space representative, and witnesses during coronavirus/2019-ncov/hcp/clinical-guidance- that will not be occupied by interpreters interviews. The Contractor shall provide management-patients.html. since all parties temporarily sit in interpreters who are fluent in reading 10 CDC, People Who Are at Higher Risk for Severe and speaking English and one or more Illness (Mar. 22, 2020), https://www.cdc.gov/ separate offices during the interview coronavirus/2019-ncov/specific-groups/people-at- during the COVID–19 pandemic to other languages. The one exception to higher-risk.html. mitigate potential exposure. Therefore, the English fluency requirement 11 WHO, Coronavirus disease 2019 (COVID–19) currently, one asylum interview can involves the use of relay interpreters in Situation Report—193 (July 31, 2020), available at take up to 4 interviewing offices. DHS limited circumstances at the Agency’s https://www.who.int/docs/default-source/ discretion. A relay interpreter is used coronaviruse/situation-reports/20200731-covid-19- sitrep-193.pdf?sfvrsn=42a0221d_2; CDC, 13 CDC, Reopening Workplaces During the when an interpreter does not speak both Coronavirus Disease 2019 (COVID–19): Cases in COVID–19 Pandemic, available at https:// English and the language the applicant U.S. (July 31, 2020), https://www.cdc.gov/ www.cdc.gov/coronavirus/2019-ncov/community/ speaks. For example, if an applicant is coronavirus/2019-ncov/cases-updates/cases-in- office-buildings.html; CDC, Reopening Guidance for not fluent in one of the 47 languages us.html. Cleaning and Disinfecting Public Spaces, 12 CDC, Test for Current Infection (Jul. 23, 2020), Workplaces, Businesses, Schools, and Homes, and brings their own interpreter, the https://www.cdc.gov/coronavirus/2019-ncov/ https://www.cdc.gov/coronavirus/2019-ncov/ applicant’s interpreter may speak only testing/diagnostic-testing.html. community/reopen-guidance.html. Akatek (Acateco) and Spanish and the

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contract does not support Akatek. TABLE A—REQUIRED LANGUAGES FOR ensuring the contract interpreters are Therefore, a relay interpreter would be INTERPRETER SERVICES BPA/GSA used is to mitigate the spread of COVID– needed to translate from Spanish to LANGUAGE SCHEDULE—Continued 19 and protect the health and safety of English. However, even in that case, USCIS employees and the public, as USCIS requires the Contractor to 6. Azerbaijani. explained elsewhere in this preamble. provide a second (or relay) interpreter 7. Bengali. The contract interpreters are vetted and who is fluent in English and Spanish. 8. Burmese. will be provided at no cost to the 9. Cantonese. III. Discussion of Regulatory Change: 10. Creole/Haitian Creole. applicant. Accordingly, under these Addition of 8 CFR 208.9() 14 11. Farsi-Afghani/Dari. circumstances, the applicant will be 12. Farsi-Iranian. considered to have failed to appear for DHS has determined that there are 13. Foo Chow/Fuzhou. the interview in accordance with 8 CFR reasonable grounds for regarding 14. French. 208.10, and the application will be potential exposure to COVID–19 as a 15. Georgian. referred or dismissed. public health concern and thus 16. Gujarati. sufficient to modify the interpreter 17. Hindi. If the applicant does not speak a requirement for asylum applicants to 18. Hmong. language on the GSA Schedule or elects lower the number of in-person attendees 19. Hungarian. to speak a language that is not on the at asylum interviews. DHS will require 20. Indonesia/Bahasa. GSA Schedule, the applicant will be 21. Konjobal. required to bring his or her own asylum applicants to proceed with the 22. Korean. asylum interview using USCIS’s interpreter to the interview who is 23. Kurdish. fluent in English and the elected interpreter services for 180 days 24. Lingala. following publication of this TFR if they 25. Mam. language (not on the GSA schedule). If are fluent in one of the 47 languages 26. Mandarin. an applicant is unable to provide an provided.15 After the 180 days 27. Nepali. interpreter fluent in English and the concludes, asylum applicants unable to 28. Pashto/Pushtu. elected language is not found on the proceed in English will again be 29. Portuguese. GSA Schedule, the applicant may 30. Punjabi. provide an interpreter fluent in the required to provide their own 31. Quiche/’iche. interpreters under 8 CFR 208.9(g). elected language and one found on the 32. Romanian. GSA Schedule. In this situation, USCIS Under the temporary provision, USCIS 33. Russian. may be able to provide contract 34. Serbian. will provide a contract relay interpreter interpreters on demand for 35. Sinhalese. to interpret between the GSA Schedule approximately 47 different languages 16 36. Somali. language and English. listed on the GSA Schedule (see Table 37. Spanish. On June 4, 2020, certain USCIS field A below). This list of languages has also 38. Swahili. offices and asylum offices resumed non- 39. Tagalog. been included in the regulatory text. 40. Tamil. emergency face-to-face services to the 41. Tigrinya. public while enacting precautions to TABLE A—REQUIRED LANGUAGES FOR 42. Turkish. prevent the spread of COVID–19 in INTERPRETER SERVICES BPA/GSA 43. Twi. reopened facilities. USCIS is following a LANGUAGE SCHEDULE 44. Ukrainian. phased approach to reopening in 45. Urdu. accordance with the Administration’s 46. Uzbek. 1. Akan. ‘‘Guidelines for Opening Up America 47. Vietnamese. 2. Albanian. Again,’’ 17 based on the advice of public 3. Amharic. health experts, in order to meet its If an interpreter is necessary to 4. Arabic. mission in administering the nation’s conduct the interview and a contract 5. Armenian. immigration system, while also interpreter who speaks a language on instituting safety protocols. While 14 the GSA Schedule is not available at the The interpreter interview provisions can be USCIS continued to perform duties that found in two parallel sets of regulations: time of the interview, USCIS will did not involve in-person interviews Regulations under the authority of DHS are reschedule the interview and attribute while in-person services were contained in 8 CFR part 208; and regulations under the interview delay to USCIS (and not the authority of the Department of Justice (DOJ) are temporarily suspended to mitigate the to the applicant) for the purposes of contained in 8 CFR part 1208. Each set of spread of COVID–19, many immigration regulations contains substantially similar employment authorization under 8 CFR benefits, including asylum applications, provisions regarding asylum interview processes, 208.7. usually require in-person services and and each articulates the interpreter requirement for If an applicant is fluent in a language interviews before an asylum officer. Compare 8 CFR timely immigration adjudications are on the GSA Schedule but refuses to 208.9(g), with 8 CFR 1208.9(g). This temporary final important. Since USCIS re-opened to rule revises only the DHS regulations at 8 CFR proceed with the interview by using a the public to resume interviews on June 208.9. Notwithstanding the language of the parallel contract interpreter, USCIS will 4, 2020, USCIS has allowed the DOJ regulations in 8 CFR 1208.9, as of the effective consider this a failure without good date of this TFR, the revised language of 8 CFR applicant-provided interpreter to sit cause to comply with 8 CFR 208.9(h)(1), 208.9(h) is binding on DHS and its adjudications for separately in another office. However, 180 days. DHS would not be bound by the DOJ unless the applicant elects to proceed USCIS only permitted this because it is regulation at 8 CFR 1208.9(g). with a language not on the GSA 15 the current regulatory requirement, DHS is not modifying 8 CFR 208.9(g) with this schedule as discussed below. An temporary rule; however, the temporary rule is which this temporary final rule will applicant’s refusal to proceed with the written so that any asylum interviews occurring amend in order to reduce the risk of interview using the contract while the temporary rule is effective will be bound exposure. by the requirements at 8 CFR 208.9(h). interpreter—for example, due to a 16 According to internal data for asylum preference to proceed with one’s own 17 The White House and Centers for Disease interviews scheduled in FY19, 83% of asylum interpreter—will not be considered good applicants spoke at least one of the 47 languages Control and Prevention, Guidelines Opening Up and only 5% spoke a language not included on this cause under 8 CFR 208.9(h)(1)(ii) for an America Again, https://www.whitehouse.gov/ list. interview delay. The purpose of openingamerica/.

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In drafting this temporary rule, USCIS applicant spoke English, the contract with COVID–19; and (3) mitigation is considered continuing to allow vendor did not cover the language, or a especially important before a vaccine or interpreters to attend the interview in monitor was unavailable at the time of drug is developed and becomes widely person but sit separately, or to provide the call. Since the cost of monitoring available. Prior to the expiration of this interpretation by video or telephone and interpretation are identical under temporary rule, DHS will evaluate the could be another means of maintaining the contract, the implementation of this public health concerns and resource recommended social distancing. While change is projected to be cost neutral or allocation, to determine whether to requiring an applicant-provided negligible as USCIS is already paying for extend the temporal limitation. If interpreter to sit separately in another these services and the contract is necessary, DHS would publish any such office allows for appropriate social already budgeted for. The contract extension via a rulemaking in the distancing from the applicant, attorney interpreters already regularly serve as Federal Register. and interviewing officer during the interpreters for screening interviews in IV. Regulatory Requirements interview, it could create more risk for expedited removal and other contexts the asylum office staff because and act as interpreter monitors or A. Administrative Procedure Act (APA) interpreters often participate in many occasionally serve as the primary DHS is issuing this rule as a asylum interviews or other interviews interpreter during affirmative asylum temporary final rule pursuant to the with USCIS in a single day, which could interviews, so they are familiar with the APA’s ‘‘good cause’’ exception. 5 U.S.C. heighten the risk of contracting or operational realities of asylum 553(b)(B). Agencies may forgo notice- interviews and the role of an interpreter spreading the illness in the waiting and-comment rulemaking and a delayed during those interviews. USCIS also has room or other common areas. Further, effective date while this rulemaking is internal procedural safeguards in place. allowing an applicant’s interpreter to published in the Federal Register For example, in situations where the appear by telephone or video could because the APA provides an exception applicant or asylum officer believes that adversely affect the applicant, USCIS, from those requirements when an the contract interpreter abuses their and the public. USCIS recognizes that agency ‘‘for good cause finds . . . that role, appears biased or prejudicial allowing an applicant’s interpreter to notice and public procedure thereon are against the applicant, appears to be appear by telephone or video may impracticable, unnecessary, or contrary breaching confidentiality or otherwise support the goals of social distancing; to the public interest.’’ 5 U.S.C. however, USCIS has not allowed are not conducting themselves professionally, the interview may be 553(b)(B); see 5 U.S.C. 553(d)(3). applicant-provided interpreters to The good cause exception for forgoing stopped so that the officer may obtain appear telephonically at affirmative notice-and-comment rulemaking another contract interpreter. The asylum interviews in the past. This is ‘‘excuses notice and comment in problems with the contract interpreter because USCIS is unable to confirm the emergency situations, or where delay may also be reported to the Contractor interpreter’s identity and assure that the could result in serious harm.’’ Jifry v. individual meets the minimum for appropriate action. The use of contract interpreters will FAA, 370 .3d 1174, 1179 (D.C. Cir. requirements to be an interpreter under 2004). Although the good cause the applicable regulation and policy. In increase the efficiency of the asylum interviews as interviews would not need exception is ‘‘narrowly construed and addition, USCIS is unable to properly only reluctantly countenanced,’’ Tenn. ensure that the interpreter is protecting to be rescheduled due to failure to appear (because the applicant did not Gas Pipeline Co. v. FERC, 969 F.2d the confidentiality of the asylum bring a proper interpreter) or interpreter 1141, 1144 (D.C. Cir 1992), DHS has applicant and not recording the incompetence, and USCIS-provided appropriately invoked the exception in interview, which could encourage and interpretation is likely to be faster and this case, for the reasons set forth below. support asylum fraud and damage more efficient when the applicant- Additionally, on multiple occasions, legitimate asylum seekers and the provided interpreter is not a agencies have relied on this exception to lawful asylum system. Thus, USCIS professional. Interviews will less likely promulgate both communicable disease- finds that providing a professional 18 19 need to be rescheduled due to sickness related and immigration-related contract interpreter is a better option for of an interpreter and will ensure the interim rules. the applicant, USCIS, and the public. safety of USCIS employees and asylum The government-provided contract applicants and mitigate the spread of 18 HHS Control of Communicable Diseases; interpreters will not put applicants at a Foreign Quarantine, 85 FR 7874 (Feb. 12, 2020) the disease. In addition, government- (interim final rule to enable the CDC ‘‘to require disadvantage or adversely affect funded interpretation will eliminate airlines to collect, and provide to CDC, certain data applicants. The contract interpreters are pre-interview inefficiencies, such as regarding passengers and crew arriving from foreign carefully vetted and tested. They must screening out ineligible interpreters, and countries for the purposes of health education, pass rigorous background checks as well treatment, prophylaxis, or other appropriate public will eliminate time spent on examining health interventions, including travel restrictions’’); as meet a high standard of competency. whether an interpreter misinterpreted Control of Communicable Diseases; Restrictions on Additionally, serving as interpreters any material aspects of the asylum African Rodents, Prairie Dogs, and Certain Other during asylum interviews would not be interview or committed fraud or acted Animals, 68 FR 62353 (Nov. 4, 2003) (interim final a novel or new function for contract rule to modify restrictions to ‘‘prevent the spread improperly because of the strict vetting of monkeypox, a communicable disease, in the interpreters to perform, nor would and testing requirements for contract United States.’’). utilizing them in this limited and interpreters. 19 See, e.g., Visas: Documentation of emergency circumstance cause This provision will be subject to a Nonimmigrants Under the Immigration and additional costs to USCIS or the public. temporal limitation of 180 days unless Nationality Act, as Amended, 81 FR 5906, 5907 (Feb. 4, 2016) (interim rule citing good cause to USCIS has an existing contract to it is further extended and it applies to immediately require a passport and visa from provide telephonic interpretation and all asylum interviews across the nation. certain H2–A Caribbean agricultural workers to monitoring in interviews for all of its USCIS has determined that 180 days is avoid ‘‘an increase in applications for admission in case types. While not required by appropriate given that (1) the pandemic bad faith by persons who would otherwise have been denied visas and are seeking to avoid the visa regulation for asylum interviews, USCIS is ongoing; (2) there is much that is requirement and consular screening process during has provided monitors for many years as unknown about the transmissibility, the period between the publication of a proposed a matter of policy except when the severity, and other features associated and a final rule’’); Suspending the 30-Day and

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As discussed earlier in this preamble, to proceed in English must provide their why under the TFR, USCIS would only on January 31, 2020, the Secretary of own interpreters. This means that the allow an applicant-provided interpreter Health and Human Services declared a interpreter currently accompanies the to physically attend the interview if the public health emergency under section applicant to and within the USCIS applicant does not speak one of the 47 319 of the Public Health Service Act in facility, thereby increasing the risk of languages provided by USCIS provided response to COVID–19.20 On March 13, contracting and/or transferring COVID– contract interpreters. 2020, President Trump declared a 19 to themselves or others while DHS recognizes that some applicants National Emergency concerning the entering the space and observing the COVID–19 outbreak, dated back to usual security screening protocols, as may prefer to use their own interpreters, March 1, 2020, to control the spread of well as while accessing space but for the reason stated above and the virus in the United States.21 As of throughout the facility during the elsewhere in this preamble, it has July 31, 2020, there were approximately appointment such as, information determined that the benefits of this rule 17,106,007 cases of COVID–19 globally, counters, waiting rooms, restrooms, outweigh the potential preference of resulting in approximately 668,910 and/or private interview offices. some applicants. This temporary final deaths; approximately 4,405,932 cases Interpreters who accompany asylum rule is promulgated as a response to have been identified in the United applicants to asylum offices often work COVID–19. It is temporary, limited in States, with new cases being reported as professional interpreters providing a application to only those asylum daily, and approximately 150,283 variety of in-person interpreting services applicants who cannot proceed with the deaths due to the disease.22 Currently, and as such have regular in-person interview in English, and narrowly there is no vaccine against COVID–19. exposure to a wide range of individuals tailored to mitigate the spread of Treatment is currently limited to as a matter of course. Accordingly, they COVID–19. To delay such a measure supportive care to manage symptoms. are at a greater risk of being exposed to could cause serious and far-reaching Hospitalization may be required in COVID–19. Whereas, under the TFR, the public safety and health effects. severe cases and mechanical respiratory USCIS-provided interpreters would support may be needed in the most appear telephonically, minimizing the B. Regulatory Flexibility Act severe cases. spread and exposure to COVID–19. The The Regulatory Flexibility Act, 5 longer the effective date of this DHS has concluded that the good U.S.C. 601 et seq., as amended by the cause exceptions in 5 U.S.C. 553(b)(B) regulatory change is delayed, the longer Small Business Regulatory Enforcement and (d)(3) apply to this rule. Delaying USCIS will have to continue to Fairness Act of 1996, requires an agency implementation of this rule until the potentially expose our workforce, conclusion of notice-and-comment applicants and attorneys to risk at to prepare and make available to the procedures and the 30-day delayed USCIS facilities—potentially negatively public a regulatory flexibility analysis effective date would be impracticable impacting the health of employees, that describes the effect of the rule on and contrary to the public interest due stakeholders and the public health of small entities (i.e., small businesses, to the need to resume agency operations the United States in general. small organizations, and small and associated risk to asylum office As discussed elsewhere in this rule, governmental jurisdictions). A staff, as well as the public, with the COVID–19 is contagious, and symptoms regulatory flexibility analysis is not spread of COVID–19. may not be present until up to 14 days required when a rule is exempt from As of July 31, 2020, USCIS had after exposure, and USCIS currently has notice-and-comment rulemaking. 370,948 asylum applications, on behalf over 353,000 applicants awaiting an C. Unfunded Mandates Reform Act of of 589,187 aliens, pending final asylum interview. Although USCIS has 1995 adjudication. Over 94% of these protocols in place to insulate against the pending applications are awaiting an risk of spread, requiring an interpreter This temporary final rule will not interview by an asylum officer. The to accompany every asylum applicant result in the expenditure by state, local, USCIS backlog will continue to increase who cannot proceed in English has the and tribal governments, in the aggregate, unless USCIS can safely and efficiently potential to raise the number of or by the private sector, of $100 million conduct asylum interviews. individuals impacted and possibly or more in any one year, and it will not Since resuming agency operations exposed to the disease. Additionally, significantly or uniquely affect small under the current regulatory applicants and applicant-provided governments. Therefore, no actions were requirements, asylum applicants unable interpreters may contract or transmit the deemed necessary under the provisions disease if and when they come into of the Unfunded Mandates Reform Act Annual Interview Requirements From the Special contact with others through, for Registration Process for Certain Nonimmigrants, 68 of 1995. FR 67578, 67581 (Dec. 2, 2003) (interim rule example, transit to the USCIS facility. claiming the good cause exception for suspending Notably, unlike the applicant D. Congressional Review Act certain automatic registration requirements for themselves, interpreters are often repeat nonimmigrants because ‘‘without [the] regulation visitors to the asylum office, some This temporary final rule is not a approximately 82,532 aliens would be subject to 30- appearing multiple times per week and major rule as defined by section 804 of day or annual re-registration interviews’’ over a six- the Congressional Review Act. 5 U.S.C. month period). even handling more than one case per 20 HHS, Determination of Public Health day. As such, the repeated trips to the 804. This rule will not result in an Emergency. office and the likelihood that multiple annual effect on the economy of $100 21 Proclamation 9994 (Mar. 13, 2020). appointments will increase the risk of million or more; a major increase in 22 WHO, Coronavirus disease 2019 (COVID–19) costs or prices; or significant adverse Situation Report—193 (July 31, 2020), available at spread within an asylum office because https://www.who.int/docs/default-source/ an interpreter may have contact with effects on competition, employment, coronaviruse/situation-reports/20200731-covid-19- several employees over the course of investment, productivity, innovation, or sitrep-193.pdf?sfvrsn=42a0221d_2; CDC, multiple visits within a short period of on the ability of United States-based Coronavirus Disease 2019 (COVID–19): Cases in enterprises to compete with foreign- U.S. (July 31, 2020), https://www.cdc.gov/ time. These factors pose a serious risk coronavirus/2019-ncov/cases-updates/cases-in- to local communities and the based enterprises in domestic and us.html. operational posture of USCIS, and are export markets.

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E. Executive Order 12866 Executive G. Executive Order 12988 (Civil Justice September 23, 2020, through March 22, Order 13563 Reform) 2021. (1) Asylum applicants unable to Executive Orders (E.O.) 12866 and This rule meets the applicable standards set forth in section 3(a) and proceed with the interview in English 13563 direct agencies to assess the costs 3(b)(2) of Executive Order 12988. must use USCIS’s telephonic interpreter and benefits of available regulatory services, so long as the applicant is alternatives and, if regulation is H. Paperwork Reduction Act fluent in one of the following languages: necessary, to select regulatory This rule does not propose new, or Akan, Albanian, Amharic, Arabic, approaches that maximize net benefits revisions to existing, ‘‘collection[s] of Armenian, Azerbaijani, Bengali, (including potential economic, information’’ as that term is defined Burmese, Cantonese, Creole/Haitian environmental, public health and safety under the Paperwork Reduction Act of Creole, Farsi-Afghani/Dari, Farsi- effects, distributive impacts, and 1995, Public Law 104–13, 44 U.S.C. Iranian, Foo Chow/Fuzhou, French, equity). E.O. 13563 emphasizes the chapter 35, and its implementing Georgian, Gujarati, Hindi, Hmong, importance of quantifying both costs regulations, 5 CFR part 1320. As this is Hungarian, Indonesia/Bahasa, Konjobal, and benefits, reducing costs, a temporary final rule and would only Korean, Kurdish, Lingala, Mam, harmonizing rules, and promoting span 180 days, USCIS does not Mandarin, Nepali, Pashto/Pushtu, flexibility. This rule is designated a anticipate a need to update the Form I– Portuguese, Punjabi, Quiche/K’iche, significant regulatory action under E.O. 589, Application for Asylum and for Romanian, Russian, Serbian, Sinhalese, 12866. Accordingly, the Office of Withholding of Removal, despite the Somali, Spanish, Swahili, Tagalog, Management and Budget (OMB) has existing language on the Instructions Tamil, Tigrinya, Turkish, Twi, reviewed this regulation. DHS, however, regarding interpreters, because it will be Ukrainian, Urdu, Uzbek, or Vietnamese. is proceeding under the emergency primarily rescheduling interviews that (i) If a USCIS interpreter is were cancelled due to COVID. USCIS provision of Executive Order 12866 unavailable at the time of the interview, will post updates on its I–589 website, USCIS will reschedule the interview Section 6(a)(3)(D) based on the need to https://www.uscis.gov/i-589, and other and attribute the interview delay to move expeditiously during the current asylum and relevant web pages USCIS for the purposes of employment public health emergency. regarding the new interview authorization pursuant to 8 CFR 208.7. This TFR will help asylum applicants requirements in this regulation, as well (ii) Except as provided in paragraph proceed with their interviews in a safe as provide personal notice to applicants (h)(1)(iii) of this section, if an applicant manner, while protecting agency staff. via the interview notices issued to is fluent in a language listed in this This rule is not expected to result in any applicants prior to their interview. paragraph (h)(1) but refuses to proceed additional costs to the applicant or to I. Signature with the USCIS interpreter in order to the government. As previously use his or her own interpreter, USCIS explained, the contract interpreters will The Acting Secretary of Homeland will consider this a failure without good be provided at no cost to the applicant. Security, Chad F. Wolf, having reviewed cause to comply with this paragraph USCIS already has an existing contract and approved this document, is (h)(1). The applicant will be considered delegating the authority to electronically to provide telephonic interpretation and to have failed to appear for the sign this document to Ian Brekke, monitoring in interviews for all of its interview for the purposes of 8 CFR Deputy General Counsel for DHS, for case types. USCIS has provided 208.10. purposes of publication in the Federal (iii) If the applicant elects to proceed monitors for many years. Almost all Register. interviews that utilize a USCIS provided in a language that is not listed in this interpreter after this rulemaking would List of Subjects in 8 CFR Part 208 paragraph (h)(1), the applicant must provide a competent interpreter fluent have had a contracted monitor under Administrative practice and in both English and the applicant’s the status quo. As the cost of monitoring procedure, Aliens, Immigration, native language or any other language in and interpretation are identical under Reporting and recordkeeping which the applicant is fluent. If an the contract and monitors will no longer requirements. applicant is unable to provide an be needed for these interviews, the Accordingly, for the reasons set forth interpreter fluent in English and the implementation of this rule is projected in the preamble, the Secretary of elected language not listed in this to be cost neutral or negligible as USCIS Homeland Security amends 8 CFR part paragraph (h)(1), the applicant may is already paying for these services even 208 as follows: provide an interpreter fluent in the without this rule. PART 208—PROCEDURES FOR elected language and one found in this F. Executive Order 13132 (Federalism) ASYLUM AND WITHHOLDING OF paragraph (h)(1). USCIS will provide a REMOVAL relay interpreter to interpret between This rule will not have substantial the language listed in this paragraph direct effects on the States, on the ■ 1. The authority citation for part 208 (h)(1) and English. The interpreter must relationship between the national continues to read as follows: be at least 18 years of age. Neither the government and the States, or on the Authority: 8 U.S.C. 1101, 1103, 1158, 1226, applicant’s attorney or representative of distribution of power and 1252, 1282; Title VII of Public Law 110–229; record, a witness testifying on the responsibilities among the various 8 CFR part 2. applicant’s behalf, nor a representative levels of government. Therefore, in ■ 2. Section 208.9 is amended by adding or employee of the applicant’s country accordance with section 6 of Executive paragraph (h) to read as follows: of nationality, or if stateless, country of Order 13132, it is determined that this last habitual residence, may serve as the rule does not have sufficient federalism 208.9 Procedure for interview before an applicant’s interpreter. Failure without asylum officer. implications to warrant the preparation good cause to comply with this of a federalism summary impact * * * * * paragraph may be considered a failure (h) Asylum Applicant Interpreters for to appear for the interview for purposes statement. asylum interviews conducted between of 8 CFR 208.10.

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(2) [Reserved] Examining the AD Docket this rulemaking during the comment period. The FAA will consider all the Ian Brekke, You may examine the AD docket on comments received and may conduct Deputy General Counsel, U.S. Department of the internet at https:// www.regulations.gov by searching for additional rulemaking based on those Homeland Security. comments. [FR Doc. 2020–21073 Filed 9–22–20; 8:45 am] and locating Docket No. FAA–2020– 0795; or in person at Docket Operations BILLING CODE 9111–97–P Confidential Business Information between 9 a.m. and 5 p.m., Monday Confidential Business Information through Friday, except Federal holidays. (CBI) is commercial or financial The AD docket contains this AD, the information that is both customarily and DEPARTMENT OF TRANSPORTATION Transport Canada AD, any service actually treated as private by its owner. information that is incorporated by Under the Freedom of Information Act Federal Aviation Administration reference, any comments received, and (FOIA) (5 U.S.C. 552), CBI is exempt other information. The street address for from public disclosure. If your 14 CFR Part 39 Docket Operations is listed above. comments responsive to this final rule Comments will be available in the AD contain commercial or financial [Docket No. FAA–2020–0795; Product docket shortly after receipt. information that is customarily treated Identifier 2019–SW–069–AD; Amendment For service information identified in 39–21247; AD 2020–19–05] as private, that you actually treat as this final rule, contact Bell Helicopter private, and that is relevant or Textron Canada Limited, 12,800 Rue de RIN 2120–AA64 responsive to this final rule, it is l’Avenir, Mirabel, Quebec J7J1R4; important that you clearly designate the telephone 450–437–2862 or 800–363– Airworthiness Directives; Bell submitted comments as CBI. Please 8023; fax 450–433–0272; or at https:// Helicopter Textron Canada Limited mark each page of your submission Helicopters www.bellcustomer.com. You may view the referenced service containing CBI as ‘‘PROPIN.’’ The FAA will treat such marked submissions as AGENCY: Federal Aviation information at the FAA, Office of the confidential under the FOIA, and they Administration (FAA), Department of Regional Counsel, Southwest Region, will not be placed in the public docket Transportation (DOT). 10101 Hillwood Pkwy., Room 6N–321, of this final rule. Submissions ACTION: Final rule; request for Fort Worth, TX 76177. It is also containing CBI should be sent to Daniel comments. available on the internet at https:// E. Moore, Aviation Safety Engineer, www.regulations.gov by searching for Regulations & Policy Section, Rotorcraft SUMMARY: The FAA is adopting a new and locating Docket No. FAA–2020– Standards Branch, FAA, 10101 airworthiness directive (AD) for certain 0795. Bell Helicopter Textron Canada Limited Hillwood Pkwy., Fort Worth, TX 76177; FOR FURTHER INFORMATION CONTACT: (Bell) Model 505 helicopters. This AD telephone 817–222–5110; email requires inspecting each swashplate Daniel E. Moore, Aviation Safety [email protected]. Any assembly bearing (bearing), and Engineer, Regulations & Policy Section, commentary that the FAA receives depending on the inspection results, Rotorcraft Standards Branch, FAA, which is not specifically designated as removing the bearing from service. This 10101 Hillwood Pkwy., Fort Worth, TX CBI will be placed in the public docket AD was prompted by a report of a 76177; telephone 817–222–5110; email for this rulemaking. [email protected]. bearing that migrated out of the Discussion swashplate inner ring. The actions of SUPPLEMENTARY INFORMATION: Transport Canada, which is the this AD are intended to address an Comments Invited aviation authority for Canada, has unsafe condition on these products. This AD is a final rule that involves issued Canadian AD No. CF–2019–28, DATES: This AD becomes effective requirements affecting flight safety, and dated July 25, 2019, to correct an unsafe October 8, 2020. the FAA did not provide you with condition for Bell Model 505 The Director of the Federal Register notice and an opportunity to provide helicopters, serial number 65011 approved the incorporation by reference your comments prior to it becoming through 65211. Transport Canada of a certain document listed in this AD effective. However, the FAA invites you advises of a report showing that a as of October 8, 2020. The FAA must to participate in this rulemaking by bearing migrated out of its inner ring. receive comments on this AD by submitting written comments, data, or An investigation revealed that, although November 9, 2020. views. The most helpful comments the inspection witness mark was ADDRESSES: You may send comments by reference a specific portion of the AD, applied to the part, the bearing had not any of the following methods: explain the reason for any been staked during manufacturing. • Federal eRulemaking Docket: Go to recommended change, and include Transport Canada further advises that https://www.regulations.gov. Follow the supporting data. To ensure the docket an un-staked bearing, which has online instructions for sending your does not contain duplicate comments, migrated out of its bore, may lead to comments electronically. commenters should send only one copy restriction of the swashplate’s • Fax: 202–493–2251. of written comments, or if comments are movement as a result of contact or • Mail: Send comments to the U.S. filed electronically, commenters should binding between the control tube clevis Department of Transportation, Docket submit them only one time. and the bearing housing. Operations, M–30, West Building Except for Confidential Business This contact or binding may restrict Ground Floor, Room W12–140, 1200 Information (CBI) as described in the control authority and may also New Jersey Avenue SE, Washington, DC following paragraph, and other introduce unintended loads into the 20590–0001. information as described in 14 CFR control system causing a failure of the • Hand Delivery: Deliver to the 11.35, the FAA will file in the docket all control tube and/or bearing. This ‘‘Mail’’ address between 9 a.m. and 5 comments received, as well as a report situation, if not corrected, could lead to p.m., Monday through Friday, except summarizing each substantive public loss of control of the helicopter. Federal holidays. contact with FAA personnel concerning Accordingly, the Transport Canada AD

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requires a one-time inspection of each an agency finds good cause pursuant to The FAA is issuing this rulemaking bearing. 5 U.S.C. 553 to adopt a rule without under the authority described in prior notice and comment. Because the Subtitle VII, Part A, Subpart III, Section FAA’s Determination FAA has determined that it has good 44701: General requirements. Under These helicopters have been approved cause to adopt this rule without notice that section, Congress charges the FAA by the aviation authority of Canada and and comment, RFA analysis is not with promoting safe flight of civil are approved for operation in the United required. aircraft in air commerce by prescribing States. Pursuant to the FAA’s bilateral regulations for practices, methods, and Costs of Compliance agreement with Canada, Transport procedures the Administrator finds Canada, its technical representative, has The FAA estimates that this AD necessary for safety in air commerce. notified the FAA of the unsafe condition affects 81 helicopters of U.S. Registry. This regulation is within the scope of described in its AD. The FAA is issuing Labor rates are estimated at $85 per that authority because it addresses an this AD after evaluating all of the work-hour. Based on these numbers, the unsafe condition that is likely to exist or information provided by Transport FAA estimates that operators may incur develop on products identified in this Canada and determining the unsafe the following costs in order to comply rulemaking action. condition exists and is likely to exist or with this AD. Regulatory Findings develop on other helicopters of the same Inspecting the bearings for staking type design. takes about one work-hour for an The FAA determined that this AD estimated cost of $85 per helicopter and will not have federalism implications Related Service Information Under 1 $6,885 for the U.S. fleet. Replacing a under Executive Order 13132. This AD CFR Part 51 bearing takes about one work-hour and will not have a substantial direct effect Bell has issued Alert Service Bulletin parts cost about $100 for an estimated on the States, on the relationship 505–19–13, dated July 2, 2019, which cost of $185 per replacement. between the national Government and the States, or on the distribution of specifies procedures for a one-time FAA’s Justification and Determination power and responsibilities among the inspection of the staking of certain of the Effective Date bearings. various levels of government. This service information is reasonably Section 553(b)(3)(B) of the For the reasons discussed, I certify available because the interested parties Administrative Procedure Act (5 U.S.C.) that this AD: have access to it through their normal authorizes agencies to dispense with 1. Is not a ‘‘significant regulatory course of business or by the means notice and comment procedures for action’’ under Executive Order 12866, identified in the ADDRESSES section. rules when the agency, for ‘‘good cause’’ and finds that those procedures are 2. Will not affect intrastate aviation in Other Related Service Information ‘‘impracticable, unnecessary, or contrary Alaska. Bell Helicopter has issued BHT–ALL– to the public interest.’’ Under this List of Subjects in 14 CFR Part 39 SPM Chapter 9—Bearings, Sleeves, and section, an agency, upon finding good Bushings, Revision 7, dated March, 24, cause, may issue a final rule without Air transportation, Aircraft, Aviation 2017, which specifies procedures for seeking comment prior to the safety, Incorporation by reference, servicing swashplate assembly bearings, rulemaking. Safety. sleeves, and bushings. An unsafe condition exists that Adoption of the Amendment requires the immediate adoption of this AD Requirements AD without providing an opportunity Accordingly, under the authority delegated to me by the Administrator, This AD requires, within 20 hours for public comments prior to adoption. the FAA amends 14 CFR part 39 as time-in-service (TIS), using a 10X or The FAA has found that the risk to the follows: higher power magnifying glass, flying public justifies waiving notice inspecting both sides of each affected and comment prior to adoption of this PART 39—AIRWORTHINESS bearing for staking in the outer ring part rule because the required corrective DIRECTIVES number (P/) 206–010–453, inner ring action must be completed within 20 P/N 206–010–451, and lever assembly hours TIS, a time period of up to one ■ 1. The authority citation for part 39 P/N 206–010–447. If either side of a month based on the average flight-hour continues to read as follows: bearing is not staked, this AD requires utilization rate of these helicopters. Authority: 49 U.S.C. 106(g), 40113, 44701. removing the bearing from service Therefore, notice and opportunity for before further flight. prior public comment are impracticable § 39.13 [Amended] and contrary to public interest pursuant ■ 2. The FAA amends § 39.13 by adding Differences Between This AD and the to 5 U.S.C. 553(b)(3)(B). In addition, for Transport Canada AD the following new airworthiness the reasons stated above, the FAA finds directive (AD): The Transport Canada AD requires that good cause exists pursuant to 5 inspecting the bearings for proper U.S.C. 553(d) for making this 2020–19–05 Bell Helicopter Textron Canada Limited: Amendment 39–21247; staking, whereas this AD requires amendment effective in less than one Docket No. FAA–2020–0795; Product inspecting both sides of each bearing for month. Identifier 2019–SW–069–AD. staking instead. If a swashplate assembly bearing is not staked, the Authority for This Rulemaking (a) Applicability Transport Canada AD requires replacing Title 49 of the United States Code This AD applies to Bell Helicopter Textron the bearing and contacting Bell, whereas specifies the FAA’s authority to issue Canada Limited Model 505 helicopters, this AD requires removing the bearing rules on aviation safety. Subtitle I, certificated in any category, with a serial section 106, describes the authority of number (S/N) 65011 through 65211 from service instead. inclusive, and swashplate assembly part the FAA Administrator. Subtitle VII: Regulatory Flexibility Act number (P/N) 206–010–450–123 with an S/ Aviation Programs, describes in more N listed in Table 1 of Bell Alert Service The requirements of the Regulatory detail the scope of the Agency’s Bulletin 505–19–13, dated July 2, 2019, Flexibility Act (RFA) do not apply when authority. installed.

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(b) Unsafe Condition (i) Subject issuing this AD to address the unsafe This AD defines the unsafe condition as an Joint Aircraft Service Component (JASC) condition on these products. unstaked swashplate assembly bearing which Code: 6230, Main Rotor Mast/Swashplate. DATES: This AD is effective October 28, may migrate out of its bore. This condition (j) Material Incorporated by Reference 2020. could result in restricted control authority, The Director of the Federal Register unintended loads on the control system, (1) The Director of the Federal Register approved the incorporation by reference of approved the incorporation by reference failure of the control tube or bearing, and of a certain publication listed in this AD subsequent loss of control of the helicopter. the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR as of October 28, 2020. (c) Effective Date part 51. ADDRESSES: For service information This AD becomes effective October 8, 2020. (2) You must use this service information identified in this final rule, contact as applicable to do the actions required by (d) Compliance Helicopter Technology Company, LLC, this AD, unless the AD specifies otherwise. address 12902 South Broadway, Los You are responsible for performing each (i) Bell Alert Service Bulletin 505–19–13, Angeles, CA 90061; telephone (310) action required by this AD within the dated July 2, 2019. specified compliance time unless it has (ii) [Reserved] 523–2750; email gburdorf@ already been accomplished prior to that time. (3) For service information identified in helicoptertech.com; or at http:// this AD, contact Bell Helicopter Textron www.helicoptertech.com. You may view (e) Required Actions Canada Limited, 12,800 Rue de l’Avenir, this service information at the FAA, Within 20 hours time-in-service, inspect Mirabel, Quebec J7J1R4; telephone 450–437– Office of the Regional Counsel, both sides of each swashplate assembly 2862 or 800–363–8023; fax 450–433–0272; or Southwest Region, 10101 Hillwood bearing (bearing) for staking by following the at https://www.bellcustomer.com. Pkwy, Room 6N–321, Fort Worth, TX Accomplishment Instructions, paragraph 4., (4) You may view this service information 76177. For information on the of Bell Alert Service Bulletin 505–19–13, at FAA, Office of the Regional Counsel, availability of this material at the FAA, dated July 2, 2019, except you may use a 10X Southwest Region, 10101 Hillwood Pkwy., or higher power magnifying glass. If either Room 6N–321, Fort Worth, TX 76177. For call (817) 222–5110. It is also available side of a bearing is not staked, before further information on the availability of this on the internet at https:// flight, remove the bearing from service. material at the FAA, call 817–222–5110. www.regulations.gov by searching for and locating Docket No. FAA–2020– (f) Special Flight Permits (5) You may view this service information that is incorporated by reference at the 0483. A special flight permit may be permitted National Archives and Records for a one-time ferry flight to an authorized Administration (NARA). For information on Examining the AD Docket repair facility. the availability of this material at NARA, You may examine the AD docket on (g) Alternative Methods of Compliance email [email protected], or go to: https:// the internet at https:// (AMOCs) www.archives.gov/federal-register/cfr/ibr- www.regulations.gov by searching for locations.html. (1) The Manager, Rotorcraft Standards and locating Docket No. FAA–2020– Branch, FAA, may approve AMOCs for this Issued on September 3, 2020. 0483; or in person at Docket Operations AD. Send your proposal to: Daniel E. Moore, Lance T. Gant, between 9 a.m. and 5 p.m., Monday Aviation Safety Engineer, Regulations & Director, Compliance & Airworthiness through Friday, except Federal holidays. Policy Section, Rotorcraft Standards Branch, Division, Aircraft Certification Service. The AD docket contains this final rule, FAA, 10101 Hillwood Pkwy., Fort Worth, TX [FR Doc. 2020–20911 Filed 9–22–20; 8:45 am] any comments received, and other 76177; telephone 817–222–5110; email 9- information. The address for Docket [email protected]. BILLING CODE 4910–13–P (2) For operations conducted under a 14 Operations is Docket Operations, U.S. CFR part 119 operating certificate or under Department of Transportation, Docket 14 CFR part 91, subpart K, the FAA suggests DEPARTMENT OF TRANSPORTATION Operations, M–30, West Building that you notify your principal inspector, or Ground Floor, Room W12–140, 1200 lacking a principal inspector, the manager of Federal Aviation Administration New Jersey Avenue SE, Washington, DC the local flight standards district office or 20590. certificate holding district office, before 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: operating any aircraft complying with this AD through an AMOC. [Docket No. FAA–2020–0483; Product Payman Soltani, Aviation Safety Identifier 2016–SW–066–AD; Amendment Engineer, Los Angeles ACO Branch, (h) Additional Information 39–21241; AD 2020–18–20] FAA, 3960 Paramount Blvd., Lakewood, (1) Bell Helicopter BHT–ALL–SPM Chapter California 90712; telephone (562) 627– 9—Bearings, Sleeves, and Bushings Revision RIN 2120–AA64 5313; email [email protected]. 7 dated March 24, 2017 dated, which is not SUPPLEMENTARY INFORMATION: incorporated by reference, contains Airworthiness Directives; MD additional information about the subject of Helicopters Inc. (MDHI), Helicopters Discussion this AD. For service information identified in this AD, contact Bell Helicopter Textron AGENCY: Federal Aviation The FAA issued a notice of proposed Canada Limited, 12,800 Rue de l’Avenir, Administration (FAA), DOT. rulemaking (NPRM) to amend 14 CFR Mirabel, Quebec J7J1R4; telephone 450–437– ACTION: Final rule. part 39 by adding an AD that would 2862 or 800–363–8023; fax 450–433–0272; or apply to MDHI Model 369A, 369D, at https://www.bellcustomer.com. You may SUMMARY: The FAA is adopting a new 369E, 369FF, 369H, 369HE, 369HM, view a copy of the service information at the airworthiness directive (AD) for certain 369HS, 500N, and 600N helicopters FAA, Office of the Regional Counsel, MD Helicopters Inc. (MDHI) Model with a MR blade part number (P/N) Southwest Region, 10101 Hillwood Pkwy., 369A, 369D, 369E, 369FF, 369H, 369HE, 500P2100–105, P/N 500P2100–305, P/N Room 6N–321, Fort Worth, TX 76177. 369HM, 369HS, 500N, and 600N 500P2300–505, P/N 369D21120–505, P/ (2) The subject of this AD is addressed in Transport Canada AD No. CF–2019–28, dated helicopters. This AD was prompted by N 369D21121–505, or P/N 369D21123– July 25, 2019. You may view the Transport reports of abrasion strips departing the 505 with a 1.25 inch chord length nickel Canada AD on the internet at https:// main rotor (MR) blade in-flight. This AD abrasion strip (abrasion strip) www.regulations.gov by searching for and requires tap inspecting each MR blade manufactured or installed by Helicopter locating it in Docket No. FAA–2020–0795. leading edge abrasion strip. The FAA is Technology Company, LLC (HTC), or

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where the manufacturer of the abrasion about a third of the abrasion strips have requirements as proposed with minor strip is unknown, except if the abrasion been modified and others have editorial changes. These minor changes strip has accumulated 700 or more accumulated more than 700 hours TIS, are consistent with the proposals in the hours time-in-service (TIS). The NPRM and therefore would not be affected by NPRM and will not increase the published in the Federal Register on this AD. However, because some economic burden on any operator nor May 14, 2020 (85 FR 28895). affected abrasion strips are still in increase the scope of the AD. The NPRM was prompted by reports service or may be stored as spare parts, of leading edge abrasion strips the unsafe condition exists and Related Service Information Under 1 manufactured by HTC departing the MR corrective action is necessary. The FAA CFR Part 51 blades during flight. An investigation has made no changes based on these The FAA reviewed HTC Mandatory determined that the abrasion strips were comments. Service Bulletin Notice No. 2100–8R4, manufactured from electroformed Request: Wilson Construction dated June 1, 2017, which specifies a nickel, have a chord length of 1.25 inch, requested that the FAA change the daily tap inspection of the MR blade and are delaminating from the MR blade NPRM to allow pilots to perform the tap abrasion strip to detect voids. If there before departing from the helicopter. test following proper training, to avoid are any voids, this service information HTC has determined that a repetitive difficulties complying with the AD specifies repairing or replacing the MR tap inspection of the abrasion strips while away from base of operations or blade, depending on the size, quantity, should be performed on all blades with during cross country flights. The and location of any damage. abrasion strips that have less than 700 commenter stated that this would be This service information is reasonably hours TIS to detect any voids, including consistent with AD 88–17–09 R1 available because the interested parties blistering, bubbling, or lifting of the (Amendment 39–6400; 54 FR 48583, have access to it through their normal abrasion strip. Identical looking November 24, 1989) (‘‘AD 88–17–09 course of business or by the means electroformed nickel abrasion strips R1’’), which allows a pilot to perform a identified in the ADDRESSES section. pre-flight check, and that the test itself with a chord length of 1.25 inch Costs of Compliance manufactured by other repair stations is simple to perform. have not departed in flight and therefore FAA’s Response: The FAA disagrees. The FAA estimates that this AD were not proposed as the subject of this AD 88–17–09 R1 allows the pilot to affects 50 helicopters of U.S. Registry. AD. perform a check of the tail boom The FAA estimates that operators may To address this unsafe condition, the extension for security. This check is an incur the following costs in order to NPRM proposed to require tap exception to the FAA’s standard comply with this AD. inspecting the abrasion strip within 10 maintenance regulations and is allowed At an average labor rate of $85 per hours TIS and thereafter before the first in AD 88–17–09 R1 because it is a visual hour, tap-testing the MR blades requires flight of each day until the abrasion check that can be performed equally about 0.25 work-hour, for a cost per strip has accumulated 700 or more well by a pilot or a mechanic and does helicopter of $22 per inspection cycle. hours TIS since installation. not require training or the use of tools. If required, replacing an MR blade Since the tap inspection proposed in the requires about 1 work-hour and required Comments NPRM would require both training and parts cost up to $24,130, for a cost per The FAA gave the public the the use of a tool, allowing a pilot to helicopter of $24,215. opportunity to participate in developing perform it is not acceptable. The FAA According to HTC’s service this final rule. The following presents made no changes in this final rule based information, some of the costs of this the comments received on the NPRM on this comment. AD may be covered under warranty, and the FAA’s response to each Request: Wilson Construction stated thereby reducing the cost impact on comment. the inspection criteria in the proposed affected individuals. The FAA does not AD are already specified by the control warranty coverage by HTC. Supportive Comment manufacturer of the MR blades (HTC) Accordingly, the FAA has included all The FAA received one comment in and by MDHI. The commenter stated if costs in this cost estimate. support of the NPRM. owners/operators would follow the Authority for This Rulemaking manufacturer’s instructions, then an AD Requests would not be necessary. Title 49 of the United States Code Request: HTC stated that the NPRM FAA’s Response: The FAA agrees. Not specifies the FAA’s authority to issue proposed to mandate its service bulletin all operators are required to incorporate rules on aviation safety. Subtitle I, that was issued June 1, 2017, and that a manufacturer’s maintenance section 106, describes the authority of there has not been a documented case instructions into the operator’s the FAA Administrator. Subtitle VII: of an abrasion strip departure related to maintenance program. Where the FAA Aviation Programs, describes in more this issue in 4 years. HTC further stated has determined that a manufacturer’s detail the scope of the Agency’s that the majority of affected operators maintenance instructions are necessary authority. have either modified the abrasion strip to correct an unsafe condition, the FAA The FAA is issuing this rulemaking or accumulated more than 700 hours must issue an AD to mandate those under the authority described in TIS, such that the proposed AD would instructions. The FAA made no changes Subtitle VII, Part A, Subpart III, Section no longer apply. Although HTC did not in this final rule based on this comment. 44701: General requirements. Under request any changes to the NPRM, the that section, Congress charges the FAA FAA infers that this commenter would FAA’s Determination with promoting safe flight of civil like the FAA to withdraw the proposed The FAA has reviewed the relevant aircraft in air commerce by prescribing AD. information, considered the comments regulations for practices, methods, and FAA’s Response: The FAA partially received, and determined that an unsafe procedures the Administrator finds agrees. The FAA has not received any condition exists and is likely to exist or necessary for safety in air commerce. reports of an abrasion strip departure develop on other products of these same This regulation is within the scope of related to this issue since issuance of type designs and that air safety and the that authority because it addresses an the HTC service bulletin. In addition, public interest require adopting the AD unsafe condition that is likely to exist or

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develop on products identified in this (b) Unsafe Condition helicoptertech.com; or at http:// rulemaking action. This AD defines the unsafe condition as www.helicoptertech.com. failure of the bond between the leading edge (4) You may view this service information Regulatory Findings abrasion strip and an MR blade. This at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, This AD will not have federalism condition could result in the abrasion strip departing the MR blade in-flight, subsequent Room 6N 321, Fort Worth, TX 76177. For implications under Executive Order imbalance of the rotor system, and loss of information on the availability of this 13132. This AD will not have a control of the helicopter. material at the FAA, call (817) 222–5110. substantial direct effect on the States, on (5) You may view this service information the relationship between the national (c) Effective Date that is incorporated by reference at the government and the States, or on the This AD becomes effective October 28, National Archives and Records distribution of power and 2020. Administration (NARA). For information on responsibilities among the various the availability of this material at NARA, (d) Compliance email [email protected], or go to: https:// levels of government. You are responsible for performing each www.archives.gov/federal-register/cfr/ibr- For the reasons discussed above, I action required by this AD within the locations.html. certify that this AD: specified compliance time unless it has already been accomplished prior to that time. Issued on August 31, 2020. (1) Is not a ‘‘significant regulatory Gaetano A. Sciortino, action’’ under Executive Order 12866, (e) Required Actions Deputy Director for Strategic Initiatives, (2) Will not affect intrastate aviation Within 10 hours TIS and thereafter before Compliance & Airworthiness Division, in Alaska, and the first flight of each day, tap inspect each Aircraft Certification Service. MR blade leading edge abrasion strip for a (3) Will not have a significant [FR Doc. 2020–20930 Filed 9–22–20; 8:45 am] economic impact, positive or negative, void in accordance with Part 1—Inspection, paragraphs 2 through 4, of HTC Mandatory BILLING CODE 4910–13–P on a substantial number of small entities Service Bulletin Notice No. 2100–8R4, dated under the criteria of the Regulatory June 1, 2017. Flexibility Act. (1) If there is a void within 0.5 inch (12.7 DEPARTMENT OF TRANSPORTATION mm) of the edge of the abrasion strip, before List of Subjects in 14 CFR Part 39 further flight, replace the MR blade. Federal Aviation Administration Air transportation, Aircraft, Aviation (2) If there is a void larger than 0.5 square safety, Incorporation by reference, inch (322.6 square mm) or if there is more 14 CFR Part 71 than one void of any size, before further Safety. flight, replace the MR blade. [Docket No. FAA–2020–0828; Airspace Docket No. 20–AWA–1] Adoption of the Amendment (f) Alternative Methods of Compliance Accordingly, under the authority (AMOC) RIN 2120–AA66 delegated to me by the Administrator, (1) The Manager, Los Angeles ACO Branch, FAA, may approve AMOCs for this AD. Send Amendment of Phoenix Sky Harbor the FAA amends 14 CFR part 39 as Class B Legal Description follows: your proposal to: Payman Soltani, Aviation Safety Engineer, Los Angeles ACO Branch, AGENCY: Federal Aviation PART 39—AIRWORTHINESS FAA, 3960 Paramount Blvd., Lakewood, California 90712; telephone (562) 627–5313; Administration (FAA), DOT. DIRECTIVES email 9-ANM-LAACO-AMOC-REQUESTS@ ACTION: Final rule, technical faa.gov. amendment. ■ 1. The authority citation for part 39 (2) For operations conducted under a 14 continues to read as follows: CFR part 119 operating certificate or under SUMMARY: This action amends the Authority: 49 U.S.C. 106(g), 40113, 44701. 14 CFR part 91, subpart K, the FAA suggests Phoenix Sky Harbor Class B legal that you notify your principal inspector, or description by accurately reflecting the § 39.13 [Amended] lacking a principal inspector, the manager of name of the geographical reference the local flight standards district office or ■ 2. The FAA amends § 39.13 by adding certificate holding district office before point, I–10/Squaw Peak Stack to I–10/ the following new airworthiness operating any aircraft complying with this Stack contained in the Area A and Area directive (AD): AD through an AMOC. D legal description. The FAA is taking this action because the local community (g) Subject 2020–18–20 MD Helicopters Inc. (MDHI): removed Squaw Peak from the Amendment 39–21241; Docket No. Joint Aircraft Service Component (JASC) geographical reference point and to FAA–2020–0483; Product Identifier Code: 6210, Main Rotor Blade. 2016–SW–066–AD. ensure accurate information is reflected. (h) Material Incorporated by Reference DATES: 0901 UTC, December 31, 2020. (a) Applicability (1) The Director of the Federal Register The Director of the Federal Register This AD applies to MD Helicopters Inc. approved the incorporation by reference approves this incorporation by reference (MDHI) Model 369A, 369D, 369E, 369FF, (IBR) of the service information listed in this action under Title 1 Code of Federal 369H, 369HE, 369HM, 369HS, 500N, and paragraph under 5 U.S.C. 552(a) and 1 CFR Regulation part 51, subject to the annual 600N helicopters, certificated in any part 51. category, with a main rotor (MR) blade part (2) You must use this service information revision of FAA Order 7400.11 and number (P/N) 500P2100–105, P/N 500P2100– as applicable to do the actions required by publication of conforming amendments. 305, P/N 500P2300–505, P/N 369D21120– this AD, unless the AD specifies otherwise. ADDRESSES: FAA Order 7400.11E, 505, P/N 369D21121–505, or P/N (i) Helicopter Technology Company, LLC, Airspace Designations and Reporting 369D21123–505 with a 1.25 inch chord Mandatory Service Bulletin Notice No. 2100– Points, and subsequent amendments can length nickel abrasion strip (abrasion strip) 8R4, dated June 1, 2017. be viewed online at http://www.faa.gov/ manufactured or installed by Helicopter (ii) [Reserved] _ Technology Company, LLC (HTC), or where (3) For service information identified in air traffic/publications/. For further the manufacturer of the abrasion strip is this AD, contact Helicopter Technology information, you can contact the Rules unknown. This AD does not apply if the Company, LLC, address 12902 South and Regulations Group, Federal abrasion strip has accumulated 700 or more Broadway, Los Angeles, CA 90061; telephone Aviation Administration, 800 hours time-in-service (TIS). (310) 523–2750; email gburdorf@ Independence Avenue SW, Washington,

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DC 20591; telephone: (202) 267–8783. Class B Airspace is published in warrant preparation of an The Order is also available for paragraph 3000 Subpart B, of FAA environmental assessment. inspection at the National Archives and Order 7400.11E, signed July 21, 2020, List of Subjects in 14 CFR Part 71 Records Administration (NARA). For and effective September 15, 2020, which information on the availability of FAA is incorporated by reference in 14 CFR Airspace, Incorporation by reference, Order 7400.11E at NARA, email: 71.1. The Class B Airspace listed in this Navigation (air). [email protected] or go to https:// document will be published Adoption of the Amendment www.archives.gov/federal-register/cfr/ subsequently in the Order. ibr-locations.html. In consideration of the foregoing, the Regulatory Notices and Analyses FOR FURTHER INFORMATION CONTACT: Federal Aviation Administration Christopher McMullin, Airspace Policy The FAA has determined that this amends 14 CFR part 71 as follows: regulation only involves an established Group, Office of Policy, Federal PART 71—DESIGNATION OF CLASS A, Aviation Administration, 800 body of technical regulations for which frequent and routine amendments are B, C, D, AND E AIRSPACE AREAS; AIR Independence Avenue SW, Washington, TRAFFIC SERVICE ROUTES; AND DC 20591; telephone: (202) 267–8783. necessary to keep them operationally current. It, therefore: (1) Is not a REPORTING POINTS SUPPLEMENTARY INFORMATION: ‘‘significant regulatory action’’ under ■ 1. The authority citation for 14 CFR Authority for This Rulemaking Executive Order 12866; (2) is not a part 71 continues to read as follows: The FAA’s authority to issue rules ‘‘significant rule’’ under Department of Authority: 49 U.S.C. 106(g), 40103, 40113, regarding aviation safety is found in Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Title 49 of the United States Code. 1963 Comp., p. 389. Subtitle I, Section 106 describes the February 26, 1979); and (3) does not authority of the FAA Administrator. warrant preparation of a regulatory § 71.1 [Amended] evaluation as the anticipated impact is Subtitle VII, Aviation Programs, ■ 2. The incorporation by reference in so minimal. Since this is a routine describes in more detail the scope of the 14 CFR 71.1 of FAA Order 7400.11E, matter that only affects air traffic agency’s authority. This rulemaking is Airspace Designations and Reporting procedures and air navigation, it is promulgated under the authority Points, signed July 21, 2020, and described in Subtitle VII, Part A, certified that this rule, when promulgated, does not have a significant effective September 15, 2020, is Subpart I, Section 40103. Under that amended as follows: section, the FAA is charged with economic impact on a substantial prescribing regulations to assign the use number of small entities under the Paragraph 3000 Subpart B—Class B of the airspace necessary to ensure the criteria of the Regulatory Flexibility Act. Airspace. safety of aircraft and the efficient use of Environmental Review * * * * * airspace. This regulation is within the The FAA has determined that this AWP AZ B Phoenix, AZ scope of that authority as it modifies the Phoenix Sky Harbor International Airport Phoenix Sky Harbor Class B legal action of amending the airspace descriptions of the Phoenix Sky Harbor, (Primary Airport) description to preserve the safe and (Lat. 33°26′03″ N, long. 112°00′42″ W) efficient flow of air traffic. Class B area A and Area D legal description, by removing the references Phoenix VORTAC (Lat. 33°25′59″ N, long. 111°58′13″ W) Availability and Summary of to the term Squaw Peak as a geographic Documents for Incorporation by reference point, qualifies for categorical Boundaries Reference exclusion under the National Area A. That airspace extending upward This document amends FAA Order Environmental Policy Act and its from the surface to and including 9,000 feet 7400.11E, Airspace Designations and agency-specific implementing MSL defined by an east/west line along the regulations in FAA Order 1050.1F, northern boundary defined by Camelback Reporting Points, dated July 21, 2020, Road and the PXR 10 DME, thence east to the and effective September 15, 2020. FAA ‘‘Environmental Impacts: Policies and Procedures’’ regarding categorical intersection of Camelback Road and I–17; Order 7400.11E is publicly available as thence a line direct to the I–10 Stack listed in the ADDRESSES section of this exclusions for procedural actions at following the Loop 202 Freeway from the I– document. FAA Order 7400.11E lists paragraph 5–6.5a, which categorically 10 Stack to the Red Mountain Hohokam Class A, B, C, D, and E airspace areas, excludes from full environmental Stack; thence northeast to the intersection of impact review rulemaking actions that Camelback Road and Hayden Wash (lat. air traffic service routes, and reporting ° ′ ″ ° ′ ″ points. designate or modify classes of airspace 33 30 07 N, long. 111 54 32 W); thence east areas, airways, routes, and reporting along Camelback Road to the PXR 6 DME arc The Rule (lat. 33°30′07″ N, long. 111°53′00″ W); thence points (see 14 CFR part 71, Designation ° ′ ″ of Class A, B, C, D, and E Airspace south to the Power Line/Canal (lat. 33 21 25 This action amends Title 14 of the N, long. 111°53′33″ W); thence west to a Code of Federal Regulations (14 CFR) Areas; Air Traffic Service Routes; and point at lat. 33°21′25″ N, long. 111°54′55″ W, part 71 by amending the Phoenix Sky Reporting Points). This airspace action thence northwest to the intersection of I–10 Harbor, Class B Area A and Area D legal is an editorial change only and is not and SR–143 (lat. 33°24′37″ N, long. description, removing the terms Squaw expected to result in any potentially 111°58′38″ W); thence west to SR–51/I–10 Peak, due to the same actions by local significant environmental impacts. In extension to lat. 33°24′34″ N, long. community legislation. accordance with FAA Order 1050.1F, 112°02′13″W, thence southwest to a point at Since this action merely involves paragraph 5–2 regarding Extraordinary lat. 33°21′45″ N, long. 112°06′20″ W; thence ° ′ ″ editorial changes in the legal Circumstances, this action has been west along the lat. 33 21 45 N; thence north description of the Phoenix Sky Harbor, reviewed for factors and circumstances along the PXR 10 DME arc until intersecting Camelback Road. Class B, Area A and Area D and does in which a normally categorically Area D. That airspace extending upward not involve a change in the dimensions excluded action may have a significant from 5,000 feet MSL to and including 9,000 or operating requirements of that environmental impact requiring further feet MSL defined by an east/west line along airspace, notice and public procedure analysis, and it is determined that no the northern boundary using the Peoria under 5 U.S.C. 553(b) are unnecessary. extraordinary circumstances exist that Avenue/Shea Boulevard alignment from the

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intersection of I–17 (lat. 33°35′00″ N, long. inspection at the National Archives and listed in the ADDRESSES section of this 112°07′00″ W); thence east along lat. Records Administration (NARA). For document. FAA Order 7400.11E lists 33°35′00″ N to the intersection with Pima ° ′ ″ ° information on the availability of FAA Class A, B, C, D, and E airspace areas, Road (lat. 33 35 00 N, long. 111 53’28 W); Order 7400.11E at NARA, email thence south along Pima Road to the air traffic service routes, and reporting intersection of Camelback Road; thence west [email protected] or go to https:// points. www.archives.gov/federal-register/cfr/ along Camelback Road to Hayden Wash (lat. The Rule 33°30′07″ N, long. 111°54′32″ W); thence ibr-locations.html. southwest on a line direct to the Red FOR FURTHER INFORMATION CONTACT: This amendment to Title 14 Code of Mountain Hohokam Stack; thence west along Jeffrey Claypool, Federal Aviation Federal Regulations (14 CFR) part 71 the Loop 202 Freeway to the I–10 Stack; Administration, Operations Support thence northwest to the intersection of amends the Class E airspace extending Group, Central Service Center, 10101 upward from 700 feet above the surface Camelback Road and I–17; thence north Hillwood Parkway, Fort Worth, TX along I–17 to the intersection of I–17 and to within a 7.2-mile (increased from a 76177; telephone (817) 222–5711. Peoria Avenue/Shea Boulevard. 6.4-mile) radius of Frankfort Dow SUPPLEMENTARY INFORMATION: * * * * * Memorial Field Airport, Frankfort, MI; Authority for This Rulemaking removes the Manistee VOR/DME and Scott M. Rosenbloom, The FAA’s authority to issue rules associated extension from the airspace Acting Manager, Rules and Regulations legal description, as it is no longer Group. regarding aviation safety is found in Title 49 of the United States Code. required; and updates the geographic [FR Doc. 2020–20923 Filed 9–22–20; 8:45 am] coordinates of the airport to coincide BILLING CODE 4910–13–P Subtitle I, Section 106 describes the authority of the FAA Administrator. with the FAA’s aeronautical database. Subtitle VII, Aviation Programs, This action is the result of an airspace DEPARTMENT OF TRANSPORTATION describes in more detail the scope of the review caused by the cancellation of agency’s authority. This rulemaking is instrument procedures at this airport. Federal Aviation Administration promulgated under the authority FAA Order 7400.11, Airspace described in Subtitle VII, Part A, Designations and Reporting Points, is 14 CFR Part 71 Subpart I, Section 40103. Under that published yearly and effective on section, the FAA is charged with [Docket No. FAA–2020–0630; Airspace September 15. Docket No. 20–AGL–25] prescribing regulations to assign the use of airspace necessary to ensure the Regulatory Notices and Analyses RIN 2120–AA66 safety of aircraft and the efficient use of airspace. This regulation is within the The FAA has determined that this Amendment of Class E Airspace; scope of that authority as it amends the regulation only involves an established Frankfort, MI Class E airspace extending upward from body of technical regulations for which AGENCY: Federal Aviation 700 feet above the surface at Frankfort frequent and routine amendments are Administration (FAA), DOT. Dow Memorial Field Airport, Frankfort, necessary to keep them operationally current, is non-controversial and ACTION: Final rule. MI, to support instrument flight rule operations at this airport. unlikely to result in adverse or negative SUMMARY: comments. It, therefore: (1) Is not a This action amends the Class History E airspace extending upward from 700 ‘‘significant regulatory action’’ under feet above the surface at Frankfort Dow The FAA published a notice of Executive Order 12866; (2) is not a Memorial Field Airport, Frankfort, MI. proposed rulemaking in the Federal ‘‘significant rule’’ under DOT This action as the result of an airspace Register (85 FR 43510; July 17, 2020) for Regulatory Policies and Procedures (44 review caused by the cancellation of Docket No. FAA–2020–0630 to amend FR 11034; February 26, 1979); and (3) instrument procedures at the airport. the Class E airspace extending upward does not warrant preparation of a The geographic coordinates of the from 700 feet above the surface at regulatory evaluation as the anticipated airport are also being updated to Frankfort Dow Memorial Field Airport, impact is so minimal. Since this is a coincide with the FAA’s aeronautical Frankfort, MI. Interested parties were routine matter that only affects air traffic database. invited to participate in this rulemaking procedures and air navigation, it is effort by submitting written comments certified that this rule, when DATES: Effective 0901 UTC, December on the proposal to the FAA. No 31, 2020. The Director of the Federal promulgated, does not have a significant comments were received. economic impact on a substantial Register approves this incorporation by Class E airspace designations are reference action under Title 1 Code of number of small entities under the published in paragraph 6005 of FAA criteria of the Regulatory Flexibility Act. Federal Regulations part 51, subject to Order 7400.11E, dated July 21, 2020, the annual revision of FAA Order and effective September 15, 2020, which Environmental Review 7400.11 and publication of conforming is incorporated by reference in 14 CFR amendments. 71.1. The Class E airspace designations The FAA has determined that this ADDRESSES: FAA Order 7400.11E, listed in this document will be action qualifies for categorical exclusion Airspace Designations and Reporting published subsequently in the Order. under the National Environmental Points, and subsequent amendments can Policy Act in accordance with FAA be viewed online at https:// Availability and Summary of Order 1050.1F, ‘‘Environmental www.faa.gov/air_traffic/publications/. Documents for Incorporation by Impacts: Policies and Procedures,’’ For further information, you can contact Reference paragraph 5–6.5.a. This airspace action the Airspace Policy Group, Federal This document amends FAA Order is not expected to cause any potentially Aviation Administration, 800 7400.11E, Airspace Designations and significant environmental impacts, and Independence Avenue SW, Washington, Reporting Points, dated July 21, 2020, no extraordinary circumstances exist DC 20591; telephone: (202) 267–8783. and effective September 15, 2020. FAA that warrant preparation of an The Order is also available for Order 7400.11E is publicly available as environmental assessment.

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Lists of Subjects in 14 CFR Part 71 airway, A–1 in Alaska. The History modifications are necessary due to the Airspace, Incorporation by reference, The FAA published a notice of planned decommissioning of the Navigation (air). proposed rulemaking for Docket No. Campbell Lake Non-Directional Beacon FAA–2020–0504 in the Federal Register Adoption of the Amendment (NDB) in Anchorage, AK, which (85 FR 35818; June 12, 2020) removing provides navigation guidance for In consideration of the foregoing, the Colored Federal airways A–7, G–11 and portions of the affected routes. The Federal Aviation Administration amending A–1. Interested parties were Campbell Lake NDB is to be amends 14 CFR part 71 as follows: invited to participate in this rulemaking decommissioned due to ongoing effort by submitting written comments PART 71—DESIGNATION OF CLASS A, maintenance problems. on the proposal. No comments were B, C, D, AND E AIRSPACE AREAS; AIR DATES: Effective date 0901 UTC, received. TRAFFIC SERVICE ROUTES; AND December 31, 2020. The Director of the REPORTING POINTS Colored Federal airways are Federal Register approves this published in paragraph 6009 of FAA incorporation by reference action under ■ Order 7400.11E dated July 21, 2020, and 1. The authority citation for part 71 Title 1 Code of Federal Regulations part continues to read as follows: effective September 15, 2020, which is 51, subject to the annual revision of incorporated by reference in 14 CFR Authority: 49 U.S.C. 106(f), 106(g); 40103, FAA Order 7400.11 and publication of 71.1. The Colored Federal airway listed 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, conforming amendments. 1959–1963 Comp., p. 389. in this document will be subsequently ADDRESSES: FAA Order 7400.11E, published in the Order. § 71.1 [Amended] Airspace Designations and Reporting Differences From the NPRM ■ 2. The incorporation by reference in Points, and subsequent amendments can be viewed online at https:// In the NPRM amendment section 14 CFR 71.1 of FAA Order 7400.11E, _ Airspace Designations and Reporting www.faa.gov/air traffic/publications/. addressing the proposed removal of A– Points, dated July 21, 2020, and For further information, you can contact 7, the text was stated in error as G–7. effective September 15, 2020, is the Rules and Regulations Group, This rule corrects that editorial error in amended as follows: Federal Aviation Administration, 800 the amendment section. Independence Avenue SW, Washington, Paragraph 6005 Class E Airspace Areas DC 20591; telephone: (202) 267–8783. Availability and Summary of Extending Upward From 700 Feet or More The Order is also available for Documents for Incorporation by Above the Surface of the Earth. inspection at the National Archives and Reference * * * * * Records This document amends FAA Order AGL MI E5 Frankfort, MI [Amended] Administration (NARA). For 7400.11E, Airspace Designations and Frankfort Dow Memorial Field Airport, MI information on the availability of FAA Reporting Points, dated July 21, 2020, (Lat. 44°37′31″ N, long. 86°12′03′ W) Order 7400.11E at NARA, email: and effective September 15, 2020. FAA That airspace extending upward from 700 [email protected] or go to https:// Order 7400.11E is publicly available as feet above the surface within a 7.2-mile www.archives.gov/federal-register/cfr/ listed in the ADDRESSES section of this radius of the Frankfort Dow Memorial Field ibr-locations.html. document. FAA Order 7400.11E lists Airport. FOR FURTHER INFORMATION CONTACT: Class A, B, C, D, and E airspace areas, Issued in Fort Worth, Texas, on September Christopher McMullin, Rules and air traffic service routes, and reporting 17, 2020. Regulations Group, Office of Policy, points. Steven T. Phillips, Federal Aviation Administration, 800 The Rule Acting Manager, Operations Support Group, Independence Avenue SW, Washington, ATO Central Service Center. DC 20591; telephone: (202) 267–8783. The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 [FR Doc. 2020–20881 Filed 9–22–20; 8:45 am] SUPPLEMENTARY INFORMATION: by modifying Colored Federal airways BILLING CODE 4910–13–P Authority for This Rulemaking A–7, G–11, and A–1. The Colored Airway actions are described below. The FAA’s authority to issue rules DEPARTMENT OF TRANSPORTATION regarding aviation safety is found in A–7: A–7 currently extends between Title 49 of the United States Code. the Campbell Lake, AK, NDB and the Federal Aviation Administration Subtitle I, Section 106 describes the Mineral Creek, AK, NDB. This action authority of the FAA Administrator. removes the entire route. 14 CFR Part 71 Subtitle VII, Aviation Programs, G–11: G–11 currently extends [Docket No. FAA–2020–0504; Airspace describes in more detail the scope of the between the Campbell Lake, AK, NDB Docket No. 20–AAL–4] agency’s authority. This rulemaking is and the Nabesna, AK, NDB. This action promulgated under the authority removes the entire route. RIN 2120–AA66 described in Subtitle VII, Part A, A–1: A–1 currently extends from the Abbotsford, BC, Canada, NDB and the Removal of Colored Federal Airways Subpart I, Section 40103. Under that section, the FAA is charged with Fort Davis, AK NDB. The FAA action Amber 7 (A–7), Green 11 (G–11), and removes the segment between the Orca Amendment of Amber 1 (A–1); Alaska prescribing regulations to assign the use of the airspace necessary to ensure the Bay, AK, NDB and the Takotna River, AGENCY: Federal Aviation safety of aircraft and the efficient use of AK, NDB. The unaffected portions of the Administration (FAA), DOT. airspace. This regulation is within the existing route remain as charted. The ACTION: Final rule. scope of that authority as it modifies the portion within Canada is excluded. air traffic service route structure in the FAA Order 7400.11, Airspace SUMMARY: This action removes two National Airspace System as necessary Designations and Reporting Points, is Colored Federal airways, A–7 and G–11, to preserve the safe and efficient flow of published yearly and effective on and amends one Colored Federal air traffic. September 15.

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Regulatory Notices and Analyses PART 71—DESIGNATION OF CLASS A, SUMMARY: This document announces the The FAA has determined that this B, C, D, AND E AIRSPACE AREAS; AIR decision of the Secretary of Homeland regulation only involves an established TRAFFIC SERVICE ROUTES; AND Security (Secretary) to continue to body of technical regulations for which REPORTING POINTS temporarily limit the travel of frequent and routine amendments are individuals from Mexico into the United ■ 1. The authority citation for part 71 States at land ports of entry along the necessary to keep them operationally continues to read as follows: current. It, therefore: (1) Is not a United States-Mexico border. Such ‘‘significant regulatory action’’ under Authority: 49 U.S.C. 106(f), 106(g); 40103, travel will be limited to ‘‘essential Executive Order 12866; (2) is not a 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, travel,’’ as further defined in this 1959–1963 Comp., p. 389. ‘‘significant rule’’ under Department of document. Transportation (DOT) Regulatory § 71.1 [Amended] DATES: These restrictions go into effect Policies and Procedures (44 FR 11034; ■ 2. The incorporation by reference in at 12 a.m. Eastern Daylight Time (EDT) February 26, 1979); and (3) does not 14 CFR 71.1 of FAA Order 7400.11E, on September 22, 2020 and will remain warrant preparation of a regulatory Airspace Designations and Reporting in effect until 11:59 p.m. EDT on evaluation as the anticipated impact is Points, dated July 21, 2020, and October 21, 2020. so minimal. Since this is a routine effective September 15, 2020, is FOR FURTHER INFORMATION CONTACT: matter that only affects air traffic amended as follows: Alyce Modesto, Office of Field procedures and air navigation, it is Operations, U.S. Customs and Border certified that this rule, when Paragraph 6009 Colored Federal Airways. Protection (CBP) at 202–344–3788. promulgated, does not have a significant * * * * * SUPPLEMENTARY INFORMATION: economic impact on a substantial A–1 [Amended] number of small entities under the Background criteria of the Regulatory Flexibility Act. From Abbotsford, BC Canada NDB, to Victoria, BC Canada NDB, Sandspit, BC, On March 24, 2020, DHS published Environmental Review Canada, NDB 96 miles 12 AGL, 102 miles 35 MSL, 57 miles 12 AGL, via Sitka, AK, NDB; notice of the Secretary’s decision to The FAA has determined that this 31 miles 12 AGL, 50 miles 47 MSL, 88 miles temporarily limit the travel of airspace action of removing Colored 20 MSL, 40 miles 12 AGL, Ocean Cape, AK, individuals from Mexico into the United Federal airways A–7, G–11, and NDB; INT Ocean Cape NDB 283° and Orca States at land ports of entry along the amending Colored Federal airway A–1 Bay, AK, NDB 106° bearings; Orca Bay NDB; United States-Mexico border to qualifies for categorical exclusion under From Takotna River, AK, NDB; 24 miles 12 ‘‘essential travel,’’ as further defined in the National Environmental Policy Act AGL, 53 miles 55 MSL; 51 miles 40 MSL, 25 that document.1 The document miles 12 AGL, North River, AK, NDB; 17 described the developing circumstances and its implementing regulations at 40 miles 12 AGL, 89 miles 25 MSL, 17 miles 12 CFR part 1500, and in accordance with AGL, to Fort Davis, AK, NDB. Excluding that regarding the COVID–19 pandemic and FAA Order 1050.1F, Environmental airspace within Canada. stated that, given the outbreak and continued transmission and spread of Impacts: Policies and Procedures, * * * * * paragraph 5–6.5a, which categorically the virus associated with COVID–19 excludes from further environmental A–7 [Removed] within the United States and globally, impact review rulemaking actions that * * * * * the Secretary had determined that the risk of continued transmission and designate or modify classes of airspace G–11 [Removed] areas, airways, routes, and reporting spread of the virus associated with * * * * * points (see 14 CFR part 71, Designation COVID–19 between the United States of Class A, B, C, D, and E Airspace Issued in Washington, DC, on September and Mexico posed a ‘‘specific threat to Areas; Air Traffic Service Routes; and 17, 2020. human life or national interests.’’ The Reporting Points). As such, this action Scott M. Rosenbloom, Secretary later published a series of is not expected to result in any Acting Manager, Rules and Regulations notifications continuing such potentially significant environmental Group. limitations on travel until 11:59 p.m. impacts. In accordance with FAA Order [FR Doc. 2020–20924 Filed 9–22–20; 8:45 am] EDT on September 21, 2020.2 1050.1F, paragraph 5–2 regarding BILLING CODE 4910–13–P The Secretary has continued to Extraordinary Circumstances, the FAA monitor and respond to the COVID–19 has reviewed this action for factors and pandemic. As of the week of September circumstances in which a normally DEPARTMENT OF HOMELAND 13, there are over 28.6 million categorically excluded action may have SECURITY confirmed cases globally, with over a significant environmental impact requiring further analysis. The FAA has U.S. Customs and Border Protection 1 85 FR 16547 (Mar. 24, 2020). That same day, determined that no extraordinary DHS also published notice of the Secretary’s circumstances exist that warrant 19 CFR Chapter I decision to temporarily limit the travel of individuals from Canada into the United States at preparation of an environmental Notification of Temporary Travel land ports of entry along the United States-Canada assessment or environmental impact border to ‘‘essential travel,’’ as further defined in study. Restrictions Applicable to Land Ports that document. 85 FR 16548 (Mar. 24, 2020). of Entry and Ferries Service Between 2 See 85 FR 51633 (Aug. 21, 2020); 85 FR 44183 List of Subjects in 14 CFR Part 71 the United States and Mexico (July 22, 2020); 85 FR 37745 (June 24, 2020); 85 FR 31057 (May 22, 2020); 85 FR 22353 (Apr. 22, 2020). Airspace, Incorporation by reference, AGENCY: Office of the Secretary, U.S. DHS also published parallel notifications of the Navigation (air). Department of Homeland Security; U.S. Secretary’s decisions to continue temporarily Customs and Border Protection, U.S. limiting the travel of individuals from Canada into The Amendment the United States at land ports of entry along the Department of Homeland Security. In consideration of the foregoing, the United States-Canada border to ‘‘essential travel.’’ ACTION: Notification of continuation of See 85 FR 51634 (Aug. 21, 2020); 85 FR 44185 (July Federal Aviation Administration temporary travel restrictions. 22, 2020); 85 FR 37744 (June 24, 2020); 85 FR 31050 amends 14 CFR part 71 as follows: (May 22, 2020); 85 FR 22352 (Apr. 22, 2020).

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917,000 confirmed deaths.3 There are determined that land ports of entry • Individuals traveling for tourism over 6.5 million confirmed and probable along the U.S.-Mexico border will purposes (e.g., sightseeing, recreation, cases within the United States,4 over continue to suspend normal operations gambling, or attending cultural events). 5 135,000 confirmed cases in Canada, and will only allow processing for entry At this time, this Notification does not and over 658,000 confirmed cases in into the United States of those travelers apply to air, freight rail, or sea travel 6 Mexico. engaged in ‘‘essential travel,’’ as defined between the United States and Mexico, below. Given the definition of ‘‘essential Notice of Action but does apply to passenger rail, travel’’ below, this temporary alteration passenger ferry travel, and pleasure boat Given the outbreak and continued in land ports of entry operations should travel between the United States and transmission and spread of COVID–19 not interrupt legitimate trade between Mexico. These restrictions are within the United States and globally, the two nations or disrupt critical temporary in nature and shall remain in the Secretary has determined that the supply chains that ensure food, fuel, effect until 11:59 p.m. EDT on October risk of continued transmission and medicine, and other critical materials 21, 2020. This Notification may be spread of the virus associated with reach individuals on both sides of the amended or rescinded prior to that time, COVID–19 between the United States border. based on circumstances associated with and Mexico poses an ongoing ‘‘specific For purposes of the temporary the specific threat. threat to human life or national alteration in certain designated ports of interests.’’ entry operations authorized under 19 The Commissioner of U.S. Customs U.S. and Mexican officials have U.S.C. 1318(b)(1)(C) and (b)(2), travel and Border Protection (CBP) is hereby mutually determined that non-essential through the land ports of entry and ferry directed to prepare and distribute travel between the United States and terminals along the United States- appropriate guidance to CBP personnel Mexico poses additional risk of Mexico border shall be limited to on the continued implementation of the transmission and spread of the virus ‘‘essential travel,’’ which includes, but temporary measures set forth in this associated with COVID–19 and places is not limited to— Notification. The CBP Commissioner may determine that other forms of the populace of both nations at • U.S. citizens and lawful permanent travel, such as travel in furtherance of increased risk of contracting the virus residents returning to the United States; associated with COVID–19. Moreover, economic stability or social order, • Individuals traveling for medical given the sustained human-to-human constitute ‘‘essential travel’’ under this purposes (e.g., to receive medical transmission of the virus, returning to Notification. Further, the CBP treatment in the United States); previous levels of travel between the Commissioner may, on an • Individuals traveling to attend two nations places the personnel individualized basis and for educational institutions; staffing land ports of entry between the • humanitarian reasons or for other United States and Mexico, as well as the Individuals traveling to work in the purposes in the national interest, permit individuals traveling through these United States (e.g., individuals working the processing of travelers to the United ports of entry, at increased risk of in the farming or agriculture industry States not engaged in ‘‘essential travel.’’ who must travel between the United exposure to the virus associated with The Acting Secretary of Homeland COVID–19. Accordingly, and consistent States and Mexico in furtherance of such work); Security, Chad F. Wolf, having reviewed with the authority granted in 19 U.S.C. • and approved this document, is 1318(b)(1)(C) and (b)(2),7 I have Individuals traveling for emergency response and public health purposes delegating the authority to electronically sign this document to Chad . Mizelle, 3 (e.g., government officials or emergency WHO, Coronavirus disease 2019 (COVID–19) who is the Senior Official Performing Weekly Epidemiological Update (Sept. 13, 2020), responders entering the United States to available at https://www.who.int/docs/default- support federal, state, local, tribal, or the Duties of the General Counsel for source/coronaviruse/situation-reports/20200914- territorial government efforts to respond DHS, for purposes of publication in the weekly-epi-update-5.pdf?sfvrsn=cf929d04_2. Federal Register. 4 to COVID–19 or other emergencies); CDC, COVID Data Tracker (last updated Sept. • 16, 2020), available at https://covid.cdc.gov/covid- Individuals engaged in lawful cross- Chad R. Mizelle, data-tracker/. border trade (e.g., truck drivers Senior Official Performing the Duties of the 5 WHO, COVID–19 Weekly Epidemiological supporting the movement of cargo General Counsel, U.S. Department of Update (Sept. 13, 2020). between the United States and Mexico); 6 Homeland Security. Id. • Individuals engaged in official 7 19 U.S.C. 1318(b)(1)(C) provides that [FR Doc. 2020–21020 Filed 9–21–20; 8:45 am] ‘‘[n]otwithstanding any other provision of law, the government travel or diplomatic travel; BILLING CODE 9112–FP–P Secretary of the Treasury, when necessary to • Members of the U.S. Armed Forces, respond to a national emergency declared under the and the spouses and children of National Emergencies Act (50 U.S.C. 1601 et seq.) or to a specific threat to human life or national members of the U.S. Armed Forces, DEPARTMENT OF HOMELAND interests,’’ is authorized to ‘‘[t]ake any . . . action returning to the United States; and SECURITY that may be necessary to respond directly to the • Individuals engaged in military- national emergency or specific threat.’’ On March related travel or operations. U.S. Customs and Border Protection 1, 2003, certain functions of the Secretary of the Treasury were transferred to the Secretary of The following travel does not fall Homeland Security. See 6 U.S.C. 202(2), 203(1). within the definition of ‘‘essential 19 CFR Chapter I Under 6 U.S.C. 212(a)(1), authorities ‘‘related to travel’’ for purposes of this Customs revenue functions’’ were reserved to the Notification— Notification of Temporary Travel Secretary of the Treasury. To the extent that any Restrictions Applicable to Land Ports authority under section 1318(b)(1) was reserved to the Secretary of the Treasury, it has been delegated national interests, is authorized to close temporarily of Entry and Ferries Service Between to the Secretary of Homeland Security. See Treas. any Customs office or port of entry or take any other the United States and Canada Dep’t Order No. 100–16 (May 15, 2003), 68 FR lesser action that may be necessary to respond to 28322 (May 23, 2003). Additionally, 19 U.S.C. the specific threat.’’ Congress has vested in the AGENCY: Office of the Secretary, U.S. 1318(b)(2) provides that ‘‘[n]otwithstanding any Secretary of Homeland Security the ‘‘functions of other provision of law, the Commissioner of U.S. all officers, employees, and organizational units of Department of Homeland Security; U.S. Customs and Border Protection, when necessary to the Department,’’ including the Commissioner of Customs and Border Protection, U.S. respond to a specific threat to human life or CBP. 6 U.S.C. 112(a)(3). Department of Homeland Security.

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ACTION: Notification of continuation of confirmed cases globally, with over determined that land ports of entry temporary travel restrictions. 917,000 confirmed deaths.3 There are along the U.S.-Canada border will over 6.5 million confirmed and probable continue to suspend normal operations SUMMARY: This document announces the cases within the United States,4 over and will only allow processing for entry decision of the Secretary of Homeland 135,000 confirmed cases in Canada,5 into the United States of those travelers Security (Secretary) to continue to and over 658,000 confirmed cases in engaged in ‘‘essential travel,’’ as defined temporarily limit the travel of Mexico.6 below. Given the definition of ‘‘essential individuals from Canada into the United Notice of Action travel’’ below, this temporary alteration States at land ports of entry along the in land ports of entry operations should United States-Canada border. Such Given the outbreak and continued not interrupt legitimate trade between travel will be limited to ‘‘essential transmission and spread of COVID–19 the two nations or disrupt critical travel,’’ as further defined in this within the United States and globally, supply chains that ensure food, fuel, document. the Secretary has determined that the medicine, and other critical materials DATES: These restrictions go into effect risk of continued transmission and reach individuals on both sides of the at 12 a.m. Eastern Daylight Time (EDT) spread of the virus associated with border. on September 22, 2020 and will remain COVID–19 between the United States For purposes of the temporary in effect until 11:59 p.m. EDT on and Canada poses an ongoing ‘‘specific alteration in certain designated ports of October 21, 2020. threat to human life or national entry operations authorized under 19 FOR FURTHER INFORMATION CONTACT: interests.’’ U.S.C. 1318(b)(1)(C) and (b)(2), travel Alyce Modesto, Office of Field U.S. and Canadian officials have through the land ports of entry and ferry Operations, U.S. Customs and Border mutually determined that non-essential terminals along the United States- Protection (CBP) at 202–344–3788. travel between the United States and Canada border shall be limited to Canada poses additional risk of SUPPLEMENTARY INFORMATION: ‘‘essential travel,’’ which includes, but transmission and spread of the virus is not limited to— Background associated with COVID–19 and places • U.S. citizens and lawful permanent On March 24, 2020, DHS published the populace of both nations at residents returning to the United States; notice of the Secretary’s decision to increased risk of contracting the virus • Individuals traveling for medical temporarily limit the travel of associated with COVID–19. Moreover, purposes (e.g., to receive medical individuals from Canada into the United given the sustained human-to-human treatment in the United States); States at land ports of entry along the transmission of the virus, returning to • Individuals traveling to attend United States-Canada border to previous levels of travel between the educational institutions; ‘‘essential travel,’’ as further defined in two nations places the personnel • Individuals traveling to work in the that document.1 The document staffing land ports of entry between the United States (e.g., individuals working described the developing circumstances United States and Canada, as well as the in the farming or agriculture industry regarding the COVID–19 pandemic and individuals traveling through these who must travel between the United stated that, given the outbreak and ports of entry, at increased risk of States and Canada in furtherance of continued transmission and spread of exposure to the virus associated with such work); the virus associated with COVID–19 COVID–19. Accordingly, and consistent • Individuals traveling for emergency within the United States and globally, with the authority granted in 19 U.S.C. 7 response and public health purposes the Secretary had determined that the 1318(b)(1)(C) and (b)(2), I have (e.g., government officials or emergency risk of continued transmission and responders entering the United States to spread of the virus associated with 3 WHO, Coronavirus disease 2019 (COVID–19) Weekly Epidemiological Update (Sept. 13, 2020), support federal, state, local, tribal, or COVID–19 between the United States available at https://www.who.int/docs/default- territorial government efforts to respond and Canada posed a ‘‘specific threat to source/coronaviruse/situation-reports/20200914- to COVID–19 or other emergencies); human life or national interests.’’ The weekly-epi-update-5.pdf?sfvrsn=cf929d04_2. • Individuals engaged in lawful cross- 4 Secretary later published a series of CDC, COVID Data Tracker (last updated Sept. border trade (e.g., truck drivers notifications continuing such 16, 2020), available at https://covid.cdc.gov/covid- data-tracker/. supporting the movement of cargo limitations on travel until 11:59 p.m. 5 WHO, COVID–19 Weekly Epidemiological between the United States and Canada); 2 EDT on September 21, 2020. Update (Sept. 13, 2020). • Individuals engaged in official The Secretary has continued to 6 Id. government travel or diplomatic travel; monitor and respond to the COVID–19 7 19 U.S.C. 1318(b)(1)(C) provides that • Members of the U.S. Armed Forces, pandemic. As of the week of September ‘‘[n]otwithstanding any other provision of law, the and the spouses and children of 13, there are over 28.6 million Secretary of the Treasury, when necessary to respond to a national emergency declared under the members of the U.S. Armed Forces, National Emergencies Act (50 U.S.C. 1601 et seq.) returning to the United States; and 1 85 FR 16548 (Mar. 24, 2020). That same day, or to a specific threat to human life or national • Individuals engaged in military- DHS also published notice of the Secretary’s interests,’’ is authorized to ‘‘[t]ake any . . . action decision to temporarily limit the travel of that may be necessary to respond directly to the related travel or operations. individuals from Mexico into the United States at national emergency or specific threat.’’ On March The following travel does not fall land ports of entry along the United States-Mexico 1, 2003, certain functions of the Secretary of the within the definition of ‘‘essential border to ‘‘essential travel,’’ as further defined in Treasury were transferred to the Secretary of travel’’ for purposes of this that document. 85 FR 16547 (Mar. 24, 2020). Homeland Security. See 6 U.S.C. 202(2), 203(1). 2 See 85 FR 51634 (Aug. 21, 2020); 85 FR 44185 Under 6 U.S.C. 212(a)(1), authorities ‘‘related to Notification— (July 22, 2020); 85 FR 37744 (June 24, 2020); 85 FR Customs revenue functions’’ were reserved to the 31050 (May 22, 2020); 85 FR 22352 (Apr. 22, 2020). Secretary of the Treasury. To the extent that any respond to a specific threat to human life or DHS also published parallel notifications of the authority under section 1318(b)(1) was reserved to national interests, is authorized to close temporarily Secretary’s decisions to continue temporarily the Secretary of the Treasury, it has been delegated any Customs office or port of entry or take any other limiting the travel of individuals from Mexico into to the Secretary of Homeland Security. See Treas. lesser action that may be necessary to respond to the United States at land ports of entry along the Dep’t Order No. 100–16 (May 15, 2003), 68 FR the specific threat.’’ Congress has vested in the United States-Mexico border to ‘‘essential travel.’’ 28322 (May 23, 2003). Additionally, 19 U.S.C. Secretary of Homeland Security the ‘‘functions of See 85 FR 51633 (Aug. 21, 2020); 85 FR 44183 (July 1318(b)(2) provides that ‘‘[n]otwithstanding any all officers, employees, and organizational units of 22, 2020); 85 FR 37745 (June 24, 2020); 85 FR 31057 other provision of law, the Commissioner of U.S. the Department,’’ including the Commissioner of (May 22, 2020); 85 FR 22353 (Apr. 22, 2020). Customs and Border Protection, when necessary to CBP. 6 U.S.C. 112(a)(3).

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• Individuals traveling for tourism On page 56521, in the second column, Further, the statute requires FTA to purposes (e.g., sightseeing, recreation, the document heading is corrected to promulgate a regulation that includes a gambling, or attending cultural events). read as set forth above. definition of ‘‘major capital project’’ to At this time, this Notification does not [FR Doc. C1–2020–17181 Filed 9–22–20; 8:45 am] identify the types of projects governed apply to air, freight rail, or sea travel BILLING CODE 1301–00–D by the rule. between the United States and Canada, Accordingly, UMTA promulgated a but does apply to passenger rail, rule for oversight of major capital projects on September 1, 1989, at 49 passenger ferry travel, and pleasure boat DEPARTMENT OF TRANSPORTATION travel between the United States and CFR part 633 (54 FR 36708). At that Canada. These restrictions are Federal Transit Administration time, UMTA’s capital programs were temporary in nature and shall remain in comparatively small, relative to today, effect until 11:59 p.m. EDT on October 49 CFR Part 633 totaling a little more than $2 billion 21, 2020. This Notification may be annually. UMTA promulgated a amended or rescinded prior to that time, [Docket No. FTA–2019–0016] regulation that defined ‘‘major capital based on circumstances associated with RIN 2132–AB35 project’’ as any project for the the specific threat. construction of a new fixed guideway or The Commissioner of U.S. Customs Project Management Oversight extension of an existing fixed guideway and Border Protection (CBP) is hereby or a project involving the rehabilitation AGENCY: directed to prepare and distribute Federal Transit Administration or modernization of an existing fixed appropriate guidance to CBP personnel (FTA), DOT. guideway with a total project cost of on the continued implementation of the ACTION: Final rule. $100 million or more. The rule limited temporary measures set forth in this covered projects to those receiving SUMMARY: This final rule amends FTA Notification. The CBP Commissioner funds made available under sections 3, regulations implementing project 9, or 18 of the Urban Mass may determine that other forms of management oversight. FTA is travel, such as travel in furtherance of Transportation Act of 1964, as amended; modifying the regulation to make it 23 U.S.C. 103(e)(4); or section 14(b) of economic stability or social order, consistent with statutory changes and to constitute ‘‘essential travel’’ under this the National Capital Transportation modify the scope and applicability of Amendments of 1979. That rule is still Notification. Further, the CBP project management oversight. Commissioner may, on an in effect today. DATES: individualized basis and for Effective on October 23, 2020. By 2011, the annual dollar value of humanitarian reasons or for other FOR FURTHER INFORMATION CONTACT: For the Federal transit capital programs was purposes in the national interest, permit program matters, Corey Walker, Office nearly five times the level authorized the processing of travelers to the United of Program Management, (202) 366– under STURAA in 1987, and the States not engaged in ‘‘essential travel.’’ 0826 or [email protected]. For legal number of active PMOC task orders was The Acting Secretary of Homeland matters, Mark Montgomery, Office of more than double the number in 1987. Security, Chad F. Wolf, having reviewed Chief Counsel, (202) 366–4011 or Furthermore, FTA funded a larger and approved this document, is [email protected]. FTA is number of projects with a total cost of delegating the authority to electronically located at 1200 New Jersey Ave. SE, more than one billion dollars that sign this document to Chad R. Mizelle, Washington, DC 20590–0001. Office presented significant oversight who is the Senior Official Performing hours are from 8:00 a.m. to 4:30 p.m. challenges. On September 13, 2011, the Duties of the General Counsel for E.T., Monday through Friday, except FTA published a Notice of Proposed DHS, for purposes of publication in the Federal holidays. Rulemaking (NPRM) (76 FR 56378) that Federal Register. SUPPLEMENTARY INFORMATION: proposed to: (1) Enable FTA to identify the necessary management capacity and Chad R. Mizelle, Table of Contents capability of a sponsor of a major capital Senior Official Performing the Duties of the I. Rulemaking Background project more clearly; (2) spell out the General Counsel, U.S. Department of II. Summary of NPRM Comments and FTA’s many facets of project management that Homeland Security. Responses must be addressed in a project [FR Doc. 2020–21019 Filed 9–21–20; 8:45 am] III. Regulatory Analyses and Notifications management plan; (3) tailor the level of BILLING CODE 9112–FP–P FTA oversight to the costs, I. Rulemaking Background complexities, and risks of a major Recognizing a compelling need to capital project; (4) set forth the means ENVIRONMENTAL PROTECTION strengthen the management and and objectives of risk assessments for AGENCY oversight of major capital projects, in major capital projects and; (5) articulate the Surface Transportation and Uniform the roles and responsibilities of FTA’s 40 CFR Part 52 Relocation Assistance Act of 1987 PMOCs. [EPA–R09–OAR–2019–0655; FRL–10012– (STURAA) (Pub. L. 100–17) (April 2, After the NPRM was published, 28–Region 9] 1987), Congress authorized FTA’s however, the Moving Ahead for Progress predecessor agency, the Urban Mass in the 21st Century Act (MAP–21) (Pub. Air Plan Approval; California; San Transportation Administration (UMTA), L. 112–141) (July 6, 2012) repealed the Joaquin Valley Unified Air Pollution to conduct oversight of major capital Fixed Guideway Modernization Control District and Feather River Air projects and to promulgate a rule for program, created the State of Good Quality Management District that purpose. The statute, now codified Repair program, and amended the at 49 U.S.C. 5327, authorizes FTA to Capital Investment Grants Program to Correction obtain the services of project add Core Capacity Improvement In Rule document 2020–17181, management oversight contractors projects and streamline the New and appearing on pages 56521–56525, in the (PMOCs) to assist FTA in overseeing the Small Starts project development issue of Monday, September 14, 2020, expenditure of Federal financial process. Moreover, MAP–21 shifted the make the following correction: assistance for major capital projects. initiation of project management

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oversight to the project development recipient requires more frequent Since higher-cost projects generally phase and removed the statutory oversight, and providing a process for tend to involve higher risk, FTA will requirement that recipients of financial such a recipient to return to quarterly utilize the cost threshold as a base assistance for projects with a total cost reviews. In addition, the rule proposed criterion. If a project’s proposed Federal of $1 billion submit an annual financial applying project management oversight investment and total cost increase plan. Given the fundamental changes to to major capital projects receiving during project delivery to meet the $100 these competitive and formula capital Federal financial assistance under any million and $300 million thresholds, the programs, FTA withdrew the NPRM (78 provision of Federal law. project will be subject to project FR 16460) to reexamine its proposed After reviewing public comments and management oversight. However, FTA definition of major capital project and making some corresponding changes, may determine, pursuant to revised 49 its policy and procedures for risk FTA now amends and finalizes its CFR 633.5(e) and 633.19, to exclude a assessment. Subsequently, the Fixing project management oversight rule. project from oversight that exceeds the America’s Surface Transportation II. Summary of NPRM Comments and thresholds or to require oversight for a (FAST) Act (Pub. L. 114–94) (December FTA’s Responses project that does not meet the 4, 2015) further amended 49 U.S.C. 5327 thresholds on a case-by-case basis. FTA to limit project management oversight to FTA received 69 discrete comments will utilize its risk evaluation tool in quarterly reviews, absent a finding that from 17 commenters, including one making this determination. Regarding more frequent oversight was necessary, comment from a mayoral office which projects would be eligible for and mandated that the Secretary expressing general support for the project management oversight services prescribe regulations outlining a process proposed rule. Two comments were under § 633.11, a transit agency asked for at-risk recipients to return to outside the scope of the proposed rule FTA to clarify whether covered projects quarterly reviews. and are not addressed in this document. would include those utilizing Federal FTA has become much more One of the comments was a question loans, such as Transportation knowledgeable about the risks common about the criteria for applying for an Infrastructure Finance and Innovation to major capital projects, having FTA grant. Another comment regarded Act (TIFIA). conducted its own risk assessments PMOC procurement, which is not Major capital projects will include since 2005, witnessed some project addressed in the regulation. those utilizing Federal loans, such as sponsors’ lack of management capacity Cost Threshold—Application TIFIA and Railroad Rehabilitation and and capability and appropriate project Improvement Financing (RRIF), because controls for some projects, and studied One transit agency sought 49 U.S.C. 5327(a) applies the project the reasons for cost and schedule clarification as to when FTA would management oversight requirements to changes on many major capital projects. determine a project had met the cost major capital projects for public Consequently, on August 26, 2019, FTA threshold, thus triggering application of transportation funded under any published an NPRM (84 FR 44590) the project management oversight provision of Federal law. proposing to amend its project (PMO) regulation to the project. The A metropolitan transportation agency management oversight rule. commenter suggested that the suggested that the $100 million Federal First, the NPRM proposed to change independent cost estimate, receipt of investment threshold language in the applicability of the regulation by project bids, or the final funding revised § 633.5(e) should clearly state shifting the definition of a ‘‘major decision should initiate the threshold that it is limited to CIG dollars to capital project’’ from one based on the determination. eliminate confusion that could result type of project or total project cost to In response, FTA has determined that from use of funds from other Federal one based on both the amount of for Capital Investment Grants (CIG) resources. Pursuant to 49 U.S.C. 5327(a), Federal financial assistance and the projects, FTA will use the cost estimate this regulation is not limited to CIG total project cost, which FTA views as provided by the project sponsor when projects but covers all Federally-funded a more appropriate benchmark than the the project enters the CIG Project major capital projects for public type of project or total capital cost of a Development phase and, for non-CIG transportation, so the Federal share project alone. The current definition of projects, FTA will use the cost estimate threshold is based on all Federal funds a ‘‘major capital project’’ under 49 CFR provided by the project sponsor after a in a project. For a CIG project, the 633.5 applies to all construction projects National Environmental Policy Act Federal share will include all Federal for new fixed guideways or extensions (NEPA) decision is made by FTA. If bid money in the project, regardless of of existing fixed guideways, regardless numbers are available, then they will be source, not just the CIG share of funds. of project cost, and to fixed guideway considered in estimating the baseline rehabilitation and modernization cost. Two commenters suggested that Cost Threshold—Amount projects with total project costs over subsequent to FTA’s acceptance of a Four commenters, including two $100 million. The NPRM applied a project’s funding plan, if a project’s transit agencies and two trade project cost threshold to all fixed Federal investment increases to above associations, suggested that FTA raise guideway capital projects. As a default, $100 million or the total project cost the total project cost threshold in the rule proposed raising the total increases during project delivery to revised § 633.5(e) to $500 million for project cost threshold to $300 million or more than $300 million, project parity with Federal Highway more and requiring that the project management oversight should be Administration (FHWA). receive $100 million or more in Federal implemented based on project risk and FTA considered cost thresholds of $1 investment to be subject to project not funding actions. An industry billion, $500 million, $300 million, and management oversight. consultant commented that the $100 million. A key consideration for Second, the NPRM proposed to threshold should remain based on the selecting $300 million as the cost amend the regulation to bring it into total cost of the project being $100 threshold was that it reflects the compliance with statutory changes. The million or more because public threshold Congress chose to distinguish rule proposed limiting project transportation infrastructure is a public Small Starts projects from New Starts management oversight to quarterly resource, and the source of funding is projects in the CIG program. New Starts reviews, absent a finding by FTA that a irrelevant when determining oversight. projects have more steps to complete in

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the CIG process and tend to be more would apply for projects that utilize the progress in project development, since complex, potentially requiring more design-build or progressive design-build many of the services are out-sourced by oversight. Because of the number of methodology. Another agency recipients. higher-risk projects in the $300 million recommended that project management FTA notes it has developed tools, to $500 million range, FTA is not oversight begin after the locally such as its oversight procedures, to track adopting the $500 million threshold. preferred alternative (LPA) has been the progress of the major capital A State DOT expressed concern that adopted and the FTA Administrator and projects. FTA has also published the proposed cost threshold was too the project sponsor determine that guidelines and handbooks, available on high and would accordingly leave a design and engineering work is its Guidance Center,1 and worked with void between the existing PMO sufficiently mature for the development the National Transit Institute to develop responsibilities and the FTA-supported of a reasonably reliable project cost, a number of courses to help support the State Safety Oversight Agency (SSOA) schedule, and PMP. and degrade safety. Section 5327 of title 49, United States industry. FTA notes that project management Code, stipulates that project Designating a Major Capital Project oversight is not the same as State safety management oversight should start at oversight. FTA conducts project the project development phase unless Two transit agencies, a coalition of management oversight of major capital the Administrator determines that transit agencies, and a trade association projects via its PMOCs pursuant to 49 initiating services at another stage expressed concern that the amended U.S.C. 5327, whereas SSOAs oversee would maximize the transportation definition of ‘‘major capital project’’ rail fixed guideway public benefits and cost savings. The oversight would exclude all Small Starts projects transportation safety pursuant to 49 work generally will begin after the and suggested that FTA allow project U.S.C. 5329(e). Although FTA’s selection of the LPA, and the level of sponsors to ‘‘opt-in’’ to project oversight of major capital projects oversight will be risk-based. As is management oversight for projects that includes oversight of safety and security currently the case, there will be no would otherwise not meet the definition management plans and the project oversight reviews prior to the beginning of major capital project. Per revised sponsors’ readiness to enter revenue of project development. FTA will have § 633.5(e), the Administrator may service, this is separate and distinct conversations with project sponsors designate a project a major capital from the responsibilities of SSOAs and early in project development regarding project if he or she determines a project their rail transit agencies’ capital the level and scope of oversight reviews would benefit from project management projects. that will be conducted on the project, oversight. FTA will take into and oversight will only be initiated if Project Sponsor Input consideration requests by project the sponsors have enough data available sponsors to opt-in to the PMO process. A trade association and two transit for meaningful reviews. A transit agency sought clarification of agencies noted that FTA should involve Four commenters, including transit this opt-in provision and questioned the project sponsor in decision-making agencies and a trade association, whether there would be a process to throughout the PMO process, including proposed changes to the definition of appeal the Administrator’s designation initiation of PMO services, exclusion project development. A coalition of of a project as a major capital project from the PMO program, basic transit agencies noted that project that would otherwise not meet the requirements, and implementation of a sponsors often undertake significant regulatory definition. Another transit project management plan (PMP). A trade design and engineering and adopt the agency commented that FTA should association and an individual suggested LPA well before submitting a formal apply the provision sparingly. that there should be an element of request to enter the Project Development scalability to project management phase of the CIG program. The FTA utilizes a risk-based approach to oversight, depending on the experience commenters suggested that the its oversight and will consider risks level of the project sponsor. definition of project development be when designating a project as a major FTA will have conversations with aligned with 49 U.S.C. 5309(d)(1)(B) and capital project. Section 5327 of title 49, project sponsors on a case-by-case basis FTA’s 2016 Final Interim Policy United States Code, grants the Secretary to discuss the project risks and Guidance on the CIG Program. the authority to define a major capital determine when to begin project Section 5327 of title 49, United States project through this regulation, which management oversight or whether a Code, uses the term ‘‘project includes the discretion to deem projects project should be included or excluded development’’ more generically, and not that do not meet the thresholds to be from project management oversight in the specific way it is used under 49 major capital projects based on risk. under revised 49 CFR 633.5(e) and U.S.C. 5309(d)(1)(B). Section FTA will consider inputs from project 633.19. 5309(d)(1)(A) only requires the sponsors in making a final decision. initiation of NEPA, but not completion Initiating Project Management Oversight of NEPA, prior to entry into project Excluding a Major Capital Project Four commenters requested development, so the LPA may not have A coalition of transit agencies, a clarification on the initiation of project been chosen before the project enters transit agency, and an industry management oversight under § 633.13. the Project Development phase of the professional sought clarification on the One commenter noted that a model for CIG process. Since project management process outlined in § 633.19 for the analytical process to be used by the oversight applies to both CIG and non- excluding projects meeting the Administrator to ‘‘maximize CIG projects, FTA will remove the definition of major capital project from transportation benefits and cost reference to the LPA in the project project management oversight. savings’’ would be difficult to develop development definition under § 633.5 and that ‘‘transportation benefits’’ is an and add a reference to the LPA under FTA will make this determination ambiguous term. A transit agency § 633.13 as an example of when PMO case-by-case based on an analysis of the commented that oversight at the project generally will be initiated. risks associated with each project. development phase may be premature One commenter noted that guidelines and questioned how in practice this rule and tools must be developed to evaluate 1 https://www.transit.dot.gov/guidance.

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Project Management Plan—Basic meets the thresholds and if the oversight to risks, including the management of Requirement regulation will apply. cost and schedule contingencies and the identification of insurance necessary to A PMOC commented that FTA should Project Management Plan— minimize risk to the project. The RCMP require all projects accepted into the Applicability and Contents is a means to address the requirements CIG program to prepare and submit for Three transit agencies, a coalition of FTA’s approval a PMP, prior to in § 633.25(n). transit agencies, a PMOC, and a trade One transit agency commented that it receiving a grant. The commenter association provided comments is unclear from the NPRM if recipients suggested that any decision to exclude regarding the contents of the PMP under and project sponsors need to update a project from project management § 633.25. One transit agency commented their existing PMPs to comply with the oversight should not be made at the that the content requirements of requirements that FTA proposed to add. outset, when a project enters project § 633.25 are oriented towards a project In response, all recipients must development. Instead, the commenter in construction and suggested either comply with the new requirements if stated that decision should be made limiting those to reflect the project their project meets the definition of after the sponsor has demonstrated to development phase or changing the major capital project, but the plans do FTA, through its PMP and other phase in which the PMP must be not need to be in one single large PMP preparations, that it has the developed to a later phase. Another document. The additional materials may management capacity and capability transit agency commented that the be submitted as individual subplans, so and other resources in place to complete statement beginning in § 633.25, which there will be no requirement to go back the project successfully. The commenter outlines the PMP contents, should be and consolidate. suggested that a PMOC should be amended to include the term ‘‘phase’’ to A PMOC commented that § 633.25 assigned to the project during project acknowledge that the PMP is iterative should include a requirement for a development as stated in revised and reflects the information available at design management plan that defines § 633.13, which addresses the initiation the time it is developed. the roles and responsibilities of the of PMO services. Similarly, a regional FTA notes that while some PMP recipient and its consultants, third transportation agency commented that elements such as a detailed construction parties, and the contractor. PMOCs should continue to review the schedule, construction staff, and others The regulation addresses this readiness of both Small and New Start will not be available at the early stages requirement through § 633.25(a) and (f), projects to ensure agencies are ready to of the project, most of the PMP items which cover organizational structures, be successful with these CIG projects. listed are important and should be functional responsibilities, reporting In response, FTA notes that pursuant developed early (at least in some form) relationships, and staffing. to the 49 U.S.C. 5309(g)(5) policy at the project development phase, with A trade association and a transit guidance, all CIG projects are required additional details provided as the agency commented that the proposed to have an approved PMP before FTA project progresses. FTA will add the changes to information requested as part will enter into a construction grant term ‘‘phase’’ to the statement in of project management oversight may agreement. In addition, all CIG projects § 633.25 to provide more clarity. create redundant information requests will receive oversight regardless of cost A coalition of transit agencies as part of other CIG reporting or Federal share until they receive a commented that proposed § 633.25(k) requirements. construction grant agreement. through (n), proposed to expand the There are likely to be overlaps in the A transit agency commented that contents of the PMP greatly, noting that reporting requirements for CIG projects while the definition of major capital this information has not been previously under 49 U.S.C. 5309 and the PMP project includes rehabilitation and required by FTA, is not required by under 49 U.S.C. 5327 if a project modernization projects that meet the statute, and adds a substantial cost to sponsor is building more than one cost and Federal funding thresholds, it projects. Another transit agency project at the same time. FTA does not is unclear how these thresholds for requested that FTA detail the believe regulatory changes are needed to oversight would apply to annual capital anticipated content for compliance with address potential overlaps in reporting asset renewal programs at transit subsection (n) (management of risks, requirements. FTA will work with agencies. The commenter noted that contingencies, and insurance) and project sponsors to combine § 633.21, which outlines the basic perform an assessment of the potential requirements, such as combined requirement for a PMP, implies that this burden on project sponsors and publish quarterly meetings and minor regulation applies to specific, discrete it for public review and comment before modifications to existing PMPs to projects for which Federal funding is determining whether the additions reduce redundancies. specifically solicited. The commenter should be in the final PMO rule. One requested that FTA confirm this rule commenter asked whether the Risk and Project Management Plan—Due Date would not apply to ongoing capital asset Contingency Management Plan (RCMP) and Updates renewal programs or clarify how the would still be a required subplan of the Two transit agencies and one industry definitions would be applied, e.g., PMP, noting the NPRM appears to fold consultant provided comments whether the thresholds would be the subplan into the PMP. regarding the implementation of a applied on an annual basis or by In response, FTA notes that, other project management plan under specific contract. than subsection (n), all the project § 633.27. One transit agency noted that Capital asset renewal programs at management elements listed in the FTA should limit the number of transit agencies generally are made up NPRM are expressly required by 49 revisions required and that there should of a list of projects with cost, scope, and U.S.C. 5327. Section 633.25(n), be some guidance on the reasonableness schedule at the outset and then addressing risk and contingency of FTA comments on the PMP. incrementally funded. Once a project is management, is a standard industry Specifically, the agency is concerned defined with a specific cost and scope, practice and was added based on past that there is ambiguity in requiring that cost estimate and the Federal experiences and its criticality for project revisions ‘‘at a new phase’’ and where funding assumed for the project success. This includes a process of there is a ‘‘significant change’’ under becomes the basis for determining if it identifying, evaluating, and responding § 633.27(b). The industry consultant

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added that the term ‘‘periodic,’’ for FTA to request a PMP to begin contractors. FTA will continue to regarding the updates required under preparing their PMP. manage its oversight resources § 633.25, is vague. judiciously to ensure that all its projects Project Management Plan—Reporting FTA notes that a PMP is a living and programs receive sufficient document that must be updated at many An industry consultant commented oversight. phases of the project (for example as that monthly reporting is the Another commenter noted that the new resources are added or as the responsible minimum standard. Section oversight cost savings estimate of $11 project transitions from design into 5327 of title 49, United States Code, million is flawed, because simply construction). Project sponsors will be limits project management oversight to multiplying hours does not account for given 90 days to submit the PMP upon quarterly reviews, but the Administrator the potential for severe project overruns, formal notification from FTA, and FTA maintains discretion to require more delays, and quality problems. generally will approve or disapprove the frequent oversight if a project is at risk FTA’s analysis is an approximation, PMP within 60 days, pursuant to 49 of going over budget or becoming but § 633.5(e)(2) allows the U.S.C. 5327(b). Project sponsors need behind schedule. Administrator to determine on a case- not wait until they receive notification A transit agency commented that FTA by-case basis that certain projects from FTA to begin working on the PMP. should add a clause clarifying that the should be subject to project FTA will work with project sponsors to § 633.25(l) requirement to submit a management oversight based on an quarterly project budget and schedule is minimize the number of revisions assessment of risk, which would met through the project budget and needed, and will provide reasonable include an analysis of the likelihood of schedule updates submitted with comments to streamline the process. budget and schedule overruns. quarterly milestone progress reports. Periodic updates to the PMP are FTA does not intend to duplicate Financing the PMO Program required by 49 U.S.C. 5327(a)(11), and submittals, so one submittal with the A PMOC commented that 49 U.S.C. FTA intends to require updates or quarterly progress report is sufficient. 5338(f)(1) and (2) does not specify that reviews every two years or upon The agency also commented that the oversight funds will be used to significant changes to the project. A under § 633.27(d), FTA proposes to contract for project management review of the PMP might show that require more frequent compliance oversight services in connection with a there is no need for an update because reviews of any project that is ‘‘at risk of major capital project as set forth in the nothing significant has changed to the materially exceeding its budget or current version of § 633.19. The project. FTA will assess significance on falling behind schedule.’’ Accordingly, commenter noted that the funds may be a case-by-case basis (e.g., when key staff the commenter requested that FTA used for other activities as described in leave a project or a project is trending define ‘‘materially.’’ Section the statute and would not be available towards delays and cost overruns). 5327(d)(2)(B) of title 49, United States to fund the project management One transit agency questioned why Code, provides FTA the discretion to oversight program as intended. The § 633.27(c) requires project budget, require more frequent oversight if the commenter recommended that the schedule, financing, ridership estimates, recipient has failed to meet the current text of § 633.19 be retained to and the status of local efforts to enhance requirements of the PMP and the project ensure that the oversight takedown be ridership to be updated on a ‘‘periodic may be at risk of going over budget or used as originally intended. basis’’ as opposed to when there are becoming behind schedule. In response FTA notes that project management changes to those items. Another transit to the comment, FTA has added to oversight is an eligible expense of funds agency commented that the NPRM adds § 633.27(d) that ‘‘Budget and schedule authorized for oversight, and other requirements to provide updates for changes will be analyzed on a case-by- activities are authorized to be funded project capital and operating financing, case basis, but FTA generally will from that source as well. However, as well as for the operating plan based consider any cost increase or schedule project management oversight is a on the ridership estimates. The delay exceeding 5 percent as a material statutory requirement for all projects commenter also noted that the NPRM change.’’ meeting the definition of major capital requires recipients to submit current project, per 49 U.S.C. 5327(a) and (d)(2), data on a major capital project’s budget Regulatory Cost Savings and FTA will utilize oversight funds as and schedule on a quarterly basis and One anonymous commenter noted authorized for that purpose. that such reporting requirements may that FTA’s cost savings analysis was too result in additional costs to recipients or low. The commenter suggested that $32 Access to Information project sponsors. million was a more appropriate An industry consultant suggested that This provision reflects a statutory estimate, because of the 1 percent § 633.27 should include the requirement requirement under 49 U.S.C. drawdown for oversight, and questioned of affidavits attesting to full compliance 5327(a)(11). FTA recognizes that there how the remaining $23.9 million in with Federal and State Disadvantaged may be limited information on these savings would be applied, noting that Business Enterprise (DBE) and Minority topics that will need to be updated FTA provided no economic analysis of Business Enterprise (MBE) programs, a regularly. that amount. detailed report of employment of One transit agency requested that The drawdown for oversight from this relatives, in-laws, and neighbors on the project sponsors be given 180 days to program is combined with the project, and waiver of confidentiality for submit the PMP. drawdown from other FTA programs the purposes of immediate and CIG projects must progress through and then budgeted for several oversight unannounced government inspection of project development in two years. The activities. The $3.2 billion amount is the invoices, receipts, payroll, and 90-day period to prepare the PMP will total cost of the projects and not the payments related to project. Similarly, help move projects through the process annual budgets for the projects. The another commenter requested that in that timeframe. Non-CIG projects $8.1 million amount, on the other hand, § 633.15 include coverage of should have a PMP in place as early as is the estimated savings in oversight procurement and civil rights, and the tie possible. Stakeholders should be aware cost per year and reflects the money that to contract administration based on 2 that project sponsors do not have to wait would have been spent on external CFR part 200 and FTA Circular 4220.1F.

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The commenter noted that there is no this would include all infrastructure example, some PMP elements such as mention of the requirements for necessary for the operation of the document control procedures, quality Americans with Disabilities Act (ADA), system, e.g., terminals, ferry boats, and control procedures, and material testing DBE, and Title VI requirements in the related equipment. policies generally will not change much regulation. The regulation addresses the A transit agency requested a from project to project, especially when technical oversight of the projects. definition of ‘‘risk-informed the project sponsor is building multiple Reviews such as DBE and ADA monitoring’’ which is referenced in the projects at the same time. In the final compliance are critical but are not definition for project management rule, FTA is rescinding § 633.29, addressed primarily through project oversight in § 633.5(g). because the statute mandates that the management oversight. Instead, these FTA will not define this term in the PMP for each major capital project requirements are covered through other regulation, because 49 U.S.C. include the elements in § 633.25(k) areas of FTA oversight, such as triennial 5327(d)(2)(B) makes clear that FTA must through (m), and FTA does not have the reviews. assess whether projects are at risk of discretion to waive these elements of going over budget or becoming behind Definitions the plan. schedule. ‘‘Risk-informed monitoring’’ Two parties provided comments on in this context means that the oversight III. Regulatory Analyses and the definition of ‘‘recipient.’’ A trade will be scaled based on the level of risk Notifications association noted that within the of the project. Executive Order 13771 (Reducing definition of ‘‘recipient’’ the term A transit agency noted that FTA Regulation and Controlling Regulatory ‘‘sponsor’’ is not defined. A transit previously solicited comments on Costs) agency proposed defining ‘‘sponsor’’ alternate definitions of a Federal project within the definition in § 633.5(i). Both and suggested that FTA continue with This final rule is an Executive Order commenters suggested defining efforts to refine the Federal project 13771 deregulatory action. Details on ‘‘sponsor’’ as the ‘‘entity designated to definition and consider opportunities to the estimated cost savings of this rule deliver the project per the terms set incorporate similar lines-of-thinking in can be found in the rule’s economic forth in the construction grant the proposed rule. analysis. agreement.’’ The definition of ‘‘Federal project’’ is Executive Order 12866 (Regulatory In response, FTA has defined unrelated to this rule. Per 49 U.S.C. Planning and Review), Executive Order ‘‘sponsor’’ under § 633.5(j) as ‘‘the entity 5327(a), the project management plan 13563 (Improving Regulation and designated to deliver the project per the requirements, and this regulation Regulatory Review) and Department of terms set forth in the grant agreement.’’ implementing the statute, apply to all Transportation (DOT) Regulatory A transit agency and a trade major capital projects for public Policies and Procedures association provided input on the transportation under any provision of Executive Orders 12866 and 13563 definition of ‘‘full funding agreement.’’ Federal law. Both commenters suggested keeping a direct Federal agencies to assess all definition of grant agreement in the Oversight Procedures costs and benefits of available regulatory regulation and utilizing the term A transit agency commented that FTA alternatives and, if regulation is ‘‘construction grant agreement,’’ which should update its project management necessary, to select regulatory would encompass grant agreements for oversight procedures (OPs) concurrent approaches that maximize net benefits— various Federal funding programs with finalizing the PMO rule to help including potential economic, including New Starts, Small Starts, Core ensure that the actual guidelines environmental, public health and safety Capacity, BUILD, and INFRA under followed by FTA’s contractors align effects, distributive impacts, and equity. which major capital transit projects may with the final rule. The commenter The rule amends the definition of a receive Federal funds. further suggested that the draft OPs be ‘‘major capital project’’ under 49 CFR Because neither term is used in the subject to formal public review and part 633 by raising the total project cost regulation, a definition is unnecessary. comment before issuance. FTA notes threshold and adding a minimum Further, the purpose of a full funding that its OPs are contractual Federal share, thereby reducing the grant agreement is addressed under 49 documentation for FTA’s contractors number of public transportation projects U.S.C. 5309. and not guidance for recipients. Thus, a subject to project management A transit agency requested public review and comment process is oversight. This action complies with clarification on adding ferries to the not required. Executive Orders 12866 and 13563 to definition of ‘‘fixed guideway’’ under improve regulation, as well as DOT’s § 633.5(c). Specifically, the commenter Incorporating Another PMP regulatory requirements at 49 CFR part sought an explanation of what the fixed FTA received two comments 5. guideway of a ferry system includes and pertaining to the implementation of a FTA has determined that this the anticipated impact of this change in PMP under § 633.29. An industry rulemaking is not a significant the fixed guideway definition with consultant commented that the regulatory action within the meaning of respect to project management incorporation of ‘‘applicable elements Executive Order 12866 and within the oversight. from a previously approved project meaning of DOT regulatory policies and Ferries are included in the definition management plan or to incorporate procedures. FTA has examined the of a fixed guideway set forth at 49 procedures that a recipient uses to potential economic impacts of this U.S.C. 5302, which is a ‘‘public manage other capital projects’’ is not rulemaking and has determined that this transportation facility using and sufficient planning and increases risk. A rulemaking is not economically occupying a separate right-of-way for transit agency suggested maintaining the significant because it will not result in the exclusive use of public section or adding a similar provision to an effect on the economy of $100 transportation, using rail, using a fixed § 633.25. million or more. In addition, this rule catenary system; for a passenger ferry In response, the intent of the does not have an impact on another system; or for a bus rapid transit referenced clause in § 633.29 was to agency and does not materially alter the system.’’ For a passenger ferry system, avoid unnecessary duplication. For budgetary impacts of entitlements,

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grants, user fees, or loan programs. This procedures. For two projects, FTA timely input by State and local officials rule does not raise novel legal issues. received input from recipients. in the development of regulatory To calculate the benefits and annual Assuming variations in the level of policies that may have a substantial cost savings from this proposed rule, effort based on the complexity of the direct effect on the States, on the FTA evaluated its project management project, FTA estimated that the labor relationship between the national oversight contracts for major capital hours required for recipients ranges government and the States, or on the projects from 2013 through 2018. This from 1.7 to 2.3 times FTA’s level of distribution of power and period was chosen to reflect changes to effort of approximately 39,477 hours per responsibilities among the various FTA’s program management oversight year for project management oversight levels of government. FTA has analyzed procedures after MAP–21 was enacted procedures. Accordingly, FTA used an this action in accordance with the in 2012. This period included several average factor of two and determined principles and criteria contained in emergency relief program projects under that the default threshold to qualify as Executive Order 13132, and FTA 49 U.S.C. 5324 to repair significant a major capital project under the determined that this action will not damages to public transportation proposed rule would reduce the level of have a substantial direct effect or infrastructure resulting from Hurricane effort required for project sponsors by Federalism implications on the States. Sandy, which FTA also analyzed. an average of 78,955 hours annually at FTA also determined that this action Using FTA’s risk evaluation tool, FTA a wage rate of $139.67 based on an will not preempt any State law or evaluated projects in construction average of the Bureau of Labor Statistics regulation or affect the States’ ability to during that period based on ten key risk rate for Construction Managers and the discharge traditional State governmental factors to produce a risk score from 0– PMOC loaded rate for contractors. This functions. 100. Projects were then assigned a risk burden reduction would result in an range based on the calculated score, annual cost savings to project sponsors Executive Order 12372 with low-risk projects in the range of 0– of approximately $11 million. (Intergovernmental Review) 39, medium-risk projects from 40–55, In addition, the rule reduces the level The regulations effectuating Executive and high-risk projects from 56–100. This of effort required under FTA’s project Order 12372 regarding evaluation indicated that most high-risk management oversight contracts and intergovernmental consultation on projects, including 18 of the 22 projects yields corresponding cost savings to Federal programs and activities apply to in the high-risk range, involved total FTA. Removing oversight from an this rulemaking. project costs of over $300 million. While average of 38.3 projects annually, at an Paperwork Reduction Act removing project management oversight average wage rate of $206, would yield from projects with total costs between annual cost savings to FTA of Federal agencies must obtain approval $100 and $300 million may increase the approximately $8.1 million. from the Office of Management and risk of materially exceeding budget or Budget (OMB) for each collection of falling behind schedule for some Regulatory Flexibility Act information they conduct, sponsor, or projects, there are currently only four In compliance with the Regulatory require through regulations. FTA has high-risk projects in this range, and Flexibility Act (Pub. L. 96–354; 5 U.S.C. analyzed this rule under the Paperwork under the rule, FTA may deem certain 601–612), FTA has evaluated the likely Reduction Act and determined that it projects that do not meet the dollar- effects of this rule on small entities, and does not impose additional information amount thresholds a ‘‘major capital certifies that the rule will not have a collection requirements for the purposes project’’ to mitigate unacceptable risk. significant economic impact on a of the Act above and beyond existing In addition, reducing the number of substantial number of small entities. information collection clearances from lower-risk projects undergoing project OMB. management oversight will allow FTA Unfunded Mandates Reform Act of 1995 to focus on higher-risk projects while FTA has determined that this rule National Environmental Policy Act yielding annual cost savings to FTA and does not impose unfunded mandates, as NEPA requires Federal agencies to its recipients. defined by the Unfunded Mandates analyze the potential environmental FTA calculated the average total cost Reform Act of 1995 (Pub. L. 104–4, effects of their proposed actions in the of oversight for projects in construction March 22, 1995, 109 Stat. 48). This rule form of a categorical exclusion, during that period that would not have does not include a Federal mandate that environmental assessment, or qualified as major capital projects under may result in expenditures of $155.1 environmental impact statement. This the default threshold of this proposed million or more in any 1 year (when rulemaking is categorically excluded rule. FTA estimates that an average of adjusted for inflation) in 2012 dollars under FTA’s environmental impact 38.3 projects annually, including for either State, local, and tribal procedure at 23 CFR 771.118(c)(4), emergency relief program projects, governments in the aggregate, or by the which pertains to planning and would no longer require additional private sector. In addition, the administrative activities that do not oversight under the default threshold. definition of ‘‘Federal mandate’’ in the involve or lead directly to construction, This rule would reduce recipients’ Unfunded Mandates Reform Act such as the promulgation of rules, labor hours for oversight procedures, excludes financial assistance of the type regulations, and directives. FTA has which include attending meetings, in which State, local, or tribal determined that no unusual preparing quarterly reports and other governments have authority to adjust circumstances exist in this instance, and requested documents, and their participation in the program in that a categorical exclusion is accompanying contractors onto project accordance with changes made in the appropriate for this rulemaking. construction sites. To estimate the program by the Federal Government. Executive Order 12630 (Taking of potential cost savings for project Federal public transportation law Private Property) sponsors, FTA staff examined the permits this type of flexibility. current projects in construction that FTA has analyzed this rule under would no longer qualify as major capital Executive Order 13132 (Federalism) Executive Order 12630, Governmental projects under the rule and estimated Executive Order 13132 requires Actions and Interference with the level of effort required for oversight agencies to assure meaningful and Constitutionally Protected Property

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Rights. FTA does not believe this rule substantial direct compliance costs on PART 633—PROJECT MANAGEMENT effects a taking of private property or Indian tribal governments; and will not OVERSIGHT otherwise has taking implications under preempt tribal laws. Therefore, a tribal Executive Order 12630. summary impact statement is not Subpart A—General Provisions required. Sec. Executive Order 12898 (Federal Actions 633.1 Purpose. To Address Environmental Justice in Executive Order 13211 (Energy Effects) 633.3 Scope. Minority Populations and Low-Income 633.5 Definitions. Populations) FTA has analyzed this rulemaking under Executive Order 13211, Actions Subpart B—Project Management Oversight Executive Order 12898, Federal Services Concerning Regulations That Actions to Address Environmental Significantly Affect Energy Supply, 633.11 Covered projects. Justice in Minority Populations and Distribution, or Use (May 18, 2001). 633.13 Initiation of project management Low-Income Populations, and DOT oversight services. Order 5610.2(a) (77 FR 27534) require FTA has determined that this action is 633.15 Access to information. DOT agencies to achieve environmental not a significant energy action under the 633.17 Project management oversight justice (EJ) as part of their mission by Executive Order, given that the action is contractor eligibility. identifying and addressing, as not likely to have a significant adverse 633.19 Exclusion from the project management oversight program. appropriate, disproportionately high effect on the supply, distribution, or use and adverse human health or of energy. Therefore, a Statement of Subpart C—Project Management Plans Energy Effects is not required. environmental effects, including 633.21 Basic requirement. interrelated social and economic effects, Privacy Act 633.23 FTA review of a project management of their programs, policies, and plan. activities on minority and/or low- Anyone may search the electronic 633.25 Contents of a project management income populations. The DOT Order form of all comments received into any plan. requires DOT agencies to address of FTA’s dockets by the name of the 633.27 Implementation of a project management plan. compliance with the Executive Order individual submitting the comment, or 633.29 [Reserved] and the DOT Order in all rulemaking signing the comment if submitted on activities. In addition, on July 17, 2014, behalf of an association, business, labor Authority: 49 U.S.C. 5327; 49 U.S.C. 5334; FTA issued a circular to update its EJ union, or any other entity. You may 49 CFR 1.90. Policy Guidance for Federal Transit review USDOT’s complete Privacy Act Subpart A—General Provisions Recipients (www.fta.dot.gov/legislation_ Statement published in the Federal law/12349_14740.html), which Register on April 11, 2000, at 65 FR § 633.1 Purpose. addresses administration of the 19477–8. This part implements 49 U.S.C. 5327 Executive Order and DOT Order. regarding oversight of major capital Statutory/Legal Authority for This FTA has evaluated this rule under the projects. The part provides for a two- Rulemaking Executive Order, the DOT Order, and part program for major capital projects the FTA Circular and has determined This rulemaking is issued under the receiving Federal financial assistance. that this rulemaking will not cause authority of 49 U.S.C. 5327, which First, subpart B discusses project disproportionately high and adverse requires the Secretary to conduct management oversight, designed human health and environmental effects oversight of major capital projects and primarily to aid FTA in its role of on minority or low-income populations. to promulgate a rule for that purpose ensuring successful implementation of Executive Order 12988 (Civil Justice that includes a definition of major Federally-funded projects. Second, Reform) capital project to delineate the types of subpart C discusses the requirement projects governed by the rule. that, to receive Federal financial This action meets the applicable assistance for a major capital project for standards in sections 3(a) and 3(b)(2) of Regulation Identifier Number public transportation under Chapter 53 Executive Order 12988 (February 5, of Title 49, United States Code, or any 1996), Civil Justice Reform, to minimize A Regulation Identifier Number (RIN) other provision of Federal law, a litigation, eliminate ambiguity, and is assigned to each regulatory action recipient must prepare a project reduce burden. listed in the Unified Agenda of Federal management plan approved by the Regulations. The Regulatory Information Executive Order 13045 (Protection of Administrator and carry out the project Service Center publishes the Unified Children) in accordance with the project Agenda in April and October of each management plan. FTA has analyzed this rulemaking year. The RIN set forth in the heading under Executive Order 13045 (April 21, of this document can be used to cross- § 633.3 Scope. 1997), Protection of Children from reference this action with the Unified This rule applies to a recipient of Environmental Health Risks and Safety Agenda. Federal financial assistance undertaking Risks. FTA certifies that this rule will a major capital project for public List of Subjects in 49 CFR Part 633 not cause an environmental risk to transportation under Chapter 53 of Title health or safety that might Grant programs-transportation, Mass 49, United States Code, or any other disproportionately affect children. transportation. provision of Federal Law. Executive Order 13175 (Tribal K. Jane Williams, § 633.5 Definitions. Consultation) Deputy Administrator. As used in this part: FTA has analyzed this action under Administrator means the Executive Order 13175 (November 6, ■ In consideration of the foregoing, and Administrator of the Federal Transit 2000), and determined that it will not under the authority of 49 U.S.C. 5327, Administration or the Administrator’s have substantial direct effects on one or revise 49 CFR part 633 to read as designee. more Indian tribes; will not impose follows: Days means calendar days.

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Fixed guideway means any public manage, monitor, and control all phases § 633.19 Exclusion from the project transportation facility: Using and of the project. management oversight program. occupying a separate right-of-way for Recipient means a direct recipient of The Administrator may, in the exclusive use of public Federal financial assistance or the compelling circumstances, determine transportation; using rail; using a fixed sponsor of a major capital project. that a project meeting the criteria of catenary system; for a passenger ferry § 633.5(e)(1) is not a major capital Sponsor means the entity designated system; or for a bus rapid transit system. project because project management to deliver the project per the terms set FTA means the Federal Transit oversight under this part will not benefit forth in the grant agreement. Administration. the Federal government or the recipient. Except as provided in § 633.19, Major Subpart B—Project Management Typically, this means a project that: capital project means a project that: Oversight Services (a) Involves a recipient whose past (1) Involves the construction, record indicates the appropriateness of expansion, rehabilitation, or § 633.11 Covered projects. excluding the project from project modernization of a fixed guideway that: management oversight under this part; (a) The recipient is using funds made (i) Has a total project cost of $300 and available under Chapter 53 of Title 49, million or more and receives Federal (b) Involves such a greater level of United States Code, or any other funds of $100 million or more; and financial risk to the recipient than to the provision of Federal law; and (ii) Is not exclusively for the Federal government that project acquisition, maintenance, or (b) The project is a major capital management oversight under this part is rehabilitation of vehicles or other rolling project. made less necessary to secure the stock; or recipient’s diligence. (2) The Administrator determines to § 633.13 Initiation of project management oversight services. be a major capital project because Subpart C—Project Management Plans project management oversight under Project management oversight this part will benefit the Federal services will be initiated as soon as § 633.21 Basic requirement. government or the recipient, and the practicable, once the Administrator (a) If a project meets the definition of project is not exclusively for the determines that this part applies. In major capital project, the recipient shall acquisition, maintenance, or most cases, this means that project submit a project management plan rehabilitation of rolling stock or other management oversight will begin during prepared in accordance with § 633.25, vehicles. Typically, this means a project the project development phase of the as a condition of Federal financial that: project, generally after the locally assistance. (i) Involves new technology; preferred alternative has been chosen (if (b)(1) The Administrator will notify (ii) Is of a unique nature for the applicable), unless the Administrator the recipient when the recipient must recipient; or determines it more appropriate to begin submit the project management plan. (iii) Involves a recipient whose past oversight during another phase of the Normally, the Administrator will notify record indicates the appropriateness of project, to maximize the transportation the recipient sometime during the extending project management oversight benefits and cost savings associated project development phase. If the under this part. with project management oversight. Administrator determines the project is Project development means the phase a major capital project after the project in which planning, design and § 633.15 Access to information. development phase, the Administrator engineering work is undertaken to A recipient for a major capital project will inform the recipient of the advance the project from concept to a shall provide the Administrator and the determination as soon as possible. sufficiently mature scope to allow for project management oversight (2) Once the Administrator has the development of a reasonably reliable contractor chosen under this part access notified the recipient that it must project cost, schedule, and project to its records and construction sites, as submit a project management plan, the management plan. reasonably may be required. recipient will have a minimum of 90 Project management oversight means days to submit the plan. the risk-informed monitoring of the § 633.17 Project management oversight contractor eligibility. § 633.23 FTA review of a project recipient’s management of a major management plan. capital project’s progress to determine (a) Any person or entity may provide whether the project is on time, within Within 60 days of receipt of a project project management oversight services management plan, the Administrator budget, in conformance with design and in connection with a major capital quality criteria, in compliance with all will notify the recipient that: project, with the following exceptions: (a) The plan is approved; applicable Federal requirements, (1) An entity may not provide project (b) The plan is disapproved, including constructed to approved plans and management oversight services for its the reasons for the disapproval; specifications, delivering the identified own project; and (c) The plan will require modification, benefits, and safely, efficiently, and (2) An entity may not provide project as specified, before approval; or effectively implemented. (d) The Administrator has not yet Project management plan means a management oversight services for a project if there exists a conflict of completed review of the plan, and state written document prepared by a when it will be reviewed. recipient that explicitly defines all tasks interest. necessary to implement a major capital (b) In choosing private sector persons § 633.25 Contents of a project project. A project management plan may or entities to provide project management plan. be a single document or a series of management oversight services, the A project management plan must be documents or sub plans integrated with Administrator uses the procurement tailored to the type, costs, complexity, one another into the project requirements in the government-wide and phase of the major capital project, management plan either directly or by procurement regulations, found at and to the recipient’s management reference for the purpose of defining Chapter 1 of title 48, Code of Federal capacity and capability. A project how the recipient will effectively Regulations. management plan must be written to a

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level of detail sufficient to enable the installation, and integration of system to the Administrator. Such updates shall recipient to determine whether the components; include, but not be limited to: necessary staff and processes are in (h) Material testing policies and (1) Project budget; place to control the scope, budget, procedures; (2) Project schedule; schedule, and quality of the project, (i) Internal plan implementation and (3) Financing, both capital and while managing the safety and security reporting requirements including cost operating; of all persons. A project management and schedule control procedures; (4) Ridership estimates, including plan must be developed with a (j) Criteria and procedures to be used operating plan; and sufficient level of detail to enable the for testing the operational system or its (5) Where applicable, the status of Administrator to assess the adequacy of major components; local efforts to enhance ridership when the recipient’s plan. At a minimum, a (k) Periodic updates of the project estimates are contingent, in part, upon recipient’s project management plan management plan, especially related to the success of such efforts. must include: project budget and schedule, financing, (d) A recipient shall submit current (a) Adequate recipient staff ridership estimates, and the status of data on a major capital project’s budget organization with well-defined local efforts to enhance ridership where and schedule to the Administrator on a reporting relationships, statements of ridership estimates partly depend on the quarterly basis for the purpose of functional responsibilities, job success of those efforts; reviewing compliance with the project descriptions, and job qualifications; (l) The recipient’s commitment to management plan, except that the (b) A budget covering the project submit a project budget and project Administrator may require submission management organization, appropriate schedule to the Administrator quarterly; more frequently than on a quarterly contractors and consultants, property (m) Safety and security management; basis if the recipient fails to meet the acquisition, utility relocation, systems and requirements of the project management demonstration staff, audits, (n) Management of risks, plan and the project is at risk of contingencies, and miscellaneous contingencies, and insurance. materially exceeding its budget or payments as the recipient may be falling behind schedule. Budget and prepared to justify; § 633.27 Implementation of a project schedule changes will be analyzed on a (c) A construction schedule for the management plan. case-by-case basis, but FTA generally project; (a) Upon approval of a project will consider any cost increase or (d) A document control procedure management plan by the Administrator schedule delay exceeding five percent and recordkeeping system; the recipient shall begin implementing as a material change. Oversight of (e) A change order procedure that the plan. projects monitored more frequently than includes a documented, systematic (b) Generally, a project management quarterly will revert to quarterly approach to the handling of plan must be modified if the project is oversight once the recipient has construction change orders; at a new phase or if there have been demonstrated compliance with the (f) A description of organizational significant changes identified. If a project management plan and the structures, management skills, and recipient must modify an approved project is no longer at risk of materially staffing levels required throughout the project management plan, the recipient exceeding its budget or falling behind construction phase; shall submit the proposed changes to schedule. (g) Quality control and quality the Administrator along with an § 633.29 [Reserved] assurance functions, procedures, and explanation of the need for the changes. responsibilities for project design, (c) A recipient shall submit periodic [FR Doc. 2020–18819 Filed 9–22–20; 8:45 am] procurement, construction, system updates of the project management plan BILLING CODE P

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Proposed Rules Federal Register Vol. 85, No. 185

Wednesday, September 23, 2020

This section of the FEDERAL REGISTER Portfolio Management Division, Rural Development’s (HUD’s) section 8 contains notices to the public of the proposed Housing Service, Stop 0782, 1400 project-based assistance, which enables issuance of rules and regulations. The Independence Avenue SW, Washington, additional very low-income families to purpose of these notices is to give interested DC 20250–0782. be served. persons an opportunity to participate in the SUPPLEMENTARY INFORMATION: The direct loan and grant programs rule making prior to the adoption of the final under sections 514 and 516 provide low rules. Background and Summary of Changes interest loans and grants to provide The existing statutory authority for housing for farmworkers. These workers DEPARTMENT OF AGRICULTURE the Multi-Family Housing (MFH) may work either at the borrower’s farm programs was established in title V of (‘‘on-farm’’) or at the borrower’s or any Rural Housing Service the Housing Act of 1949, which gave other farm (‘‘off-farm’’) so long as the authority to the RHS (then the Farmers tenants meet program eligibility 7 CFR Part 3560 Home Administration) to make housing requirements. Section 521 rental loans to farmers. As a result of this Act, assistance is available for off-farm labor [Docket No. RHS–20–MFH–0017] the Agency established single-family housing, but not on-farm labor housing. RIN 0575–AD17 and multi-family housing programs. The The Agency has decided to not provide MFH program is administered, subject RA to on-farm labor housing units Rental Assistance and Asset to appropriations, by the U.S. because of its limited availability. Management for the Multi-Family Department of Agriculture (USDA) as The Rural Housing Service (RHS) Housing Direct Loan Programs authorized under Sections 514, 515 and, published a proposed rule on June 2, 516 and 521 of the Housing Act of 1949, 2003 (68 FR 32872) to streamline and AGENCY: Rural Housing Service, USDA. as amended (42 U.S.C. 1484, 1485, and consolidate 14 regulations into 7 CFR ACTION: Proposed rule. 1486, and 1490). Over time, the sections part 3560. Part 3560 sets forth of the Housing Act of 1949 addressing requirements, policies, and procedures SUMMARY: The Rural Housing Service for originating, processing, and (RHS or the Agency) is proposing to MFH have been amended a number of times. Amendments have involved servicing Rural Development’s MFH amend its regulation to implement direct loans and grants. An interim rule changes related to the development of a issues such as the provision of interest credit, broadening definitions of eligible was published November 26, 2004 (69 sustainable plan for the Rental FR 69032–69176) to implement those areas and populations to be served, Assistance (RA) program, including new changes, with an effective date of participation of limited-profit entities, Agency flexibilities in the managing of February 24, 2005. The Agency received establishment of a rental assistance the RA distribution and integrate new more than 2,800 comments on the program, and imposition of a number of asset management policies. The Proposed Rule published in the Federal restrictive-use provisions and regulation changes are designed to Register on June 2, 2003, (68 FR 32872). prepayment restrictions. provide flexibility, more economically While the issues of concern tended to The Agency operates a multifamily utilize the RA, and to improve the vary, the Agency noted that some issues rural rental housing direct loan program efficiency in managing the assets in the were raised by more than one under section 515 and section 514 for Direct Loan portfolio. commenter. Topics discussed by five or farm labor housing. The Agency also more commenters were presented and DATES: Comments on the proposed rule provides grants under the section 516 organized by subpart within the interim must be received on or before November farm labor housing program. The direct 23, 2020. rule published and addressed. loan program employs a public—private This proposed rule will amend the ADDRESSES: You may submit comments partnership by providing subsidized current interim rule in order to: (1) to this rule by utilizing the Federal loans at an interest rate of 1 percent to eRulemaking Portal. Go to http:// Implement programmatic changes developers to construct or renovate related to development of a www.regulations.gov and, in the lower affordable rental complexes in rural ‘‘sustainability plan’’ for the Rental ‘‘Search Regulations and Federal areas. This 1 percent loan keeps the debt Assistance (RA) Program, including new Actions’’ box, select ‘‘Rural Housing service on the property sufficiently low Agency flexibilities in managing the RA Service’’ from the agency drop-down to support below-market rents distribution; (2) integrate new asset menu, then click on ‘‘Submit.’’ In the affordable to low-income tenants. Many management policies; and (3) Docket ID column, select RHS–20– of these projects also utilize low-income incorporate technical corrections to MFH–0017 to submit or view public housing tax credit (LIHTC) proceeds. clarify reference and formatting issues comments and to view supporting and This program is typically used in in the regulation. related materials available conjunction with the RHS section 521 electronically. Information on using Rental Assistance (RA) program, which Rental Assistance Changes Regulations.gov, including instructions provides project-based rental assistance The changes proposed are designed to for accessing documents, submitting payments to property owners to more economically utilize RA, reduce comments, and viewing the docket after subsidize tenants’ rents to an affordable the program cost over time, and provide the close of the comment period, is level. With rental assistance, tenants management flexibilities in the use of available through the site’s ‘‘User Tips’’ pay 30 percent of income toward their funds. The Agency has already link. rent (including utilities). Some section implemented several measures to FOR FURTHER INFORMATION CONTACT: 515 projects also utilize the U.S. reduce the cost of RA within its already Jennifer Larson, Multi-Family Housing Department of Housing and Urban established regulatory authority, but

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amendments to the regulation are is mainly due to the current modern if the fee is approved by the Agency as needed to ensure effectiveness and true electronic banking environment. a reasonable cost to the housing project cost savings to the RA program. The Accordingly, this proposed rule would and documented on the management Agency experienced dramatic funding add a paragraph at § 3560.65 to allow certification. This proposed rule would reductions in Fiscal Year 2013, which the Agency to establish an escrow change § 3560.102 to specify what are has highlighted the need for adaptability account to collect and disperse funds. allowable management fee expenses and in delivering RA to as many This will allow the Agency to establish require that management plans include beneficiaries as possible. agency-held escrows which historically a listing of the charges covered by the This proposed rule establishes the was provided for in the loan documents fee. This will improve the use of the historical practice of using unused but was not addressed in the regulation. regulation by the borrower and Agency Rental Assistance obligation balances • Current regulation allows for by specifying which expenses can be from properties that have left the management agents to earn a charged against property income and portfolio for renewal purposes. The management fee for the performance of which must be paid out of the earned Agency has actively used RA balances certain tasks. The Agency intends to management fee. from properties that have paid off the clarify that the performance of the agent • This proposed rule would change Rural Development mortgage or natural in meeting the Management § 3560.156(c)(6) to add the Violence maturity. These funds supplement the Certification requirements will be Against Women Reauthorization Act to annual appropriation and make efficient assessed in determining the allowable the list of federal laws with which lease use of inactive funds. Inclusion of this fee. This proposed rule would add requirements must comply. Addition of process in the regulation will increase language at § 3560.102 that performance the Violence Against Women transparency on the management of RA assessments of management agents will Reauthorization Act (VAWA) to federal funds. be used when determining the allowable law compliance list. The Agency • This proposed rule would add management fee. It will also specify requires borrowers to provide a tenant language at § 3560.259(d) regarding the what are allowable management fee lease that meets all federal and program transfer of obligation balances from RA expenses and require that management regulation requirements. The VAWA Agreements from properties whose plans include a listing of the charges and its amendments are added to the list mortgages have naturally matured. covered by the fee. of laws. The Consolidated Appropriations Act, • Borrowers must comply with the • MFH borrowers had previously 2019 (Pub. L. 116–6, February 2, 2019) requirements of the Fair Housing identified certain procedures and for the Rental Assistance Program Amendments Act of 1988, and this requirements within Rural requires ‘‘. . . that rental assistance section to meet their fair housing Development’s regulations governing provided under agreements entered into responsibilities. At § 3560.104, this Supervised Bank Accounts that are prior to fiscal year 2019 for a farm labor proposed rule would raise the threshold outdated, obsolete, and no longer multi-family housing project financed for rental units from four units or more feasible in the commercial banking under section 514 or 516 of the Act may to five or more units. This will allow the environment as a means of withdrawing not be recaptured for use in another Agency to align with the Affirmative reserve account funds. This is mainly project until such assistance has Fair Housing Marketing Plan (AFHMP) due to the current electronic banking remained unused for a period of 12 as defined in 24 CFR part 200, subpart operations. Section 3560.302(c)(5)(i) consecutive months.’’ Accordingly, the M. will be updated so that Borrowers are no Agency is adding the 12-month term for • Current regulation does not contain longer required to obtain a collateral transfer of unused RA in Section 514 a provision within RA eligibility for pledge if the amount of funds exceed Farm Labor Housing. tenants that are delinquent on Agency the maximum limit covered by Federal • Amending § 3560.259(a)(4) to Unauthorized Assistance Repayment Deposit Insurance. Funds exceeding the clarify that when any rental assistance Agreements and how should not be Federally insured limit under a Tax ID units have not been used for a 6-month eligible to receive federal assistance. Number must be moved to a different period (for Section 515 properties) or 12 This proposed rule would change qualified banking institution that will months (for Section 514 properties) they § 3560.254(c) to clarify that tenants are insure the funds unless the current will be eligible for transfer. no longer eligible to receive RA if they financial institution provides additional This proposed rule also proposes to are delinquent on their Unauthorized surety such as a collateral pledge that change the following additional RA Assistance Repayment Agreement. may already be in place. The provisions: clarification of 7 CFR 3560.302(c)(5)(iv) • Amending § 3560.11 definitions of Asset Management Changes will reinforce that all account funds will Domestic farm laborer, Management The changes proposed in this rule are stay with the property until all agreement and Management fee to designed to improve the efficiency in outstanding loan balances are paid in reflect requirements in the Consolidated managing the assets in the Direct Loan full that are securing the property. Appropriations Act, 2018 (Pub. L. 115– portfolio. These consist of properties Language will be added at 141, March 23, 2018) permanently financed under the Section 515 Rural § 3560.302(c)(5)(vii) to allow for all amending Section 514(f)(3)(A) of the Rental Housing Program and the Section funds received and held in any account, Housing Act of 1949 (42 U.S.C. 514 Farm Labor Housing Program. Since except the tenant security deposit, 1484(f)(3)(A)) that the FLH tenant publication of the interim rule in 2004, membership fee, and patron capital eligibility includes ‘‘a person legally management policies have changed in accounts, are considered assets of the admitted to the United States and important areas and certain statutory property and must be held in trust by authorized to work in agriculture.’’ provisions were not originally included the borrower for the loan obligations • MFH borrowers had previously in the interim rule. until used and serve as security, through identified certain requirements within Some of these changes are highlighted transfers or assumptions of the Agency Rural Development’s regulations in: loan or grant until all outstanding loan governing Supervised Bank Accounts • Management fees are an allowable balances are paid in full. that are difficult to obtain in the current expense to be paid from the housing • Changes in § 3560.303 will also commercial banking environment. This project’s general operating account only address property expenses are

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monitored by the Agency to ensure they Æ In § 3560.303(b)(1)(vii), the Agency • Section § 3560.252 will now are proper and reasonable; but as will add the requirements for a non- include the Agency’s housing voucher expenses increase, more income is profit entity to pro-rate certain program to allow for the proper needed, which results in rent increases organizational reimbursable costs across allowance of rental subsidies. and additional cost to rental assistance. all properties owned by that entity. • • In § 3560.402 the Agency will Since the interim rule was published, MFH borrowers had previously amend language that any loan servicing borrowers have sought clarification on identified certain procedures and action will require DIAS accounts to be requirements within Rural how expenses should be treated. The converted to the current Predetermined Agency has provided periodic guidance Development’s regulations governing Amortization Schedule System (PASS) to Servicing Officials and borrowers to Supervised Bank Accounts that are system of accounting. ensure the appropriate use of project outdated, obsolete, and no longer funds. This is in accordance with a feasible in the commercial banking Executive Order 12866—Classification recommendation from the Office of the environment as a means of withdrawing Inspector General (OIG) in their audit reserve account funds. This is mainly This proposed rule has been ‘‘Review of Rural Rental Housing’s due to the current electronic banking determined to be non-significant and; Tenant and Owner Data using Data operations. Language will be amended therefore, was not reviewed by the Analytics,’’ Audit No. 04901–001–13. at § 3560.306(e)(2) removing the Office of Management and Budget MFH properties rely on project income requirement to countersign withdrawals (OMB) under Executive Order 12866. to maintain operations and provide safe, from reserve accounts. This will allow Authority decent and sanitary housing for our for current electronic banking practices. residents. Rent increases are necessary • Currently under use of reserve The Rental Assistance Program (RA) at times to generate needed revenue to account Borrowers must only inform the is administered subject to pay for ongoing maintenance, capital Agency of planned uses of reserve appropriations by the U.S. Department improvements, and immediate repairs, accounts in their annual capital budget of Agriculture (USDA) as authorized as well as to cover administrative costs if known at budget planning time under Section 521 of Title V of the associated with management of the without utilization of an agency Housing Act of 1949 as amended. property. To achieve these objectives, it approved capital needs assessment. A is necessary and proper for Servicing change at § 3560.306(g) requiring that Environmental Impact Statement Officials to thoroughly review budget needed capital improvements, based on This document has been reviewed in submissions, ask questions, and seek the needs identified in an Agency documentation that support budget approved capital needs assessment, are accordance with 7 CFR part 1970, requests or actual expenses. completed within a reasonable subpart A, ‘‘Environmental Policies.’’ Implementing this change will improve timeframe. This will improve the RHS determined that this action does compliance, reduce unnecessary and management and delivery of the MFH not constitute a major Federal action unsupportable expenses, and result in program by establishing the authority to significantly affecting the quality of the stronger, more financially stable require borrower utilization of the environment. In accordance with the properties. reserve accounts as recommended in the National Environmental Policy Act of Æ In § 3560.303(a)(1), the Agency will Agency approved capital needs 1969, Public Law 91–190, an require that the annual project budget assessment (CNA). Environmental Impact Statement is not must include anticipated expenditures required. on the project’s long-term capital needs Technical Corrections Regulatory Flexibility Act as specified in § 3560.103(c) and will Other technical changes (moving and provide a metric for the Agency to consolidating sections, removing The rule has been reviewed with determine current or future rent duplicative language, language regard to the requirements of the increase requests based on the clarifications) will make the regulation Regulatory Flexibility Act (5 U.S.C. Borrower’s utilization of the reserve easier to use, and promote better 601–612). The undersigned has account. This will ensure that borrowers compliance with program requirements determined and certified by signature are utilizing project revenue for ongoing by borrowers and management agents. on this document that this rule will not capital improvements needed to The changes include: have a significant economic impact on • maintain compliance and reduced risk In § 3560.105(f)(10), a change to a substantial number of small entities of the property. clarify that if an insurance deductible is since this rulemaking action does not Æ A change will be made to met, there is no need to track with a involve a new or expanded program nor § 3560.303(c) to add payables as a replacement reserve account. does it require any more action on the priority for budget expenditures. This • Section § 3560.152 incorporates will allow for the Agency to ensure that part of a small business than required of changes related to ‘‘age’’ ineligibility. a large entity. all payables are being paid from project • The Agency has updated the revenues in a timely manner and not wording of ‘‘State Director’’ to Executive Order 13132—Federalism accrued, without agency consent, ‘‘Leadership Designee’’ to allow for causing increased costs and penalties future staff flexibility. The policies contained in this rule do and adding risk. • Update § 3560.152 by removing not have any substantial direct effect on Æ In § 3560.303, the Agency will term ‘‘elderly units in mixed housing’’. States, on the relationship between the clarify what are allowable project • Language will be changed in National Government and the States, or expenses and provide for a comparable § 3560.154 to correct ‘‘sex’’ to ‘‘gender’’ on the distribution of power and ‘‘reasonableness’’ test by the Agency. and update policy on criminal activity responsibilities among the various Generally, expenses charged to project for admissions. levels of Government. This rule does not operations for expenses, must be • Update § 3560.205 to include the impose substantial direct compliance reasonable, typical, necessary and show notification of all household members of costs on State and local Governments; a clear benefit to the residents of the rent change effective 30 days from date therefore, consultation with States is not property. of notification. required.

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Executive Order 12988—Civil Justice information, services, and other regulations and policies, the USDA, its Reform purposes. Agencies, offices, employees, and institutions participating in or This rule has been reviewed under Civil Rights Impact Analysis administering USDA programs are Executive Order 12988. In accordance Rural Development has reviewed this prohibited from discriminating based on with this rule: (1) Unless otherwise rule in accordance with USDA race, color, national origin, religion, sex, specifically provided, all State and local Regulation 4300–4, Civil Rights Impact gender identity (including gender laws that conflict with this rule will be Analysis,’’ to identify any major civil expression), sexual orientation, preempted; (2) no retroactive effect will rights impacts the rule might have on disability, age, marital status, familial/ be given to this rule except as program participants on the basis of age, parental status, income derived from a specifically prescribed in the rule; and race, color, national origin, sex or public assistance program, political (3) administrative proceedings of the disability. After review and analysis of beliefs, or reprisal or retaliation for prior National Appeals Division of the the rule and available data, it has been civil rights activity, in any program or Department of Agriculture (7 CFR part determined that implementation of the activity conducted or funded by USDA 11) must be exhausted before bringing rule will not adversely or (not all bases apply to all programs). suit in court that challenges action taken disproportionately impact very low, Remedies and complaint filing under this rule. low- and moderate-income populations, deadlines vary by program or incident. Unfunded Mandate Reform Act minority populations, women, Indian Persons with disabilities who require (UMRA) tribes or persons with disability by alternative means of communication for virtue of their race, color, national program information (e.g., , large Title II of the UMRA, Public Law 104– origin, sex, age, disability, or marital or print, audiotape, American Sign 4, establishes requirements for Federal familiar status. No major civil rights Language, etc.) should contact the Agencies to assess the effects of their impact is likely to result from this rule. responsible Agency or USDA’s TARGET regulatory actions on State, local, and Center at (202) 720–2600 (voice and tribal Governments and on the private Programs Affected TTY) or contact USDA through the sector. Under section 202 of the UMRA, The program affected by this Federal Relay Service at (800) 877–8339. Federal Agencies generally must regulation is listed in the Catalog of Additionally, program information may prepare a written statement, including Federal Domestic Assistance under be made available in languages other cost-benefit analysis, for proposed and numbers 10.427—Rural Rental than English. Final Rules with ‘‘Federal mandates’’ Assistance Payments. To file a program discrimination that may result in expenditures to State, complaint, complete the USDA Program local, or tribal Governments, in the Executive Order 13175, Consultation Discrimination Complaint Form, AD– aggregate, or to the private sector, of and Coordination With Indian Tribal 3027, found online at: http:// $100 million or more in any one year. Governments www.usda.gov/oascr/how-to-file-a- When such a statement is needed for a This executive order imposes program-discrimination-complaint and rule, section 205 of the UMRA generally requirements on RHS in the at any USDA office or write a letter requires a Federal Agency to identify development of regulatory policies that addressed to USDA and provide in the and consider a reasonable number of have tribal implications or preempt letter all of the information requested in regulatory alternatives and adopt the tribal laws. RHS has determined that the the form. To request a copy of the least costly, more cost-effective, or least rule does not have a substantial direct complaint form, call (866) 632–9992, burdensome alternative that achieves effect on one or more Indian tribe(s) or submit your completed form or letter to the objectives of the rule. on either the relationship or the USDA by: This rule contains no Federal distribution of powers and (1) Mail: U.S. Department of mandates (under the regulatory responsibilities between the Federal Agriculture, Director, Office of provisions of title II of the UMRA) for Government and Indian tribes. Thus, Adjudication, 1400 Independence State, local, and tribal Governments or this rule is not subject to the Avenue SW, Washington, DC 20250– for the private sector. Therefore, this requirements of Executive Order 13175. 9410; rule is not subject to the requirements If tribal leaders are interested in (2) Fax: (202) 690–7442; or of sections 202 and 205 of the UMRA. consulting with RHS on this rule, they (3) Email: [email protected]. USDA is an equal opportunity Paperwork Reduction Act are encouraged to contact USDA’s Office of Tribal Relations or RD’s Native provider, employer, and lender. The information collection American Coordinator at: AIAN@ List of Subjects in 7 CFR 3560 requirements contained in this usda.gov to request such a consultation. regulation have been approved by OMB Accounting, Administrative practice and have been assigned OMB control Executive Order 12372— and procedure, Aged, Conflict of number 0575–0189. This proposed rule Intergovernmental Consultation interest, Government property contains no new reporting and These loans are subject to the management, Grant programs-housing recordkeeping requirements that would provisions of Executive Order 12372, and community development, require approval under the Paperwork which require intergovernmental Insurance, Loan programs-agriculture, Reduction Act of 1995 (44 U.S.C. consultation with State and local Loan programs-housing and community Chapter 35). officials. RHS conducts development, Low and moderate- income housing, Migrant labor, E-Government Act Compliance intergovernmental consultations for each loan in accordance with 2 CFR part Mortgages, Nonprofit organizations, RHS is committed to complying with 415, subpart C. Public housing, Rent subsidies, the E-Government Act by promoting the Reporting and recordkeeping use of the internet and other Non-Discrimination Statement requirements, Rural areas. information technologies in order to In accordance with Federal civil For the reasons set forth in the provide increased opportunities for rights law and U.S. Department of preamble, 7 CFR part 3560 is proposed citizen access to Government Agriculture (USDA) civil rights to be amended as follows:

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PART 3560—DIRECT MULTI-FAMILY § 3560.72 [Amended] preparing and submitting all HOUSING LOANS AND GRANTS ■ 5. Amend § 3560.72 by removing the appropriate tax reports and deposits, words ‘‘State Director’’ and adding in unemployment and workers’ ■ 1. The authority citation for part 3560 their place ‘‘MFH Leadership Designee’’ compensation reports, and other IRS- or continues to read as follows: in the second sentence of paragraph (b). state-required reports. Authority: 42 U.S.C. 1480. (iv) In-house training provided to on- Subpart C—Borrower Management and site staff by the management company. Subpart A—General Provisions and Operations Responsibilities (v) Preparation and submission of Definitions ■ 6. Amend § 3560.102 by: proposed annual budgets and negotiation of approval with the § 3560.8 [Amended] ■ a. Revising paragraph (b); ■ b. Adding paragraph (g)(1)(iv); and Agency. ■ 2. Amend § 3560.8 by removing the ■ c. Revising paragraphs (i) and (j). (vi) Preparation and distribution of words ‘‘State Director’’ and adding in The revisions and addition read as the Agency forms and routine financial their place ‘‘Leadership Designee’’ in follows: reports to borrowers. the last sentence of the paragraph. (vii) Preparation and distribution of ■ 3. Amend § 3560.11 by: § 3560.102 Housing project management. required year-end reports to the Agency. ■ a. Removing the acronym ‘‘MFHMFH’’ * * * * * (viii) Preparation of requests for wherever it appears in the section and (b) Management plan. Borrowers must reserve withdrawals, rent increases, or adding ‘‘MFH’’ in its place; and develop and maintain a management other required adjustments. ■ b. Revising the definitions of plan for each housing project covered by (ix) Arranging for preparation by ‘‘Domestic farm laborer’’, ‘‘Management their loan or grant. The management outside contractors of utility allowance agreement’’, and ‘‘Management fee’’ to plan must establish the systems and analysis. read as follows: procedures necessary to ensure that () Preparation and implementation of § 3560.11 Definitions. housing project operations comply with Affirmative Fair Housing Marketing Agency requirements. The management Plans as well as general marketing plans * * * * * plan should describe whether and efforts. Domestic farm laborer. A person who, administrative expenses are to be paid (xi) Review of tenant certifications consistent with the requirements in from management agent fees or project and submission of monthly rental § 3560.576(b)(2), receives a substantial operations, including a task list of assistance requests, and overage. portion of his or her income from farm charges covered by the fee as outlined Submission of payments where labor employment (not self-employed) in § 3560.102(i)(3)(i)(A). The required. in the United States, Puerto Rico, or the management plan must meet the (xii) Preparation, approval, and Virgin Islands and either is a citizen of standards set out in this rule. distribution of operating disbursements; the United States or resides in the oversight of project receipts; and United States, Puerto Rico or the Virgin * * * * * reconciliation of deposits. Islands after being legally admitted for (g) * * * (xiii) Overhead of management agent, permanent residence, or a person legally (1) * * * including: admitted to the United States and (iv) Any borrower’s entity control, or (A) Establish, maintain, and control authorized to work in agriculture. This interest held or possessed by a person’s an accounting system sufficient to carry definition may include the immediate spouse, parent, child, grandchild, or out accounting supervision family members residing with such a sibling or other relation by blood or responsibilities. person. marriage is attributed to that person for this determination. (B) Maintain agent office * * * * * arrangements, staff, equipment, Management agreement. A written * * * * * (i) Management fees. Management furniture, and services necessary to agreement between a borrower and an fees will be an allowable expense to be communicate effectively with the IOI management agent or independent paid from the housing project’s general properties, to include consultation and fee management agent setting forth the operating account only if the fee is support to site-staff, the Agency and management agent’s responsibilities and approved by the Agency as a reasonable with the borrowers. fees for management services. cost to the housing project and (C) Postage expenses unrelated to site Management fee. The compensation documented on the management operation. provided to a management agent for certification. Management fees must be (D) Expense of telephone and services provided in accordance with an developed in accordance with the facsimile communication, unrelated to approved management certification, following: site operations. Form RD 3560–13, ‘‘Multi-Family (1) The management fee may (E) Direct costs of insurance (fidelity Project Borrower’s/Management Agent’s compensate the management entity for bonds covering central office staff, Management Certification.’’ the following costs and services: computer and data coverage, general * * * * * (i) Supervision by the management liability, etc.) directly related to agent and its staff (time, knowledge, and protection of the funds and records of Subpart B—Direct Loan and Grant expertise) of overall operations and the borrower. Insurance coverage for Origination capital improvements of the site. agent’s office and operations (Property, ■ 4. Amend § 3560.65 by adding (ii) Hiring, supervision, and Auto, Liability, E&O, Casualty, Workers paragraph (d) to read as follows: termination of on-site staff. Compensation, etc.) (iii) General maintenance of project (F) Central office staff training and § 3560.65 Reserve account. books and records (general ledger, ongoing certifications. * * * * * accounts payable and receivable, (G) Maintenance of all required (d) The agency may establish an payroll, etc.). Preparation and profession and business licenses and escrow account for the collection and distribution of payroll for all on-site permits. (This does not include project disbursement of reserve account funds. employees, including the costs of site office permits or licenses.)

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(H) Travel of agent staff to the administrative expenses are to be paid have an identity-of-interest (IOI) with properties for on-site inspection, from the management fee or paid for as the borrower or the management agent training, or supervision activities. a project cost. until the IOI relationship has been (I) Agent bookkeeping for their own (i) A task list should be used to disclosed to the Agency according to business. identify which services are included in paragraph (g) of this section, not denied (xiv) Attendance at meetings the management fee, which services are by the Agency under paragraph (d)(3) of (including travel) with tenants, owners, included in project operations, and this section, and it has been determined and the Agency or other governmental which are pro-rated along with the that the costs are as low as or lower than agency. methodology used to pro-rating of arms-length, open-market purchases; (xv) Development, preparation, and expenses between management agent and revision of management plans, fees and project operations. Some (vii) The borrower and the agreements, and management property responsibilities are completed management agent agree that all records certifications. at the property and some offsite. Agent related to the housing project are the (xvi) Directing the investment of responsibilities may be performed at the property of the housing project and that project funds into required accounts. property, the management office, or at the Agency, OIG, or GAO may inspect (xvii) Maintenance of bank accounts some other location. the housing records and the records of and monthly reconciliations. (ii) Disputes may arise as to who the borrower, management agent, and (xviii) Preparation, request for, and performs certain services. The suppliers of goods and services having disbursement of borrower’s initial management plan and job descriptions an IOI with the borrower or with a operating capital (for new projects) as should normally provide sufficient management agent acting as an agent of well as administration of annual clarity to avoid or resolve any such the borrower upon demand. owner’s return on investment. disputes; however, sometimes (2) A certification will be executed (xix) Account maintenance, clarifications and supporting materials each time new management is proposed settlement, and disbursement of security may be required to resolve disputes. The and/or a management agreement is deposits. decision must be made based on the executed or renewed. Any amendment (xx) Working with auditors for initial most complete evaluation of the facts to a management certification must be Agency annual financial reports. presented. approved by the Agency and the (xxi) Storage of records, to include (j) Management certification. (1) As a borrower. electronic records, and adherence to condition of approval of project * * * * * records retention requirements. management, including borrowers who ■ 7. Amend § 3560.104 by revising (xxii) Assist on-site staff with tenant self-manage, borrower and management paragraph (b)(1) to read as follows: relations and problems. Provide agents must execute an Agency- assistance to on-site staff in severe approved certification certifying that: § 3560.104 Fair housing. actions (eviction, death, insurance loss, (i) Borrowers and management agent * * * * * etc.). agree to operate the housing project in (b) * * * (xxiii) Oversight of general and accordance with the management plan; (1) Borrowers with housing projects preventive maintenance procedures and (ii) Borrowers and the management that have five or more rental units must policies. agent will comply with Agency prepare and maintain an Affirmative (xxiv) Development and oversight of requirements, loan or grant agreements, Fair Housing Marketing Plan (AFHMP) asset replacement plans. applicable local, state and Federal laws as defined in 24 CFR part 200, subpart (xxv) Oversight of preparation of and ordinances, and contract M. section 504 reviews, development of obligations, will certify that no plans, and implementation of payments have been made to anyone in * * * * * improvements necessary to comply with return for awarding the management ■ 8. Amend § 3560.105 by revising plans and section 504 requirements. contract to the management agent, and paragraphs (c)(4) and (f)(10) to read as (2) Management fees may consist of a will agree that such payments will not follows: base per occupied revenue producing be made in the future; § 3560.105 Insurance and taxes. unit fee and add-on fees for specific (iii) Borrowers and the management housing project characteristics. agent will comply with Agency notices * * * * * Management entities may be eligible to or other policy directives that relate to (c) * * * receive the full base per occupied unit the management of the housing project; (4) If the best insurance policy a fee for any month or part of a month (iv) Management agreement between borrower can obtain at the time the during which the unit is occupied. the borrower and management agent borrower receives the loan or grant (i) Periodically, the Agency will complies with the requirements of this contains a loss deductible clause greater develop a range of base per occupied section; than that allowed by paragraph (f)(9) of unit fees that will be paid in each state. (v) Allowable management fees are this section, the insurance policy and an The Agency will develop the fees based assessed and paid out of the housing explanation of the reasons why more on a review of housing industry data. projects’ general operating account. adequate insurance is not available must The final base for occupied unit fees for Borrowers and management agents will be submitted to the Agency prior to loan each state will be made available to all comply with Agency requirements or grant approval. borrowers. regarding management fees as specified * * * * * (ii) Periodically, the Agency will in paragraph (i) of this section, and (f) * * * develop the amount and qualifications allocation of management costs between (10) Deductible amounts (excluding to receive add-on fees. The final set of the management fee and the housing flood, windstorm, earthquake and qualifications will be made available to project financial accounts specified in sinkhole insurance or mine subsidence all borrowers. § 3560.302(c)(3); insurance) must be accounted for in the (3) Identifying the Type of (vi) The borrower and the replacement reserve account, unless the Administrative Expense. Management management agent will not purchase deductible does not exceed the Plans and Agreements must describe if goods and services from entities that maximum deductible allowable as

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indicated in 3560.105(f)(9)(i). Borrowers § 3560.156 Lease requirements. related to a drug violation, or has who wish to increase the deductible * * * * * successfully completed a counseling or amount must deposit an additional (c) * * * recovery program within timeframes amount to the reserve account equal to (1) Leases for tenants who hold a specified by the landlord as a condition the difference between the Agency’s Letter of Priority Entitlement (LOPE) for continued occupancy in the unit. maximum deductible and the requested issued according to § 3560.660(c) and Should a further drug violation be new deductible. The Borrower will be are temporarily occupying a unit for committed by any non-adult person required to maintain this additional which they are not eligible must include occupying the unit the landlord may amount so long as the higher deductible a clause establishing the tenant’s require the person to be severed from is in force. responsibility to move when a suitable tenancy as a condition for continued * * * * * unit becomes available in the housing occupancy by the lessee. project. If a person vacating the unit, as a Subpart D—Multi-Family Housing * * * * * result of the above policies, is one of the Occupancy (6) * * * lessees, the person shall be severed from ■ 9. Amend § 3560.152 by revising (v) The Violence Against Women the tenancy and the lease shall continue paragraph (c) heading and introductory Reauthorization Act of 2013 and any among any other remaining lessees and text, and paragraphs (c)(1) introductory amendments thereto. the landlord. The landlord may also, at text and (e)(2)(iv) to read as follows: * * * * * the option of the landlord, permit (15) Leases, including renewals, must another adult member of the household § 3560.152 Tenant eligibility. include the following language: to be a lessee. * * * * * ‘‘It is understood that the use, or Should any of the above provisions (c) Requirements for elderly housing, possession, manufacture, sale, or governing a drug violation be found to congregate housing, and group homes. distribution of an illegal controlled violate any of the laws of the land the In addition to the requirements of substance (as defined by local, State, or remaining enforceable provisions shall paragraph (a) of this section, the federal law) while in or on any part of remain in effect. The provisions set out following occupancy requirements this apartment complex premises or above do not supplant any rights of apply to elderly housing and congregate cooperative is an illegal act. It is further tenants afforded by law.’’ housing or group homes: understood that such action is a (16) Leases for rental units accessible (1) For elderly housing and congregate material lease violation. Such violations to individuals with disabilities occupied housing, the following provisions apply: (hereafter called a ‘‘drug violation’’) may by those not needing the accessibility * * * * * be evidenced upon the admission to or features must establish the tenant’s (e) * * * conviction of the use, possession, responsibility to move to another unit (2) * * * manufacture, sale, or distribution of a within 30-days of written notification (iv) Since tenant certifications are controlled substance (as defined by that the unit is needed by an eligible used to document interest credit and local, state, or Federal law) in any local, qualified person with disabilities who rental assistance eligibility and are a state, or Federal court. requires the accessibility features of the basic responsibility of the borrower The landlord may require any lessee unit. Additionally, the lease clause must under the loan documents, borrowers or other adult member of the tenant ensure that the household may remain who fail to submit annual or updated household occupying the unit (or other in the rental unit with accessibility tenant certification forms within the adult or non-adult person outside the features until an appropriately sized time period specified in paragraph tenant household who is using the unit) vacant unit within the project becomes (e)(2)(iii) of this section will be charged who commits a drug violation to vacate available and then must move or vacate overage, as specified in § 3560.203(c) the leased unit permanently, within within 30 days of notification from and lost rental assistance. Unauthorized timeframes set by the landlord, and not borrower. assistance, if any, will be handled in thereafter to enter upon the landlord’s ■ 12. Amend § 3560.158 by revising accordance with subpart O of this part. premises or the lessee’s unit without the paragraph (d)(3) introductory text to * * * * * landlord’s prior consent as a condition read as follows: ■ 10. Amend § 3560.154 by revising for continued occupancy by the paragraphs (a)(9) introductory text and remaining members of the tenant’s § 3560.158 Changes in tenant eligibility. (j) to read as follows: household. The landlord may deny * * * * * § 3560.154 Tenant selection. consent for entry unless the person (d) * * * (a) * * * agrees to not commit a drug violation in (3) After the death of a tenant or co- (9) Race, ethnicity, and gender the future and is either actively tenant in elderly housing, the surviving designation. The following disclosure participating in a counseling or recovery members of the household, regardless of notice shall be used: program, complying with court orders age but taking into consideration the related to a drug violation, or has conditions of paragraph (d)(1) of this * * * * * (j) Criminal activity. Borrowers will successfully completed a counseling or section, may remain in the rental unit in deny admission for criminal activity or recovery program. which they were residing at the time of alcohol abuse by household members in The landlord may require any lessee the tenant’s or co-tenant’s death, even if accordance with the provisions of 24 to show evidence that any non-adult the household is over housed according CFR 5.854, 5.855, 5.856, and 5.857. member of the tenant household to the housing project’s occupancy rules ■ 11. Amend § 3560.156 by: occupying the unit, who committed a except as follows: ■ a. Revising paragraph (c)(1); drug violation, agrees not to commit a * * * * * ■ b. Adding paragraph (c)(6)(v); and drug violation in the future, and to show ■ 13. Amend § 3560.159 by revising ■ c. Revising paragraphs (c)(15) and evidence that the person is either paragraph (c) to read as follows: (16). actively seeking or receiving assistance The revisions and addition read as through a counseling or recovery § 3560.159 Termination of occupancy. follows: program, complying with court orders * * * * *

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(c) Other terminations. Should (2) Tenants with subsidies from paragraphs (c)(5)(i), (ii) and (iv) to read occupancy be terminated due to sources other than the Agency may be as follows: conditions which are beyond the control eligible for Agency rental assistance if of the tenant, such as a condition related all of the following conditions are met. § 3560.302 Accounting, bookkeeping, budgeting, and financial management to required repair or rehabilitation of the * * * * * systems. building, or a natural disaster, and prior ■ 17. Amend § 3560.254 by revising to expiration of the disaster declaration, * * * * * paragraph (c) to read as follows: (c) * * * the tenants who are affected by such a § 3560.254 Eligibility for rental assistance. (3) * * * circumstance are entitled to benefits (ii) Real estate tax and insurance under the Uniform Relocation Act and * * * * * account (if not part of the general may request a Letter of Priority (c) Eligible households. Households operating account or unless escrowed by Entitlement (LOPE) from the Agency. If eligible for rental assistance are those: the Agency); tenants need additional time to secure (1) With very low- or low-incomes (iii) Reserve account (unless escrowed replacement housing, the Agency may, who are eligible to live in MFH; by the Agency in accordance with at the tenant’s request, extend the LOPE (2) Whose net tenant contribution to 3560.65); entitlement period. rent determined in accordance with * * * * * * * * * * § 3560.203(a)(1) is less than the basic (5) * * * rent for the unit; (i) All housing project funds must be Subpart E—Rents (3) Whose head of the household is a held only in financial institution U.S. citizen or a legal alien as defined ■ accounts insured by an agency of the 14. Amend § 3560.205 by revising in § 3560.11; paragraph (e) to read as follows: Federal Government or held in (4) Who meet the occupancy rules/ securities meeting the conditions in this § 3560.205 Rent and utility allowance policies established by the borrower in subpart. changes. accordance with § 3560.155(e); (ii) Funds maintained in an * * * * * (5) Who have a signed, unexpired institution may not exceed the limit (e) Approval. If the Agency approves tenant certification form on file with the established for Federal deposit a rent or utility allowance increase borrower; and insurance. Funds exceeding the request on which the comments were (6) Who is not delinquent on any Federally insured limit under a Tax ID solicited, tenants or members receiving Federal debt, including unauthorized Number must be moved to a different notice of a proposed rent or utility assistance repayment agreements. qualified banking institution that will ■ allowance change in accordance with 18. Revise § 3560.258 to read as insure the funds unless the current 3560.205(d)(2) shall be notified of the follows: financial institution provides additional rent or utility allowance change to be § 3560.258 Terms of agreement. surety such as a collateral pledge that may already be in place. effective 30 calendar days from the date (a) Term of agreement. Rental of the notification. assistance agreements will have a term * * * * * * * * * * of the later of 12 months from the first (iv) All funds received and held in ■ 15. Amend § 3560.207 by revising disbursement of the obligation or when any account, except the tenant security paragraph (b) to read as follows: funds under the agreement are deposit, membership fee, and patron exhausted. capital accounts, are considered assets § 3560.207 Annual adjustment factors for of the property and must be held in trust Section 8 units. (b) Replacing expiring obligations. Rental assistance agreements may be by the borrower for the loan obligations * * * * * renewed in accordance with until used and serve as security, through (b) Establishing rents in housing with § 3560.255(a)(1). transfers or assumptions for the Agency HUD rent assistance. Borrowers will set ■ 19. Amend § 3560.259 by revising loan or grant until all outstanding basic, note, and HUD contract rents for paragraphs (a)(3) and (4) and adding balances are satisfied. housing receiving HUD project-based paragraph (d) to read as follows: * * * * * Section 8 assistance, as specified in ■ 21. Revise § 3560.303 to read as § 3560.202(c). § 3560.259 Transferring rental assistance. follows: * * * * * (a) * * * § 3560.303 Housing project budgets. (3) After a liquidation, prepayment or Subpart F—Rental Subsidies natural maturity; (a) General requirements. (1) Using an (4) To the extent permitted by law, Agency-approved format, borrowers ■ 16. Amend § 3560.252 by: must submit to the Agency for approval ■ a. Redesignating paragraphs (b)(2) when any rental assistance units have not been used for a 6-month period a proposed annual housing project through (4) as paragraphs (b)(3) through budget prior to the start of the housing (5) respectively, and adding new (Section 515) or a 12-month period (Section 514 or 516); or project’s fiscal year. The capital budget paragraph (b)(2); and section of the annual project budget * * * * * ■ b. Revising paragraph (c)(2) must include anticipated expenditures (d) Agency use of obligation balances. introductory text. on the project’s long-term capital needs In lieu of transferring rental assistance The addition and revision read as as specified in 7 CFR 3560.103(c) and units, the Agency may elect to utilize follows: will assist the Agency on utilization of the remaining obligation balances of the reserve account for current or future § 3560.252 Authorized rental subsidies. units identified in 3560.259(a)(2) and (3) rent increase requests. * * * * * for renewal purposes. (2) Budget projections regarding (b) * * * Subpart G—Financial Management income, expenses, vacancies, and (2) Agency housing vouchers; contingencies must be realistic given the * * * * * ■ 20. Amend § 3560.302 by revising housing project’s history, current (c) * * * paragraphs (c)(3)(ii) and (iii) and circumstances, and market conditions.

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(3) Borrowers must document that the (v) All repair and maintenance costs (G) State taxes and other mandated operating expenses included in the for the project including: state or local fees as well as other budget accurately reflect reasonable and (A) Maintenance staffing costs and relevant expenses required for operation necessary costs to operate the housing related expenses. of the property by a third-party project in a manner consistent with the (B) Maintenance supplies. governmental unit. Costs of objectives of the loan and in accordance (C) Contract repairs to the projects continuation financing statements and with the applicable Agency (e.g., heating and air conditioning, site license and permit costs. requirements. painting, roofing). (H) Expenses related to site utilities. (4) Borrower must submit supporting (D) Make ready expenses including (I) Site office furniture and equipment documentation to justify housing project painting and repairs, flooring including site-based computer and utility allowances. replacement and appliance replacement copiers. Service agreements and (5) Upon Agency request, borrowers as well as drapery or -blind warranties for copiers, telephone must submit any additional replacement. (Turnover maintenance). systems and computers are also documentation necessary to establish (E) Preventive maintenance expenses included (if approved by the Agency). that applicable Agency requirements including occupied unit repairs and (J) Real estate taxes (personal tangible have been met. maintenance as well as common area property and real property taxes) and (b) Allowable and unallowable project systems repairs and maintenance. expenses related to controlling or expenses. Expenses charged to project (F) Snow removal. reducing taxes. operations, whether for management (G) Elevator repairs and maintenance (K) All costs of insurance including agent services or other expenses, must contracts. property liability and casualty as well as (H) Section 504 and other Fair be reasonable, typical, necessary and fidelity or crime and dishonesty Housing compliance modifications and show a clear benefit to the residents of coverage for on-site employees and the the property. Services and expenses maintenance. (I) Landscaping maintenance, owners. charged to the property must show (L) All bookkeeping supplies and value added and be for authorized replacements, and seasonal plantings. (J) Pest control services. recordkeeping items related to costs of purposes. (K) Other related maintenance collecting rents on-site. (1) Allowable expenses. Allowable expenses. (M) All office supplies and copies expenses include those expenses that (vi) All operational costs related to the related to costs of preparing and are directly attributable to housing project including: maintaining tenant files and processing project operations and are necessary to (A) The costs of obtaining and tenant certifications to include carry out successful operations. receiving credit reports, police reports, electronic storage. (i) Housing project expenses must not and other checks related to tenant (N) Public relations expense relative duplicate expenses included in the selection criteria for prospective to maintaining positive relationships management fee as defined in residents. between the local community and the § 3560.102(i). (B) Photocopying or printing expense tenants with the management staff and (ii) Actual costs for direct personnel related to actual production of project the borrowers. Chamber of Commerce costs of permanent and part-time staff brochures, marketing pieces, forms, dues, contributions to local charity assigned directly to the project site. This reports, notices, and newsletters are events, and sponsorship of tenant includes managers, maintenance staff, allowable project expenses no matter activities, are examples. and temporary help including their: what location or point of origin the (O) Tax Credit Compliance (A) Gross salary; work is performed including Monitoring Fees imposed by HFAs. (B) Employer Federal Insurance (P) All insurance deductibles as well Contributions Act (FICA) contribution; outsourcing the work to a professional printer. as adjuster expenses. (C) Federal unemployment tax; () Professional service contracts (D) State unemployment tax; (C) All bank charges related to the (E) Workers compensation insurance; property including purchases of (audits, owner-certified submissions in (F) Health insurance premiums; supplies (e.g., checks, deposit slips, accordance with § 3560.308(a)(2), tax (G) Cost of fidelity or comparable returned check fees, service fees). returns, energy audits, utility insurance; (D) Costs of site-based telephone allowances, architectural, construction, (H) Leasing, performance incentive or including initial installation, basic rehabilitation and inspection contracts, annual bonuses that are clearly services, directory listings, and long- capital needs assessments (CNA) etc.) provided for by the site manager salary distances charges. (R) Training for on-site staff provided contract; (E) All advertising costs related by outside training vendors. Association (I) Direct costs of travel to off-site specifically to the operations of that dues to be paid by the project should be locations by on-site staff for property project. This can include advertising for related to training for site managers or business or training; and/or applicants or employees in newspapers, management agents. To the extent that (J) Retirement benefits. newsletters, social media, radio, cable association dues can document training (iii) Legal fees directly related to the TV, and telephone books. for site managers or management agents operation and management of the (F) Postage expense to mail out rental related to project activities by actual property including tenant lease applications, third-party (asset income cost or pro-ration, a reasonable expense enforcement actions, property tax and adjustments to income) may be billed to the project. appeals and suits, and the preparation verifications, application processing (S) Legal fees if found not guilty of of all legal documents. correspondence (acceptance or denial civil lawsuits, commercially reasonable (iv) All outside account and auditing letters), mailing project invoice legal expenses and costs for defending fees, if required by the Agency, directly payments, required correspondence, or settling lawsuits. related to the preparation of the annual report submittals to various regulatory (vii) With prior Agency approval, audit, partnership tax returns and 401- authorities for the managed property are cooperatives and nonprofit K’s, as well as other outside reports and allowable project expenses no matter organizations may use housing project year-end reports to the Agency, or other what location or point of origin the mail funds to reimburse actual asset governmental agency. is generated. management expenses directly

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attributable to ownership related to project activities by actual that are improper or not fiscally prudent responsibilities. Such expenses may cost or pro-ration, a reasonable expense may warrant budget denial and/or a include: may be billed to the project; demand for recovery action. (A) Errors and omissions insurance (vii) Pay for bonuses or monetary (e) Agency review and approval. (1) policy for the Board of Directors. The performance awards to site managers or The Agency will only approve housing cost must be prorated if the policy management agents that are not clearly project budgets that meet the covers multiple Agency housing provided for by the site manager salary requirements of paragraphs (a) through properties. contract; (d) of this section. (B) Board of Director review and (viii) Billing for parties or gifts to (2) If no rent change is requested, approval of proposed Agency’s annual management agent staff; borrowers must submit budget operating budgets, including proposed (ix) Billing for practices that are documents for Agency approval 60 repair and replacement outlays and inefficient such as routine use of collect calendar days prior to the start of the accruals. The cost must be prorated if calls from a site manager to a housing project’s fiscal year. The the policy covers multiple Agency management agent office; Agency will notify borrowers if the housing properties. (x) Billing the project for computer budget submission does not meet the (C) Board of Director review and hardware, some software, and internal requirements of paragraphs (a) through approval of capital expenditures, connections that are beyond the scope (d) of this section. The borrower will financial statements, and consideration and size reasonably needed for the have 10 days to submit the additional of any management comments noted. services supplied (i.e., purchasing material. The cost must be prorated if the policy equipment or software for use by a site (3) If a rent change is requested, the covers multiple Agency housing manager that is clearly beyond that borrower must submit budget properties. needed to support project operations). documents to the Agency and notify (D) Long-term asset management Note that computer learning center tenants of the requested rent change at reviews. The cost must be prorated if activities benefiting tenants are not least 90 calendar days prior to the start the policy covers multiple Agency covered in this prohibition; or of the housing project’s fiscal year. housing properties. (xi) Costs of tenant services. (i) The Agency will notify borrowers (viii) Agency approved Third Party (c) Priorities. The priority order of if the budget submission does not meet debt service for the project. planned and actual budget expenditures the requirements of paragraphs (a) (2) Unallowable expenses. Housing will be: through (d) of this section, or if the rent project funds may not be used for any (1) Senior position lienholder, if any; and utility allowance request has been of the following: (2) Operating and maintenance denied in accordance with § 3560.205(f). (i) Equity skimming as defined in 42 expenses, including taxes and The borrower will have 10 days to U.S.C. 543(a); insurance; submit the additional material to (ii) Purposes unrelated to the housing (3) Agency debt payments; address any issues raised by the Agency. project; (4) Reserve account requirements; (ii) The rent change is not approved (iii) Reimbursement of inaccurate or (5) All accounts payable; until the Agency issues a written false claims; (6) Other authorized expenditures; approval. If there is no response from (iv) Court ordered settlement and the Agency within the 30-day period, agreements, court ordered decrees, legal (7) Return on owner investment. the rent change is considered automatic. fees, or other costs that result from the (d) Determining if expenses are The following budgets are not eligible filing of civil rights complaints or legal reasonable. Generally, expenses charged for automatic approval: to project operations, whether for action alleging the borrower, or a (A) Budgets with rent increases above management agent services or other representative of the borrower, has $25 per unit; and committed a civil rights violation. It is expenses, must be reasonable, typical, (B) Budgets that are submitted late or inappropriate to charge for legal services necessary and show a clear benefit to that miss other deadlines set by the to represent any interest other than the the residents of the property. Services Agency. borrower’s interest (i.e., representing a and expenses charged to the property (4) If the Agency denies the budget general partner or limited partner to must show value added and be for approval, the Agency will notify the defend their individual owner interest is authorized purposes. If such value is not borrower in writing. not allowable); apparent, the service or expense should (5) If budget approval is denied, the (v) Fines, penalties, and legal fees be examined. borrower shall continue to operate the where the borrower or a borrower’s (1) Administrative expenses for housing project on the basis of the most representative has been found guilty of project operations exceeding 23 percent, recently approved budget. violating laws, including, but not or those typical for the area, of gross ■ 22. Amend § 3560.306 by: limited to, civil rights, and building potential basic rents and revenues (i.e., ■ a. Revising paragraphs (a), (b), (d), and codes. Charging for payment of referred to as gross potential rents in (e)(2); penalties including opposition legal fees industry publications) highlight a need ■ b. Redesignating paragraphs (g)(2) resulting from an award finding for closer review for unnecessary through (5) as paragraphs (g)(3) through improper actions on the part of the expenditures. Budget approval is (6) respectively, and adding new owner or management agent is generally required, and project resources may not paragraph (g)(2); and an inappropriate project expense. The always permit an otherwise allowable ■ c. Redesignating paragraph (j)(2) as party responsible generally pays such expense to be incurred if it is not paragraph (j)(3) and adding new expenses for violating the standards or fiscally prudent in the market. paragraph (j)(2). by their insurance carriers; (2) Excessive administrative expenses The revisions and additions read as (vi) Association dues unless related to can result in inadequate funds to meet follows: training for site managers or other essential project needs, including management agents. To the extent that expenditures for repair and § 3560.306 Reserve account. association dues can document training maintenance needed to keep the project (a) Purpose. To meet the major capital for site managers or management agents in sound physical condition. Actions expense needs of a housing project,

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borrowers must establish and maintain the needs identified in an Agency SUMMARY: The Department of Justice a reserve account, unless escrowed by approved Capital Needs Assessment (if (‘‘Department’’ or ‘‘DOJ’’) proposes to the Agency. obtained) are completed within a amend the Executive Office for (b) Financial management of the reasonable timeframe. Immigration Review (‘‘EOIR’’) reserve account. Unless otherwise * * * * * regulations governing asylum and approved by the Agency, borrower (j) * * * withholding of removal, including management of the reserve account is (2) The Agency will allow for an changes to what must be included with subject to the requirements of 7 CFR annual adjustment to increase reserve an application for such relief for it to be part 1902, subpart A regarding account funding levels by Operating considered complete and the supervised bank accounts. Cost Adjustment Factor (OCAF) as consequences of filing an incomplete * * * * * published by HUD annually. This will application, changes establishing a 15- (d) Transfer of surplus general require a modification to the Loan day filing deadline for aliens applying operating account funds. (1) The general agreement and the increase documented for asylum in asylum-and-withholding- operating account will be deemed to with budget submission as outlined in only proceedings, and changes related contain surplus funds when the balance § 3560.303. to the 180-day asylum adjudication at the end of the housing project’s fiscal * * * * * clock. year, after all payables and priorities, DATES: Written or electronic comments exceeds 20 percent of the operating and Subpart I—Servicing must be submitted on or before October maintenance expenses. If the borrower 23, 2020. Written comments postmarked ■ 23. Amend § 3560.402 by revising is escrowing taxes and insurance on or before that date will be considered paragraph (b) to read as follows: premiums, include the amount that timely. The electronic Federal Docket should be escrowed by year end and § 3560.402 Loan payment processing. Management System will accept subtract such tax and insurance * * * * * comments prior to midnight Eastern premiums from operating and (b) Required conversion to PASS. Time at the end of that day. maintenance expenses used to calculate Borrowers with Daily Interest Accrual ADDRESSES: If you wish to provide 20 percent of the operating and System (DIAS) accounts must convert to comments regarding this rulemaking, maintenance expenses. PASS with any loan servicing action. you must submit comments, identified (2) If a housing project’s general * * * * * by the agency name and referencing RIN operating account has surplus funds at 1125–AA93 or EOIR Docket No. 19– the end of the housing project’s fiscal Subpart L—Off-Farm Labor Housing 0010, by one of the two methods below. year as defined in paragraph (d)(1), the • Federal eRulemaking Portal: http:// Agency will require the borrower to use § 3560.576 [Amended] www.regulations.gov. Follow the the surplus funds to address capital ■ 24. Amend § 3560.576 by removing website instructions for submitting needs, make a deposit in the housing the words ‘‘State Director’s’’ and adding comments. project’s reserve account, reduce the in their place ‘‘MFH Leadership • Mail: Paper comments that debt service on the borrower’s loan, or Designee’s’’ in paragraph (e). duplicate an electronic submission are reduce rents in the following year. At unnecessary. If you wish to submit a the end of the borrower’s fiscal year, if Subpart N—Housing Preservation paper comment in lieu of an electronic the borrower is required to transfer § 3560.656 [Amended] submission, please direct the mail/ surplus funds from the general shipment to: Lauren Alder Reid, ■ 25. Amend § 3560.656 by removing operating account to the reserve Assistant Director, Office of Policy, the word ‘‘will’’ and replacing it with account, the transfer does not change Executive Office for Immigration ‘‘may’’ in paragraph (a) introductory the future required contributions to the Review, 5107 Leesburg Pike, Suite 2616, text. reserve account. Falls Church, VA 22041. To ensure (e) * * * Elizabeth Green, proper handling, please reference the (2) Reserve accounts must be Acting Administrator, Rural Housing Service. agency name and RIN 1125–AA93 or supervised accounts that require the [FR Doc. 2020–18192 Filed 9–22–20; 8:45 am] EOIR Docket No. 19–0010 on your Agency to approve all withdrawals; BILLING CODE 3410–XV–P correspondence. Mailed items must be except, this requirement is not postmarked or otherwise indicate a applicable when loan funds guaranteed shipping date on or before the by the Section 538 GRRH program are DEPARTMENT OF JUSTICE submission deadline. used for the construction and/or FOR FURTHER INFORMATION CONTACT: rehabilitation of a direct MFH loan Executive Office for Immigration Lauren Alder Reid, Assistant Director, project. Direct MFH loan borrowers, Review Office of Policy, Executive Office for who are exempted from the supervised Immigration Review, 5107 Leesburg account requirement, as described in 8 CFR Parts 1003, 1208, and 1240 Pike, Suite 2616, Falls Church, VA this section, must follow Section 538 22041, telephone (703) 305–0289 (not a GRRH program regulatory requirements [EOIR Docket No. 19–0010; A.G. Order No. 4843–2020] toll-free call). pertaining to reserve accounts. In all SUPPLEMENTARY INFORMATION: cases, Section 538 lenders must get RIN 1125–AA93 prior written approval from the Agency I. Public Participation before reserve account funds involving Procedures for Asylum and Interested persons are invited to a direct MFH loan project can be Withholding of Removal participate in this rulemaking by disbursed to the borrower. AGENCY: Executive Office for submitting written data, views, or * * * * * Immigration Review, Department of arguments on all aspects of this rule via (g) * * * Justice. one of the methods and by the deadline (2) Borrowers should include any stated above. All comments must be ACTION: Notice of proposed rulemaking. needed capital improvements based on submitted in English, or accompanied

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by an English translation. The II. Discussion abandoned when the alien fails to Department also invites comments that In 1980, Congress enacted the Refugee timely file them. See Matter of R–R–, 20 relate to the economic, environmental, Act of 1980, which, among other things, I&N Dec. 547, 549 (BIA 1992) (asylum or federalism effects that might result amended the Immigration and application deemed abandoned after from this rule. Comments that will Nationality Act (‘‘INA’’ or ‘‘Act’’) to alien failed to file application by provide the most assistance to the implement the obligations of the United deadline set by the immigration judge); Department in developing these States under the 1967 Protocol Relating Matter of Jean, 17 I&N Dec. 100, 101– 02 (BIA 1979) (asylum application procedures will reference a specific to the Status of Refugees (‘‘1967 deemed abandoned after alien failed to portion of the proposed rule; explain the Protocol’’), by establishing a formal meet 20-day filing deadline set by reason for any recommended change; statutory procedure for granting asylum and include data, information, or immigration judge). to certain refugees who are present in In this notice of proposed rulemaking authority that support such the United States, and by providing for recommended change. (‘‘proposed rule’’), the Department a permanent procedure for the proposes to revise 8 CFR 1208.4 to add Please note that all comments admission and resettlement of refugees. a 15-day deadline from the date of the received are considered part of the Public Law 96–212, 94 Stat. 102, 102. alien’s first hearing to file an application public record and made available for The term ‘‘refugee’’ is now generally for asylum and withholding of removal public inspection at defined as ‘‘any person who is outside for aliens in asylum-and-withholding- www.regulations.gov. Such information of any country of such person’s only proceedings.2 Aliens in such includes personally identifiable nationality . . . and who is unable or proceedings are generally already information (such as your name, unwilling to return to, and is unable or subject to removal orders, denials of address, etc.) voluntarily submitted by unwilling to avail himself or herself of applications for admission, or denials of the commenter. If you want to submit the protection of, that country because permission to land in the case of personally identifiable information of persecution or a well-founded fear of crewmembers, and are often also (such as your name, address, etc.) as persecution on account of race, religion, detained. 8 CFR 1208.2(c).3 Moreover, part of your comment, but do not want nationality, membership in a particular it to be posted online, you must include social group, or political opinion.’’ INA 2 For many years, these proceedings have been the phrase ‘‘PERSONALLY 101(a)(42), 8 U.S.C. 1101(a)(42). Those referred to as ‘‘asylum-only’’ proceedings. See, e.g., five grounds, which mirror those set out Matter of D–M–C–P–, 26 I&N Dec. 644, 645 (BIA IDENTIFIABLE INFORMATION’’ in the in the 1951 Convention Relating to the 2015) (‘‘The applicant expressed a fear of returning first paragraph of your comment and to Argentina, and on June 23, 2011, his case was Status of Refugees, as well as the 1967 identify what information you want referred to the Immigration Court for asylum-only Protocol, are the sole grounds for proceedings. . . .’’). EOIR now uses the term redacted. asylum in the United States today. ‘‘asylum-and-withholding-only proceedings.’’ See If you want to submit confidential Procedures for Asylum and Withholding of A. Form I–589 Filing Requirements Removal; Credible Fear and Reasonable Fear business information as part of your Interview, 85 FR 36264, 36265 n.2 (June 15, 2020). comment, but do not want it to be 1. Filing Deadline for Asylum 3 Most aliens who are applicants for admission posted online, you must include the Applications in Asylum-and- are subject to detention during the inspection phrase ‘‘CONFIDENTIAL BUSINESS Withholding-Only Proceedings process and any subsequent expedited removal proceedings. 8 CFR 235.3. Aliens who are ordered INFORMATION’’ in the first paragraph An applicant for relief or protection removed after entering the United States are subject of your comment. You must from removal, including asylum, must to detention by the Department of Homeland Security (‘‘DHS’’). INA 241(a)(2), 8 U.S.C. prominently identify the confidential comply with applicable requirements to business information to be redacted 1231(a)(2). The categories of aliens described in 8 submit information or documentation in CFR 1208.2(c) encompass both categories—i.e., within the comment. If a comment has support of the application as provided those denied admission to the United States and so much confidential business by statute or regulation. INA those who have entered the United States and information that it cannot be effectively subsequently become subject to removal through a 240(c)(4)(B), 8 U.S.C. 1229a(c)(4)(B). removal order issued by DHS outside of redacted, all or part of that comment With one exception for detained immigration proceedings conducted by the may not be posted on crewmembers of a vessel, see 8 CFR Department. For aliens in the former category, their www.regulations.gov. 1208.5(b)(1)(ii), the regulations asylum claims typically are presented at the time admission is denied. For aliens in the latter Personally identifiable information currently do not prescribe a specific category, their asylum claims typically arise after located as set forth above will be placed deadline for filing an application for DHS has detained them and begun the process of in the agency’s public docket file, but asylum and withholding of removal effectuating their removal. More specifically, alien with EOIR.1 crewmembers who are subject to denial of not posted online. Confidential business Rather, in immigration permission to land or removal pursuant to INA 252, information identified and located as set proceedings, the immigration judge has 8 U.S.C. 1282, are also subject to detention. INA forth above will not be placed in the the authority to set deadlines for the 252(b), 8 U.S.C. 1282(b); 8 CFR 252.1(a). Alien public docket file. The Department may filing of applications and related stowaways are subject to removal pursuant to INA 235(a)(2), 8 U.S.C. 1225(a)(2). Alien stowaways who withhold from public viewing documents. 8 CFR 1003.31(c). Where an go through the credible fear screening process are information provided in comments that immigration judge has set a deadline for detained. INA 235(b)(1)(B)(iii)(IV), 8 U.S.C. it determines may impact the privacy of filing an application for relief and that 1225(b)(1)(B)(iii)(IV). An applicant for admission application is not filed within the time under the Visa Waiver Program (‘‘VWP’’) who is an individual or is offensive. For refused admission may be removed, though such additional information, please read the set by the court, the opportunity to file removal does not constitute a removal under the Privacy Act notice that is available via such an application shall be deemed Act. 8 CFR 217.4(a)(1), (3). An alien admitted under the link in the footer of http:// waived. Id. The Board of Immigration the VWP who is found to be deportable is ordered Appeals has routinely held that removed. 8 CFR 217.4(b). Aliens who have received www.regulations.gov. To inspect the S nonimmigrant status under INA 101(a)(15)(S), 8 agency’s public docket file in person, applications for benefits are deemed U.S.C. 1101(a)(15)(S), may be subject to removal. 8 you must make an appointment with the CFR 236.4. Aliens subject to the Guam- agency. Please see the ‘‘For Further 1 There is a statutory one-year deadline for filing Commonwealth of the Northern Mariana Islands asylum applications, which allows for limited VWP are subject to similar procedures regarding Information Contact’’ paragraph above exceptions and exclusions. INA 208(a)(2)(B), (D), refusal of admission and removal as aliens subject for agency contact information. (E), 8 U.S.C. 1158(a)(2)(B), (D), (E). to the regular VWP. 8 CFR 212.1(q)(8).

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their only avenues for relief or 1208.4(c); rather, the deadline would currently have any time requirement for protection are applications for asylum, ensure only that the application is filed the alien to correct an incomplete statutory withholding of removal, and in a timely manner consistent with the application. If the alien fails to file a protection under the regulations issued streamlined and focused nature of complete application within the pursuant to legislation implementing asylum-and-withholding-only required time period, absent exceptional U.S. obligations under the Convention proceedings. circumstances, the application would be Against Torture and Other Cruel, deemed abandoned and would be 2. Re-Filing an Incomplete Application Inhuman, or Degrading Treatment or denied. With EOIR Punishment (‘‘CAT regulations’’), and Thirty days is a reasonable period in they would not be in asylum-and- A Form I–589, Application for which to remedy application defects, withholding-only proceedings if they Asylum and for Withholding of and the Department expects that had not already claimed a fear of Removal, is incomplete if it does not applicants would have an incentive to persecution or torture upon being include a response to each question, is re-file the application as soon as returned to their home countries. 8 CFR unsigned, or lacks required supporting possible in order to trigger the 1208.2(c)(3)(i). Claims for asylum and evidence described on the form and possibility of obtaining employment withholding of removal (both statutory, form instructions. 8 CFR 1208.3(c)(3). authorization. It is well established that INA 241(b)(3), 8 U.S.C. 1231(b)(3), and An incomplete application does not immigration judges have the authority under the CAT regulations) are the sole start the accrual of time for an asylum to set filing deadlines and manage their issues to be resolved in the proceeding applicant to file for employment dockets consistent with applicable law, and are squarely presented at the outset authorization. Id. As currently drafted, and this requirement is fully consistent of the proceeding; thus, there is no however, the regulations provide that if with that authority. See 8 CFR reason not to expect the alien to be the immigration court 5 fails to return an 1003.10(b), 1003.14(b), 1003.18, prepared to state his or her claim as I–589 application submitted by mail 1003.31(c). Further, if an application is quickly as possible. Moreover, delaying within 30 days, the application will be not filed within the time set by an filing of the claim risks delaying deemed complete. Id. The regulations immigration judge, the opportunity to protection or relief for meritorious do not provide a time frame in which file that application shall be deemed claims and increases the likelihood that an alien must re-file the application if waived. 8 CFR 1003.31(c). Additionally, important evidence, including personal the alien wishes it to be considered. Id. reasonable filing deadlines do not recollections, may degrade or be lost Upon an alien’s request and as a matter violate the immigration laws or any over time. Further, without such a of discretion, an immigration judge may international treaty obligations. See, deadline for the asylum application, allow an alien to amend or supplement e.g., Hui Zheng v. Holder, 562 F.3d 647, there is a risk that applicants may the alien’s application after it is filed. 8 655–56 (4th Cir. 2009); Chen v. simply delay proceedings, resulting in CFR 1208.4(c). Mukasey, 524 F.3d 1028, 1033 (9th Cir. inefficiency in what should otherwise The proposed rule would revise 8 2008); Foroglou v. Reno, 241 F.3d 111, be a streamlined proceeding. Finally, CFR 1208.3(c)(3) to ensure that cases of 113 (1st Cir. 2001). such a deadline is consistent with individuals seeking asylum are Without such a deadline, there is a existing regulations that specify a 10- processed efficiently by minimizing any risk that applicants will delay day deadline for detained crewmembers delay between the return of an proceedings based on an assertion that to file an asylum application, 8 CFR incomplete asylum application and the a corrected application will be 1208.5(b)(1)(ii), and with the regulatory re-filing of a complete one. First, the forthcoming, resulting in wasted directive in 8 CFR 1208.5(a) that asylum proposed rule would remove the current immigration judge time and increasing provision that an alien’s incomplete applications filed by detained aliens are the likelihood that, due to the ongoing asylum application submitted by mail to be given expedited consideration.4 addition of cases to the docket, the To allow for unusual situations in will be deemed complete if the eventual application may not be which an alien may need additional immigration court fails to return the adjudicated within 180 days as time to file the application, application within 30 days of receipt. contemplated by the Act. INA notwithstanding the alien’s recent Instead, the proposed rule would 208(d)(5)(A)(iii), 8 U.S.C. assertion of a fear of persecution, the provide that immigration courts will 1158(d)(5)(A)(iii). These changes will Department also proposes to amend 8 reject all incomplete applications and enhance efficiencies for the immigration return them to the applicant in a timely CFR 1208.4 to allow for the extension of courts by ensuring that cases proceed in fashion to the address of record for the the deadline for good cause similar to a timely and predictable manner rather alien or any representative of record.6 the extension to the 10-day deadline than allowing deficiencies in Further, the proposed rule would add a allowable for alien crewmembers to file applications to be corrected at any maximum of 30 days for the alien to an asylum application. See 8 CFR point, and are fully consistent with the correct any deficiencies in his or her 1208.5(b)(1)(ii). Attorney General’s authority to set Finally, the regulatory deadline application; the regulations do not conditions or limitations on the would not preclude an alien from consideration of asylum applications. 5 As currently written, 8 CFR 1208.3(c)(3) uses the INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). amending or supplementing the term ‘‘Service’’ instead of ‘‘immigration court.’’ Use application later in the course of of the term ‘‘Service’’ reflects that the Department Moreover, administrative agencies have proceedings, subject to an immigration did not update certain terms and positions when the prerogative to determine proper judge’s discretion consistent with 8 CFR EOIR’s regulations were copied from chapter I to rules of procedure that best allow them new chapter V of title 8 of the Code of Federal to carry out their missions. Vt. Yankee Regulations following the creation of DHS in 2003. 4 To ensure this deadline is met, the proposed Other references in chapter V to the Immigration Nuclear Power Corp. v. Nat. Res. Def. rule also extends the requirements of 8 CFR and Naturalization Service or DHS offices apply Council, Inc., 435 U.S. 519, 543 (1978). 1240.11(c)(1)(i) through (iii), regarding advisals equally to immigration judges or EOIR. given by an immigration judge and the provision of 6 Aliens are required to maintain an updated 3. Submission of Any Applicable an asylum application to aliens in certain address with the immigration court. Form EOIR–33 Asylum Fee circumstances in removal proceedings, to aliens in must be filed with the immigration court within proceedings under 8 CFR 1208.2(c)(1) and five days of a change in address. 8 CFR The Department also proposes to 1208.4(b)(3)(iii). 1003.15(d)(2). amend 8 CFR 1208.3(c)(3) to specify that

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any required filing fee must be credible sources, which, under the immigration judge’s introduction of submitted in connection with the regulation, may include international documents into the record did not asylum application at the time of filing. organizations, private voluntary deprive the respondent of due process See 8 CFR 1003.24, 1003.31(b), agencies, news organizations, or because ‘‘IJs maintain an affirmative 1103.7(a)(3) (describing process for academic institutions. duty to develop the record’’); see also payment of fees relating to EOIR The Department proposes to clarify Richardson v. Perales, 402 U.S. 389, 410 proceedings). A Department regulation, the external materials upon which an (1971) (finding that an administrative 8 CFR 1103.7(b)(4)(ii), provides that immigration judge may rely, including law judge ‘‘acts as an examiner charged when EOIR uses a Department of by broadening the scope of Department with developing the facts’’); Charles H. Homeland Security (‘‘DHS’’) form in components and other government Koch, Jr., Administrative Law and immigration proceedings, the applicable agencies that may possess relevant Practice § 5.25 (2d ed. 1997) (noting that fee is the one provided under DHS information for an immigration judge in ‘‘[t]he presiding official is pivotal to the regulations at 8 CFR 103.7.7 EOIR uses adjudicating a claim. The Department fact-finding function of an evidentiary the U.S. Citizenship and Immigration also proposes to revise the standard for hearing and hence, unlike the trial Services (‘‘USCIS’’) Form I–589, an immigration judge’s consideration of judge, an administrative judge has a Application for Asylum and for information from non-governmental well-established affirmative duty to Withholding of Removal, for which DHS sources to ensure that only probative develop the record’’). Further, this sets the application fee. Under the and credible evidence is considered. change will better enable immigration Department’s regulation, the DHS fee Although materials provided by non- judges to ensure full consideration of all would also apply to any filing of USCIS governmental organizations are relevant evidence and full development Form I–589 in EOIR proceedings. See 8 sometimes helpful, the current of the record for cases involving a pro CFR 1103.7(b)(4)(ii); see also 8 CFR regulatory text could be read to imply se respondent. See Matter of S–M–J–, 21 103.7. Thus, the proposed rule would that they always are, which is not I&N Dec. 722, 729 (BIA 1997) (en banc) provide that a fee must be submitted if necessarily the case. See, e.g., M.A. v. (noting that ‘‘various guidelines for DHS requires one.8 U.S. INS, 899 F.2d 304, 313 (4th Cir. asylum adjudicators recommend the 1990) (en banc) (‘‘A standard of asylum introduction of evidence by the B. Form I–589 Procedural Requirements eligibility based solely on adjudicator’’). 1. Supplementing the Record pronouncements of private 2. The Asylum Adjudication Clock Under 8 CFR 1208.12, an immigration organizations or the news media is The proposed rule would remove and judge 9 may rely on material provided problematic almost to the point of being reserve 8 CFR 1208.7 as EOIR does not by certain entities when deciding an non-justiciable.’’). The proposed adjudicate applications for employment asylum application, or deciding whether revision provides appropriate guidance authorization.10 Further, there is an alien has a credible fear of regarding the use of such materials to confusing language in 8 CFR 1208.7 persecution or torture pursuant to 8 CFR ensure that only credible and probative regarding the relationship between the 1208.30 or a reasonable fear of materials are considered. The Department also proposes to persecution or torture pursuant to 8 CFR time period for applications for expand 8 CFR 1208.12 to allow an 1208.31. Currently, those entities are the employment authorization, which EOIR immigration judge to submit evidence Department of State, the DOJ Office of does not adjudicate, and the time period into the record and consider that International Affairs, DHS, and other for adjudicating actual asylum evidence, so long as the judge has applications, which are relevant for provided a copy to both parties, which 7 On November 14, 2019, DHS proposed to adjust EOIR’s purposes. its fee schedule for certain applications it will give the parties an opportunity to The INA contains two separate adjudicates, including applications also adjudicated respond to or address the information provisions relating to a 180-day time by EOIR—e.g., Forms I–191, I–485, I–601, I–589, appropriately. This proposal is frame in the context of an asylum and I–881. U.S. Citizenship and Immigration consistent with the immigration judge’s Services Fee Schedule and Changes to Certain application. The first, INA Other Immigration Benefit Request Requirements, powers and duties under 8 CFR 208(d)(5)(A)(iii), 8 U.S.C. 84 FR 62280, 62326–27 (Nov. 14, 2019). As part of 1003.10(b) to manage immigration court 1158(d)(5)(A)(iii), directs the Attorney that proposed rulemaking, DHS proposed to move hearings: ‘‘In deciding the individual General to set procedures for processing its fee schedule from 8 CFR 103.7 to 8 CFR 106.2. cases before them, . . . immigration See 84 FR at 62359–63. On August 3, 2020, DHS asylum applications providing that, in published the final rule regarding its new fee judges shall exercise their independent the absence of exceptional schedule to be effective October 2, 2020. U.S. judgment and discretion and may take Citizenship and Immigration Services Fee Schedule any action consistent with their 10 On June 22, 2020, DHS issued a final rule, and Changes to Certain Other Immigration Benefit authorities under the Act and effective August 21, 2020, in which it removed from Request Requirements, 85 FR 46788 (Aug. 3, 2020). regulations that is appropriate and its regulations in part 208 of title 8 (1) the 30-day The Department will conform its reference in 8 CFR processing provision for initial employment 1103.7(b)(4)(ii) to DHS’s new fee regulation in a necessary for the disposition of such authorization applications for those with pending separate rulemaking. cases.’’ See also 8 CFR 1003.36 (‘‘The asylum applications, and (2) the 90-day time frame 8 DHS’s recent final rule will require a fee of $50 Immigration Court shall create and for receipt of an application to renew employment for Form I–589 in most circumstances. 85 FR at control the Record of Proceeding.’’). It is authorization. Removal of 30-Day Processing 46791. All fees for DHS applications adjudicated by Provision for Asylum Applicant-Related Form I– the Department are payable to DHS, and DHS also consistent with an immigration 765 Employment Authorization Applications, 85 FR deposits the funds in the Immigration Examinations judge’s duty to develop the record. See, 37502, 37503. The rule also indicated that DOJ may Fee Account. See INA 286, 8 U.S.C. 1356. e.g., Yang v. McElroy, 277 F.3d 158, 162 issue conforming changes to 8 CFR 1208.7 at a later 9 The current text of 8 CFR 1208.12 refers to an (2d Cir. 2002) (per curiam) (‘‘[T]he IJ date. Id. at 37510. By removing 8 CFR 1208.7, asylum officer instead of an immigration judge. which mirrors 8 CFR 208.7, the proposed rule This reflects that the Department did not update whose decision the Board reviews, would avoid any potential conflict with DHS certain terms and positions when EOIR’s unlike an Article III judge, is not merely regulatory provisions. On June 26, 2020, DHS regulations were copied from chapter I to new the fact finder and adjudicator but also published a final rule, effective August 25, 2020, chapter V of title 8 of the Code of Federal has an obligation to establish the making changes to 8 CFR 208.7. See Asylum Regulations following the creation of DHS in 2003. Application, Interview, and Employment The proposed regulation corrects that oversight and record.’’); Constanza-Martinez v. Authorization for Applicants, 85 FR 38532. The replaces ‘‘asylum officer’’ with ‘‘immigration judge’’ Holder, 739 F.3d 1100, 1102–03 (8th removal of 8 CFR 1208.7 avoids any potential in 8 CFR 1208.12. Cir. 2014) (concluding that the conflict with changes to 8 CFR 208.7.

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circumstances, final administrative Although both of these provisions remedies that confusion by removing adjudication of the asylum application, reflect an expectation that asylum regulatory language related to the not including administrative appeal, applications should be adjudicated employment authorization process that shall be completed within 180 days after within 180 days of filing, the provisions EOIR does not administer and by the date an application is filed. themselves are not identical. For amending part 1003 of EOIR’s Implementing regulations clarify that example, the adjudication deadline for regulations to implement INA the ‘‘time period[] within which . . . the asylum application itself is subject 208(d)(5)(A)(iii), 8 U.S.C. the asylum application must be to tolling for ‘‘exceptional 1158(d)(5)(A)(iii), and to direct adjudicated pursuant to section circumstances.’’ INA 208(d)(5)(A)(iii), 8 immigration judges to adjudicate 208(d)(5)(A)(iii) of the Act shall begin U.S.C. 1158(d)(5)(A)(iii). In contrast, the asylum applications within 180 days of when the alien has filed a complete period during which an alien is barred filing absent exceptional circumstances. asylum application in accordance with’’ from filing an application for Although the term ‘‘exceptional applicable procedures. 8 CFR employment authorization based on an circumstances’’ is not defined for 1208.7(a)(2). asylum application may be tolled solely purposes of INA 208(d)(5)(A)(iii), 8 The second, INA 208(d)(2), 8 U.S.C. for an alien-caused continuance, 8 CFR U.S.C. 1158(d)(5)(A)(iii),13 there is no 1158(d)(2), addresses when an asylum 1208.7(a)(1), and continuances are indication that Congress intended for applicant may be granted employment subject to a ‘‘good cause’’ standard, see that standard to be satisfied by any authorization based on an asylum 8 CFR 1003.29 and 1240.6.12 request for delay by the applicant or to application, providing that an applicant Aliens in removal proceedings be linked to the employment for asylum is not entitled to sometimes request continuances authorization process. To the contrary, employment authorization, but such pursuant to 8 CFR 1003.29 that, if EOIR’s adjudication of asylum authorization may be provided under granted, would delay adjudication of applications is a wholly separate regulation by the Attorney General. An their asylum applications past the 180- process from DHS’s adjudication of applicant who is not otherwise eligible day deadline. Section 1003.29 imposes employment authorization applications. for employment authorization shall not a ‘‘good cause’’ standard for granting Indeed, there is no apparent basis to be granted such authorization prior to continuances. But if granting a include the reference to INA 180 days after the date of filing of the continuance would result in missing the 208(d)(5)(A)(iii), 8 U.S.C. application for asylum. 180-day deadline, the immigration judge 1158(d)(5)(A)(iii), in 8 CFR 1208.7 EOIR’s current regulations provide may only grant the continuance if the because that regulation otherwise that (1) an alien cannot apply for respondent satisfies both the ‘‘good addresses employment authorization, employment authorization until at least cause’’ standard of 8 CFR 1003.29 and which is unrelated to INA 150 days after filing an application for also shows the ‘‘exceptional 208(d)(5)(A)(iii), 8 U.S.C. asylum, and (2) ‘‘no employment circumstances’’ required by INA 1158(d)(5)(A)(iii).14 authorization shall be issued to an 208(d)(5)(A)(iii), 8 U.S.C. To better effectuate the ‘‘exceptional asylum applicant prior to the expiration 1158(d)(5)(A)(iii). Under 8 CFR circumstances’’ exception to the 180- of the 180-day period following the 1208.7(a)(2), ‘‘[a]ny delay requested or day deadline in INA 208(d)(5)(A)(iii), 8 filing of the asylum application.’’ 8 CFR caused by the applicant shall not be U.S.C. 1158(d)(5)(A)(iii), the Department 1208.7(a)(1). Furthermore, the time counted as part of’’ the 180-day proposes to add a definition of periods within which the alien may not adjudication deadline described in INA exceptional circumstances in the 208(d)(5)(A)(iii), 8 U.S.C. apply for employment authorization context of asylum adjudications that is 1158(d)(5)(A)(iii). This means that an ‘‘shall begin when the alien has filed a similar to the one currently in INA alien who causes delays in the complete asylum application in 240(e)(1), 8 U.S.C. 1229a(e)(1). The adjudication process is not entitled to accordance with’’ applicable statutory definition in INA 240(e)(1), 8 such a prompt adjudication of his regulations. 8 CFR 1208.7(a)(2).11 U.S.C. 1229a(e)(1), characterizes asylum claim. But, absent delays that Although neither provision is circumstances in which an order of qualify as exceptional circumstances, 8 privately enforceable, INA 208(d)(7), 8 removal issued in absentia may be CFR 1208.7(a)(2) does not relieve U.S.C. 1158(d)(7), both statutory rescinded for an alien who had notice immigration judges of their obligation to provisions express Congress’s strong of the hearing at which the alien failed adjudicate asylum claims within 180 expectation that asylum applications to appear, provided the alien filed a days. would be adjudicated within 180 days motion to reopen and rescind the order Neither existing regulations nor within 180 days. INA 240(b)(5)(C)(i), 8 of the date of filing. Section EOIR’s operational guidance, however, 208(d)(5)(A)(iii) of the Act, 8 U.S.C. U.S.C. 1229a(b)(5)(C)(i). As a definition has always clearly and carefully of circumstances in which an 1158(d)(5)(A)(iii), does so expressly, by distinguished between INA indicating that asylum applications adjudication should have been delayed, 208(d)(5)(A)(iii), 8 U.S.C. it also represents a helpful explanation should be adjudicated within 180 days 1158(d)(5)(A)(iii), and INA 208(d)(2), 8 absent ‘‘exceptional circumstances.’’ of the exceptional nature of U.S.C. 1158(d)(2). See Policy circumstances that would warrant an And INA 208(d)(2), 8 U.S.C. 1158(d)(2), Memorandum 19–05, Guidance does so implicitly, by providing that exception to the 180-day deadline. Regarding the Adjudication of Asylum As of August 14, 2020, EOIR has over employment authorization shall not be Applications Consistent with INA 560,000 applications for asylum and granted prior to 180 days after an alien section 208(d)(5)(A)(iii) (Nov. 19, 2018). withholding of removal pending, and its files an asylum application, i.e., after the Consequently, the proposed rule claim is supposed to have been 13 The term ‘‘exceptional circumstances’’ is adjudicated. 12 The ‘‘good cause’’ standard governs defined in INA 240(e)(1), 8 U.S.C. 1229a(e)(1), but continuances under 8 CFR 1003.29 and only for purposes of INA 240 and 240A, 8 U.S.C. 11 DHS regulations with similar provisions have adjournments under 8 CFR 1240.6, and both 1229a and 1229b. been amended, see note 10, supra, and this provisions were derived from former 8 CFR 242.13 14 The reference to INA 208(d)(5)(A)(iii) was proposed rule would eliminate these provisions (1958). Matter of L–A–B–R–, 27 I&N Dec. 405, 407 inserted into 8 CFR 208.7 (which was later copied altogether from EOIR’s regulations as discussed n.1 (A.G. 2018). For simplicity, the proposed rule in 8 CFR 1208.7) without explanation. See 62 FR below. generally refers only to 8 CFR 1003.29. 444, 464 (Jan. 3, 1997).

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ability to ensure they are adjudicated 180-day adjudication deadline for an determined that it will not have a consistent with the statutory asylum application. The inclusion of the significant economic impact on a requirements of INA 208(d)(5)(A)(iii), 8 reference to INA 208(d)(5)(A)(iii), 8 substantial number of small entities. 5 U.S.C. 1158(d)(5)(A)(iii), may be U.S.C. 1158(d)(5)(A)(iii), in 8 CFR U.S.C. 605(b). The proposed rule would undermined by the current text of 8 CFR 1208.7, which could be understood to not regulate ‘‘small entities’’ as that term 1208.7(a)(2), which could be interpreted effectively allow an alien or DHS to is defined in 5 U.S.C. 601(6). Only to allow either party to unilaterally delay the adjudication deadline individuals, rather than entities, are delay the adjudication of an asylum pursuant only to the ‘‘good cause’’ eligible to apply for asylum, and only application without necessarily showing standard in 8 CFR 1003.29 and 1240.6, individuals are placed in immigration exceptional circumstances, in is in tension with the statute. Thus, not proceedings. contravention of the statute. Nothing in only does 8 CFR 1208.7 warrant B. Unfunded Mandates Reform Act of the text of INA 208(d)(5)(A)(iii), 8 U.S.C. deletion, but modifications to 8 CFR 1995 1158(d)(5)(A)(iii), which is directed 1003.29 and 1240.6 are also necessary. toward adjudicators rather than Moreover, removing the reference to This proposed rule will not result in applicants, indicates that an asylum INA 208(d)(5)(A)(iii), 8 U.S.C. the expenditure by State, local, and applicant may unilaterally prompt an 1158(d)(5)(A)(iii), as part of the removal Tribal governments, in the aggregate, or extension of the adjudication deadline of all of 1208.7 will allow EOIR to by the private sector, of $100 million or in the absence of exceptional ensure that the statutory mandate more in any one year, and it will not circumstances. regarding adjudicating asylum significantly or uniquely affect small An applicant may have his or her applications within 180 days is fulfilled governments. Therefore, no actions were removal proceeding continued upon a absent exceptional circumstances. deemed necessary under the provisions showing of good cause. 8 CFR 1003.29, In order to further ensure that asylum of the Unfunded Mandates Reform Act 1240.6; Matter of L–A–B–R–, 27 I&N Dec. adjudications are completed within the of 1995. 405 (A.G. 2018). Although neither ‘‘good 180-day period prescribed by INA cause’’ nor ‘‘exceptional circumstances’’ 208(d)(5)(A)(iii), 8 U.S.C. C. Congressional Review Act is defined by statute or regulation in this 1158(d)(5)(A)(iii), the proposed rule This proposed rule would not be a context, there is no indication that the would directly promulgate a clear major rule as defined by section 804 of two terms were intended to mean the regulation implementing INA the Congressional Review Act. 5 U.S.C. same thing. To the contrary, plain 208(d)(5)(A)(iii), 8 U.S.C. 804(2). This rule will not result in an meaning would dictate that the two 1158(d)(5)(A)(iii), in 8 CFR 1003.10(b) annual effect on the economy of $100 terms reflect different standards. Indeed, as part of the listing of immigration million or more; a major increase in in other contexts, ‘‘good cause’’ is judge powers and duties. It would also costs or prices; or significant adverse generally treated as a lower standard amend 8 CFR 1003.31(c), which outlines effects on competition, employment, than ‘‘exceptional circumstances.’’ the immigration judge’s authority to set investment, productivity, innovation, or Compare United States v. Lea, 360 F.3d and extend time limits for filings of on the ability of United States-based 401, 403 (2d Cir. 2004) (‘‘Exceptional applications and related documents, to enterprises to compete with foreign- circumstances [under a criminal ensure that the setting of deadlines for based enterprises in domestic and detention statute] exist where there is a filing supporting documents does not export markets. unique combination of circumstances inadvertently extend the 180-day giving rise to situations that are out of deadline absent exceptional D. Executive Order 12866 and Executive the ordinary.’’ (internal quotation marks circumstances. In short, the changes Order 13563 omitted)), with Hall v. Sec’ of Health, would incorporate the 180-day timeline The Office of Information and Educ. & Welfare, 602 F.2d 1372, 1377 by limiting an immigration judge’s (9th Cir. 1979) (‘‘Good cause is . . . not Regulatory Affairs of the Office of ability to set filing deadlines that would Management and Budget (‘‘OMB’’) has a difficult standard to meet.’’). cause the adjudication of an asylum In short, ‘‘exceptional circumstances’’ determined that this proposed rule is a application to exceed 180 days absent a are circumstances that are ‘‘clearly out ‘‘significant regulatory action’’ under showing of exceptional circumstances. of the ordinary, uncommon, or rare.’’ section 3(f) of Executive Order 12866. Finally, the proposed rule would also United States v. Larue, 478 F.3d 924, Accordingly, the regulation has been remove and reserve § 1208.9 because 926 (8th Cir. 2007) (per curiam) submitted to OMB for review. The that provision refers to operations (applying ‘‘exceptional reasons’’ Department certifies that this regulation performed by asylum officers in DHS, standard); see also INA 240(e)(1), 8 has been drafted in accordance with the not immigration judges in EOIR. That U.S.C. 1229a(e)(1) (exceptional principles of Executive Order 12866, provision was duplicated from § 208.9 circumstances include ‘‘battery or section 1(b), and Executive Order 13563. as part of the reorganization of title 8 extreme cruelty to the alien or any child Executive Orders 12866 and 13563 following the transfer of functions from or parent of the alien, serious illness of direct agencies to assess all costs and the alien, or serious illness or death of the former Immigration and benefits of available regulatory the spouse, child, or parent of the alien, Naturalization Service to DHS due to alternatives and, if regulation is but not including less compelling the Homeland Security Act of 2002, necessary, to select regulatory circumstances’’). The term ‘‘good cause’’ Public Law 107–296. Aliens and approaches that maximize net benefits has no settled meaning and generally Nationality; Homeland Security; (including potential economic, requires a balancing of relevant factors Reorganization of Regulations, 68 FR environmental, public health, and safety to determine whether it exists. Matter of 9824, 9834 (Feb. 28, 2003). effects; distributive impacts; and L–A–B–R–, 27 I&N Dec. at 412–13. Thus, III. Regulatory Requirements equity). Executive Order 13563 although an exceptional circumstance emphasizes the importance of using the will support a finding of good cause, A. Regulatory Flexibility Act best available methods to quantify costs good cause itself is not necessarily an The Department has reviewed this and benefits, reducing costs, exceptional circumstance that would proposed regulation in accordance with harmonizing rules, and promoting warrant an exception to the statutory the Regulatory Flexibility Act and has flexibility.

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The Department believes that this filing deadlines is already established of cases to be adjudicated by EOIR. proposed rule would effectuate by regulation, and filing deadlines for Further, the changes provide guidance congressional intent to resolve cases in both applications and supporting for administrative decision-making but an expeditious manner and would documents are already a well- do not require immigration judges to provide significant net benefits relating established aspect of immigration court make more decisions or to prolong to EOIR proceedings by allowing the proceedings guided by regulations and immigration proceedings. agency to resolve cases more quickly. the Immigration Court Practice Manual. See Executive Order 12866, sec. (1)(b)(6) The proposed rule also does not require E. Executive Order 13132 (Federalism) (stating that ‘‘[e]ach agency shall assess an immigration judge to schedule a This rule will not have substantial both the costs and the benefits of the merits hearing at any particular time direct effects on the States, on the intended regulation and, recognizing after the application is filed, as long as relationship between the national that some costs and benefits are difficult the application is adjudicated within government and the States, or on the to quantify, propose or adopt a 180 days absent exceptional distribution of power and regulation only upon a reasoned circumstances, which is an existing and responsibilities among the various determination that the benefits of the longstanding statutory requirement. levels of government. Therefore, in intended regulation justify its costs’’). Moreover, this rule does not require that accordance with section 6 of Executive As of August 14, 2020, EOIR has over an alien wait until the immigration Order 13132, it is determined that this 560,000 pending cases with an judge sets a filing deadline before filing rule does not have sufficient federalism application for asylum and withholding an application, and an alien remains implications to warrant the preparation of removal, and the median processing free to file his or her asylum application of a federalism summary impact time for a non-detained case with an with the immigration court before the statement. asylum application is 807 days. This first hearing. Asylum applications are proposed rule would assist EOIR in frequently filed prior to or at an initial F. Executive Order 12988 (Civil Justice adjudicating new asylum cases more immigration court hearing already, and Reform) efficiently in order to ensure that this existing regulations allow for This rule meets the applicable volume does not increase to an supplementing an initial application as standards set forth in sections 3(a) and insurmountable degree. No costs to the appropriate, subject to an immigration 3(b)(2) of Executive Order 12988. Department or to respondents are judge’s discretion. Most aliens filing expected. Respondents are already asylum applications in pending G. Paperwork Reduction Act required to submit complete asylum immigration proceedings—87 percent— Under the Paperwork Reduction Act applications in order to have them have representation,15 and the proposed of 1995, Public Law 104–13, 44 U.S.C. adjudicated, and immigration judges rule would not be expected to increase chapter 35, and its implementing already have authority to set deadlines. any burdens on practitioners, who are regulations, 5 CFR part 1320, all The Department notes that this already subject to professional agencies are required to submit to OMB, proposed rule would not impose any responsibility rules regarding workload for review and approval, any reporting new fees. Consistent with the treatment management, 8 CFR 1003.102(q)(1), and requirements inherent in a rule. This of other applications referred by USCIS who are already accustomed to proposed rule may require edits to the that are renewed in immigration preparing and filing documents related USCIS Form I–589, Application for proceedings, an alien filing a USCIS to asylum claims according to deadlines Asylum and for Withholding of Form I–589 with USCIS who is then established by an immigration judge. Removal, because the filing of an referred to DOJ for immigration The Department acknowledges that asylum application may now require proceedings would pay the application establishing a fixed deadline to file an submission of a fee receipt. If necessary, fee only once. The Department’s fees for asylum application in some types of a separate notice will be published in applications published by DHS are immigration proceedings may alter the the Federal Register requesting established in accordance with 8 CFR manner in which attorneys organize comments on the information collection 1103.7(b)(4)(ii), which, in turn, cross- their caseloads, though it also impacts of this rule and the revised references the DHS fee schedule. Given recognizes that attorneys have been USCIS Form I–589. the inextricable nature of the two aware of the 180-day adjudication List of Subjects agencies’ asylum processes and the deadline for asylum applications for benefit of not treating applicants for over two decades and may be familiar 8 CFR Part 1003 substantially similar benefits differently with the similar existing deadline for if they file with DOJ or with DHS, the Administrative practice and alien crewmember asylum applications procedure, Aliens, Immigration, Legal Department’s regulations have in 8 CFR 1208.5(b)(1)(ii). The contained this cross-reference for services, Organization and functions Department seeks comment on the (Government agencies). several years, and this proposed rule proposed rule’s potential indirect costs would not alter it. The Department is and benefits to practitioners, if any, 8 CFR Part 1208 also not authorized, per regulation, to beyond those already inherent in waive the application fee for an Administrative practice and immigration proceedings and existing procedure, Aliens, Immigration, application published by DHS if DHS law. identifies that fee as non-waivable. 8 Reporting and recordkeeping No costs to the Department are requirements. CFR 1103.7(c). The proposed rule would associated with the proposed regulatory also not alter that regulatory structure. changes. The changes do not create an 8 CFR Part 1240 The Department believes that this incentive that would cause DHS to file proposed rule would impose only Administrative practice and more cases and, thus, are not expected procedure, Aliens. minimal direct costs on the public, to to result in an increase in the number include the costs associated with Accordingly, for the reasons set forth attorneys and regulated entities 15 EOIR, Current Representation Rates, available in the preamble, 8 CFR parts 1003, 1208, familiarizing themselves with this rule. at https://www.justice.gov/eoir/page/file/1062991/ and 1240 are proposed to be amended An immigration judge’s ability to set download. as follows:

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PART 1003—EXECUTIVE OFFICE FOR filing of documents after an asylum ■ 7. In § 1208.4, add paragraph (d) to IMMIGRATION REVIEW application has been filed that would read as follows: cause the adjudication of an asylum ■ 1. The authority citation for part 1003 application to exceed 180 days in the § 1208.4 Filing the application. continues to read as follows: absence of exceptional circumstances, * * * * * Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 consistent with section 208(d)(5)(A)(iii) (d) Filing deadline. For any alien in U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, of the Act and § 1003.10(b). If an asylum proceedings pursuant to 1226, 1229, 1229a, 1229b, 1229c, 1231, application or document is not filed § 1208.2(c)(1) and paragraph (b)(3)(iii) of 1254a, 1255, 1324d, 1330, 1361, 1362; 28 within the time set by the immigration this section, the immigration judge shall U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. judge, the opportunity to file that comply with the requirements of 2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002; section 203 of Pub. L. 105–100, 111 Stat. application or document shall be § 1240.11(c)(1)(i) through (iii) and shall 2196–200; sections 1506 and 1510 of Pub. L. deemed waived. set a deadline of fifteen days from the 106–386, 114 Stat. 1527–29, 1531–32; section * * * * * date of the alien’s first hearing before an 1505 of Pub. L. 106–554, 114 Stat. 2763A– immigration judge by which the alien 326 to –328. PART 1208—PROCEDURES FOR must file an asylum application, which ■ 2. In § 1003.10, amend paragraph (b) ASYLUM AND WITHHOLDING OF includes an application for withholding by adding three sentences at the end of REMOVAL of removal and protection under the Convention Against Torture. The paragraph to read as follows: ■ 5. The authority citation for part 1208 immigration judge may extend the § 1003.10 Immigration judges. continues to read as follows: deadline for good cause. If the alien * * * * * Authority: 8 U.S.C. 1101, 1103, 1158, does not file an asylum application by (b) * * * In the absence of 1226, 1252, 1282; Title VII of Public Law the deadline set by the immigration exceptional circumstances, an 110–229; Pub. L. 115–218. judge, the immigration judge shall deem immigration judge shall complete ■ 6. In § 1208.3, revise paragraph (c)(3) the opportunity to file such an administrative adjudication of an to read as follows: application waived, and the case shall asylum application within 180 days be returned to the Department of after the date an application is filed. For § 1208.3 Form of application. Homeland Security for execution of an purposes of this paragraph (b) and of * * * * * order of removal. §§ 1003.29 and 1240.6 of this chapter, (c) * * * the term exceptional circumstances (3) An asylum application must be § 1208.7 [Removed and Reserved] refers to exceptional circumstances properly filed in accordance with the ■ 8. Remove and reserve § 1208.7. (such as battery or extreme cruelty to form instructions and with §§ 1003.24, the alien or any child or parent of the 1003.31(b), and 1103.7(a)(3) of this § 1208.9 [Removed and Reserved] alien, serious illness of the alien, or chapter, including payment of a fee, if ■ 9. Remove and reserve § 1208.9. serious illness or death of the spouse, any, as explained in the instructions to ■ 10. In § 1208.12, revise paragraph (a) child, or parent of the alien, but not the application. For purposes of filing to read as follows: including less compelling with an immigration court, an asylum circumstances) beyond the control of application is incomplete if it does not § 1208.12 Reliance on information the parties or the immigration court. A include a response to each of the compiled by other sources. finding of good cause does not required questions contained in the (a) In deciding an asylum application, necessarily mean that an exceptional form, is unsigned, is unaccompanied by which includes an application for circumstance has also been established. the required materials specified in withholding of removal and protection * * * * * paragraph (a) of this section, is not under the Convention Against Torture, ■ 3. Revise § 1003.29 to read as follows: completed and submitted in accordance or in deciding whether the alien has a with the form instructions, or is § 1003.29 Continuances. credible fear of persecution or torture unaccompanied by any required fee pursuant to § 1208.30, or a reasonable The immigration judge may grant a receipt. The filing of an incomplete fear of persecution or torture pursuant motion for continuance for good cause application shall not commence the to § 1208.31, an immigration judge may shown, provided that nothing in this period after which the applicant may rely on material provided by the section shall authorize a continuance file an application for employment Department of State, other Department that causes the adjudication of an authorization. An application that is of Justice offices, the Department of asylum application to exceed 180 days incomplete shall be rejected by the Homeland Security, or other U.S. in the absence of exceptional immigration court. If an applicant government agencies, and may rely on circumstances, consistent with section wishes to have his or her application for foreign government and non- 208(d)(5)(A)(iii) of the Act and asylum considered, he or she shall governmental sources if those sources § 1003.10(b). correct the deficiencies in the ■ are determined by the judge to be 4. In § 1003.31, revise paragraph (c) to incomplete application and re-file it read as follows: credible and probative. On his or her within 30 days of rejection. Failure to own authority, an immigration judge § 1003.31 Filing documents and correct the deficiencies in an may submit relevant evidence into the applications. incomplete application or failure to record, if it is credible and probative, * * * * * timely re-file the application with the and may consider it in deciding an (c) Subject to § 1208.4(d) of this deficiencies corrected, absent asylum application, which includes an chapter, the immigration judge may set exceptional circumstances as defined in application for withholding of removal and extend time limits for the filing of § 1003.10(b), shall result in a finding and protection under the Convention applications and related documents and that the alien has abandoned that Against Torture, provided that a copy of responses thereto, if any, provided that application and waived the opportunity the evidence has been provided to both nothing in this section shall authorize to file such an application. parties and both parties have had an setting or extending time limits for the * * * * * opportunity to comment on or object to

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the evidence prior to the issuance of the extending upward from 700 feet above of airspace necessary to ensure the immigration judge’s decision. the surface. Also, this action proposes to safety of aircraft and the efficient use of * * * * * modify the Class E airspace extending airspace. This regulation is within the upward from 1,200 feet above the scope of that authority, as it would PART 1240—PROCEEDINGS TO surface. This action also proposes to modify the Class D and Class E airspace DETERMINE REMOVABILITY OF remove the Helena VORTAC from the at Helena Regional Airport, Helena, MT, ALIENS IN THE UNITED STATES airspace legal descriptions. Lastly, this to support IFR operations at the airport. action proposes administrative ■ Comments Invited 11. The authority citation for part corrections to the airspaces’ legal 1240 continues to read as follows: descriptions. This action would ensure Interested parties are invited to Authority: 8 U.S.C. 1103, 1158, 1182, the safety and management of participate in this proposed rulemaking 1186a, 1186b, 1225, 1226, 1227, 1228, 1229a, instrument flight rules (IFR) operations by submitting such written data, views, 1229b, 1229c, 1252 note, 1361, 1362; secs. at the airport. or arguments, as they may desire. 202 and 203, Pub. L. 105–100 (111 Stat. 2160, Comments that provide the factual basis 2193); sec, 902, Pub. L. 105–277 (112 Stat. DATES: Comments must be received on 2681). or before November 9, 2020. supporting the views and suggestions ADDRESSES: presented are particularly helpful in ■ Send comments on this 12. Revise § 1240.6 to read as follows: proposal to the U.S. Department of developing reasoned regulatory § 1240.6 Postponement and adjournment Transportation, Docket Operations, 1200 decisions on the proposal. Comments of hearing. New Jersey Avenue SE, West Building are specifically invited on the overall regulatory, aeronautical, economic, After the commencement of the Ground Floor, Room W12–140, environmental, and energy-related hearing, the immigration judge may Washington, DC 20590; telephone: 1– aspects of the proposal. grant a reasonable adjournment either at 800–647–5527, or (202) 366–9826. You Communications should identify both his or her own instance or, for good must identify FAA Docket No. FAA– docket numbers and be submitted in cause shown, upon application by the 2020–0810; Airspace Docket No. 19– triplicate to the address listed above. respondent or the Department of ANM–101, at the beginning of your Persons wishing the FAA to Homeland Security, provided that comments. You may also submit acknowledge receipt of their comments nothing in this section shall authorize comments through the internet at on this notice must submit with those an adjournment that causes the https://www.regulations.gov. comments a self-addressed, stamped adjudication of an asylum application to FAA Order 7400.11E, Airspace postcard on which the following exceed 180 days in the absence of Designations and Reporting Points, and statement is made: ‘‘Comments to exceptional circumstances, consistent subsequent amendments can be viewed _ Docket No. FAA–2020–0810; Airspace with section 208(d)(5)(A)(iii) of the Act online at https://www.faa.gov/air Docket No. 19–ANM–101’’. The and § 1003.10(b) of this chapter. traffic/publications/. For further information, you can contact the postcard will be date/time stamped and Dated: September 16, 2020. Airspace Policy Group, Federal Aviation returned to the commenter. William P. Barr, Administration, 800 Independence All communications received before Attorney General. Avenue SW, Washington, DC 20591; the specified closing date for comments [FR Doc. 2020–21027 Filed 9–21–20; 4:15 pm] telephone: (202) 267–8783. The Order is will be considered before taking action BILLING CODE 4410–30–P also available for inspection at the on the proposed rule. The proposal National Archives and Records contained in this notice may be changed Administration (NARA). For in light of the comments received. A DEPARTMENT OF TRANSPORTATION information on the availability of FAA report summarizing each substantive Order 7400.11E at NARA, email public contact with FAA personnel Federal Aviation Administration [email protected] or go to https:// concerned with this rulemaking will be www.archives.gov/federal-register/cfr/ filed in the docket. 14 CFR Part 71 ibr-locations.html. Availability of NPRMs [Docket No. FAA–2020–0810; Airspace FOR FURTHER INFORMATION CONTACT: Docket No. 19–ANM–101] Matthew Van Der Wal, Federal Aviation An electronic copy of this document Administration, Western Service Center, may be downloaded through the RIN 2120–AA66 Operations Support Group, 2200 S. internet at https://www.regulations.gov. Recently published rulemaking Proposed Amendment of Class D and 216th Street, Des Moines, WA 98198; documents can also be accessed through E airspace; Helena, MT telephone (206) 231–3695. SUPPLEMENTARY INFORMATION: the FAA’s web page at https:// AGENCY: Federal Aviation www.faa.gov/air_traffic/publications/ Administration (FAA), DOT. Authority for This Rulemaking airspace_amendments/. ACTION: Notice of proposed rulemaking The FAA’s authority to issue rules You may review the public docket (NPRM). regarding aviation safety is found in containing the proposal, any comments Title 49 of the United States Code. received, and any final disposition in SUMMARY: This action proposes to Subtitle I, Section 106 describes the person in the Dockets Office (see the modify Class D airspace at Helena authority of the FAA Administrator. ADDRESSES section for the address and Regional Airport. This action also Subtitle VII, Aviation Programs, phone number) between 9:00 a.m. and proposes to modify Class E airspace, describes in more detail the scope of the 5:00 p.m., Monday through Friday, designated as a surface area. agency’s authority. This rulemaking is except federal holidays. An informal Additionally, this action proposes to promulgated under the authority docket may also be examined during establish Class E airspace, designated as described in Subtitle VII, Part A, normal business hours at the Northwest an extension to a Class D or Class E Subpart I, Section 40103. Under that Mountain Regional Office of the Federal surface area. Further, this action section, the FAA is charged with Aviation Administration, Air Traffic proposes to modify Class E airspace, prescribing regulations to assign the use Organization, Western Service Center,

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Operations Support Group, 2200 S. designed to contain IFR aircraft the last sentence of the Class D and 216th Street, Des Moines, WA 98198. descending below 1,000 feet above the Class E2 airspace legal descriptions is surface. This airspace area would be outdated and should be changed to Availability and Summary of described as follows: That airspace ‘‘Chart Supplement’’. Documents for Incorporation by extending upward from the surface Class D, E2, E4, and E5 airspace Reference within an area bounded by a line designations are published in This document proposes to amend beginning at lat. 46°34′18.57″ N, long. paragraphs 5000, 6002, 6004, and 6005, FAA Order 7400.11E, Airspace 111°51′30.319″ W, to lat. 46°38′5.89″ N, respectively, of FAA Order 7400.11E, Designations and Reporting Points, long. 111°51′24.53″ W, to lat. dated July 21, 2020, and effective dated July 21, 2020, and effective 46°37′12.53″ N, long. 111°45′24.67″ W, September 15, 2020, which is September 15, 2020. FAA Order to lat. 46°32′22.72″ N, long. incorporated by reference in 14 CFR 7400.11E is publicly available as listed 111°46′31.44″ W, to lat. 46°33′24.13″ N, 71.1. The Class E airspace designations in the ADDRESSES section of this long. 111°54′20.01″ W, then counter- listed in this document will be document. FAA Order 7400.11E lists clockwise along the 4.4-mile radius of published subsequently in the Order. Class A, B, C, D, and E airspace areas, the airport to lat. 46°34′20.01″ N, long. FAA Order 7400.11, Airspace air traffic service routes, and reporting 111°53′22.03″ W, then to the point of Designations and Reporting Points, is points. beginning, and within an area bounded published yearly and effective on by a line beginning at lat. 46°38′39.95″ September 15. The Proposal ° ′ ″ N, long. 112 06 47.50 W, to lat. Regulatory Notices and Analyses The FAA is proposing an amendment 46°36′47.49″ N, long. 112°07′53.41″ W, to Title 14 Code of Federal Regulations to lat. 46°37′22.52″ N, long. The FAA has determined that this Part 71 by modifying the Class D 112°11′37.80″ W, to lat. 46°39′19.40″ N, regulation only involves an established airspace at Helena Regional Airport, long. 112°10′58.64″ W, then to the point body of technical regulations for which Helena, MT. The proposal would of beginning west of Helena Regional frequent and routine amendments are modify the Class D airspace extensions Airport. necessary to keep them operationally east and west of the airport to properly Further, this action proposes to current, is non-controversial, and contain IFR departures to 700 feet above modify Class E airspace extending unlikely to result in adverse or negative the surface. The airspace area would be upward from 700 feet above the surface. comments. It, therefore: (1) Is not a described as follows: That airspace The action proposes to properly size the ‘‘significant regulatory action’’ under extending upward from the surface to airspace to contain IFR departures to Executive Order 12866; (2) is not a and including 6,400 feet within a 4.4- 1,200 feet above the surface and IFR ‘‘significant rule’’ under DOT mile radius of the airport, and within 2 arrivals descending below 1,500 feet Regulatory Policies and Procedures (44 ° miles each side of the 091 bearing from above the surface. This airspace area FR 11034; February 26, 1979); and (3) the airport, extending from the 4.4-mile would be described as follows: That does not warrant preparation of a radius to 5.2 miles east of the airport, airspace extending upward from 700 regulatory evaluation as the anticipated and within 2 miles each side of 292° feet above the surface within an 8.3-mile impact is so minimal. Since this is a bearing from the airport, extending from radius of the airport, and within 1 mile routine matter that will only affect air the 4.4-mile radius to 5.8 miles west of each side of the 103° bearing from the traffic procedures and air navigation, it Helena Regional Airport. This Class D airport, extending from the 8.3-mile is certified that this rule, when airspace area is effective during the radius to 10.7 miles east of the airport, promulgated, would not have a specific dates and times established in and within 1.8 miles each side of the significant economic impact on a advance by a Notice to Airmen. The 281° bearing from the airport, extending substantial number of small entities effective date and time will thereafter be from the 8.3-mile radius to 18.1 miles under the criteria of the Regulatory continuously published in the Chart west of Helena Regional Airport. Flexibility Act. Supplement. This action also proposes to modify Environmental Review This action also proposes to modify Class E airspace extending upward from Class E airspace, designated as a surface 1,200 feet above the surface to properly This proposal will be subject to an area, to be coincident with the new contain IFR aircraft transitioning to/ environmental analysis in accordance Class D dimensions. The airspace area from the terminal and en route with FAA Order 1050.1F, would be described as follows: That environments. This airspace area would ‘‘Environmental Impacts: Policies and airspace extending upward from the be described as follows: That airspace Procedures’’ prior to any FAA final surface within a 4.4-mile radius of the extending upward from 1,200 feet above regulatory action. airport, and within 2 miles each side of the surface within a 36-mile radius of List of Subjects in 14 CFR Part 71 the 091° bearing from the airport, Helena Regional Airport. extending from the 4.4-mile radius to The action proposes to update the Airspace, Incorporation by reference, 5.2 miles east of the airport, and within airport’s geographic coordinates to Navigation (air). 2 miles each side of 292° bearing from match the FAA database. The The Proposed Amendment coordinates should read lat. 46°36′24″ the airport, extending from the 4.4-mile Accordingly, pursuant to the N, long. 111°59′0.0″ W. This action also radius to 5.8 miles west of Helena authority delegated to me, the Federal proposes to remove the Helena Regional Airport. This Class E airspace Aviation Administration proposes to VORTAC and all references to the area is effective during the specific dates amend 14 CFR part 71 as follows: and times established in advance by a VORTAC from the Class D, E2, and E5 Notice to Airmen. The effective date and legal descriptions. The navigational aid PART 71—DESIGNATION OF CLASS A, time will thereafter be continuously is not needed to define the airspace. B, C, D, AND E AIRSPACE AREAS; AIR published in the Chart Supplement. Removal of the navigational aid allows TRAFFIC SERVICE ROUTES; AND Additionally, this action proposes to the airspace to be defined from a single REPORTING POINTS establish Class E airspace, designated as reference point which simplifies how an extension to a Class D or Class E the airspace is described. Additionally, ■ 1. The authority citation for 14 CFR surface area. The proposed area is the term ‘‘Airport/Facility Directory’’ in part 71 continues to read as follows:

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Authority: 49 U.S.C. 106(f), 106(g), 40103, 46°39′19.40″ N, long. 112°10′58.64″ W, then non-centrally cleared derivatives 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, to the point of beginning west of Helena (‘‘BCBS/IOSCO Framework’’). The 1959–1963 Comp., p. 389. Regional Airport. Commission is also proposing to allow § 71.1 [Amended] Paragraph 6005 Class E Airspace Areas SDs and MSPs subject to the CFTC ■ 2. The incorporation by reference in Extending Upward From 700 Feet or More Margin Rule to use the risk-based model Above the Surface of the Earth 14 CFR 71.1 of FAA Order 7400.11E, calculation of IM of a counterparty that Airspace Designations and Reporting * * * * * is a CFTC-registered SD or MSP to Points, dated July 21, 2020, and ANM MT E5 Helena, MT [Amended] determine the amount of IM to be effective September 15, 2020, is collected from the counterparty and to Helena Regional Airport, MT determine whether the IM threshold amended as follows: (Lat. 46°36′24″ N, long. 111°59′0.0″ W) amount for the exchange of IM has been Paragraph 5000 Class D Airspace. That airspace extending upward from 700 exceeded such that documentation feet above the surface within an 8.3-mile * * * * * radius of the airport, and within 1 mile each concerning the collection, posting, and ANM MT D Helena, MT [Amended] side of the 103° bearing from the airport, custody of IM would be required. extending from the 8.3-mile radius to 10.7 Helena Regional Airport, MT DATES: With respect to the proposed ° ′ ″ ° ′ ″ miles east of the airport, and within 1.8 miles amendments, comments must be (Lat. 46 36 24 N, long. 111 59 0.0 W) ° each side of the 281 bearing from the airport, received on or before October 23, 2020. That airspace extending upward from the extending from the 8.3-mile radius to 18.1 surface to and including 6,400 feet within a miles west of the airport; and that airspace ADDRESSES: You may submit comments, 4.4-mile radius of the airport, and within 2 extending upward from 1,200 feet above the identified by RIN 3038–AF05, by any of ° miles each side of the 091 bearing from the surface within a 36-mile radius of Helena the following methods: airport, extending from the 4.4-mile radius to Regional Airport. • CFTC Comments Portal: https:// 5.2 miles east of the airport, and within 2 comments.cftc.gov. Select the ‘‘Submit miles each side of 292° bearing from the Issued in Seattle, Washington, on airport, extending from the 4.4-mile radius to September 16, 2020. Comments’’ link for this rulemaking and 5.8 miles west of Helena Regional Airport. B.G. Chew, follow the instructions on the Public This Class D airspace area is effective during Comment Form. Acting Group Manager, Operations Support • the specific dates and times established in Group, Western Service Center. Mail: Send to Christopher advance by a Notice to Airmen. The effective [FR Doc. 2020–20892 Filed 9–22–20; 8:45 am] Kirkpatrick, Secretary of the date and time will thereafter be continuously Commission, Commodity Futures BILLING CODE 4910–13–P published in the Chart Supplement. Trading Commission, Three Lafayette * * * * * Center, 1155 21st Street NW, Washington, DC 20581. ANM MT E2 Helena, MT [Amended] COMMODITY FUTURES TRADING • Hand Delivery/Courier: Follow the Helena Regional Airport, MT COMMISSION (Lat. 46°36′24″ N, long. 111°59′0.0″ W) same instructions as for Mail, above. Please submit your comments using That airspace extending upward from the 17 CFR Part 23 only one of these methods. Submissions surface within a 4.4-mile radius of the RIN 3038–AF05 airport, and within 2 miles each side of the through the CFTC Comments Portal are ° encouraged. 091 bearing from the airport, extending from Margin Requirements for Uncleared All comments must be submitted in the 4.4-mile radius to 5.2 miles east of the Swaps for Swap Dealers and Major airport, and within 2 miles each side of 292° English, or if not, accompanied by an Swap Participants bearing from the airport, extending from the English translation. Comments will be 4.4-mile radius to 5.8 miles west of Helena AGENCY: Commodity Futures Trading posted as received to https:// Regional Airport. This Class E airspace area Commission. comments.cftc.gov. You should submit is effective during the specific dates and only information that you wish to make times established in advance by a Notice to ACTION: Notice of proposed rulemaking. Airmen. The effective date and time will available publicly. If you wish the SUMMARY: The Commodity Futures thereafter be continuously published in the Commission to consider information Chart Supplement. Trading Commission (‘‘Commission’’ or that you believe is exempt from ‘‘CFTC’’) is proposing to amend the disclosure under the Freedom of Paragraph 6004. Class E Airspace Areas margin requirements for uncleared Information Act (‘‘FOIA’’), a petition for Designated as an Extension to a Class D or swaps for swap dealers (‘‘SDs’’) and Class E Surface Area confidential treatment of the exempt major swap participants (‘‘MSPs’’) for information may be submitted according * * * * * which there is no prudential regulator to the procedures established in § 145.9 ANM MT E4 Helena, MT [New] (‘‘CFTC Margin Rule’’). In particular, the of the Commission’s regulations.1 Helena Regional Airport, MT Commission is proposing to revise the The Commission reserves the right, (Lat. 46°36′24″ N, long. 111°59′0.0″ W) calculation method for determining but shall have no obligation, to review, That airspace extending upward from the whether certain entities come within the pre-screen, filter, redact, refuse or surface within an area bounded by a line scope of the initial margin (‘‘IM’’) remove any or all of your submission beginning at lat. 46°34′18.57″ N, long. requirements under the CFTC Margin from https://comments.cftc.gov that it 111°51′30.319″ W, to lat. 46°38′5.89″ N, long. Rule beginning on September 1, 2021, may deem to be inappropriate for 111°51′24.53″ W, to lat. 46°37′12.53″ N, long. and the timing for compliance with the publication, such as obscene language. 111°45′24.67″ W, to lat. 46°32′22.72″ N, long. IM requirements after the end of the ° ′ ″ ° ′ ″ All submissions that have been redacted 111 46 31.44 W, to lat. 46 33 24.13 N, long. phased compliance schedule. The or removed that contain comments on 111°54′20.01″ W, then counter-clockwise proposed amendment would align the merits of the rulemaking will be along the 4.4-mile radius of the airport to lat. certain aspects of the CFTC Margin Rule 46°34′20.01″ N, long. 111°53′22.03″ W, then retained in the public comment file and to the point of beginning, and within an area with the Basel Committee on Banking will be considered as required under the bounded by a line beginning at lat. Supervision and Board of the Administrative Procedure Act and other 46°38′39.95″ N, long. 112°06′47.50″ W, to lat. International Organization of Securities 46°36′47.49″ N, long. 112°07′53.41″ W, to lat. Commissions’ (‘‘BSBS/IOSCO’’) 1 17 CFR 145.9. Commission regulations referred 46°37′22.52″ N, long. 112°11′37.80″ W, to lat. Framework for margin requirements for to herein are found at 17 CFR Chapter I.

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applicable laws, and may be accessible arising from the use of uncleared swaps, required to comply with the IM under the FOIA. these requirements must (i) help ensure requirements in staggered phases,14 FOR FURTHER INFORMATION CONTACT: the safety and soundness of the SD or starting with entities with the largest Joshua B. Sterling, Director, 202–418– MSP and (ii) be appropriate for the risk average aggregate notional amounts 6056, [email protected]; Thomas J. associated with the uncleared swaps (‘‘AANA’’), calculated on a daily basis, Smith, Deputy Director, 202–418–5495, held by the SD or MSP.9 of uncleared swaps and certain other [email protected]; Warren Gorlick, Following the mandate under Section financial products, and then Associate Director, 202–418–5195, 4s(e), the Commission in 2016 successively with lesser AANA. [email protected]; or Carmen Moncada- promulgated Commission regulations The last phase of compliance, which Terry, Special Counsel, 202–418–5795, 23.150 through 23.161, namely the begins on September 1, 2021, [email protected], Division of CFTC Margin Rule, which requires CSEs encompasses two sets of entities: (i) Swap Dealer and Intermediary to collect and post initial margin CSEs and covered counterparties with Oversight, Commodity Futures Trading (‘‘IM’’) 10 and variation margin an AANA between $750 billion and $50 Commission, Three Lafayette Centre, (‘‘VM’’) 11 for uncleared swaps.12 In billion (‘‘Phase 5 entities’’); 15 and (ii) all 1155 21st Street NW, Washington, DC implementing the CFTC Margin Rule, other remaining CSEs and covered 20581. the Commission has identified certain counterparties,16 including financial issues that it understands would likely end users (‘‘FEUs’’) with material swaps SUPPLEMENTARY INFORMATION: impede a smooth transition to exposure (‘‘MSE’’) of more than $8 I. Background compliance for entities required to billion in AANA,17 (‘‘Phase 6 18 Section 4s(e) of the Commodity comply with the IM requirements entities’’). These entities had been Exchange Act (‘‘CEA’’ or ‘‘Act’’) 2 beginning on September 1, 2021. scheduled to begin compliance in separate phase-in dates, with Phase 5 requires the Commission to adopt rules A. Calculation Method for Determining entities to begin compliance on establishing minimum initial and Whether Certain Entities Are Subject to September 1, 2020, and Phase 6 entities variation margin requirements for all the IM Requirements and the Timing for on September 1, 2021. On May 28, 2020, swaps 3 that are (i) entered into by an SD Compliance With the IM Requirements the Commission adopted an interim or MSP for which there is no prudential After the End of the Phased Compliance final rule delaying the compliance date regulator 4 (collectively, ‘‘covered swap Schedule entities’’ or ‘‘CSEs’’) 5 and (ii) not for Phase 5 entities until September 1, Commission regulation 23.161 sets cleared by a registered derivatives 2021, to address the operational forth a schedule for compliance with the clearing organization (‘‘uncleared challenges faced by these entities as a CFTC Margin Rule, spanning from swaps’’).6 To offset the greater risk to the result of the COVID–19 pandemic. September 1, 2016, to September 1, SD 7 or MSP 8 and the financial system 2021.13 Under the schedule, entities are current Commission requirements under the CFTC Margin Rule. If the July 2020 Proposal becomes 2 7 U.S.C. 6s(e) (capital and margin requirements). 9 CEA section 4s(e)(3)(A), 7 U.S.C. 6s(e)(3)(A). final prior to this notice of proposed rulemaking, all 3 CEA section 1a(47), 7 U.S.C. 1a(47) (swap 10 Initial margin is the collateral (calculated as references to September 1, 2021, referring to the definition); Commission regulation 1.3, 17 CFR 1.3 beginning of the last phase of compliance under the (further definition of a swap). A swap includes, provided by Commission regulation 23.154) that is collected or posted in connection with one or more phased compliance schedule, should be deemed among other things, an interest rate swap, automatically superseded and replaced with commodity swap, credit default swap, and currency uncleared swaps pursuant to regulation 23.152. Initial margin is intended to secure potential future September 1, 2022. swap. 14 exposure following default of a counterparty (i.e., The schedule also addresses the variation 4 CEA section 1a(39), 7 U.S.C. 1a(39) (defining the adverse changes in the value of an uncleared swap margin requirements under the CFTC Margin Rule, term ‘‘prudential regulator’’ to include the Board of providing a compliance period of September 1, Governors of the Federal Reserve System; the Office that may arise during the period of time when it is being closed out). See CFTC Margin Rule, 81 FR at 2016, through March 1, 2017. See 17 CFR 23.161(a). of the Comptroller of the Currency; the Federal The compliance period (including a six-month Deposit Insurance Corporation; the Farm Credit 683. 11 Variation margin, as defined in Commission extension to September 1, 2017 through no-action Administration; and the Federal Housing Finance relief) has long expired and all eligible entities are Agency). The definition of prudential regulator regulation 23.151, is the collateral provided by a party to its counterparty to meet the performance required to comply with the VM requirements. further specifies the entities for which these 15 agencies act as prudential regulators. The of its obligations under one or more uncleared 17 CFR 23.161(a)(6). prudential regulators published final margin swaps between the parties as a result of a change 16 The term ‘‘covered counterparty’’ is defined in requirements in November 2015. See generally in the value of such obligations since the trade was Commission regulation 23.151 as a financial end Margin and Capital Requirements for Covered Swap executed or the last time such collateral was user with MSE or a swap entity, including an SD Entities, 80 FR 74840 (Nov. 30, 2015) (‘‘Prudential provided. 17 CFR 23.151. or MSP, that enters into swaps with a CSE. See 17 Margin Rule’’). The Prudential Margin Rule is 12 See generally Margin Requirements for CFR 23.151. substantially similar to the CFTC Margin Rule, Uncleared Swaps for Swap Dealers and Major Swap 17 Commission regulation 23.151 provides that including with respect to the CFTC’s phasing-in of Participants, 81 FR 636 (Jan. 6, 2016). The CFTC MSE for an entity means that the entity and its margin requirements, as discussed below. Margin Rule, which became effective April 1, 2016, margin affiliates have an average daily aggregate 5 CEA section 4s(e)(1)(B), 7 U.S.C. 6s(e)(1)(B). SDs is codified in part 23 of the Commission’s notional amount of uncleared swaps, uncleared and MSPs for which there is a prudential regulator regulations. 17 CFR 23.150–23.159, 23.161. In May security-based swaps, foreign exchange forwards, must meet the margin requirements for uncleared 2016, the Commission amended the CFTC Margin and foreign exchange swaps with all counterparties swaps established by the applicable prudential Rule to add Commission regulation 23.160, 17 CFR for June, July, or August of the previous calendar regulator. CEA section 4s(e)(1)(A), 7 U.S.C. 23.160, providing rules on its cross-border year that exceeds $8 billion, where such amount is 6s(e)(1)(A). application. See generally Margin Requirements for calculated only for business days. A company is a 6 CEA section 4s(e)(2)(B)(ii), 7 U.S.C. Uncleared Swaps for Swap Dealers and Major Swap ‘‘margin affiliate’’ of another company if: (i) Either 6s(e)(2)(B)(ii). In Commission regulation 23.151, the Participants—Cross-Border Application of the company consolidates the other on a financial Commission further defined this statutory language Margin Requirements, 81 FR 34818 (May 31, 2016). statement prepared in accordance with U.S. to mean all swaps that are not cleared by a 13 17 CFR 23.161(a). On July 10, 2020, the Generally Accepted Accounting Principles, the registered derivatives clearing organization or a Commission published a notice of proposed International Financial Reporting Standards, or derivatives clearing organization that the rulemaking proposing to amend Commission other similar standards; (ii) both companies are Commission has exempted from registration as regulation 23.161(a)(7) by deferring the compliance consolidated with a third company on a financial provided under the CEA. 17 CFR 23.151. date for entities with an average aggregate notional statement prepared in accordance with such 7 CEA section 1a(49), 7 U.S.C. 1a(49) (swap dealer amount between $8 billion and $50 billion, from principles or standards; or (iii) for a company that definition); Commission regulation 1.3 (further September 1, 2021, to September 1, 2022. See is not subject to such principles or standards, if definition of swap dealer). Margin Requirements for Uncleared Swaps for consolidation as described in paragraph (i) or (ii) of 8 CEA section 1a(32), 7 U.S.C. 1a(32) (major swap Swap Dealers and Major Swap Participants, 85 FR this definition would have occurred if such participant definition); Commission regulation 1.3 41463 (July 10, 2020) (‘‘July 2020 Proposal’’). The principles or standards had applied. 17 CFR 23.151. (further definition of major swap participant). notice of proposed rulemaking herein describes 18 17 CFR 23.161(a)(7).

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Because it was unclear what the impact 2013,22 and then revised in 2015.23 The Market participants have stated that of the pandemic would be on Phase 6 2015 version of the BCBS/IOSCO these differences in the methods for entities, the Commission did not deem Framework changed the calculation determining when an entity comes appropriate to postpone these entities’ period of June, July, and August, with within the scope of the IM requirements September 1, 2021 compliance date an annual implementation date of and the timing for compliance after the through the interim final rule process. December 1, to March, April, and May last phase of compliance may impose an As a result, Phase 5 and Phase 6 entities of each calendar year, with an annual undue burden on their efforts to comply are now required to begin compliance implementation date of September 1. with the CFTC’s margin requirements.26 on September 1, 2021. The CFTC Margin Rule incorporated the Entities have to account for different Under the Commission’s margin earlier 2013 version of the BCBS/IOSCO compliance schedules and set up and requirements, the method for Framework by adopting the June, July, determining when Phase 6 entities are maintain separate processes for and August calculation period for the determining when they meet the required to comply with the CFTC’s IM annual calculation of MSE. As a result, thresholds for IM compliance.27 requirements beginning with the last the Commission’s existing regulations phase of compliance differs from the do not reflect the calculation period of B. No-Action Letter Concerning the method set out in the BCBS/IOSCO March, April, and May set forth in the Calculation of IM Framework.19 More specifically, the revised BCBS/IOSCO Framework BCBS/IOSCO Framework requires— published in March 2015. The Commission’s Division of Swap beginning on September 1, 2022, which The Commission also departed from Dealer and Intermediary Oversight starts the last phase of implementation BCBS/IOSCO’s month-end date (‘‘DSIO’’) issued CFTC No-Action Letter for the margin requirements under the calculation of AANA for determining 19–29 in July 2019 in response to a framework—entities with Ö8 billion 20 whether an entity is subject to the IM request for relief submitted by Cargill in AANA during the period of March, requirements. In the preamble to the Incorporated (‘‘Cargill’’), a CFTC- April, and May of the current year, CFTC Margin Rule, the Commission registered SD and CSE.28 DSIO stated based on an average of month-end dates, stated that it decided to adopt a daily that it would not recommend to exchange IM beginning September 1 AANA calculation method for enforcement action if Cargill used the of each year. determining whether an FEU has MSE, risk-based model calculation of IM of a In contrast, in the last phase of the finding of which requires a CSE to compliance under the phased counterparty that is a CFTC-registered exchange IM with the FEU, ‘‘to gather a SD as the amount of IM that Cargill is compliance schedule, under the more comprehensive assessment of the Commission’s margin requirements, required to collect from the SD and to [FEU]’s participation in the swaps determine whether the IM threshold Phase 6 entities (i.e., CSEs and FEUs market, and to address the possibility with more than $8 billion in AANA, or amount of $50 million (‘‘IM threshold that a market participant might ‘window MSE) are required to begin exchanging amount’’) 29 has been exceeded, which dress’ its exposure on an as-of date such IM on September 1, 2021. The MSE for would trigger the requirement for as year-end, in order to avoid the an FEU must be determined on Commission’s margin requirements.’’ 24 September 1, 2021, based on daily Not Cleared by a Central Counterparty (Oct. 4, As a result, the Commission’s current 2016), Article 28(1), https://eur-lex.europa.eu/legal- AANA (accounting only for business method for the annual calculation of content/EN/TXT/PDF/ days) 21 during the period of June, July, MSE, which was adopted in ?uri=CELEX:32016R2251&from=EN. Financial and August of the prior year. After the Services Agency of Japan (JFSA) Cabinet Office coordination with the U.S. prudential last phase of compliance, the Ordinance on Financial Instruments Business regulators and is similar to the U.S. determination of MSE for an FEU, (Cabinet Office Ordinance No. 52 of August 6, 2007), as amended (March 31, 2016), Article which triggers the applicability of the prudential regulators’ method of calculation, is not consistent with the 123(11)(iv)(c); Office of the Superintendent of IM requirements, must be conducted on Financial Institutions Canada (OSFI) Guideline No. January 1 of each calendar year based on most recent version of the BCBS/IOSCO E–22, Margin Requirements for Non-Centrally daily AANA during the June, July, and Framework. Nor is it consistent with Cleared Derivatives (April 2020), Section 5, 71, August period of the prior year, with requirements in other major market https://www.osfi-bsif.gc.ca/Eng/Docs/e22.pdf. 26 See Recommendations to Improve Scoping and application of the IM requirements, if jurisdictions, most of which adopted the 2015 BCBS/IOSCO Framework’s month- Implementation of Initial Margin Requirements for the FEU has MSE, required to begin on Non-Cleared Swaps, Report to the CFTC’s Global January 1 of each year. end date calculation of AANA using the Markets Advisory Committee by the Subcommittee The BCBS/IOSCO Framework was period of March, April, and May for the on Margin Requirements for Non-Cleared Swaps, originally promulgated in September purposes of determining whether an April 2020 at, 48–54, https://www.cftc.gov/media/ entity is subject to the IM requirements 3886/GMAC_051920MarginSubcommitteeReport/ download (‘‘Margin Subcommittee Report’’ or 19 See generally BCBS/IOSCO, Margin beginning in the last phase of ‘‘Report’’). 25 requirements for non-centrally cleared derivatives implementation. 27 See id. (July 2019), https://www.bis.org/bcbs/publ/d475.pdf 28 CFTC Letter No. 19–29, Request for No-Action (‘‘2019 BCBS/IOSCO Framework’’). 22 See generally BCBS/IOSCO, Margin Relief Concerning Calculation of Initial Margin 20 The U.S. adopted the BCBS/IOSCO threshold, requirements for non-centrally cleared derivatives (Dec.19, 2019) (‘‘Letter 19–29’’), http:// but replaced the 8 billion euro figure with a dollar (Sept. 2013), https://www.bis.org/publ/ www.cftc.gov/idc/groups/public/@lrlettergeneral/ amount of $8 billion. As a result, there is a small bcbs261.htm. documents/letter/19-29.pdf. disparity in the threshold amounts given the 23 continuing fluctuation of the dollar-euro exchange See generally BCBS/IOSCO, Margin 29 Under Commission regulation 23.154(a)(3), SDs rate. This rule proposal does not address this issue. requirements for non-centrally cleared derivatives and MSPs subject to the Commission’s regulations (March 2015), available at https://www.bis.org/bcbs/ 21 The determination of MSE requires accounting are not required to post or collect IM until the publ/d317.htm. for the average daily aggregate notional amount of initial margin threshold amount has been exceeded. 24 uncleared swaps, uncleared security-based swaps, 81 FR at 645. See 17 CFR 23.154(a)(3). The term ‘‘initial margin foreign exchange forwards, and foreign exchange 25 See, e.g., Commission Delegated Regulation threshold amount’’ is defined in Commission swaps for June, July and August of the previous (EU) 2016/2251 Supplementing Regulation (EU) No. regulation 23.151 to mean an aggregate credit calendar year that exceeds $8 billion, where such 648/2012 of the European Parliament and of the exposure of $50 million resulting from all uncleared amount is calculated only for business days. See Council of July 4, 2012 on OTC Derivatives, Central swaps between an SD and its margin affiliates (or definition of MSE supra note 17. For simplicity Counterparties and Trade Repositories with Regard an MSP and its margin affiliates) on the one hand, purposes, this formulation will be referred to to Regulatory Technical Standards for Risk- and the SD’s (or MSP’s) counterparty and its margin hereinafter as ‘‘daily AANA.’’ Mitigation Techniques for OTC Derivative Contracts affiliates on the other. See 17 CFR 23.151.

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documentation concerning the posting, as Letter 19–29, could promote certainty prior year.36 An FEU that has MSE collection, and custody of IM collateral. and clarity, facilitating efforts by market based on its calculation of AANA over participants to take the application of June, July, and August of 2020 will C. Market Participant Feedback the Commission’s regulations into come within the scope of the IM The CFTC’s Global Markets Advisory account in their planning, without requirements beginning on September 1, Committee (‘‘GMAC’’) established a undermining the effectiveness of the 2021. After September 1, 2021, however, subcommittee in January 2020 to CFTC Margin Rule. Moreover, the because the base year for calculating consider issues raised by the proposed amendment would promote AANA is the prior year, the annual implementation of margin requirements efficient risk hedging by smaller CSEs determination of MSE, which triggers for non-cleared swaps, to identify that offer swaps services to smaller the applicability of the IM requirements, challenges associated with forthcoming entities that are neither SDs nor MSPs, would be on January 1 of each year,37 implementation phases, and to make with some of those risk-taking using the AANA for June, July, and recommendations through a report for transactions requiring the exchange of August of the prior year. If the FEU has the GMAC to consider in advising the regulatory margin and some, at the MSE on January 1 of a given year, the Commission. The subcommittee option of the parties, requiring the FEU would come within the scope of submitted the Margin Subcommittee exchange of contractually-agreed the IM requirements on January 1 of Report to the GMAC with its margin. The CSEs might then enter into such year. As such, a CSE would be recommendations.30 The GMAC offsetting swaps with SDs and MSPs to required to exchange regulatory IM adopted the Report and recommended hedge the risk associated with the risk- beginning on such January 1 for its to the Commission that it consider taking transactions. Due to their size uncleared swaps with such FEU. adopting the Report’s recommendations. and limited swap business and The Commission proposes to amend Among other things, the Margin resources, the CSEs may find it the definition of MSE in Commission Subcommittee Report recommended uneconomical to develop and maintain regulation 23.151 by replacing ‘‘June, alignment of the CFTC Margin Rule a margin model, and would therefore July and August of the previous with the BCBS/IOSCO Framework with benefit from the option to rely on their calendar year’’ with ‘‘March, April and respect to the method for calculating SD or MSP counterparties’ IM model May of that year.’’ The period for AANA for determining whether an calculations. calculating AANA for determining entity comes within the scope of the IM whether an FEU has MSE would thus be requirements and the timing of II. Proposed Amendments March, April, and May of ‘‘that year.’’ compliance after the end of the phased ‘‘That year’’ would be understood to The Commission is proposing to compliance schedule.31 The Report also mean the year the MSE is calculated for revise the method for calculating AANA recommended the codification of Letter determining whether the IM for determining whether an FEU has 19–29.32 requirements apply. The calculation of The Commission believes that MSE and the timing for compliance MSE is precipitated by Commission alignment with BCBS/IOSCO, the global with the IM requirements after the end 23.161(a)(7), which requires a CSE to standard setter for margin requirements of the last phase of compliance to align exchange IM with a counterparty that is for non-cleared derivatives, would these aspects of the CFTC Margin Rule an FEU with MSE beginning on promote harmonization in the with the BCBS/IOSCO Framework. The September 1, 2021, and thereafter. application of the IM requirements. Commission is also proposing to amend The Commission is also proposing to Moreover, the Commission does not Commission regulation 23.154(a) in a amend the definition of MSE to set believe that the disjunction between the manner similar to the terms of Letter ‘‘September 1 of any year’’ as the CFTC and BCBS/IOSCO regarding the 19–29, and thus allow CSEs to use the determination date for MSE. Under the AANA calculation method and the risk-based model calculation of IM of current requirements, the MSE for an counterparties that are CFTC-registered FEU must be determined beginning on timing of compliance furthers any 34 regulatory purpose. In fact, the SDs or MSPs (‘‘swap entities’’) to September 1, 2021, and subsequently, Commission notes the foreseeable determine the amount of IM that must after the last phase of compliance, on possibility of calculation errors resulting be collected from such counterparties. January 1 of each year. The proposed from differences in the calculation A. Commission Regulation 23.151— amendment would change the date of methods.33 Amendments to MSE Definition determination of MSE, applicable after The Commission also believes that the last phase of compliance, from adopting regulations along the lines of As noted above, the exchange of IM January 1 to September 1. Because narrowly-tailored no-action letters, such with respect to uncleared swaps having MSE triggers the applicability of between a CSE and a counterparty that the IM requirements for an FEU, 30 See supra note 26. is an FEU with MSE (together, Phase 6 requiring the CSE to post and collect IM 31 See Margin Subcommittee Report at 48–54. entities) is required in the last phase of with its FEU counterparty, the proposed 32 See Margin Subcommittee Report at 34–36. compliance, which is scheduled to amendment would effectively set the 33 The possibility of calculation errors may be begin on September 1, 2021.35 timing for compliance with the IM mitigated by substituted compliance, as described requirements on September 1 after the in Commission regulation 23.160, if the parties are Commission regulation 23.151 provides non-U.S. entities and substituted compliance is that an entity has MSE if it has more last phase of compliance with respect to available, as the parties would be able to avail than $8 billion in average daily AANA themselves of the rules in the foreign jurisdiction during June, July, and August of the 36 17 CFR 23.151. and would therefore not face the concern about 37 January 1 is not explicitly set out in the different calculation methods. However, while the Commission’s regulations as the determination date proposed changes to the method of calculation of 34 Commission regulation 23.151 defines the term for MSE after the last phase of compliance. AANA would align the CFTC’s method of ‘‘swap entity’’ as a person that is registered with the However, Commission regulation 23.161(a)(7) calculation with BCBS/IOSCO’s approach, the Commission as an SD or MSP under the CEA. (addressing the last phase of compliance and the Commission acknowledges that the changes would 35 See 17 CFR 23.161(a)(7), which requires that a timing of compliance going forward) and the result in a divergence from the U.S. prudential CSE must comply with the CFTC IM requirements definition of MSE in Commission regulation 23.151 regulators’ approach, which may increase the with respect to their uncleared swaps with can be reasonably read together to set January 1 as potential for calculation errors for entities located counterparties that are FEUs with MSE beginning the determination date. See 17 CFR 23.151; 17 CFR in the United States. on September 1, 2021. 23.161(a)(7).

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uncleared swaps entered into by a CSE FEU must be determined using the forth above, and taking account of and an FEU with MSE. AANA for the June, July, and August Section 752 of the Dodd-Frank Act that The proposed shift of the MSE period of the prior year (i.e., 2020). As calls on the CFTC to ‘‘consult and determination date from January 1 to a result, for the last phase of compliance coordinate’’ with respect to the September 1 could have the effect of in 2021, a CSE and FEU will have at establishment of consistent deferring for nine months for 2022 38 the least twelve months to prepare in international standards,42 the obligation to exchange IM with a firm anticipation of compliance with the IM Commission preliminarily believes that that was not in scope on September 1, requirements. Under the proposed amending the definition of MSE by 2021, but would be subject to the IM amendment, however, for the last phase replacing ‘‘June, July and August of the requirements on January 1, 2022. As a of compliance in 2021, the CSE and FEU previous calendar year’’ with ‘‘March, result, in 2022, less collateral would be would have only 3 months because MSE April and May of that year’’ and by collected for uncleared swaps during would be determined using the AANA prescribing September 1 of each year as the nine-month period, which could for the March, April, and May period of the MSE determination date is render uncleared swap positions riskier the current year (i.e., 2021). appropriate to harmonize its compliance and increase the risk of contagion and Also, after the last phase of schedule with that of the BCBS/IOSCO systemic risk. The Commission, compliance under the phased Framework and eliminate a disjunction however, notes that because the deferral compliance schedule, as proposed, the that risks calculation errors and may period would affect entities with lower date for determining MSE for an FEU hinder compliance with the IM AANAs than entities brought into scope would be September 1 of each year, and requirements. in earlier phases, the potential the AANA calculation period for The Commission is also proposing to uncollateralized risk would be determining whether an FEU has MSE amend the requirement to use daily mitigated, becoming a lesser concern, would be March, April, and May of such average AANA during the three-month particularly because the proposed year. As a result, under the proposed calculation period for determining MSE change in the MSE determination date amendment, an FEU with MSE and its (‘‘daily AANA calculation method’’). would draw the Commission’s rules CSE counterparty would have three The proposed amendment would closer to BCBS/IOSCO’s approach, months to prepare in advance of instead require the use of average promoting international harmonization. compliance with the IM requirements, month-end AANA during the three- Conversely, the change in the MSE whereas under the current rule, such month calculation period (‘‘month-end determination date could also result in parties have four months because MSE AANA calculation method’’). In requiring certain entities to post and must be determined on January 1 based adopting the CFTC Margin Rule, the collect IM that would not otherwise be on the AANA for June, July, and August Commission acknowledged that the use required to do so. This could occur of the prior year. of the month-end AANA calculation when an FEU meets the MSE threshold Market participants recognize the method would be consistent with BCBS/ in the last phase of compliance effects of the proposed changes on the IOSCO’s approach. Nonetheless, the beginning on September 1, 2021, but time frame for preparing for compliance CFTC, along with the U.S prudential falls below the threshold by January 1, with the IM requirements, with greater regulators, adopted the daily AANA 2022, because the AANA for June, July, impact on Phase 6 entities that are calculation method. In the preamble to and August of the prior year (i.e., 2021) coming into scope in the last phase of the CFTC Margin Rule, the Commission has declined below $8 billion. In such compliance, compared to those entities explained that a daily average AANA case, under the current rule, a CSE subject to compliance after the end of calculation would provide a more would no longer be subject to the IM the last compliance phase. Nevertheless, comprehensive assessment of an FEU’s requirements with respect to such FEU the Margin Subcommittee Report, which participation in the swaps market in beginning January 1, 2022. However, the GMAC has adopted and determining whether the FEU has MSE under the proposed amendment, the recommended to the Commission, and would address the possibility of CSE would continue to be subject to the supported the changes because they window dressing of exposures by IM requirements with respect to such would reconcile the CFTC’s margin market participants that might seek to FEU through September 1, 2022, and, as requirements with the BCBS/IOSCO avoid the CFTC’s margin a result, the CSE would be required to 40 Framework. The proposed changes requirements.43 exchange IM with the FEU for nine would eliminate the need to maintain In the Margin Subcommittee Report, months longer than the January 1, 2022 separate schedules and processes for the the GMAC subcommittee stated that the MSE determination date would have computation of AANA and reduce the daily AANA calculation method entails required. burden and cost of compliance with the more work for smaller counterparties These proposed amendments to the IM requirements.41 For the reasons set definition of MSE would have the effect and that the method is only used in the United States, noting that in the United of reducing the time frame that FEUs 40 See Margin Subcommittee Report at 49 States, daily AANA calculations over and their CSE counterparties would (Members of the Margin Subcommittee stated that have to prepare for compliance with the the divergence between the U.S. and international the three-month calculation period for IM requirements. Under the current requirements ‘‘creates complexity and confusion, Phase 5 required 64 observations while and leads to additional effort, cost and compliance rule, exchange of regulatory IM is global determinations based on month- challenges for smaller market participants that are end AANA calculations required only generally subject to margin requirements in required with respect to Phase 6 entities 44 beginning on September 1, 2021, which multiple global jurisdictions.’’). three observations. The Report further starts the last phase of the phased 41 The Commission acknowledges that the stated that a month-end AANA compliance schedule.39 The MSE for the burdens on market participants would not be fully calculation, by accounting for three eliminated, and in fact, may increase, for those periodic dates on which AANA would entities that enter into uncleared swaps with SDs 38 If the July 2020 Proposal becomes final prior to and MSPs that are subject to the prudential this notice of proposed rulemaking, all references regulators’ margin requirements for uncleared 42 See section 752 of the Dodd-Frank Wall Street to 2022 for the purpose of referring to the period swaps and come within the scope the prudential Reform and Consumer Protection Act, Public Law after the end of the last phase of compliance under regulators’ margin regime, as the prudential 111–203, 124 Stat. 1376 (2010). the phased compliance schedule should be deemed regulators have not revised their rules consistent 43 See supra note 24. automatically superseded and replaced with 2023. with the amendments proposed herein. 44 Margin Subcommittee Report at 52.

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be calculated, would mitigate the risk these financial products because of their In the Commission’s preliminary that market participants would adjust terms, such as tenure and time of view, based on the OCE analysis exposures to avoid the CFTC’s margin execution, may be undercounted or discussed above, switching from daily requirements, and that it would be excluded from the AANA calculation if AANA calculations to month-end neither practicable nor financially month-end dates are used to determine calculations for the purpose of desirable for parties to tear-up their MSE.49 The proposed month-end AANA determining MSE would likely have a positions on a recurring basis prior to calculation method therefore may not limited impact on the protections each month-end AANA calculation, as it account for products that are required to provided by the CFTC Margin Rule. The would interfere with their hedging be included in the calculation. Commission also preliminary believes strategies and cause them to incur The Commission preliminarily that the benefits of aligning with the realized profit and loss.45 believes that the notional amounts BCBS/IOSCO Framework and the The Commission believes that it is associated with products that may be approach of other major market appropriate to propose the month-end excluded from the AANA calculation jurisdictions outweigh the window AANA calculation method to determine may be relatively low and that their dressing concerns.51 whether an FEU has MSE because such contribution to the AANA calculation The Commission requests comments method of calculation would align the for the purpose of determining MSE regarding the general approach CFTC’s approach with the BCBS/IOSCO may be insignificant. In this regard, in proposed for changes to Commission Framework and that of other major an exercise undertaken by the regulation 23.151. The Commission also market jurisdictions. The Commission Commission’s Office of the Chief specifically requests comment on the notes that there is the risk that market following questions: Economist (‘‘OCE’’) on a sample of days, • participants that are counterparties to the OCE estimated (setting aside the Are the proposed amendments CSEs may ‘‘window dress’’ their window dressing issue) that appropriate in light of the CFTC’s exposures by adjusting their exposures calculations based on end-of-month overall approach to uncleared margin as they approach the month-end date for AANA would yield fairly similar results requirements and the manner in which the calculation of AANA. In doing so, as calculations based on the current firms currently undertake the an FEU would no longer have to post daily AANA approach. Based on 2020 calculation of AANA to determine MSE? and collect IM with all CSEs for all its swap data, the OCE estimated that 492 Should the Commission consider any uncleared swaps for at least twelve entities of the 514 entities that would alternative to aligning with the BCBS/ months from the date on which come into scope during Phase 6 based IOSCO Framework with respect to the compliance with the IM requirements on the current methodology would also methodology for the AANA calculation 46 would have been initially required. come into scope in the event that the and the timing for compliance after the The Commission believes that it has Commission were to adopt the proposed last phase of compliance? • Should the Commission proceed to sufficient tools at its disposal to address methodology. Put differently, all but 22 adopt the proposed amendments if the the ‘‘window dressing’’ concern. In of the entities that are above MSE under U.S. prudential regulators do not adopt particular, the Commission notes that the current methodology would also be similar regulatory changes? Would this Commission regulation 23.402(a)(ii) above MSE under the proposed divergence between the CFTC and the requires CSEs to have written policies methodology. In addition, there are 20 prudential regulators’ margin and procedures to prevent their evasion, entities that would be in scope under requirements for uncleared swaps affect or participation in or facilitation of an the proposed methodology, but would evasion, of any provision of the CEA or market participants? Is there a potential not be in scope under the current the Commission regulations.47 The for industry confusion if that were to be methodology, so that the aggregate Commission also reminds market the case? number of Phase 6 entities under the participants that are counterparties to • In adopting the CFTC Margin Rule, current and proposed methodologies CSEs that section 4b of the CEA the Commission stated that the daily differs only by two. In aggregate, the two prohibits any person entering into a AANA calculation method was methodologies would capture quite swap with another person from cheating intended to provide a more similar sets of entities. In addition, the or defrauding or willfully deceiving or comprehensive assessment of an FEU’s entities that fall out of scope applying attempting to deceive the other participation in the swaps markets. the month-end methodology tend to be person.48 Would the proposed month-end AANA among the smallest of the Phase 6 The Commission acknowledges that calculation method requiring the entities. That is, entities that are in- replacing the daily AANA calculation averaging of month-end dates during the scope under the current methodology method with the month-end AANA three-month calculation period be but not the proposed methodology calculation method for determining representative of a market participant’s average $6.95 billion in AANA, MSE could result in an AANA participation in the swaps markets? Is it calculation that is not fully compared to $20 billion for all Phase 6 50 representative of an entity’s entities. 51 The prudential regulators have not indicated participation in the swap markets. The whether they intend to amend their margin 49 current definition of MSE provides that For example, the Commission observes that requirements consistent with the BCBS/IOSCO certain physical commodity swaps such as Framework and the proposed amendments to the AANA must be calculated counting electricity and natural gas swaps are products for definition of MSE discussed herein. Below, the uncleared swaps, uncleared security- which a month-end AANA calculation might not Commission requests comment on the impact of based swaps, foreign exchange forwards, provide a comprehensive assessment of the full this potential regulatory divergence on market or foreign exchange swaps. Some of scope of an FEU’s exposure to those products. participants. Also of note, the U.S. Securities and 50 Note that the OCE calculation excludes Exchange Commission (‘‘SEC’’) has adopted a commodity swaps, and the examples of products for different approach that does not use MSE for 45 Id. which end-of-month calculations may be identifying entities that come within the scope of 46 As proposed, the MSE calculation would be undercounting tend to be in commodity swaps like the SEC margin requirements. See Capital, Margin, made annually on September 1 of each year and natural gas and electricity swaps. Overall, and Segregation Requirements for Security-Based would be in effect for the next twelve months after commodity swaps tend to represent less than 1% Swap Dealers and Major Security-Based Swap that date. of all swap trades. See BIS Statistic Explorer, Global Participants and Capital and Segregation 47 17 CFR 23.402(a)(ii). OTC derivatives market (July 30, 2020), https:// Requirements for Broker-Dealers, 84 FR 43872 (Aug. 48 7 U.S.C. 6b. stats.bis.org/statx/srs/table/d5.1?f=pdf. 22, 2019).

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possible that the proposed month-end requirements set out in Commission Commission believes that it is calculation would result in the regulation 23.154(b) or would need to be appropriate that the proposed exclusion or undercounting of certain approved by the swap entity’s amendment incorporate in the rule text products because of their terms, such as prudential regulator. two conditions set forth in the no-action tenure and time of execution, or for any Letter 19–29 sets out certain letter. Other conditions from the no- other reason, that are required to be situations in which DSIO would not action letter would not be reflected in included in the AANA calculation? recommend an enforcement action the rule text, because the Commission Could the calculation lead to skewed under Commission regulation believes that the conditions are results for entities that have an AANA 23.154(a)(1), which requires CSEs to adequately addressed by existing calculation on the three end-of-month calculate, on a daily basis, IM to be requirements under the Commission’s dates that is uncharacteristically high collected from a covered counterparty, regulations, as explained below. In compared to their typical positions? including swap entities and FEUs with addition, if the proposed amendment is • How likely and significant is the MSE. Letter 19–29 conveyed the staff’s adopted, the Commission notes that it risk that market participants may view that Cargill, the requester for relief, will monitor its implementation by ‘‘window dress’’ their exposures to could use the risk-based model CSEs and may consider further avoid the CFTC’s margin requirements? calculation of IM of a counterparty that rulemaking as appropriate. In the event that this is a significant is a swap entity to determine the First, consistent with Letter 19–29, impediment to an accurate calculation amount of IM to be collected from that the proposed rule text would require of AANA over a three month period, are counterparty and to determine whether that the applicable model meet the the existing tools at the Commission’s the IM threshold amount has been requirements of Commission regulation disposal sufficient to address this exceeded, which would require the 23.154(b) (requiring the approval of the concern? Are there additional steps the parties to have documentation use of the model by either the Commission should consider if the addressing the collection, posting, and Commission or the NFA), or that it be Commission were to implement the custody of IM. The proposed approved by a prudential regulator.59 month-end calculation methodology? amendment, consistent with Letter 19– Second, the proposed rule text would 29, would modify the requirement that provide that the CSE would be able to B. Commission Regulation 23.154— CSEs calculate the IM to be collected use the risk-based model calculation of Alternative Method of Calculation of IM from a swap entity counterparty and IM of a swap entity counterparty only if The CFTC Margin Rule requires CSEs would give CSEs the option to use such the uncleared swaps for which IM is to collect and post IM with covered counterparty’s risk-based IM calculation calculated are entered into for the counterparties.52 Commission to determine the amount of IM to be purpose of hedging the CSE’s own risk. regulation 23.154(a) directs CSEs to collected from the counterparty. In this context, the risk to be hedged calculate, on a daily basis, the IM The Commission acknowledges that would be the risk that the CSE would amount to be collected from covered expanding the use of the alternative incur when entering into swaps with counterparties and to be posted to FEU method in Letter 19–29 to a wider group non-swap entity counterparties. By counterparties with MSE.53 CSEs have of CSEs could raise some concerns. proposing to limit the application of this the option to calculate the IM amount Being able to rely on the IM risk-based alternative method of calculation of IM by using either a risk-based model or the calculation of a swap entity only to uncleared swaps entered into for standardized IM table set forth in counterparty, as would be permitted the purpose of hedging risk arising from Commission regulation 23.154(c)(1).54 under the proposal, CSEs may forgo swaps entered into with non-swap For a CSE that elects to use a risk-based altogether the adoption of a risk-based entities, the Commission would ensure model to calculate IM, Commission model and may be less incentivized to its narrow application. regulation 23.154(b)(1) requires the CSE monitor IM exposures on a regular basis. The Commission contrasts the risk of to obtain the written approval of the Without a model to compute its own IM, customer-facing swaps with the risk that Commission or a registered futures a CSE may lack reasonable means to CSEs incur when entering into a swap association 55 to use the model to verify the IM provided by its in a dealing capacity ‘‘to accommodate calculate IM required by the counterparty or recognize any shortfalls the demand’’ of a swap entity Commission’s margin requirements for in the IM calculation or flaws in the counterparty.60 The Commission uncleared swaps.56 counterparty’s risk-based model. As a believes that it would be inappropriate The Commission is proposing to result, the CSE may collect insufficient to allow a CSE to use the IM calculation amend Commission regulation 23.154(a) amounts of IM to offset counterparty of the swap entity counterparty in this along the lines of Letter 19–29 by risk. There is also the concern that the latter case. The Commission notes that adding proposed paragraph (a)(5). The swap entity calculating the IM for the the latter case (i.e., where the CSE is proposed paragraph would permit a CSE CSE may be conflicted,57 as it may have acting in a dealing capacity for a that enters into uncleared swaps with a a bias in favor of calculating and posting swap entity to use the swap entity’s lower amounts of IM to its CSE 59 The prudential regulators have not amended risk-based model calculation of IM in counterparty. their margin requirements for uncleared swaps In light of these concerns, Letter 19– consistent with the proposed amendment to lieu of its own IM calculation. The risk- Commission regulation 23.154(b) discussed herein. based model used for the calculation of 29 imposed certain conditions for the As such, the CFTC’s margin requirements would IM would need to satisfy the application of the relief.58 The diverge from the prudential regulators’ approach. Below, the Commission seeks comment on how this 57 regulatory divergence may impact market 52 The Commission notes, however, that the See 17 CFR 23.152. participants. 53 potential for conflict may be reduced as the swap See 17 CFR 23.154(a). entity, as a CFTC-registered SD or MSP, would be 60 See Further Definition of ‘‘Swap Dealer,’’ 54 See id. subject to Commission regulation 23.600, which ‘‘Security-Based Swap Dealer,’’ ‘‘Major Swap 55 See 17 CFR 23.154(b)(1)(i). In this context, the requires SDs and MSPs to establish a risk Participant,’’ ‘‘Major Security-Based Swap term ‘‘registered futures association’’ refers to the management program for the management and Participant’’ and ‘‘Eligible Contract Participant,’’ 77 National Futures Association (‘‘NFA’’), which is the monitoring of risk, including credit and legal risk, FR 30596, 30608 (May 23, 2012) (noting that a only futures association registered with the associated with their swaps activities. See 17 CFR distinguishing characteristic of swap dealers is Commission. 23.600. being known in the industry as being available to 56 See 17 CFR 23.154(b)(1)(i). 58 Letter 19–29 at 4. accommodate demand for swaps.).

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counterparty that is itself calculating concerning methods, procedures, rules, Commission believes that these IM) would occur in the inter-dealer and inputs, for determining the value of conditions are addressed by CSEs’ risk market for swaps. The Commission each swap at any time from execution management obligations under the CEA believes that a CSE participating in the to the termination, maturity, or and the Commission’s regulations. inter-dealer market in a dealing capacity expiration of such swap for the Section 4s(j)(2) of the CEA requires SDs should have the capacity to develop, purposes of complying with the margin and MSPs, including CSEs, to establish implement, and use an approved risk- requirements under section 4s(e) of the robust and professional risk based model. Act and regulations under this part.62 management systems adequate for the The Commission expects that the Regulation 23.504(b)(3)(i) also provides management of their day-to-day swap alternative method of calculation would that the documentation shall include business.66 In addition, Commission be used primarily by CSEs that are not credit support arrangements, including regulation 23.600 requires SDs and obtaining approval to use a risk-based initial and variation margin MSPs to establish and maintain a risk model for the calculation of IM but requirements, if any.63 management program to monitor and rather elect to use the table-based The last two conditions of Letter 19– manage risk associated with their swap calculation described in Commission 29 64 were designed to ensure that activities.67 regulation 23.154(c) for swaps with non- Cargill would undertake adequate risk To obtain relief under Letter 19–29, swap entity counterparties. The management of its uncleared swaps, Cargill also must ‘‘keep track of Commission anticipates that such CSEs notwithstanding the lack of a exceedances’’ and ‘‘[if] the exceedances would enter into uncleared swaps proprietary risk-based model and hence indicate that the Approved IM mostly with end-user, non-swap entity the inability to calculate IM, which is Calculation Method fails to meet the counterparties, and would then hedge representative of potential future relevant regulators’ standards, [Cargill] the risk of those swaps with uncleared exposure of uncleared swaps.65 The must take appropriate steps to ensure swaps entered into with a few swap compliance with its risk management entity counterparties. The CSEs and 62 17 CFR 23.504(b)(4)(i). obligations and address exceedances their swap entity counterparties would 63 Commission regulation 23.504(b)(1) further with its SD counterparty.’’ 68 The be required to exchange IM for the provides that the documentation shall include all purpose of this requirement is to ensure terms governing the trading relationship between uncleared swaps entered into for the the swap dealer or major swap participant and its that Cargill monitors, identifies, and purpose of hedging. Because counterparty, including without limitation terms addresses potential shortfalls in the maintaining a model would impose a addressing payment obligations calculation of amount of IM generated by the obligations upon termination valuation, and dispute disproportionate burden on the CSEs resolution. 17 CFR 23.504(b)(1). counterparty. Cargill must also report to relative to the discrete and limited 64 Letter 19–29 at 4. The last two conditions in the CFTC ‘‘any adjustments and nature of their uncleared swap Letter 19–29 (which refers to Cargill’s swap dealer enhancements . . . applied to the activities, the CSEs may not have a risk- as ‘‘CRM SD’’) read as follows: amount of IM calculated pursuant to the based model for the calculation of IM 4. To the extent CRM SD uses an SD Approved IM Calculation Method to counterparty’s IM calculation generated pursuant to and may opt to use instead the risk- an Approved IM Calculation Method, CRM SD must ensure [Cargill’s] collection of adequate based model calculation of their swap monitor the Approved IM Calculation Method’s amounts of IM.’’ entity counterparties. output, in particular, to ensure the sufficiency of The Commission preliminarily To obtain relief under Letter 19–29, the calculated IM amounts. CRM SD must keep believes that Commission regulation track of exceedances, that is, price movements Cargill, prior to using the risk-based above the amounts of IM generated pursuant to an 23.600 addresses these concerns by model calculation of IM of a swap entity Approved IM Calculation Method. If the requiring SDs and MSPs to account for counterparty, must agree with the exceedances indicate that the Approved IM credit risk in conducting their risk counterparty in writing that the IM Calculation Method being used fails to meet the relevant regulators’ standards, CRM SD must take oversight and to ensure compliance calculation will be provided to Cargill appropriate steps to ensure compliance with its risk with the CFTC margin requirements. In in a manner and time frame that would management obligations and address the the case of a CSE relying on the allow Cargill to comply with the CFTC exceedances with its SD counterparty. If any provisions of proposed paragraph (a)(5), Margin Rule and other applicable adjustments or enhancements are applied to the amount of IM calculated pursuant to the Approved adequate risk oversight would include Commission regulations, and that the IM Calculation Method to ensure CRM SD’s steps by the CSE to monitor, identify, calculation will be used to determine collection of adequate amounts of IM, CRM SD and address potential shortfalls in the the amount of IM to be collected from must provide written notice by email to NFA and amounts of IM generated by the the counterparty and to determine Commission staff at SwapsMarginModel@ NFA.Futures.Org and [email protected], counterparty on whose IM model the whether the IM threshold amount has respectively. CRM SD must also have an CSE is relying. While the Commission been exceeded, which would require independent risk management unit, as prescribed in does not propose to prescribe the CSE’s documentation addressing the posting, Commission regulation 23.600, perform an annual oversight process, it believes that a risk collection, and custody of IM. The review of the Approved IM Calculation Method’s output. CRM SD should be prepared to produce, management program that is unable to Commission preliminarily believes that upon request, records relating to the monitoring of identify or to address shortfalls in IM the documentation requirements in the Approved IM Calculation Method output and would be insufficient to comply with Commission regulations 23.158 and any other records demonstrating CRM SD’s ongoing Regulation 23.600. 23.504 address this no-action letter monitoring. 5. As part of its risk management program Moreover, Commission regulation condition. pursuant to Commission regulation 23.600, CRM SD 23.600 requires SDs and MSPs to Commission regulation 23.158(a) must independently monitor on an ongoing basis furnish to the Commission risk exposure requires CSEs to comply with the credit risk, including potential future exposure reports setting forth credit risk documentation requirements set forth in associated with uncleared swaps subject to the exposures and any other applicable risk 61 CFTC Margin Rule, to determine, among other Commission regulation 23.504. In things, whether CRM SD is approaching the $50 exposures relating to their swap turn, Commission regulation million IM Threshold with respect to a activities. Here again, the Commission 23.504(b)(4)(i) requires CSEs to have counterparty. believes that an adequate risk exposure written documentation reflecting the 65 See 17 CFR 23.154(b)(2) (explaining that IM is equal to the potential future exposure of the agreement with a counterparty uncleared swap or netting portfolio of uncleared 66 7 U.S.C. 6s(j)(2). swaps covered by an eligible master netting 67 See 17 CFR 23.600. 61 17 CFR 23.158(a). agreement.). 68 Letter 19–29 at 4.

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report pursuant to Regulation 23.600 • The Commission believes that the Accordingly, the Chairman, on behalf would require a CSE to identify any requirement to furnish risk exposure of the Commission, hereby certifies adjustments and enhancements to the reports under Commission regulation pursuant to 5 U.S.C. 605(b) that the amount of IM calculated pursuant to the 23.600, while not matching exactly all proposed amendments will not have a risk-based model of its swap entity the terms of the CFTC notification significant economic impact on a counterparty to ensure the CSE’s required by Letter 19–29, addresses the substantial number of small entities. collection of adequate amounts of IM. overall purpose of the requirement. A. Paperwork Reduction Act The Commission requests comment Should the Commission include a more regarding the proposed amendment to tailored reporting requirement in the The Paperwork Reduction Act of 1995 Commission regulation 23.154(a). The proposed amendment? (‘‘PRA’’) 75 imposes certain Commission also specifically requests • Does the proposed amendment to requirements on Federal agencies, comment on the following questions: effectively codify Letter 19–29 include including the Commission, in • The proposed amendment to sufficient risk management tools in connection with their conducting or Regulation 23.154(a) would allow a CSE place to guard against any potential sponsoring any collection of to use the risk-based model calculation conflict of interest arising from the fact information, as defined by the PRA. The of IM of a swap entity counterparty to that a CSE will rely on its swap entity Commission may not conduct or comply with Regulation 23.154(a)(1), counterparty’s IM calculation to sponsor, and a person is not required to which requires CSEs to calculate IM to determine the amount of IM to be respond to, a collection of information be collected from counterparties. The collected from such counterparty? unless it displays a currently valid alternative method of IM calculation • Should the Commission proceed to Office of Management and Budget would be available only with respect to adopt the proposed amendment to control number. The proposed uncleared swaps entered into for the effectively codify Letter 19–29 if the amendments contain no requirements purpose of hedging. Should this U.S. prudential regulators do not adopt subject to the PRA. restriction be eliminated, narrowed, or similar regulatory changes? Would this B. Cost-Benefit Considerations expanded? If the restriction should be divergence between the CFTC and the narrowed or expanded, please describe prudential regulators’ margin Section 15(a) of the CEA requires the any appropriate modifications to the requirements for uncleared swaps Commission to consider the costs and restriction. If it should be eliminated, impact market participants? Is there a benefits of its actions before please explain why. potential for industry confusion if that promulgating a regulation under the • The proposed amendment to were to be the case? CEA.76 Section 15(a) further specifies Regulation 23.154(a) intends to provide that the costs and benefits shall be an alternative method for the III. Administrative Compliance evaluated in light of the following five calculation of IM for CSEs with highly The Regulatory Flexibility Act broad areas of market and public specialized and discrete swap business (‘‘RFA’’) requires Federal agencies to concern: (1) Protection of market models that primarily enter into swaps consider whether the rules they propose participants and the public; (2) with non-SDs or MSPs but, enter into will have a significant economic impact efficiency, competitiveness and offsetting swaps with SDs and MSPs to on a substantial number of small entities financial integrity of futures markets; (3) hedge the risk of such customer-facing and, if so, provide a regulatory price discovery; (4) sound risk swaps, and opt to use the standardized flexibility analysis respecting the management practices; and (5) other IM table set forth in Commission impact.69 Whenever an agency public interest considerations. The regulation 23.154(c) rather than adopt publishes a general notice of proposed Commission considers the costs and and maintain a risk-based model for the rulemaking for any rule, pursuant to the benefits resulting from its discretionary calculation of IM. As such, the use of notice-and-comment provisions of the determinations with respect to the the alternative method of calculation is Administrative Procedure Act,70 a section 15(a) considerations, and seeks not expected to be widespread. Is this a regulatory flexibility analysis or comments from interested persons reasonable expectation, or would this certification typically is required.71 The regarding the nature and extent of such alternative method of IM calculation be Commission previously has established costs and benefits. likely to be used by all CSEs or a larger certain definitions of ‘‘small entities’’ to The Commission is proposing to subset of CSEs than anticipated under be used in evaluating the impact of its amend the CFTC Margin Rule to revise the proposed rule? If a larger subset, regulations on small entities in the method for calculating AANA for please describe the characteristics of accordance with the RFA.72 The determining whether an FEU has MSE this wider group. Should the availability proposed amendments only affect and the timing for determining whether of this alternative method of IM certain SDs and MSPs and their an FEU has MSE after the end of the calculation include all classes of swaps, counterparties, which must be eligible phased compliance schedule (‘‘timing of or only a subset (e.g., commodity contract participants (‘‘ECPs’’).73 The post-phase-in compliance’’). These swaps)? Commission has previously established amendments would align the CFTC • How many CSEs would likely take that SDs, MSPs and ECPs are not small Margin Rule with the BCBS/IOSCO advantage of this amendment? How entities for purposes of the RFA.74 Framework with respect to these many of these CSEs do not trade matters. uncleared swaps currently? How many 69 5 U.S.C. 601 et seq. The Commission is also proposing to use the standardized IM table? How 70 5 U.S.C. 553. The Administrative Procedure amend Commission regulation 23.154(a) many use a model developed by a third- Act is found at 5 U.S.C. 500 et seq. along the lines of Letter 19–29, and thus 71 See 5 U.S.C. 601(2), 603, 604, and 605. allow CSEs to use the risk-based model party vendor? How many of the Phase 72 See Registration of Swap Dealers and Major 5 entities are likely to take advantage of Swap Participants, 77 FR 2613 (Jan. 19, 2012). calculation of IM of a counterparty that this amendment? What might they do 73 Pursuant to section 2(e) of the CEA, 7 U.S.C. for IM calculation absent the 2(e), each counterparty to an uncleared swap must Participant,’’ ‘‘Major Security-Based Swap be an ECP, as defined in section 1a(18) of the CEA, Participant’’ and ‘‘Eligible Contract Participant,’’ 77 amendment? To the extent possible, 7 U.S.C. 1a(18). FR 30596, 30701 (May 23, 2012). please provide a basis for these 74 See Further Definition of ‘‘Swap Dealer,’’ 75 44 U.S.C. 3501 et seq. estimates. ‘‘Security-Based Swap Dealer,’’ ‘‘ ‘Major Swap 76 7 U.S.C. 19(a).

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is a swap entity.77 The proposed rule Commission does not specifically refer aggregate, pose less systemic risk than would make this accommodation to matters of location, the below entities in previous phases. Because available only with respect to uncleared discussion of costs and benefits refers to these entities are smaller, they swaps entered into for the purpose of the effects of these proposed presumably have fewer resources to hedging swap risk. amendments on all activity subject to devote to IM compliance and hence The baseline against which the the proposed amended regulations, would benefit from the alignment of the benefits and costs associated with the whether by virtue of the activity’s method of calculation of AANA across proposed amendments are compared is physical location in the United States or jurisdictions without contributing the uncleared swaps markets as they by virtue of the activity’s connection substantially to systemic risk. exist today and the currently applicable with activities in, or effect on, U.S. For Phase 6 entities with average timing for compliance with the IM commerce under section 2(i) of the AANA between $8 billion and $50 requirements after the expiration of the CEA.80 billion that will begin collecting initial phased compliance schedule. margin on September 1, 2021, moving Concerning the amendment of 1. Benefits the calculation period from June, July, Commission regulation 23.154(a), the By harmonizing the method for and August 2020 to March, April, and Commission believes that to the extent calculating AANA for determining MSE May 2021 would better align with market participants may have relied on and the timing of post-phase-in current practices. While the Letter 19–29, the actual costs and compliance with the BCBS/IOSCO Commission cannot anticipate exactly benefits of the proposed amendment, as Framework, the proposed amendment how the second quarter of 2021 will realized by the market, may not be as would create a benefit because it would differ from the third quarter of 2020, significant at a practical level. With reduce complexity—for example, the based on comparable past experience, respect to the proposed amendment to proposed AANA month-end calculation the OCE estimates that approximately align aspects of the CFTC Margin Rule would require consideration of only 75–100 entities would come into scope, with the BCBS/IOSCO Framework, the three observation dates rather than daily and a similar number would fall below Commission acknowledges that the AANAs over the three-month the threshold by virtue of moving the Dodd-Frank Act calls on the CFTC to calculation period—and the potential calculation period. The adjusted ‘‘consult and coordinate on the for confusion in the application of the calculation period would reduce the establishment of consistent margin requirements. Firms would no regulatory burden for firms that have international standards’’ with respect to longer need to undertake separate reduced their MSE below the $8 billion the regulation of swaps.78 The proposed AANA calculations using different threshold while requiring the collection rule therefore would advance the calculation periods, nor would they of margin for those firms that have Congressional mandate to harmonize need to conform to two separate increased their swaps business above the CFTC’s requirements with compliance timings, varying according the threshold. While aggregate AANA international standards, thereby to the location of their swap for firms that fall into or out of scope is removing a regulatory impediment that counterparties and jurisdictional small relative to the overall market (less might hinder the competitiveness of the requirements applicable to the than one percent of total aggregate U.S. swaps industry.79 counterparties. AANA), moving the calculation period The Commission notes that the The proposed amendment would close to the compliance date may have consideration of costs and benefits impact FEUs with average AANA a significant impact on the entities that below is based on the understanding between $8 billion and $50 billion have reduced their MSE. that the markets function (Phase 6 entities) that come into the The Commission also notes that the internationally, with many transactions scope of compliance with the IM benefits of alignment with the BCBS/ involving U.S. firms taking place across requirements under the CFTC Margin IOSCO Framework will continue to international boundaries; with some Rule in the last compliance phase accrue in future years, as the Commission registrants being organized beginning on September 1, 2021, as well determination of MSE for an FEU under outside of the United States; with as those entities that come into scope the CFTC Margin Rule is an annual leading industry members typically after the end of the last compliance undertaking, triggered by the entry into conducting operations both within and phase. The Commission believes that an uncleared swap between the FEU outside the United States; and with the proposed amendment would benefit and a CSE counterparty and the need to industry members commonly following these entities, which, given their level of determine whether the FEU has MSE, substantially similar business practices swap activity, pose a lower risk to the which triggers the application of the IM wherever located. Where the uncleared swaps market and the U.S requirements and the exchange of financial system in general than entities regulatory IM between a CSE and a FEU 77 For the definition of the term ‘‘swap entity,’’ who came into scope in earlier phases. for their uncleared swap transactions. see supra note 34. The OCE has estimated that there are With respect to the amendment of 78 See supra note 42. approximately 514 of such entities Commission regulation 23.154(a), the 79 A starting point in determining the potential representing 4% of total AANA across Commission believes that the uncleared benefit of alignment with the BCBS/IOSCO 81 swap markets would benefit from the Framework is various statutory provisions where all phases. This means that the the U.S. Congress has called on the CFTC and other proposed amendment addresses entities extension of the targeted relief provided financial regulators to align U.S. regulatory that tend to engage in less uncleared to Cargill, the requester in Letter 19–29, requirements with international standards. For swap trading activity and, and in the to a wider group of CSEs with similar example, the Commodity Futures Modernization unique swap business models. In taking Act of 2000 (‘‘CFMA’’) focused on the potential threat to competitiveness for U.S. industry where 80 7 U.S.C. 2(i). a no-action position, DSIO took account there is divergence with international standards. In 81 Using March–May of 2020 as the calculation of Cargill’s representation that its swap particular, section 126 of the CFMA provides that period. The methodology for calculating AANA is trading activity primarily involved regulatory impediments to the operation of global described in Richard Haynes, Madison Lau, & Bruce physical agricultural commodities and business interests can compromise the Tuckman, Initial Margin Phase 5, at 4 (Oct. 24, competitiveness of United States businesses. See 2018), https://www.cftc.gov/sites/default/files/ certain other asset classes and that it CFMA section 126(a), Appendix E of Public Law About/Economic%20Analysis/ ‘‘may maintain positions that require 106–554, 114 Stat. 2763 (2000). Initial%20Margin%20Phase%205%20v5_ada.pdf. collection of IM from SDs.’’ Cargill

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further stated that given the highly Because the proposed amendment certain combinations of tenure and time specialized and discrete nature of its would align the AANA calculation for of execution, such as those often present swap business, risk-based modeling determining MSE with BCBS/IOSCO’s in some intra-month natural gas and would impose a disproportionate AANA calculation and the compliance electricity swaps.84 The Commission burden. date would remain unchanged, the also notes the potential that market The more widespread availability of Commission believes that the cost participants might ‘‘window dress’’ the alternative method of calculation of would be mitigated. In particular, the their exposures to avoid MSE status and IM provided by regulation 23.154(a), as Commission notes market participants’ compliance with the CFTC’s margin proposed to be amended, may statements indicating that the requirements. At the same time, it is incentivize some market participants to differences in the U.S. regulations could possible that the month-end expand their swap business. In create complexity and confusion and methodology, which uses only three particular, given that certain market lead to additional effort, cost and data points, could result in some participants would have the option to compliance challenges for smaller entities having an AANA calculation on forgo the cost of risk-based modeling, market participants that are generally the three end-of-month dates that is this potential reduction in compliance subject to margin requirements in uncharacteristically high relative to costs may encourage certain entities to multiple global jurisdictions.83 their typical positions. increase their swaps trading. This may The Commission further notes that If products are excluded from the be especially true after September 1, the proposed amendment to the timing AANA calculation, or if exposures are 2021, as a large number of entities will of post-phase-in compliance would ‘‘window dressed,’’ the month-end be newly-subject to mandatory defer compliance with the IM calculation may have the effect of margin.82 By increasing the pool of requirements with respect to uncleared deferring the time by which market potential swap counterparties, the swaps entered into by a CSE with an participants meet the MSE classification proposed amendment could enhance FEU that comes into the scope of IM resulting in additional swaps between competition, increase overall liquidity, compliance after the end of the last market participants and CSEs being and facilitate price discovery in the compliance phase. Under the current deemed legacy swaps that are not uncleared swaps markets. rule, FEUs with MSE as measured in subject to the IM requirements.85 This June, July, and August 2021 would may increase the level of counterparty 2. Costs come into the scope of compliance post- credit risk to the financial system. While While the proposed changes to the phase-in beginning on January 1, 2022. potentially meaningful, this risk would CFTC Margin Rule would have the On the other hand, under the proposed be mitigated because the legacy swap effect of creating efficiencies for market amendment, FEUs with MSE as portfolios would be entered into with participants, the Commission measured in March, April, and May FEUs that engage in lower levels of acknowledges that the changes would 2022 would be subject to compliance notional trading. also result in some costs. Among other beginning on September 1, 2022. As a Finally, given the possibility that the things, the proposed revision of the result, for FEUs with MSE in both U.S. prudential regulators may not AANA calculation period for periods, less collateral for uncleared adopt the changes to the method of determining MSE to align it with the swaps may be collected between calculation of AANA proposed in this BCBS/IOSCO AANA calculation period January 1, 2022, and September 1, 2022, rulemaking, there is the potential that would reduce the time frame for rendering uncleared swap positions firms that engage in swaps transactions determining whether an FEU is subject entered into during the nine-month with both CSEs and swaps dealers to the IM requirements and for period riskier, which could increase the subject to the margin requirements of preparing for compliance with the risk of contagion and the potential for the U.S. prudential regulators may incur requirements during the final phase-in systemic risk. Conversely, under the additional costs by continuing to have period of 2021. proposed amendment, a CSE would be to undertake their AANA calculations Under the current margin required to exchange IM with a under two different methods of requirements, in the period leading to previously in-scope FEU that fell below calculation. the final phase-in date of September 1, the MSE level by January 1, 2022, for However, the Commission 2021, FEUs would have a full year to nine months longer than the otherwise preliminarily is of the view that the prepare, as MSE for an FEU would be required. benefits of aligning with the BCBS/ determined by using the AANA for With respect to changing the daily IOSCO Framework outweigh these June, July and August of the prior year. AANA calculation method to a month- potential costs. In this regard, in the However, the proposed amendment to end calculation method for determining aforementioned OCE exercise utilizing a the period of calculation of AANA for MSE, the Commission acknowledges sample of days, the OCE estimated that determining MSE would result in that there are potential costs. The calculations based on end-of-month entities only having a three-month utilization of a month-end calculation advance notice in 2021, as AANA method could result in an AANA 84 See supra note 49. 85 would be calculated using the March, calculation that is not representative of Pursuant to Commission regulation 23.161, the a market participant’s participation in compliance dates for the IM and VM requirements April and May period of that year. under the CFTC Margin Rule are staggered across Entities would have a shorter time frame the swaps markets. As previously a phased schedule that extends from September 1, to engage in preparations to comply discussed, the proposed AANA month- 2016, to September 1, 2021. The compliance period with IM requirements, including, among end calculation may result in the for the VM requirements ended on March 1, 2017 exclusion or undercounting of certain (though the CFTC and other regulators provided other things, procuring rule-compliant guidance permitting a six-month period to documentation, establishing processes financial contracts that are required to implement the requirements following the for the exchange of regulatory IM, and be included in the calculation (e.g., implementation date), while the IM requirements setting up IM custodial arrangements. uncleared swaps, uncleared security- continue to phase in through September 1, 2021. An based swaps, foreign exchange forwards, uncleared swap entered into prior to an entity’s IM compliance date is a ‘‘legacy swap’’ that is not 82 Margin Requirements for Uncleared Swaps for or foreign exchange swaps) because of subject to IM requirements. See CFTC Margin Rule, Swap Dealers and Major Swap Participants, 85 FR 81 FR at 651 and Commission regulation 23.161. 17 41346 (July 10, 2020). 83 Margin Subcommittee Report at 49. CFR 23.161.

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AANA would yield fairly similar results adjust their systems to reflect changes in proposed rule, which would be as the calculations based on the current the calculation and update related narrowly tailored to make available the daily AANA approach (setting aside the financial infrastructure arrangements. alternative method of IM calculation set window dressing issue). Based on 2020 While requesting comments on this forth in Letter 19–29 only with respect swap data, the OCE estimated that issue, the Commission believes that the to uncleared swaps entered into for the approximately 492 entities of 514 cost of shifting the MSE calculation purpose of hedging. In addition, the entities that would come into scope period to the new time frame would be Commission notes that there are other during Phase 6 based on the current negligible, and the adoption of the requirements in the Commission’s methodology would also come into month-end AANA calculation method regulations that address the monitoring scope based on the proposed would likely be cost-reducing for of exposures and swap risk. methodology. Put differently, all but 22 impacted firms. 3. Section 15(a) Considerations of the entities that are above MSE under Regarding the amendment of the current methodology would also be Commission regulation 23.154(a), there In light of the foregoing, the CFTC has above MSE under the proposed may be associated costs, as CSEs would evaluated the costs and benefits of the methodology. In addition, there are 20 be allowed to rely on the risk-based proposal pursuant to the five entities that would be in scope under model calculation of IM computed by a considerations identified in section the proposed methodology, but would swap entity counterparty. Specifically, 15(a) of the CEA as follows: not be under the current methodology, the safeguard of requiring both the CSE (a) Protection of Market Participants and so that the aggregate number of Phase 6 and its SD counterparty to maintain a the Public entities differs only by two. In aggregate, margin model for any swap transaction The proposed rule would align the the two methodologies would capture that does not utilize the table-based CFTC Margin Rule’s method for quite similar sets of entities. In addition, method would be eliminated. A CSE calculating AANA for determining MSE the entities that fall out of scope when that relies on a counterparty’s risk-based and the timing of post-phase-in one changes methodology tend to be model calculations would thus avoid compliance with the BCBS/IOSCO among the smallest of the Phase 6 rigorous Commission requirements Framework. By aligning these entities. That is, entities that are in- relating to risk-based modeling,89 which scope under the current methodology requirements with the international may undercut the effectiveness of the standard, the proposed rule would but not the proposed methodology 90 CSE’s risk oversight. reduce the potential for complexity and average $6.95 billion in AANA, In addition, the safeguard of private confusion that can result from using compared to $20 billion for all Phase 6 market discipline that is inherent in entities.86 different AANA calculation methods having each counterparty develop its and different compliance schedules for Taking account of the small number own IM model, and therefore the ability of FEUs that would therefore have MSE market participants that may be subject for the parties to scrutinize each other’s to margin requirements in multiple and thus be subject to the Commission’s IM model and output, will not be IM requirements, the Commission jurisdictions. At the same time, the present given that under the proposed Commission recognizes that some firms believes that the potential exclusion of rule, a CSE would be permitted to rely certain financial products in may have already begun preparations to on the risk-based model calculation of a undertake AANA calculations under the determining MSE would have a limited swap entity counterparty. As a result, impact on the effectiveness of the CFTC existing requirements. The proposed there is the potential that insufficient rule may require them to adjust their Margin Rule. In addition, with respect amounts of IM would be generated by to the potential that a market participant calculations to reflect the new proposed the swap entity counterparty, which method for calculating AANA for might ‘‘window dress’’ its exposure, the may be attributable to a deficiency in Commission has sufficient regulatory determining MSE and to update the model or the fact that the swap infrastructure arrangements, increasing authority, including anti-fraud powers entity may be inherently conflicted and under section 4b of the CEA,87 to take the overall cost of compliance with the interested in generating lower amounts margin requirements. appropriate enforcement actions against of IM collectable by the CSE.91 Given any market participant that may engage Under the existing CFTC Margin Rule, that the CSE without a model may lack firms that are FEUs, beginning in Phase in deceptive conduct with respect to the adequate means to verify the amount of AANA calculation, and CSEs must also 6, which starts on September 1, 2021, IM produced by the swap entity would look back to the 2020 June– have written policies and procedures in counterparty, the CSE may not be place to prevent evasion or the August period to determine whether capable to contest it. As a result, they have MSE. As such, the firms facilitation of an evasion by an FEU insufficient amounts of IM may be 88 would have no less than twelve months counterparty. collected by the CSE to protect itself Roughly 514 entities, as estimated by to engage in preparations for the against the risk of default by the swap exchange of regulatory IM, by, among the OCE, would come into the scope of entity counterparty, increasing the risk the IM requirements beginning on other things, procuring rule-compliant of contagion and the potential for documentation, establishing processes September 1, 2021, and would be systemic risk. affected by the foregoing proposed and systems for the calculation, The Commission, however, believes collection and posting of IM collateral, amendments. In advance of the that these costs are mitigated by the September 1, 2021 compliance date, and setting up custodial arrangements. If the Commission determines to adopt many of these entities may engage in 89 See generally 17 CFR 23.154(b). the proposed amendment changing the planning and preparations relating to 90 But cf. 17 CFR 23.600 (requiring SDs and MSP the exchange of regulatory IM. With the to establish a robust risk management program for AANA calculation period for revision of the AANA method of the monitoring and management of their swaps determining MSE to March–May of the calculation, these entities may need to activities). current year, such firms would have 91 But cf. 17 CFR 23.600 (requiring swap entities only a three-month window to engage in to have a risk management program for the 86 See supra note 50. management and monitoring of risk associated with preparations to exchange IM. 87 7 U.S.C. 6b. their swaps, which may reduce the risk that such Nevertheless, the Commission notes 88 See 17 CFR 23.402(a)(ii). entities may act in a conflicted manner). that, under the existing requirements,

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after the end of the phased compliance counterparty, which may be insufficient amendment would apply only when schedule, firms would only have four because of model error or malfunction uncleared swaps are entered into for months in subsequent years since the or because the swap entity may be hedging, thus limiting widespread use calculation period for determining MSE inherently conflicted and may be and the potential for uncollateralized status would be June through August of interested in generating low amounts of uncleared swap risk. the prior year, with compliance starting IM collectable by the CSE. In turn, In addition, by providing an January 1 of the following year. In insufficient amounts of IM may be alternative to risk-based modeling and addition, because the proposed collected by the CSE to offset the risk of the associated costs, the proposed rule amendment would require only counterparty default, increasing the risk could encourage some market averaging three month-end dates rather of contagion and the potential for participants to expand their swap than averaging all business days during systemic risk. business. The proposed amendment the three-month calculation period, the The Commission believes that these would thus promote efficiency in the potential burdens of a shorter risks would be mitigated by the uncleared swaps market by increasing preparatory period for Phase 6 entities proposed rule, which would be the pool of swap counterparties and may be offset by the adoption of the narrowly tailored to permit reliance on fostering competition. On the other BCBS/IOSCO Framework’s less onerous a swap entity counterparty’s risk-based hand, the availability of an alternative calculation method. model calculation only with respect to less costly method of IM calculation Moreover, the proposed amendment uncleared swaps entered into for the may encourage entities to shift their would shift the timing of post-phase-in purpose of hedging. In addition, there trading to uncleared swaps from swaps compliance to September 1 of each year. are other requirements in the that can be cleared, potentially reducing As such, entities that otherwise would Commission’s regulations that address liquidity in the cleared swap markets. the monitoring of exposures and swap be required to exchange IM beginning (c) Price Discovery January 1, 2022, would be able to defer risk (i.e., Commission regulation 23.600, compliance to September 1, 2022.92 As which requires SDs and MSPs to adopt By aligning the CFTC Margin Rule a result, less collateral for uncleared a robust risk management program for and the BCBS/IOSCO Framework with swaps may be collected between the monitoring and management of risk respect to the AANA calculation January 1, 2022, and September 1, 2022, related to their swap activities). method for determining MSE and post- rendering the parties’ positions riskier phase-in compliance timing, the (b) Efficiency, Competitiveness, and proposed rule would reduce the burden during that nine-month period, which Financial Integrity of Markets could raise the risk of contagion and and confusion inherent in implementing increase the potential for systemic risk. The proposed rule would align the separate measures and processes to Firms that would have fallen out of CFTC Margin Rule’s AANA calculation address compliance in different scope by January 1, 2022 would also be method for determining MSE and the jurisdictions. The proposed rule could subject to compliance for an additional timing of post-phase-in compliance with thus incentivize more firms to enter into nine months. the BCBS/IOSCO Framework. As such, uncleared swap transactions, which Notwithstanding these potential costs, the proposed rule would reduce the would increase liquidity and lead to the Commission believes that the need, at least for entities not also more robust pricing that reflects market proposed changes advance the undertaking swaps with U.S. fundamentals. Commission’s goal, pursuant to prudentially regulated SDs, to undertake By amending Commission regulation statutory direction, of coordination and separate AANA calculations accounting 23.154(a), the Commission would harmonization with international for different calculation methods and to relieve certain CSEs from having to regulators. The costs that may arise as conform to separate compliance timings, adopt a risk-based margin model to a result of the proposed changes, as varying according to the location of calculate IM or use the standardized IM discussed above, would be mitigated by swap counterparties and jurisdictional table. Being able to rely on a the overall cost savings, as the need to requirements applicable to the counterparty’s risk-based model undertake separate calculations of MSE counterparties. As such, the proposed calculation of IM may encourage entities to address different requirements in changes would promote market to increase trading in uncleared swaps. different jurisdictions would be efficiency and would even the playing As a result, firms may take a more active field for market players, fostering obviated with respect to most role in the uncleared swap markets, competitiveness and reducing the jurisdictions. which would lead to increase liquidity The amendment of Commission incentive to engage in regulatory and enhance price discovery. On the regulation 23.154(a) would allow a CSE arbitrage by identifying more other hand, the proposed amendment to use the risk-based model calculation accommodating margin frameworks. may encourage entities to shift their The amendment of Commission of IM of a counterparty that is a swap trading from swaps that can be cleared, regulation 23.154(a) would allow CSEs entity. Without an alternative model, potentially reducing liquidity and price to rely on a swap entity counterparty’s the CSE may not be able to challenge the discovery in those markets. IM risk-based model calculations. amounts generated by the swap entity Without a model, the CSE would lack (d) Sound Risk Management 92 This would apply to entities that meet the MSE effective means to verify its The proposed rule would reduce the level based on their AANA during the June, July, counterparty’s IM calculations. As a need for firms to undertake separate and August 2021 period, and continue to have MSE result, if there are shortfalls in the AANA calculations using different in the March, April, and May 2022 period. Of output, the CSE may collect less IM methods and to conform to separate course, changing the calculation period to the March, April, and May 2022 period may lead to the collateral to offset the risk of default by compliance timing, allowing firms to inclusion of entities whose AANA is below MSE in the counterparty, which could increase engage in sound risk management by the June, July, and August 2021 period, but rises to the risk of contagion, threatening the focusing on more substantive the MSE level or above by the March, April, and integrity of the U.S. financial markets. requirements. May 2022 period. The OCE estimated that Under the current rule, after the last approximately 75–100 entities typically move from The Commission, however, believes that one side of the MSE threshold to the other between the proposed rule is sufficiently targeted phase of compliance, FEUs would be measurement periods. to mitigate these risks. The proposed subject to IM compliance beginning on

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January 1, 2022. The proposed rule without developing its own model, the association established pursuant to would defer such compliance until CSE may lack reasonable means to section 17 of this Act.93 September 1, 2022. Uncleared swaps verify the IM provided by its The Commission believes that the entered between January 1, 2022, and counterparty, recognize shortfalls in the public interest to be protected by the September 1, 2022, may be IM calculation, and identify potential antitrust laws is generally to protect uncollateralized. As such, less collateral flaws in the swap entity counterparty’s competition. The Commission requests may be collected, and positions created risk-based model. As a result, comment on whether the proposed during that nine-month period may be insufficient amounts of IM may be amendments implicate any other riskier, increasing the risk of contagion collected by the CSE to protect itself specific public interest to be protected and systemic risk. The Commission against the risk of default by the swap by the antitrust laws. notes, however, that keeping the January entity counterparty, increasing the risk The Commission has considered the 1, 2022 compliance date could likewise of contagion and the potential for proposed amendments to determine result in the collection of less collateral. systemic risk. The Commission, whether they are anticompetitive, and Some FEUs, after coming into scope however, believes that these risks are has preliminarily identified no during the last phase of compliance, mitigated because, under the proposed anticompetitive effects. The may exit MSE status on January 1, 2022, amendment, CSEs would be able to use Commission requests comment on as their AANA during the relevant a counterparty’s risk-based model IM whether these rule proposals are calculation period may decline below calculation only with respect to anticompetitive and, if they are, what the MSE threshold, and CSEs entering uncleared swaps entered into for the the anticompetitive effects are. into uncleared swaps with these FEUs purpose of hedging. In addition, the Because the Commission has would no longer be required to Commission notes that there are other preliminarily determined that the exchange IM with the FEUs. requirements in the Commission’s proposed amendments are not Also, it is possible that under the regulations that address the monitoring anticompetitive and have no proposed month-end method for of exposures and swap risk. anticompetitive effects, the Commission calculating AANA to determine MSE, has not identified any less competitive FEUs trading certain financial products (e) Other Public Interest Considerations means of achieving the purposes of the may avoid MSE status, as month-end The Commission believes that the Act. The Commission requests comment calculations may not capture certain proposed amendments to align the on whether there are less financial products that are required to CFTC Margin Rule with the BCBS/ anticompetitive means of achieving the be included in the calculation. As IOSCO Framework would promote relevant purposes of the Act that would result, CSEs transactions with such harmonization with international otherwise be served by adopting the FEUs would not be subject to the IM regulatory requirements and would proposed amendments. requirements and may be insufficiently reduce the potential for regulatory List of Subjects in 17 CFR Part 23 collateralized, increasing the risk of arbitrage. However, given that the U.S. contagion and systemic risk. prudential regulators may not amend Capital and margin requirements, Conversely, because more than 96% of their margin requirements in line with Major swap participants, Swap dealers, FEUs are unlikely to have MSE, as the proposed amendments, the Swaps. estimated by the OCE, and come within possibility exists that the CFTC and U.S. For the reasons stated in the the scope of the IM requirements, the prudential regulators’ differing rules preamble, the Commodity Futures exclusion of such products would have may induce certain firms to undertake Trading Commission proposes to amend a limited impact on the effectiveness of swaps with particular SDs based on 17 CFR part 23 as set forth below: the Commission’s IM requirements. which U.S. regulatory agency is Moreover, month-end AANA responsible for setting margin PART 23—SWAP DEALERS AND calculations compared to daily AANA requirements for such SDs. MAJOR SWAP PARTICIPANTS calculations may be more susceptible to ‘‘window dressing’’ and less conducive Request for Comments on Cost-Benefit ■ 1. The authority citation for part 23 to sound risk management. FEUs may Considerations. The Commission invites continues to read as follows: public comment on its cost-benefit manage their exposures as they Authority: 7 U.S.C. 1a, 2, 6, 6a, 6b, 6b–1, approach the month-end date during the considerations, including the section 15(a) factors described above. 6c, 6p, 6r, 6s, 6t, 9, 9a, 12, 12a, 13b, 13c, 16a, three month calculation period to avoid 18, 19, 21. MSE status. The Commission, however, Commenters are also invited to submit Section 23.160 also issued under 7 U.S.C. notes that it has sufficient regulatory any data or other information they may 2(i); Sec. 721(b), Pub. L. 111–203, 124 Stat. authority, including anti-fraud powers have quantifying or qualifying the costs 1641 (2010). under section 4b of the CEA, to take and benefits of the proposed ■ amendments. 2. In § 23.151, revise the definition of appropriate enforcement actions against ‘‘Material swaps exposure’’ to read as any market participant that may engage C. Antitrust Laws follows: in deceptive conduct with respect to the AANA calculation, and CSEs must also Section 15(b) of the CEA requires the § 23.151 Definitions applicable to margin have written policies and procedures in Commission to take into consideration requirements. place to prevent evasion or the the public interest to be protected by the * * * * * facilitation of an evasion by an FEU antitrust laws and endeavor to take the Material swaps exposure for an entity counterparty. least anticompetitive means of means that, as of September 1 of any By allowing CSEs to use the risk- achieving the purposes of this Act, in year, the entity and its margin affiliates based model calculation of a swap issuing any order or adopting any have an average month-end aggregate entity counterparty consistent with Commission rule or regulation notional amount of uncleared swaps, Letter 19–29, CSEs may no longer be (including any exemption under section uncleared security-based swaps, foreign incentivized to adopt their own risk- 4(c) or 4c(b)), or in requiring or exchange forwards, and foreign based models. If a CSE uses a approving any bylaw, rule or regulation counterparty’s IM model calculation of a contract market or registered futures 93 7 U.S.C. 19(b).

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exchange swaps with all counterparties Appendix 2—Supporting Statement of and the Board of the International for March, April, and May of that year Commissioner Dawn D. Stump Organization of Securities Commissions 2 that exceeds $8 billion, where such Overview (‘‘BCBS/IOSCO’’) on which they are based, were designed primarily to ensure the amount is calculated only for the last I am pleased to support the proposed exchange of margin between the largest business day of the month. An entity rulemaking that the Commission is issuing financial institutions for their uncleared shall count the average month-end with respect to the definition of ‘‘material swap transactions with one another. These aggregate notional amount of an swap exposure’’ and an alternative margin institutions and transactions are already uncleared swap, an uncleared security- calculation method in connection with the subject to uncleared margin requirements. based swap, a foreign exchange forward, Commission’s margin requirements for Pursuant to the phased implementation or a foreign exchange swap between the uncleared swaps. schedule of the Commission’s rules and the This proposed rulemaking addresses BCBS/IOSCO Framework, though, a different entity and a margin affiliate only one recommendations that the Commission has universe of market participants—presenting time. For purposes of this calculation, received from its Global Markets Advisory unique considerations—is coming into scope an entity shall not count a swap that is Committee (‘‘GMAC’’), which I am proud to of the margin rules. It is only now, as we exempt pursuant to § 23.150(b) or a sponsor, and is based on a comprehensive enter into the final phases of the security-based swap that qualifies for an report prepared by GMAC’s Subcommittee on implementation schedule, that the exemption under section 3C(g)(10) of Margin Requirements for Non-Cleared Swaps Commission’s uncleared margin rules will (‘‘GMAC Margin Subcommittee’’).1 It apply to a significant number of financial the Securities Exchange Act of 1934 (15 demonstrates the value added to the end-users, and we have a responsibility to U.S.C. 78c–3(g)(4)) and implementing Commission’s policymaking by its Advisory make sure they are fit for that purpose. regulations or that satisfies the criteria Committees, in which market participants Accordingly, now is the time we must in section 3C(g)(1) of the Securities and other interested parties come together to explore whether the regulatory parameters Exchange Act of 1934 (15 U.S.C. 78– provide us with their perspectives and that we have applied to the largest financial c3(g)(4)) and implementing regulations. potential solutions to practical problems. institutions in the earlier phases of margin The proposed rulemaking contains two implementation need to be tailored to * * * * * proposals, which have much to commend account for the practical operational ■ 3. In § 23.154, add paragraph (a)(5) to them. These proposals further objectives that challenges posed by the exchange of margin read as follows: I have commented on before: when one of the counterparties is a pension • The imperative of harmonizing our plan, endowment, insurance provider, § 23.154 Calculation of initial margin. margin requirements with those of our mortgage service provider, or other financial international colleagues around the world in end-user. (a) * * * order to facilitate compliance and International Harmonization To Enhance (5) A covered swap entity would be coordinated regulatory oversight; and • the benefits of codifying relief that has Compliance and Coordinated Regulation deemed to calculate initial margin as been issued by our Staff and re-visiting our The first proposal in this proposed required by paragraph (a)(1) of this rules, where appropriate. rulemaking would revise the calculation section if it uses the amount of initial I am very appreciative of the many people method for determining whether financial margin calculated by a counterparty that whose efforts have contributed to bringing end-users come within the scope of the is a swap entity and the initial margin this proposed rulemaking to fruition. First, initial margin (‘‘IM’’) requirements, and the amount is calculated using the swap the members of the GMAC, and especially timing for compliance with the IM entity’s risk-based model that meets the the GMAC Margin Subcommittee, who requirements after the end of the phased compliance schedule. These changes would requirements of paragraph (b) of this devoted a tremendous amount of time to quickly provide us with a high-quality report align certain timing and calculation issues section or is approved by a prudential on complex margin issues at the same time under the Commission’s margin rules with regulator, provided that initial margin they were performing their ‘‘day jobs’’ during both the BCBS/IOSCO Framework and the calculated in such manner is used only a global pandemic. Second, Chairman manner in which these issues are handled by with respect to uncleared swaps entered Tarbert, for his willingness to include this our regulatory colleagues in all other major into by the covered swap entity and the proposed rulemaking on the busy agenda that market jurisdictions. swap entity for the purpose of hedging he has laid out for the Commission for the Swap dealers must exchange IM with rest of this year. Third, my fellow respect to uncleared swaps that they enter the covered swap entity’s swaps with into with a financial end-user counterparty non-swap entity counterparties. Commissioners, for working with me on these important issues. And finally, the Staff that has ‘‘material swap exposure’’ (‘‘MSE’’). * * * * * of the Division of Swap Dealer and The Commission’s margin rules provide that after the last phase of compliance, MSE is to Issued in Washington, DC, on August 17, Intermediary Oversight (‘‘DSIO’’), whose tireless efforts have enabled us to advance be determined on January 1, and that an 2020, by the Commission. these initiatives to assure that our uncleared entity has MSE if it has more than $8 billion Robert Sidman, margin rules are workable for all and are in in average aggregate notional amount Deputy Secretary of the Commission. line with international standards, thereby (‘‘AANA’’) during June, July, and August of enhancing compliance consistent with our the prior year. By contrast, under the BCBS/ Note: The following appendices will not responsibilities under the Commodity IOSCO Framework and in virtually every appear in the Code of Federal Regulations. Exchange Act (‘‘CEA’’). other country in the world, an entity is determined to come into scope of the IM Background: A Different Universe Is Coming Appendices to Margin Requirements for requirement on September 1, and an entity Into Scope of the Uncleared Margin Rules has MSE if it has the equivalent of $8 billion Uncleared Swaps for Swap Dealers and in AANA 3 during March, April, and May of Major Swap Participants—Commission The Commission’s uncleared margin rules for swap dealers, like the Framework of the that year. Voting Summary and Commissioners’ Basel Committee on Banking Supervision The reason the United States is out-of-step Statements with the rest of the world on these timing and calculation issues is not because of any Appendix 1—Commission Voting 1 Recommendations to Improve Scoping and Summary Implementation of Initial Margin Requirements for Non-Cleared Swaps, Report to the CFTC’s Global 2 See generally BCBS/IOSCO, Margin On this matter, Chairman Tarbert and Markets Advisory Committee by the Subcommittee requirements for non-centrally cleared derivatives on Margin Requirements for Non-Cleared Swaps (July 2019), available at https://www.bis.org/bcbs/ Commissioners Quintenz, Behnam, Stump, (April 2020), available at https://www.cftc.gov/ publ/d475.pdf. and Berkovitz voted in the affirmative. No media/3886/GMAC_051920MarginSubcommittee 3 The MSE threshold under the BCBS/IOSCO Commissioner voted in the negative. Report/download. Framework is stated in euros rather than dollars.

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considered policy determination. Rather, it is calculation requirements because the counterparty that is a CFTC-registered swap simply the result of a quirk that the margin financial end-users to which the MSE dealer as the amount of IM that the former rules were adopted based on the BCBS/ definition applies are coming into scope of must collect from the latter. The proposing IOSCO Framework that was in effect at the the margin rules. Both Congress and the G– release states the Commission’s expectation time—but the BCBS/IOSCO Framework was 20 leaders recognized that because modern that the proposal generally would be used by revised two years later. swap markets are not bound by jurisdictional swap dealers with a discrete and limited In a further disconnect, the Commission’s borders, they cannot function absent swap business consisting primarily of margin rules look to the daily average AANA consistent international standards. entering into uncleared swaps with end-user during the three-month calculation period for Harmonization fosters both improved counterparties and then hedging the risk of determining MSE, whereas the BCBS/IOSCO compliance and effectively regulated markets those swaps with uncleared swaps entered Framework and other major market through coordinated oversight—which must into with a few swap dealers. jurisdictions base the AANA calculation on always be our goals. This proposal is subject to conditions that: an average of month-end dates during that During the unfortunate events of the (1) The applicable risk-based model be period. Yet, the proposing release notes that financial crisis, we learned that coordination approved by either the Commission, the the Commission’s Office of the Chief among global regulators, working towards a National Futures Association, or a prudential Economist has estimated that calculations common objective, is essential. That lesson regulator; and (2) the uncleared swaps for based on end-of-month AANA generally remains true today, and we are reminded that which a swap dealer uses the risk-based would yield similar results as calculations disregarding this reality has the potential to model calculation of IM of its swap dealer based on the Commission’s current daily weaken, rather than strengthen, the counterparty are entered into for the purpose AANA approach. effectiveness of our oversight and the of hedging the former’s own risk from The Commission is proposing to amend resilience of global derivatives markets. entering into swaps with non-swap dealer these timing and calculation provisions of its counterparties. uncleared margin rules to harmonize them The Benefits of Codifying Staff Relief and Simply put, not all swap dealers are with the BCBS/IOSCO Framework and the Re-Visiting Our Rules created equal. It is therefore appropriate to approach followed by our international The second proposal in the proposed tailor our uncleared margin regime colleagues around the world. Given the rulemaking would codify existing DSIO no- accordingly. Letter No. 19–29 recognized this global nature of the derivatives markets, we action relief in recognition of market should always seek international reality and smoothed the rough edges of our realities. Our Staff often has occasion to issue otherwise one-size-fits-all uncleared margin harmonization of our regulations unless a relief or take other action in the form of no- compelling reason exists not to do so—which rules, and I support the proposal to codify action letters, interpretative letters, or that result. is not the case here. advisories on various issues and in various Indeed, in the Dodd-Frank Act, Congress circumstances. This affords the Commission There Remains Unfinished Business specifically directed the Commission, ‘‘[i]n a chance to observe how the Staff action The report of the GMAC Margin order to promote effective and consistent operates in real-time, and to evaluate lessons global regulation of swaps,’’ to ‘‘consult and Subcommittee recommended several actions learned. With the benefit of this time and beyond those contained in this proposed coordinate with foreign regulatory authorities experience, the Commission should then on the establishment of consistent rulemaking in order to address the unique consider whether codifying such staff action challenges associated with the application of international standards with respect to the 6 into rules is appropriate. As I have said uncleared margin requirements to end-users. regulation . . . of swaps [and] swap entities before, ‘‘[i]t is simply good government to re- 4 Having been present for the development of . . .’’ And when the G–20 leaders met in visit our rules and assess whether certain Pittsburgh in the midst of the financial crisis the Dodd-Frank Act, I recall the concerns rules need to be updated, evaluate whether expressed by many lawmakers about in 2009, they, too, recognized that a workable rules are achieving their objectives, and solution for global derivatives markets applying the new requirements to end-users. identify rules that are falling short and The practical challenges with respect to demands coordinated policies and should be withdrawn or improved.’’ 7 5 uncleared margin that caused uneasiness cooperation. The proposal we are issuing today would The MSE proposal being issued today is back in 2009–2010 are now much more codify the alternative IM calculation method immediate as the margin requirements are true to the direction of Congress in the Dodd- set out in DSIO no-action Letter No. 19–29.8 Frank Act, and honors the commitment of the being phased in to apply to these end-users. It would provide that a swap dealer may use So, while I am pleased at the steps the G–20 leaders at the Pittsburgh summit. the risk-based model calculation of IM of a Differences between countries in the detailed Commission is taking in this proposed timing and calculation requirements with rulemaking, I hope that we can continue to 6 respect to uncleared margin compel See comments of Commissioner Dawn D. Stump work together to address the other during Open Commission Meeting on January 30, participants in these global markets to run recommendations included in the GMAC 2020, at 183 (noting that after several years of no- Margin Subcommittee’s report. The need to multiple compliance calculations—for no action relief regarding trading on swap execution particular regulatory reason. This not only facilities (‘‘SEFs’’), ‘‘we have the benefit of time and do so will only become more urgent as time forces market participants to bear experience and it is time to think about codifying marches on. unnecessary costs, but actually hinders some of that relief.... [T]he SEFs, the market Conclusion compliance with margin requirements participants, and the Commission have benefited because of the entirely foreseeable prospect from this time and we have an obligation to provide To be clear, these proposals to amend the of calculation errors in applying the different more legal certainty through codifying these Commission’s uncleared margin rules are not rules. provisions into rules.’’), available at https:// a ‘‘roll-back’’ of the margin requirements that www.cftc.gov/sites/default/files/2020/08/ apply today to the largest financial As noted above, now is the time to address 1597339661/openmeeting_013020_Transcript.pdf. this disjunction in MSE timing and 7 institutions in their swap transactions with Statement of Commissioner Dawn D. Stump for one another. Rather, the proposals reflect a CFTC Open Meeting on: (1) Final Rule on Position 4 See section 752(a) of the Dodd-Frank Wall Street Limits and Position Accountability for Security thoughtful refinement of our rules to align Reform and Consumer Protection Act, Public Law Futures Products; and (2) Proposed Rule on Public them with the rest of the international 111–203, 124 Stat. 1376 (2010) (‘‘Dodd-Frank Act’’). Rulemaking Procedures (Part 13 Amendments) regulatory community, and to take account of 5 See Leaders’ Statement from the 2009 G–20 (September 16, 2019), available at https:// specific circumstances in which they impose Summit in Pittsburgh, Pa. at 7 (September 24–25, www.cftc.gov/PressRoom/SpeechesTestimony/ substantial operational challenges (i.e., they 2009) (‘‘We are committed to take action at the stumpstatement091619. are not workable) when applied to other national and international level to raise standards 8 CFTC Letter No. 19–29, Request for No-Action market participants that are coming within together so that our national authorities implement Relief Concerning Calculation of Initial Margin the scope of their mandates. I look forward global standards consistently in a way that ensures (December 19, 2019), available at https:// to receiving public input on any a level playing field and avoids fragmentation of www.cftc.gov/LawRegulation/CFTCStaffLetters/ markets, protectionism, and regulatory arbitrage’’), letters.htm?title=&field_csl_letter_types_target_ improvements that can be made to the available at https://www.treasury.gov/resource- id%5B%5D=636&field_csl_divisions_target_ proposals to further enhance compliance center/international/g7-g20/Documents/pittsburgh_ id%5B%5D=596&field_csl_letter_year_ with the Commission’s uncleared margin summit_leaders_statement_250909.pdf. value=2019&=Apply. requirements.

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Appendix 3—Statement of These operational and other benefits justify MTA must be reflected in their required Commissioner Dan M. Berkovitz publishing the MSE and Initial Margin margin documentation. Under certain Proposal and the MTA Proposal in the scenarios, these separate MTAs could result I support issuing for public comments two Federal Register for public comment. in the exchange of less total margin than if notices of proposed rulemaking to improve However, I am concerned that specific initial and variation margin were aggregated. the operation of the CFTC’s Margin Rule.1 aspects of each of these proposed rules could The MSE and Initial Margin Proposal and The Margin Rule requires certain swap weaken the Margin Rule and increase risk by the MTA Proposal both articulate rationales dealers (‘‘SDs’’) and major swap participants creating a potentially larger pool of why the Commission preliminarily believes (‘‘MSPs’’) to post and collect initial and uncollateralized, uncleared swaps exposure. that the risks summarized above, and others 2 variation margin for uncleared swaps. The My support for finalizing these proposals noted in the proposals, may not materialize. Margin Rule is critical to mitigating risks in will depend on how the potential increased The Commission’s experience with relevant the financial system that might otherwise risks are addressed. staff no-action letters may also appear to arise from uncleared swaps. I support a One potential risk in the MSE and Initial lessen concerns around the proposals. While strong Margin Rule, and I look forward to Margin Proposal arises from amending the each item standing on its own may not be a public comments on the proposals, including definition of MSE to align it with the BCBS/ significant concern, the collective impact of whether certain elements of the proposals IOSCO framework.5 One element of the the proposed rules may be a reduction in the could increase risk to the financial system proposal would amend the calculation of the strong protections afforded by the 2016 and how the final rule should address such average daily aggregate notional amount Margin Rule—and an increase in risk to the risks. (‘‘AANA’’) of swaps. The proposed rule The proposals address: (1) The definition U.S. financial system. The Commission must would greatly reduce the number of days resist the allure of apparently small, of material swap exposure (‘‘MSE’’) and an used in the calculation, reducing it from an alternative method for calculating initial apparently incremental, changes that, taken average of all business days in a three month together, dilute the comprehensive risk margin (‘‘the MSE and Initial Margin period to the average of the last business day Proposal’’); and (2) the application of the framework for uncleared swaps. in each month of a three month period.6 The I look forward to public comments and to minimum transfer amount (‘‘MTA’’) for result would be that a value now calculated initial and variation margin (‘‘the MTA continued deliberation on what changes to across approximately 60+ data points (i.e., Proposal’’). They build on frameworks the MSE and Initial Margin Proposal and the business days) would be confined to only developed by the Basel Committee on MTA Proposal are appropriate. I thank three data points, and could potentially Banking Supervision and International Commissioner Stump, our fellow become less representative of an entity’s true Organization of Securities Commissions Commissioners, and staff of the Division of AANA and swaps exposure. Month-end (‘‘BCBS/IOSCO’’),3 existing CFTC staff no- Swap Dealer and Intermediary Oversight for trading adjustments could greatly skew the action letters, and recommendations made to their extensive engagement with my office on AANA average for an entity. the CFTC’s Global Markets Advisory these proposals. 4 When the Commission adopted the Margin Committee (‘‘GMAC’’). I thank [FR Doc. 2020–18303 Filed 9–22–20; 8:45 am] Commissioner Stump for her leadership of Rule in 2016, it rejected the MSE calculation BILLING CODE 6351–01–P the GMAC and her work to bring these issues approach now under renewed consideration. forward for the Commission’s consideration. U.S. prudential regulators also declined to Today’s proposed amendments to the follow the BCBS/IOSCO framework in this Margin Rule could help promote liquidity regard. The Commission noted in 2016 that DEPARTMENT OF HEALTH AND and competition in swaps markets by an entity could ‘‘window dress’’ its exposure HUMAN SERVICES and artificially reduce its AANA during the allowing the counterparties of certain end- 7 users to rely on the initial margin measurement period. Even in the absence of Food and Drug Administration calculations of the more sophisticated SDs window dressing, there are also concerns that short-dated swaps, including intra-month with whom they enter into transactions 21 CFR Parts 201 and 801 designed to manage their risks, subject to natural gas and electricity swaps, may not be safeguards. They would also address captured in a month-end calculation [Docket No. FDA–2015–N–2002] practical challenges in the Commission’s window. While the MSE and Initial Margin MTA rules that arise when an entity such as Proposal offers some analysis addressing RIN 0910–AI47 a pension plan or endowment retains asset these issues, it may be difficult to extrapolate managers to invest multiple separately market participants’ future behavior based on Regulations Regarding ‘‘Intended managed accounts (‘‘SMAs’’). Similar current regulatory frameworks. I look forward Uses’’ operational issues are addressed with respect to public comment on these issues. AGENCY to initial and variation margin MTA The MSE and Initial Margin Proposal and : Food and Drug Administration, calculations. the MTA Proposal each raise additional HHS. concerns that merit public scrutiny and ACTION: Proposed rule. comment. The MTA Proposal, for example, 1 Margin Requirements for Uncleared Swaps for would permit a minimum transfer amount of Swap Dealers and Major Swap Participants, 81 FR SUMMARY: The Food and Drug $50,000 for each SMA of a counterparty. In 636 (Jan. 6, 2016) (‘‘Margin Rule’’). Administration (FDA, the Agency, or the event of more than 10 SMAs with a single 2 See also Commodity Exchange Act (‘‘CEA’’) we) is proposing to amend its medical section 4s(e). The CEA, as amended by the Dodd- counterparty (each with an MTA of $50,000), Frank Act, requires the Commission to adopt rules the proposal would functionally displace the product ‘‘intended use’’ regulations. for minimum initial and variation margin for existing aggregate limit of $500,000 on a This action, if finalized, will amend uncleared swaps entered into by SDs and MSPs for particular counterparty’s uncollateralized FDA’s regulations describing the types which there is no prudential regulator. Although risk for uncleared swaps. The proposal of evidence relevant to determining addressed in the rules, there are currently no would also state that if certain entities agree whether a product is intended for use as registered MSPs. to have separate MTAs for initial and 3 a drug or device under the Federal BCBS/IOSCO, Margin requirements for non- variation margin, the respective amounts of centrally cleared derivatives (July 2019), https:// Food, Drug, and Cosmetic Act (FD&C www.bis.org/bcbs/publ/d475.pdf. The BCBS/IOSCO Act), the Public Health Service Act (PHS 5 framework was originally promulgated in 2013 and 17 CFR 23.151. Act), and FDA’s implementing later revised in 2015. 6 Existing Commission regulation 23.151 specifies 4 Recommendations to Improve Scoping and June, July, and August of the prior year as the regulations, including whether an Implementation of Initial Margin Requirements for relevant calculation months. The proposed rule approved or cleared medical product is Non-Cleared Swaps, Report to the CFTC’s Global would amend this to March, April, and May of the intended for a new use. This action will Markets Advisory Committee by the Subcommittee current year. The proposed rule would also amend also repeal and replace the portions of on Margin Requirements for Non-Cleared Swaps, the calculation date from January 1 to September 1. April 2020, https://www.cftc.gov/media/3886/ These amendments would be consistent with the a final rule issued on January 9, 2017, GMAC_051920MarginSubcommitteeReport/ BCBS/IOSCO framework. that never became effective. This action download. 7 See CFTC Margin Rule, 81 FR at 645. is intended to provide direction and

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clarity to regulated industry and other Instructions: All submissions received Table of Contents stakeholders. must include the Docket No. FDA– I. Executive Summary DATES: Submit either electronic or 2015–N–2002 for ‘‘Amendments to A. Purpose of the Proposed Rule written comments on the proposed rule Regulations Regarding ‘Intended Uses’.’’ B. Summary of the Major Provisions of the by October 23, 2020. Received comments, those filed in a Proposed Rule timely manner (see ADDRESSES), will be C. Legal Authority ADDRESSES: You may submit comments placed in the docket and, except for D. Costs and Benefits as follows. Please note that late, those submitted as ‘‘Confidential II. Meaning of Certain Terms in This untimely filed comments will not be Submissions,’’ publicly viewable at Preamble considered. Electronic comments must III. Background https://www.regulations.gov or at the be submitted on or before October 23, A. Introduction and History of the Dockets Management Staff between 9 2020. The https://www.regulations.gov Rulemaking a.m. and 4 p.m., Monday through electronic filing system will accept B. How Intended Use Is Evaluated Friday, 240–402–7500. comments until 11:59 p.m. Eastern Time IV. Legal Authority • Confidential Submissions—To V. Description of the Proposed Rule at the end of October 23, 2020. submit a comment with confidential A. Introduction Comments received by mail/hand information that you do not wish to be B. Types of Evidence Relevant to delivery/courier (for written/paper made publicly available, submit your Establishing Intended Use submissions) will be considered timely comments only as a written/paper C. Examples of Evidence That, Standing if they are postmarked or the delivery Alone, Are Not Determinative of submission. You should submit two Intended Use service acceptance receipt is on or copies total. One copy will include the before that date. VI. Proposed Effective Dates information you claim to be confidential VII. Preliminary Economic Analysis of Electronic Submissions with a heading or cover note that states Impacts ‘‘THIS DOCUMENT CONTAINS A. Introduction and Summary Submit electronic comments in the CONFIDENTIAL INFORMATION.’’ The B. Preliminary Economic Analysis of following way: Impacts • Federal eRulemaking Portal: Agency will review this copy, including the claimed confidential information, in C. Initial Small Entity Analysis https://www.regulations.gov. Follow the VIII. Analysis of Environmental Impact instructions for submitting comments. its consideration of comments. The IX. Paperwork Reduction Act of 1995 Comments submitted electronically, second copy, which will have the X. Federalism including attachments, to https:// claimed confidential information XI. Consultation and Coordination With www.regulations.gov will be posted to redacted/blacked out, will be available Indian Tribal Governments XII. References the docket unchanged. Because your for public viewing and posted on comment will be made public, you are https://www.regulations.gov. Submit I. Executive Summary solely responsible for ensuring that your both copies to the Dockets Management A. Purpose of the Proposed Rule comment does not include any Staff. If you do not wish your name and confidential information that you or a contact information to be made publicly FDA is proposing to amend its third party may not wish to be posted, available, you can provide this existing regulations (§§ 201.128 and such as medical information, your or information on the cover sheet and not 801.4 (21 CFR 201.128 and 801.4)) anyone else’s Social Security number, or in the body of your comments and you describing the types of evidence confidential business information, such must identify this information as relevant to determining a product’s as a manufacturing process. Please note ‘‘confidential.’’ Any information marked intended uses under the FD&C Act, the that if you include your name, contact as ‘‘confidential’’ will not be disclosed PHS Act, and FDA’s implementing information, or other information that except in accordance with 21 CFR 10.20 regulations, including whether a identifies you in the body of your and other applicable disclosure law. For product meets the definition of a drug comments, that information will be more information about FDA’s posting or device and whether an approved or posted on https://www.regulations.gov. of comments to public dockets, see 80 cleared medical product is intended for • If you want to submit a comment FR 56469, September 18, 2015, or access a new use. The Agency issued a with confidential information that you the information at: https:// proposed rule in 2015 and a final rule do not wish to be made available to the www.govinfo.gov/content/pkg/FR-2015- in 2017 revising the language of these public, submit the comment as a 09-18/pdf/2015-23389.pdf. intended use regulations, with the Docket: For access to the docket to written/paper submission and in the intent to conform them to the Agency’s read background documents or the manner detailed (see ‘‘Written/Paper current practice in applying the electronic and written/paper comments Submissions’’ and ‘‘Instructions’’). regulations (see final rule, ‘‘Clarification received, go to https:// of When Products Made or Derived Written/Paper Submissions www.regulations.gov and insert the From Tobacco Are Regulated as Drugs, Submit written/paper submissions as docket number, found in in the Devices, or Combination Products; follows: heading of this document, into the Amendments to Regulations Regarding • Mail/Hand Delivery/Courier (for ‘‘Search’’ box and follow the prompts ‘Intended Uses’’’ (82 FR 2193, January 9, written/paper submissions): Dockets and/or go to the Dockets Management 2017)). These amendments did not Management Staff (HFA–305), Food and Staff, 5630 Fishers Lane, Rm. 1061, reflect a change in FDA’s approach Drug Administration, 5630 Fishers Rockville, MD 20852, 240–402–7500. regarding types of evidence of intended Lane, Rm. 1061, Rockville, MD 20852. FOR FURTHER INFORMATION CONTACT: use for drugs and devices. However, • For written/paper comments Kelley Nduom, Center for Drug after receiving a petition that requested submitted to the Dockets Management Evaluation and Research, Food and the Agency reconsider these Staff, FDA will post your comment, as Drug Administration, 10903 New amendments, FDA delayed the effective well as any attachments, except for Hampshire Ave., Silver Spring, MD date of the final rule and reopened the information submitted, marked and 20993–0002, 301–796–5400, docket to invite public comment. A identified, as confidential, if submitted [email protected]. number of comments submitted during as detailed in ‘‘Instructions.’’ SUPPLEMENTARY INFORMATION: the reopening raised questions and

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concerns about the amendments. On turn renders distribution of that combination product. This change is March 18, 2018, FDA delayed the approved product unlawful without being proposed to clarify the interplay effective date of the intended use approval of a supplemental application. between the drug and device intended amendments until further notice to Section 801.4 contains comparable use regulations and FDA’s regulations allow further consideration of the language regarding medical devices. The governing products that are made or substantive issues raised in the Agency is proposing to delete the last derived from tobacco and intended for comments received. sentence of §§ 201.128 and 801.4 and to human consumption. insert a new clause in the body of the After considering the issues raised in C. Legal Authority the petition and comments submitted regulations (‘‘provided, however, that a during the reopening, FDA is proposing firm would not be regarded as intending Among the provisions that provide to repeal the portions of the final rule an unapproved new use for an authority for this proposed rule are issued on January 9, 2017, that never [approved or cleared medical product] sections 201, 403(r), 503(g), and 701(a) became effective and to issue a new rule based solely on that firm’s knowledge of the FD&C Act (21 U.S.C. 321, 343(r), to provide more clarity regarding the that such [product] was being 353(g), 371(a)); section 5(b)(3) of the types of evidence that are relevant in prescribed or used by health care Orphan Drug Act (21 U.S.C. determining a product’s intended uses. providers for such use’’) to clarify that 360ee(b)(3)); and sections 215, 301, This action is intended to provide a firm’s knowledge that health care 351(i) and (j), and 361 of the PHS Act direction and clarity to regulated providers are prescribing or using its (42 U.S.C. 216, 241, 262(i) and (j), and industry and other stakeholders. approved or cleared medical product for 264). an unapproved use would not, by itself, D. Costs and Benefits B. Summary of the Major Provisions of automatically trigger obligations for the the Proposed Rule firm to provide labeling for that The benefit of this proposed rule is FDA proposes to amend its intended unapproved use. In addition, FDA the added clarity and certainty for firms use regulations for medical products proposes amending the text of and stakeholders regarding the evidence (§§ 201.128 and 801.4) to better reflect §§ 201.128 and 801.4 to provide relevant to establishing whether a the Agency’s current practices in additional clarification regarding the product is intended for use as a drug or evaluating whether a product is types of evidence that are relevant to device, including whether an approved intended for use as a drug or device, determining a product’s intended uses. or cleared medical product is intended including whether an approved or Additional clarification is provided in for a new use. We do not have evidence cleared medical product is intended for the preamble. that the proposed rule would impose a new use. Some firms have expressed FDA is also proposing to insert in costs on currently marketed products. concern that the last sentence of §§ 201.128 and 801.4 a reference to II. Meaning of Certain Terms in This § 201.128 could be read to mean that a § 1100.5 (21 CFR 1100.5), which Preamble firm’s mere knowledge of an describes when a product made or unapproved use of its approved drug derived from tobacco that is intended As used in this preamble, the product automatically triggers for human consumption will be subject following terms have the meanings requirements for new labeling that in to regulation as a drug, device, or noted below.1

Term Meaning

Approved or cleared medical This term refers to a medical product that may be legally introduced into interstate commerce for at least one use product. under the FD&C Act or the PHS Act as a result of having satisfied applicable premarket statutory and regu- latory requirements (including devices that are granted marketing authorization or are exempt from premarket notification). Approved or cleared medical This term refers to an intended use included in the required labeling for an FDA-approved medical product, an in- use. tended use included in the indications for use statement for a device cleared or granted marketing authorization by FDA, or an intended use of a device that falls within an exemption from premarket notification. Firms ...... This term refers to manufacturers, packers, and distributors of FDA-regulated products and all their representa- tives, including both individuals and corporate entities. Health care providers ...... This term refers to individuals such as physicians, veterinarians, dentists, physician assistants, nurse practi- tioners, pharmacists, or registered nurses who are licensed or otherwise authorized by the State to prescribe, order, administer, or use medical products. Medical products ...... This term refers to drugs and devices, including human biological products. Products unapproved for any This term refers to medical products that are not approved or cleared (as that term is described above) by FDA medical use. for any medical use, and which must be approved or cleared to be legally marketed for such use. This term also includes products that are marketed for non-medical uses, such as dietary supplements, conven- tional foods, and cosmetics. Unapproved use of an ap- This term refers to an intended use that is not included in the required labeling of an FDA-approved medical proved product. product, an intended use that is not included in the indications for use statement for a device cleared or grant- ed marketing authorization by FDA, or an intended use of a device that does not fall within an exemption from premarket notification.

1 Nothing in this table is intended to construe implementing regulations, nor does the information in the table otherwise affect discussions outside the terms in the FD&C Act, the PHS Act, or FDA’s context of this preamble.

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III. Background Firms asserted that, based on this, under filed a petition (Docket No. FDA–2015– the last sentence of § 201.128, a N–2002–1977) raising concerns with the A. Introduction and History of the manufacturer’s mere knowledge of an January 2017 final rule. In March 2017, Rulemaking unapproved use of its approved drug we further delayed the effective date of In the Federal Register of September automatically triggers requirements for the final rule and reopened the docket 25, 2015 (80 FR 57756), FDA issued a new labeling that in turn renders to invite additional public comment. In proposed rule entitled ‘‘Clarification of distribution of that approved product March 2018, we delayed the effective When Products Made or Derived From unlawful without approval of a date of the intended use amendments Tobacco Are Regulated as Drugs, supplemental application. until further notice to allow for further Devices, or Combination Products; In the 2015 proposed rule, the consideration of the substantive issues Amendments to Regulations Regarding proposed deletion of the last sentence of raised in the comments received. ‘Intended Uses.’’’ Among other §§ 201.128 and 801.4 was intended to Having considered these issues, FDA is proposals, that 2015 notice of proposed clarify the following: When a firm is proposing to repeal the intended use rulemaking proposed certain changes to distributing an approved or cleared amendments contained in the final rule FDA’s existing regulations describing medical product, evidence that the firm issued on January 9, 2017, that never the types of evidence relevant to knows that health care providers are took effect, and to issue a new rule that determining a product’s intended uses prescribing or using that approved or would replace the January 2017 rule in (see §§ 201.128 (drugs) and 801.4 cleared medical product for an amending the intended use regulations (devices)). These amendments were unapproved use would not, by itself, to further clarify the types of evidence intended to clarify FDA’s existing automatically trigger obligations for the relevant to determining a product’s interpretation and application of these firm to provide labeling for the uses for intended uses. The January 2017 final regulations (see 80 FR 57756 at 57761). which the health care providers are rule also added a new regulation Specifically, the amendments were prescribing or using the product. FDA’s (§ 1100.5) to title 21 of the CFR (see 82 intended to clarify that a firm would not clarification of its position and FR 2193 at 2217). That regulation be regarded as intending an unapproved proposed deletion of the last sentence of became effective on March 19, 2018. Its new use for an approved product based these regulations in the proposed rule status is unaffected by this proposed solely on that firm’s knowledge that its was not intended to suggest that FDA rule. product was being prescribed or used by sought to otherwise change the scope of B. How Intended Use Is Evaluated health care providers for such use (see evidence relevant to intended use. 80 FR 57756 at 57761). FDA proposed At the time the final rule issued in FDA’s longstanding position is that, to delete the last sentence of the January 2017, FDA believed that the in evaluating a product’s intended use, intended use regulations (§§ 201.128 goals described in the preceding any relevant source of evidence may be and 801.4) to provide this clarification, paragraph would be better achieved by considered. This position is unchanged in addition to some other changes. amending the last sentence of each and has solid support in the case law Before FDA’s issuance of the intended use regulation, rather than by (see, e.g., United States v. Storage proposed rule in 2015, some firms had deleting the sentences (see 82 FR 2193 Spaces Designated Nos. 8 and 49, 777 expressed concern with the last at 2206). In the preamble to that final F.2d 1363, 1366 (9th Cir. 1985); Action sentence of § 201.128. (Refs. 1 to 3). rule, FDA explained that the revised on Smoking and Health v. Harris, 655 That sentence states that if a language was intended to achieve the F.2d 236, 239 (D.C. Cir. 1980); Nat’l manufacturer knows, or has knowledge goal described in the proposed rule by Nutritional Foods Ass’n v. Mathews, 557 of facts that would give him notice, that amending the last sentence so that it no F.2d 325, 334 (2d Cir. 1977); United a drug introduced into interstate longer suggested that a firm’s mere States v. Article of 216 Cartoned Bottles, commerce by him is to be used for knowledge that its approved or cleared ‘‘Sudden Change,’’ 409 F.2d 734, 739 conditions, purposes, or uses other than product is being prescribed or used for (2d Cir. 1969); V.E. Irons, Inc. v. United the ones for which he offers it, he is an unapproved use would, on its own, States, 244 F.2d 34, 44 (1st Cir. 1957); required to provide adequate labeling trigger the requirement to provide United States v. LeBeau, 2016 U.S. Dist. for such a drug that accords with such adequate labeling (see 82 FR 2193 at LEXIS 13612, *27, 2016 WL 447612 other uses. (§ 801.4 contains comparable 2206). The revised sentence was also (E.D. Wis. Feb. 3, 2016), aff’d, 654 Fed. language.) These firms asserted (with intended to reflect FDA’s longstanding App’x 826, 831 (7th Cir. 2016); United some variations in the argument) that position, discussed in both the States v. Schraud, 2007 U.S. Dist. LEXIS this sentence could be read to mean that preambles to the 2015 proposed rule 89231, *5 (E.D. Mo. Dec. 4, 2007); whenever a manufacturer knew that its and the 2017 final rule, that the Hanson v. United States, 417 F. Supp. approved drug was being prescribed or intended use of a product can be 30, 35 (D. Minn.), aff’d, 540 F.2d 947 used by a health care provider for an evaluated based on ‘‘any relevant source (8th Cir. 1976)). Evidence of intended unapproved use, the manufacturer of evidence,’’ including a variety of use may include, but is not limited to, would be required to alter the labeling direct and circumstantial evidence (see the product’s labeling, promotional of a drug to provide adequate directions 82 FR 2193 at 2206). The text of the claims, and advertising. For example, for such unapproved use. Firms further final rule used the phrase ‘‘the totality any claim or statement made by or on asserted that this addition to FDA- of the evidence’’ to accomplish these behalf of a firm that explicitly or approved labeling would transform the goals (see 82 FR 2193 at 2206). implicitly promotes a product for a drug into a new drug that cannot be sold The final rule was published with an particular use may be taken into without first obtaining approval of a initial effective date of February 8, 2017, account. supplemental new drug application which was delayed until March 21, A firm’s subjective claims of intent, pursuant to sections 201(p) and 505(a) 2017, in accordance with the however, are not necessarily memorandum of January 20, 2017, from determinative of a product’s intended (21 U.S.C. 355(a)) of the FD&C Act.2 the Assistant to the President and Chief use. Objective evidence of the firm’s 2 The same argument could apply with respect to of Staff, entitled ‘‘Regulatory Freeze intent, which can include a variety of new animal drugs (see sections 201(v) and 512(a) Pending Review’’ (Ref. 4). On February direct and circumstantial evidence, is (21 U.S.C. 360b(a) of the FD&C Act). 8, 2017, various industry organizations also relevant, particularly when it

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contradicts the firm’s claims. Indeed, patients, together with other evidence circumstances, FDA does not consider a courts have rejected the proposition that regarding a training program and firm’s knowledge that a health care evidence of intended use is limited to financial arrangements offered by the provider has prescribed or used its labeling or other claims by a defendant); United States v. approved or cleared medical product for manufacturer concerning a device or Undetermined Quantities of an Article an unapproved use to be sufficient by drug (see Nat’l Nutritional Foods Ass’n of Drug Labeled as ‘‘Exachol,’’ 716 F. itself to establish the intended use v. Mathews, 557 F.2d 325, 334 (2d Cir. Supp. 787, 791 (S.D.N.Y. 1989) element of a prohibited act related to the 1977) (‘‘In determining whether an (explaining that ‘‘FDA is not bound by lack of premarket approval or clearance article is a ‘drug’ because of an intended the vendor’s subjective claims of intent’’ of that use or the lack of adequate therapeutic use, the FDA is not bound and that ‘‘[a]n article intended to be directions for use.4 Instead, FDA by the manufacturer’s subjective claims used as a drug will be regulated as a examines all relevant evidence, which of intent but can find actual therapeutic drug . . . even if the products [sic] could include, in combination with intent on the basis of objective evidence. labelling states that it is not a drug’’)). other facts, a firm’s knowledge that Such intent also may be derived or Courts have repeatedly held that health care providers are prescribing or inferred from labeling, promotional intended use is determined by looking using its approved or cleared medical material, advertising, and any other to all relevant evidence, including product for an unapproved use, to relevant source.’’) (internal citation and statements and circumstances determine whether there is sufficient quotations omitted); United States v. surrounding the manufacture and evidence to establish a new intended Travia, 180 F. Supp. 2d 115, 119 (D.D.C. distribution of a product (see, e.g., use. 2001) (‘‘Labeling is not exclusive United States v. Article of 216 Cartoned Some comments submitted in the earlier rulemaking presented views evidence of the sellers’ intent. Rather, as Bottles . . .‘‘Sudden Change,’’ 409 F.2d regarding First Amendment the very language quoted by the 734, 739 (2d Cir. 1969) (‘‘It is well considerations relating to how a defendants themselves states, ‘it is well settled that the intended use of a product’s intended use is established. established ‘‘that the intended use of a product may be determined from its However, treating knowledge as a product, within the meaning of the label, accompanying labeling, category of evidence that may be [FD&C Act], is determined from its promotional material, advertising and considered as evidence of intended use label, accompanying labeling, any other relevant source.’’) (citations does not, in itself, implicate the First promotional claims, advertising, and omitted); V.E. Irons, Inc. v. United Amendment. Knowledge and speech are any other relevant source’’’ . . . even States, 244 F.2d 34, 44 (1st Cir. 1957) (observing that a court is ‘‘free to look not coextensive. A variety of direct and consumer intent could be relevant, so circumstantial evidence can establish a long as it was pertinent to to all relevant sources in order to ascertain what is the ‘intended use’ of person’s knowledge; a person’s speech demonstrating the seller’s intent . . . [I]f can be one source—but is not the only the government’s allegations are true, a drug’’)). As explained by one court: ‘‘Whether a product’s intended use source—of evidence of that person’s the sellers did not need to label or knowledge. The proposed amendments advertise their product, as the makes it a device depends, in part, on the manufacturer’s objective intent in are not intended to address specific environment provided the necessary concerns arising under the First information between buyer and seller. promoting and selling the product. All of the circumstances surrounding the Amendment, but instead seek to address In this context, therefore, the fact that an ambiguity in the language of the there was no labeling may actually promotion and sale of the product constitute the ‘intent.’ It is not enough regulations and to conform that bolster the evidence of an intent to sell language to FDA’s existing policy. a mind-altering article without a for the manufacturer to merely say that he or she did not ‘intend’ to sell a Accordingly, and consistent with the prescription—that is, a misbranded statutory framework and purposes, FDA drug.’’) (citations omitted); United particular product as a device. Rather, States v. Vascular Solutions, Inc., 181 F. the actual circumstances surrounding the product’s sale . . . determine the unapproved uses for individual patients, most Supp. 3d 342, 347 (W.D. Tex. 2016) legally marketed medical products. This (‘‘[T]hough [21 CFR] 801.4 indeed says ‘intended’ use of the product as a device longstanding position has been codified with under the Act’’ (United States v. 789 respect to devices (see 21 U.S.C. 396). Although that ‘objective intent may, for example, FDA generally does not seek to interfere with the be shown by labeling claims, advertising Cases, More or Less, of Latex Surgeons’ Gloves, 799 F. Supp. 1275, 1285 exercise of the professional judgment of matter, or oral or written statements by veterinarians, certain unapproved uses of drugs in such persons or their representatives,’ (D.P.R.1992) (emphasis in original) animals are not permitted (see section 512(a)(4) and nowhere does the regulation state that (internal citations omitted)). (5) of the FD&C Act and 21 CFR part 530) and result As FDA has previously stated, in the drug being deemed ‘‘unsafe’’ and therefore such statements or claims cannot be however, the Agency would not regard adulterated under sections 512 and 501(a)(5) (21 used to show objective intent unless U.S.C. 351(a)(5)) of the FD&C Act). a firm as intending an unapproved use 4 they were published to the See 21 U.S.C. 331(a), 331(d), 351(f), 352(f)(1), for its approved medical product based marketplace.’’); see also United States v. 355(a), 360b. That position does not apply to solely on the firm’s knowledge that such products that are not already legally marketed as Storage Spaces Designated Nos. 8 and product was being prescribed or used by medical products for at least one use. Similarly, 49, 777 F.2d 1363, 1366 n.5 (9th Cir. nothing in this regulation or preamble is intended health care providers for such use (80 1985) (concluding that products to interfere with the application of 21 U.S.C. 333(e), FR 57756 at 57757; 82 FR 2193 at 2206– which, subject to limited exceptions, penalizes innocuously labeled as ‘‘incense’’ and 2207). Health care providers sometimes anyone who ‘‘knowingly distributes, or possesses ‘‘not for drug use’’ were in fact drugs prescribe or use approved or cleared with intent to distribute, human growth hormone when the ‘‘overall circumstances’’ for any use in humans other than the treatment of medical products for unapproved uses demonstrated vendor’s intent that a disease or other recognized medical condition, when they judge that the unapproved where such use has been authorized by the products be used as cocaine substitutes); use is medically appropriate for their Secretary of Health and Human Services under United States v. An Article of Device individual patients.3 In such section 505 [of the FD&C Act] and pursuant to the Toftness Radiation Detector, 731 F.2d order of a physician.’’ Furthermore, Congress or the 1253, 1257 (7th Cir. 1984) (intended use Agency could issue other product-specific or 3 FDA generally does not seek to interfere with product class-specific provisions that recognize established in part by witness testimony the exercise of the professional judgment of health knowledge as sufficient evidence of a particular that device had been used to treat care providers in prescribing or using, for element of a prohibited act.

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is clarifying in this rulemaking that distribution of the product or the Courts have long upheld the while knowledge can be within the context in which it is sold (see An premarket review requirements of the types of evidence that are relevant to Article of Device Toftness Radiation FD&C Act and the PHS Act, and the role establishing intended use, a firm’s Detector, 731 F.2d at 1257; see also of intended use within that framework,9 knowledge that its approved or cleared United States v. Travia, 180 F. Supp. 2d as necessary to promote and protect the medical product is being prescribed or 115, 119 (D.D.C. 2001)). Considering public health and as fully consistent used by health care providers for an evidence other than express claims with the First Amendment. Courts have unapproved use would not be relied often ensures that FDA is able to pursue held that the government’s reliance on upon as the sole evidence of a new firms that attempt to evade FDA medical speech as evidence of intended use intended use. product regulation by avoiding making under the FD&C Act does not infringe Some comments submitted in the express claims about their products. the right of free speech under the First This rule, if finalized, would be earlier rulemaking suggested that FDA Amendment based on Supreme Court consistent with the First Amendment. should rely exclusively on firms’ claims precedent establishing that ‘‘[t]he First to establish intended use. This narrow First, the rule is limited in scope. It describes evidence that may be relevant Amendment . . . does not prohibit the view of intended use would not only evidentiary use of speech to establish create a loophole for firms that would to establishing intended use, but it does not dictate that certain evidence will be the elements of a crime or to prove enable them to evade FDA oversight of motive or intent’’ (Wisconsin v. the marketing of approved or cleared determinative of intended use in an individual case.5 Mitchell, 508 U.S. 476, 489 (1993)). The medical products for unapproved uses, Second, nothing in this proposed rule, if finalized, would D.C. Circuit applied that precedent in but would also open the door to the affect any exclusion explicitly provided the context of the FD&C Act and held marketing of products that are by statute or regulation from the that ‘‘[e] use of speech to infer intent, unapproved for any medical use—all to definitions of drug or device.6 Third, the which in turn renders an otherwise the detriment of the public health. As proposed revisions to the intended use permissible act unlawful, is courts have recognized, ‘‘[s]elf-serving regulations do not reflect a change in constitutionally valid’’ and hence ‘‘it is labels cannot be allowed to mask the FDA’s policies and practices, as constitutionally permissible for the FDA vendor’s true intent as indicated by the articulated in various guidance to use speech [by the manufacturer] . . . overall circumstances’’ (United States v. documents, regarding the types of firm Storage Spaces Designated Nos. 8 and to infer intent for purposes of communications that ordinarily would 49, 777 F.2d 1363, 1366 n.5 (9th Cir. determining that [the manufacturer’s] not, on their own, establish the firm’s proposed sale . . . would constitute the 1985)). As one court explained, ‘‘[a] intent that an approved or cleared disease claim made with a wink and a forbidden sale of an unapproved drug’’ medical product be used for an (Whitaker v. Thompson, 353 F.3d 947, nudge is still a disease claim. To hold unapproved use.7 If a firm’s otherwise would create an ‘obviously 953 (D.C. Cir. 2004); see also Nicopure communication is consistent with the Labs, LLC v. FDA, 944 F.3d 267, 283 wide loophole’ that would defeat the recommended practices described in ‘high purpose of the Act to protect (D.C. Cir. 2019) (‘‘Just as the government FDA guidance, such a communication, may consider speech that markets a consumers’ ’’ (United States v. Cole, 84 on its own, would not be evidence of a copper bracelet as an arthritis cure . . . F. Supp. 3d 1159, 1166 (D. Or. 2015) new intended use.8 (citation omitted)). Examples where the in order to subject the item to appropriate regulation, so, too, the FDA government has relied on evidence 5 Because ‘‘intended use’’ is only one element of other than express claims to establish an alleged violation of the FD&C Act, this rule does may rely on e-cigarette labeling and intended use include situations where not itself implicate the First Amendment and does other marketing claims in order to products contained a pharmacological not attempt to resolve all First Amendment subject e-cigarettes to appropriate arguments that might be made by a firm in ingredient such as the active ingredient defending against an enforcement action under the regulation’’); Flytenow, Inc. v. FAA, 808 from approved erectile dysfunction and FD&C Act. F.3d 882, 894 (D.C. Cir. 2015) hair-loss products, albuterol, or steroids, 6 For example, section 201(g)(1) of the FD&C Act (upholding ‘‘us[e of] speech (postings on but were labeled as herbal supplements, contains exclusions from the drug definition for two Flytenow.com) as evidence that pilots types of labeling claims that would otherwise leather cleaner, incense, potpourri, bath subject a product to regulation as a drug: (1) are offering service that exceeds the salts, or ‘‘for research purposes only.’’ Structure/function claims and certain related claims limits of their certifications’’). Likewise, Similar examples for devices include: in the labeling of dietary supplements, when made although the Second Circuit’s decision (1) Products that are labeled as laser in accordance with section 403(r)(6) of the FD&C Act; (2) health claims in the labeling of a in United States v. Caronia, 703 F.3d pointers or hyperbaric chambers but, conventional food or dietary supplement, when 149 (2d Cir. 2012), ‘‘construe[d] the based on other objective evidence, are made in accordance with section 403(r)(3) or misbranding provisions of the FDCA as actually intended by the manufacturer (r)(5)(D) of the FD&C Act, as applicable. not prohibiting and criminalizing the or the distributor to treat serious 7 The Agency has issued several final guidance documents that describe circumstances in which truthful off-label promotion of FDA- conditions such as cancer, diabetes, the Agency does not intend to object to a firm’s approved prescription drugs’’ and multiple sclerosis, human product communications or to view such concluded that ‘‘the government cannot immunodeficiency virus (HIV), and communications as evidence of a new intended use prosecute pharmaceutical autism; and (2) a product with a (sometimes referred to as ‘‘safe harbors’’) (Refs. 5 to 7). The Agency has also recognized ‘‘safe harbors’’ manufacturers and their representatives reservoir that is cleared for use with a in draft guidance documents (Refs. 8 and 9). When under the FDCA for speech promoting saline solution to moisten tissue but, final, these documents will represent FDA’s current the lawful, off-label use of an FDA- based on other objective evidence, is thinking on these topics. The Agency invites actually intended to deliver a drug (e.g., comment on whether any elements of these 9 It should be noted that intended use is relevant guidances warrant codification in the regulations. in contexts other than premarket approval and steroids) to the tissue. The government 8 As noted elsewhere in this preamble, this is not clearance. For example, FDA evaluates intended has also considered firms’ directions to to suggest that these communications must be use in determining whether research studies excluded from consideration altogether. For their sales forces in determining involving human subjects involve the intended use. Thus, in addition to example, if there is other evidence of a new intended use for a product, such communications administration of a drug and must be conducted claims, FDA may also take into account may be evaluated in assessing the classification and under an investigational new drug application (see any circumstances surrounding the regulatory status of the product. 21 CFR part 312).

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approved drug,’’ id. at 168–169,10 the Accordingly, these premarket review will be subject to regulation as a drug, decision ‘‘left open the government’s provisions ‘‘do[] not ban manufacturers device, or combination product. The ability to prove misbranding on a theory from making accurate claims’’ but Agency also proposes to delete the final that promotional speech provides instead ‘‘require[] them to substantiate sentence of §§ 201.128 and 801.4 and to evidence that a drug is intended for a such claims.’’ Nicopure Labs, LLC, 944 insert a new clause in the body of the use that is not included on the drug’s F.3d at 285. regulations (‘‘provided, however, that a FDA-approved label.’’ United States ex IV. Legal Authority firm would not be regarded as intending rel. Polansky v. Pfizer, Inc., 822 F.3d an unapproved new use for an 613 n.2 (2d Cir. 2016). Among the statutory provisions that [approved or cleared medical product] In addition, FDA’s consideration of provide authority for this proposed rule based solely on that firm’s knowledge speech as one type of evidence of are sections 201, 403(r), 503(g), and that such [product] was being intended use under its statutory and 701(a) of the FD&C Act, section 5(b)(3) prescribed or used by health care regulatory framework directly advances, of the Orphan Drug Act, and section providers for such use’’) to clarify that and is appropriately tailored to achieve, 351(i) of the PHS Act (21 U.S.C. 262). a firm would not be regarded as substantial public health interests Section 201 of the FD&C Act defines intending an unapproved use for its relevant to analyses under Central ‘‘drug’’ (subsection (g)(1)), ‘‘device’’ approved product based solely on that Hudson Gas & Electric Corp. v. Public (subsection (h)), ‘‘food’’ (subsection (f)), firm’s knowledge that its product was Service Comm’n, 447 U.S. 557, 563–64 ‘‘dietary supplement’’ (subsection (ff), being prescribed or used by health care (1980).11 The medical products FDA ‘‘cosmetic’’ (subsection (i)), and providers for such use. FDA is also regulates have the potential to adversely ‘‘tobacco product’’ (subsection (rr)(1)); proposing additional changes to the impact public health and safety. The section 5(b)(3) of the Orphan Drug Act codified text to clarify and reinforce that premarket review requirements of the defines ‘‘medical food’’; and section intended use can be based on any FD&C Act and the PHS Act require 503(g) of the FD&C Act provides that relevant source of evidence, including a companies to conduct scientific combination products are those ‘‘that variety of direct and circumstantial research to determine the safety and constitute a combination of a drug, evidence. device, or biological product.’’ Section effectiveness of medical products before In the following sections, FDA they are marketed and provide 351(i) of the PHS Act defines ‘‘biological products’’ (21 U.S.C. 262), and section provides several examples of types of mechanisms to help ensure that evidence relevant to establishing protections are in place that will allow 351(j) of the PHS Act provides that the requirements of the FD&C Act apply to intended use. These examples are the public to obtain the benefits of these provided for illustrative purposes only products while mitigating the risks.12 biological products (21 U.S.C. 262). Section 403(r) of the FD&C Act and are not intended to be comprehensive or restrictive. In 10 This holding was ‘‘limited to FDA-approved establishes the requirements under drugs for which off-label use is not prohibited.’’ 709 which certain labeling claims about uses fulfilling its mission to protect the F.3d at 168–69. Any constitutional interest in such of conventional foods and dietary public health, FDA will evaluate the speech does not extend to speech promoting the supplements to reduce the risk of a individual and unique circumstances of introduction of a whoolly unapproved medical each case in determining a product’s product into interstate commerce, which is an disease or affect the structure or illegal activity. See United States v. Caputo, 517 function of the human body are not intended use. In some cases, a single F.3d 935, 939–40 (7th Cir. 2008); United States v. evidence of intended use as a drug. piece of evidence may be dispositive of Cole, 84F. Supp. 3d 1159, 1166–67 (D.Or. 2015). Under section 701(a) of the FD&C Act, a product’s intended use. In others, 11 In Sorrell v. IMS Health Inc., 564 U.S. 552, 565 FDA has authority to issue regulations several elements combined may (2011), the Supreme Court explained that content- establish a product’s intended use. based commercial speech restrictions may be for the efficient enforcement of the subject to ‘‘heightened judicial scrutiny.’’ Several FD&C Act. FDA regulates the B. Types of Evidence Relevant to courts of appeals have subsequently concluded that manufacture, sale, and distribution of Establishing Intended Use Sorrell did not overrule or fundamentally alter the drugs, devices, combination products, Central Hudson analysis. See Retail Digital 1. Express Claims and Representations Network, LLC v. Prieto, 861 F.3d 839, 846 (9th Cir. tobacco products, foods (including dietary supplements), and cosmetics 2017) (en banc) (Sorrell ‘‘did not mark a In determining a product’s intended fundamental departure from Central Hudson’s four- under the authority of the FD&C Act. factor test, and Central Hudson continues to apply’’ use, any claim or statement made by or to regulations of commercial speech, regardless of V. Description of the Proposed Rule on behalf of a firm that explicitly whether they are content based); Missouri Broad. represents a product for a particular use A. Introduction Ass’n v. Lacy, 846 F.3d 295, 300 n.5 (8th Cir. 2017) is relevant. This can include, but is not (‘‘The upshot [of Sorrell] is that when a court FDA is issuing this proposed rule to determines commercial speech restrictions are limited to, labeling claims and content- or speaker-based, it should then assess clarify the types of evidence relevant to representations (whether made in their constitutionality under Central Hudson.’’) determining a product’s intended uses, required labeling or labeling that is (quotation marks omitted; alteration in original); see including determining whether a optional or promotional), advertising also Vugo, Inc. v. City of , 931 F.3d 42, product meets the definitions of drug or 50 (2d Cir. 2019) (‘‘No Court of Appeals has matter, and oral or written statements by concluded that Sorrell overturned Central Hudson. device and whether an approved or persons responsible for the labeling, or We agree with our sister circuits that have held that cleared medical product is intended for their representatives. Sorrell leaves the Central Hudson regime in place, a new use. The proposed rule would and accordingly we assess the constitutionality of insert in §§ 201.128 and 801.4 a 2. Implied Claims the City’s ban under the Central Hudson reference to § 1100.5, to clarify the standard.’’), cert. denied, 2020 U.S. LEXIS 2437 Any claim or statement made by or on (Apr. 27, 2020). interplay between the medical product behalf of a firm that implicitly 12 See Eguale, T., D.L. Buckeridge, A. Verma, et intended use regulations and the represents a product for a particular use al., ‘‘Association of Off-Label Drug Use and Adverse regulation that describes when a is also relevant to intended use. Drug Events in an Adult Population,’’ Journal of product made or derived from tobacco American Medical Association Internal Medicine, Examples of such implicit claims may that is intended for human consumption 176(1):55–63, 2016 (summarizing study across include the following: cohort of 46,000 patients, and concluding that • unapproved use of prescription drugs is associated uses lack strong scientific evidence in the form of Suggestive product names such as with adverse drug events, particularly where those at least one randomized controlled trial) (Ref. 10). Chronix, Shroomz, or e-Cialis;

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• Statements that imply an intended delivery of large amounts of acknowledged FDA ‘‘safe harbor’’ would use, such as ‘‘For best results use complimentary product samples to a not be determinative of intended use. approximately 30–45 minutes prior to health care provider whose patient For example: engaging in sexual intercourse’’; or population does not fall within the • A pharmaceutical firm tracks sales • Representations that the product product’s approved population. and distribution metrics. The firm notes contains a particular ingredient to imply • Circumstances and context that one of its products, approved for a physiological effect, such as the surrounding the sale, such as balloons the treatment of adult patients with inclusion of ‘‘aspirin’’ or ‘‘sildenafil’’ in containing laughing gas (nitrous oxide) acute lymphoblastic leukemia (ALL), is the ingredient list. being sold outside a rock concert, or the being ordered by and distributed to repackaging of bulk product into smaller many medical practices that treat 3. Product Characteristics and Design plastic bags and using personal, not exclusively pediatric oncology The characteristics of the product and business, emails and addresses for populations. The firm also notes that the its design are relevant to establishing communications and deliveries. National Comprehensive Cancer intended use. Examples of such Network clinical practice guidelines C. Examples of Evidence That, Standing evidence include the following: (CPG) for the treatment of ALL in Alone, Are Not Determinative of • The known physiological effects pediatric patients recommends the Intended Use (medical or recreational) of a product firm’s drug product as a treatment that is unapproved for any medical use 1. Knowledge, Alone or in the Context option. The pharmaceutical firm (for example, products containing an of ‘‘Safe Harbors,’’ of Health Care distributes copies of the CPG at medical active pharmaceutical ingredient Providers Prescribing or Using an conferences, following all (API) 13 or an analogue of an API or Approved Product for an Unapproved recommendations made in the revised controlled substance). Use draft guidance, ‘‘Distributing Scientific Æ Example scenarios might include As discussed previously, a firm will and Medical Publications on dried herbs treated with synthetic not be regarded as intending an Unapproved New Uses—Recommended tetrahydrocannabinol (THC), or coffee unapproved use of an approved product Practices’’ (Ref. 8). The firm does not containing sildenafil. based solely on that firm’s knowledge give any direction to its sales or • The known use (recreational or that the product is being prescribed or marketing staff to disseminate samples medical) of a product that is used by health care providers for such or information about this product to unapproved for any medical use. use.14 One example that would not, practices that treat pediatric cancer Æ Example scenarios might include standing alone, be considered evidence patients exclusively. 2,4-Dinitrophenol (DNP) being used for of a new intended use might include the We note that in some cases, weight loss, herbal products being used following scenario: knowledge that a product was being for pain management, or a product being • A pharmaceutical firm tracks sales prescribed or used by health care used for a medical purpose for which it and distribution metrics. The firm notes providers for an unapproved use could provides no known benefit (e.g., Laetrile that one of its products, approved for be considered relevant to establishing a (amygdalin) for cancer). use only in adults, is being ordered by new intended use where there is • The product’s design or technical and distributed to many medical additional evidence of intended use (but features. practices that treat exclusively pediatric excluding, as discussed above, evidence Æ Example scenarios might include a populations. The firm does not give any that falls within FDA’s acknowledged stent that is specifically sized for a use direction to its sales or marketing staff ‘‘safe harbors’’ for dissemination of that is different from the purported use; to disseminate samples or information information about an unapproved use of a suture delivery device with a snare about this product to these pediatric an approved product). loop sized for a specific procedure that practices. is different from the purported use; a 2. Additional Examples That, Standing Similarly, knowledge in combination Alone, Are Not Determinative of device that includes software with a with conduct that falls within an diagnostic function when the purported Intended Use use does not include diagnosis; or 14 Nothing in this rulemaking is intended to There are examples of other products that purport to remove only change a firm’s existing obligations and circumstances that, standing alone, the stratum corneum (outer layer of the responsibilities under the FD&C Act, the PHS Act, would not be determinative of intended skin) but that are actually designed to or FDA’s implementing regulations to take action use. For example, there may be limited with respect to safety information including: (1) penetrate below the stratum corneum Updating its labeling to ensure that the labeling is instances where a firm disseminates into the living layers of the skin. not false or misleading or for other reasons; (2) safety information about an unapproved reporting serious adverse events or other use to health care providers to minimize 4. Circumstances of the Sale or postmarketing safety reports to the Agency; or (3) risk to patients. Such dissemination, on Distribution issuing recalls, corrections, and removals. See, for example, 21 CFR 201.56(a)(2) (‘‘[approved human its own, would not ordinarily be The types of evidence relevant to prescription drug and biological product] labeling dispositive evidence of a new intended establishing intended use also include must be updated when new information becomes use. The scenario below provides one circumstances surrounding the available that causes the labeling to become example of a situation in which a firm distribution of the product and the inaccurate, false, or misleading’’); 21 CFR 314.70, 514.8(c), 601.12, 814.39, and 814.108 (concerning could disseminate safety and warning context in which it is sold, including supplements and other changes to approved information without triggering the the following: medical product applications, including labeling); prohibitions on distributing a product • To whom and for whom the 21 U.S.C. 321(n) and 21 CFR 1.21(a) (providing that for an unapproved use and misbranding products are offered, such as a firm’s material omissions can be misleading); 21 CFR 314.80 (postmarketing reporting of adverse drug a product by failing to provide adequate repeated proactive detailing and experiences); 21 CFR 514.80 (records and reports directions for use. The following concerning experience with approved new animal example is fact-specific and is provided 13 The acronym ‘‘API’’ in this category includes drugs); 21 CFR part 803 (obligations under medical for illustrative purposes only. active drug ingredients, whether or not they are in device reporting); 21 CFR part 806 (medical device • an approved drug. As used here, ‘‘API’’ does not reports of corrections and removals); 21 CFR part The unapproved use of a firm’s include a biologically active dietary ingredient in a 810 (medical device recalls); 21 CFR part 7, subpart approved drug is broadly accepted by dietary supplement. B (recalls). the medical community and the firm

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has submitted an efficacy supplement to and use decisions). The summary other materials, or otherwise modify add the unapproved use to the labeling provides a factual, balanced, and their behavior, following issuance of of the drug. The boxed warning and risk complete presentation of the trial this rule. However, because this rule evaluation and mitigation strategy results, including relevant safety would merely clarify, but not change, (REMS) materials for the drug warn of information and any limitations of the the types of evidence relevant to potential risks related to the study. The summary does not make any determining manufacturers’ intended unapproved use in general terms, but conclusions about the safety or use of products, any such changes the firm disseminates additional effectiveness of the unapproved product would be voluntarily undertaken by specific safety and warning information or the unapproved use, and it includes firms. Because the proposed rule would to health care providers to minimize the a conspicuous and prominent statement not extend FDA’s authority to additional risk to patients receiving the drug for that the product or use has not been products or impose any additional the unapproved use. The safety and approved, cleared, or licensed by FDA. requirements on currently regulated warning information does not expressly VI. Proposed Effective Dates products, we expect the proposed rule or implicitly promote the efficacy of the will impose negligible costs, if any. As unapproved use. The Agency proposes that any final a result, we propose to certify that the Below are some additional examples rule based on this proposed rule will proposed rule will not have a significant that, without other evidence, would not become effective 30 days after the date economic impact on a substantial establish a new intended use. This list of publication of the final rule in the number of small entities. Federal Register. is not intended to be comprehensive or The Unfunded Mandates Reform Act restrictive. Each scenario is fact-specific, VII. Preliminary Economic Analysis of of 1995 (section 202(a)) requires us to and, under other circumstances or in Impacts prepare a written statement, which other contexts, similar material may be A. Introduction and Summary includes an assessment of anticipated evaluated differently. costs and benefits, before proposing • A firm’s official social media 1. Introduction ‘‘any rule that includes any Federal account ‘‘follows’’ the social media We have examined the impacts of the mandate that may result in the account for a 501(c)(3) non-profit that proposed rule under Executive Order expenditure by State, local, and tribal supports patients with a rare disease for 12866, Executive Order 13563, governments, in the aggregate, or by the which there is no FDA-approved Executive Order 13771, the Regulatory private sector, of $100,000,000 or more treatment. The firm is in the process of Flexibility Act (5 U.S.C. 601–612), and (adjusted annually for inflation) in any investigating one of its FDA-approved the Unfunded Mandates Reform Act of one year.’’ The current threshold after products for use in the rare disease that 1995 (Pub. L. 104–4). Executive Orders adjustment for inflation is $154 million, the non-profit account supports. The 12866 and 13563 direct us to assess all using the most current (2018) Implicit non-profit account disseminates costs and benefits of available regulatory Price Deflator for the Gross Domestic messages about charity events, scientific alternatives and, when regulation is Product. This proposed rule would not conferences, support groups, and rare necessary, to select regulatory result in an expenditure in any year that disease research and drug development. approaches that maximize net benefits meets or exceeds this amount. The firm account does not make any (including potential economic, 2. Summary of Costs and Benefits comments or otherwise endorse any environmental, public health and safety, specific posts on the non-profit account. and other advantages; distributive The proposed rule clarifies but does • During an internal meeting, a firm’s impacts; and equity). Executive Order not change FDA’s interpretation and CEO displays a slide of internal sales 13771 requires that the costs associated application of existing intended use projections for its approved product. with significant new regulations ‘‘shall, regulations for medical products. The slide reflects potential sales for an to the extent permitted by law, be offset The benefits of this rule are additional unapproved use that is widely by the elimination of existing costs clarity and certainty for manufacturers recognized as the standard of care. associated with at least two prior and stakeholders regarding evidence • A firm makes corporate filings or regulations.’’ This proposed rule is not that is relevant in evaluating whether an submissions to the U.S. Securities and expected to be subject to the Exchange Commission that include requirements of Executive Order 13771 article is intended for use as a drug or required disclosures of development because this proposed rule is expected device. activities or potential or actual sales for to result in no more than de minimis This proposed rule is not expected to an unapproved use. costs. This proposed rule is a significant impose any significant additional costs • Following a clinical trial, the regulatory action as defined by on firms. Although this rule may impact sponsoring firm prepares a plain- Executive Order 12866. firms’ future marketing, product language summary of the aggregated The Regulatory Flexibility Act development, and communication clinical trial results and provides the requires us to analyze regulatory options strategies, firms are not required to summary solely to clinical trial that would minimize any significant make any changes to labeling, marketing participants to acknowledge their impact of a rule on small entities. We materials, or operating procedures. contributions to scientific and medical cannot predict how many companies Additionally, this rule does not extend advancement (not to inform prescribing may revise labeling, advertising, or FDA’s jurisdiction to any new products. TABLE 1—SUMMARY OF BENEFITS, COSTS, AND DISTRIBUTIONAL EFFECTS OF PROPOSED RULE

Units Category Primary Low High Discount Notes estimate estimate estimate Year rate Period dollars (percent) covered

Benefits: Annualized ...... 7 ......

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TABLE 1—SUMMARY OF BENEFITS, COSTS, AND DISTRIBUTIONAL EFFECTS OF PROPOSED RULE—Continued

Units Category Primary Low High Discount Notes estimate estimate estimate Year rate Period dollars (percent) covered

Monetized $millions/year ...... 3 ...... Annualized ...... 7 ...... Quantified ...... 3 ......

Qualitative ...... Clarification of intended use ...... interpretation and application

Costs: Annualized ...... 7 ...... Monetized $millions/year ...... 3 ...... Annualized ...... 7 ...... Quantified ...... 3 ......

Qualitative ...... Negligible costs, if any ......

Transfers: Federal ...... 7 ...... Annualized Monetized $millions/year ...... 3 ......

From/To ...... From: To: ......

Other ...... 7 ...... Annualized Monetized $millions/year ...... 3 ......

From/To ...... From: To: ......

Effects: State, Local or Tribal Government: None Small Business: None Wages: None Growth: None

B. Preliminary Economic Analysis of purposes, or uses other than ones for 11639), FDA delayed the amendments Impacts which it is approved (if any).’’ to §§ 201.128 and 801.4 until further notice. This proposed rule adopts the 1. Background In the Federal Register of February 7, 2017 (82 FR 9501), FDA delayed the general approach set forth in the This rule clarifies FDA’s longstanding effective date of the January 2017 final September 2015 proposed rule by position that the intended use of a drug rule until March 2017. In February deleting the final sentence; the proposed or device product can be based on any 2017, various industry organizations rule also clarifies FDA’s interpretation relevant source of evidence by filed a petition raising concerns with the and application of evidence relevant to describing types of evidence relevant to January 2017 final rule, requesting determining intended use. the intended use of a product and types reconsideration and a stay. The petition 2. Benefits of the Proposed Rule of evidence that, standing alone, are not requested that FDA reconsider the determinative of intended use. amendments to the ‘‘intended use’’ The proposed rule clarifies FDA’s One important clarification involves a regulations and issue a new final rule existing interpretation of the manufacturer’s knowledge of that, with respect to the intended use determination of the intended use of unapproved uses of its approved regulations at §§ 201.128 and 801.4, drugs and devices. This clarification product. Current versions of §§ 201.128 reverted to the language of the should reduce manufacturer and and 801.4 specify that a manufacturer of September 2015 proposed rule. The stakeholder uncertainty regarding the a drug (§ 201.128) or device (§ 801.4) petition also requested that FDA scenarios in which specific types of must include adequate labeling if it indefinitely stay the rule because evidence may or may not show a knows its product is used for an petitioners argued that the final rule was product is intended for a drug or device unapproved purpose. The September issued in violation of the fair notice use. Removal of the final sentence in 2015 proposed rule (80 FR 57756 at requirement under the Administrative §§ 201.128 and 801.4 and the inclusion 57764) removed the sentence regarding Procedure Act and that the ‘‘totality of of a new clarifying clause (‘‘provided, the requirement to provide adequate the evidence’’ language in the 2017 final however, that a firm would not be labeling if a firm knows its product is rule was a new and unsupported legal regarded as intending an unapproved being used for an unapproved use. The standard. new use for an [approved or cleared amended January 2017 final rule (82 FR In the Federal Register of March 20, medical product] based solely on that 2193 at 2217) was intended to clarify 2017 (82 FR 14319), FDA further firm’s knowledge that such [product] FDA’s position by requiring delayed the effective date of the final was being prescribed or used by health manufacturers to include adequate rule until March 2018 and opened the care providers for such use’’) eliminate labeling ‘‘if the totality of the evidence docket for additional public comment. any question about whether establishes that a manufacturer Following some comments supporting manufacturers need to think about objectively intends that a drug the delay and proposing specific developing an action plan or strategy introduced into interstate commerce by changes to the language in §§ 201.128 related to a potential new intended use him is to be used for conditions, and 801.4, on March 16, 2018 (83 FR of their approved or cleared medical

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products due merely to knowledge of distributors. We do not have any reason least 17.5% of businesses in NAICS unapproved uses of these products by to believe firms will change their code 32541 (Pharmaceutical and third parties. We believe this marketing or operating procedures as a Medicine Manufacturing) are clarification is the benefit of the result of this rule. We request comment considered small; and at least 32.6% of proposed rule; we request comment on on this assumption. We do not have businesses in NAICS code 33911 this assumption. evidence that this proposed rule would (Medical Equipment and Supplies impose costs on currently marketed 3. Costs of the Proposed Rule Manufacturing) are considered small. products. We request comment on this Because the proposed rule is not The proposed rule is not expected to assumption. impose significant additional costs on expected to impose costs on manufacturers and distributors of FDA- C. Initial Small Entity Analysis manufacturers or distributors of FDA- regulated products. The proposed rule In table 2, we describe the Small regulated products, the proposed rule is does not extend FDA’s regulatory Business Administration’s size also not expected to impose costs on authority to any new or additional thresholds for industries affected by the small entities. Therefore, we propose to products, nor does the rule change the proposed rule. Based on U.S. Census certify that the proposed rule will not current approach to evaluating intended data, at least 22.9% of businesses in have a significant economic impact on use or impose any additional NAICS code 21323 (Tobacco a substantial number of small entities. requirements on manufacturers or Manufacturing) are considered small; at

TABLE 2—SMALL BUSINESS ADMINISTRATION SIZE STANDARDS FOR AFFECTED INDUSTRIES

NAICS code Industry description Small business threshold

312230 ...... Tobacco Manufacturing ...... Fewer than 1,500 Employees. 325411 ...... Medicinal and Botanical Manufacturing ...... Fewer than 1,000 Employees. 325412 ...... Pharmaceutical Preparation Manufacturing ...... Fewer than 1,250 Employees. 325413 ...... In-vitro Diagnostic Substance Manufacturing ...... Fewer than 1,250 Employees. 325414 ...... Biological Product (except Diagnostic) Manufacturing ...... Fewer than 1,250 Employees. 339112 ...... Surgical and Medical Instrument Manufacturing ...... Fewer than 1,000 Employees. 339113 ...... Surgical Appliance and Supplies Manufacturing ...... Fewer than 750 Employees. 339114 ...... Dental Equipment and Supplies Manufacturing ...... Fewer than 750 Employees. 339115 ...... Ophthalmic Goods Manufacturing ...... Fewer than 1,000 Employees. 339116 ...... Dental Laboratories ...... Fewer than 500 Employees.

VIII. Analysis of Environmental Impact summary impact statement is not 1. Plaintiff’s Memorandum of Law at 38–40, required. Allergan Inc. v. United States, 1:09–cv– We have determined under 21 CFR 01879–JDB (D.D.C. January 15, 2010). 25.30(h) and (k) that this action is of a XI. Consultation and Coordination With 2. Complaint at ¶¶ 35–37, Par type that does not individually or Indian Tribal Governments Pharmaceutical Inc. v. United States, cumulatively have a significant effect on 1:11–cv–01820 (D.D.C. October 10, the human environment. Therefore, We have analyzed this proposed rule 2011). neither an environmental assessment in accordance with the principles set 3. Citizen Petition from the Medical nor an environmental impact statement forth in Executive Order 13175. We Information Working Group at 18, FDA– is required. have tentatively determined that the 2013–P–1079 (Sept. 3, 2013). rule does not contain policies that 4. Memorandum for the Heads of Executive IX. Paperwork Reduction Act of 1995 would have a substantial direct effect on Departments and Agencies, from Reince one or more Indian Tribes, on the Priebus, Assistant to the President and FDA tentatively concludes that this Chief of Staff, ‘‘Regulatory Freeze proposed rule contains no collection of relationship between the Federal Pending Review,’’ January 20, 2017 information. Therefore, clearance by the Government and Indian Tribes, or on (available at https:// Office of Management and Budget under the distribution of power and www.whitehouse.gov/presidential- the Paperwork Reduction Act of 1995 is responsibilities between the Federal actions/memorandum-heads-executive- not required. Government and Indian Tribes. The departments-agencies/), accessed Agency solicits comments from tribal February 5, 2020. X. Federalism officials on any potential impact on 5. FDA, Guidance for Industry, ‘‘Medical Indian Tribes from this proposed action. Product Communications That Are We have analyzed this proposed rule Consistent With the FDA-Required in accordance with the principles set XII. References Labeling—Questions and Answers,’’ June forth in Executive Order 13132. We 2018 (available at https://www.fda.gov/ have determined that the proposed rule The following references are on media/102575/download), accessed does not contain policies that have display at the Dockets Management Staff February 5, 2020. substantial direct effects on the States, (see ADDRESSES) and are available for 6. FDA, Guidance for Industry and Review on the relationship between the viewing by interested persons between Staff, ‘‘Drug and Device Manufacturer National Government and the States, or 9 a.m. and 4 p.m., Monday through Communications With Payors, on the distribution of power and Friday; they are also available Formulary Committees, and Similar responsibilities among the various electronically at https:// Entities—Questions and Answers,’’ June 2018 (available at https://www.fda.gov/ levels of government. Accordingly, we www.regulations.gov. FDA has verified media/102683/download), accessed conclude that the rule does not contain the website addresses, as of the date this February 5, 2020. policies that have federalism document publishes in the Federal 7. FDA, Guidance for Industry, ‘‘Industry- implications as defined in the Executive Register, but websites are subject to Supported Scientific and Educational order and, consequently, a federalism change over time. Activities,’’ December 1997 (available at

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https://www.fda.gov/media/70844/ a firm would not be regarded as Dated: September 8, 2020. download), accessed February 5, 2020. intending an unapproved new use for an Stephen M. Hahn, 8. FDA, Draft Guidance for Industry, approved drug based solely on that Commissioner of Food and Drugs. ‘‘Distributing Scientific and Medical Publications on Unapproved New Uses— firm’s knowledge that such drug was [FR Doc. 2020–20437 Filed 9–22–20; 8:45 am] Recommended Practices,’’ February 2014 being prescribed or used by health care BILLING CODE 4164–01–P (available at https://www.fda.gov/media/ providers for such use. The intended 88031/download), accessed February 5, uses of an article may change after it has 2020. been introduced into interstate ENVIRONMENTAL PROTECTION 9. FDA, Draft Guidance for Industry, ‘‘Responding to Unsolicited Requests for commerce by its manufacturer. If, for AGENCY Off-Label Information About Prescription example, a packer, distributor, or seller Drugs and Medical Devices,’’ December intends an article for different uses than 40 CFR Part 52 2011 (available at https://www.fda.gov/ those intended by the person from [EPA–R09–OAR–2020–0418; FRL–10013– media/82660/download), accessed whom he or she received the article, 74–Region 9] February 5, 2020. such packer, distributor, or seller is 10. Eguale, T., D.L. Buckeridge, A. Verma, et required to supply adequate labeling in Air Quality Implementation Plan; al., ‘‘Association of Off-Label Drug Use California; Northern Sierra Air Quality and Adverse Drug Events in an Adult accordance with the new intended uses. Population,’’ Journal of American Management District; Stationary Medical Association Internal Medicine, PART 801—LABELING Source Permits 176(1):55–63, 2016. AGENCY: Environmental Protection ■ 3. The authority citation for part 801 List of Subjects Agency (EPA). continues to read as follows: ACTION: Proposed rule. 21 CFR Part 201 Authority: 21 U.S.C. 321, 331, 351, 352, Drugs, Labeling, Reporting and 360d, 360i, 360j, 371, 374. SUMMARY: The Environmental Protection recordkeeping requirements. Agency (EPA) is proposing to approve a ■ 4. Revise § 801.4 to read as follows: 21 CFR Part 801 revision to the Northern Sierra Air § 801.4 Meaning of intended uses. Quality Management District (NSAQMD Labeling, Medical devices, Reporting or ‘‘District’’) portion of the California and recordkeeping requirements. The words intended uses or words of State Implementation Plan (SIP). In this Therefore, under the Federal Food, similar import in §§ 801.5, 801.119, action, we are proposing to approve a Drug, and Cosmetic Act and under 801.122, and 1100.5 of this chapter refer rule submitted by the NSAQMD that authority delegated to the Commissioner to the objective intent of the persons governs the issuance of permits for of Food and Drugs, we propose that 21 legally responsible for the labeling of an stationary sources, which focuses on the CFR parts 201 and 801 be amended as article (or their representatives). The preconstruction review and permitting follows: intent may be shown by such persons’ of major sources and major modifications under part D of title I of PART 201—LABELING expressions, the design or composition of the article, or by the circumstances the Clean Air Act (CAA or ‘‘the Act’’). ■ 1. The authority citation for part 201 surrounding the distribution of the We are taking comments on this is revised to read as follows: article. This objective intent may, for proposal and a final action will follow. DATES: Written comments must be Authority: 21 U.S.C. 321, 331, 343, 351, example, be shown by labeling claims, 352, 353, 355, 358, 360, 360b, 360ccc, advertising matter, or oral or written received on or before October 23, 2020. 360ccc–1, 360ee, 360gg–360ss, 371, 374, statements by such persons or their ADDRESSES: Submit your comments, 379e; 42 U.S.C. 216, 241, 262, 264. representatives. Objective intent may be identified by Docket ID No. EPA–R09– ■ 2. Revise § 201.128 to read as follows: shown, for example, by circumstances OAR–2020–0418 at https:// in which the article is, with the www.regulations.gov, or via email to § 201.128 Meaning of intended uses. knowledge of such persons or their [email protected]. For comments The words intended uses or words of representatives, offered or used for a submitted at Regulations.gov, follow the similar import in §§ 201.5, 201.115, purpose for which it is neither labeled online instructions for submitting 201.117, 201.119, 201.120, 201.122, and nor advertised; provided, however, that comments. Once submitted, comments 1100.5 of this chapter refer to the a firm would not be regarded as cannot be removed or edited from objective intent of the persons legally intending an unapproved new use for an Regulations.gov. For either manner of submission, the EPA may publish any responsible for the labeling of an article approved or cleared device based solely (or their representatives). The intent comment received to its public docket. on that firm’s knowledge that such may be shown by such persons’ Do not submit electronically any device was being prescribed or used by expressions, the design or composition information you consider to be of the article, or by the circumstances health care providers for such use. The Confidential Business Information (CBI) surrounding the distribution of the intended uses of an article may change or other information the disclosure of article. This objective intent may, for after it has been introduced into which is restricted by statute. example, be shown by labeling claims, interstate commerce by its Multimedia submissions (audio, video, advertising matter, or oral or written manufacturer. If, for example, a packer, etc.) must be accompanied by a written statements by such persons or their distributor, or seller intends an article comment. The written comment is representatives. Objective intent may be for different uses than those intended by considered the official comment and shown, for example, by circumstances the person from whom he or she should include discussion of all points in which the article is, with the received the article, such packer, you wish to make. The EPA will knowledge of such persons or their distributor, or seller is required to generally not consider comments or representatives, offered or used for a supply adequate labeling in accordance comment contents located outside of the purpose for which it is neither labeled with the new intended uses. primary submission (i.e., on the web, nor advertised; provided, however, that cloud, or other file sharing system). For

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additional submission methods, please Hawthorne St., San Francisco, CA III. Proposed Action and Public Comment contact the person identified in the FOR 94105; by phone: (415) 947–4174, or by IV. Incorporation by Reference FURTHER INFORMATION CONTACT section. email to [email protected]. V. Statutory and Executive Order Reviews For the full EPA public comment policy, SUPPLEMENTARY INFORMATION: I. The State’s Submittal information about CBI and multimedia Throughout this document, the terms submissions, and general guidance on ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to the EPA. A. What rule did the State submit? making effective comments, please visit Table of Contents https://www2.epa.gov/dockets/ Table 1 lists the rule addressed by this commenting-epa-dockets. If you need I. The State’s Submittal proposal, including the date on which it assistance in a language other than A. What rule did the State submit? was adopted by the District and the date B. Are there other versions of this rule? on which it was submitted to the EPA English or if you are a person with C. What is the purpose of the submitted disabilities who needs a reasonable by the California Air Resources Board rule? (CARB or ‘‘the State’’). The Northern accommodation at no cost to you, please II. The EPA’s Evaluation contact the person identified in the FOR A. What is the background for this Sierra Air Quality Management District FURTHER INFORMATION CONTACT section. proposal? (NSAQMD) is the air pollution control B. How is the EPA evaluating the rule? agency for Nevada, Sierra, and Plumas FOR FURTHER INFORMATION CONTACT: C. Does the rule meet the evaluation Counties. Amber Batchelder, EPA Region IX, 75 criteria?

TABLE 1—SUBMITTED RULES

District Rule No. Rule title Adopted Submitted1

NSAQMD ...... 428 NSR Requirements for New and Modified Major Sources in Non- 11/25/19 02/19/20 attainment Areas.

For areas designated nonattainment II. The EPA’s Evaluation NAAQS.5 On December 3, 2012, the for one or more National Ambient Air EPA issued a final rule that determined A. What is the background for this Quality Standards (NAAQS), the that the western part of Nevada County proposal? applicable SIP must include had attained the 1997 ozone NAAQS by 6 preconstruction review and permitting Because a part of Nevada County(‘‘the the extended attainment date. requirements for new or modified major western part’’) is a federal ozone On March 27, 2008, the EPA issued a stationary sources of such nonattainment area and part of Plumas final rule revising the NAAQS for nonattainment pollutant(s) under part D County (‘‘the Portola area’’) is a federal ozone, reducing the standards to a level 2 7 of title I of the Act, commonly referred PM2.5 nonattainment area, the CAA of 0.075 ppm. On May 21, 2012, the to as Nonattainment New Source requires the NSAQMD to have a SIP- EPA issued a final rule designating the Review (NNSR). The rule listed in Table approved NNSR program for new and western part of Nevada County as 1 contains the District’s NNSR permit modified major sources in the ozone nonattainment for the 2008 8-hour program applicable to new and and PM nonattainment areas that are ozone NAAQS, with a Marginal 2.5 classification.8 On May 4, 2016, the EPA modified major sources located in areas under its jurisdiction. Below, we issued a final rule that determined that within the District that are designated provide the area’s nonattainment the western part of Nevada County had nonattainment for any NAAQS for designation history for the ozone and ozone or particulate matter equal to or not attained the 2008 ozone NAAQS by PM2.5 NAAQS, which forms the basis for the attainment date and was therefore less than 2.5 micrometers (PM2.5). the District’s NNSR program needed to reclassified as a Moderate We find that the submittal for Rule satisfy the NNSR requirements nonattainment area.9 On August 23, 428 meets the completeness criteria in applicable to Serious ozone 2019, the EPA issued a final rule that 40 CFR part 51 Appendix V, which nonattainment areas and Moderate determined that the western part of must be met before formal EPA review. PM2.5 nonattainment areas. Nevada County had not attained the 2008 ozone NAAQS by the attainment B. Are there other versions of this rule? On July 18, 1997, the EPA issued a final rule revising the primary and date and was therefore reclassified as a There are no previous versions of secondary NAAQS for ozone to Serious ozone nonattainment area.10 NSAQMD Rule 428 in the California establish new 8-hour standards of 0.08 On October 26, 2015, the EPA issued SIP. ppm.3 On April 30, 2004, the EPA a final rule revising the NAAQS for issued a final rule designating the ozone, reducing the standards to a level C. What is the purpose of the submitted western part of Nevada County as of 0.070 ppm.11 On June 4, 2018, the rule? nonattainment for the 1997 8-hour EPA issued a final rule designating the NSAQMD Rule 428 is intended to ozone NAAQS.4 On May 14, 2012, this western part of Nevada County as address the CAA’s statutory and area was reclassified as Moderate nonattainment for the 2015 8-hour regulatory requirements for NNSR nonattainment for the 1997 ozone 5 permit programs for major sources 77 FR 28424; see also 77 FR 43521 (July 25, 2012); 40 CR 81.305. 2 While the NSAQMD includes all of Nevada, emitting nonattainment air pollutants 6 Sierra, and Plumas Counties, only the western part 77 FR 71551. and their precursors. of Nevada County is nonattainment for ozone, and 7 40 CFR 50.15; see 73 FR 16436, 16511. only a specific part of Plumas County is 8 77 FR 30088, 30103. 9 nonattainment for PM2.5. See 40 CFR part 81.305. 81 FR 26697. 1 The submittal was transmitted to the EPA via a 3 40 CFR 50.10; see 62 FR 38856, 38894–38895. 10 84 FR 44238; see 40 CFR 81.305. letter from CARB dated February 6, 2020. 4 69 FR 23858, 23889. 11 40 CFR 50.19; see 80 FR 65292, 65452–53.

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ozone NAAQS, with a Moderate 110(a)(2)(E)(i); 17 and (5) SIP revisions as the EPA for SIP approval to be clear and classification.12 set forth in CAA section 110(l) 18 and legally enforceable, and have On January 15, 2013, the EPA issued 193.19 Our review evaluated the determined that the submittal a final rule revising the NAAQS for submittals for compliance with the demonstrates in accordance with CAA PM2.5, reducing the primary annual NNSR requirements applicable to section 110(a)(2)(E)(i) that the District standard to 12.0 micrograms per cubic nonattainment areas designated Serious has adequate personnel, funding, and meter.13 On January 15, 2015, the EPA for ozone and nonattainment areas authority under state law to carry out issued a final rule designating the designated Moderate for PM2.5, and these proposed SIP revisions. Portola area as nonattainment for the ensured that the submittals addressed Our Technical Support Document, 2012 primary annual PM2.5 NAAQS, the NNSR requirements for the 1997, which can be found in the docket for with a Moderate classification.14 2008 and 2015 ozone NAAQS, and the this rule, contains a more detailed The designations of the western part 2012 Annual PM2.5 NAAQS. discussion of our analysis of Rule 428. of Nevada County as a federal ozone C. Does the rule meet the evaluation III. Proposed Action and Public nonattainment area and the Portola area criteria? Comment as a federal PM2.5 nonattainment area triggered the requirement for the With respect to procedural As authorized in section 110(k)(3) of NSAQMD to develop and submit an requirements, CAA sections 110(a)(2) the Act, the EPA is proposing to NNSR program to the EPA for approval and 110(l) require that revisions to a SIP approve the submitted rule because it into the California SIP.15 The District’s be adopted by the state after reasonable fulfills all relevant CAA requirements. NNSR program must satisfy the NNSR notice and public hearing. Based on our We have concluded that our approval of requirements applicable to Moderate review of the public process the submitted rule would comply with documentation included in the February PM2.5 nonattainment areas and Serious the relevant provisions of CAA sections ozone nonattainment areas, as these are 19, 2020 submittal of NSAQMD Rule 110(a)(2), 110(l), 172(c)(5), 173, and 193, 428, we find that the NSAQMD has the highest PM2.5 and ozone and 40 CFR 51.160–51.165 and 40 CFR nonattainment classifications to which provided sufficient evidence of public 51.307. the District is subject.16 notice, opportunity for comment and a In support of this proposed action, we On February 19, 2020, CARB public hearing prior to adoption and have concluded that our action would submitted to the EPA for SIP approval, submittal of these rules to the EPA. comply with section 110(l) of the Act via correspondence dated February 6, With respect to the substantive because approval of NSAQMD Rule 428 2020, NSAQMD Rule 428, ‘‘NSR requirements found in CAA sections will not interfere with any applicable Requirements for New and Modified 172(c)(5) and 173, and 40 CFR 51.160– requirement concerning attainment and Major Sources in Nonattainment Areas,’’ 51.165, we have evaluated NSAQMD reasonable further progress, or any other which was adopted by the District on Rule 428 in accordance with the CAA applicable requirement. In November 25, 2019. applicable CAA and regulatory addition, our approval of Rule 428 will requirements that apply to NNSR permit not relax any pre-November 15, 1990 B. How is the EPA evaluating the rule? programs under part D of title I of the requirement in the SIP, and therefore The EPA reviewed NSAQMD Rule Act for all relevant ozone and PM2.5 changes to the SIP resulting from this 428 for compliance with CAA NAAQS, including the 2015 ozone action ensure greater or equivalent NAAQS. We find that NSAQMD Rule requirements for: (1) Stationary source emission reductions of ozone, PM2.5, preconstruction permitting programs as 428 satisfies these requirements as they and their respective precursors in the set forth in CAA part D, including CAA apply to sources subject to NNSR permit District; accordingly, we have sections 172(c)(5) and 173; (2) the program requirements for ozone concluded that our action is consistent review and modification of major nonattainment areas classified as with the requirements of CAA section sources in accordance with 40 CFR Serious and PM2.5 nonattainment areas 193. 51.160–51.165 as applicable in Serious classified as Moderate. We have also If we finalize this action as proposed, determined that this rule satisfies the ozone and Moderate PM2.5 our action will be codified through nonattainment areas; (3) the review of related visibility requirements in 40 revisions to 40 CFR 52.220a new major stationary sources or major CFR 51.307. In addition, we have (Identification of plan-in part). modifications in a designated determined that Rule 428 satisfies the We will accept comments from the nonattainment area that may have an requirement in CAA section 110(a)(2)(A) public on this proposal until October impact on visibility in any mandatory that requires regulations submitted to 23, 2020. Class I Federal Area in accordance with 17 CAA section 110(a)(2)(A) requires that IV. Incorporation by Reference 40 CFR 51.307; (4) SIPs in general as set regulations submitted to the EPA for SIP approval forth in CAA section 110(a)(2), be clear and legally enforceable, and CAA section In this rule, the EPA is proposing to including 110(a)(2)(A) and 110(a)(2)(E)(i) requires that states have adequate include in a final EPA rule regulatory personnel, funding, and authority under state law text that includes incorporation by to carry out their proposed SIP revisions. 12 reference. In accordance with 83 FR 25776, 25788; see 40 CFR 81.305. 18 CAA section 110(l) requires SIP revisions to be 13 40 CFR 50.18; see 78 FR 3086, 3277. subject to reasonable notice and public hearing requirements of 1 CFR 51.5, the EPA is 14 80 FR 2206, 2218; see 40 CFR 81.305. prior to adoption and submittal by states to EPA proposing to incorporate by reference 15 40 CFR 51.1003(a)(1), 51.1100(o)(14), and prohibits EPA from approving any SIP revision the rule listed in Table 1 of this 51.1105(a) and (f), 51.1114, 51.1314. We note that, that would interfere with any applicable preamble. The EPA has made, and will as a result of the EPA’s determination that an area requirement concerning attainment and reasonable has attained a NAAQS by the attainment date, those further progress, or any other applicable continue to make, this document SIP elements related to attaining the NAAQS are requirement of the CAA. available electronically through https:// suspended for so long as the area continues to attain 19 CAA section 193 prohibits the modification of www.regulations.gov and in hard copy the standard; however, the requirement for an any SIP-approved control requirement in effect at the EPA Region IX Office (please NNSR program is not one of the SIP elements before November 15, 1990 in a nonattainment area, FOR suspended as a result of such a determination. See, unless the modification ensures equivalent or contact the person identified in the e.g., 40 CFR 51.1118. greater emission reductions of the relevant FURTHER INFORMATION CONTACT section of 16 See 40 CFR 51.1003(a)(1), 51.1105(f), 51.1114. pollutants. this preamble for more information).

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V. Statutory and Executive Order or in any other area where the EPA or previously submitted need not be Reviews an Indian tribe has demonstrated that a resubmitted and will be fully Under the CAA, the Administrator is tribe has jurisdiction. In those areas of considered in preparation of the final required to approve a SIP submission Indian country, the rule does not have rule. We also announce a public that complies with the provisions of the tribal implications and will not impose informational meeting and public Act and applicable federal regulations. substantial direct costs on tribal hearing on the proposed rule. 42 U.S.C. 7410(k); 40 CFR 52.02(a). governments or preempt tribal law as DATES: Thus, in reviewing SIP submissions, the specified by Executive Order 13175 (65 Written comments: The comment EPA’s role is to approve state choices, FR 67249, November 9, 2000). period on the proposed rule that provided that they meet the criteria of List of Subjects in 40 CFR Part 52 published November 26, 2019 (84 FR the Act. Accordingly, this proposed 65098), is reopened. We will accept Environmental protection, Air action merely proposes to approve state comments received or postmarked on or pollution control, Incorporation by law as meeting federal requirements and before October 23, 2020. Please note that reference, Intergovernmental relations, does not impose additional comments submitted electronically Nitrogen dioxide, Ozone, Particulate requirements beyond those imposed by using the Federal eRulemaking Portal matter, Reporting and recordkeeping state law. For that reason, this proposed (see ADDRESSES, below) must be requirements, Volatile organic action: received by 11:59 p.m. Eastern Time on compounds. • Is not a ‘‘significant regulatory the closing date, and comments action’’ subject to review by the Office Authority: 42 U.S.C. 7401 et seq. submitted by U.S. mail must be of Management and Budget under Dated: August 28, 2020. postmarked by that date to ensure consideration. Executive Orders 12866 (58 FR 51735, John Busterud, Public informational meeting and October 4, 1993) and 13563 (76 FR 3821, Regional Administrator, Region IX. January 21, 2011); public hearing: On October 8, 2020, we [FR Doc. 2020–19587 Filed 9–22–20; 8:45 am] • Is not an Executive Order 13771 (82 will hold a public informational FR 9339, February 3, 2017) regulatory BILLING CODE 6560–50–P meeting from 6 to 7 p.m., Central Time, action because SIP approvals are followed by a public hearing from 7 to exempted under Executive Order 12866; 8:30 p.m., Central Time. • Does not impose an information DEPARTMENT OF THE INTERIOR ADDRESSES: collection burden under the provisions Availability of documents: You may Fish and Wildlife Service of the Paperwork Reduction Act (44 obtain copies of the November 26, 2019, U.S.C. 3501 et seq.); proposed rule and associated • Is certified as not having a 50 CFR Part 17 documents on the internet at http:// significant economic impact on a [Docket No. FWS–R4––2018–0062; www.regulations.gov under Docket No. substantial number of small entities FXES11130900000–189–FF0932000] FWS–R4–ES–2018–0062. under the Regulatory Flexibility Act (5 Written comments: You may submit U.S.C. 601 et seq.); RIN 1018–BD02 written comments by one of the • Does not contain any unfunded Endangered and Threatened Wildlife following methods: mandate or significantly or uniquely and Plants; Removal of the Nashville (1) Electronically: Go to the Federal affect small governments, as described Crayfish From the Federal List of eRulemaking Portal: http:// in the Unfunded Mandates Reform Act Endangered and Threatened Wildlife www.regulations.gov. In the Search box, of 1995 (Pub. L. 104–4); enter FWS–R4–ES–2018–0062, which is • Does not have federalism AGENCY: Fish and Wildlife Service, the docket number for the proposed implications as specified in Executive Interior. rule. Then, click on the Search button. Order 13132 (64 FR 43255, August 10, ACTION: Proposed rule; reopening of On the resulting page, in the Search 1999); comment period and announcement of panel on the left side of the screen, • Is not an economically significant public hearing. under the Document Type heading, regulatory action based on health or check the Proposed Rule box to locate safety risks subject to Executive Order SUMMARY: We, the U.S. Fish and this document. You may submit a 13045 (62 FR 19885, April 23, 1997); Wildlife Service (Service), proposed to comment by clicking on ‘‘Comment • Is not a significant regulatory action remove the Nashville crayfish Now!’’ Please ensure you have found subject to Executive Order 13211 (66 FR (Orconectes shoupi) from the Federal the correct document before submitting 28355, May 22, 2001); List of Endangered and Threatened your comments. If your comments will • Is not subject to requirements of Wildlife (List). This determination is fit in the provided comment box, please Section 12(d) of the National based on the best available scientific use this feature of http:// Technology Transfer and Advancement and commercial data, which indicate www.regulations.gov, as it is most Act of 1995 (15 U.S.C. 272 note) because that the threats to the species have been compatible with our comment review application of those requirements would eliminated or reduced to the point that procedures. If you attach your be inconsistent with the Clean Air Act; the species has recovered and no longer comments as a separate document, our and meets the definition of an endangered preferred file format is Microsoft Word. • Does not provide the EPA with the species or a threatened species under If you attach multiple comments (such discretionary authority to address the Endangered Species Act of 1973, as as form letters), our preferred format is disproportionate human health or amended (Act). We announced a 60-day a spreadsheet in Microsoft Excel. environmental effects with practical, public comment period on the proposed (2) By hard copy: Submit by U.S. mail appropriate, and legally permissible rule, ending January 27, 2020. We now to: Public Comments Processing, Attn: methods under Executive Order 12898 reopen the public comment period on FWS–R4–ES–2018–0062, U.S. Fish and (59 FR 7629, February 16, 1994). the proposed rule to allow all interested Wildlife Service, MS: PRB/3W, 5275 In addition, the SIP is not approved parties additional time to comment on Leesburg Pike, Falls Church, VA 22041– to apply on any Indian reservation land the proposed rule. Comments 3803.

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We request that you send comments For example, we may conclude that the on http://www.regulations.gov at Docket only by the methods described above. species should remain listed as an No. FWS–R4–ES–2018–0062. We will post all comments on http:// endangered species instead of being www.regulations.gov. This generally removed from the List, or we may Public Hearing means that we will post any personal conclude that the species should be We have scheduled a public information you provide us (see Public reclassified as a threatened species. informational meeting and public Comments, below, for more Such final decisions would be a logical hearing on our November 26, 2019, information). outgrowth of the proposal, as long as proposed rule to delist the Nashville Public informational meeting and we: (a) Base the decisions on the best crayfish (84 FR 65098). We will hold the public hearing: The public scientific and commercial data available public informational meeting and public after considering all of the relevant informational meeting and the public hearing on the date and at the times factors; (2) do not rely on factors hearing will be held virtually using the listed above under Public informational Congress has not intended us to Zoom platform. See Public Hearing, meeting and public hearing in DATES. consider; and (3) articulate a rational below, for more information. We are holding the public informational connection between the facts found and FOR FURTHER INFORMATION CONTACT: Lee meeting and public hearing via the Andrews, Field Supervisor, U.S. Fish the conclusions made, including why we changed our conclusion. Zoom online video platform and via and Wildlife Service, Tennessee teleconference so that participants can Ecological Services Field Office, 446 If you already submitted comments or information on the November 26, 2019, attend remotely. For security purposes, Neal Street St., Cookeville, TN 38506; proposed rule (84 FR 65098), please do registration is required. To listen and telephone 931–528–6481. Persons who not resubmit them. Any such comments view the meeting and hearing via Zoom, use a telecommunications device for the are incorporated as part of the public listen to the meeting and hearing by deaf (TDD) may call the Federal Relay record of the rulemaking proceeding, telephone, or provide oral public Service at 800–877–8339. and we will fully consider them in the comments at the public hearing by SUPPLEMENTARY INFORMATION: preparation of our final determination. Zoom or telephone, you must register. Background Comments should be as specific as For information on how to register, or if possible. Please include sufficient you encounter problems joining Zoom On November 26, 2019, we published information with your submission (such the day of the meeting, visit http:// a proposed rule (84 FR 65098) to remove as scientific journal articles or other www.fws.gov/cookeville/. Registrants the Nashville crayfish from the List (i.e., publications) to allow us to verify any will receive the Zoom link and the ‘‘delist’’ the species). The proposed rule scientific or commercial information telephone number for the public had a 60-day public comment period, you assert. Please note that submissions informational meeting and public ending January 27, 2020. During the merely stating support for, or opposition hearing. If applicable, interested comment period for the proposed rule, to, the action under consideration members of the public not familiar with we received a request for a public without providing supporting the Zoom platform should view the hearing. We are, therefore, reopening information, although noted, will not be Zoom video tutorials (https:// the comment period for 30 days on our considered in making a determination, support.zoom.us/hc/en-us/articles/ proposed rule to delist the Nashville as section 4(b)(1)(A) of the Act directs 206618765-Zoom-video-tutorials) prior crayfish (see DATES, above) to hold a that determinations as to whether any to the public informational meeting and public informational meeting and a species is an endangered species or a public hearing. public hearing and to allow the public threatened species must be made The public hearing will provide an additional opportunity to provide ‘‘solely on the basis of the best scientific interested parties an opportunity to comments on the proposed rule. and commercial data available.’’ For a description of previous Federal You may submit your comments and present verbal testimony (formal, oral actions concerning the Nashville materials by one of the methods listed comments) regarding the November 26, crayfish, please refer to the November in ADDRESSES. We request that you send 2019, proposed rule to delist the 26, 2019, proposed rule (84 FR 65098). comments only by the methods Nashville crayfish (84 FR 65098). While the public informational meeting will be Public Comments described in ADDRESSES. You may also provide your comments through verbal an opportunity for dialogue with the We will accept comments and testimony during the public hearing (see Service, the public hearing is not; it is information during this reopened DATES, ADDRESSES, and Public Hearing a forum for accepting formal verbal comment period on our proposed rule to in this document). testimony. In the event there is a large delist the Nashville crayfish. We will If you submit information via http:// attendance, the time allotted for oral consider information and www.regulations.gov, your entire statements may be limited. Therefore, recommendations from all interested submission—including your personal anyone wishing to make an oral parties. We intend that any final action identifying information—will be posted statement at the public hearing for the resulting from the proposal will be on the website. If your submission is record is encouraged to provide a based on the best scientific and made via a hardcopy that includes prepared written copy of their statement commercial data available and will be as personal identifying information, you to us through the Federal eRulemaking accurate and as effective as possible. may request at the top of your document Portal, U.S. mail, or hand-delivery (see Our final determination will take into that we withhold this information from ADDRESSES, above). There are no limits consideration all comments and any public review. However, we cannot on the length of written comments additional information we receive guarantee that we will be able to do so. submitted to us. Anyone wishing to during all comment periods on the We will post all hardcopy submissions make an oral statement at the public proposed rule. Therefore, the final on http://www.regulations.gov. hearing must register before the hearing decision may differ from the November Comments and materials we receive, (http://www.fws.gov/cookeville/). The 26, 2019, proposed rule (84 FR 65098), as well as supporting documentation we use of a virtual public hearing is based on our review of all information used in preparing this proposed rule, consistent with our regulations at 50 we receive during the comment periods. will be available for public inspection CFR 424.16(c)(3).

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Reasonable Accommodation speakers. Persons with disabilities Authors requiring reasonable accommodations to The Service is committed to providing participate in the meeting and/or The primary authors of this document access to the public informational hearing should contact the person listed are the Ecological Services staff of the meeting and public hearing for all under FOR FURTHER INFORMATION Southeast Regional Office, U.S. Fish and participants. Closed captioning will be CONTACT at least 5 business days prior Wildlife Service. available during the public to the date of the meeting and hearing Authority informational meeting and public to help ensure availability. An hearing. Further, a full audio and video accessible version of the Service’s The authority for this action is the recording and transcript of the public public informational meeting Endangered Species Act of 1973, as hearing will be posted online at http:// presentation will also be posted online amended (16 U.S.C. 1531 et seq.). www.fws.gov/cookeville/ after the at http://www.fws.gov/cookeville/ prior hearing. Participants will also have to the meeting and hearing (see DATES, Aurelia Skipwith, access to live audio during the public above). See http://www.fws.gov/ Director, U.S. Fish and Wildlife Service. informational meeting and public cookeville/ for more information about [FR Doc. 2020–20158 Filed 9–22–20; 8:45 am] hearing via their telephone or computer reasonable accommodation. BILLING CODE 4333–15–P

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Notices Federal Register Vol. 85, No. 185

Wednesday, September 23, 2020

This section of the FEDERAL REGISTER United States, active control and the individual listed under FOR FURTHER contains documents other than rules or eradication of cogongrass along the edge INFORMATION CONTACT. proposed rules that are applicable to the of the naturalized distribution area is The final EA and FONSI have been public. Notices of hearings and investigations, possible through an integrated prepared in accordance with: (1) The committee meetings, agency decisions and management strategy employing National Environmental Policy Act of rulings, delegations of authority, filing of 1969 (NEPA), as amended (42 U.S.C. petitions and applications and agency preventative, cultural, mechanical, statements of organization and functions are biological, and chemical methods. 4321 et seq.); (2) regulations of the examples of documents appearing in this On March 2, 2020, we published in Council on Environmental Quality for section. the Federal Register (85 FR 12250, implementing the procedural provisions Docket No. APHIS–2019–0083) a of NEPA (40 CFR parts 1500–1508); (3) notice 1 in which we announced the USDA regulations implementing NEPA DEPARTMENT OF AGRICULTURE availability, for public review and (7 CFR part 1b); and (4) the Animal and comment, of a draft programmatic Plant Health Inspection Service’s NEPA Animal and Plant Health Inspection environmental assessment (EA) that Implementing Procedures (7 CFR part Service examined the potential environmental 372). [Docket No. APHIS–2019–0083] impacts associated with establishing an Done in Washington, DC, this day of integrated management strategy to September 16, 2020. Availability of a Final Environmental control cogongrass, a noxious weed, in Mark Davidson, Assessment and Finding of No Alabama, Georgia, Mississippi, and Acting Administrator, Animal and Plant Significant Impact for Cogongrass South Carolina. Health Inspection Service. Control Efforts in Alabama, Georgia, We solicited comments on the EA for [FR Doc. 2020–20946 Filed 9–22–20; 8:45 am] Mississippi, and South Carolina 30 days ending April 1, 2020. We BILLING CODE 3410–34–P AGENCY: Animal and Plant Health received 11 comments by that date. The Inspection Service, USDA. comments addressed several topics of concern and were submitted by ACTION: Notice. COMMISSION ON CIVIL RIGHTS representatives of State forestry offices, SUMMARY: We are advising the public forest landowner organizations, and the Notice of Public Meetings of the that we have prepared a final public. Comments and our responses to Maryland Advisory Committee them are addressed in Appendix 1 of environmental assessment and finding AGENCY: Commission on Civil Rights. of no significant impact relative to the final EA. ACTION: Announcement of meeting. establishing an integrated management In this document, we are advising the strategy to control cogongrass, a noxious public of our finding of no significant SUMMARY: Notice is hereby given, weed, in Alabama, Georgia, Mississippi, impact (FONSI) regarding the pursuant to the provisions of the rules and South Carolina. Based on our establishment of an integrated and regulations of the U.S. Commission finding of no significant impact, we management strategy to control on Civil Rights (Commission), and the have determined that an environmental cogongrass. The finding, which is based Federal Advisory Committee Act impact statement need not be prepared. on the final EA, reflects our (FACA), that a meeting of the Maryland FOR FURTHER INFORMATION CONTACT: Ms. determination that the methods used as Advisory Committee to the Commission Anne LeBrun, APHIS, 4700 River Road, part of the integrated management will convene by conference call at 12:00 Unit 26, Riverdale, MD 20737; (301) strategy will not have a significant p.m. (EDT) on Tuesday, October 6, 2020. 851–2259; email: anne.lebrun@ impact on the quality of the human The purpose of the meeting is to usda.gov. environment. continue working on its project on The final EA and FONSI may be SUPPLEMENTARY INFORMATION: health care disparities during the viewed on the Regulations.gov website Cogongrass (Imperata cylindrica) is an COVID–19 pandemic. The Committee (see footnote 1). Copies of the final EA invasive, exotic perennial grass that is will hear from advocates and others on and FONSI are also available for public naturalized throughout the southeastern the topic. inspection at the U.S. Department of United States. Cogongrass grows in both DATES: Tuesday, October 6, 2020, at Agriculture (USDA), Room 1620, South natural and disturbed areas, including 12:00 p.m. (EDT). Building, 14th Street and Independence around homes, on public properties, Public Call-in Information: 1–866– Avenue SW, Washington, DC. Normal paved and unpaved roadways, 575–6539 and conference ID: 3918108. hours are between 8 a.m. and 4:30 p.m., forestland, stream banks, and farmland. FOR FURTHER INFORMATION CONTACT: Monday through Friday, except It spreads rapidly, reducing forest Barbara Delaviez at [email protected] or by holidays. Persons wishing to inspect productivity, harming wildlife habitat phone at 202–539–8246. copies are requested to call ahead on and native ecosystems, encroaching in SUPPLEMENTARY INFORMATION: Interested (202) 799–7039 to facilitate entry into pasture and hayfields, and impacting members of the public may listen to the the reading room. In addition, copies rights-of-way. It usually grows in warm discussion by calling the following toll- may be obtained by calling or writing to or tropical areas and is widely free conference call-in number: 1–866– distributed on all continents except 575–6539 and conference ID: 3918108. 1 To view the notice, supporting document, and Antarctica. the comments we received, go to http:// Please be advised that before placing While it is unlikely that cogongrass www.regulations.gov/#!docketDetail;D=APHIS- them into the conference call, the can be eliminated from the southeastern 2019-0083. conference call operator will ask callers

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to provide their names, their DEPARTMENT OF COMMERCE Rescission of Review organizational affiliations (if any), and International Trade Administration Pursuant to 19 CFR 351.213(d)(1), the email addresses (so that callers may be Secretary will rescind an administrative notified of future meetings). Callers can review, in whole or in part, if the party expect to incur charges for calls they [A–475–828] that requested the review withdraws the initiate over wireless lines, and the request within 90 days of the date of Stainless Steel Butt-Weld Pipe Fittings Commission will not refund any publication of the notice of initiation of From Italy: Rescission of Antidumping incurred charges. Callers will incur no the requested review. As noted above, Duty Administrative Review; 2019– charge for calls they initiate over land- the petitioners, the only party to file a 2020 line connections to the toll-free request for review, withdrew the sole conference call-in number. AGENCY: Enforcement and Compliance, review request within the 90-day Persons with hearing impairments International Trade Administration, deadline. Accordingly, we are may also follow the discussion by first Department of Commerce. rescinding the administrative review of the antidumping duty order on stainless calling the Federal Relay Service at 1– SUMMARY: The Department of Commerce 800–877–8339 and providing the (Commerce) is rescinding the steel butt-weld pipe fittings from Italy covering February 1, 2019 through operator with the toll-free conference administrative review of the January 31, 2020, in its entirety. call-in number: 1–866–575–6539 and antidumping duty order on stainless conference ID: 3918108. steel butt-weld pipe fittings from Italy Assessment for the period February 1, 2019, through Members of the public are invited to Commerce will instruct U.S. Customs January 31, 2020, based on the timely make statements during the open and Border Protection (CBP) to assess withdrawal of the request for review. comment period of the meeting or antidumping duties on all appropriate submit written comments. The DATES: Applicable September 23, 2020. entries of stainless steel butt-weld pipe comments must be received FOR FURTHER INFORMATION CONTACT: John fittings from Italy. Antidumping duties approximately 30 days after each K. Drury, AD/CVD Operations, Office shall be assessed at rates equal to the scheduled meeting. Written comments VI, Enforcement and Compliance, cash deposit of estimated antidumping may be emailed to Barbara Delaviez at International Trade Administration, duties required at the time of entry, or [email protected]. Persons who desire U.S. Department of Commerce, 1401 withdrawal from warehouse, for additional information may contact Constitution Avenue NW, Washington, consumption, in accordance with 19 Barbara Delaviez at 202–539–8246. DC 20230; telephone: (202) 482–0195. CFR 351.212(c)(1)(i). Commerce intends SUPPLEMENTARY INFORMATION: to issue appropriate assessment Records and documents discussed instructions to CBP 15 days after the during the meeting will be available for Background date of publication of this notice in the public viewing as they become available On February 3, 2020, Commerce Federal Register. at this FACA Link, click the ‘‘Meeting published in the Federal Register a Notification to Importers Details’’ and ‘‘Documents’’ links. notice of opportunity to request an Records generated from this meeting administrative review of the This notice serves as a reminder to may also be inspected and reproduced antidumping duty order on stainless importers of their responsibility under at the Eastern Regional Office, as they steel butt-weld pipe fittings from Italy 19 CFR 351.402(f)(2) to file a certificate become available, both before and after for the period of review covering regarding the reimbursement of the meetings. Persons interested in the February 1, 2019, through January 31, antidumping duties prior to liquidation work of this advisory committee are 2020.1 On February 28, 2020, Core Pipe of the relevant entries during this advised to go to the Commission’s Products, Inc., and Taylor Forge review period. Failure to comply with website, www.usccr.gov, or to contact Stainless Inc. (the petitioners) filed a this requirement could result in the Eastern Regional Office at the above timely request for review, in accordance Commerce’s presumption that phone number or email address. with section 751(a) of the Tariff Act of reimbursement of antidumping duties 1930, as amended (the Act), and 19 CFR occurred and the subsequent assessment Agenda 351.213(b).2 Pursuant to this request of doubled antidumping duties. Tuesday, October 6, 2020; 12:00 p.m. and in accordance with section 751(a) of Notification Regarding Administrative (EDT) the Act and 19 CFR 351.221(c)(1)(i), we Protective Orders initiated an administrative review of • Rollcall Filmag Italia, SpA.3 On July 6, 2020, the This notice also serves as a reminder to all parties subject to administrative • Briefing on COVID Health Disparities petitioners filed a timely withdrawal of request for the administrative review.4 protective order (APO) of their • Open Comment responsibility concerning the disposition of proprietary information • Other Business 1 See Antidumping or Countervailing Duty Order, disclosed under APO in accordance • Adjournment Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 85 FR 5938 with 19 CFR 351.305. Timely written Dated: September 18, 2020. (February 3, 2020). notification of the return/destruction of 2 David Mussatt, See Petitioners’ Letter, ‘‘Stainless Steel Butt- APO materials or conversion to judicial Weld Pipe Fittings from Italy: Petitioners’ Request protective order is hereby requested. Supervisory Chief, Regional Programs Unit. for 2019/2020 Administrative Review,’’ dated Failure to comply with the regulations [FR Doc. 2020–20989 Filed 9–22–20; 8:45 am] February 28, 2020. 3 See Initiation of Antidumping and and terms of an APO is a violation BILLING CODE 6335–01–P Countervailing Duty Administrative Reviews, 85 FR which is subject to sanction. 19730 (April 8, 2020). This notice is issued and published in 4 See Petitioners’ Letter, ‘‘Stainless Steel Butt- Weld Pipe Fittings from Italy: Petitioners’ accordance with sections 751(a)(1) and Withdrawal of Review Request for 2019/2020 777(i)(1) of the Act, and 19 CFR Administrative Review,’’ dated July 6, 2020. 351.213(d)(4).

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Dated: September 18, 2020. geographical region if certain findings Description of Proposed Activity James Maeder, are made and either regulations are Overview Deputy Assistant Secretary for Antidumping issued or, if the taking is limited to and Countervailing Duty Operations. harassment, a notice of a proposed The purpose of the Seattle [FR Doc. 2020–21007 Filed 9–22–20; 8:45 am] incidental take authorization may be Multimodal Project at Colman Dock is to BILLING CODE 3510––P provided to the public for review. preserve the transportation function of Authorization for incidental takings an aging, deteriorating and seismically shall be granted if NMFS finds that the deficient facility to continue providing DEPARTMENT OF COMMERCE taking will have a negligible impact on safe and reliable service. The project the species or stock(s) and will not have will also address existing safety National Oceanic and Atmospheric an unmitigable adverse impact on the concerns related to conflicts between Administration availability of the species or stock(s) for vehicles and pedestrian traffic and operational inefficiencies. [RTID 0648–XA389] taking for subsistence uses (where relevant). Further, NMFS must prescribe Key project elements include: • Takes of Marine Mammals Incidental to the permissible methods of taking and Replacing and re-configuring the timber trestle portion of the dock; Specified Activities; Taking Marine other ‘‘means of effecting the least • Mammals Incidental to Seattle practicable adverse impact’’ on the Replacing the main terminal building; Multimodal Project at Colman Dock in affected species or stocks and their • Washington State habitat, paying particular attention to Reconfiguring the dock layout to rookeries, mating grounds, and areas of provide safer and more efficient AGENCY: National Marine Fisheries operations; similar significance, and on the • Service (NMFS), National Oceanic and availability of the species or stocks for Replacing the vehicle transfer span Atmospheric Administration (NOAA), taking for certain subsistence uses and the overhead loading structures of Commerce. (referred to in shorthand as Slip 3; • Replacing vessel landing aids; ACTION: Notice; issuance of an incidental ‘‘mitigation’’); and requirements • Maintaining a connection to the harassment authorization. pertaining to the mitigation, monitoring Marion Street pedestrian overpass; and reporting of the takings are set forth. SUMMARY: In accordance with the • Moving the current passenger only The definitions of all applicable regulations implementing the Marine ferry (POF) slip temporarily to the north MMPA statutory terms cited above are Mammal Protection Act (MMPA) as to make way for south trestle included in the relevant sections below. amended, notification is hereby given construction, and then constructing a that NMFS has issued an IHA to the Summary of Request new POF slip in the south trestle area. Washington State Department of • Mitigating for additional 5,400 On April 21, 2020, NMFS received a square feet (ft2) (502 square meters (m2)) Transportation (WSDKT) to incidentally request from WSDOT for an Incidental harass, by Level A and Level B of overwater coverage; and Harassment Authorization (IHA) to take • Capping contaminated sediments. harassment, marine mammals during marine mammals incidental to the construction associated to Seattle The Seattle Multimodal Project at fourth year of work associated with the Colman Dock involves in-water impact Multimodal Project at Colman Dock in Seattle Multimodal Project at Colman Seattle, Washington State. and vibratory pile driving and vibratory Dock in Seattle, Washington. The pile removal. Details of the proposed DATES: This Authorization is effective application was deemed adequate and from September 10, 2020, through construction activities are provided complete on May 13, 2020. WSDOT’s below. September 9, 2021. request is for take of a small number of FOR FURTHER INFORMATION CONTACT: 11 species of marine mammals by Level Dates and Duration Shane Guan, Office of Protected A and Level B harassment. Neither Due to NMFS and U.S. Fish and Resources, NMFS, (301) 427–8401. WSDOT nor NMFS expects serious Wildlife Service (USFWS) in-water Electronic copies of the application and injury or mortality to result from this work timing restrictions to protect supporting documents, as well as a list activity and, therefore, an IHA is Endangered Species Act (ESA)-listed of the references cited in this document, appropriate. salmonids, planned WSDOT in-water may be obtained online at: https:// This IHA covers one year of a larger construction is limited each year to July www.fisheries.noaa.gov/permit/ project for which WSDOT obtained 15 through February 15 at this location. incidental-take-authorizations-under- prior IHAs (82 FR 31579, July 7, 2017; For this project, in-water construction is marine-mammal-protection-act. In case 83 FR 35226, July 25, 2018; 84 FR planned to take place between August 1, of problems accessing these documents, 36581, July 29, 2019). The project will 2020 and February 15, 2021. The total please call the contact listed above. reconfigure the dock while maintaining worst-case time for pile installation and SUPPLEMENTARY INFORMATION: approximately the same vehicle holding removal is 47 days (Table 1). capacity as current conditions. WSDOT Background complied with all the requirements (e.g., Specific Geographic Region The MMPA prohibits the ‘‘take’’ of mitigation, monitoring, and reporting) of The Seattle Ferry Terminal at Colman marine mammals, with certain the previous IHAs and information Dock, serving State Route 519, is located exceptions. Sections 101(a)(5)(A) and regarding their monitoring results may on the downtown Seattle waterfront, in (D) of the MMPA (16 U.S.C. 1361 et be found in the Potential Effects of the King County, Washington. The terminal seq.) direct the Secretary of Commerce Specified Activity on Marine Mammals services vessels from the Bainbridge (as delegated to NMFS) to allow, upon and their Habitat section. WSDOT’s Island and Bremerton routes, and is the request, the incidental, but not previous monitoring reports are most heavily used terminal in the WSF intentional, taking of small numbers of available online at https:// system. The Seattle terminal is located marine mammals by U.S. citizens who www.fisheries.noaa.gov/permit/ in Section 6, Township 24 North, Range engage in a specified activity (other than incidental-take-authorizations-under- 4 East, and is adjacent to Elliott Bay, a commercial fishing) within a specified marine-mammal-protection-act. tributary to Puget Sound (Figure 1).

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Land use in the area is highly urban, residential, the Pioneer Square Historic and includes business, industrial, the District and local parks. Port of Seattle container loading facility, BILLING CODE 3510–22–P

BILLING CODE 3510–22–C address safety concerns related to as mitigation for the permanent OWC Detailed Description of Specific Activity pedestrian/vehicle conflicts at Yesler increase. Street. A new covered pier, sized to Construction of the reconfigured dock Construction activities during the accommodate POF passenger waiting will narrow (reduce) the OWC along the Year 4 Seattle Multimodal Project at and connected by a new overhead shoreline (at the landward edge) by 180 Colman Dock include the following pedestrian bridge to the terminal linear feet (ft) at the north end of the components. building and the Marion Street site, while 30 linear ft (9.14 m) of new The project will remove the northern Overpass, will be constructed along the trestle will be constructed along the timber trestle and replace a portion of it south side of Colman Dock. shoreline at the south end of the site. with a new concrete trestle. The area The net reduction of OWC in the from Marion Street to the north edge of The reconfiguration will increase total nearshore zone is 150 linear ft (45.72 the property will not be rebuilt and after permanent overwater coverage (OWC) m). demolition will become a new area of by about 5,400 ft2 (502 m2, about 1.7 The project includes demolition of the open water. A section of fill contained percent more than existing overwater existing terminal building and behind a bulkhead underneath the coverage at the site), due to the new construction of a new terminal building. northeast section of the dock will be walkway from the POF facility to The new terminal building will be removed. WSDOT will construct a new Alaskan Way and new stairways and located along the west edge of the dock, steel and concrete trestle from Columbia elevators from the POF to the upper spanning all three slips to handle Street northward to Marion Street. level of the terminal. Removal of at least passenger traffic more efficiently, and The project will maintain the current 5,400 ft2 (502 m2) from Pier 48, a will connect to the Marion Street King County POF functions on site, and condemned timber structure, will serve Overpass by an elevated deck.

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The project includes reconstruction of the current cap during construction of of 30 piles will be installed and later the vehicle transfer span and the the project to contain existing removed, with an average of 8 piles passenger overhead loading (OHL) contamination. installed/removed per day. Vibratory structures of Slip 3, including new Specific in-water pile driving and pile pile driving and removal will occur on hydraulic systems. The new OHL will removal activities include the following different days. be wider than the existing OHL, to components: • • Vibratory driving followed by Vibratory removal of 355 14-inch accommodate the increased walk-on timber piles over 18 days, with passenger volumes. impact proofing (driving) of 36-inch steel piles. A total of 73 piles will be approximately 20 piles removed per Sediment beneath the terminal has installed using the vibratory hammer day. been contaminated by the creosote- over 9 days, with an average of • Vibratory removal of 30 12-inch treated piles and other chemicals approximately 8 piles installed per day. steel piles over 3 days, with 10 piles discharged to the environment over the Vibratory pile driving and impact removed per day. years. A cap was installed to cover proofing will occur on different days, contaminated sediment on the south and an additional nine days is estimated A summary of the pile driving and half of the site prior to trestle expansion for impact proofing. pile removal activities for the Year 4 in 1990. WSDOT will place a new • Vibratory driving and then removal Seattle Multimodal Project at Colman sediment cap to the north and south of of 24-inch temporary steel piles. A total Dock is provided in Table 1.

TABLE 1—SUMMARY OF IN-WATER PILE DRIVING DURATIONS

Method Pile type Pile size Pile number Piles/day Minutes/pile Duration (inch) (days)

Impact drive (proof) ...... Steel ...... 36 * 73 8 10 9 Vibratory drive ...... Steel ...... 36 * 73 8 20 9 Vibratory drive ...... Steel (temporary) ...... 24 * 30 8 20 4 Vibratory remove ...... Steel (temporary) ...... 24 * 30 8 20 4 Vibratory remove ...... Timber ...... 14 355 20 15 18 Vibratory remove ...... Steel ...... 12 30 10 20 3

Total ...... 488 ...... 47 * These are same piles

Comments and Responses zones and shutdown zones are provided condition 6(a)(vii), (2) include the A notice of NMFS’ proposal to issue in Table 6 and Table 9, respectively. standard requirement that WSDOT an IHA was published in the Federal NMFS further agrees with the extrapolate the observed numbers of Register on July 8, 2020 (85 FR 40992). Commission on revising some of the takes to the extents of the Level B During the 30-day public comment Level B harassment take numbers. harassment zones when estimating the period, NMFS received a comment letter Specifically, harbor porpoise Level B total numbers of takes and by from the Marine Mammal Commission harassment take is revised from 649 to considering both the observation (Commission). Specific comments and 442 based on updated density estimate; platform of each Protected Species responses are provided below. Dall’s porpoise Level B harassment take Observer (PSO) and the species for the Comment 1: The Commission points is revised from 40 to 35, based on its 2020 final authorization, and (3) require out that the noise levels of the 36-inch group size of 5 animals over the 7 WSDOT to submit a revised monitoring pile impact driving at 11 m from the months activity period; gray whale report for its 2019–2020 activities, source was used, instead of 10 m, thus Level B harassment take is revised from consistent with conditions 6(a)(ix) and resulted in a underestimated Level A 5 to 7, based on an assumption of 1 take (xi) in the 2019 final authorization and harassment and Level B harassment per month during the 7 months the recommendations herein. zones for the 36-inch pile. The construction window; and Steller sea Response: Conditions 6(a)(vii), Commission also suggested a few lion Level B harassment take is revised 6(a)(ix), and 6(a)(xi) of the 2019–2020 changes to take estimates based on the from 39 to 141, based on an average of IHA to WSDOT’s Seattle Multimodal newly available monitoring data. The 3 takes per day over the 47 days of Project at Colman Dock required Commission recommends that NMFS (1) construction. The updated take numbers WSDOT to submit a final report that include the revised Level A harassment are provided in Table 8 below. includes the following information: zones and shut-down zones for impact Comment 2: The Commission points (vii). Distances and bearings of each installation of 36-in steel piles, and (2) out that WSDOT’s monitoring report for marine mammal observed to the pile revise the Level B harassment takes to 2019–2020 activities did not include the 752 for harbor porpoises, 35 for Dall’s basic information (e.g., distance from being driven or removed for each porpoises, 7 for gray whales, and 141 for the pile to the animal and total number sighting (if pile driving or removal was Steller sea lions and revise the Level A of each species taken, including a occurring at time of sighting. harassment takes to 21 for harbor correction factor as appropriate) that (ix). Number of individuals of each porpoises. was required to be reported under the species (differentiated by month as Response: NMFS recalculated the final authorization (e.g., conditions appropriate) detected within the ensonified areas for Level A and Level 6(a)(vii) and (ix), respectively). The monitoring zone, and estimates of B harassment using the noise levels Commission recommends that NMFS (1) number of marine mammals taken, by measured at 11 m from the 36-inch steel reinforce that WSDOT must comply species (a correction factor may be pile impact driving measurements. The with the various reporting requirements applied to total take numbers, as revised Level A and Level B harassment in the final authorization, including appropriate).

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(xi). Description of attempts to implemented, is consistent with the regarding status and trends, distribution distinguish between the number of statutory requirements contained in and habitat preferences, and behavior individual animals taken and the section 101(a)(5)(D) of the MMPA, and life history, of the potentially number of incidences of take, such as provides additional efficiencies beyond affected species. Additional information ability to track groups or individuals. the use of abbreviated notices, and, regarding population trends and threats NMFS is reminding WSDOT that it further, promotes NMFS’ goals of may be found in NMFS’s Stock must comply with these conditions to improving conservation of marine Assessment Reports (SARs; https:// include distances and bearing of marine mammals and increasing efficiency in www.fisheries.noaa.gov/national/ mammals observed during pile driving, the MMPA compliance process. marine-mammal-protection/marine- information on numbers of individuals Therefore, we intend to continue mammal-stock-assessments) and more of each species (differentiated by month implementing the Renewal process. general information about these species as appropriate) detected within the Changes From the Proposed IHA to (e.g., physical and behavioral monitoring zone, and description of Final IHA descriptions) may be found on NMFS’s attempts to distinguish between the website (https:// There is no change in the WSDOT’s number of individuals taken and the www.fisheries.noaa.gov/find-species). number of incidences of take during Seattle Multimodal Project at Colman marine mammal monitoring, as it Dock construction activities from the Table 2 lists all species or stocks for appears that this information was not Federal Register notice for the proposed which take is expected and authorized included in its final report for the 2019 IHA (85 FR 40992; July 8, 2020). for this action, and summarizes season. NMFS has contacted WSDOT There was an error on the noise level information related to the population or this information. for the 36-inch impact pile driving stock, including regulatory status under Comment 3: The Commission reported in the proposed IHA. The the MMPA and ESA and potential recommends that NMFS include in the single strike sound exposure level biological removal (PBR), where known. final authorization the requirement that (SELss) of 174 decibel in reference to 1 For taxonomy, we follow Committee on WSDOT conduct pile-driving and micropascal-second (dB re 1 mPa2s) is Taxonomy (2019). PBR is defined by the -removal activities during daylight based on measurement conducted at 11 MMPA as the maximum number of hours only. m, not 10 m. The corrected 10-m SELss animals, not including natural Response: NMFS agrees with the is 175 dB re 1 mPa2s, and is reflected in mortalities, that may be removed from a Commission and has included the Table 5 of this document. This marine mammal stock while allowing requirement that WSDOT conduct pile correction also resulted in larger Level that stock to reach or maintain its driving and removal activities during A harassment distances and some of the optimum sustainable population (as daylight hours only. This requirement shutdown distances. The revised Level described in NMFS’s SARs). While no was in the Federal Register for the A distances are presented in Table 6 and mortality is anticipated or authorized proposed IHA. Table 9 of this document, respectively. here, PBR and annual serious injury and Comment 4: The Commission Additionally, numbers of Level B mortality from anthropogenic sources recommends that NMFS reinforce that harassment take of several marine are included here as gross indicators of WSDOT must keep a running tally of mammal species are also updated based the status of the species and other the total takes, based on observed and on the updated density estimate or the threats. extrapolated takes, for Level B most recent marine mammal monitoring harassment. report. Specifically, harbor porpoise Marine mammal abundance estimates Response: We agree that WSDOT Level B harassment take is revised from presented in this document represent must ensure they do not exceed 649 to 442 based on updated density the total number of individuals that authorized takes. As described in the estimate of 0.54 porpoises/square make up a given stock or the total monitoring and reporting requirements, kilometer (km2) (updated in Table 7 number estimated within a particular WSDOT is required to keep a running below); Dall’s porpoise Level B study or survey area. NMFS’s stock tally of the marine mammals observed harassment take is revised from 40 to abundance estimates for all species within harassment zones and, further, 35, based on its group size of 5 animals represent the total estimate of they are required to estimate the number over the 7 months activity period; gray individuals within the geographic area, of takes in their final report (applying a whale Level B harassment take is if known, that comprises that stock. All correction as appropriate). revised from 5 to 7, based on an managed stocks in this region are Comment 5: Commission assumption of 1 take per month during assessed in NMFS’s U.S Pacific and recommends that NMFS refrain from the 7 months construction window; and Alaska SARs (e.g., Carretta et al., 2020; issuing renewals for any authorization Steller sea lion Level B harassment take Muto et al., 2020). All values presented and instead use its abbreviated Federal is revised from 39 to 141, based on an in Table 2 are the most recent available Register notice process, which is average of 3 takes per day over the 47 at the time of publication and are similarly expeditious and fulfills days of construction. The updated take available in the 2018 SARs (Carretta et NMFS’s intent to maximize efficiencies. numbers are provided in Table 8 below. al., 2019; Muto et al., 2019) and draft Response: In prior responses to 2019 SARs (available online at: https:// comments about IHA Renewals (e.g., 84 Description of Marine Mammals in the www.fisheries.noaa.gov/national/ FR 52464; October 02, 2019 and 85 FR Area of Specified Activities marine-mammal-protection/draft- 53342, August 28, 2020), NMFS has Sections 3 and 4 of the application marine-mammal-stock-assessment- explained how the Renewal process, as summarize available information reports).

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TABLE 2—MARINE MAMMALS WITH POTENTIAL PRESENCE WITHIN THE PROJECT AREA

ESA/ MMPA Stock abundance (CV, Nmin, Annual Common name Scientific name Stock status; most recent abundance PBR M/SI 3 strategic survey) 2 (Y/N) 1

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Eschrichtiidae: Gray whale ...... Eschrichtius robustus ...... Eastern North Pacific ...... N 26,960 (0.05, 25,849) ...... 801 139 Family Balaenopteridae (rorquals): Humpback whale ...... Megaptera novaeangliae ...... California/Oregon/Washington Y 2,900 (0.05, 2,784) ...... 16.7 unk Minke whale ...... Balaenoptera acutorostrata .... California/Oregon/Washington N 636 (0.72, 369) ...... 3.5 1.3

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Delphinidae: Killer whale ...... Orcinus orca ...... Eastern North Pacific South- Y 75 (NA, 75) ...... 0 0 ern Resident. West coast transient ...... N 243 (NA, 243) ...... 2.4 0 Bottlenose dolphin ...... Tursiops truncatus ...... California/Oregon/Washington N 1,924 (0.54, 1,255) ...... 11 1.6 offshore. Family Phocoenidae (por- poises): Harbor porpoise ...... Phocoena phocoena ...... Washington inland waters ...... N 11,233 (0.37, 8,308) ...... 66 7.2 Dall’s porpoise ...... P. dalli ...... California/Oregon/Washington N 25,750 (0.45, 17,954) ...... 172 0.3

Order Carnivora—Superfamily Pinnipedia

Family Otariidae (eared seals and sea lions): California sea lion ...... Zalophus californianus ...... U.S...... N 257,606 (NA, 233,515) ...... 14,011 321 Steller sea lion ...... Eumetopias jubatus ...... Eastern U.S...... N 43,201 (NA, 43,201) ...... 2,592 113 Family Phocidae (earless seals): Harbor seal ...... Phoca vitulina ...... Washington northern inland N 11,036 4 ...... NA 10.6 waters. Northern elephant seal ..... Mirounga angustirostris ...... California breeding ...... N 179,000 (NA, 81,368) ...... 4,882 8.8 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assess- ments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. 3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fish- eries, ship strike). Annual serious injury/mortality often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associ- ated with estimated mortality due to commercial fisheries is presented in some cases. 4 Harbor seal estimate is based on data that are 9 years old, but this is the best available information for use here.

As indicated above, all 11 species 2019). This information remains valid derived using auditory evoked potential (with 12 managed stocks) in Table 2 so we do not repeat it here but provide techniques, anatomical modeling, and temporally and spatially co-occur with a summary table with marine mammal other data. Note that no direct the activity to the degree that take is species and stock details (Table 2). measurements of hearing ability have reasonably likely to occur, and we have been successfully completed for Marine Mammal Hearing authorized it, with the exception of the mysticetes (i.e., low-frequency Southern Resident killer whale (SPKW). Hearing is the most important sensory cetaceans). Subsequently, NMFS (2018) Take of SRKW can be avoided by modality for marine mammals described generalized hearing ranges for implementing strict monitoring and underwater, and exposure to these marine mammal hearing groups. mitigation measures (see Mitigation and anthropogenic sound can have Generalized hearing ranges were chosen Monitoring and Reporting sections deleterious effects. To appropriately based on the approximately 65 decibel below). All species that could assess the potential effects of exposure (dB) threshold from the normalized potentially occur in the project areas are to sound, it is necessary to understand composite audiograms, with the included in Table 2 of the IHA the frequency ranges marine mammals exception for lower limits for low- application. are able to hear. Current data indicate frequency cetaceans where the lower In addition, the sea otter may be that not all marine mammal species bound was deemed to be biologically found in inland waters of Washington. have equal hearing capabilities (e.g., implausible and the lower bound from However, this species is managed by the Richardson et al., 1995; Wartzok and Southall et al., (2007) retained. Marine U.S. Fish and Wildlife Service and is Ketten, 1999; Au and Hastings, 2008). mammal hearing groups and their not considered further in this document. To reflect this, Southall et al., (2007) associated hearing ranges are provided A detailed description of the marine recommended that marine mammals be in Table 3. mammals in the area of the activities is divided into functional hearing groups found in the notice of the Year 3 Seattle based on directly measured or estimated Multimodal Project at Colman Dock hearing ranges on the basis of available proposed IHA (84 FR 25757, June 4, behavioral response data, audiograms

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TABLE 3—MARINE MAMMAL HEARING GROUPS (NMFS, 2018)

Generalized hearing Hearing group range *

Low-frequency (LF) cetaceans (baleen whales) ...... 7 Hz to 35 kHz. Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ...... 150 Hz to 160 kHz. High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. 275 Hz to 160 kHz. australis). Phocid pinnipeds (PW) (underwater) (true seals) ...... 50 Hz to 86 kHz. Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ...... 60 Hz to 39 kHz. * Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation).

The pinniped functional hearing A detailed description on the noise available science indicates marine group was modified from Southall et al., impacts on marine mammals and their mammals will be behaviorally harassed (2007) on the basis of data indicating habitat is provided in the Federal or incur some degree of permanent that phocid species have consistently Register notice (85 FR 40992; July 8, hearing impairment; (2) the area or demonstrated an extended frequency 2020) for the proposed IHA, and is not volume of water that will be ensonified range of hearing compared to otariids, repeated here. above these levels in a day; (3) the density or occurrence of marine especially in the higher frequency range Estimated Take (Hemila¨ et al., 2006; Kastelein et al., mammals within these ensonified areas; 2009; Reichmuth and Holt, 2013). This section provides an estimate of and, (4) and the number of days of For more detail concerning these the number of incidental takes activities. We note that while these groups and associated frequency ranges, authorized through this IHA, which will basic factors can contribute to a basic please see NMFS (2018) for a review of inform both NMFS’ consideration of calculation to provide an initial ‘‘small numbers’’ and the negligible available information. 11 marine prediction of takes, additional impact determination. mammal species (7 cetacean and 4 information that can qualitatively Harassment is the only type of take pinniped (2 otariid and 2 phocid) inform take estimates is also sometimes expected to result from these activities. available (e.g., previous monitoring species) have the reasonable potential to Except with respect to certain activities co-occur with the proposed construction results or average group size). Below, we not pertinent here, section 3(18) of the describe the factors considered here in activities. Please refer to Table 2. Of the MMPA defines ‘‘harassment’’ as any act cetacean species that may be present, 3 more detail and present the take of pursuit, torment, or annoyance, estimate. are classified as low-frequency which (i) has the potential to injure a cetaceans (i.e., all mysticete species), 2 marine mammal or marine mammal Acoustic Thresholds are classified as mid-frequency stock in the wild (Level A harassment); Using the best available science, cetaceans (i.e., all delphinid species), or (ii) has the potential to disturb a NMFS has developed acoustic and 2 are classified as high-frequency marine mammal or marine mammal thresholds that identify the received cetaceans (i.e., porpoise species). stock in the wild by causing disruption level of underwater sound above which Potential Effects of Specified Activities of behavioral patterns, including, but exposed marine mammals would be on Marine Mammals and Their Habitat not limited to, migration, breathing, reasonably expected to be behaviorally nursing, breeding, feeding, or sheltering harassed (equated to Level B This section includes a summary and (Level B harassment). harassment) or to incur permanent discussion of the ways that components Authorized takes would primarily be threshold shift (PTS) of some degree of the specified activity may impact by Level B harassment, as noise from in- (equated to Level A harassment). marine mammals and their habitat. The water impact and vibratory pile driving Level B Harassment for non-explosive Estimated Take section later in this has the potential to result in disruption sources—Though significantly driven by document includes a quantitative of behavioral patterns for individual received level, the onset of behavioral analysis of the number of individuals marine mammals. There is also some disturbance from anthropogenic noise that are expected to be taken by this potential for auditory injury (Level A exposure is also informed to varying activity. The Negligible Impact Analysis harassment) to result, primarily for high degrees by other factors related to the and Determination section considers the frequency cetaceans and phocids source (e.g., frequency, predictability, content of this section, the Estimated because predicted auditory injury zones duty cycle), the environment (e.g., Take section, and the Mitigation section, are relatively large. Auditory injury is bathymetry), and the receiving animals to draw conclusions regarding the likely unlikely to occur for low- and mid- (hearing, motivation, experience, impacts of these activities on the frequency cetaceans and otariids. The demography, behavioral context) and reproductive success or survivorship of prescribed mitigation and monitoring can be difficult to predict (Southall et individuals and how those impacts on measures are expected to minimize the al., 2007, Ellison et al., 2012). Based on individuals are likely to impact marine severity of the taking to the extent what the available science indicates and mammal species or stocks. practicable. the practical need to use a threshold The WSDOT’s Seattle Multimodal As described previously, no mortality based on a factor that is both predictable Project at Colman Dock construction is anticipated or authorized for this and measurable for most activities, work using in-water pile driving and activity. Below we describe how the NMFS uses a generalized acoustic pile removal could adversely affect take is estimated. threshold based on received level to marine mammal species and stocks by Generally speaking, we estimate take estimate the onset of behavioral exposing them to elevated noise levels by considering: (1) Acoustic thresholds harassment. NMFS predicts that marine in the vicinity of the activity area. above which NMFS believes the best mammals are likely to be behaviorally

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harassed in a manner we consider Level removal, and therefore the 120 dB and Multimodal Project at Colman Dock B harassment when exposed to 160 dB re 1 mPa (rms) are applicable. Year 4 construction activity includes the underwater anthropogenic noise above Level A harassment for non-explosive use of impulsive (impact pile driving) received levels of 120 dB re 1 mPa (root- sources—NMFS’ Technical Guidance and non-impulsive (vibratory pile mean-square (rms)) for continuous (e.g., for Assessing the Effects of driving) sources. vibratory pile-driving, drilling) and Anthropogenic Sound on Marine These thresholds are provided in the above 160 dB re 1 mPa (rms) for non- Mammal Hearing (Version 2.0) table below. The references, analysis, explosive impulsive (e.g., seismic (Technical Guidance, 2018) identifies and methodology used in the airguns) or intermittent (e.g., scientific dual criteria to assess auditory injury development of the thresholds are sonar) sources. (Level A harassment) to five different described in NMFS 2018 Technical marine mammal groups (based on Guidance, which may be accessed at WSDOT’s Seattle Multimodal Project hearing sensitivity) as a result of https://www.fisheries.noaa.gov/ at Colman Dock Year 4 construction exposure to noise from two different national/marine-mammal-protection/ activity includes the use impact pile types of sources (impulsive or non- marine-mammal-acoustic-technical- driving, vibratory pile driving and pile impulsive). WSDOT’s Seattle guidance.

TABLE 4—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

PTS onset acoustic thresholds * Hearing group (received level) Impulsive Non-impulsive

Low-Frequency (LF) Cetaceans ...... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ...... Cell 2: LE,LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans ...... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ...... Cell 4: LE,MF,24h: 198 dB. High-Frequency (HF) Cetaceans ...... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ...... Cell 6: LE,HF,24h: 173 dB. Phocid Pinnipeds (PW) (Underwater) ...... Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ...... Cell 8: LE,PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) ...... Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ...... Cell 10: LE,OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impul- sive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. 2 Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.

Ensonified Area Source Levels as noise level at 10-m from the pile) of these pile driving and removal activities Here, we describe operational and The project includes impact pile are all based on prior measurements environmental parameters of the activity driving (proofing) of 36-inch steel piles, conducted by WSDOT. A summary of that will feed into identifying the area vibratory pile driving of 36- and 24-inch the 10-m near source levels of the pile ensonified above the acoustic steel piles, and vibratory pile removal of driving and removal activities is thresholds, which include source levels 24- and 12-inch steel piles, and 14-inch provided in Table 5, along with and transmission loss coefficient. timber piles. Near source levels (defined references.

TABLE 5—NEAR SOURCE NOISE LEVELS AT 10-m FROM THE PILE FOR VARIOUS PILE DRIVING AND REMOVAL AT SEATTLE MULTIMODAL PROJECT AT COLMAN DOCK YEAR 4 PROJECT

Source level Activity/pile size (at 10 m) Literature source

Impact pile drive (proof) 36 inch steel pile ...... 175 dB (SELss) ...... WSDOT Colman Year 1 measurement (2018). Vibratory drive/remove 36 inch steel pile ...... 177 dB (SPLrms) ...... WSDOT Port Townsend measurement (2010). Vibratory drive 24 inch steel pile ...... 174 dB (SPLrms) ...... WSDOT Port Townsend measurement (2010). Vibratory removal 14 inch timber pile 1 ...... 155 dB (SPLrms) ...... WSDOT Port Townsend measurement (2011). Vibratory removal 12 inch steel pile 2 ...... 155 dB (SPLrms) ...... Caltrans (2015) data for same pile. 1 Vibratory removal of 14-in timber piles is based on removal of 12-in timber piles. 2 Vibratory removal of 12-in steel piles is based on vibratory installation of 12-in steel piles.

Level A Harassment Distances and area/volume could be more technically mammal density or occurrence to help Areas challenging to predict because of the predict takes. We note that because of duration component in the new some of the assumptions included in the Distances to Level A harassment were thresholds, we developed a User methods used for these tools, we estimated using the NMFS User Spreadsheet that includes tools to help anticipate that isopleths produced are Spreadsheet. When the NMFS Technical Guidance (2016) was published, in predict a simple isopleth that can be typically going to be overestimates of recognition of the fact that ensonified used in conjunction with marine some degree, which may result in some

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degree of overestimate of Level A Level B Harassment Distances and Areas the 24-inch steel piles, and the vibratory harassment take. However, these tools driving of 36-inch piles is based on in Level B harassment distances from offer the best way to predict appropriate situ measurements of vibratory pile impact pile driving of 36-inch steel piles isopleths when more sophisticated 3D driving of 36-inch piles conducted and from vibratory pile removal of 12- modeling methods are not available, and during Year One of the Seattle inch steel piles and 14-inch timber piles NMFS continues to develop ways to Multimodal Project at Colman Dock are calculated using a practical quantitatively refine these tools, and (WSDOT 2018). The results show that spreading model of the sonar equation will qualitatively address the output underwater pile driving noise cannot be ¥ where appropriate. For stationary EL = SL 15 log10(R) detected at a distance of 8.69 km sources such as vibratory pile driving where EL is the echo level (or received level), (WSDOT 2018). and pile removal, NMFS User which is the sound threshold level at the The Level B harassment areas were Spreadsheet predicts the distance at Level B harassment (160 dB re 1 mPa for estimated by WSDOT using geographic which, if a marine mammal remained at impact pile driving and 120 dB re 1 mPa information system (GIS) tools to that distance the whole duration of the for vibratory pile driving and pile eliminate land masses and other activity, it would incur PTS. removal); R is the Level B harassment obstacles that block sound propagation. distance in meters. A summary of the calculated Level A A summary of the measured Level B harassment distances and areas is Level B harassment distance for harassment distances and areas is presented in Table 6. vibratory pile driving and removal of presented in Table 6. TABLE 6—LEVEL A AND LEVEL B HARASSMENT DISTANCES AND AREAS

Level A harassment distance (m)/area (km2) Level B harassment Pile type, size & pile driving method LF cetacean MF cetacean HF cetacean Phocid Otariid distance (m)/area (km2)

Impact drive (proof) 36 inch steel pile ...... 377.5/0.37 13.4/0.00 449.6/0.52 202/0.11 14.7/0.00 736/1.70 Vibratory drive 36 inch steel pile ...... 153.1/0.07 13.6/0.00 226.4/0.16 93.1/0.03 6.5/0.00 8,690/40.53 Vibratory drive/removal, 24 inch steel piles ...... 96.6/0.03 8.6/0.00 142.8/0.06 58.7/0.01 4.1/0.00 8,690/40.53 Vibratory removal 14 inch timber pile ...... 8.0/0.00 0.7/0.00 11.8/0.00 4.8/0.00 0.3/0.00 2,154/5.47 Vibratory removal 12 inch steel pile ...... 6.5/0.00 0.6/0.00 9.6/0.00 3.9/0.00 0.3/0.00 2,154/5.47

Marine Mammal Occurrence Take Calculation and Estimation • Gray whale—This species is uncommon in the project area. In this section we provide the Here we describe how the information provided above is brought together to Therefore, Level B harassment take of information about the presence, density, gray whale is based on take of 1 animal or group dynamics of marine mammals produce a quantitative take estimate. The fundamental approach for take per month over the 7 months work that will inform the take calculations. calculation is to use the information window. This results a total of 7 lakes. Marine mammal occurrence are based aggregated in the Navy density database • West Coast transient killer whale— on the U.S. Navy Marine Species (U.S. Navy, 2019) with the following Level B harassment exposures were Density Database (U.S. Navy, 2019) and equation: calculated to be two. However, two on WSDOT marine mammal monitoring Total Take = marine mammal density × groups of 10 individuals have been efforts during prior years of construction ensonified area × pile driving days observed. It is assumed that one group size of 10 animals may be present in the work at Seattle Multimodal Project at Some adjustments were made based Level B harassment zones once a month Colman Dock. A summary of the marine on prior observation of marine during the in-water work window (7 mammal density is provided in Table 7. mammals in the project area and months), or 70 exposures. account for group size. Specific • TABLE 7—MARINE MAMMAL DENSITY adjustments for calculating take Bottlenose dolphin—The bottlenose IN THE SEATTLE MULTIMODAL numbers are provided below. dolphin estimate is based on sightings PROJECT AT COLMAN DOCK CON- • Humpback whale—During the prior data from Cascadia Research Collective. STRUCTION AREA year WSDOT Multimodal Project Between September 2017 and March construction, three individuals have 2018, a group of up to seven individuals was sighted in South Puget Sound (EPS, Marine mammals Density been observed. Given that humpback (animals/km2) whales are occasionally present in the 2018). It is assumed that this group is area, it is unlikely they would be still present in the area. Given how rare Gray whale ...... 0.0048 present on a daily basis. Instead it is bottlenose dolphins are in the area, it is Humpback whale ...... 0.00074 assumed that three individuals may be unlikely they would be present on a Minke whale ...... 0.00045 present in the Level B harassment zones daily basis. Instead it is assumed that Killer whale (West Coast once a month during the in-water work one group size of seven animals may be transient) ...... 0.005141 window (7 months), or 21 exposures. present in the Level B harassment zone Bottlenose dolphin ...... NA • once a month during the in-water work Harbor porpoise ...... 0.54 Minke whale—During the prior year WSDOT Multimodal Project work, one window (7 months), or 49 exposures. Dall’s porpoise ...... 0.00045 • Harbor seal ...... 3.91 individual minke whale was observed. Northern elephant seal—Estimated Northern elephant seal ...... 0 Observations have been of single northern elephant seals Level B California sea lion ...... 0.2211 individuals, not groups. It is assumed harassment exposures were calculated Steller sea lion ...... 0.0478 that one individual may be present in to be zero. However, one individual of the Level B harassment zone once a this species was observed in the project month during the in-water work area once. Therefore, the take number window (7 months), or 7 exposures. was adjusted to seven takes based on

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one animal for the project duration of 7 harassment distance for high-frequency zone, with a high of 2 individuals in 1 months. cetaceans, we assume that three day. This portion of the Level A • California sea lion—Estimated incidents of Level A harassment may harassment zone would be beyond the California sea lion Level B harassment occur per month for the 7 months work prescribed shutdown zone, and this exposures were calculated to be 104. window to yield a total of 21 takes by estimated zone would occur on 26 days. However, there were 763 observations Level A harassment. • Assuming that two individuals may be during project monitoring, with a high Dall’s porpoise—This species is present once a day for 26 days results of 29 individuals in one day. uncommon in the project area. in 52 potential Level A harassment Conservatively assuming that 29 Therefore, Level B harassment take of takes. individuals may be present in the Level Dall’s porpoise is based on take of 3 B harassment zones during 47 days of animals per group size each month over • Steller sea lion—Level B pile driving or removal, it is assumed the 7 months work window. This results harassment take of Steller sea lion is that 1,363 exposures to pile driving a total of 35 lakes. based on take of 3 animals per day over noise may occur. • Harbor seal—Estimated harbor seal the 47 days window. This results a total • Harbor porpoise—Estimated harbor Level A harassment exposures were of 141 lakes. porpoise Level A harassment exposures calculated to be three. However, A summary of estimated marine were calculated to be five. However, WSDOT made a total of 243 harbor seal mammal takes is listed in Table 8. given the relatively larger Level A observations in the 60–184 m Level A

TABLE 8—ESTIMATED NUMBERS OF MARINE MAMMALS THAT MAY BE EXPOSED TO RECEIVED NOISE LEVELS THAT CAUSE LEVEL A AND LEVEL B HARASSMENT

Estimated Estimated Estimated Marine mammals Level A Level B total Abundance Percentage harassment harassment harassment (%)

Gray whale ...... 0 7 7 26,906 0.02 Humpback whale ...... 0 21 21 2,900 0.72 Minke whale ...... 0 7 7 636 1.10 Killer whale (West Coast transient) ...... 0 70 70 243 28.81 Bottlenose dolphin ...... 0 49 49 1,924 2.55 Harbor porpoise ...... 21 442 463 11,233 4.12 Dall’s porpoise ...... 0 35 35 25,750 0.16 Harbor seal ...... 52 3,155 3,207 11,036 21.50 Northern elephant seal ...... 0 7 7 179,000 0.02 California sea lion ...... 0 1,363 1,363 257,606 0.72 Steller sea lion ...... 0 141 141 43,201 0.33

Mitigation (1) The manner in which, and the water construction will be limited to the degree to which, the successful period between August 1, 2020, and In order to issue an IHA under section implementation of the measure(s) is February 15, 2021. 101(a)(5)(D) of the MMPA, NMFS must expected to reduce impacts to marine Establishing and Monitoring Level A, set forth the permissible methods of mammals, marine mammal species or Level B Harassment Zones, and taking pursuant to the activity, and stocks, and their habitat. This considers Exclusion Zones other means of effecting the least the nature of the potential adverse practicable impact on the species or impact being mitigated (likelihood, Before the commencement of in-water stock and its habitat, paying particular scope, range). It further considers the construction activities, which include attention to rookeries, mating grounds, likelihood that the measure will be vibratory pile driving and pile removal, and areas of similar significance, and on effective if implemented (probability of WSDOT shall establish Level A the availability of the species or stock accomplishing the mitigating result if harassment zones where received for taking for certain subsistence uses implemented as planned), the underwater sound pressure levels (latter not applicable for this action). likelihood of effective implementation (SPLs) or cumulative sound exposure NMFS regulations require applicants for (probability implemented as planned), levels (SELcum) could cause PTS. incidental take authorizations to include and; WSDOT shall also establish Level B information about the availability and (2) The practicability of the measures harassment zones where received feasibility (economic and technological) for applicant implementation, which underwater SPLs are higher than 160 of equipment, methods, and manner of may consider such things as cost, dBrms re 1 mPa for impulse noise sources conducting the activity or other means impact on operations, and, in the case (impact pile driving) and 120 dBrms re 1 of effecting the least practicable adverse of a military readiness activity, mPa for continuous noise sources impact upon the affected species or personnel safety, practicality of (vibratory pile driving and pile stocks and their habitat (50 CFR implementation, and impact on the removal). 216.104(a)(11)). effectiveness of the military readiness WSDOT shall establish exclusion In evaluating how mitigation may or activity. zones as shown in Table 9 to prevent may not be appropriate to ensure the Level A harassment takes of all Time Restriction least practicable adverse impact on cetaceans and otariids, and to minimize species or stocks and their habitat, as The applicant stated that work would Level A harassment takes of phocids. well as subsistence uses where occur only during daylight hours, when For in-water heavy machinery work applicable, we carefully consider two visual monitoring of marine mammals other than pile driving (e.g., standard primary factors: can be conducted. In addition, all in- barges, etc.), if a marine mammal comes

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within 10 m, operations shall cease and WSDOT shall establish exclusion steel piles, a 8.7 km exclusion zone vessels shall reduce speed to the zones for SRKW and all marine shall be established. For vibratory pile minimum level required to maintain mammals that takes are not authorized removal of 14-inch timber piles and 12- steerage and safe working conditions. at the Level B harassment distances. inch steel piles, a 2.2 km exclusion zone This type of work could include the Specifically, impact pile driving of 36- shall be established. following activities: (1) Movement of the inch steel piles, a 750 m exclusion zone A summary of exclusion zones is barge to the pile location; or (2) shall be established. For vibratory provided in Table 9. positioning of the pile on the substrate driving of 24- and 36-inch steel piles via a crane. and vibratory pile removal of 24-inch

TABLE 9—EXCLUSION ZONES (m) FOR VARIOUS MARINE MAMMALS

Exclusion distance (m) Pile type, size & pile driving method SRKW LF MF HF Phocid Otariid (m)

Impact drive 36-inch steel pile ...... 380 15 450 60 15 750 Vibratory drive 36-inch steel pile ...... 160 15 230 60 10 8,700 Vibratory drive/removal, 24-inch steel piles ...... 100 10 150 60 10 8,700 Vibratory remove, 14-inch timber pile or 12-inch steel pile ...... 10 10 15 10 10 2,200 LF = low-frequency cetacean; MF = mid-frequency cetacean; HF = high-frequency cetacean; PW = phocid; OW = otariids; SRKW = Southern Resident killer whale.

NMFS-approved PSO shall conduct WSDOT shall implement the shutdown Strait (west side of San Juan Island) to an initial survey of the exclusion zones measure. study orca communication, in-water to ensure that no marine mammals are If a SRKW or an unidentified killer noise, bottom fish ecology and local seen within the zones beginning 30 whale enters the Level B harassment climatic conditions. A hydrophone at minutes before pile driving and pile zone undetected, in-water pile driving the Port Townsend Marine Science removal of a pile segment begins. If or pile removal shall be suspended until Center measures average in-water sound marine mammals are found within the the whale exits the Level B harassment levels and automatically detects exclusion zone, pile driving of the zone, or 15 minutes have elapsed with unusual sounds. These passive acoustic segment would be delayed until they no sighting of the animal, to avoid devices allow researchers to hear when move out of the area. If a marine further Level B harassment. different marine mammals come into mammal is seen above water and then Further, WSDOT shall implement the region. This acoustic network, dives below, the contractor would wait shutdown measures if the number of combined with the volunteer 15 minutes. If no marine mammals are authorized takes for any particular (incidental) visual sighting network seen by the observer in that time it can species reaches the limit under the IHA allows researchers to document be assumed that the animal has moved (if issued) and if such marine mammals presence and location of various marine beyond the exclusion zone. are sighted within the vicinity of the mammal species. If pile driving of a segment ceases for project area and are approaching the Based on our evaluation of the 30 minutes or more and a marine Level B harassment zone during in- applicant’s mitigation measures, as well mammal is sighted within the water construction activities. as other measures considered by NMFS, all of which are described above, NMFS designated exclusion zone prior to Coordination With Local Marine has determined that the precribed commencement of pile driving, the Mammal Research Network observer(s) must notify the pile driving mitigation measures provide the means operator (or other authorized Prior to the start of pile driving for the effecting the least practicable adverse individual) immediately and continue day, the Orca Network and/or Center for impact on the affected species or stocks to monitor the exclusion zone. Whale Research will be contacted by and their habitat, paying particular Operations may not resume until the WSDOT to find out the location of the attention to rookeries, mating grounds, marine mammal has exited the nearest marine mammal sightings. The and areas of similar significance. Local Marine Mammal Research exclusion zone or 15 minutes have Monitoring and Reporting elapsed since the last sighting. Network consists of a list of over 600 (and growing) residents, scientists, and In order to issue an IHA for an Shutdown Measures government agency personnel in the activity, Section 101(a)(5)(D) of the WSDOT shall implement shutdown U.S. and Canada. Sightings are called or MMPA states that NMFS must set forth measures if a marine mammal is emailed into the Orca Network and requirements pertaining to the detected within or entering an exclusion immediately distributed to other monitoring and reporting of such taking. zone listed in Table 9. sighting networks including: The NMFS The MMPA implementing regulations at WSDOT shall also implement Northwest Fisheries Science Center, the 50 CFR 216.104(a)(13) indicate that shutdown measures if SRKW are sighted Center for Whale Research, Cascadia requests for authorizations must include within the vicinity of the project area Research, the Whale Museum Hotline the suggested means of accomplishing and are approaching the Level B and the British Columbia Sightings the necessary monitoring and reporting harassment zone during in-water Network. that will result in increased knowledge construction activities. Sightings information collected by the of the species and of the level of taking If a killer whale approaches the Level Orca Network includes detection by or impacts on populations of marine B harassment zone during pile driving hydrophone. The SeaSound Remote mammals that are expected to be or removal, and it is unknown whether Sensing Network is a system of present in the proposed action area. it is a SRKW or a transient killer whale, interconnected hydrophones installed Effective reporting is critical both to it shall be assumed to be a SRKW and in the marine environment of Haro compliance as well as ensuring that the

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most value is obtained from the required 5. NMFS will require submission and 7. Distances and bearings of each monitoring. approval of observer Curriculum Vitas. marine mammal observed to the pile Monitoring and reporting Monitoring of marine mammals being driven or removed for each requirements prescribed by NMFS around the construction site shall be sighting (if pile driving or removal was should contribute to improved conducted using high-quality binoculars occurring at time of sighting). understanding of one or more of the (e.g., Zeiss, 10 x 42 power). Due to the 8. Description of any marine mammal following: different sizes of zones of influence • behavior patterns during observation, Occurrence of marine mammal (ZOIs) from different pile sizes, several including direction of travel and species or stocks in the area in which different ZOIs and different monitoring estimated time spent within the Level B take is anticipated (e.g., presence, protocols corresponding to a specific harassment zones while the source was abundance, distribution, density). pile size will be established. active. • Nature, scope, or context of likely • During vibratory driving of 36-inch marine mammal exposure to potential pile or vibratory driving/removal of 24- 9. Number of individuals of each stressors/impacts (individual or inch piles, four land-based PSOs and species (differentiated by month as cumulative, acute or chronic), through one ferry-based PSO will monitor the appropriate) detected within the better understanding of: (1) Action or zone. monitoring zone. environment (e.g., source • During vibratory removal of 12-inch 10. Detailed information about any characterization, propagation, ambient or 14-inch piles, four land-based PSOs implementation of any mitigation noise); (2) affected species (e.g., life will monitor the zone. triggered (e.g., shutdowns and delays), a history, dive patterns); (3) co-occurrence • During impact driving of 36-inch description of specific actions that of marine mammal species with the piles, three land-based PSOs will ensued, and resulting behavior of the action; or (4) biological or behavioral monitor the zone. animal, if any. context of exposure (e.g., age, calving or Locations of the land-based PSOs and 11. Description of attempts to feeding areas). routes of monitoring vessels are shown distinguish between the number of • Individual marine mammal in WSDOT’s Marine Mammal individual animals taken and the responses (behavioral or physiological) Monitoring Plan, which is available number of incidences of take, such as to acoustic stressors (acute, chronic, or online at https:// ability to track groups or individuals. cumulative), other stressors, or www.fisheries.noaa.gov/permit/ 12. Submit all PSO datasheets and/or cumulative impacts from multiple incidental-take-authorizations-under- raw sighting data (in a separate file from stressors. marine-mammal-protection-act. the Final Report referenced immediately • How anticipated responses to To verify the required monitoring above). stressors impact either: (1) Long-term distance, the exclusion zones and zones fitness and survival of individual of influence will be determined by using In the event that personnel involved marine mammals; or (2) populations, a range finder or hand-held global in the construction activities discover species, or stocks. positioning system device. an injured or dead marine mammal, • Effects on marine mammal habitat WSDOT shall report the incident to the (e.g., marine mammal prey species, Reporting Measures Office of Protected Resources (OPR) acoustic habitat, or other important WSDOT is required to submit a draft (301–427–8401), NMFS and to the West physical components of marine report on all marine mammal Coast Region (WCR) regional stranding mammal habitat). monitoring conducted under the IHA (if coordinator (1–866–767–6114) as soon • Mitigation and monitoring issued) within 90 calendar days of the as feasible. If the death or injury was effectiveness. completion of the project. A final report clearly caused by the specified activity, shall be prepared and submitted within WSDOT must immediately cease the Monitoring Measures 30 days following resolution of specified activities until NMFS is able WSDOT shall employ NMFS- comments on the draft report from to review the circumstances of the approved PSOs to conduct marine NMFS. incident and determine what, if any, mammal monitoring for its Seattle The marine mammal report must additional measures are appropriate to Multimodal Project at Colman Dock. contain the informational elements ensure compliance with the terms of the The PSOs will observe and collect data described in the Marine Mammal IHA. WSDOT must not resume their on marine mammals in and around the Monitoring Plan, dated May 12, 2020, activities until notified by NMFS. project area for 30 minutes before, including, but not limited to: The report must include the following during, and for 30 minutes after all pile 1. Dates and times (begin and end) of information: removal and pile installation work. all marine mammal monitoring. NMFS-approved PSOs shall meet the 2. Construction activities occurring 1. Time, date, and location (latitude/ following requirements: during each daily observation period, longitude) of the first discovery (and 1. Independent observers (i.e., not including how many and what type of updated location information if known construction personnel) are required; piles were driven or removed. and applicable); 2. At least one observer must have 3. Weather parameters and water 2. Species identification (if known) or prior experience working as an observer; conditions during each monitoring description of the animal(s) involved; 3. Other observers may substitute period (e.g., wind speed, percent cover, 3. Condition of the animal(s) education (undergraduate degree in visibility, sea state). (including carcass condition if the biological science or related field) or 4. The number of marine mammals animal is dead); training for experience; observed, by species, relative to the pile 4. Observed behaviors of the 4. Where a team of three or more location and if pile driving or removal animal(s), if alive; observers are required, one observer was occurring at time of sighting. should be designated as lead observer or 5. Age and sex class, if possible, of all 5. If available, photographs or video monitoring coordinator. The lead marine mammals observed. footage of the animal(s); and observer must have prior experience 6. PSO locations during marine 6. General circumstances under which working as an observer; and mammal monitoring. the animal was discovered.

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Negligible Impact Analysis and lose a few dB in its hearing sensitivity, activities would not permanently Determination which is not likely to affect its survival modify existing marine mammal habitat. NMFS has defined negligible impact and recruitment. Hearing impairment The activities may kill some fish and as an impact resulting from the that occur for these individual animals cause other fish to leave the area specified activity that cannot be would be limited to the dominant temporarily, thus impacting marine reasonably expected to, and is not frequency of the noise sources, i.e., in mammals’ foraging opportunities in a reasonably likely to, adversely affect the the low-frequency region below 2 limited portion of the foraging range. species or stock through effects on kilohertz (kHz). Therefore, the degree of However, because of the relatively short annual rates of recruitment or survival PTS is not likely to affect the duration of the activities and the (50 CFR 216.103). A negligible impact echolocation performance of the harbor relatively small area of the habitat that finding is based on the lack of likely porpoise specie which uses frequencies may be affected, the impacts to marine adverse effects on annual rates of mostly above 100 kHz. Nevertheless, for mammal habitat are not expected to all marine mammal species, it is known cause significant or long-term negative recruitment or survival (i.e., population- that in general animals avoid areas consequences. Therefore, given the level effects). An estimate of the number where sound levels could cause hearing consideration of potential impacts to of takes alone is not enough information impairment. Nonetheless, we evaluate marine mammal prey species and their on which to base an impact the estimated take in this negligible physical environment, WSDOT’s determination. In addition to impact analysis. proposed construction activity at the considering estimates of the number of Most marine mammal takes that are Seattle Multimodal Project at Colman marine mammals that might be ‘‘taken’’ anticipated and authorized are expected Dock would not adversely affect marine through harassment, NMFS considers to be limited to short-term Level B mammal habitat. other factors, such as the likely nature harassment (behavioral disturbance and In summary and as described above, of any responses (e.g., intensity, temporary threshold shift (TTS)) only. the following factors primarily support duration), the context of any responses Marine mammals present in the vicinity our determination that the impacts (e.g., critical reproductive time or of the action area and taken by Level B resulting from this activity are not location, migration), as well as effects harassment would most likely show expected to adversely affect the species on habitat, and the likely effectiveness overt brief disturbance (startle reaction) or stock through effects on annual rates of the mitigation. We also assess the and avoidance of the area from elevated of recruitment or survival: number, intensity, and context of noise levels during pile driving and pile • Injury—a few individuals of harbor estimated takes by evaluating this removal and the implosion noise. These seal and harbor porpoise could information relative to population behavioral distances are not expected to experience Level A harassment in the status. Consistent with the 1989 affect marine mammals’ growth, form of mild PTS; preamble for NMFS’s implementing survival, and reproduction due to the • Behavioral disturbance—eleven regulations (54 FR 40338; September 29, limited geographic area that would be species/stocks of marine mammals 1989), the impacts from other past and affected in comparison to the much could experience behavioral disturbance ongoing anthropogenic activities are larger habitat for marine mammals in and TTS from the WSDOT’s Seattle incorporated into this analysis via their the Puget Sound. A few marine Multimodal Project at Colman Dock impacts on the environmental baseline mammals could experience TTS if they construction. However, as discussed (e.g., as reflected in the regulatory status occur within the Level B TTS zone. earlier, the area to be affected is small of the species, population size and However, as discussed earlier in this and the duration of the project is short. growth rate where known, ongoing document, TTS is a temporary loss of In addition, the nature of the take would sources of human-caused mortality, or hearing sensitivity when exposed to involve mild behavioral modification; ambient noise levels). loud sound, and the hearing threshold and To avoid repetition, this introductory is expected to recover completely • Although portion of the SWKR discussion of our analyses applies to all within minutes to hours. critical habitat is within the project area, the species listed in Table 8, given that Portions of the SRKW range is within strict mitigation measures such as the anticipated effects of WSDOT’s the proposed action area. In addition, implementing shutdown measures and Seattle Multimodal Project at Colman the entire Puget Sound is designated as suspending pile driving are expected to Dock activities involving pile driving the SRKW critical habitat under the avoid take of SRKW, and impacts to and pile removal on marine mammals ESA. However, WSDOT would be prey species and the habitat itself are are expected to be relatively similar in required to implement strict mitigation expected to be minimal. No other nature. There is no information about measures to suspend pile driving or pile important habitat for marine mammals the nature or severity of the impacts, or removal activities when this stock is exist in the vicinity of the project area. the size, status, or structure of any detected in the vicinity of the project Based on the analysis contained species or stock that would lead to a area. We anticipate that take of SRKW herein of the likely effects of the different analysis by species for this would be avoided. There are no other specified activity on marine mammals activity, or else species-specific factors known important areas for other marine and their habitat, and taking into would be identified and analyzed. mammals, such as feeding or pupping, consideration the implementation of the Although some marine mammals areas. prescribed monitoring and mitigation could experience, and are authorized for The project also is not expected to measures, NMFS finds that the total Level A harassment in the form of PTS have significant adverse effects on marine mammal take from the proposed if they stay within the Level A affected marine mammals’ habitat, as activity will have a negligible impact on harassment zone during the entire pile analyzed in detail in the Potential all affected marine mammal species or driving for the day, the degree of injury Effects of Specified Activities on Marine stocks. is expected to be mild and is not likely Mammals and their Habitat section. to affect the reproduction or survival of There is no other ESA designated Small Numbers the individual animals. It is expected critical habitat in the vicinity of the As noted above, only small numbers that, if hearing impairments occurs, Seattle Multimodal Project at Colman of incidental take may be authorized most likely the affected animal would Dock construction area. The project under sections 101(a)(5)(A) and (D) of

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the MMPA for specified activities other any endangered or threatened species or Efficiency (CIGIE) Performance Review than military readiness activities. The destroy or adversely modify any Board as of October 1, 2020. MMPA does not define small numbers designated critical habitat. NMFS West DATES: Effective Date: October 1, 2020. and so, in practice, where estimated Coast Region has confirmed the FOR FURTHER INFORMATION CONTACT: numbers are available, NMFS compares Incidental Take Statement (ITS) issued Individual Offices of Inspectors General the number of individuals taken to the in 2017 is applicable for the IHA. That at the telephone numbers listed below. most appropriate estimation of ITS exempts the take of seven abundance of the relevant species or humpback whales from the Mexico DPS. SUPPLEMENTARY INFORMATION: stock in our determination of whether I. Background an authorization is limited to small National Environmental Policy Act numbers of marine mammals. To comply with the National The Inspector General Act of 1978, as Additionally, other qualitative factors Environmental Policy Act of 1969 amended, created the Offices of may be considered in the analysis, such (NEPA; 42 U.S.C. 4321 et seq.) and Inspectors General as independent and as the temporal or spatial scale of the NOAA Administrative Order (NAO) objective units to conduct and supervise activities. 216–6A, NMFS must review our action audits and investigations relating to The estimated take is below one third (i.e., the issuance of an IHA) with Federal programs and operations. The of the population for all marine respect to potential impacts on the Inspector General Reform Act of 2008, mammals (Table 8). human environment. established the Council of the Inspectors Based on the analysis contained This action is consistent with General on Integrity and Efficiency herein of the proposed activity categories of activities identified in (CIGIE) to address integrity, economy, (including the prescribed mitigation and Categorical Exclusion B4 (IHAs with no and effectiveness issues that transcend monitoring measures) and the anticipated serious injury or mortality) individual Government agencies; and anticipated take of marine mammals, of the Companion Manual for NOAA increase the professionalism and NMFS finds that small numbers of Administrative Order 216–6A, which do effectiveness of personnel by developing marine mammals will be taken relative not individually or cumulatively have policies, standards, and approaches to to the population size of the affected the potential for significant impacts on aid in the establishment of a well- species or stocks. the quality of the human environment trained and highly skilled workforce in and for which we have not identified the Offices of Inspectors General. The Unmitigable Adverse Impact Analysis CIGIE is an interagency council whose and Determination any extraordinary circumstances that would preclude this categorical executive chair is the Deputy Director There are no relevant subsistence uses exclusion. Accordingly, NMFS has for Management, Office of Management of the affected marine mammal stocks or determined that the issuance of the IHA and Budget, and is comprised species implicated by this action. qualifies to be categorically excluded principally of the 73 Inspectors General Therefore, NMFS has determined that from further NEPA review. (IGs). the total taking of affected species or II. CIGIE Performance Review Board stocks would not have an unmitigable Authorization adverse impact on the availability of As a result of these determinations, Under 5 U.S.C. 4314(c)(1)–(5), and in such species or stocks for taking for NMFS has issued an IHA to the WSDOT accordance with regulations prescribed subsistence purposes. to conduct Seattle Multimodal Project at by the Office of Personnel Management, each agency is required to establish one Endangered Species Act Colman Dock Year 4 in Washington State, between September 10, 2020, and or more Senior Executive Service (SES) Section 7(a)(2) of the Endangered September 9, 2021, provided the performance review boards. The Species Act of 1973 (ESA: 16 U.S.C. previously prescribed mitigation, purpose of these boards is to review and 1531 et seq.) requires that each Federal monitoring, and reporting requirements evaluate the initial appraisal of a senior agency insure that any action it are incorporated. executive’s performance by the authorizes, funds, or carries out is not supervisor, along with any likely to jeopardize the continued Dated: September 15, 2020. recommendations to the appointing existence of any endangered or Donna S. Wieting, authority relative to the performance of threatened species or result in the Director, Office of Protected Resources, the senior executive. The current destruction or adverse modification of National Marine Fisheries Service. members of the Council of the designated critical habitat. To ensure [FR Doc. 2020–21015 Filed 9–22–20; 8:45 am] Inspectors General on Integrity and ESA compliance for the issuance of BILLING CODE 3510–22–P Efficiency Performance Review Board, IHAs, NMFS consults internally, in this as of October 1, 2019, are as follows: case with the West Coast Regional Office, whenever we propose to Agency for International Development COUNCIL OF THE INSPECTORS authorize take for endangered or Phone Number: (202) 712–1150 threatened species. GENERAL ON INTEGRITY AND The only species listed under the ESA EFFICIENCY CIGIE Liaison—Thomas Ullom (202) 712–1150 with the potential to be present in the Senior Executive Service Performance action area is the Mexico Distinct Review Board Membership Thomas Ullom—Deputy Inspector Population Segment (DPS) of humpback General. whales. The effects of this Federal AGENCY: Council of the Inspectors Justin Brown—Counselor to the action were adequately analyzed in General on Integrity and Efficiency. Inspector General (SL). NMFS’ Biological Opinion for the ACTION: Notice. Suzann Gallaher—Assistant Inspector Seattle Multimodal Project at Colman General for Investigations. Dock, Seattle, Washington, dated SUMMARY: This notice sets forth the Marc Meyer—Deputy Assistant October 1, 2018, which concluded that names and titles of the current Inspector General for Investigations. issuance of an IHA would not membership of the Council of the Thomas Yatsco—Assistant Inspector jeopardize the continued existence of Inspectors General on Integrity and General for Audit.

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Alvin A. Brown—Deputy Assistant Paul Hadjiyane—General Counsel. Department of Energy Inspector General for Audit. Carolyn R. Hantz—Assistant Inspector Phone Number: (202) 586–4393 Toayoa Aldridge—Deputy Assistant General for Program, Combatant Inspector General for Audit. Command, and Overseas Contingency CIGIE Liaison—Sabrina Ferguson-Ward Sabrina Ferguson-Ward—Assistant Operations. (202) 586–5798 Inspector General for Management. CIGIE Liaison—Catherine Ford (202) Nicole Angarella—General Counsel to Leo J. FitzHarris—Assistant Inspector 586–4393 the Inspector General. General for Strategic Planning and Performance. Jennifer Quinones—Deputy Inspector Department of Agriculture Janice M. Flores—Assistant Inspector General. Phone Number: (202) 720–8001 General for Investigations, Internal Nicholas Acker—Counsel to the Operations. Inspector General. CIGIE Liaison—Angel N. Bethea (202) Virginia Grebasch—Senior Counsel, Marguerite C. Garrison—Deputy 720–8001 FOIA and Privacy Act Officer. Ann M. Coffey—Deputy Inspector Inspector General for Administrative Dustin Wright—Assistant Inspector General. Investigations. General for Investigations. Christy A. Slamowitz—Counsel to the Theresa S. Hull—Assistant Inspector Lewe Sessions—Deputy Inspector Inspector General. General for Acquisition, Contracting and General for Investigations. Gilroy Harden—Assistant Inspector Sustainment. Sarah Nelson—Assistant Inspector General for Audit. Kelly P. Mayo—Assistant Inspector General for Technology, Financial and Steven H. Rickrode, Jr.—Deputy General for Investigations. Analytics. Assistant Inspector General for Audit. Jack Rouch—Deputy Assistant Yarisis Rivera Rojas—Deputy Troy M. Meyer—Principal Assistant Inspector General for Audits. Assistant Inspector General for Audit. Inspector General for Audit. John McCoy II—Deputy Assistant Peter P. Paradis, Sr.—Deputy Dermot F. O’Reilly—Deputy Inspector Inspector General for Audits. Assistant Inspector General for General for Investigations. Environmental Protection Agency Investigations. Michael J. Roark—Deputy Inspector Virginia E.B. Rone—Assistant General for Evaluations. CIGIE Liaison—Jennifer Kaplan (202) Inspector General for Analytics and 566–0918 Integration. Steven A. Stebbins—Chief of Staff. Robert J. Huttenlocker—Assistant Paul K. Sternal—Assistant Inspector Charles Sheehan—Deputy Inspector Inspector General for Management. General for Investigations, Investigative General. Operations. Edward Shields—Associate Deputy Department of Commerce Inspector General. Randolph R. Stone—Assistant Helina Wong—Assistant Inspector Phone Number: (202) 482–5476 Inspector General for Space, General for Investigations. CIGIE Liaison—Jacqueline G. Ruley Intelligence, Engineering, and Federal Labor Relations Authority (202) 482–5476 Oversight. Roderick Anderson—Deputy Richard B. Vasquez—Assistant Phone Number: (202) 218–7744 Inspector General. Inspector General for Readiness and CIGIE Liaison—Dana Rooney (202) 218– Richard Bachman—Assistant Global Operations. 7744 Inspector General for Audits. Lorin T. Venable—Assistant Inspector Dana Rooney—Inspector General. E. Wade Green, Jr.—Counsel to the General for Financial Management and Inspector General. Reporting. Federal Maritime Commission Robert O. Johnston, Jr.—Chief of Staff. David G. Yacobucci—Assistant Frederick J. Meny—Assistant Phone Number: (202) 523–5863 Inspector General for Data Analytics. Inspector General for Audit & CIGIE Liaison—Jon Hatfield (202) 523– Evaluation. Department of Education OIG 5863 Mark H. Zabarsky—Principal Phone Number: (202) 245–6900 Jon Hatfield—Inspector General. Assistant Inspector General for Audit & Evaluation. CIGIE Liaison—Keith Maddox (202) Federal Trade Commission 748–4339 Council of the Inspectors General on Phone Number: (202) 326–2355 Integrity and Efficiency Robert Mancuso—Assistant Inspector CIGIE Liaison—Andrew Katsaros (202) Phone Number: 202–292–2603 General for Information Technology 326–2355 Audits and Computer Crimes Alan F. Boehm—Executive Director. Investigations. Andrew Katsaros—Inspector General. Doug Holt—Executive Director, General Services Administration Training Institute. Kevin Young—Deputy Assistant Inspector General for Information Phone Number: (202) 501–0450 Department of Defense Technology Audits and Computer CIGIE Liaison—Phyllis Goode (202) Phone Number: (703) 604–8324 Crimes Investigations. Bryon Gordon—Assistant Inspector 273–7270 CIGIE Liaison—Brett Mansfield (703) General for Audit. Robert C. Erickson—Deputy Inspector 604–8300 Sean Dawson—Deputy Assistant General. Daniel R. Blair—Deputy Chief of Staff. Inspector General for Audit. Larry L. Gregg—Associate Inspector Michael S. Child, Sr.—Deputy General. Inspector General for Overseas Aaron Jordan—Assistant Inspector Edward Martin—Counsel to the Contingency Operations. General for Investigations. Inspector General. Carol N. Gorman—Assistant Inspector Shafee Carnegie—Deputy Assistant R. Nicholas Goco—Assistant Inspector General for Cyber Operations. Inspector General for Investigations. General for Audits.

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Barbara Bouldin—Deputy Assistant James Izzard—Deputy Assistant Jason R. Malmstrom—Assistant Inspector General for Acquisition Inspector General for Investigations. Inspector General for Audit. Program Audits. James Beauchamp—Deputy Assistant Mark L. Hayes—Deputy Assistant Brian Gibson—Deputy Assistant Inspector General for Investigations. Inspector General for Audit. Inspector General for Real Property Thomas Kait—Assistant Inspector Sarah E. Lake—Assistant Inspector Audits. General for Special Reviews and General for Investigations. James E. Adams—Assistant Inspector Evaluations. Sandra Barnes—Deputy Assistant General for Investigations. Jackson Eaton—Deputy Assistant Inspector General for Investigations. Jason Suffredini—Deputy Assistant Inspector General for Special Reviews Donald Kyzar—Assistant Inspector Inspector General for Investigations. and Evaluations. General for Information Technology. Patricia D. Sheehan—Assistant Erica Paulson—Assistant Inspector Gregory T. Peters—Assistant Inspector Inspector General for Inspections. General for External Affairs. General for Management and Planning. Kristine Preece—Assistant Inspector Scott Wrightson—Chief Data Officer. Cynthia Sjoberg Radway—Deputy General for Administration. Department of Housing and Urban Assistant Inspector for Management and Department of Health and Human Development Planning. Services Phone Number: (202) 708–0430 Department of Labor Phone Number: (202) 619–3148 Phone Number: (202) 402–6715 Phone Number: (202) 693–5100 CIGIE Liaison—Elise Stein (202) 619– CIGIE Liaison—Luiz A. Santos (202) 2686 CIGIE Liaison—Jacquelyn Phillips (202) 402–2948 693–7062 Juliet Hodgkins—Deputy Chief of Staff. Stephen Begg—Deputy Inspector Dee Thompson—Counsel to the Robert Owens, Jr.—Deputy Inspector General. Inspector General. General for Management and Policy. Charles Jones—Senior Advisor for Elliot P. Lewis—Assistant Inspector Chilbert—Assistant Inspector Operations and External Affairs. General for Audit. General/Chief Information Officer. Kilah White—Assistant Inspector Laura Nicolosi—Deputy Assistant Gregg Treml—Assistant Inspector General for Audit. Inspector General for Audit. General/Deputy Chief Financial Officer. Kimberly Randall—Deputy Assistant Leia Burks—Assistant Inspector Gary Cantrell—Deputy Inspector Inspector General for Audit (Field General for Investigations—Labor General for Investigations. Operations). Racketeering and Fraud. Elton Malone—Assistant Inspector John Buck—Deputy Assistant Thomas D. Williams—Assistant General for Investigations. Inspector General for Audit (Field Inspector General for Management and Shimon Richmond—Assistant Operations). Policy. Inspector General for Investigations. Brian Pattison—Assistant Inspector Charles Sabatos—Deputy Assistant Christian Schrank—Assistant General for Evaluation. Inspector General for Management and Inspector General for Investigations. Christopher Webber—Deputy Policy. Suzanne Murrin—Deputy Inspector Assistant Inspector General for Luiz A. Santos—Assistant Inspector General for Evaluation and Inspections. Information Technology. General for Congressional and Public Erin Bliss—Assistant Inspector Department of the Interior Relations. General for Evaluation and Inspections. Jessica Southwell—Chief Performance Ann Maxwell—Assistant Inspector Phone Number: (202) 208–5635 and Risk Management Officer. General for Evaluation and Inspections. CIGIE Liaison—Karen Edwards (202) Gregory Demske—Chief Counsel to National Aeronautics and Space 208–5635 the Inspector General. Administration Robert DeConti—Assistant Inspector Caryl Brzymialkiewicz—Deputy General for Legal Affairs. Inspector General. Phone Number: (202) 358–1220 Lisa Re—Assistant Inspector General Steve Hardgrove—Assistant Inspector CIGIE Liaison—Renee Juhans (202) 358– for Legal Affairs. General for Strategic Operations. 1712 Amy Frontz—Deputy Inspector Kimberly McGovern—Assistant George A. Scott—Deputy Inspector General for Audit Services. Inspector General for Audits, Tamara Lilly—Assistant Inspector Inspections and Evaluations. General. General for Audit Services. Matthew Elliott—Assistant Inspector Frank LaRocca—Counsel to the Brian Ritchie—Assistant Inspector General for Investigations. Inspector General. General for Audit Services. Bruce Delaplaine—General Counsel. James R. Ives—Assistant Inspector Jill Baisinger—Senior Counselor. General for Investigations. Department of Homeland Security Kimberly F. Benoit—Assistant Department of Justice Phone Number: (202) 981–6000 Inspector General for Audits. Phone Number: (202) 514–3435 Ross W. Weiland—Assistant Inspector CIGIE Liaison—Erica Paulson (202) General for Management Planning. 981–6392 CIGIE Liaison—John Lavinsky (202) National Archives and Records Jordan Gottfried—Deputy Assistant 514–3435 Administration Inspector General for Management. William M. Blier—Deputy Inspector Maureen Duddy—Deputy Assistant General. Phone Number: (301) 837–3000 Jonathan M. Malis—General Counsel. Inspector General for Audits. CIGIE Liaison—John Simms (301) 837– Kristen Bernard—Deputy Assistant Michael Sean O’Neill—Assistant 3000 Inspector General for Audits Inspector General for Oversight and (Information Technology). Review. Jewel Butler—Assistant Inspector Donald Bumgardner—Deputy Patricia Sumner—Deputy Assistant General for Audit. Assistant Inspector General for Audits Inspector General for Oversight and Jason Metrick—Assistant Inspector (Law Enforcement & Terrorism). Review. General for Investigations.

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National Labor Relations Board United States Postal Service Department of State Phone Number: (202) 273–1960. Phone Number: (703) 248–2100 Phone Number: (571) 348–0200 CIGIE Liaison—Robert Brennan (202) CIGIE Liaison—Agapi Doulaveris (703) CIGIE Liaison—Sarah Breen (571) 348– 273–1960 248–2286 3992 David P. Berry—Inspector General. Elizabeth Martin—General Counsel. Diana R. Shaw—Deputy Inspector General. National Science Foundation Gladis Griffith—Deputy General Norman P. Brown—Assistant Counsel. Phone Number: (703) 292–7100 Inspector General for Audits. Railroad Retirement Board Gayle L. Voshell—Deputy Assistant CIGIE Liaison—Lisa Vonder Haar (703) Inspector General for Audits. 292–2989 Phone Number: (312) 751–4690 Tinh T. Nguyen—Deputy Assistant Inspector General for Audits, Middle CIGIE Liaison—Jill Roellig (312) 751– Megan Wallace—Assistant Inspector East Region Operations. 4993 General for Investigations. Sandra J. Lewis—Assistant Inspector Mark Bell—Assistant Inspector Patricia A. Marshall—Counsel to the General for Inspections. General for Audits. Inspector General. Lisa R. Rodely—Deputy Assistant Ken Chason—Counsel to the Inspector Inspector General for Inspections. Debra Stringfellow-Wheat—Assistant General. Michael T. Ryan—Assistant Inspector Inspector General for Audit. General for Investigations. Nuclear Regulatory Commission Small Business Administration Kevin S. Donohue—Deputy General Phone Number: (301) 415–5930 Counsel. Phone Number: (202) 401–0753 Kerry K. Neal—Assistant Inspector CIGIE Liaison—Ziad Buhaissi (301) General for Management. 415–1983 CIGIE Liaison—Mary Kazarian (202) 205–6586 Jeffrey McDermott—Assistant Inspector General for Evaluations and David C. Lee—Deputy Inspector Special Projects. General. Brian Grossman—Assistant Inspector General for Investigations. Nicole S. Mathis—Deputy Assistant Brett M. Baker—Assistant Inspector Inspector General for Evaluations and General for Audits. Andrea Deadwyler—Assistant Special Projects. Inspector General for Audits. Office of Personnel Management Parisa Salehi—Assistant Inspector Sheldon Shoemaker—Assistant General for Enterprise Risk Phone Number: (202) 606–1200 Inspector General for Management and Management. Operations. CIGIE Liaison—Faiza Mathon-Mathieu Department of Transportation (202) 606–2236 Social Security Administration Phone Number: (202) 366–1959 Norbert E. Vint—Deputy Inspector Phone Number: (410) 966–8385 CIGIE Liaison—Nathan P. Richmond: General Performing the Duties of the CIGIE Liaison—Walter E. Bayer, Jr. (202) (202) 493–0422 Inspector General. 358–6319 Michael R. Esser—Assistant Inspector Mitchell L. Behm—Deputy Inspector General for Audits. Benjamin Alpert—Deputy Inspector General. M. Elise Chawaga—Principal General. Melissa D. Brown—Deputy Assistant Assistant Inspector General for Inspector General for Audits. Chad Bungard—Chief of Staff. Investigations. Lewis F. Parker, Jr.—Deputy Assistant Michelle L.H. Anderson—Assistant Barry DeWeese—Principal Assistant Inspector General for Audits. Inspector General for Audit. Inspector General for Auditing and Evaluation. Drew M. Grimm—Assistant Inspector Jennifer Walker—Assistant Inspector General for Investigations. Matthew E. Hampton—Assistant General for Investigations. Inspector General for Aviation Audits. Thomas W. South—Deputy Assistant Kathleen Sedney—Deputy Assistant Louis C. King—Assistant Inspector Inspector General for Investigations. Inspector General for Audit. General for Financial Audits. James L. Ropelewski—Assistant Kevin Huse—Deputy Assistant Mary Kay Langan-Feirson—Assistant Inspector General for Management. Inspector General for Investigations. Inspector General for Acquisition and Nicholas E. Hoyle—Deputy Assistant Procurement Audits. Inspector General for Management. Donald Jefferson—Deputy Assistant David Pouliott—Assistant Inspector Inspector General for Investigations. Paul N. St. Hillaire—Assistant General for Surface Transportation Inspector General for Legal and Special Inspector General for the Audits. Legislative Affairs. Troubled Asset Relief Program Charles A. Ward—Assistant Inspector General for Audit Operations and Phone Number: (202) 622–1419 Special Reviews. Phone Number: (202) 692–2900 CIGIE Liaison—Vince Micone (202) Department of the Treasury 927–1813 CIGIE Liaison—Joaquin Ferrao (202) Phone Number: (202) 622–1090 692–2921 Vincent Micone III—Principal Deputy CIGIE Liaison— Delmar (202) 927– Kathy Buller—Inspector General Special Inspector General. 3973 (Foreign Service). Thomas Jankowski—Deputy Inspector Richard K. Delmar—Deputy Inspector Joaquin Ferrao—Deputy Inspector General for Investigations. General. General and Legal Counsel (Foreign Melissa Bruce—Deputy Inspector Jeffrey Lawrence—Assistant Inspector Service). General for Management. General for Management.

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Sally Luttrell—Assistant Inspector Tara Porter—Deputy Assistant as 1938, but was not used routinely General for Investigations. Inspector General for Management and until 1943. PTA was formally Deborah L. Harker—Assistant Administration established in 1956 through a maneuver Inspector General for Audit. Dated: September 11, 2020. agreement granted by the Territory of Pauletta Battle—Deputy Assistant Shiji S. Thomas, Hawai1i. In 1964, the State granted a 65- Inspector General for Financial Chair, CIGIE Oversight.gov Subcommittee/ year lease of approximately 23,000 acres Management and Transparency Audits. Forensic Accounting Manager, NSF OIG. of land to the Army for military Susan Barron—Deputy Assistant [FR Doc. 2020–20959 Filed 9–22–20; 8:45 am] purposes. The lease expires on August Inspector General for Financial Sector 16, 2029. The 23,000 acres of State- BILLING CODE 6820–C9–P Audits. owned land contain utilities, critical Donna F. Joseph—Deputy Assistant infrastructure, maneuver land, and key Inspector General for Cyber and DEPARTMENT OF DEFENSE training facilities, some of which are not Financial Assistance Audits. available elsewhere in Hawai1i. The land Treasury Inspector General for Tax Department of the Army also provides access to approximately Administration/Department of the 110,000 acres of adjacent U.S. Treasury Environmental Impact Statement for Government-owned land at PTA. PTA Army Training Land Retention at encompasses approximately 132,000 Phone Number: (202) 622–6500 Po¯ hakuloa Training Area in Hawai1i; acres of land used for training military CIGIE Liaison—David Barnes (Acting) Correction personnel for combat. It is the only U.S. training area in the Pacific region where (202) 622–3062 AGENCY: Department of the Army; training units can complete all mission Lori Creswell—Deputy Chief Counsel. Defense (DOD). essential tasks, and the only U.S. Gladys Hernandez—Chief Counsel. ACTION: Notice of intent; correction. training facility in the Pacific region that Heather Hill—Assistant Inspector can accommodate larger than company- General for Audit, Management Services SUMMARY: The Department of the Army sized units for livefire and maneuver and Exempt Organizations. (Army) published a document in the James Jackson—Deputy Inspector Federal Register of September 4, 2020, exercises. The U.S. Army Hawaii General for Investigations. concerning its continuing intent to (USARHAW) and other U.S. military Nancy LaManna—Assistant Inspector prepare an Environmental Impact units that train at PTA include the 25th General for Audit, Management, Statement to address the Army’s Infantry Division, U.S. Marine Corps, Planning, and Workforce Development. proposed retention of up to U.S. Navy, U.S. Air Force, Hawaii Russell Martin—Assistant Inspector approximately 23,000 acres of land National Guard, and U.S. Army Reserve. General for Audit, Returns Processing, currently leased to the Army by the state The Army’s retention of State-owned and Accounting Services. of Hawai1i (‘‘State-owned land’’) at land within PTA is needed to enable Michael McKenney—Deputy Po¯hakuloa Training Area (PTA) on the USARHAW to continue to conduct Inspector General for Audit. island of Hawai1i. The document military training to meet its current and Susan Moats—Assistant Inspector referenced two in-person comment future training requirements. Retention General for Investigations—Field. stations previously associated with the of State-owned land is needed to allow Trevor Nelson—Assistant Inspector Virtual Scoping Open House to be held access between major parcels of U.S. General for Investigations, Cyber, Wednesday, September 23, 2020. Now, Government-owned land at PTA, retain Operations and Investigative Support. however, because of the national and substantial Army infrastructure Richard Varn II—Chief Information local orders and proclamations in investments, allow for future facility Officer. response to the coronavirus (COVID–19) and infrastructure modernization, Danny Verneuille—Assistant pandemic in the United States, preserve limited maneuver area, provide Inspector General for Audit, Security, including: The County of Hawai1i austere environment training, and and Information Technology Services. Mayor’s COVID–19 Emergency Rule No. maximize use of the impact area in Matthew Weir—Assistant Inspector 11 dated August 25, 2020, and the support of USARHAW-coordinated General for Audit, Compliance, and Office of the Governor, State of Hawaii training. To understand the Enforcement Operations. Office Twelfth Proclamation Related to environmental consequences of the the COVID–19 Emergency dated August decision to be made, the EIS will Department of Veterans Affairs 20, 2020, the Army is canceling the in- evaluate the potential direct, indirect, Phone Number: (202) 461–4603 person comment stations. Only the in- and cumulative impacts of a range of person comment stations will be reasonable alternatives that meet the CIGIE Liaison—Brandy Beckham (202) cancelled; the EIS Scoping Virtual Open purpose of, and need for, the Proposed 264–9376 House will be held as planned. Action. Alternatives to be considered, David Case—Deputy Inspector FOR FURTHER INFORMATION CONTACT: Mr. including the no action alternative, are General. Michael Donnelly, PTA Public Affairs (1) Full Retention, (2) Modified John D. Daigh—Assistant Inspector Officer, at michael.o.donnelly.civ@ Retention, and (3) Minimum Retention General for Healthcare Inspections. mail.mil or (808) 969–2411. and Access. Other reasonable Julie Kroviak—Deputy Assistant SUPPLEMENTARY INFORMATION: alternatives raised during the scoping Inspector General for Healthcare process and capable of meeting the Correction Inspections. project purpose and need will be Melanie Krause—Assistant Inspector In the Federal Register of September considered for evaluation in the EIS. General for Management and 4, 2020, in FR Doc. 2020–19620, on page Native Hawaiian organizations; Federal, Administration. 55263, in the third column, correct the state, and local agencies; and the public Gopala Seelamneni—Deputy SUPPLEMENTARY INFORMATION caption to are invited to be involved in the scoping Assistant Inspector General for read: process for the preparation of this EIS Management and Administration/Chief SUPPLEMENTARY INFORMATION: by participating in a scoping meeting Technology Officer. PTA has been used for training as early and/or submitting written comments.

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The scoping process will help identify for the proper performance of the committee of NDU faculty who review potential environmental impacts and functions of the agency, including the application in consideration of key issues of concern to be analyzed in whether the information shall have admission to a master’s degree program. the EIS. Written comments must be sent practical utility; the accuracy of the The successful effect of this information within 40 days of publication of the agency’s estimate of the burden of the collection is to satisfy NDU master’s Notice of Intent in the Federal Register. proposed information collection; ways degree application requirements for In response to the coronavirus (COVID– to enhance the quality, utility, and international students so that an 19) pandemic in the United States and clarity of the information to be admissions decision can be made. the Center for Disease Control’s collected; and ways to minimize the Affected Public: Foreign Nationals. recommendations for social distancing burden of the information collection on Annual Burden Hours: 30 hours. and avoiding large public gatherings, respondents, including through the use Number of Respondents: 120. the Army will not hold public scoping of automated collection techniques or Responses per Respondent: 1. meetings for this action. In lieu of the other forms of information technology. Annual Responses: 120. public scoping meetings, the Army will DATES: Consideration will be given to all Average Burden per Response: 15 use other alternative means to enable comments received by November 23, minutes. public participation such as virtual 2020. Frequency: Annually. meetings using online meeting/ ADDRESSES: You may submit comments, Dated: September 11, 2020. collaboration tools, teleconference, Aaron T. Siegel, social media, or email, as appropriate. identified by docket number and title, by any of the following methods: Alternate OSD Federal Register Liaison An EIS Scoping Virtual Open House Officer, Department of Defense. will be held on Wednesday, September Federal eRulemaking Portal: http:// 23, 2020 from 4–9 p.m. During the EIS www.regulations.gov. Follow the [FR Doc. 2020–21022 Filed 9–22–20; 8:45 am] Scoping Virtual Open House, video instructions for submitting comments. BILLING CODE 5001–06–P presentations can be viewed online at Mail: DoD cannot receive written comments at this time due to the https://home.army.mil/hawaii/ DEPARTMENT OF DEFENSE index.php/PTAEIS and oral and written COVID–19 pandemic. Comments should be sent electronically to the docket comments will be accepted. Oral Office of the Secretary comments will be accepted via phone listed above. by calling (808) 300–0220. Notification Instructions: All submissions received [Docket ID DoD–2020––0076] of the EIS Scoping Virtual Open House must include the agency name, docket date and time will also be published number and title for this Federal Privacy Act of 1974; System of and announced in local news media Register document. The general policy Records for comments and other submissions outlets and on the EIS website. For AGENCY: Office of the Secretary of those who do not have ready access to from members of the public is to make these submissions available for public Defense (OSD), Department of Defense a computer or the internet, the scoping (DoD). materials posted to the EIS website will viewing on the internet at http:// ACTION: Notice of a modified system of be made available upon request by mail. www.regulations.gov as they are records. Inquiries and requests for scoping received without change, including any materials may be made to Michael personal identifiers or contact information. SUMMARY: The OSD is modifying a Donnelly, PTA Public Affairs Officer at system of records titled ‘‘National (808) 969–2411 or by email at FOR FURTHER INFORMATION CONTACT: To Language Service Corps (NLSC) [email protected]. request more information on this Records,’’ DHRA 07. The NLSC system proposed information collection or to Brenda S. Bowen, is a cost-effective solution to the tactical obtain a copy of the proposal and Army Federal Register Liaison Officer. and strategic management of foreign associated collection instruments, language support needs within the U.S. [FR Doc. 2020–20966 Filed 9–22–20; 8:45 am] please write to National Defense military and civilian enterprise for BILLING CODE 5061–AP–P University, 300 5th Avenue SW, operations, plans, and workforce Building 62, Washington, DC 20319, requirements. It provides a surge ATTN: LTC Ann Summers, or call (202) DEPARTMENT OF DEFENSE capability from individuals who are 685–3323. generally unavailable to the Government Office of the Secretary SUPPLEMENTARY INFORMATION: by tapping into our nation’s population Title; Associated Form; and OMB of skilled citizens who speak hundreds [Docket ID DoD–2020–OS–0075] Number: Master’s Degree Application of languages critical to our nation’s Proposed Collection; Comment Form for International Students; OMB needs. Request Control Number 0704–XXXX. Initially established as a pilot program Needs and Uses: This form is used to maintaining a pool of linguists AGENCY: National Defense University, collect the information required to proficient in ten languages, NLSC has DoD. admit international students to an NDU since expanded its capabilities to ACTION: Information collection notice. master’s degree program. The support over 414 languages and dialects respondents are prospective and provide over 4,000 man-hours of SUMMARY: In compliance with the international students who wish to be support to federal agencies annually. To Paperwork Reduction Act of 1995, the admitted to an NDU master’s degree meet the increasing need for National Defense University announces program. They respond to this professionals with language skills, in a proposed public information information collection in partial 2018, the NLSC expanded the reach of collection and seeks public comment on fulfillment of NDU application and linguist support from DoD organizations the provisions thereof. Comments are admissions requirements. The to all federal government agencies and invited on: Whether the proposed completed collection instrument is is modifying the system to collection of information is necessary processed by the NDU registrars and a accommodate this growth.

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DATES: This system of records effectively, and meet the requirements address, email address, home and modification is effective upon of Office of Management and Budget mobile telephone numbers, official duty publication; however comments on the (OMB) Circular A–108. address, place of birth, birth date, age routine uses will be accepted on or The DoD notices for systems of verification of 18 years, education before October 23, 2020. The routine records subject to the Privacy Act of information, disability information, uses are effective at the close of the 1974, as amended, have been published financial information, security comment period. in the Federal Register and are available clearance, military discharge records, ADDRESSES: You may submit comments, from the address in FOR FURTHER employment information (e.g., federal identified by docket number and title, INFORMATION CONTACT or at the Defense employee, political appointee, armed by any of the following methods: Privacy, Civil Liberties, and forces), foreign language(s) spoken, * Federal Rulemaking Portal: https:// Transparency Division website at foreign language proficiency levels, www.regulations.gov. https://dpcld.defense.gov. origin of foreign language(s) spoken, Follow the instructions for submitting In accordance with 5 U.S.C. 552a(r) English proficiency levels, NLSC- comments. and OMB Circular No. A–108, the DoD assigned control number, passport * Mail: DoD cannot receive written has provided a report of this system of information, marital status, emergency comments at this time due to the records to the OMB and to Congress. contact(s), beneficiary information, COVID–19 pandemic. Comments should Dated: September 16, 2020. photo, blood type, height, hair color, eye be sent electronically to the docket Aaron T. Siegel, color, identifying scars, marks, or listed above. tattoos, vaccination information, known Instructions: All submissions received Alternate OSD Federal Register Liaison Officer, Department of Defense. medical conditions and prescriptions, must include the agency name and anticipated separation date, and actual docket number for this Federal Register SYSTEM NAME AND NUMBER: separation date from service. document. The general policy for National Language Service Corps RECORD SOURCE CATEGORIES: comments and other submissions from (NLSC) Records, DHRA 07. members of the public is to make these The individual. submissions available for public SECURITY CLASSIFICATION: ROUTINE USES OF RECORDS MAINTAINED IN THE viewing on the internet at https:// Unclassified. SYSTEM, INCLUDING CATEGORIES OF USERS AND www.regulations.gov as they are PURPOSES OF SUCH USES: received without change, including any SYSTEM LOCATION: In addition to those disclosures personal identifiers or contact Amazon Web Services (AWS), generally permitted in accordance with information. GovCloud West, 12900 Worldgate Drive, Suite 800, Herndon, VA 20170–6040. 5 U.S.C. 552a(b), the records contained FOR FURTHER INFORMATION CONTACT: Ms. herein may specifically be disclosed Lyn Kirby, Defense Privacy, Civil SYSTEM MANAGER(S): outside the DoD as a routine use Liberties, and Transparency Division, Associate Director, National Language pursuant to 5 U.S.C. 552a(b)(3) as Directorate for Oversight and Service Corps, 4800 Mark Center Drive, follows: Compliance, Department of Defense, Suite 08G08, Alexandria, VA 22350– a. To contractors responsible for 4800 Mark Center Drive, Mailbox #24, 4000. performing or working on contracts for Suite 08D09, Alexandria, VA 22350– the DoD when necessary to accomplish 1700; [email protected]; (703) AUTHORITY FOR MAINTENANCE OF THE SYSTEM: an agency function related to this 571–0070. 10 U.S.C. 131, Office of the Secretary system of records. Individuals provided SUPPLEMENTARY INFORMATION: The NLSC of Defense; 50 U.S.C. 1913, National information under this routine use are is a federal program sponsored by the Language Service Corps; DoD Directive subject to the same Privacy Act DoD through the Defense Language and 5124.02, Under Secretary of Defense for requirements and limitations on National Security Education Office Personnel and Readiness (USD(P&R)); disclosure that apply to DoD officers (DLNSEO). Designed to support federal and E.O. 9397 (SSN), as amended. and employees. agencies in times of national need, the PURPOSE(S) OF THE SYSTEM: b. To another department or agency of NLSC provides and maintains a readily the United States in need of temporary To allow U.S. citizens with language available civilian corps of 8,906 bi- short-term foreign language services, skills to self-identify their skills for the lingual volunteers. The NLSC provides where government employees are purpose of temporary employment on members with the opportunity to join an required or desired. an intermittent work schedule or service active community of culturally diverse c. To the appropriate Federal, State, opportunities in support of the DoD or individuals, utilize language local, territorial, tribal, foreign, or another department or agency of the development tools, and use their international law enforcement authority United States. The information will be language skills on missions and mission or other appropriate entity where a used to determine applicants’ eligibility deployments. record, either alone or in conjunction for NLSC membership, to identify and This modification will expand the with other information, indicates a contact NLSC members, and to facilitate categories of records in the system to violation or potential violation of law, travel to foreign work assignments. include Social Security Numbers and whether criminal, civil, or regulatory in other fields required to facilitate safe CATEGORIES OF INDIVIDUALS COVERED BY THE nature. foreign travel. In addition, modifications SYSTEM: d. To any component of the were made to all other sections of the Applicants to or members of the Department of Justice for the purpose of SORN, with the exception of, NLSC. representing the DoD, or its ‘‘exemptions claimed,’’ to align with the components, officers, employees, or latest SORN templates and guidance. CATEGORIES OF RECORDS IN THE SYSTEM: members in pending or potential The intended purpose of this Full name, other names used, social litigation to which the record is modification is to accommodate NLSC security number, DoD ID numbers, pertinent. growth, modify an outdated tool to citizenship, gender/gender e. In an appropriate proceeding before support NLSC missions more identification, race/ethnicity, home a court, grand jury, or administrative or

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adjudicative body or official, when the ADMINISTRATIVE, TECHNICAL, AND PHYSICAL If executed within the United States, DoD or other Agency representing the SAFEGUARDS: its territories, possessions, or DoD determines that the records are Electronic records are encrypted and commonwealths: ‘‘I declare (or certify, relevant and necessary to the kept on a secured network behind verify, or state) under penalty of perjury proceeding; or in an appropriate firewalls where files are regularly that the foregoing is true and correct. proceeding before an administrative or backed-up and maintained with regular Executed on (date). (Signature).’’ adjudicative body when the adjudicator intervals. Access to electronic records is CONTESTING RECORD PROCEDURES: determines the records to be relevant to limited to authorized personnel who the proceeding. have a DoD Common Access Card (CAC) The DoD rules for accessing records, f. To the National Archives and and successfully completed the proper for contesting contents and appealing Records Administration for the purpose security training. Access to records is initial agency determinations are of records management inspections further restricted using multi-factor contained in 32 CFR part 310, or may conducted under the authority of 44 authentication, and PII is encrypted be obtained from the system manager. U.S.C. 2904 and 2906. both at rest and when transmitted NOTIFICATION PROCEDURES: g. To a Member of Congress or staff electronically. Individuals seeking to determine acting upon the Member’s behalf when The servers are housed in nondescript the Member or staff requests the whether information about themselves facilities which restrict access to is contained in this system should information on behalf of, and at the individuals with a justified business request of, the individual who is the address written inquiries to: Associate reason. The facilities are guarded by Director, National Language Service subject of the record. entry gates, security guards, and h. To appropriate agencies, entities, Corps, 4800 Mark Center Drive, Suite supervisors who monitor officers and 08G08, Alexandria, VA 22350–4000. and persons when (1) the DoD suspects visitors via security cameras. When or confirms a breach of the system of Signed, written requests should contain approved individuals are on site, they the individual’s full name, current home records; (2) the DoD determines as a are given a badge that requires multi- result of the suspected or confirmed address, and the name and number of factor authentication and limits access this SORN. In addition, the requester breach there is a risk of harm to to pre-approved areas. individuals, the DoD (including its must provide either a notarized All NLSC personnel are certified for information systems, programs, and statement or a declaration made in their roles in accordance with DoD operations), the Federal Government, or accordance with 28 U.S.C. 1746, using Directive 8570.01–M. A cyber national security; and (3) the disclosure the following format: awareness-training program is made to such agencies, entities, and If executed outside the United States: implemented to ensure that upon persons is reasonably necessary to assist ‘‘I declare (or certify, verify, or state) arrival, and at least annually thereafter, in connection with the DoD’s efforts to under penalty of perjury under the laws all NLSC personnel receive DoD Cyber respond to the suspected or confirmed of the United States of America that the Awareness training. Additionally, cyber breach or to prevent, minimize, or foregoing is true and correct. security personnel receive training to remedy such harm. Executed on (date). (Signature).’’ perform their assigned cyber security i. To another Federal agency or If executed within the United States, responsibilities, to include Federal entity, when the DoD its territories, possessions, or familiarization with their prescribed determines information from this commonwealths: ‘‘I declare (or certify, roles in all cyber related plans such as system of records is reasonably verify, or state) under penalty of perjury incident response, mitigation of necessary to assist the recipient agency that the foregoing is true and correct. malicious code and suspicious or entity in (1) responding to a Executed on (date). (Signature).’’ communications, configuration suspected or confirmed breach or (2) management, and disaster recovery. EXEMPTIONS PROMULGATED FOR THE SYSTEM: preventing, minimizing, or remedying None. the risk of harm to individuals, the RECORD ACCESS PROCEDURES: recipient agency or entity (including its Individuals seeking access to records HISTORY: information systems, programs and about themselves contained in this 80 FR 13353, March 13, 2015. operations), the Federal Government, or System of Records should address national security, resulting from a [FR Doc. 2020–21008 Filed 9–22–20; 8:45 am] written inquiries to the Office of the suspected or confirmed breach. BILLING CODE 5001–06–P Secretary of Defense (OSD)/Joint Staff POLICIES AND PRACTICES FOR STORAGE OF Freedom of Information Act Requester RECORDS: Service Center, Office of Freedom of DEPARTMENT OF DEFENSE Records are maintained in electronic Information, 1155 Defense Pentagon, storage media, in accordance with the Washington, DC 20301–1155. Signed, Office of the Secretary safeguards mentioned below. written requests should contain the individual’s full name, current home Defense Health Board; Notice of POLICIES AND PRACTICES FOR RETRIEVAL OF address, and the name and number of Federal Advisory Committee Meeting RECORDS: this system of records notice (SORN). In The records are retrieved by NLSC- AGENCY: Under Secretary of Defense for addition, the requester must provide Personnel and Readiness, Department of assigned control number, the either a notarized statement or a individual’s name or home address. Defense (DoD). declaration made in accordance with 28 ACTION: Notice of Federal Advisory POLICIES AND PRACTICES FOR RETENTION AND U.S.C. 1746, using the following format: Committee meeting. DISPOSAL OF RECORDS: If executed outside the United States: NLSC Charter Member Files. Destroy/ ‘‘I declare (or certify, verify, or state) SUMMARY: The DoD is publishing this Delete 4 years after termination of under penalty of perjury under the laws notice to announce that the following membership. Application of Non- of the United States of America that the Federal Advisory Committee meeting of enrollees. Destroy/Delete when 4 years foregoing is true and correct. the Defense Health Board (DHB) will old. Executed on (date). (Signature).’’ take place.

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DATES: Open to the public Thursday, emailing their name, rank/title, and Case Management System (ICMS),’’ November 5, 2020 from 11:00 a.m. to organization/company to DHRA 16. The ICMS supports the 5:30 p.m. dha.ncr.dhb.mbx.defense-health- Defense Personnel and Family Support ADDRESSES: The meeting will be held by [email protected] or by contacting Ms. Center’s (DPFSC) employer support to videoconference/teleconference. Michele Porter at (703) 275–6012 no the National Guard and Reserve (ESGR) Participant access information will be later than Thursday, October 29, 2020. Ombudsman Program. This system provided after registering. (Pre-meeting Once registered, the web address and provides assistance to U.S. Military registration is required. See guidance in audio number will be provided. Service Members and members of the SUPPLEMENTARY INFORMATION, ‘‘Meeting Special Accommodations: Individuals National Disaster Medical System with Accessibility.’’) requiring special accommodations to resolving employment and or re- access the public meeting should FOR FURTHER INFORMATION CONTACT: employment conflicts and provides contact Ms. Michele Porter at least five employers with Uniform Services CAPT Gregory H. Gorman, U.S. Navy, (5) business days prior to the meeting so 703–275–6060 (Voice), 703–275–6064 Employment and Reemployment Act that appropriate arrangements can be information. (Facsimile), gregory.h.gorman.mil@ made. mail.mil (Email). Mailing address is Written Statements: Any member of DATES: This system of records 7700 Arlington Boulevard, Suite 5101, the public wishing to provide comments modification is effective upon Falls Church, Virginia 22042. Website: to the DHB related to its current taskings publication; however, comments on the http://www.health.mil/dhb. The most or mission may do so at any time in Routine Uses will be accepted on or up-to-date changes to the meeting accordance with section 10(a)(3) of the before October 23, 2020. The Routine agenda can be found on the website. Federal Advisory Committee Act, 41 Uses are effective at the close of the SUPPLEMENTARY INFORMATION: This CFR 102–3.105(j) and 102–3.140, and comment period. meeting is being held under the the procedures described in this notice. ADDRESSES: You may submit comments, provisions of the Federal Advisory Written statements may be submitted to identified by docket number and title, Committee Act (FACA) (5 U.S.C., the DHB Designated Federal Officer by any of the following methods: Appendix), the Government in the (DFO), Captain Gorman, at * Federal Rulemaking Portal: https:// Sunshine Act (5 U.S.C. 552b), and 41 [email protected]. www.regulations.gov. CFR 102–3.140 and 102–3.150. Supporting documentation may also be Follow the instructions for submitting Availability of Materials for the included, to establish the appropriate comments. Meeting: Additional information, historical context and to provide any * Mail: DoD cannot receive written including the agenda, is available at the necessary background information. If comments at this time due to the DHB website, http://www.health.mil/ the written statement is not received at COVID–19 pandemic. Comments should dhb. A copy of the agenda or any least five (5) business days prior to the be sent electronically to the docket updates to the agenda for the November meeting, the DFO may choose to listed above. 5, 2020 meeting will be available on the postpone consideration of the statement Instructions: All submissions received DHB website. Any other materials until the next open meeting. The DFO must include the agency name and presented in the meeting may be will review all timely submissions with docket number for this Federal Register obtained at the meeting. the DHB President and ensure they are document. The general policy for Purpose of the Meeting: The DHB provided to members of the DHB before comments and other submissions from provides independent advice and the meeting that is subject to this notice. members of the public is to make these recommendations to maximize the After reviewing the written comments, submissions available for public safety and quality of, as well as access the President and the DFO may choose viewing on the internet at https:// to, health care for DoD health care to invite the submitter to orally present www.regulations.gov as they are beneficiaries. The purpose of the their issue during an open portion of received without change, including any meeting is to provide progress updates this meeting or at a future meeting. personal identifiers or contact on specific taskings before the DHB. In Dated: September 18, 2020. information. addition, the DHB will receive an information briefing on current issues Aaron T. Siegel, FOR FURTHER INFORMATION CONTACT: Ms. related to military medicine. Alternate OSD Federal Register, Liaison Lyn Kirby, Defense Privacy, Civil Agenda: The DHB anticipates Officer, Department of Defense. Liberties, and Transparency Division, receiving decision briefings on the [FR Doc. 2020–21024 Filed 9–22–20; 8:45 am] Directorate for Oversight and Active Duty Women’s Health Care BILLING CODE 5001–06–P Compliance, Department of Defense, Services and on the Modernization of 4800 Mark Center Drive, Mailbox #24, the TRICARE Benefit as well as two Suite 08D09, Alexandria, VA 22350– briefings on direct-to-consumer genetic DEPARTMENT OF DEFENSE 1700; [email protected]; (703) 571–0070. testing, with one of those being an Office of the Secretary introduction to the new DHB tasking. SUPPLEMENTARY INFORMATION: The ESGR, Any changes to the agenda can be found [Docket ID: DoD–2020–OS–0082] a component of the Defense Personnel at the link provided in this notice. and Family Support Center, was Meeting Accessibility: Pursuant to 5 Privacy Act of 1974; System of established in 1972 to promote U.S.C. 552b and 41 CFR 102–3.140 Records cooperation and understanding between through 102–3.165, this meeting is open AGENCY: Office of the Secretary of Reserve Component Service members to the public from 11:00 a.m. to 5:30 Defense (OSD), Department of Defense and their civilian employers and to p.m. on November 5, 2020. The meeting (DoD). assist in the resolution of conflicts will be held by videoconference/ ACTION: Notice of a modified system of arising from an employee’s military teleconference. The number of records. commitment. ESGR is supported by a participants is limited and is on a first- network of more than 4,900 volunteers come basis. All members of the public SUMMARY: The OSD is modifying the in 54 committees located across all 50 who wish to participate must register by system of records titled, ‘‘Inquiry and states, the District of Columbia, Guam-

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Commonwealth of the Northern Mariana SYSTEM MANAGER(S): phone, email and address; name, email Islands, Puerto Rico, and the U.S. Virgin Executive Director, Employer Support and state committee/ESGR affiliation of Islands. Volunteers, hailing from small of the Guard and Reserve, Suite 05E22, ESGR employee, contractor, or business and industry, government, 4800 Mark Center Drive, Alexandria, VA volunteer who handles an inquiry or education, and prior military service 22350–1200; email: osd.USERRA@ mediation case; and case notes. bring a vast wealth of experience to mail.mil. assist in serving employers, service RECORD SOURCE CATEGORIES: members, and their families. Together AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Individual Members of the National with Headquarters, ESGR staff and a 38 U.S.C. Ch. 43, Employment and Guard, Reserves, and National Disaster small cadre of support staff for each Reemployment Rights of Members of the Medical System (NDMS) who submit State Committee, volunteers work to Uniformed Services; 5 U.S.C. 574, inquiries or request mediation, and the promote and enhance employer support Confidentiality; 5 U.S.C. Part I, Chapter Member Management System. 5, Subchapter IV, Alternative Means of for military service in the Guard and ROUTINE USES OF RECORDS MAINTAINED IN THE Reserve. Dispute Resolution in the SYSTEM, INCLUDING CATEGORIES OF USERS AND The following sections of this system Administrative Process; 42 U.S.C. PURPOSES OF SUCH USES: of records are being updated in order to 300hh–11, National Disaster Medical In addition to those disclosures reflect organizational and administrative System, ((d)(3) Employment and generally permitted under 5 U.S.C. changes: System Name and Number; reemployment rights); 20 CFR 1002, 552a(b) of the Privacy Act of 1974, as Security Classification; System Regulations Under the Uniformed amended, the records contained herein Location, System Manager(s); Authority Services Employment and may be disclosed outside the DoD as a for Maintenance of the System; Reemployment Rights Act of 1994; 5 routine use pursuant to 5 U.S.C. Purpose(s) of the System; Categories of CFR 353, Restoration to Duty from 552a(b)(3) as follows: Individuals Covered by the System; Uniformed Service or Compensable a. To contractors, grantees, experts, Categories of Records in the System; Injury; DoD Instruction 1205.22, consultants, students, and others Record Source Categories; Policies and Employer Support of the Guard and performing or working on a contract, Practices for Storage of Records; Routine Reserve; and DoD Instruction 1205.12, service, grant, cooperative agreement, or Uses of Records Maintained in the Civilian Employment and other assignment for the DoD when System, Including Categories of Users Reemployment Rights for Service necessary to accomplish an agency and Purposes of Such Uses; Policies and Members, Former Service Members and function related to this system of Practices for Retrieval of Records; Applicants of the Uniformed Services. records. Policies and Practices for Retention and PURPOSE(S) OF THE SYSTEM: b. To Department of Labor for Disposal of Records; Contesting Record Congressionally-mandated USERRA Procedures; Administrative, Technical, To record information related to the mediation of disputes and inquiry reporting (38 U.S.C. Employment and and Physical Safeguards; Record Access Reemployment Rights of Members of the Procedures, and Notification responses related to the Uniformed Services Employment and Uniformed Services § 4432, Reports) Procedures. with consideration of 5 U.S.C. 574, The DoD notices for systems of Reemployment Rights Act (USERRA); to track case assignments and mediation Confidentiality requirements. records subject to the Privacy Act of c. To the appropriate Federal, State, 1974, as amended, have been published results of potential conflicts between employers and the National Guard, local, territorial, tribal, foreign, or in the Federal Register and are available international law enforcement authority from the address in FOR FURTHER Reserves, or National Disaster Medical Service (NDMS) members in their or other appropriate entity where a INFORMATION CONTACT or at the Defense record, either alone or in conjunction Privacy, Civil Liberties, and employ; and to report statistics related to the Ombudsman Program in aggregate with other information, indicates a Transparency Division website at violation or potential violation of law, https://dpcld.defense.gov. and at the state committee level. These records are also used as a management whether criminal, civil, or regulatory in In accordance with 5 U.S.C. 552a(r) tool for statistical analysis, tracking, nature. and Office of Management and Budget d. To any component of the reporting, evaluating program (OMB) Circular No. A–108, the DoD has Department of Justice for the purpose of effectiveness and conducting research. provided a report of this system of representing the DoD, or its records to the OMB and to Congress. CATEGORIES OF INDIVIDUALS COVERED BY THE components, officers, employees, or Dated: September 16, 2020. SYSTEM: members in pending or potential Aaron T. Siegel, Members of the National Guard, litigation to which the record is Alternate OSD Federal Register Liaison Reserves, and NDMS submitting pertinent. Officer, Department of Defense. inquiries or requesting mediation; e. In an appropriate proceeding before Employers (personnel) of the Guard and a court, grand jury, or administrative or SYSTEM NAME AND NUMBER: Reserve (ESGR) personnel; civilian adjudicative body or official, when the Employer Support of the Guard and employers; contractors and volunteers DoD or other Agency representing the Reserve Ombudsman Inquiry and Case handling inquiries and cases; and DoD determines the records are relevant Management System (ICMS), DHRA 16. individuals submitting inquiries. and necessary to the proceeding; or in an appropriate proceeding before an SECURITY CLASSIFICATION: CATEGORIES OF RECORDS IN THE SYSTEM: administrative or adjudicative body Unclassified. Individual’s full name, home address, when the adjudicator determines the home or work phone number, home or records to be relevant to the proceeding. SYSTEM LOCATION: work email address; current Uniformed f. To the National Archives and Defense Information Systems Agency Service member pay grade; ESGR case Records Administration for the purpose (DISA), Computing Directorate number; type of USERRA issue; of records management inspections Mechanicsburg, 5450 Carlisle Pike, employer name, employer type, conducted under the authority of 44 Mechanicsburg, PA 17050–2411. employer’s contact name, contact U.S.C. 2904 and 2906.

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g. To a Member of Congress or staff methods to ensure only authorized If executed within the United States, acting upon the Member’s behalf when personnel access information, its territories, possessions, or the Member or staff requests the encryption of backups containing commonwealths: ‘‘I declare (or certify, information on behalf of, and at the sensitive data, backups secured off-site, verify, or state) under penalty of perjury request of, the individual who is the and use of visitor registers. that the foregoing is true and correct. subject of the record. Executed on (date). (Signature).’’ RECORD ACCESS PROCEDURES: h. To appropriate agencies, entities, and persons when (1) the DoD suspects Individuals seeking access to records EXEMPTIONS PROMULGATED FOR THE SYSTEM: or confirms a breach of the system of about themselves contained in this None. records; (2) the DoD determines as a system should address inquiries to the HISTORY: result of the suspected or confirmed Office of the Secretary of Defense/Joint breach there is a risk of harm to Staff, Freedom of Information Act April 14, 2006, 71 FR 19486; individuals, the DoD (including its Requester Service Center, Office of November 14, 2007, 72 FR 64058; information systems, programs, and Freedom of Information, 1155 Defense October 23, 2015, 80 FR 64401. operations), the Federal Government, or Pentagon, Washington, DC 20301–1155. [FR Doc. 2020–21013 Filed 9–22–20; 8:45 am] Signed, written requests should include national security; and (3) the disclosure BILLING CODE 5001–06–P made to such agencies, entities, and the individual’s full name and personal persons is reasonably necessary to assist contact information (address, phone in connection with the DoD’s efforts to number, and email), and the name and DEPARTMENT OF DEFENSE number of this system of records notice respond to the suspected or confirmed (SORN). In addition, the requester must breach or to prevent, minimize, or Office of the Secretary provide either a notarized statement or remedy such harm. i. To another Federal agency or an unsworn declaration made in [Docket ID: DoD–2020–OS–0080] accordance with 28 U.S.C. 1746, in the Federal entity, when the DoD Privacy Act of 1974; System of determines information from this following format: If executed outside the United States, Records system of records is reasonably its territories, possessions, or necessary to assist the recipient agency AGENCY: Defense Human Resources commonwealths: ‘‘I declare (or certify, or entity in (1) responding to a verify, or state) under penalty of perjury Activity (DHRA), Department of Defense suspected or confirmed breach or (2) under the laws of the United States of (DoD). preventing, minimizing, or remedying America that the foregoing is true and ACTION: Notice of a modified system of the risk of harm to individuals, the correct. Executed on (date). records. recipient agency or entity (including its (Signature).’’ information systems, programs and If executed within the United States, SUMMARY: The Office of the Secretary of operations), the Federal Government, or its territories, possessions, or Defense (OSD) is modifying the system national security, resulting from a commonwealths: ‘‘I declare (or certify, of records titled, ‘‘Commercial Travel suspected or confirmed breach. verify, or state) under penalty of perjury Information Management System,’’ that the foregoing is true and correct. DHRA 14 DoD. The Commercial Travel POLICIES AND PRACTICES FOR STORAGE OF Information Management System RECORDS: Executed on (date). (Signature).’’ (CTIMS) houses the CTIMS data Records are maintained in electronic CONTESTING RECORD PROCEDURES: repository and provides web-based storage media. The DoD rules for accessing records, travel information to the DoD travel POLICIES AND PRACTICES FOR RETRIEVAL OF contesting contents, and appealing community, including commercial RECORDS: initial agency determinations are vendors. It offers tools to submit help Records are retrieved by individual’s contained in 32 CFR part 310, or may desk tickets, create reports, complete full name and/or case number. be obtained from the system manager. schedule training, plan trips, and complete other travel related functions, NOTIFICATION PROCEDURES: POLICIES AND PRACTICES FOR RETENTION AND as well as provides a survey tool that DISPOSAL OF RECORDS: Individuals seeking to determine supports the assessment of Defense Temporary. Destroy 7 years after case whether information about themselves Travel programs and the Defense Travel is closed. is contained in this system of records Management Office (DTMO) Workforce should address written inquiries to the Assessment. ADMINISTRATIVE, TECHNICAL, AND PHYSICAL Executive Director, Headquarters, SAFEGUARDS: Employer Support of the Guard and DATES: This system of records Physical controls include Reserve, 4800 Mark Center Drive, modification is effective upon combination locks, cipher locks, key Alexandria, VA 22350–1200. Signed, publication; however, comments on the cards, security guards, identification written requests should contain the Routine Uses will be accepted on or badges, closed circuit televisions, and individual’s full name and personal before October 23, 2020. The Routine controlled screenings. Technical contact information (address, phone Uses are effective at the close of the controls include encryption of data at number, and email). In addition, the comment period. rest, encryption of data in transit, user requester must provide either a ADDRESSES: You may submit comments, identification and password, intrusion notarized statement or an unsworn identified by docket number and title, detection system, Common Access Card, declaration made in accordance with 28 by any of the following methods: firewall, virtual private network, role- U.S.C. 1746, in the following format: * Federal Rulemaking Portal: https:// based access controls, least privilege If executed outside the United States: www.regulations.gov. access, DoD public key infrastructure ‘‘I declare (or certify, verify, or state) Follow the instructions for submitting certificates, and two-factor under penalty of perjury under the laws comments. authentication. Administrative controls of the United States of America that the * Mail: DoD cannot receive written include periodic security audits, regular foregoing is true and correct. Executed comments at this time due to the monitoring of users’ security practices, on (date). (Signature).’’ COVID–19 pandemic. Comments should

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be sent electronically to the docket Transparency Division website at fraud and abuse; conduct surveys for the listed above. https://dpcld.defense.gov. evaluation of program effectiveness, Instructions: All submissions received In accordance with 5 U.S.C. 552a(r) calculate travel and housing allowances, must include the agency name and and Office of Management and Budget provide insight into the gap between docket number for this Federal Register (OMB) Circular No. A–108, the DoD has product/service delivery and customer document. The general policy for provided a report of this system of expectations, assist in understanding comments and other submissions from records to the OMB and to Congress. what drives customer satisfaction; members of the public is to make these Dated: September 16, 2020. respond to authorized internal and submissions available for public Aaron T. Siegel, external requests for data relating to DoD official travel and travel related viewing on the internet at https:// Alternate OSD Federal Register Liaison www.regulations.gov as they are Officer, Department of Defense. services, including premium class received without change, including any travel, and to provide website registered personal identifiers or contact SYSTEM NAME AND NUMBER: guests an online customer support site information. Commercial Travel Information for submitting inquiries regarding Management System, DHRA 14 DoD. commercial travel within the DoD, FOR FURTHER INFORMATION CONTACT: Ms. including assistance with the DTS. Lyn Kirby, Defense Privacy, Civil SECURITY CLASSIFICATION: Liberties, and Transparency Division, Unclassified. CATEGORIES OF INDIVIDUALS COVERED BY THE Directorate for Oversight and SYSTEM: Compliance, Department of Defense, SYSTEM LOCATION: DoD civilian personnel; active, 4800 Mark Center Drive, Mailbox #24, Network Enterprise Center, 1422 former, and retired military members; Suite 08D09, Alexandria, VA 22350– Sultan Road, Fort Detrick, MD 21702– Reserve and National Guard personnel; 1700; [email protected]; (703) 9200. military academy nominees, applicants, 571–0070. and cadets; dependents of DoD sponsors SYSTEM MANAGER(S): SUPPLEMENTARY INFORMATION: The accompanying the DoD sponsor on CTIMS serves as a repository of DoD Deputy Director, Defense Travel travel; and all other individuals in travel records consisting of travel Management Office, 4800 Mark Center receipt of DoD travel orders; registered booked within the Defense Travel Drive, Alexandria, VA 22350–9000, website guests submitting inquiries System (DTS) in order to perform key email: dodhra.mc-alex.dtmo.mbx.mib- regarding DoD commercial travel. DTMO mission functions including [email protected]. CATEGORIES OF RECORDS IN THE SYSTEM: responding to federal reporting AUTHORITY FOR MAINTENANCE OF THE SYSTEM: requirements and conducting oversight For DoD travelers, information from 5 U.S.C. Ch. 57, Travel, operations. The OSD proposes to modify commercial travel booking systems and Transportation, and Subsistence; 10 this system of records to reflect the the DTS: Name, Social Security Number U.S.C. 135, Under Secretary of Defense revision of the Joint Federal Travel (SSN), DoD ID number, individual (Comptroller); 10 U.S.C. 136, Under Regulation and its codification in 41 taxpayer identification number (ITIN), Secretary of Defense for Personnel and CFR 300–304. Additional changes were passport information, gender, date of Readiness; 37 U.S.C. 463, Programs of made to reflect evolving mission needs birth, email address; home and/or Compliance, Electronic Processing of and updates to the system location and business address, and cellular phone Travel Claims; 41 CFR. 300–304, security. In all, this modification reflects numbers; emergency contact Federal Travel Regulation System; DoD changes to the system location, system information to include spouses name Directive (DoDD) 4500.09, manager(s), security classification, and number; Transportation and Traffic Management; authority for maintenance of the system, DoDD 5100.87, Department of Defense Employment information: purpose of the system, categories of Human Resources Activity (DoDHRA); Employment status, organizational individuals covered by the system, DoD Instruction (DoDI) 5154.31, Vols 1– information, duty station, rank, military categories of records in the system, 6 Commercial Travel Management; DoDI status information, travel preferences, record source categories, routine uses of 1100.13, DoD Survey; DoD Financial frequent flyer information; records maintained in the system, Management Regulation 7000.14–R, Vol. Financial information to include including categories of users and 9, Travel Policy; DoD 4500.9–R, Defense government and/or personal charge card purposes of such users, policies and Transportation Regulation (DTR), Parts account numbers and expiration practices for retrieval of records, I–V; The Joint Federal Travel information, government travel charge policies and practices for retention and Regulation, Uniformed Service Members card transactions, personal checking disposal of records, contesting record and DoD Civilian Employees; and E.O. and/or savings account numbers, procedures, administrative, physical, 9397 (SSN), as amended government accounting code/budget and technical safeguards, record access information, specific trip information to procedures, and notification procedures. PURPOSE(S) OF THE SYSTEM: include travel itineraries (includes dates If these updates were not made, the To establish a repository of DoD travel of travel) and reservations, trip record system would not be able to provide the records consisting of travel booked number, trip cost estimates, travel full set of services required to support within the Defense Travel System (DTS) vouchers, travel-related receipts, travel the mission-essential Defense Travel as well as through commercial travel document status information, travel Program. vendors in order to satisfy reporting budget information, commitment of The DoD notices for systems of requirements; identify and notify travel funds, records of actual payment records subject to the Privacy Act of travelers in potential distress due to of travel funds and supporting 1974, as amended, have been published natural or man-made disasters; assist in documentation. in the Federal Register and are available the planning, budgeting, and allocation For dependents who are from the address in FOR FURTHER of resources for future DoD travel; accompanying the DoD sponsor on INFORMATION CONTACT or at the Defense conduct oversight operations; analyze travel: Name, date of birth, and passport Privacy, Civil Liberties, and travel, budgetary, or other trends; detect information.

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For registered website guests: Name, information on behalf of, and at the Access Cards, and DoD Public Key phone number, email address; if request of, the individual who is the Infrastructure, in addition to role-based affiliated with DoD, duty station, rank, subject of the record. access controls are used to control DoD ID number; if desiring travel alerts, h. To appropriate agencies, entities, access to the system data. Procedures cellular phone number and cellular and persons when (1) the DoD suspects are in place to deter and detect browsing phone provider; if requiring assistance or confirms a breach of the system of and unauthorized access including with the DTS, last four of the SSN. records; (2) the DoD determines as a periodic security audits and monitoring result of the suspected or confirmed of users’ security practices. Backups are RECORD SOURCE CATEGORIES: breach there is a risk of harm to stored on encrypted media and secured The individual, DTS, General Services individuals, the DoD (including its off-site. Periodic security audits and Administration data repository, and information systems, programs, and regular monitoring of user’s security commercial travel booking systems. operations), the Federal Government, or practices also occur. Electronic records ROUTINE USES OF RECORDS MAINTAINED IN THE national security; and (3) the disclosure are maintained in a controlled facility. SYSTEM, INCLUDING CATEGORIES OF USERS AND made to such agencies, entities, and Physical entry is restricted by the use of PURPOSES OF SUCH USES: persons is reasonably necessary to assist locks, guards, and is accessible only to In addition to those disclosures in connection with the DoD’s efforts to authorized personnel. Access to records generally permitted under 5 U.S.C. respond to the suspected or confirmed is limited to person(s) servicing the 552a(b) of the Privacy Act of 1974, as breach or to prevent, minimize, or record in performance of their official amended, the records contained herein remedy such harm. duties and who are properly screened may be disclosed outside the DoD as a i. To another Federal agency or and cleared for need-to-know. Access to routine use pursuant to 5 U.S.C. Federal entity, when the DoD computerized data is restricted by the 552a(b)(3) as follows: determines information from this use of Common Access Cards (CAC) and a. To contractors, grantees, experts, system of records is reasonably data encryption. necessary to assist the recipient agency consultants, students, and others RECORD ACCESS PROCEDURES: performing or working on a contract, or entity in (1) responding to a suspected or confirmed breach or (2) Individuals seeking access to records service, grant, cooperative agreement, or about themselves contained in this other assignment for the federal preventing, minimizing, or remedying the risk of harm to individuals, the system should address written inquiries government when necessary to to the Office of the Secretary of Defense/ accomplish an agency function related recipient agency or entity (including its information systems, programs and Joint Staff, Freedom of Information Act to this system of records. Requester Service Center, Office of b. To Federal and private entities operations), the Federal Government, or Freedom of Information, 1155 Defense providing travel services for purposes of national security, resulting from a Pentagon, Washington, DC 20301–1155. arranging transportation at Government suspected or confirmed breach. Signed, written requests should contain expense for official business. POLICIES AND PRACTICES FOR STORAGE OF the individual’s full name, personal c. To the appropriate Federal, State, RECORDS : contact information (home address, local, territorial, tribal, foreign, or Records are maintained in electronic phone number, email), and the number international law enforcement authority storage media. and name of this system of records or other appropriate entity where a notice. In addition, the requester must record, either alone or in conjunction POLICIES AND PRACTICES FOR RETRIEVAL OF provide either a notarized statement or with other information, indicates a RECORDS: a declaration made in accordance with violation or potential violation of law, Name, home/business address, email 28 U.S.C. 1746, using the following whether criminal, civil, or regulatory in address, passport number, date of birth, format: nature. SSN, and/or DoD ID number. If executed outside the United States: d. To any component of the POLICIES AND PRACTICES FOR RETENTION AND ‘‘I declare (or certify, verify, or state) Department of Justice for the purpose of DISPOSAL OF RECORDS: under penalty of perjury under the laws representing the DoD, or its Destroy 6 years after final payment or of the United States of America that the components, officers, employees, or cancellation. foregoing is true and correct. Executed members in pending or potential on (date). (Signature).’’ litigation to which the record is ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS: If executed within the United States, pertinent. its territories, possessions, or e. In an appropriate proceeding before Records are stored on secure military commonwealths: ‘‘I declare (or certify, a court, grand jury, or administrative or installations. Physical controls include verify, or state) under penalty of perjury adjudicative body or official, when the use of visitor registers and identification that the foregoing is true and correct. DoD or other Agency representing the badges, electronic key card access, safes, Executed on (date). (Signature).’’ DoD determines the records are relevant security guards, and closed-circuit and necessary to the proceeding; or in television monitoring. Technical CONTESTING RECORD PROCEDURES: an appropriate proceeding before an controls including intrusion detection The DoD rules for accessing records, administrative or adjudicative body systems, secure socket layer encryption, contesting contents and appealing when the adjudicator determines the firewalls, intrusion detection systems, initial agency determinations are records to be relevant to the proceeding. external certificate authority certificates, published in 32 CFR part 310, or may f. To the National Archives and least privilege access, and virtual be obtained from the system manager. Records Administration for the purpose private networks protect the data in of records management inspections transit and at rest. Physical and NOTIFICATION PROCEDURES: conducted under the authority of 44 electronic access is limited to Individuals seeking to determine U.S.C. 2904 and 2906. individuals who are properly screened whether information about themselves g. To a Member of Congress or staff and cleared on a need-to-know basis in is contained in this system should acting upon the Member’s behalf when the performance of their official duties. address written inquiries to the Deputy the Member or staff requests the Usernames and passwords, Common Director, Defense Travel Management

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Office, 4800 Mark Center Drive, facilitates CAP business processes such the System, Including Categories of Alexandria, VA 22350–9000. Signed, as customer communications and Users and Purposes of Such Uses; written requests should contain full workflow tracking. Policies and Practices for Storage of name, email address, telephone number, DATES: This system of records Records; Policies and Practices for and SSN (or passport number). Website modification is effective upon Retrieval of Records; Policies and registered guests should provide their publication; however, comments on the Practices for Retention and Disposal of full name and email address. In Routine Uses will be accepted on or Records; Contesting Record Procedures; addition, the requester must provide before October 23, 2020. The Routine Administrative, Technical, and Physical either a notarized statement or an Uses are effective at the close of the Safeguards; Record Access Procedures, unsworn declaration made in comment period. and Notification Procedures. accordance with 28 U.S.C. 1746, in the ADDRESSES: You may submit comments, The DoD notices for systems of following format: identified by docket number and title, records subject to the Privacy Act of If executed outside the United States: by any of the following methods: 1974, as amended, have been published ‘‘I declare (or certify, verify, or state) * Federal Rulemaking Portal: https:// in the Federal Register and are available under penalty of perjury under the laws www.regulations.gov. from the address in FOR FURTHER of the United States of America that the Follow the instructions for submitting INFORMATION CONTACT or at the Defense foregoing is true and correct. Executed comments. Privacy, Civil Liberties, and on (date). (Signature).’’ * Mail: DoD cannot receive written Transparency Division website at If executed within the United States, comments at this time due to the https://dpcld.defense.gov. its territories, possessions, or COVID–19 pandemic. Comments should In accordance with 5 U.S.C. 552a(r) commonwealths: ‘‘I declare (or certify, be sent electronically to the docket and Office of Management and Budget verify, or state) under penalty of perjury listed above. (OMB) Circular No. A–108, the DoD has that the foregoing is true and correct. Instructions: All submissions received provided a report of this system of Executed on (date). (Signature).’’ must include the agency name and records to the OMB and to Congress. docket number for this Federal Register Dated: September 16, 2020. EXEMPTIONS PROMULGATED FOR THE SYSTEM: document. The general policy for None. comments and other submissions from Aaron T. Siegel, members of the public is to make these Alternate OSD Federal Register Liaison HISTORY: submissions available for public Officer, Department of Defense. August 22, 2014, 79 FR 49764. viewing on the internet at https:// SYSTEM NAME AND NUMBER: [FR Doc. 2020–21014 Filed 9–22–20; 8:45 am] www.regulations.gov as they are Computer/Electronic BILLING CODE 5001–06–P received without change, including any Accommodations Program, DHRA 15. personal identifiers or contact information. SECURITY CLASSIFICATION: DEPARTMENT OF DEFENSE FOR FURTHER INFORMATION CONTACT: Ms. Unclassified. Lyn Kirby, Defense Privacy, Civil Office of the Secretary SYSTEM LOCATION: Liberties, and Transparency Division, [Docket ID: DoD–2020–OS–0081] Directorate for Oversight and Computer/Electronic Compliance, Department of Defense, Accommodations Program (CAP), Privacy Act of 1974; System of 4800 Mark Center Drive, Mailbox #24, Defense Manpower Data Center, 400 Records Suite 08D09, Alexandria, VA 22350– Gigling Road, Seaside, CA 93955–6771. AGENCY: Office of the Secretary of 1700; [email protected]; (703) SYSTEM MANAGER(S): Defense (OSD), Department of Defense 571–0070. Deputy Director, Computer/Electronic (DoD). SUPPLEMENTARY INFORMATION: The CAP Accommodations Program, 4800 Mark ACTION: Notice of a modified system of ensures reasonable accommodation Center Drive, Suite 05E22, Alexandria, records. information is fully accessible to VA 22350–3100, [email protected]. authorized CAP personnel for SUMMARY: The OSD is modifying a processing reasonable accommodation AUTHORITY FOR MAINTENANCE OF THE SYSTEM: system of records titled, ‘‘Computer/ requests for individuals with verified 10 U.S.C. 1582, Assistive Technology, Electronic Accommodations Program qualifying disabilities. The CAP works Assistive Technology Devices, and (CAP),’’ DHRA 15. The CAP is a hand-in-hand with Disability Program Assistive Technology Services; 29 centrally funded program providing Managers, Reasonable Accommodations U.S.C. 794d, Electronic and Information assistive (computer/electronic) Coordinators, supervisors, employees, Technology; 42 U.S.C. Ch.126, Equal technology solutions to individuals with service members, and any other Opportunity For Individuals With hearing, vision, dexterity, cognitive, applicable agency personnel in Disabilities; and Department of Defense and/or communications impairments in providing accommodations to allow (DoD) Instruction 6025.22, Assistive the form of an accessible work individuals with disabilities to perform Technology (AT) for Wounded, Ill, and environment. The records maintained in essential job functions. Injured Service Members. the system of records provide the The following sections of this system necessary means to conduct mission of records are being updated in order to PURPOSE(S) OF THE SYSTEM: essential activities, process requests for reflect organizational and administrative To administer a centrally funded accommodations, track activity among changes: Security Classification; System program to provide assistive (computer/ different agencies, and deliver outreach Manager(s); Authority for Maintenance electronic) technology solutions to activities related to assistive technology of the System; Purpose(s) of the System; individuals with hearing, vision, and industry best practices for Categories of Individuals Covered by the dexterity, cognitive, and/or providing reasonable accommodations. System; Categories of Records in the communications impairments in the The Portal provides management and System; Record Source Categories; form of an accessible work environment. reporting capabilities, as well as Routine Uses of Records Maintained in The system documents and tracks

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provided computer/electronic c. To commercial vendors for operations), the Federal Government, or accommodations and performs purposes of providing information to national security, resulting from a operational duties to accomplish permit the vendor to identify and suspected or confirmed breach. mission objectives. It is also used as a provide assistive technology solutions POLICIES AND PRACTICES FOR STORAGE OF management tool for statistical analysis, for individuals with disabilities. RECORDS: tracking, reporting, evaluating program d. To the appropriate Federal, State, effectiveness and conducting research. local, territorial, tribal, foreign, or Paper and electronic storage media. international law enforcement authority POLICIES AND PRACTICES FOR RETRIEVAL OF CATEGORIES OF INDIVIDUALS COVERED BY THE or other appropriate entity where a RECORDS: SYSTEM: record, either alone or in conjunction Name, agency/organization, CAP Federal civilian employees in the DoD with other information, indicates a and CAP partnering agencies, and request number, work address, and violation or potential violation of law, work telephone number. employees of other federal entities with whether criminal, civil, or regulatory in disabilities, and wounded, ill and nature. POLICIES AND PRACTICES FOR RETENTION AND injured Service Members on Active e. To any component of the DISPOSAL OF RECORDS: Duty that can be accommodated with Department of Justice for the purpose of General files. Destroy three years after assistive technology solutions. representing the DoD, or its end of fiscal year in which a record is CATEGORIES OF RECORDS IN THE SYSTEM: components, officers, employees, or superseded or when no longer needed members in pending or potential for reference, whichever is later. Name(s), position/title, mailing/ litigation to which the record is Individual employee files that are home/work address, work email pertinent. created, received, and maintained by address, disability information, official f. In an appropriate proceeding before EEO reasonable accommodation or duty telephone number, worker a court, grand jury, or administrative or diversity/disability program or compensation claims number, CAP adjudicative body or official, when the employee relations coordinators, request number, employment DoD or other Agency representing the immediate supervisors, CAP information, agency/organization, DoD determines the records are relevant administrator, or HR specialists verification of disability, prior assistive and necessary to the proceeding; or in containing records of requests for technology solutions provided to the an appropriate proceeding before an reasonable accommodation and/or individual, CAP order number, and administrative or adjudicative body assistive technology devices and history of accommodations being when the adjudicator determines the services through the agency or CAP that sought. Product and vendor contact records to be relevant to the proceeding. have been requested for or by an information including vendor name and g. To the National Archives and employee: Destroy three years after end address, vendor alias, phone number, Records Administration for the purpose of fiscal year of employee separation fax number, email address, web address, of records management inspections from the agency or conclusion of all order submission preference, orders, conducted under the authority of 44 appeals, whichever is later. invoices, declination, and cancellation U.S.C. 2904 and 2906. Records created, received, and data for the product and identification h. To a Member of Congress or staff maintained by EEO reasonable of vendors, vendor products used, and acting upon the Member’s behalf when accommodation or diversity/disability product costs. the Member or staff requests the program or employee relation RECORD SOURCE CATEGORIES: information on behalf of, and at the coordinators, while advising on, request of, the individual who is the Individual, the DoD Workforce implementing or appealing requests for subject of the record. Recruitment Program database, or from an individual employee for i. To appropriate agencies, entities, reasonable accommodation: Destroy partnering agencies/organizations, and and persons when (1) the DoD suspects vendors. three years after end of fiscal year in or confirms a breach of the system of which accommodation is decided or all ROUTINE USES OF RECORDS MAINTAINED IN THE records; (2) the DoD determines as a appeals are concluded, whichever is SYSTEM, INCLUDING CATEGORIES OF USERS AND result of the suspected or confirmed later. PURPOSES OF SUCH USES: breach there is a risk of harm to Records and data created, received, In addition to those disclosures individuals, the DoD (including its and maintained for purposes of tracking generally permitted under 5 U.S.C. information systems, programs, and agency compliance with Executive 552a(b) of the Privacy Act of 1974, as operations), the Federal Government, or Order 13164 and Equal Employment amended, these records contained national security; and (3) the disclosure Opportunity Commission (EEOC) herein may specifically be disclosed made to such agencies, entities, and guidance: Delete/destroy three years outside the DoD as a routine use persons is reasonably necessary to assist after end of fiscal year in which pursuant to 5 U.S.C. 552a(b)(3) as in connection with the DoD’s efforts to compliance report is filed or when no follows: respond to the suspected or confirmed longer needed for reference. a. To contractors, grantees, experts, breach or to prevent, minimize, or consultants, students, and others remedy such harm. ADMINISTRATIVE, TECHNICAL, AND PHYSICAL performing or working on a contract, j. To another Federal agency or SAFEGUARDS: service, grant, cooperative agreement, or Federal entity, when the DoD Multifactor log-in authentication other assignment for the federal determines information from this including CAC authentication and government when necessary to system of records is reasonably password. Access controls enforce need- accomplish an agency function related necessary to assist the recipient agency to-know policies so only authorized to this system of records. or entity in (1) responding to a users have access to PII. Additionally, b. To Federal agencies/entities suspected or confirmed breach or (2) security audit and accountability participating in the CAP for purposes of preventing, minimizing, or remedying policies and procedures directly support providing information as necessary to the risk of harm to individuals, the privacy and accountability procedures. permit the agency to carry out its recipient agency or entity (including its Network encryption protects data responsibilities under the program. information systems, programs and transmitted over the network while disk

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encryption secures the disks storing under penalty of perjury under the laws * Mail: DoD cannot receive written data. Key management services of the United States of America that the comments at this time due to the safeguards encryption keys. Sensitive foregoing is true and correct. Executed COVID–19 pandemic. Comments should data is identified and masked as on (date). (Signature).’’ be sent electronically to the docket practicable. All individuals granted If executed within the United States, listed above. access to this system of records must its territories, possessions, or Instructions: All submissions received complete requisite training to include commonwealths: ‘‘I declare (or certify, must include the agency name and Information Assurance and Privacy Act verify, or state) under penalty of perjury docket number for this Federal Register training. Sensitive data will be that the foregoing is true and correct. document. The general policy for identified, properly marked with access Executed on (date). (Signature).’’ comments and other submissions from by only those with a need to know, and EXEMPTIONS PROMULGATED FOR THE SYSTEM: members of the public is to make these safeguarded as appropriate. submissions available for public None. RECORD ACCESS PROCEDURES: viewing on the internet at https:// Individuals seeking access to records HISTORY: www.regulations.gov as they are about themselves contained in this August 11, 2011, 76 FR 49753; received without change, including any system should address written inquiries October 20, 2014, 79 FR 62602. personal identifiers or contact information. to the Office of the Secretary of Defense/ [FR Doc. 2020–21016 Filed 9–22–20; 8:45 am] Joint Staff, Freedom of Information Act BILLING CODE 5001–06–P FOR FURTHER INFORMATION CONTACT: Ms. Requester Service Center, Office of Lyn Kirby, Defense Privacy, Civil Freedom of Information, 1155 Defense Liberties, and Transparency Division, Pentagon, Washington, DC 20301–1155. DEPARTMENT OF DEFENSE Directorate for Oversight and Signed, written requests should contain Compliance, Department of Defense, Office of the Secretary individual’s full name, agency/ 4800 Mark Center Drive, Mailbox #24, organization, CAP request number, work [Docket ID: DoD–2020–OS–0083] Suite 08D09, Alexandria, VA 22350– address, work telephone number, and 1700; [email protected]; (703) the name and number of this system of Privacy Act of 1974; System of 571–0070. records notice (SORN). In addition, the Records requester must provide either a SUPPLEMENTARY INFORMATION: The MOS notarized statement or an unsworn AGENCY: Office of the Secretary, provides service members and their declaration made in accordance with 28 Department of Defense (DoD). families with access to a wide variety of U.S.C. 1746, in the following format: ACTION: Notice of a modified system of resources and confidential support in If executed outside the United States: records. order to weather the demands of ‘‘I declare (or certify, verify, or state) military life. In an increasingly under penalty of perjury under the laws SUMMARY: The Office of the Secretary of technological and mobile world, the of the United States of America that the Defense (OSD) is modifying the system MOS offers support 24 hours a day, foregoing is true and correct. Executed of records notice (SORN), ‘‘Military telephonically as well as online. on (date). (Signature).’’ OneSource (MOS) Case Management The DoD notices for systems of If executed within the United States, System (CMS),’’ DPR 45 DoD. The records subject to the Privacy Act of its territories, possessions, or Military OneSource is a call center and 1974, as amended, have been published commonwealths: ‘‘I declare (or certify, website providing comprehensive in the Federal Register and are available verify, or state) under penalty of perjury information on available benefits and from the address in FOR FURTHER that the foregoing is true and correct. services to Active Duty Military, INFORMATION CONTACTor at the Defense Executed on (date). (Signature).’’ Reserve and National Guard, eligible Privacy, Civil Liberties, and separated members and their families. CONTESTING RECORD PROCEDURES: Transparency Division website at These benefits and services include https://dpcld.defense.gov. The DoD rules for accessing records, financial counseling, educational In accordance with 5 U.S.C. 552a(r) contesting contents, and for appealing assistance and benefits, relocation and Office of Management and Budget initial agency determinations are planning and preparation, quality of life (OMB) Circular No. A–108, the DoD has contained in 32 CFR part 310, or may programs, and family and community provided a report of this system of be obtained from the system manager. programs. In addition to the formatting records to the OMB and to Congress. NOTIFICATION PROCEDURES: administrative changes, this Dated: September 16, 2020. Individuals seeking to determine modification expands the categories of Aaron T. Siegel, whether information about themselves individuals and records covered by the is contained in this system should system of records. Alternate OSD Federal Register Liaison address written inquiries to the Program DATES: This system of records Officer, Department of Defense. modification is effective upon Manager, Computer/Electronic SYSTEM NAME AND NUMBER: Accommodations Program, 4800 Mark publication; however, comments on the Center Drive, Suite 05E22, Alexandria, Routine Uses will be accepted on or Military OneSource (MOS) Case VA 22350–1200. Signed, written before October 23, 2020. The Routine Management System (CMS), DPR 45 requests should include the individual’s Uses are effective at the close of the DoD. full name and the name and number of comment period. SECURITY CLASSIFICATION: this SORN. In addition, the requester ADDRESSES: You may submit comments, must provide either a notarized identified by docket number and title, Unclassified. statement or an unsworn declaration by any of the following methods: SYSTEM LOCATION: made in accordance with 28 U.S.C. * Federal Rulemaking Portal: https:// 1746, in the following format: www.regulations.gov. DISA DECC Oklahoma City, 8705 If executed outside the United States: Follow the instructions for submitting Industrial Blvd., Building 3900, Tinker ‘‘I declare (or certify, verify, or state) comments. AFB, OK 73145–3336.

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SYSTEM MANAGER(S): groups described above; individuals b. To the appropriate Federal, State, Director, Military Community with a legal responsibility to care for local, territorial, tribal, foreign, or Support Programs, Military Community service member’s children acting for the international law enforcement authority and Family Policy, 4800 Mark Center benefit of the children; survivors of or other appropriate entity where a Drive, Suite 14E08, Alexandria, VA deceased Service members contacting record, either alone or in conjunction 22350–2300, email: osd.pentagon.ousd- Military OneSource seeking with other information, indicates a [email protected]. information, referrals, or non-medical violation or potential violation of law, counseling; service providers accessing whether criminal, civil, or regulatory in AUTHORITY FOR MAINTENANCE OF THE SYSTEM: the LMS. nature. 10 U.S.C. 136, Under Secretary of c. To any component of the Defense for Personnel and Readiness; 10 CATEGORIES OF RECORDS IN THE SYSTEM: Individual’s full name, date of birth, Department of Justice for the purpose of U.S.C. 1781 note, Establishment of representing the DoD, or its Online Resources To Provide gender, marital status, relationship to service member, rank, unit, branch of components, officers, employees, or Information About Benefits and Services members in pending or potential Available to Members of the Armed military service, military status, current address and mailing address, telephone litigation to which the record is Forces and Their Families; Directive- pertinent. type Memorandum (DTM)–17–004, DoD numbers (work/home/cell/DSN) and Civilian Expeditionary Workforce; DoD participant authorization or refusal to d. In an appropriate proceeding before Directive 1322.18, Military Training; allow incoming/outgoing text messages a court, grand jury, or administrative or DoD Instruction (DoDI) 1342.22, between participant and Military adjudicative body or official, when the Military Family Readiness; DoDI OneSource, email address, participant DoD or other Agency representing the 6490.06, Counseling Services for DoD ID and case number (automatically DoD determines the records are relevant Military, Guard and Reserve, Certain generated internal numbers not and necessary to the proceeding; or in Affiliated Personnel, and Their Family provided to the participant), presenting an appropriate proceeding before an Members; and DoDI 1322.26, issue/information requested, handoff administrative or adjudicative body Distributed Learning (DL). type to contractor, handoff notes, if when the adjudicator determines the interpretation is requested and the records to be relevant to the proceeding. PURPOSE(S) OF THE SYSTEM: language, referrals, and feedback from e. To the National Archives and The MOS CMS allows the quality assurance follow-up with Records Administration for the purpose documentation of an individual’s participants. of records management inspections eligibility; identification of the caller’s Online Learning Platform: User conducted under the authority of 44 inquiry or issue to provide a warm account name, course history (attempted U.S.C. 2904 and 2906. dates/times, grades), member type, hand-off, referral and/or requested f. To a Member of Congress or staff agency, installation, unit, and service information; the development towards a acting upon the Member’s behalf when provider affiliation. final solution and referral information. the Member or staff requests the The system also processes training Non-medical counseling information: Psychosocial history, assessment of information on behalf of, and at the registration, enrollment requests, and request of, the individual who is the self-motivated education/training for its personal concerns, provider name, phone number, and location, subject of the record. Learning Management System (LMS). g. To appropriate agencies, entities, Records may be used as a management authorization number, and outcome summary. and persons when (1) the DoD suspects tool for statistical analysis, tracking, or confirms a breach of the system of reporting, and evaluating program RECORD SOURCE CATEGORIES: records; (2) the DoD determines as a effectiveness and conducting research. The individual, Military OneSource result of the suspected or confirmed Information on individuals posing a program officials, Transition Assistance breach there is a risk of harm to threat to themselves or others will be Program (TAP) Data Retrieval Web individuals, the DoD (including its reported to the appropriate authorities Service (TDRWS) and authorized information systems, programs, and in accordance with DoD/Military contractors providing advice and operations), the Federal Government, or Branch of Service and Component support to the individual. national security; and (3) the disclosure regulations and established protocols. made to such agencies, entities, and ROUTINE USES OF RECORDS MAINTAINED IN THE CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM, INCLUDING CATEGORIES OF USERS AND persons is reasonably necessary to assist SYSTEM: PURPOSES OF SUCH USES: in connection with the DoD’s efforts to Active Duty Service members; In addition to those disclosures respond to the suspected or confirmed Reserve and National Guard members; generally permitted under 5 U.S.C. breach or to prevent, minimize, or members of the Coast Guard activated as 552a(b) of the Privacy Act of 1974, as remedy such harm. part of the Department of the Navy amended, these records may specifically h. To another Federal agency or under Title 10 authority; medically be disclosed outside the DoD as a Federal entity, when the DoD discharged Service members routine use pursuant to 5 U.S.C determines information from this participating in one of the Services 552a(b)(3) as follows: system of records is reasonably Wounded Warrior or Seriously Ill and a. To contractors, grantees, experts, necessary to assist the recipient agency Injured Programs; those with honorable, consultants, students, and others or entity in (1) responding to a other than honorable and general (under performing or working on a contract, suspected or confirmed breach or (2) honorable conditions) discharges service, grant, cooperative agreement, preventing, minimizing, or remedying (includes retirees and those on the research studies concerning the risk of harm to individuals, the Temporary Disability Retirement List); effectiveness of non-medical counseling recipient agency or entity (including its Reserved Officer Training Course and interventions or other assignment for information systems, programs and Service Academy Cadets; DoD Civilians the federal government when necessary operations), the Federal Government, or Expeditionary Workforce Personnel; to accomplish an agency function national security, resulting from a immediate family members of the related to this system of records. suspected or confirmed breach.

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POLICIES AND PRACTICES FOR STORAGE OF address, telephone number, email commonwealths: ‘‘I declare (or certify, RECORDS: address, date of birth (YYYYMMDD), verify, or state) under penalty of perjury Electronic storage media. and the name and number of this system that the foregoing is true and correct. of records notice (SORN). In addition, Executed on (date). (Signature).’’ POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS: the requester must provide either a If for legal minor dependent(s): notarized statement or an unsworn ‘‘I declare (or certify, verify, or state) Information is retrieved by the declaration made in accordance with 28 under penalty of perjury under the laws participant’s or service members name, U.S.C. 1746, in the following format: of the United States of America that the date of birth, participant ID, case ID, If executed outside the United States: foregoing is true and correct. I have the DoD ID number, phone number, email ‘‘I declare (or certify, verify, or state) legal responsibility to care for the minor address, or a LMS account username. under penalty of perjury under the laws child/children of a service member.’’ POLICIES AND PRACTICES FOR RETENTION AND of the United States of America that the Print Full Name of Child (First, DISPOSAL OF RECORDS: foregoing is true and correct. Executed Middle, Last) and Date of Birth Master database files: Cut off after 3 on (date). (Signature).’’ (YYYYMMDD), (if multiple children, years of continuous inactivity or If executed within the United States, please submit separate request(s)) for notification of discharge, retirement or its territories, possessions, or each: separation of the service member. commonwealths: ‘‘I declare (or certify, ‘‘Executed on (date). (Signature of Destroy 10 years after cut off. verify, or state) under penalty of perjury Requester (Parent/Legal Guardian 1)).’’ Non-medical counseling records: Cut that the foregoing is true and correct. ‘‘Executed on (date). (Signature of off after 3 years of continuous inactivity Executed on (date). (Signature).’’ Requester (Parent/Legal Guardian 2)).’’ or notification of discharge, retirement If for legal minor dependent: EXEMPTIONS PROMULGATED FOR THE SYSTEM: or separation of the service member. ‘‘I declare (or certify, verify, or state) Destroy 15 years after cut off. under penalty of perjury under the laws None. Training records: Cut off annually of the United States of America that the HISTORY: upon completion of training. Destroy 5 foregoing is true and correct. I have the years after cut off. legal responsibility to care for the minor January 24, 2017, 82 FR 8182, Call center recordings: Cut off after child/children of a service member.’’ February 11, 2015, 80 FR 7579, October referral to non-medical counseling, Print Full Name of Child (First, 15, 2014, 79 FR 61854. employee assistance program support, Middle, Last) and Date of Birth [FR Doc. 2020–21017 Filed 9–22–20; 8:45 am] information and referral. Destroy 90 (YYYYMMDD), (if multiple children, BILLING CODE 5001–06–P days after cut off. please submit separate request(s) for each: ADMINISTRATIVE, TECHNICAL, AND PHYSICAL ‘‘Executed on (date). (Signature of DEPARTMENT OF DEFENSE SAFEGUARDS: Requester (Parent/Legal Guardian 1)).’’ Military OneSource CMS is hosted on ‘‘Executed on (date). (Signature of Office of the Secretary a certified and accredited infrastructure. Requester (Parent/Legal Guardian 2)).’’ Records are maintained in a secure [Docket ID DoD–2020–OS–0079] building in a controlled area accessible CONTESTING RECORD PROCEDURES: only to authorized personnel. Physical The DoD rules for accessing records, Privacy Act of 1974; System of entry is restricted by the use of locks, contesting contents, and appealing Records passwords, and administrative initial agency determinations are AGENCY: Office of the Secretary of procedures, which are changed contained in 32 CFR part 310, or may Defense (OSD), Department of Defense periodically. The system is designed be obtained from the system manager. (DoD). with access controls, comprehensive NOTIFICATION PROCEDURES: ACTION: intrusion detection, and virus Notice of a modified system of protection. Access to personally Individuals seeking to determine if records. information about themselves is identifiable information in this system SUMMARY: The OSD is modifying a contained in this record system should is role-based and restricted to those system of records entitled, ‘‘Defense address inquiries in writing to the requiring the data in the performance of Sexual Assault Advocate Certification appropriate system manager. Signed, their official duties and completing Program (D–SAACP),’’ DHRA 10 DoD. written requests should include the annual information assurance and The system records track Sexual Assault individual’s full name (First, Middle, privacy training. Records are encrypted Response Coordinators (SARC) and Last), all other names ever used, current during transmission to protect session Sexual Assault Prevention and address, telephone number, email information, and while not in use (data Response Victim Advocates (SAPR VAs) address, date of birth (YYYYMMDD), at rest). certifications. System information is and the name and number of this SORN. used to review, process, and report on RECORDS ACCESS PROCEDURES: In addition, the requester must provide the status of SARC and SAPR VA Individuals seeking access to either a notarized statement or an certifications to Congress. information about themselves or their unsworn declaration made in minor legal dependent(s) in this record accordance with 28 U.S.C. 1746, in the DATES: This system of records system should address inquiries in following format: modification is effective upon writing to the Office of the Secretary of If executed outside the United States: publication; however, comments on the Defense/Joint Staff Freedom of ‘‘I declare (or certify, verify, or state) Routine Uses will be accepted on or Information Act Requester Service under penalty of perjury under the laws before October 23, 2020. The Routine Center, 1155 Defense Pentagon, of the United States of America that the Uses are effective at the close of the Washington, DC 20301–1155. Signed, foregoing is true and correct. Executed comment period. written requests should include the on (date). (Signature).’’ ADDRESSES: You may submit comments, individual’s full name (First, Middle, If executed within the United States, identified by docket number and title, Last), all other names used, current its territories, possessions, or by any of the following methods:

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* Federal Rulemaking Portal: https:// Transparency Division website at training; date of application; verification www.regulations.gov. Follow the https://dpcld.defense.gov. of sexual assault victim advocacy instructions for submitting comments. In accordance with 5 U.S.C. 552a(r) experience (position, dates, hours, * Mail: DoD cannot receive written and Office of Management and Budget supervisor; name, title, and work comments at this time due to the (OMB) Circular No. A–108, the DoD has telephone number of verifier); COVID–19 pandemic. Comments should provided a report of this system of evaluation of sexual assault victim be sent electronically to the docket records to the OMB and to Congress. advocacy experience (description of listed above. Dated: September 16, 2020. applicant skills, abilities, and Instructions: All submissions received Aaron T. Siegel, experience; name, title, and office of must include the agency name and evaluator), letters of recommendation by docket number for this Federal Register Alternate OSD Federal Register Liaison Officer, Department of Defense. the first person in the chain of document. The general policy for command, SARC, and the Senior comments and other submissions from SYSTEM NAME AND NUMBER: Commander or the Commander; members of the public is to make these Defense Sexual Assault Advocate verification of assignment eligibility submissions available for public Certification Program (D–SAACP), screening by the Commander or viewing on the internet at https:// DHRA 10 DoD. appointing authority; supervisor and www.regulations.gov as they are commander statement of understanding, received without change, including any SECURITY CLASSIFICATION: documentation of continuing education personal identifiers or contact Unclassified. training courses; D–SAACP information. identification (ID) number. SYSTEM LOCATION: FOR FURTHER INFORMATION CONTACT: Ms. National Organization for Victim RECORD SOURCE CATEGORIES: Lyn Kirby, Defense Privacy, Civil Assistance, 510 King Street, Suite 424, The individual, first person in chain Liberties, and Transparency Division, Alexandria, VA 22314–3132. Directorate for Oversight and of command or SARC and the Senior Commander or Commander, and the Compliance, Department of Defense, SYSTEM MANAGER(S): 4800 Mark Center Drive, Mailbox #24, National Advocate Credentialing Program Manager, Senior Victim Program. Suite 08D09, Alexandria, VA 22350– Assistance Advisor, Sexual Assault 1700; [email protected]; (703) Prevention and Response Office ROUTINE USES OF RECORDS MAINTAINED IN THE 571–0070. (SAPRO), 4800 Mark Center Drive, SYSTEM, INCLUDING CATEGORIES OF USERS AND SUPPLEMENTARY INFORMATION: The Alexandria, VA 22350–1500, email: PURPOSES OF SUCH USES: purpose of these modifications is for [email protected] In addition to those disclosures formatting changes and to comply with or telephone: (571) 372–2657. generally permitted in accordance with updates to the DoD Instruction 6495.03. 5 U.S.C. 552a(b), the records contained The OSD is modifying a system of AUTHORITY FOR MAINTENANCE OF THE SYSTEM: herein may specifically be disclosed records subject to the Privacy Act of 10 U.S.C. 136, Under Secretary of outside the DoD as a routine use 1974, 5 U.S.C. 552a. D–SAACP Defense for Personnel and Readiness; pursuant to 5 U.S.C. 552a(b)(3) as applicants must complete and submit and DoD Instruction 6495.03, Defense follows: the DD Form 2950, ‘‘Department of Sexual Assault Advocate Certification a. To contractors responsible for Defense Sexual Assault Advocate Program (D–SAACP). performing or working on contracts for Certification Program Application PURPOSE(S) OF THE SYSTEM: the DoD when necessary to accomplish Packet,’’ and a certificate of completion an agency function related to this To track Sexual Assault Response of 40 hours of D–SAACP-approved system of records. Individuals provided Coordinator (SARC) and Sexual Assault training, or the DD Form 2950–1, ‘‘D– information under this routine use are Prevention and Response Victim SAACP Renewal Application Packet,’’ subject to the same Privacy Act Advocate (SAPR VAs) certifications. for all renewals. D–SAACP requires requirements and limitations on System information will be used to applicants to provide proof of 32 hours disclosure that apply to DoD officers review, process, and report on the status of continuing education training for and employees. of SARC and SAPR VA certifications to certification renewal every two years. b. To the Department of Justice, SARCs and SAPR VAs must be Congress. Justice Programs, Office for Victims of appointed by commanders or other CATEGORIES OF INDIVIDUALS COVERED BY THE Crime for the purpose of verifying appropriate appointing authorities and SYSTEM: certified SARCs and SAPR VAs for D–SAACP certified. Also, SARCs and DoD civilian employees and military participation in Advance Military SAPR VAs must undergo or have personnel requesting national Sexual Assault Advocate Online undergone the required Assignment certification as an SARC or SAPR VA Training. Eligibility Screening with favorable through the. D–SAACP and certified c. To the appropriate Federal, State, results (pre-screening requirements, or SARCs and SAPR VAs. local, territorial, tribal, foreign, or Tier 3 background investigation with international law enforcement authority State Criminal History Repository CATEGORIES OF RECORDS IN THE SYSTEM: or other appropriate entity where a check, when necessary to augment Tier Applicant’s first name, middle initial, record, either alone or in conjunction 3, or enrollment in Continuous and last name; position type (DoD with other information, indicates a Evaluation). personnel); Service/DoD affiliation and violation or potential violation of law, The DoD notices for systems of status; grade/rank; installation/ whether criminal, civil, or regulatory in records subject to the Privacy Act of command; work email address and nature. 1974, as amended, have been published telephone number; official military d. To any component of the in the Federal Register and are available address of applicant and applicant’s Department of Justice for the purpose of from the address in FOR FURTHER SARC (commanding officer, street, city, representing the DoD, or its INFORMATION CONTACT or at the Defense state, ZIP code, country); position level components, officers, employees, or Privacy, Civil Liberties, and (Level I, II, III, or IV); certificates of members in pending or potential

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litigation to which the record is superseded or obsolete, whichever Manager, 4800 Mark Center Drive, pertinent. comes first. Alexandria, VA 22350–1500. Signed, e. In an appropriate proceeding before written requests should contain first and ADMINISTRATIVE, TECHNICAL, AND PHYSICAL a court, grand jury, or administrative or last name, and/or D–SAACP ID number. SAFEGUARDS: adjudicative body or official, when the In addition, the requester must provide Records are maintained in a DoD or other Agency representing the either a notarized statement or an controlled facility that employs physical DoD determines the records are relevant unsworn declaration made in restrictions such as double locks and is and necessary to the proceeding; or in accordance with 28 U.S.C. 1746, in the accessible only to authorized persons an appropriate proceeding before an following format: with key fobs. Access to electronic data administrative or adjudicative body If executed outside the United States: files in the system is role-based, when the adjudicator determines the ‘‘I declare (or certify, verify, or state) restricted to essential personnel only, records to be relevant to the proceeding. under penalty of perjury under the laws and requires two factor authentication. f. To the National Archives and of the United States of America that the The data server is locked in a Records Administration for the purpose foregoing is true and correct. windowless room with restricted access. of records management inspections Executed on (date). (Signature).’’ Data is encrypted, and backup data is conducted under the authority of 44 If executed within the United States, also encrypted and removed to an off- U.S.C. 2904 and 2906. its territories, possessions, or site secure location for storage. Paper g. To a Member of Congress or staff commonwealths: ‘‘I declare (or certify, files are stored in a locked filing cabinet acting upon the Member’s behalf when verify, or state) under penalty of perjury in a locked room in the controlled the Member or staff requests the that the foregoing is true and correct. facility. System access to case files will information on behalf of, and at the Executed on (date). (Signature).’’ be limited to computers within a closed request of, the individual who is the network and not connected to the EXEMPTIONS PROMULGATED FOR THE SYSTEM subject of the record. : internet or other servers. h. To appropriate agencies, entities, None. RECORD ACCESS PROCEDURES and persons when (1) the DoD suspects : HISTORY: or confirms a breach of the system of Individuals seeking access to records November 16, 2015, 80 FR 70765. records; (2) the DoD determines as a about themselves contained in this result of the suspected or confirmed system of records should address [FR Doc. 2020–21010 Filed 9–22–20; 8:45 am] breach there is a risk of harm to written requests to the OSD/Joint Staff BILLING CODE 5001–06–P individuals, the DoD (including its Freedom of Information Act Requester information systems, programs, and Service Center, Office of Freedom of operations), the Federal Government, or Information, 1155 Defense Pentagon, DEPARTMENT OF ENERGY national security; and (3) the disclosure Washington, DC 20301–1155. Signed, made to such agencies, entities, and written requests should include the Secretary of Energy Advisory Board persons is reasonably necessary to assist individual’s full name, and the name AGENCY: Department of Energy. in connection with the DoD’s efforts to and number of this system of records ACTION: Notice of open meeting. respond to the suspected or confirmed notice. In addition, the requester must breach or to prevent, minimize, or provide either a notarized statement or SUMMARY: This notice announces an remedy such harm. an unsworn declaration made in open meeting of the Secretary of Energy i. To another Federal agency or accordance with 28 U.S.C. 1746, in the Advisory Board (SEAB). The SEAB was Federal entity, when the DoD following format: reestablished pursuant to the Federal determines information from this If executed outside the United States: Advisory Committee Act. This notice is system of records is reasonably ‘‘I declare (or certify, verify, or state) provided in accordance with the Act. necessary to assist the recipient agency under penalty of perjury under the laws DATES: Tuesday, October 20, 2020; 1:00 or entity in (1) responding to a of the United States of America that the p.m.–5:00 p.m. suspected or confirmed breach or (2) foregoing is true and correct. preventing, minimizing, or remedying Executed on (date). (Signature).’’ ADDRESSES: The Westin Sarasota, Coral the risk of harm to individuals, the If executed within the United States, Bay Room, 100 Marina View Dr., recipient agency or entity (including its its territories, possessions, or Sarasota, Florida 34236. information systems, programs and commonwealths: ‘‘I declare (or certify, FOR FURTHER INFORMATION CONTACT: Kurt operations), the Federal Government, or verify, or state) under penalty of perjury Heckman, Designated Federal Officer, national security, resulting from a that the foregoing is true and correct. U.S. Department of Energy, 1000 suspected or confirmed breach. Executed on (date). (Signature).’’ Independence Avenue SW, Washington, DC 20585; email: [email protected]. POLICIES AND PRACTICES FOR STORAGE OF CONTESTING RECORD PROCEDURES: SUPPLEMENTARY INFORMATION: RECORDS: The DoD rules for accessing records, for contesting contents, and for Background: The Board was Paper file folders and electronic established to provide advice and storage media. appealing initial agency determinations are contained in 32 CFR part 310; or recommendations to the Secretary on POLICIES AND PRACTICES FOR RETRIEVAL OF may be obtained from the system the Administration’s energy policies; RECORDS: manager. the Department’s basic and applied First and last name, and/or D–SAACP research and development activities; ID number. NOTIFICATION PROCEDURES: economic and national security policy; Individuals seeking to determine and other activities as directed by the POLICIES AND PRACTICES FOR RETENTION AND whether information about themselves Secretary. DISPOSAL OF RECORDS: is contained in this system of records Purpose of the Meeting: This meeting Temporary. Cut off annually. Destroy should address written inquiries to the is the sixth meeting of existing and new 3 years after cutoff or 1 year upon Sexual Assault Prevention and members under Secretary Perry and employee separation or when Response Office, ATTN: D–SAACP now Secretary Brouillette.

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Tentative Agenda: The meeting will October 15, 2020; 11:45 a.m.–5:30 p.m. October 15, 2020 start at 1:00 p.m. on October 20th. The EST. 11:45 a.m.–12:00 p.m. WebEx tentative meeting agenda includes: ADDRESSES: Due to ongoing Introduction of SEAB’s members, precautionary measures surrounding the Attendee Sign-On remarks from the Secretary and Deputy spread of COVID–19, the October 12:00 p.m.–12:10 p.m. Welcome Secretary, discussion on four reports meeting of the EAC will be held via 12:10 p.m.–12:40 p.m. Update on the from the SEAB working groups: AI/ML, WebEx video and teleconference. In Bulk Power System Executive Order Branding, Space and Innovation, and an order to track all participants, the Implementation opportunity for comments from the Department is requiring that those 12:40 p.m.–1:00 p.m. Break public. The meeting will conclude at wishing to attend register for the 5:00 p.m. meeting here: https://www.energy.gov/ 1:00 p.m.–1:50 p.m. Panel: Big Data Public Participation: The meeting is oe/october-14-15-2020-meeting- Analytics in the Utility Setting: The open to the public. Individuals who electricity-advisory-committee. Please experiences, barriers and future would like to attend must RSVP to Kurt note, you must register for each day you needs—Panel 1: Transmission and Heckman no later than 5:00 p.m. on would like to attend. Distribution Wednesday, October 14, 2020, by email FOR FURTHER INFORMATION CONTACT: 1:50 p.m.–2:40 p.m. Moderated at: [email protected]. Christopher Lawrence, Designated Roundtable Discussion Between Individuals and representatives of Federal Officer, Office of Electricity, DOE and EAC Regarding Grid organizations who would like to offer U.S. Department of Energy, Washington, Modernization and Planning comments and suggestions may do so DC 20585; Telephone: (202) 586–5260 Activities during the meeting. Approximately 15 or Email: christopher.lawrence@ 2:40 p.m.–2:50 p.m. Break minutes will be reserved for public hq.doe.gov. comments. Time allotted per speaker 2:50 p.m.–3:40 p.m. Panel: Big Data will depend on the number who wish to SUPPLEMENTARY INFORMATION: Analytics in the Utility Setting: The speak but will not exceed five minutes. Purpose of the Committee: The experiences, barriers and future The Designated Federal Officer is Electricity Advisory Committee (EAC) needs—Panel 2: Operators, empowered to conduct the meeting in a was established in accordance with the Municipal and Cooperative Utilities fashion that will facilitate the orderly provisions of the Federal Advisory Committee Act (FACA), to provide 3:40 p.m.–4:30 p.m. Q&A and conduct of business. Those wishing to Moderated Discussion with Panel 2 speak should register to do so via email, advice to the U.S. Department of Energy 4:30 p.m.–4:50 p.m. Break [email protected], no later than 5:00 (DOE) in implementing the Energy p.m. on Wednesday, October 14, 2020. Policy Act of 2005, executing certain 4:50 p.m.–5:10 p.m. Public Comments Those not able to attend the meeting sections of the Energy Independence 5:10 p.m.–5:30 p.m. Wrap-up and or who have insufficient time to address and Security Act of 2007, and Adjourn the committee are invited to send a modernizing the nation’s electricity written statement to Kurt Heckman, U.S. delivery infrastructure. The EAC is The meeting agenda may change to Department of Energy, 1000 composed of individuals of diverse accommodate EAC business. For EAC Independence Avenue SW, Washington, backgrounds selected for their technical agenda updates, see the EAC website at: DC 20585, or email to: [email protected]. expertise and experience, established http://energy.gov/oe/services/electricity- Minutes: The minutes of the meeting records of distinguished professional advisory-committee-eac. will be available on the SEAB website service, and their knowledge of issues Public Participation: The EAC or by contacting Mr. Heckman. He may that pertain to the electric sector. welcomes the attendance of the public be reached at the above postal address Tentative Agenda at its meetings, no advanced registration or email address, or by visiting SEAB’s is required. Individuals who wish to website at www.energy.gov/seab. October 14, 2020 offer public comments at the EAC Signed in Washington, DC, on September 11:45 a.m.–12:00 p.m. WebEx meeting may do so on October 15, 2020, 17, 2020. Attendee Sign-On but must register in advance. LaTanya Butler, 12:00 p.m.–12:20 p.m. Welcome, Approximately 20 minutes will be Deputy Committee Management Officer. Introductions, Developments since reserved for public comments. Time [FR Doc. 2020–20927 Filed 9–22–20; 8:45 am] the August 2020 Meeting allotted per speaker will depend on the 12:20 p.m.–12:40 p.m. Update on BILLING CODE 6450–01–P number who wish to speak but is not Office of Electricity Programs and expected to exceed three minutes. Initiatives Anyone who is not able to attend the DEPARTMENT OF ENERGY 12:40 p.m.–1:20 p.m. Overview of meeting, or for whom the allotted public Defense Critical Electric comments time is insufficient to address Electricity Advisory Committee Infrastructure (DCEI) Strategy pertinent issues with the EAC, is invited 1:20 p.m.–2:30 p.m. Moderated to send a written statement identified by AGENCY: Office of Electricity, Roundtable Discussion Regarding Department of Energy. ‘‘Electricity Advisory Committee DCEI Strategy October 2020 Meeting,’’ to Mr. ACTION: Notice of open meeting. 2:30 p.m.–2:45 p.m. Break Christopher Lawrence at 2:45 p.m.–4:00 p.m. State-Federal [email protected]. SUMMARY: This notice announces a Coordination Issues Discussion meeting of the Electricity Advisory Among EAC Members Minutes: The minutes of the EAC Committee. The Federal Advisory 4:00 p.m.–4:30 p.m. Energy Storage meeting will be posted on the EAC web Committee Act requires that public Subcommittee Report page at http://energy.gov/oe/services/ notice of these meetings be announced 4:30 p.m.–5:00 p.m. Smart Grid electricity-advisory-committee-eac. in the Federal Register. Subcommittee Update They can also be obtained by contacting DATES: Wednesday, October 14, 2020; 5:00 p.m.–5:15 p.m. Wrap-up and Mr. Christopher Lawrence at the address 11:45 a.m.–5:15 p.m. EST; Thursday, Adjourn Day 1 above.

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Signed in Washington, DC, on September Efficiency and Renewable Energy, waiver in its entirety, pursuant to 10 17, 2020. Building Technologies Office, Mailstop CFR 430.27(b)(1)(iv), absent any LaTanya R. Butler, EE–5B, Petition for Waiver Case No. information for which GEA requested Deputy Committee Management Officer. 2020–004, 1000 Independence Avenue treatment as confidential business [FR Doc. 2020–20926 Filed 9–22–20; 8:45 am] SW, Washington, DC 20585–0121. If information. DOE invites all interested BILLING CODE 6450–01–P possible, please submit all items on a parties to submit in writing by October compact disc (‘‘CD’’), in which case it is 23, 2020, comments and information on not necessary to include printed copies. all aspects of the petition, including the DEPARTMENT OF ENERGY • Hand Delivery/Courier: Appliance alternate test procedure. Pursuant to 10 and Equipment Standards Program, U.S. CFR 430.27(d), any person submitting [Case Number 2020–004; EERE–2020–BT– WAV–0021] Department of Energy, Building written comments to DOE must also Technologies Office, 950 L’Enfant Plaza send a copy of such comments to the Energy Conservation Program: Notice SW, 6th Floor, Washington, DC 20024. petitioner. The contact information for of Petition for Waiver of GE Telephone: (202) 287–1445. If possible, the petitioner is John T. Schlafer, Appliances, a Haier Company From the please submit all items on a CD, in [email protected], Department of Energy Room Air which case it is not necessary to include Appliance Park—AP2–225, Louisville, Conditioner Test Procedure and Notice printed copies. KY 40225. of Grant of Interim Waiver No telefacsimilies (‘‘faxes’’) will be Submitting comments via http:// accepted. For detailed instructions on www.regulations.gov. The http:// AGENCY: Office of Energy Efficiency and submitting comments and additional www.regulations.gov web page will Renewable Energy, Department of information on this process, see the require you to provide your name and Energy. SUPPLEMENTARY INFORMATION section of contact information. Your complete ACTION: Notice of petition for waiver and this document. contact information will be viewable to grant of an interim waiver; request for Docket: The docket, which includes DOE Building Technologies staff only. comments. Federal Register notices, comments, Your contact information will not be and other supporting documents/ publicly viewable except for your first SUMMARY: This notice announces receipt materials, is available for review at and last names, organization name (if of and publishes a petition for waiver http://www.regulations.gov. All any), and submitter representative name and interim waiver from GE Appliances, documents in the docket are listed in (if any). If your comment is not a Haier Company, which seeks a waiver the http://www.regulations.gov index. processed properly because of technical for specified room air conditioner basic However, some documents listed in the difficulties, DOE will use this models from the U.S. Department of index, such as those containing information to contact you. If DOE Energy (‘‘DOE’’) test procedure used for information that is exempt from public cannot read your comment due to determining the efficiency of room air disclosure, may not be publicly technical difficulties and cannot contact conditioners. DOE also gives notice of available. you for clarification, DOE may not be an Interim Waiver Order that requires The docket web page can be found at able to consider your comment. GEA to test and rate the specified room https://www.regulations.gov/ However, your contact information air conditioner basic models in docket?D=EERE-2020-BT-WAV-0021. will be publicly viewable if you include accordance with the alternate test The docket web page contains it in the comment or in any documents procedure set forth in the Interim instruction on how to access all attached to your comment. Any Waiver Order. DOE solicits comments, documents, including public comments, information that you do not want to be data, and information concerning GEA’s in the docket. See the SUPPLEMENTARY publicly viewable should not be petition and suggested alternate test INFORMATION section for information on included in your comment, nor in any procedure so as to inform DOE’s final how to submit comments through document attached to your comment. If decision on GEA’s waiver request. http://www.regulations.gov. this instruction is followed, persons DATES: The Interim Waiver Order is FOR FURTHER INFORMATION CONTACT: Ms. viewing comments will see only first effective on September 23, 2020. Lucy deButts, U.S. Department of and last names, organization names, Written comments and information will Energy, Office of Energy Efficiency and correspondence containing comments, be accepted on or before October 23, Renewable Energy, Building and any documents submitted with the 2020. Technologies Office, Mailstop EE–5B, comments. ADDRESSES: Interested persons are 1000 Independence Avenue SW, Do not submit to http:// encouraged to submit comments using Washington, DC 20585–0121. Email: _ _ www.regulations.gov information for the Federal eRulemaking Portal at AS Waiver [email protected]. Ms. which disclosure is restricted by statute, http://www.regulations.gov. Amelia Whiting, U.S. Department of such as trade secrets and commercial or Alternatively, interested persons may Energy, Office of the General Counsel, financial information (hereinafter submit comments, identified by case Mail Stop GC–33, Forrestal Building, referred to as Confidential Business number ‘‘2020–004’’, and Docket 1000 Independence Avenue SW, Information (‘‘CBI’’)). Comments number ‘‘EERE–2020–BT–WAV–0021,’’ Washington, DC 20585–0103. submitted through http:// by any of the following methods: Telephone: (202) 586–2588. Email: www.regulations.gov cannot be claimed • Federal eRulemaking Portal: http:// [email protected]. as CBI. Comments received through the www.regulations.gov. Follow the SUPPLEMENTARY INFORMATION: DOE is website will waive any CBI claims for instructions for submitting comments. publishing GE Appliances, a Haier the information submitted. For • Email: GERAC2020WAV0021@ Company’s 1 (‘‘GEA’’) petition for information on submitting CBI, see the ee.doe.gov. Include Case No. 2020–004 Confidential Business Information in the subject line of the message. 1 The petition was filed under the company name section. • GE Appliances, a Haier Company. DOE notes that Postal Mail: Appliance and the official company name is Haier US Appliance Equipment Standards Program, U.S. Solutions. For the purpose of this notice and the the petition and treats the two names as Department of Energy, Office of Energy interim order, DOE uses the name as provided in synonymous.

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DOE processes submissions made ‘‘non-confidential’’ with the information subject of this Interim Waiver Order. (42 through http://www.regulations.gov believed to be confidential deleted. U.S.C. 6292(a)(2)) before posting. Normally, comments Submit these documents via email or on The energy conservation program will be posted within a few days of a CD, if feasible. DOE will make its own under EPCA consists essentially of four being submitted. However, if large determination about the confidential parts: (1) Testing, (2) labeling, (3) volumes of comments are being status of the information and treat it Federal energy conservation standards, processed simultaneously, your according to its determination. and (4) certification and enforcement comment may not be viewable for up to It is DOE’s policy that all comments procedures. Relevant provisions of several weeks. Please keep the comment may be included in the public docket, EPCA include definitions (42 U.S.C. tracking number that http:// without change and as received, 6291), test procedures (42 U.S.C. 6293), www.regulations.gov provides after you including any personal information labeling provisions (42 U.S.C. 6294), have successfully uploaded your provided in the comments (except energy conservation standards (42 comment. information deemed to be exempt from U.S.C. 6295), and the authority to Submitting comments via email, hand public disclosure). require information and reports from delivery/courier, or postal mail. manufacturers (42 U.S.C. 6296). Signing Authority Comments and documents submitted The Federal testing requirements via email, hand delivery/courier, or This document of the Department of consist of test procedures that postal mail also will be posted to http:// Energy was signed on September 18, manufacturers of covered products must www.regulations.gov. If you do not want 2020, by Alexander N. Fitzsimmons, use as the basis for: (1) Certifying to your personal contact information to be Deputy Assistant Secretary for Energy DOE that their products comply with publicly viewable, do not include it in Efficiency, Energy Efficiency and the applicable energy conservation your comment or any accompanying Renewable Energy, pursuant to standards adopted pursuant to EPCA (42 documents. Instead, provide your delegated authority from the Secretary U.S.C. 6295(s)), and (2) making contact information on a cover letter. of Energy. That document with the representations about the efficiency of Include your first and last names, email original signature and date is that product (42 U.S.C. 6293(c)). address, telephone number, and maintained by DOE. For administrative Similarly, DOE must use these test optional mailing address. The cover purposes only, and in compliance with procedures to determine whether the letter will not be publicly viewable as requirements of the Office of the Federal product complies with relevant long as it does not include any Register, the undersigned DOE Federal standards promulgated under EPCA. (42 comments. Register Liaison Officer has been U.S.C. 6295(s)) Include contact information each time authorized to sign and submit the Under 42 U.S.C. 6293, EPCA sets forth you submit comments, data, documents, document in electronic format for the criteria and procedures DOE is and other information to DOE. If you publication, as an official document of required to follow when prescribing or submit via postal mail or hand delivery/ the Department of Energy. This amending test procedures for covered courier, please provide all items on a administrative process in no way alters products. EPCA requires that any test CD, if feasible, in which case it is not the legal effect of this document upon procedures prescribed or amended necessary to submit printed copies. publication in the Federal Register. under this section must be reasonably Faxes will not be accepted. Signed in Washington, DC, on September designed to produce test results which Comments, data, and other 18, 2020. reflect the energy efficiency, energy use information submitted to DOE Treena V. Garrett, or estimated annual operating cost of a electronically should be provided in Federal Register Liaison Officer, U.S. covered product during a representative PDF (preferred), Microsoft Word or Department of Energy. average use cycle or period of use and Excel, WordPerfect, or text (ASCII) file that test procedures not be unduly format. Provide documents that are not Case Number 2020–004 burdensome to conduct. (42 U.S.C. secured, written in English and free of Interim Waiver Order 6293(b)(3)) The test procedure for room any defects or viruses. Documents air conditioners is contained in the I. Background and Authority should not contain special characters or Code of Federal Regulations (‘‘CFR’’) at any form of encryption and, if possible, The Energy Policy and Conservation 10 CFR part 430 subpart B appendix F, they should carry the electronic Act, as amended (‘‘EPCA’’),2 authorizes ‘‘Uniform Test Method for Measuring signature of the author. the U.S. Department of Energy (‘‘DOE’’) the Energy Consumption of Room Air Campaign form letters. Please submit to regulate the energy efficiency of a Conditioners’’ (‘‘appendix F’’). campaign form letters by the originating number of consumer products and Under 10 CFR 430.27, any interested organization in batches of between 50 to certain industrial equipment. (42 U.S.C. person may submit a petition for waiver 500 form letters per PDF or as one form 6291–6317) Title III, Part B 3 of EPCA. from DOE’s test procedure letter with a list of supporters’ names Public Law 94–163 (42 U.S.C. 6291– requirements. DOE will grant a waiver compiled into one or more PDFs. This 6309, as codified), established the from the test procedure requirements if reduces comment processing and Energy Conservation Program for DOE determines either that the basic posting time. Consumer Products Other Than model for which the waiver was Confidential Business Information. Automobiles, which sets forth a variety requested contains a design According to 10 CFR 1004.11, any of provisions designed to improve characteristic that prevents testing of the person submitting information that he energy efficiency for certain types of basic model according to the prescribed or she believes to be confidential and consumer products. These products test procedures, or that the prescribed exempt by law from public disclosure include room air conditioners, the test procedures evaluate the basic model should submit via email, postal mail, or in a manner so unrepresentative of its hand delivery/courier two well-marked 2 All references to EPCA in this document refer true energy consumption characteristics copies: One copy of the document to the statute as amended through America’s Water as to provide materially inaccurate Infrastructure Act of 2018, Public Law 115–270 marked confidential including all the (Oct. 23, 2018). comparative data. 10 CFR 430.27(f)(2). A information believed to be confidential, 3 For editorial reasons, upon codification in the petitioner must include in its petition and one copy of the document marked U.S. Code, Part B was redesignated as Part A. any alternate test procedures known to

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the petitioner to evaluate the II. GEA’s Petition for Waiver and characteristics of the basic models performance of the product type in a Interim Waiver identified in GEA’s petition would not manner representative of the energy On June 2, 2020, GEA filed a petition be captured. consumption characteristics of the basic for waiver and interim waiver from the III. Requested Alternate Test Procedure model. 10 CFR 430.27(b)(1)(iii). DOE test procedure for room air conditioners may grant the waiver subject to set forth at appendix F. (GEA, No. 1 at EPCA requires that manufacturers use conditions, including adherence to pp. 1–4) 4 Appendix F requires testing DOE test procedures when making alternate test procedures. 10 CFR in the full-load condition and according representations about the energy 430.27(f)(2). to GEA does not take into account the consumption and energy consumption As soon as practicable after the energy savings achieved by variable- costs of covered products. (42 U.S.C. speed compressors under part-load granting of any waiver, DOE will 6293(c)) Consistency is important when conditions.5 Appendix F requires publish in the Federal Register a notice making representations about the energy testing room air conditioners only with of proposed rulemaking to amend its efficiency of products, including when full-load performance, in part, as a demonstrating compliance with regulations so as to eliminate any need result of DOE having previously for the continuation of such waiver. 10 applicable DOE energy conservation concluded that developing a part-load standards. Pursuant to its regulations at CFR 430.27(l) As soon thereafter as metric for this product was not likely to 10 CFR 430.27, and after consideration practicable, DOE will publish in the stimulate widespread use of part-load of public comments on the petition, Federal Register a final rule to that technology. 76 FR 972, 1016 (Jan. 6, DOE may establish in a subsequent effect. Id. 2011). Decision and Order an alternate test The waiver process also provides that GEA states the basic models listed in procedure for the basic models DOE may grant an interim waiver if it its petition adjust their compressor addressed by the Interim Waiver Order. speed based on detected conditions, appears likely that the underlying GEA seeks to use an alternate test petition for waiver will be granted and/ which results in more efficient operation under part-load conditions. procedure to test and rate specific room or if DOE determines that it would be GEA claims that these speed air conditioner basic models that is the desirable for public policy reasons to adjustments allow the compressor to same as the alternate test procedure grant immediate relief pending a run for longer periods without cycling prescribed in a Decision and Order determination on the underlying on and off, improving efficiency in a granted to LG Electronics U.S.A., Inc., petition for waiver. 10 CFR 430.27(e)(2). way that is not currently captured by published on May 8, 2019 (84 FR 20111; Within one year of issuance of an the DOE test procedure. ‘‘LG Waiver’’) and a Decision and Order interim waiver, DOE will either: (i) GEA also requests an interim waiver granted to GD Midea Air Conditioning Publish in the Federal Register a from the existing DOE test procedure. Equipment Co., Ltd, published on May determination on the petition for DOE will grant an interim waiver if it 26, 2020 (85 FR 31481; ‘‘Midea waiver; or (ii) publish in the Federal appears likely that the petition for Waiver’’).6 The LG Waiver and Midea Register a new or amended test waiver will be granted, and/or if DOE Waiver each require testing certain basic procedure that addresses the issues determines that it would be desirable for models of variable-speed room air presented in the waiver. 10 CFR public policy reasons to grant conditioners according to the test 430.27(h)(1). immediate relief pending a procedure in appendix F in a modified determination of the petition for waiver. fashion. Instead of testing at only one When DOE amends the test procedure 10 CFR 430.27(e)(2). rating condition, these Waivers require to address the issues presented in a DOE understands that, absent an testing at four rating conditions. 84 FR waiver, the waiver will automatically interim waiver, the test procedure does 20111, 20119; 85 FR 31481; 31486. The terminate on the date on which use of not accurately measure the energy four test conditions GEA requests are that test procedure is required to consumption of variable-speed room air identical to those in the LG Waiver and demonstrate compliance. 10 CFR conditioners, and without a test the Midea Waiver and are presented in 430.27(h)(2). procedure waiver, the part-load Table III.1.

TABLE III.1—INDOOR AND OUTDOOR INLET AIR TEST CONDITIONS—VARIABLE-SPEED ROOM AIR CONDITIONERS

Evaporator inlet Condenser inlet ° ° Test condition (indoor) air, F (outdoor) air, F Compressor speed Dry bulb Wet bulb Dry bulb Wet bulb

Test Condition 1 ...... 80 67 95 75 Full. Test Condition 2 ...... 80 67 92 72.5 Full. Test Condition 3 ...... 80 67 87 69 Intermediate. Test Condition 4 ...... 80 67 82 65 Low.

4 A notation in this form provides a reference for 5 The specific basic models for which the petition 6 The alternate test procedures prescribed in the information that is in the docket for this test applies are basic models AHNR08AC, AHNR10AC, LG Waiver and Midea Waiver are substantively the procedure waiver (Docket No. EERE–2020–BT– AHNR12AC, AHTR08AC, AHTR10AC, AHTR12AC, same. In the Midea Waiver, DOE provided some WAV–0021) (available at https:// AKNR08AC, AKNR10AC, AKNR12AC, AHNR14AC, additional clarifications and instruction regarding www.regulations.gov/docket?D=EERE-2020-BT- AHNR18AC, AHTR14AC, AHTR18AC, AKNR14AC, definitions, maintenance of compressor speed, the WAV-0021). This notation indicates that the statement preceding the reference is document AKNR18AC, AHNR24AC, AHTR24AC, and annual energy consumption and corresponding cost number 1 in the docket and appears at pages 1–4 AKNR24AC. GEA provided these basic model calculations, and adjustments to the CEER of that document. names in its June 2, 2020 petition. calculation for clarity. 85 FR 31481, 31483.

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GEA requests the same test procedure testing for these basic models. (i) Calculate the quotient of: as granted in the LG and Midea Waivers. Consequently, DOE has determined that (A) The cooling capacity as That test procedure yields four it likely will grant GEA’s petition for determined at the 95 °F outdoor test individual CEER ratings, one at each test waiver. Furthermore, DOE has condition, Capacity1, in Btus per hour, condition. A test unit’s weighted- determined that it is desirable for public as measured in accordance with section average combined energy efficiency policy reasons to grant GEA immediate 5.1 of appendix F to this subpart ratio (‘‘CEER’’) metric is calculated from relief pending a determination of the multiplied by the representative the individual CEER values obtained at petition for waiver. average-use cycle of 750 hours of the four rating conditions. DOE based For the reasons stated, it is ordered compressor operation per year, divided the room air conditioner weighting that: by factors for each rating temperature on (1) GEA must test and rate the (B) The combined annual energy the fractional temperature bin hours following room air conditioner basic consumption, in watt-hours, which is provided in Table 19 of DOE’s test models with the alternate test procedure the sum of the annual energy procedure for central air conditioners set forth in paragraph (2). consumption for cooling mode, (10 CFR part 430, subpart B, appendix calculated in section 5.4.2 of appendix M (‘‘appendix M’’)). This weighted- Brand Basic model F to this subpart for test condition 1 in average value is adjusted to normalize it Table 1 of appendix F to this subpart, against the expected weighted-average GE ...... AHNR08AC and the standby mode and off mode GE ...... AHNR10AC CEER under the same four rating GE ...... AHNR12AC energy consumption, as measured in conditions of a theoretical comparable GE ...... AHTR08AC accordance with section 5.3 of appendix single-speed room air conditioner. This GE ...... AHTR10AC F to this subpart. Multiply the sum of theoretical air conditioner is one that at GE ...... AHTR12AC the annual energy consumption in the 95-degree Fahrenheit (‘‘°F’’) test GE ...... AKNR08AC cooling mode and standby mode and off condition performs the same as the GE ...... AKNR10AC mode energy consumption by a variable-speed test unit, but with GE ...... AKNR12AC conversion factor of 1,000 to convert differing performance at the other rating GE ...... AHNR14AC kilowatt-hours to watt-hours. conditions. The differing performance is GE ...... AHNR18AC (ii) Multiply the quotient calculated GE ...... AHTR14AC due to optimization of the refrigeration GE ...... AHTR18AC in paragraph (f)(5)(i) of this section by system efficiency through compressor GE ...... AKNR14AC (1 + Fp), where Fp is the variable-speed speed adjustments to eliminate cycling GE ...... AKNR18AC room air conditioner unit’s performance losses and better match the cooling load. GE ...... AHNR24AC adjustment factor as calculated in Determining the test unit’s final rated GE ...... AHTR24AC section 5.4.8 of appendix F to this CEER value under the procedure GEA GE ...... AKNR24AC subpart. requested involves multiplying a (iii) Round the resulting value from performance adjustment factor with the (2) The alternate test procedure for the paragraph (f)(5)(ii) of this section to the measured performance of the variable- GEA basic models listed in paragraph nearest 0.1 Btu per watt-hour. speed room air conditioner when tested (1) of this Interim Waiver Order is the In 10 CFR part 430, subpart B, at the 95 °F rating condition according test procedure for room air conditioners appendix F: to appendix F. The performance prescribed by DOE at 10 CFR part 430, Add in Section 1, Definitions: adjustment factor, derived from testing subpart B, appendix F and 10 CFR 1.8 ‘‘Single-speed’’ means a type of at the multiple rating conditions, 430.23(f), with the following two room air conditioner that cannot reflects the average performance exceptions: (i) Determine the CEER as automatically adjust the compressor improvement due to the variable-speed detailed below, and (ii) Calculate the speed based on detected conditions. compressor across multiple rating average annual energy consumption 1.9 ‘‘Variable-speed’’ means a type of conditions. GEA states that this referenced in 10 CFR 430.23(f)(3) as room air conditioner that can approach takes into account detailed below. In addition, for each automatically adjust the compressor performance and efficiency basic model listed in paragraph (1), at speed based on detected conditions. improvements associated with variable- each test condition maintain compressor 1.10 ‘‘Full compressor speed (full)’’ speed room air conditioners. speeds and control settings for the means the compressor speed specified variable components according to the by GE Appliances, a Haier Company IV. Interim Waiver Order instructions GEA submitted to DOE (https://www.regulations.gov/ DOE has reviewed GEA’s application (https://www.regulations.gov/ docket?D=EERE-2020-BT-WAV-0021- for an interim waiver, the alternate test docket?D=EERE-2020-BT-WAV-0021- 0001) at which the unit operates at full procedure requested by GEA, and 0001). All other requirements of load testing conditions. performance data for the models listed appendix F and DOE’s regulations 1.11 ‘‘Intermediate compressor speed by GEA in its petition. Based on this remain applicable. (intermediate)’’ means the compressor review, the alternate test procedure In 10 CFR 430.23, in paragraph (f) speed higher than the low compressor requested by GEA, along with the revise paragraph (3)(i) to read as speed by one third of the difference additional clarification and detail follows: between low compressor speed and full provided in the Midea Waiver and one The electrical power input in watts as compressor speed with a tolerance of additional clarification that the calculated in section 5.2.1 of appendix plus 5 percent (designs with non- electrical power input in 10 CFR F to this subpart divided by 1,000 to discrete compressor speed stages) or the 430.23(f)(3)(i) is in units of watts, convert the power to kilowatts, and next highest inverter frequency step appears to allow for the accurate In 10 CFR 430.23, in paragraph (f) (designs with discrete compressor speed measurement of the energy efficiency of revise paragraph (5) to read as follows: steps). the listed basic models of room air (5) Calculate the combined energy 1.12 ‘‘Low compressor speed (low)’’ conditioners, while alleviating the efficiency ratio for room air means the compressor speed specified testing problems associated with GEA’s conditioners, expressed in Btu’s per by GE Appliances, a Haier Company implementation of room air conditioner watt-hour, as follows: (https://www.regulations.gov/

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docket?D=EERE-2020-BT-WAV-0021- the variable-speed room air conditioner 5 of ANSI/AHAM RAC–1 (incorporated 0001) at which the unit operates at low unit under test, with no cycling losses by reference; see 10 CFR 430.3) and in load test conditions, such that Capacity4, considered, at test condition 1 in Table accordance with ANSI/ASHRAE 16 the measured cooling capacity at test 1 of this appendix. (incorporated by reference; see 10 CFR condition 4 in Table 1 of this appendix, Add to the end of Section 2.1 Cooling: 430.3), with the following exceptions: is no less than 47 percent and no greater For the purposes of this waiver, test Conduct the set of four cooling mode than 57 percent of Capacity1, the each unit following the cooling mode tests with the test conditions in Table 1 measured cooling capacity with the full test a total of four times: one test at each of this appendix. Set the compressor compressor speed at test condition 1 in of the test conditions listed in Table 1 speed required for each test condition in Table 1 of this appendix. of this appendix, consistent with section accordance with instructions GE 1.13 ‘‘Theoretical comparable single- 3.1 of this appendix. Appliances, a Haier Company provided speed room air conditioner’’ means a Revise Section 3.1, Cooling mode, to theoretical single-speed room air read as follows: to DOE (https://www.regulations.gov/ conditioner with the same cooling Cooling mode. Establish the test docket?D=EERE-2020-BT-WAV-0021- capacity and electrical power input as conditions described in sections 4 and 0001).

TABLE 1—INDOOR AND OUTDOOR INLET AIR TEST CONDITIONS—VARIABLE-SPEED ROOM AIR CONDITIONERS

Evaporator inlet Condenser inlet ° ° Test condition (indoor) air, F (outdoor) air, F Compressor speed Dry bulb Wet bulb Dry bulb Wet bulb

Test Condition 1 ...... 80 67 95 75 Full. Test Condition 2 ...... 80 67 92 72.5 Full. Test Condition 3 ...... 80 67 87 69 Intermediate. Test Condition 4 ...... 80 67 82 65 Low.

Replace Section 5.1 to read as follows: Pwt, calculated in section 5.2.1 of this single-speed room air conditioner at all Calculate the condition-specific appendix, as the electrical power input. cooling mode test conditions. cooling capacity (expressed in Btu/h), Insert a new Section 5.2.1: Capacityss_tc = Capacity1 × (1 + (Mc × Capacitytc, for each of the four cooling 5.2.1 Weighted electrical power input. (95¥Ttc))) mode rating test conditions (tc), as Calculate the weighted electrical power Pss_tc = P1 × (1¥(Mp × (95¥Ttc))) required in section 6.1 of ANSI/AHAM input in cooling mode, Pwt, expressed in Where: RAC–1 (incorporated by reference; see watts, as follows: Capacityss_tc = theoretical comparable single- 10 CFR 430.3) and in accordance with speed room air conditioner cooling ANSI/ASHRAE 16 (incorporated by capacity, in Btu/h, calculated for each of reference; see 10 CFR 430.3). the cooling mode test conditions in Notwithstanding the requirements of 10 Where: Table 1 of this appendix. CFR 430.23(f), when reporting cooling Capacity1 = variable-speed room air Pwt = weighted electrical power input, in conditioner unit’s cooling capacity, in capacity pursuant to 10 CFR watts, in cooling mode. 429.15(b)(2) and calculating energy Btu/h, measured in section 5.1 of this Ptc = electrical power input, in watts, in appendix for test condition 1 in Table 1 consumption and costs pursuant to 10 cooling mode for each test condition in of this appendix. CFR 430.23(f), use the cooling capacity Table 1 of this appendix. Pss_tc = theoretical comparable single-speed determined for test condition 1 in Table Wtc = weighting factors for each cooling room air conditioner electrical power 1 of this appendix. mode test condition: 0.05 for test input, in watts, calculated for each of the condition 1, 0.16 for test condition 2, Replace Section 5.2 to read as follows: cooling mode test conditions in Table 1 0.31 for test condition 3, and 0.48 for test of this appendix. Determine the condition-specific condition 4. P1 = variable-speed room air conditioner electrical power input (expressed in tc represents the cooling mode test condition: ° unit’s electrical power input, in watts, watts), Ptc, for each of the four cooling ‘‘1’’ for test condition 1 (95 F condenser measured in section 5.2 of this appendix mode rating test conditions, as required inlet dry-bulb temperature), ‘‘2’’ for test ° for test condition 1 in Table 1 of this by section 6.5 of ANSI/AHAM RAC–1 condition 2 (92 F), ‘‘3’’ for test condition appendix. 3 (87 °F), and ‘‘4’’ for test condition 4 (incorporated by reference; see 10 CFR Mc = adjustment factor to determine the (82 °F). 430.3) and in accordance with ANSI/ increased capacity at lower outdoor test ASHRAE 16 (incorporated by reference; Add a new Section 5.4, following conditions, 0.0099. see 10 CFR 430.3). Notwithstanding the Section 5.3 Standby mode and off mode Mp = adjustment factor to determine the requirements of 10 CFR 430.23(f), when annual energy consumption: reduced electrical power input at lower outdoor test conditions, 0.0076. reporting electrical power input 5.4 Variable-speed room air Ttc = condenser inlet dry-bulb temperature pursuant to 10 CFR 429.15(b)(2) and conditioner unit’s performance for each of the test conditions in Table calculating energy consumption and adjustment factor. Calculate the 1 of this appendix (in °F). costs pursuant to 10 CFR 430.23(f)(5), performance adjustment factor (Fp) as 95 is the condenser inlet dry-bulb use the electrical power input value follows: temperature for test condition 1 in Table measured for test condition 1 in Table 5.4.1 Theoretical comparable single- 1 of this appendix, 95 °F. 1 of this appendix. Notwithstanding the speed room air conditioner. Calculate tc as explained in section 5.2.1 of this requirements of 10 CFR 430.23(f), when the cooling capacity, expressed in appendix. calculating energy consumption and British thermal units per hour (Btu/h), 5.4.2 Variable-speed room air costs pursuant to 10 CFR 430.23(f)(3), and electrical power input, expressed in conditioner unit’s annual energy use the weighted electrical power input, watts, for a theoretical comparable consumption for cooling mode at each

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cooling mode test condition. Calculate CEERtc, for each test condition, appendix. _ the annual energy consumption for expressed in Btu/Wh. AECss tc = theoretical comparable single- cooling mode under each test condition, speed room air conditioner annual energy consumption for each test AECtc, expressed in kilowatt-hours per year (kWh/year), as follows: condition in Table 1 of this appendix, in × kWh/year, calculated in section 5.4.3 of AECtc = 0.75 Ptc this appendix. Where: Where: ETSO = standby mode and off mode annual energy consumption for room air AECtc = variable-speed room air conditioner CEER = variable-speed room air conditioner tc conditioners, in kWh/year, calculated in unit’s annual energy consumption, in unit’s combined energy efficiency ratio, section 5.3 of this appendix. kWh/year, in cooling mode for each test in Btu/Wh, for each test condition in tc as explained in section 5.2.1 of this condition in Table 1 of this appendix. Table 1 of this appendix. appendix. Ptc as defined in section 5.2.1 of this Capacitytc = variable-speed room air appendix. conditioner unit’s cooling capacity, in 0.75 as defined in section 5.4.2 of this tc as explained in section 5.2.1 of this Btu/h, for each test condition in Table 1 appendix. appendix. of this appendix, measured in section 5.1 5.4.6 Theoretical comparable single- 0.75 is 750 annual operating hours in cooling of this appendix. speed room air conditioner adjusted mode multiplied by a 0.001 kWh/Wh AECtc = variable-speed room air conditioner conversion factor from watt-hours to unit’s annual energy consumption, in combined energy efficiency ratio for kilowatt-hours. kWh/yr, in cooling mode for each test each cooling mode test condition. condition in Table 1 of this appendix, Calculate the adjusted combined energy 5.4.3 Theoretical comparable single- calculated in section 5.4.2 of this efficiency ratio for a theoretical speed room air conditioner annual appendix. comparable single-speed room air energy consumption for cooling mode at ETSO = standby mode and off mode annual conditioner, CEER _ _ , with cycling each cooling mode test condition. energy consumption for room air tc adj losses considered, expressed in Btu/Wh. Calculate the annual energy conditioners, in kWh/year, calculated in section 5.3 of this appendix. consumption for a theoretical CEERss_tc_adj = CEERss_tc × CLFtc. comparable single-speed room air tc as explained in section 5.2.1 of this appendix. Where: conditioner for cooling mode under _ _ _ 0.75 as defined in section 5.4.2 of this CEERss tc adj = theoretical comparable single- each test condition, AECss tc, expressed appendix. speed room air conditioner adjusted in kWh/year. 5.4.5 Theoretical comparable single- combined energy efficiency ratio, in Btu/ _ × _ AECss tc = 0.75 Pss tc speed room air conditioner combined Wh, for each test condition in Table 1 of this appendix. Where: energy efficiency ratio at each cooling _ _ CEERss tc = theoretical comparable single- AECss tc = theoretical comparable single- mode test condition. Calculate the speed room air conditioner adjusted speed room air conditioner annual combined energy efficiency ratio for a combined energy efficiency ratio, in Btu/ energy consumption, in kWh/year, in theoretical comparable single-speed Wh, for each test condition in Table 1 of cooling mode for each test condition in room air conditioner, CEERss_tc, for each this appendix, calculated in section 5.4.5 Table 1 of this appendix. test condition, expressed in Btu/Wh. of this appendix. Pss_tc = theoretical comparable single-speed CLFtc = cycling loss factor for each cooling room air conditioner electrical power mode test condition: 1 for test condition input, in watts, in cooling mode for each 1, 0.971 for test condition 2, 0.923 for test condition in Table 1 of this test condition 3, and 0.875 for test appendix, calculated in section 5.4.1 of condition 4. this appendix. tc as explained in section 5.2.1 of this tc as explained in section 5.2.1 of this Where: appendix. appendix. CEERss_tc = theoretical comparable single- 0.75 as defined in section 5.4.2 of this speed room air conditioner combined 5.4.7 Weighted combined energy appendix. energy efficiency ratio, in Btu/Wh, for efficiency ratio. Calculate the weighted 5.4.4 Variable-speed room air each test condition in Table 1 of this combined energy efficiency ratio for the conditioner unit’s combined energy appendix. variable-speed room air conditioner Capacityss_tc = theoretical comparable single- efficiency ratio at each cooling mode speed room air conditioner cooling unit, CEERwt, and theoretical test condition. Calculate the variable- capacity, in Btu/h, for each test comparable single-speed room air speed room air conditioner unit’s condition in Table 1 of this appendix, in conditioner, CEERss_wt, expressed in combined energy efficiency ratio, Btu/h, calculated in section 5.4.1 of this Btu/Wh.

Where: CEERss_wt = theoretical comparable single- CEERtc = variable-speed room air conditioner

CEERwt = variable-speed room air conditioner speed room air conditioner weighted unit’s combined energy efficiency ratio, unit’s weighted combined energy combined energy efficiency ratio, in Btu/ in Btu/Wh, at each test condition in efficiency ratio, in Btu/Wh. Wh. Table 1 of this appendix, calculated in

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section 5.4.4 of this appendix. from the alternate test procedure are Using 10 CFR part 430, subpart B, _ _ CEERss tc adj = theoretical comparable single- unrepresentative of the basic model’s Appendix F. speed room air conditioner adjusted true energy consumption characteristics. combined energy efficiency ratio, in Btu/ Dear Asst. Sec. Simmons: Wh, at each test condition in Table 1 of 10 CFR 430.27(k)(1). Likewise, GEA may request that DOE rescind or modify the GE Appliances, a Haier company this appendix, calculated in section 5.4.6 (GEA) respectfully submits this Petition of this appendix. Interim Waiver Order if GEA discovers for Waiver and Application for Interim Wtc as defined in section 5.2.1 of this an error in the information provided to appendix. DOE as part of its petition, determines Waiver from the Department of Energy tc as explained in section 5.2.1 of this that the interim waiver is no longer (DOE) test procedure for Room Air appendix. needed, or for other appropriate reasons. Conditioners in 10 CFR 430 Subpart B, 5.4.8 Variable-speed room air 10 CFR 430.27(k)(2). Appendix F. GEA’s request is fully conditioner unit’s performance (6) GEA remains obligated to fulfill consistent with the previously granted adjustment factor. Calculate the any certification requirements set forth interim waivers provided to LG variable-speed room air conditioner at 10 CFR part 429. Electronics USA, Inc. ‘‘LG’’ [Case unit’s performance adjustment factor, DOE makes decisions on waivers and Number 2018–003; EERE–2018–BT– Fp. interim waivers for only those basic WAV–0006] 84 FR 20111 and GD Midea models specifically set out in the Air Conditioning Equipment Co. LTD petition, not future models that may be ‘‘Midea’’ [Case Number 2019–004; manufactured by the petitioner. GEA EERE–2019–BT– WAV–0009] 85 FR may submit a new or amended petition 31481. Where: for waiver and request for grant of GEA requests this waiver and interim

Fp = variable-speed room air conditioner interim waiver, as appropriate, for waiver for the same reason as LG and unit’s performance adjustment factor. additional basic models of room air Midea: The current test procedure does CEERwt = variable-speed room air conditioner conditioners. Alternatively, if not accurately measure energy unit’s weighted combined energy appropriate, GEA may request that DOE consumption for room air conditioners efficiency ratio, in Btu/Wh, calculated in extend the scope of a waiver or an with Variable Speed Compressors section 5.4.7 of this appendix. interim waiver to include additional (VSCs). GEA requests expedited CEERss_wt = theoretical comparable single- speed room air conditioner weighted basic models employing the same treatment of this Petition and combined energy efficiency ratio, in Btu/ technology as the basic model(s) set Application as DOE has considered this Wh, calculated in section 5.4.7 of this forth in the original petition consistent exact issue twice before and approved appendix. with 10 CFR 430.27(g). both petitions. (3) Representations. GEA may not Signed in Washington, DC, on September 1. About GE Appliances make representations about the 18, 2020. efficiency of a basic model listed in Alexander N. Fitzsimmons, GEA is a leading, US manufacturer of paragraph (1) for compliance, Deputy Assistant Secretary for Energy home appliances. GEA offers a full suite marketing, or other purposes unless that Efficiency, Energy Efficiency and Renewable of major appliances across seven brands the basic model has been tested in Energy. as well as portable appliances. GEA has accordance with the provisions set forth John T. Schlafer been a participant in and contributor to above and such representations fairly Senior Counsel the DOE’s home appliance energy disclose the results of such testing. Appliance Park—AP2–225 conservation program since its founding (4) This Interim Waiver Order shall Louisville, KY 40225 more than 40 years ago. Indeed, GEA remain in effect according to the T: (502) 452–7603 supports the goal of the appliance provisions of 10 CFR 430.27. F: (502) 452–0347 efficiency program: maximizing energy (5) This Interim Waiver Order is [email protected] savings improvements that offer consumers real economic benefits and issued on the condition that the June 2, 2020 statements, representations, test data, _ _ that do not diminish product and documents provided by GEA are Via Email (AS Waiver Requests@ performance. GEA devotes substantial valid. If GEA makes any modifications ee.doe.gov) resources to the development of new to the controls or configurations of a Mr. Daniel Simmons technologies to increase energy basic model subject to this Interim Assistant Secretary of Energy Efficiency efficiency where they are feasible and Waiver Order, such modifications will and Renewable Energy engineering products to meet the render the waiver invalid with respect U.S. Department of Energy demanding DOE energy efficiency to that basic model, and GEA will either Building Technologies Program, Test requirements. be required to use the current Federal Procedure Waiver 1000 Independence Avenue SW 2. Basic Models for Which a Waiver Is test method or submit a new application Requested for a test procedure waiver. DOE may Mailstop EE–5B, rescind or modify this waiver at any Washington, DC 20585 This Petition for Waiver and time if it determines the factual basis Re: Petition for Waiver & Application Application for Interim Waiver covers underlying the petition for the Interim for Interim Waiver Regarding Test the residential room air conditioner Waiver Order is incorrect, or the results Procedure for Room Air Conditioners, basic models listed below.

Product Class 3 Without reverse cycle, with Product Class 4 Without reverse cycle, with Product Class 5 Without reverse cycle, with louvered sides, and 8,000 to 13,999 Btu/h louvered sides, and 14,000 to 19,999 Btu/h louvered sides, and 20,000 to 27,999 Btu/h

AHNR08AC ...... AHNR14AC ...... AHNR24AC. AHNR10AC ...... AHNR18AC ...... AHTR24AC. AHNR12AC ...... AHTR14AC ...... AKNR24AC. AHTR08AC ...... AHTR18AC. AHTR10AC ...... AKNR14AC.

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Product Class 3 Without reverse cycle, with Product Class 4 Without reverse cycle, with Product Class 5 Without reverse cycle, with louvered sides, and 8,000 to 13,999 Btu/h louvered sides, and 14,000 to 19,999 Btu/h louvered sides, and 20,000 to 27,999 Btu/h

AHTR12AC ...... AKNR18AC. AKNR08AC. AKNR10AC. AKNR12AC.

The basic models will be distributed 5. Manufacturers of All Other Basic approved by DOE, is applicable to the in commerce under the brand name Models With Similar Design basic models’ design characteristics and ‘‘GE’’. Characteristics will evaluate the performance of the To GEA’s knowledge, the only other models in a manner representative of 3. Design Characteristic Constituting the actual energy consumption. Grounds for the Petition models with similar design characteristic are those listed in LG’s b. Failure To Provide and Interim The basic models listed utilize a VSC and Midea’s granted waivers, which are Waiver Will Cause Economic Hardship design. The models automatically adjust cited above. and Competitive Disadvantage compressor speed based on detected 6. The Proposed Alternate Test If DOE does not promptly grant an conditions allowing for more efficient Procedure Has Been Approved Twice interim waiver, GEA will likely be operation under part-load conditions. by DOE unable to incorporate VSCs into its The compressor varies its rotational GEA requests that the alternate test room air conditioners for the 2021 speed based on the heating load in the procedure prescribed by DOE in the LG season. The design and manufacture of room. As the outdoor temperature waiver order at 84 FR 20118–20121 be room air conditioners requires long lead drops, the heat load on the room drops used to measure the energy efficiency times and significant capital as well. The air conditioner detects this for the basic models referenced above. investments for design changes of this changing heat load by comparing room The approach and test procedure nature. Without prompt action by DOE, temperature to a consumer setpoint. As specified in the order cover room air consumers will likely be deprived of the room temperature approaches the conditioners with VSCs and are greater choice for more energy efficient consumer setpoint, the compressor applicable to the referenced basic room air conditioners. Further, the speed slows and thus reduces cooling models’ design. The alternate test failure to quickly grant an interim capacity and input watts. This allows procedure requires testing at four test waiver will provide unreasonable the compressor to run longer periods conditions as specified in Table 1 of the competitive advantage to other without cycling on and off, which LG waiver order. These conditions manufacturers who have already been improves efficiency and results in reflect operation under part-load granted substantively identical waivers. energy savings. This improvement in conditions and more accurately measure 8. Notice to Other Manufacturers energy consumption for the basic efficiency is not captured in the current Pursuant to 10 CFR 430.27(c), upon models. DOE test procedure, which allows for publication of a grant of interim waiver, The test setup instructions for testing at full-load performance only. GEA will notify in writing all known maintaining the compressor speeds at The current DOE test procedure manufacturers of domestically marketed each test condition when testing in disincentivizes manufacturers from basic models of the same product class accordance with this waiver request are bringing this energy saving technology (as specified in 10 CFR 430.32) and of included in Exhibit A. Initial test data to the market. Without a waiver, the other product classes known to the from tests conducted on select basic energy savings of this technology cannot petitioner to use the technology or have models in accordance with this waiver be communicated to consumers and the the characteristic at issue in the waiver. request are included in Exhibit B. The increased cost to manufacture these The notice will include a statement that documents in Exhibits A and B have more efficient units cannot be recouped DOE has published the interim waiver been marked as confidential business by manufacturers. and petition for waiver in the Federal information pursuant to 10 CFR Register and the date the petition for 1004.11. 4. Requirements Sought To Be Waived waiver was published. The notice will The current test procedure in 7. The Application for Interim Waiver also include a statement that DOE will Appendix F requires testing in the full- Should Be Granted receive and consider timely written comments on the petition for waiver. load condition and does not take into a. The Petition for Waiver Will Likely Be Within five working days of publication account the energy savings achieved Successful of the grant of interim waiver, GEA will with the part-load characteristics of This Petition for Waiver is likely to be file with DOE a statement certifying the VSCs. As DOE stated when granting this granted as substantively identical names and addresses of each person to same petition for LG, ‘‘DOE agrees that waivers have already been granted to LG whom a notice of the petition for waiver the current test procedure produces test and Midea. Further, the waiver is was sent. results that are unrepresentative of needed as there is no dispute among actual energy use, and accordingly stakeholders, as seen in the responses to 9. Conclusion energy efficiency, for variable-speed the LG and Midea waiver requests, that GEA respectfully requests that DOE room air conditioners’’. 84 FR 20113. the current test method does not grant this Petition for Waiver and Without a waiver, the basic models accurately measure the energy Application for Interim Waiver from the referenced above cannot be accurately consumption for the basic models and current test procedure for the specified tested and rated for energy the proposed alternate method provides basic models. As DOE has already twice consumption. a means of accurate measurement. The reviewed and approved identical alternate test procedure, previously requests for other manufacturers, GEA

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requests expedited review and approval the proceeding. Any person wishing to a. Type of Application: Temporary of the application for Interim Waiver. become a party must file a notice of variance of lake level elevation. DOE’s approval of GEA’s request will intervention or motion to intervene, as b. Project No.: 2206–092. ensure consumers have the greatest appropriate. Such notices, motions, or c. Date Filed: May 12, 2020 and access to this important, energy-saving protests must be filed on or before the supplemented September 3, 2020. technology. comment date. Anyone filing a motion d. Applicant: Duke Energy Progress, Very truly yours, to intervene, or protest must serve a LLC. e. Name of Project: Yadkin-Pee Dee John T. Schlafer copy of that document on the Petitioner. Hydroelectric Project. Attachments: The Commission encourages electronic submission of protests and f. Location: The project is located on Exhibit A—Test Setup Instructions interventions in lieu of paper using the the Yadkin-Pee Dee River in Anson, Exhibit B—Preliminary Test Data ‘‘eFiling’’ link at http://www.ferc.gov. Montgomery, Richmond, and Stanly counties, North Carolina. Exhibit A—Test Setup Instructions Persons unable to file electronically may g. Filed Pursuant to: Federal Power mail similar pleadings to the Federal [Redacted] Act, 16 U.S.C. 791(a)–825(r). Exhibit B—Preliminary Test Data Energy Regulatory Commission, 888 h. Applicant Contact: Ms. Tami Styer, [Redacted] First Street NE, Washington, DC 20426. 526 South Church Street/EC12Y, Hand delivered submissions in Charlotte, NC 28202, (704) 382–0293. [FR Doc. 2020–20994 Filed 9–22–20; 8:45 am] docketed proceedings should be BILLING CODE 6450–01–P i. FERC Contact: Korede Olagbegi, delivered to Health and Human (202) 502–6268, Korede.Olagbegi@ Services, 12225 Wilkins Avenue, ferc.gov. Rockville, Maryland 20852. DEPARTMENT OF ENERGY j. Deadline for filing comments, In addition to publishing the full text motions to intervene, and protests is 15 Federal Energy Regulatory of this document in the Federal days from the issuance of this notice. Commission Register, the Commission provides all The Commission strongly encourages interested persons an opportunity to electronic filing. Please file comments, [Docket No. RP20–1195–000] view and/or print the contents of this motions to intervene, and protests using document via the internet through the the Commission’s eFiling system at Rockies Express Pipeline LLC; Notice Commission’s Home Page (http:// of Petition for Declaratory Order http://www.ferc.gov/docs-filing/ www.ferc.gov) using the ‘‘eLibrary’’ link. efiling.asp. Commenters can submit Take notice that on September 15, Enter the docket number excluding the brief comments up to 6,000 characters, 2020, pursuant to Rule 207(a)(2) of the last three digits in the docket number without prior registration, using the Federal Energy Regulatory field to access the document. At this eComment system at http:// Commission’s (Commission) Rules of time, the Commission has suspended www.ferc.gov/doc-sfiling/ Practice and Procedure, 18 CFR access to the Commission’s Public ecomment.asp. You must include your 385.207(a)(2) (2020), Rockies Express Reference Room, due to the name and contact information at the end Pipeline LLC (Rockies Express) filed a proclamation declaring a National of your comments. For assistance, petition for a declaratory order seeking Emergency concerning the Novel please contact FERC Online Support at a Commission order holding that if Coronavirus Disease (COVID–19), issued [email protected], (866) Gulfport Energy Corporation (Gulfport) by the President on March 13, 2020. For 208–3676 (toll free), or (202) 502–8659 files for bankruptcy, the Commission assistance, contact the Federal Energy (TTY). In lieu of electronic filing, you will have concurrent jurisdiction, under Regulatory Commission at may send a paper copy. Submissions Sections 4 and 5 of the Natural Gas Act, [email protected] or call sent via the U.S. Postal Service must be 15 U.S.C. 717c and 717d (2018), with toll-free, (886) 208–3676 or TYY, (202) addressed to: Kimberly D. Bose, U.S. Bankruptcy Courts with respect to 502–8659. Secretary, Federal Energy Regulatory Rockies Express’ three negotiated rate, Comment Date: 5:00 p.m. Eastern time Commission, 888 First Street NE, Room anchor shipper, firm transportation on September 21, 2020. 1A, Washington, DC 20426. service agreements with Gulfport Dated: September 16, 2020. Submissions sent via any other carrier (Gulfport TSAs). The petition also Kimberly D. Bose, must be addressed to: Kimberly D. Bose, requests that the Commission exercise Secretary. Secretary, Federal Energy Regulatory that jurisdiction to establish an [FR Doc. 2020–20984 Filed 9–22–20; 8:45 am] Commission, 12225 Wilkins Avenue, adjudicative proceeding to affirm that Rockville, Maryland 20852. The first BILLING CODE 6717–01–P continued performance under the page of any filing should include docket Gulfport TSAs does not seriously harm number P–2206–092. Comments the public interest and that any party DEPARTMENT OF ENERGY emailed to Commission staff are not wishing to abrogate the Gulfport TSAs considered part of the Commission carries the burden of establishing that Federal Energy Regulatory record. the public interest mandates such Commission The Commission’s Rules of Practice abrogation, all as more fully explained require all intervenors filing documents in the petition. [Project No. 2206–092] with the Commission to serve a copy of Any person desiring to intervene or to Duke Energy Progress, LLC; Notice of that document on each person on the protest this filing must file in Application Accepted for Filing and official service list for the project. accordance with Rules 211 and 214 of Soliciting Comments, Motions To Further, if an intervenor files comments the Commission’s Rules of Practice and Intervene, and Protests or documents with the Commission Procedure (18 CFR 385.211, 385.214). relating to the merits of an issue that Protests will be considered by the Take notice that the following may affect the responsibilities of a Commission in determining the hydroelectric application has been filed particular resource agency, they must appropriate action to be taken but will with the Commission and is available also serve a copy of the document on not serve to make protestants parties to for public inspection. that resource agency.

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k. Description of Request: The requirements of Rules of Practice and Filed Date: 9/16/20. applicant requests a temporary variance Procedure, 18 CFR 385.210, .211, .214. Accession Number: 20200916–5032. to maintain the water elevation at the In determining the appropriate action to Comments Due: 5 p.m. ET 9/28/20. Blewett Falls Lake below the current take, the Commission will consider all The filings are accessible in the license limits in order to allow for protests or other comments filed, but Commission’s eLibrary system (https:// spillway modifications to take place at only those who file a motion to elibrary.ferc.gov/idmws/search/ the Blewett Falls Dam. The current intervene in accordance with the fercgensearch.asp) by querying the license generally allows the water level Commission’s Rules may become a docket number. to fluctuate up to 6 feet below full pond, party to the proceeding. Any comments, Any person desiring to intervene or between an elevation of 172.1 and 178.1 motions to intervene, or protests must protest in any of the above proceedings feet National Geodetic Vertical Datum of be received on or before the specified must file in accordance with Rules 211 1929 (NGVD 29). When the flashboards comment date for the particular and 214 of the Commission’s on the spillway need to be replaced, an application. Regulations (18 CFR 385.211 and additional drawdown of 2 feet, to an o. Filing and Service of Responsive 385.214) on or before 5:00 p.m. Eastern elevation of 170.1 feet NGVD 29 is Documents: Any filing must (1) bear in time on the specified comment date. allowed. To complete the work on the all capital letters the title Protests may be considered, but spillway, the applicant is proposing to ‘‘COMMENTS’’, ‘‘MOTION TO intervention is necessary to become a lower the Blewett Falls lake level up to INTERVENE’’, or ‘‘PROTEST’’ as party to the proceeding. an additional 1 foot below this applicable; (2) set forth in the heading eFiling is encouraged. More detailed maximum allowance, or 9 feet below the name of the applicant and the information relating to filing full pond, to an elevation of 168.1 feet project number of the application to requirements, interventions, protests, NGVD 29. The applicant proposes to which the filing responds; (3) furnish service, and qualifying facilities filings maintain this lowered water elevation the name, address, and telephone can be found at: http://www.ferc.gov/ for a period beginning in October 2020 number of the person protesting or docs-filing/efiling/filing-req.pdf. For and lasting for 24 months, and states intervening; and (4) otherwise comply other information, call (866) 208–3676 that maintaining the elevation at this with the requirements of 18 CFR (toll free). For TTY, call (202) 502–8659. level is needed to provide its contractor 385.2001 through 385.2005. All Dated: September 17, 2020. safe access to the spillway crest for the comments, motions to intervene, or duration of the work associated with the protests must set forth their evidentiary Nathaniel J. Davis, Sr., spillway. During this time, the applicant basis. A copy of all other filings in Deputy Secretary. states that the boat ramp at the Pee Dee reference to this application must be [FR Doc. 2020–20976 Filed 9–22–20; 8:45 am] Access area will remain usable, but the accompanied by proof of service on all BILLING CODE 6717–01–P boat ramp at the Grassy Island Access persons listed in the service list area will be closed. prepared by the Commission in this l. Locations of the Applications: The proceeding, in accordance with 18 CFR DEPARTMENT OF ENERGY Commission provides all interested 385.2010. persons an opportunity to view and/or Federal Energy Regulatory print the contents of this document via Dated: September 17, 2020. Commission Kimberly D. Bose, the internet through the Commission’s [Docket No. CP20–460–000] website at http://www.ferc.gov/docs- Secretary. filing/elibrary.asp. Enter the docket [FR Doc. 2020–20988 Filed 9–22–20; 8:45 am] Northern Natural Gas Company; Notice number excluding the last three digits in BILLING CODE 6717–01–P of Availability of the Environmental the docket number field to access the Assessment for the Proposed Clifton document. You may also register online to Palmyra A-Line Abandonment at http://www.ferc.gov/docs-filing/ DEPARTMENT OF ENERGY Project esubscription.asp to be notified via email of new filings and issuances Federal Energy Regulatory The staff of the Federal Energy related to this or other pending projects. Commission Regulatory Commission (FERC or Agencies may obtain copies of the Commission) has prepared an Combined Notice of Filings application directly from the applicant. environmental assessment (EA) for the At this time, the Commission has Take notice that the Commission has Clifton to Palmyra A-Line Abandonment suspended access to the Commission’s received the following Natural Gas Project, proposed by Northern Natural Public Reference Room due to the Pipeline Rate and Refund Report filings: Gas Company (Northern) in the above- proclamation declaring a National Docket Numbers: RP20–1194–000. referenced docket. Northern requests Emergency concerning the Novel Applicants: Texas Eastern authorization to abandon in-place a Coronavirus Disease (COVID–19), issued Transmission, LP. segment of its A-Line pipeline from by the President on March 13, 2020. For Description: Compliance filing [PRO Clifton, Kansas to Palmyra, Nebraska assistance, contact FERC at FORMA] TETLP ASA Settlement and increase compression capacity at its [email protected] or call Compliance Filing—RP19–343–006 to existing Beatrice Compressor Station toll free, (866) 208–3676 or TTY, (202) be effective 12/31/9998. near Beatrice, Nebraska. 502–8659. Filed Date: 9/16/20. The EA assesses the potential m. Individuals desiring to be included Accession Number: 20200916–5000. environmental effects of the on the Commission’s mailing list should Comments Due: 5 p.m. ET 9/28/20. construction and operation of the so indicate by writing to the Secretary Docket Numbers: RP20–1196–000. Clifton to Palmyra A-Line Abandonment of the Commission. Applicants: Transcontinental Gas Project in accordance with the n. Comments, Motions To Intervene, Pipe Line Company. requirements of the National or Protests: Anyone may submit Description: Compliance filing Environmental Policy Act. The FERC comments, a motion to intervene, or a Annual Cash-Out Report Period Ending staff concludes that approval of the protest in accordance with the July, 31, 2020 to be effective N/A. proposed project, with appropriate

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mitigating measures, would not environmental issues for the rehearing or judicial review of the constitute a major federal action Commission to consider when Commission’s decision. At this point in significantly affecting the quality of the addressing the merits of all issues in this proceeding, the timeframe for filing human environment. this proceeding. Any person wishing to timely intervention requests has The proposed Clifton to Palmyra A- comment on the EA may do so. Your expired. Any person seeking to become Line Abandonment Project includes the comments should focus on the EA’s a party to the proceeding must file a following activities: disclosure and discussion of potential motion to intervene out-of-time • Disconnect the existing 24-inch- environmental effects, reasonable pursuant to Rule 214(b)(3) and (d) of the diameter M600A and the existing 20- alternatives, and measures to avoid or Commission’s Rules of Practice and inch-diameter M600J at Northern’s lessen environmental impacts. The more Procedures (18 CFR 385.214(b)(3) and existing Clifton Compressor Station; specific your comments, the more useful (d)) and show good cause why the time • disconnect the existing 24-inch- they will be. To ensure that the limitation should be waived. Motions to diameter M590A and the existing 24- Commission has the opportunity to intervene are more fully described at inch-diameter M600A at Northern’s consider your comments prior to https://www.ferc.gov/ferc-online/ferc- existing Beatrice Compressor Station; making its decision on this project, it is online/how-guides. • disconnect the existing 24-inch- important that we receive your Additional information about the diameter M590A at Northern’s existing comments in Washington, DC on or project is available from the Palmyra Compressor Station; before 5:00 p.m. Eastern Time on • Commission’s Office of External Affairs, abandon in-place 54.3 miles of October 16, 2020. at (866) 208–FERC, or on the FERC existing 24-inch-diameter M600A For your convenience, there are three website (www.ferc.gov) using the mainline in Gage and Jefferson methods you can use to file your eLibrary link. The eLibrary link also Counties, Nebraska, and Washington comments to the Commission. The provides access to the texts of all formal and Clay Counties, Kansas; Commission encourages electronic filing documents issued by the Commission, • abandon in-place 19.9 miles of of comments and has staff available to such as orders, notices, and existing 20-inch-diameter M600J assist you at (866) 208–3676 or rulemakings. mainline in Clay and Washington [email protected]. Please In addition, the Commission offers a Counties, Kansas; carefully follow these instructions so free service called eSubscription which • abandon in-place 41.7 miles of that your comments are properly allows you to keep track of all formal existing 24-inch-diameter M590A in recorded. issuances and submittals in specific Otoe, Lancaster, and Gage Counties, (1) You can file your comments dockets. This can reduce the amount of Nebraska, between Palmyra and electronically using the eComment time you spend researching proceedings Beatrice, Nebraska; and feature on the Commission’s website by automatically providing you with • install a new 15,900-horsepower (www.ferc.gov) under the link to FERC notification of these filings, document turbine driven compressor unit at Online. This is an easy method for summaries, and direct links to the Northern’s existing Beatrice Compressor submitting brief, text-only comments on documents. Go to https://www.ferc.gov/ Station near Beatrice, Nebraska. a project; The Commission mailed a copy of the (2) You can also file your comments ferc-online/overview to register for Notice of Availability to federal, state, electronically using the eFiling feature eSubscription. and local government representatives on the Commission’s website Dated: September 16, 2020. and agencies; elected officials; (www.ferc.gov) under the link to FERC Kimberly D. Bose, environmental and public interest Online. With eFiling, you can provide Secretary. groups; Native American tribes; comments in a variety of formats by [FR Doc. 2020–20986 Filed 9–22–20; 8:45 am] potentially affected landowners and attaching them as a file with your BILLING CODE 6717–01–P other interested individuals and groups; submission. New eFiling users must and newspapers and libraries in the first create an account by clicking on project area. The EA is only available in ‘‘eRegister.’’ You must select the type of DEPARTMENT OF ENERGY electronic format. It may be viewed and filing you are making. If you are filing downloaded from the FERC’s website a comment on a particular project, Federal Energy Regulatory (www.ferc.gov), on the natural gas please select ‘‘Comment on a Filing’’; or Commission environmental documents page (https:// (3) You can file a paper copy of your [Project No. 15031–000] www.ferc.gov/industries-data/natural- comments by mailing them to the gas/environment/environmental- Commission. Be sure to reference the Nevada PSH Energy Storage LLC; documents). In addition, the EA may be project docket number (CP20–460–000) Notice of Preliminary Permit accessed by using the eLibrary link on on your letter. Submissions sent via the Application Accepted for Filing and the FERC’s website. Click on the U.S. Postal Service must be addressed Soliciting Comments, Motions To eLibrary link (https://www.ferc.gov/ferc- to: Kimberly D. Bose, Secretary, Federal Intervene, and Competing Applications online/elibrary/overview), select Energy Regulatory Commission, 888 ‘‘General Search’’ and enter the docket First Street NE, Room 1A, Washington, On April 27, 2020, the Nevada PSH number in the ‘‘Docket Number’’ field, DC 20426. Submissions sent via any Energy Storage LLC, filed an application excluding the last three digits (i.e. other carrier must be addressed to: for a preliminary permit, and CP20–460). Be sure you have selected Kimberly D. Bose, Secretary, Federal resubmitted on June 18, 2020, pursuant an appropriate date range. For Energy Regulatory Commission, 12225 to section 4(f) of the Federal Power Act assistance, please contact FERC Online Wilkins Avenue, Rockville, Maryland (FPA), proposing to study the feasibility Support at [email protected] 20852. of the Ruby Hill Pumped Hydro Energy or toll free at (866) 208–3676, or for Filing environmental comments will Storage Project to be located in Eureka, TTY, contact (202) 502–8659. not give you intervenor status, but you Nevada. The sole purpose of a The EA is not a decision document. do not need intervenor status to have preliminary permit, if issued, is to grant It presents Commission staff’s your comments considered. Only the permit holder priority to file a independent analysis of the intervenors have the right to seek license application during the permit

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term. A preliminary permit does not and competing applications using the Reactive Rate Schedule to be effective 9/ authorize the permit holder to perform Commission’s eFiling system at https:// 14/2020. any land-disturbing activities or ferconline.ferc.gov/FERCOnline.aspx. Filed Date: 9/17/20. otherwise enter upon lands or waters Commenters can submit brief comments Accession Number: 20200917–5040. owned by others without the owners’ up to 6,000 characters, without prior Comments Due: 5 p.m. ET 9/28/20. express permission. registration, using the eComment system Docket Numbers: ER20–2878–003. The proposed project would be at https://ferconline.ferc.gov/ Applicants: Pacific Gas and Electric located at the existing Ruby Hill Mine QuickComment.aspx. You must include Company. an existing open pit mine with the your name and contact information at Description: Tariff Amendment: Third pump storage utilizing and existing the end of your comments. For Amendment to Wholesale Distribution deep open pit mine for the lower assistance, please contact FERC Online Tariff Rate Case 2020 (WDT3), PWRPA reservoir and an earthen dam for the Support at FERCOnlineSupport@ 30 to be effective 11/15/2020. upper reservoir. The project consist of ferc.gov, (866) 208–3676 (toll free), or Filed Date: 9/16/20. the following new facilities: (1) A 3,474- (202) 502–8659 (TTY). In lieu of Accession Number: 20200916–5071. foot-long, 30-meter-high earthen dam electronic filing, you may submit a Comments Due: 5 p.m. ET 10/7/20. (Upper Reservoir) with a surface area of paper copy. Submissions sent via the Docket Numbers: ER20–2878–004. 20 acres; and a total storage capacity of U.S. Postal Service must be addressed 1,941 acre-feet at a normal maximum Applicants: Pacific Gas and Electric to: Kimberly D. Bose, Secretary, Federal Company. surface elevation of 1,231 feet average Energy Regulatory Commission, 888 mean sea level (msl); (2) an existing Description: Tariff Amendment: First Street NE, Room 1A, Washington, Fourth Amendment to Wholesale open pit mine (Lower Reservoir) that DC 20426. Submissions sent via any will not require a dam with a maximum Distribution Tariff Rate Case 2020 other carrier must be addressed to: (WDT3), PWRPA56 to be effective 11/ surface elevation of 1,707 average msl, Kimberly D. Bose, Secretary, Federal and a storage capacity of 2,000 acre-feet; 15/2020. Energy Regulatory Commission, 12225 Filed Date: 9/16/20. (3) two 4,760-foot-long, 10-foot-diameter Wilkins Avenue, Rockville, Maryland steel penstocks; (4) an underground Accession Number: 20200916–5075. 20852. Comments Due: 5 p.m. ET 10/7/20. powerhouse housing four 50-megawatt In addition to publishing the full text pump turbine units at an approximate of this document in the Federal Docket Numbers: ER20–2878–005. elevation of 1,670 msl, the final Register, more information about this Applicants: Pacific Gas and Electric dimension is to be determined; (5) a project, including a copy of the Company. single 15-foot-diameter low pressure application, can be viewed or printed on Description: Tariff Amendment: Fifth draft tube that will extend the ‘‘eLibrary’’ link of Commission’s Amendment to Wholesale Distribution approximately 80 feet from the website at https://www.ferc.gov/ferc- Tariff Rate Case 2020 (WDT3), S Cove to powerhouse to the Lower Reservoir; (6) online/elibrary/overview. Enter the be effective 11/15/2020. the initial fill water would come from docket number (P–15031) in the docket Filed Date: 9/16/20. water purchased from existing water number field to access the document. Accession Number: 20200916–5077. right holders, with an estimated 100- For assistance, contact FERC Online Comments Due: 5 p.m. ET 10/7/20 gallons per minute (gpm) from Eureka Support. Docket Numbers: ER20–2878–006. wastewater treatment plant to be used as Applicants: Pacific Gas and Electric Dated: September 17, 2020. a make-up water source; (7) a 200-mega Company. volt amp substation for converting the Kimberly D. Bose, Description: Tariff Amendment: Sixth 20-kilovolt (kV), generator/motor Secretary. Amendment to Wholesale Distribution voltage to 230- kV, a new 230- kV, [FR Doc. 2020–20981 Filed 9–22–20; 8:45 am] Tariff Rate Case 2020 (WDT3), Western 13,000-foot-long transmission lines that BILLING CODE 6717–01–P to be effective 11/15/2020. connect the new substation to the Filed Date: 9/16/20. existing 230-kV transmission lines at Accession Number: 20200916–5079. Machacek substation, and (8) DEPARTMENT OF ENERGY Comments Due: 5 p.m. ET 10/7/20. appurtenant facilities. The estimated Docket Numbers: ER20–2878–007. annual power generation at the Ruby Federal Energy Regulatory Applicants: Pacific Gas and Electric Hill Pumped Hydro Energy Storage Commission Company. Project would be 730 gigawatt-hours. Applicant Contact: Mr. Michael Combined Notice of Filings #1 Description: Tariff Amendment: Seventh Amendment to Wholesale Werner, Managing Director, Nevada Take notice that the Commission PSH Energy Storage LLC. 7425 East Distribution Tariff Rate Case 2020 received the following electric rate (WDT3), WPA to be effective 11/15/ Columbia Drive, Spokane, Washington filings: 99212, [email protected]. 2020. FERC Contact: Ousmane Sidibe; Docket Numbers: ER18–1247–001. Filed Date: 9/16/20. Phone: (202) 502–6245. Applicants: Entergy Arkansas, Inc. Accession Number: 20200916–5082. Deadline for filing comments, motions Description: Report Filing: EAL Comments Due: 5 p.m. ET 10/7/20. to intervene, competing applications Refund Report (ER18–1247–001) to be Docket Numbers: ER20–2878–008. (without notices of intent), or notices of effective N/A. Applicants: Pacific Gas and Electric intent to file competing applications: 60 Filed Date: 9/16/20. Company. days from the issuance of this notice. Accession Number: 20200916–5056. Description: Tariff Amendment: Competing applications and notices of Comments Due: 5 p.m. ET 10/7/20. Eighth Amendment to Wholesale intent must meet the requirements of 18 Docket Numbers: ER20–2446–001. Distribution Tariff Rate Case 2020 CFR 4.36. Applicants: Bitter Ridge Wind Farm, (WDT3), Western to be effective 11/15/ The Commission strongly encourages LLC. 2020. electronic filing. Please file comments, Description: Tariff Amendment: Filed Date: 9/16/20. motions to intervene, notices of intent, Deficiency Filing for Bitter Ridge Accession Number: 20200916–5084.

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Comments Due: 5 p.m. ET 10/7/20. Accession Number: 20200917–5090. Description: Notice of Self- Docket Numbers: ER20–2898–000. Comments Due: 5 p.m. ET 10/8/20. Certification of Foreign Utility Company Applicants: PJM Interconnection, Docket Numbers: ER20–2905–000. Status of Fort Hills Energy LP, et. al. L.L.C. Applicants: PJM Interconnection, Filed Date: 9/16/20. Description: § 205(d) Rate Filing: L.L.C. Accession Number: 20200916–5065. Original WMPA, Service Agreement No. Description: Tariff Cancellation: Comments Due: 5 p.m. ET 10/7/20. 5762; Queue No. AF2–282 to be Notice of Cancellation of ISAs, SA Nos. The filings are accessible in the effective 8/18/2020. 3933 and 3934; Queue No. R30 to be Commission’s eLibrary system (https:// Filed Date: 9/17/20. effective 10/11/2019. elibrary.ferc.gov/idmws/search/ Accession Number: 20200917–5016. Filed Date: 9/17/20. fercgensearch.asp) by querying the Comments Due: 5 p.m. ET 10/8/20. Accession Number: 20200917–5094. docket number. Docket Numbers: ER20–2899–000. Comments Due: 5 p.m. ET 10/8/20. Any person desiring to intervene or Applicants: PJM Interconnection, Docket Numbers: ER20–2906–000. protest in any of the above proceedings L.L.C. Applicants: PJM Interconnection, must file in accordance with Rules 211 Description: § 205(d) Rate Filing: L.L.C. and 214 of the Commission’s Amendment to WMPA, Service Description: § 205(d) Rate Filing: Regulations (18 CFR 385.211 and Agreement No. 5603; Queue No. AD2– Original WMPA SA No. 5767; Queue 385.214) on or before 5:00 p.m. Eastern 065 to be effective 2/6/2020. No. AF2–283 to be effective 8/17/2020. time on the specified comment date. Filed Date: 9/17/20. Filed Date: 9/17/20. Protests may be considered, but Accession Number: 20200917–5019. Accession Number: 20200917–5096. intervention is necessary to become a Comments Due: 5 p.m. ET 10/8/20. Comments Due: 5 p.m. ET 10/8/20. party to the proceeding. Docket Numbers: ER20–2900–000 Docket Numbers: ER20–2907–000. eFiling is encouraged. More detailed Applicants: PJM Interconnection, Applicants: PJM Interconnection, information relating to filing L.L.C. L.L.C. requirements, interventions, protests, Description: § 205(d) Rate Filing: Description: Tariff Cancellation: service, and qualifying facilities filings Original WMPA SA No. 5768; Queue Notice of Cancellation of WMPA, SA can be found at: http://www.ferc.gov/ No. AF2–284 to be effective 8/18/2020. No. 5281; Queue No. AD1–044 re: docs-filing/efiling/filing-req.pdf. For Filed Date: 9/17/20. withdrawal to be effective 10/13/2020. other information, call (866) 208–3676 Accession Number: 20200917–5021. Filed Date: 9/17/20. (toll free). For TTY, call (202) 502–8659. Comments Due: 5 p.m. ET 10/8/20. Accession Number: 20200917–5098. Dated: September 17, 2020. Docket Numbers: ER20–2901–000. Comments Due: 5 p.m. ET 10/8/20. Nathaniel J. Davis, Sr., Applicants: PJM Interconnection, Docket Numbers: ER20–2908–000. Deputy Secretary. L.L.C. Applicants: Avista Corporation. [FR Doc. 2020–20975 Filed 9–22–20; 8:45 am] Description: § 205(d) Rate Filing: Description: Compliance filing: Avista BILLING CODE 6717–01–P Original WMPA SA No. 5769; Queue Corp OATT Order 845/845A No. AF2–285 to be effective 8/18/2020. Compliance Filing to be effective 10/17/ Filed Date: 9/17/20. 2020. DEPARTMENT OF ENERGY Accession Number: 20200917–5033. Filed Date: 9/17/20. Comments Due: 5 p.m. ET 10/8/20. Accession Number: 20200917–5099. Federal Energy Regulatory Docket Numbers: ER20–2902–000. Comments Due: 5 p.m. ET 10/8/20. Commission Applicants: PJM Interconnection, Docket Numbers: ER20–2909–000. [Project No. 15034–000] L.L.C. Applicants: PJM Interconnection, Description: Tariff Cancellation: L.L.C. Kinetic Power, LLC; Notice of Notice of Cancellation of WMPA SA No. Description: Tariff Cancellation: Preliminary Permit Application 5283; Queue No. AD1–045 to be Notice of Cancellation of ICSA, SA No. Accepted for Filing and Soliciting effective 8/14/2020. 5215; Queue No. AB1–006 to be Comments, Motions To Intervene, and Filed Date: 9/17/20. effective 8/21/2020. Competing Applications Filed Date: 9/17/20. Accession Number: 20200917–5038. On June 1, 2020, the Kinetic Power Accession Number: 20200917–5100. Comments Due: 5 p.m. ET 10/8/20. LLC, filed an application for a Comments Due: 5 p.m. ET 10/8/20. Docket Numbers: ER20–2903–000. preliminary permit, and amended on Applicants: Sierra Pacific Power Docket Numbers: ER20–2910–000. June 25, 2020, pursuant to section 4(f) Company. Applicants: Appalachian Power of the Federal Power Act (FPA), Description: § 205(d) Rate Filing: Company. proposing to study the feasibility of Service Agreement No. 16–00054; Battle Description: § 205(d) Rate Filing: Beclabito Hydroelectric Energy Storage Mountain LGIA 4th Amendment to be Notice of Cancellation AEPSC-Big Center Project to be located about 20 effective 9/18/2020. Sandy Peaker Plant Interconnect/ miles west of Shiprock, New Mexico. Filed Date: 9/17/20. Operation Agrmt to be effective 11/21/ The sole purpose of a preliminary Accession Number: 20200917–5070. 2020. permit, if issued, is to grant the permit Comments Due: 5 p.m. ET 10/8/20. Filed Date: 9/17/20. holder priority to file a license Docket Numbers: ER20–2904–000. Accession Number: 20200917–5103. application during the permit term. A Applicants: PJM Interconnection, Comments Due: 5 p.m. ET 10/8/20. preliminary permit does not authorize L.L.C. Take notice that the Commission the permit holder to perform any land- Description: Tariff Cancellation: received the following foreign utility disturbing activities or otherwise enter Notice of Cancellation of WMPA, SA company status filings: upon lands or waters owned by others No. 5282; Queue No. AD1–046 re: Docket Numbers: FC20–15–000. without the owners’ express permission. withdrawal to be effective 10/13/2020. Applicants: Suncor Energy Inc., Fort The proposed project would be Filed Date: 9/17/20. Hills Energy LP. located entirely on Navajo Nation lands

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extending across the Arizona-New ferc.gov, (866) 208–3676 (toll free), or within 21 days of the date of issuance Mexico State border, consist of the (202) 502–8659 (TTY). In lieu of of the order. following new facilities: (1) A 1,333- electronic filing, you may submit a In addition to publishing the full text foot-long, 542-foot-high earthen rock fill paper copy. Submissions sent via the of this document in the Federal dam (Upper Reservoir) with a surface U.S. Postal Service must be addressed Register, the Commission provides all area of 392 acres; and a total storage to: Kimberly D. Bose, Secretary, Federal interested persons an opportunity to capacity of 35,043 acre-feet at a normal Energy Regulatory Commission, 888 view and/or print the contents of this maximum operating elevation of 8,970 First Street NE, Room 1A, Washington, document via the internet through the feet average mean sea level (msl); (2) a DC 20426. Submissions sent via any Commission’s Home Page (http:// 1,134-foot-long, 166-foot-high earthen other carrier must be addressed to: www.ferc.gov) using the ‘‘eLibrary’’ link. rock fill dam (Lower Reservoir) with a Kimberly D. Bose, Secretary, Federal Enter the docket number excluding the surface area of 534 acres, and a total Energy Regulatory Commission, 12225 last three digits in the docket number storage capacity of 36,209 acre-feet at a Wilkins Avenue, Rockville, Maryland field to access the document. At this normal maximum operating elevation of 20852. time, the Commission has suspended 5,656 feet average msl; (3) two 300-foot- In addition to publishing the full text access to Commission’s Public long, 23-foot-diameter penstocks shafts; of this document in the Federal Reference Room, due to the two 2,841-foot penstock vertical shafts; Register, more information about this proclamation declaring a National six 250-foot draft tube; and one 15,880- project, including a copy of the Emergency concerning the Novel foot horizontal headrace tunnel with 16- application, can be viewed or printed on Coronavirus Disease (COVID–19), issued foot diameter; (4) a 300-foot-long, 75- the ‘‘eLibrary’’ link of Commission’s by the President on March 13, 2020. For foot-wide, 160-foot-high reinforced website at http://www.ferc.gov/docs- assistance, contact FERC at concrete powerhouse housing six 250- filing/elibrary.asp. Enter the docket [email protected] or call megawatt fixed turbines generators; up number (P–15034) in the docket number toll-free, (886) 208–3676 or TYY, (202) to two 150-megawatt turbines with field to access the document. For 502–8659. variable speed machines; (5) four assistance, contact FERC Online The Commission strongly encourages 24,788-foot-long low pressure tailrace Support. electronic filings of comments, protests tunnels; (6) a 59,664-foot-long water and interventions in lieu of paper using source pipeline connecting the water Dated: September 17, 2020. the ‘‘eFile’’ link at http://www.ferc.gov. pumping station located at the San Juan Kimberly D. Bose, In lieu of electronic filing, you may River to the Lower Reservoir for initial Secretary. submit a paper copy. Submissions sent fill and make-up water; (7) two new [FR Doc. 2020–20982 Filed 9–22–20; 8:45 am] via the U.S. Postal Service must be double circuit 500-kilovolt (kV) electric BILLING CODE 6717–01–P addressed to: Kimberly D. Bose, transmission lines that connect the Secretary, Federal Energy Regulatory project switchyard to the propose Commission, 888 First Street NE, Room existing uprates 500-kV transmission DEPARTMENT OF ENERGY 1A, Washington, DC 20426. lines, and (8) appurtenant facilities. The Submissions sent via any other carrier estimated annual power generation at Federal Energy Regulatory must be addressed to: Kimberly D. Bose, the Beclabito Energy Storage Center Commission Secretary, Federal Energy Regulatory Project would be 2,628 gigawatt-hours. Commission, 12225 Wilkins Avenue, Applicant Contact: Mr. Thomas [Docket No. EL20–56–000] Rockville, Maryland 20852. Conroy, Co-Founder, Kinetic Power, Dated: September 17, 2020. PJM Interconnection, L.L.C.; Notice of LLC. Post Office Box 32482, Santa Fe, Nathaniel J. Davis, Sr., NM 87506, tconroy@ Institution of Section 206 Proceeding Deputy Secretary. kineticpowerco.com. and Refund Effective Date FERC Contact: Ousmane Sidibe; [FR Doc. 2020–20977 Filed 9–22–20; 8:45 am] Phone: (202) 502–6245. On September 17, 2020, the BILLING CODE 6717–01–P Deadline for filing comments, motions Commission issued an order in Docket to intervene, competing applications No. EL20–56–000, pursuant to section (without notices of intent), or notices of 206 of the Federal Power Act (FPA), 16 DEPARTMENT OF ENERGY U.S.C. 824e (2018), instituting an intent to file competing applications: 60 Federal Energy Regulatory days from the issuance of this notice. investigation into whether PJM Commission Competing applications and notices of Interconnection, L.L.C.’s Tariff may be intent must meet the requirements of 18 unjust, unreasonable, unduly [Project No. 2444–036] CFR 4.36. The Commission strongly discriminatory, or preferential. PJM encourages electronic filing. Please file Interconnection, L.L.C., 172 FERC Northern States Power Company— comments, motions to intervene, notices ¶ 61,243 (2020). Wisconsin; Notice of Intent to File of intent, and competing applications The refund effective date in Docket License Application, Filing of Pre- using the Commission’s eFiling system No. EL20–56–000, established pursuant Application Document, Approving Use at https://ferconline.ferc.gov/ to section 206(b) of the FPA, will be the of the Traditional Licensing Process FERCOnline.aspx. Commenters can date of publication of this notice in the a. Type of Filing: Notice of Intent to submit brief comments up to 6,000 Federal Register. File License Application and Request to characters, without prior registration, Any interested person desiring to be Use the Traditional Licensing Process. using the eComment system at https:// heard in Docket No. EL20–56–000 must b. Project No.: 2444–036. ferconline.ferc.gov/ file a notice of intervention or motion to c. Date Filed: July 29, 2020. QuickComment.aspx. You must include intervene, as appropriate, with the d. Submitted By: Northern States your name and contact information at Federal Energy Regulatory Commission, Power Company—Wisconsin (Northern the end of your comments. For in accordance with Rule 214 of the States) assistance, please contact FERC Online Commission’s Rules of Practice and e. Name of Project: White River Support at FERCOnlineSupport@ Procedure, 18 CFR 385.214 (2019), Hydroelectric Project.

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f. Location: On the White River, in number, excluding the last three digits in accordance with Rules 211 and 214 Ashland County, Wisconsin. No federal in the docket number field to access the of the Commission’s Rules of Practice lands are occupied by the project works document. The PAD is also available on and Procedure (18 CFR 385.211 and or located within the project boundary. the applicant’s project website at http:// 385.214). Anyone filing a motion to g. Filed Pursuant to: 18 CFR 5.3 of the hydrorelicensing.com. At this time, the intervene or protest must serve a copy Commission’s regulations. Commission has suspended access to of that document on the Applicant. h. Potential Applicant Contact: the Commission’s Public Reference Notice is hereby given that the Matthew J. Miller, Northern States Room, due to the proclamation deadline for filing protests with regard Power Company—Wisconsin, 1414 W. declaring a National Emergency to the applicant’s request for blanket Hamilton Ave., P.O. Box 8, Eau Claire, concerning the Novel Coronavirus authorization, under 18 CFR part 34, of WI 54702; email—matthew.j.miller@ Disease (COVID–19), issued by the future issuances of securities and xcelenergy.com; phone at (715) 737– President on March 13, 2020. For assumptions of liability, is October 7, 1353; or Shawn Puzen, Mead & Hunt, assistance, contact FERC Online 2020. Inc., 1720 Lawrence Drive, De Pere, Support at FERCOnlineSupport@ Wisconsin 54115–3901; email ferc.gov, (866) 208–3676 (toll free), or The Commission encourages [email protected]; phone at (202) 502–8659 (TTY). electronic submission of protests and 920–593–6865. o. The licensee states its unequivocal interventions in lieu of paper, using the i. FERC Contact: Paul Makowski at intent to submit an application for a FERC Online links at http:// (202) 502–6836; or email at subsequent license for Project No. 2444. www.ferc.gov. To facilitate electronic [email protected]. Pursuant to 18 CFR 16.20, each service, persons with internet access j. Northern States filed its request to application for a subsequent license and who will eFile a document and/or be use the Traditional Licensing Process on any competing license applications listed as a contact for an intervenor July 29, 2020, and provided public must be filed with the Commission at must create and validate an notice of its request on the same date. least 24 months prior to the expiration eRegistration account using the In a letter dated September 16, 2020, the of the existing license. All applications eRegistration link. Select the eFiling Director of the Division of Hydropower for license for this project must be filed link to log on and submit the Licensing approved Northern States’ by July 31, 2023. intervention or protests. request to use the Traditional Licensing p. Register online at http:// Persons unable to file electronically Process. www.ferc.gov/docs-filing/ may mail similar pleadings to the k. With this notice, we are initiating esubscription.asp to be notified via Federal Energy Regulatory Commission, informal consultation with the U.S. Fish email of new filing and issuances 888 First Street NE, Washington, DC and Wildlife Service and/or NOAA related to this or other pending projects. 20426. Hand delivered submissions in Fisheries under section 7 of the For assistance, contact FERC Online docketed proceedings should be Endangered Species Act and the joint Support. delivered to Health and Human agency regulations thereunder at 50 Dated: September 16, 2020. Services, 12225 Wilkins Avenue, CFR, Part 402; and NOAA Fisheries Kimberly D. Bose, Rockville, Maryland 20852. under section 305(b) of the Magnuson- Secretary. In addition to publishing the full text Stevens Fishery Conservation and [FR Doc. 2020–20983 Filed 9–22–20; 8:45 am] of this document in the Federal Management Act and implementing BILLING CODE 6717–01–P Register, the Commission provides all regulations at 50 CFR 600.920. We are interested persons an opportunity to also initiating consultation with the view and/or print the contents of this Wisconsin State Historic Preservation DEPARTMENT OF ENERGY document via the internet through the Officer, as required by section 106, Commission’s Home Page (http:// National Historic Preservation Act, and Federal Energy Regulatory ferc.gov) using the ‘‘eLibrary’’ link. the implementing regulations of the Commission Enter the docket number excluding the Advisory Council on Historic [Docket No. ER20–2888–000] last three digits in the docket number Preservation at 36 CFR 800.2. field to access the document. At this l. With this notice, we are designating Townsite Solar, LLC; Supplemental time, the Commission has suspended Northern States as the Commission’s Notice That Initial Market-Based Rate access to the Commission’s Public non-federal representative for carrying Filing Includes Request for Blanket Reference Room, due to the out informal consultation pursuant to Section 204 Authorization proclamation declaring a National section 7 of the Endangered Species Act; Emergency concerning the Novel and consultation pursuant to section This is a supplemental notice in the Coronavirus Disease (COVID–19), issued 106 of the National Historic above-referenced proceeding of by the President on March 13, 2020. For Preservation Act. Townsite Solar, LLC’s application for assistance, contact the Federal Energy m. Northern States filed a Pre- market-based rate authority, with an Regulatory Commission at Application Document (PAD); including accompanying rate tariff, noting that [email protected] or call a proposed process plan and schedule such application includes a request for toll-free, (886) 208–3676 or TYY, (202) with the Commission, pursuant to 18 blanket authorization, under 18 CFR 502–8659. CFR 5.6 of the Commission’s part 34, of future issuances of securities regulations. and assumptions of liability. Dated: September 17, 2020. n. A copy of the PAD may be viewed Any person desiring to intervene or to Nathaniel J. Davis, Sr., and/or printed on the Commission’s protest should file with the Federal Deputy Secretary. website (http://www.ferc.gov), using the Energy Regulatory Commission, 888 [FR Doc. 2020–20974 Filed 9–22–20; 8:45 am] ‘‘eLibrary’’ link. Enter the docket First Street NE, Washington, DC 20426, BILLING CODE 6717–01–P

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DEPARTMENT OF ENERGY (202) 208–8659 (TTY), or send a fax to Commission, 888 First Street NE, (202) 208–2106 with the required Washington, DC 20426. Federal Energy Regulatory accommodations. • Instructions: For detailed Commission For more information about this instructions on submitting comments, [Docket No. AD20–14–000] technical conference, please contact: see the Comment Procedures Section of John Miller (Technical Information), this document. Carbon Pricing in Organized Office of Energy Market Regulation, FOR FURTHER INFORMATION CONTACT: Wholesale Electricity Markets; (202) 502–6016, [email protected] Simon Slobodnik (Technical Supplemental Notice of Technical Anne Marie Hirschberger (Legal Information), Office of Electric Conference Information), Office of the General Reliability, Federal Energy Regulatory Commission, 888 First Street NE, As announced in the Notice 1 of Counsel, (202) 502–8387, [email protected] Washington, DC 20426, (202) 502– Technical Conference issued in this 6707, [email protected] proceeding on June 17, 2020, the Sarah McKinley (Logistical Information), Office of External Kevin Ryan (Legal Information), Office Federal Energy Regulatory Commission of the General Counsel, Federal (Commission) will convene a Affairs, (202) 502–8004, [email protected] Energy Regulatory Commission, 888 Commissioner-led technical conference First Street NE, Washington, DC in the above-referenced proceeding on Dated: September 16, 2020. 20426, (202) 502–6840, Kevin.Ryan@ Wednesday, September 30, 2020, from Kimberly D. Bose, ferc.gov approximately 9:00 a.m. to 6:00 p.m. Secretary. Eastern time. The conference will be 1. In this Notice of Inquiry, the [FR Doc. 2020–20985 Filed 9–22–20; 8:45 am] Commission seeks comments on the held electronically. BILLING CODE 6717–01–P The purpose of this conference is to potential risks to the bulk electric discuss considerations related to state- system posed by using equipment and services produced or provided by adoption of mechanisms to price carbon DEPARTMENT OF ENERGY dioxide emissions, commonly referred entities identified as risks to national to as carbon pricing, in regions with Federal Energy Regulatory security. In addition, the Commission Commission-jurisdictional organized Commission seeks comments on whether the current wholesale electricity markets (i.e., Critical Infrastructure Protection (CIP) regions with regional transmission [Docket No. RM20–19–000] Reliability Standards adequately organizations/independent system mitigate the identified risks. Further, the operators, or RTOs/ISOs). This Equipment and Services Produced or Commission seeks comment on possible conference will focus on carbon pricing Provided by Certain Entities Identified actions the Commission could consider approaches where a state (or group of as Risks to National Security taking to address the identified risks. states) sets an explicit carbon price, 2. On October 18, 2018, the AGENCY: Federal Energy Regulatory Commission approved the first set of whether through a price-based or Commission, Department of Energy. quantity-based approach, and how that supply chain risk management ACTION: 1 carbon price intersects with RTO/ISO- Notice of inquiry. Reliability Standards in Order No. 850. administered markets, addressing both The Commission described the supply SUMMARY: The Federal Energy chain risk management Reliability legal and technical issues. Regulatory Commission (Commission) A revised agenda and list of panelists Standards as ‘‘forward-looking and seeks comments on the potential risks to objective-based and require each for this conference are attached. All the bulk electric system posed by the changes to the agenda since the affected entity to develop and use of equipment and services produced implement a plan that includes security Commission’s August 28, 2020 or provided by certain entities identified Supplemental Notice of Technical controls for supply chain management as risks to national security. In addition, for industrial control system hardware, Conference appear in italics. the Commission seeks comments on There is no fee for attendance, and the software, and services associated with strategies to mitigate any potential risks conference will be webcast for the bulk electric system operations.’’ 2 In posed by such telecommunications public to attend electronically. approving the supply chain risk equipment and services, including but Information on this technical management Reliability Standards, the not limited to potential modifications to conference, including a link to the Commission recognized that ‘‘the global the Critical Infrastructure Protection webcast, will also be posted on this supply chain creates opportunities for Reliability Standards. conference’s event page on the adversaries to directly or indirectly Commission’s website, www.ferc.gov/ DATES: Initial Comments are due affect the management or operations of news-events/events/technical- November 23, 2020, and Reply companies with potential risks to end conference-regarding-carbon-pricing- Comments are due December 22, 2020. users.’’ 3 organized-wholesale-electricity, prior to ADDRESSES: Comments, identified by 3. Since the issuance of Order No. the event. The conference will be docket number, may be filed in the 850, there have been significant transcribed. Transcripts will be following ways: developments in the form of Executive available for a fee from Ace Reporting, • Electronic Filing through http:// (202) 347–3700. www.ferc.gov. Documents created 1 The Commission approved Reliability Standards CIP–013–1 (Cyber Security—Supply chain Risk Commission conferences are electronically using word processing Management), CIP–005–6 (Cyber Security— accessible under section 508 of the software should be filed in native Electronic Security Perimeter(s)), and CIP–010–3 Rehabilitation Act of 1973. For applications or print-to-PDF format and (Cyber Security—Configuration Change accessibility accommodations, please not in a scanned format. Management and Vulnerability Assessments). • Supply Chain Risk Management Reliability send an email to [email protected], Mail/Hand Delivery: Those unable Standards, Order No. 850, 165 FERC ¶ 61,020 call toll-free (866) 208–3372 (voice) or to file electronically may mail or hand- (2018). deliver comments to: Federal Energy 2 Id. P 2. 1 18 CFR 2.1 (2020). Regulatory Commission, Secretary of the 3 Id.

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Orders, legislation, as well as federal Order 13,873 declared a national Procurement Policies Related to agency actions that raise concerns over emergency based on a finding that: National Security (Task Force), chaired 7 the potential risks posed by the use of foreign adversaries are increasingly creating by the Secretary of Energy. The Task equipment and services provided by and exploiting vulnerabilities in information Force is directed to: (1) Develop energy certain entities identified as risks to and communications technology and services infrastructure procurement policies for national security. In particular, Huawei . . . in order to commit malicious cyber- agencies; (2) evaluate methods to Technologies Company (Huawei) and enabled actions, including economic and incorporate national security ZTE Corporation (ZTE) have been industrial espionage against the United States considerations into energy security and and its people. identified as examples of such certain cybersecurity policymaking; (3) consult entities because they provide To address that risk, Executive Order with the Electric Subsector Coordinating communication systems and other 13,873 directs the Secretary of Council (and the oil and natural gas equipment and services that are critical Commerce, in consultation with other sector equivalent) in developing to bulk electric system reliability.4 agency heads, to identify ‘‘any recommendations; and (4) conduct other acquisition, importation, transfer, studies and develop other 4. Therefore, as discussed in this installation, dealing in, or use of any recommendations as appropriate. Notice of Inquiry, the Commission seeks information and communications comments on: (1) The extent of the use technology or service . . . where the B. National Defense Authorization Acts of equipment and services provided by transaction involves any property in 9. Recently, Congress has addressed certain entities identified as risks to which any foreign country or a national the risks posed by the procurement of national security related to bulk electric thereof has any interest.’’ equipment and services from entities system operations; (2) the risks to bulk 6. Executive Order 13,873 directs the identified as risks to national security in electric system reliability and security Secretary of Commerce, in consultation the annual National Defense posed by the use of equipment and with other agency heads, to identify Authorization Acts. services provided by certain entities; (3) such prohibited transactions by 10. The National Defense whether the CIP Reliability Standards determining whether: (1) The Authorization Act for Fiscal Year 2018 adequately mitigate the identified risks; transaction involves information and bars the Department of Defense from (4) what mandatory actions the communications technology or services using ‘‘[t]elecommunications equipment Commission could consider taking to designed, manufactured, or supplied, by [or] services produced [or] provided by mitigate the risk of equipment and persons owned by, controlled by, or Huawei Technologies Company or ZTE services provided by certain entities subject to the jurisdiction or direction of Corporation’’ for certain critical related to bulk electric system a foreign adversary; and (2) the programs, including ballistic missile operations; (5) strategies that entities transaction poses an undue risk of defense and nuclear command, control, have implemented or plan to sabotage to or subversion of the design and communications.8 implement—in addition to compliance or operation of information and 11. In addition, the National Defense with the mandatory CIP Reliability communications technology or services Authorization Act for Fiscal Year 2019 Standards—to mitigate the risks in the United States or poses an undue prohibits the Secretary of Defense from associated with use of equipment and risk of catastrophic effects on the procuring or obtaining, or extending or services provided by certain entities; security of United States critical renewing a contract to procure or and (6) other methods the Commission infrastructure. obtain, equipment, systems, or services may employ to address this matter 7. On May 1, 2020, President Trump that use ‘‘covered telecommunications including working collaboratively with issued Executive Order 13,920 on equipment or services’’ as a substantial industry to raise awareness about the ‘‘Securing the U.S. Bulk-Power System,’’ or essential component of any system, identified risks and assisting with declaring a national emergency based on or as critical technology as part of any mitigating actions (i.e., such as the findings that ‘‘foreign adversaries system. Specifically, section 889(f)(3) of facilitating information sharing). The are increasingly creating and exploiting the 2019 NDAA defines ‘‘covered responses to these questions will vulnerabilities’’ in the Bulk-Power telecommunications equipment or provide the Commission with a better System and that the ‘‘unrestricted services’’ as: understanding of the risks to bulk foreign supply of bulk-power system (1) telecommunications equipment produced electric system reliability posed by electric equipment constitutes an by Huawei or ZTE or any subsidiary or equipment and services provided by unusual and extraordinary threat to the affiliate of such entities; (2) video 6 entities identified as risks to national national security.’’ surveillance and telecommunications security, as well as how the Commission 8. To address these risks, Executive equipment produced by Hytera may best address any identified risks. Order 13,920 prohibits the acquisition, Communications Corporation, Hangzhou importation, transfer, or installation of Hikvision Digital Technology Company, or I. Background any Bulk-Power System electric Dahua Technology Company or any equipment where the transaction: (1) subsidiary or affiliate of such entities; (3) A. Executive Orders on Bulk-Power Involves Bulk-Power System electric telecommunications or video surveillance System Security services provided by such entities or using equipment designed, developed, such equipment; or (4) telecommunications 5. On May 15, 2019, President Trump manufactured, or supplied, by a foreign or video surveillance equipment or services issued Executive Order 13,873 on adversary; and (2) the transaction poses produced or provided by an entity that the ‘‘Securing the Information and an undue risk of sabotage to the Bulk- Secretary of Defense . . . reasonably believes Communications Technology and Power System or poses an undue risk to Services Supply Chain.’’ 5 Executive U.S. critical infrastructure, economy or 7 The Secretary of Energy has until September 28, national security. In addition, Executive 2020, to promulgate the necessary regulations. See Order 13,920 establishes a Task Force Dept. of Energy, Request for Information, 85 FR 4 See e.g. John S. McCain National Defense 41023 (July 8, 2020) (the public comment period is Authorization Act for Fiscal Year 2019, Public Law on Federal Energy Infrastructure open until Aug. 24, 2020). 115–232, 889(f)(3) (2018) (2019 NDAA). 8 National Defense Authorization Act for Fiscal 5 Executive Order No. 13,873, 84 FR 22689 (May 6 Executive Order No. 13,920, 85 FR 26595 (May Year 2018, Public Law 115–91, 1656 (2017) (2018 17, 2019). 4, 2020). NDAA).

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to be an entity owned or controlled by, or D. The 5G Ecosystem: Risks and accurate measurement, collection, otherwise connected to, the . . . People’s Opportunities for the Department of processing of bulk electric system status Republic of .9 Defense and information exchange among C. Federal Communication Commission 14. A report by the Defense control centers makes it necessary for the Commission to understand the risk Orders on Communications Supply Innovation Board, titled ‘‘The 5G to bulk electric system reliability posed Chain Ecosystem: Risks and Opportunities for DoD,’’ highlights the threats posed by by the use of equipment and services 12. On June 30, 2020, the Federal China and other nation-state provided by Huawei, ZTE, and other Communications Commission (FCC) adversaries.11 The report notes that entities identified as risks to national issued two orders designating both ‘‘evidence of backdoors or security security. Huawei and ZTE as covered entities that vulnerabilities have been discovered in 17. There are many manufacturers of are prohibited from receiving Universal a variety of devices globally’’ and that networking and telecommunications Service Fund moneys to support the many of those vulnerabilities ‘‘seem to equipment, but Huawei, ZTE, and their purchase of any equipment or services subsidiaries are gaining substantial be related to requirements from the 15 provided by a company posing a Chinese intelligence community shares of the market globally. A national security threat to the integrity pressuring companies to exfiltrate portion of this exposure to Huawei and of communications networks or the information.’’ 12 The report also ZTE stems from embedded Huawei or communications supply chain.10 The highlights the need for the Department ZTE components in equipment FCC Orders determined that Huawei of Defense to ‘‘consider options for produced by unaffiliated vendors. The and ZTE pose a national security threat defending against a compromised probability that electric utilities now to the integrity of communications supply chain, where Chinese use a significant amount of networks and the communications semiconductor components and telecommunications equipment with supply chain due to their close ties to chipsets are embedded across multiple embedded components from Huawei or the Chinese government. The FCC found systems.’’ 13 ZTE is greater in consideration of these that Huawei is susceptible to coercion, facts, especially when factoring in II. Discussion both legal and political, presenting components that are branded under a profound risks to the security of affected A. Analysis different vendor’s label. If these obscured, or potentially unlabeled, communications networks. The FCC 15. Recent Executive Orders, also found that Huawei’s close ties to components are present in an electric legislation and federal agency decisions utility’s infrastructure, the same risks the Chinese government, both at the have identified Huawei and ZTE, as level of ownership and at the employee may exist as if the hardware had been well as other entities identified as risks purchased directly from Huawei, ZTE, level, as well as its obligations under to national security, as potential risks to Chinese law, present too great a risk to or one of their subsidiaries. national security. The FCC has gone so 18. In addition, the Commission notes U.S. national security to continue to far as to designate both Huawei and ZTE that Executive Order No. 13,920 on subsidize the use of Huawei equipment as national security threats to the Securing the U.S. Bulk-Power System and services. integrity of communications networks includes a definition for ‘‘bulk-power 13. Likewise, with respect to ZTE, the and the communications supply chain. system electric equipment’’ that covers FCC noted the company’s obligations These actions raise concerns over the a range of electrical equipment under Chinese law to permit Chinese potential risks to bulk electric system commonly used in substations, government entities, including state reliability posed by the use of generating stations, and control intelligence agencies, to demand that equipment and services provided by rooms.16 Huawei or ZTE equipment or private communications sector entities Huawei, ZTE, and other entities components that fall within these cooperate with governmental requests, identified as risks to national security. categories may also raise concerns over including revealing customer 16. The Commission has previously the potential risks to bulk electric information and network traffic noted that responsible entities such as system reliability posed by their use. information. The FCC also found that reliability coordinators, balancing security risks and vulnerabilities in authorities, and transmission operators B. Request for Comments ZTE’s equipment pose a threat to the must be capable of receiving and storing 19. The Commission seeks comment integrity of communications networks a variety of sensitive bulk electric on the potential risk to bulk electric and the communications supply chain. system data from interconnected entities system reliability posed by the use of The FCC, furthermore, identified in order to adequately perform their equipment and services provided by various reports that identify a wide reliability functions.14 The critical role entities identified in section 889(f)(3) of range of vulnerabilities and played by communications networks in the 2019 NDAA (Covered Companies).17 cybersecurity risks found in ZTE maintaining bulk electric system 20. Below, we pose questions that equipment, which have led to an reliability by, among other things, commenters should address in their increase in restrictions placed upon its helping to maintain situational submissions. However, commenters availability in the U.S. market. awareness and reliable bulk electric need not address every topic or answer system operations through timely and every question identified below. Please 9 John S. McCain National Defense Authorization Act for Fiscal Year 2019, Public Law 115–232, 11 The 5G Ecosystem: Risks and Opportunities for 15 See, e.g., Investigative Report on the U.S. 889(f)(3) (2018) (2019 NDAA). DoD, Defense Innovation Board (Apr. 3, 2019), National Security Issues Posed by Chinese 10 https://media.defense.gov/2019/Apr/03/ Telecommunications Companies Huawei and ZTE, Protecting Against National Security Threats to _ _ _ the Communications Supply Chain Through FCC 2002109302/-1/-1/0/DIB 5G STUDY 04.03.19.PDF. 112th Cong., at 2 (Oct. 8, 2012) (finding ‘‘Chinese Programs—Huawei Designation, Docket No. 19– 12 Id. at 25. telecommunications firms, such as Huawei and 351, Order (Jun. 30, 2020); Protecting Against 13 Id. at 29. ZTE, are rapidly becoming dominant global players National Security Threats to the Communications 14 See Revised Critical Infrastructure Protection in the telecommunications market’’). Supply Chain Through FCC Programs—ZTE Reliability Standards, Order No. 822, 154 FERC 16 Executive Order No. 13,920 at section 4(b), 85 Designation, PS Docket No. 19–352, Order (Jun. 30, ¶ 61,037, at P 54, order denying reh’g, Order No. FR 26595 (May 4, 2020). 2020). 822–A, 156 FERC ¶ 61,052 (2016). 17 See supra P 11.

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do not include confidential or a. Which requirements of the CIP an original of their comments to: proprietary information, CEII, or other Reliability Standards, including Federal Energy Regulatory Commission, sensitive or classified information in complementary requirements across the CIP Secretary of the Commission, 888 First Reliability Standards, require entities to take your responses. actions that detect and mitigate the risks Street NE, Washington, DC 20426. Q1. To what extent is the equipment associated with the use of equipment and 24. All comments will be placed in (including components) and services services provided by Covered Companies? the Commission’s public files and may provided by Covered Companies used in the b. What modifications to the CIP Standards be viewed, printed, or downloaded operation of the bulk electric system? would minimize risks associated with remotely as described in the Document a. What methods could be used to ascertain equipment and services provided by the Availability section below. Commenters the extent to which equipment and services Covered Companies? on this proposal are not required to provided by Covered Companies is used in Q4. Describe any strategies, in addition to serve copies of their comments on other the operation of the bulk electric system? compliance with the CIP Reliability b. Describe any potential complications to Standards, entities have implemented or plan commenters. system operations that may result from to implement to mitigate the risks associated IV. Document Availability implementing such methods (e.g., need to with use of equipment and services provided shut down certain activities to perform by Covered Companies. 25. In addition to publishing the full testing). Q5. What other methods could the text of this document in the Federal Q2. Describe the risks to bulk electric Commission employ outside the CIP Register, the Commission provides all system reliability and security posed by the Reliability Standards, whether through interested persons an opportunity to use of equipment and services provided by regulatory action or through voluntary view and/or print the contents of this Covered Companies? collaboration with industry and government, a. Describe the range of potential security to further address the risks to bulk electric document via the internet through the impacts to bulk electric system reliability system reliability and security posed by the Commission’s Home Page (http:// that could occur if a responsible entity uses use of equipment and services provided by www.ferc.gov) and in the Commission’s the equipment and services provided by the Covered Companies? For example, raising Public Reference Room during normal Covered Companies within its real-time awareness about the risks identified in business hours (8:30 a.m. to 5:00 p.m. operations infrastructure and the equipment response to the previous questions, eastern time) at 888 First Street NE, was compromised. identifying potential solutions, and assisting Room 2A, Washington, DC 20426. b. If equipment and services provided by with mitigating actions (including the Covered Companies is installed in a facilitating information sharing)? 26. From the Commission’s Home responsible entity’s real-time operations a. Describe how your organization is Page on the internet, this information is infrastructure, what controls are in place to informed of the risks to bulk electric system available on eLibrary. The full text of prevent or detect compromise? What controls reliability and security posed by the use of this document is available on eLibrary are in place to mitigate the potential effects equipment and services provided by Covered in PDF and Microsoft Word format for of compromise? Companies and what could be done to viewing, printing, and/or downloading. c. Describe the range of potential security improve this process. To access this document in eLibrary, impacts to bulk electric system reliability b. What actions has your organization type the docket number excluding the from a compromise of a responsible entity’s taken to address these risks and what systems related to non-real time bulk electric impediments exist to do so (i.e., such as last three digits of this document in the system operations (e.g., operations planning) procurement process requirements)? docket number field. resulting from the use of equipment and c. What challenges does your organization 27. User assistance is available for services provided by Covered Companies. face when identifying, containing or eLibrary and the Commission’s web site d. If equipment and services provided by removing equipment that presents supply during normal business hours from the Covered Companies is installed in a non-real chain threats from Covered Companies? Commission’s Online Support at (202) time environment (e.g. operations planning), III. Comment Procedures 502–6652 (toll free at 1–866–208–3676) what controls are in place to prevent or or email at [email protected], detect compromise? What controls are in 21. The Commission invites interested or the Public Reference Room at (202) place to mitigate the potential effects of persons to submit comments on the 502–8371, TTY (202) 502–8659. Email compromise? matters and issues proposed in this the Public Reference Room at e. Describe the potential range of security notice, including any related matters or [email protected]. impacts to bulk electric system reliability alternative proposals that commenters from a compromise of responsible entity’s By direction of the Commission. systems related to non-bulk electric system may wish to discuss. Comments are due communications and operations (e.g., November 23, 2020, and Reply Issued: September 17, 2020. business networks and systems not directly Comments are due December 22, 2020. Kimberly D. Bose, related to bulk electric system operations) Comments must refer to Docket No. Secretary. resulting from the use of equipment and RM20–19–000, and must include the [FR Doc. 2020–20987 Filed 9–22–20; 8:45 am] services provided by Covered Companies. commenter’s name, the organization BILLING CODE 6717–01–P f. If equipment and services provided by they represent, if applicable, and their Covered Companies is installed in a non-bulk address. electric system communications and 22. The Commission encourages operations environment (e.g., business networks and systems not directly related to comments to be filed electronically via ENVIRONMENTAL PROTECTION bulk electric system operations), what the eFiling link on the Commission’s AGENCY controls are in place to prevent or detect web site at http://www.ferc.gov. The compromise? What controls are in place to Commission accepts most standard [FRL–10013–52–Region 3] mitigate the potential effects of compromise? word-processing formats. Documents What controls are in place to prevent created electronically using word- compromise of business network or systems Clean Water Act: Maryland–City of processing software should be filed in Annapolis and Anne Arundel County from migrating and impacting bulk electric native applications or print-to-PDF system operations? Vessel Sewage No-Discharge Zone for Q3. Discuss the effectiveness of the current format and not in a scanned format. Thirteen Waters—Tentative Affirmative CIP Reliability Standards in mitigating the Commenters filing electronically do not Determination risks posed by equipment and services need to make a paper filing. provided by Covered Companies used in the 23. Commenters that are not able to AGENCY: Environmental Protection operation of the bulk electric system. file comments electronically must send Agency (EPA).

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ACTION: Notice of tentative affirmative dnr.maryland.gov/boating/Documents/ Fishing Creek). While these waterbodies determination. AANDZApplication.pdf. constitute nearly all of the county’s DATES: Comments must be received in waters, a few water bodies have been SUMMARY: Notice is hereby given that an writing to EPA on or before October 23, excluded. The exclusions include two application for a no-discharge zone has 2020. inter-jurisdictional rivers that border the been received from the Secretary of county (the Patapsco River and Patuxent Natural Resources and Secretary of the ADDRESSES: Comments should be sent to River), as well as Curtis Creek, which Environment on behalf of the State of Matthew A. Konfirst, U.S. creates additional inter-jurisdictional Maryland requesting a determination by Environmental Protection Agency— complications for no-discharge zone the Regional Administrator, U.S. Mid-Atlantic Region, 1650 Arch Street, management and is also the most Environmental Protection Agency Mail Code 3WD31, Philadelphia, PA heavily industrialized creek in the (EPA), Region 3, that adequate facilities 19103–2029, or emailed to county with limited recreational boating for the safe and sanitary removal and [email protected]. Only written activity. Maryland’s proposed NDZ for treatment of sewage from all vessels are comments will be considered. the 13 water bodies if approved would reasonably available for thirteen waters FOR FURTHER INFORMATION CONTACT: total 27,379 acres, which would add to located in the City of Annapolis and Matthew A. Konfirst, U.S. the 3,500 acres of the Herring Bay no- Anne Arundel County, Maryland, Environmental Protection Agency discharge zone that was approved in pursuant to the Clean Water Act. The –Region III. Telephone: (215) 814–5801, 2002. (67 FR 1352, January 10, 2002). EPA is requesting comments on this Fax number: (215) 814–5007; email Maryland has requested that should application and whether EPA should address: [email protected]. EPA determine that one (or more) of the finalize its tentative affirmative SUPPLEMENTARY INFORMATION: This 13 creeks, bays, or rivers do not meet determination, or make a negative proposed sewage no-discharge zone the criteria for NDZ designation, such determination, on the proposed includes 13 water bodies wholly within individual part be denied designation of a no-discharge zone for Anne Arundel County (Stoney Creek, independently from the remaining all and/or any of the thirteen waters Rock Creek, Bodkin Creek, the Atlantic waters in the application as a whole. As located in the City of Annapolis and Marina Resort, Magothy and Little described in Maryland’s application, Anne Arundel County as provided in Magothy Rivers, Severn River, South local entities undertook robust public the Clean Water Act. The application is River, West and Rhode Rivers, outreach and held a number of public available upon request from EPA (at the Podickory Creek, Sandy Point/Mezick meetings with boaters and other email address below) or at https:// Ponds, Whitehall Bay, Oyster Cove and stakeholders.

Waterbody Waterbody limits Area (acres)

Stony Creek ...... 39.1723° N, 76.5171° W ...... to ...... 39.1725° N, 76.5126° W ...... 677 Rock Creek ...... 39.1614° N, 76.5004° W ...... to ...... 39.1625° N, 76.4862° W ...... 524 South Shore, Patapsco River ...... 39.1472° N, 76.4588° W ...... to ...... 39.1471° N, 76.4587° W ...... 2 Bodkin Creek ...... 39.1346 ° N, 76.4398° W ...... to ...... 39.1321° N, 76.4378° W ...... 609 Magothy and Little Magothy Rivers .... 39.0597° N, 76.4332° W ...... to ...... 39.0527° N, 76.4382° W ...... 5,879 Podickory Creek ...... 39.0328° N, 76.4040° W ...... to ...... 39.0317° N, 76.4048° W ...... 9 Sandy Point/Mezick Ponds ...... 39.0082° N, 76.4031° W ...... to ...... 39.0081° N, 76.4033° W ...... 47 Whitehall Bay ...... 39.9748° N, 76.4547° W ...... to ...... 38.9871° N, 76.4268° W ...... 1,599 Severn River ...... 39.9748° W, 76.4547° N ...... to ...... 39.9411° N, 76.4502° W ...... 7,497 Oyster Creek ...... 38.9273° N, 76.4628° W ...... to ...... 38.9272° N, 76.4623° W ...... 34 Fishing Creek ...... 38.9147° N, 76.4590° W ...... to ...... 38.9073° N, 76.4600° W ...... 228 South River ...... 38.9073° N, 76.4600° W ...... to ...... 38.4848° N, 76.4908° W ...... 5,904 West and Rhode Rivers ...... 38.4848° N, 76.4908° W ...... to ...... 38.8531° N, 76.4959° W ...... 4,370

Total Area ...... 27,379

The criteria for EPA to make its demonstration by the state that there are impaired for shellfish harvesting due to determination are based on Clean Water adequate vessel sewage pumpout fecal coliform. As such, many shellfish Act 312(f), 33 U.S.C. 1322(f), and EPA’s facilities available to the boating public, beds are restricted or closed. All except implementing regulations found at 40 in lieu of direct discharge of treated White Hall Bay/Meredith Creek are also CFR 140.4. A detailed EPA guidance sewage into the waters described in the impaired for nutrients (nitrogen and document entitled ‘‘Protecting Coastal application. phosphorus) and all except the White Waters from Vessel and Marina In the application, Maryland certified Hall Bay/Meredith Creek and West Discharges: A Guide for State and Local that the waters of the City of Annapolis River for total suspended solids (TSS). Officials, Volume 1. Establishing No- and Anne Arundel County require While marine sanitation devices lower Discharge Areas under section 312 of greater environmental protection than fecal coliform levels, they do not the Clean Water Act (EPA 842–B–94– provided by currently applicable effectively eliminate nutrients or solids. 004, August 1994)’’ provides additional Federal regulations. All Anne Arundel A no-discharge zone is expected to help detail and informs EPA’s analysis. The County tributaries drain into the reduce levels of nutrients, total two primary criteria upon which an Chesapeake Bay. The Magothy River, suspended solids, and fecal coliform affirmative decision is based are: (1) A White Hall Bay/Meredith River, Severn within these impaired waters. certifying statement of need by the state River, South River, Rhode River and Anne Arundel County, Maryland, that the waters described in the West River have been listed on current supports a long history of boating, application require greater or previous Clean Water Act 303(d) lists highlighted by the establishment in environmental protection; and (2) of impaired waters by Maryland as 1845 of the U.S. Naval Academy in the

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county seat and state capital, Annapolis, support and depend on recreational size of vessels and EPA guidance, the along with active centers of boat- crabbing and fishing. estimated number of vessels requiring building, fishing, crabbing, and Maryland provided documentation pumpout facilities in the City of oystering from the earliest settlements indicating that the maximum total Annapolis and Anne Arundel County into the 1980s. In recent decades, vessel population is estimated to be during peak occupancy is 2,924 vessels. commercial vessels have largely given 29,789 vessels, the majority of which are recreational. The most conservative Based on the boater population in the way to so much recreational boating that City of Annapolis and Anne Arundel Annapolis is well known as ‘‘The vessel population estimates provided by Maryland suggest that there are 7,182 County, EPA guidance recommends that Nation’s Sailing Capital.’’ The U.S. vessels less than 16 feet in length, 46 pumpout facilities are needed to Sailboat and Powerboat Shows, held 10,307 vessels between 16 feet and 26 adequately service the vessel annually in Annapolis each October feet in length, 9,072 vessels between 26 population. Maryland certified that since 1970, are the largest in-the-water feet and 40 feet in length, and 3,228 there are 63 marinas offering public boat shows in the United States. The vessels greater than 40 feet in length. pumpout service, including 60 2017 Portbook lists 96 recreational Commercial traffic on these waterways stationary units, nine portable units and boating businesses in Anne Arundel is limited to boat rental companies, three mobile pumpout boats. A list of County; and identifies several more that public charter boats and several small the facilities, phone numbers, locations cruise ships. Based on the number and and hours of operation follows.

Off season Limited Station Location Phone Hours Depth operation overhead Address

AREA: PATAPSCO RIVER (11): Atlantic Marina Patapsco River 410–437–6926 9–5 Daily...... 4′ No ...... NA ...... 2010 Knollview Resort. (mouth). Ave, Pasadena, MD 21122. Blake’s Bar Har- Patapsco River 410–255–5500 8–6 Daily...... 4′ No ...... NA ...... 208 Bar Harbor Rd, bor. Rock Creek. Pasadena, MD 21122. Fairview Marina Patapsco River 410–437–3400 Mon–Fri 8–4; Sat- 5′ No ...... NA ...... 1575 Fairview Rock Creek. Sun 8–3. Beach Rd, Pasa- dena, MD 21122. Hammock Island Patapsco River 410–437–1870 10–4 daily...... 7′ No ...... NA ...... 8083 Ventnor Rd, Marina. Bodkin Creek. Pasadena, MD 21122. Maryland Yacht Patapsco River 410–255–4444 8–4 daily...... 17′ Yes ...... NA ...... 1500 Fairview Club. Rock Creek. Beach Rd, Pasa- dena, MD 21122. Nabbs Creek Patapsco River 410–437–0402 8:30–5 daily...... 6′ No ...... Yes ...... 864 Nabbs Creek Marina. Stoney Creek. Rd, Glen Burnie, MD 21060. Oak Harbor Ma- Patapsco River 410–255–4070 24–7 ...... 15′ No ...... NA ...... 1343 Old Water rina. Rock Creek. Oak Point Rd, Pasadena, MD 21122. Pasadena Yacht Patapsco River 410–255–1771 9–5 daily...... 4′ No ...... NA ...... 8631 Fort Yard. Rock Creek. Smallwood Road Pasadena, MD 21122. Pleasure Cove Patapsco River 410–437–6600 Mon–Thur 9–6; Fri– 8′ Yes ...... NA ...... 1701 Poplar Ridge Marina. Bodkin Creek. Sun 9–8. Rd, Pasadena, MD 21122. Ventnor Marina Patapsco River 410–255–4100 9–5 daily...... 10′ Yes ...... NA ...... 8070 Ventnor Rd, Bodkin Creek. Pasadena, MD 21122. White Rocks Patapsco River 410–255–3800 Mon–Fri 9–3; Sat 14′ No ...... NA ...... 1402 Colony Rd, Marina & Rock Creek. 11–2. Pasadena, MD Boatyard. 21122. AREA: MAGOTHY RIVER (7): Atlantic Marina Magothy River/ 410–360–2500 9–5 daily...... 6′ No ...... NA ...... 487 New York Ave, on the Mag- Grays Creek. Pasadena, MD othy. 21122. Fairwinds Ma- Magothy Marina ..... 410–974–0758 8–5 daily ...... 6′ No ...... NA ...... 1000 Fairwinds Dr, rina. Annapolis, MD 21409. Ferry Point Ma- Magothy River/Mill 410–544–6368 7am–8pm daily...... 14′ Yes ...... NA ...... 1606 Marina Dr, rina. Creek. Trappe, MD 21673. Hamilton Har- Magothy River ...... 410–647–0733 Thurs–Tues 9–5 ..... 12′ No ...... NA ...... 368 North Dr, Se- bour Marina. verna Park, MD 21146. Hinckley Yachts Whitehall Creek ..... 443–951–4380 M–F 8–9; S/S by 11′ Yes ...... NA ...... 1656 Homewood appt.. Landing Road, Annapolis, MD 21409. Magothy Marina Magothy River ...... 410–647–2356 Mon–Thur 8–6, Fri– 16′ No ...... NA ...... 360 Magothy Rd, Sun 8–8. Severna Park, MD 21146.

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Off season Limited Station Location Phone Hours Depth operation overhead Address

Podickory Point Chesapeake Bay ... 410–757–8000 9–5 daily ...... 5′ No ...... NA ...... 2116 Bay Front Yacht Club. Terrace, Annap- olis, MD 21409. Sandy Point Chesapeake Bay ... 410–974–2149 24–7 ...... 6′ No ...... NA ...... 1100 E College State Park. Pkwy, Annapolis, MD 21409. AREA: SEVERN RIVER (17): Annapolis City Severn River Spa 410–268–0660 8–8 daily...... 14′ Upon Request ...... NA ...... 410 Severn Ave, Marina. Creek. Annapolis, MD 21403. Annapolis Land- Severn River Back 410–263–0090 10–5 daily...... 6′ No ...... NA ...... 980 Awald Rd, An- ing Marina. Creek. napolis, MD 21403. Annapolis Mary- Severn River Back 410–269–5219 9–5 daily...... 8′ No ...... NA ...... 16 Chesapeake land Capital Creek. Landing, Annap- Yacht Club. olis, MD 21403. Bert Jabin’s Severn River Back 410–268–9667 8–4:30 daily...... 8′ No ...... NA ...... 7310 Edgewood Yacht Yard. Creek. Rd, Annapolis, MD 21403. Chesapeake Chesapeake Bay ... 410–268–1969 9–5 daily ...... 8′ No ...... NA ...... 2030 Chesapeake Harbour Ma- Harbour Dr E, rina. Annapolis, MD 21403. City of Annap- Severn River Spa 410–320–6852 Mon–Sat 8–4:30.... na na ...... NA ...... na. olis Pumpout Creek. Boat. Eastport Yacht Severn River Back 410–280–9988 8–4 daily...... 8′ No ...... NA ...... 726 2nd St, Annap- Center. Creek. olis, MD 21403. Horn Point Har- Severn River Back 410–263–0550 9–5 daily...... 8′ No ...... NA ...... 105 Eastern Ave, bour Marina. Creek. Annapolis, MD 21403. JPort Marina ..... Severn River Back 410–280–8692 9–5 daily...... 9′ No ...... NA ...... 7074 Bembe Beach Creek. Rd, Annapolis, MD 21403. Little John Ma- Severn River Brew- 410–841–6491 9–5 daily...... 15′ No ...... NA ...... 134 Sherwood For- rina. er Creek. est Road, Sher- wood Forest, MD 21405. Mears Marina ... Severn River Back 410–268–8282 24–7 ...... 10′ No ...... NA ...... 519 Chester Ave, Creek. Annapolis, MD 21403. Pines on the Severn River/Chase 410–370–2948 24–7 ...... 10′ No ...... NA ...... 21012, Arnold, MD Severn. Creek. 21012. Port Annapolis Severn River Back 410–269–1990 8–4:30 daily...... 10′ Yes ...... NA ...... 7074 Bembe Beach Marina. Creek. Rd, Annapolis, MD 21403. Smith’s Marina Severn River Little 410–923–3444 8–8 daily...... 7′ No ...... Yes ...... 529 Ridgley Rd, Round Bay. Crownsville, MD 21032. The President Severn River Spa 410–991–9381 7–7 daily...... 5′ No ...... NA ...... Point. Creek. Watergate Severn River/Back 443–926–1303 24–7 ...... 7′ No ...... NA ...... 655 Americana Dr, Pointe Marina. Creek. Annapolis, MD 21403. Yacht Haven of Severn River Spa 410–267–7654 Mon–Fri 7:30–4:30 11′ No ...... NA ...... 326 First St, Annap- Annapolis. Creek. olis, MD 21403. AREA: SOUTH RIVER (13): Anchor Yacht South River Selby 410–798–1431 8–5 daily...... 5′ No ...... NA ...... 1048 Turkey Point Basin. Bay. Rd, Edgewater, MD 21037. Arundel on the South River/Fishing 443–253–0596 dawn to dusk ...... 4–6′ Yes ...... NA ...... P.O. Box 4665, An- Bay. Creek. napolis. Fishing Creek ... South River Duvall ...... 24–7 ...... 7′ No ...... NA ...... 122 Cherry Lane, Creek. Annapolis 21403. Holiday Point South River Selby 410–956–2208 Mon–Fri 7:30–4; 6′ Yes ...... NA ...... 3774 Beach Dr Blvd Marina. Bay. Sat by appoint- # C, Edgewater, ment. MD 21037. Liberty Marina .. South River ...... 410–266–5633 8–4:30 daily ...... 15′ Yes ...... Yes ...... 64 Old South River Rd, Edgewater, MD 21037. Mayo Ridge Ma- South River 410–798–1952 9–7 daily...... 5′ Yes ...... NA ...... 1293 Mayo Ridge rina. Ramsey Lake. Rd, Edgewater, MD 21037. Norris Marina .... South River 410–798–0275 8–4 daily...... 8′ No ...... Yes ...... 1111 Turkey Point Ramsey Lake. Rd, Edgewater, MD 21037. Oak Grove Ma- South River ...... 410–266–6696 Mon–Fri 10–6; Sat– 9′ No ...... NA ...... 2820 Solomons Is- rine Center. Sun 8–7. land Rd, Edgewater, MD 21037.

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Off season Limited Station Location Phone Hours Depth operation overhead Address

Oyster Harbor ... South River/Oyster 410–280–8999 24–7 ...... 6′ No ...... NA ...... P.O. Box 3174, An- Creek. napolis. Pier 7 Marina .... South River ...... 410–956–2288 9–5 daily ...... 12′ No ...... Yes ...... 48 S River Road South, Edgewater, MD 21037. Pocahontas Ma- South River/Poca- 410–533–8752 24–7 ...... 10′ Yes ...... NA ...... 3365 Pocahontas rina. hontas Creek. Drive Edgewater, MD 21037. Selby Bay Ma- South River Selby 410–798–0232 9–5 daily...... 8′ Yes ...... NA ...... 931 Selby Blvd, rina. Bay. Edgewater, MD 21037. Turkey Point South River 410–798–1369 Tues–Sat 9–5...... 4′ No ...... No ...... 1107 Turkey Point Marina. Ramsey Lake. Rd, Edgewater, MD 21037. AREA: RHODE RIVER (5): Blue Water Ma- Rhode River, Bear 410–798–6968 10–5 daily...... 10′ No ...... NA ...... 1024 Carrs Wharf rina. Neck Creek. Rd, Edgewater, MD 21037. Cadle Creek Rhode River Cadle 410–798–1915 9–5 daily...... 6′ No ...... NA ...... 4159 Cadle Creek Marina. Creek. Rd, Edgewater, MD 21037. Casa Rio Ma- Rhode River Cadle 410–798–4731 Mon–Fri 8–4...... 5′ Yes ...... NA ...... 4079 Cadle Creek rina. Creek. Rd, Mayo, MD 21106. Rhode River Rhode River Back 410–798–1658 8–5 daily...... 9′ No ...... NA ...... 3932 Germantown Marina. Neck Creek. Rd, Edgewater, MD 21037. West/Rhode Rhode River ...... 443–221–5104 Fri–Mon 8–6 ...... No ...... NA ...... 4800 Atwell Road, Riverkeeper or VHF channel Edgewater, MD Pumpout Boat. 71 21037. AREA: WEST RIVER (7): Backyard Boats West River/Parrish 301–261–5115 8–4 daily...... 10′ Yes ...... NA ...... 4819 Woods Wharf Creek. Rd Shady Side, MD 20764. Chesapeake West River ...... 410–867–1500 Wed–Mon 9–4 ...... 8′ No ...... NA ...... 4943 Hine Dr, Yacht Club. Shady Side, MD 20764. Hartge Yacht West River ...... 443–607–6306 Mon–Fri 8–5; Sat & 10′ No ...... NA ...... 4883 Church Ln, Harbor. Sun 9–5. Galesville, MD 20765. Shady Oaks West River ...... 410–267–1808 8–8 daily ...... 5′ No ...... NA ...... 846 Shady Oaks Marina. Rd, West River, MD 20778. West/Rhode West River ...... 443–221–5104 Fri–Mon 8–6 ...... No ...... NA ...... 4800 Atwell Road, River Keeper or VHF channel Edgewater, MD Pump out. 71 21037. West River Fuel West River ...... 410–867–1444 M–Th 9–5 S/S 8–6 8′ No ...... NA ...... 4801 Riverside Dr. Dock. Fri 9–6. Galesville, MD 20765. West River West River ...... 301–672–3473 8–6 daily ...... 7′ Yes ...... NA ...... 4801 Riverside Dr, Yacht Harbor Galesville, MD Condo. 20765. AREA: WHITEHALL BAY (1): John L. Dunning Mill Creek/Mill 410–293–9202 9–5 Mon–Sun...... 12′ Yes ...... NA ...... 140 Hooper High Memorial Pier. Creek Cove. Rd. Annapolis, MD 21403.

The use of these facilities imposes $50.00, with 55 of 63 available facilities proposed no-discharge zone are already minimal cost. As shown in the table charging $5.00 or less, including 15 equipped with holding tank capacity below, pumpout facilities located facilities that are free to use. According and therefore are not expected to within the proposed no-discharge zone to Maryland’s application, the majority experience incremental cost increases charge fees that range from $3.00 to of commercial vessels operating in the associated with a designation.

Proportion of Number of pumpout Fee pumpout facilities facilities (%)

Free ...... 15 24 $3 ...... 1 1.5 $5 ...... 39 62 $10 ...... 5 8 $15 ...... 2 3

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Proportion of Number of pumpout Fee pumpout facilities facilities (%)

$50 ...... 1 1.5

Total ...... 63 100

Based on the information above, EPA received substantive comments within others also may be interested, the hereby makes a tentative affirmative the 30-day comment period that would Agency has not attempted to describe all determination that adequate facilities merit its further review of these the specific entities that may be affected for the safe and sanitary removal and requests, or unless the registrants by this action. treatment of sewage from all vessels are withdrew their requests. The Agency B. How can I get copies of this document reasonably available for all thirteen received one anonymous public and other related information? waters located in the City of Annapolis comment on the notice, but it didn’t and Anne Arundel County. merit its further review of the requests. The docket for this action, identified Dated: September 17, 2020. Further, the registrants did not by docket identification (ID) number Cosmo Servidio, withdraw their requests. Accordingly, EPA–HQ–OPP–2020–0060, is available EPA hereby issues in this notice a at http://www.regulations.gov or at the Regional Administrator, EPA Region III. cancellation order granting the Office of Pesticide Programs Regulatory [FR Doc. 2020–20957 Filed 9–22–20; 8:45 am] requested cancellations and Public Docket (OPP Docket) in the BILLING CODE 6560–50–P amendments to terminate uses. Any Environmental Protection Agency distribution, sale, or use of the products Docket Center (EPA/DC), West William subject to this cancellation order is Jefferson Clinton Bldg., Rm. 3334, 1301 ENVIRONMENTAL PROTECTION permitted only in accordance with the Constitution Ave. NW, Washington, DC AGENCY terms of this order, including any 20460–0001. The Public Reading Room [EPA–HQ–OPP–2020–0060; FRL–10015–01] existing stocks provisions. is open from 8:30 a.m. to 4:30 p.m., DATES: The cancellations and Monday through Friday, excluding legal Cancellation Order for Certain amendments are effective September 23, holidays. The telephone number for the Pesticide Registrations and 2020. Public Reading Room is (202) 566–1744, Amendments To Terminate Uses and the telephone number for the OPP FOR FURTHER INFORMATION CONTACT: AGENCY: Environmental Protection Christopher Green, Information Docket is (703) 305–5805. Agency (EPA). Technology and Resources Management Due to the public health concerns ACTION: Notice. Division (7502P), Office of Pesticide related to COVID–19, the EPA Docket Programs, Environmental Protection Center (EPA/DC) and Reading Room is SUMMARY: This notice announces EPA’s Agency, 1200 Pennsylvania Ave. NW, closed to visitors with limited order for the cancellations and Washington, DC 20460–0001; telephone exceptions. The staff continues to amendments to terminate uses, number: (703) 347–0367; email address: provide remote customer service via voluntarily requested by the registrants [email protected]. email, phone, and webform. For the and accepted by the Agency, pursuant latest status information on EPA/DC SUPPLEMENTARY INFORMATION: to the Federal Insecticide, Fungicide, services and docket access, visit https:// and Rodenticide Act (FIFRA). This I. General Information www.epa.gov/dockets. cancellation order follows a July 30, II. What action is the Agency taking? 2020 Federal Register Notice of Receipt A. Does this action apply to me? of Requests from the registrants listed in This action is directed to the public This notice announces the Table 3 of Unit II to voluntarily cancel in general, and may be of interest to a cancellations and amendments to and amend to terminate uses of these wide range of stakeholders including terminate uses, as requested by the product registrations. In the July 30, environmental, human health, and registrants, of products registered under 2020 notice, EPA indicated that it agricultural advocates; the chemical FIFRA section 3 (7 U.S.C. 136a). These would issue an order implementing the industry; pesticide users; and members registrations are listed in sequence by cancellations and amendments to of the public interested in the sale, registration number in Tables 1, 1A and terminate uses, unless the Agency distribution, or use of pesticides. Since 2 of this unit.

TABLE 1—PRODUCT CANCELLATIONS

Registration Company No. No. Product name Active ingredients

241–409 ...... 241 Oasis Herbicide ...... 2,4–D, 2-ethylhexyl ester & Imazapic. 241–425 ...... 241 Glyphosate Residual RTU ...... Glyphosate-isopropylammonium & Imazapic-ammo- nium. 241–442 ...... 241 Imazapic E 2l Herbicide ...... Imazapic-ammonium. 241–444 ...... 241 ETI 115 01 H ...... Imazapic-ammonium. 264–1069 ...... 264 Trilex Advanced 300 ...... Metalaxyl; Triadimenol & Trifloxystrobin. 352–600 ...... 352 DPX–MX670 MT ...... Atrazine & Dimethenamid. 352–693 ...... 352 Dupont Diuron MUP ...... Diuron. 352–703 ...... 352 Dupont Diuron Technical ...... Diuron. 352–849 ...... 352 Dupont Diuron 80 Dry Herbicide ...... Diuron.

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TABLE 1—PRODUCT CANCELLATIONS—Continued

Registration Company No. No. Product name Active ingredients

464–8132 ...... 464 Aqucar PS 75W MUP Water Treatment Microbiocide Tetrakis (hydroxymethyl) phosphonium sulphate (Alternate Name). (THPS). 881–10 ...... 881 Richo Bock Sanitizing Rinse ...... Oxirane, methyl-, polymer with oxirane, monobutyl ether, compd. with iodine. 1258–1324 ..... 1258 Vantocil NR ...... Poly (iminoimidocarbonyliminoimidocarbonylimino hexamethylene) hydrochloride. 5481–600 ...... 5481 Tri-Scept Herbicide ...... Trifluralin & 3-Quinolinecarboxylic acid, 2-(4,5-dihydro- 4-methyl-4-(1-methylethyl)-5-oxo-1H-imidazol-2-yl)-, monoammonium salt. 8378–17 ...... 8378 25–5–10 Turf Food with Crabgrass Control ...... Trifluralin & Benfluralin. 8378–18 ...... 8378 Shaw’s Premium Turf Food with Crabgrass Control ..... Trifluralin & Benfluralin. 8378–19 ...... 8378 Premium Lawn Food with Crabgrass Control ...... Trifluralin & Benfluralin. 8378–20 ...... 8378 Shaw’s 18–5–9 Turf Food with XL Crabgrass Control .. Trifluralin & Benfluralin. 8378–37 ...... 8378 Shaw’s Turf Food & Crabgrass Control W/Team 142 ... Trifluralin & Benfluralin. 8660–165 ...... 8660 Sta-Green Flower & Garden Weed Preventer ...... Trifluralin. 8660–166 ...... 8660 Flower & Garden Weed Preventer Plus Fertilizer ...... Trifluralin. 9688–133 ...... 9688 Chemsico Green ’N Weed 15–15–15 ...... Trifluralin. 10088–56 ...... 10088 Malathion 57% ...... Malathion (NO INERT USE). 34704–970 ..... 34704 LPI ET 75 ...... Imidacloprid. 34704–1009 ... 34704 Malice 75 WSP ...... Imidacloprid. 39967–69 ...... 39967 Preventol A20 ...... Triadimefon & Tebuconazole. 39967–70 ...... 39967 Preventol A20 Preservative ...... Triadimefon & Tebuconazole. 45385–66 ...... 45385 Chem-Tox Mal 50–OS ...... Malathion (NO INERT USE). 47000–77 ...... 47000 CPI Disinfectant Cleaner 30–3 ...... 1-Decanaminium, N-decyl-N,N-dimethyl-, chloride. 49585–25 ...... 49585 Garden Weeder...... Trifluralin. 62719–614 ..... 62719 Firststep Herbicide Tank Mix ...... Glycine, N-(phosphonomethyl)-, compd. with N- methylmethanamine (1:1) & Florasulam. 65656–7 ...... 65656 Dicamba Acid Technical ...... Dicamba. 66330–274 ..... 66330 Bacillus Cereus BP01 Technical ...... Bacillus cereus strain BP01. 66330–282 ..... 66330 BP01 1.7 ...... Bacillus cereus strain BP01. 66330–291 ..... 66330 PGR–IV/BP Foliar ...... Gibberellic acid & Bacillus cereus strain BP01. 66330–351 ..... 66330 Pix Plus Plant Regulator ...... Mepiquat chloride & Bacillus cereus strain BP01. 67071–74 ...... 67071 Acticide SR 8213 C ...... Zinc pyrithione; 1,2-Benzisothiazolin-3-one & 2-Methyl- 3(2H)-isothiazolone. 67071–97 ...... 67071 Acticide LPN 11 (Alternate) ...... Zinc pyrithione; 1,2-Benzisothiazolin-3-one & 2-Methyl- 3(2H)-isothiazolone. ID–110006 ..... 7969 Liberty 280 SL Herbicide ...... Glufosinate. MI–080003 ..... 62719 Starane Ultra...... Fluroxypyr-meptyl. WA–150001 ... 61842 Lime-Sulfur Solution ...... Lime sulfur.

TABLE 1A—PRODUCT CANCELLATIONS

Registration No. Company No. Product Name Active ingredients

56228–32 ...... 56228 M–44 Cyanide Capsules Arctic Fox ...... Sodium cyanide.

The registrant of the product listed in effective date of December 31, 2019, for Table 1A, of Unit II, has requested the the cancellation.

TABLE 2—PRODUCT REGISTRATION AMENDMENTS TO TERMINATE USES

Registration Company No. No. Product name Active ingredient Uses to be terminated

34704–858 ..... 34704 Sniper ...... Bifenthrin ...... Alfalfa Grown for Seed. 71711–4 ...... 71711 Akari 5SC Miticide/Insecticide ...... Fenpyroximate ...... Cranberry and Highbush Cranberry. 71711–18 ...... 71711 Fenpyroximate Technical ...... Fenpyroximate ...... Cranberry and Highbush Cranberry. 71711–19 ...... 71711 Fujimite 5EC Miticide/Insecticide .... Fenpyroximate ...... Cranberry and Highbush Cranberry. 71711–40 ...... 71711 NAI–2399–2 5EC Miticide/Insecti- Fenpyroximate ...... Cranberry and Highbush Cranberry. cide. 71711–54 ...... 71711 Fenpyroximate 5SC MUP ...... Fenpyroximate ...... Cranberry and Highbush Cranberry. 71711–60 ...... 71711 Fenpyroximate 5EC MUP ...... Fenpyroximate ...... Cranberry and Highbush Cranberry.

Table 3 of this unit includes the Tables 1, 1A and 2 of this unit, in part of the EPA registration numbers of names and addresses of record for all sequence by EPA company number. the products listed in Table 1, Table 1A the registrants of the products listed in This number corresponds to the first and Table 2 of this unit.

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TABLE 3—REGISTRANTS OF CANCELLED AND AMENDED PRODUCTS

EPA company No. Company name and address

241 ...... BASF Corporation, 26 Davis Drive, P.O. Box 13528, Research Triangle Park, NC 27709–3528. 264 ...... Bayer CropScience, LP, 800 N. Lindbergh Blvd., St. Louis, MO 63167. 352 ...... E. I. Du Pont De Nemours and Company, 9330 Zionsville Road, Indianapolis, IN 46268. 464 ...... Nutrition & Biosciences USA 1, LLC., 1652 Larkin Center Drive, 100 Larkin Center, Midland, MI 48642. 881 ...... Richardson Chemical Products Co., P.O. Box 240014, Milwaukee, WI 53224. 1258 ...... Arch Chemicals, Inc., 1200 Bluegrass Lakes Parkway, Alpharetta, GA 30004. 5481 ...... AMVAC Chemical Corporation, 4695 MacArthur Court, Suite 1200, Newport Beach, CA 92660–1706. 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. 8660 ...... United Industries Corp., D/B/A Sylorr Plant Corp., P.O. Box 142642, St. Louis, MO 63114–0642. 9688 ...... Chemsico, A Division of United Industries Corp., P.O. Box 142642, St Louis, MO 63114–0642. 10088 ...... Athea Laboratories, Inc., P.O. Box 240014, Milwaukee, WI 53224. 34704 ...... Loveland Products, Inc., P.O. Box 1286, Greeley, CO 80632–1286. 39967 ...... Lanxess Corporation, 111 RIDC Park West Drive, Pittsburgh, PA 15275–1112. 45385 ...... CTX-Cenol, Inc., 1393 East Highland Rd., Twinsburg, OH 44087. 47000 ...... Chem-Tech, Ltd., 620 Lesher Place, Lansing, MI 48912. 49585 ...... Alljack, Division of United Industries Corp., P.O. Box 142642, St. Louis, MO 63114–0642. 56228 ...... U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 4700 River Road, Unit 149, Riverdale, MD 20737. 61842 ...... Tessenderlo Kerley, Inc., Agent Name: Pyxis Regulatory Consulting, Inc., 4110 136th Street Ct., NW, Gig Harbor, WA 98332. 62719 ...... Dow Agrosciences, LLC, 9330 Zionsville Rd., 308/2E, Indianapolis, IN 46268–1054. 65656 ...... Gilmore Marketing and Development, Agent Name: Biologic Regulatory Consulting, Inc., 10529 Heritage Bay Blvd., Naples, FL 34120. 66330 ...... Arysta Lifescience North America, LLC, Agent Name: UPL NA, Inc., 630 Freedom Business Center, Suite 402, King of Prussia, PA 19406. 67071 ...... Thor GMBH, Agent Name: Thor Specialties, Inc., 50 Waterview Drive, Shelton, CT 06484. 71711 ...... Nichino America, Inc., 4550 Linden Hill Road, Suite 501, Wilmington, DE 19808.

III. Summary of Public Comments stocks set forth in Unit VI will be a the effective date of the cancellation to Received and Agency Response to violation of FIFRA. be December 31, 2019; therefore, the Comments registrant will be permitted to sell and V. What is the Agency’s authority for distribute existing stocks of this product During the public comment period taking this action? provided, EPA received one anonymous until December 31, 2020. Thereafter, the public comment in response to the July Section 6(f)(1) of FIFRA (7 U.S.C. registrant will be prohibited from selling 30, 2020 Federal Register notice 136d(f)(1)) provides that a registrant of or distributing the product in Table 1A announcing the Agency’s receipt of the a pesticide product may at any time of Unit II, except for export consistent requests for voluntary cancellations and request that any of its pesticide with FIFRA section 17 (7 U.S.C. 136o) amendments to terminate uses of the registrations be canceled or amended to or for proper disposal. terminate one or more uses. FIFRA products listed in Tables 1, 1A and 2 of B. For All Other Voluntary further provides that, before acting on Unit II. For this reason, the Agency does Cancellations, Identified in Table 1 of the request, EPA must publish a notice not believe that the comment submitted Unit II during the comment period merits of receipt of any such request in the further review or a denial of the requests Federal Register. Thereafter, following For all other voluntary cancellations, for voluntary cancellation or use the public comment period, the EPA identified in Table 1 of Unit II, the termination. Administrator may approve such a registrants may continue to sell and request. The notice of receipt for this distribute existing stocks of the products IV. Cancellation Order action was published for comment in listed in Table 1 until September 23, Pursuant to FIFRA section 6(f) (7 the Federal Register of July 30, 2020 (85 2021, which is 1 year after publication U.S.C. 136d(f)(1)), EPA hereby approves FR 45877) (FRL–10012–40). The of this cancellation order in the Federal the requested cancellations and comment period closed on August 31, Register. Thereafter, the registrants are amendments to terminate uses 2020. prohibited from selling or distributing identified in Tables 1, 1A and 2 of Unit products listed in Table 1 of Unit II, VI. Provisions for Disposition of II. Accordingly, the Agency hereby except for export in accordance with Existing Stocks orders that the product registrations FIFRA section 17 (7 U.S.C. 136o) or for identified in Tables 1 and 2 of Unit II Existing stocks are those stocks of proper disposal. are canceled and amended to terminate registered pesticide products which are Now that EPA has approved product the affected uses. The effective date of currently in the United States and labels reflecting the requested the cancellations that are subject of this which were packaged, labeled, and amendments to terminate uses, notice is September 23, 2020. The released for shipment prior to the registrants are permitted to sell or effective date of the cancellation in effective date of the action. The existing distribute the products listed in Table 2 Table 1A is December 31, 2019. Any stocks provision for the products subject of Unit II under the previously approved distribution, sale, or use of existing to this order is as follows: labeling until March 23, 2022, a period stocks of the products identified in of 18 months after publication of the A. For Product 56228–32 Tables 1, 1A and 2 of Unit II in a cancellation order in this Federal manner inconsistent with any of the For the 56228–32 listed in Table 1A Register, unless other restrictions have provisions for disposition of existing of Unit II, the registrant has requested been imposed. Thereafter, registrants

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will be prohibited from selling or ACTION: Notice—final determination. York River begins at 37°14′58.34″ N, distributing the products whose labels 76°29′39.17″ W and extends to include the terminated uses identified SUMMARY: On behalf of the 37°15′00.81″ N, 76°28′37.84″ W. From in Table 2 of Unit II, except for export Commonwealth of Virginia (the there it continues north throughout any consistent with FIFRA section 17 or for Commonwealth), the Secretary of the navigable waters including all proper disposal. Virginia Department of Natural tributaries and bays. The delineation of Persons other than the registrant may Resources requested that the Regional the proposed no-discharge zone of sell, distribute, or use existing stocks of Administrator, U.S. Environmental Perrin River from York River begins at the canceled products and products Protection Agency, Region 3 approve a 37°15′47.18″ N, 76°25′20.73″ W and whose labels include the terminated no-discharge zone for Sarah Creek and extends to 37°15′50.63″ N, 76°25′11.84″ uses until supplies are exhausted, Perrin River, Gloucester County, W. From there it continues north provided that such sale, distribution, or Virginia pursuant to the Clean Water throughout any navigable waters use is consistent with the terms of the Act. After review of Virginia’s including all tributaries and bays. previously approved labeling on, or that application, the EPA determined that adequate facilities for the safe and The Commonwealth certified that accompanied, the canceled products there are three stationary and one and terminated uses. sanitary removal and treatment of sewage from all vessels are reasonably mobile pumpout facilities at two Authority: 7 U.S.C. 136 et seq. available for the entirety of Sarah Creek locations along Sarah Creek and one Dated: September 17, 2020. and Perrin River. The application is stationary pumpout facility along the Delores Barber, available upon request from the EPA (at Perrin River. Two of the three locations Director, Information Technology and the email address below) or at https:// also have a method to empty portable Resources Management Division, Office of www.deq.virginia.gov/Programs/Water/ toilets. Furthermore, the Hampton Pesticide Programs. WaterQualityInformationTMDLs/TMDL/ Roads Sanitation District (HRSD) [FR Doc. 2020–21004 Filed 9–22–20; 8:45 am] NoDischargeZoneDesignations.aspx. provides free portable pumpout service in Gloucester County on Fridays, BILLING CODE 6560–50–P DATES: This approval is effective upon Saturdays, and Sundays during summer the date of publication in the Federal months and on Saturdays the rest of the Register. ENVIRONMENTAL PROTECTION year. HRSD prefers to service marinas AGENCY FOR FURTHER INFORMATION CONTACT: but will provide the portable pumpout Matthew A. Konfirst, U.S. at a private residence when requested. [FRL–10013–48–Region 3] Environmental Protection Agency— The Virginia Department of Health Region III. Telephone: (215) 814–5801, Clean Water Act: Virginia—Sarah (VDH) ensures that proper sanitary Fax number: (215) 814–5007; email Creek and Perrin River Vessel Sewage facilities are present at marinas, and address: [email protected]. No-Discharge Zone—Final Affirmative marina facilities are inspected annually Determination SUPPLEMENTARY INFORMATION: As by VDH for compliance with described in the Commonwealth’s regulations. A list of the facilities, AGENCY: U.S. Environmental Protection application, the extent of the proposed phone numbers, locations, and hours of Agency (EPA). no-discharge zone of Sarah Creek from operation follows.

LIST OF FACILITIES WITH PUMPOUTS IN THE PROPOSED NO-DISCHARGE ZONE

Mean low Pumpout facility Operating hours water depth Phone No. Address (ft)

York River Yacht Haven (Sarah 24/7 ...... 8 804–642–2156 8109 Yacht Haven Road Glouces- Creek). ter Point, VA 23062. Dockside Condominiums (Sarah 24/7 April 1–November 15 ...... 6 757–876–1568 Sunset Drive Gloucester Point, VA Creek). 23062. Crown Pointe Marina (Perrin River) The pumpout is available 24/7 5 804–642–6177 9737 Cooks Landing Road Hayes, from March 1–November 30 (so VA 23072. it is available even if the other marina services are closed). Dec 1–Feb 28 pumpout is win- terized.

The Commonwealth provided and 234 vessels greater than 40 feet in boats in the Perrin River have MSDs. documentation indicating that the total length. Commercial traffic on these Additionally, a few small tugboats use vessel population is estimated to be waterways is limited to 24–30 dead rise the Perrin River as a staging area. These 3,563 vessels (2,115 in Sarah Creek and workboats, two large fiberglass fishing vessels likely have MSDs onboard, but 1,448 in Perrin River), the majority of boats, three charter fishing boats, and a also use porta-johns located on the which are recreational. The most few small tugs that work at the oil barges. Of the three charter fishing boats conservative vessel population refinery on the other side of the York that are kept in Sarah Creek and operate estimates provided by the River. Most commercial boats, such as primarily on the York River and Commonwealth of Virginia suggest that local watermen’s boats, generally do not Chesapeake Bay, two have porta-potties, there are 535 vessels less than 16 feet in have marine sanitation devices (MSDs) while the third has an existing holding length, 1,531 vessels between 16 feet installed and do not require a pumpout. tank. Based on the number and size of and 25 feet in length, 1,263 vessels As described in the Commonwealth’s vessels and EPA NDZ guidance between 25 feet and 40 feet in length, application, two large fiberglass fishing (Protecting Coastal Waters from Vessel

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and Marina Discharges: A Guide for reasonably available in both Sarah Creek Reduction Act of 1995 (PRA), invites the State and Local Officials, August 1994), and Perrin River and that the use of general public and other Federal the estimated number of vessels these facilities imposes minimal costs. agencies to take this opportunity to requiring pumpout facilities in Sarah In Sarah Creek, there is no charge to use comment on the renewal of the existing Creek and Perrin River during peak the available pumpout facilities, while information collections described below occupancy is 221. For these vessels, in Perrin River there is a $5.00 fee per (OMB Control No. 3064–0083;–0085;– EPA guidance recommends at least one pumpout for non-slip holders, though 0137;–0148;–0182–0194). pumpout facility each for Sarah Creek the fee is waived with a small purchase DATES: Comments must be submitted on and Perrin River. at the marina store. Depth at low tide at or before November 23, 2020. In the application, the the pumpout facilities is between five ADDRESSES: Interested parties are and eight feet, which is comparable to Commonwealth certified that Sarah invited to submit written comments to the depths at the entrances to Sarah Creek and Perrin River require greater the FDIC by any of the following Creek and Perrin River. Therefore, environmental protection than provided methods: by currently applicable federal vessels requiring greater depths than • https://www.FDIC.gov/regulations/ regulations. Sarah Creek and Perrin provided at the pumpout station would laws/federal. River are tributaries of the York River, have difficulty entering Sarah Creek or • Email: [email protected]. Include which drains into the Chesapeake Bay. Perrin River. the name and number of the collection All or portions of the proposed waters Following publication of the in the subject line of the message. are listed by the Commonwealth on Tentative Affirmative Determination in • Mail: Manny Cabeza (202–898– current or previous Clean Water Act the Federal Register on March 11, 2020, 3767), Regulatory Counsel, MB–3128, section 303(d) lists of impaired waters a 30-day public comment period was Federal Deposit Insurance Corporation, as impaired for shellfish harvesting due opened (85 FR 14195). The EPA did not 550 17th Street NW, Washington, DC to fecal coliform. As such, many receive any comments regarding the EPA’s intent to issue an affirmative 20429. shellfish beds are restricted or closed. • Both waterbodies are also impaired for determination on Virginia’s application Hand Delivery: Comments may be dissolved oxygen and aquatic plants to designate Sarah Creek and Perrin hand-delivered to the guard station at (macrophytes). Establishing a no- River as a no-discharge zone. the rear of the 17th Street building discharge zone will contribute to: (1) Based on the information above, the (located on F Street), on business days Protecting the tidal ecosystem; (2) EPA hereby makes a final affirmative between 7:00 a.m. and 5:00 p.m. restoring the restricted and closed determination that adequate facilities All comments should refer to the shellfish beds in these areas; and (3) for the safe and sanitary removal and relevant OMB control number. A copy preventing further water quality treatment of sewage from all vessels are of the comments may also be submitted degradation and loss of beneficial uses reasonably available for Sarah Creek and to the OMB desk officer for the FDIC: in these tributaries as well as in the Perrin River and its tributaries such that Office of Information and Regulatory York River. the Commonwealth may establish a Affairs, Office of Management and Sarah Creek and Perrin River are used vessel sewage no-discharge zone. Budget, New Executive Office Building, Washington, DC 20503. for a variety of activities, including Cosmo Servidio, FOR FURTHER INFORMATION CONTACT: boating, fishing, shellfish harvesting, Regional Administrator, EPA Region III. oyster gardening, crabbing, water skiing, Manny Cabeza, Regulatory Counsel, [FR Doc. 2020–20956 Filed 9–22–20; 8:45 am] swimming, and more. There are 202–898–3767, [email protected], MB– marinas, private piers, numerous vessel BILLING CODE 6560–50–P 3128, Federal Deposit Insurance anchorages, public and private boat Corporation, 550 17th Street NW, launch facilities, commercial seafood Washington, DC 20429. FEDERAL DEPOSIT INSURANCE docks, and a waterside restaurant. Local SUPPLEMENTARY INFORMATION: watermen are interwoven with the CORPORATION Proposal To Renew the Following unique identity of the Chesapeake Bay, [OMB No. 3064–0083;–0085;–0137;–0148; Currently Approved Collections of influencing its history, culture, and –0182;–0194] Information economy. Furthermore, these waterbodies provide food, spawning Agency Information Collection 1. Title: Recordkeeping and grounds, and/or habitat to Activities: Proposed Collection Disclosure Requirements in Connection approximately 33 threatened, Renewal; Comment Request with Regulation M (Consumer Leasing) endangered, and rare species of plants AGENCY: Federal Deposit Insurance OMB Number: 3064–0083. and animals, including the Atlantic Corporation (FDIC). Form Number: None. sturgeon, loggerhead sea turtle, and the ACTION: Notice and request for comment. Affected Public: State nonmember northern diamond-backed terrapin. banks and state savings associations The EPA made a final determination SUMMARY: The FDIC, as part of its engaging in consumer leasing. that adequate pumpout facilities are obligations under the Paperwork Burden Estimate: SUMMARY OF ANNUAL BURDEN

Estimated Information collection Type of Obligation Estimated Estimated Estimated annual description burden to respond number of frequency time per burden respondents of responses response (hours)

Recordkeeping and Disclosure Requirements in Connec- Record- Mandatory ...... 52 On Occasion..... 0.375 1,950 tion with Regulation M (Consumer Leasing). keeping. Recordkeeping and Disclosure Requirements in Connec- Third-Party Mandatory ...... 52 On Occasion..... 0.375 1,950 tion with Regulation M (Consumer Leasing). Disclosure.

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Total Estimated Annual Burden: about the costs and terms of the leases Connection with the Equal Credit 3,900 hours. for personal property. Lessors are Opportunity Act Regulation B. General Description of Collection: required to retain evidence of OMB Number: 3064–0085. Regulation M (12 CFR 1013), issued by compliance with Regulation M for the Bureau of Consumer Financial twenty-four months. There is no change Form Number: None. Protection, implements the consumer in the methodology or substance of this Affected Public: Insured state leasing provisions of the Truth in information collection. The estimated nonmember banks and state savings Lending Act. Regulation M requires annual burden is unchanged. associations. lessors of personal property to provide 2. Title: Record Keeping, Reporting Burden Estimate: consumers with meaningful disclosures and Disclosure Requirements in SUMMARY OF ANNUAL BURDEN

Estimated Estimated average Estimated total Estimated time Estimated Information collection Type of Obligation to number annual annual per annual burden description burden respond of respondents frequency responses response (hours) of responses

Credit Reporting History (1002.10) ...... Reporting Mandatory ...... 3,309 850 2,812,650 2 minutes ...... 93,755

Total Reporting Burden ...... 93,755

Disclosure for Optional Self-Test (1002.5) .. Third- Voluntary ...... 972 2,500 2,430,000 1 minute...... 40,500 Party Disclo- sure. Notifications (1002.9) ...... Third- Mandatory ...... 3,309 1,715 5,674,935 2 minutes...... 189,165 Party Disclo- sure. Appraisal Report Upon Request Third- Mandatory ...... 3,309 190 628,710 1 minute...... 10,479 (1002.12(a)(1)). Party Disclo- sure. Notice of Right to Appraisal (1002.14(a)(2)) Third- Mandatory ...... 3,309 1,650 5,459,850 1 minute...... 90,998 Party Disclo- sure.

Total Third-Party Disclosure Burden ...... 331,142

Record Retention (Applications, Actions, Record- Mandatory ...... 3,309 360 1,191,240 1 minute...... 19,854 Pre-Screened Solicitations) (1002.12). keeping. Record Retention (Self-Testing) (1002.12) .. Record- Mandatory ...... 972 1 972 2 hours...... 1,944 keeping. Record Retention (Self-Testing Self-Correc- Record- Mandatory ...... 243 1 243 8 hours...... 1,944 tion) (1002.15). keeping.

Total Recordkeeping Burden ...... 23,742

Total Estimated Annual Burden: requirements; establishes guidelines for estimated time per response remain the 448,639 hours. gathering and evaluating credit same. General Description of Collection: information; and requires creditors to 3. Title: Interagency Guidance on Regulation B (12 CFR part 1002) issued give applicants certain written notices. Asset Securitization Activities. by the Consumer Financial Protection There is no change in the method or OMB Number: 3064–0137. Bureau, prohibits creditors from substance of the collection. The overall Form Number: None. discriminating against applicants on any reduction in burden hours is a result of Affected Public: Insured State bases specified by the Equal Credit economic fluctuation. In particular, the Nonmember Banks and State Savings Opportunity Act; imposes, reporting, number of respondents has decreased Associations. record keeping and disclosure while the reporting frequency and the Burden Estimate: SUMMARY OF ANNUAL BURDEN

Estimated Estimated Type of Obligation Estimated Estimated time per annual Information collection description burden to respond number of frequency response burden respondents of responses (hours) (hours)

Documentation of Fair Value ...... Record- Mandatory ...... 20 On Occasion..... 4 80 keeping. Asset Securitization Policies—New Entrant ...... Record- Mandatory ...... 6 On Occasion..... 32 192 keeping. Asset Securitization Policies—Upgrades of Policies ...... Record- Mandatory ...... 2 On Occasion..... 3 6 keeping. MIS Improvements—New Entrant ...... Record- Mandatory ...... 6 On Occasion..... 21 126 keeping. MIS Improvements—Systems Upgrades ...... Record- Mandatory ...... 2 On Occasion..... 5 10 keeping.

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Total Estimated Annual Burden: 414 Bank management uses this information respondents has increased while the hours. as the basis for the safe and sound reporting frequency and the estimated General Description of Collection: The operation of their asset securitization time per response remain the same. Interagency Guidance on Asset activities and to ensure that they 4. Title: Interagency Statement on Securitization Activities informs minimize operational risk in these Sound Practices Concerning Complex bankers and examiners of safe and activities. There is no change in the Structured Finance Transactions. sound practices regarding asset method or substance of the information OMB Number: 3064–0148. Securitization. The information collection. The overall 257-hour Form Number: None. collections contained in the Interagency increase in estimated annual burden Affected Public: Insured state Guidance are needed by institutions to (from 157 hours in 2017 to 414 hours nonmember banks and state savings manage their asset Securitization currently) is the result of economic associations. activities in a safe and sound manner. fluctuation. In particular, the number of Burden Estimate: SUMMARY OF ANNUAL BURDEN

Estimated Estimated Type of Obligation Estimated Estimated time per annual Information collection description burden to respond number of frequency response burden respondents of responses (hours) (hours)

Complex Structured Finance Transactions ...... Record- Mandatory ...... 4 On Occasion..... 25 100 keeping.

Total Estimated Annual Burden: 100 document, and control the full range of The estimated annual burden is hours. credit, market, operational, legal and unchanged. General Description of Collection: The reputation al risks. A financial 5. Title: Retail Foreign Exchange Interagency Statement on Sound institution that engages in complex Transactions. Practices Concerning Complex structured finance transactions should OMB Number: 3064–0182. Structured Finance Transactions maintain a set of formal, written, firm- describes the types of internal controls wide policies and procedures that are Form Number: None. and risk management procedures that designed to allow the institution to Affected Public: Insured state the Agencies believe are particularly identify and assess these risks. There is nonmember banks and state savings effective in assisting financial no change in the methodology or associations. institutions to identify, evaluate, assess, substance of this information collection. Burden Estimate: SUMMARY OF ANNUAL BURDEN

Estimated Estimated Type of Obligation Estimated Frequency of Estimated time per annual Information collection description burden to respond number of response total annual response burden respondents responses (hours) (hours)

Reporting Requirements ...... Reporting Mandatory ...... 1 On Occasion ..... 1 16 16

Total Reporting Burden ...... 16

Third-Party Disclosure Requirements ...... Third- Mandatory ...... 1 On Occasion..... 1 166 166 Party Disclo- sure.

Total Third-Party Disclosure Burden ...... 16 Recordkeeping Requirements ...... Record- Mandatory ...... 1 On Occasion..... 1 1,332 1,332 keeping.

Total Recordkeeping Burden ...... 1,332

Total Estimated Annual Burden: elects to conduct such transactions, intends to manage customer due 1,514 hours. compliance with the information diligence, new product approvals and General Description of Collection: collection is mandatory. haircuts applied to noncash margin. This information collection implements Reporting Requirements—Part 349, Recordkeeping Requirements—Part section 742(c)(2) of the Dodd-Frank Act subpart B requires that, prior to 349 subpart B requires that institutions (7 U.S.C. 2(c)(2)(E) and FDIC regulations initiating a retail foreign exchange engaging in retail foreign exchange governing retail foreign exchange business; a banking institution must transactions keep full, complete and transactions as set forth at 12 CFR part provide the FDIC with a notice systematic records of account, financial 349, subpart B. The regulation allows certifying that the institution has ledger, transaction, memorandum orders banking organizations under FDIC written policies and procedures, and and post execution allocations of supervision to engage in off-exchange risk measurement and management bunched orders. In addition, institutions transactions in foreign currency with systems and controls in place to ensure are required to maintain records retail customers provided they comply that retail foreign exchange transactions regarding their ratio of profitable with various reporting, recordkeeping are conducted in a safe and sound accounts, possible violations of law, and third-party disclosure requirements manner. The institution must also records of noncash margin and monthly specified in the rule. If an institution provide information about how it statements and confirmations issued.

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Disclosure Requirements—The certain endorsements, 6. Title: Covered Financial Company regulation requires that, before opening acknowledgements and signature Asset Purchaser Eligibility Certification. an account that will engage in retail language as well as the timely provision OMB Number: 3064–0194. foreign exchange transactions, a banking of a list of persons qualified to handle institution must obtain from each retail a customer’s request for arbitration. Form Number: 7300/10. foreign exchange customer an There is no change in the method or Affected Public: Any individual or acknowledgement of receipt and substance of the collection. At present entity that is a potential purchaser of understanding of a written disclosure no FDIC-supervised institution is assets from (1) the FDIC as receiver for specified in the rule and of disclosures engaging in activities that would make a Covered Financial Company (CFC); or about the banking institution’s fees and them subject to the information (2) a bridge financial company (BFC) collection requirements. The agency is other charges and of its profitable which requires the approval of the accounts ratio. The institution must also keeping the estimated number of FDIC, as receiver for the predecessor provide monthly statements to each respondents to one (1) as a placeholder CFC and as the sole shareholder of the retail foreign exchange customer and in case an institution elects to engage in BFC (e.g., the BFC’s sale of a significant must send confirmation statements covered activities in the future. There following every transaction. has been no change in the frequency of business line). The customer dispute resolution response or in the estimated number of Burden Estimates: provisions of the regulation require hours required to respond. SUMMARY OF ANNUAL BURDEN

Estimated Estimated Estimated Estimated Type of Obligation time per annual Information collection description burden to respond number of frequency response burden respondents of responses (minutes) (hours)

Covered Financial Company Asset Sales Purchaser Eligi- Reporting ...... Mandatory ...... 10 On Occasion..... 30 5 bility Certification.

Total Estimated Annual Burden: 5 necessary for the proper performance of the Secretary by email at Secretary@ hours. the FDIC’s functions, including whether fmc.gov, or by mail, Federal Maritime General Description of Collection: the information has practical utility; (b) Commission, Washington, DC 20573. Assets held by the FDIC in the course the accuracy of the estimates of the Comments will be most helpful to the of liquidating any covered financial burden of the information collection, Commission if received within 12 days company must not be sold to persons including the validity of the of the date this notice appears in the who contributed to the demise of a methodology and assumptions used; (c) Federal Register. Copies of agreements covered financial company in specified ways to enhance the quality, utility, and are available through the Commission’s ways (e.g., individuals who profited or clarity of the information to be website (www.fmc.gov) or by contacting engaged in wrongdoing at the expense collected; and (d) ways to minimize the the Office of Agreements at (202)-523– of the failed institution, or seriously burden of the collection of information 5793 or [email protected]. mismanaged the failed institution). 12 on respondents, including through the Agreement No.: 201347. CFR part 380 requires prospective use of automated collection techniques Agreement Name: Sallaum/Hyundai purchasers to complete and submit a or other forms of information Glovis Space Charter Agreement. Purchaser Eligibility Certification (PEC) technology. All comments will become Parties: Sallaum Lines Switzerland to the FDIC. The PEC is a self a matter of public record. AS and Hyundai Glovis Co., Ltd. certification by a prospective purchaser Federal Deposit Insurance Corporation. that it does not fall into any of the Filing Party: Wayne Rohde; Cozen Dated at Washington, DC, on September O’Connor. categories of individuals or entities that 17, 2020. are prohibited by statute or regulation Synopsis: The agreement authorizes James P. Sheesley, from purchasing the assets of covered Sallaum to charter space to Hyundai financial companies. The PEC will be Assistant Executive Secretary. Glovis on an ‘‘as needed/as available’’ required in connection with the sale of [FR Doc. 2020–21003 Filed 9–22–20; 8:45 am] basis in the trade from ports in Mexico assets by the FDIC, as receiver for a CFC, BILLING CODE 6714–01–P to ports on the Atlantic and Gulf Coasts or the sale of assets by a BFC which of the United States. requires the approval of the FDIC, as Proposed Effective Date: 9/14/2020. receiver for the predecessor CFC and as FEDERAL MARITIME COMMISSION Location: https://www2.fmc.gov/ the sole shareholder of the BFC. There FMC.Agreements.Web/Public/ is no change in the methodology or Notice of Agreements Filed AgreementHistory/33505. substance of this information collection. The estimated annual burden is The Commission hereby gives notice Dated: September 18, 2020. unchanged. of the filing of the following agreements Rachel Dickon, under the Shipping Act of 1984. Secretary. Request for Comment Interested parties may submit [FR Doc. 2020–20969 Filed 9–22–20; 8:45 am] comments, relevant information, or Comments are invited on: (a) Whether BILLING CODE 6730–02–P the collection of information is documents regarding the agreements to

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DEPARTMENT OF HEALTH AND comment does not include any for public viewing and posted on HUMAN SERVICES confidential information that you or a https://www.regulations.gov. Submit third party may not wish to be posted, both copies to the Dockets Management Food and Drug Administration such as medical information, your or Staff. If you do not wish your name and [Docket No. FDA–2017–N–7012] anyone else’s Social Security number, or contact information to be made publicly confidential business information, such available, you can provide this Agency Information Collection as a manufacturing process. Please note information on the cover sheet and not Activities; Proposed Collection; that if you include your name, contact in the body of your comments and you Comment Request; Use of Public information, or other information that must identify this information as Human Genetic Variant Databases To identifies you in the body of your ‘‘confidential.’’ Any information marked Support Clinical Validity for Genetic comments, that information will be as ‘‘confidential’’ will not be disclosed and Genomic-Based In Vitro posted on https://www.regulations.gov. except in accordance with 21 CFR 10.20 Diagnostics • If you want to submit a comment and other applicable disclosure law. For with confidential information that you more information about FDA’s posting AGENCY: Food and Drug Administration, do not wish to be made available to the of comments to public dockets, see 80 HHS. public, submit the comment as a FR 56469, September 18, 2015, or access ACTION: Notice. written/paper submission and in the the information at: https:// manner detailed (see ‘‘Written/Paper SUMMARY: The Food and Drug www.govinfo.gov/content/pkg/FR-2015- Submissions’’ and ‘‘Instructions’’). Administration (FDA or Agency) is 09-18/pdf/2015-23389.pdf. announcing an opportunity for public Written/Paper Submissions Docket: For access to the docket to comment on the proposed collection of read background documents or the Submit written/paper submissions as electronic and written/paper comments certain information by the Agency. follows: Under the Paperwork Reduction Act of • received, go to https:// Mail/Hand Delivery/Courier (for www.regulations.gov and insert the 1995 (PRA), Federal Agencies are written/paper submissions): Dockets required to publish notice in the docket number, found in brackets in the Management Staff (HFA–305), Food and heading of this document, into the Federal Register concerning each Drug Administration, 5630 Fishers proposed collection of information, ‘‘Search’’ box and follow the prompts Lane, Rm. 1061, Rockville, MD 20852. and/or go to the Dockets Management including each proposed extension of an • For written/paper comments Staff, 5630 Fishers Lane, Rm. 1061, existing collection of information, and submitted to the Dockets Management Rockville, MD 20852, 240–402–7500. to allow 60 days for public comment in Staff, FDA will post your comment, as response to the notice. This notice well as any attachments, except for FOR FURTHER INFORMATION CONTACT: Ila solicits comments on information information submitted, marked and S. Mizrachi, Office of Operations, Food collection associated with FDA identified, as confidential, if submitted and Drug Administration, Three White recognition of public human genetic as detailed in ‘‘Instructions.’’ Flint North, 10A–12M, 11601 variant databases to support clinical Instructions: All submissions received Landsdown St., North Bethesda, MD validity for genetic and genomic-based must include the Docket No. FDA– 20852, 301–796–7726, PRAStaff@ in vitro diagnostics. 2017–N–7012 for ‘‘Agency Information fda.hhs.gov. DATES: Submit either electronic or Collection Activities; Proposed SUPPLEMENTARY INFORMATION: Under the written comments on the collection of Collection; Comment Request; Use of PRA (44 U.S.C. 3501–3521), Federal information by November 23, 2020. Public Human Genetic Variant Agencies must obtain approval from the ADDRESSES: You may submit comments Databases to Support Clinical Validity Office of Management and Budget as follows. Please note that late, for Genetic and Genomic-Based In Vitro (OMB) for each collection of untimely filed comments will not be Diagnostics.’’ Received comments, those information they conduct or sponsor. considered. Electronic comments must filed in a timely manner (see ‘‘Collection of information’’ is defined be submitted on or before November 23, ADDRESSES), will be placed in the docket in 44 U.S.C. 3502(3) and 5 CFR 2020. The https://www.regulations.gov and, except for those submitted as 1320.3(c) and includes Agency requests electronic filing system will accept ‘‘Confidential Submissions,’’ publicly or requirements that members of the comments until 11:59 p.m. Eastern Time viewable at https://www.regulations.gov public submit reports, keep records, or at the end of November 23, 2020. or at the Dockets Management Staff provide information to a third party. Comments received by mail/hand between 9 a.m. and 4 p.m., Monday Section 3506(c)(2)(A) of the PRA (44 delivery/courier (for written/paper through Friday, 240–402–7500. U.S.C. 3506(c)(2)(A)) requires Federal • submissions) will be considered timely Confidential Submissions—To Agencies to provide a 60-day notice in if they are postmarked or the delivery submit a comment with confidential the Federal Register concerning each service acceptance receipt is on or information that you do not wish to be proposed collection of information, before that date. made publicly available, submit your including each proposed extension of an comments only as a written/paper existing collection of information, Electronic Submissions submission. You should submit two before submitting the collection to OMB Submit electronic comments in the copies total. One copy will include the for approval. To comply with this following way: information you claim to be confidential requirement, FDA is publishing notice • Federal eRulemaking Portal: with a heading or cover note that states of the proposed collection of https://www.regulations.gov. Follow the ‘‘THIS DOCUMENT CONTAINS information set forth in this document. instructions for submitting comments. CONFIDENTIAL INFORMATION.’’ The With respect to the following Comments submitted electronically, Agency will review this copy, including collection of information, FDA invites including attachments, to https:// the claimed confidential information, in comments on these topics: (1) Whether www.regulations.gov will be posted to its consideration of comments. The the proposed collection of information the docket unchanged. Because your second copy, which will have the is necessary for the proper performance comment will be made public, you are claimed confidential information of FDA’s functions, including whether solely responsible for ensuring that your redacted/blacked out, will be available the information will have practical

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utility; (2) the accuracy of FDA’s entitled ‘‘Use of Public Human Genetic outlines the process by which estimate of the burden of the proposed Variant Databases To Support Clinical administrators 1 of genetic variant collection of information, including the Validity for Next Generation databases could voluntarily apply to validity of the methodology and Sequencing-Based In Vitro Diagnostics.’’ FDA for recognition, and how FDA assumptions used; (3) ways to enhance The guidance describes one part of would review such applications and the quality, utility, and clarity of the FDA’s PMI effort to create a flexible and periodically reevaluate recognized information to be collected; and (4) adaptive regulatory approach to the databases. The guidance also ways to minimize the burden of the oversight of next generation sequencing recommends that, at the time of collection of information on (NGS)-based tests. The goal of this effort recognition, the database administrator respondents, including through the use is to help ensure patients receive make information regarding policies, of automated collection techniques, accurate and meaningful test results, procedures, and conflicts of interest when appropriate, and other forms of while promoting innovation in test publicly available and accessible on the information technology. development. The guidance describes genetic variant database’s website. how publicly accessible databases of Agency Information Collection Respondents are administrators of human genetic variants can serve as Activities; Proposed Collection; genetic databases. Our estimate of five sources of valid scientific evidence to Comment Request; Use of Public respondents per year is based on the support the clinical validity of Human Genetic Variant Databases To current number of databases that may genotype-phenotype relationships in Support Clinical Validity for Genetic meet FDA recommendations for FDA’s regulatory review of both NGS- and Genomic-Based In Vitro recognition and seek such recognition. based tests and genetic and genomic Diagnostics Based on our experience and the tests based on other technologies. nature of the information, we estimate OMB Control Number 0910–0850— Publicly accessible genetic databases that it will take an average of 80 hours Extension may be useful to support the clinical to complete and submit an application Section 2011 of the 21st Century validity of NGS tests as well as single for recognition. We estimate that Cures Act of 2016 (Pub. L. 114–255) gene or panel tests that use other maintenance of recognition activities encourages the FDA to develop new technology. will take approximately one-fourth of approaches for addressing regulatory The guidance describes FDA’s that time (20 hours) annually. We science issues as part of the Precision considerations in determining whether a estimate that it will take approximately Medicine Initiative (PMI). genetic variant database is a source of 1 hour to post the information on the In the Federal Register of January 17, valid scientific evidence that could website. 2018 (83 FR 2451), FDA announced the support the clinical validity of an NGS- FDA estimates the burden of this availability of a guidance for industry based test. The guidance further collection of information as follows:

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1

Number of Average Activity Number of responses per Total annual burden Total respondents respondent responses per response hours

Application for recognition of genetic database ...... 5 1 5 80 400 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

TABLE 2—ESTIMATED ANNUAL RECORDKEEPING BURDEN 1

Number of Average Activity Number of records per Total annual burden per Total hours recordkeepers recordkeeper records recordkeeping

Maintenance of recognition activities ...... 5 1 5 20 100 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

TABLE 3—ESTIMATED ANNUAL THIRD-PARTY DISCLOSURE BURDEN 1

Number of Number of disclosures Total Average Total Activity respondents per annual burden per hours respondent disclosures disclosure

Public disclosure of policies, procedures, and conflicts of interest ...... 5 1 5 1 5 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

1 FDA acknowledges that many databases may not committee of individuals that oversee the database. genetic variant database administrator is the entity use the term ‘‘administrator’’ or may have a Therefore, for the purpose of this guidance, a or entities that oversee database operations.

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Based on a review of the information clinical testing otherwise necessary to (Docket No. FDA–2020–P–0511), under collection since our last request for gain approval of a new drug application 21 CFR 10.30, requesting that the OMB approval, we have made no (NDA). Agency determine whether adjustments to our burden estimate. The 1984 amendments include what PREXXARTAN (valsartan) oral solution, Dated: September 16, 2020. is now section 505(j)(7) of the Federal 20 mg/5 mL, was withdrawn from sale Food, Drug, and Cosmetic Act (21 U.S.C. Lauren K. Roth, for reasons of safety or effectiveness. 355(j)(7)), which requires FDA to Associate Commissioner for Policy. Although the citizen petition did not publish a list of all approved drugs. address the 80 mg/20 mL strength, that [FR Doc. 2020–20960 Filed 9–22–20; 8:45 am] FDA publishes this list as part of the strength has also been discontinued. On BILLING CODE 4164–01–P ‘‘Approved Drug Products With our own initiative, we have also Therapeutic Equivalence Evaluations,’’ determined whether that strength was which is known generally as the DEPARTMENT OF HEALTH AND withdrawn for safety or effectiveness ‘‘Orange Book.’’ Under FDA regulations, reasons. HUMAN SERVICES drugs are removed from the list if the After considering the citizen petition Food and Drug Administration Agency withdraws or suspends approval of the drug’s NDA or ANDA and reviewing Agency records and [Docket No. FDA–2020–N–1879] for reasons of safety or effectiveness or based on the information we have at this if FDA determines that the listed drug time, FDA has determined under Determination That PREXXARTAN was withdrawn from sale for reasons of § 314.161 that PREXXARTAN (Valsartan) Oral Solution, 20 safety or effectiveness (§ 314.162 (21 (valsartan) oral solution, 20 mg/5 mL Milligrams/5 Milliliters and 80 CFR 314.162)). and 80 mg/20 mL, was not withdrawn Milligrams/20 Milliliters, Was Not A person may petition the Agency to for reasons of safety or effectiveness. Withdrawn From Sale for Reasons of determine, or the Agency may The petitioner has identified no data or Safety or Effectiveness determine on its own initiative, whether other information suggesting that this a listed drug was withdrawn from sale drug product was withdrawn for reasons AGENCY: Food and Drug Administration, of safety or effectiveness. We have HHS. for reasons of safety or effectiveness. This determination may be made at any carefully reviewed our files for records ACTION: Notice. time after the drug has been withdrawn concerning the withdrawal of SUMMARY: The Food and Drug from sale, but must be made prior to PREXXARTAN (valsartan) oral solution, Administration (FDA or Agency) has approving an ANDA that refers to the 20 mg/5 mL and 80 mg/20 mL, from determined that PREXXARTAN listed drug (§ 314.161 (21 CFR 314.161)). sale. We have also independently (valsartan) oral solution, 20 milligrams FDA may not approve an ANDA that evaluated relevant literature and data (mg)/5 milliliters (mL) and 80 mg/20 does not refer to a listed drug. for possible postmarketing adverse mL, was not withdrawn from sale for PREXXARTAN (valsartan) oral events. We have reviewed the available reasons of safety or effectiveness. This solution, 20 mg/5 mL and 80 mg/20 mL, evidence and determined that this drug determination will allow FDA to is the subject of NDA 209139, held by product was not withdrawn from sale Carmel Biosciences, Inc., and initially approve abbreviated new drug for reasons of safety or effectiveness. approved on December 19, 2017. applications (ANDAs) for valsartan oral Accordingly, the Agency will PREXXARTAN is indicated for solution, 20 mg/5 mL and 80 mg/20 mL, hypertension in adults and children 6 continue to list PREXXARTAN if all other legal and regulatory years and older, to lower blood (valsartan) oral solution, 20 mg/5 mL requirements are met. pressure; for heart failure by and 80 mg/20 mL, in the ‘‘Discontinued FOR FURTHER INFORMATION CONTACT: significantly reducing hospitalization Drug Product List’’ section of the Orange Robin Fastenau, Center for Drug for patients who are unable to swallow Book. The ‘‘Discontinued Drug Product Evaluation and Research, Food and valsartan tablets; and for stable left List’’ delineates, among other items, Drug Administration, 10903 New ventricular failure or left ventricular drug products that have been Hampshire Ave., Bldg. 51, Rm. 6236, dysfunction following myocardial discontinued from marketing for reasons Silver Spring, MD 20993–0002, 240– infarction. other than safety or effectiveness. 402–4510, [email protected]. PREXXARTAN (valsartan) oral ANDAs that refer to PREXXARTAN SUPPLEMENTARY INFORMATION: In 1984, solution, 20 mg/5 mL and 80 mg/20 mL, (valsartan) oral solution, 20 mg/5 mL Congress enacted the Drug Price is currently listed in the ‘‘Discontinued and 80 mg/20 mL, may be approved by Competition and Patent Term Drug Product List’’ section of the Orange the Agency as long as they meet all Restoration Act of 1984 (Pub. L. 98–417) Book. Additionally, Carmel Biosciences other legal and regulatory requirements (the 1984 amendments), which has never marketed PREXXARTAN for the approval of ANDAs. If FDA authorized the approval of duplicate (valsartan) oral solution, 20 mg/5 mL determines that labeling for this drug versions of drug products under an and 80 mg/20 mL. In previous instances product should be revised to meet ANDA procedure. ANDA applicants (see, e.g., 72 FR 9763, March 5, 2007; 61 current standards, the Agency will must, with certain exceptions, show that FR 25497, May 21, 1996), the Agency advise ANDA applicants to submit such the drug for which they are seeking has determined that, for purposes of labeling. approval contains the same active §§ 314.161 and 314.162, never Dated: September 17, 2020. ingredient in the same strength and marketing an approved drug product is Lauren K. Roth, dosage form as the ‘‘listed drug,’’ which equivalent to withdrawing the drug is a version of the drug that was from sale. Associate Commissioner for Policy. previously approved. ANDA applicants Novitium Pharma LLC submitted a [FR Doc. 2020–20965 Filed 9–22–20; 8:45 am] do not have to repeat the extensive citizen petition dated January 30, 2020 BILLING CODE 4164–01–P

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DEPARTMENT OF HEALTH AND health products, FDA has only approved confirmation when they have been HUMAN SERVICES one CBD product—a prescription drug accepted. to treat two rare, severe forms of If you need special accommodations Food and Drug Administration epilepsy. There is very limited available due to a disability, please contact Lisa [Docket No. FDA–2019–N–1482] information about CBD, including about Lineberger at 301–796–8751 or its effects on the body. [email protected] no later Cannabidiol and Other Cannabinoids: FDA recognizes the significant public than November 9, 2020. Sex and Gender Differences in Use and interest in cannabis and cannabis- Streaming webcast of the public Responses; Public Meeting derived compounds, particularly CBD. meeting: The webcast for this meeting However, there are many unanswered will be available to registrants. If you AGENCY: Food and Drug Administration, questions about the science, safety, and have never attended a Connect Pro HHS. quality of products containing CBD. The event before, test your connection at ACTION: Notice of public meeting. Agency is working on answering these https://collaboration.fda.gov/common/ questions through ongoing efforts help/en/support/meeting_test.htm. To SUMMARY: The Food and Drug including feedback from a FDA hearing get a quick overview of the Connect Pro Administration (FDA, the Agency, or and information and data gathering program, visit https://www.adobe.com/ we) is announcing the following public through a public docket. This public go/connectpro_overview. FDA has meeting entitled ‘‘CBD and Other meeting will provide further insight into verified the website addresses in this Cannabinoids: Sex and Gender the scientific evidence suggesting the document, as of the date this document Differences in Use and Responses.’’ The presence or absence of sex and gender publishes in the Federal Register, but purpose of the public meeting is to differences in use and responses to CBD websites are subject to change over time. discuss potential sex (biological) and and other cannabinoids. Conditions for Dated: September 15, 2020. gender (psychosocial) differences in use which CBD is often marketed, such as and responses to cannabidiol (CBD) and chronic pain, anxiety, depression, and Lauren K. Roth, other cannabinoids. Researchers, sleep disturbances, are more prevalent Associate Commissioner for Policy. educators, clinicians, and patients may in women than men. Therefore, [FR Doc. 2020–21023 Filed 9–22–20; 8:45 am] benefit from attending this consideration of issues pertaining to the BILLING CODE 4164–01–P multidisciplinary scientific conference safety of CBD products may be on CBD and other cannabinoids. particularly important to address in Presentations will address patient and women. In addition, use of CBD and DEPARTMENT OF HEALTH AND healthcare provider perspectives on other cannabinoids during pregnancy is HUMAN SERVICES CBD and other cannabinoid use, sex an important public health concern that Food and Drug Administration differences in the effects of CBD and will be highlighted at this meeting. other cannabinoids, use of CBD and [Docket No. FDA–2020–D–1640] other cannabinoids in pregnancy, and II. Topics for Discussion at the Public government agency perspectives on CBD Meeting Draft Guidance for Cannabidiol; Draft research and evaluation. This public meeting will include Guidance for Industry; Availability DATES: The public meeting will be held presentations and panel discussions by AGENCY: Food and Drug Administration, experts in the fields of cannabinoid on November 19, 2020, from 9 a.m. to HHS. 4 p.m. Eastern Time and will take place research, education, and clinical care virtually by webcast only. Registration about potential biological (sex) and ACTION: Notice of availability. psychosocial (gender) differences in the to attend the meeting and other SUMMARY: The Food and Drug information can be found at https:// use and effects of CBD and other Administration (FDA, Agency, or we) is www.fda.gov/science-research/womens- cannabinoids. Each panel discussion announcing the availability of a draft health-research/scientific-conference- will include a Q&A session to respond guidance for industry, entitled ‘‘Draft cbd-and-other-cannabinoids-sex-and- to questions from attendees. Guidance for Cannabidiol.’’ The draft We will make the agenda and gender-differences-use-and-responses. guidance, when finalized, will provide materials for the public meeting See the SUPPLEMENTARY INFORMATION product-specific recommendations on, available online by November 12, 2020, section for registration date and among other things, the information and at https://www.fda.gov/science- information. data needed to demonstrate research/womens-health-research/ FOR FURTHER INFORMATION CONTACT: Lisa bioequivalence (BE) to support scientific-conference-cbd-and-other- Lineberger, Food and Drug abbreviated new drug applications cannabinoids-sex-and-gender- Administration, Office of the (ANDAs) for cannabidiol oral solution. differences-use-and-responses. Commissioner, Office of Women’s DATES: Submit either electronic or Health, Bldg. 32, Rm. 2333, 10903 New III. Participating in the Public Meeting written comments on the draft guidance Hampshire Ave., Silver Spring, MD Registration: To register for the public by November 23, 2020 to ensure that the 20993, 301–796–8751, OWHmeetings@ meeting, please visit the following Agency considers your comment on this fda.hhs.gov. website: https://collaboration.fda.gov/ draft guidance before it begins work on SUPPLEMENTARY INFORMATION: owh-cbd-meeting/event/ the final version of the guidance. registration.html. Please provide ADDRESSES: You may submit comments I. Background complete contact information for each as follows: FDA is responsible for protecting the attendee, including name, title, public health by assuring the safety and affiliation, address, email, and Electronic Submissions efficacy of FDA-regulated products. telephone. Submit electronic comments in the Although CBD is widely available and Persons interested in attending this following way: marketed as a component of products public meeting must register online by • Federal eRulemaking Portal: including drugs, food, dietary November 16, 2020, 5 p.m. Eastern https://www.regulations.gov. Follow the supplements, cosmetics, and animal Time. Registrants will receive instructions for submitting comments.

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Comments submitted electronically, for public viewing and posted on disseminate product-specific guidances including attachments, to https:// https://www.regulations.gov. Submit and to provide a meaningful www.regulations.gov will be posted to both copies to the Dockets Management opportunity for the public to consider the docket unchanged. Because your Staff. If you do not wish your name and and comment on the guidances. This comment will be made public, you are contact information to be made publicly notice announces the availability of a solely responsible for ensuring that your available, you can provide this draft guidance on a generic cannabidiol comment does not include any information on the cover sheet and not oral solution. confidential information that you or a in the body of your comments and you FDA initially approved new drug third party may not wish to be posted, must identify this information as application 210365 for EPIDIOLEX such as medical information, your or ‘‘confidential.’’ Any information marked (cannabidiol) in September 2018. We anyone else’s Social Security number, or as ‘‘confidential’’ will not be disclosed are now issuing draft guidance for confidential business information, such except in accordance with 21 CFR 10.20 industry on BE recommendations for as a manufacturing process. Please note and other applicable disclosure law. For generic cannabidiol oral solution (‘‘Draft that if you include your name, contact more information about FDA’s posting Guidance for Cannabidiol’’). information, or other information that of comments to public dockets, see 80 The draft guidance is being issued identifies you in the body of your FR 56469, September 18, 2015, or access consistent with FDA’s good guidance comments, that information will be the information at: https:// practices regulation (21 CFR 10.115). posted on https://www.regulations.gov. www.govinfo.gov/content/pkg/FR-2015- The draft guidance, when finalized, will • If you want to submit a comment 09-18/pdf/2015-23389.pdf. represent the current thinking of FDA with confidential information that you Docket: For access to the docket to on the information and data to do not wish to be made available to the read background documents or the demonstrate BE to support ANDAs for public, submit the comment as a electronic and written/paper comments cannabidiol oral solution. It does not written/paper submission and in the received, go to https:// establish any rights for any person and manner detailed (see ‘‘Written/Paper www.regulations.gov and insert the is not binding on FDA or the public. Submissions’’ and ‘‘Instructions’’). docket number, found in brackets in the You can use an alternative approach if heading of this document, into the Written/Paper Submissions it satisfies the requirements of the ‘‘Search’’ box and follow the prompts applicable statutes and regulations. Submit written/paper submissions as and/or go to the Dockets Management follows: Staff, 5630 Fishers Lane, Rm. 1061, II. Paperwork Reduction Act of 1995 • Mail/Hand Delivery/Courier (for Rockville, MD 20852. FDA tentatively concludes that this written/paper submissions): Dockets You may submit comments on any draft guidance contains no collection of Management Staff (HFA–305), Food and guidance at any time (see 21 CFR information. Therefore, clearance by the Drug Administration, 5630 Fishers 10.115(g)(5)). Office of Management and Budget under Lane, Rm. 1061, Rockville, MD 20852. Submit written requests for single • the Paperwork Reduction Act of 1995 is For written/paper comments copies of the draft guidance to the not required. submitted to the Dockets Management Division of Drug Information, Center for Staff, FDA will post your comment, as Drug Evaluation and Research, Food III. Electronic Access well as any attachments, except for and Drug Administration, 10001 New Persons with access to the internet information submitted, marked and Hampshire Ave., Hillandale Building, may obtain the draft guidance at either identified, as confidential, if submitted 4th Floor, Silver Spring, MD 20993– https://www.fda.gov/Drugs/ as detailed in ‘‘Instructions.’’ 0002. Send one self-addressed adhesive GuidanceCompliance Instructions: All submissions received label to assist that office in processing RegulatoryInformation/Guidances/ must include the Docket No. FDA– your requests. See the SUPPLEMENTARY default.htm or https:// 2020–D–1640 for ‘‘Draft Guidance for INFORMATION section for electronic www.regulations.gov. Cannabidiol.’’ Received comments will access to the draft guidance. Dated: September 17, 2020. be placed in the docket and, except for FOR FURTHER INFORMATION CONTACT: those submitted as ‘‘Confidential Mara Miller, Center for Drug Evaluation Lauren K. Roth, Submissions,’’ will be publicly viewable and Research (HFD–600), Food and Associate Commissioner for Policy. at https://www.regulations.gov or at the Drug Administration, 10903 New [FR Doc. 2020–20968 Filed 9–22–20; 8:45 am] Dockets Management Staff office Hampshire Ave., Bldg. 75, Rm. 4709C, BILLING CODE 4164–01–P between 9 a.m. and 4 p.m., Monday Silver Spring, MD 20993–0002, 301– through Friday. 796–0683. • Confidential Submissions—To SUPPLEMENTARY INFORMATION: DEPARTMENT OF HEALTH AND submit a comment with confidential HUMAN SERVICES information that you do not wish to be I. Background made publicly available, submit your In the Federal Register of June 11, Health Resources and Services comments only as a written/paper 2010 (75 FR 33311), FDA announced the Administration submission. You should submit two availability of a guidance for industry Meeting of the Council on Graduate copies total. One copy will include the entitled ‘‘Bioequivalence Medical Education information you claim to be confidential Recommendations for Specific with a heading or cover note that states Products,’’ which explained the process AGENCY: Health Resources and Services ‘‘THIS DOCUMENT CONTAINS that would be used to make product- Administration (HRSA), Department of CONFIDENTIAL INFORMATION.’’ The specific guidances available to the Health and Human Services (HHS). Agency will review this copy, including public on FDA’s website at https:// ACTION: Notice; correction. the claimed confidential information, in www.fda.gov/drugs/guidance- its consideration of comments. The compliance-regulatory-information/ SUMMARY: The Council on Graduate second copy, which will have the guidances-drugs. Medical Education (COGME) meeting claimed confidential information As described in that guidance, FDA scheduled on Tuesday, December 8, redacted/blacked out, will be available adopted this process to develop and 2020, and Wednesday, December 9,

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2020, has changed its format and time. resources and allow more of the rural Census. UCs are defined based on the The meeting will now be a 2-day populations within MSAs to access same criteria as UAs, but represent areas webinar and conference call only on services provided using grant funds. containing at least 2,500 but fewer than Tuesday, December 8, 2020, from 10:00 This notice seeks comments on the 50,000 people. Both UAs and UCs use a.m.–5:00 p.m. Eastern Time (ET) and proposed methodology for designating 500 persons per square mile as their Wednesday, December 9, 2020, from areas eligible for rural health grant minimum density criterion. 10:00 a.m.–2:00 p.m. ET. The webinar programs. The other major federal definition was link, conference dial in number, DATES: Submit written comments no based on the OMB’s list of counties that meeting materials, and updates will be later than October 23, 2020. are designated as part of a MSA. All available on the COGME website: counties that were not designated as a ADDRESSES: https://www.hrsa.gov/advisory- Written comments should part of a MSA were considered ‘‘rural’’ committees/graduate-medical-edu/ be submitted to [email protected]. or, more accurately, non-metropolitan. meetings/index.html. FOR FURTHER INFORMATION CONTACT: MSAs, in 1990, had to include ‘‘a city FOR FURTHER INFORMATION CONTACT: Steve Hirsch, Public Health Analyst of 50,000 or more population,’’ or ‘‘a Shane Rogers, Designated Federal FORHP, HRSA, 5600 Fishers Lane, Census Bureau defined urbanized area Official, Division of Medicine and Rockville, MD 20857, Phone number: of at least 50,000 population, provided Dentistry, Bureau of Health Workforce, (301) 443–0835 or Email: ruralpolicy@ that the component county/counties of HRSA, 5600 Fishers Lane, 15N142, hrsa.gov. the MSA have a total population of at Rockville, Maryland 20857; 301–443– SUPPLEMENTARY INFORMATION: FORHP least 100,000.’’ At that time, around 5260; or [email protected]. was authorized by Congress in the three quarters of all counties in the Correction: Meeting will be a 2-day Omnibus Budget Reconciliation Act of United States were non-metropolitan webinar and conference call only rather 1987, Public Law 100–203, codified at and not classified as parts of MSAs. than in-person as previously 42 U.S.C. 912, and located in HRSA. After the 2000 Census, OMB also announced. Congress charged FORHP with began to classify counties using a Maria G. Button, informing and advising the Department smaller urban core. The concept of a Director, Executive Secretariat. of Health and Human Services on Micropolitan statistical area closely parallels that of the MSA, but a [FR Doc. 2020–20940 Filed 9–22–20; 8:45 am] matters affecting rural hospitals and Micropolitan statistical area is based on BILLING CODE 4165–15–P health care and coordinating activities within the Department that relate to an urban core with a population of rural health care. Since the 1990s, 10,000 through 49,999 and Micropolitan DEPARTMENT OF HEALTH AND FORHP has also issued grants for counties are still considered non- HUMAN SERVICES programs of innovative models of health metropolitan. care delivery in rural areas. Historically, As currently classified, OMB builds Health Resources and Services applicant organizations for these grants, both MSAs and Micropolitan Statistical Administration authorized under Section 330A of the Areas around a central county, or Public Health Service Act, were counties, which contains an urban core. Revised Geographic Eligibility for required to be located in rural areas. Surrounding counties can be designated Federal Office of Rural Health Policy However, when the programs were as part of the Core Based Statistical Area Grants recently reauthorized under Section (CBSA) based on the presence of core AGENCY: Health Resources and Services 4214 of the Coronavirus Aid, Relief, and population and/or the commuting Administration (HRSA), Department of Economic Security Act the requirement patterns of the working population. A Health and Human Services. was amended to allow organizations to county may be included in only one CBSA. ACTION: Request for public comment. apply that are located in urban areas but serve rural areas. A county qualifies as a central county SUMMARY: HRSA’s Federal Office of Historically, there have been two of a CBSA if it meets the following Rural Health Policy (FORHP) has sought principal definitions of ‘‘rural’’ that requirements: to identify clear, consistent, and data- were in use by the Federal Government: (a) Has at least 50 percent of the driven methods of defining rural areas the Census Bureau definition (https:// population in urban areas of at least in the United States. FORHP uses the www.census.gov/programs-surveys/ 10,000 population; or Office of Management and Budget geography/guidance/geo-areas/urban- (b) Has within the boundaries a (OMB)’s list of counties designated as rural.html) and the OMB definition population of at least 5,000 located in a part of a Metropolitan Statistical Area (https://www.census.gov/programs- single urban area of at least 10,000 (MSA) as the basis for determining surveys/metro-micro.html). Neither population. eligibility to apply for or receive definition defined ‘‘rural’’ directly, but Since urban areas are not defined by services funded by its rural health grant rather defined ‘‘urban’’ areas and then administrative boundaries, such as city programs. FORHP designates all designated locations that do not meet limits or county borders, they can counties that are not part of a MSA as the ‘‘urban’’ definition as ‘‘rural.’’ extend into one or more counties as long ‘‘rural’’ and eligible for rural health In the early 1990s, the Census Bureau as the population density criterion (a grant funding or services. In addition, defined ‘‘rural’’ as all areas that were minimum of 500 people per square FORHP designates census tracts within not part of an urbanized area (UA) or mile) is met. MSAs as rural for grant purposes using were not part of an incorporated area of A county qualifies as an outlying Rural-Urban Commuting Area (RUCA) at least 2,500 persons. UAs were defined county of a CBSA if it meets the codes. FORHP is proposing as densely settled areas with a total following commuting requirements: modifications to how it designates areas population of at least 50,000 people. (a) At least 25 percent of the workers to be eligible for its rural health grant The building block of UAs is the census living in the county work in the central programs so that community block, a sub-unit of census tracts. The county or counties of the CBSA; or organizations serving rural populations Census Bureau introduced the urban (b) At least 25 percent of the within MSAs will be able to apply for cluster (UC) concept for the 2000 employment in the county is accounted

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for by workers who reside in the central the Grand Canyon which is located in determine programmatic eligibility for county or counties of the CBSA. a MSA county. Consequently, one could rural areas inside of MSAs, identified as Outlying counties are not required to argue that the Census Bureau standard rural census tracts within these MSA include any UA or UC population. In includes an over count of the rural counties. some cases, counties may be considered population whereas the OMB standard RUCA codes classify census tracts outlying because of reverse commuting represents an undercount. To address using measures of population density, into the county from other counties in these concerns and find a middle urbanization, and daily commuting. the MSA. ground between the two definitions, RUCA codes are based on the same Because Micropolitan counties are not FORHP funded the development of theoretical concepts used by the OMB to included in MSAs, they are included in Rural-Urban Commuting Area Codes define county-level Metropolitan and the set of non-metropolitan counties (RUCAs) (https://www.ers.usda.gov/ Micropolitan areas. By using the smaller along with counties that are not part of data-products/rural-urban-commuting- census tract unit instead of the county, any CBSA. area-codes/) in partnership with the RUCAs permit a finer delineation of There are measurement challenges Economic Research Service (ERS) of the ‘‘rural’’ and ‘‘urban’’ areas to reflect the with both the Census and OMB Department of Agriculture. FORHP experience of residents. Using data from definitions. Some policy experts note believes RUCAs allow more accurate the Census Bureau, every census tract in that the Census definition classifies targeting of resources intended for the the United States is assigned a RUCA quite a bit of suburban area as rural. The rural population. Both FORHP and the code. Currently, there are ten primary OMB definition includes rural areas in Centers for Medicare & Medicaid RUCA codes with 21 secondary codes MSA counties including, for example, Services (CMS) have used RUCAs to (see Table 1).

TABLE 1—PRIMARY RUCA CODES, 2010

Code classification Description

1 ...... Metropolitan area core: Primary flow within an urbanized area (UA). 2 ...... Metropolitan area high commuting: Primary flow 30% or more to a UA. 3 ...... Metropolitan area low commuting: Primary flow 10% to 30% to a UA. 4 ...... Micropolitan area core: Primary flow within an urban cluster of 10,000 to 49,999 (large UC). 5 ...... Micropolitan high commuting: Primary flow 30% or more to a large UC. 6 ...... Micropolitan low commuting: Primary flow 10% to 30% to a large UC. 7 ...... Small town core: Primary flow within an urban cluster of 2,500 to 9,999 (small UC). 8 ...... Small town high commuting: Primary flow 30% or more to a small UC. 9 ...... Small town low commuting: Primary flow 10% to 30% to a small UC. 10 ...... Rural areas: Primary flow to a tract outside a UA or UC. 99 ...... Not coded: Census tract has zero population and no rural-urban identifier information.

Current FORHP Definition of Rural Why We Propose Modifying FORHP’s led to growth in the number of MSA Rural Definition counties that either have no population In addition to all areas of non-metro in either UCs or UAs or that have no counties, specific census tracts in The goal of FORHP is to increase access to care for underserved population in a UA but do have UC Metropolitan counties are considered population. rural and eligible for grant funding or to populations and build health care receive services under FORHP grant capacity in rural areas. To support that Both the designation of outlying counties in MSAs and the classification funding. These include census tracts goal, we must ensure that there are of RUCA codes in census tracts are inside MSAs with RUCA codes 4–10 clear, consistent, and data-driven dependent on commuting data and and 132 large area census tracts with methods of defining rural areas in the therefore the location of jobs. During the RUCA codes 2 and 3 that FORHP has United States. Further, FORHP must ensure that the rural definition used to recession, employment losses in non- designated as rural. The 132 MSA tracts determine eligibility to apply for or metropolitan counties began earlier and with RUCA codes 2–3 are at least 400 receive services under FORHP’s rural were deeper than losses in MSA square miles in area with a population health grant programs accurately counties. While job growth in MSAs and density of no more than 35 people per identifies rural communities. FORHP non-metropolitan counties were initially square mile. believes that the combination of non- similar, in the long term employment in Following the 2010 Census, the metropolitan counties with the set of non-metropolitan areas remained below FORHP definition included ‘‘rural’’ census tracts within MSAs has the level where it had been before the approximately 57 million people, or allowed FORHP to correctly classify recession. According to ERS, ‘‘Between about 18 percent of the population and much of the rural population in the 2010 and 2018, non-metropolitan 84 percent of the area of the United country as eligible for rural health employment grew at an average annual States. More information about the grants. However, since the 2010 Census rate of 0.4 percent, compared to 1.5 current FORHP definition of rural is we have received feedback from rural percent per year in MSAs. By the located on the HRSA website (https:// stakeholders expressing concern that second quarter of 2019, non- www.hrsa.gov/rural-health/about-us/ some areas with rural character in MSAs metropolitan employment remained definition/index.html) and information are not being identified through the more than 1 percent below the pre- on whether counties or individual current methodology. recession level, while MSA employment addresses qualify as rural can be FORHP believes that the increasing exceeded the pre-recession level by identified in a search tool at the HRSA concentration of job growth in MSAs more than 9 percent.’’ In the years since Data Warehouse (https://data.hrsa.gov/ and changes in how OMB designates the recession, job growth has been tools/rural-health). outlying counties as part of MSAs have concentrated not just in MSAs, but in

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the largest MSAs. According to a raised the concern that commuting average MSA county population is rural McKinsey Global Institute report from patterns may not reflect suburbs and as defined by the Census Bureau. The 2019, ‘‘Just 25 cities (megacities and urban amenities spreading outward average non-metropolitan county has high-growth hubs, plus their urban from an urban area into rural areas. only approximately 10 percent of the peripheries) have accounted for more Instead, a lack of job opportunities in population of the average MSA county, than two-thirds of job growth in the last the rural area is causing workers to with the majority of people (59 percent) decade . . . By contrast, trailing cities commute into an urban area from a rural living in Census defined rural areas. have had virtually no job growth for a area. This increased commuting does When looking at central MSA decade—and the counties of Americana not represent an increase in access to counties compared to the outlying MSA and distressed Americana have 360,000 services for rural residents but can counties, there are large differences fewer jobs in 2017 than they did in instead represent a local economic between the two. The average central 2007.’’ decline. As OMB states, ‘‘For instance, county’s population is seven times programs that seek to strengthen rural Starting with the 2000 Census, OMB larger than the average outlying county economies by focusing solely on eliminated the use of measures of and almost half the outlying county’s counties located outside metropolitan settlement structure, such as population population is in Census defined rural statistical areas could ignore a density and percent of population that areas compared to just under 10 percent predominantly rural county that is is urban, as criteria for inclusion of of the average central county’s included in a metropolitan statistical outlying counties as part of an MSA. population. Even more striking, area because a high percentage of the Instead, commuting became the sole comparing outlying MSA counties that county’s residents commute to urban deciding factor as long as have no UA population at all or that (a) at least 25 percent of the employed centers for work.’’ have no UA or UC population at all residents of the county work in the Comparing Rural and Urban Counties shows that these MSA counties without CBSA’s central county or counties, or densely settled areas are much more (b) at least 25 percent of the jobs in The data presented in Table 2 shows similar to non-metropolitan counties the potential outlying county are that outlying MSA counties which have than they are to central MSA counties. accounted for by workers who reside in no UA population are more similar to the CBSA’s central county or counties. non-metropolitan counties than they are In population totals, density, and the After the 2000 Census, the number of to central MSA counties. Table 2 proportion of the population living outlying MSA counties with no urban displays characteristics of the mean outside Census defined UAs and UCs, population quadrupled from 24 in the population and land area for counties in the outlying MSA counties with no UA 1993 OMB listing to 96 in the 2003 the United States (excluding Alaska and population most closely resemble listing. After the 2010 Census, there Puerto Rico). The average MSA county Micropolitan counties. The outlying were 97 MSA outlying counties with no has a large population, over 200,000 counties with no UA or UC population urban population. people, most of whom live in UAs (84 at all, which do not include any town For counties with no urban percent of the total) with another 4 of even 2,500 residents, resemble the population, some stakeholders have percent in UCs. Only 12 percent of the non-CBSA counties. TABLE 2—COUNTIES BY URBANIZATION AND DENSITY 1

Pop. Land County Number Urban Urban UA % UC % Census % density area in County classification pop. of pop. (%) pop. UA pop. UC rural Rural per sq. sq. counties pop. mile miles

Metro ...... 224,809 1,166 197,393 88 188,132 84 9,262 4 27,416 12 276 813 Metro Central...... 331,742 728 300,832 91 291,341 88 9,491 3 30,910 9 367 929 Metro Outlying...... 47,077 438 25,468 54 16,588 35 8,880 19 21,609 46 76 621 Metro Outlying w/No Urbanized Area 2 ...... 23,185 286 6,969 46 0 0 6,969 46 16,216 54 36 650 Metro Outlying w/No Urban Population ...... 10,880 97 0 0 0 0 0 0 10,880 100 17 624 Nonmetro ...... 23,341 1,946 9,468 40.60 125 0.50 9,344 40.00 13,872 59 23 1,034 Micropolitan ...... 42,004 654 21,576 51.40 350 0.80 21,226 50.50 20,428 48 39 1,074 Neither ...... 14,255 1,292 3,486 24.50 12 0.10 3,474 24.40 10,769 75.50 14 1,013

Proposed Methodology To Determine impacts. The current set of eligible non- counties would become fully eligible. Eligibility for Rural Health Grants metropolitan counties and rural census These 86 counties include 42 outlying FORHP proposes to modify its tracts within metropolitan counties MSA counties that have no UA or UC existing rural definition by adding would still be eligible. Additional population at all. Lists of the counties outlying MSA counties with no UA counties would gain eligibility for rural that will be designated as rural if this population to its list of areas eligible to health grants. proposal is adopted are available at apply for or receive services funded by Using OMB’s April 2018 update of https://www.hrsa.gov/rural-health/ FORHP’s rural health grants. Compared MSAs and the 2010 Census data on about-us/definition/datafiles.html. It is also important to note that there to the current definition, this urban population by counties, there are is no single definitive source for modification would have the following 287 counties (286 reflected in Table 2 assigning rurality to a particular plus one county equivalent in Alaska) geographic area 34 Rural definitions are 1 This table excludes counties in Alaska and that are outlying counties in an MSA Puerto Rico. Alaskan boroughs (county equivalents) that have no UA population. Out of are much larger than counties in other states. One 3 U.S. Census Bureau. 2019. Understanding and Alaskan borough would qualify as Metro Outlying those counties, 97 had no UA or UC Using American Community Survey Data: What with No Urbanized Area. population at all. Many of the 287 Users of Data for Rural Areas Need to Know. 2 The two bolded, italicized rows represent the counties (201) are already partially or Available from: https://www.census.gov/programs- counties that would become eligible in their fully eligible for Rural Health grants surveys/acs/guidance/handbooks/rural.html. entirety for Rural Health grants after this notice. Accessed December 20, 2019. The number of counties with no UA includes the because they contain eligible census 4 U.S. Department of Agriculture, Economic counties that have no Urban population. tracts. However, 86 previously ineligible Research Service. What is Rural? Available from:

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highly context dependent and while responding to this request will be solely Sherrette Funn, the Reports Clearance definitions of rurality may take into at the interested party’s expense. Officer, [email protected], or call account a range of characteristics (e.g., 202–795–7714. List of References population density, commuting SUPPLEMENTARY INFORMATION: Interested distance, land use, etc.), rural Urban Area Criteria for Census 2000. Federal persons are invited to send comments definitions do not reflect any single, Register, Vol. 67, No. 51. March 15, 2002 regarding this burden estimate or any 5 https://www.federalregister.gov/ inherent geographic attribute. FORHP’s other aspect of this collection of proposal to modify our eligibility documents/2002/03/15/02-6186/urban- area-criteria-for-census-2000. information, including any of the criteria to apply for or receive services Rural Employment Trends in Recession and following subjects: (1) The necessity and funded by FORHP’s rural health grants Recovery. Economic Research Report utility of the proposed information reflects our efforts to be responsive to Number 172, August 2014. https:// collection for the proper performance of stakeholder feedback and best target our www.ers.usda.gov/webdocs/ the agency’s functions; (2) the accuracy _ programs towards the intended publications/45258/48731 of the estimated burden; (3) ways to communities. This does not eliminate err172.pdf?v=0. enhance the quality, utility, and clarity the fact that other rural definitions may Rural America at a Glance, 2019 Edition. https://www.ers.usda.gov/webdocs/ of the information to be collected; and be set by statute or regulation or the fact (4) the use of automated collection that other programs established outside publications/95341/eib-212.pdf?v=3322. The future of work in America: People and techniques or other forms of information of FORHP’s 330A authorization may places, today and tomorrow. McKinsey technology to minimize the information need to use a different definition of Global Institute. July 2019. https:// collection burden. rural to meet program goals. No single www.mckinsey.com/featured-insights/ Title of the Collection: HHS definition of rural is perfect or advisable future-of-work/the-future-of-work-in- Teletracking COVID–19 Portal (U.S. given the geographic variation that america-people-and-places-today-and- Healthcare COVID–19 Portal). tomorrow#. exists nationally and the varying needs Type of Collection: In use without an of rural programs. Standards for Defining Metropolitan and Micropolitan Statistical Areas. Federal OMB number. Request for Public Comment Register/Vol. 65, No. 249/December 27, OMB No.: 0990–XXXX OS/OCIO. FORHP is proposing to modify the 2000. 82228–82238 https://www.bls.gov/ Abstract: The data collected through rural definition it uses to determine lau/frn249.pdf. this ICR informs the Federal 2010 Standards for Delineating Metropolitan Government’s understanding of disease geographic areas eligible to apply for or and Micropolitan Statistical Areas; receive services funded by FORHP’s patterns and furthers the development Notice. Federal Register/Vol. 75, No. of policies for prevention and control of rural health grants and requests 123, June 28, 2010. 37246–37252. comments from the public on the https://www.govinfo.gov/content/pkg/ disease spread and impact related to the proposed methodology described above. FR-2010-06-28/pdf/2010-15605.pdf. 2019 Novel Coronavirus (COVID–19). This request for comments is issued One of the most important uses of the solely for information and planning Thomas J. Engels, data collected through this ICR is to purposes; it does not constitute a Administrator. determine critical allocations of limited Request for Proposal, applications, [FR Doc. 2020–20971 Filed 9–22–20; 8:45 am] supplies (e.g., protective equipment and proposal abstracts, or quotations. This BILLING CODE 4165–15–P medication). For instance, this request does not commit the collection has been used to distribute Government to contract for any supplies Remdesivir, a vital therapeutic that HHS or services or make a grant or DEPARTMENT OF HEALTH AND distributes to the American healthcare cooperative agreement award or take HUMAN SERVICES system, via distinct data calls on regular any other official action. Further, HRSA [Document Identifier: OS–0990–xxxx] intervals. As of July 10, HHS reduced is not seeking proposals through this the number requests for data from Request for Information and will not Agency Information Collection hospitals to support allocations of accept unsolicited proposals. Request; 60-Day Public Comment Remdesivir. HHS has stopped sending HRSA is not obligated to summarize Request out one-time requests for data to aid in or publish a response to feedback the distribution of Remdesivir or any received, or to respond to questions AGENCY: Office of the Secretary, HHS. other treatments or supplies. This about the policy issues raised in this ACTION: Notice. consolidated daily reporting is the only request. Responders are advised that the mechanism used for the distribution SUMMARY: In compliance with the United States Government will not pay requirement of the Paperwork calculations, and daily reports are for any information or administrative Reduction Act of 1995, the Office of the needed to ensure accurate calculations. costs incurred in response to this Secretary (OS), Department of Health Type of Respondent: We acknowledge request; all costs associated with and Human Services, is publishing the the burden placed on many hospitals, following summary of a proposed including resource constraints, and have https://www.ers.usda.gov/topics/rural-economy- collection for public comment. allowed for some flexibilities, such as population/rural-classifications/what-is-rural.aspx. back-submissions or submitting every Accessed December 20, 2019. DATES: Comments on the ICR must be 5 For a deeper discussion of this topic, please see: business days, with the understanding received on or before November 23, that respondents may not have (a) National Academies of Sciences, Engineering, 2020. and Medicine 2016. Rationalizing Rural Area sufficient staff working over the Classifications for the Economic Research Service: ADDRESSES: Submit your comments to weekend. It is our belief that collection A Workshop Summary. Washington, DC: The [email protected] or by calling National Academies Press. Accessed December 20, of this information daily is the most 2019. Available from: https://doi.org/10.17226/ (202) 795–7714. effective way to detect outbreaks and 21843; and (b) Ratcliffe M, Burd C, Holder K, and FOR FURTHER INFORMATION CONTACT: needs for Federal assistance over time, Fields A, ‘‘Defining Rural at the U.S. Census When submitting comments or by hospital and geographical area, and Bureau,’’ ACSGEO–1, U.S. Census Bureau, Washington, DC, 2016. Available from: https:// requesting information, please include to alert the appropriate officials for www.census.gov/content/dam/Census/library/ the document identifier 0990-New-60D, action. It’s requested that 5,500 publications/2016/acs/acsgeo-1.pdf. and project title for reference, to hospitals, submit data daily on the

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number of patients tested for COVID–19, initially submitted by hospitals to HHS which data elements should be sent to as well as information on bed capacity through CDC’s National Healthcare HHS and through which method was and requirements for other supplies. Safety Network (NHSN) COVID–19 updated at the request of the White The HHS Teletracking COVID–19 Module (OMB Control No. 0920–1290, House Coronavirus Task Force and Portal (U.S. Healthcare COVID–19 approved 03/26/2020). Over the last other leaders to better inform the Portal) includes some data that were several months time, the guidance for response.

ANNUALIZED BURDEN HOUR TABLE

Number Average Number of responses burden per Total burden Type of respondent Form name respondents per response hours respondent (in hours)

Hospitals ...... HHS Teletracking COVID–19 Portal 5,500 365 1.5 3,011,250 (U.S. Healthcare COVID–19 Por- tal).

Total ...... 3,011,250

Dated: September 15, 2020. Name of Committee: Musculoskeletal, Oral Molecular and Integrative Reproduction Sherrette A. Funn, and Skin Sciences Integrated Review Group Study Section. Musculoskeletal Tissue Engineering Study Date: October 20–21, 2020. Office of the Secretary, Paperwork Reduction Section. Time: 9:30 a.m. to 5:30 p.m. Act Reports Clearance Officer. Date: October 20–21, 2020. Agenda: To review and evaluate grant [FR Doc. 2020–20979 Filed 9–22–20; 8:45 am] Time: 9:00 a.m. to 6:00 p.m. applications. BILLING CODE 4150–04–P Agenda: To review and evaluate grant Place: National Institutes of Health, applications. Rockledge II, 6701 Rockledge Drive, Place: National Institutes of Health, Bethesda, MD 20892 (Virtual Meeting). DEPARTMENT OF HEALTH AND Rockledge II, 6701 Rockledge Drive, Contact Person: Elaine Sierra-Rivera, MS, HUMAN SERVICES Bethesda, MD 20892 (Virtual Meeting). BS, Ph.D., Scientific Review Officer, EMNR Contact Person: Srikanth Ranganathan, IRG, Center for Scientific Review, National National Institutes of Health Ph.D., Scientific Review Officer, Center for Institutes of Health, 6701 Rockledge Drive, Scientific Review, National Institutes of Room 6182 MSC 7892, Bethesda, MD 20892, Center for Scientific Review; Notice of Health, 6701 Rockledge Drive, Room 4214, (301) 435–2514, [email protected]. Closed Meetings MSC 7802, Bethesda, MD 20892, (301) 435– Name of Committee: Center for Scientific 1787, [email protected]. Review Special Emphasis Panel PAR Panel: Pursuant to section 10(d) of the Name of Committee: Interdisciplinary International Research Ethics Education and Molecular Sciences and Training Integrated Curriculum Development. Federal Advisory Committee Act, as Review Group Cellular and Molecular Date: October 20, 2020. amended, notice is hereby given of the Technologies Study Section. Time: 9:30 a.m. to 3:30 p.m. following meetings. Date: October 20–21, 2020. Agenda: To review and evaluate grant The meetings will be closed to the Time: 9:00 a.m. to 7:00 p.m. applications. public in accordance with the Agenda: To review and evaluate grant Place: National Institutes of Health, applications. Rockledge II, 6701 Rockledge Drive, provisions set forth in sections Place: National Institutes of Health, Bethesda, MD 20892 (Virtual Meeting). 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Rockledge II, 6701 Rockledge Drive, Contact Person: Seetha Bhagavan, Ph.D., as amended. The grant applications and Bethesda, MD 20892 (Virtual Meeting). Scientific Review Officer, Center for the discussions could disclose Contact Person: Tatiana V Cohen, Ph.D., Scientific Review, National Institutes of confidential trade secrets or commercial Scientific Review Officer, Center for Health, 6701 Rockledge Drive, Room 5194, property such as patentable material, Scientific Review, National Institutes of MSC 7846, Bethesda, MD 20892, (301) 237– and personal information concerning Health, 6701 Rockledge Drive Room 5213, 9838, [email protected]. individuals associated with the grant Bethesda, MD 20892, (301) 455–2364, Name of Committee: Center for Scientific [email protected]. applications, the disclosure of which Review Special Emphasis Panel; Exploration would constitute a clearly unwarranted Name of Committee: Biological Chemistry of Antimicrobial Therapeutics and and Macromolecular Biophysics Integrated Resistance. invasion of personal privacy. Review Group Synthetic and Biological Date: October 20–21, 2020. Name of Committee: Biobehavioral and Chemistry B Study Section. Time: 9:30 a.m. to 7:30 p.m. Behavioral Processes Integrated Review Date: October 20–21, 2020. Agenda: To review and evaluate grant Group Adult Psychopathology and Disorders Time: 9:00 a.m. to 5:00 p.m. applications. of Aging Study Section. Agenda: To review and evaluate grant Place: National Institutes of Health, Date: October 15–16, 2020. applications. Rockledge II, 6701 Rockledge Drive, Time: 9:00 a.m. to 5:00 p.m. Place: National Institutes of Health, Bethesda, MD 20892 (Virtual Meeting). Agenda: To review and evaluate grant Rockledge II, 6701 Rockledge Drive, Contact Person: Susan Daum, Ph.D., applications. Bethesda, MD 20892 (Virtual Meeting). Scientific Review Officer, Center for Place: National Institutes of Health, Contact Person: Michael Eissenstat, Ph.D., Scientific Review, National Institutes of Rockledge II, 6701 Rockledge Drive, Scientific Review Officer, BCMB IRG, Center Health, 6701 Rockledge Drive, Room 3202, Bethesda, MD 20892 (Virtual Meeting). for Scientific Review, National Institutes of Bethesda, MD 20892, (301) 827–7233, Contact Person: Benjamin Greenberg Health, 6701 Rockledge Drive, Room 4166, [email protected]. Shapero, Ph.D., Scientific Review Officer, MSC 7806, Bethesda, MD 20892, (301) 435– Name of Committee: Bioengineering Center for Scientific Review, National 1722, [email protected]. Sciences & Technologies Integrated Review Institutes of Health, 6701 Rockledge Drive, Name of Committee: Endocrinology, Group Instrumentation and Systems Room 3182, MSC 7848, Bethesda, MD 20892, Metabolism, Nutrition and Reproductive Development Study Section. (301) 402–4786, [email protected]. Sciences Integrated Review Group Cellular, Date: October 20–21, 2020.

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Time: 9:30 a.m. to 6:30 p.m. Name of Committee: National Cancer Name of Committee: National Cancer Agenda: To review and evaluate grant Institute Special Emphasis Panel; SEP–7: NCI Institute Special Emphasis Panel; SEP–5: NCI applications. Clinical and Translational R21 and Omnibus Clinical and Translational R21 and Omnibus Place: National Institutes of Health, R03 Review. R03 Review. Rockledge II, 6701 Rockledge Drive, Date: October 29, 2020. Date: November 12, 2020. Bethesda, MD 20892 (Virtual Meeting). Time: 10:00 a.m. to 5:00 p.m. Time: 8:00 a.m. to 8:00 p.m. Contact Person: Kee Forbes, Ph.D., Agenda: To review and evaluate grant Agenda: To review and evaluate grant Scientific Review Officer, Center for applications. applications. Scientific Review, National Institutes of Place: National Cancer Institute Shady Place: National Cancer Institute Shady Health, 6701 Rockledge Drive, Room 5148, Grove, 9609 Medical Center Drive, Room Grove, 9609 Medical Center Drive, Room MSC 7806, Bethesda, MD 20892, (301) 272– 7W242, Rockville, MD 20850 (Telephone 7W244, Rockville, MD 20850 (Telephone 4865, [email protected]. Conference Call). Conference Call). (Catalogue of Federal Domestic Assistance Contact Person: Zhiqiang Zou, M.D., Ph.D., Contact Person: John Paul Cairns, Ph.D., Program Nos. 93.306, Comparative Medicine; Scientific Review Officer, Special Review Scientific Review Officer, Research Programs 93.333, Clinical Research, 93.306, 93.333, Branch, Division of Extramural Activities, Review Branch, Division of Extramural 93.337, 93.393–93.396, 93.837–93.844, National Cancer Institute, NIH, 9609 Medical Activities, National Cancer Institute, NIH, 93.846–93.878, 93.892, 93.893, National Center Drive, Room 7W242, Rockville, MD 9609 Medical Center Drive, Room 7W244, Institutes of Health, HHS) 20850, 240–276–6372, [email protected]. Rockville, MD 20850, 240–276–5415, Dated: September 17, 2020. Name of Committee: National Cancer [email protected]. Miguelina Perez, Institute Special Emphasis Panel; Name of Committee: National Cancer Strengthening Capacity for Global Research Institute Special Emphasis Panel; SBIR Phase Program Analyst, Office of Federal Advisory in Low- and Middle-Income Countries. IIB Bridge Awards. Committee Policy. Date: October 30, 2020. Date: November 17, 2020. [FR Doc. 2020–20944 Filed 9–22–20; 8:45 am] Time: 12:00 p.m. to 4:00 p.m. Time: 10:00 a.m. to 6:00 p.m. BILLING CODE 4140–01–P Agenda: To review and evaluate grant Agenda: To review and evaluate contract applications. proposals. Place: National Cancer Institute Shady Place: National Cancer Institute Shady DEPARTMENT OF HEALTH AND Grove, 9609 Medical Center Drive, Room Grove, 9609 Medical Center Drive, Room HUMAN SERVICES 7W624, Rockville, MD 20850 (Telephone 7W248, Rockville, MD 20850 (Telephone Conference Call). Conference Call). National Institutes of Health Contact Person: Timothy C. Meeker, M.D., Contact Person: Anita T. Tandle, Ph.D., Ph.D., Scientific Review Officer, Special Scientific Review Officer, Research Programs National Cancer Institute; Notice of Review Branch, Division of Extramural Review Branch, Division of Extramural Closed Meetings Activities, National Cancer Institute, NIH, Activities, National Cancer Institute, NIH, 9609 Medical Center Drive, Room 7W624, 9609 Medical Center Drive, Room 7W248, Pursuant to section 10(d) of the Rockville, MD 20850, 240–276–6464, Rockville, MD 20850, 240–276–5085, Federal Advisory Committee Act, as [email protected]. [email protected]. amended, notice is hereby given of the Name of Committee: National Cancer Name of Committee: National Cancer following meetings. Institute Special Emphasis Panel; Integrating Institute Special Emphasis Panel; SEP–5: The meetings will be closed to the Biospecimen Science Approaches into Research Answers to NCI Provocative public in accordance with the Clinical Assay Development (U01). Questions. provisions set forth in sections Date: November 6, 2020. Date: November 19, 2020. Time: 1:00 p.m. to 4:00 p.m. Time: 11:00 a.m. to 4:00 p.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Agenda: To review and evaluate grant Agenda: To review and evaluate grant as amended. The grant applications applications. applications. and/or contract proposals and the Place: National Cancer Institute Shady Place: National Cancer Institute Shady discussions could disclose confidential Grove, 9609 Medical Center Drive, Room Grove, 9609 Medical Center Drive, Room trade secrets or commercial property 7W606, Rockville, MD 20850 (Telephone 7W602, Rockville, MD 20850 (Telephone such as patentable material, and Conference Call). Conference Call). personal information concerning Contact Person: Timothy C. Meeker, M.D., Contact Person: Delia Tang, M.D., individuals associated with the grant Ph.D., Scientific Review Officer, Special Scientific Review Officer, Resources Training applications and/or contract proposals, Review Branch, Division of Extramural and Review Branch, Division of Extramural Activities, National Cancer Institute, NIH, Activities, National Cancer Institute, NIH, the disclosure of which would 9609 Medical Center Drive, Room 7W606, 9609 Medical Center Drive, Room 7W602, constitute a clearly unwarranted Rockville, MD 20850, 240–276–6464, Rockville, MD 20892, 240–276–6456, tangd@ invasion of personal privacy. [email protected]. mail.nih.gov. Name of Committee: National Cancer Name of Committee: National Cancer Name of Committee: National Cancer Institute Special Emphasis Panel; SEP–8: Institute Special Emphasis Panel; Provocative Institute Special Emphasis Panel; SEP–4: Research Answers to NCI Provocative Questions in Cancer with an Underlying HIV Research Answers to NCI Provocative Questions. Infection. Questions. Date: October 27, 2020. Date: November 10, 2020. Date: December 10, 2020. Time: 1:00 p.m. to 3:00 p.m. Time: 10:00 a.m. to 2:00 p.m. Time: 9:00 a.m. to 6:00 p.m. Agenda: To review and evaluate grant Agenda: To review and evaluate grant Agenda: To review and evaluate grant applications. applications. applications. Place: National Cancer Institute Shady Place: National Cancer Institute Shady Place: National Cancer Institute Shady Grove, 9609 Medical Center Drive, Room Grove, 9609 Medical Center Drive, Room Grove, 9609 Medical Center Drive, Room 7W248, Rockville, MD 20850 (Telephone 7W634, Rockville, MD 20850 (Telephone 7W120, Rockville, MD 20850 (Telephone Conference Call). Conference Call). Conference Call). Contact Person: Shree Ram Singh, Ph.D., Contact Person: Michael E. Lindquist, Contact Person: Majed M. Hamawy, Ph.D., Scientific Review Officer, Special Review Ph.D., Scientific Review Officer, Research Scientific Review Officer, Research Programs Branch, Division of Extramural Activities, Programs Review Branch, Division of Review Branch, Division of Extramural National Cancer Institute, NIH, 9609 Medical Extramural Activities, National Cancer Activities, National Cancer Institute, NIH, Center Drive, Room 7W248, Rockville, MD Institute, NIH, 9609 Medical Center Drive, 9609 Medical Center Dr., Room 7W120, 20850, 240–276–5735, singhshr@ Room 7W634, Rockville, MD 20850, 240– Rockville, MD 20850, 240–276–6457, mail.nih.gov. 276–5735, [email protected]. [email protected].

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(Catalogue of Federal Domestic Assistance MSC 7812, Bethesda, MD 20892, (301) 435– Place: National Institutes of Health, Program Nos. 93.392, Cancer Construction; 2778, [email protected]. Rockledge II, 6701 Rockledge Drive, 93.393, Cancer Cause and Prevention Name of Committee: Cardiovascular and Bethesda, MD 20892 (Virtual Meeting). Research; 93.394, Cancer Detection and Respiratory Sciences Integrated Review Contact Person: Ai-Ping Zou, MD, Ph.D., Diagnosis Research; 93.395, Cancer Group; Respiratory Integrative Biology and Scientific Review Officer, Center for Treatment Research; 93.396, Cancer Biology Translational Research Study Section. Scientific Review, National Institutes of Research; 93.397, Cancer Centers Support; Date: October 22–23, 2020. Health, 6701 Rockledge Drive, Room 4118, 93.398, Cancer Research Manpower; 93.399, Time: 9:00 a.m. to 6:00 p.m. MSC 7814, Bethesda, MD 20892, 301–408– Cancer Control, National Institutes of Health, Agenda: To review and evaluate grant 9497, [email protected]. HHS) applications. Name of Committee: Center for Scientific Place: National Institutes of Health, Dated: September 17, 2020. Review Special Emphasis Panel; RFA Panel: Rockledge II, 6701 Rockledge Drive, Tobacco Regulatory Science B. Melanie J. Pantoja, Bethesda, MD 20892 (Virtual Meeting). Date: October 23, 2020. Program Analyst, Office of Federal Advisory Contact Person: Bradley Nuss, Ph.D., Time: 11:00 a.m. to 4:00 p.m. Committee Policy. Scientific Review Officer, Center for Agenda: To review and evaluate grant [FR Doc. 2020–20993 Filed 9–22–20; 8:45 am] Scientific Review, National Institutes of applications. Health, 6701 Rockledge Drive, Room 4142, BILLING CODE 4140–01–P Place: National Institutes of Health, MSC 7814, Bethesda, MD 20892, 301–451– Rockledge II, 6701 Rockledge Drive, 8754, [email protected]. Bethesda, MD 20892 (Virtual Meeting). DEPARTMENT OF HEALTH AND Name of Committee: Center for Scientific Contact Person: Weijia Ni, Ph.D., Chief/ Review Special Emphasis Panel; Topics in HUMAN SERVICES Scientific Review Officer, Center for Bacterial Pathogenesis. Scientific Review, National Institutes of Date: October 22, 2020. National Institutes of Health Health, 6701 Rockledge Drive, Room 3100, Time: 9:30 a.m. to 6:00 p.m. MSC 7808, Bethesda, MD 20892, 301–594– Agenda: To review and evaluate grant 3292, [email protected]. Center for Scientific Review; Notice of applications. Name of Committee: Center for Scientific Closed Meetings Place: National Institutes of Health, Review Special Emphasis Panel; Research Rockledge II, 6701 Rockledge Drive, Enhancement Award: Surgical Sciences, Pursuant to section 10(d) of the Bethesda, MD 20892 (Virtual Meeting). Biomedical Imaging, and Bioengineering. Federal Advisory Committee Act, as Contact Person: Richard G. Kostriken, amended, notice is hereby given of the Ph.D., Scientific Review Officer, Center for Date: October 23, 2020. following meetings. Scientific Review, National Institutes of Time: 11:00 a.m. to 2:00 p.m. The meetings will be closed to the Health, 6701 Rockledge Drive, Room 3192, Agenda: To review and evaluate grant applications. public in accordance with the MSC 7808, Bethesda, MD 20892, 240–519– 7808, [email protected]. Place: National Institutes of Health, provisions set forth in sections Rockledge II, 6701 Rockledge Drive, Name of Committee: Immunology 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Bethesda, MD 20892 (Telephone Conference Integrated Review Group; Hypersensitivity, as amended. The grant applications and Call). Autoimmune, and Immune-mediated the discussions could disclose Contact Person: Inna Gorshkova, Ph.D., Diseases Study Section. Scientific Review Officer, Center for confidential trade secrets or commercial Date: October 22–23, 2020. property such as patentable material, Time: 10:00 a.m. to 7:00 p.m. Scientific Review, National Institutes of and personal information concerning Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Bethesda, MD individuals associated with the grant applications. 20892, 301–435–1784, [email protected]. applications, the disclosure of which Place: National Institutes of Health, (Catalogue of Federal Domestic Assistance would constitute a clearly unwarranted Rockledge II, 6701 Rockledge Drive, Program Nos. 93.306, Comparative Medicine; 93.333, Clinical Research, 93.306, 93.333, invasion of personal privacy. Bethesda, MD 20892 (Virtual Meeting). Contact Person: Deborah Hodge, Ph.D., 93.337, 93.393–93.396, 93.837–93.844, Name of Committee: Oncology 1—Basic Scientific Review Officer, Center for 93.846–93.878, 93.892, 93.893, National Translational Integrated Review Group; Scientific Review, National Institutes of Institutes of Health, HHS) Cancer Genetics Study Section. Health, 6701 Rockledge Drive, Room 4207, Dated: September 17, 2020. Date: October 22–23, 2020. MSC 7812, Bethesda, MD 20892, (301) 435– Time: 8:00 a.m. to 5:00 p.m. 1238, [email protected]. Melanie J. Pantoja, Agenda: To review and evaluate grant Name of Committee: Molecular, Cellular Program Analyst, Office of Federal Advisory applications. and Developmental Neuroscience Integrated Committee Policy. Place: National Institutes of Health, Review Group; Drug Discovery for the [FR Doc. 2020–20992 Filed 9–22–20; 8:45 am] Rockledge II, 6701 Rockledge Drive, Nervous System Study Section. BILLING CODE 4140–01–P Bethesda, MD 20892 (Virtual Meeting). Date: October 22–23, 2020. Contact Person: Juraj Bies, Ph.D., Scientific Time: 10:00 a.m. to 7:00 p.m. Review Officer, Center for Scientific Review, Agenda: To review and evaluate grant DEPARTMENT OF HEALTH AND National Institutes of Health, 6701 Rockledge applications. HUMAN SERVICES Drive, Room 4158, MSC 7806, Bethesda, MD Place: National Institutes of Health, 20892, 301–435–1256, [email protected]. Rockledge II, 6701 Rockledge Drive, National Institutes of Health Name of Committee: Immunology Bethesda, MD 20892 (Virtual Meeting). Integrated Review Group; Vaccines Against Contact Person: Mary Custer, Ph.D., National Institute of Nursing Research; Scientific Review Officer, Center for Microbial Diseases Study Section. Notice of Closed Meeting Date: October 22–23, 2020. Scientific Review, National Institutes of Time: 9:00 a.m. to 6:00 p.m. Health, 6701 Rockledge Drive, Room 4148, Pursuant to section 10(d) of the Agenda: To review and evaluate grant MSC 7850, Bethesda, MD 20892, (301) 435– Federal Advisory Committee Act, as 1164, [email protected]. applications. amended, notice is hereby given of the Place: National Institutes of Health, Name of Committee: Vascular and Rockledge II, 6701 Rockledge Drive, following meeting. Hematology Integrated Review Group; The meeting will be closed to the Bethesda, MD 20892 (Virtual Meeting). Hemostasis and Thrombosis Study Section. Contact Person: Jian Wang, MD, Ph.D., Date: October 22, 2020. public in accordance with the Scientific Review Officer, Center for Time: 10:00 a.m. to 7:00 p.m. provisions set forth in sections Scientific Review, National Institutes of Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Health, 6701 Rockledge Drive, Room 4218, applications. as amended. The grant applications and

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the discussions could disclose Contact Person: Bukhtiar H. Shah, DVM, Group; Developmental Brain Disorders Study confidential trade secrets or commercial Ph.D., Scientific Review Officer, Vascular Section. property such as patentable material, and Hematology IRG, Center for Scientific Date: October 21–23, 2020. Review, National Institutes of Health, 6701 Time: 11:00 a.m. to 5:00 p.m. and personal information concerning Rockledge Drive, Room 4120, MSC 7802, individuals associated with the grant Agenda: To review and evaluate grant Bethesda, MD 20892, (301) 806–7314, applications. applications, the disclosure of which [email protected]. Place: National Institutes of Health, 6701 would constitute a clearly unwarranted Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892 invasion of personal privacy. Review Special Emphasis Panel; Membrane (Virtual Meeting). Name of Committee: National Institute of Biology and Protein Processing. Contact Person: Pat Manos, Ph.D., Nursing Research Initial Review Group. Date: October 20, 2020. Scientific Review Officer, Center for Date: October 22–23, 2020. Time: 10:00 a.m. to 3:00 p.m. Scientific Review, National Institutes of Time: 8:00 a.m. to 12:00 p.m. Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 5200, Agenda: To review and evaluate grant applications. MSC 7846, Bethesda, MD 20892, 301–408– applications. Place: National Institutes of Health, 9866, [email protected]. Rockledge II, 6701 Rockledge Drive, Place: National Institute of Nursing Name of Committee: Digestive, Kidney and Research, National Institutes of Health, 6701 Bethesda, MD 20892 (Virtual Meeting). Contact Person: Maqsood A. Wani, BS, MS, Urological Systems Integrated Review Group; Democracy Boulevard, Bethesda, MD 20892 Hepatobiliary Pathophysiology Study (Virtual Meeting). DVM, Ph.D., Scientific Review Officer, Center for Scientific Review, National Section. Contact Person: Cheryl Nordstrom, Ph.D., Date: October 22–23, 2020. Scientific Review Officer, National Institute Institutes of Health, 6701 Rockledge Drive, Room 2114, MSC 7814, Bethesda, MD 20892, Time: 8:00 a.m. to 6:00 p.m. of Nursing Research, National Institutes of Agenda: To review and evaluate grant Health, 6701 Democracy Blvd., Suite 703H, 301–435–2270, [email protected]. Name of Committee: Healthcare Delivery applications. Bethesda, MD 20892, (301) 827–1499, Place: National Institutes of Health, [email protected]. and Methodologies Integrated Review Group; Dissemination and Implementation Research Rockledge II, 6701 Rockledge Drive, (Catalogue of Federal Domestic Assistance in Health Study Section. Bethesda, MD 20892 (Virtual Meeting). Program Nos. 93.361, Nursing Research, Date: October 21–23, 2020. Contact Person: Jianxin Hu, Ph.D., National Institutes of Health, HHS) Time: 7:00 a.m. to 6:00 p.m. Scientific Review Officer, Center for Dated: September 17, 2020. Agenda: To review and evaluate grant Scientific Review, National Institutes of Miguelina Perez, applications. Health, 6701 Rockledge Drive, Room 2156, Bethesda, MD 20892, 301–827–4417, Program Analyst, Office of Federal Advisory Place: National Institutes of Health, Rockledge II, 6701 Rockledge Drive, [email protected]. Committee Policy. Bethesda, MD 20892 (Virtual Meeting). Name of Committee: Center for Scientific [FR Doc. 2020–20996 Filed 9–22–20; 8:45 am] Contact Person: Wenjuan Wang, Ph.D., Review Special Emphasis Panel; BILLING CODE 4140–01–P Scientific Review Officer, Center for Fellowships: Biophysical, Physiological, Scientific Review, National Institute of Pharmacological and Bioengineering Health, 6701 Rockledge Drive, Room 3154, Neuroscience. DEPARTMENT OF HEALTH AND Bethesda, MD 20892, (301) 480–8667, Date: October 22–23, 2020. HUMAN SERVICES [email protected]. Time: 9:00 a.m. to 7:00 p.m. Name of Committee: Center for Scientific Agenda: To review and evaluate grant National Institutes of Health Review Special Emphasis Panel; PAR Panel: applications. Understanding Alzheimer’s Disease. Place: National Institutes of Health, Center for Scientific Review; Notice of Date: October 21, 2020. Rockledge II, 6701 Rockledge Drive, Closed Meetings Time: 10:00 a.m. to 8:00 p.m. Bethesda, MD 20892 (Virtual Meeting). Agenda: To review and evaluate grant Contact Person: Sussan Paydar, Ph.D., Pursuant to section 10(d) of the applications. Scientific Review Officer, Center for Federal Advisory Committee Act, as Place: National Institutes of Health, 6701 Scientific Review, National Institutes of amended, notice is hereby given of the Rockledge Drive, Bethesda, MD 20892 Health, 6701 Rockledge Drive, RM 5222, following meetings. (Virtual Meeting). Bethesda, MD 20817, (301) 827–4994, The meetings will be closed to the Contact Person: Boris P. Sokolov, Ph.D., [email protected]. Scientific Review Officer, Center for public in accordance with the Scientific Review, National Institutes of Name of Committee: Molecular, Cellular provisions set forth in sections Health, 6701 Rockledge Drive, Room 5217A, and Developmental Neuroscience Integrated 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., MSC 7846, Bethesda, MD 20892, 301–408– Review Group; Molecular as amended. The grant applications and 9115, [email protected]. Neuropharmacology and Signaling Study Section. the discussions could disclose Name of Committee: Center for Scientific confidential trade secrets or commercial Review Special Emphasis Panel; RFA–AT– Date: October 22–23, 2020. property such as patentable material, 21–001: Complementary and Integrative Time: 9:00 a.m. to 6:00 p.m. Agenda: To review and evaluate grant and personal information concerning Approaches to Modulation of Glymphatic- Lymphatic Systems. applications. individuals associated with the grant Place: National Institutes of Health, applications, the disclosure of which Date: October 21, 2020. Time: 10:00 a.m. to 5:00 p.m. Rockledge II, 6701 Rockledge Drive, would constitute a clearly unwarranted Agenda: To review and evaluate grant Bethesda, MD 20892 (Virtual Meeting). invasion of personal privacy. applications. Contact Person: Vanessa S. Boyce, Ph.D., Name of Committee: Vascular and Place: National Institutes of Health, 6701 Scientific Review Officer, Center for Hematology Integrated Review Group; Rockledge Drive, Bethesda, MD 20892 Scientific Review, National Institutes of Hypertension and Microcirculation Study (Virtual Meeting). Health, 6701 Rockledge Drive, Rm. 4016F, Section. Contact Person: Paula Elyse Schauwecker, MSC 7812, Bethesda, MD 20892, (301) 435– Date: October 19–20, 2020. Ph.D., Scientific Review Officer, National 0908, [email protected]. Time: 9:00 a.m. to 6:00 p.m. Institutes of Health, Center for Scientific (Catalogue of Federal Domestic Assistance Agenda: To review and evaluate grant Review, 6701 Rockledge Drive, Room 5211, Program Nos. 93.306, Comparative Medicine; applications. Bethesda, MD 20892, 301–760–8207, 93.333, Clinical Research, 93.306, 93.333, Place: National Institutes of Health, [email protected]. 93.337, 93.393–93.396, 93.837–93.844, Rockledge II, 6701 Rockledge Drive, Name of Committee: Brain Disorders and 93.846–93.878, 93.892, 93.893, National Bethesda, MD 20892 (Virtual Meeting). Clinical Neuroscience Integrated Review Institutes of Health, HHS)

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Dated: September 17, 2020. 402–1770; email: ORWHComms@ DEPARTMENT OF HEALTH AND Melanie J. Pantoja, od.nih.gov. HUMAN SERVICES Program Analyst, Office of Federal Advisory Committee Policy. SUPPLEMENTARY INFORMATION: In National Institutes of Health [FR Doc. 2020–20991 Filed 9–22–20; 8:45 am] accordance with 42 U.S.C. 287d, of the National Cancer Institute; Notice of BILLING CODE 4140–01–P Public Health Service Act, as amended and in keeping with the 30th Meeting anniversary of ORWH putting science to Pursuant to section 10(a) of the DEPARTMENT OF HEALTH AND work for the health of women across Federal Advisory Committee Act, as HUMAN SERVICES NIH, these meetings offer enlightening amended, notice is hereby given of a virtual presentations on health research, National Institutes of Health meeting of the Frederick National scientific advances on the influence of Laboratory Advisory Committee to the Building Interdisciplinary Research sex and gender in health and disease, National Cancer Institute. and progress for women in biomedical Careers in Women’s Health (BIRCWH) The meeting will be held as a virtual careers. Annual Meeting, and the Specialized meeting and open to the public. Centers of Research Excellence Celebrating its 20th year, BIRCWH is Individuals who plan to view the virtual (SCORE) Annual Meeting Keynote an institutional mentored career- meeting and need special assistance or Address development grant program connecting other reasonable accommodations to AGENCY: National Institutes of Health, junior faculty, known as BIRCWH view the meeting, should notify the HHS. Scholars, to senior faculty with shared Contact Person listed below in advance ACTION: Notice. interest in women’s health and sex of the meeting. The meeting will be differences research. The BIRCWH videocast and can be accessed from the SUMMARY: The Building Annual Meeting brings BIRCWH NIH Videocasting and Podcasting Interdisciplinary Research Careers in Scholars and faculty together to share website (http://videocast.nih.gov/). Women’s Health (BIRCWH) Annual research and experiences. The BIRCWH Name of Committee: Frederick National Meeting, held virtually December 14, 4th Ruth L. Kirschstein Memorial Laboratory Advisory Committee to the 2020, sponsored by the Office of Lectureship will focus on the National Cancer Institute. Research on Women’s Health (ORWH), importance of and improvements to be Date: October 14, 2020. will focus on mentoring young made in mentoring young investigators. Time: 1:00 p.m. to 4:30 p.m. investigators, present their research Agenda: Ongoing and new activities at the The meeting will also include findings, and celebrate the 20th Frederick National Laboratory for Cancer presentations on research findings by anniversary of the program. The Research. several leading BIRCWH Scholars. Specialized Centers of Research Place: National Cancer Institute Shady Patricia E. Molina, M.D., Ph.D., Richard Grove, 9609 Medical Center Drive, Rockville, Excellence on Sex Differences (SCORE) MD 20850 (Virtual Meeting). Annual Meeting keynote address, held Ashman Professor and Head, Department of Physiology, Louisiana Contact Person: Caron A. Lyman, Ph.D., virtually on December 16, 2020, Executive Secretary, National Cancer sponsored by ORWH, will offer the State University School of Medicine, Institute, National Institutes of Health, 9609 perspective of an editor of The Lancet will deliver a special Innovation talk to Medical Center Drive, Room 7W126, on sex differences research and the celebrate the 20th anniversary of the Bethesda, MD 20892–9750, 240–276–6348, health of women. Both of these BIRCWH program and close the session. [email protected]. programs are signature programs created SCORE is the only NIH cooperative Any interested person may file written by ORWH in partnership with a number agreement program supporting disease- comments with the committee by forwarding the statement to the Contact Person listed on of National Institutes of Health (NIH) agnostic research on sex differences. institutes and centers. this notice. The statement should include the Each SCORE program serves as a name, address, telephone number and when DATES: The BIRCWH Annual Meeting national resource for translational applicable, the business or professional will be held virtually on December 14, research, at multiple levels of analysis, affiliation of the interested person. 2020, from 10:00 a.m. to 5:00 p.m. EST. to identify the role of biological sex Information is also available on the The SCORE Annual Meeting keynote differences in the health of women. At Institute’s/Center’s home page: http:// address will be held virtually on deainfo.nci.nih.gov/advisory/fac/fac.htm, this year’s SCORE Annual Meeting, where an agenda, instructions for access, and December 16, 2020, from 10:45 a.m. to Jocalyn Clark, Ph.D., Executive Editor, 11:30 a.m. EST. any additional information for the meeting The Lancet, will present the keynote will be posted when available. ADDRESSES: The BIRCWH Annual address: ‘‘Sex Differences Research and Meeting and the SCORE Annual (Catalogue of Federal Domestic Assistance the Health of Women: An Editor’s Program Nos. 93.392, Cancer Construction; Meeting keynote address are virtual Perspective.’’ 93.393, Cancer Cause and Prevention events. Event information can be found The BIRCWH Annual Meeting and the Research; 93.394, Cancer Detection and on the ORWH website: https:// Diagnosis Research; 93.395, Cancer orwh.od.nih.gov/about/newsroom/ SCORE Annual Meeting keynote Treatment Research; 93.396, Cancer Biology events. address are free and open to the public. Research; 93.397, Cancer Centers Support; 93.398, Cancer Research Manpower; 93.399, FOR FURTHER INFORMATION CONTACT: For Date: September 17, 2020. Cancer Control, National Institutes of Health, information concerning these meetings, Lawrence A. Tabak, HHS) see the ORWH website, https:// Principal Deputy Director, National Institutes Dated: September 17, 2020. orwh.od.nih.gov/about/newsroom/ of Health. Melanie J. Pantoja, events, or contact Lamont Williams, [FR Doc. 2020–21030 Filed 9–22–20; 8:45 am] Communications Director, Office of Program Analyst, Office of Federal Advisory BILLING CODE 4140–01–P Research on Women’s Health, 6707 Committee Policy. Democracy Boulevard, Suite 400, [FR Doc. 2020–20995 Filed 9–22–20; 8:45 am] Bethesda, MD 20817, telephone: 301– BILLING CODE 4140–01–P

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DEPARTMENT OF HEALTH AND Contact Person: Ming Yan, MD, Ph.D., Place: National Institute on Aging, HUMAN SERVICES Scientific Review Officer, Immunology Gateway Building, 7201 Wisconsin Avenue, (IMM), DPPS, Center for Scientific Review, Bethesda, MD 20892, (Video Meeting). National Institutes of Health National Institute of Nursing Research, Contact Person: Anita H. Undale, MD, National Institutes of Health, 6701 Rockledge Ph.D., Scientific Review Officer, Scientific National Institute of Nursing Research: Drive, RM 4205, Bethesda, MD 20892, (301) Review Branch, National Institute on Aging, Notice of Closed Meetings 594–0343, [email protected]. National Institutes of Health, Gateway (Catalogue of Federal Domestic Assistance Building, Suite 2W200, 7201 Wisconsin Pursuant to section 10(d) of the Program Nos. 93.361, Nursing Research, Avenue, Bethesda, MD 20892, (301) 827– Federal Advisory Committee Act, as National Institutes of Health, HHS) 7428, [email protected]. (Catalogue of Federal Domestic Assistance amended, notice is hereby given of the Dated: September 17, 2020. following meetings. Program Nos. 93.866, Aging Research, Miguelina Perez, The meetings will be closed to the National Institutes of Health, HHS) Program Analyst, Office of Federal Advisory public in accordance with the Dated: September 17, 2020. Committee Policy. provisions set forth in sections Miguelina Perez, [FR Doc. 2020–20942 Filed 9–22–20; 8:45 am] 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Program Analyst, Office of Federal Advisory BILLING CODE 4140–01–P as amended. The grant applications and Committee Policy. the discussions could disclose [FR Doc. 2020–20941 Filed 9–22–20; 8:45 am] confidential trade secrets or commercial DEPARTMENT OF HEALTH AND BILLING CODE 4140–01–P property such as patentable material, HUMAN SERVICES and personal information concerning individuals associated with the grant National Institutes of Health DEPARTMENT OF HOMELAND applications, the disclosure of which SECURITY would constitute a clearly unwarranted National Institute on Aging: Notice of invasion of personal privacy. Closed Meetings U.S. Customs and Border Protection Name of Committee: National Institute of [1651–0064] Nursing Research Special Emphasis Panel; Pursuant to section 10(d) of the Federal Advisory Committee Act, as Institutional Training Grants. Agency Information Collection Date: October 2, 2020. amended, notice is hereby given of the Time: 9:00 a.m. to 5:00 p.m. following meetings. Activities: Create/Update Importer Identity Form (CBP Form 5106) Agenda: To review and evaluate grant The meetings will be closed to the applications. Place: National Institute of Nursing public in accordance with the AGENCY: U.S. Customs and Border Research, National Institutes of Health, 6701 provisions set forth in sections Protection (CBP), Department of Democracy Boulevard, Bethesda, MD 20892, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Homeland Security. (Virtual Meeting). as amended. The grant applications and ACTION: 60-Day notice and request for Contact Person: Weiqun Li, MD, Scientific the discussions could disclose comments; extension of an existing Review Officer, National Institute of Nursing confidential trade secrets or commercial collection of information. Research, National Institutes of Health, 6701 property such as patentable material, Democracy Blvd., Ste. 710, Bethesda, MD SUMMARY: The Department of Homeland 20892, (301) 594–5966, [email protected]. and personal information concerning individuals associated with the grant Security, U.S. Customs and Border This notice is being published less than 15 Protection will be submitting the days prior to the meeting due to the timing applications, the disclosure of which limitations imposed by the review and would constitute a clearly unwarranted following information collection request funding cycle. invasion of personal privacy. to the Office of Management and Budget (OMB) for review and approval in Name of Committee: National Institute of Name of Committee: National Institute on Nursing Research Special Emphasis Panel; Aging Special Emphasis Panel; Member accordance with the Paperwork Clinical Trial Planning Grants. Conflict SEP. Reduction Act of 1995 (PRA). The Date: October 9, 2020. Date: September 25, 2020. information collection is published in Time: 11:00 a.m. to 3:00 p.m. Time: 9:30 a.m. to 9:50 a.m. the Federal Register to obtain comments Agenda: To review and evaluate grant Agenda: To review and evaluate grant from the public and affected agencies. applications. applications. Comments are encouraged and must be Place: National Institute of Nursing Place: National Institute on Aging, Research, National Institutes of Health, 6701 submitted (no later than November 23, Gateway Building, 7201 Wisconsin Avenue, 2020) to be assured of consideration. Democracy Boulevard, Bethesda, MD 20892, Bethesda, MD 20892, (Video Meeting). (Virtual Meeting). Contact Person: Greg Bissonette, Ph.D., ADDRESSES: Written comments and/or Contact Person: Ming Yan, MD, Ph.D., Scientific Review Officer, Scientific Review suggestions regarding the item(s) Scientific Review Officer, Immunology Branch, National Institute on Aging, National contained in this notice must include (IMM), DPPS, Center for Scientific Review, Institutes of Health, 7201 Wisconsin Avenue, the OMB Control Number 1651–0064 in National Institute of Nursing Research, Gateway Building, Suite 2W200, Bethesda, National Institutes of Health, 6701 Rockledge the subject line and the agency name. MD 20892, (301) 402–1622, bissonettegb@ Drive, RM 4205 Bethesda, MD 20892, (301) To avoid duplicate submissions, please mail.nih.gov. 594–0343, [email protected]. use only one of the following methods This notice is being published less than 15 Name of Committee: National Institute of to submit comments: Nursing Research Special Emphasis Panel; days prior to the meeting due to the timing (1) Email. Submit comments to: CBP_ Training Grant Applications. limitations imposed by the review and [email protected]. funding cycle. Date: October 30, 2020. (2) Mail. Submit written comments to Time: 11:00 a.m. to 2:00 p.m. Name of Committee: National Institute on CBP Paperwork Reduction Act Officer, Aging Special Emphasis Panel; Alzheimer’s Agenda: To review and evaluate grant U.S. Customs and Border Protection, applications. and Multisystem Aging. Place: National Institute of Nursing Date: October 15, 2020. Office of Trade, Regulations and Research, National Institutes of Health, 6701 Time: 1:00 p.m. to 3:00 p.m. Rulings, Economic Impact Analysis Democracy Boulevard, Bethesda, MD 20892, Agenda: To review and evaluate grant Branch, 90 K Street NE, 10th Floor, (Virtual Meeting). applications. Washington, DC 20229–1177.

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FOR FURTHER INFORMATION CONTACT: Affected Public: Businesses. DEPARTMENT OF HOUSING AND Requests for additional PRA information Abstract: The collection of the URBAN DEVELOPMENT should be directed to Seth Renkema, information on the ‘‘Create/Update Chief, Economic Impact Analysis [Docket No. FR–7028–N–07; OMB Control Importer Identity Form’’, commonly No.: 2577–0292] Branch, U.S. Customs and Border referred to as the ‘‘CBP Form 5106’’ is Protection, Office of Trade, Regulations the basis for establishing bond coverage, 60-Day Notice of Proposed Information and Rulings, 90 K Street NE, 10th Floor, release and entry of merchandise, Collection: Emergency Waivers Washington, DC 20229–1177, liquidation and the issuance of bills and Reporting Telephone number 202–325–0056 or via refunds. Members of the trade email [email protected]. Please AGENCY: Office of the Assistant note that the contact information community use the Create/Update Secretary for Public and Indian provided here is solely for questions Importer Identification Form to register Housing, PIH, HUD. regarding this notice. Individuals an entity as an Importer of Record (IOR) ACTION: Notice. seeking information about other CBP on the Automated Commercial programs should contact the CBP Environment. Registering as IOR with SUMMARY: HUD is seeking approval from National Customer Service Center at CBP is required if an entity intends to the Office of Management and Budget 877–227–5511, (TTY) 1–800–877–8339, transact Customs business and be (OMB) for the information collection or CBP website at https://www.cbp. involved as an importer, consignee/ described below. In accordance with the gov/. ultimate consignee, any individual or Paperwork Reduction Act, HUD is SUPPLEMENTARY INFORMATION: CBP organization involved as a party, such as requesting comment from all interested invites the general public and other 4811 party, or sold to party on an parties on the proposed collection of Federal agencies to comment on the informal or formal entry. The number information. The purpose of this notice proposed and/or continuing information used to identify an IOR is either an is to allow for 60 days of public collections pursuant to the Paperwork Internal Revenue Service (IRS) comment. Reduction Act of 1995 (44 U.S.C. 3501 Employer Identification Number (EIN), a DATES: Comments Due Date: November et seq.). This process is conducted in Social Security Number (SSN), or a 23, 2020. accordance with 5 CFR 1320.8. Written CBP-Assigned Number. By collecting, ADDRESSES: Interested persons are comments and suggestions from the certain information from the importer invited to submit comments regarding public and affected agencies should enables CBP to verify the identity of the this proposal. Comments should refer to address one or more of the following importers, meeting IOR regulatory the proposal by name and/or OMB four points: (1) Whether the proposed requirements for collecting information Control Number and should be sent to: collection of information is necessary (19 CFR 24.25). Colette Pollard, Reports Management for the proper performance of the Importers, each person, business firm, Officer, QDAM, Department of Housing functions of the agency, including government agency, or other and Urban Development, 451 7th Street whether the information will have organization that intends to file an SW, Room 4176, Washington, DC practical utility; (2) the accuracy of the import entry shall file CBP Form 5106 20410–5000; telephone 202–402–3400 agency’s estimate of the burden of the with the first formal entry or request for (this is not a toll-free number) or email proposed collection of information, services that will result in the issuance at [email protected] for a copy of including the validity of the of a bill or a refund check upon the proposed forms or other available methodology and assumptions used; (3) adjustment of a cash collection. This information. Persons with hearing or suggestions to enhance the quality, form is also filed for the ultimate speech impairments may access this utility, and clarity of the information to consignee for whom an entry is being number through TTY by calling the toll- be collected; and (4) suggestions to made. free Federal Relay Service at (800) 877– minimize the burden of the collection of 8339. information on those who are to CBP Form 5106 is authorized by 19 FOR FURTHER INFORMATION CONTACT: respond, including through the use of U.S.C 1484 and 31 U.S.C. 7701, and Dacia Rogers, Office of Policy, Programs appropriate automated, electronic, provided for by 19 CFR 24.5. The and Legislative Initiatives, PIH, mechanical, or other technological current version of the form is accessible Department of Housing and Urban collection techniques or other forms of at: http://forms.cbp.gov/pdf/CBP_Form_ Development, 451 7th Street SW, (Room information technology, e.g., permitting 5106.pdf. 3178), Washington, DC 20410; electronic submission of responses. The Estimated Number of Respondents: telephone 202–708–3000, extension comments that are submitted will be 300,000. 3374, (this is not a toll-free number). summarized and included in the request Estimated Number of Annual Persons with hearing or speech for approval. All comments will become Responses per Respondent: 1. impairments may access this number a matter of public record. Estimated Number of Total Annual via TTY by calling the Federal Relay Overview of This Information Responses: 300,000. Service at (800) 877–8339. Copies of Collection available documents submitted to OMB Estimated Time per Response: 45 may be obtained from Ms. Rogers. Title: Create/Update Importer Identity minutes. Form (CBP Form 5106). SUPPLEMENTARY INFORMATION: This OMB Number: 1651–0064. Estimated Total Annual Burden notice informs the public that HUD is Form number: CBP Form 5106. Hours: 225,000. seeking approval from OMB for the Current Actions: This submission is Dated: September 18, 2020. information collection described in being made to extend the expiration Section A. date of this information collection with Seth D. Renkema, no change to the burden hours or the Branch Chief, Economic Impact Analysis A. Overview of Information Collection information being collected. Branch, U.S. Customs and Border Protection. Title of Information Collection: Type of Review: Extension (without [FR Doc. 2020–21026 Filed 9–22–20; 8:45 am] Emergency Waivers Reporting. change). BILLING CODE 9111–14–P OMB Approval Number: 2577–0292.

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Type of Request: Extension of a requirements related to fair housing, Requirements Available During CY2020 currently approved collection. nondiscrimination, labor standards, and and CY2021 to Public Housing Agencies Form Numbers: HUD–5883, HUD– the environment).... upon a finding to Assist with Recovery and Relief 5884, HUD–5885. by the Secretary that any such waivers Efforts. This notice lists the specific Description of the need for the or alternative requirements are waivers and relief options available for information and proposed use: The necessary for the safe and effective use by PHAs. purpose of this notice is to solicit public administration of these funds . . . to No respondent is mandated to use a comment on the proposed Emergency prevent, prepare for, and respond to waiver but use of the waivers is Waivers Reporting. coronavirus.’’ encouraged by HUD in response to In response to the national COVID–19 HUD issued a notice detailing the specific emergencies to reduce burdens emergency, the Coronavirus Aid, Relief, waivers available in response to the and administrative requirements. The and Economic Security Act (CARES COVID–19 crisis, posted on April 10, notice announcing the availability of Act) was enacted on March 27, 2020. 2020, as PIH Notice 2020–05. This waivers becomes the checklist which The Act gives the Department the ability notice states: PHAs are required to keep respondents use to note responses as to to waive regulatory and statutory written documentation that record which waivers they elected to use and provisions that apply to Public Housing which waivers the PHA applied to their their start date. Agencies (PHAs). Specifically, the programs(s) and the effective dates. Estimation of the total numbers of CARES Act allows the Secretary of HUD In response to presidentially declared hours needed to prepare the information to ‘‘waive, or specify alternative Major Disaster Declarations (MDDs), collection including number of requirements for, any provision of any FR–6050–N–04 is: Relief from HUD respondents, frequency of responses, statute or regulation (except for Public Housing and Section 8 and hours of response:

Burden hour Information collection Number of Frequency of Responses per Annual Hourly cost Total annual respondents response per annum response burden hours cost

HUD–5883 ...... 3,800 1 3,800 1 3,800 36.86 $140,068 HUD–5884 ...... 300 1 300 1 300 36.86 11,058 HUD–5885 ...... 1,000 1 1,000 1 1,000 36.86 36,860

Total ...... 5,100 ...... 5,100 ...... 5,100 36.86 187,986

B. Solicitation of Public Comment Dated: September 18, 2020. ADDRESSES: Interested persons are Merrie Nichols-Dixon, invited to submit comments regarding This notice is soliciting comments Director, Office of Policy, Programs and this proposal. Comments should refer to from members of the public and affected Legislative Initiatives. the proposal by name and/or OMB parties concerning the collection of [FR Doc. 2020–20998 Filed 9–22–20; 8:45 am] Control Number and should be sent to: information described in Section A on BILLING CODE 4210–67–P Colette Pollard, Reports Management the following: Officer, QDAM, Department of Housing (1) Whether the proposed collection and Urban Development, 451 7th Street of information is necessary for the DEPARTMENT OF HOUSING AND SW, Room 4176, Washington, DC proper performance of the functions of URBAN DEVELOPMENT 20410–5000; telephone 202–402–5564 the agency, including whether the (this is not a toll-free number) or email at [email protected] for a copy of information will have practical utility; [Docket No. FR–7028–N–08] the proposed forms or other available (2) The accuracy of the agency’s 60-Day Notice of Proposed Information information. Persons with hearing or estimate of the burden of the proposed Collection: Grant Drawdown Payment speech impairments may access this collection of information; Request/Line of Credit Control System number through TTY by calling the toll- (3) Ways to enhance the quality, (LOCCS)/eLOCCS; OMB Control No.: free Federal Relay Service at (800) 877– utility, and clarity of the information to 2577–0166 8339. be collected; and FOR FURTHER INFORMATION CONTACT: AGENCY: Office of the Assistant Dacia Rogers, Office of Policy, Programs (4) Ways to minimize the burden of Secretary for Public and Indian and Legislative Initiatives, PIH, the collection of information on those Housing, PIH, HUD. Department of Housing and Urban who are to respond; including through ACTION: Notice. Development, 451 7th Street SW, the use of appropriate automated (L’Enfant Plaza, Room 2206), collection techniques or other forms of SUMMARY: HUD is seeking approval from Washington, DC 20410; telephone 202– information technology, e.g., permitting the Office of Management and Budget 402–3374 (this is not a toll-free electronic submission of responses. (OMB) for the information collection number). Persons with hearing or HUD encourages interested parties to described below. In accordance with the speech impairments may access this submit comment in response to these Paperwork Reduction Act, HUD is number via TTY by calling the Federal questions requesting comment from all interested Relay Service at (800) 877–8339 (this is parties on the proposed collection of a toll-free number). Copies of available C. Authority information. The purpose of this notice documents submitted to OMB may be is to allow for 60 days of public obtained from Ms. Rogers. Section 3507 of the Paperwork comment. Reduction Act of 1995, 44 U.S.C. SUPPLEMENTARY INFORMATION: This Chapter 35. DATES: Comments Due Date: November notice informs the public that HUD is 23, 2020. seeking approval from OMB for the

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information collection described in Official. The Secure Systems supports to the Program Office for review. The Section A. many HUD applications, one of which LOCCS system will automatically is Line of Credit Control System generate an Access Authorization email A. Overview of Information Collection (eLOCCS) . The eLOCCS is letting the user know that HUD–27054E Title of Information Collection: Grant implementing a Single Sign-On solution has been processed, enabling grantees to Drawdown Payment Request/LOCCS/ under Secure Systems, where Grant access their eLOCCS account. The VRS Voice Activated. recipients will be recognized and information collected on the payment OMB Approval Number: 2577–0166. authenticated based on a Secure System voucher will also be used as an internal Type of Request: Extension of a ID and will no longer separately Sign- control measure to ensure the lawful currently approved collection. in to eLOCCS. Grant recipients use and appropriate disbursement of Form Numbers: 50080–CFP; 50080– LOCCS system to request funds from Federal funds as well as provide a OFND; 50080–SC; 50080–PHTA; 50080– HUD by signing into Secure Systems, as service to program recipients. URP; 50080–FSS; 50080–IHBG; 50080– they normally do, and select the Line of TIHD. Credit Control System (eLOCCS) link. Below is a link where the HUD– Description of the need for the Some Grantees (all new or reinstated 27054E LOCCS Authorized Form can be information and proposed use: On April users who need to access eLOCCS) will accessed: http://portal.hud.gov/ 17, 2017, the Grant Drawdown Payment need to complete the LOCCS HUD– hudportal/documents/ Request/Voice Response System (VRS) 27054E form, have it notarized, send the huddoc?id=27054E.pdf. was converted to a Business Partner original HUD–27054E LOCCS Access Respondents: PHAs, state or local Registration and Secure Systems for Authorization Form (with the original government. Tribes and tribally both the user and the user’s Approving signature and notary seal) via U.S. Mail designated housing entities.

Number of Frequency of Responses Burden hour Annual burden * Hourly cost Information collection respondents responses per annum per response hours per response Annual cost

Capital Fund 50080– CFP ...... 3,100 12 37,200 .25 9,300 24.08 233,944.00 Operating Fund 50080– OFND ...... 3,100 12 37,200 .25 9,300 24.08 233,944.00 Resident Opportunities and Supportive Serv- ices (ROSS) SC 50080–SC ...... 330 12 3,960 .25 990 24.08 23,839.20 Public Housing Tech- nical Assistance 50080–PHTA ...... 12 12 144 .25 36 24.08 866.88 Hope VI 50080–URP ... 50 12 600 .50 300 24.08 7,224.00 Family Self-Sufficiency 50080–FSS ...... 700 12 8,400 .25 2,100 24.08 50,568.00 Indian Housing Block Grant 50080–IHBG ... 361 12 4,332 .25 1,083 24.08 26,078.64 Traditional Indian Hous- ing Development 50080–TIHD ...... 32 12 384 .25 96 24.08 2,190.72

Totals ...... 7,685 ...... 92,220 ...... 23,205 ...... $558,776.40

B. Solicitation of Public Comment information technology, e.g., permitting DEPARTMENT OF THE INTERIOR electronic submission of responses. This notice is soliciting comments Fish and Wildlife Service from members of the public and affected HUD encourages interested parties to parties concerning the collection of submit comment in response to these [FWS–R1–ES–2020–N130; information described in Section A on questions. FXES11130100000–201–FF01E00000] the following: C. Authority (1) Whether the proposed collection Endangered Species; Receipt of Recovery Permit Application of information is necessary for the Section 3507 of the Paperwork proper performance of the functions of Reduction Act of 1995, 44 U.S.C. 3507. AGENCY: Fish and Wildlife Service, the agency, including whether the Interior. information will have practical utility; Dated: September 18, 2020. Merrie Nichols-Dixon, ACTION: Notice of receipt of permit (2) The accuracy of the agency’s application; request for comments. estimate of the burden of the proposed Director, Office of Policy, Programs and collection of information; Legislative Initiatives. SUMMARY: We, the U.S. Fish and (3) Ways to enhance the quality, [FR Doc. 2020–20999 Filed 9–22–20; 8:45 am] Wildlife Service, have received an utility, and clarity of the information to BILLING CODE 4210–67–P application for a permit to conduct be collected; and activities intended to enhance the (4) Ways to minimize the burden of propagation and survival of endangered the collection of information on those species under the Endangered Species who are to respond; including through Act of 1973, as amended. We invite the the use of appropriate automated public and local, State, Tribal, and collection techniques or other forms of Federal agencies to comment on this

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application. Before issuing the Federal Relay Service at 1–800–877– propagation or survival of the species. requested permit, we will take into 8339 for TTY assistance. These activities often include such consideration any information that we SUPPLEMENTARY INFORMATION: We, the prohibited actions as capture and receive during the public comment U.S. Fish and Wildlife Service, invite collection. Our regulations period. the public to comment on an implementing section 10(a)(1)(A) for these permits are found in the Code of DATES: We must receive your written application for a permit under section comments on or before October 23, 10(a)(1)(A) of the Endangered Species Federal Regulations (CFR) at 50 CFR 2020. Act, as amended (ESA; 16 U.S.C. 1531 17.22 for endangered wildlife species, et seq.). The requested permit would 50 CFR 17.32 for threatened wildlife ADDRESSES: Document availability and allow the applicant to conduct activities species, 50 CFR 17.62 for endangered comment submission: Submit a request intended to promote recovery of species plant species, and 50 CFR 17.72 for for a copy of the application and related that are listed as endangered under the threatened plant species. documents and submit any comments ESA. by one of the following methods. All Permit Application Available for requests and comments should specify Background Review and Comment the applicant name and application With some exceptions, the ESA Proposed activities in the following number (e.g., Dana Ross TE–08964A–2): prohibits activities that constitute take permit request are for the recovery and • Email: [email protected]. of listed species unless a Federal permit enhancement of propagation or survival • U.S. Mail: Marilet Zablan, Program is issued that allows such activity. The of the species in the wild. The ESA Manager, Restoration and Endangered ESA’s definition of ‘‘take’’ includes such requires that we invite public comment Species Classification, Ecological activities as pursuing, harassing, before issuing this permit. Accordingly, Services, U.S. Fish and Wildlife Service, trapping, capturing, or collecting, in we invite local, State, Tribal, and Portland Regional Office, 911 NE 11th addition to hunting, shooting, harming, Federal agencies and the public to Avenue, Portland, OR 97232–4181. wounding, or killing. submit written data, views, or FOR FURTHER INFORMATION CONTACT: A recovery permit issued by us under arguments with respect to this Colleen Henson, Regional Recovery section 10(a)(1)(A) of the ESA application. The comments and Permit Coordinator, Ecological Services, authorizes the permittee to conduct recommendations that will be most (503) 231–6131 (phone); permitsR1ES@ activities with endangered or threatened useful and likely to influence agency fws.gov (email). Individuals who are species for scientific purposes that decisions are those supported by hearing or speech impaired may call the promote recovery or for enhancement of quantitative information or studies.

Applicant, city, Application No. state Species Location Take activity Permit action

TE–71614D ...... Hawaii Marine Green sea turtle (Chelonia Hawaiian Archi- Harass by receipt and rehabilita- New. Mammal Alli- mydas); Hawksbill sea turtle pelago, and tion of stranded sea turtles, ance, Inc., (Eretmochelys imbricata); the Pacific Is- educational and training activi- Kailua, HI. Leatherback sea turtle lands Region. ties, tag, transport, release, (Dermochelys coriacea); Log- and salvage. gerhead sea turtle (Caretta caretta).

Public Availability of Comments Next Steps DEPARTMENT OF THE INTERIOR Written comments we receive become If we decide to issue a permit to the Fish and Wildlife Service part of the administrative record applicant listed in this notice, we will associated with this action. Before publish a notice in the Federal Register. [Docket No. FWS–HQ–IA–2020–0099; including your address, phone number, FXIA16710900000–201–FF09A30000] Authority email address, or other personal identifying information in your Foreign Endangered Species; Marine We publish this notice under section Mammals; Receipt of Permit comment, you should be aware that 10(c) of the Endangered Species Act of Applications your entire comment—including your 1973, as amended (16 U.S.C. 1531 et personal identifying information—may seq.). AGENCY: Fish and Wildlife Service, be made publicly available at any time. Interior. Sarah B. Hall, While you can request in your comment ACTION: Notice of receipt of permit that we withhold your personal Acting Assistant Regional Director— applications; request for comments. identifying information from public Ecological Services, Pacific Region. review, we cannot guarantee that we [FR Doc. 2020–20949 Filed 9–22–20; 8:45 am] SUMMARY: We, the U.S. Fish and will be able to do so. All submissions BILLING CODE 4333–15–P Wildlife Service (Service), invite the from organizations or businesses, and public to comment on applications to from individuals identifying themselves conduct certain activities with foreign as representatives or officials of species that are listed as endangered organizations or businesses, will be under the Endangered Species Act made available for public disclosure in (ESA) and foreign or native species for which the Service has jurisdiction their entirety. under the Marine Mammal Protection Act (MMPA). With some exceptions, the ESA and the MMPA prohibit activities

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with listed species unless Federal information to allow us to authenticate Regulations in part 17. Service authorization is issued that allows such any scientific or commercial data you regulations regarding permits for any activities. The ESA and MMPA also include. The comments and activity otherwise prohibited by the require that we invite public comment recommendations that will be most MMPA with respect to any marine before issuing permits for any activity useful and likely to influence agency mammals are available in title 50 of the otherwise prohibited by the ESA or decisions are: (1) Those supported by Code of Federal Regulations in part 18. MMPA with respect to any endangered quantitative information or studies; and Concurrent with publishing this notice species or marine mammals. (2) those that include citations to, and in the Federal Register, we are DATES: We must receive comments by analyses of, the applicable laws and forwarding copies of the marine October 23, 2020. regulations. mammal applications to the Marine ADDRESSES: B. May I review comments submitted by Mammal Commission and the Obtaining Documents: The others? Committee of Scientific Advisors for their review. applications, application supporting You may view and comment on materials, and any comments and other others’ public comments at http:// III. Permit Applications materials that we receive will be www.regulations.gov, unless our We invite comments on the following available for public inspection at http:// allowing so would violate the Privacy applications. www.regulations.gov in Docket No. Act (5 U.S.C. 552a) or Freedom of FWS–HQ–IA–2020–0099. Information Act (5 U.S.C. 552). A. Endangered Species Submitting Comments: When Applicant: Animal Ark Wildlife submitting comments, please specify the C. Who will see my comments? Sanctuary, Reno NV, Permit No. 69790D name of the applicant and the permit If you submit a comment at http:// number at the beginning of your www.regulations.gov, your entire The applicant requests a permit to comment. You may submit comments comment, including any personal purchase three male captive-born by one of the following methods: identifying information, will be posted cheetahs (Acinonyx jubatus) in • Internet: http:// on the website. If you submit a interstate commerce from Tanganyika www.regulations.gov. Search for and hardcopy comment that includes Wildlife Foundation, Goddard, , for submit comments on Docket No. FWS– personal identifying information, such the purpose of enhancing the HQ–IA–2020–0099. as your address, phone number, or propagation or survival of the species. • U.S. mail or hand-delivery: Public email address, you may request at the This notification is for a single interstate Comments Processing, Attn: Docket No. top of your document that we withhold commerce activity. FWS–HQ–IA–2020–0099; U.S. Fish and this information from public review. Applicant: National Museum of Natural Wildlife Service Headquarters, MS: However, we cannot guarantee that we History, Smithsonian Institution, PRB/3W; 5275 Leesburg Pike, Falls will be able to do so. Moreover, all Washington, DC; Permit No. 56444D Church, VA 22041–3803. submissions from organizations or For more information, see Public businesses, and from individuals The applicant requests a permit to Comment Procedures under identifying themselves as import biological samples derived from SUPPLEMENTARY INFORMATION. representatives or officials of wild Amsterdam albatross (Diomedea FOR FURTHER INFORMATION CONTACT: organizations or businesses, will be amsterdamensis), band-rumped storm- Brenda Tapia, by phone at 703–358– made available for public disclosure in petrel (Oceanodroma castro), Fiji petrel 2185, via email at [email protected], or their entirety. (Pseudobulweria macgillivrayi), Mascarene black petrel (Pterodroma via the Federal Relay Service at 800– II. Background 877–8339. aterrima), cahow (Pterodroma cahow), To help us carry out our conservation and Madeira petrel (Pterodroma SUPPLEMENTARY INFORMATION: responsibilities for affected species, and madeira), taken in multiple locations, I. Public Comment Procedures in consideration of section 10(c) of the for the purpose of scientific research. Endangered Species Act of 1973, as This notification is for a single import. A. How do I comment on submitted amended (ESA; 16 U.S.C. 1531 et seq.), applications? and section 104(c) of the Marine Applicant: Maryland Zoo in Baltimore, We invite the public and local, State, Mammal Protection Act of 1972, as Baltimore, MD; Permit No. 70028D Tribal, and Federal agencies to comment amended (MMPA; 16 U.S.C. 1361 et The applicant requests a permit to on these applications. Before issuing seq.), we invite public comments on import biological samples derived from any of the requested permits, we will permit applications before final action is one wild maned wolf (Chrysocyon take into consideration any information taken. With some exceptions, the ESA brachyurus), taken in Noel Kempff that we receive during the public and MMPA prohibit certain activities Mercado National Park, Bolivia, for the comment period. with listed species unless Federal purpose of scientific research. This You may submit your comments and authorization is issued that allows such notification is for a single import. materials by one of the methods in activities. Permits issued under section Applicant: Sam Noble Oklahoma ADDRESSES. We will not consider 10(a)(1)(A) of the ESA allow otherwise comments sent by email or fax, or to an prohibited activities for scientific Museum of Natural History, Norman, OK; Permit No. 075249 address not in ADDRESSES. We will not purposes or to enhance the propagation consider or include in our or survival of the affected species. The applicant requests authorization administrative record comments we Service regulations regarding prohibited to export and reimport nonliving receive after the close of the comment activities with endangered species, museum specimens of endangered period (see DATES). captive-bred wildlife registrations, and species previously accessioned into the When submitting comments, please permits for any activity otherwise applicant’s collection for scientific specify the name of the applicant and prohibited by the ESA with respect to research. This notification covers the permit number at the beginning of any endangered species are available in activities to be conducted by the your comment. Provide sufficient title 50 of the Code of Federal applicant over a 5-year period.

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Applicant: Project Survival, Dunlap, 4901–4916). This notice is provided ACTION: Meeting notice. CA; Permit No. 71734D pursuant to section 112(4) of the Wild SUMMARY: In accordance with the The applicant requests a permit to Bird Conservation Act of 1992 (50 CFR 15.26(c)). Federal Advisory Committee Act, the import one male and one female Department of the Interior, Office of the captive-born cheetah (Acinonyx jubatus) Applicant: Gregory P. Sercel, Pasadena, Secretary, is announcing that the Exxon from Cango Wildlife Ranch, CA; Permit No. 76644D Valdez Oil Spill (EVOS) Trustee Oudtshoorn, South Africa, for the The applicant wishes to establish a Council’s Public Advisory Committee purpose of enhancing the propagation or cooperative breeding program for will meet by teleconference as noted survival of the species. This notification collared lory (Phigys solitarius), blue- below. is for a single import. crowned lorikeet (Vini australis), and DATES: The virtual meeting will be held Applicant: Saint Louis Zoo, Saint Louis, cardinal lorry (Chalcopsitta cardinalis), on Tuesday, October 13, 2020, MO; Permit No. 62698C importing to the United States 48 birds beginning at 9:00 a.m. Alaska Daylight (16 of each species) currently held in The applicant requests a renewal of a Time (AKDT). facilities in captive breeding facilities in permit to import blood and swab ADDRESSES: The meeting will be virtual the Czech Republic, Italy, Germany, and samples from the Galapagos tortoise only using the Zoom meeting platform. Spain. The applicant wishes to be an (Geochelone nigra), from three locations To view a tutorial on how to join a active participant in this program, along in the Galapagos Islands, Ecuador, for Zoom meeting please go to https:// with Christine Touchton (Lecanto, scientific research. This notification support.zoom.us/hc/en-us/articles/ Florida), Charles Hawke (Portland, covers activities to be conducted by the 201362193-How-Do-I-Join-A-Meeting-. Oregon), and Jordan Berber (Atwater, applicant over a 5-year period. The video feature will be turned off for California). If approved, the program all attendees except for the EVOS Public Multiple Trophy Applicants will be overseen by the Organization of Advisory Committee, Trustee Council The following applicants request Professional Aviculturists, San Dimas, staff, presenters, and speakers during permits to import sport-hunted trophies California. public comment to limit bandwidth use of male bontebok (Damaliscus pygargus IV. Next Steps and maximize connectivity during the pygargus) culled from a captive herd After the comment period closes, we meeting. Please remain muted until you maintained under the management will make decisions regarding permit are called upon to speak. program of the Republic of South Africa, Connect to meeting using Zoom link issuance. If we issue permits to any of for the purpose of enhancing the (video and audio): https://zoom.us/j/ the applicants listed in this notice, we propagation or survival of the species. 91852919430? will publish a notice in the Federal pwd=SnBUVHdybDF0RUlHY Applicant: Gary Bourn, Bennett, CO; Register. You may locate the notice VJsdDFlTjFKQT09. Permit No. 79873D announcing the permit issuance by Meeting ID: 918 5291 9430. Applicant: Debra Mathews, Frenchtown, searching http://www.regulations.gov Passcode: 994062. MT; Permit No. 80624D for the permit number listed above in Follow the prompts, you will be asked this document. For example, to find if you would like to join audio with B. Endangered Marine Mammals and information about the potential issuance internet (your device microphone/ Marine Mammals of Permit No. 12345A, you would go to speaker) or use a telephone (follow the Applicant: Charlie Hamilton James, regulations.gov and search for prompts accordingly). Connect to the Jackson, WY; Permit No. 37946D ‘‘12345A’’. meeting via telephone (audio only, no V. Authority video): The applicant requests a permit to Dial any of the following numbers: photograph and film Southern sea otters We issue this notice under the (Enhydra lutris nereis) along the coast of authority of the Endangered Species Act (669) 900–6833 (253) 215–8782 California, for the purpose of of 1973, as amended (16 U.S.C. 1531 et (346) 248–7799 seq.), and its implementing regulations, commercial educational photography. (929) 205–6099 This notification covers activities to be and the Marine Mammal Protection Act (301) 715–8592 conducted by the applicant over a 1- of 1972, as amended (16 U.S.C. 1361 et (312) 626–6799 year period. seq.), and its implementing regulations. Enter the Meeting ID 918 5291 9430#, Applicant: Charlie Hamilton James, Brenda Tapia, there is no participant code, and press Jackson, WY; Permit No. 37058D Management Analyst/Program Analyst, *6 to mute. Please check the EVOS The applicant requests a permit to Branch of Permits, Division of Management Trustee Council website for updates Authority. photograph and film Northern sea otters regarding the virtual meeting at (Enhydra lutrls kenyoni), for up to 28 [FR Doc. 2020–20978 Filed 9–22–20; 8:45 am] www.evostc.state.ak.us/events. days, in Alaska, for the purpose of BILLING CODE 4333–15–P FOR FURTHER INFORMATION CONTACT: Dr. educational photography. This species Philip Johnson, Department of the Interior, Office of Environmental Policy is not listed under the ESA. This DEPARTMENT OF THE INTERIOR notification covers activities to be and Compliance, 1689 ‘‘C’’ Street, Suite 119, Anchorage, Alaska 99501; conducted by the applicant over a 1- Office of the Secretary year period. telephone number: (907) 271–5011; [XXXD5198NI DS61100000 DNINR0000. email: [email protected]. C. Wild Bird Conservation Act 000000 DX61104] SUPPLEMENTARY INFORMATION: The EVOS The public is invited to comment on Notice of Teleconference Meeting of Public Advisory Committee was created the following application for approval to the Exxon Valdez Oil Spill Public pursuant to Paragraph V.A.4 of the conduct certain activities with a bird Advisory Committee Memorandum of Agreement and species covered under the Wild Bird Consent Decree entered into by the Conservation Act of 1992 (16 U.S.C. AGENCY: Office of the Secretary, Interior. United States of America and the State

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of Alaska on August 27, 1991, and DEPARTMENT OF THE INTERIOR Abstract: This information collection approved by the United States District request concerns the paperwork Court for the District of Alaska in Bureau of Ocean Energy Management requirements in the regulations in 30 settlement of United States of America CFR part 551, Geological and v. State of Alaska, Civil Action No. [OMB Control Number 1010–0048; Docket Geophysical (G&G) Explorations of the ID: BOEM–2017–0016] A91–081 CV. The EVOS Public Outer Continental Shelf. This request also covers Form BOEM–0327. Advisory Committee teleconference Agency Information Collection agenda will include the FY21 Draft Section 11(g) of the Outer Continental Activities; Geological and Geophysical Shelf Lands Act (OCSLA), as amended Work Plan and FY22–31 Draft Explorations of the Outer Continental (43 U.S.C. 1340(g)), authorizes the Invitation. An opportunity for public Shelf Secretary of the Interior to prescribe comments will be provided. The final rules and regulations to govern the agenda and materials for the meeting AGENCY: Bureau of Ocean Energy Management, Interior. issuance of permits for G&G exploration will be posted on the EVOS Trustee on the OCS. The OCSLA at § 11 states ACTION: Notice of Information Council website at that ‘‘any person authorized by the Collection; request for comment. www.evostc.state.ak.us/events. All Secretary may conduct geological and EVOS Public Advisory Committee SUMMARY: In accordance with the geophysical explorations in the [O]uter meetings are open to the public. Paperwork Reduction Act of 1995, the Continental Shelf, which do not interfere with or endanger actual Public Input Bureau of Ocean Energy Management (BOEM) is proposing to renew an operations under any lease maintained Submitting Written Information or information collection request with or granted pursuant to this subchapter, Questions revisions. and which are not unduly harmful to aquatic life in such area.’’ The section Interested members of the public may DATES: Interested persons are invited to further provides that permits to conduct submit relevant information or submit comments on or before October such activities may be issued only if it questions for the Committee to consider 23, 2020. is determined that: The applicant is during the public meeting. Written ADDRESSES: Written comments and qualified; the activities will not interfere statements must be received by October recommendations for the proposed with or endanger operations under any 7, 2020, so that the information may be information collection should be sent to lease issued or maintained pursuant to made available to the Committee for the Office of Management and Budget’s OCSLA; and the activities will not be their consideration prior to this meeting. Desk Officer for the Department of the unduly harmful to aquatic life, result in Written statements must be supplied to Interior within 30 days of publication of pollution, create hazardous or unsafe Dr. Philip Johnson via email (see above) this notice to www.reginfo.gov/public/ conditions, unreasonably interfere with and/or in writing in the following do/PRAMain. Find this information other uses of the area, or disturb any formats: A hard copy with original collection by selecting ‘‘Currently under site, structure, or object of historical or 30-day Review—Open for Public signature and/or an electronic copy archaeological significance. Comments’’ or by using the search Applicants for permits are required to (acceptable file formats are Adobe function. Please provide a copy of your submit Form BOEM–0327 to provide the Acrobat PDF, Microsoft Word, or rich comments to the BOEM Information information necessary to evaluate their text file). Collection Clearance Officer, Anna qualifications, and upon approval, Public Disclosure of Comments Atkinson, Bureau of Ocean Energy respondents are issued a permit. Once Management, 45600 Woodland Road, an application is reviewed and Before including your address, phone Sterling, Virginia 20166; or by email to approved, a permit (Form BOEM–0328 number, email address, or other [email protected]. Please or Form BOEM–0329) is signed by personal identifying information in your reference Office of Management and BOEM and the permittee. comments, please be aware that your Budget (OMB) Control Number 1010– The Independent Offices entire comment, including your 0048 in the subject line of your Appropriations Act of 1950 (31 U.S.C. personal identifying information, may comments. 9701) and the Omnibus Appropriations Bill of 1996 (Pub. L. 104–134, 110 Stat. be made publicly available at any time. FOR FURTHER INFORMATION CONTACT: To 1321, April 26, 1996), as further While you can ask us in your comment request additional information about explained in OMB Circular A–25, to withhold your personal identifying this ICR, contact Anna Atkinson by authorize Federal agencies to recover information from public review, we email, or by telephone at 703–787–1025. the full cost of services that confer cannot guarantee that we will be able to You may also view the ICR at http:// special benefits. All G&G permits are do so. www.reginfo.gov/public/do/PRAMain. subject to cost recovery, and BOEM Authority: 5 U.S.C. Appendix 2. SUPPLEMENTARY INFORMATION: In regulations specify service fees for these accordance with the Paperwork Philip Johnson, requests. Reduction Act of 1995, BOEM provides Regulations to carry out these Regional Environmental Officer, Office of the general public and other Federal responsibilities are contained in 30 CFR Environmental Policy and Compliance. agencies with an opportunity to part 551 and are the subject of this [FR Doc. 2020–20955 Filed 9–22–20; 8:45 am] comment on new, proposed, revised, information collection renewal. BOEM BILLING CODE 4334–63–P and continuing collections of uses the information to: information. This helps BOEM assess • Authorize exploration to identify the impact of the information collection oil, gas, sulfur, and mineral resources in requirements and minimize the public’s the OCS; reporting burden. It also helps the • Ensure the receipt of fair value for public understand BOEM’s information mineral resources; collection requirements and provide the • Ensure that the exploration requested data in the desired format. activities do not cause harm to the

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environment or persons, or create • Form BOEM–0329 would include review and approval is a good example unsafe operations and conditions, additional language in Section VI that BOEM should strive to achieve for damage historical or archaeological Paragraph (A) stating: the G&G industry. sites, or interfere with other uses; ‘‘After a period of 10 years from the BOEM Response: Since 2012, BOEM • Analyze and evaluate preliminary issuance of the permit, the permittee must has consistently issued Gulf of Mexico or planned drilling activities; notify the Supervisor in writing if their (GOM) Geological and Geophysical • Monitor progress and activities on intention is to no longer maintain all or part (G&G) permits within 70 days. At the OCS; of the geological data, analyzed geological present, there is a great amount of • information, processed geological uncertainty related to the issuance of Acquire geological and geophysical information, and interpreted geological G&G permits in the Atlantic. However, data and information collected under a information, and provide the Supervisor 30 if decisions are made to allow for the Federal permit offshore at cost of days to request that the permittee submit for collection of seismic data, the goal reproduction; and inspection and possible retention all or part would be to issue future permits within of the geological data, analyzed geological • Determine eligibility for reasonable and predictable timeframes. reimbursement from the government for information, processed geological information, and interpreted geological Permitting timeframes are outside the certain costs. information.’’ scope of this renewal. In this renewal, BOEM is renewing Comment: We encourage BOEM to Form BOEM–0327—Requirements for Title of Collection: 30 CFR 551, explore the creation of an electronic Geological or Geophysical Explorations Geological and Geophysical permit application process. Efficiencies or Scientific Research on the Outer Explorations of the OCS. for permit processing and man-hours Continental Shelf. This form consists of OMB Control Number: 1010–0048. may be realized through electronic Form Number: the requirements for geological and • permit applications. Many countries geophysical activities requiring Permits BOEM–0327, Requirements for around the world utilize electronic and Notices, along with the application Geological or Geophysical Explorations permit application processes. This that the respondent submits to BOEM or Scientific Research on the Outer allows the applicant to monitor the for approval, as well as a nonexclusive Continental Shelf. status of the permit process and timely use agreement for scientific research, if Type of Review: Revision of a provide any information requests from applicable. currently approved collection. BOEM. This has been seen to drastically Respondents/Affected Public: Upon BOEM approval of the decrease the permit process timeline. Potential respondents comprise Federal BOEM Response: A web-based application, respondents are issued a OCS oil, gas, and sulfur permittees or permit using Form BOEM–0328, Permit process for the electronic submission/ notice filers. issuance of BOEM G&G permitting is for Geophysical Exploration for Mineral Total Estimated Number of Annual Resources or Scientific Research on the being considered for the future. Responses: 688 responses. Budgetary options are being explored. Outer Continental Shelf, for conducting Total Estimated Number of Annual geophysical exploration for mineral Comment: G&G operations are Burden Hours: 35,254 hours. consistently utilizing the same vessels resources or scientific research, or Form Respondent’s Obligation: Mandatory. BOEM–0329, Permit for Geological throughout the offshore U.S. BOEM Frequency of Collection: On occasion, should take steps to create a catalogue Exploration for Mineral Resources or annual, or as specified in permit. Scientific Research on the Outer of vessel information and certificates to Total Estimated Annual Non-hour reduce permitting costs and burden Continental Shelf, for conducting Burden Cost: $136,816. geological exploration for mineral hours. Estimated Reporting and BOEM Response: BOEM currently resources or scientific research. These Recordkeeping Hour Burden: The captures some vessel information in our permits are filled in by BOEM and currently approved OMB paperwork corporate database and is open to respondents do not incur an hour burden is 35,254 annual burden hours, discussing how this information could burden. However, BOEM plans to revise and will remain the same. be used to reduce permitting costs and these permits to include additional A Federal Register notice with a 60- burden hours in the future. language. The modifications to the day public comment period soliciting Comment: BOEM should develop a permits will allow BOEM to request the comments on this proposed information catalogue of equipment used in offshore G&G data prior to the permittee deleting collection request was published on G&G activities, including Ocean Bottom or removing the data from records, but October 25, 2019 (84 FR 57472). BOEM Nodes, Ocean Bottom Cables, Streamers, still provides the option for the received three comment letters during etc. This would reduce the time needed permittee to no longer maintain the data the 60-day comment period. Comments to collect pictures and physical samples after ten years. The following describes received were from the American of all parts and equipment deployed in the proposed changes: Petroleum Institute (API) and the the water column. Permit applications • Form BOEM–0328 would include International Association of could then reference these materials to additional language in Section IV Geophysical Contractors (IAGC), the reduce time spent. Paragraph (A) stating: Center for Regulatory Effectiveness, and BOEM Response: BOEM currently ‘‘After a period of 10 years from the a private citizen. captures some information related to the issuance of the permit, the permittee must The API and IAGC comments from offshore equipment being used in notify the Supervisor in writing if their December 24, 2019 and BOEM’s offshore G&G activities in our corporate intention is to no longer maintain all or part responses follow: database. However, even when a of the geophysical data, processed Comment: Industry finds the permittee is proposing similar G&G geophysical information, and interpreted timeliness of the permit process for G&G activities that have been previously geophysical information, and provide the Supervisor 30 days to request that the activities to be open-ended and employed, there is variability in use, permittee submit for inspection and possible uncertain. The Associations recommend location, and advances to the retention all or part of the geophysical data, that BOEM establish a certain timeline technology that make each permit processed geophysical information, and for permit review and approval. The unique. BOEM must consider each case interpreted geophysical information.’’ timing requirements for drilling permit individually.

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On December 19, 2019, the Center for summarize each comment in its request DATES: Registered bulk manufacturers of Regulatory Effectiveness commented to the Office of Management and Budget the affected basic class(es), and that BOEM should withdraw its petition (OMB) for approval of this ICR. You applicants therefore, may file written to the National Marine Fisheries Service should be aware that your entire comments on or objections to the to issue a regulation governing the comment—including your address, issuance of the proposed registration on taking of marine mammals in the Gulf phone number, email address, or other or before October 23, 2020. Such of Mexico. personal identifying information—may persons may also file a written request BOEM Response: This comment is be made publicly available at any time. for a hearing on the application on or outside the scope of this information In order for BOEM to withhold from before October 23, 2020. collection renewal. NMFS has the disclosure your personally identifiable authority to authorize incidental take information, you must identify any ADDRESSES: Written comments should under the Marine Mammal Protection information contained in the submittal be sent to: Drug Enforcement Act and the Endangered Species Act. of your comments that, if released, Administration, Attention: DEA Federal BOEM has petitioned NMFS for the would clearly constitute an Register Representative/DPW, 8701 development of regulations governing unwarranted invasion of your personal Morrissette Drive, Springfield, Virginia incidental take of marine mammals privacy. You must also briefly describe 22152. All requests for a hearing must related to conducting geophysical any possible harmful consequences of be sent to: Drug Enforcement surveys during oil and gas exploration the disclosure of your information, such Administration, Attn: Administrator, activities in the GOM. BOEM has as embarrassment, injury, or other harm. 8701 Morrissette Drive, Springfield, identified areas where there is the While you can ask BOEM in your Virginia 22152. All requests for a potential to impact its mission under comment to withhold your personally hearing should also be sent to: (1) Drug OCSLA in the GOM, and potentially identifiable information from public Enforcement Administration, Attn: other regions and programs, and its review, BOEM cannot guarantee that it ability to manage the development of Hearing Clerk/OALJ, 8701 Morrissette will be able to do so. Drive, Springfield, Virginia 22152; and OCS energy and mineral resources in an BOEM protects proprietary (2) Drug Enforcement Administration, environmentally responsible and information in accordance with the Attn: DEA Federal Register practical way. Freedom of Information Act (5 U.S.C. The NMFS proposed Incidental Take 552) and the Department of the Representative/DPW, 8701 Morrissette rulemaking, which is a separate process Interior’s implementing regulations (43 Drive, Springfield, Virginia 22152. from this information collection CFR part 2), and under regulations at 30 SUPPLEMENTARY INFORMATION: In renewal, allowed for public comments. CFR parts 551 promulgated pursuant to accordance with 21 CFR 1301.34(a), this On October 25, 2019, a private citizen the Outer Continental Shelf Lands Act is notice that on July 21, 2020, Caligor commented that far too much (OCSLA) at 43 U.S.C. 1352(c). exploration is being allowed, explosions Coghlan Pharma Services, 1500 An agency may not conduct or Business Park Drive, Unit B, Bastrop, and high sonar work needs to be sponsor, and a person is not required to stopped, and would like BOEM to cut Texas 78602, applied to be registered as respond to, a collection of information an importer of the following basic exploration back by seventy percent. unless it displays a currently valid OMB class(es) of controlled substance(s): BOEM Response: OCSLA mandates control number. that all G&G activities on the OCS be The authority for this action is the conducted in a safe and Paperwork Reduction Act of 1995 (44 environmentally sound manner. BOEM U.S.C. 3501 et seq.). uses information received to best Controlled Drug code Schedule understand and evaluate the proposed Deanna Meyer-Pietruszka, substance activity and equipment to be used, Chief, Office of Policy, Regulation, and Tapentadol ...... 9780 II which helps to ensure that the Analysis. appropriate site/activity environmental [FR Doc. 2020–20948 Filed 9–22–20; 8:45 am] analysis is conducted in order to fulfill BILLING CODE 4310–MR–P The company plans to import the its statutory obligations. listed controlled substance in finished BOEM is again soliciting comments dosage form to be used in pediatric on the proposed ICR that is described DEPARTMENT OF JUSTICE clinical trials. No other activity for this below. BOEM is especially interested in drug code is authorized for this public comment addressing the Drug Enforcement Administration registration. following issues: (1) Is the collection Approval of permit applications will necessary to the proper functions of [Docket No. DEA–723] occur only when the registrant’s BOEM; (2) what can BOEM do to ensure Importer of Controlled Substances business activity is consistent with what this information will be processed and Application: Caligor Coghlan Pharma used in a timely manner; (3) is the is authorized under 21 U.S.C. 952(a)(2). Services estimate of burden accurate; (4) how Authorization will not extend to the might BOEM enhance the quality, AGENCY: Drug Enforcement import of a Food and Drug utility, and clarity of the information to Administration, Justice. Administration-approved or non- approved finished dosage forms for be collected; and (5) how might BOEM ACTION: Notice of application. minimize the burden of this collection commercial sale. on the respondents, including SUMMARY: Caligor Coghlan Pharma William T. McDermott, minimizing the burden through the use Services has applied to be registered as of information technology? an importer of basic class(es) of Assistant Administrator. Comments that you submit in controlled substance(s). Refer to [FR Doc. 2020–21009 Filed 9–22–20; 8:45 am] response to this notice are a matter of Supplemental Information listed below BILLING CODE 4410–09–P public record. BOEM will include or for further drug information.

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DEPARTMENT OF LABOR DEPARTMENT OF LABOR information with minimum burden upon employers, especially those Employment and Training Office of the Secretary operating small businesses, and to Administration reduce to the maximum extent feasible Agency Information Collection unnecessary duplication of efforts in Notice of a Change in Status of an Activities; Submission for OMB obtaining information (29 U.S.C. 657). Extended Benefit (EB) Program for Review; Comment Request; Concrete The warning signs/barriers required by Nebraska and Masonry Construction Standard paragraph 1926.701(c)(2) reduce exposure of non-essential workers to the ACTION: Notice of availability; request AGENCY: Employment and Training for comments. hazards of post-tensioning operations, Administration, Labor. principally a failed rope or wire striking SUMMARY: The Department of Labor a worker and causing serious injury. ACTION: Notice. (DOL) is submitting this Occupational The requirements for lockout and tag Safety and Health Administration ejection systems and other hazardous This notice announces a change in (OSHA)-sponsored information equipment (e.g., compressors, mixers, benefit period eligibility under the EB collection request (ICR) to the Office of screens or pumps used for concrete and program for Nebraska. Management and Budget (OMB) for masonry construction) specified by The following change has occurred review and approval in accordance with paragraphs 1926.702(a)(2), (j)(1), and since the publication of the last notice the Paperwork Reduction Act of 1995 (j)(2) warn equipment operators not to regarding the State’s EB status: (PRA). Public comments on the ICR are activate their equipment if another invited. worker enters the equipment to perform • Nebraska’s 13-week insured DATES: a task (e.g., cleaning, inspecting, unemployment rate (IUR) for the week The OMB will consider all written comments that agency receives maintaining, repairing), thereby ending August 22, 2020, was 4.95 on or before October 23, 2020. preventing injury or death. Construction percent, falling below the 5.00 percent ADDRESSES: Written comments and contractors and workers use the threshold necessary to remain ‘‘on’’ EB. recommendations for the proposed drawings, plans, and designs required Therefore, the EB period for Nebraska information collection should be sent by paragraph 1926.703(a)(2) to provide will end on September 12, 2020. The within 30 days of publication of this specific instructions on how to state will remain in an ‘‘off’’ period for notice to www.reginfo.gov/public/do/ construct, erect, brace, maintain, and a minimum of 13 weeks. PRAMain. Find this particular remove shores and formwork if they pour concrete at the job site. Paragraph Information for Claimants information collection by selecting ‘‘Currently under 30-day Review—Open 1926.705(b) requires employers to mark The duration of benefits payable in for Public Comments’’ or by using the the rated capacity of jacks and lifting the EB Program, and the terms and search function. units. This requirement prevents overloading and subsequent collapse of conditions on which they are payable, FOR FURTHER INFORMATION CONTACT: jacks and lifting units, as well as their are governed by the Federal-State Anthony May by telephone at 202–693– loads, thereby sparing exposed workers 4129 (this is not a toll-free number) or Extended Unemployment Compensation from serious injury or death. For by email at [email protected]. Act of 1970, as amended, and the additional substantive information operating instructions issued to the SUPPLEMENTARY INFORMATION: Comments about this ICR, see the related notice states by the U.S. Department of Labor. are invited on: (1) Whether the published in the Federal Register on In the case of a state ending an EB collection of information is necessary May 20, 2020 (85 FR 30740). period, the State Workforce Agency will for the proper performance of the This information collection is subject furnish a written notice to each functions of the Department, including to the PRA. A Federal agency generally individual who is currently filing claims whether the information will have cannot conduct or sponsor a collection for EB of the forthcoming termination of practical utility; (2) if the information of information, and the public is the EB period and its effect on the will be processed and used in a timely generally not required to respond to an individual’s right to EB (20 CFR 615.13 manner; (3) the accuracy of the agency’s information collection, unless the OMB (c)). estimates of the burden and cost of the approves it and displays a currently collection of information, including the valid OMB Control Number. In addition, FOR FURTHER INFORMATION CONTACT: U.S. validity of the methodology and notwithstanding any other provisions of Department of Labor, Employment and assumptions used; (4) ways to enhance law, no person shall generally be subject Training Administration, Office of the quality, utility and clarity of the to penalty for failing to comply with a Unemployment Insurance, Room S– information collection; and (5) ways to collection of information that does not 4524, Attn: Thomas Stengle, 200 minimize the burden of the collection of display a valid OMB Control Number. Constitution Avenue NW, Washington, information on those who are to See 5 CFR 1320.5(a) and 1320.6. DC 20210, telephone number (202)– respond, including the use of automated DOL seeks PRA authorization for this 693–2991 (this is not a toll-free number) collection techniques or other forms of information collection for three (3) or by email: [email protected]. information technology. years. OMB authorization for an ICR The Occupational Safety and Health Signed in Washington, DC. cannot be for more than three (3) years Act of 1970 (the OSH Act) (29 U.S.C. without renewal. The DOL notes that John Pallasch, 651 et seq.) authorizes information information collection requirements Assistant Secretary for Employment and collection by employers as necessary or submitted to the OMB for existing ICRs Training. appropriate for enforcement of the OSH receive a month-to-month extension [FR Doc. 2020–21029 Filed 9–22–20; 8:45 am] Act or for developing information while they undergo review. BILLING CODE 4510–FW–P regarding the causes and prevention of Agency: DOL–OSHA. occupational injuries, illnesses, and Title of Collection: Concrete and accidents (29 U.S.C. 657). The OSH Act Masonry Construction Standard. also requires that OSHA obtain such OMB Control Number: 1218–0095.

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Affected Public: Private Sector: validity of the methodology and display a valid OMB Control Number. Businesses or other for-profits. assumptions used; (4) ways to enhance See 5 CFR 1320.5(a) and 1320.6. Total Estimated Number of the quality, utility and clarity of the DOL seeks PRA authorization for this Respondents: 275,619. information collection; and (5) ways to information collection for three (3) Total Estimated Number of minimize the burden of the collection of years. OMB authorization for an ICR Responses: 275,619. information on those who are to cannot be for more than three (3) years Total Estimated Annual Time Burden: respond, including the use of automated without renewal. The DOL notes that 22,968 hours. collection techniques or other forms of information collection requirements Total Estimated Annual Other Costs information technology. submitted to the OMB for existing ICRs Burden: $0. The collection of information receive a month-to-month extension Authority: 44 U.S.C. 3507(a)(1)(D). contained in the Logging Operations while they undergo review. Standard are necessary to reduce Agency: DOL–OSHA. Dated: September 17, 2020. Title of Collection: Logging Operation Anthony May, workers’ risk of death or serious injury by requiring employers to assure that Standard. Management and Program Analyst. OMB Control Number: 1218–0198. operating and maintenance instructions Affected Public: Private Sector: [FR Doc. 2020–20952 Filed 9–22–20; 8:45 am] are available on machines or in the area BILLING CODE 4510–26–P Businesses or other for-profits. where the machine is operated. For Total Estimated Number of vehicles, employers must assure that Respondents: 8,076. operating and maintenance instructions DEPARTMENT OF LABOR Total Estimated Number of are available for each vehicle. Responses: 50,996. Office of the Secretary Maintenance and Operating Total Estimated Annual Time Burden: Instructions (§§ 1910.266(f)(1)(iii) and 1,507 hours. Agency Information Collection (g)(3)) Total Estimated Annual Other Costs Activities; Submission for OMB Burden: $0. Review; Comment Request; Logging Under paragraph (f)(1)(iii) and (g)(3) Authority: 44 U.S.C. 3507(a)(1)(D). Operations Standards of the Standard, employers must assure that operating and maintenance Dated: September 17, 2020. ACTION: Notice of availability; request instructions are available on machines Anthony May, for comments. or in the area where the machine is Management and Program Analyst. being operated, and in vehicles. For [FR Doc. 2020–20951 Filed 9–22–20; 8:45 am] SUMMARY: The Department of Labor those machines with no operating BILLING CODE 4510–26–P (DOL) is submitting this Occupational instructions in the cab, the employer Safety and Health Administration will be required to obtain and retain a (OSHA)-sponsored information manual within the immediate work area DEPARTMENT OF LABOR collection request (ICR) to the Office of for each machine. Because the Logging Management and Budget (OMB) for Operations final rule has been in effect Office of the Secretary review and approval in accordance with since 1995, OSHA assumes that all the Paperwork Reduction Act of 1995 Agency Information Collection employers are in compliance with the (PRA). Public comments on the ICR are Activities; Submission for OMB provision to have operating and invited. Review; Comment Request; Producer maintenance instructions available on Price Index Survey DATES: The OMB will consider all machines or in the area where the written comments that agency receives machines are being operated. ACTION: Notice of availability; request on or before October 23, 2020. for comments. ADDRESSES: Written comments and Certification of Training recommendations for the proposed (§ 1910.266(i)(10)(i) and (i)(10)(ii)) SUMMARY: The Department of Labor information collection should be sent Paragraph (i)(10)(i) requires (DOL) is submitting this Bureau of Labor within 30 days of publication of this employers to certify in writing that a Statistics (BLS)-sponsored information notice to www.reginfo.gov/public/do/ worker/supervisor received the training collection request (ICR) to the Office of PRAMain. Find this particular the Standard requires. Under paragraph Management and Budget (OMB) for information collection by selecting (i)(10)(ii), employers need only maintain review and approval in accordance with ‘‘Currently under 30-day Review—Open the most recent certification for training the Paperwork Reduction Act of 1995 for Public Comments’’ or by using the that a worker/supervisor has received. (PRA). Public comments on the ICR are search function. For additional substantive information invited. FOR FURTHER INFORMATION CONTACT: about this ICR, see the related notice DATES: The OMB will consider all Anthony May by telephone at 202–693– published in the Federal Register on written comments that agency receives 4129 (this is not a toll-free number) or April 24, 2020 (85 FR 23068). on or before October 23, 2020. by email at [email protected]. This information collection is subject ADDRESSES: Written comments and SUPPLEMENTARY INFORMATION: Comments to the PRA. A Federal agency generally recommendations for the proposed are invited on: (1) Whether the cannot conduct or sponsor a collection information collection should be sent collection of information is necessary of information, and the public is within 30 days of publication of this for the proper performance of the generally not required to respond to an notice to www.reginfo.gov/public/do/ functions of the Department, including information collection, unless the OMB PRAMain. Find this particular whether the information will have approves it and displays a currently information collection by selecting practical utility; (2) if the information valid OMB Control Number. In addition, ‘‘Currently under 30-day Review—Open will be processed and used in a timely notwithstanding any other provisions of for Public Comments’’ or by using the manner; (3) the accuracy of the agency’s law, no person shall generally be subject search function. estimates of the burden and cost of the to penalty for failing to comply with a FOR FURTHER INFORMATION CONTACT: collection of information, including the collection of information that does not Anthony May by telephone at 202–693–

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4129 (this is not a toll-free number) or the Council of Economic Advisors notwithstanding any other provisions of by email at [email protected]. utilize these statistics to help interpret law, no person shall generally be subject SUPPLEMENTARY INFORMATION: Comments the economic environment and make to penalty for failing to comply with a are invited on: (1) Whether the decisions based upon these collection of information that does not collection of information is necessary interpretations. Many dollar display a valid OMB Control Number. for the proper performance of the denominated measurements of See 5 CFR 1320.5(a) and 1320.6. functions of the Department, including economic performance, such as the DOL seeks PRA authorization for this whether the information will have Gross Domestic Product (GDP), require information collection for three (3) practical utility; (2) if the information accurate price data for the conversion of years. OMB authorization for an ICR will be processed and used in a timely nominal dollars into real dollars. cannot be for more than three (3) years manner; (3) the accuracy of the agency’s National income accounting figures without renewal. The DOL notes that estimates of the burden and cost of the must also be inflation free in order to information collection requirements collection of information, including the remain relevant to fiscal and monetary submitted to the OMB for existing ICRs validity of the methodology and policy makers setting objectives. Price receive a month-to-month extension assumptions used; (4) ways to enhance adjustment clauses in government while they undergo review. the quality, utility and clarity of the purchasing contracts commonly use one Agency: DOL–BLS. Title of Collection: Producer Price information collection; and (5) ways to or more PPIs. According to a Index Survey. minimize the burden of the collection of conservative estimate hundreds-of- billions of dollars’ worth of contracts OMB Control Number: 1220–0008. information on those who are to Affected Public: Private Sector: and purchase agreements employ PPIs respond, including the use of automated Businesses or other for-profits. collection techniques or other forms of as part of price adjustment clauses. Total Estimated Number of information technology. Failure to calculate these price data Respondents: 15,945. The Producer Price Index (PPI), one of would prolong the time frame needed Total Estimated Number of the Nation’s leading economic for accurate recognition of and Responses: 739,645. indicators, designated as a Principal appropriate adaptation to economic Total Estimated Annual Time Burden: Federal Economic Indicator. The PPI events. The private sector also makes 69,945 hours. consists of a family of indexes that extensive use of PPI data. Researchers Total Estimated Annual Other Costs measures the average change over time commonly use producer prices to probe Burden: $0. and measure the interaction of market in the selling prices received by Authority: 44 U.S.C. 3507(a)(1)(D). domestic producers of goods and forces. Private firms use PPIs for services. About 10,000 PPIs for contract escalation and price Dated: September 17, 2020. individual products and groups of adjustment. The Internal Revenue Anthony May, products are released each month. PPIs Service (IRS) recommends using PPI Management and Program Analyst. are available for the output of nearly all data for certain kinds of tax related [FR Doc. 2020–20950 Filed 9–22–20; 8:45 am] industries in the goods-producing inventory accounting, such as Last-In BILLING CODE 4510–24–P sectors of the U.S. economy—mining, First-Out (LIFO). Private businesses manufacturing, agriculture, fishing, and extensively use PPIs for planning and forestry—as well as natural gas, operations. Firms often compare the DEPARTMENT OF LABOR electricity, construction, and goods prices they pay and receive with Office of the Secretary competitive with those made in the changes in appropriate PPIs. Economic researchers and forecasters also put PPIs producing sectors, such as waste and Senior Executive Service; Appointment to regular use. They use PPI data to scrap materials. The PPI data are widely of Members to the Performance better understand market forces. used by the business community as well Review Board as by government. In particular the data Research topics requiring producer are used as an economic indicator price data include studying elasticities, Title 5 U.S.C. 4314(c)(4) provides that playing a crucial role in market analysis, potential lead and lag structures within Notice of the Appointment of the as a deflator of other economic series, price changes, and the identification of individual to serve as a member of the the basis for the calculation of price prices that demonstrate tremendous Performance Review Board of the Senior adjustments for contracts and purchase influence throughout the economy if Executive Service shall be published in agreements and as an input to economic they change. Policy-makers, businesses, the Federal Register. research. These uses highlight the and researchers all require complete The following individuals are hereby necessity of the PPI in order to descriptions of price change trends if appointed to serve on the Department’s understand the economy. PPI data meets they are to perform effectively and Performance Review Board: a wide range of government needs by efficiently. The expansive coverage of Permanent Membership providing a description of the PPIs makes it very valuable to the users Chair—Deputy Secretary magnitude and composition of price described above as well as many others. For additional substantive information Vice-Chair—Assistant Secretary for changes within the economy. Administration and Management Government agencies view these about this ICR, see the related notice published in the Federal Register on Alternate Vice-Chair—Chief Human indexes as sensitive indicators of the Capital Officer economic environment and closely June 5, 2020 (85 FR 34656). follow each monthly release of statistics. This information collection is subject Rotating Membership—Appointments PPI data are vital in helping the to the PRA. A Federal agency generally Expire on 09/30/21 President and Congress set fiscal cannot conduct or sponsor a collection BLS Nancy Ruiz De Gamboa, Associate spending targets. The Federal Reserve of information, and the public is Commissioner for Administration Board Open Market Committee monitors generally not required to respond to an EBSA Amy Turner, Deputy Assistant producer prices to help determine information collection, unless the OMB Secretary monetary policy. Federal policy makers approves it and displays a currently ETA Nicholas Lalpuis, Regional at the Department of the Treasury and valid OMB Control Number. In addition, Administrator, Dallas

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MSHA Patricia Silvey, Deputy DATES: The expansion of the scope of finding and, in the second notice, the Assistant Secretary recognition becomes effective on agency provides the final decision on OASAM Geoffrey Kenyon, Deputy September 23, 2020. the application. These notices set forth Assistant Secretary for Budget FOR FURTHER INFORMATION CONTACT: the NRTL’s scope of recognition or OSHA Galen Blanton, Regional Information regarding this notice is modifications of that scope. OSHA Administrator, Boston available from the following sources: maintains an informational web page for OSHA Loren Sweatt, Principal Deputy Press inquiries: Contact Mr. Frank each NRTL that details the scope of Assistant Secretary Meilinger, Director, OSHA Office of recognition. These pages are available SOL Kate O’Scannlain, Solicitor of Communications, phone: (202) 693– from the agency’s website at http:// Labor 1999; email: [email protected]. www.osha.gov/dts/otpca/nrtl/ VETS Ivan Denton, Director, National General and technical information: index.html. Programs Contact Mr. Kevin Robinson, Director, QAI submitted an application, dated WHD Patrice Torres, Associate Office of Technical Programs and November 8, 2017 (OSHA–2013–0017– Director, Administrative Operations Coordination Activities, Directorate of 0015), to expand their scope of Technical Support and Emergency recognition to include one additional Rotating Membership—Appointment Management, Occupational Safety and test standard. OSHA staff performed a Expires on 09/30/23 Health Administration, U.S. Department detailed analysis of the application ETA Debra Carr, Deputy of Labor, phone: (202) 693–2110; email: packet and reviewed other pertinent Administrator, Office of Job Corps [email protected]. OSHA’s web information. OSHA did not perform any OLMS Andrew Auerbach, Deputy page includes information about the on-site reviews in relation to this Director NRTL Program (see http:// application. OSHA published the VETS John Lowry, Assistant Secretary www.osha.gov/dts/otpca/nrtl/ preliminary notice announcing QAI’s FOR FURTHER INFORMATION CONTACT: Mr. index.html). expansion application in the Federal Demeatric Gamble, Chief, Division of SUPPLEMENTARY INFORMATION: Register on February 26, 2020 (85 FR Executive Resources, Room N2453, U.S. 11108). The agency requested comments Department of Labor, Frances Perkins I. Notice of Final Decision by March 12, 2020, but it received no Building, 200 Constitution Ave., NW, OSHA hereby gives notice of the comments in response to this notice. Washington, DC 20210, telephone: (202) expansion of the scope of recognition of OSHA now is proceeding with this final 693–7694. QAI Laboratories, Ltd. (QAI), as a NRTL. notice to grant expansion of QAI’s scope of recognition. Signed at Washington, DC, on the 18th day QAI’s expansion covers the addition of of September 2020. one test standard to the scope of To obtain or review copies of all public documents pertaining to QAI’s Bryan Slater, recognition. OSHA recognition of a NRTL signifies application, go to www.regulations.gov Assistant Secretary for Administration and that the organization meets the or contact the Docket Office, Management. requirements specified by 29 CFR Occupational Safety and Health [FR Doc. 2020–21028 Filed 9–22–20; 8:45 am] 1910.7. Recognition is an Administration. Docket No. OSHA– BILLING CODE 4510–04–P acknowledgment that the organization 2013–0017 contains all materials in the can perform independent safety testing record concerning QAI’s recognition. and certification of the specific products DEPARTMENT OF LABOR II. Final Decision and Order covered within the scope of recognition Occupational Safety and Health and is not a delegation or grant of OSHA staff examined QAI’s Administration government authority. As a result of expansion application, the capability to recognition, employers may use meet the requirements of the test products properly approved by the standards, and other pertinent [Docket No. OSHA–2013–0017] NRTL to meet OSHA standards that information. Based on a review of this QAI Laboratories, Ltd.: Grant of require testing and certification of the evidence, OSHA finds that QAI meets Expansion of Recognition products. the requirements of 29 CFR 1910.7 for The agency processes applications by expansion of the scope of recognition, AGENCY: Occupational Safety and Health a NRTL for initial recognition, or for subject to the conditions listed below. Administration (OSHA), Labor. expansion or renewal of this OSHA, therefore, is proceeding with ACTION: Notice. recognition, following requirements in this final notice to grant the expansion Appendix A to 29 CFR 1910.7. This of QAI’s scope of recognition. OSHA SUMMARY: In this notice, OSHA appendix requires that the agency limits the expansion of QAI’s scope of announces the final decision to expand publish two notices in the Federal recognition to testing and certification the scope of recognition for QAI Register in processing an application. In of products for demonstration of Laboratories, Ltd., as a Nationally the first notice, OSHA announces the conformance to the test standards listed Recognized Testing Laboratory (NRTL). application and provides a preliminary below in Table 1.

TABLE 1—APPROPRIATE TEST STANDARD FOR INCLUSION IN QAI’S NRTL SCOPE OF RECOGNITION

Test standard Test standard title

AAMI ES60601–1 .. Medical Electrical Equipment—Part 1: General Requirements for Basic Safety and Essential Performance (with amend- ments).

OSHA’s recognition of any NRTL for equipment or materials for which OSHA certification before using them in the a particular test standard is limited to standards require third-party testing and workplace. Consequently, if a test

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standard also covers any products for NATIONAL SECURITY COMMISSION comments received, to the National which OSHA does not require such ON ARTIFICIAL INTELLIGENCE Archives and Records Administration testing and certification, a NRTL’s scope upon termination of the Commission. [Docket No.: 09–2020–01] of recognition does not include these FOR FURTHER INFORMATION CONTACT: For products. Solicitation of Written Comments by general inquiries, submission process The American National Standards the National Security Commission on questions, or any additional information Institute (ANSI) may approve the test Artificial Intelligence about this request for comments, please standards listed above as American contact Tara Rigler by email at inquiry@ AGENCY: National Security Commission National Standards. However, for nscai.gov. on Artificial Intelligence. convenience, the designation of the SUPPLEMENTARY INFORMATION: standards-developing organization for ACTION: Request for comments. Background the standard as opposed to the ANSI SUMMARY: The National Security In the John S. McCain National designation may be used. Under the Commission on Artificial Intelligence Defense Authorization Act for Fiscal NRTL Program’s policy (see OSHA (‘‘the Commission) is publishing this Year 2019, Sec. 1051, Public Law 115– Instruction CPL 1–0.3, Appendix C, notice to request comments from small- 232, 132 Stat. 1636, 1962–65 (2018), paragraph XIV), any NRTL recognized and medium-sized AI firms to help the Congress directed the Commission to for a particular test standard may use Commission understand different views consider public-private partnerships either the proprietary version of the test on working with the federal relative to the competitiveness of the standard or the ANSI version of that government. Responses will assist in United States in AI, machine learning, standard. Contact ANSI to determine identifying critical areas for and other associated technologies. In whether a test standard is currently improvement and recommended accordance with this direction, the ANSI-approved. changes in the government’s approach Commission established a special to technology procurement and support A. Conditions project on public-private partnerships. for commercial innovation. The Commission has engaged In addition to those conditions DATES: Comment Date: The Commission already required by 29 CFR 1910.7, QAI stakeholders from across industry, requests comments from qualified academia, government, and civil society must abide by the following conditions parties on or before October 23, 2020. of the recognition: with the following objectives: (1) Assess ADDRESSES: You may submit comments, the relationship between the National 1. QAI must inform OSHA as soon as identified by Docket No. 09–2020–01, Security Innovation Base (NSIB) and the possible, in writing, of any change of by one of the following methods: United States Government; and (2) ownership, facilities, or key personnel, • Email: [email protected]. Please Identify options for improving and of any major change in the include the docket number in the cooperation between the NSIB and the operations as a NRTL, and provide subject line of the message. United States Government to increase details of the change(s); • Mail: National Security the well-being of our citizens, 2. QAI must meet all the terms of the Commission on Artificial Intelligence, strengthen the nation’s entrepreneurial recognition and comply with all OSHA Attn: RFI COMMENT—Docket No. 09– ecosystems, and protect the nation’s policies pertaining to this recognition; 2020–01, 2530 Crystal Drive, Box 45, security. and Arlington, VA 22202. This research has informed the • Fax: +1–571–778–5049. Please 3. QAI must continue to meet the Commission’s approach from the outset include the docket number on the fax requirements for recognition, including and is reflected in one of the seven cover page. all previously published conditions on consensus principles outlined in the Due to the ongoing COVID–19 QAI’s scope of recognition, in all areas Interim Report, which states: ‘‘Private coronavirus pandemic, email is the for which it has recognition. sector leaders and government officials Commission’s primary method of must build a shared sense of Pursuant to the authority in 29 CFR receiving public comment. All responsibility for the welfare and 1910.7, OSHA hereby expands the scope submissions received must include the security of the American people.’’ In of recognition of QAI, subject to the docket number. If the Commission addition, these engagements have also conditions specified above. cannot read your comment due to influenced recommendations in the III. Authority and Signature technical difficulties and cannot contact Commission’s First and Second Quarter you for clarification, the Commission memorandums. The Commission’s Loren Sweatt, Principal Deputy may not be able to consider your Interim Report, as well as the First and Assistant Secretary of Labor for comment. Late comments will be Second Quarter recommendations, can Occupational Safety and Health, considered as time permits. Please note, be found on the Commission’s website authorized the preparation of this any comments received by the at https://www.nscai.gov/reports. notice. Accordingly, the agency is Commission may be treated as public Moving towards its final report, due in issuing this notice pursuant to 29 U.S.C. documents, be published on the March 2021, the Commission now seeks 657(g)(2), Secretary of Labor’s Order No. Commission’s website, or be included input from small- and medium-sized AI 1–2012 (77 FR 3912, Jan. 25, 2012), and with its reports and/or firms on methods and means by which 29 CFR 1910.7. recommendations. Based on the inputs the Government should engage with the from responders, the Commission may Signed at Washington, DC, on September private sector and bolster commercial AI select particular responders for follow 17, 2020. innovation. up conversations with the Commission’s Loren Sweatt, special project on public private Instructions Principal Deputy Assistant Secretary of Labor partnerships. Submitters should be Respondents may choose to comment for Occupational Safety and Health. aware that the Commission is subject to on one or all of the topic areas listed [FR Doc. 2020–20953 Filed 9–22–20; 8:45 am] the Freedom of Information Act and will below. Please note that only comments BILLING CODE 4510–26–P transfer official records, including received from firms that meet the small

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business size standard for NAICS codes dilutive capital, loan guarantees, equity meeting and the Commission can be 541715 and 611420 will be considered stakes, or other financial instruments) found on the website. under this request for comments. Firms would be required from the U.S. SUPPLEMENTARY INFORMATION: This that do not fit the NAICS code or size government to undertake those meeting is being held under the standard but wish to comment may do investments? provisions of the Federal Advisory • so via the Commission’s general request What would you hope to gain from Committee Act (FACA) (5 U.S.C., for public comment, 85 FR 32055, temporary talent exchanges between the Appendix), the Government in the https://www.federalregister.gov/d/2020- Federal Government and industry? Sunshine Act (5 U.S.C. 552b), and 41 11453, which solicits feedback on the What are the challenges or obstacles in CFR 102–3.140 and 102–3.150. various other efforts associated with our conducting such exchanges and how Purpose of the Meeting: The John S. mandate. would you recommend they be McCain National Defense Authorization Topic Areas for Comment and overcome? Act for Fiscal Year 2019 (FY19 NDAA), • How can industry and the Federal Recommendations Sec. 1051, Public Law 115–232, 132 Government better collaborate through Stat. 1636, 1962–65 (2018), created the The following list of topics represents all stages of product development to Commission to ‘‘consider the methods various areas about which the safeguard against bias in AI systems? and means necessary to advance the Commission seeks comments. It is not • How can the Federal Government development of artificial intelligence, intended to limit topics that may be incentivize responsible AI development machine learning, and associated addressed by respondents, but rather 1 through acquisition? technologies by the United States to focus attention on key areas the Dated: September 17, 2020. comprehensively address the national Commission has identified as relevant security and defense needs of the to catalyzing AI innovation, expanding Michael Gable, United States.’’ The Commission will the national security innovation base, Chief of Staff. consider potential recommendations to and making it easier for firms to do [FR Doc. 2020–20922 Filed 9–22–20; 8:45 am] Congress and the Executive Branch. business with the federal government. BILLING CODE 3610–Y8–P Agenda: The meeting will begin on While the Commission welcomes October 8, 2020 at 1:00 p.m. EST with comments on obstacles and barriers in opening remarks by the Designated the current system, it will prioritize NATIONAL SECURITY COMMISSION Federal Officer, Ms. Angela Ponmakha; inputs relative to these topics that make ON ARTIFICIAL INTELLIGENCE the Executive Director, Mr. Yll specific recommendations in any or all [Docket No.: 09–2020–02] Bajraktari; the Commission Chair, Dr. of the following areas: Statute, Eric Schmidt; and the Commission Vice regulation, policy, budget, organization, National Security Commission on Chair, Robert Work. Chairs of the and culture. Artificial Intelligence; Notice of Federal Advisory Committee Meeting working groups studying each of the Specific Questions To Address Commission’s lines of effort (LOEs) will • What are the challenges or obstacles AGENCY: National Security Commission present the recommendations from their you face in seeking to do business with on Artificial Intelligence. respective LOEs for consideration by the the Federal Government, to include ACTION: Notice of Federal Advisory entire Commission. The Commission’s scaling successful solutions? What Committee virtual public meeting. LOEs: LOE 1—Invest in AI Research & changes could be made to reduce or Development and Software; LOE 2— remove those challenges or obstacles? SUMMARY: The National Security Apply AI to National Security Missions; • How do you weigh the tradeoffs Commission on Artificial Intelligence LOE 3—Train and Recruit AI Talent; between accepting financing from U.S. (the ‘‘Commission’’) is publishing this LOE 4—Protect and Build Upon U.S. firms versus foreign firms? What role notice to announce that the following Technological Advantages & Hardware; could the U.S. Government play in Federal Advisory Committee virtual LOE 5—Marshal Global AI Cooperation; connecting U.S. firms with trusted public meeting will take place. LOE 6—Ethics and Responsible AI; and investors in the United States and allied DATES: Thursday, October 8, 2020, 1:00 LOE 7—Threat Analysis and Response countries? p.m. to 3:30 p.m. Eastern Standard Time Actions. • When is the Federal Government a (EST). The Commission will deliberate on compelling customer? When is it not? FOR FURTHER INFORMATION CONTACT: Ms. the presented recommendations and What steps could the Federal Angela Ponmakha, 703–614–6379 vote on their inclusion in the Government take to become a more (Voice), [email protected]. Mailing Commission’s interim report to compelling customer? address: Designated Federal Officer, Congress and the Administration. The • How could the government better National Security Commission on meeting will adjourn at 3:30 p.m. EST. communicate (1) national security Artificial Intelligence, 2530 Crystal Meeting Accessibility: Pursuant to challenges to industry and (2) Drive, Box 45, Arlington, VA 22202. Federal statutes and regulations (the opportunities for industry to website: https://www.nscai.gov. The FACA, the Sunshine Act, and 41 CFR demonstrate and iterate potential most up-to-date information about the 102–3.140 through 102–3.165) and the solutions? How could the government availability of space, the virtual meeting structure engagements with industry to 1 In the Second Quarter Recommendations Memo, is open to the public from 1:00 p.m. to foster innovative and unexpected the Commission proposed ‘‘Key Considerations for 3:30 p.m. EST. Members of the public solutions? Responsible Development & Fielding of AI’’ and wishing to receive a link to the live • recommended standards and practices that would If your firm were to initiate or apply both to systems developed by departments stream webcast for viewing and audio expand its national security or national and agencies, as well as those that are acquired access to the virtual meeting should interest work, what large capital (including Commercial off-the-shelf systems or register on the Commission’s website, investments over the next 24 months those developed by contractors). See Key https://www.nscai.gov. Registration will Considerations for Responsible Development & would your firm consider making in the Fielding of Artificial Intelligence, National Security be available from September 25, 2020 United States? How much financial Commission on Artificial Intelligence, pg. 6 (July through October 5, 2020. Members of support and in what form (e.g., non- 22, 2020), https://www.nscai.gov/reports. the media should RSVP to the

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Commission’s press office at press@ information collection by selecting years of support to individuals, usable nscai.gov. ‘‘Currently under 30-day Review—Open over a five-year fellowship period. The Special Accommodations: Individuals for Public Comments’’ or by using the application deadlines are in late requiring special accommodations to search function. October. It is estimated that each access the public meeting should FOR FURTHER INFORMATION CONTACT: submission is averaged to be 12 hours contact the DFO, see the FOR FURTHER Suzanne H. Plimpton, Reports Clearance per respondent, which includes three INFORMATION CONTACT section for contact Officer, National Science Foundation, references (on average) for each information, no later than October 5, 2415 Eisenhower Avenue, Alexandria, application. It is estimated that it takes 2020, so that appropriate arrangements VA 22314, or send email to splimpto@ two hours per reference for each can be made. nsf.gov. Individuals who use a applicant. Access to Records of the Meeting: telecommunications device for the deaf Respondents: Individuals. Pursuant to FACA requirements, the (TDD) may call the Federal Information Estimated Number of Responses: meeting materials for the October 8, Relay Service (FIRS) at 1–800–877– 14,000. 2020 virtual meeting will be available 8339, which is accessible 24 hours a Estimated Total Annual Burden on for public inspection on the day, 7 days a week, 365 days a year Respondents: 168,000 hours. Commission’s website at https:// (including federal holidays). Frequency of Responses: Annually. www.nscai.gov on October 5, 2020. Copies of the submission may be Comments: Comments are invited on Written Statements: Written obtained by calling 703–292–7556. (a) whether the proposed collection of information is necessary for the proper comments may be submitted to the DFO SUPPLEMENTARY INFORMATION: NSF may performance of the functions of the via email to: [email protected] in not conduct or sponsor a collection of Agency, including whether the either Adobe Acrobat or Microsoft Word information unless the collection of information shall have practical utility; format. The DFO will compile all information displays a currently valid (b) the accuracy of the Agency’s written submissions and provide them OMB control number and the agency estimate of the burden of the proposed to the Commissioners for consideration. informs potential persons who are to collection of information; (c) ways to Please note that all submitted comments respond to the collection of information enhance the quality, utility, and clarity will be treated as public documents and that such persons are not required to of the information on respondents, will be made available for public respond to the collection of infor including through the use of automated inspection, including, but not limited Title of Collection: Graduate Research collection techniques or other forms of to, being posted on the Commission’s Fellowship Program. information technology; and (d) ways to website. OMB Number: 3145–0023. minimize the burden of the collection of Dated: September 18, 2020. Type of Request: Revision to and information on those who are to Michael Gable, extension of approval of an information respond, including through the use of Chief of Staff. collection. Abstract: Section 10 of the National appropriate automated, electronic, [FR Doc. 2020–21021 Filed 9–22–20; 8:45 am] mechanical, or other technological BILLING CODE 3610–Y8–P Science Foundation Act of 1950 (42 U.S.C. 1861 et seq.), as amended, states collection techniques or other forms of that ‘‘The Foundation is authorized to information technology. Dated: September 18, 2020. NATIONAL SCIENCE FOUNDATION award, within the limits of funds made available * * * scholarships and Suzanne H. Plimpton, Agency Information Collection graduate fellowships for scientific study Reports Clearance Officer, National Science Activities: Comment Request; or scientific work in the mathematical, Foundation. Graduate Research Fellowships physical, biological, engineering, social, [FR Doc. 2020–20997 Filed 9–22–20; 8:45 am] Program and other sciences at accredited U.S. BILLING CODE 7555–01–P institutions selected by the recipient of AGENCY: National Science Foundation. such aid, for stated periods of time.’’ ACTION: Submission for OMB Review; The Graduate Research Fellowship NUCLEAR REGULATORY Comment Request. Program has two goals: COMMISSION • To select, recognize, and financially SUMMARY: The National Science support, early in their careers, [Docket No. 72–1050; NRC–2016–0231] Foundation (NSF) has submitted the individuals with the demonstrated Interim Storage Partners Consolidated following information collection potential to be high achieving scientists Interim Storage Facility Project requirement to OMB for review and and engineers; clearance under the Paperwork • To broaden participation in science AGENCY: Nuclear Regulatory Reduction Act of 1995. This is the and engineering of underrepresented Commission. second notice for public comment; the groups, including women, minorities, ACTION: Draft environmental impact first was published in the Federal persons with disabilities, and veterans. statement; public comment meetings. Register, and no comments were The list of GRFP Awardees recognized received. NSF is forwarding the by the Foundation may be found via SUMMARY: On May 8, 2020, the U.S. proposed submission to the Office of FastLane through the NSF website: Nuclear Regulatory Commission (NRC) Management and Budget (OMB) for https://www.fastlane.nsf.gov/grfp/ published in the Federal Register a clearance simultaneously with the AwardeeList.do? notice issuing the draft Environmental publication of this second notice. method=loadAwardeeList. The GRF Impact Statement (EIS) for Interim DATES: Written comments and Program is described in the Solicitation Storage Partners LLC’s (ISP’s) license recommendations for the proposed available at: https://www.nsf.gov/ application to construct and operate a information collection should be sent publications/pub_summ.jsp?ods_ consolidated interim storage facility within 30 days of publication of this key=nsf19590&org=NSF (CISF) for spent nuclear fuel and notice to www.reginfo.gov/public/do/ Estimate of Burden: This is an annual Greater-Than Class C waste, along with PRAmain. Find this particular application program providing three a small quantity of mixed oxide fuel for

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public comment. The NRC is SUPPLEMENTARY INFORMATION: • Andrews County Library, 109 NW announcing four public comment 1st Street, Andrews, TX 79714; https:// I. Obtaining Information and webinars to receive oral comments on www.andrews.lib.tx.us/news-events. Submitting Comments the draft EIS. The meetings will allow B. Submitting Comments interested members of the public to A. Obtaining Information submit their comments. Please include Docket ID NRC–2016– Please refer to Docket ID NRC–2016– 0231 in your comment submission. DATES: The NRC staff will hold webinars 0231 when contacting the NRC about on October 1, 2020, October 6, 2020, The NRC cautions you not to include the availability of information regarding identifying or contact information that October 8, 2020, and October 15, 2020. this document. You may obtain The staff will present the findings of the you do not want to be publicly publicly-available information related to disclosed in your comment submission. draft EIS and will receive public this action by the following methods: comments during transcribed public The NRC will post all comment • Federal Rulemaking website: Go to meetings. Members of the public are submissions at https:// https://www.regulations.gov and search invited to continue to submit written www.regulations.gov as well as enter the for Docket ID NRC–2016–0231. comments by November 3, 2020. • comment submissions into ADAMS. Comments received after this date will NRC’s Agencywide Documents The NRC does not routinely edit be considered if it is practical to do so, Access and Management System comment submissions to remove but the NRC is able to ensure (ADAMS): You may obtain publicly- identifying or contact information. consideration only for comments available documents online in the If you are requesting or aggregating received on or before this date. ADAMS Public Documents collection at comments from other persons for https://www.nrc.gov/reading-rm/ ADDRESSES: You may submit comments submission to the NRC, then you should adams.html. To begin the search, select by any of the following methods: inform those persons not to include • Federal Rulemaking website: Go to ‘‘Begin Web-based ADAMS Search.’’ identifying or contact information that https://www.regulations.gov/ and search The draft EIS can be found by searching they do not want to be publicly for Docket ID NRC–2016–0231. Address for ADAMS Accession No. disclosed in their comment submission. questions about Docket IDs in ML20122A220. For problems with Your request should state that the NRC Regulations.gov to Jennifer Borges; ADAMS, please contact the NRC’s does not routinely edit comment telephone: 301–287–9127; email: Public Document Room reference staff submissions to remove such information [email protected]. For technical at 1–800–397–4209, 301–415–4737, or before making the comment questions, contact the individual listed by email to [email protected]. submissions available to the public or • in the FOR FURTHER INFORMATION Project web page: Information entering the comment into ADAMS. CONTACT section of this document. related to the ISP CISF project can be • Mail comments to: Office of accessed on the NRC’s ISP CISF web II. Meeting Information Administration, Mail Stop: TWFN–7– page at https://www.nrc.gov/waste/ On May 8, 2020, the NRC published A60M, ATTN: Program Management, spent-fuel-storage/cis/waste-control- in the Federal Register (85 FR 27447) Announcements and Editing Staff, U.S. specialist.html. Scroll down to the availability of the draft EIS for ISP’s Nuclear Regulatory Commission, Environmental Impact Statement, Draft proposed CISF for spent nuclear fuel Washington, DC 20555–0001. Report for Comment. and requested public comments on the • Email comments to: WCS_CISF_ • Public Libraries: A copy of the draft report. The NRC is announcing [email protected]. staff’s draft EIS can be accessed at or that staff will hold four public webinars For additional direction on obtaining through the website of the following to receive comments on the draft EIS. information and submitting comments, public libraries (library access and Video of the staff’s presentation will be see ‘‘Obtaining Information and hours are determined by local policy): accessible online at the webinar address Submitting Comments’’ in the • Eunice Public Library, 1003 Ave. N, and all audio will be accessible through SUPPLEMENTARY INFORMATION SECTION of Eunice, NM 88231; https:// the telephone line. The telephone line this document. www.cityofeunice.org/134/Library- will also be used for members of the FOR FURTHER INFORMATION CONTACT: Services, under ‘‘U.S. Nuclear public to submit oral comments. A court James Park, Office of Nuclear Material Regulatory Commission Information.’’ reporter will be recording all comments Safety and Safeguards, U.S. Nuclear • Hobbs Public Library, 509 N Shipp received during the webinar and the Regulatory Commission, Washington, St., Hobbs, NM 88240; http:// transcript of the meeting will be made DC 20555–0001; telephone: 301–415– www.hobbspubliclibrary.org, under publicly available. The dates and times 6954; email: [email protected]. ‘‘News & Updates.’’ for the public webinars follow:

Meeting Date Time Webinar information

Public Webinar ...... October 1, 2020 ...... 6:00 p.m.–9:00 p.m. (ET) ...... Webinar (video). 5:00 p.m.–8:00 p.m. (CT) ...... Event address: https://usnrc.webex.com/. 4:00 p.m.–7:00 p.m. (MT) ...... Event number: 199 125 5213. Event password: ISPDEIS. Telephone access (audio). Phone number: 1–888–989–9268. Passcode: 5300047. Public Webinar ...... October 6, 2020 ...... 2:00 p.m.–5:00 p.m. (ET) ...... Webinar (video). 1:00 p.m.–4:00 p.m. (CT) ...... Event address: https://usnrc.webex.com/. 12:00 p.m.–3:00 p.m. (MT) ...... Event number: 199 740 4202. Event password: ISPDEIS. Telephone access (audio). Phone number: 1–888–989–9268. Passcode: 5300047.

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Meeting Date Time Webinar information

Public Webinar ...... October 8, 2020 ...... 6:00 p.m.–9:00 p.m. (ET) ...... Webinar (video). 5:00 p.m.–8:00 p.m. (CT) ...... Event address: https://usnrc.webex.com/. 4:00 p.m.–7:00 p.m. (MT) ...... Event number: 199 619 8948. Event password: ISPDEIS. Telephone access (audio). Phone number: 1–888–989–9268. Passcode: 5300047. Public Webinar ...... October 15, 2020 ...... 11:00 a.m.–2:00 p.m. (ET) ...... Webinar (video). 10:00 a.m.–1:00 p.m. (CT) ...... Event address: https://usnrc.webex.com/. 9:00 a.m.–12:00 p.m. (MT) ...... Event number: 199 551 6533. Event password: ISPDEIS. Telephone access (audio). Phone number: 1–888–989–9268. Passcode: 5300047.

Persons interested in attending these Table of Contents CFR part 3040, subpart B. For request(s) meetings should check the NRC’s Public I. Introduction that the Postal Service states concern Meeting Schedule web page at https:// II. Docketed Proceeding(s) competitive product(s), applicable www.nrc.gov/pmns/mtg for additional statutory and regulatory requirements information, agendas for the meetings, I. Introduction include 39 U.S.C. 3632, 39 U.S.C. 3633, and access information for the webinar The Commission gives notice that the 39 U.S.C. 3642, 39 CFR part 3035, and and telephone line. Postal Service filed request(s) for the 39 CFR part 3040, subpart B. Comment Dated: September 18, 2020. Commission to consider matters related deadline(s) for each request appear in For the Nuclear Regulatory Commission. to negotiated service agreement(s). The section II. Jessie M. Quintero, request(s) may propose the addition or II. Docketed Proceeding(s) removal of a negotiated service Acting Chief, Environmental Review Materials 1. Docket No(s).: MC2020–248 and Branch, Division of Rulemaking, agreement from the market dominant or Environmental and Financial Support, Office the competitive product list, or the CP2020–278; Filing Title: USPS Request of Nuclear Material Safety and Safeguards. modification of an existing product to Add Priority Mail Contract 661 to [FR Doc. 2020–20964 Filed 9–22–20; 8:45 am] currently appearing on the market Competitive Product List and Notice of Filing Materials Under Seal; Filing BILLING CODE 7590–01–P dominant or the competitive product list. Acceptance Date: September 17, 2020; Section II identifies the docket Filing Authority: 39 U.S.C. 3642, 39 CFR number(s) associated with each Postal 3040.130 through 3040.135, and 39 CFR POSTAL REGULATORY COMMISSION Service request, the title of each Postal 3035.105; Public Representative: Maya [Docket Nos. MC2020–248 and CP2020–278; Service request, the request’s acceptance Moore; Comments Due: September 25, MC2020–249 and CP2020–279; MC2020–250 date, and the authority cited by the 2020. and CP2020–280] Postal Service for each request. For each 2. Docket No(s).: MC2020–249 and request, the Commission appoints an CP2020–279; Filing Title: USPS Request New Postal Products officer of the Commission to represent to Add Priority Mail Contract 662 to AGENCY: Postal Regulatory Commission. the interests of the general public in the Competitive Product List and Notice of proceeding, pursuant to 39 U.S.C. 505 ACTION: Notice. Filing Materials Under Seal; Filing (Public Representative). Section II also Acceptance Date: September 17, 2020; SUMMARY: The Commission is noticing a establishes comment deadline(s) Filing Authority: 39 U.S.C. 3642, 39 CFR recent Postal Service filing for the pertaining to each request. 3040.130 through 3040.135, and 39 CFR Commission’s consideration concerning The public portions of the Postal 3035.105; Public Representative: Maya negotiated service agreements. This Service’s request(s) can be accessed via Moore; Comments Due: September 25, notice informs the public of the filing, the Commission’s website (http:// 2020. invites public comment, and takes other www.prc.gov). Non-public portions of 3. Docket No(s).: MC2020–250 and administrative steps. the Postal Service’s request(s), if any, CP2020–280; Filing Title: USPS Request can be accessed through compliance DATES: Comments are due: September to Add Priority Mail Contract 663 to with the requirements of 39 CFR Competitive Product List and Notice of 25, 2020. 1 3011.301. Filing Materials Under Seal; Filing ADDRESSES: Submit comments The Commission invites comments on electronically via the Commission’s Acceptance Date: September 17, 2020; whether the Postal Service’s request(s) Filing Authority: 39 U.S.C. 3642, 39 CFR Filing Online system at http:// in the captioned docket(s) are consistent www.prc.gov. Those who cannot submit 3040.130 through 3040.135, and 39 CFR with the policies of title 39. For 3035.105; Public Representative: comments electronically should contact request(s) that the Postal Service states the person identified in the FOR FURTHER Kenneth R. Moeller; Comments Due: concern market dominant product(s), September 25, 2020. INFORMATION CONTACT section by applicable statutory and regulatory This Notice will be published in the telephone for advice on filing requirements include 39 U.S.C. 3622, 39 Federal Register. alternatives. U.S.C. 3642, 39 CFR part 3030, and 39 FOR FURTHER INFORMATION CONTACT: Erica A. Barker, David A. Trissell, General Counsel, at 1 See Docket No. RM2018–3, Order Adopting Secretary. Final Rules Relating to Non-Public Information, 202–789–6820. June 27, 2018, Attachment A at 19–22 (Order No. [FR Doc. 2020–21002 Filed 9–22–20; 8:45 am] SUPPLEMENTARY INFORMATION: 4679). BILLING CODE 7710–FW–P

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POSTAL SERVICE I. Self-Regulatory Organization’s organization that provides 0.02% or Statement of the Terms of Substance of more of total Consolidated Volume Board of Governors; Sunshine Act the Proposed Rule Change during the month through non- Meeting The Exchange proposes to amend the displayed orders (other than midpoint Exchange’s transaction credits at Equity orders) that provide liquidity; and TIME AND DATE: September 14, 2020, at • A $0.0012 per share executed credit 2:30 p.m. 7, Section 3, as described further below. The text of the proposed rule change is for orders entered by a member PLACE: Washington, DC. available on the Exchange’s website at organization that provides 0.05% or STATUS: Closed. https://listingcenter.nasdaq.com/ more of total Consolidated Volume MATTERS TO BE CONSIDERED: rulebook/phlx/rules, at the principal during the month through non- 1. Administrative Issues. office of the Exchange, and at the displayed orders (other than midpoint 2. Strategic Issues. Commission’s Public Reference Room. orders) that provide liquidity. On September 14, 2020, a majority of The Exchange believes that the II. Self-Regulatory Organization’s the members of the Board of Governors addition of these three new credits will Statement of the Purpose of, and of the United States Postal Service voted incentivize member organizations to Statutory Basis for, the Proposed Rule unanimously to hold and to close to add non-displayed liquidity to the Change public observation a special meeting in Exchange. Moreover, the proposal Washington, DC, via teleconference. The In its filing with the Commission, the broadens the availability of credits to Board determined that no earlier public Exchange included statements member organizations that add non- notice was practicable. concerning the purpose of and basis for displayed liquidity other than midpoint General Counsel Certification: The the proposed rule change and discussed pegging orders. In incentivizing member General Counsel of the United States any comments it received on the organizations to increase the extent of Postal Service has certified that the proposed rule change. The text of these their non-displayed liquidity adding meeting may be closed under the statements may be examined at the activity on the Exchange, the Exchange Government in the Sunshine Act. places specified in Item IV below. The intends to improve the overall quality and attractiveness of the PSX market. CONTACT PERSON FOR MORE INFORMATION: Exchange has prepared summaries, set Katherine Sigler, Acting Secretary of the forth in sections A, B, and C below, of Impact of the Changes the most significant aspects of such Board, U.S. Postal Service, 475 L’Enfant Those participants that act as statements. Plaza SW, Washington, DC 20260–1000. significant providers of non-displayed Telephone: (202) 268–4800. A. Self-Regulatory Organization’s liquidity to the Exchange will benefit Michael J. Elston, Statement of the Purpose of, and directly from the proposed addition of Secretary. Statutory Basis for, the Proposed Rule the new credits. Other participants will Change also benefit from the new credits insofar [FR Doc. 2020–21064 Filed 9–21–20; 11:15 am] as any increase in liquidity adding 1. Purpose BILLING CODE 7710–12–P activity on the Exchange will improve The Exchange proposes to revise its the overall quality of the market, to the schedule of order execution and routing benefit of all member organizations. SECURITIES AND EXCHANGE credits, at Equity 7, Section 3, to add The Exchange notes that its proposal COMMISSION three new credits for member is not otherwise targeted at or expected organizations with non-displayed orders to be limited in its applicability to a [Release No. 34–89913; File No. SR–Phlx– that provide liquidity to the Exchange. specific segment of market participants 2020–45] Presently, the Exchange already nor will it apply differently to different provides one such credit—a $0.0023 per types of market participants. Self-Regulatory Organizations; Nasdaq share executed credit for all orders with PHLX LLC; Notice of Filing and midpoint pegging that provide liquidity. 2. Statutory Basis Immediate Effectiveness of Proposed For all other non-display orders that The Exchange believes that its Rule Change To Amend the provide liquidity, it presently provides proposal is consistent with Section 6(b) Exchange’s Transaction Credits at no credits. Going forward, the Exchange of the Act,4 in general, and furthers the Equity 7, Section 3 proposes to add the following new objectives of Sections 6(b)(4) and 6(b)(5) credits for member organizations with of the Act,5 in particular, in that it September 17, 2020. non-displayed orders that provide provides for the equitable allocation of Pursuant to Section 19(b)(1) of the liquidity to the Exchange: reasonable dues, fees and other charges Securities Exchange Act of 1934 • A $0.0004 per share executed credit among members and issuers and other 1 2 (‘‘Act’’), and Rule 19b–4 thereunder, for orders entered by a member persons using any facility, and is not notice is hereby given that on organization that provides 0.01% or designed to permit unfair September 10, 2020, Nasdaq PHLX LLC more of total Consolidated Volume 3 discrimination between customers, (‘‘Phlx’’ or ‘‘Exchange’’) filed with the during the month through non- issuers, brokers, or dealers. The Securities and Exchange Commission displayed orders (other than midpoint proposal is also consistent with Section (‘‘SEC’’ or ‘‘Commission’’) the proposed orders) that provide liquidity; 11A of the Act relating to the rule change as described in Items I, II, • A $0.0007 per share executed credit establishment of the national market and III, below, which Items have been for orders entered by a member system for securities. prepared by the Exchange. The Commission is publishing this notice to 3 As used in this Rule, the term ‘‘Consolidated The Proposal Is Reasonable solicit comments on the proposed rule Volume’’ shall mean the total consolidated volume The Exchange’s proposed changes to change from interested persons. reported to all consolidated transaction reporting its schedule of credits are reasonable in plans by all exchanges and trade reporting facilities during a month in equity securities, excluding 1 15 U.S.C. 78s(b)(1). executed orders with a size of less than one round 4 15 U.S.C. 78f(b). 2 17 CFR 240.19b–4. lot. See Equity 7, Section 3. 5 15 U.S.C. 78f(b)(4) and (5).

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several respects. As a threshold matter, attempt by the Exchange to increase its discovery, and improves the overall the Exchange is subject to significant liquidity and market share relative to its quality of the equity markets. competitive forces in the market for competitors. To the extent that the proposed equity securities transaction services The Exchange has designed its changes succeed in increasing liquidity that constrain its pricing determinations proposed schedule of credits to provide adding activity on the Exchange, this in that market. The fact that this market increased overall incentives to members will improve market quality and the is competitive has long been recognized to increase their liquidity adding attractiveness of the PSX market, to the by the courts. In NetCoalition v. activity on the Exchange. An increase in benefit of all existing and prospective Securities and Exchange Commission, liquidity adding activity on the participants. the D.C. Circuit stated as follows: ‘‘[n]o Exchange will, in turn, improve the Moreover, any participant that is one disputes that competition for order quality of the PSX market and increase dissatisfied with the proposed new flow is ‘fierce.’ . . . As the SEC its attractiveness to existing and credits is free to shift their order flow to explained, ‘[i]n the U.S. national market prospective participants. competing venues that provide more system, buyers and sellers of securities, The Exchange notes that those generous pricing or less stringent and the broker-dealers that act as their participants that are dissatisfied with qualifying criteria. order-routing agents, have a wide range the proposed new credits are free to shift their order flow to competing B. Self-Regulatory Organization’s of choices of where to route orders for Statement on Burden on Competition execution’; [and] ‘no exchange can venues that offer them higher credits. afford to take its market share The Exchange does not believe that The Proposal Is an Equitable Allocation the proposed rule change will impose percentages for granted’ because ‘no of Credits exchange possesses a monopoly, any burden on competition not regulatory or otherwise, in the execution The Exchange believes its proposal necessary or appropriate in furtherance of order flow from broker will allocate its proposed new credits of the purposes of the Act. 6 fairly among its market participants. It dealers’....’’ Intramarket Competition The Commission and the courts have is equitable for the Exchange to increase repeatedly expressed their preference its credits to participants whose orders The Exchange does not believe that its for competition over regulatory add liquidity to the Exchange as a proposal will place any category of intervention in determining prices, means of incentivizing increased Exchange participant at a competitive products, and services in the securities liquidity adding activity on the disadvantage. As noted above, all markets. In Regulation NMS, while Exchange as well as to base the receipt member organizations of the Exchange adopting a series of steps to improve the of the credits on a member organization will benefit from any increase in market current market model, the Commission engaging in a threshold volume of activity that the proposal effectuates. highlighted the importance of market liquidity adding activity on the Member organizations may grow or forces in determining prices and SRO Exchange. An increase in overall modify their businesses so that they can revenues and, also, recognized that liquidity adding activity on the receive the higher credits. Moreover, current regulation of the market system Exchange will improve the quality of member organizations are free to trade ‘‘has been remarkably successful in the PSX market and increase its on other venues to the extent they promoting market competition in its attractiveness to existing and believe that the credits provided are not broader forms that are most important to prospective participants. attractive. As one can observe by investors and listed companies.’’ 7 Any participant that is dissatisfied looking at any market share chart, price Numerous indicia demonstrate the with the proposed new credits is free to competition between exchanges is competitive nature of this market. For shift their order flow to competing fierce, with liquidity and market share example, clear substitutes to the venues that provide more generous moving freely between exchanges in Exchange exist in the market for equity pricing or less stringent qualifying reaction to fee and credit changes. The security transaction services. The criteria. Exchange notes that the tier structure is consistent with broker-dealer fee Exchange is only one of several equity The Proposed Credit Is Not Unfairly practices as well as the other industries, venues to which market participants Discriminatory may direct their order flow, and it as described above. The Exchange believes that the represents a small percentage of the Intermarket Competition overall market. Competing equity proposal is not unfairly discriminatory. exchanges offer similar tiered pricing As an initial matter, the Exchange Addressing whether the proposal structures to that of the Exchange, believes that nothing about its volume- could impose a burden on competition including schedules of rebates and fees based tiered pricing model is inherently on other SROs that is not necessary or that apply based upon members unfair; instead, it is a rational pricing appropriate, the Exchange believes that achieving certain volume thresholds. model that is well-established and its proposed modifications to its Within this environment, market ubiquitous in today’s economy among schedule of credits will not impose a participants can freely and often do shift firms in various industries—from co- burden on competition because the their order flow among the Exchange branded credit cards to grocery stores to Exchange’s execution services are and competing venues in response to cellular telephone data plans—that use completely voluntary and subject to changes in their respective pricing it to reward the loyalty of their best extensive competition from a multitude schedules. Within the foregoing context, customers that provide high levels of of other live exchanges and off-exchange the proposal represents a reasonable business activity and incent other venues. The Exchange notes that it customers to increase the extent of their operates in a highly competitive market 6 NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. business activity. It is also a pricing in which market participants can Cir. 2010) (quoting Securities Exchange Act Release model that the Exchange and its readily favor competing venues if they No. 59039 (December 2, 2008), 73 FR 74770, 74782– competitors have long employed with deem fee levels at a particular venue to 83 (December 9, 2008) (SR–NYSEArca–2006–21)). be excessive, or rebate opportunities 7 Securities Exchange Act Release No. 51808 the assent of the Commission. It is fair (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) because it incentivizes customer activity available at other venues to be more (‘‘Regulation NMS Adopting Release’’). that increases liquidity, enhances price favorable. In such an environment, the

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Exchange must continually adjust III. Date of Effectiveness of the Washington, DC 20549, on official credits to remain competitive with other Proposed Rule Change and Timing for business days between the hours of exchanges and with alternative trading Commission Action 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for systems that have been exempted from The foregoing rule change has become inspection and copying at the principal compliance with the statutory standards effective pursuant to Section office of the Exchange. All comments applicable to exchanges. Because 19(b)(3)(A)(ii) of the Act.8 received will be posted without change. competitors are free to modify their own At any time within 60 days of the Persons submitting comments are credits in response, and because market filing of the proposed rule change, the cautioned that we do not redact or edit participants may readily adjust their Commission summarily may personal identifying information from order routing practices, the Exchange temporarily suspend such rule change if comment submissions. You should believes that the degree to which credits it appears to the Commission that such submit only information that you wish action is: (i) Necessary or appropriate in change in this market may impose any to make available publicly. All the public interest; (ii) for the protection burden on competition is extremely submissions should refer to File of investors; or (iii) otherwise in limited. Number SR–Phlx–2020–45 and should The proposed new credits are furtherance of the purposes of the Act. be submitted on or before October 14, If the Commission takes such action, the reflective of this competition because, as 2020. Commission shall institute proceedings a threshold issue, the Exchange is a to determine whether the proposed rule For the Commission, by the Division of relatively small market so its ability to should be approved or disapproved. Trading and Markets, pursuant to delegated burden intermarket competition is authority.9 limited. In this regard, even the largest IV. Solicitation of Comments J. Matthew DeLesDernier, U.S. equities exchange by volume has Interested persons are invited to Assistant Secretary. less than 17–18% market share, which submit written data, views, and [FR Doc. 2020–20937 Filed 9–22–20; 8:45 am] in most markets could hardly be arguments concerning the foregoing, BILLING CODE 8011–01–P categorized as having enough market including whether the proposed rule power to burden competition. Moreover, change is consistent with the Act. as noted above, price competition Comments may be submitted by any of SECURITIES AND EXCHANGE between exchanges is fierce, with the following methods: COMMISSION liquidity and market share moving Electronic Comments [Release No. 34–89901; File No. SR– freely between exchanges in reaction to CboeBZX–2020–070] • fee and credit changes. This is in Use the Commission’s internet addition to free flow of order flow to comment form (http://www.sec.gov/ Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of and among off-exchange venues which rules/sro.shtml); or • a Proposed Rule Change To List and comprises approximately 44% of Send an email to rule-comments@ Trade Shares of the –1x Short VIX industry volume. sec.gov. Please include File Number SR– Phlx–2020–45 on the subject line. Futures ETF, a Series of VS Trust, The Exchange intends for the Under Rule 14.11(f)(4) (‘‘Trust Issued proposed changes to its schedule of Paper Comments Receipts’’) credits to increase member organization • Send paper comments in triplicate incentives to engage in the addition of to Secretary, Securities and Exchange September 17, 2020. non-displayed liquidity on the Commission, 100 F Street NE, Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 Exchange. These changes are Washington, DC 20549–1090. (‘‘Act’’),1 and Rule 19b–4 thereunder,2 procompetitive and reflective of the All submissions should refer to File notice is hereby given that on Exchange’s efforts to make it an Number SR–Phlx–2020–45. This file September 4, 2020, Cboe BZX Exchange, attractive and vibrant venue to market number should be included on the Inc. (‘‘Exchange’’ or ‘‘BZX’’) filed with participants. subject line if email is used. To help the the Securities and Exchange In sum, if the changes proposed Commission process and review your Commission (‘‘Commission’’) the herein is unattractive to market comments more efficiently, please use proposed rule change as described in participants, it is likely that the only one method. The Commission will Items I, II, and III below, which Items Exchange will lose market share as a post all comments on the Commission’s have been prepared by the Exchange. internet website (http://www.sec.gov/ result. Accordingly, the Exchange does The Commission is publishing this rules/sro.shtml). Copies of the not believe that the proposed changes notice to solicit comments on the submission, all subsequent will impair the ability of member proposed rule change from interested amendments, all written statements persons. organizations or competing order with respect to the proposed rule execution venues to maintain their change that are filed with the I. Self-Regulatory Organization’s competitive standing in the financial Commission, and all written Statement of the Terms of Substance of markets. communications relating to the the Proposed Rule Change C. Self-Regulatory Organization’s proposed rule change between the Cboe BZX Exchange, Inc. (the Statement on Comments on the Commission and any person, other than ‘‘Exchange’’ or ‘‘BZX’’) is filing with the Proposed Rule Change Received From those that may be withheld from the Securities and Exchange Commission Members, Participants, or Others public in accordance with the (‘‘Commission’’) a proposed rule change provisions of 5 U.S.C. 552, will be to list and trade shares of the –1x Short No written comments were either available for website viewing and VIX Futures ETF, a series of VS Trust, solicited or received. printing in the Commission’s Public Reference Room, 100 F Street NE, 9 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 8 15 U.S.C. 78s(b)(3)(A)(ii). 2 17 CFR 240.19b–4.

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under Rule 14.11(f)(4) (‘‘Trust Issued exposure to market volatility through U.S. Bancorp Fund Services, LLC serves Receipts’’). publicly traded futures markets. The as the sub-administrator (the ‘‘Sub- The text of the proposed rule change benchmark for the Fund is the Short Administrator’’) and transfer agent. is also available on the Exchange’s VIX Futures Index (the ‘‘Index’’ or ticker Wilmington Trust Company, a Delaware website (http://markets.cboe.com/us/ symbol SHORTVOL).5 The Index trust company, is the sole trustee of the equities/regulation/rule_filings/bzx/), at measures the daily inverse (i.e., the Trust. the Exchange’s Office of the Secretary, opposite) performance of a theoretical If the Sponsor to the Trust issuing the and at the Commission’s Public portfolio of first- and second-month Trust Issued Receipts is affiliated with Reference Room. futures contracts on the Cboe Volatility a broker-dealer, such Sponsor to the 6 II. Self-Regulatory Organization’s Index (‘‘VIX’’). Trust shall erect and maintain a ‘‘fire The Fund will primarily invest in VIX Statement of the Purpose of, and wall’’ between the Sponsor and the futures contracts traded on the Cboe Statutory Basis for, the Proposed Rule broker-dealer with respect to access to Futures Exchange, Inc. (‘‘CFE’’) Change information concerning the composition (hereinafter referred to as ‘‘VIX Futures and/or changes to the Fund’s portfolio. In its filing with the Commission, the Contracts’’) based on components of the The Sponsor is not a broker-dealer or Exchange included statements Index to pursue its investment objective. affiliated with a broker-dealer. In the concerning the purpose of and basis for In the event accountability rules, price event that (a) the Sponsor becomes a the proposed rule change and discussed limits, position limits, margin limits or broker-dealer or newly affiliated with a any comments it received on the other exposure limits are reached with broker-dealer, or (b) any new sponsor is proposed rule change. The text of these respect to VIX Futures Contracts, a broker-dealer or becomes affiliated statements may be examined at the Volatility Shares LLC (the ‘‘Sponsor’’) with a broker-dealer, it will implement places specified in Item IV below. The may cause the Fund to obtain exposure and maintain a fire wall with respect to Exchange has prepared summaries, set to the Index through Over-the-Counter its relevant personnel or such broker- forth in sections A, B, and C below, of (OTC) swaps referencing the Index or dealer affiliate, as applicable, regarding the most significant aspects of such particular VIX Futures Contracts access to information concerning the statements. comprising the Index (hereinafter composition and/or changes to the A. Self-Regulatory Organization’s referred to as ‘‘VIX Swap Agreements’’). portfolio, and will be subject to Statement of the Purpose of, and The Fund may also invest in VIX Swap procedures designed to prevent the use Statutory Basis for, the Proposed Rule Agreements if the market for a specific and dissemination of material non- Change VIX Futures Contract experiences public information regarding the emergencies (e.g., natural disaster, portfolio. 1. Purpose terrorist attack or an act of God) or The VIX Swap Agreements in which This Amendment No. 3 to SR- disruptions (e.g., a trading halt or a flash the Fund may invest may be cleared or CboeBZX–2020–003 amends and crash) or in situations where the non-cleared. The Fund will collateralize replaces in its entirety the proposal as Sponsor deems it impractical or its obligations with Cash and Cash amended by Amendment No. 2, which inadvisable to buy or sell VIX Futures Equivalents 8 consistent with the 1940 was submitted on April 13, 2020, and Contracts (such as during periods of Act and interpretations thereunder. amended and replaced in its entirety the market volatility or illiquidity). The Fund will only enter into VIX proposal as amended by Amendment The Sponsor, a Delaware limited Swap Agreements with counterparties No. 1, which was submitted on March liability company, serves as the Sponsor that the Sponsor reasonably believes are 24, 2020. The original proposal, of VS Trust (the ‘‘Trust’’). The Sponsor 7 capable of performing under the submitted on January 3, 2020, was is a commodity pool operator. Tidal contract and will post as collateral as amended and replaced in its entirety by ETF Services LLC serves as the required by the counterparty. The Fund Amendment No. 1. The Exchange administrator (the ‘‘Administrator’’) and will seek, where possible, to use U.S. Bank National Association serves submits this Amendment No. 3 in order counterparties, as applicable, whose as custodian of the Fund and its Shares. to clarify certain points and add financial status is such that the risk of additional details to the proposal. default is reduced; however, the risk of 5 The Index is sponsored by Cboe Global Indexes The Exchange proposes to list and losses resulting from default is still trade Shares of the –1x Short VIX (the ‘‘Index Sponsor’’). The Index Sponsor is not a registered broker-dealer, but is affiliated with a possible. The Sponsor will evaluate the Futures ETF (the ‘‘Fund’’) under Rule broker-dealer. The Index Sponsor has implemented creditworthiness of counterparties on a 14.11(f)(4), which governs the listing and will maintain a fire wall with respect to the regular basis. In addition to information 3 broker-dealer affiliate regarding access to and trading of Trust Issued Receipts on provided by credit agencies, the the Exchange.4 information concerning the composition and/or changes to the Index. In addition, the Index Sponsor will review approved The Fund seeks to provide daily Sponsor has implemented and will maintain counterparties using various factors, investment results (before fees and procedures that are designed to prevent the use and which may include the counterparty’s expenses), as further described below, dissemination of material, non-public information reputation, the Sponsor’s past that correspond to the performance of a regarding the Index. 6 experience with the counterparty and benchmark that seeks to offer short The VIX is an index designed to measure the implied volatility of the S&P 500 over 30 days in the price/market actions of debt of the the future. The VIX is calculated based on the counterparty. 3 Rule 14.11(f)(4) applies to Trust Issued Receipts prices of certain put and call options on the S&P that invest in ‘‘Financial Instruments.’’ The term 500. The VIX is reflective of the premium paid by The Fund may use various techniques ‘‘Financial Instruments,’’ as defined in Rule investors for certain options linked to the level of to minimize OTC counterparty credit 14.11(f)(4)(A)(iv), means any combination of the S&P 500. risk including entering into investments, including cash; securities; options on 7 The Fund has filed a draft registration statement arrangements with its counterparties securities and indices; futures contracts; options on on Form S–1 under the Securities Act of 1933, futures contracts; forward contracts; equity caps, dated December 6, 2019 (File No. 377–02945) whereby both sides exchange collateral collars and floors; and swap agreements. (‘‘Draft Registration Statement’’). The description of 4 The Commission approved BZX Rule 14.11(f)(4) the Fund and the Shares contained herein are based 8 For purposes of this proposal, the term ‘‘Cash in Securities Exchange Act Release No. 68619 on the Draft Registration Statement. The Fund will and Cash Equivalents’’ shall have the definition (January 10, 2013), 78 FR 3489 (January 16, 2013) not trade on the Exchange until such time as there provided in Exchange Rule 14.11(i)(4)(C)(iii), (SR–BZX–2012–044). is an effective registration statement for the Fund. applicable to Managed Fund Shares.

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on a mark-to-market basis. Collateral Using this approach, the Sponsor holding an unleveraged short position posted by the Fund to a counterparty in determines the type, quantity and mix in first- and second- month VIX Futures connection with uncleared VIX Swap of investment positions that the Sponsor Contracts. While the Index does not Agreements is generally held for the believes in combination should produce correspond to the inverse of the VIX, as benefit of the counterparty in a daily returns consistent with the Fund’s it seeks short exposure to VIX, the value segregated tri-party account at the objective. The Sponsor relies upon a of the Index, and by extension the Fund, custodian to protect the counterparty pre-determined model to generate will generally rise as the VIX falls and against non-payment by the Fund. orders that result in repositioning the fall as the VIX rises. Further, as In addition to VIX Swap Agreements, Fund’s investments in accordance with described above, because VIX Futures if the Fund is unable to meet its its investment objective. Contracts correlate to future volatility investment objective through readings of VIX, while the VIX itself VIX Futures Contracts investments in VIX Futures Contracts, correlates to current volatility, the Index the Fund may also obtain exposure to The Index is comprised of, and the and the Fund should be expected to the Index through listed VIX options value of the Fund will be based on, VIX perform significantly different from the contracts traded on the Cboe Exchange, Futures Contracts. VIX Futures inverse of the VIX. Inc. (‘‘Cboe’’) (hereinafter referred to as Contracts are measures of the market’s Unlike the Index, the VIX, which is ‘‘VIX Options Contracts’’). expectation of the level of VIX at certain not a benchmark for the Fund, is The Fund may also invest in Cash and points in the future, and as such will calculated based on the prices of put Cash Equivalents that may serve as behave differently than current, or spot, and call options on the S&P 500, which collateral in the above referenced VIX VIX, as illustrated below. are traded exclusively on Cboe. Futures Contracts, VIX Swap While the VIX represents a measure of Agreements, and VIX Option Contracts the current expected volatility of the Calculation of the Index (collectively referred to as the ‘‘VIX S&P 500 over the next 30 days, the The Index employs rules for selecting Derivative Products’’). prices of VIX Futures Contracts are the Index Components and a formula to If the Fund is successful in meeting based on the current expectation of calculate a level for the Index from the its objective, its value (before fees and what the expected 30-day volatility will prices of these components. expenses) on a given day should gain be at a particular time in the future (on Specifically, the Index Components approximately as much on a percentage the expiration date). For example, a VIX represent the prices of the two near-term basis as the level of the Index when it Futures Contract purchased in March VIX Futures Contracts, replicating a rises. Conversely, its value (before fees that expires in May, in effect, is a position that rolls the nearest month and expenses) should lose forward contract on what the level of VIX Futures Contract to the next month approximately as much on a percentage the VIX, as a measure of 30-day implied VIX Futures Contract on a daily basis in basis as the level of the Index when it volatility of the S&P 500, will be on the equal fractional amounts. This results in declines. The Fund primarily acquires May expiration date. The forward a constant weighted average maturity of short exposure to the VIX through VIX volatility reading of the VIX may not approximately one month. The roll Futures Contracts, such that the Fund correlate directly to the current period usually begins on the Wednesday has exposure intended to approximate volatility reading of the VIX because the falling 30 calendar days before the S&P the Index at the time of the net asset implied volatility of the S&P 500 at a 500 option expiration for the following value (‘‘NAV’’) calculation of the Fund. future expiration date may be different month (the ‘‘Cboe VIX Monthly Futures However, as discussed above, in the from the current implied volatility of Settlement Date’’), and runs to the event that the Fund is unable to meet its the S&P 500. As a result, the Index and Tuesday prior to the subsequent investment objective solely through the the Fund should be expected to perform month’s Cboe VIX Monthly Futures investment of VIX Futures Contracts, it very differently from the inverse of the Settlement Date. may invest in VIX Swap Agreements or VIX over all periods of time. To The level of the Index will be VIX Options Contracts. The Fund may illustrate, on December 4, 2019, the VIX published at least every 15 seconds both also invest in Cash or Cash Equivalents closed at a price of 14.8 and the price in real time from 9:30 a.m. to 4 p.m. ET that may serve as collateral to the of the February 2020 VIX Futures and at the close of trading on each Fund’s investments in VIX Derivative Contracts expiring on February 19, 2020 Business Day 10 by Bloomberg and Products. was 18.125. In this example, the price Reuters. The Fund is not actively managed by of the VIX represented the 30-day Mitigating Price Impacts to VIX Futures traditional methods, which typically implied, or ‘‘spot,’’ volatility (the Contract Prices at Times of Fund involve effecting changes in the volatility expected for the period from Rebalancing composition of a portfolio on the basis December 5, 2019 to January 5, 2020) of of judgments relating to economic, the S&P 500 and the February VIX The Fund’s investment objective is a financial and market considerations Futures Contracts represented forward daily investment objective; that is, the with a view toward obtaining positive implied volatility (the volatility Fund seeks to track the Index on a daily results under all market conditions. expected for the period from February basis, not over longer periods. Rather, the Fund seeks to remain fully 19 to March 19, 2020) of the S&P 500. Accordingly, each day, the Fund will invested at all times in VIX Derivative position its portfolio so that it can seek Short VIX Futures Index Products (and Cash and Cash to track the Index. The direction and Equivalents as collateral) 9 that provide The Index is designed to express the extent of the Index’s movements each exposure to the Index consistent with its daily inverse performance of a day will dictate the direction and extent investment objective without regard to theoretical portfolio of first- and second- of the Fund’s portfolio rebalancing. For market conditions, trends or direction. month VIX Futures Contracts (the In seeking to achieve the Fund’s ‘‘Index Components’’), with the price of 10 A ‘‘Business Day’’ means any day other than a investment objective, the Sponsor uses each VIX Futures Contract reflecting the day when any of BZX, Cboe, CFE or other exchange material to the valuation or operation of the Fund, a mathematical approach to investing. market’s expectation of future volatility. or the calculation of the VIX, options contracts The Index seeks to reflect the returns underlying the VIX, VIX Futures Contracts or the 9 Supra note 6. that are potentially available from Index is closed for regular trading.

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example, if the level of the Index falls rebalancing methodology and limiting Availability of Information Regarding on a given day, net assets of the Fund the Fund’s participation in the VIX the Shares would fall. As a result, exposure to the futures contracts should reduce the The NAV for the Fund’s Shares will Index, through futures positions held by impact of the Fund’s rebalancing on the be calculated by the Sub-Administrator the Fund, would need to be decreased. price of VIX futures contracts. once each Business Day and will be The opposite would be the case if the The Sponsor believes that the Fund disseminated daily to all market level of the Index rises on a given day. would enter an Extended Rebalance participants at the same time.13 Pricing The time and manner in which the Period most often during periods of information for the Shares will be Fund rebalances its portfolio is defined extraordinary volatility or illiquidity in available on the Fund’s website at by the Index methodology but may vary VIX futures contracts. For example, in www.volatilityshares.com, including: (1) from the Index methodology depending surveying the two most volatile months The prior Business Day’s reported NAV, upon market conditions and other in recent history—February 2018 and the closing market price or the bid/ask circumstances including the potential March 2020—and assuming a size equal price, daily trading volume, and a impact of the rebalance on the price of to the largest previously achieved by an calculation of the premium and the VIX futures contracts. The Sponsor inverse VIX ETP ($1.9 billion—Symbol: will seek to minimize the market impact discount of the closing market price or XIV on February 1, 2018), the Fund bid/ask price against the NAV; and (2) of Fund rebalances on the price of VIX would have exceeded one-quarter of the futures contracts by limiting the Fund’s data in chart format displaying the trading volume of VIX futures contracts frequency distribution of discounts and participation, on any given day, in VIX during the Rebalance Period for seven futures contracts to no more than one- premiums of the daily closing price days in February 2018 and for five days against the NAV, within appropriate quarter of the contracts traded on Cboe in March 2020. Having the Fund Futures Exchange (the ‘‘CFE’’) during ranges, for each of the four previous participate in an Extended Rebalance calendar quarters. any Rebalance Period (defined by the Period on those days would have Index methodology as 3:45 p.m.–4 p.m. The closing prices and settlement resulted in a maximum participation in prices of the Index Components (i.e., the ET). If the Fund’s portfolio rebalance VIX futures contracts over the Extended exceeds one-quarter of the futures’ first- and second-month VIX Futures Rebalance Period of 14.1% in February Contracts) will also be readily available volume between 3:45 p.m. and 4 p.m. 2018 and 12.6% in March 2020. ET, the Sponsor will extend the from the websites of CFE (http:// rebalance period (the ‘‘Extended Purchases and Redemptions of Creation www.cfe.cboe.com), automated Rebalance Period) to include, for Units quotation systems, published or other example, the period between 4 p.m. and public sources, or on-line information The Fund will create and redeem 4:15 p.m. ET and the Trade At services such as Bloomberg or Reuters. Shares from time to time only in large Settlement market (‘‘TAS’’). Complete real-time data for component blocks of a specified number of Shares The Sponsor expects that allowing the VIX Futures Contracts underlying the or multiples thereof (‘‘Creation Units’’). Fund to participate in an Extended Index is available by subscription from A Creation Unit is a block of at least Rebalance Period will minimize the Reuters and Bloomberg. Specifically, the 10,000 Shares. Except when aggregated impact on the price of VIX futures level of the Index will be published at in Creation Units, the Shares are not contracts, and particularly minimize least every 15 seconds both in real time redeemable securities. any impact of large Fund rebalances from 9:30 a.m. to 4 p.m. ET and at the during periods of market illiquidity.11 On any Business Day, an authorized close of trading on each Business Day by Accordingly, by defining an explicit participant may place an order with the Bloomberg and Reuters. The CFE also Sub-Administrator to create one or more provides delayed futures information on 12 11 Research on the impact of the portfolio Creation Units. The total cash current and past trading sessions and rebalancing of VIX Exchange Traded Products payment required to create each market news free of charge on its (‘‘VIX ETPs’’) on VIX futures’ prices suggests that Creation Unit is the NAV of at least website. The specific contract large rebalancing trades from inverse and leveraged 10,000 Shares of the Fund on the specifications of Index Components VIX ETPs have a smaller than expected price impact on VIX futures. See Br

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sale information for VIX Swap which is calculated only once a day. Surveillance Agreements will be available from The IIV also should not be viewed as a nationally recognized data services precise value of the Shares. Trading of the Shares through the Exchange will be subject to the providers, such as Reuters and Additional information regarding the Exchange’s surveillance procedures for Bloomberg, through subscription Fund and the Shares, including derivative products, including Trust agreements or from a broker-dealer who investment strategies, risks, creation and Issued Receipts. All of the VIX Futures makes markets in such instruments. redemption procedures, fees, portfolio Contracts and VIX Options Contracts Quotation and last-sale information for holdings, disclosure policies, VIX Swap Agreements will be valued on distributions and taxes will be included held by the Fund will trade on markets the basis of quotations or equivalent in the registration statement. that are a member of ISG or affiliated indication of value supplied by a third- with a member of ISG or with which the party pricing service or broker-dealer Initial and Continued Listing Exchange has in place a comprehensive who makes markets in such surveillance sharing agreement.15 The instruments. Pricing information The Shares of the Fund will conform Exchange, FINRA, on behalf of the to the initial and continued listing regarding Cash Equivalents in which the Exchange, or both will communicate criteria under BZX Rule 14.11(f)(4). The Fund will invest is generally available regarding trading in the Shares and the Exchange represents that, for initial and through nationally recognized data underlying listed instruments, including continued listing, the Fund and the services providers, such as Reuters and listed derivatives held by the Fund, Trust must be in compliance with Rule Bloomberg, through subscription with the ISG, other markets or entities agreements. 10A–3 under the Act. A minimum of 100,000 Shares of the Fund will be who are members or affiliates of the ISG, In addition, the Fund’s website at or with which the Exchange has entered www.volatilityshares.com will display outstanding at the commencement of trading on the Exchange. The Exchange into a comprehensive surveillance the end of day closing Index level, and sharing agreement. In addition, the NAV per Share for the Fund. The Fund will obtain a representation from the Exchange, FINRA, on behalf of the will provide website disclosure of Sponsor of the Shares that the NAV per Exchange, or both may obtain portfolio holdings daily and will Share for the Fund will be calculated information regarding trading in the include, as applicable, the notional daily and will be made available to all Shares and the underlying listed value (in U.S. dollars) of VIX Derivative market participants at the same time. instruments, including listed Products, and characteristics of such Trading Halts instruments, as well as Cash and Cash derivatives, held by the Fund from Equivalents held in the portfolio of the With respect to trading halts, the markets and other entities that are Fund. This website disclosure of the Exchange may consider all relevant members of ISG or with which the portfolio composition of the Fund will factors in exercising its discretion to Exchange has in place a comprehensive occur at the same time as the disclosure halt or suspend trading in the Shares of surveillance sharing agreement. The by the Fund of the portfolio the Fund. The Exchange will halt Exchange also has a general policy composition to authorized participants trading in the Shares under the prohibiting the distribution of material, so that all market participants are conditions specified in BZX Rule 11.18. non-public information by its provided portfolio composition Trading may be halted because of employees. All statements and information at the same time. The same market conditions or for reasons that, in representations made in this filing portfolio information will be provided the view of the Exchange, make trading regarding the Index composition, on the public website as well as in in the Shares inadvisable. These may description of the portfolio or reference electronic files provided to authorized include: (1) The extent to which trading assets, limitations on portfolio holdings participants. is not occurring in the securities and/or or reference assets, dissemination and In addition, in order to provide the financial instruments composing the availability of reference the Index, updated information relating to the daily disclosed portfolio of the Fund; or reference asset, and IIV, and the Fund for use by investors and market (2) whether other unusual conditions or applicability of Exchange rules specified professionals, an updated Intraday circumstances detrimental to the in this filing shall constitute continued Indicative Value (‘‘IIV’’) will be maintenance of a fair and orderly listing requirements for the Fund. The calculated. The IIV is an indicator of the market are present. issuer has represented to the Exchange value of the Fund’s holdings, which Trading Rules that it will advise the Exchange of any include the VIX Derivative Products and failure by the Fund or the Shares to Cash and Cash Equivalents less The Exchange deems the Shares to be comply with the continued listing liabilities of the Fund at the time the IIV equity securities, thus rendering trading requirements, and, pursuant to its is disseminated. The IIV will be in the Shares subject to the Exchange’s obligations under Section 19(g)(1) of the calculated and widely disseminated by existing rules governing the trading of Act, the Exchange will surveil for one or more major market data vendors equity securities. The Exchange will compliance with the continued listing every 15 seconds throughout Regular allow trading in the Shares from 8:00 requirements. If the Fund or the Shares 14 Trading Hours. a.m. until 8:00 p.m. ET and has the are not in compliance with the In addition, the IIV will be published appropriate rules to facilitate applicable listing requirements, the on the Exchange’s website and will be transactions in the Shares during all Exchange will commence delisting available through on-line information trading sessions. As provided in BZX services such as Bloomberg and Reuters. procedures under Exchange Rule 14.12. Rule 11.11(a), the minimum price The IIV disseminated during Regular variation for quoting and entry of orders 15 Trading Hours should not be viewed as For a list of the current members and affiliate in securities traded on the Exchange is members of ISG, see www.isgportal.com. The an actual real time update of the NAV, $0.01, with the exception of securities Exchange notes that not all components of the Fund’s holdings may trade on markets that are 14 As defined in Rule 1.5(w), the term ‘‘Regular that are priced less than $1.00, for members of ISG or with which the Exchange has in Trading Hours’’ means the time between 9:30 a.m. which the minimum price variation for place a comprehensive surveillance sharing and 4 p.m. ET. order entry is $0.0001. agreement.

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Information Circular seek to achieve its primary investment violations of Exchange rules and the Prior to the commencement of objective over a period of time greater applicable federal securities laws. If the trading, the Exchange will inform its than a single day. The return of the Sponsor to the Trust issuing the Trust members in an Information Circular of Fund for a period longer than a single Issued Receipts is affiliated with a the special characteristics and risks day is the result of its return for each broker-dealer, such Sponsor to the Trust associated with trading the Shares. day compounded over the period and shall erect and maintain a ‘‘fire wall’’ Specifically, the Information Circular usually will differ in amount and between the Sponsor and the broker- will discuss the following: (1) The possibly even direction from either the dealer with respect to access to procedures for purchases and inverse of the VIX or the inverse of a information concerning the composition redemptions of Shares in Creation Units portfolio of short-term VIX Futures and/or changes to the Fund’s portfolio. (and that Shares are not individually Contracts for the same period. These The Sponsor is not a broker-dealer or redeemable); (2) BZX Rule 3.7, which differences can be significant. affiliated with a broker-dealer. In the imposes suitability obligations on In addition, the Information Circular event that (a) the Sponsor becomes a Exchange members with respect to will advise members, prior to the broker-dealer or newly affiliated with a recommending transactions in the commencement of trading, of the broker-dealer, or (b) any new sponsor is Shares to customers; (3) Interpretation prospectus delivery requirements a broker-dealer or becomes affiliated and Policy .01 of BZX Rule 3.7 which applicable to the Fund. Members with a broker-dealer, it will implement imposes a duty of due diligence on its purchasing Shares from the Fund for and maintain a fire wall with respect to Members to learn the essential facts resale to investors will deliver a its relevant personnel or such broker- relating to every customer prior to prospectus to such investors. The dealer affiliate, as applicable, regarding trading the Shares; 16 (4) how Information Circular will also discuss access to information concerning the information regarding the IIV and the any exemptive, no-action and composition and/or changes to the Fund’s holdings is disseminated; (5) the interpretive relief granted by the portfolio, and will be subject to risks involved in trading the Shares Commission from any rules under the procedures designed to prevent the use during the Pre-Opening 17 and After Act. and dissemination of material non- In addition, the Information Circular Hours Trading Sessions 18 when an public information regarding the updated IIV will not be calculated or will reference that the Fund is subject portfolio. The Exchange, FINRA, on publicly disseminated; (6) the to various fees and expenses described behalf of the Exchange, or both may requirement that members deliver a in the Fund’s registration statement. The obtain information regarding trading in prospectus to investors purchasing Information Circular will also disclose the Shares and the underlying VIX newly issued Shares prior to or the trading hours of the Shares of the Futures Contracts and VIX Options concurrently with the confirmation of a Fund and the applicable NAV Contracts via the ISG from other transaction; and (7) trading information. calculation time for the Shares. The exchanges who are members or affiliates Further, the Exchange states that Information Circular will disclose that of the ISG or with which the Exchange FINRA has implemented increased sales information about the Shares of the has entered into a comprehensive practice and customer margin Fund will be publicly available on the surveillance sharing agreement. In requirements for FINRA members Fund’s website. addition, the Exchange also has a applicable to inverse, leveraged and 2. Statutory Basis general policy prohibiting the inversed leveraged securities (which The Exchange believes that the distribution of material, non-public include the Shares) and options on such information by its employees. securities, as described in FINRA proposal is consistent with Section 6(b) 19 The proposed rule change is designed Regulatory Notices 09–31 (June 2009), of the Act in general and Section 6(b)(5) of the Act 20 in particular in that to promote just and equitable principles 09–53 (August 2009), and 09–65 of trade and to protect investors and the (November 2009) (collectively, ‘‘FINRA it is designed to prevent fraudulent and manipulative acts and practices, to public interest in that the Exchange will Regulatory Notices’’). Members that obtain a representation from the issuer carry customer accounts will be promote just and equitable principles of trade, to foster cooperation and of the Shares that the NAV will be required to follow the FINRA guidance calculated daily and that the NAV and set forth in these notices. As noted coordination with persons engaged in facilitating transactions in securities, to the Fund’s holdings will be made above, the Fund will seek daily available to all market participants at investment results, before fees and remove impediments to and perfect the mechanism of a free and open market the same time. In addition, a large expenses, that correspond to the Index, amount of information is publicly which measures daily inverse and a national market system and, in general, to protect investors and the available regarding the Fund and the performance of a theoretical portfolio of Shares, thereby promoting market first- and second-month futures public interest. The Exchange believes that the transparency. Moreover, the IIV will be contracts on the VIX. The Fund does not proposed rule change is designed to disseminated by one or more major prevent fraudulent and manipulative market data vendors at least every 15 16 Specifically, in part, Interpretation and Policy .01 of Rule 3.7 states ‘‘[n]o Member shall acts and practices in that the Shares will seconds during Regular Trading Hours. recommend to a customer a transaction in any such be listed and traded on the Exchange On each Business Day, before product unless the Member has a reasonable basis pursuant to the initial and continued commencement of trading in Shares for believing at the time of making the listing criteria in Exchange Rule during Regular Trading Hours, the Fund recommendation that the customer has such knowledge and experience in financial matters that 14.11(f). The Exchange believes that its will disclose on its website the holdings he may reasonably be expected to be capable of surveillance procedures are adequate to that will form the basis for the Fund’s evaluating the risks of the recommended properly monitor the trading of the calculation of NAV at the end of the transaction and is financially able to bear the risks Shares on the Exchange during all Business Day. Pricing information will of the recommended position. be available on the Fund’s website 17 The Pre-Opening Session is from 8:00 a.m. to trading sessions and to deter and detect 9:30 a.m. ET. including: (1) The prior Business Day’s 18 The After Hours Trading Session is from 4 p.m. 19 15 U.S.C. 78f. reported NAV, the closing market price to 8:00 p.m. ET. 20 15 U.S.C. 78f(b)(5). or the bid/ask price, daily trading

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volume, and a calculation of the Bloomberg, through subscription days in February 2018 and for five days premium and discount of the closing agreements. in March 2020. Having the Fund market price or bid/ask price against the Fund’s investment objective is a daily participate in an Extended Rebalance NAV; and (2) data in chart format investment objective; that is, the Fund Period on those days would have displaying the frequency distribution of seeks to track the Index on a daily basis, resulted in a maximum participation in discounts and premiums of the daily not over longer periods. Accordingly, VIX futures contracts over the Extended closing price against the NAV, within each day, the Fund will position its Rebalance Period of 14.1% in February appropriate ranges, for each of the four portfolio so that it can seek to track the 2018 and 12.6% in March 2020. previous calendar quarters. Index. The direction and extent of the The proposed rule change is designed Additionally, information regarding Index’s movements each day will to perfect the mechanism of a free and market price and trading of the Shares dictate the direction and extent of the open market and, in general, to protect will be continually available on a real- Fund’s portfolio rebalancing. For investors and the public interest in that time basis throughout the day on example, if the level of the Index falls it will facilitate the listing and trading on a given day, net assets of the Fund brokers’ computer screens and other of an additional type of exchange-traded would fall. As a result, exposure to the electronic services, and quotation and product that will enhance competition Index, through futures positions held by last sale information for the Shares will among market participants, to the the Fund, would need to be decreased. benefit of investors and the marketplace. be available on the facilities of the CTA. The opposite would be the case if the As noted above, the Exchange has in The website for the Fund will include level of the Index rises on a given day. place surveillance procedures relating to a form of the prospectus for the Fund The time and manner in which the trading in the Shares and may obtain and additional data relating to NAV and Fund rebalances its portfolio is defined information via ISG from other other applicable quantitative by the Index methodology but may vary exchanges that are members of ISG or information. Trading in Shares of the from the Index methodology depending with which the Exchange has entered Fund will be halted under the upon market conditions and other into a comprehensive surveillance conditions specified in Exchange Rule circumstances including the potential sharing agreement. In addition, as noted 11.18. Trading may also be halted impact of the rebalance on the price of above, investors will have ready access because of market conditions or for the VIX futures contracts. The Sponsor to information regarding the Fund’s reasons that, in the view of the will seek to minimize the market impact holdings, the IIV, and quotation and last Exchange, make trading in the Shares of Fund rebalances on the price of VIX sale information for the Shares. For the inadvisable. Finally, trading in the futures contracts by limiting the Fund’s above reasons, the Exchange believes Shares will be subject to participation, on any given day, in VIX that the proposed rule change is 14.11(f)(4)(C)(ii), which sets forth futures contracts to no more than one- consistent with the requirements of circumstances under which Shares of quarter of the contracts traded on CFE Section 6(b)(5) of the Act. the Fund may be halted. In addition, as during any Rebalance Period (defined noted above, investors will have ready by the Index methodology as 3:45 p.m.– B. Self-Regulatory Organization’s access to information regarding the 4 p.m. ET). If the Fund’s portfolio Statement on Burden on Competition Fund’s holdings, the IIV, and quotation rebalance exceeds one-quarter of the The Exchange does not believe that and last sale information for the Shares. futures’ volume between 3:45 p.m. and the proposed rule change will impose Quotation and last-sale information 4 p.m. ET, the Sponsor will extend the any burden on competition that is not rebalance period to include, for regarding the Shares will be necessary or appropriate in furtherance example, the period between 4 p.m. and disseminated through the facilities of of the purpose of the Act. The Exchange 4:15 p.m. ET and TAS. notes that the proposed rule change, the CTA. Quotation and last-sale The Sponsor expects that allowing the information regarding VIX Futures rather will facilitate the listing of an Fund to participate in an Extended additional exchange-traded product on Contracts and VIX Options Contracts Rebalance Period will minimize the will be available from the exchanges on the Exchange, which will enhance impact on the price of VIX futures competition among listing venues, to which such instruments are traded. contracts, and particularly minimize Quotation and last-sale information the benefit of issuers, investors, and the any impact of large Fund rebalances marketplace more broadly. relating to VIX Options Contracts will during periods of market illiquidity. also be available via the Options Price Accordingly, by defining an explicit C. Self-Regulatory Organization’s Reporting Authority. Quotation and last- rebalancing methodology and limiting Statement on Comments on the sale information for VIX Swap the Fund’s participation in the VIX Proposed Rule Change Received From Agreements will be available from futures contracts should reduce the Members, Participants, or Others nationally recognized data services impact of the Fund’s rebalancing on the The Exchange neither solicited nor providers, such as Reuters and price of VIX futures contracts. received comments on the proposed Bloomberg, through subscription The Sponsor believes that the Fund rule change. agreements or from a broker-dealer who would enter an Extended Rebalance makes markets in such instruments. Period most often during periods of III. Date of Effectiveness of the Quotation and last-sale information for extraordinary volatility or illiquidity in Proposed Rule Change and Timing for VIX Swap Agreements will be valued on VIX futures contracts. For example, in Commission Action the basis of quotations or equivalent surveying the two most volatile months Within 45 days of the date of indication of value supplied by a third- in recent history—February 2018 and publication of this notice in the Federal party pricing service or broker-dealer March 2020—and assuming a size equal Register or within such longer period who makes markets in such to the largest previously achieved by an up to 90 days (i) as the Commission may instruments. Pricing information inverse VIX ETP ($1.9 billion—Symbol: designate if it finds such longer period regarding Cash Equivalents in which the XIV on February 1, 2018), the Fund to be appropriate and publishes its Fund will invest is generally available would have exceeded one-quarter of the reasons for so finding or (ii) as to which through nationally recognized data trading volume of VIX futures contracts the Exchange consents, the Commission services providers, such as Reuters and during the Rebalance Period for seven will:

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A. By order approve or disapprove For the Commission, by the Division of Exchange Act to replace their existing such proposed rule change, or Trading and Markets, pursuant to delegated investigatory, disciplinary, and B. Institute proceedings to determine authority.21 adjudicatory rules with those contained whether the proposed rule change J. Matthew DeLesDernier, in the Nasdaq Rule 8000 and 9000 should be disapproved. Assistant Secretary. Series, as such rules may be in effect IV. Solicitation of Comments [FR Doc. 2020–20938 Filed 9–22–20; 8:45 am] from time to time, with certain specified BILLING CODE 8011–01–P exceptions. In the proposed rule Interested persons are invited to changes, BX proposed to incorporate by submit written data, views, and reference the Nasdaq Rule 8000 and arguments concerning the foregoing, SECURITIES AND EXCHANGE 9000 Series into General 5, Sections 1 including whether the proposed rule COMMISSION and 2 of the BX rulebook, and GEMX, change is consistent with the Act. [Release No. 34–89902] ISE, MRX, and Phlx each proposed to Comments may be submitted by any of incorporate by reference the Nasdaq the following methods: Order Granting Applications by Rule 8000 and 9000 Series into General Electronic Comments Nasdaq BX, Inc., Nasdaq GEMX, LLC, 5, Sections 2 and 3 of their respective Nasdaq ISE, LLC, Nasdaq MRX, LLC, rulebooks, thus making these Nasdaq • Use the Commission’s internet and Nasdaq PHLX LLC for Exemption rules applicable to the Nasdaq Affiliated comment form (http://www.sec.gov/ Pursuant to Section 36(a) of the Exchanges’ respective members, rules/sro.shtml); or member organizations,5 associated • Send an email to rule-comments@ Exchange Act From the Rule Filing persons, and other persons subject to sec.gov. Please include File Number SR– Requirements of Section 19(b) of the their jurisdiction. When the proposed CboeBZX–2020–070 on the subject line. Exchange Act With Respect to Certain Rules Incorporated by Reference rule changes become operative, the Paper Comments Nasdaq Affiliated Exchanges’ members, • September 17, 2020. member organizations, associated Send paper comments in triplicate Nasdaq BX, Inc. (‘‘BX’’), Nasdaq to Secretary, Securities and Exchange persons, and other persons subject to GEMX, LLC (‘‘GEMX’’), Nasdaq ISE, the jurisdiction of the Nasdaq Affiliated Commission, 100 F Street NE, LLC (‘‘ISE’’), Nasdaq MRX, LLC Washington, DC 20549–1090. Exchanges will be required to comply (‘‘MRX’’), and Nasdaq PHLX LLC with the Nasdaq Rule 8000 and 9000 All submissions should refer to File (‘‘Phlx’’) (collectively, the ‘‘Nasdaq Series as though such rules are fully set Number SR–CboeBZX–2020–070. This Affiliated Exchanges’’) have filed with forth within each of the Nasdaq file number should be included on the the Securities and Exchange Affiliated Exchanges’ rulebooks. subject line if email is used. To help the Commission (‘‘Commission’’) an The Nasdaq Affiliated Exchanges have Commission process and review your application for an exemption under requested, pursuant to Rule 0–12 under comments more efficiently, please use Section 36(a)(1) of the Securities the Exchange Act,6 that the Commission only one method. The Commission will Exchange Act of 1934 (‘‘Exchange grant the Nasdaq Affiliated Exchanges post all comments on the Commission’s Act’’) 1 from the rule filing requirements an exemption from the rule filing internet website (http://www.sec.gov/ of Section 19(b) of the Exchange Act 2 requirements of Section 19(b) of the rules/sro.shtml). Copies of the with respect to certain rules of The Exchange Act for changes to each of the submission, all subsequent Nasdaq Stock Market LLC (‘‘Nasdaq’’), Nasdaq Affiliated Exchanges’ rules that amendments, all written statements an affiliate of the Nasdaq Affiliated are effected solely by virtue of a change with respect to the proposed rule Exchanges, that the Nasdaq Affiliated to the Nasdaq Rule 8000 and 9000 change that are filed with the Exchanges seek to incorporate by Series that are incorporated by Commission, and all written reference.3 Section 36 of the Exchange reference. Specifically, the Nasdaq communications relating to the Act authorizes the Commission to Affiliated Exchanges request that they proposed rule change between the conditionally or unconditionally be permitted to incorporate by reference Commission and any person, other than exempt any person, security, or changes made to the Nasdaq Rule 8000 those that may be withheld from the transaction, or any class thereof, from and 9000 Series that are cross- public in accordance with the any provision of the Exchange Act or referenced in each of the Nasdaq provisions of 5 U.S.C. 552, will be rule thereunder, if necessary or Affiliated Exchanges’ rules, without the available for website viewing and appropriate in the public interest and need for each of the Nasdaq Affiliated printing in the Commission’s Public consistent with the protection of Exchanges to file separately the same Reference Room, 100 F Street NE, investors. proposed rule changes pursuant to Washington, DC 20549 on official Recently, the Nasdaq Affiliated Section 19(b) of the Exchange Act.7 business days between the hours of Exchanges each filed a proposed rule The Nasdaq Affiliated Exchanges 10:00 a.m. and 3:00 p.m. Copies of the change 4 under Section 19(b) of the represent that the Nasdaq Rule 8000 and filing also will be available for inspection and copying at the principal 21 17 CFR 200.30–3(a)(12). 5 The Commission notes that the term ‘‘member office of the Exchange. All comments 1 15 U.S.C. 78mm(a)(1). organization,’’ as defined under Phlx General 1, received will be posted without change. 2 15 U.S.C. 78s(b). Section 1(17), applies only to legal entities that are 3 See Letter from Angela S. Dunn, Principal members of the Phlx exchange, and is not utilized Persons submitting comments are Associate General Counsel, Nasdaq, Inc., to Vanessa by any other of the Nasdaq Affiliated Exchanges. cautioned that we do not redact or edit Countryman, Secretary, Commission, dated June 15, See Exemption Request, supra note 3, at 2 n.5. See personal identifying information from 2020 (‘‘Exemption Request’’). also Securities Exchange Act Release No. 82143 comment submissions. You should 4 See Securities Exchange Act Release Nos. 88938 (November 22, 2017), 82 FR 56672, 56672 n.3 (May 26, 2020), 85 FR 33235 (June 1, 2020) (SR– (November 29, 2017) (SR–Phlx–2017–92) submit only information that you wish BX–2020–009); 89071 (June 15, 2020), 85 FR 37129 (describing that, on the Phlx exchange, the term to make available publicly. All (June 19, 2020) (SR–GEMX–2020–15); 89069 (June ‘‘member’’ refers to a natural person, whereas the submissions should refer to File 15, 2020), 85 FR 37120 (June 19, 2020) (SR–ISE– term ‘‘member organization’’ refers to an entity, which must have at least one ‘‘member,’’ as that Number SR–CboeBZX–2020–070 and 2020–22); 89070 (June 15, 2020), 85 FR 37142 (June 19, 2020) (SR–MRX–2020–12); and 88519 (March term is defined by the Phlx exchange). should be submitted on or before 31, 2020), 85 FR 19203 (April 6, 2020) (SR–Phlx– 6 17 CFR 240.0–12. October 14, 2020. 2020–09). 7 See Exemptive Request, supra note 3, at 2.

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9000 Series are not trading rules. granting one such exemption in 2010, Affiliated Exchanges’ resources by Moreover, the Nasdaq Affiliated the Commission repeated a prior, 2004 avoiding duplicative rule filings based Exchanges state that in each instance, Commission statement that it would on simultaneous changes to identical the Nasdaq Affiliated Exchanges consider similar future exemption rule text sought by more than one propose to incorporate by reference requests from other self-regulatory SRO.14 The Commission therefore finds categories of rules (rather than organizations (‘‘SROs’’), provided that: it appropriate in the public interest and individual rules within a category) that • An SRO wishing to incorporate consistent with the protection of are regulatory in nature. The Nasdaq rules of another SRO by reference has investors to exempt the Nasdaq Affiliated Exchanges will, as a condition submitted a written request for an order Affiliated Exchanges from the rule filing of this exemption, provide written exempting it from the requirement in requirements under Section 19(b) of the notice to their respective members (or Section 19(b) of the Exchange Act to file Exchange Act with respect to the above- member organizations) whenever proposed rule changes relating to the described rules they have incorporated Nasdaq proposes a change to its Rule rules incorporated by reference, has by reference. This exemption is 8000 and 9000 Series.8 Such notice will identified the applicable originating conditioned upon the Nasdaq Affiliated alert the members (or member SRO(s), together with the rules it wants Exchanges promptly providing written organizations) of each of the Nasdaq to incorporate by reference, and notice to their members (or member Affiliated Exchanges to the proposed otherwise has complied with the organizations) whenever Nasdaq rule change and give them an procedural requirements set forth in the changes a rule that the Nasdaq Affiliated opportunity to comment on the Commission’s release governing Exchanges have incorporated by proposal. The Nasdaq Affiliated procedures for requesting exemptive reference. Exchanges state that they will also orders pursuant to Rule 0–12 under the Accordingly, it is ordered, pursuant to inform their respective members (or Exchange Act; 12 Section 36 of the Exchange Act,15 that member organizations) in writing when • The incorporating SRO has the Nasdaq Affiliated Exchanges are the Commission approves any such requested incorporation of categories of exempt from the rule filing proposed rule changes.9 rules (rather than individual rules requirements of Section 19(b) of the The Nasdaq Affiliated Exchanges within a category) that are not trading Exchange Act solely with respect to believe this exemption is necessary and rules (e.g., the SRO has requested changes to the rules identified in their appropriate because it will result in the incorporation of rules such as margin, request that incorporate by reference Nasdaq Affiliated Exchanges’ rules suitability, or arbitration); and certain Nasdaq rules that are the result being consistent with the relevant cross- • The incorporating SRO has of changes to such Nasdaq rules, referenced Nasdaq rules at all times, reasonable procedures in place to provided that the Nasdaq Affiliated thus ensuring that the Nasdaq Affiliated provide written notice to its members Exchanges promptly provide written Exchanges and Nasdaq maintain a each time a change is proposed to the notice to their members (or member harmonious system of investigating, incorporated rules of another SRO.13 organizations) whenever Nasdaq disciplining, and adjudicating the rights The Commission believes that the proposes to change a rule that the of their respective members, member Nasdaq Affiliated Exchanges have Nasdaq Affiliated Exchanges have organizations, associated persons, and satisfied each of these conditions. The incorporated by reference. other persons subject to their Commission also believes that granting For the Commission, by the Division of jurisdiction. Without such an the Nasdaq Affiliated Exchanges an Trading and Markets, pursuant to delegated 16 exemption, the Nasdaq Affiliated exemption from the rule filing authority. Exchanges and Nasdaq could subject requirements under Section 19(b) of the J. Matthew DeLesDernier, their respective members, member Exchange Act will promote efficient use Assistant Secretary. organizations, associated persons, and of the Commission’s and Nasdaq [FR Doc. 2020–20936 Filed 9–22–20; 8:45 am] other persons subject to their BILLING CODE 8011–01–P jurisdiction to different standards for 2014), 79 FR 44075 (July 29, 2014) (order granting exemptive requests from NASDAQ OMX BX, Inc. investigations and disciplinary and the NASDAQ Stock Market LLC relating to 10 SECURITIES AND EXCHANGE actions. rules of NASDAQ OMX PHLX LLC incorporated by The Commission has issued reference); 67256 (June 26, 2012), 77 FR 39277, COMMISSION exemptions similar to the Nasdaq 39286 (July 2, 2012) (order approving SR–BX–2012– [SEC File No. 270–420, OMB Control No. 11 030 and granting exemptive request relating to rules Affiliated Exchanges’ request. In incorporated by reference by the BX Options rules); 3235–0479] 61534 (February 18, 2010), 75 FR 8760 (February 8 The Nasdaq Affiliated Exchanges state that they 25, 2010) (order granting BATS Exchange, Inc.’s Proposed Collection; Comment will provide such notice on their websites in the exemptive request relating to rules incorporated by Request same section they use to post their own proposed reference by the BATS Exchange Options Market rule change filings pursuant to Rule 19b–4(l) within rules) (‘‘BATS Options Market Order’’); and 57478 Upon Written Request, Copies Available the timeframe required by such Rule. In addition, (March 12, 2008), 73 FR 14521, 14539–40 (March From: Securities and Exchange the Nasdaq Affiliated Exchanges state that their 18, 2008) (order approving SR–NASDAQ–2007–004 Commission, Office of FOIA Services, websites will also include a link to the Nasdaq and SR–NASDAQ–2007–080, and granting website where the proposed rule change filings are exemptive request relating to rules incorporated by 100 F Street NE, Washington, DC located. Id. at 3 n.8. reference by The NASDAQ Options Market). 20549–2736 9 Id. at 3. 12 See 17 CFR 240.0–12 and Securities Exchange Extension: 10 Id. at 2. Act Release No. 39624 (February 5, 1998), 63 FR Rule 15c2–7 11 See, e.g., Securities Exchange Act Release Nos. 8101 (February 18, 1998) (‘‘Commission Procedures 83887 (August 20, 2018), 83 FR 42722 (August 23, for Filing Applications for Orders for Exemptive Notice is hereby given that pursuant 2018) (order granting exemptive request from Relief Pursuant to Section 36 of the Exchange Act; to the Paperwork Reduction Act of 1995 Nasdaq ISE, LLC, Nasdaq GEMX, LLC, and Nasdaq Final Rule’’). MRX, LLC relating to rules of Nasdaq BX, Inc. 13 See BATS Options Market Order, supra note 11 incorporated by reference); 80338 (March 29, 2017), (citing Securities Exchange Act Release No. 49260 14 See BATS Options Market Order, supra note 82 FR 16464 (April 4, 2017) (order granting (February 17, 2004), 69 FR 8500 (February 24, 2004) 11, 75 FR at 8761; see also 2004 Order, supra note exemptive request from MIAX PEARL, LLC relating (order granting exemptive request relating to rules 13, 69 FR at 8502. to rules of Miami International Securities Exchange, incorporated by reference by several SROs) (‘‘2004 15 15 U.S.C. 78mm. LLC incorporated by reference); 72650 (July 22, Order’’)). 16 17 CFR 200.30–3(a)(76).

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(‘‘PRA’’) (44 U.S.C. 3501 et seq.), the comply with the requirements of Rule 19b–4 thereunder,2 a proposed rule Securities and Exchange Commission 15c2–7 (1 notice (×) 45 seconds/notice). change to offer a complimentary global (‘‘Commission’’) is soliciting comments Written comments are invited on: (a) targeting tool to an acquisition company on the existing collection of information Whether the proposed collection of that has publicly announced entering provided for in Rule 15c2–7 (17 CFR information is necessary for the proper into a binding agreement for a business 240.15c2–7) under the Securities performance of the functions of the combination. The proposed rule change Exchange Act of 1934 (15 U.S.C. 78a et Commission, including whether the was published in the Federal Register seq.). The Commission plans to submit information shall have practical utility; on August 3, 2020.2 The Commission this existing collection of information to (b) the accuracy of the Commission’s received no comments on the proposal. the Office of Management and Budget estimates of the burden of the proposed This order grants approval of the (‘‘OMB’’) for extension and approval. collection of information; (c) ways to proposed rule change. Rule 15c2–7 places disclosure enhance the quality, utility, and clarity requirements on broker-dealers who of the information collected; and (d) II. Description of the Proposal have correspondent relationships, or ways to minimize the burden of the Generally, Nasdaq does not permit the agreements identified in the rule, with collection of information on initial or continued listing of a company other broker-dealers. Whenever any respondents, including through the use that has no specific business plan or such broker-dealer enters a quotation for of automated collection techniques or that has indicated that its business plan a security through an inter-dealer other forms of information technology. is to engage in a merger or acquisition quotation system, Rule 15c2–7 requires Consideration will be given to with an unidentified company or the broker-dealer to disclose these comments and suggestions submitted in companies. However, in the case of a relationships and agreements in the writing within 60 days of this company whose business plan is to manner required by the rule. The inter- publication. complete an initial public offering dealer quotation system must also be An agency may not conduct or (‘‘IPO’’) and engage in a merger or able to make these disclosures public in sponsor, and a person is not required to acquisition with one or more association with the quotation the respond to, a collection of information unidentified companies within a broker-dealer is making. under the PRA unless it displays a specific period of time, Nasdaq will When rule 15c2–7 was adopted in currently valid OMB control number. permit the listing if the company meets 1964, the information it requires was Please direct your written comments all applicable initial listing necessary for execution of the to: David Bottom, Director/Chief requirements, as well as certain Commission’s mandate under the Information Officer, Securities and additional conditions described in Securities Exchange Act of 1934 to Exchange Commission, c/o Cynthia Nasdaq Rule IM–5101–2 (Listing of prevent fraudulent, manipulative and Roscoe, 100 F Street NE, Washington, Companies Whose Business Plan is to deceptive acts by broker-dealers. In the DC 20549, or send an email to: PRA_ Complete One or More Acquisitions). absence of the information collection [email protected]. Rule IM–5101–2 requires, among other required under Rule 15c2–7, investors Dated: September 17, 2020. things, that at least 90% of the gross and broker-dealers would have been J. Matthew DeLesDernier, proceeds from the IPO and any unable to accurately determine the Assistant Secretary. concurrent sale by the company of market depth of, and demand for, [FR Doc. 2020–20929 Filed 9–22–20; 8:45 am] equity securities must be deposited in a securities in an inter-dealer quotation ‘‘deposit account,’’ as that term is BILLING CODE 8011–01–P system. defined in the rule, and that the There are approximately 3,647 broker- company complete within 36 months, or dealers registered with the Commission. SECURITIES AND EXCHANGE a shorter period identified by the Any of these broker-dealers could be COMMISSION company, one or more business potential respondents for Rule 15c2–7, combinations having an aggregate fair so the Commission is using that figure [Release No. 34–89915; File No. SR– market value of at least 80% of the value to represent the number of respondents. NASDAQ–2020–044] of the deposit account (excluding any Rule 15c2–7 applies only to quotations deferred underwriters fees and taxes entered into an inter-dealer quotation Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Order payable on the income earned on the system, such as the OTC Bulletin Board deposit account) at the time of the (‘‘OTCBB’’), or OTC Link, operated by Granting Approval of Proposed Rule Change To Adopt Listing Rule IM– agreement to enter into the initial OTC Markets Group Inc. (‘‘OTC Link’’) combination.3 or the electronic trading platform 5900–8 To Offer a Complimentary Global Targeting Tool to Acquisition The Exchange proposes to adopt operated by Global OTC. According to Nasdaq IM 5900–8, to allow Nasdaq, representatives of OTC Link, Global Companies Listed Pursuant to Nasdaq IM–5101–2 That Have Publicly through its affiliate Nasdaq Corporate OTC and the OTCBB, none of those Solutions, LLC, to offer a company entities has recently received, or Announced Entering Into a Binding Agreement for a Business listed under IM–5101–2 (‘‘Acquisition anticipates receiving any Rule 15c2–7 Company’’) a complimentary global notices. However, because such notices Combination could be made, the Commission September 17, 2020. 2 See Securities Exchange Act Release No. 89413 estimates that one filing is made (July 28, 2020), 85 FR 46759 (‘‘Notice’’). annually pursuant to Rule 15c2–7. I. Introduction 3 See Rule IM–5101–2(a) and (b). Nasdaq IM– Based on prior industry reports, the On July 15, 2020, The Nasdaq Stock 5101–2 also requires that following each business combination, the combined company must meet the Commission estimates that the average Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) requirements for initial listing. See infra note 12. If time required to enter a disclosure filed with the Securities and Exchange the company does not meet the requirements for pursuant to the rule is .75 minutes, or Commission (‘‘Commission’’), pursuant initial listing following a business combination or 45 seconds. The Commission sees no to Section 19(b)(1) of the Securities does not comply with one of the requirements set 1 forth in the IM–5101–2, Nasdaq will issue a Staff reason to change this estimate. We Exchange Act of 1934 (‘‘Act’’) and Rule Delisting Determination under Nasdaq Rule 5810 to estimate that impacted respondents delist the company’s securities. See Rule IM–5101– spend a total of .0125 hours per year to 1 15 U.S.C. 78s(b)(1). 2(d).

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targeting tool following the public is consistent with the provisions of that offering the tool for 60 days announcement that the company Sections 6(b)(4) and (5) of the Act,7 in following the completion of the entered into a binding agreement for the particular, in that it is designed to business combination will allow for a business combination intended to provide for the equitable allocation of smooth transition to the traditional satisfy the conditions in IM–5101–2(b) reasonable dues, fees, and other charges operating company model and avoid until 60 days following the completion among Exchange members, issuers, and disruption of the service during the of the business combination or such other persons using the Exchange’s completion of the business combination time that the Acquisition Company facilities, and is not designed to permit transaction.13 publicly announces that such agreement unfair discrimination between As noted in the order approving is terminated.4 customers, issuers, brokers, or dealers. Nasdaq IM–5900–7, Section 6(b)(5) of Proposed Nasdaq IM–5900–8 states Moreover, the Commission believes that the Act does not require that all issuers that, through this global targeting tool, the proposed rule change is consistent be treated the same; rather, the Act investor targeting specialists will help with Section 6(b)(8) of the Act 8 in that focus the Acquisition Company’s it does not impose any burden on requires that the rules of an Exchange investor relations efforts on appropriate not unfairly discriminate between competition not necessary or 14 investors, tailor messaging to their appropriate in furtherance of the issuers. The Commission believes that interests and measure the company’s purposes of the Act. the Exchange has reasonably justified impact on their holdings. The analyst The Commission believes that it is treating an Acquisition Company that team will help develop a detailed plan consistent with the Act for the Exchange has publicly announced that it has aligning the targeting efforts with the to offer a complimentary global targeting entered into a binding agreement to company’s long-term ownership tool to all Acquisition Companies 9 enter into a business combination strategy. Such analysis will include following the public announcement of a differently than other companies, addressable risks and opportunities by binding agreement to enter into a including Acquisition Companies that region and investor type, and business combination intended to have not yet announced that they have recommendations for where to focus satisfy the conditions in Nasdaq IM– entered into a business combination. As time. According to the Exchange, this 5101–2(b) until 60 days following the discussed above, Acquisition service has a retail value of completion of the business combination Companies have an increased need to approximately $44,000 per year.5 or such time that the Acquisition focus on identifying and communicating Company publicly announces that such with shareholders and prospective III. Discussion and Commission’s agreement is terminated. As stated in its investors following the public Findings proposal, the Exchange has observed announcement of entering into a The Commission has carefully that once an Acquisition Company business combination. In addition, the reviewed the proposed rule change and publicly announces a business Exchange stated that at this time in an finds that it is consistent with the combination with an operating Acquisition Company’s lifecycle, the requirements of Section 6 of the Act.6 company, the Acquisition Company company is transitioning to the Specifically, the Commission believes it needs to identify and target investors traditional operating company model appropriate for the new business and 4 See proposed IM–5900–8. As set forth in Nasdaq specifically target investors who are continued listing on the Nasdaq Global Market. IM–5900–7 (Services Offered to Certain Newly Listing Rule 5550(a)(3) requires at least 300 Public Listing Companies), the Exchange currently offers interested in investing in the acquired business.10 The Exchange stated that Holders for continued listing on the Nasdaq Capital certain newly listing companies complimentary Market. The Commission notes, however, that these services to help them satisfy their obligations as such investor targeting may help the continued listing requirements only apply during public companies related to governance and Acquisition Company convey the long- the continued listing of the Acquisition Company communications, and to provide intelligence about prior to any business combination. Nasdaq IM– their securities. These services are offered to term vision of the acquired business to 5101–2 requires that, at the time of a business companies listing on the Global or Global Select investors and diminish potential combination, the combined company would need to Market, based on market capitalization, in redemptions at the time of the business meet all applicable initial listing requirements. See connection with their IPO in the United States, combination with the operating supra note 3. For initial listing, among other including American Depository Receipts (other than 11 a company listed under IM–5101–2); upon company. In addition, the Exchange requirements, Listing Rule 5405(a)(3) requires at emerging from bankruptcy; in connection with a believes that such diminished least 400 Round Lot Holders on Nasdaq Global spin-off or carve-out from another company; in redemptions may help Acquisition Market and Listing Rule 5505(a)(3) requires at least connection with a Direct Listing as defined in IM– 300 Round Lot Holders on Nasdaq Capital Market. 5315–1 (including the listing of American Companies remain in compliance with 13 See Notice, supra note 2, at 46761. The Depository Receipts); or in conjunction with a other listing requirements, including the Exchange stated that Acquisition Companies do not business combination that satisfies the conditions shareholder requirement for continued have operating businesses and, therefore, do not in IM–5101–2(b) (‘‘Eligible New Listings’’). These listing.12 The Exchange further stated generally need shareholder communication complimentary services are also offered, based on services, market analytic tools or market advisory market capitalization, to companies (other than a tools. As a result, these companies do not receive company listed under IM–5101–2) switching their 7 15 U.S.C. 78f(b)(4) and (5). complimentary services under Nasdaq IM–5900–7, listing from the New York Stock Exchange to the 8 15 U.S.C. 78f(b)(8). but would be eligible to receive services under IM– Global or Global Select Markets (‘‘Eligible 9 This would include Acquisition Companies 5900–7 when listing on the Nasdaq Global or Global Switches’’). Nasdaq does not currently offer listed on the Nasdaq Capital, Global, and Global Select Market in conjunction with a business complimentary services to companies listing on the Select Markets. Nasdaq does not currently offer combination that satisfies the conditions in IM– Nasdaq Capital Market or to Acquisition Companies complimentary services under IM–5900–7 to 5101–2(b). See id. at 46760. See also IM–5900–7. listing on any market tier. See Nasdaq IM–5900–7. companies listing on the Nasdaq Capital Market so While the Exchange noted that a company may be The Exchange stated that, in certain circumstances, this rule proposal will be the first time the eligible to receive services under both IM–5900–7 under the proposal an Acquisition Company may be Exchange provides the same service on all three and proposed IM–5900–8 for a short period of time eligible to receive services under both IM–5900–7 listing tiers. See supra note 4. following the completion of a business and proposed IM–5900–8 for a short period of time 10 See Notice, supra note 2, at 46760. combination, the Commission notes that such following the completion of a business combination 11 See id. The Acquisition Company’s eligibility would be restricted to the global targeting pursuant to IM–5101–2. shareholders have the right to redeem their shares tool and would be limited to no more than 60 days. 5 See proposed IM–5900–8. for a pro rata share of that trust in conjunction with See supra note 4. 6 15 U.S.C. 78f. In approving this proposed rule the business combination. See IM–5101–2(d) and 14 15 U.S.C. 78f(b)(5); see also Securities change, the Commission has considered the (e). Exchange Act Release No. 65963 (December 15, proposed rule’s impact on efficiency, competition, 12 See Notice, supra note 2, at 46761. Listing Rule 2011), 76 FR 79262 (December 21, 2011) (approving and capital formation. See 15 U.S.C. 78c(f). 5450(a)(2) requires at least 400 Total Holders for NASDAQ–2011–122) (‘‘2011 Approval Order’’).

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and the complimentary global targeting The Exchange further stated it believes Decided: September 16, 2020. tool will help ease this transition.15 the offering of the complimentary global By the Board, Board Members Begeman, The Commission also believes that targeting tool will provide an incentive Fuchs, and Oberman. describing in the Exchange’s rules the to Acquisition Companies to list on Tammy Lowery, products and services available to listed Nasdaq.19 Accordingly, the Commission Clearance Clerk. companies and their associated values believes that the proposed rule reflects [FR Doc. 2020–20939 Filed 9–22–20; 8:45 am] adds greater transparency to the the current competitive environment for BILLING CODE 4915–01–P Exchange’s rules and to the fees exchange listings among national applicable to such companies and will securities exchanges, and is appropriate ensure that individual listed companies, and consistent with Section 6(b)(8) of DEPARTMENT OF TRANSPORTATION including Acquisition Companies, are the Act.20 not given specially negotiated packages Federal Motor Carrier Safety IV. Conclusion of products or services to list, or remain Administration listed, that would raise unfair It is therefore ordered, pursuant to discrimination issues under the Act.16 Section 19(b)(2) of the Act,21 that the [Docket No. FMCSA–2020–0026] The Commission has previously found proposed rule change (SR–NASDAQ– Qualification of Drivers; Exemption that the package of complimentary 2020–044) be, and it hereby is, Applications; Hearing services offered to Eligible New Listings approved. and Eligible Switches, which includes For the Commission, by the Division of AGENCY: Federal Motor Carrier Safety the global targeting tool, is equitably Trading and Markets, pursuant to delegated Administration (FMCSA), DOT. allocated among issuers consistent with authority.22 ACTION: Notice of final disposition. Section 6(b)(4) of the Act.17 Based on J. Matthew DeLesDernier, SUMMARY: FMCSA announces its the foregoing, the Commission believes Assistant Secretary. that the Exchange has provided a decision to exempt 11 individuals from [FR Doc. 2020–20935 Filed 9–22–20; 8:45 am] the hearing requirement in the Federal sufficient basis for offering a BILLING CODE 8011–01–P complimentary global targeting tool to Motor Carrier Safety Regulations Acquisition Companies that have (FMCSRs) to operate a commercial motor vehicle (CMV) in interstate announced that they have entered into SURFACE TRANSPORTATION BOARD a binding agreement to enter into a commerce. The exemptions enable these business combination until 60 days [Docket No. EP 290 (Sub-No. 5) (2020–4)] hard of hearing and deaf individuals to following the completion of the operate CMVs in interstate commerce. business combination (or such time that Quarterly Rail Cost Adjustment Factor DATES: The exemptions were applicable on September 14, 2020. The exemptions the Acquisition Company publicly AGENCY: Surface Transportation Board. expire on September 14, 2022. announces that such agreement is ACTION: Approval of rail cost adjustment FOR FURTHER INFORMATION CONTACT: Ms. terminated), and that this change does factor. not unfairly discriminate among issuers Christine A. Hydock, Chief, Medical and is consistent with the Act. SUMMARY: The Board approves the Programs Division, (202) 366–4001, The Commission also believes that the fourth quarter 2020 Rail Cost [email protected], FMCSA, Exchange is responding to competitive Adjustment Factor (RCAF) and cost Department of Transportation, 1200 pressures in the market for listings in index filed by the Association of New Jersey Avenue SE, Room W64–224, making this proposal. The Exchange American Railroads. The fourth quarter Washington, DC 20590–0001. Office stated in its proposal that it faces 2020 RCAF (Unadjusted) is 0.941. The hours are from 8:30 a.m. to 5 p.m., ET, competition in the market for listing fourth quarter 2020 RCAF (Adjusted) is Monday through Friday, except Federal services and the Commission 0.394. The fourth quarter 2020 RCAF–5 holidays. If you have questions understands that the Exchange is 0.372. regarding viewing or submitting competes, in part, by offering DATES: Applicable Date: October 1, material to the docket, contact Docket complimentary services to companies.18 2020. Operations, (202) 366–9826. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: 15 See Notice, supra note 2, at 46761. 16 See Exchange Act Release No. 79366, 81 FR Pedro Ramirez at (202) 245–0333. I. Public Participation Assistance for the hearing impaired is 85663 at 85665 (approving SR–NASDAQ–2016– A. Viewing Documents and Comments 106) (‘‘2016 Approval Order’’) (citing Securities available through Federal Relay Service Exchange Act Release No. 65127 (August 12, 2011), at (800) 877–8339. To view comments, as well as any 76 FR 51449, 51452 (August 18, 2011) (approving NYSE–2011–20)). The Commission notes that the SUPPLEMENTARY INFORMATION: The documents mentioned in this notice as Exchange also stated that no other company will be Board’s decision is posted at http:// being available in the docket, go to required to pay higher fees as a result of the www.stb.gov. Copies of the decision may http://www.regulations.gov/ proposal and that providing the complimentary docket?D=FMCSA-2020-0026 and global targeting tool will have no impact on the be purchased by contacting the Office of resources available for its regulatory programs. See Public Assistance, Governmental choose the document to review. If you Notice, supra note 2, at 46760. Affairs, and Compliance at (202) 245– do not have access to the internet, you 17 See 2016 Approval Order, supra note 16, at 0238. may view the docket online by visiting 85665. Docket Operations in Room W12–140 18 See Notice, supra note 2, at 46761. The environment. See 2011 Approval Order, supra note on the ground floor of the DOT West Commission notes that the complimentary services 14, at 79267. The Exchange also noted that other under the proposal will be provided by Nasdaq Building, 1200 New Jersey Avenue SE, providers could compete by offering similar Global Solutions, LLC, an affiliate of Nasdaq. The Washington, DC 20590, between 9 a.m. services to Acquisition Companies. See Notice, Commission has previously stated that providing supra note 2, at 46761. and 5 p.m., ET, Monday through Friday, complimentary services to its listed companies 19 except Federal holidays. To be sure through an affiliate as opposed to a third party See Notice, supra note 2, at 46760. vendor is among the different ways Nasdaq 20 15 U.S.C. 78f(b)(8). someone is there to help you, please call competes for listings and provides services to listed 21 15 U.S.C. 78s(b)(2). (202) 366–9317 or (202) 366–9826 companies and that this reflects the competitive 22 17 CFR 200.30–3(a)(12). before visiting Docket Operations.

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B. Privacy Act period. FMCSA grants medical official. In addition, the exemption does In accordance with 5 U.S.C. 553(c), exemptions from the FMCSRs for a 2- not exempt the individual from meeting DOT solicits comments from the public year period to align with the maximum the applicable CDL testing to better inform its rulemaking process. duration of a driver’s medical requirements. certification. DOT posts these comments, without VI. Preemption edit, including any personal information The Agency’s decision regarding these the commenter provides, to exemption applications is based on During the period the exemption is in www.regulations.gov, as described in current medical information and effect, no State shall enforce any law or the system of records notice (DOT/ALL– literature, and the 2008 Evidence regulation that conflicts with this 14 FDMS), which can be reviewed at Report, ‘‘Executive Summary on exemption with respect to a person www.transportation.gov/privacy. Hearing, Vestibular Function and operating under the exemption. Commercial Motor Driving Safety.’’ The II. Background evidence report reached two VII. Conclusion On August 7, 2020, FMCSA published conclusions regarding the matter of Based upon its evaluation of the 11 a notice announcing receipt of hearing loss and CMV driver safety: (1) exemption applications, FMCSA applications from 11 individuals No studies that examined the exempts the following drivers from the requesting an exemption from the relationship between hearing loss and hearing standard, § 391.41(b)(11), hearing requirement in 49 CFR crash risk exclusively among CMV subject to the requirements cited above: 391.41(b)(11) to operate a CMV in drivers were identified; and (2) evidence Ymarc Anthony Ancheta (CT) interstate commerce and requested from studies of the private driver’s Victor Contreras (IL) comments from the public (85 FR license holder population does not Chauncey Crawford (OH) 48065). The public comment period support the contention that individuals Jonathan Kelly (TX) ended on September 8, 2020, and no with hearing impairment are at an Robert King (MI) comments were received. increased risk for a crash. In addition, Steven Levine (MN) FMCSA has evaluated the eligibility the Agency reviewed each applicant’s Eddie Martinez (TX) of these applicants and determined that driving record found in the Commercial Willie Miller (IA) granting exemptions to these Driver’s License Information System, for John Racine (NC) individuals would achieve a level of commercial driver’s license (CDL) Mark Slieter (KS) safety equivalent to, or greater than, the holders, and inspections recorded in the Keith Soch (TX) level that would be achieved by Motor Carrier Management Information In accordance with 49 U.S.C. complying with § 391.41(b)(11). System. For non-CDL holders, the 31315(b), each exemption will be valid The physical qualification standard Agency reviewed the driving records for 2 years from the effective date unless for drivers regarding hearing found in from the State Driver’s Licensing revoked earlier by FMCSA. The § 391.41(b)(11) states that a person is Agency. Each applicant’s record exemption will be revoked if the physically qualified to drive a CMV if demonstrated a safe driving history. following occurs: (1) The person fails to that person first perceives a forced Based on an individual assessment of comply with the terms and conditions each applicant that focused on whether whispered voice in the better ear at not of the exemption; (2) the exemption has an equal or greater level of safety is less than 5 feet with or without the use resulted in a lower level of safety than likely to be achieved by permitting each of a hearing aid or, if tested by use of was maintained prior to being granted; of these drivers to drive in interstate an audiometric device, does not have an or (3) continuation of the exemption commerce as opposed to restricting him average hearing loss in the better ear would not be consistent with the goals or her to driving in intrastate commerce, greater than 40 decibels at 500 Hz, 1,000 and objectives of 49 U.S.C. 31136(e) and the Agency believes the drivers granted Hz, and 2,000 Hz with or without a 31315(b). hearing aid when the audiometric this exemption have demonstrated that device is calibrated to American they do not pose a risk to public safety. Larry W. Minor, National Standard (formerly ASA Consequently, FMCSA finds that in Associate Administrator for Policy. Standard) Z24.5—1951. each case exempting these applicants [FR Doc. 2020–20962 Filed 9–22–20; 8:45 am] from the hearing standard in This standard was adopted in 1970 BILLING CODE 4910–EX–P and was revised in 1971 to allow drivers § 391.41(b)(11) is likely to achieve a to be qualified under this standard level of safety equal to that existing while wearing a hearing aid, 35 FR without the exemption. DEPARTMENT OF TRANSPORTATION 6458, 6463 (April 22, 1970) and 36 FR V. Conditions and Requirements 12857 (July 3, 1971). Federal Motor Carrier Safety The terms and conditions of the Administration III. Discussion of Comments exemption are provided to the [Docket No. FMCSA–2020–0049] FMCSA received no comments in this applicants in the exemption document and includes the following: (1) Each proceeding. Qualification of Drivers; Exemption driver must report any crashes or Applications; Epilepsy and Seizure IV. Basis for Exemption Determination accidents as defined in § 390.5; (2) each Disorders Under 49 U.S.C. 31136(e) and driver must report all citations and 31315(b), FMCSA may grant an convictions for disqualifying offenses AGENCY: Federal Motor Carrier Safety exemption from the FMCSRs for no under 49 CFR 383 and 49 CFR 391 to Administration (FMCSA), DOT. longer than a 5-year period if it finds FMCSA; and (3) each driver is ACTION: Notice of final disposition. such exemption would likely achieve a prohibited from operating a motorcoach level of safety that is equivalent to, or or bus with passengers in interstate SUMMARY: FMCSA announces its greater than, the level that would be commerce. The driver must also have a decision to exempt five individuals achieved absent such exemption. The copy of the exemption when driving, for from the requirement in the Federal statute also allows the Agency to renew presentation to a duly authorized Motor Carrier Safety Regulations exemptions at the end of the 5-year Federal, State, or local enforcement (FMCSRs) that interstate commercial

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motor vehicle (CMV) drivers have ‘‘no FR 48063). The public comment period medical opinion related to the ability of established medical history or clinical ended on September 8, 2020, and no the driver to safely operate a CMV with diagnosis of epilepsy or any other comments were received. a history of seizure and each applicant’s condition which is likely to cause loss FMCSA has evaluated the eligibility driving record found in the Commercial of consciousness or any loss of ability to of these applicants and determined that Driver’s License Information System for control a CMV.’’ The exemptions enable granting exemptions to these commercial driver’s license (CDL) these individuals who have had one or individuals would achieve a level of holders, and interstate and intrastate more seizures and are taking anti- safety equivalent to, or greater than, the inspections recorded in the Motor seizure medication to operate CMVs in level that would be achieved by Carrier Management Information interstate commerce. complying with § 391.41(b)(8). System. For non-CDL holders, the DATES: The exemptions were applicable The physical qualification standard Agency reviewed the driving records on September 8, 2020. The exemptions for drivers regarding epilepsy found in from the State Driver’s Licensing expire on September 8, 2022. § 391.41(b)(8) states that a person is Agency (SDLA). A summary of each FOR FURTHER INFORMATION CONTACT: Ms. physically qualified to drive a CMV if applicant’s seizure history was Christine A. Hydock, Chief, Medical that person has no established medical discussed in the August 7, 2020, Programs Division, (202) 366–4001, history or clinical diagnosis of epilepsy Federal Register notice (85 FR 48063) [email protected], FMCSA, or any other condition which is likely and will not be repeated in this notice. to cause the loss of consciousness or any Department of Transportation, 1200 These five applicants have been New Jersey Avenue SE, Room W64–224, loss of ability to control a CMV. In addition to the regulations, FMCSA seizure-free over a range of nine to 35 Washington, DC 20590–0001. Office has published advisory criteria 1 to years while taking anti-seizure hours are from 8:30 a.m. to 5 p.m., ET, assist medical examiners (MEs) in medication and maintained a stable Monday through Friday, except Federal determining whether drivers with medication treatment regimen for the holidays. If you have questions certain medical conditions are qualified last 2 years. In each case, the applicant’s regarding viewing or submitting to operate a CMV in interstate treating physician verified his or her material to the docket, contact Docket commerce. seizure history and supports the ability Operations, (202) 366–9826. to drive commercially. SUPPLEMENTARY INFORMATION: III. Discussion of Comments The Agency acknowledges the I. Public Participation FMCSA received no comments in this potential consequences of a driver proceeding. experiencing a seizure while operating a A. Viewing Documents and Comments IV. Basis for Exemption Determination CMV. However, the Agency believes the To view comments, as well as any drivers granted this exemption have documents mentioned in this notice as Under 49 U.S.C. 31136(e) and demonstrated that they are unlikely to being available in the docket, go to 31315(b), FMCSA may grant an have a seizure and their medical http://www.regulations.gov/ exemption from the FMCSRs for no condition does not pose a risk to public docket?D=FMCSA-2020-0049 and longer than a 5-year period if it finds safety. choose the document to review. If you such exemption would likely achieve a level of safety that is equivalent to, or Consequently, FMCSA finds that in do not have access to the internet, you each case exempting these applicants may view the docket online by visiting greater than, the level that would be achieved absent such exemption. The from the epilepsy and seizure disorder Docket Operations in Room W12–140 prohibition in § 391.41(b)(8) is likely to on the ground floor of the DOT West statute also allows the Agency to renew exemptions at the end of the 5-year achieve a level of safety equal to that Building, 1200 New Jersey Avenue SE, existing without the exemption. Washington, DC 20590, between 9 a.m. period. FMCSA grants medical and 5 p.m., ET, Monday through Friday, exemptions from the FMCSRs for a 2- V. Conditions and Requirements except Federal holidays. To be sure year period to align with the maximum someone is there to help you, please call duration of a driver’s medical The terms and conditions of the (202) 366–9317 or (202) 366–9826 certification. exemption are provided to the before visiting Docket Operations. The Agency’s decision regarding these applicants in the exemption document exemption applications is based on the and includes the following: (1) Each B. Privacy Act 2007 recommendations of the Agency’s driver must remain seizure-free and In accordance with 5 U.S.C. 553(c), Medical Expert Panel (MEP). The maintain a stable treatment during the DOT solicits comments from the public Agency conducted an individualized 2-year exemption period; (2) each driver to better inform its rulemaking process. assessment of each applicant’s medical must submit annual reports from their DOT posts these comments, without information, including the root cause of treating physicians attesting to the edit, including any personal information the respective seizure(s) and medical stability of treatment and that the driver the commenter provides, to information about the applicant’s has remained seizure-free; (3) each www.regulations.gov, as described in seizure history, the length of time that driver must undergo an annual medical the system of records notice (DOT/ALL– has elapsed since the individual’s last examination by a certified ME, as 14 FDMS), which can be reviewed at seizure, the stability of each individual’s defined by § 390.5; and (4) each driver www.transportation.gov/privacy. treatment regimen and the duration of must provide a copy of the annual time on or off of anti-seizure medical certification to the employer for II. Background medication. In addition, the Agency retention in the driver’s qualification On August 7, 2020, FMCSA published reviewed the treating clinician’s file, or keep a copy of his/her driver’s a notice announcing receipt of qualification file if he/she is self- applications from five individuals 1 These criteria may be found in APPENDIX A TO employed. The driver must also have a requesting an exemption from the PART 391—MEDICAL ADVISORY CRITERIA, copy of the exemption when driving, for section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, epilepsy and seizure disorders and 5, which is available on the internet at https:// presentation to a duly authorized prohibition in 49 CFR 391.41(b)(8) and www.gpo.gov/fdsys/pkg/CFR-2015-title49-vol5/pdf/ Federal, State, or local enforcement requested comments from the public (85 CFR-2015-title49-vol5-part391-appA.pdf. official.

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VI. Preemption automatically equate to success as a questions on viewing or submitting During the period the exemption is in commercial motor vehicle (CMV) driver material to the docket, contact Docket effect, no State shall enforce any law or trainer. UPS makes this reconsideration Services, telephone (202) 366–9826. request to ensure that it can continue to regulation that conflicts with this SUPPLEMENTARY INFORMATION: exemption with respect to a person exceed the current regulatory operating under the exemption. requirements and provide proper I. Public Participation and Request for training of its drivers and improve Comments VII. Conclusion highway and public safety. FMCSA Based upon its evaluation of the five requests public comment on the UPS FMCSA encourages you to participate exemption applications, FMCSA application for reconsideration. by submitting comments and related exempts the following drivers from the DATES: October 23, 2020. materials. epilepsy and seizure disorder ADDRESSES: You may submit comments Submitting Comments prohibition, § 391.41(b)(8), subject to the bearing the Federal Docket Management requirements cited above: System (FDMS) Docket ID FMCSA– If you submit a comment, please Diego Dasilva (MA) 2019–0139 using any of the following include the docket number for this Brian Duncan (IL) methods: notice (FMCSA–2019–0139), indicate Clint Honea (AL) • Federal eRulemaking Portal: the specific section of this document to Daryl James (NY) www.regulations.gov. Follow the online which the comment applies, and Michael Shorty (NM) instructions for submitting comments. provide a reason for suggestions or In accordance with 49 U.S.C. • Mail: Send comments to Docket recommendations. You may submit 31315(b), each exemption will be valid Operations, U.S. Department of your comments and material online or for 2 years from the effective date unless Transportation, 1200 New Jersey by fax, mail, or hand delivery, but revoked earlier by FMCSA. The Avenue SE, West Building, Ground please use only one of these means. exemption will be revoked if the Floor, Room W12–140, Washington, DC FMCSA recommends that you include following occurs: (1) The person fails to 20590–0001. your name and a mailing address, an comply with the terms and conditions • Hand Delivery or Courier: Deliver email address, or a phone number in the of the exemption; (2) the exemption has comments to Docket Operations, West body of your document so the Agency resulted in a lower level of safety than Building, Ground Floor, Room W12– can contact you if it has questions was maintained prior to being granted; 140, 1200 New Jersey Avenue SE, regarding your submission. or (3) continuation of the exemption between 9 a.m. and 5 p.m. E.T., Monday To submit your comment online, go to would not be consistent with the goals through Friday, except Federal holidays. www.regulations.gov and put the docket and objectives of 49 U.S.C. 31136(e) and • Fax: 1–202–493–2251. number, ‘‘FMCSA–2019–0139’’ in the 31315(b). Each submission must include the ‘‘Keyword’’ box, and click ‘‘Search.’’ Agency name and the docket number for Larry W. Minor, this notice. Note that DOT posts all When the new screen appears, click on Associate Administrator for Policy. comments received without change to ‘‘Comment Now!’’ button and type your [FR Doc. 2020–20963 Filed 9–22–20; 8:45 am] www.regulations.gov, including any comment into the text box in the BILLING CODE 4910–EX–P personal information included in a following screen. Choose whether you comment. Please see the Privacy Act are submitting your comment as an heading below. individual or on behalf of a third party DEPARTMENT OF TRANSPORTATION Docket: For access to the docket to and then submit. If you submit your read background documents or comments by mail or hand delivery, Federal Motor Carrier Safety comments, go to www.regulations.gov at submit them in an unbound format, no Administration 1 any time or visit Room W12–140 on the larger than 8 ⁄2 by 11 inches, suitable for [Docket No. FMCSA–2019–0139] ground level of the West Building, 1200 copying and electronic filing. If you New Jersey Avenue SE, Washington, submit comments by mail and would Entry-Level Driver Training: United DC, between 9 a.m. and 5 p.m., ET, like to know that they reached the Parcel Service, Inc. (UPS); Monday through Friday, except Federal facility, please enclose a stamped, self- Reconsideration of Denial of holidays. To be sure someone is there to addressed postcard or envelope. Application for Exemption help you, please call (202) 366–9317 or Viewing Comments and Documents AGENCY: Federal Motor Carrier Safety (202) 366–9826 before visiting Docket Administration (FMCSA), DOT. Operations. To view comments, as well as Privacy Act: In accordance with 5 ACTION: Application for exemption; documents mentioned in this preamble U.S.C. 553(c), DOT solicits comments request for comments. as being available in the docket, go to from the public to better inform its www.regulations.gov and insert the SUMMARY: FMCSA announces that rulemaking process. DOT posts these docket number, ‘‘FMCSA–2019–0139’’ United Parcel Service, Inc. (UPS) seeks comments, without edit, including any in the ‘‘Keyword’’ box and click reconsideration of the Agency’s denial personal information the commenter ‘‘Search.’’ Next, click ‘‘Open Docket of its application for exemption from provides, to www.regulations.gov, as Folder’’ button and choose the provisions in the Entry-Level Driver described in the system of records document listed to review. If you do not Training (ELDT) final rule requiring two notice (DOT/ALL–14 FDMS), which can have access to the internet, you may years of experience for training be reviewed at www.dot.gov/privacy. view the docket online by visiting the instructors. UPS believes that its current FOR FURTHER INFORMATION CONTACT: Mr. Docket Management Facility in Room process of preparing driver trainers Richard Clemente, FMCSA Driver and W12–140 on the ground floor of the exceeds any skill set gained merely by Carrier Operations Division; Office of DOT West Building, 1200 New Jersey operating a tractor-trailer for two years. Carrier, Driver and Vehicle Safety Avenue SE, Washington, DC 20590, UPS also believes that a two-year Standards; Telephone: (202) 366–4225. between 9 a.m. and 5 p.m., e.t., Monday experience requirement doesn’t Email: [email protected]. If you have through Friday, except Federal holidays.

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II. Legal Basis (CMV), as set forth in the definitions of will be filed in the public docket and FMCSA has authority under 49 U.S.C. ‘‘behind-the-wheel (BTW) instructor’’ will be considered to the extent 31136(e) and 31315 to grant exemptions and ‘‘theory instructor;’’ and (2) the practicable. In addition to late from certain parts of the Federal Motor requirement in 49 CFR 380.703(a)(7) to comments, FMCSA will also continue to Carrier Safety Regulations. FMCSA must register each training location in order file, in the public docket, relevant publish a notice of each exemption to obtain a unique Training Provider information that becomes available after request in the Federal Register (49 CFR Registry (TPR) number applicable to the comment closing date. Interested 381.315(a)). The Agency must provide that location. persons should continue to examine the The Agency received 112 comments, the public an opportunity to inspect the public docket for new material. including 58 supporting the requested information relevant to the application, exemptions and 51 opposing them. Larry W. Minor, including any safety analyses that have Three other commenters had no Associate Administrator for Policy. been conducted. The Agency must also position either for or against the [FR Doc. 2020–21025 Filed 9–22–20; 8:45 am] provide an opportunity for public application and provided no substantive BILLING CODE 4910–EX–P comment on the request. comments. The Agency reviews the safety On December 9, 2019, the Agency analyses and the public comments, and denied the UPS exemption request DEPARTMENT OF TRANSPORTATION determines whether granting the because the application did not provide exemption would likely achieve a level an analysis of the safety impacts the Federal Motor Carrier Safety of safety equivalent to, or greater than, requested exemptions may cause, as Administration the level that would be achieved by the required by 49 CFR 381.310(c)(4), and [Docket No. FMCSA–2020–0027] current regulation (49 CFR 381.305). did not explain how the exemptions The decision of the Agency must be would likely achieve a level of safety Qualification of Drivers; Exemption published in the Federal Register (49 equivalent to, or greater than, the level Applications; Hearing CFR 381.315(b)) with the reason for the that would be achieved by complying grant or denial, and, if granted, the with the current regulations, as required AGENCY: Federal Motor Carrier Safety specific person or class of persons by 49 CFR 381.310(c)(5). Administration (FMCSA), DOT. receiving the exemption, and the ACTION: Notice of applications for regulatory provision or provisions from IV. Request for Reconsideration of exemption; request for comments. which exemption is granted. The notice Agency Decision must also specify the effective period of On July 1, 2020, UPS requested that SUMMARY: FMCSA announces receipt of the exemption (up to 5 years), and FMCSA reconsider its denial of the applications from 21 individuals for an explain the terms and conditions of the exemption from 49 CFR 380.713. UPS exemption from the hearing requirement exemption. The exemption may be believes that its current process of in the Federal Motor Carrier Safety renewed (49 CFR 381.300(b)). preparing driver trainers exceeds any Regulations (FMCSRs) to operate a commercial motor vehicle (CMV) in III. Background skill set gained merely by operating a tractor-trailer for two years. The interstate commerce. If granted, the The Entry-Level Driver Training company also believes that a two-year exemptions would enable these hard of (ELDT) final rule was adopted pursuant experience requirement doesn’t hearing and deaf individuals to operate to 49 U.S.C. 31305(c). The rule is based automatically equate to success as a CMVs in interstate commerce. in part on consensus recommendations CMV driver trainer. UPS has provided DATES: Comments must be received on from the Agency’s ELDT Advisory the Agency with updated information or before October 23, 2020. Committee, a negotiated rulemaking since the original denial illustrating that ADDRESSES: You may submit comments committee. The rule enhances the safety many of their locations have identified by the Federal Docket of CMV operations on our Nation’s experienced turnover issues with driver Management System (FDMS) Docket No. highways by establishing a minimum trainers. UPS stated that it has had to FMCSA–2020–0027 using any of the standard for ELDT and increasing the hire 100 candidates to attempt to net the following methods: number of drivers who receive ELDT. 50 trainer positions necessary across the • Federal eRulemaking Portal: Go to The rule revises 49 CFR part 380, U.S. Of the 100 hired, UPS has been http://www.regulations.gov/ Special Training Requirements, to able to retain only 38 trainers for the docket?D=FMCSA-2020-0027. Follow include, among other things, driver reasons explained in the request for the online instructions for submitting training instructor qualifications. Under reconsideration. A copy of the UPS comments. 49 CFR 380.713 a driver training application is in the docket listed at the • Mail: Docket Operations; U.S. instructor must have two years’ beginning of the this notice. Department of Transportation, 1200 experience and have held a commercial New Jersey Avenue SE, West Building driver’s license (CDL) for two years, as V. Request for Comments Ground Floor, Room W12–140, set forth in the definitions of behind- In accordance with 49 U.S.C. Washington, DC 20590–0001. the-wheel (BTW) instructor and theory 31315(b)(6), FMCSA requests public • Hand Delivery: West Building instructor in 49 CFR 380.605. comment from all interested persons on Ground Floor, Room W12–140, 1200 On June 19, 2019, FMCSA published UPS’ request for reconsideration of its New Jersey Avenue SE, Washington, a UPS application for exemption from application for an exemption. All DC, between 9 a.m. and 5 p.m., ET, two provisions of the ELDT final rule comments received before the close of Monday through Friday, except Federal and requested public comment [84 FR business on the comment closing date Holidays. 28623]. UPS requested an exemption indicated at the beginning of this notice • Fax: (202) 493–2251. from (1) the requirement in 49 CFR will be considered and will be available To avoid duplication, please use only 380.713 that a driver training instructor for examination in the docket at the one of these four methods. See the hold a Commercial Driver’s License location listed under the ADDRESSES ‘‘Public Participation’’ portion of the (CDL) and have two years’ experience section of this notice. Comments SUPPLEMENTARY INFORMATION section for driving a commercial motor vehicle received after the comment closing date instructions on submitting comments.

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FOR FURTHER INFORMATION CONTACT: Ms. Washington, DC 20590, between 9 a.m. National Association of the Deaf,’’ (78 Christine A. Hydock, Chief, Medical and 5 p.m., ET, Monday through Friday, FR 7479), its decision to grant requests Programs Division, (202) 366–4001, except Federal holidays. To be sure from 40 individuals for exemptions [email protected], FMCSA, someone is there to help you, please call from the Agency’s physical qualification Department of Transportation, 1200 (202) 366–9317 or (202) 366–9826 standard concerning hearing for New Jersey Avenue SE, Room W64–224, before visiting Docket Operations. interstate CMV drivers. Since that time Washington, DC 20590–0001. Office C. Privacy Act the Agency has published additional hours are 8:30 a.m. to 5 p.m., ET, notices granting requests from hard of Monday through Friday, except Federal In accordance with 5 U.S.C. 553(c), hearing and deaf individuals for holidays. If you have questions DOT solicits comments from the public exemptions from the Agency’s physical regarding viewing or submitting to better inform its rulemaking process. qualification standard concerning material to the docket, contact Docket DOT posts these comments, without hearing for interstate CMV drivers. Operations, (202) 366–9826. edit, including any personal information the commenter provides, to III. Qualifications of Applicants SUPPLEMENTARY INFORMATION: www.regulations.gov, as described in Joel Alfaro I. Public Participation the system of records notice (DOT/ALL– Mr. Alfaro, 53, holds a class E license A. Submitting Comments 14 FDMS), which can be reviewed at www.transportation.gov/privacy. in Florida. If you submit a comment, please Adrian Almanza include the docket number for this II. Background notice (Docket No. FMCSA–2020–0027), Under 49 U.S.C. 31136(e) and Mr. Almanza, 26, holds a class D indicate the specific section of this 31315(b), FMCSA may grant an license in Illinois. document to which each comment exemption from the FMCSRs for no Jimmy Benavides applies, and provide a reason for each longer than a 5-year period if it finds suggestion or recommendation. You such exemption would likely achieve a Mr. Benavides, 65, holds a class B may submit your comments and level of safety that is equivalent to, or CDL in Texas. material online or by fax, mail, or hand greater than, the level that would be James Bryan delivery, but please use only one of achieved absent such exemption. The these means. FMCSA recommends that statute also allows the Agency to renew Mr. Bryan, 37, holds a class D license you include your name and a mailing exemptions at the end of the 5-year in Arkansas. address, an email address, or a phone period. FMCSA grants medical Richard Clark number in the body of your document exemptions from the FMCSRs for a 2- Mr. Clark, 27, holds a class D license so that FMCSA can contact you if there year period to align with the maximum in Idaho. are questions regarding your duration of a driver’s medical submission. certification. Jules Garcia To submit your comment online, go to The 21 individuals listed in this Mr. Garcia, 47, holds a class D license http://www.regulations.gov/ notice have requested an exemption in Illinois. docket?D=FMCSA-2020-0027. Click on from the hearing requirement in 49 CFR the ‘‘Comment Now!’’ button and type 391.41(b)(11). Accordingly, the Agency Calvin Gousby your comment into the text box on the will evaluate the qualifications of each Mr. Gousby, 54, holds a class C following screen. Choose whether you applicant to determine whether granting license in Nevada. are submitting your comment as an the exemption will achieve the required individual or on behalf of a third party level of safety mandated by statute. Nicholas Gramarossa and then submit. The physical qualification standard Mr. Gramarossa, 30, holds an operator If you submit your comments by mail for drivers regarding hearing found in license in Indiana. or hand delivery, submit them in an § 391.41(b)(11) states that a person is unbound format, no larger than 81⁄2 by physically qualified to drive a CMV if William Heath 11 inches, suitable for copying and that person first perceives a forced Mr. Heath, 45, holds a class C license electronic filing. If you submit whispered voice in the better ear at not in North Carolina. comments by mail and would like to less than 5 feet with or without the use know that they reached the facility, of a hearing aid or, if tested by use of Ryan King please enclose a stamped, self-addressed an audiometric device, does not have an Mr. King, 24, holds a class C license postcard or envelope. average hearing loss in the better ear in North Carolina. FMCSA will consider all comments greater than 40 decibels at 500 Hz, 1,000 and material received during the Hz, and 2,000 Hz with or without a Alexander Lowe comment period. hearing aid when the audiometric Mr. Lowe, 31, holds a class A license device is calibrated to American B. Viewing Documents and Comments in Washington. National Standard (formerly ASA To view comments, as well as any Standard) Z24.5—1951. Kenneth Morrison documents mentioned in this notice as This standard was adopted in 1970 Mr. Morrison, 64, holds a class A being available in the docket, go to and was revised in 1971 to allow drivers license in New York. http://www.regulations.gov/ to be qualified under this standard docket?D=FMCSA-2020-0027 and while wearing a hearing aid, 35 FR Darren Norton choose the document to review. If you 6458, 6463 (April 22, 1970) and 36 FR Mr. Norton, 36, holds a class F license do not have access to the internet, you 12857 (July 3, 1971). in Missouri. may view the docket online by visiting On February 1, 2013, FMCSA Docket Operations in Room W12–140 announced in a Notice of Final Raphael Pittenger on the ground floor of the DOT West Disposition titled, ‘‘Qualification of Mr. Pittenger, 54, holds a class A Building, 1200 New Jersey Avenue SE, Drivers; Application for Exemptions; license in Washington.

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Marty Posey Anthony Vasquez DEPARTMENT OF THE TREASURY Mr. Posey, 47, holds an operator Mr. Vasquez, 27, holds a class C license in Texas. Community Development Financial license in Indiana. Institutions Fund Daniel Zeolla David Sanders Mr. Zeolla, 33, holds a class CM Funding Opportunity Title: Notice of Mr. Sanders, 42, holds a class D license in Pennsylvania. Allocation Availability (NOAA) Inviting license in Illinois. Applications for the Calendar Year IV. Request for Comments (CY) 2020 Allocation Round of the New Muhammad Shafi In accordance with 49 U.S.C. 31136(e) Markets Tax Credit (NMTC) Program and 31315(b), FMCSA requests public Mr. Shafi, 36, holds a class D license comment from all interested persons on Announcement Type: Announcement in Illinois. the exemption petitions described in of NMTC Allocation availability. Nolen Soler this notice. We will consider all Dates: comments received before the close of Mr. Soler, 43, holds a class F license business on the closing date indicated in Nebraska. under the DATES section of the notice. Donald Taylor Larry W. Minor, Associate Administrator for Policy. Mr. Taylor, 58, holds a class C license [FR Doc. 2020–20961 Filed 9–22–20; 8:45 am] in North Carolina, BILLING CODE 4910–EX–P

TABLE 1—CY 2020 ALLOCATION ROUND NMTC PROGRAM CRITICAL DEADLINES FOR APPLICANTS

Time Description Deadline/date (eastern time—ET) Submission method

Community Development Entity (CDE) Cer- October 6, 2020 ...... 11:59 p.m. ET ...... Electronically via the Awards Management tification Application. Information System (AMIS). Request to modify CDE certification service October 6, 2020 ...... 11:59 p.m. ET ...... Electronically via AMIS. area. Subsidiary CDE Certification Application for October 6, 2020 ...... 11:59 p.m. ET ...... Electronically via AMIS. meeting Qualified Equity Investment (QEI) issuance thresholds. CY 2020 Application Registration ...... October 9, 2020 ...... 5:00 p.m. ET ...... Electronically via AMIS. Last date to contact CDFI Fund staff ...... November 12, 2020 ...... 5:00 p.m. ET ...... Electronically via AMIS. CY 2020 Allocation Application (including November 16, 2020 ...... 5:00 p.m. ET ...... Electronically via AMIS. required Attachments). Amendment request to add Subsidiary December 4, 2020 ...... 11:59 p.m. ET ...... Electronically via AMIS. CDEs to Allocation Agreements for meet- ing QEI issuance thresholds. QEI Issuance and making Qualified Low In- January 15, 2021 ...... 11:59 p.m. ET ...... Not Applicable. come Community Investments (QLICIs) by:. Reporting QEIs and QLICIs closed as of January 29, 2021 ...... 11:59 p.m. ET ...... Electronically via AMIS. January 15, 2021.

Executive Summary: This NOAA is Round. In this NOAA, the CDFI Fund 2. NMTC Application Registration issued in connection with the CY 2020 specifically addresses how a CDE may (Application Registration): CY 2020 allocation round (Allocation Round) of apply to receive an allocation of Allocation Round Applicants are first the New Markets Tax Credit Program NMTCs, the competitive procedure required to complete and save the (NMTC Program), as authorized by Title through which NMTC Allocations will Application Registration section of the I, subtitle C, section 121 of the be made, and the actions that will be NMTC Allocation Application in AMIS Community Renewal Tax Relief Act of taken to ensure that proper allocations by the Application Registration deadline 2000 (Pub. L. 106–554) as amended. (26 are made to appropriate entities. in order to be able to submit the U.S.C. 45D). Through the NMTC remaining sections of CY 2020 I. Allocation Availability Description Program, the Community Development Allocation Application by the Financial Institutions Fund (CDFI Fund) A. Programmatic changes from the CY Application deadline. Applicants that provides authority to certified CDEs to 2019 allocation round: do not complete and save the offer an incentive to investors in the 1. Prior QEI Issuance Requirements: Application Registration by the form of tax credits over seven years, Prior-year NMTC Allocatees will be Application Registration deadline, will which is expected to stimulate the subject to minimum thresholds for QEI not be able to subsequently submit a CY provision of private investment capital issuance and closing of QLICIs with 2020 Allocation Application in AMIS. that, in turn, will facilitate economic respect to their prior-year NMTC and community development in Low- Allocations. These thresholds and II. Allocation Information Income Communities. Through this deadlines have been revised in A. Allocation amounts: Pursuant to NOAA, the CDFI Fund announces the comparison to the CY 2019 NOAA. See the Taxpayer Certainty and Disaster Tax availability of $5 billion of NMTC Section III.3 of this NOAA for additional Relief Act of 2019, the CDFI Fund Allocation authority in this Allocation details. expects that it may allocate to CDEs the

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authority to issue to their investors the requirements: Including, but not limited business of the QALICB, and such aggregate amount of $5 billion in equity to, those protecting free speech; reasonable expenditures were incurred as to which NMTCs may be claimed, as religious liberty; public welfare; the no more than 24 months prior to the permitted under IRC § 45D(f)(1)(D). environment; and prohibiting QLICI closing date; or (ii) no more than Pursuant to this NOAA, the CDFI Fund discrimination. five percent of the total QLICI proceeds anticipates that it may issue up to $100 III. Eligibility from the QEI are used to repay or million in tax credit investment refinance documented reasonable authority per Allocatee. The CDFI Fund, A. Eligible Applicants: IRC § 45D expenditures that are directly in its sole discretion, reserves the right specifies certain eligibility requirements attributable to the qualified business of to allocate amounts in excess of or less that each Applicant must meet to be the QALICB. Refinance includes than the anticipated maximum eligible to apply for an allocation of transferring cash or property, directly or allocation amount should the CDFI NMTCs. The following sets forth indirectly, to the debt or equity provider Fund deem it appropriate. The CDFI additional detail and certain additional or an Affiliate of the debt or equity Fund reserves the right to allocate dates that relate to the submission of provider. NMTC authority to any, all, or none of applications under this NOAA for the available NMTC Allocation authority. 3. Do Not Pay: The CDFI Fund will the entities that submit applications in contact the Do Not Pay Business Center response to this NOAA, and in any 1. CDE certification: For purposes of to ensure that an Applicant, its amounts it deems appropriate. this NOAA, the CDFI Fund will not Controlling Entity, and any Affiliate(s) B. Type of award: NMTC Program consider an application for an allocation awards are made in the form of of NMTCs unless: (a) The Applicant is are not prohibited from receiving federal allocations of tax credit investment certified as a CDE at the time the CDFI funds. An Applicant, its Controlling authority. Fund receives its NMTC Program Entity, and any Affiliate(s) reported by C. Program guidance and regulations: Allocation Application; or (b) the the Do Not Pay Business Center as This NOAA describes application and Applicant submits an application for having a pending or delinquent debt to NMTC Allocation requirements for this certification as a CDE through the AMIS the Federal government will be required Allocation Round of the NMTC Program by the deadline in Table 1. Applicants to demonstrate that it has resolved such and should be read in conjunction with: for CDE certification may obtain pending or delinquent debt. Applicants (i) The final NMTC Program Income Tax information regarding CDE certification that fail to demonstrate resolution of Regulations issued by the Internal and the CDE Certification Application such pending or delinquent debt to the Revenue Service (IRS) (26 CFR 1.45D– process in AMIS on the CDFI Fund’s Federal government will be found 1, published on December 28, 2004), as website at https://www.cdfifund.gov/ ineligible to receive an allocation. amended and related guidance, notices programs-training/certification/cde/ 4. Prior award recipients or and other publications; and (ii) the Pages/default.aspx. Allocatees: Applicants must be aware application and related materials for The CDFI Fund will not provide that success in a prior application or this Allocation Round. All such NMTC Allocation authority to allocation round of any of the CDFI materials may be found on the CDFI Applicants that are not certified as CDEs Fund’s programs is not indicative of Fund’s website at https:// or to entities that are certified as success under this NOAA. For purposes www.cdfifund.gov. The CDFI Fund Subsidiary CDEs. of this NOAA, and eligibility requires Applicants to review these If an Applicant that has already been determinations, the CDFI Fund will documents. Capitalized terms used, but certified as a CDE wishes to change its consider an Affiliate to be any entity not defined, in this NOAA have the designated CDE Service Area for this that meets the definition of Affiliate as respective meanings assigned to them in Allocation Round, then it must submit defined in the NMTC Allocation the NMTC Program Allocation its request for such change to the CDFI Application materials, or any entity Application, Internal Revenue Code Fund, and the request must be received otherwise identified as an Affiliate by (IRC) § 45D or the IRS NMTC by the CDFI Fund by the deadline listed the Applicant in its NMTC Allocation regulations. In the event of any in Table 1. A request to change a CDE’s Application materials. inconsistency between this NOAA, the Service Area will need to include the Prior award recipients of any CDFI Allocation Application, and guidance revised service area designation and Fund program are eligible to apply issued by the CDFI Fund thereto, IRC updated accountability information that under this NOAA, except as follows: § 45D or the IRS NMTC Regulations, the demonstrates that the CDE has the provisions of IRC § 45D and the IRS required representation from Low- (a) Prior Allocatees and Qualified NMTC Regulations shall govern. Income Communities in the revised CDE Equity Investment (QEI) issuance and D. Allocation Agreement: Each Service Area. Qualified Low Income Community Allocatee must sign an Allocation 2. Repayment or Refinancing of QEI Investment (QLICI) requirements: CDEs Agreement, which must be with QLICI Proceeds: An applicant must that are Allocatees under the CY 2014 countersigned by the CDFI Fund, before commit that it will not permit the use to the CY 2019 rounds must finalize at the NMTC Allocation is effective. The of the proceeds of QEIs to make QLICIs least the percentage of QEIs noted in Allocation Agreement contains the in Qualified Active Low-Income Table 2 for each NMTC Allocation terms and conditions of the NMTC Community Businesses (QALICBs) round and use at least the percentage of Allocation. For further information, see where QLICI proceeds are used, in those QEIs designated in Schedule 1, Section VI of this NOAA. whole or in part, to repay or refinance section 3.2(j) of their Allocation E. Statutory and national policy a debt or equity provider whose capital Agreements to make QLICIs by January requirements: The CDFI Fund will was used to fund the QEI, or are used 15, 2021. CDEs that are Allocatees under manage and administer the NMTC to repay or refinance any Affiliate of the CY 2014 to the CY 2019 allocation Program in a manner so as to ensure that such a debt or equity provider, except rounds and CDEs that are Allocatees NMTC Allocations associated programs where: (i) The QLICI proceeds are used designated as Rural CDEs in their CY are implemented in full accordance to repay or refinance documented 2018 and/or CY 2019 Allocation with the U.S. Constitution, Federal Law, reasonable expenditures that are Agreements must meet the following statutory, and public policy directly attributable to the qualified thresholds.

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TABLE 2—QEI ISSUANCE AND QLICI REQUIREMENTS

Rural CDE Prior round Finalized QEI finalized QEI allocation requirement requirement QLICIs (%) (%)

CY 2014 ...... 100 100 As stated in Section 3.2(j) of the applicable Allocation Agreement. CY 2015–16 ...... 90 90 CY 2017 ...... 80 80 CY2018 ...... 50 30 CY2019 ...... 25 0

In addition to the requirements noted Allocatee under any CDFI Fund Program if, as of the application above, a CDE is not eligible to receive program and if: (i) It has demonstrated deadline of this NOAA: (i) The CDFI a NMTC Allocation pursuant to this noncompliance with a previous Fund has made a final determination NOAA if an Affiliate of the Applicant is assistance or award agreement or default that such Affiliate is noncompliant with a prior Allocatee and has not met the under a previous Allocation Agreement; a previously executed assistance or minimum QEIs issuance and QLICI and (ii) the entity has been given a award agreement, or in default of a thresholds as set forth in Table 2 for timeframe to cure the noncompliance or previously executed Allocation Allocatees in the prior allocation rounds default, the CDFI Fund will consider the Agreement; (ii) the CDFI Fund has of the NMTC Program. Applicant’s application under this provided written notification of such For purposes of this section of the NOAA during the time period given for final determination to the Affiliate; and NOAA, the CDFI Fund will only the entity to cure the noncompliance or (iii) the default occurs during the time recognize as ‘‘finalized’’ those QEIs that default, and until such time as the CDFI period beginning 12 months prior to the have been properly reported in AMIS Fund makes a final determination that application deadline and ending with Allocation Tracking System for the entity is in noncompliance or the CY 2020 allocation award Qualified Equity Investments (AQEIs) default. Further, if an Affiliate of the announcement. by the deadline in Table 1. Allocatees Applicant is a prior CDFI Fund award (d) Contacting the CDFI Fund: and their Subsidiary Allocatees, if any, recipient or Allocatee and if such entity: Accordingly, Applicants that are prior are advised to access AMIS to record (i) Has demonstrated noncompliance award recipients and/or Allocatees each QEI that they issue to an investor with a previous assistance or award under any CDFI Fund program are in exchange for cash. Furthermore, the agreement or default under a previous advised to comply with the CDFI Fund will only recognize QLICIs Allocation Agreement; and (ii) the entity requirements specified in assistance, that have been certified in AMIS by the has been given a timeframe to cure the allocation and/or award agreement(s). deadline in Table 1. Instructions on noncompliance or default, then the All outstanding reports and compliance recording a QEI and QLICIs in AMIS is CDFI Fund will consider the questions should be directed to the available at https://www.cdfifund.gov/ Applicant’s application under this Office of Certification, Compliance Pages/amisreporting.aspx. Applicants NOAA during the time period given for Monitoring and Evaluation (CCME) may be required, upon notification from the entity to cure the noncompliance or through a Service Request initiated in the CDFI Fund, to submit default, and until such time as the CDFI AMIS. Requests submitted less than 30 documentation to substantiate the Fund makes a final determination that calendar days prior to the application required QEI issuance and QLICI the entity is in noncompliance or deadline may not receive a response thresholds. default. before the application deadline. Any prior Allocatee that requires any (c) Noncompliance or default status: The CDFI Fund will respond to action by the CDFI Fund (i.e., certifying The CDFI Fund will not consider an Applicants’ reporting, compliance and a subsidiary entity as a CDE; adding a application submitted by an Applicant CDE certification inquiries Monday subsidiary CDE to an Allocation that is a prior CDFI Fund award through Friday, between the hours of Agreement; etc.) in order to meet the recipient or Allocatee under any CDFI 9:00 a.m. and 5:00 p.m. ET, starting the QEI issuance requirements above must Fund program if, as of the application date of publication of this NOAA submit a CDE Certification Application deadline of this NOAA: (i) The CDFI through the ‘‘Last date to contact CDFI for Subsidiary CDEs by the deadline in Fund has made a final determination Fund staff’’ specified in Table 1. Table 1 and Allocation Agreement that such Applicant is noncompliant Inquiries received after the ‘‘Last date to amendment requests by the deadline in with a previously executed assistance or contact the CDFI Fund staff’’ will be Table 1, in order to guarantee that the award agreement, or in default of a responded to after the Allocation CDFI Fund completes all necessary previously executed Allocation Application deadline. approvals prior to January 15, 2021. Agreement; and (ii) the CDFI Fund has 4. Failure to accurately respond to a Applicants for Subsidiary CDE provided written notification of such question in the Assurances and certification may obtain information final determination to the Applicant; Certifications section of the application, regarding CDE certification and the CDE and (iii) the default occurs during the submit the required written explanation, Certification Application process in time period beginning 12 months prior or provide any updates: In its sole AMIS on the CDFI Fund’s website at to the application deadline and ending discretion, the CDFI Fund may deem the https://www.cdfifund.gov/programs- with the CY 2020 allocation award Applicant’s application ineligible, if the training/certification/cde/Pages/ announcement. Further, the CDFI Fund CDFI Fund determines that the default.aspx. will not consider an application Applicant inaccurately responded to a (b) Pending determination of submitted by an Applicant with an question, accurately responded to a noncompliance or default: If an Affiliate that is a prior award recipient question, but failed to submit a required Applicant is a prior award recipient or or Allocatee under any CDFI Fund written explanation, or failed to notify

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the CDFI Fund of any changes to the the Allocation Application. If an Allocation in this Allocation Round (or information submitted between the date Applicant and its Affiliate(s) wish to its Subsidiary Allocatee) at any time of application and the date the Allocatee submit Allocation Applications, they after the submission of an Allocation executes the Allocation Agreement, must do so collectively, in one Application under this NOAA. This with respect to the Assurances and application; an Applicant and its prohibition, however, generally does not Certifications. In making this Affiliate(s) may not submit separate apply to entities that are commonly determination, the CDFI Fund will take Allocation Applications. If Affiliated controlled solely because of common into consideration, among other factors, entities submit multiple applications, ownership by QEI investors. This the materiality of the question, the the CDFI Fund will reject all such requirement will also be a term and substance of any supplemental applications received, except for those condition of the Allocation Agreement responses provided, and whether the state-owned or state-controlled (see Section VI.B of this NOAA and information in the Applicant’s governmental Affiliated entities. In the additional application guidance supplemental responses would have a case of state-owned or state-controlled materials on the CDFI Fund’s website at material adverse effect on the Applicant, governmental entities, the CDFI Fund https://www.cdfifund.gov for more its financial condition or its ability to may accept applications submitted by details). perform under an Allocation different government bodies within the 7. Entities created as a series of funds: Agreement, should the Applicant same state, but only to the extent the An Applicant whose business structure receive an allocation. CDFI Fund determines that the business consists of an entity with a series of 5. Entities that propose to transfer strategies and/or activities described in funds must apply for CDE certification NMTCs to Subsidiary CDEs: Both for- such applications, submitted by for each fund. If such an Applicant profit and non-profit CDEs may apply separate entities, are distinctly represents that it is properly classified for NMTC Allocation authority, but only dissimilar and/or are operated and/or for Federal tax purposes as a single a for-profit CDE is permitted to provide managed by distinctly dissimilar partnership or corporation, it may apply NMTCs to its investors. A non-profit personnel, including staff, board for CDE certification as a single entity. Applicant wishing to apply for a NMTC members and identified consultants. In If an Applicant represents that it is Allocation must demonstrate, prior to such cases, the CDFI Fund reserves the properly classified for Federal tax entering into an Allocation Agreement right to limit award amounts to such purposes as multiple partnerships or with the CDFI Fund, that: (i) It controls entities to ensure that the entities do not corporations, then it must submit a CDE one or more Subsidiary CDEs that are collectively receive more than the $100 Certification Application for the for-profit entities; and (ii) it intends to million cap. If the CDFI Fund Applicant and each fund it would like transfer the full amount of any NMTC determines that the applications to participate in the NMTC Program, Allocation it receives to said Subsidiary submitted by different government and each fund must be separately CDEs. An Applicant wishing to transfer bodies in the same state are not certified as a CDE. Applicants should all or a portion of its NMTC Allocation distinctly dissimilar and/or operated note, however, that receipt of CDE to a Subsidiary CDE is not required to and/or managed by distinctly dissimilar certification as a single entity or as create the Subsidiary prior to submitting personnel, it will reject all such multiple entities is not a determination a NMTC Allocation Application to the applications. that an Applicant and its related funds CDFI Fund. However, the Subsidiary (b) For purposes of this NOAA, the are properly classified as a single entity entities must be certified as CDEs by the CDFI Fund will also evaluate whether or as multiple entities for Federal tax CDFI Fund, and enjoined as parties to each Applicant is operated or managed purposes. Regardless of whether the the Allocation Agreement at closing or as a ‘‘common enterprise’’ with another series of funds is classified as a single by amendment to the Allocation Applicant in this Allocation Round partnership or corporation or as Agreement after closing. using the following indicia, among multiple partnerships or corporations, The CDFI Fund requires a non-profit others: (i) Whether different Applicants an Applicant may not transfer any Applicant to submit a CDE Certification have the same individual(s), including NMTC Allocations it receives to one or Application to the CDFI Fund on behalf the Authorized Representative, staff, more of its funds unless the fund is a of at least one for-profit Subsidiary board members and/or consultants, certified CDE that is a Subsidiary of the within 45 days after the non-profit involved in day-to-day management, Applicant, enjoined to the Allocation Applicant receives notification from the operations and/or investment Agreement as a Subsidiary Allocatee. CDFI Fund of its allocation award, as responsibilities; (ii) whether the 8. Entities that are Bank Enterprise such Subsidiary must be certified as a Applicants have business strategies and/ Award Program (BEA Program) award CDE prior to entering into an Allocation or proposed activities that are so similar recipients: An insured depository Agreement with the CDFI Fund. The or so closely related that, in fact or institution investor (and its Affiliates CDFI Fund reserves the right to rescind effect, they may be viewed as a single and Subsidiaries) may not receive a the award if a non-profit Applicant that entity; and/or (iii) whether the NMTC Allocation in addition to a BEA does not already have a certified for- applications submitted by separate Program award for the same investment profit Subsidiary CDE fails to submit a Applicants contain significant narrative, in a CDE. Likewise, an insured CDE Certification Application for one or textual or other similarities such that depository institution investor (and its more for-profit Subsidiaries within 45 they may, in fact or effect, be viewed as Affiliates and Subsidiaries) may not days of the date it receives notification substantially identical applications. In receive a BEA Program award in from the CDFI Fund of its allocation such cases, the CDFI Fund will reject all addition to a NMTC Allocation for the award. applications received from such entities. same investment in a CDE. 6. Entities that submit applications (c) Furthermore, an Applicant that together with Affiliates; applications receives an NMTC Allocation in this IV. Application and Submission from common enterprises: Allocation Round (or its Subsidiary Information (a) As part of the Allocation Allocatee) may not become an Affiliate A. Address to request application Application review process, the CDFI of or member of a common enterprise package: Applicants must submit Fund will evaluate whether Applicants (as defined above) with another applications electronically under this are Affiliates, as such term is defined in Applicant that receives an NMTC NOAA, through the CDFI Fund’s AMIS.

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Following the publication of this Electronic applications must be assigned the following control number: NOAA, the CDFI Fund will make the submitted solely by using the CDFI 1559–0016. electronic Allocation Application Fund’s website and must be sent in V. Application Review Information available on its website at https:// accordance with the submission www.cdfifund.gov. instructions provided in the CY 2020 A. Review and selection process: All B. Application content requirements: NMTC Application—AMIS Navigation Allocation Applications will be Detailed application content Guide for this Allocation Rounds. AMIS reviewed for eligibility and requirements are found in the will only permit the submission of completeness. To be complete, the application related to this NOAA. applications in which all required application must contain, at a Applicants must submit all materials questions and tables are fully minimum, all information described as described in and required by the completed. Additional information, required in the application form. An application by the applicable deadlines. including instructions relating to the incomplete application will be rejected. Applicants will not be afforded an submission of supporting information Once the application has been opportunity to provide any missing (e.g., the Controlling Entity’s determined to be eligible and complete, materials or documentation, except, if representative signature page, the CDFI Fund will conduct the necessary and at the request of the CDFI Assurances and Certifications substantive review of each application Fund. Electronic applications must be supporting documents, investor letters, in two parts (Phase 1 and Phase 2) in submitted solely by using the format and organizational charts) is set forth in accordance with the criteria and made available via AMIS. Additional further detail in the CY 2020 NMTC procedures generally described in this information, including instructions Application—AMIS Navigation Guide NOAA and the Allocation Application. relating to the submission of supporting for this Allocation Round. In Phase 1, two reviewers will evaluate information (e.g., the Controlling D. Application submission dates and and score the Business Strategy and Entity’s representative signature page, times: Electronic applications must be Community Outcomes sections of each Assurances and Certifications received by the Allocation Application application. An Applicant must exceed supporting documents, investor letters, deadline in Table 1. Electronic a minimum overall aggregate base score organizational charts), is set forth in applications cannot be transmitted or threshold and exceed a minimum further detail in the CY 2020 NMTC received after Allocation Application aggregate section score threshold in Application—AMIS Navigation Guide deadline in Table 1. In addition, each scored section in order to advance for this Allocation Round. An Applicants must electronically submit from the Phase 1 to the Phase 2 part of application must include a valid and supporting information (e.g., the the substantive review process. In Phase current Employer Identification Number Controlling Entity’s representative 2, the CDFI Fund will rank Applicants (EIN) issued by the Internal Revenue signature page, investor letters, and and determine the dollar amount of Service (IRS) and assigned to the organizational charts). The Controlling allocation authority awarded in Applicant and, if applicable, its Entity’s representative signature page, accordance with the procedures set Controlling Entity. Electronic Assurances and Certifications forth below. applications without a valid EIN are supporting documents, investor letters, B. Criteria: incomplete and cannot be transmitted to and organizational charts must be 1. Business Strategy (25-point the CDFI Fund. For more information on submitted on or before Application maximum): obtaining an EIN, please contact the IRS deadline in Table 1. For details, see the (a) When assessing an Applicant’s at (800) 829–4933 or www.irs.gov. Do instructions provided in the CY 2020 business strategy, reviewers will not include any personal Social Security NMTC Application—AMIS Navigation consider, among other things: The Numbers as part of the application. Guide for this Allocation Round on the Applicant’s products, services and An Applicant may not submit more CDFI Fund’s website. investment criteria; a pipeline of than one application in response to this Applications and other required potential business loans or investments NOAA. In addition, as stated in Section documents received after this date and consistent with an Applicant’s request III.A.6 of this NOAA, an Applicant and time will be rejected. Please note that for an NMTC Allocation; the prior its Affiliates must collectively submit the document submission deadlines in performance of the Applicant or its only one Allocation Application; an this NOAA and/or the Allocation Controlling Entity, particularly as it Applicant and its Affiliates may not Application are strictly enforced. relates to making similar kinds of submit separate Allocation Applications E. Intergovernmental Review: Not investments as those it proposes to except as outlined in Section III.A.6 applicable. make with the proceeds of QEIs; the above. Once an application is F. Funding Restrictions: For allowable Applicant’s prior performance in submitted, an Applicant will not be uses of investment proceeds related to a providing capital or technical assistance allowed to change any element of its NMTC Allocation, please see 26 U.S.C. to disadvantaged businesses or application. 45D and the final regulations issued by communities; the extent to which the C. Form of application submission: the Internal Revenue Service (26 CFR Applicant intends to make QLICIs in Applicants may only submit 1.45D–1, published December 28, 2004 one or more businesses in which applications under this NOAA and as amended) and related guidance. persons unrelated to the entity hold a electronically via AMIS, the CDFI Please see Section I, above, for the majority equity interest; and the extent Fund’s Award Management Information Programmatic Changes of this NOAA. to which Applicants that otherwise have System. Applications and required G. Paperwork Reduction: Under the notable relationships with the QALICBs attachments sent by mail, facsimile, or Paperwork Reduction Act (44 U.S.C. financed will create benefits (beyond email will not be accepted. Submission chapter 35), an agency may not conduct those created in the normal course of a of an electronic application will or sponsor a collection of information, NMTC transaction) to Low-Income facilitate the processing and review of and an individual is not required to Communities. applications and the selection of respond to a collection of information, Under the Business Strategy criterion, Allocatees; further, it will assist the unless it displays a valid OMB control an Applicant will generally score well CDFI Fund in the implementation of number. Pursuant to the Paperwork to the extent that it will deploy debt or electronic reporting requirements. Reduction Act, the application has been investment capital in products or

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services which are flexible or non- Allocation must meet the requirements total base scores or section scores for traditional in form and on better terms of IRC § 45D(b)(1)(B) by investing such application, the CDFI Fund may, than available in the marketplace. An substantially all of the proceeds from its in its sole discretion, obtain the Applicant will also score well to the QEIs in unrelated businesses. The CDFI evaluation and numeric scoring of an extent that, among other things: (i) It has Fund will include an Applicant’s additional third reviewer to determine identified a set of clearly-defined priority points when ranking Applicants whether the anomalous score should be potential borrowers or investees; (ii) it during Phase 2 of the review process, as replaced with the score of the additional has a track record of successfully described below. third reviewer. deploying loans or equity investments 2. Community Outcomes (25-point 2. Late Reports: In the case of an and providing services similar to those maximum): In assessing the potential Applicant or any Affiliates that have it intends to provide with the proceeds benefits to Low-Income Communities previously received an award or NMTC of QEIs; (iii) its projected dollar volume that may result from the Applicant’s Allocation from the CDFI Fund through of NMTC Allocation deployment is proposed investments, reviewers will any CDFI Fund program, the CDFI Fund supported by its track record of consider, among other things, the degree will deduct points up to five points deployment; (iv) in the case of an to which the Applicant is likely to: (i) from the Applicant’s final rank score for Applicant proposing to purchase loans Achieve significant and measurable the Applicant’s (or its Affiliate’s) failure from CDEs, the Applicant will require community development outcomes in to meet any of the reporting deadlines the CDE selling such loans to re-invest its Low-Income Communities; (ii) invest set forth in any assistance, award or the proceeds of the loan sale to provide in particularly economically distressed Allocation Agreement(s), if the reporting additional products and services to markets including areas identified in the deadlines occurred during the period Low-Income Communities. If the Allocation Application such as from October 29, 2019 to the application Applicant (or its Affiliates) have notable Federally designated Opportunity deadline in this NOAA. relationships with QALICBs, the Zones; (iii) engage with local 3. Prior Year Allocatees: In the case of Applicant will generally score well if it communities regarding investments; (iv) Applicants (or their Affiliates) that are quantifies how such relationships will the level of involvement of community prior year Allocatees, the CDFI Fund representatives in the governing board create benefits (i.e., cost savings, lower will review the activities of the prior and/or advisory board in approving fees) for QALICBs, unaffiliated end- year Allocatee to determine whether the investment criteria or decisions; and (v) users such as tenant businesses, or entity has: (a) Effectively utilized its demonstrate a track record of investing residents of Low-Income Communities. prior-year NMTC Allocations in a in businesses that spur additional manner generally consistent with the (b) Priority Points: In addition, as private capital investment in Low- representations made in the relevant provided by IRC § 45D(f)(2), the CDFI Income Communities. Fund will ascribe additional points to An Applicant will generally score Allocation Application (including, but entities that meet one or both of the well under this section to the extent not limited to, the proposed product statutory priorities. First, the CDFI Fund that, among other things: (a) It will offerings, QALICB type, fees and will give up to five additional points to generate clear and well supported markets served); (b) issued QEIs and any Applicant that has a record of community development outcomes; (b) closed QLICIs in a timely manner; and having successfully provided capital or it has a track record of producing (c) substantiated a need for additional technical assistance to disadvantaged quantitative and qualitative community NMTC Allocation authority. The CDFI businesses or communities. Second, the outcomes that are similar to those Fund will use this information in CDFI Fund will give five additional projected to be achieved with an NMTC determining whether to reject or reduce points to any Applicant that intends to Allocation; (c) it is working in the allocation award amount of its satisfy the requirement of IRC particularly economically distressed or NMTC Allocation Application. § 45D(b)(1)(B) by making QLICIs in one otherwise underserved communities; (d) 4. Management Capacity: In assessing or more businesses in which persons its activities are part of a broader an Applicant’s management capacity, unrelated (within the meaning of IRC community or economic development CDFI Fund will consider, among other § 267(b) or IRC § 707(b)(1)) to an strategy; (e) it demonstrates a track things, the current and planned roles, as Applicant (and the Applicant’s record of community engagement well as qualifications of the Applicant’s Subsidiary CDEs, if the Subsidiary around past investment decisions; (f) it (and Controlling Entity’s, if applicable): Allocatee makes the QLICI) hold the ensures that an NMTC investment into Principals; board members; management majority equity interest. Applicants may a project or business is supported by team; and other essential staff or earn points for one or both statutory and will be beneficial to Low-Income contractors, with specific focus on: priorities. Thus, Applicants that meet Persons and residents of Low-Income Experience in providing loans; equity the requirements of both priority Communities; and (g) it is likely to investments or financial counseling and categories can receive up to a total of ten engage in activities that will spur other services, including activities additional points. A record of having additional private capital investment. similar to those described in the successfully provided capital or C. Phase 2 Evaluation: Applicant’s business strategy; asset technical assistance to disadvantaged 1. Application Ranking and Anomaly management and risk management businesses or communities may be Reviews: Using the numeric scores from experience; experience with fulfilling demonstrated either by the past actions Phase 1, Applicants are ranked on the compliance requirements of other of an Applicant itself or by its basis of each Applicant’s combined governmental programs, including other Controlling Entity (e.g., where a new scores in the Business Strategy and tax credit programs; and the Applicant’s CDE is established by a nonprofit Community Outcomes sections of the (or its Controlling Entity’s) financial corporation with a history of providing application plus one half of the priority health. CDFI Fund evaluators will also assistance to disadvantaged points. If, in the case of a particular consider the extent to which an communities). An Applicant that application, a reviewer’s total base score Applicant has protocols in place to receives additional points for intending or section score(s) (in one or more of the ensure ongoing compliance with NMTC to make investments in unrelated two application scored sections) varies Program requirements and the businesses and is awarded a NMTC significantly from the other reviewer’s Applicant’s projected income and

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expenses related to managing an NMTC demonstrates that the economic benefits a proportional allocation of QEIs under Allocation. of the tax credit will be passed through the NMTC Program. The CDFI Fund will An Applicant will be generally to a QALICB; and (d) it intends to invest endeavor to ensure that 20 percent of evaluated more favorably under this the proceeds from the aggregate amount the QLICIs to be made using QEI section to the extent that its of its QEIs at a level that exceeds the proceeds are invested in Non- management team or other essential requirements of IRC § 45D(b)(1)(B) and Metropolitan counties. In addition, the personnel have experience in: (a) the IRS regulations. In the case of an CDFI Fund will ensure that the Providing loans, equity investments or Applicant proposing to raise investor proportion of Allocatees that are Rural financial counseling and other services funds from organizations that also will CDEs is, at a minimum, equal to the in Low-Income Communities, identify or originate transactions for the proportion of Applicants in the highly particularly those likely to be served by Applicant or from Affiliated entities, qualified pool that are Rural CDEs. A the Applicant with the proceeds of said Applicant will be evaluated more Rural CDE is one that has a track record QEIs; (b) asset and risk management; favorably to the extent that it will offer of at least three years of direct financing and (c) fulfilling government products with more favorable rates or experience, has dedicated at least 50 compliance requirements, particularly terms than those currently offered by its percent of its direct financing dollars to tax credit program compliance. An investor(s) or Affiliated entities and/or Non-Metropolitan counties over the past Applicant will also be evaluated will target its activities to areas of five years, and has committed that at favorably to the extent it demonstrates greater economic distress than those least 50 percent of its NMTC financing strong financial health and a high currently targeted by the investor or dollars with this NMTC Allocation will likelihood of remaining a going-concern; Affiliated entities. be deployed in such areas. Non- it clearly explains levels of income and 6. Contacting Applicants: As a part of Metropolitan counties are counties not expenses; has policies and systems in the substantive review process, the CDFI contained within a Metropolitan place to ensure portfolio quality, Fund may permit the NMTC Allocation Statistical Area, as such term is defined ongoing compliance with NMTC recommendation panel member(s) to in OMB Bulletin No. 10–02 (Update of Program requirements; and, if it is a request information from Applicants for Statistical Area Definitions and Federally-insured financial institution, the sole purpose of obtaining, clarifying Guidance on Their Uses) and applied has its most recent Community or confirming application information using 2010 census tracts. Applicants Reinvestment Act (CRA) rating as or omission of information. In no event that meet the minimum scoring ‘‘outstanding.’’ shall such contact be construed to thresholds will be advanced to Phase 2 5. Capitalization Strategy: When permit an Applicant to change any review and will be provided with assessing an Applicant’s capitalization element of its application. At this point ‘‘preliminary’’ awards, in descending strategy, CDFI Fund will consider, in the process, an Applicant may be order of final rank score, until the among other things: The key personnel required to submit additional available allocation authority is of the Applicant (or Controlling Entity) information about its application in fulfilled. Once these ‘‘preliminary’’ and their track record of raising capital, order to assist the CDFI Fund with its award amounts are determined, the particularly from for-profit investors; final evaluation process. If the CDFI Fund will then analyze the the extent to which the Applicant has Applicant (or the Controlling Entity or Allocatee pool to determine whether the secured investments or commitments to any Affiliate) has previously been two Non-Metropolitan proportionality invest in NMTC (if applicable), or awarded an NMTC Allocation, the CDFI objectives have been met. indications of investor interest Fund may also request information on The CDFI Fund will first examine the commensurate with its requested the use of those NMTC Allocations, to ‘‘preliminary’’ awards and Allocatees to amount of NMTC Allocations, or, if a the extent that this information has not determine whether the percentage of prior Allocatee, the track record of the already been reported to the CDFI Fund. Allocatees that are Rural CDEs is, at a Applicant or its Affiliates in raising Such requests must be responded to minimum, equal to the percentage of Qualified Equity Investments in the past within the time parameters set by the Applicants in the highly qualified pool five years; the Applicant’s strategy for CDFI Fund. The selecting official(s) will that are Rural CDEs. If this objective is identifying additional investors, if make a final allocation determination not achieved, the CDFI Fund will necessary, including the Applicant’s (or based on an Applicant’s file, including, provide awards to additional Rural its Controlling Entity’s) prior without limitation, eligibility under IRC CDEs from the highly qualified pool, in performance with raising equity from § 45D, the reviewers’ scores and the descending order of their final rank investors, particularly for-profit amount of NMTC Allocation authority score, until the appropriate percentage investors; the distribution of the available. balance is achieved. In order to economic benefits of the tax credit; and 7. Award Decisions: The CDFI Fund accommodate the additional Rural CDEs the extent to which the Applicant will award allocations in descending in the Allocatee pool within the intends to invest the proceeds from the order of the final rank score, subject to available NMTC Allocation limitations, aggregate amount of its QEIs at a level Applicants meeting all other eligibility a formula reduction may be applied as that exceeds the requirements of IRC requirements; provided, however, that uniformly as possible to the allocation § 45D(b)(1)(B) and the IRS regulations. the CDFI Fund, in its sole discretion, amount for all Allocatees in the pool An Applicant will be evaluated more reserves the right to reject an that have not committed to investing a favorably under this section to the application and/or adjust award minimum of 20 percent of their QLICIs extent that: (a) It or its Controlling amounts as appropriate based on in Non-Metropolitan counties. Entity demonstrate a track record of information obtained during the review The CDFI Fund will then determine raising investment capital; (b) it has process. whether the pool of Allocatees will, in secured investor commitments, or has a D. Allocations serving non- the aggregate, invest at least 20 percent reasonable strategy for obtaining such metropolitan counties: As provided for of their QLICIs (as measured by dollar commitments, or, if it or its Affiliates is under Section 102(b) of the Tax Relief amount) in Non-Metropolitan counties. a prior Allocatee with a track record in and Health Care Act of 2006 (Pub. L. The CDFI Fund will first apply the the past five years of raising Qualified 109–432), the CDFI Fund shall ensure ‘‘minimum’’ percentage of QLICIs that Equity Investments and; (c) it generally that Non-Metropolitan counties receive Allocatees indicated in their

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applications would be targeted to Non- Application in the case of a prior request additional information from the Metropolitan areas to the total NMTC Allocatee, if such Applicant has failed Applicant regarding Assurances and Allocation award amount of each to use its prior NMTC Allocation(s) in Certifications or other information about Allocatee (less whatever percentage the a manner that is generally consistent the ability of the Applicant to effectively Allocatee indicated would be retained with the business strategy (including, perform under the Allocation for non-QLICI activities), and total these but not limited to, the proposed product Agreement. The NMTC Allocation figures for all Allocatees. If this offerings, QALICB type, fees and recommendation panel or selecting aggregate total is greater than or equal to markets served) set forth in the official(s) reserve(s) the right to consult 20 percent of the QLICIs to be made by Allocation Application(s) related to with and take into consideration the the Allocatees, then the pool is such prior NMTC Allocation(s) or such views of the appropriate Federal considered balanced and the CDFI Fund Applicant has been found by the IRS to banking and other regulatory agencies. will proceed with the NMTC Allocation have engaged in a transaction or series In the case of Applicants (or Affiliates process. However, if the aggregate total of transactions designed to achieve a of Applicants) that are also Small is less than 20 percent of the QLICIs to result that is inconsistent with the Business Investment Companies, be made by the Allocatees, the CDFI purposes of IRC § 45D. The CDFI Fund Specialized Small Business Investment Fund will consider requiring any or all also reserves the right to reject or reduce Companies or New Markets Venture of the Allocatees to direct up to the the allocation award amount of any Capital Companies, the CDFI Fund ‘‘maximum’’ percentage of QLICIs that NMTC Allocation Application in the reserves the right to consult with and the Allocatees indicated would be case of an Affiliate of the Applicant that take into consideration the views of the targeted to Non-Metropolitan counties, is a prior Allocatee and has failed to use Small Business Administration. An taking into consideration their track its prior NMTC Allocation(s) in a Applicant that is or is affiliated with an record and ability to deploy dollars in manner that is generally consistent with insured depository institution will not Non-Metropolitan counties. If the CDFI the business strategy (including, but not be awarded an NMTC Allocation if it Fund cannot meet the goal of 20 percent limited to, the proposed product has a composite rating of ‘‘5’’ on its of QLICIs in Non-Metropolitan counties offerings, QALICB type, fees and most recent examination, performed in by requiring any or all Allocatees to markets served) set forth in the accordance with the Uniform Financial commit up to the maximum percentage Allocation Application(s) related to Institutions Rating System. of QLICIs that they indicated would be such prior NMTC Allocation(s) or has Furthermore, the CDFI Fund will not targeted to Non-Metropolitan counties, been found by the IRS to have engaged award an NMTC Allocation to an the CDFI Fund may add additional in a transaction or series of transactions Applicant that is an insured depository highly qualified Rural CDEs (in designed to achieve a result that is institution or is an Affiliate of an descending order of final rank score) to inconsistent with the purposes of IRC insured depository institution, if during the Allocatee pool. In order to § 45D. the time period beginning with the accommodate any additional Allocatees The CDFI Fund reserves the right to application deadline and ending with within the allocation limitations, a reject an NMTC Allocation Application the execution of the CY 2020 Allocation formula reduction will be applied as if information (including, but not Agreement; the Applicant received any uniformly as possible, to the allocation limited to, administrative errors or of the following: amount for all Allocatees in the pool omission of information) comes to the 1. CRA assessment rating of below that have not committed to investing a attention of the CDFI Fund that ‘‘Satisfactory’’ on its most recent minimum of 20 percent of their QLICIs adversely affects an Applicant’s examination; in Non-Metropolitan counties. eligibility for an award, adversely affects 2. A going concern opinion on its E. Right of rejection: The CDFI Fund the CDFI Fund’s evaluation or scoring of most recent audit; or reserves the right to reject any NMTC an application, adversely affects the 3. A Prompt Corrective Action Allocation Application in the case of a CDFI Fund’s prior determinations of directive from its regulator. prior CDFI Fund award recipient, if CDE certification, or indicates fraud or The CDFI Fund reserves the right to such Applicant has failed to comply mismanagement on the part of an conduct additional due diligence on all with the terms, conditions, and other Applicant, its Affiliate(s), or the Applicants, as determined reasonable requirements of the prior or existing Controlling Entity, if such fraud or and appropriate by the CDFI Fund, in its assistance or award agreement(s) with mismanagement by the Affiliate(s) or sole discretion, related to the Applicant, the CDFI Fund. The CDFI Fund reserves Controlling Entity would hinder the Affiliates, the Applicant’s Controlling the right to reject any NMTC Allocation Applicant’s ability to perform under the Entity and the officers, directors, Application in the case of a prior CDFI Allocation Agreement. If the CDFI Fund owners, partners and key employees of Fund Allocatee, if such Applicant has determines that any portion of the each. This includes the right to consult failed to comply with the terms, application is incorrect in any material with the IRS if the Applicant (or the conditions, and other requirements of respect, the CDFI Fund reserves the Controlling Entity, or Affiliates) has its prior or existing Allocation right, in its sole discretion, to reject the previously been awarded an NMTC Agreement(s) with the CDFI Fund. The application. Allocation. CDFI Fund reserves the right to reject The CDFI Fund reserves the right to F. Allocation Announcement: Each any NMTC Allocation Application in reject any NMTC Allocation Application Applicant will be informed of the CDFI the case of any Applicant, if an Affiliate if additional information is obtained Fund’s award decision through an of the Applicant has failed to meet the that, after further due diligence and in electronic notification whether selected terms, conditions and other the discretion of the CDFI Fund, would for an allocation or not selected for an requirements of any prior or existing hinder the Applicant’s ability to allocation, which may be for reasons of assistance agreement, award agreement effectively perform under the Allocation application incompleteness, or Allocation Agreement with the CDFI Agreement. In the case of Applicants (or ineligibility, or substantive issues. Fund. the Controlling Entity, or Affiliates) that Eligible Applicants that are not selected The CDFI Fund reserves the right to are regulated or receive oversight by the for an allocation based on substantive reject or reduce the allocation award Federal government or a state agency (or issues will likely be given the amount of any NMTC Allocation comparable entity), the CDFI Fund may opportunity to receive feedback on their

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applications. This feedback will be Allocatee’s ability to issue QEIs to award recipient or Allocatee under any provided in a format and within a investors, during the time period given CDFI Fund programs is in timeframe to be determined by the CDFI for the entity to cure the noncompliance noncompliance of a previously executed Fund, based on available resources. or default and until such time as the assistance or award agreement or in The CDFI Fund further reserves the CDFI Fund makes a final determination default of a previously executed right to change its eligibility and that the entity is in noncompliance or Allocation Agreement(s); (ii) the CDFI evaluation criteria and procedures, if default, and determination of remedies, Fund has provided written notification the CDFI Fund deems it appropriate. If if applicable, in the sole determination of such determination to such said changes materially affect the CDFI of the CDFI Fund. Further, if an Affiliate organization; and (iii) the default occurs Fund’s award decisions, the CDFI Fund of an Allocatee is a prior CDFI Fund during the time period beginning 12 will provide information regarding the award recipient or Allocatee and if such months prior to the application deadline changes through the CDFI Fund’s entity: (i) Has demonstrated and ending with the execution of the CY website. noncompliance under a previous 2020 Allocation Agreement, the CDFI The CDFI Fund reserves the right, in assistance or award agreement or default Fund reserves the right, in its sole its sole discretion, to rescind an under a previous Allocation Agreement; discretion, to delay entering into an allocation made under this NOAA, and (ii) the entity has been given a Allocation Agreement and/or to impose should an Allocatee be identified as timeframe to cure the noncompliance or limitations on the Allocatee’s ability to ineligible due to pending or delinquent default, the CDFI Fund reserves the issue QEIs to investors, or to terminate debt to the Federal government in the right, in its sole discretion, to delay and rescind the NMTC Allocation made Do Not Pay database. entering into an Allocation Agreement under this NOAA. There is no right to appeal the CDFI and/or to impose limitations on the Fund’s NMTC Allocation decisions. The B. Allocation Agreement: Each Allocatee’s ability to issue QEIs to Allocatee (including their Subsidiary CDFI Fund’s NMTC Allocation investors, during the time period given decisions are final. Allocatees) must enter into an for the entity to cure the noncompliance Allocation Agreement with the CDFI VI. Award Administration Information or default and until such time as the Fund. The Allocation Agreement will CDFI Fund makes a final determination set forth certain required terms and A. Allocation Award Compliance that the entity is in noncompliance or conditions of the NMTC Allocation 1. Failure to meet reporting default, and determination of remedies, which may include, but are not limited requirements: If an Allocatee, or an if applicable, in the sole determination to, the following: (i) The amount of the Affiliate of an Allocatee, is a prior CDFI of the CDFI Fund. If the prior award awarded NMTC Allocation; (ii) the Fund award recipient or Allocatee recipient or Allocatee in question is approved uses of the awarded NMTC under any CDFI Fund program and is unable to satisfactorily resolve the Allocation (e.g., loans to or equity not current on the reporting issues of noncompliance or default, in investments in QALICBs, loans to or requirements set forth in the previously the sole determination of the CDFI equity investments in other CDEs); (iii) executed assistance, allocation, or Fund, the CDFI Fund reserves the right, the approved service area(s) in which award agreement(s) as of the date the in its sole discretion, to terminate and CDFI Fund provides notification of an rescind the award notification made the proceeds of QEIs may be used, NMTC Allocation award or thereafter, under this NOAA. including the dollar amount of QLICIs the CDFI Fund reserves the right, in its 3. Determination of noncompliance or that must be invested in Non- sole discretion, to reject the application, default status: If prior to entering into Metropolitan counties; (iv) delay entering into an Allocation an Allocation Agreement through this commitments to specific ‘‘innovative Agreement, and/or impose limitations NOAA, the CDFI Fund has made a final activities’’ discussed by the Allocatee in on an Allocatee’s ability to issue QEIs to determination that an Allocatee that is its Allocation Application; (v) the time investors until said prior award a prior CDFI Fund award recipient or period by which the Allocatee may recipient or Allocatee is current on the Allocatee under any CDFI Fund obtain QEIs from investors; (vi) reporting requirements in the previously program is (i) noncompliant with a reporting requirements for the executed assistance, allocation, or previously executed assistance or award Allocatee; and (vii) a requirement to award agreement(s). Please note that the agreement, or is in default of a maintain certification as a CDE automated systems the CDFI Fund uses previously executed Allocation throughout the term of the Allocation for receipt of reports submitted Agreement; (ii) the CDFI Fund has Agreement. If an Allocatee represented electronically typically acknowledges provided written notification of such in its NMTC Allocation Application that only a report’s receipt; such an determination to such organization; and it intends to invest substantially all of acknowledgment does not warrant that (iii) the noncompliance or default the proceeds from its investors in the report received was complete and occurs during the time period beginning businesses in which persons unrelated therefore met reporting requirements. 12 months prior to the application to the Allocatee hold a majority equity 2. Pending determination of deadline and ending with the execution interest, the Allocation Agreement will noncompliance or default: If an of the CY 2020 Allocation Agreement, contain a covenant to that effect. In Allocatee is a prior award recipient or the CDFI Fund reserves the right, in its addition to entering into an Allocation Allocatee under any CDFI Fund sole discretion, to delay entering into an Agreement, each Allocatee must furnish program and if: (i) It has demonstrated Allocation Agreement and/or to impose to the CDFI Fund an opinion from its noncompliance with a previous limitations on the Allocatee’s ability to legal counsel or a similar certification, assistance or award agreement or a issue QEIs to investors, or to terminate the content of which will be further default under an Allocation Agreement; and rescind the NMTC Allocation made specified in the Allocation Agreement, and (ii) the entity has been given a under this NOAA. to include, among other matters, an timeframe to cure the noncompliance or Furthermore, if prior to entering into opinion that an Allocatee (and its default the CDFI Fund reserves the an Allocation Agreement through this Subsidiary Allocatees, if any): (i) Is duly right, in its sole discretion, to delay NOAA: (i) The CDFI Fund has made a formed and in good standing in the entering into an Allocation Agreement final determination that an Affiliate of jurisdiction in which it was formed and and/or to impose limitations on the an Allocatee that is a prior CDFI Fund the jurisdiction(s) in which it operates;

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(ii) has the authority to enter into the Fund when requested to monitor each that prevent them from accessing the Allocation Agreement and undertake Allocatee’s compliance with the Low-Income Community maps using the the activities that are specified therein; provisions of its Allocation Agreement CDFI Fund’s website should call (202) (iii) has no pending or threatened and to assess the impact of the NMTC 653–0422 for assistance. These are not litigation that would materially affect its Program in Low-Income Communities. toll free numbers. ability to enter into and carry out the The CDFI Fund may also provide such B. Programmatic support: If you have activities specified in the Allocation information to the IRS in a manner any questions about the programmatic Agreement; and (iv) is not in default of consistent with IRC § 6103 so that the requirements of this NOAA, contact the its articles of incorporation, bylaws or IRS may determine, among other things, CDFI Fund’s NMTC Program Manager other organizational documents, or any whether the Allocatee has used by submitting a Service Request in agreements with the Federal substantially all of the proceeds of each AMIS; or by telephone at (202) 653– government. QEI raised through its NMTC Allocation 0421. These are not toll free numbers. If an Allocatee identifies Subsidiary to make QLICIs. The Allocation C. Administrative support: If you have Allocatees, the CDFI Fund reserves the Agreement shall further describe the any questions regarding the right to require an Allocatee to provide Allocatee’s reporting requirements. administrative requirements of this supporting documentation evidencing The CDFI Fund reserves the right, in NOAA, contact the CDFI Fund’s NMTC that it Controls such entities prior to its sole discretion, to modify these Program Manager by submitting a entering into an Allocation Agreement reporting requirements if it determines Service Request in AMIS, or by with the Allocatee and its Subsidiary it to be appropriate and necessary; telephone at (202) 653–0421. These are Allocatees. The CDFI Fund reserves the however, such reporting requirements not toll free numbers. right, in its sole discretion, to rescind its will be modified only after due notice D. IRS support: For questions NMTC Allocation award if the Allocatee to Allocatees. regarding the tax aspects of the NMTC fails to return the Allocation Agreement, VII. Agency Contacts Program, contact Jian Grant and James signed by the authorized representative Holmes, Office of the Chief Counsel of the Allocatee, and/or provide the The CDFI Fund will provide (Passthroughs and Special Industries), CDFI Fund with any other requested programmatic and information IRS, by telephone at (202) 317–4137, or documentation, including an approved technology support related to the by facsimile at (855) 591–7867. These legal opinion, within the deadlines set Allocation Application Mondays are not toll free numbers. Applicants by the CDFI Fund. through Fridays, between the hours of wishing for a formal ruling request C. Fees: The CDFI Fund reserves the 9:00 a.m. and 5:00 p.m. ET through the should see IRS Internal Revenue right, in accordance with applicable last day to contact the CDFI Fund. The Bulletin 2018–1, issued January 2, 2018. Federal law and, if authorized, to charge CDFI Fund will not respond to phone allocation reservation and/or calls or emails concerning the VIII. Information Sessions compliance monitoring fees to all application that are received after the In connection with this NOAA, the entities receiving NMTC Allocations. last day to contact the CDFI Fund. The CDFI Fund may conduct one or more Prior to imposing any such fee, the CDFI CDFI Fund will respond to such phone information sessions that will be Fund will publish additional calls or emails after the Allocation produced in Washington, DC and information concerning the nature and Application deadline in Table 1. broadcast over the internet via amount of the fee. Applications and other information webcasting as well as telephone D. Reporting: The CDFI Fund will regarding the CDFI Fund and its conference calls. For further information collect information, on at least an programs may be obtained from the on these upcoming information annual basis from all Allocatees and/or CDFI Fund’s website at https:// sessions, please visit the CDFI Fund’s CDEs that are recipients of QLICIs, www.cdfifund.gov. The CDFI Fund will website at https://www.cdfifund.gov. including such audited financial post on its website responses to Authority: 26 U.S.C. 45D; 31 U.S.C. 321; 26 statements and opinions of counsel as questions of general applicability CFR 1.45D–1. the CDFI Fund deems necessary or regarding the NMTC Program. desirable, in its sole discretion. The A. Information technology support: Jodie L. Harris, CDFI Fund will require the Allocatee to Technical support can be obtained by Director, Community Development Financial retain information as the CDFI Fund calling (202) 653–0422 or by submitting Institutions Fund. deems necessary or desirable and shall a Service Request in AMIS. People who [FR Doc. 2020–20931 Filed 9–22–20; 8:45 am] provide such information to the CDFI have visual or mobility impairments BILLING CODE 4810–70–P

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Part II

Federal Communications Commission

47 CFR Part 1 Assessment and Collection of Regulatory Fees for Fiscal Year 2020; Final Rule

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FEDERAL COMMUNICATIONS C. Congressional Review Act II. Report and Order COMMISSION 2. The Commission has determined, A. Allocating FTEs 47 CFR Part 1 and the Administrator of the Office of 5. In the FY 2020 NPRM, the Information and Regulatory Affairs, Commission proposed that non-auctions [MD Docket No. 20–105; FCC 20–120; FRS Office of Management and Budget, funded FTEs will be classified as direct 17050] concurs that these rules are non-major only if in one of the four core bureaus, under the Congressional Review Act, 5 i.e., in the Wireline Competition Assessment and Collection of U.S.C. 804(2). The Commission will Bureau, the Wireless Regulatory Fees for Fiscal Year 2020 send a copy of this Report & Order to Telecommunications Bureau, the Media Congress and the Government Bureau, or the International Bureau. The AGENCY: Federal Communications indirect FTEs are from the following Commission. Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A). bureaus and offices: Enforcement ACTION: Final rule. Bureau, Consumer and Governmental 3. In this Report and Order, we adopt Affairs Bureau, Public Safety and SUMMARY: In this document, the a schedule to collect the $339,000,000 Homeland Security Bureau, Chairman Commission revises its Schedule of in congressionally required regulatory and Commissioners’ offices, Office of Regulatory Fees to recover an amount of fees for fiscal year (FY) 2020. The the Managing Director, Office of General $339,000,000 that Congress has required regulatory fees for all payors are due in Counsel, Office of the Inspector General, the Commission to collect for fiscal year September 2020. In future rulemaking, Office of Communications Business 2020. Section 9 of the Communications we will seek comment on regulatory fee Opportunities, Office of Engineering Act of 1934, as amended, provides for subcategories for FY 2021, for and Technology, Office of Legislative the annual assessment and collection of nongeostationary orbit (NGSO) Affairs, Office of Workplace Diversity, regulatory fees under sections 9(b)(2) satellites, as proposed by several Office of Media Relations, Office of and 9(b)(3), respectively. commenters. Economics and Analytics, and Office of DATES: Effective September 23, 2020. To 4. Earlier this year, in the 2020 Administrative Law Judges, along with avoid penalties and interest, regulatory Regulatory Fee Reform Order (85 FR some employees in the Wireline fees should be paid by the due date of Competition Bureau and the 37364 (June 22, 2020)), we adopted September 25, 2020. International Bureau that the several reforms regarding non-U.S. FOR FURTHER INFORMATION CONTACT: Commission previously classified as licensed space stations with U.S. market indirect. Roland Helvajian, Office of Managing access grants, the apportionment of full Director at (202) 418–0444. 6. We will continue to apportion time equivalents (FTEs) within the regulatory fees across fee categories SUPPLEMENTARY INFORMATION: This is a International Bureau for international based on the number of direct FTEs in summary of the Commission’s Report bearer circuits and satellite issues, the each core bureau and the proportionate and Order, FCC 20–120, MD Docket No. apportionment of FTEs within the number of indirect FTEs and to take into 20–105, adopted and released on August Satellite Division of the International account factors that are reasonably 31, 2020. The full text of this document Bureau for geostationary orbit (GSO) related to the payor’s benefits. In sum, is available for public inspection by and NGSO space station regulatory fee, there were 311 direct FTEs for FY 2020, downloading the text from the and we adopted a limitation on distributed among the core bureaus as Commission’s website at http:// population counts for certain very high follows: International Bureau (28), transition.fcc.gov/Daily_Releases/Daily_ frequency (VHF) television broadcast Wireless Telecommunications Bureau Business/2017/db0906/FCC-17- stations. In the accompanying FY 2020 (73), Wireline Competition Bureau (94), 111A1.pdf. Notice of Proposed Rulemaking (NPRM) and the Media Bureau (116). This I. Administrative Matters (85 FR 32256 (May 28, 2020)), we results in 9.00% of the FTE allocation for International Bureau regulatees; A. Final Regulatory Flexibility Analysis sought comment on a proposed fee schedule and also on certain issues for 23.47% of the FTE allocation for 1. As required by the Regulatory International Bureau and Media Bureau Wireless Telecommunications Bureau Flexibility Act of 1980 (RFA), the regulatees. Specifically, we sought regulatees; 30.23% of the FTE allocation Commission has prepared a Final comment on a schedule of proposed for Wireline Competition Bureau Regulatory Flexibility Analysis (FRFA) regulatory fees as well as certain issues: regulatees; and 37.30% of FTE allocation for Media Bureau regulatees. relating to this Report and Order. The Adjusting the allocation of international There are 911 indirect FTEs that are FRFA is located at the end of this bearer circuit (IBC) fees between document. allocated proportionally to the 311 submarine cable and terrestrial and direct FTEs: Enforcement Bureau (181), B. Final Paperwork Reduction Act of satellite IBCs from 87.6%–12.4% to Consumer and Governmental Affairs 1995 Analysis 95%–5%; combining the submarine Bureau (113), Public Safety and 2. This document does not contain cable regulatory fee tiers with new tiers Homeland Security Bureau (89), part of new or modified information collection for terrestrial and satellite IBCs in a the International Bureau (56), part of the requirements subject to the Paperwork unified tier structure; basing full-power Wireline Competition Bureau (38), Reduction Act of 1995 (PRA), Public broadcast television fees on the Chairman and Commissioners’ offices Law 104–13. In addition, therefore, it population covered by the station’s (23), Office of the Managing Director does not contain any new or modified contour; and continuing to increase the (132), Office of General Counsel (70), information collection burden for small direct broadcast satellite (DBS) Office of the Inspector General (45), business concerns with fewer than 25 regulatory fees by 12 cents, to 72 cents, Office of Communications Business employees, pursuant to the Small per subscriber, per year. In addition, we Opportunities (8), Office of Engineering Business Paperwork Relief Act of 2002, sought comment on economic effects and Technology (72), Office of Public Law 107–198, see 44 U.S.C. due to the COVID–19 pandemic on Legislative Affairs (8), Office of 3506(c)(4). regulatory fee payors. Workforce Diversity (6), Office of Media

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Relations (14), Office of Economics and providers, AT&T and DISH Network, are adjust the date of the MVPD subscriber Analytics (53), and Office of multichannel video programming count snapshot. Administrative Law Judges (3). distributors (MVPDs). In 2015, the C. Television Broadcaster Regulatory Allocating these indirect FTEs based on Commission adopted an initial Fees the direct FTE allocations yields an regulatory fee for DBS, as a subcategory additional 82.0 FTEs attributable to in the cable television and internet 11. Historically, regulatory fees for International Bureau regulatees, 213.8 protocol (IPTV) category. The full-power television stations were FTEs attributable to Wireless Commission then phased in the new based on the Nielsen Designated Market Telecommunications Bureau regulatees, Media Bureau-based regulatory fee for Area (DMA) groupings 1–10, 11–25, 26– 275.4 FTEs attributable to Wireline DBS, starting at 12 cents per subscriber 50, 51–100, and remaining markets Competition Bureau regulatees, and per year. For FY 2020, the Commission (DMAs 101–210. In the FY 2018 Report 339.8 FTEs attributable to Media Bureau proposed to increase the fee to 72 cents and Order (83 FR 47079 (Sept. 18, regulatees. per subscriber, per year. 2018)), we adopted a new methodology 7. As in prior years, broadcasters have 9. AT&T and DISH—the two DBS that would transition from a blended fee taken issue with the Commission’s operators in the United States—claim based methodology to one that is based practice of allocating costs associated that the proposed fee increase of 12 entirely on population. Accordingly, we with indirect FTEs in proportion to each cents is not ‘‘because the nation’s two now adopt FY 2020 fees for full-power core bureau’s direct FTEs. Broadcasters DBS providers have caused the broadcast television stations based on suggest that the methodology should Commission to incur significant full- the population covered by a full-power instead consider whether the functions time equivalent (‘FTE’) employee costs broadcast television station’s contour. of specific indirect FTEs benefit specific commensurate with this calculation, but Table 9 lists this population data for regulatory fee payors. We affirm the rather because the Commission each licensee and the population-based findings in our FY 2019 regulatory fee apparently desires regulatory fee parity fee (population multiplied by $.007837) proceeding, where we explained in between cable operators and DBS for each full-power broadcast television detail our existing methodology for providers.’’ We reject AT&T’s and station, including each satellite station. assessing fees, noted the changes in the DISH’s claim that we should not adopt 12. In the FY 2020 NPRM, we also statute, and sought comment on what a fee increase and that such an increase proposed to adjust the fees of Puerto changes to our regulatory fee would result in shifting cable-caused Rico broadcasters in two discrete ways. methodology, if any, were necessary to costs to DBS providers. The Media First, we proposed to account for the implement the RAY BAUM’S Act Bureau relies on a common pool of FTEs objectively measurable reduction in amendments to our regulatory fee to carry out its oversight of MVPDs and population by reducing the population authority. After review of the comments other video distribution providers. A counts used in TVStudy by 16.9%, received, we determined in the FY 2019 significant number of Media Bureau which reflects the decline between the Report and Order (84 FR 50890 (Sept. FTEs work on MVPD issues such as last census in 2010 and the current 26, 2019)) that because the new section market modifications, must-carry and population estimate. Second, we 9 closely aligned to how the retransmission consent disputes, proposed to limit the market served by Commission assessed and collected fees program carriage complaints, media a primary television stations and under the prior section 9, we would modernization efforts, and proposed commonly owned satellite broadcast hew closely to the existing transactions, that affect all MVPDs. A stations in Puerto Rico to no more than methodology, expressly rejecting any significant number of Media Bureau 3.10 million people, the latest suggestion that the Commission should FTEs work on MVPD issues such as population estimate. Under this abandon the step in our process market modifications, must-carry and scenario, the fee for television whereby we designate FTEs as either retransmission consent disputes, broadcasters and commonly owned direct or indirect and allocate indirect program carriage complaints, media satellites, using the proposed FTEs in proportion to the direct FTEs in modernization efforts, and proposed population fee of $.007837, would not each of the core bureaus. The National transactions, that affect all MVPDs. exceed $24,300. Accordingly, we adopt Association of Broadcasters (NAB) also Therefore, we adopt the proposal in the these adjustments and the proposed asserts after evaluating the FTE FY 2020 NPRM to continue to phase in regulatory fees for these television allocations within the bureaus and the DBS regulatory fee by 12 cents, to broadcasters. offices, the Commission failed to also 72 cents per subscriber, per year. This 13. We disagree with arguments consider other factors that reasonably increase will result in a regulatory fee of attempting to relitigate our treatment of related to the benefits provided to the 89 cents per subscriber, per year, for VHF stations. Several commenters payors, particularly the radio industry. cable television/IPTV, and bring DBS contend that ultra high frequency (UHF) But as noted above, it has been the closer to parity with cable television/ stations should pay a higher fee than Commission’s longstanding IPTV. VHF stations because VHF stations have methodology to use direct FTEs as a 10. Finally, the DBS providers to overcome additional background measure of the benefits provided, and contend that the Commission should interference that is prevalent in large the Commission engages in a fresh use an MVPD subscriber snapshot closer cities. In the 2020 Regulatory Fee review of the FTE allocations each year in time to the regulatory fee order Reform Order, we declined to as part of its annual proceeding. release date due to declining subscriber categorically lower regulatory fees for counts. The use of a more recent VHF stations to account for signal B. Direct Broadcast Satellite Regulatory customer data, such as in June or July, limitations, and concluded that there is Fees would preclude the Commission from nothing inherent in VHF transmission 8. Direct broadcast satellite service is retrieving, reviewing, and using the that creates signal deficiencies but that a nationally distributed subscription information while drafting the Notice of environmental noise issues can affect service that delivers video and audio Proposed Rulemaking and seeking reception in certain areas and situations. programming via satellite to a small comment on proposed fees, a critical As such, we grant VHF stations that parabolic dish antenna at the step in the annual regulatory fee operate at higher power levels to subscriber’s location. The two DBS process. Accordingly, we decline to overcome interference an assessed

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amount at power levels authorized by FTEs. Each regulatee within a fee 2019. In continuing to review our unit our rules. category then pays its proportionate numbers, however, we discovered a share based on an objective measure of D. Radio Broadcaster Regulatory Fees computational error and correct it here size (e.g., revenues or number of by increasing the number of units used 14. The FY 2020 NPRM proposed the subscribers). The methodology, as is the in the calculation from 9,636 to 9,831 same methodology for assessing radio case with many regulatees, uses both which results in lower fees than broadcasters as in prior years. This population and type of license as a proposed in the FY 2020 NPRM. Below methodology involves first identifying metric for benefit afforded the payor. is a chart showing the regulatory fees by the FTEs doing work directly benefitting 15. Use of this methodology results in category of radio broadcaster for FY regulatees. The total collection target is net increases in the amount of 2020 adjusted to account for the then allocated across all regulatory fee regulatory fees assessed to radio correction: categories based on the number of total broadcast categories compared to FY

TABLE 1—FY 2020 RADIO STATION REGULATORY FEES

FY 2020 radio station regulatory fees FM classes Population served AM class A AM class B AM class C AM class D FM classes B, C, C0, C1 A, B1 & C3 & C2

<=25,000 ...... $975 $700 $610 $670 $1,075 $1,225 25,001–75,000 ...... 1,475 1,050 915 1,000 1,625 1,850 75,001–150,000 ...... 2,200 1,575 1,375 1,500 2,425 2,750 150,001–500,000 ...... 3,300 2,375 2,050 2,275 3,625 4,150 500,001–1,200,000 ...... 4,925 3,550 3,075 3,400 5,450 6,200 1,200,001–3,000,000 ...... 7,400 5,325 4,625 5,100 8,175 9,300 3,000,001–6,000,000 ...... 11,100 7,975 6,950 7,625 12,250 13,950 >6,000,000 ...... 16,675 11,975 10,425 11,450 18,375 20,925

16. Radio broadcasters argue that any bureau’s share of direct FTEs, this E. Toll Free Numbering Regulatory Fees increases to their regulatory fees for FY increase in the percentage of direct FTEs 2020 are unreasonable because the total also resulted in an increase in the 18. Toll free numbers allow callers to amount appropriated to the Commission amount of indirect FTEs being allocated reach the called party without being for FY 2020 did not increase from FY to Media Bureau fee categories. This charged for the call. With toll free calls, 2019, and the number of FTEs in the then resulted in an increase in the the charge for the call is paid by the Media Bureau increased by only one overall fees for radio broadcasters as a called party (the toll free subscriber) from FY 2019. Accordingly, they claim group. Second, the total number of radio instead. ATL Communications, a that the regulatory fees for radio broadcasters (projected fee-paying units) RespOrg, filed comments to the broadcast categories for FY 2020 should unexpectedly dropped by 180 from FY Commission’s proposed regulatory fees for fiscal year 2020. In its comments, be frozen at their FY 2019 levels. The 2019 to FY 2020. The net effect of these ATL does not address the issues that are radio broadcasters’ arguments, however, two changes resulted in increased the subject of this proceeding, but reflect an incomplete understanding of regulatory fees for individual radio instead raises specific questions related the methodology that the Commission broadcaster fee paying units for FY to international toll free calls involving has used for years. As described above 2020. and in the FY 2020 NPRM, the long- Canada, tracking fee exemptions, standing methodology for assessing 17. We disagree with the radio control and ownership of toll free regulatory fees involves multiple factors broadcasters that we should ignore our numbers, and the consequences for besides the amount of appropriation to long-standing methodology in order to failure to pay assessed regulatory fees. be recovered and the number of direct freeze regulatory fees for (and thus Upon review, we find no convincing FTEs. Specifically, two factors affecting benefit) radio broadcasters at the evidence in ATL’s comments that calculation of radio broadcasters’ fees expense of other regulatees (such as warrants a change to the regulatory fee changed significantly between FY 2019 television broadcasters). Because the obligation, as it applies to toll free and FY 2020, and resulted in the Commission is statutorily obligated to numbers. recover the amount of its appropriation increase in regulatory fees for radio F. Market Access Space Station through regulatory fees, these fees are a broadcasters. First, the Media Bureau’s Regulatory Fees allocation percentage increased from zero-sum situation. Thus, if the 35.9% in FY 2019 to 37.3% in FY 2020. Commission freezes one set of 19. In the 2020 Regulatory Fee Reform (Mathematically, the year-to-year regulatees’ fees, it would need to Order, we concluded that non-U.S. change in the absolute number of direct increase another set of regulatees’ fees to licensed space stations granted access to FTEs in a core bureau does not by itself make up for any resulting shortfall in a the market in the United States (market determine the share of overall regulatory way that is inconsistent with the access grants) will be included in the FY fees that should be borne by regulatees longstanding methodology described in 2020 GSO and NGSO space station of that bureau, because the bureau’s the FY 2020 NPRM. We accordingly regulatory fees. In the FY 2020 NPRM, allocation percentage also depends on decline to freeze the radio broadcaster we accordingly proposed to collect the overall number of Commission regulatory fees at their FY 2019 levels regulatory fees from most, but not all, direct FTEs, which changes year to and instead adopt the radio broadcaster non-U.S. licensed space stations granted year.) Furthermore, because indirect fees as adjusted in this Report and U.S. market access, and we follow FTEs are proportionately allocated by a Order. through and adopt such fees here.

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20. We disagree with the two proceedings and benefit from benefit from the Commission’s oversight commenters that assert that we do not Commission monitoring and efforts regarding all space and earth have such authority. We will not repeat enforcement activities. We concluded station operations in the U.S. market, the lengthy analysis from the 2020 that the Commission devotes significant since enforcement of Commission rules Regulatory Fee Reform Order here, but resources to processing the growing and policies in connection with all will summarize the issues. number of market access petitions of operators provides a fair and safe 21. The core of our analysis is that we non-U.S. licensed satellites and that environment for all participants in the impose fees on regulatees that reflect the those foreign licensed satellites with U.S. marketplace. Thus, the significant ‘‘benefits provided to the payor of the U.S. market access benefit from much of benefits to non-U.S. licensed satellites fee by the Commission’s activities.’’ the same oversight and regulation by the with U.S. market access support Holders of market access grants clearly Commission as the U.S. licensed including them in the GSO and NGSO benefit from the activities of the satellites. For that reason, we concluded regulatory fee categories for U.S. Commission—and nothing in the that assessing the same regulatory fees licensed space stations. language of the Act suggests Congress on non-U.S. licensed space stations with 27. To the extent some commenters intended to preclude such entities from market access grants as we assess on argue that foreign licensed space the ambit of regulatory fees. We U.S. licensed space stations will better stations do not benefit from Commission conclude that the legislative history of reflect the benefits received by these regulatory activity after the space station the Act posed no bar to assessing operators through the Commission’s is operational, and that compliance with regulatory fees on non-U.S. licensed adjudicatory, enforcement, regulatory, market access conditions are pre- space stations granted U.S. market and international coordination activities operational assessments that occur access via the formal process first and will promote regulatory parity and before the licensee is subject to any adopted by the Commission in 1997. fairness among space station operators regulatory fees, we disagree. Both U.S. 22. The Commission is required by by evenly distributing the regulatory licensed space stations and non-U.S. Congress to assess regulatory fees each cost recovery. licensed space stations often make year in an amount that can reasonably 24. Finally, the non-U.S. licensed changes to their operations after they be expected to equal the amount of its satellite operators argue that they have been brought into service, through appropriation. The Commission’s should not pay the same amount of modification applications or petitions. methodology for assessing regulatory indirect costs as the U.S. licensed Ongoing U.S. licensed and non-U.S. fees must ‘‘reflect the full-time satellite operators because they receive licensed space station operations are equivalent number of employees within fewer benefits from the Commission. subject to, and benefit from, the the bureaus and offices of the They contend that the Commission’s rulemaking and other regulatory Commission, adjusted to take into regulatory activity at international activities described above during the account factors that are reasonably organizations is designed to promote entire service period of the space related to the benefits provided to the and protect the interests of U.S. satellite station. In addition, we do not agree that payor of the fee by the Commission’s operators and that the indirect FTEs the relevant processing costs incurred activities.’’ Our order amply explained across the agency largely support U.S. should only be assessed in the country how requests for market access have telecommunications policy. where the space station is licensed, and become a significant portion of the 25. U.S. licensed satellite operators that assessing fees in the United States applications processed by the disagree and observe that the non-U.S. for the same processing costs would be Commission and that holders of market licensed satellite operators receive the duplicative. Moreover, the access grants regularly participate in same or more benefits from the Commission’s substantial regulatory Commission activities. Thus, such Commission as do U.S. licensed satellite efforts for satellite services benefit non- entities derive many benefits from the operators. They observe that in another U.S. licensed space station operators activities of Commission staff. proceeding the non-U.S. licensed with market access and it would be Additionally, commenters argue that operators in the C-Band Alliance have inequitable to continue charging only non-U.S.-licensed space stations are not stressed the practical similarities U.S. licensees for these benefits to subject to regulatory fees because they between the market access grants and foreign operators. provide ‘‘nonregulated services.’’ The U.S. licensed space stations. SpaceX 28. Commenters also argue that we argument ignores the fact that operators contends that the foreign licensed should exempt or adopt a reduced fee of non-U.S.-licensed space stations operators overlook the tremendous for non-U.S. licensed GSO satellites in granted market access are subject to the benefit of access to the U.S market and certain circumstances. We adopt one of same service rules and operating that the Commission’s regulatory these proposals and reject the others. conditions as those that apply to U.S. activities maximize the value of the Eutelsat argues that U.S. licensed earth licensed operators. market access. stations onboard vessels (ESVs) 23. We also disagree with arguments 26. We find that the non-U.S. licensed operating outside U.S. territorial waters that the proposed regulatory fees for operators are ignoring the fact that the and communicating with foreign non-U.S licensed space stations with Commission devotes significant licensed satellites should not be subject U.S. market access grants are too high resources to processing the growing to regulatory fees. because we set the same regulatory fee number of market access petitions of 29. Eutelsat argues that U.S. licensed for U.S. licensed and non-U.S. licensed foreign licensed satellites and that the earth stations onboard vessels (ESVs) space stations. As we discussed in the foreign licensed satellite operators operating outside U.S. territorial waters FY 2020 NPRM, the number of space benefit from much of the same oversight and communicating with foreign stations seeking U.S. market access has and regulation by the Commission as licensed satellites should not be subject continued to increase each year; in 2019 the U.S. licensed satellites, such as to regulatory fees. These operations are there were more market access petitions processing a petition for market access similar, in regulatory treatment, to those than U.S. space station applications. In requires evaluation of the same legal of earth stations aboard aircraft (ESAAs) addition, as we noted, foreign-licensed and technical information as required of operating outside the United States and space station operators participate U.S. licensed applicants. The operators communicating with non-U.S. licensed actively in Commission rulemaking of non-U.S. licensed space stations also space stations. We agree that the same

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rationale also applies here. Accordingly, Island, and the Northern Mariana with the suggestion to publish a list of non-U.S. licensed space stations that are Islands) be exempt from regulatory fees the space stations and systems in listed as a point of communication on because of the distance from mainland operation that would be subject to ESV licenses are exempt from the United States and the few number of regulatory fees and attach such list in regulatory fee obligations if the ESV potential customers located on these Table 8. license clearly limits U.S. licensed ESV islands. Astranis contends that similar 33. We disagree with commenters that terminals’ access to these non-U.S. considerations apply to other remote object to the proposed fees for NGSO licensed space stations to situations in and underserved areas, such as Alaska, systems as too high for certain NGSOs which these terminals are in foreign Hawaii, and U.S. Caribbean territories. It and contend that the Commission territories and/or international waters argues an exception for these areas should adopt separate fee categories for and the license does not otherwise would allow satellite operators to better distinct types of NGSO systems, that the allow the non-U.S. licensed space meet the Commission’s goal of Commission should apportion the FTEs station access to the U.S. market. affordable, high-speed internet access in based on different types of NGSOs, or 30. Two commenters propose fee those underserved areas, and therefore that we have not established that the exemptions for certain non-U.S. should be exempt from regulatory fees actual benefits provided to NGSO licensed satellite systems based on the for satellites with a service area outside payors are equal. That NGSO systems theory that they are not actually the contiguous United States comprising may differ in size or other providing services in the United States. less than one percent of the U.S. characteristics does not preclude Astranis proposes that foreign licensed population. Telesat disagrees with this grouping them in the same fee category. satellites accessing U.S. gateway/feeder proposal to exempt non-U.S. licensed The Commission groups similar services link earth stations should be exempt satellites from regulatory fees because for regulatory fee purposes, regardless of from regulatory fees, because these these factors would apply equally to the varying regulatory obligations of satellites are not providing commercial U.S. licensed satellites and also to other each entity and without calculating how services to the U.S. market but are just geographic areas. Telesat suggests that if many FTEs are devoted to each obtaining services from the U.S.-based a foreign or U.S. licensed operator individual regulation, because activity earth stations. Astranis argues, the contends that under certain facts it levels and participation in specific provision of gateway or feeder link would be inappropriate to pay proceedings may change from year to services to foreign satellites is a benefit regulatory fees, they should request a year, such as when interconnected to the earth station operators. AWS waiver. We agree with Telesat and reject Voice over internet Protocol (VoIP) proposes that non-U.S. licensed NGSO the argument for exemptions or reduced providers were added to the interstate systems that downlink traffic to U.S. fees based on the U.S. geographic areas telecommunications service providers licensed earth stations, solely for served by the space station. Commenters (ITSP) category. We did not propose immediate transit outside the United have not shown that providing service differential treatment of NGSOs in the States and not intended for U.S. to a remote area would reduce the FY 2020 NPRM, and we do not see customers, should be exempt from International Bureau’s costs or affect the compelling reasons to deviate from our regulatory fees. We disagree with both benefits to the regulatee. traditional assessment methods based proposals. Unlike the limited on the record before us now. exemptions adopted for operations G. Non-Geostationary Orbit Space 34. Some contend that given the broad exclusively outside the United States or Station Regulatory Fees range of NGSO networks serving or for TT&C operations that are directed to 32. In the 2020 Regulatory Fee Reform planning to serve the United States the safe and effective operation of the Order we decided to allocate 80% of market, the Commission should adopt a satellite in orbit, the proposed space station fees to GSO space stations multi-tiered approach based on total exceptions are for services provided in and 20% of space stations fees to NGSO number of satellites deployed and total the United States and involve data space stations based upon the number of transmit bandwidth. SpaceX contends operations unrelated to the safe and applications processed, the that these commenters have not shown effective satellite operations in orbit. rulemakings, and the number of FTEs any meaningful tie between the number These data services could involve working on oversight for each category of satellites in an NGSO system and the significant data exchange traffic in the of operators. In response to the use of Commission resources. We agree United States. Feeder link earth stations proposed GSO and NGSO regulatory that there is not sufficient evidence in are located in the United States and fees in the FY 2020 NRPM, commenters the record to establish different fees for carry data to and from various users. assert that we should adopt separate fee sized NGSO systems. Accordingly, we Further, the direction of the data flow is categories for distinct types of NGSO will seek further comment in future irrelevant in the context of regulatory systems, argue we should phase in the rulemaking. fees. We therefore reject both proposals. NGSO fee increase and not increase by 35. We disagree with commenters 31. Two commenters propose more than 7.5% per year, and question who argue that the proposed increase in exemptions or reduced fees based on the accuracy of our list of non-U.S. NGSO regulatory fees requires us to coverage area. Astranis proposes that we licensed space stations granted market phase in the fee increase over time, and adopt a tiered fee structure based on the access that would be subject to not increase by more than 7.5% per U.S. population with the satellite’s regulatory fees. We find that there is not year. SpaceX argues that the significant coverage area, so that the non-U.S. sufficient evidence in the record to increase in fees for NGSO systems licensed satellite regulatory fee can establish different fees for NGSO justify a 7.5% cap. We disagree. A cap more directly relate to the costs incurred systems at this time and will seek for one fee category would result in an by the Commission and benefits comment on the issue in future increase in the other fee categories. We received by the U.S. and foreign rulemaking. We decline to phase in the are required under section 9 of the Act licensed payors. SES proposes that NGSO fee increase as inconsistent with to adopt fees that ‘‘reflect the full-time foreign licensed satellites whose U.S. section 9 of the Act and adopt the equivalent number of employees within coverage is limited to one or more proposed fees, adjusted to take into the bureaus and offices of the territories in the Pacific Ocean (Guam, account changes to the number of Commission, adjusted to take into American Samoa, Midway Island, Wake assessible satellites. We agree, however, account factors that are reasonably

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related to the benefits provided to the cable facilities. In the 2020 Regulatory 41. This year the International Bureau payor of the fee by the Commission’s Reform Order, we concluded, based on undertook a review of its work, staffing, activities.’’ And given the large amount a review by the International Bureau, and distribution of responsibilities of work the Commission has done on that eight FTEs should be allocated to benefiting its fee payors, between the NGSO systems over the past year, we IBCs for regulatory fee purposes, and 20 Telecommunications and Analysis find the benefits of Commission FTEs to the satellite category. Division and the Satellite Division and oversight for such systems substantial. 39. IBC fees consist of (1) active based on this review, we allocated eight For these reasons, we decline to adopt terrestrial and satellite circuits, and (2) FTEs to the international bearer circuit a phased in approach or a cap in lit submarine cable systems. Prior to category. The Commission found that regulatory fees. 2009, IBC fees were collected based on almost all of the IBC work benefits all 36. Finally, commenters raise issues the number of 64 kbps circuits for each international telecommunications with the accuracy of our list of non-U.S. of the three types of facilities used to service providers no matter what licensed space stations granted market provide international service. In 2009, facilities those services are provided access that would be subject to the Commission changed the over—submarine cable systems, regulatory fees. Eutelsat contends that methodology for assessing IBC fees from terrestrial facilities, or satellites. the Commission erroneously included basing the fee on 64 kbps circuits for all Submarine cable licensees benefit from Eutelsat 172B as both U.S. and foreign types of IBCs to assessing fees for work that includes among others, licensed and it should be removed from submarine cable operators on a per the foreign licensed list. Commenters maintaining the licensing database, cable landing license basis, with higher enforcing benchmarks, coordination propose that the Commission identify fees for larger capacity submarine cable the U.S. licensed and foreign licensed with other U.S. Government agencies, systems and lower fees for smaller including coordinating with other U.S. GSO and NGSO space stations that will capacity submarine cable systems. The be subject to regulatory fees to enable agencies’ undersea activities to protect Commission concluded that this submarine cables, protecting U.S. operators to review the list for accuracy. methodology served the public interest Telesat disagrees and suggests that any customers and consumers from and was competitively neutral because errors can be resolved by discussions anticompetitive actions by foreign it included both common carriers and with individual operators. We agree carriers, licensing international section non-common carriers. Under this with the suggestion to publish list the 214 authorizations and submarine bifurcated approach, based on the 2009 space stations and systems in operation cables including review of transactions, Consensus Proposal from the submarine that would be subject to regulatory fees. and representing U.S. interests at cable operators, 87.6% of IBC fees were We have attached the list of U.S. bilateral and multilateral negotiations assessed to submarine cable systems licensed operators and foreign licensed and at international organizations. The and 12.4% to terrestrial and satellite operators with U.S. market access in Commission’s activities make it possible facilities based on relative capacity at Table 8 and any party identifying an for submarine cable operators and other error should advise Commission staff by the time. The Commission adopted a IBC providers to provide service to their contacting the Financial Operations five-tier structure for assessing fees on customers. Those operators of facilities Help Desk at 877–480–3201, Option 6. submarine cables systems, and a per with larger capacity to carry more data gigabits per second (Gbps) assessment derive a greater benefit from the H. International Bearer Circuit for terrestrial and satellite facilities Commission’s work in this regard. Regulatory Fees based on active circuits. The fee 42. Several commenters retread well- 37. In the FY 2020 NPRM, we sought assessment on submarine cables cover comment on the allocation of IBC fees the costs for regulatory activity trodden ground to object to this and adopting new tiers for the fees. As concerning submarine cables as well as assessment, but we find yet again that discussed below, we find that capacity the services provided over the they have not provided a rationale to is an appropriate measure by which to submarine cables. alter our assessment of fees within the assess IBC fees. We also find that the IBC category based on capacity. 1. Using Capacity To Assess IBC Contrary to the Submarine Cable allocation between submarine cables Regulatory Fees and terrestrial and satellite circuits Coalition’s argument that basing fees on should be changed to reflect the 40. We start by reaffirming that IBC capacity is unlawful, use of capacity is changing distribution of international regulatees with higher capacity receive a fundamental premise of how the capacity as more and larger submarine a greater benefit from the Commission’s Commission assesses regulatory fees. cables are put into service. Hence, we work and should be assessed Licensees with larger facilities benefit do not adopt a unified tier structure at accordingly. The Commission has more from the Commission’s work and this time but will continue to assess fees historically used capacity to assess IBCs. thus should pay a larger proportion of based on active terrestrial and satellite The Commission continued to assess the Commission’s costs—just as we have circuits and on lit capacity of submarine IBC fees on active 64 kbps circuits until found that licensees with more cables. We do, however, adjust the tiers 2009 when it adopted a new fee customers (like MVPD subscribers or for submarine cables. structure that assesses fees on commercial mobile radio service 38. IBC regulatory fees reflect the international submarine cable systems, (CMRS) subscribers) or with more work performed by the International but that new structure still used revenues (such as ITSPs) benefit more Bureau, primarily the capacity of the cable system for from the Commission’s activities. Telecommunications and Analysis determining the fees with smaller CenturyLink states that to the extent Division and the Office of the Bureau submarine cable systems paying a lower that those FTEs working on issues that Chief, for the benefit of all U.S. fee than larger systems. Terrestrial and benefit IBC regulates as a whole, it is international telecommunications satellite facilities continued to have IBC reasonable to use capacity to allocate service providers, and our submarine fees assessed on a 64 kbps circuit the fees among the regulatees. We agree cable licensees. International capacity basis until 2018 when the (as the Commission has long held) that telecommunications service is provided Commission began assessing the fees capacity is a reasonable basis in the over terrestrial, satellite, and submarine based on Gbps. context of IBCs to assess those costs

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among the regulatees that benefit from for a capacity of 4000 Gbps or higher on 49. Based on the comments, we that work. the submarine cable is presumed to decline to adopt the proposed unified 43. We also once again reject have a capacity of 4000 Gbps), the tier structure at this time. Instead, we assertions that only the work of two Commission calculated that the ratio adopt the alternative proposal in the FY FTEs benefits submarine cable between submarine cable and terrestrial 2020 NPRM to maintain our current fee operators. The North American and satellite IBCs is at least 90.8% structure and will continue to assess Submarine Cable Association (NASCA) submarine cable and no more than 9.8% regulatory fees for terrestrial and points to a 2014 order, arguing that the terrestrial and satellite circuits. This satellite IBCs on a per Gbps circuit Commission found that only two FTEs calculation, assuming lit capacity at the basis. We will use a six tier structure for work to the benefit of submarine cable minimum capacity in the tier, fees assessed to submarine cable operators and that should be reflected in substantially undercounts actual lit systems, using lit capacity of the cable the regulatory fees. Although the capacity in these submarine cables system. Commission explained in 2015 that this therefore an upward adjustment of 5% 50. We reject, again, using a flat rate was a misstatement, NASCA continues more closely approximates actual lit for submarine cables. NASCA contends to cite this as part of its arguments. The capacity numbers. The Commission that the industry proposal that the Submarine Cable Coalition similarly concluded that a ratio attributing 95% Commission adopted in 2009 was meant argues that the Commission provides to submarine cables and 5% to to replace capacity-based fees with a flat limited benefits to submarine cable terrestrial and satellite circuits would be fee per submarine cable system. The operators. CenturyLink disagrees and more reasonable than the historic ratio Commission has previously addressed argues the commenters have not and sought comment on this this issue and rejected adopting a flat provided a sound explanation why reallocation. fee for submarine cables. Contrary to using capacity is unreasonable or 47. CenturyLink supports the NASCA’s assertion, the Commission prohibited by section 9. And indeed, we proposal to allocate 95% of IBC fees to never indicated in the Submarine Cable Order that it intended to move to a flat reject NASCA’s and the Submarine submarine cable and 5% to satellite and Cable Coalition’s arguments that fee and indeed it specifically stated that terrestrial IBCs. SIA argues that the submarine cables benefit only from a over time the categories of small and 95%/5% allocation continues to limited number of FTEs as suggested six large systems will change as systems underestimate submarine cable capacity years ago—we conducted an FTE grow in capacity. The Commission and that the allocation should be closer reevaluation prior to setting the FY 2020 updated the tiers in 2018 to reflect the to 98.3%/1.7%, but it does not provide IBC fees and the benefits attributable increasing capacity of submarine cable any support for this proposed submarine cables are reflected in the systems and we do so again this year. allocation. Based on the record, we are proposed fees. 44. We also reject the argument that adopting our proposed reallocation 4. Submarine Cable IBC Regulatory Fees submarine cables do not benefit from between submarine cable and satellite 51. Since FY 2009, when the the Commission’s IBC work because and terrestrial IBCs, as we proposed in Commission established a new most submarine cables operate on a the FY 2020 NPRM. methodology for assessing submarine non-common carriage (or private 3. IBC Regulatory Fee Tiers cable fees, the level of capacity for carriage) basis. Since 2009, the submarine cable systems has increased Commission has assessed regulatory 48. In the FY 2020 NPRM, we also by leaps and bounds. The Commission fees on both common carrier and non- sought comment on combining the has expanded the different tiers to common carrier submarine cable submarine cable and terrestrial and accommodate for this rapid expansion systems, as requested by industry in the satellite IBC categories and assessing in growth. However, the basic Consensus Plan, and because both IBC fees based on a unified fee methodology for calculating submarine benefit from the landing licenses issued structure. Under this proposal, cable fees has not changed since FY by the Commission. We also note that terrestrial and satellite IBC owners 2009. Submarine cable fees are still terrestrial and satellite IBC fees are would pay regulatory fees based on the calculated on the basis of ‘‘1’’ unit, ‘‘.5’’ assessed on both common carrier and number of active international circuits units, ‘‘.25’’ units and so forth. In the FY non-common carrier circuits. Further, using the rates set out in the proposed 2020 NPRM, the proposed basic unit of while a submarine cable may operate on tiers. Submarine cable operators would fees remained at ‘‘1’’ unit, and this ‘‘1’’ a non-common carrier basis, the traffic continue to pay regulatory fees for each unit is at the fee level of $295,000 and carried on the submarine cable includes international submarine cable system at the tier threshold of 3,500–6,500 common carrier traffic. based on the lit capacity of the cable Gbps. The tier threshold at 2,000–3,500 system using the same tiers. Gbps constituted ‘‘.5’’ units ($147,500), 2. Division of IBC Regulatory Fees Commenters generally oppose the while the tier level above 6,500 Gbps 45. In the FY 2020 NPRM, we proposal to unify the two categories and ($590,000), as proposed, was double the proposed to change the allocation of the we decline to adopt it here, arguing that ‘‘1’’ unit fee and constituted ‘‘2’’ units. IBC fees between submarine cable a combined tier structure would The basic methodology for calculating systems and terrestrial and satellite increase IBC fees paid by satellite submarine cable fees had not changed, facilities. Since 2009, 87.6% of IBC fees operators, but obtain no additional just expanded to include a level above have been allocated to submarine cables benefit from this tiered structure. SES ‘‘1’’ unit due to increases in capacity. and 12.4% to terrestrial and satellite and SIA further contend that we should 52. Some commenters argue that facilities. This allocation was adopted in eliminate regulatory fees for satellite calculations underlying this year’s the Submarine Cable Order (74 FR IBCs. They observe that we previously regulatory fees are incorrect. 22104 (May 12, 2009)) and was based on rejected tiers for terrestrial and satellite CenturyLink states that the proposed the relative circuits in 2008. IBCs due to the wide range of numbers fees have calculation errors and will 46. Based on the minimum capacity of circuits among carriers and that tiers result in an overcollection of over $11 for the 2019 rate tiers for regulatory fees could result in large increases in fees, million. NASCA contends that the paid for submarine cables in FY 2019 and so satellite IBCs should continue to wrong denominator was used in the (meaning a licensee that paid the rate pay a fee on the basis of a Gbps circuit. calculation of submarine cable fee—the

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number of licensed cables, 53, should be the lit capacity of their submarine cable of their members’ submarine cable the denominator instead of the number systems to the Commission. In the systems to provide a factual basis for us of payment units. This erroneous absence of such data, the Commission to conclude a higher number of fee calculation would lead to an must rely on estimates based on the payors will be paying at the highest overcollection of $14,128,475. And submarine cable system fee payor’s past level. Taking the new information into AT&T does its own calculations to come certifications that accompany their account and applying the new top tier up with its own tier structure. regulatory fee payments. Both NASCA ratio, we adopt the following submarine 53. Submarine cable system operators and the Submarine Cable Coalition have cable systems regulatory fee tiers: are not currently required to disclose filed data about the current lit capacity

TABLE 2—FY 2020 INTERNATIONAL BEARER CIRCUITS—SUBMARINE CABLE SYSTEMS

FY 2020 Submarine cable systems Fee ratio regulatory (capacity as of December 31, 2019) fees

Less than 50 Gbps ...... 0625 Units ...... $13,450 50 Gbps or greater, but less than 250 Gbps ...... 125 Units ...... 26,875 250 Gbps or greater, but less than 1,500 Gbps ...... 25 Units ...... 53,750 1,500 Gbps or greater, but less than 3,500 Gbps ...... 5 Units ...... 107,500 3,500 Gbps or greater, but less than 6,500 Gbps ...... 1.0 Unit ...... 215,000 6,500 Gbps or greater ...... 2.0 Units ...... 430,000

54. With these adjustments, the new capacity is revenue-generating while those expressly exempt in the statute. fees for submarine cable systems are: ‘‘lit’’ capacity is merely electronically We asked commenters to suggest relief $430,000 for capacities of 6,500 Gbps or enabled capacity and does not equate to measures the Commission might greater; $215,000 for capacities of 3,500 revenue-generating capacity. NASCA implement within the statutory Gbps or greater but less than 6,500 and the Submarine Cable Coalition limitations we described. Gbps; $107,500 for capacities of 1,500 assert that failure to define and 60. All of the comments we received Gbps or greater but less than 3,500 distinguish between ‘‘active’’ and ‘‘lit’’ in response to our request support the Gbps; $53,750 for capacities of 250 Gbps capacity in the FY 2020 NPRM creates provision of regulatory relief to or greater but less than 1,500 Gbps, ambiguities that could lead to regulatees financially harmed by the $26,875 for capacities of 50 Gbps or gamesmanship if regulated parties seek pandemic. The majority of comments greater but less than 250 Gbps; and to lower regulatory fees owed. were filed by or on behalf of $13,450 for capacities less than 50 Gbps. 58. We clarify that submarine cables broadcasters and of those, all oppose 55. These changes reduce the highest will be assessed IBC fees based on ‘‘lit’’ increasing FY 2020 broadcaster tier from $590,000 to $430,000 using a capacity. As the Commission explained regulatory fees, urging the Commission ‘‘2’’ unit fee, the ‘‘1’’ unit fee from in the FY 2019 Report and Order, the to either suspend the fee increases or $295,000 to $215,000, the ‘‘.5’’ unit fee submarine cable IBCs are based on the waive altogether FY 2020 broadcaster from $147,500 to $107,500, the ‘‘.25’’ lit capacity of the submarine cable as of regulatory fees. Commenters also unit fee from $73,750 to $53,750, the December 31 of the previous year, in suggest the Commission waive the 25% ‘‘.125’’ unit fee from $36,875 to $26,875, this case December 31, 2019. The penalty for broadcasters that do not pay and the ‘‘.0625’’ unit fee from $18,450 Commission uses lit capacity ‘‘because their fee by September 30, 2020 and to $13,450. that is the amount of capacity that extend the September 30 deadline. 56. The Submarine Cable Coalition submarine cable operators are able to 61. Several commenters suggest that contends that the high regulatory fees provide services over and the regulatory the Commission relax its standard for impact the competitiveness and fee is in part recovering the costs related waiver requests, including to permit desirability of United States as a landing to the regulation and oversight of such consideration of waiver requests by location, and so operators may elect to services.’’ We believe that the term ‘‘lit parties that are red lighted for other debt obtain licenses in Canada or Mexico, capacity’’ is a well-established industry owed to the Commission and to allow even if a significant portion of the traffic terminology and its use will less likely waiver of the portion of fees attributable on the cable is intended for or would to create any ambiguity that may lead to to any month a station has been off the originate from destinations in the gamesmanship. air. Others suggest simplifying the United States. While we recognize that waiver filing process to be more ‘‘easily regulatory fees are a factor for the I. Flexibility for Regulatory Payors Given navigable and inexpensive’’ for small industry to consider in their business the COVID–19 Pandemic broadcasters in particular, including to plans, we cannot adjust regulatory fees 59. In the FY 2020 NPRM, we sought permit a single letter filing for both based on fees assessed in other comment on providing relief to waiver and deferral requests. Another countries. Instead, we are required by regulatees whose businesses have commenter urges the Commission to section 9 of the Act to base regulatory suffered financial harm due to the modify the financial documentation it fees on the FTEs in the bureaus and pandemic. At the outset, we noted the considers germane to demonstrate offices in the Commission ‘‘adjusted to statutory constraints the Commission financial hardship, to account for take into account factors that are faces in providing relief from fee current circumstances in which reasonably related to the benefits payment—its obligations to collect previously financially healthy provided.’’ $339,000,000 in FY 2020 regulatory fees broadcasters are experiencing 57. Finally, NASCA argues that the and to fairly and proportionately significant financial distress owing to Commission should charge fees based allocate the burden of those fees among the pandemic. on active capacity rather than lit regulatees, and the Commission’s 62. Several commenters support the capacity. NASCA notes that ‘‘active’’ inability to exempt regulatees other than expanded use of the Commission’s

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installment payment program for 67. Fifth, we waive in part our red most in need. Regulatees whose regulatees unable to pay their fees by light rule to allow debtors that are businesses have been hurt by the the September 30 deadline, urging the experiencing financial hardship to pandemic, but not to the extent required Commission to offer installment nonetheless request relief with respect to receive a waiver, reduction, or payment terms of 6–12 months and to their regulatory fees. Under the red deferral, will be eligible to pay their FY beyond, deferred lump sum payments, light rule, the Commission will not act 2020 fees in installments if they show nominal interest rates, no down on any application or request for relief that they cannot pay the fee in lump payment, and simplify the documents if the requesting party has not paid a sum, but can do so with extended required to obtain an installment debt owed to the Commission. In light payment terms. of the pandemic, we find that temporary payment agreement. III. Procedural Matters 63. We take several steps to address waiver of the red light rule, at the the concerns raised by commenters. Managing Director’s discretion, to 71. Included below are procedural First, we simplify our filing permit regulatees that are experiencing items as well as our current payment requirements for waiver, reduction, and financial difficulties and that owe other and collection methods. We include deferral requests for FY 2020 fees to debt to the Commission to request these payments and collection ensure that regulatees needing waivers, reductions, deferrals, and procedures here as a useful way of assistance are not precluded from installment payment terms for FY 2020 reminding regulatory fee payors and the requesting it on procedural grounds. fees is appropriate. However, those public about these aspects of the annual Section 1.1166(a) of the Commission’s regulatees for whom the red light is regulatory fee collection process. 72. Credit Card Transaction Levels. In rules requires requests for waiver, waived will be required to resolve all accordance with Treasury Financial reduction, or deferral to be filed as delinquent debt by paying it in full, Manual, Volume I, Part 5, Chapter 7000, separate pleadings and states that ‘‘any entering into an installment agreement Section 7045—Limitations on Card such request that is not filed as a to repay the debt, and/or if applicable, Collection Transactions, the highest separate pleading will not be considered curing all payment and other defaults amount that can be charged on a credit by the Commission.’’ Given the ongoing under existing installment agreements. card for transactions with Federal pandemic, we temporarily waive this 68. We direct the Managing Director to release one or more public notices agencies is $24,999.99. Transactions rule to permit parties seeking fee waiver greater than $24,999.99 will be rejected. and deferral for financial hardship describing in more detail the enhanced relief we will provide to regulatees This limit applies to single payments or reasons to make a single request for both bundled payments of more than one waiver and deferral. We also whose businesses have been affected by the pandemic, with filing and other bill. Multiple transactions to a single temporarily waive § 1.1166(a) of our agency in one day may be aggregated rules to direct requests to be submitted instructions as needed. 69. Finally, we address the and treated as a single transaction electronically to the following suggestions that would contravene the subject to the $24,999.99 limit. Commission email address: statute or our precedent. We cannot Customers who wish to pay an amount [email protected]. waive FY 2020 fees or the 25% late greater than $24,999.99 should consider 64. Second, we temporarily waive our payment penalty for any group of available electronic alternatives such as rules to the extent necessary so that broadcasters because doing so would Visa or MasterCard debit cards, ACH parties seeking extended payment terms effectively exempt the group, when the debits from a bank account, and wire for FY 2020 regulatory fees may do so statute does not permit such an transfers. Each of these payment options by submitting an email request to the exemption, but instead requires a case- is available after filing regulatory fee same email address: 2020regfeerelief@ by-case determination in order to waive information in Fee Filer. Further details fcc.gov. Installment payment requests a fee or penalty. Similarly, we cannot will be provided regarding payment may be combined with waiver, reduce broadcaster fees except on a methods and procedures at the time of reduction, and deferral requests in a case-by-case basis. And we cannot FY 2019 regulatory fee collection in Fact single request. suspend the FY 2020 fee increases Sheets, https://www.fcc.gov/regfees. 65. Third, we exercise our discretion solely because advertising revenues 73. Payment Methods. Pursuant to an under section 3717(a) of the Debt have dropped. We cannot extend the Office of Management and Budget Collection Improvement Act of 1996, as September 30 deadline, as September 30 (OMB) directive, the Commission is amended, to reduce the interest rate the marks the end of our fiscal year and we moving towards a paperless Commission charges on installments are required to collect FY 2020 fees by environment, extending to disbursement payments to a nominal rate—and we fiscal year end. and collection of select Federal exercise our discretion to forego the 70. We also cannot relax the standard Government payments and receipts. In down payment normally required before we employ for fee waiver, reduction, or 2015, the Commission stopped granting an installment payment deferral based on financial hardship accepting checks (including cashier’s request. grounds. Section 9A of the Act permits checks and money orders) and the 66. Fourth, we recognize that the Commission to waive a regulatory accompanying hardcopy forms (e.g., demonstrating financial hardship fee, penalty or interest for good cause if Forms 159, 159–B, 159–E, 159–W) for caused by the pandemic may require the waiver is in the public interest. the payment of regulatory fees. During different financial documentation than Where financial hardship is the asserted the fee season for collecting regulatory the documentation the Commission has basis for a waiver, the Commission has fees, regulatees can pay their fees by traditionally accepted. While the burden consistently interpreted that to require a credit card through Pay.gov, ACH, debit of proving financial hardship remains showing that the requesting party ‘‘lacks card, or by wire transfer. Additional with the party requesting it, we direct sufficient funds to pay the regulatory payment instructions are posted on the the Managing Director to work with fees and to maintain its service to the Commission’s website at http:// individual regulatees that have filed public.’’ We believe the existing waiver transition.fcc.gov/fees/regfees.html. The requests if additional documents are standard together with the measures receiving bank for all wire payments is needed to render a decision on the described above will work as designed, the U.S. Treasury, New York, NY request. to provide fee relief to those regulatees (TREAS NYC). Any other form of

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payment (e.g., checks, cashier’s checks, transferred or assigned after October 1, have market access after July 15, 2020, or money orders) will be rejected. For 2019, responsibility for payment rests regulatory fees will be assessed, and payments by wire, a Form 159–E should with the holder of the permit or license payment will be required by the due still be transmitted via fax so that the as of the fee due date. date of FY 2020 regulatory fees. Commission can associate the wire • Wireless Services, Multi-year fees: • International Services (Submarine payment with the correct regulatory fee The first eight regulatory fee categories Cable Systems, Terrestrial and Satellite information. The fax should be sent to in our Schedule of Regulatory Fees pay Services): Regulatory fees for submarine the Federal Communications ‘‘small multi-year wireless regulatory cable systems are to be paid on a per Commission at (202) 418–2843 at least fees.’’ Entities pay these regulatory fees cable landing license basis based on lit one hour before initiating the wire in advance for the entire amount period circuit capacity as of December 31, transfer (but on the same business day) covered by the five-year or ten-year 2019. Regulatory fees for terrestrial and so as not to delay crediting their terms of their initial licenses, and pay satellite IBCs are to be paid based on account. Regulatees should discuss regulatory fees again only when the active (used or leased) international arrangements with their bankers several license is renewed, or a new license is bearer circuits as of December 31, 2019 days before they plan to make the wire obtained. We include these fee in any terrestrial or satellite transfer to allow sufficient time for the categories in our rulemaking to transmission facility for the provision of transfer to be initiated and completed publicize our estimates of the number of service to an end user or resale carrier. before the deadline. Complete ‘‘small multi-year wireless’’ licenses When calculating the number of such instructions for making wire payments that will be renewed or newly obtained terrestrial and satellite active circuits, are posted at http://transition.fcc.gov/ in FY 2020. entities must include circuits used by fees/wiretran.html. • Multichannel Video Programming themselves or their affiliates. For these 74. Standard Fee Calculations and Distributor Services (cable television purposes, ‘‘active circuits’’ include Payment Dates.—The Commission will operators, cable television relay service backup and redundant circuits as of accept fee payments made in advance of (CARS) licensees, DBS, and IPTV): December 31, 2019. Whether circuits are the window for the payment of Regulatory fees must be paid for the used specifically for voice or data is not regulatory fees. The responsibility for number of basic cable television relevant for purposes of determining payment of fees by service category is as subscribers as of December 31, 2019. that they are active circuits. In instances follows: Regulatory fees also must be paid for where a permit or license is transferred • Media Services: Regulatory fees CARS licenses that were granted on or or assigned after October 1, 2019, must be paid for initial construction before October 1, 2019. In instances responsibility for payment rests with the permits that were granted on or before where a permit or license is transferred holder of the permit or license as of the October 1, 2019 for AM/FM radio or assigned after October 1, 2019, fee due date. stations, VHF/UHF broadcast television responsibility for payment rests with the 75. Commercial Mobile Radio Service stations, and satellite television stations. holder of the permit or license as of the (CMRS) and Mobile Services Regulatory fees must be paid for all fee due date. For providers of DBS Assessments. The Commission will broadcast facility licenses granted on or service and IPTV-based MVPDs, compile data from the Numbering before October 1, 2019. regulatory fees should be paid based on Resource Utilization Forecast (NRUF) • Wireline (Common Carrier) a subscriber count on or about report that is based on ‘‘assigned’’ Services: Regulatory fees must be paid December 31, 2019. In instances where telephone number (subscriber) counts for authorizations that were granted on a permit or license is transferred or that have been adjusted for porting to or before October 1, 2019. In instances assigned after October 1, 2019, net Type 0 ports (‘‘in’’ and ‘‘out’’). This where a permit or license is transferred responsibility for payment rests with the information of telephone numbers or assigned after October 1, 2019, holder of the permit or license as of the (subscriber count) will be posted on the responsibility for payment rests with the fee due date. Commission’s electronic filing and holder of the permit or license as of the • International Services (Earth payment system (Fee Filer) along with fee due date. Audio bridging service Stations, Space Stations (GSO and the carrier’s Operating Company providers are included in this category. NGSO): Regulatory fees must be paid for Numbers (OCNs). For Responsible Organizations (1) earth stations and (2) geostationary 76. A carrier wishing to revise its (RespOrgs) that manage Toll Free orbit space stations and non- telephone number (subscriber) count Numbers (TFN), regulatory fees should geostationary orbit satellite systems that can do so by accessing Fee Filer and be paid on all working, assigned, and were U.S licensed, or non-U.S. licensed follow the prompts to revise their reserved toll free numbers as well as toll but granted U.S. market access, and telephone number counts. Any revisions free numbers in any other status as operational on or before October 1, to the telephone number counts should defined in § 52.103 of the Commission’s 2019. In instances where a permit or be accompanied by an explanation or rules. The unit count should be based license is transferred or assigned after supporting documentation. The on toll free numbers managed by October 1, 2019, responsibility for Commission will then review the RespOrgs on or about December 31, payment rests with the holder of the revised count and supporting 2019. permit or license as of the fee due date. documentation and either approve or • Wireless Services: CMRS cellular, Æ For FY 2020 only, non-U.S. disapprove the submission in Fee Filer. mobile, and messaging services (fees licensed GSO and NGSO satellites that If the submission is disapproved, the based on number of subscribers or have been granted market access to the Commission will contact the provider to telephone number count): Regulatory U.S. through a Petition for Declaratory afford the provider an opportunity to fees must be paid for authorizations that Ruling (PDR) or through an earth station discuss its revised subscriber count and/ were granted on or before October 1, had until July 15, 2020 to relinquish or provide additional supporting 2019. The number of subscribers, units, their market access status to avoid documentation. If we receive no or telephone numbers on December 31, having to pay FY 2020 regulatory fees in response from the provider, or we do 2019 will be used as the basis from September 2020. If non-U.S. licensed not reverse our initial disapproval of the which to calculate the fee payment. In GSO and NGSO satellites, either provider’s revised count submission, the instances where a permit or license is through a PDR or an earth station, still fee payment must be based on the

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number of subscribers listed initially in penalty and interest charges, the within the time specified may result in Fee Filer. Once the timeframe for Commission will no longer assess revocation of the station license. revision has passed, the telephone administrative costs on delinquent 82. Effective Date. Providing a 30-day number counts are final and are the regulatory fee debts. period after Federal Register basis upon which CMRS regulatory fees 79. The Commission will pursue publication before this Report and Order are to be paid. Providers can view their collection of all past due regulatory fees, becomes effective as normally required final telephone counts online in Fee including penalties and accrued by 5 U.S.C. 553(d) will not allow Filer. A final CMRS assessment letter interest, using collection remedies sufficient time to collect the FY 2020 will not be mailed out. available to it under the Debt Collection fees before FY 2020 ends on September 77. Because some carriers do not file Improvement Act of 1996, its 30, 2020. For this reason, pursuant to 5 the NRUF report, they may not see their implementing regulations and federal U.S.C. 553(d)(3), we find there is good telephone number counts in Fee Filer. common law. These remedies include cause to waive the requirements of In these instances, the carriers should offsetting regulatory fee debt against section 553(d), and this Report and compute their fee payment using the monies owed to the debtor by the Order will become effective upon standard methodology that is currently Commission, and referral of the debt to publication in the Federal Register. in place for CMRS Wireless services the United States Treasury for further Because payments of the regulatory fees (i.e., compute their telephone number collection efforts, including centralized will not actually be due until late counts as of December 31, 2019), and offset against monies other federal September, persons affected by this submit their fee payment accordingly. agencies may owe the debtor. Report and Order will still have a Whether a carrier reviews its telephone reasonable period in which to make number counts in Fee Filer or not, the 80. Failure to timely pay regulatory their payments and thereby comply Commission reserves the right to audit fees, penalties or accrued interest will with the rules established herein. the number of telephone numbers for also subject regulatees to the 83. Paperwork Reduction Act which regulatory fees are paid. In the Commission’s ‘‘red light’’ rule, which Analysis. This document does not event that the Commission determines generally requires the Commission to contain new or modified information that the number of telephone numbers withhold action on and subsequently collection requirements subject to the that are paid is inaccurate, the dismiss applications and other requests Paperwork Reduction Act of 1995 Commission will bill the carrier for the for benefits by any entity owing debt, (PRA), Public Law 104–13. In addition, difference between what was paid and including regulatory fee debt, to the therefore, it does not contain any new what should have been paid. Commission. or modified information collection 78. Enforcement. Regulatory fee 81. In addition to financial penalties, burden for small business concerns with payments must be paid by their due section 9(c)(3) of the Act, and § 1.1164(f) fewer than 25 employees, pursuant to date. Section 9A(c)(1) of the Act of the Commission’s rules grant the the Small Business Paperwork Relief requires the Commission to impose a Commission the authority to revoke Act of 2002, Public Law 107–198, see 44 late payment penalty of 25% of unpaid authorizations for failure to pay U.S.C. 3506(c)(4). regulatory fee debt, to be assessed on the regulatory fees in a timely fashion. 84. Final Regulatory Flexibility first day following the deadline for Should a fee delinquency not be Analysis. As required by the Regulatory payment of the fees. Section 9A(c)(2) of rectified in a timely manner the Flexibility Act of 1980 (RFA) the the Act requires the Commission to Commission may require the licensee to Commission has prepared a Final assess interest at the rate set forth in 31 file with documented evidence within Regulatory Flexibility Analysis (FRFA) U.S.C. 3717 on all unpaid regulatory sixty (60) calendar days that full relating to this Report and Order. The fees, including the 25% penalty, until payment of all outstanding regulatory FRFA is contained in the back of this the debt is paid in full. The RAY fees has been made, plus any associated rulemaking. BAUM’S Act, however, prohibits the penalties as calculated by the Secretary Commission from assessing the of Treasury in accordance with IV. List of Tables administrative costs of collecting § 1.1164(a) of the Commission’s rules, or Regulatory fees for the categories delinquent regulatory fee debt. Thus, show cause why the payment is shaded in gray are collected by the while section 9A(c) of the Act leaves inapplicable or should be waived or Commission in advance to cover the intact those parts of § 1.1940 of the deferred. Failure to provide such term of the license and are submitted at Commission’s rules pertaining to evidence of payment or to show cause the time the application is filed.

TABLE 3—CALCULATION OF FY 2020 REVENUE REQUIREMENTS AND PRO-RATA FEES

Pro-Rated Computed FY 2020 FY 2019 FY 2020 FY 2020 Rounded Expected Fee category payment units Yrs revenue revenue regulatory FY 2020 FY 2020 estimate requirement fee reg. fee revenue

PLMRS (Exclusive Use) ...... 750 10 112,500 187,500 25.00 25 187,500 PLMRS (Shared use) ...... 11,700 10 1,240,000 1,170,000 10.00 10 1,170,000 Microwave ...... 12,600 10 2,500,000 3,150,000 25.00 25 3,150,000 Marine (Ship)...... 7,100 10 1,065,000 1,065,000 15.00 15 1,065,000 Aviation (Aircraft) ...... 5,500 10 450,000 550,000 10.00 10 550,000 Marine (Coast)...... 90 10 24,000 36,000 40.00 40 36,000 Aviation (Ground) ...... 1,100 10 220,000 220,000 20.00 20 220,000 AM Class A 1 ...... 63 1 285,200 296,501 4,706 4,700 296,100 AM Class B 1 ...... 1,458 1 3,541,950 3,678,692 2,523 2,525 3,681,450 AM Class C 1 ...... 819 1 1,266,000 1,317,039 1,608 1,600 1,310,400 AM Class D 1 ...... 1,372 1 4,200,800 4,351,447 3,172 3,175 4,356,100 FM Classes A, B1 & C3 1 ...... 2,973 1 8,823,375 9,156,345 3,080 3,075 9,141,975

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TABLE 3—CALCULATION OF FY 2020 REVENUE REQUIREMENTS AND PRO-RATA FEES—Continued

Pro-Rated Computed FY 2020 FY 2019 FY 2020 FY 2020 Rounded Expected Fee category payment units Yrs revenue revenue regulatory FY 2020 FY 2020 estimate requirement fee reg. fee revenue

FM Classes B, C, C0, C1 & C2 1 ...... 3,146 1 10,833,000 11,216,626 3,565 3,575 11,246,950 AM Construction Permits 2 ...... 6 1 1,785 3,660 610 610 3,660 FM Construction Permits 2 ...... 60 1 67,000 64,500 1,075 1,075 64,500 Digital Television 5 (including Satellite TV) .... 3.25 billion 1 24,294,675 25,473,855 .00783665 .007837 25,473,855 population Digital TV Construction Permits 2 ...... 3 1 13,350 14,850 4,950 4,950 14,850 LPTV/Translators/Boosters/Class A TV ...... 5,340 1 1,621,500 1,684,648 315.5 315 1,682,100 CARS Stations ...... 160 1 202,125 208,683 1,304 1,300 208,000 Cable TV Systems, including IPTV ...... 55,500,000 1 49,020,000 49,207,472 .887 .89 49,395,000 Direct Broadcast Satellite (DBS) ...... 27,800,000 1 18,000,000 20,117,050 .724 .72 20,116,000 Interstate Telecommunication Service Pro- viders ...... $30,700,000,000 1 102,708,000 98,504,384 0.003209 0.00321 98,547,000 Toll Free Numbers ...... 33,000,000 1 3,960,000 3,975,316 0.1205 0.12 3,960,000 CMRS Mobile Services (Cellular/Public Mo- bile) ...... 425,000,000 1 79,990,000 72,127,369 0.1697 0.17 72,250,000 CMRS Messaging Services ...... 1,900,000 1 152,000 152,000 0.0800 0.080 152,000 BRS/ 3 ...... 1,280 1 869,400 716,800 560 560 716,800 LMDS ...... 340 1 96,600 190,400 560 560 190,400 Per Gbps circuit Int’l Bearer Circuits ...... 10,700 1 900,240 436,293 40.8 41 438,700 Terrestrial (Common & Non-Common) & Sat- ellite (Common & Non-Common) Submarine Cable Providers (See chart at bottom of Appendix C) 4 ...... 38.5625 1 6,363,741 8,280,414 214,727 214,725 8,280,333 Earth Stations ...... 3,000 1 1,402,500 1,678,050 559 560 1,680,000 Space Stations (Geostationary) ...... 164 1 15,643,250 16,092,194 98,123.1 98,125 16,092,500 Space Stations (Non-Geostationary) ...... 18 1 1,084,125 4,023,049 223,503 223,500 4,023,000

****** Total Estimated Revenue to be Collected ...... 340,929,616 338,686,759 ...... 338,940,733

****** Total Revenue Requirement ...... 339,000,000 339,000,000 ...... 339,000,000

Difference ...... 1,929,616 (313,241) ...... (59,267) Notes on Table 3 1 The fee amounts listed in the column entitled ‘‘Rounded New FY 2020 Regulatory Fee’’ constitute a weighted average broadcast regulatory fee by class of service. The actual FY 2020 regulatory fees for AM/FM radio station are listed on a grid located at the end of Table 4. 2 The AM and FM Construction Permit revenues and the Digital (VHF/UHF) Construction Permit revenues were adjusted, respectively, to set the regulatory fee to an amount no higher than the lowest licensed fee for that class of service. Reductions in the Digital (VHF/UHF) Construction Permit revenues, and in the AM and FM Construction Permit revenues, were offset by increases in the revenue totals for Digital television sta- tions by market size, and in the AM and FM radio stations by class size and population served, respectively. 3 The MDS/MMDS category was renamed Broadband Radio Service (BRS). See Amendment of Parts 1, 21, 73, 74 and 101 of the Commis- sion’s Rules to Facilitate the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150–2162 and 2500–2690 MHz Bands, Report & Order and Further Notice of Proposed Rulemaking, 69 FR 72020 (Dec. 10, 2004) and 69 FR 72048 (Dec. 10, 2004), 19 FCC Rcd 14165, 14169, para. 6 (2004). 4 The chart at the end of Table 4 lists the submarine cable bearer circuit regulatory fees (common and non-common carrier basis) that resulted from the adoption of the Assessment and Collection of Regulatory Fees for Fiscal Year 2008, Report and Order and Further Notice of Proposed Rulemaking, 73 FR 50201 (Aug. 26, 2008) and 73 FR 50285 (Aug. 26, 2008), 24 FCC Rcd 6388 (2008) and Assessment and Collection of Reg- ulatory Fees for Fiscal Year 2008, Second Report and Order, 74 FR 22104 (May 12, 2009), 24 FCC Rcd 4208 (2009). The Submarine Cable fee in Table 3 is a weighted average of the various fee payers in the chart at the end of Table 4. 5 The actual digital television regulatory fees to be paid by call sign are identified in Table 8.

Regulatory fees for the categories term of the license and are submitted at shaded in gray are collected by the the time the application is filed. Commission in advance to cover the

TABLE 4—FY 2020 REGULATORY FEES

Annual regulatory fee Fee category (U.S. $s)

PLMRS (per license) (Exclusive Use) (47 CFR part 90) ...... 25. Microwave (per license) (47 CFR part 101) ...... 25. Marine (Ship) (per station) (47 CFR part 80) ...... 15. Marine (Coast) (per license) (47 CFR part 80) ...... 40. Rural Radio (47 CFR part 22) (previously listed under the Land Mobile category) ...... 10. PLMRS (Shared Use) (per license) (47 CFR part 90) ...... 10. Aviation (Aircraft) (per station) (47 CFR part 87) ...... 10. Aviation (Ground) (per license) (47 CFR part 87) ...... 20. CMRS Mobile/Cellular Services (per unit) (47 CFR parts 20, 22, 24, 27, 80 and 90) ...... 17.

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TABLE 4—FY 2020 REGULATORY FEES—Continued

Annual regulatory fee Fee category (U.S. $s)

CMRS Messaging Services (per unit) (47 CFR parts 20, 22, 24 and 90) ...... 08. Broadband Radio Service (formerly MMDS/MDS) (per license) (47 CFR part 27) ...... 560. Local Multipoint Distribution Service (per call sign) (47 CFR part 101) ...... 560. AM Radio Construction Permits ...... 610. FM Radio Construction Permits ...... 1,075. AM and FM Broadcast Radio Station Fees ...... See Table Below. Digital TV (47 CFR part 73) VHF and UHF Commercial Fee Factor ...... $.007837, See Appendix G for fee amounts due, also available at https://www.fcc.gov/licensing- databases/fees/regulatory-fees. Digital TV Construction Permits ...... 4,950. Low Power TV, Class A TV, TV/FM Translators & Boosters (47 CFR part 74) ...... 315. CARS (47 CFR part 78) ...... 1,300. Cable Television Systems (per subscriber) (47 CFR part 76), Including IPTV ...... 89. Direct Broadcast Service (DBS) (per subscriber) (as defined by section 602(13) of the Act) ...... 72. Interstate Telecommunication Service Providers (per revenue dollar) ...... 00321. Toll Free (per toll free subscriber) (47 CFR 52.101(f) of the rules) ...... 12. Earth Stations (47 CFR part 25) ...... 560. Space Stations (per operational station in geostationary orbit) (47 CFR part 25) also includes DBS Service 98,125. (per operational station) (47 CFR part 100). Space Stations (per operational system in non-geostationary orbit) (47 CFR part 25) ...... 223,500. International Bearer Circuits—Terrestrial/Satellites (per Gbps circuit) ...... 41. Submarine Cable Landing Licenses Fee (per cable system) ...... See Table Below.

FY 2020 RADIO STATION REGULATORY FEES

FM classes Population served AM class A AM class B AM class C AM class D FM classes A, B, C, C0, C1 B1 & C3 & C2

<=25,000 ...... $975 $700 $610 $670 $1,075 $1,225 25,001–75,000 ...... 1,475 1,050 915 1,000 1,625 1,850 75,001–150,000 ...... 2,200 1,575 1,375 1,500 2,425 2,750 150,001–500,000 ...... 3,300 2,375 2,050 2,275 3,625 4,150 500,001–1,200,000 ...... 4,925 3,550 3,075 3,400 5,450 6,200 1,200,001–3,000,000 ...... 7,400 5,325 4,625 5,100 8,175 9,300 3,000,001–6,000,000 ...... 11,100 7,975 6,950 7,625 12,250 13,950 >6,000,000 ...... 16,675 11,975 10,425 11,450 18,375 20,925

FY 2020 INTERNATIONAL BEARER CIRCUITS—SUBMARINE CABLE SYSTEMS

Submarine cable systems FY 2020 (capacity as of December 31, 2019) Fee ratio regulatory fees

Less than 50 Gbps ...... 0625 Units ...... $13,450 50 Gbps or greater, but less than 250 Gbps ...... 125 Units ...... 26,875 250 Gbps or greater, but less than 1,500 Gbps ...... 25 Units ...... 53,750 1,500 Gbps or greater, but less than 3,500 Gbps ...... 5 Units ...... 107,500 3,500 Gbps or greater, but less than 6,500 Gbps ...... 1.0 Unit ...... 215,000 6,500 Gbps or greater ...... 2.0 Units ...... 430,000

Table 5—Sources of Payment Unit Universal Licensing System (ULS), the term ‘‘units’’ reflect quantities such Estimates for FY 2020 International Bureau Filing System as subscribers, population counts, (IBFS), Consolidated Database System circuit counts, telephone numbers, and In order to calculate individual (CDBS), Licensing and Management revenues. service fees for FY 2020, we adjusted FY System (LMS) and Cable Operations and We sought verification for these 2020 payment units for each service to Licensing System (COALS), as well as estimates from multiple sources and, in more accurately reflect expected FY reports generated within the all cases, we compared FY 2020 2020 payment liabilities. We obtained Commission such as the Wireless estimates with actual FY 2019 payment our updated estimates through a variety Telecommunications Bureau’s units to ensure that our revised of means and sources. For example, we Numbering Resource Utilization estimates were reasonable. Where used Commission licensee data bases, Forecast. Regulatory fee payment units appropriate, we adjusted and/or actual prior year payment records and are not all the same for all fee categories. rounded our final estimates to take into industry and trade association For most fee categories, the term ‘‘units’’ consideration the fact that certain projections, when available. The reflect licenses or permits that have variables that impact on the number of databases we consulted include our been issued, but for other fee categories, payment units cannot yet be estimated

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with sufficient accuracy. These include due to economic, technical, or other exactly the same number as in FY 2019. an unknown number of waivers and/or reasons. When we note, for example, We have either rounded the FY 2019 exemptions that may occur in FY 2020 that our estimated FY 2020 payment number or adjusted it slightly to account and the fact that, in many services, the units are based on FY 2019 actual for these variables. number of actual licensees or station payment units, it does not necessarily operators fluctuates from time to time mean that our FY 2020 projection is

Fee category Sources of payment unit estimates

Land Mobile (All), Microwave, Marine (Ship & Based on Wireless Telecommunications Bureau (WTB) projections of new applications and re- Coast), Aviation (Aircraft & Ground), Domestic newals taking into consideration existing Commission licensee data bases. Aviation (Air- Public Fixed. craft) and Marine (Ship) estimates have been adjusted to take into consideration the licens- ing of portions of these services on a voluntary basis. CMRS Cellular/Mobile Services ...... Based on WTB projection reports, and FY 2019 payment data. CMRS Messaging Services ...... Based on WTB reports, and FY 2019 payment data. AM/FM Radio Stations ...... Based on CDBS data, adjusted for exemptions, and actual FY 2019 payment units. Digital TV Stations (Combined VHF/UHF units) Based on LMS data, fee rate adjusted for exemptions, and population figures are calculated based on individual station parameters. AM/FM/TV Construction Permits ...... Based on CDBS data, adjusted for exemptions, and actual FY 2019 payment units. LPTV, Translators and Boosters, Class A Tele- Based on LMS data, adjusted for exemptions, and actual FY 2019 payment units. vision. BRS (formerly MDS/MMDS)LMDS ...... Based on WTB reports and actual FY 2019 payment units. Based on WTB reports and actual FY 2019 payment units. Cable Television Relay Service (CARS) Stations Based on data from Media Bureau’s COALS database and actual FY 2019 payment units. Cable Television System Subscribers, Including Based on publicly available data sources for estimated subscriber counts and actual FY 2019 IPTV Subscribers. payment units. Interstate Telecommunication Service Providers Based on FCC Form 499–Q data for the four quarters of calendar year 2019, the Wireline Competition Bureau projected the amount of calendar year 2019 revenue that will be re- ported on the 2020 FCC Form 499–A worksheets due in April 2020. Earth Stations ...... Based on International Bureau licensing data and actual FY 2019 payment units. Space Stations (GSOs & NGSOs) ...... Based on International Bureau data reports and actual FY 2019 payment units. International Bearer Circuits ...... Based on International Bureau reports and submissions by licensees, adjusted as necessary, and actual FY 2019 payment units. Submarine Cable Licenses ...... Based on International Bureau license information, and actual FY 2019 payment units.

Table 6—Factors, Measurements, and database representing the information in above mean sea level (HAMSL) was Calculations That Determine Station FCC Figure R3. Using the calculated available, it was used in lieu of the Signal Contours and Associated horizontal radiation values, and the average HAAT figure to calculate Population Coverages retrieved soil conductivity data, the specific HAAT figures for each of 360 distance to the principal community (5 AM Stations radials under study. Any available mV/m) contour was predicted for each directional pattern information was For stations with nondirectional of the 360 radials. The resulting applied as well, to produce a radial- daytime antennas, the theoretical distance to principal community specific ERP figure. The HAAT and ERP radiation was used at all azimuths. For contours were used to form a figures were used in conjunction with stations with directional daytime geographical polygon. Population the Field Strength (50–50) propagation antennas, specific information on each counting was accomplished by day tower, including field ratio, phase, curves specified in 47 CFR 73.313 of the determining which 2010 block centroids Commission’s rules to predict the spacing, and orientation was retrieved, were contained in the polygon. (A block distance to the principal community (70 as well as the theoretical pattern root- centroid is the center point of a small dBu (decibel above 1 microVolt per mean-square of the radiation in all area containing population as computed meter) or 3.17 mV/m) contour for each directions in the horizontal plane (RMS) by the U.S. Census Bureau.) The sum of figure (milliVolt per meter (mV/m) @1 the population figures for all enclosed of the 360 radials. The resulting km) for the antenna system. The blocks represents the total population distance to principal community standard, or augmented standard if for the predicted principal community contours were used to form a pertinent, horizontal plane radiation coverage area. geographical polygon. Population pattern was calculated using techniques counting was accomplished by and methods specified in §§ 73.150 and FM Stations determining which 2010 block centroids 73.152 of the Commission’s rules. The greater of the horizontal or were contained in the polygon. The sum Radiation values were calculated for vertical effective radiated power (ERP) of the population figures for all enclosed each of 360 radials around the (kW) and respective height above blocks represents the total population transmitter site. Next, estimated soil average terrain (HAAT) (m) combination for the predicted principal community conductivity data was retrieved from a was used. Where the antenna height coverage area.

TABLE 7—SATELLITE CHARTS FOR FY 2020 REGULATORY FEES U.S.—Licensed Space Stations

Licensee Call sign Satellite name Type

Astro Digital U.S., Inc ...... S3014 ...... LANDMAPPER–BC ...... NGSO BlackSky Global, LLC ...... S3032 ...... Global 1, 2, 3, & 4 ...... NGSO

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TABLE 7—SATELLITE CHARTS FOR FY 2020 REGULATORY FEES—Continued U.S.—Licensed Space Stations

Licensee Call sign Satellite name Type

DG Consents Sub, Inc ...... S2129 ...... WORLDVIEW–LEGION ...... NGSO DG Consents Sub, Inc ...... S2348 ...... WORLDVIEW–4 ...... NGSO DIRECTV Enterprises, LLC ...... S2922 ...... SKY–B1 ...... GSO DIRECTV Enterprises, LLC ...... S2640 ...... DIRECTV T11 ...... GSO DIRECTV Enterprises, LLC ...... S2711 ...... DIRECTV RB–1 ...... GSO DIRECTV Enterprises, LLC ...... S2869 ...... DIRECTV T14 ...... GSO DIRECTV Enterprises, LLC ...... S2132 ...... DIRECTV T8(K) ...... GSO DIRECTV Enterprises, LLC ...... S2632 ...... DIRECTV T8(D) ...... GSO DIRECTV Enterprises, LLC ...... S2669 ...... DIRECTV T9S ...... GSO DIRECTV Enterprises, LLC ...... S2641 ...... DIRECTV T10 ...... GSO DIRECTV Enterprises, LLC ...... S2796 ...... DIRECTV RB–2A ...... GSO DIRECTV Enterprises, LLC ...... S2797 ...... DIRECTV T12 ...... GSO DIRECTV Enterprises, LLC ...... S2930 ...... DIRECTV T15 ...... GSO DIRECTV Enterprises, LLC ...... S2673 ...... DIRECTV T5 ...... GSO DIRECTV Enterprises, LLC ...... S2455 ...... DIRECTV T7S ...... GSO DIRECTV Enterprises, LLC ...... S2133 ...... SPACEWAY 2 ...... GSO DIRECTV Enterprises, LLC ...... S3039 ...... DIRECTV T16 ...... GSO DISH Operating L.L.C ...... S2931 ...... ECHOSTAR 18 ...... GSO DISH Operating L.L.C ...... S2738 ...... ECHOSTAR 11 ...... GSO DISH Operating L.L.C ...... S2694 ...... ECHOSTAR 10 ...... GSO DISH Operating L.L.C ...... S2740 ...... ECHOSTAR 7 ...... GSO DISH Operating L.L.C ...... S2790 ...... ECHOSTAR 14 ...... GSO EchoStar Satellite Operating Corporation ...... S2811 ...... ECHOSTAR 15 ...... GSO EchoStar Satellite Operating Corporation ...... S2844 ...... ECHOSTAR 16 ...... GSO EchoStar Satellite Operating Corporation ...... S2653 ...... ECHOSTAR 12 ...... GSO EchoStar Satellite Services L.L.C ...... S2179 ...... ECHOSTAR 9 ...... GSO ES 172 LLC ...... S2610 ...... EUTELSAT 174A ...... GSO ES 172 LLC ...... S3021 ...... EUTELSAT 172B ...... GSO Globalstar License LLC ...... S2115 ...... GLOBALSTAR ...... NGSO HawkEye 360, Inc...... S3042 ...... HAWKEYE ...... NGSO Horizon-3 Satellite LLC ...... S2947 ...... HORIZONS–3e ...... GSO Hughes Network Systems, LLC ...... S2663 ...... SPACEWAY 3 ...... GSO Hughes Network Systems, LLC ...... S2834 ...... ECHOSTAR 19 ...... GSO Hughes Network Systems, LLC ...... S2753 ...... ECHOSTAR XVII ...... GSO Intelsat License LLC/ViaSat, Inc ...... S2160 ...... GALAXY 28 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2414 ...... INTELSAT 10–02 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2972 ...... INTELSAT 37e ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2854 ...... NSS–7 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2409 ...... INELSAT 905 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2411 ...... INTELSAT 907 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2405 ...... INTELSAT 901 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2408 ...... INTELSAT 904 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2804 ...... INTELSAT 25 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2407 ...... INTELSAT 903 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2959 ...... INTELSAT 35e ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2237 ...... INTELSAT 11 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2785 ...... INTELSAT 14 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2913 ...... INTELSAT 29E ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2380 ...... INTELSAT 9 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2831 ...... INTELSAT 23 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2915 ...... INTELSAT 34 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2863 ...... INTELSAT 21 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2750 ...... INTELSAT 16 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2715 ...... GALAXY 17 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2154 ...... GALAXY 25 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2253 ...... GALAXY 11 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2381 ...... GALAXY 3C ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2887 ...... INTELSAT 30 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2924 ...... INTELSAT 31 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2647 ...... GALAXY 19 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2687 ...... GALAXY 16 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2733 ...... GALAXY 18 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2385 ...... GALAXY 14 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2386 ...... GALAXY 13 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2422 ...... GALAXY 12 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2387 ...... GALAXY 15 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2704 ...... INTELSAT 5 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2817 ...... INTELSAT 18 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2960 ...... JCSAT–RA ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2850 ...... INTELSAT 19 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2368 ...... INTELSAT 1R ...... GSO

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TABLE 7—SATELLITE CHARTS FOR FY 2020 REGULATORY FEES—Continued U.S.—Licensed Space Stations

Licensee Call sign Satellite name Type

Intelsat License LLC, Debtor-in-Possession ...... S2988 ...... TELKOM–2 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2789 ...... INTELSAT 15 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2423 ...... HORIZONS 2 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2846 ...... INTELSAT 22 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2847 ...... INTELSAT 20 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2948 ...... INTELSAT 36 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2814 ...... INTELSAT 17 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2410 ...... INTELSAT 906 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2406 ...... INTELSAT 902 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2939 ...... INTELSAT 33e ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2382 ...... INTELSAT 10 ...... GSO Intelsat License LLC, Debtor-in-Possession ...... S2751 ...... NEW DAWN ...... GSO Iridium Constellation LLC ...... S2110 ...... IRIDIUM ...... NGSO Leidos, Inc...... S2371 ...... LM–RPS2 ...... GSO Ligado Networks Subsidiary, LLC ...... S2358 ...... SKYTERRA–1 ...... GSO Ligado Networks Subsidiary, LLC ...... AMSC–1 ...... MSAT–2 ...... GSO Novavision Group, Inc ...... S2861 ...... DIRECTV KU–79W ...... GSO ORBCOMM License Corp ...... S2103 ...... ORBCOMM ...... NGSO Planet Labs, Inc ...... S2862 ...... SKYSAT ...... NGSO Planet Labs, Inc ...... S2912 ...... PLANET LABS FLOCK ...... NGSO Satellite CD Radio LLC ...... S2812 ...... FM–6 ...... GSO SES Americom, Inc ...... S2415 ...... NSS–10 ...... GSO SES Americom, Inc ...... S2162 ...... AMC–3 ...... GSO SES Americom, Inc ...... S2347 ...... AMC–6 ...... GSO SES Americom, Inc ...... S2134 ...... AMC–2 ...... GSO SES Americom, Inc ...... S2826 ...... SES–2 ...... GSO SES Americom, Inc ...... S2807 ...... SES–1 ...... GSO SES Americom, Inc ...... S2892 ...... SES–3 ...... GSO SES Americom, Inc ...... S2180 ...... AMC–15 ...... GSO SES Americom, Inc ...... S2445 ...... AMC–1 ...... GSO SES Americom, Inc ...... S2135 ...... AMC–4 ...... GSO SES Americom, Inc ...... S2155 ...... AMC–7 ...... GSO SES Americom, Inc ...... S2713 ...... AMC–18 ...... GSO SES Americom, Inc ...... S2433 ...... AMC–11 ...... GSO SES Americom, Inc./Alascom, Inc ...... S2379 ...... AMC–8 ...... GSO SES Americom, Inc./EchoStar Satellite Services LLC ...... S2181 ...... AMC–16 ...... GSO Sirius XM Radio Inc ...... S2710 ...... FM–5 ...... GSO Skynet Satellite Corporation ...... S2933 ...... TELSTAR 12V ...... GSO Skynet Satellite Corporation ...... S2357 ...... TELSTAR 11N ...... GSO Skynet Satellite Corporation ...... S2462 ...... TELSTAR 12 ...... GSO Space Exploration Holdings, LLC ...... S2983/S3018 ..... SPACEX Ku/Ka-BAND ...... NGSO Spire Global, Inc ...... S2946 ...... LEMUR ...... NGSO ViaSat, Inc ...... S2747 ...... VIASAT–1 ...... GSO XM Radio LLC ...... S2617 ...... XM–3 ...... GSO XM Radio LLC ...... S2786 ...... XM–5 ...... GSO XM Radio LLC ...... S2616 ...... XM–4 ...... GSO

NON-U.S.—LICENSED SPACE STATIONS—MARKET ACCESS THROUGH PETITION FOR DECLARATORY RULING

Licensee Call sign Satellite common name Satellite type

ABS Global Ltd ...... S2987 ...... ABS–3A ...... GSO DBSD Services Ltd ...... S2651 ...... DBSD G1 ...... GSO Empresa Argentina de Soluciones Satelitales S.A ...... S2956 ...... ARSAT–2 ...... GSO European Telecommunications Satellite Organization ...... S2596 ...... Atlantic Bird 2 ...... GSO European Telecommunications Satellite Organization ...... S3031 ...... EUTELSAT 133 WEST A ...... GSO Gamma Acquisition L.L.C ...... S2633 ...... TerreStar 1 ...... GSO Hispamar Sate´lites, S.A ...... S2793 ...... AMAZONAS–2 ...... GSO Hispamar Sate´lites, S.A ...... S2886 ...... AMAZONAS–3 ...... GSO Hispasat, S.A ...... S2969 ...... HISPASAT 30W–6 ...... GSO Horizons-1 Satellite LLC ...... S2970/S3049 ..... HORIZONS–1 ...... GSO Inmarsat PLC ...... S2780 ...... I2F1 ...... GSO Inmarsat PLC ...... S2932 ...... Inmarsat-4 F3 ...... GSO Inmarsat PLC ...... S2949 ...... Inmarsat-3 F5 ...... GSO Intelsat License LLC ...... S2592/S2868 ..... Galaxy 23 ...... GSO Intelsat License LLC ...... S3058 ...... HISPASAT 143W–1 ...... GSO Kepler Communications Inc ...... S2981 ...... KEPLER ...... NGSO New Skies Satellites B.V ...... S2756 ...... NSS–9 ...... GSO New Skies Satellites B.V ...... S2870 ...... SES–6 ...... GSO New Skies Satellites B.V ...... S3048 ...... NSS–6 ...... GSO

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NON-U.S.—LICENSED SPACE STATIONS—MARKET ACCESS THROUGH PETITION FOR DECLARATORY RULING—Continued

Licensee Call sign Satellite common name Satellite type

New Skies Satellites B.V ...... S2463 ...... NSS–7 ...... GSO New Skies Satellites B.V ...... S2828 ...... SES–4 ...... GSO New Skies Satellites B.V ...... S2950 ...... SES–10 ...... GSO O3B Ltd...... S2935 ...... O3B ...... NGSO Satelites Mexicanos, S.A. de C.V ...... S2695 ...... EUTELSAT 113 WEST A ...... GSO Satelites Mexicanos, S.A. de C.V ...... S2926 ...... EUTELSAT 117 WEST B ...... GSO Satelites Mexicanos, S.A. de C.V ...... S2938 ...... EUTELSAT 115 WEST B ...... GSO Satelites Mexicanos, S.A. de C.V ...... S2873 ...... EUTELSAT 117 WEST A ...... GSO SES Satellites (Gibraltar) Ltd ...... S2676 ...... AMC 21 ...... GSO SES Americom, Inc ...... S3037 ...... NSS–11 ...... GSO SES Americom, Inc ...... S2964 ...... SES–11 ...... GSO SES DTH do Brasil Ltda ...... S2974 ...... SES–14 ...... GSO SES Satellites (Gibraltar) Ltd ...... S2951 ...... SES–15 ...... GSO Spire Global, Inc ...... S3045 ...... MINAS ...... NGSO Star One S.A ...... S2677 ...... STAR ONE C1 ...... GSO Star One S.A ...... S2678 ...... STAR ONE C2 ...... GSO Star One S.A ...... S2845 ...... STAR ONE C3 ...... GSO Telesat Brasil Capacidade de Satelites Ltda ...... S2821 ...... ESTRELA DO SUL 2 ...... GSO Telesat Canada ...... S2674 ...... ANIK F1R ...... GSO Telesat Canada ...... S2745 ...... ANIK F1 ...... GSO Telesat Canada ...... S2703 ...... ANIK F3 ...... GSO Telesat Canada ...... S2646/S2472 ..... ANIK F2 ...... GSO Telesat Canada ...... S2976 ...... TELESAT Ku/Ka-BAND ...... NGSO Telesat International Ltd ...... S2955 ...... TELSTAR 19 VANTAGE ...... GSO Viasat, Inc ...... S2902 ...... VIASAT–2 ...... GSO WorldVu Satellites Ltd ...... S2963 ...... ONEWEB ...... NGSO

NON-U.S.—LICENSED SPACE STATIONS—MARKET ACCESS THROUGH EARTH STATION LICENSES

ITU Name (if available) Common name Call sign GSO/NGSO

APSTAR VI ...... APSTAR 6 ...... M292090 ...... GSO AUSSAT B 152E ...... OPTUS D2 ...... M221170 ...... GSO CAN–BSS3 and CAN–BSS ...... ECHOSTAR 23 ...... SM1987 ...... GSO Ciel Satellite Group ...... Ciel–2 ...... E050029 ...... GSO CIEL–6i ...... CIEL–6i ...... E140100 ...... GSO ECHOSTAR 23 ...... ECHOSTAR 23 ...... SM2975 ...... GSO ECHOSTAR 8 (MEX) ...... ECHOSTAR 8 ...... NUS1108 ...... GSO Eutelsat 65 West A ...... Eutelsat 65 West A ...... E160081 ...... GSO EXACTVIEW–1 ...... EXACTVIEW–1 ...... SM2989 ...... NGSO INMARSAT 3F3 ...... INMARSAT 3F3 ...... E000284 ...... GSO INMARSAT 4F1 ...... INMARSAT 4F1 ...... KA25 ...... GSO JCSAT–2B ...... JCSAT–2B ...... M174163 ...... GSO NIMIQ 5 ...... NIMIQ 5 ...... E080107 ...... GSO MSAT–1 ...... MSAT–1 ...... E980179 ...... GSO QUETZSAT–1(MEX) ...... QUETZSAT–1 ...... NUS1101 ...... GSO Superbird C2 ...... Superbird C2 ...... M334100 ...... GSO WILDBLUE–1 ...... WILDBLUE–1 ...... E040213 ...... GSO Yamal 300K ...... Yamal 300K ...... M174162 ...... GSO

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

3246 ...... KAAH–TV ...... 955,391 879,906 $6,896 18285 ...... KAAL ...... 589,502 568,169 4,453 11912 ...... KAAS–TV ...... 220,262 219,922 1,724 56528 ...... KABB ...... 2,474,296 2,456,689 19,253 282 ...... KABC–TV * ...... 17,540,791 16,957,292 132,894 1236 ...... KACV–TV ...... 372,627 372,330 2,918 33261 ...... KADN–TV ...... 877,965 877,965 6,881 8263 ...... KAEF–TV ...... 138,085 122,808 962 2728 ...... KAET ...... 4,217,217 4,184,386 32,793 2767 ...... KAFT ...... 1,204,376 1,122,928 8,800 62442 ...... KAID ...... 711,035 702,721 5,507 4145 ...... KAII–TV ...... 188,810 165,396 1,296 67494 ...... KAIL ...... 1,967,744 1,948,341 15,269 13988 ...... KAIT ...... 861,149 845,812 6,629

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations 59881

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

40517 ...... KAJB ...... 383,886 383,195 3,003 65522 ...... KAKE ...... 803,937 799,254 6,264 804 ...... KAKM ...... 380,240 379,105 2,971 148 ...... KAKW–DT ...... 2,615,956 2,531,813 19,842 51598 ...... KALB–TV ...... 943,307 942,043 7,383 51241 ...... KALO ...... 948,683 844,503 6,618 40820 ...... KAMC ...... 391,526 391,502 3,068 8523 ...... KAMR–TV ...... 366,476 366,335 2,871 65301 ...... KAMU–TV ...... 346,892 342,455 2,684 2506 ...... KAPP ...... 319,797 283,944 2,225 3658 ...... KARD ...... 703,234 700,887 5,493 23079 ...... KARE ...... 3,924,944 3,907,483 30,623 33440 ...... KARK–TV ...... 1,212,038 1,196,196 9,375 37005 ...... KARZ–TV ...... 1,066,386 1,050,270 8,231 32311 ...... KASA–TV ...... 1,161,789 1,119,108 8,770 41212 ...... KASN ...... 1,175,627 1,159,721 9,089 7143 ...... KASW ...... 4,174,437 4,160,497 32,606 55049 ...... KASY–TV ...... 1,144,839 1,099,825 8,619 33471 ...... KATC ...... 1,348,897 1,348,897 10,571 13813 ...... KATN ...... 97,466 97,128 761 21649 ...... KATU ...... 2,978,043 2,845,632 22,301 33543 ...... KATV ...... 1,257,777 1,234,933 9,678 50182 ...... KAUT–TV ...... 1,637,333 1,636,330 12,824 6864 ...... KAUZ–TV ...... 381,671 379,435 2,974 73101 ...... KAVU–TV ...... 320,484 320,363 2,511 49579 ...... KAWB ...... 186,919 186,845 1,464 49578 ...... KAWE ...... 136,033 133,937 1,050 58684 ...... KAYU–TV ...... 809,464 750,766 5,884 29234 ...... KAZA–TV ...... 14,973,535 13,810,130 108,230 17433 ...... KAZD ...... 6,747,915 6,744,517 52,857 1151 ...... KAZQ ...... 1,097,010 1,084,327 8,498 35811 ...... KAZT–TV ...... 436,925 359,273 2,816 4148 ...... KBAK–TV ...... 1,510,400 1,263,910 9,905 16940 ...... KBCA ...... 479,260 479,219 3,756 53586 ...... KBCB ...... 1,256,193 1,223,883 9,592 69619 ...... KBCW ...... 8,020,424 6,962,363 54,564 22685 ...... KBDI–TV * ...... 4,042,177 3,683,394 28,867 56384 ...... KBEH * ...... 17,736,497 17,695,306 138,678 65395 ...... KBFD–DT ...... 953,207 834,341 6,539 169030 ...... KBGS–TV ...... 159,269 156,802 1,229 61068 ...... KBHE–TV ...... 140,860 133,082 1,043 48556 ...... KBIM–TV ...... 205,701 205,647 1,612 29108 ...... KBIN–TV ...... 912,921 911,725 7,145 33658 ...... KBJR–TV ...... 275,585 271,298 2,126 83306 ...... KBLN–TV ...... 297,384 134,927 1,057 63768 ...... KBLR ...... 1,964,979 1,915,859 15,015 53324 ...... KBME–TV ...... 123,571 123,485 968 10150 ...... KBMT ...... 743,009 742,369 5,818 22121 ...... KBMY ...... 119,993 119,908 940 49760 ...... KBOI–TV * ...... 715,191 708,374 5,552 55370 ...... KBRR ...... 149,869 149,868 1,175 66414 ...... KBSD–DT ...... 155,012 154,891 1,214 66415 ...... KBSH–DT ...... 102,781 100,433 787 19593 ...... KBSI ...... 752,366 751,025 5,886 66416 ...... KBSL–DT ...... 49,814 48,483 380 4939 ...... KBSV ...... 1,352,166 1,262,708 9,896 62469 ...... KBTC–TV ...... 3,697,981 3,621,965 28,385 61214 ...... KBTV–TV ...... 734,008 734,008 5,752 6669 ...... KBTX–TV ...... 4,048,516 4,047,275 31,718 35909 ...... KBVO ...... 1,498,015 1,312,360 10,285 58618 ...... KBVU ...... 135,249 120,827 947 6823 ...... KBYU–TV ...... 2,389,548 2,209,060 17,312 33756 ...... KBZK ...... 116,485 106,020 831 21422 ...... KCAL–TV * ...... 17,499,483 16,889,157 132,360 11265 ...... KCAU–TV * ...... 714,315 706,224 5,535 14867 ...... KCBA ...... 3,094,778 2,278,552 17,857 27507 ...... KCBD ...... 414,804 414,091 3,245 9628 ...... KCBS–TV ...... 17,853,152 16,656,778 130,539 49750 ...... KCBY–TV ...... 89,156 73,211 574 33710 ...... KCCI ...... 1,102,130 1,095,326 8,584

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 59882 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

9640 ...... KCCW–TV ...... 284,280 276,935 2,170 63158 ...... KCDO–TV ...... 2,798,103 2,650,225 20,770 62424 ...... KCDT ...... 694,584 638,366 5,003 83913 ...... KCEB ...... 1,163,228 1,159,665 9,088 57219 ...... KCEC ...... 3,874,159 3,654,445 28,640 10245 ...... KCEN–TV ...... 1,795,767 1,757,018 13,770 13058 ...... KCET ...... 16,875,019 15,402,588 120,710 18079 ...... KCFW–TV ...... 148,162 129,122 1,012 132606 ...... KCGE–DT ...... 123,930 123,930 971 60793 ...... KCHF ...... 1,118,671 1,085,205 8,505 33722 ...... KCIT ...... 382,477 381,818 2,992 62468 ...... KCKA ...... 953,680 804,362 6,304 41969 ...... KCLO–TV ...... 138,413 132,157 1,036 47903 ...... KCNC–TV ...... 3,794,400 3,541,089 27,752 71586 ...... KCNS ...... 8,048,427 7,069,903 55,407 33742 ...... KCOP–TV * ...... 17,386,133 16,647,708 130,468 19117 ...... KCOS ...... 1,014,396 1,014,205 7,948 63165 ...... KCOY–TV ...... 664,655 459,468 3,601 86208 ...... KCPM ...... 90,266 90,266 707 33894 ...... KCPQ ...... 4,439,875 4,311,994 33,793 53843 ...... KCPT ...... 2,507,879 2,506,224 19,641 33875 ...... KCRA–TV ...... 10,612,483 6,500,774 50,947 9719 ...... KCRG–TV * ...... 1,136.762 1,107,130 8,677 60728 ...... KCSD–TV ...... 273,553 273,447 2,143 59494 ...... KCSG ...... 174,814 164,765 1,291 33749 ...... KCTS–TV ...... 4,177,824 4,115,603 32,254 41230 ...... KCTV ...... 2,547,456 2,545,645 19,950 58605 ...... KCVU ...... 630,068 616,068 4,828 10036 ...... KCWC–DT ...... 44,216 39,439 309 64444 ...... KCWE ...... 2,460,172 2,458,913 19,271 51502 ...... KCWI–TV ...... 1,043,811 1,042,642 8,171 42008 ...... KCWO–TV ...... 50,707 50,685 397 166511 ...... KCWV ...... 207,398 207,370 1,625 24316 ...... KCWX * ...... 3,961,268 3,954,787 30,994 68713 ...... KCWY–DT ...... 79,948 79,414 622 22201 ...... KDAF ...... 6,648,507 6,645,226 52,079 33764 ...... KDBC–TV ...... 1,015,564 1,015,162 7,956 79258 ...... KDCK ...... 43,088 43,067 338 166332 ...... KDCU–DT ...... 796,251 795,504 6,234 38375 ...... KDEN–TV ...... 3,376,799 3,351,182 26,263 17037 ...... KDFI ...... 6,684,439 6,682,487 52,371 33770 ...... KDFW ...... 6,658,976 6,656,502 52,167 29102 ...... KDIN–TV ...... 1,088,376 1,083,845 8,494 25454 ...... KDKA–TV ...... 3,611,796 3,450,690 27,043 60740 ...... KDKF ...... 71,413 64,567 506 4691 ...... KDLH ...... 263,422 260,394 2,041 41975 ...... KDLO–TV ...... 208,354 208,118 1,631 55379 ...... KDLT–TV ...... 639,284 628,281 4,924 55375 ...... KDLV–TV ...... 96,873 96,620 757 25221 ...... KDMD ...... 374,951 372,727 2,921 78915 ...... KDMI ...... 1,141,990 1,140,939 8,942 56524 ...... KDNL–TV ...... 2,987,219 2,982,311 23,372 24518 ...... KDOC–TV * ...... 17,503,793 16,701,233 130,888 1005 ...... KDOR–TV ...... 1,112,060 1,108,556 8,688 60736 ...... KDRV ...... 519,706 440,002 3,448 61064 ...... KDSD–TV ...... 64,314 59,635 467 53329 ...... KDSE ...... 42,896 41,432 325 56527 ...... KDSM–TV ...... 1,096,220 1,095,478 8,585 49326 ...... KDTN ...... 6,602,327 6,600,186 51,726 83491 ...... KDTP ...... 26,564 24,469 192 33778 ...... KDTV–DT ...... 7,921,124 6,576,672 51,541 67910 ...... KDTX–TV ...... 6,680,738 6,679,424 52,347 126 ...... KDVR ...... 3,430,717 3,394,796 26,605 18084 ...... KECI–TV * ...... 211,745 193,803 1,519 51208 ...... KECY–TV ...... 399,372 394,379 3,091 58408 ...... KEDT ...... 513,683 513,683 4,026 55435 ...... KEET ...... 177,313 159,960 1,254 41983 ...... KELO–TV ...... 705,364 646,126 5,064 34440 ...... KEMO–TV ...... 8,048,427 7,069,903 55,407 2777 ...... KEMV ...... 619,889 559,135 4,382

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations 59883

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

26304 ...... KENS ...... 2,544,094 2,529,382 19,823 63845 ...... KENV–DT ...... 47,220 40,677 319 18338 ...... KENW ...... 87,017 87,017 682 50591 ...... KEPB–TV ...... 576,964 523,655 4,104 56029 ...... KEPR–TV ...... 453,259 433,260 3,395 49324 ...... KERA–TV ...... 6,681,083 6,677,852 52,334 40878 ...... KERO–TV ...... 1,285,357 1,164,979 9,130 61067 ...... KESD–TV ...... 166,018 159,195 1,248 25577 ...... KESQ–TV ...... 1,334,172 572,057 4,483 50205 ...... KETA–TV ...... 1,702,441 1,688,227 13,231 62182 ...... KETC ...... 2,913,924 2,911,313 22,816 37101 ...... KETD ...... 3,098,889 3,058,327 23,968 2768 ...... KETG ...... 426,883 409,511 3,209 12895 ...... KETH–TV ...... 6,088,821 6,088,677 47,717 55643 ...... KETK–TV ...... 1,031,567 1,030,122 8,073 2770 ...... KETS ...... 1,185,111 1,166,796 9,144 53903 ...... KETV ...... 1,355,714 1,350,740 10,586 92872 ...... KETZ ...... 526,890 523,877 4,106 68853 ...... KEYC–TV ...... 544,900 531,079 4,162 33691 ...... KEYE–TV ...... 2,732,257 2,652,529 20,788 60637 ...... KEYT–TV ...... 1,419,564 1,239,577 9,715 83715 ...... KEYU ...... 339,348 339,302 2,659 34406 ...... KEZI ...... 1,113,171 1,065,880 8,353 34412 ...... KFBB–TV ...... 93,519 91,964 721 125 ...... KFCT ...... 795,114 788,747 6,181 51466 ...... KFDA–TV ...... 385,064 383,977 3,009 22589 ...... KFDM ...... 732,665 732,588 5,741 65370 ...... KFDX–TV ...... 381,703 381,318 2,988 49264 ...... KFFV ...... 3,783,380 3,717,323 29,133 12729 ...... KFFX–TV ...... 409,952 403,692 3,164 83992 ...... KFJX ...... 515,708 505,647 3,963 42122 ...... KFMB–TV ...... 3,947,735 3,699,981 28,997 53321 ...... KFME ...... 393,045 392,472 3,076 74256 ...... KFNB ...... 80,382 79,842 626 21613 ...... KFNE ...... 54,988 54,420 426 21612 ...... KFNR ...... 10,988 10,965 86 66222 ...... KFOR–TV ...... 1,616,459 1,615,614 12,662 33716 ...... KFOX–TV ...... 1,023,999 1,018,549 7,982 41517 ...... KFPH–DT ...... 347,579 282,838 2,217 81509 ...... KFPX–TV ...... 963,969 963,846 7,554 31597 ...... KFQX ...... 186,473 163,637 1,282 59013 ...... KFRE–TV ...... 1,721,275 1,705,484 13,366 51429 ...... KFSF–DT ...... 7,348,828 6,528,430 51,163 66469 ...... KFSM–TV ...... 906,728 884,919 6,935 8620 ...... KFSN–TV ...... 1,836,607 1,819,585 14,260 29560 ...... KFTA–TV ...... 818,859 809,173 6,341 83714 ...... KFTC ...... 61,990 61,953 486 60537 ...... KFTH–DT ...... 6,080,688 6,080,373 47,652 60549 ...... KFTR–DT ...... 17,560,679 16,305,726 127,788 61335 ...... KFTS ...... 74,936 65,126 510 81441 ...... KFTU–DT ...... 113,876 109,731 860 34439 ...... KFTV–DT ...... 1,807,731 1,793,418 14,055 36917 ...... KFVE ...... 953,895 851,585 6,674 592 ...... KFVS–TV ...... 810,574 782,713 6,134 29015 ...... KFWD ...... 6,610,836 6,598,496 51,712 35336 ...... KFXA ...... 875,538 874,070 6,850 17625 ...... KFXB–TV ...... 373,280 368,466 2,888 70917 ...... KFXK–TV ...... 934,043 931,791 7,302 84453 ...... KFXL–TV ...... 361,632 361,097 2,830 41427 ...... KFYR–TV ...... 130,881 128,301 1,005 25685 ...... KGAN ...... 1,083,213 1,057,597 8,288 34457 ...... KGBT–TV ...... 1,230,798 1,230,791 9,646 52593 ...... KGBY ...... 270,089 218,544 1,713 7841 ...... KGCW ...... 888,054 886,499 6,947 24485 ...... KGEB ...... 1,186,225 1,150,201 9,014 34459 ...... KGET–TV ...... 917,927 874,332 6,852 53320 ...... KGFE ...... 114,564 114,564 898 7894 ...... KGIN ...... 230,535 228,338 1,789 83945 ...... KGLA–DT ...... 1,645,641 1,645,641 12,897 34445 ...... KGMB ...... 953,398 851,088 6,670

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 59884 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

23302 ...... KGMC ...... 1,824,786 1,803,796 14,136 36914 ...... KGMD–TV ...... 94,323 93,879 736 36920 ...... KGMV ...... 193,564 162,230 1,271 10061 ...... KGNS–TV ...... 267,236 259,548 2,034 34470 ...... KGO–TV ...... 8,283,429 7,623,657 59,747 56034 ...... KGPE ...... 1,699,131 1,682,082 13,182 81694 ...... KGPX–TV ...... 685,626 624,955 4,898 25511 ...... KGTF ...... 161,885 160,568 1,258 40876 ...... KGTV ...... 3,960,667 3,682,219 28,858 36918 ...... KGUN–TV * ...... 1,398,527 1,212,484 9,502 34874 ...... KGW ...... 3,058,216 2,881,387 22,581 63177 ...... KGWC–TV ...... 80,475 80,009 627 63162 ...... KGWL–TV ...... 38,125 38,028 298 63166 ...... KGWN–TV ...... 469,467 440,388 3,451 63170 ...... KGWR–TV ...... 51,315 50,957 399 4146 ...... KHAW–TV ...... 95,204 94,851 743 34846 ...... KHBC–TV ...... 74,884 74,884 587 60353 ...... KHBS ...... 631,770 608,052 4,765 27300 ...... KHCE–TV ...... 2,353,883 2,348,391 18,404 26431 ...... KHET ...... 959,060 944,568 7,403 21160 ...... KHGI–TV ...... 233,973 229,173 1,796 29085 ...... KHIN ...... 1,041,244 1,039,383 8,146 17688 ...... KHME ...... 181,345 179,706 1,408 47670 ...... KHMT ...... 175,601 170,957 1,340 47987 ...... KHNE–TV ...... 203,931 202,944 1,590 34867 ...... KHNL ...... 953,398 851,088 6,670 60354 ...... KHOG–TV ...... 765,360 702,984 5,509 4144 ...... KHON–TV ...... 953,207 886,431 6,947 34529 ...... KHOU * ...... 6,083,336 6,081,785 47,663 4690 ...... KHQA–TV ...... 318,469 316,134 2,478 34537 ...... KHQ–TV ...... 822,371 774,821 6,072 30601 ...... KHRR ...... 1,227,847 1,166,890 9,145 34348 ...... KHSD–TV ...... 188,735 185,202 1,451 24508 ...... KHSL–TV ...... 625,904 608,850 4,772 69677 ...... KHSV * ...... 2,059,794 2,020,045 15,831 64544 ...... KHVO ...... 94,226 93,657 734 23394 ...... KIAH ...... 6,099,694 6,099,297 47,800 34564 ...... KICU–TV ...... 8,233,041 7,174,316 56,225 56028 ...... KIDK ...... 305,509 302,535 2,371 58560 ...... KIDY ...... 116,614 116,596 914 53382 ...... KIEM–TV ...... 174,390 160,801 1,260 66258 ...... KIFI–TV * ...... 324,422 320,118 2,509 10188 ...... KIII ...... 569,864 566,796 4,442 29095 ...... KIIN ...... 1,365,215 1,335,707 10,468 34527 ...... KIKU ...... 953,896 850,963 6,669 63865 ...... KILM ...... 17,256,205 15,804,489 123,860 56033 ...... KIMA–TV ...... 308,604 260,593 2,042 66402 ...... KIMT ...... 654,083 643,384 5,042 67089 ...... KINC ...... 2,002,066 1,920,903 15,054 34847 ...... KING–TV ...... 4,063,674 4,018,832 31,496 51708 ...... KINT–TV ...... 1,015,582 1,015,274 7,957 26249 ...... KION–TV ...... 2,400,317 855,808 6,707 62427 ...... KIPT ...... 171,405 170,455 1,336 66781 ...... KIRO–TV ...... 4,058,846 4,027,262 31,562 62430 ...... KISU–TV ...... 311,827 307,651 2,411 12896 ...... KITU–TV ...... 712,362 712,362 5,583 64548 ...... KITV ...... 953,207 839,906 6,582 59255 ...... KIVI–TV ...... 710,819 702,619 5,506 47285 ...... KIXE–TV * ...... 467,518 428,118 3,355 13792 ...... KJJC–TV ...... 82,749 81,865 642 14000 ...... KJLA ...... 17,929,100 16,794,896 131,622 20015 ...... KJNP–TV ...... 98,403 98,097 769 53315 ...... KJRE ...... 16,187 16,170 127 59439 ...... KJRH–TV ...... 1,416,108 1,397,311 10,951 55364 ...... KJRR ...... 45,515 44,098 346 42640 ...... KJRW ...... 137,375 126,743 993 7675 ...... KJTL ...... 379,594 379,263 2,972 55031 ...... KJTV–TV ...... 406,283 406,260 3,184 13814 ...... KJUD ...... 31,229 30,106 236 36607 ...... KJZZ–TV ...... 2,388,054 2,204,525 17,277

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations 59885

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

83180 ...... KKAI ...... 955,203 941,214 7,376 58267 ...... KKAP ...... 957,786 923,172 7,235 24766 ...... KKCO ...... 206,018 172,628 1,353 35097 ...... KKJB ...... 629,939 624,784 4,896 22644 ...... KKPX–TV ...... 7,902,064 6,849,907 53,683 35037 ...... KKTV ...... 2,795,275 2,293,502 17,974 35042 ...... KLAS–TV ...... 2,094,297 1,940,030 15,204 52907 ...... KLAX–TV ...... 367,212 366,839 2,875 3660 ...... KLBK–TV ...... 387,783 387,743 3,039 65523 ...... KLBY ...... 34,288 34,279 269 38430 ...... KLCS ...... 16,875,019 15,402,588 120,710 77719 ...... KLCW–TV ...... 381,889 381,816 2,992 51479 ...... KLDO–TV ...... 250,832 250,832 1,966 37105 ...... KLEI ...... 175,045 138,087 1,082 56032 ...... KLEW–TV ...... 164,908 148,256 1,162 35059 ...... KLFY–TV ...... 1,355,890 1,355,409 10,622 54011 ...... KLJB ...... 960,055 947,716 7,427 11264 ...... KLKN ...... 932,757 895,101 7,015 47975 ...... KLNE–TV ...... 120,338 120,277 943 38590 ...... KLPA–TV ...... 414,699 414,447 3,248 38588 ...... KLPB–TV ...... 749,053 749,053 5,870 749 ...... KLRN ...... 2,374,472 2,353,440 18,444 11951 ...... KLRT–TV ...... 1,171,678 1,152,541 9,032 8564 ...... KLRU ...... 2,614,658 2,575,518 20,184 8322 ...... KLSR–TV ...... 564,415 508,157 3,982 31114 ...... KLST ...... 199,067 169,551 1,329 24436 ...... KLTJ ...... 6,034,131 6,033,867 47,287 38587 ...... KLTL–TV ...... 423,574 423,574 3,320 38589 ...... KLTM–TV ...... 694,280 688,915 5,399 38591 ...... KLTS–TV ...... 883,661 882,589 6,917 68540 ...... KLTV ...... 1,069,690 1,051,361 8,240 12913 ...... KLUJ–TV ...... 1,195,751 1,195,751 9,371 57220 ...... KLUZ–TV ...... 1,079,718 1,019,302 7,988 11683 ...... KLVX ...... 2,044,150 1,936,083 15,173 82476 ...... KLWB ...... 1,065,748 1,065,748 8,352 40250 ...... KLWY ...... 541,043 538,231 4,218 64551 ...... KMAU ...... 213,060 188,953 1,481 51499 ...... KMAX–TV ...... 10,644,556 6,974,200 54,657 65686 ...... KMBC–TV ...... 2,507,895 2,506,661 19,645 56079 ...... KMBH ...... 1,225,732 1,225,732 9,606 35183 ...... KMCB ...... 69,357 66,203 519 41237 ...... KMCC ...... 2,064,592 2,010,262 15,754 42636 ...... KMCI–TV ...... 2,429,392 2,428,626 19,033 38584 ...... KMCT–TV ...... 267,004 266,880 2,092 22127 ...... KMCY ...... 71,797 71,793 563 162016 ...... KMDE ...... 35,409 35,401 277 26428 ...... KMEB ...... 221,810 203,470 1,595 39665 ...... KMEG ...... 708,748 704,130 5,518 35123 ...... KMEX–DT ...... 17,628,354 16,318,720 127,890 40875 ...... KMGH–TV ...... 3,815,253 3,574,365 28,012 35131 ...... KMID ...... 383,449 383,439 3,005 16749 ...... KMIR–TV ...... 2,760,914 730,764 5,727 63164 ...... KMIZ ...... 550,860 548,402 4,298 53541 ...... KMLM–DT ...... 293,290 293,290 2,299 52046 ...... KMLU ...... 711,951 708,107 5,549 47981 ...... KMNE–TV ...... 47,232 44,189 346 24753 ...... KMOH–TV ...... 199,885 184,283 1,444 4326 ...... KMOS–TV ...... 804,745 803,129 6,294 41425 ...... KMOT ...... 81,517 79,504 623 70034 ...... KMOV ...... 3,035,077 3,029,405 23,741 51488 ...... KMPH–TV ...... 1,725,397 1,697,871 13,306 73701 ...... KMPX ...... 6,678,829 6,674,706 52,310 44052 ...... KMSB ...... 1,321,614 1,039,442 8,146 68883 ...... KMSP–TV ...... 3,832,040 3,805,141 29,821 12525 ...... KMSS–TV ...... 1,068,120 1,066,388 8,357 43095 ...... KMTP–TV ...... 5,097,701 4,378,276 34,313 35189 ...... KMTR ...... 589,948 520,666 4,080 35190 ...... KMTV–TV ...... 1,346,549 1,344,796 10,539 77063 ...... KMTW ...... 761,521 761,516 5,968 35200 ...... KMVT ...... 184,647 176,351 1,382

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 59886 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

32958 ...... KMVU–DT ...... 308,150 231,506 1,814 86534 ...... KMYA–DT ...... 200,764 200,719 1,573 51518 ...... KMYS ...... 2,273,888 2,267,913 17,774 54420 ...... KMYT–TV ...... 1,314,197 1,302,378 10,207 35822 ...... KMYU ...... 133,563 130,198 1,020 993 ...... KNAT–TV ...... 1,157,630 1,124,619 8,814 24749 ...... KNAZ–TV ...... 332,321 227,658 1,784 47906 ...... KNBC ...... 17,859,647 16,555,232 129,743 81464 ...... KNBN ...... 145,493 136,995 1,074 9754 ...... KNCT ...... 2,247,724 2,233,513 17,504 82611 ...... KNDB ...... 118,154 118,122 926 82615 ...... KNDM ...... 72,216 72,209 566 12395 ...... KNDO ...... 314,875 270,892 2,123 12427 ...... KNDU ...... 475,612 462,556 3,625 17683 ...... KNEP ...... 101,389 95,890 751 48003 ...... KNHL ...... 277,777 277,308 2,173 125710 ...... KNIC–DT ...... 2,398,296 2,383,294 18,678 59363 ...... KNIN–TV * ...... 708,289 703,838 5,516 48525 ...... KNLC ...... 2,944,530 2,939,956 23,040 48521 ...... KNLJ ...... 655,000 642,705 5,037 84215 ...... KNMD–TV ...... 1,120,286 1,100,869 8,628 55528 ...... KNME–TV ...... 1,149,036 1,103,695 8,650 47707 ...... KNMT ...... 2,887,142 2,794,995 21,904 48975 ...... KNOE–TV ...... 733,097 729,703 5,719 49273 ...... KNOP–TV ...... 87,904 85,423 669 10228 ...... KNPB ...... 604,614 462,732 3,626 55362 ...... KNRR ...... 25,957 25,931 203 35277 ...... KNSD ...... 3,861,660 3,618,321 28,357 19191 ...... KNSN–TV ...... 611,981 459,485 3,601 58608 ...... KNSO * ...... 1,976,317 1,931,825 15,140 35280 ...... KNTV ...... 8,022,662 7,168,995 56,183 144 ...... KNVA ...... 2,550,225 2,529,184 19,821 33745 ...... KNVN ...... 495,403 464,031 3,637 69692 ...... KNVO ...... 1,241,165 1,241,165 9,727 29557 ...... KNWA–TV ...... 815,678 796,488 6,242 16950 ...... KNXT ...... 2,166,688 2,116,003 16,583 59440 ...... KNXV–TV ...... 4,183,943 4,173,022 32,704 59014 ...... KOAA–TV ...... 1,391,946 1,087,809 8,525 50588 ...... KOAB–TV ...... 207,070 203,371 1,594 50590 ...... KOAC–TV ...... 1,957,282 1,543,401 12,096 58552 ...... KOAM–TV ...... 595,307 584,921 4,584 53928 ...... KOAT–TV * ...... 1,132,372 1,105,116 8,661 35313 ...... KOB ...... 1,152,841 1,113,162 8,724 35321 ...... KOBF ...... 201,911 166,177 1,302 8260 ...... KOBI * ...... 562,463 519,063 4,068 62272 ...... KOBR ...... 211,709 211,551 1,658 50170 ...... KOCB ...... 1,629,783 1,629,152 12,768 4328 ...... KOCE–TV ...... 17,447,903 16,331,792 127,992 84225 ...... KOCM ...... 1,434,325 1,433,605 11,235 12508 ...... KOCO–TV ...... 1,716,569 1,708,085 13,386 83181 ...... KOCW ...... 83,807 83,789 657 18283 ...... KODE–TV ...... 740,156 731,512 5,733 66195 ...... KOED–TV * ...... 1,497,297 1,459,833 11,441 50198 ...... KOET ...... 658,606 637,640 4,997 51189 ...... KOFY–TV ...... 5,097,701 4,378,276 34,313 34859 ...... KOGG ...... 190,829 161,310 1,264 166534 ...... KOHD ...... 201,310 197,662 1,549 35380 ...... KOIN ...... 2,983,136 2,851,968 22,351 35388 ...... KOKH–TV ...... 1,627,116 1,625,246 12,737 11910 ...... KOKI–TV ...... 1,366,220 1,352,227 10,597 48663 ...... KOLD–TV ...... 1,216,228 887,754 6,957 7890 ...... KOLN ...... 1,225,400 1,190,178 9,327 63331 ...... KOLO–TV ...... 959,178 826,985 6,481 28496 ...... KOLR ...... 1,076,144 1,038,613 8,140 21656 ...... KOMO–TV ...... 4,123,984 4,078,485 31,963 65583 ...... KOMU–TV ...... 551,658 542,544 4,252 35396 ...... KONG ...... 4,006,008 3,985,271 31,233 60675 ...... KOOD ...... 113,416 113,285 888 50589 ...... KOPB–TV ...... 3,059,231 2,875,815 22,538 2566 ...... KOPX–TV ...... 1,501,110 1,500,883 11,762

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations 59887

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

64877 ...... KORO ...... 560,983 560,983 4,396 6865 ...... KOSA–TV ...... 340,978 338,070 2,649 34347 ...... KOTA–TV ...... 174,876 152,861 1,198 8284 ...... KOTI ...... 298,175 97,132 761 35434 ...... KOTV–DT ...... 1,417,675 1,403,021 10,995 56550 ...... KOVR ...... 10,759,811 7,100,710 55,648 51101 ...... KOZJ ...... 429,982 427,991 3,354 51102 ...... KOZK ...... 836,532 825,077 6,466 3659 ...... KOZL–TV ...... 992,495 963,281 7,549 35455 ...... KPAX–TV ...... 206,895 193,201 1,514 67868 ...... KPAZ–TV ...... 4,190,080 4,176,323 32,730 6124 ...... KPBS ...... 3,584,237 3,463,189 27,141 50044 ...... KPBT–TV ...... 340,080 340,080 2,665 77452 ...... KPCB–DT ...... 30,861 30,835 242 35460 ...... KPDX ...... 2,970,703 2,848,423 22,323 12524 ...... KPEJ–TV ...... 368,212 368,208 2,886 41223 ...... KPHO–TV ...... 4,195,073 4,175,139 32,721 61551 ...... KPIC ...... 156,687 105,807 829 86205 ...... KPIF ...... 255,766 250,517 1,963 25452 ...... KPIX–TV ...... 8,340,753 7,480,594 58,625 58912 ...... KPJK ...... 7,672,473 6,652,674 52,137 166510 ...... KPJR–TV ...... 3,402,088 3,372,831 26,433 13994 ...... KPLC ...... 1,406,085 1,403,853 11,002 41964 ...... KPLO–TV ...... 55,827 52,765 414 35417 ...... KPLR–TV ...... 2,968,619 2,965,673 23,242 12144 ...... KPMR ...... 1,731,370 1,473,251 11,546 47973 ...... KPNE–TV ...... 92,675 89,021 698 35486 ...... KPNX ...... 4,215,834 4,184,428 32,793 77512 ...... KPNZ ...... 2,394,311 2,208,707 17,310 73998 ...... KPOB–TV ...... 144,525 143,656 1,126 26655 ...... KPPX–TV ...... 4,186,998 4,171,450 32,692 53117 ...... KPRC–TV ...... 6,099,422 6,099,076 47,798 48660 ...... KPRY–TV ...... 42,521 42,426 332 61071 ...... KPSD–TV ...... 19,886 18,799 147 53544 ...... KPTB–DT ...... 322,780 320,646 2,513 81445 ...... KPTF–DT ...... 84,512 84,512 662 77451 ...... KPTH ...... 660,556 655,373 5,136 51491 ...... KPTM ...... 1,414,998 1,414,014 11,082 33345 ...... KPTS ...... 832,000 827,866 6,488 50633 ...... KPTV ...... 2,998,460 2,847,263 22,314 82575 ...... KPTW ...... 80,374 80,012 627 1270 ...... KPVI–DT ...... 271,379 264,204 2,071 58835 ...... KPXB–TV ...... 6,062,472 6,062,271 47,510 68695 ...... KPXC–TV ...... 3,362,518 3,341,951 26,191 68834 ...... KPXD–TV ...... 6,555,157 6,553,373 51,359 33337 ...... KPXE–TV ...... 2,437,178 2,436,024 19,091 5801 ...... KPXG–TV ...... 3,026,219 2,882,598 22,591 81507 ...... KPXJ ...... 1,138,632 1,135,626 8,900 61173 ...... KPXL–TV ...... 2,257,007 2,243,520 17,582 35907 ...... KPXM–TV ...... 3,507,312 3,506,503 27,480 58978 ...... KPXN–TV ...... 17,256,205 15,804,489 123,860 77483 ...... KPXO–TV ...... 953,329 913,341 7,158 21156 ...... KPXR–TV ...... 828,915 821,250 6,436 10242 ...... KQCA ...... 9,931,378 5,931,341 46,484 41430 ...... KQCD–TV ...... 35,623 33,415 262 18287 ...... KQCK ...... 3,220,160 3,162,711 24,786 78322 ...... KQCW–DT ...... 1,128,198 1,123,324 8,803 35525 ...... KQDS–TV ...... 305,747 302,246 2,369 35500 ...... KQED ...... 8,195,398 7,283,828 57,083 35663 ...... KQEH ...... 8,195,398 7,283,828 57,083 8214 ...... KQET ...... 2,981,040 2,076,157 16,271 5471 ...... KQIN ...... 596,371 596,277 4,673 17686 ...... KQME ...... 188,783 184,719 1,448 61063 ...... KQSD–TV ...... 32,526 31,328 246 8378 ...... KQSL * ...... 196,316 133,564 1,047 20427 ...... KQTV ...... 1,494,987 1,401,160 10,981 78921 ...... KQUP ...... 697,016 551,824 4,325 306 ...... KRBC–TV ...... 229,395 229,277 1,797 166319 ...... KRBK ...... 983,888 966,187 7,572 22161 ...... KRCA * ...... 17,540,791 16,957,292 132,894

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 59888 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

57945 ...... KRCB ...... 5,320,127 4,552,911 35,681 41110 ...... KRCG ...... 684,989 662,418 5,191 8291 ...... KRCR–TV * ...... 423,000 402,594 3,155 10192 ...... KRCW–TV ...... 2,966,577 2,842,523 22,277 49134 ...... KRDK–TV ...... 349,941 349,915 2,742 52579 ...... KRDO–TV ...... 2,622,603 2,272,383 17,809 70578 ...... KREG–TV ...... 149,306 95,141 746 34868 ...... KREM ...... 817,619 752,113 5,894 51493 ...... KREN–TV ...... 810,039 681,212 5,339 70596 ...... KREX–TV ...... 145,700 145,606 1,141 70579 ...... KREY–TV ...... 74,963 65,700 515 48589 ...... KREZ–TV ...... 148,079 105,121 824 43328 ...... KRGV–TV ...... 1,247,057 1,247,029 9,773 82698 ...... KRII ...... 133,840 132,912 1,042 29114 ...... KRIN ...... 949,313 923,735 7,239 25559 ...... KRIS–TV ...... 561,825 561,718 4,402 22204 ...... KRIV ...... 6,078,936 6,078,846 47,640 14040 ...... KRMA–TV ...... 3,722,512 3,564,949 27,939 14042 ...... KRMJ ...... 174,094 159,511 1,250 20476 ...... KRMT ...... 2,956,144 2,864,236 22,447 84224 ...... KRMU ...... 85,274 72,499 568 20373 ...... KRMZ ...... 36,293 33,620 263 47971 ...... KRNE–TV ...... 47,473 38,273 300 60307 ...... KRNV–DT ...... 981,687 825,465 6,469 65526 ...... KRON–TV ...... 8,050,508 7,087,419 55,544 53539 ...... KRPV–DT ...... 65,943 65,943 517 48575 ...... KRQE * ...... 1,135,461 1,105,093 8,661 57431 ...... KRSU–TV ...... 1,000,289 998,310 7,824 82613 ...... KRTN–TV ...... 96,062 74,452 583 35567 ...... KRTV ...... 92,687 90,846 712 84157 ...... KRWB–TV ...... 111,538 110,979 870 35585 ...... KRWF ...... 85,596 85,596 671 55516 ...... KRWG–TV ...... 894,492 661,703 5,186 48360 ...... KRXI–TV ...... 725,391 548,865 4,301 307 ...... KSAN–TV ...... 135,063 135,051 1,058 11911 ...... KSAS–TV ...... 752,513 752,504 5,897 53118 ...... KSAT–TV ...... 2,530,706 2,495,317 19,556 35584 ...... KSAX ...... 365,209 365,209 2,862 35587 ...... KSAZ–TV * ...... 4,203,126 4,178,448 32,746 38214 ...... KSBI ...... 1,577,231 1,575,865 12,350 19653 ...... KSBW ...... 5,083,461 4,429,165 34,711 19654 ...... KSBY ...... 535,029 495,562 3,884 82910 ...... KSCC ...... 502,915 502,915 3,941 10202 ...... KSCE ...... 1,015,148 1,010,581 7,920 35608 ...... KSCI ...... 17,447,903 16,331,792 127,992 72348 ...... KSCW–DT ...... 915,691 910,511 7,136 46981 ...... KSDK ...... 2,986,764 2,979,035 23,347 35594 ...... KSEE ...... 1,749,448 1,732,516 13,578 48658 ...... KSFY–TV ...... 670,536 607,844 4,764 17680 ...... KSGW–TV ...... 62,178 57,629 452 59444 ...... KSHB–TV ...... 2,432,205 2,431,273 19,054 73706 ...... KSHV–TV ...... 943,947 942,978 7,390 29096 ...... KSIN–TV ...... 340,143 338,811 2,655 664 ...... KSIX–TV ...... 82,902 73,553 576 35606 ...... KSKN ...... 731,818 643,590 5,044 70482 ...... KSLA ...... 1,009,108 1,008,281 7,902 6359 ...... KSL–TV ...... 2,390,742 2,206,920 17,296 71558 ...... KSMN ...... 320,813 320,808 2,514 33336 ...... KSMO–TV ...... 2,401,201 2,398,686 18,799 28510 ...... KSMQ–TV ...... 524,391 507,983 3,981 35611 ...... KSMS–TV ...... 1,589,263 882,948 6,920 21161 ...... KSNB–TV ...... 658,560 656,650 5,146 72359 ...... KSNC ...... 174,135 173,744 1,362 67766 ...... KSNF ...... 621,919 617,868 4,842 72361 ...... KSNG ...... 145,058 144,822 1,135 72362 ...... KSNK ...... 48,715 45,414 356 67335 ...... KSNT ...... 622,818 594,604 4,660 10179 ...... KSNV ...... 1,967,781 1,919,296 15,042 72358 ...... KSNW ...... 789,136 788,882 6,182 61956 ...... KSPS–TV * ...... 819,101 769,852 6,033

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations 59889

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

52953 ...... KSPX–TV ...... 6,745,180 4,966,590 38,923 166546 ...... KSQA ...... 382,328 374,290 2,933 53313 ...... KSRE ...... 75,181 75,181 589 35843 ...... KSTC–TV ...... 3,843,788 3,835,674 30,060 63182 ...... KSTF ...... 51,317 51,122 401 28010 ...... KSTP–TV ...... 3,788,898 3,782,053 29,640 60534 ...... KSTR–DT ...... 6,617,736 6,615,573 51,846 64987 ...... KSTS ...... 7,645,340 6,333,303 49,634 22215 ...... KSTU ...... 2,384,996 2,201,716 17,255 23428 ...... KSTW ...... 4,265,956 4,186,266 32,808 5243 ...... KSVI ...... 175,390 173,667 1,361 58827 ...... KSWB–TV ...... 3,677,190 3,488,655 27,341 60683 ...... KSWK ...... 79,012 78,784 617 35645 ...... KSWO–TV ...... 483,132 458,057 3,590 74449 ...... KSWT ...... 398,681 393,135 3,081 61350 ...... KSYS ...... 519,209 443,204 3,473 59988 ...... KTAB–TV ...... 270,967 268,579 2,105 999 ...... KTAJ–TV ...... 2,343,843 2,343,227 18,364 35648 ...... KTAL–TV ...... 1,094,332 1,092,958 8,566 12930 ...... KTAS ...... 471,882 464,149 3,638 81458 ...... KTAZ ...... 4,182,503 4,160,481 32,606 35649 ...... KTBC ...... 3,242,215 2,956,614 23,171 67884 ...... KTBN–TV ...... 17,795,677 16,510,302 129,391 67999 ...... KTBO–TV ...... 1,585,283 1,583,664 12,411 35652 ...... KTBS–TV ...... 1,163,228 1,159,665 9,088 28324 ...... KTBU ...... 6,035,927 6,035,725 47,302 67950 ...... KTBW–TV ...... 4,202,104 4,113,420 32,237 35655 ...... KTBY ...... 348,080 346,562 2,716 68594 ...... KTCA–TV ...... 3,693,877 3,684,081 28,872 68597 ...... KTCI–TV ...... 3,606,606 3,597,183 28,191 35187 ...... KTCW ...... 100,392 83,777 657 36916 ...... KTDO ...... 1,015,336 1,010,771 7,921 2769 ...... KTEJ ...... 419,750 417,368 3,271 83707 ...... KTEL–TV ...... 53,423 53,414 419 35666 ...... KTEN ...... 566,422 564,096 4,421 24514 ...... KTFD–TV ...... 3,210,669 3,172,543 24,863 35512 ...... KTFF–DT ...... 2,225,169 2,203,398 17,268 20871 ...... KTFK–DT ...... 6,969,307 5,211,719 40,844 68753 ...... KTFN ...... 1,017,335 1,013,157 7,940 35084 ...... KTFQ–TV ...... 1,151,433 1,117,061 8,754 29232 ...... KTGM ...... 159,358 159,091 1,247 2787 ...... KTHV * ...... 1,275,062 1,246,348 9,768 29100 ...... KTIN ...... 281,096 279,385 2,190 66170 ...... KTIV ...... 751,089 746,274 5,849 49397 ...... KTKA–TV ...... 567,958 566,406 4,439 35670 ...... KTLA ...... 18,156,910 16,870,262 132,212 62354 ...... KTLM ...... 1,014,202 1,014,186 7,948 49153 ...... KTLN–TV ...... 5,209,087 4,490,249 35,190 64984 ...... KTMD ...... 6,095,741 6,095,606 47,771 14675 ...... KTMF ...... 187,251 168,526 1,321 10177 ...... KTMW ...... 2,261,671 2,144,791 16,809 21533 ...... KTNC–TV ...... 8,048,427 7,069,903 55,407 47996 ...... KTNE–TV ...... 100,341 95,324 747 60519 ...... KTNL–TV ...... 8,642 8,642 68 74100 ...... KTNV–TV ...... 2,094,506 1,936,752 15,178 71023 ...... KTNW ...... 450,926 432,398 3,389 8651 ...... KTOO–TV ...... 31,269 31,176 244 7078 ...... KTPX–TV ...... 1,066,196 1,063,754 8,337 68541 ...... KTRE ...... 441,879 421,406 3,303 35675 ...... KTRK–TV ...... 6,114,259 6,112,870 47,907 28230 ...... KTRV–TV ...... 714,833 707,557 5,545 69170 ...... KTSC ...... 3,124,536 2,949,795 23,118 61066 ...... KTSD–TV ...... 83,645 82,828 649 37511 ...... KTSF ...... 7,921,124 6,576,672 51,541 67760 ...... KTSM–TV ...... 1,015,348 1,011,264 7,925 35678 ...... KTTC ...... 815,213 731,919 5,736 28501 ...... KTTM ...... 76,133 73,664 577 11908 ...... KTTU ...... 1,324,801 1,060,613 8,312 22208 ...... KTTV * ...... 17,380,551 16,693,085 130,824 28521 ...... KTTW ...... 329,557 326,309 2,557

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 59890 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

65355 ...... KTTZ–TV ...... 380,240 380,225 2,980 35685 ...... KTUL ...... 1,416,959 1,388,183 10,879 10173 ...... KTUU–TV ...... 380,240 379,047 2,971 77480 ...... KTUZ–TV ...... 1,668,531 1,666,026 13,057 49632 ...... KTVA ...... 342,517 342,300 2,683 34858 ...... KTVB * ...... 714,865 707,882 5,548 31437 ...... KTVC ...... 137,239 100,204 785 68581 ...... KTVD ...... 3,800,970 3,547,607 27,803 35692 ...... KTVE ...... 641,139 640,201 5,017 49621 ...... KTVF ...... 98,068 97,929 767 5290 ...... KTVH–DT ...... 228,832 184,264 1,444 35693 ...... KTVI ...... 2,979,889 2,976,494 23,327 40993 ...... KTVK ...... 4,184,825 4,173,024 32,704 22570 ...... KTVL ...... 415,327 358,979 2,813 18066 ...... KTVM–TV * ...... 260,105 217,694 1,706 59139 ...... KTVN * ...... 955,490 800,420 6,273 21251 ...... KTVO ...... 148,780 148,647 1,165 35694 ...... KTVQ ...... 179,797 173,271 1,358 50592 ...... KTVR ...... 147,808 54,480 427 23422 ...... KTVT ...... 6,912,366 6,908,715 54,144 35703 ...... KTVU ...... 7,913,996 6,825,643 53,493 35705 ...... KTVW–DT ...... 4,173,111 4,159,807 32,600 68889 ...... KTVX ...... 2,389,392 2,200,520 17,245 55907 ...... KTVZ ...... 201,828 198,558 1,556 18286 ...... KTWO–TV ...... 80,426 79,905 626 70938 ...... KTWU ...... 1,703,798 1,562,305 12,244 51517 ...... KTXA ...... 6,876,811 6,873,221 53,865 42359 ...... KTXD–TV ...... 6,706,651 6,704,781 52,545 51569 ...... KTXH ...... 6,092,710 6,092,525 47,747 10205 ...... KTXL ...... 7,355,088 5,411,484 42,410 308 ...... KTXS–TV ...... 247,603 246,760 1,934 69315 ...... KUAC–TV ...... 98,717 98,189 770 51233 ...... KUAM–TV ...... 159,358 159,358 1,249 2722 ...... KUAS–TV ...... 994,802 977,391 7,660 2731 ...... KUAT–TV ...... 1,485,024 1,253,342 9,822 60520 ...... KUBD ...... 14,817 13,363 105 70492 ...... KUBE–TV ...... 6,090,970 6,090,817 47,734 1136 ...... KUCW ...... 2,388,889 2,199,787 17,240 69396 ...... KUED ...... 2,388,995 2,203,093 17,266 69582 ...... KUEN ...... 2,364,481 2,184,483 17,120 82576 ...... KUES ...... 30,925 25,978 204 82585 ...... KUEW ...... 132,168 120,411 944 66611 ...... KUFM–TV ...... 187,680 166,697 1,306 169028 ...... KUGF–TV ...... 86,622 85,986 674 68717 ...... KUHM–TV ...... 154,836 145,241 1,138 69269 ...... KUHT * ...... 6,090,213 6,089,665 47,725 62382 ...... KUID–TV ...... 432,855 284,023 2,226 169027 ...... KUKL–TV ...... 124,505 115,844 908 35724 ...... KULR–TV ...... 177,242 170,142 1,333 41429 ...... KUMV–TV ...... 41,607 41,224 323 81447 ...... KUNP ...... 130,559 43,472 341 4624 ...... KUNS–TV ...... 4,023,436 4,002,433 31,367 86532 ...... KUOK ...... 28,974 28,945 227 66589 ...... KUON–TV ...... 1,375,257 1,360,005 10,658 86263 ...... KUPB ...... 318,914 318,914 2,499 65535 ...... KUPK ...... 149,642 148,180 1,161 27431 ...... KUPT ...... 87,602 87,602 687 89714 ...... KUPU ...... 956,178 948,005 7,430 57884 ...... KUPX–TV ...... 2,374,672 2,191,229 17,173 23074 ...... KUSA ...... 3,803,461 3,561,587 27,912 61072 ...... KUSD–TV ...... 460,480 460,277 3,607 10238 ...... KUSI–TV ...... 3,572,818 3,435,670 26,925 43567 ...... KUSM–TV ...... 115,864 106,398 834 69694 ...... KUTF ...... 1,210,774 1,031,870 8,087 81451 ...... KUTH–DT ...... 2,219,788 2,027,174 15,887 68886 ...... KUTP ...... 4,191,015 4,176,014 32,727 35823 ...... KUTV ...... 2,388,211 2,192,182 17,180 63927 ...... KUVE–DT ...... 1,294,971 964,396 7,558 7700 ...... KUVI–DT ...... 1,204,490 1,009,943 7,915 35841 ...... KUVN–DT ...... 6,680,126 6,678,157 52,337

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations 59891

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

58609 ...... KUVS–DT ...... 4,043,413 4,005,657 31,392 49766 ...... KVAL–TV ...... 1,016,673 866,173 6,788 32621 ...... KVAW ...... 76,153 76,153 597 58795 ...... KVCR–DT * ...... 18,215,524 17,467,140 136,890 35846 ...... KVCT ...... 288,221 287,446 2,253 10195 ...... KVCW ...... 1,967,550 1,918,811 15,038 64969 ...... KVDA ...... 2,400,582 2,391,810 18,745 19783 ...... KVEA ...... 17,423,429 16,146,250 126,538 12523 ...... KVEO–TV ...... 1,244,504 1,244,504 9,753 2495 ...... KVEW ...... 476,720 464,347 3,639 35852 ...... KVHP ...... 747,917 747,837 5,861 49832 ...... KVIA–TV ...... 1,015,350 1,011,266 7,925 35855 ...... KVIE * ...... 10,759,440 7,467,369 58,522 40450 ...... KVIH–TV ...... 91,912 91,564 718 40446 ...... KVII–TV ...... 379,042 378,218 2,964 61961 ...... KVLY–TV ...... 350,732 350,449 2,746 16729 ...... KVMD ...... 6,145,526 4,116,524 32,261 83825 ...... KVME–TV ...... 26,711 22,802 179 25735 ...... KVOA ...... 1,317,956 1,030,404 8,075 35862 ...... KVOS–TV ...... 2,019,168 1,954,667 15,319 69733 ...... KVPT ...... 1,744,349 1,719,318 13,474 55372 ...... KVRR ...... 356,645 356,645 2,795 166331 ...... KVSN–DT ...... 2,706,244 2,283,409 17,895 608 ...... KVTH–DT ...... 303,755 299,230 2,345 2784 ...... KVTJ–DT ...... 1,466,426 1,465,802 11,487 607 ...... KVTN–DT ...... 936,328 925,884 7,256 35867 ...... KVUE ...... 2,661,290 2,611,314 20,465 78910 ...... KVUI ...... 257,964 251,872 1,974 35870 ...... KVVU–TV ...... 2,042,029 1,935,466 15,168 36170 ...... KVYE ...... 396,495 392,498 3,076 35095 ...... KWBA–TV ...... 1,129,524 1,073,029 8,409 78314 ...... KWBM ...... 657,822 639,560 5,012 27425 ...... KWBN ...... 953,207 840,455 6,587 76268 ...... KWBQ ...... 1,148,810 1,105,600 8,665 66413 ...... KWCH–DT ...... 883,647 881,674 6,910 71549 ...... KWCM–TV ...... 252,284 244,033 1,912 35419 ...... KWDK ...... 4,196,263 4,118,699 32,278 42007 ...... KWES–TV ...... 424,862 423,544 3,319 50194 ...... KWET ...... 127,976 112,750 884 35881 ...... KWEX–DT ...... 2,376,463 2,370,469 18,577 35883 ...... KWGN–TV ...... 3,706,495 3,513,577 27,536 37099 ...... KWHB ...... 979,393 978,719 7,670 37103 ...... KWHD ...... 97,959 94,560 741 36846 ...... KWHE ...... 952,966 834,341 6,539 26231 ...... KWHY–TV * ...... 17,736,497 17,695,306 138,678 35096 ...... KWKB ...... 1,121,676 1,111,629 8,712 162115 ...... KWKS ...... 39,708 39,323 308 12522 ...... KWKT–TV ...... 1,010,550 1,010,236 7,917 21162 ...... KWNB–TV ...... 91,093 89,332 700 67347 ...... KWOG ...... 512,412 505,049 3,958 56852 ...... KWPX–TV ...... 4,220,008 4,148,577 32,512 6885 ...... KWQC–TV ...... 1,080,156 1,067,249 8,364 29121 ...... KWSD ...... 280,675 280,672 2,200 53318 ...... KWSE ...... 54,471 53,400 418 71024 ...... KWSU–TV ...... 725,554 468,295 3,670 25382 ...... KWTV–DT ...... 1,628,106 1,627,198 12,752 35903 ...... KWTX–TV ...... 2,071,023 1,972,365 15,457 593 ...... KWWL * ...... 1,089,498 1,078,458 8,452 84410 ...... KWWT ...... 293,291 293,291 2,299 14674 ...... KWYB ...... 86,495 69,598 545 10032 ...... KWYP–DT ...... 128,874 126,992 995 35920 ...... KXAN–TV ...... 2,678,666 2,624,648 20,569 49330 ...... KXAS–TV ...... 6,774,295 6,771,827 53,071 24287 ...... KXGN–TV ...... 14,217 13,883 109 35954 ...... KXII ...... 2,323,974 2,264,951 17,750 55083 ...... KXLA ...... 17,929,100 16,794,896 131,622 35959 ...... KXLF–TV ...... 258,100 217,808 1,707 53847 ...... KXLN–DT ...... 6,085,891 6,085,712 47,694 35906 ...... KXLT–TV ...... 348,025 347,296 2,722 61978 ...... KXLY–TV * ...... 772,116 740,960 5,807

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 59892 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

55684 ...... KXMA–TV ...... 32,005 31,909 250 55686 ...... KXMB–TV ...... 142,755 138,506 1,085 55685 ...... KXMC–TV ...... 97,569 89,483 701 55683 ...... KXMD–TV ...... 37,962 37,917 297 47995 ...... KXNE–TV ...... 300,021 298,839 2,342 81593 ...... KXNW ...... 602,168 597,747 4,685 35991 ...... KXRM–TV ...... 1,843,363 1,500,689 11,761 1255 ...... KXTF ...... 121,558 121,383 951 25048 ...... KXTV ...... 10,759,864 7,477,140 58,598 35994 ...... KXTX–TV ...... 6,721,578 6,718,616 52,654 62293 ...... KXVA ...... 185,478 185,276 1,452 23277 ...... KXVO ...... 1,404,703 1,403,380 10,998 9781 ...... KXXV ...... 1,771,620 1,748,287 13,701 31870 ...... KYAZ ...... 6,038,257 6,038,071 47,320 21488 ...... KYES–TV ...... 381,413 380,355 2,981 29086 ...... KYIN ...... 581,748 574,691 4,504 60384 ...... KYLE–TV ...... 324,032 324,025 2,539 33639 ...... KYMA–DT ...... 396,278 391,619 3,069 47974 ...... KYNE–TV ...... 929,406 929,242 7,282 53820 ...... KYOU–TV ...... 651,334 640,935 5,023 36003 ...... KYTV ...... 1,095,904 1,083,524 8,492 55644 ...... KYTX ...... 927,327 925,550 7,254 13815 ...... KYUR ...... 379,943 379,027 2,970 5237 ...... KYUS–TV ...... 12,496 12,356 97 33752 ...... KYVE ...... 301,951 259,559 2,034 55762 ...... KYVV–TV ...... 67,201 67,201 527 25453 ...... KYW–TV ...... 11,061,941 10,876,511 85,239 69531 ...... KZJL ...... 6,037,458 6,037,272 47,314 69571 ...... KZJO ...... 4,179,154 4,124,424 32,323 61062 ...... KZSD–TV ...... 41,207 35,825 281 33079 ...... KZTV ...... 567,635 564,464 4,424 57292 ...... WAAY–TV ...... 1,498,006 1,428,197 11,193 1328 ...... WABC–TV * ...... 20,948,273 20,560,001 161,129 43203 ...... WABG–TV ...... 393,020 392,348 3,075 17005 ...... WABI–TV ...... 530,773 510,729 4,003 16820 ...... WABM ...... 1,703,202 1,675,700 13,132 23917 ...... WABW–TV ...... 1,097,560 1,096,376 8,592 19199 ...... WACH ...... 1,317,429 1,316,792 10,320 189358 ...... WACP ...... 9,415,263 9,301,049 72,892 23930 ...... WACS–TV ...... 621,686 616,443 4,831 60018 ...... WACX ...... 3,967,118 3,966,535 31,086 361 ...... WACY–TV ...... 946,580 946,071 7,414 455 ...... WADL ...... 4,610,514 4,602,962 36,073 589 ...... WAFB ...... 1,857,882 1,857,418 14,557 591 ...... WAFF ...... 1,197,068 1,110,122 8,700 70689 ...... WAGA–TV ...... 6,000,355 5,923,191 46,420 48305 ...... WAGM–TV ...... 64,721 63,331 496 37809 ...... WAGV ...... 1,193,158 1,060,935 8,315 706 ...... WAIQ ...... 611,733 609,794 4,779 701 ...... WAKA ...... 799,637 793,645 6,220 4143 ...... WALA–TV ...... 1,320,419 1,318,127 10,330 70713 ...... WALB ...... 773,899 772,467 6,054 60536 ...... WAMI–DT ...... 5,449,193 5,449,193 42,705 70852 ...... WAND ...... 1,400,271 1,398,521 10,960 39270 ...... WANE–TV ...... 1,108,844 1,108,844 8,690 52280 ...... WAOE ...... 613,812 613,784 4,810 64546 ...... WAOW ...... 636,957 629,068 4,930 52073 ...... WAPA–TV ...... 3,764,742 3,363,102 21,902 49712 ...... WAPT ...... 793,621 791,620 6,204 67792 ...... WAQP ...... 1,992,340 1,983,143 15,542 13206 ...... WATC–DT ...... 5,637,070 5,616,513 44,017 71082 ...... WATE–TV ...... 1,874,433 1,638,059 12,837 22819 ...... WATL ...... 5,882,837 5,819,099 45,604 20287 ...... WATM–TV ...... 937,438 785,510 6,156 11907 ...... WATN–TV ...... 1,787,595 1,784,560 13,986 13989 ...... WAVE ...... 1,846,212 1,836,231 14,391 71127 ...... WAVY–TV ...... 2,039,358 2,039,341 15,982 54938 ...... WAWD ...... 553,676 553,591 4,338 65247 ...... WAWV–TV ...... 705,549 699,377 5,481 12793 ...... WAXN–TV ...... 2,677,951 2,669,224 20,919

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations 59893

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

65696 ...... WBAL–TV ...... 9,596,587 9,190,139 72,023 74417 ...... WBAY–TV ...... 1,225,928 1,225,335 9,603 71085 ...... WBBH–TV ...... 2,046,391 2,046,391 16,038 65204 ...... WBBJ–TV ...... 662,148 658,016 5,157 9617 ...... WBBM–TV * ...... 9,914,233 9,907,806 77,647 9088 ...... WBBZ–TV ...... 1,269,256 1,260,686 9,880 70138 ...... WBDT ...... 3,660,544 3,646,874 28,581 51349 ...... WBEC–TV ...... 5,421,355 5,421,355 42,487 10758 ...... WBFF ...... 8,509,757 8,339,882 65,360 12497 ...... WBFS–TV ...... 5,349,613 5,349,613 41,925 6568 ...... WBGU–TV ...... 1,343,816 1,343,816 10,531 81594 ...... WBIF ...... 309,707 309,707 2,427 84802 ...... WBIH ...... 736,501 724,345 5,677 717 ...... WBIQ ...... 1,563,080 1,532,266 12,008 46984 ...... WBIR–TV ...... 1,978,347 1,701,857 13,337 67048 ...... WBKB–TV ...... 136,823 130,625 1,024 34167 ...... WBKI ...... 1,983,992 1,968,048 15,424 4692 ...... WBKO ...... 963,413 862,651 6,761 76001 ...... WBKP ...... 55,655 55,305 433 68427 ...... WBMM ...... 562,284 562,123 4,405 73692 ...... WBNA ...... 1,699,683 1,666,248 13,058 23337 ...... WBNG–TV * ...... 1,442,745 1,060,329 8,310 71217 ...... WBNS–TV ...... 2,847,721 2,784,795 21,824 72958 ...... WBNX–TV ...... 3,642,304 3,629,347 28,443 71218 ...... WBOC–TV ...... 813,888 813,888 6,378 71220 ...... WBOY–TV ...... 711,302 621,367 4,870 60850 ...... WBPH–TV * ...... 10,613,847 9,474,797 74,254 7692 ...... WBPX–TV ...... 6,833,712 6,761,949 52,993 5981 ...... WBRA–TV ...... 1,726,408 1,677,204 13,144 71221 ...... WBRC ...... 1,884,007 1,849,135 14,492 71225 ...... WBRE–TV * ...... 2,879,196 2,244,735 17,592 38616 ...... WBRZ–TV ...... 2,223,336 2,222,309 17,416 82627 ...... WBSF ...... 1,836,543 1,832,446 14,361 30826 ...... WBTV ...... 4,433,020 4,295,962 33,667 66407 ...... WBTW ...... 1,975,457 1,959,172 15,354 16363 ...... WBUI ...... 981,884 981,868 7,695 59281 ...... WBUP ...... 126,472 112,603 882 60830 ...... WBUY–TV ...... 1,569,254 1,567,815 12,287 72971 ...... WBXX–TV ...... 2,142,759 1,984,544 15,553 25456 ...... WBZ–TV ...... 7,764,394 7,616,633 59,692 63153 ...... WCAU ...... 11,269,831 11,098,540 86,979 363 ...... WCAV ...... 949,729 727,455 5,701 46728 ...... WCAX–TV ...... 784,748 661,547 5,185 39659 ...... WCBB ...... 964,079 910,222 7,133 10587 ...... WCBD–TV ...... 1,149,489 1,149,489 9,009 12477 ...... WCBI–TV ...... 680,511 678,424 5,317 9610 ...... WCBS–TV ...... 21,713,751 21,187,849 166,049 49157 ...... WCCB ...... 3,542,464 3,489,260 27,345 9629 ...... WCCO–TV ...... 3,837,442 3,829,714 30,013 14050 ...... WCCT–TV ...... 5,818,471 5,307,612 41,596 69544 ...... WCCU ...... 395,106 395,102 3,096 3001 ...... WCCV–TV ...... 3,391,703 2,482,544 16,168 23937 ...... WCES–TV ...... 1,098,868 1,097,706 8,603 65666 ...... WCET ...... 3,122,924 3,108,328 24,360 46755 ...... WCFE–TV ...... 445,131 411,198 3,223 71280 ...... WCHS–TV ...... 1,352,824 1,274,766 9,990 42124 ...... WCIA ...... 796,609 795,428 6,234 711 ...... WCIQ * ...... 3,181,068 3,033,573 23,774 71428 ...... WCIU–TV ...... 9,891,328 9,888,390 77,495 9015 ...... WCIV ...... 1,152,800 1,152,800 9,034 42116 ...... WCIX ...... 554,002 549,682 4,308 16993 ...... WCJB–TV ...... 977,492 977,492 7,661 11125 ...... WCLF ...... 4,097,389 4,096,624 32,105 68007 ...... WCLJ–TV ...... 2,258,426 2,256,937 17,688 50781 ...... WCMH–TV ...... 2,756,260 2,712,989 21,262 9917 ...... WCML ...... 233,439 224,255 1,757 9908 ...... WCMU–TV ...... 707,702 699,551 5,482 9922 ...... WCMV ...... 418,707 407,222 3,191 9913 ...... WCMW ...... 106,975 104,859 822 32326 ...... WCNC–TV ...... 3,822,849 3,747,880 29,372

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 59894 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

53734 ...... WCNY–TV ...... 1,358,685 1,290,632 10,115 73642 ...... WCOV–TV ...... 862,899 859,333 6,735 40618 ...... WCPB ...... 560,426 560,426 4,392 59438 ...... WCPO–TV ...... 3,328,920 3,311,833 25,955 10981 ...... WCPX–TV ...... 9,674,477 9,673,859 75,814 71297 ...... WCSC–TV ...... 1,028,018 1,028,018 8,057 39664 ...... WCSH ...... 1,682,955 1,457,618 11,423 69479 ...... WCTE ...... 612,760 541,314 4,242 18334 ...... WCTI–TV ...... 1,680,664 1,678,237 13,152 31590 ...... WCTV ...... 1,049,825 1,049,779 8,227 33081 ...... WCTX ...... 7,844,936 7,332,431 57,464 65684 ...... WCVB–TV ...... 7,741,540 7,606,326 59,611 9987 ...... WCVE–TV ...... 1,582,094 1,581,725 12,396 83304 ...... WCVI–TV ...... 50,601 50,495 396 34204 ...... WCVN–TV ...... 2,108,475 2,100,226 16,459 9989 ...... WCVW ...... 1,461,748 1,461,643 11,455 73042 ...... WCWF ...... 1,040,984 1,040,525 8,155 35385 ...... WCWG ...... 3,630,551 3,299,114 25,855 29712 ...... WCWJ ...... 1,582,959 1,582,959 12,406 73264 ...... WCWN ...... 1,698,469 1,512,848 11,856 2455 ...... WCYB–TV * ...... 2,363,002 2,057,404 16,124 11291 ...... WDAF–TV ...... 2,539,581 2,537,411 19,886 21250 ...... WDAM–TV ...... 512,594 500,343 3,921 22129 ...... WDAY–TV ...... 339,239 338,856 2,656 22124 ...... WDAZ–TV ...... 151,720 151,659 1,189 71325 ...... WDBB ...... 1,669,214 1,646,336 12,902 71326 ...... WDBD ...... 940,665 939,489 7,363 71329 ...... WDBJ ...... 1,606,844 1,439,716 11,283 51567 ...... WDCA ...... 8,070,491 8,015,328 62,816 16530 ...... WDCQ–TV ...... 1,269,199 1,269,199 9,947 30576 ...... WDCW ...... 8,155,998 8,114,847 63,596 54385 ...... WDEF–TV ...... 1,731,483 1,508,250 11,820 32851 ...... WDFX–TV ...... 271,499 270,942 2,123 43846 ...... WDHN ...... 452,377 451,978 3,542 71338 ...... WDIO–DT ...... 341,506 327,469 2,566 714 ...... WDIQ ...... 663,062 620,124 4,860 53114 ...... WDIV–TV ...... 5,425,162 5,424,963 42,515 71427 ...... WDJT–TV ...... 3,085,540 3,081,475 24,150 39561 ...... WDKA ...... 621,903 620,169 4,860 64017 ...... WDKY–TV ...... 1,204,817 1,173,579 9,197 67893 ...... WDLI–TV ...... 4,147,298 4,114,920 32,249 72335 ...... WDPB ...... 596,888 596,888 4,678 83740 ...... WDPM–DT ...... 1,365,977 1,364,744 10,695 1283 ...... WDPN–TV * ...... 11,594,463 11,467,616 89,872 6476 ...... WDPX–TV ...... 6,833,712 6,761,949 52,993 28476 ...... WDRB ...... 1,987,708 1,971,926 15,454 12171 ...... WDSC–TV ...... 3,376,247 3,376,247 26,460 17726 ...... WDSE ...... 330,994 316,643 2,482 71353 ...... WDSI–TV ...... 1,100,302 1,042,191 8,168 71357 ...... WDSU ...... 1,613,076 1,613,076 12,642 7908 ...... WDTI ...... 2,095,312 2,094,395 16,414 65690 ...... WDTN ...... 3,660,544 3,646,874 28,581 70592 ...... WDTV ...... 962,532 850,394 6,665 25045 ...... WDVM–TV ...... 3,074,837 2,646,508 20,741 4110 ...... WDWL ...... 2,638,361 2,379,555 15,497 49421 ...... WEAO ...... 3,919,602 3,892,146 30,503 71363 ...... WEAR–TV ...... 1,524,131 1,523,479 11,940 7893 ...... WEAU ...... 991,019 952,513 7,465 61003 ...... WEBA–TV ...... 645,039 635,967 4,984 19561 ...... WECN ...... 2,886,669 2,596,015 16,907 48666 ...... WECT ...... 1,134,918 1,134,918 8,894 13602 ...... WEDH ...... 5,328,800 4,724,167 37,023 13607 ...... WEDN ...... 3,451,170 2,643,344 20,716 69338 ...... WEDQ ...... 4,882,446 4,881,322 38,255 21808 ...... WEDU ...... 5,379,887 5,365,612 42,050 13594 ...... WEDW ...... 5,996,408 5,544,708 43,454 13595 ...... WEDY ...... 5,328,800 4,724,167 37,023 24801 ...... WEEK–TV ...... 698,238 698,220 5,472 6744 ...... WEFS ...... 3,380,743 3,380,743 26,495 24215 ...... WEHT ...... 847,299 835,128 6,545

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TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

721 ...... WEIQ ...... 1,046,465 1,046,116 8,198 18301 ...... WEIU–TV ...... 462,775 462,711 3,626 69271 ...... WEKW–TV ...... 1,072,240 546,881 4,286 60825 ...... WELF–TV ...... 1,491,382 1,414,528 11,086 26602 ...... WELU ...... 2,248,146 2,020,075 13,156 40761 ...... WEMT ...... 1,726,085 1,186,706 9,300 69237 ...... WENH–TV ...... 4,500,498 4,328,222 33,920 71508 ...... WENY–TV ...... 543,162 413,668 3,242 83946 ...... WEPH ...... 604,105 602,833 4,724 81508 ...... WEPX–TV ...... 859,535 859,535 6,736 25738 ...... WESH * ...... 4,059,180 4,048,459 31,728 65670 ...... WETA–TV ...... 7,607,834 7,576,217 59,375 69944 ...... WETK ...... 670,087 558,842 4,380 60653 ...... WETM–TV ...... 721,800 620,074 4,860 18252 ...... WETP–TV ...... 2,087,588 1,791,130 14,037 2709 ...... WEUX ...... 380,569 373,680 2,929 72041 ...... WEVV–TV ...... 752,417 750,555 5,882 59441 ...... WEWS–TV ...... 4,112,984 4,078,299 31,962 72052 ...... WEYI–TV ...... 3,715,686 3,652,991 28,628 72054 ...... WFAA * ...... 6,927,782 6,918,595 54,221 81669 ...... WFBD ...... 814,185 813,564 6,376 69532 ...... WFDC–DT ...... 8,155,998 8,114,847 63,596 10132 ...... WFFF–TV ...... 592,012 506,744 3,971 25040 ...... WFFT–TV ...... 1,088,489 1,088,354 8,529 11123 ...... WFGC ...... 2,759,457 2,759,457 21,626 6554 ...... WFGX ...... 1,440,245 1,437,744 11,268 13991 ...... WFIE ...... 731,856 729,985 5,721 715 ...... WFIQ ...... 546,563 544,258 4,265 64592 ...... WFLA–TV ...... 5,450,176 5,446,917 42,687 22211 ...... WFLD ...... 9,957,301 9,954,828 78,016 72060 ...... WFLI–TV ...... 1,272,913 1,125,349 8,819 39736 ...... WFLX ...... 5,740,086 5,740,086 44,985 72062 ...... WFMJ–TV ...... 3,504,955 3,262,270 25,566 72064 ...... WFMY–TV ...... 4,772,783 4,740,684 37,153 39884 ...... WFMZ–TV * ...... 10,613,847 9,474,797 74,254 83943 ...... WFNA ...... 1,391,519 1,390,447 10,897 47902 ...... WFOR–TV ...... 5,398,266 5,398,266 42,306 11909 ...... WFOX–TV ...... 1,602,888 1,602,888 12,562 40626 ...... WFPT ...... 5,829,226 5,442,352 42,652 21245 ...... WFPX–TV ...... 2,637,949 2,634,141 20,644 25396 ...... WFQX–TV ...... 537,340 534,314 4,187 9635 ...... WFRV–TV ...... 1,201,204 1,200,502 9,408 53115 ...... WFSB ...... 4,752,788 4,370,519 34,252 6093 ...... WFSG ...... 364,961 364,796 2,859 21801 ...... WFSU–TV ...... 576,105 576,093 4,515 11913 ...... WFTC ...... 3,787,177 3,770,207 29,547 64588 ...... WFTS–TV ...... 5,077,970 5,077,719 39,794 16788 ...... WFTT–TV ...... 4,523,828 4,521,879 35,438 72076 ...... WFTV ...... 3,849,576 3,849,576 30,169 70649 ...... WFTX–TV ...... 1,775,097 1,775,097 13,911 60553 ...... WFTY–DT ...... 5,678,755 5,560,460 43,577 25395 ...... WFUP ...... 217,655 216,861 1,700 60555 ...... WFUT–DT ...... 19,992,096 19,643,518 153,946 22108 ...... WFWA ...... 1,035,114 1,034,862 8,110 9054 ...... WFXB ...... 1,393,865 1,393,510 10,921 3228 ...... WFXG ...... 1,070,032 1,057,760 8,290 70815 ...... WFXL ...... 793,637 785,106 6,153 19707 ...... WFXP ...... 583,315 562,500 4,408 24813 ...... WFXR ...... 1,426,061 1,286,450 10,082 6463 ...... WFXT ...... 7,494,070 7,400,830 58,000 22245 ...... WFXU ...... 211,721 211,721 1,659 43424 ...... WFXV ...... 633,597 558,968 4,381 25236 ...... WFXW ...... 274,078 270,967 2,124 41397 ...... WFYI ...... 2,389,627 2,388,970 18,722 53930 ...... WGAL * ...... 6,287,688 5,610,833 43,972 2708 ...... WGBA–TV ...... 1,170,375 1,170,127 9,170 24314 ...... WGBC ...... 249,415 249,235 1,953 72099 ...... WGBH–TV * ...... 7,711,842 7,601,732 59,575 12498 ...... WGBO–DT ...... 9,771,815 9,769,552 76,564 72098 ...... WGBX–TV ...... 7,476,751 7,378,958 57,829

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TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

72096 ...... WGBY–TV ...... 4,470,009 3,739,675 29,308 72120 ...... WGCL–TV ...... 6,027,276 5,961,471 46,720 62388 ...... WGCU ...... 1,403,602 1,403,602 11,000 54275 ...... WGEM–TV * ...... 361,598 356,682 2,795 27387 ...... WGEN–TV ...... 43,037 43,037 337 7727 ...... WGFL ...... 759,234 759,234 5,950 25682 ...... WGGB–TV ...... 3,443,447 3,005,875 23,557 11027 ...... WGGN–TV ...... 1,991,462 1,969,331 15,434 9064 ...... WGGS–TV ...... 2,759,326 2,705,067 21,200 72106 ...... WGHP ...... 3,774,522 3,734,200 29,265 710 ...... WGIQ ...... 363,849 363,806 2,851 12520 ...... WGMB–TV ...... 1,739,804 1,739,640 13,634 25683 ...... WGME–TV ...... 1,495,724 1,325,465 10,388 24618 ...... WGNM ...... 742,533 741,501 5,811 72119 ...... WGNO ...... 1,641,765 1,641,765 12,867 9762 ...... WGNT ...... 1,875,612 1,875,578 14,699 72115 ...... WGN–TV ...... 9,942,959 9,941,552 77,912 40619 ...... WGPT ...... 578,294 344,300 2,698 65074 ...... WGPX–TV ...... 2,765,350 2,754,743 21,589 64547 ...... WGRZ ...... 1,878,725 1,812,309 14,203 63329 ...... WGTA ...... 1,061,654 1,030,538 8,076 66285 ...... WGTE–TV ...... 2,210,496 2,208,927 17,311 59279 ...... WGTQ ...... 95,618 92,019 721 59280 ...... WGTU ...... 358,543 353,477 2,770 23948 ...... WGTV ...... 5,880,594 5,832,714 45,711 7623 ...... WGTW–TV ...... 807,797 807,797 6,331 24783 ...... WGVK ...... 2,439,225 2,437,526 19,103 24784 ...... WGVU–TV * ...... 1,825,744 1,784,264 13,983 21536 ...... WGWG ...... 986,963 986,963 7,735 56642 ...... WGWW ...... 1,677,166 1,647,976 12,915 58262 ...... WGXA ...... 779,955 779,087 6,106 73371 ...... WHAM–TV ...... 1,323,785 1,275,674 9,997 32327 ...... WHAS–TV * ...... 1,955,983 1,925,901 15,093 6096 ...... WHA–TV ...... 1,636,473 1,629,171 12,768 13950 ...... WHBF–TV * ...... 1,712,339 1,704,072 13,355 12521 ...... WHBQ–TV ...... 1,736,335 1,708,345 13,388 10894 ...... WHBR ...... 1,302,764 1,302,041 10,204 65128 ...... WHDF ...... 1,553,469 1,502,852 11,778 72145 ...... WHDH ...... 7,319,659 7,236,210 56,710 83929 ...... WHDT ...... 5,640,324 5,640,324 44,203 70041 ...... WHEC–TV ...... 1,322,243 1,279,606 10,028 67971 ...... WHFT–TV ...... 5,417,409 5,417,409 42,456 41458 ...... WHIO–TV ...... 3,896,757 3,879,363 30,403 713 ...... WHIQ ...... 1,278,174 1,225,940 9,608 61216 ...... WHIZ–TV ...... 910,864 831,894 6,520 65919 ...... WHKY–TV ...... 3,038,732 2,974,919 23,314 18780 ...... WHLA–TV ...... 467,264 443,002 3,472 48668 ...... WHLT ...... 484,432 483,532 3,789 24582 ...... WHLV–TV ...... 3,825,468 3,825,468 29,980 37102 ...... WHMB–TV ...... 2,847,719 2,828,250 22,165 61004 ...... WHMC ...... 943,543 942,807 7,389 36117 ...... WHME–TV ...... 1,271,796 1,271,715 9,966 37106 ...... WHNO ...... 1,499,653 1,499,653 11,753 72300 ...... WHNS ...... 2,549,397 2,266,911 17,766 48693 ...... WHNT–TV ...... 1,569,885 1,487,578 11,658 66221 ...... WHO–DT * ...... 1,120,480 1,099,818 8,619 6866 ...... WHOI ...... 679,446 679,434 5,325 72313 ...... WHP–TV ...... 4,030,693 3,538,096 27,728 51980 ...... WHPX–TV ...... 5,579,464 5,114,336 40,081 73036 ...... WHRM–TV ...... 495,398 495,174 3,881 25932 ...... WHRO–TV ...... 2,149,481 2,149,410 16,845 68058 ...... WHSG–TV ...... 5,870,314 5,808,605 45,522 4688 ...... WHSV–TV ...... 845,013 711,912 5,579 9990 ...... WHTJ ...... 723,698 490,045 3,840 72326 ...... WHTM–TV ...... 2,829,585 2,367,000 18,550 11117 ...... WHTN ...... 1,872,713 1,856,716 14,551 27772 ...... WHUT–TV ...... 7,649,763 7,617,337 59,697 18793 ...... WHWC–TV ...... 994,710 946,335 7,416 72338 ...... WHYY–TV ...... 10,379,045 9,982,651 78,234 5360 ...... WIAT ...... 1,837,072 1,802,810 14,129

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations 59897

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

63160 ...... WIBW–TV ...... 1,089,708 1,050,918 8,236 25684 ...... WICD ...... 1,238,332 1,237,046 9,695 25686 ...... WICS ...... 1,011,833 1,007,132 7,893 24970 ...... WICU–TV ...... 740,115 683,435 5,356 62210 ...... WICZ–TV ...... 976,771 780,174 6,114 18410 ...... WIDP ...... 2,559,306 2,286,123 14,888 26025 ...... WIFS ...... 1,400,358 1,397,144 10,949 720 ...... WIIQ ...... 353,241 347,685 2,725 68939 ...... WILL–TV ...... 1,178,545 1,158,147 9,076 6863 ...... WILX–TV ...... 3,378,644 3,218,221 25,221 22093 ...... WINK–TV ...... 1,851,105 1,851,105 14,507 67787 ...... WINM ...... 1,001,485 971,031 7,610 41314 ...... WINP–TV ...... 2,804,646 2,748,454 21,540 3646 ...... WIPB ...... 1,962,078 1,961,899 15,375 48408 ...... WIPL ...... 850,656 799,165 6,263 53863 ...... WIPM–TV ...... 2,196,157 1,870,057 2,269 53859 ...... WIPR–TV ...... 3,596,802 3,382,849 22,031 10253 ...... WIPX–TV ...... 2,258,426 2,256,937 17,688 39887 ...... WIRS ...... 1,153,382 916,310 4,706 71336 ...... WIRT–DT ...... 127,001 126,300 990 13990 ...... WIS ...... 2,644,715 2,600,887 20,383 65143 ...... WISC–TV ...... 1,830,642 1,811,579 14,197 13960 ...... WISE–TV ...... 1,070,155 1,070,155 8,387 39269 ...... WISH–TV ...... 2,912,963 2,855,253 22,377 65680 ...... WISN–TV ...... 2,938,180 2,926,133 22,932 73083 ...... WITF–TV ...... 2,412,561 2,191,501 17,175 73107 ...... WITI ...... 3,117,342 3,107,791 24,356 594 ...... WITN–TV ...... 1,768,040 1,754,388 13,749 61005 ...... WITV ...... 1,081,393 1,081,393 8,475 7780 ...... WIVB–TV ...... 1,538,108 1,502,969 11,779 11260 ...... WIVT ...... 856,453 607,256 4,759 60571 ...... WIWN * ...... 3,338,845 3,323,941 26,050 62207 ...... WIYC ...... 526,556 525,826 4,121 73120 ...... WJAC–TV ...... 2,219,529 1,897,986 14,875 10259 ...... WJAL * ...... 8,750,706 8,446,074 66,192 50780 ...... WJAR ...... 6,537,858 6,428,263 50,378 35576 ...... WJAX–TV ...... 1,630,782 1,630,782 12,780 27140 ...... WJBF ...... 1,601,531 1,585,550 12,426 73123 ...... WJBK ...... 5,748,623 5,711,224 44,759 37174 ...... WJCL ...... 938,086 938,086 7,352 73130 ...... WJCT ...... 1,624,624 1,624,033 12,728 29719 ...... WJEB–TV ...... 1,607,510 1,607,510 12,598 65749 ...... WJET–TV ...... 747,431 717,721 5,625 7651 ...... WJFB ...... 1,744,291 1,736,932 13,612 49699 ...... WJFW–TV ...... 277,530 268,295 2,103 73136 ...... WJHG–TV ...... 864,121 859,823 6,738 57826 ...... WJHL–TV * ...... 2,037,793 1,428,213 11,193 68519 ...... WJKT ...... 654,460 653,378 5,121 1051 ...... WJLA–TV * ...... 8,750,706 8,447,643 66,204 86537 ...... WJLP ...... 21,384,863 21,119,366 165,512 9630 ...... WJMN–TV ...... 160,991 154,424 1,210 61008 ...... WJPM–TV ...... 623,965 623,813 4,889 58340 ...... WJPX ...... 3,254,481 3,008,658 19,594 21735 ...... WJRT–TV ...... 2,788,684 2,543,446 19,933 23918 ...... WJSP–TV ...... 4,225,860 4,188,428 32,825 41210 ...... WJTC ...... 1,347,474 1,346,205 10,550 48667 ...... WJTV ...... 987,206 980,717 7,686 73150 ...... WJW ...... 3,977,148 3,905,325 30,606 61007 ...... WJWJ–TV ...... 1,008,890 1,008,890 7,907 58342 ...... WJWN–TV ...... 1,962,885 1,690,961 4,706 53116 ...... WJXT ...... 1,608,682 1,608,682 12,607 11893 ...... WJXX ...... 1,618,191 1,617,272 12,675 32334 ...... WJYS ...... 9,647,321 9,647,299 75,606 25455 ...... WJZ–TV * ...... 9,253,891 8,902,229 69,767 73152 ...... WJZY ...... 4,432,745 4,301,117 33,708 64983 ...... WKAQ–TV ...... 3,697,088 3,287,110 21,407 6104 ...... WKAR–TV ...... 1,693,373 1,689,830 13,243 34171 ...... WKAS ...... 503,790 476,158 3,732 51570 ...... WKBD–TV ...... 5,065,617 5,065,350 39,697 73153 ...... WKBN–TV ...... 4,898,622 4,535,576 35,545

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TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

13929 ...... WKBS–TV ...... 831,411 682,182 5,346 74424 ...... WKBT–DT ...... 866,325 824,795 6,464 54176 ...... WKBW–TV ...... 2,033,929 1,942,743 15,225 53465 ...... WKCF ...... 4,032,154 4,031,823 31,597 73155 ...... WKEF ...... 3,623,762 3,619,081 28,363 34177 ...... WKGB–TV ...... 384,474 382,825 3,000 34196 ...... WKHA ...... 511,281 400,721 3,140 34207 ...... WKLE ...... 837,269 825,691 6,471 34212 ...... WKMA–TV ...... 454,447 453,482 3,554 71293 ...... WKMG–TV ...... 3,803,492 3,803,492 29,808 34195 ...... WKMJ–TV ...... 1,426,739 1,417,865 11,112 34202 ...... WKMR ...... 463,316 428,462 3,358 34174 ...... WKMU ...... 329,306 328,918 2,578 42061 ...... WKNO ...... 1,645,867 1,642,092 12,869 83931 ...... WKNX–TV ...... 1,684,178 1,459,493 11,438 34205 ...... WKOH ...... 550,854 547,801 4,293 67869 ...... WKOI–TV ...... 3,660,544 3,646,874 28,581 34211 ...... WKON ...... 905,003 895,953 7,022 18267 ...... WKOP–TV ...... 1,555,654 1,382,098 10,832 64545 ...... WKOW ...... 1,918,224 1,899,746 14,888 21432 ...... WKPC–TV ...... 1,489,989 1,481,948 11,614 65758 ...... WKPD ...... 242,844 241,796 1,895 34200 ...... WKPI–TV ...... 469,081 408,968 3,205 27504 ...... WKPT–TV ...... 1,131,213 887,806 6,958 58341 ...... WKPV ...... 1,132,932 879,902 4,706 11289 ...... WKRC–TV ...... 3,281,914 3,229,223 25,307 73187 ...... WKRG–TV ...... 1,526,600 1,526,075 11,960 73188 ...... WKRN–TV ...... 2,410,573 2,388,802 18,721 34222 ...... WKSO–TV ...... 586,871 573,741 4,496 40902 ...... WKTC ...... 1,386,422 1,385,850 10,861 60654 ...... WKTV ...... 1,573,503 1,342,387 10,520 73195 ...... WKYC ...... 4,154,903 4,099,508 32,128 24914 ...... WKYT–TV ...... 1,174,615 1,156,978 9,067 71861 ...... WKYU–TV ...... 411,448 409,310 3,208 34181 ...... WKZT–TV ...... 957,158 927,375 7,268 18819 ...... WLAE–TV ...... 1,397,967 1,397,967 10,956 36533 ...... WLAJ ...... 1,865,669 1,858,982 14,569 2710 ...... WLAX ...... 513,319 488,216 3,826 68542 ...... WLBT ...... 948,671 947,857 7,428 39644 ...... WLBZ ...... 373,129 364,346 2,855 69328 ...... WLED–TV ...... 338,110 159,958 1,254 63046 ...... WLEF–TV ...... 192,283 191,149 1,498 73203 ...... WLEX–TV ...... 969,543 964,107 7,556 37806 ...... WLFB ...... 808,036 680,534 5,333 37808 ...... WLFG ...... 1,614,321 1,282,063 10,048 73204 ...... WLFI–TV ...... 2,243,009 2,221,313 17,408 73205 ...... WLFL ...... 3,640,360 3,636,542 28,500 11113 ...... WLGA ...... 950,018 943,236 7,392 19777 ...... WLII–DT ...... 2,801,102 2,591,533 16,877 37503 ...... WLIO * ...... 1,067,232 1,050,170 8,230 38336 ...... WLIW ...... 14,117,756 13,993,724 109,669 27696 ...... WLJC–TV * ...... 1,401,072 1,281,256 10,041 71645 ...... WLJT–DT ...... 385,493 385,380 3,020 53939 ...... WLKY ...... 1,854,829 1,847,195 14,476 11033 ...... WLLA ...... 2,041,934 2,041,852 16,002 17076 ...... WLMB ...... 2,754,484 2,747,490 21,532 68518 ...... WLMT ...... 1,736,552 1,733,496 13,585 22591 ...... WLNE–TV ...... 5,705,441 5,630,394 44,125 74420 ...... WLNS–TV ...... 1,865,669 1,858,982 14,569 73206 ...... WLNY–TV ...... 7,501,199 7,415,578 58,116 84253 ...... WLOO ...... 913,960 912,674 7,153 56537 ...... WLOS * ...... 3,086,751 2,544,360 19,940 37732 ...... WLOV–TV ...... 609,526 607,780 4,763 13995 ...... WLOX ...... 1,182,149 1,170,659 9,174 38586 ...... WLPB–TV ...... 1,219,624 1,219,407 9,556 73189 ...... WLPX–TV ...... 1,021,171 921,974 7,226 66358 ...... WLRN–TV ...... 5,447,399 5,447,399 42,691 73226 ...... WLS–TV ...... 10,174,464 10,170,757 79,708 73230 ...... WLTV–DT ...... 5,427,398 5,427,398 42,535 37176 ...... WLTX ...... 1,580,677 1,578,645 12,372

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TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

37179 ...... WLTZ ...... 689,521 685,358 5,371 21259 ...... WLUC–TV ...... 92,246 85,393 669 4150 ...... WLUK–TV ...... 1,251,563 1,247,463 9,776 73238 ...... WLVI ...... 7,319,659 7,236,210 56,710 36989 ...... WLVT–TV * ...... 10,613,847 9,474,797 74,254 3978 ...... WLWC ...... 3,281,532 3,150,875 24,693 46979 ...... WLWT ...... 3,319,556 3,302,292 25,880 54452 ...... WLXI ...... 4,021,948 4,004,902 31,386 55350 ...... WLYH ...... 2,829,585 2,367,000 18,550 43192 ...... WMAB–TV ...... 407,794 401,487 3,146 43170 ...... WMAE–TV ...... 653,542 625,084 4,899 43197 ...... WMAH–TV ...... 1,257,393 1,256,995 9,851 43176 ...... WMAO–TV ...... 369,696 369,343 2,895 47905 ...... WMAQ–TV ...... 9,914,395 9,913,272 77,690 59442 ...... WMAR–TV ...... 9,203,498 9,065,260 71,044 43184 ...... WMAU–TV ...... 642,328 636,504 4,988 43193 ...... WMAV–TV ...... 1,008,339 1,008,208 7,901 43169 ...... WMAW–TV ...... 732,079 718,446 5,630 46991 ...... WMAZ–TV ...... 1,185,678 1,136,616 8,908 66398 ...... WMBB ...... 935,027 914,607 7,168 43952 ...... WMBC–TV ...... 18,706,132 18,458,331 144,658 42121 ...... WMBD–TV ...... 733,039 732,987 5,744 83969 ...... WMBF–TV ...... 445,363 445,363 3,490 60829 ...... WMCF–TV ...... 593,205 589,513 4,620 9739 ...... WMCN–TV ...... 10,379,045 9,982,651 78,234 19184 ...... WMC–TV ...... 2,047,403 2,043,125 16,012 189357 ...... WMDE ...... 6,384,827 6,257,910 49,043 73255 ...... WMDN ...... 278,227 278,018 2,179 16455 ...... WMDT ...... 731,931 731,931 5,736 39656 ...... WMEA–TV ...... 774,785 746,033 5,847 39648 ...... WMEB–TV ...... 511,761 494,574 3,876 70537 ...... WMEC ...... 217,940 217,671 1,706 39649 ...... WMED–TV ...... 30,488 29,577 232 39662 ...... WMEM–TV ...... 71,700 69,981 548 41893 ...... WMFD–TV ...... 1,561,367 1,324,244 10,378 41436 ...... WMFP ...... 5,792,048 5,564,295 43,607 61111 ...... WMGM–TV ...... 807,797 807,797 6,331 43847 ...... WMGT–TV ...... 601,894 601,309 4,712 73263 ...... WMHT ...... 1,622,458 1,472,559 11,540 68545 ...... WMLW–TV ...... 1,822,297 1,822,217 14,281 53819 ...... WMOR–TV ...... 5,386,517 5,386,358 42,213 81503 ...... WMOW ...... 121,150 106,115 832 65944 ...... WMPB ...... 6,489,215 6,375,063 49,961 43168 ...... WMPN–TV ...... 856,237 854,089 6,693 65942 ...... WMPT ...... 7,945,122 7,905,666 61,957 60827 ...... WMPV–TV ...... 1,395,611 1,395,036 10,933 10221 ...... WMSN–TV ...... 1,579,847 1,567,031 12,281 2174 ...... WMTJ ...... 3,143,148 2,846,339 18,537 6870 ...... WMTV ...... 1,548,616 1,545,459 12,112 73288 ...... WMTW ...... 1,940,292 1,658,816 13,000 23935 ...... WMUM–TV ...... 862,740 859,204 6,734 73292 ...... WMUR–TV ...... 5,192,179 5,003,980 39,216 42663 ...... WMVS * ...... 3,172,534 3,112,231 24,391 42665 ...... WMVT * ...... 3,172,534 3,112,231 24,391 81946 ...... WMWC–TV ...... 946,858 916,989 7,186 56548 ...... WMYA–TV ...... 1,577,439 1,516,026 11,881 74211 ...... WMYD ...... 5,750,989 5,750,873 45,070 20624 ...... WMYT–TV ...... 4,432,745 4,301,117 33,708 25544 ...... WMYV ...... 3,808,852 3,786,057 29,671 73310 ...... WNAB ...... 2,072,197 2,059,474 16,140 73311 ...... WNAC–TV ...... 7,310,183 6,959,064 54,538 47535 ...... WNBC ...... 20,072,714 19,699,252 154,383 83965 ...... WNBW–DT ...... 633,243 631,197 4,947 72307 ...... WNCF ...... 667,683 665,950 5,219 50782 ...... WNCN * ...... 3,795,494 3,783,131 29,648 57838 ...... WNCT–TV ...... 1,933,527 1,879,655 14,731 41674 ...... WNDU–TV ...... 1,807,909 1,783,617 13,978 28462 ...... WNDY–TV ...... 2,912,963 2,855,253 22,377 71928 ...... WNED–TV ...... 1,364,333 1,349,085 10,573 60931 ...... WNEH ...... 1,261,482 1,255,218 9,837

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TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

41221 ...... WNEM–TV ...... 1,617,082 1,612,561 12,638 49439 ...... WNEO ...... 3,151,964 3,105,545 24,338 73318 ...... WNEP–TV ...... 3,131,848 2,484,949 19,475 18795 ...... WNET ...... 20,826,756 20,387,649 159,778 51864 ...... WNEU ...... 3,471,700 3,354,177 26,287 23942 ...... WNGH–TV ...... 3,715,479 3,482,438 27,292 67802 ...... WNIN ...... 883,322 865,128 6,780 41671 ...... WNIT ...... 1,298,159 1,298,159 10,174 48457 ...... WNJB * ...... 20,787,272 20,036,393 157,025 48477 ...... WNJN * ...... 20,787,272 20,036,393 157,025 48481 ...... WNJS ...... 7,211,292 7,176,711 56,244 48465 ...... WNJT ...... 7,211,292 7,176,711 56,244 73333 ...... WNJU ...... 21,952,082 21,399,204 167,706 73336 ...... WNJX–TV ...... 1,585,248 1,383,235 1,199 61217 ...... WNKY ...... 385,619 383,911 3,009 71905 ...... WNLO ...... 1,538,108 1,502,969 11,779 4318 ...... WNMU ...... 181,730 177,763 1,393 73344 ...... WNNE ...... 792,551 676,539 5,302 54280 ...... WNOL–TV ...... 1,632,389 1,632,389 12,793 71676 ...... WNPB–TV ...... 1,578,317 1,446,630 11,337 62137 ...... WNPI–DT ...... 167,931 161,748 1,268 41398 ...... WNPT ...... 2,260,463 2,227,570 17,457 28468 ...... WNPX–TV ...... 2,216,131 2,209,662 17,317 61009 ...... WNSC–TV ...... 2,072,821 2,067,933 16,206 61010 ...... WNTV ...... 2,419,841 2,211,019 17,328 16539 ...... WNTZ–TV ...... 344,704 343,849 2,695 7933 ...... WNUV ...... 9,098,694 8,906,508 69,800 9999 ...... WNVC ...... 723,698 490,045 3,840 10019 ...... WNVT ...... 1,582,094 1,581,725 12,396 73354 ...... WNWO–TV ...... 2,232,660 2,232,660 17,497 136751 ...... WNYA ...... 1,540,430 1,406,032 11,019 30303 ...... WNYB * ...... 1,785,269 1,756,096 13,763 6048 ...... WNYE–TV ...... 19,185,983 19,015,910 149,028 34329 ...... WNYI ...... 1,627,542 1,338,811 10,492 67784 ...... WNYO–TV ...... 1,539,525 1,499,591 11,752 58725 ...... WNYS–TV ...... 1,690,696 1,445,505 11,328 73363 ...... WNYT * ...... 1,679,494 1,516,775 11,887 22206 ...... WNYW ...... 20,075,874 19,753,060 154,805 69618 ...... WOAI–TV ...... 2,525,811 2,513,887 19,701 66804 ...... WOAY–TV ...... 569,330 416,995 3,268 41225 ...... WOFL ...... 3,941,895 3,938,046 30,862 70651 ...... WOGX ...... 1,112,408 1,112,408 8,718 8661 ...... WOI–DT * ...... 1,173,757 1,170,432 9,173 39746 ...... WOIO ...... 3,821,233 3,745,335 29,352 71725 ...... WOLE–DT * 1 ...... 2,503,603 947,174 7,423 73375 ...... WOLF–TV ...... 3,006,606 2,425,396 19,008 60963 ...... WOLO–TV ...... 2,635,115 2,590,158 20,299 36838 ...... WOOD–TV ...... 2,507,053 2,501,084 19,601 67602 ...... WOPX–TV ...... 3,826,498 3,826,259 29,986 64865 ...... WORA–TV ...... 2,733,629 2,586,149 2,893 73901 ...... WORO–DT * ...... 3,243,301 3,022,553 20,711 60357 ...... WOST ...... 1,193,381 1,027,391 6,691 66185 ...... WOSU–TV ...... 2,649,515 2,617,817 20,516 131 ...... WOTF–TV ...... 3,288,537 3,288,535 25,772 10212 ...... WOTV ...... 2,277,566 2,277,258 17,847 50147 ...... WOUB–TV ...... 756,762 734,988 5,760 50141 ...... WOUC–TV ...... 1,713,515 1,649,853 12,930 23342 ...... WOWK–TV * ...... 1,159,175 1,082,354 8,482 65528 ...... WOWT ...... 1,380,979 1,377,287 10,794 31570 ...... WPAN ...... 637,347 637,347 4,995 4190 ...... WPBA ...... 5,217,180 5,200,958 40,760 51988 ...... WPBF ...... 3,190,307 3,186,405 24,972 21253 ...... WPBN–TV ...... 411,213 394,778 3,094 62136 ...... WPBS–DT ...... 338,448 301,692 2,364 13456 ...... WPBT ...... 5,416,604 5,416,604 42,450 13924 ...... WPCB–TV ...... 2,934,614 2,800,516 21,948 64033 ...... WPCH–TV ...... 5,948,778 5,874,163 46,036 4354 ...... WPCT ...... 195,270 194,869 1,527 69880 ...... WPCW ...... 3,393,365 3,188,441 24,988 17012 ...... WPDE–TV ...... 1,764,645 1,762,758 13,815

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TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

52527 ...... WPEC ...... 5,788,448 5,788,448 45,364 84088 ...... WPFO ...... 1,329,690 1,209,873 9,482 54728 ...... WPGA–TV ...... 559,495 559,004 4,381 60820 ...... WPGD–TV ...... 2,355,629 2,343,715 18,368 73875 ...... WPGH–TV ...... 3,132,507 3,007,511 23,570 2942 ...... WPGX ...... 425,098 422,872 3,314 73879 ...... WPHL–TV ...... 10,421,216 10,246,856 80,305 73881 ...... WPIX ...... 20,638,932 20,213,158 158,411 53113 ...... WPLG ...... 5,587,129 5,587,129 43,786 11906 ...... WPMI–TV ...... 1,467,869 1,467,462 11,500 10213 ...... WPMT ...... 2,412,561 2,191,501 17,175 18798 ...... WPNE–TV ...... 1,132,868 1,132,699 8,877 73907 ...... WPNT ...... 3,130,920 3,010,828 23,596 28480 ...... WPPT * ...... 10,613,847 9,474,797 74,254 51984 ...... WPPX–TV ...... 8,206,117 7,995,941 62,664 47404 ...... WPRI–TV ...... 7,254,721 6,990,606 54,785 51991 ...... WPSD–TV ...... 883,812 878,287 6,883 12499 ...... WPSG ...... 10,232,988 9,925,334 77,785 66219 ...... WPSU–TV ...... 1,055,133 868,013 6,803 73905 ...... WPTA ...... 1,099,180 1,099,180 8,614 25067 ...... WPTD ...... 3,423,417 3,415,232 26,765 25065 ...... WPTO ...... 2,912,159 2,893,581 22,677 59443 ...... WPTV–TV ...... 5,840,102 5,840,102 45,769 57476 ...... WPTZ ...... 792,551 676,539 5,302 8616 ...... WPVI–TV * ...... 11,491,587 11,302,701 88,579 48772 ...... WPWR–TV ...... 9,957,301 9,954,828 78,016 51969 ...... WPXA–TV ...... 6,587,205 6,458,510 50,615 71236 ...... WPXC–TV ...... 1,561,014 1,561,014 12,234 5800 ...... WPXD–TV ...... 5,133,364 5,133,257 40,229 37104 ...... WPXE–TV ...... 3,163,550 3,160,601 24,770 48406 ...... WPXG–TV ...... 2,577,848 2,512,150 19,688 73312 ...... WPXH–TV ...... 1,495,968 1,423,805 11,158 73910 ...... WPXI ...... 3,300,896 3,197,864 25,062 2325 ...... WPXJ–TV ...... 2,358,750 2,294,833 17,985 52628 ...... WPXK–TV ...... 1,801,997 1,577,806 12,365 21729 ...... WPXL–TV ...... 1,566,829 1,566,829 12,279 48608 ...... WPXM–TV ...... 5,153,621 5,153,621 40,389 73356 ...... WPXN–TV ...... 20,465,198 20,092,448 157,465 27290 ...... WPXP–TV ...... 5,565,072 5,565,072 43,613 50063 ...... WPXQ–TV ...... 3,281,532 3,150,875 24,693 70251 ...... WPXR–TV ...... 1,375,640 1,200,331 9,407 40861 ...... WPXS ...... 1,152,104 1,145,695 8,979 53065 ...... WPXT ...... 760,491 735,051 5,761 37971 ...... WPXU–TV ...... 690,613 690,613 5,412 67077 ...... WPXV–TV ...... 1,905,128 1,905,128 14,930 74091 ...... WPXW–TV ...... 8,091,469 8,044,165 63,042 21726 ...... WPXX–TV ...... 1,562,675 1,560,834 12,232 73319 ...... WQAD–TV ...... 1,079,594 1,066,743 8,360 65130 ...... WQCW ...... 1,319,392 1,249,533 9,793 71561 ...... WQEC ...... 183,969 183,690 1,440 41315 ...... WQED ...... 3,529,305 3,426,684 26,855 3255 ...... WQHA ...... 1,052,107 879,558 5,728 60556 ...... WQHS–DT ...... 3,996,567 3,952,672 30,977 53716 ...... WQLN ...... 602,212 571,790 4,481 52075 ...... WQMY ...... 410,269 254,586 1,995 64550 ...... WQOW ...... 369,066 358,576 2,810 5468 ...... WQPT–TV ...... 595,685 595,437 4,666 64690 ...... WQPX–TV ...... 1,644,283 1,212,587 9,503 52408 ...... WQRF–TV ...... 1,326,695 1,305,762 10,233 2175 ...... WQTO ...... 2,864,201 1,923,424 12,526 8688 ...... WRAL–TV ...... 3,643,511 3,639,448 28,522 10133 ...... WRAY–TV ...... 4,021,948 4,004,902 31,386 64611 ...... WRAZ ...... 3,605,228 3,601,029 28,221 136749 ...... WRBJ–TV ...... 1,030,831 1,028,010 8,057 3359 ...... WRBL ...... 1,493,140 1,461,459 11,453 57221 ...... WRBU ...... 2,737,188 2,734,806 21,433 54940 ...... WRBW ...... 4,025,123 4,023,804 31,535 59137 ...... WRCB ...... 1,587,742 1,363,582 10,686 47904 ...... WRC–TV ...... 8,188,601 8,146,696 63,846 54963 ...... WRDC ...... 3,624,288 3,620,526 28,374

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 59902 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

55454 ...... WRDQ ...... 3,931,023 3,931,023 30,807 73937 ...... WRDW–TV ...... 1,564,584 1,533,682 12,019 66174 ...... WREG–TV ...... 1,642,307 1,638,585 12,842 61011 ...... WRET–TV ...... 2,419,841 2,211,019 17,328 73940 ...... WREX ...... 2,303,027 2,047,951 16,050 54443 ...... WRFB ...... 2,674,527 2,377,106 15,481 73942 ...... WRGB * ...... 1,757,575 1,645,483 12,896 411 ...... WRGT–TV ...... 3,252,046 3,219,309 25,230 74416 ...... WRIC–TV ...... 1,996,265 1,939,664 15,201 61012 ...... WRJA–TV ...... 1,127,088 1,119,936 8,777 412 ...... WRLH–TV ...... 2,017,508 1,959,111 15,354 61013 ...... WRLK–TV ...... 1,229,094 1,228,616 9,629 43870 ...... WRLM ...... 3,919,602 3,892,146 30,503 74156 ...... WRNN–TV ...... 19,853,836 19,615,370 153,726 73964 ...... WROC–TV ...... 1,203,412 1,185,203 9,288 159007 ...... WRPT ...... 110,009 109,937 862 20590 ...... WRPX–TV ...... 2,637,949 2,634,141 20,644 62009 ...... WRSP–TV ...... 904,190 902,682 7,074 40877 ...... WRTV ...... 2,919,683 2,895,164 22,689 15320 ...... WRUA ...... 2,905,193 2,552,782 16,625 71580 ...... WRXY–TV ...... 1,633,655 1,633,655 12,803 48662 ...... WSAV–TV ...... 1,000,315 1,000,309 7,839 6867 ...... WSAW–TV ...... 652,442 646,386 5,066 36912 ...... WSAZ–TV ...... 1,184,629 1,119,859 8,776 56092 ...... WSBE–TV ...... 4,627,829 4,531,067 35,510 73982 ...... WSBK–TV ...... 7,161,406 7,095,363 55,606 72053 ...... WSBS–TV ...... 42,952 42,952 337 73983 ...... WSBT–TV ...... 1,691,194 1,682,136 13,183 23960 ...... WSB–TV ...... 5,893,810 5,818,626 45,601 69446 ...... WSCG ...... 867,516 867,490 6,799 64971 ...... WSCV ...... 5,465,435 5,465,435 42,833 70536 ...... WSEC ...... 522,349 521,730 4,089 49711 ...... WSEE–TV ...... 613,176 595,476 4,667 21258 ...... WSES ...... 1,548,117 1,513,982 11,865 73988 ...... WSET–TV ...... 1,569,722 1,323,180 10,370 13993 ...... WSFA ...... 1,168,636 1,133,724 8,885 11118 ...... WSFJ–TV ...... 1,675,987 1,667,150 13,065 10203 ...... WSFL–TV ...... 5,344,129 5,344,129 41,882 72871 ...... WSFX–TV ...... 928,247 928,247 7,275 73999 ...... WSIL–TV ...... 672,560 669,176 5,244 4297 ...... WSIU–TV * ...... 1,019,939 937,070 7,344 74007 ...... WSJV ...... 1,522,499 1,522,499 11,932 78908 ...... WSKA ...... 546,588 431,354 3,381 74034 ...... WSKG–TV ...... 892,439 624,282 4,892 76324 ...... WSKY–TV ...... 1,934,585 1,934,519 15,161 57840 ...... WSLS–TV ...... 1,447,286 1,277,753 10,014 21737 ...... WSMH ...... 2,339,224 2,327,660 18,242 41232 ...... WSMV–TV ...... 2,447,769 2,404,766 18,846 70119 ...... WSNS–TV ...... 9,914,395 9,913,272 77,690 74070 ...... WSOC–TV ...... 3,706,808 3,638,832 28,518 66391 ...... WSPA–TV ...... 3,393,072 3,237,713 25,374 64352 ...... WSPX–TV ...... 1,298,295 1,174,763 9,207 17611 ...... WSRE ...... 1,355,168 1,354,307 10,614 63867 ...... WSST–TV ...... 331,907 331,601 2,599 60341 ...... WSTE–DT ...... 3,723,967 3,631,985 23,653 21252 ...... WSTM–TV ...... 1,458,931 1,382,417 10,834 11204 ...... WSTR–TV ...... 3,252,460 3,243,267 25,417 19776 ...... WSUR–DT * 2 ...... 3,714,790 947,174 7,423 2370 ...... WSVI ...... 50,601 50,601 397 63840 ...... WSVN ...... 5,588,748 5,588,748 43,799 73374 ...... WSWB ...... 1,530,002 1,102,316 8,639 28155 ...... WSWG ...... 381,004 380,910 2,985 71680 ...... WSWP–TV ...... 858,726 659,416 5,168 74094 ...... WSYM–TV ...... 1,516,677 1,516,390 11,884 73113 ...... WSYR–TV ...... 1,329,933 1,243,035 9,742 40758 ...... WSYT ...... 1,878,638 1,640,666 12,858 56549 ...... WSYX ...... 2,635,937 2,584,043 20,251 65681 ...... WTAE–TV ...... 2,995,755 2,860,979 22,421 23341 ...... WTAJ–TV ...... 1,187,718 948,598 7,434 4685 ...... WTAP–TV ...... 472,761 451,414 3,538

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations 59903

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

416 ...... WTAT–TV ...... 1,153,279 1,153,279 9,038 67993 ...... WTBY–TV ...... 15,858,470 15,766,438 123,562 29715 ...... WTCE–TV ...... 2,620,599 2,620,599 20,538 65667 ...... WTCI ...... 1,204,613 1,099,395 8,616 67786 ...... WTCT ...... 584,661 584,006 4,577 28954 ...... WTCV ...... 3,254,481 3,008,658 19,594 74422 ...... WTEN ...... 1,902,431 1,613,747 12,647 9881 ...... WTGL ...... 3,772,425 3,772,425 29,564 27245 ...... WTGS ...... 967,792 967,630 7,583 70655 ...... WTHI–TV ...... 928,934 886,846 6,950 70162 ...... WTHR * ...... 2,949,339 2,901,633 22,740 147 ...... WTIC–TV ...... 5,318,753 4,707,697 36,894 26681 ...... WTIN–TV ...... 3,714,547 3,487,634 1,199 66536 ...... WTIU ...... 1,131,685 1,131,161 8,865 1002 ...... WTJP–TV ...... 1,947,743 1,907,300 14,948 4593 ...... WTJR ...... 334,527 334,221 2,619 70287 ...... WTJX–TV ...... 135,017 121,498 952 47401 ...... WTKR ...... 2,142,272 2,142,084 16,788 82735 ...... WTLF ...... 349,696 349,691 2,741 23486 ...... WTLH ...... 1,038,086 1,038,086 8,135 67781 ...... WTLJ ...... 1,622,365 1,621,227 12,706 65046 ...... WTLV ...... 1,757,600 1,739,021 13,629 1222 ...... WTLW ...... 1,646,714 1,644,206 12,886 74098 ...... WTMJ–TV ...... 3,010,678 2,995,959 23,479 74109 ...... WTNH ...... 7,845,782 7,332,431 57,464 19200 ...... WTNZ ...... 1,699,427 1,513,754 11,863 590 ...... WTOC–TV ...... 993,098 992,658 7,779 74112 ...... WTOG ...... 4,796,964 4,796,188 37,588 4686 ...... WTOK–TV ...... 410,134 404,555 3,170 13992 ...... WTOL ...... 4,184,020 4,174,198 32,713 21254 ...... WTOM–TV ...... 83,379 81,092 636 74122 ...... WTOV–TV ...... 3,892,886 3,619,899 28,369 82574 ...... WTPC–TV * ...... 2,049,246 2,042,851 16,010 86496 ...... WTPX–TV ...... 255,972 255,791 2,005 6869 ...... WTRF–TV ...... 2,941,511 2,565,375 20,105 67798 ...... WTSF ...... 593,934 552,040 4,326 11290 ...... WTSP * ...... 5,511,840 5,494,925 43,064 4108 ...... WTTA ...... 5,450,070 5,446,811 42,687 74137 ...... WTTE ...... 2,636,341 2,591,715 20,311 22207 ...... WTTG ...... 8,070,491 8,015,328 62,816 56526 ...... WTTK ...... 2,817,698 2,794,018 21,897 74138 ...... WTTO ...... 1,817,151 1,786,516 14,001 56523 ...... WTTV ...... 2,362,145 2,359,408 18,491 10802 ...... WTTW ...... 9,729,982 9,729,634 76,251 74148 ...... WTVA ...... 717,035 709,726 5,562 22590 ...... WTVC ...... 1,579,628 1,366,976 10,713 8617 ...... WTVD * ...... 3,793,909 3,778,802 29,614 55305 ...... WTVE ...... 5,156,905 5,152,997 40,384 36504 ...... WTVF ...... 2,416,110 2,397,634 18,790 74150 ...... WTVG ...... 4,274,274 4,263,894 33,416 74151 ...... WTVH ...... 1,350,223 1,275,171 9,994 10645 ...... WTVI ...... 2,853,540 2,824,869 22,138 63154 ...... WTVJ ...... 5,458,451 5,458,451 42,778 595 ...... WTVM ...... 1,498,667 1,405,957 11,018 72945 ...... WTVO ...... 1,409,708 1,398,825 10,963 28311 ...... WTVP ...... 679,017 678,672 5,319 51597 ...... WTVQ–DT ...... 989,180 982,298 7,698 57832 ...... WTVR–TV ...... 1,808,516 1,802,164 14,124 16817 ...... WTVS ...... 5,511,639 5,511,255 43,192 68569 ...... WTVT ...... 5,475,385 5,462,416 42,809 3661 ...... WTVW ...... 791,430 789,720 6,189 35575 ...... WTVX ...... 3,157,609 3,157,609 24,746 4152 ...... WTVY ...... 974,532 971,173 7,611 40759 ...... WTVZ–TV ...... 2,156,534 2,156,346 16,899 66908 ...... WTWC–TV ...... 1,032,942 1,032,942 8,095 20426 ...... WTWO ...... 737,757 731,769 5,735 81692 ...... WTWV ...... 1,527,511 1,526,625 11,964 51568 ...... WTXF–TV ...... 10,784,256 10,492,549 82,230 41065 ...... WTXL–TV ...... 1,054,514 1,054,322 8,263 8532 ...... WUAB ...... 3,821,233 3,745,335 29,352

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 59904 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

12855 ...... WUCF–TV ...... 3,772,425 3,772,425 29,564 36395 ...... WUCW ...... 3,664,480 3,657,236 28,662 69440 ...... WUFT ...... 1,372,142 1,372,142 10,753 413 ...... WUHF ...... 1,152,580 1,147,972 8,997 8156 ...... WUJA ...... 2,638,361 2,379,555 15,497 69080 ...... WUNC–TV ...... 4,021,948 4,004,902 31,386 69292 ...... WUND–TV ...... 1,506,640 1,506,640 11,808 69114 ...... WUNE–TV ...... 1,931,274 1,527,025 11,967 69300 ...... WUNF–TV ...... 2,447,306 2,066,422 16,195 69124 ...... WUNG–TV ...... 3,267,425 3,253,352 25,497 60551 ...... WUNI ...... 7,209,571 7,084,349 55,520 69332 ...... WUNJ–TV ...... 1,081,274 1,081,274 8,474 69149 ...... WUNK–TV ...... 2,018,916 2,013,516 15,780 69360 ...... WUNL–TV ...... 2,614,031 2,545,330 19,948 69444 ...... WUNM–TV ...... 1,029,109 1,029,109 8,065 69397 ...... WUNP–TV ...... 1,018,414 1,009,833 7,914 69416 ...... WUNU ...... 1,120,792 1,117,140 8,755 83822 ...... WUNW ...... 1,109,237 570,072 4,468 6900 ...... WUPA ...... 5,946,477 5,865,122 45,965 13938 ...... WUPL ...... 1,632,100 1,632,100 12,791 10897 ...... WUPV ...... 1,933,664 1,914,643 15,005 19190 ...... WUPW ...... 2,074,890 2,073,548 16,250 23128 ...... WUPX–TV ...... 1,102,435 1,089,118 8,535 65593 ...... WUSA * ...... 8,750,706 8,446,074 66,192 4301 ...... WUSI–TV ...... 304,747 304,747 2,388 60552 ...... WUTB ...... 8,509,757 8,339,882 65,360 30577 ...... WUTF–TV ...... 8,557,497 8,242,833 64,599 57837 ...... WUTR ...... 526,114 481,957 3,777 415 ...... WUTV ...... 1,405,230 1,380,902 10,822 16517 ...... WUVC–DT ...... 3,768,817 3,748,841 29,380 48813 ...... WUVG–DT ...... 6,029,495 5,965,975 46,755 3072 ...... WUVN ...... 1,233,568 1,157,140 9,069 60560 ...... WUVP–DT ...... 10,421,216 10,246,856 80,305 9971 ...... WUXP–TV ...... 2,316,872 2,305,293 18,067 417 ...... WVAH–TV ...... 1,373,707 1,300,402 10,191 23947 ...... WVAN–TV ...... 979,764 978,920 7,672 65387 ...... WVBT ...... 1,848,277 1,848,277 14,485 72342 ...... WVCY–TV ...... 2,543,642 2,542,235 19,923 60559 ...... WVEA–TV ...... 4,283,915 4,283,854 33,573 74167 ...... WVEC * ...... 2,096,709 2,090,875 16,386 5802 ...... WVEN–TV ...... 3,607,540 3,607,540 28,272 61573 ...... WVEO ...... 1,153,382 916,310 2,353 69946 ...... WVER ...... 760,072 579,703 4,543 10976 ...... WVFX ...... 731,193 609,763 4,779 47929 ...... WVIA–TV ...... 3,131,848 2,484,949 19,475 3667 ...... WVII–TV ...... 368,022 346,874 2,718 70309 ...... WVIR–TV ...... 1,944,353 1,801,429 14,118 74170 ...... WVIT ...... 5,846,093 5,357,639 41,988 18753 ...... WVIZ ...... 3,695,223 3,689,173 28,912 70021 ...... WVLA–TV ...... 1,897,179 1,897,007 14,867 81750 ...... WVLR ...... 1,412,728 1,292,471 10,129 35908 ...... WVLT–TV ...... 1,888,607 1,633,633 12,803 74169 ...... WVNS–TV ...... 911,630 606,820 4,756 11259 ...... WVNY ...... 721,176 620,257 4,861 29000 ...... WVOZ–TV ...... 1,132,932 879,902 2,353 71657 ...... WVPB–TV ...... 780,268 752,747 5,899 60111 ...... WVPT * ...... 756,714 632,580 4,958 70491 ...... WVPX–TV ...... 4,147,298 4,114,920 32,249 66378 ...... WVPY * ...... 756,202 632,155 4,954 67190 ...... WVSN ...... 2,948,832 2,572,001 16,750 69943 ...... WVTA ...... 760,072 579,703 4,543 69940 ...... WVTB ...... 454,244 258,422 2,025 74173 ...... WVTM–TV ...... 1,876,825 1,790,198 14,030 74174 ...... WVTV ...... 2,999,694 2,990,991 23,440 77496 ...... WVUA ...... 2,209,921 2,160,101 16,929 4149 ...... WVUE–DT ...... 1,658,125 1,658,125 12,995 4329 ...... WVUT ...... 273,293 273,219 2,141 74176 ...... WVVA ...... 1,035,752 693,707 5,437 3113 ...... WVXF ...... 85,191 78,556 616 12033 ...... WWAY ...... 1,206,281 1,206,281 9,454

VerDate Sep<11>2014 18:29 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER2.SGM 23SER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations 59905

TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

30833 ...... WWBT ...... 1,911,854 1,872,305 14,673 20295 ...... WWCP–TV ...... 2,811,278 2,548,691 19,974 24812 ...... WWCW ...... 1,390,985 1,212,308 9,501 23671 ...... WWDP ...... 5,792,048 5,564,295 43,607 21158 ...... WWHO ...... 2,879,726 2,805,564 21,987 14682 ...... WWJE–DT ...... 7,209,571 7,084,349 55,520 72123 ...... WWJ–TV ...... 5,374,064 5,373,712 42,114 166512 ...... WWJX ...... 518,866 518,846 4,066 6868 ...... WWLP ...... 3,838,272 3,077,800 24,121 74192 ...... WWL–TV ...... 1,756,442 1,756,442 13,765 3133 ...... WWMB ...... 1,460,406 1,458,374 11,429 74195 ...... WWMT ...... 2,460,942 2,455,432 19,243 68851 ...... WWNY–TV ...... 365,677 341,029 2,673 74197 ...... WWOR–TV ...... 19,853,836 19,615,370 153,726 65943 ...... WWPB ...... 2,015,352 1,691,003 13,252 23264 ...... WWPX–TV ...... 3,892,904 3,196,922 25,054 68547 ...... WWRS–TV ...... 2,235,958 2,212,123 17,336 61251 ...... WWSB ...... 3,340,133 3,340,133 26,177 23142 ...... WWSI ...... 11,269,831 11,098,540 86,979 16747 ...... WWTI ...... 196,531 190,097 1,490 998 ...... WWTO–TV ...... 5,541,816 5,541,816 43,431 26994 ...... WWTV ...... 1,034,174 1,022,322 8,012 84214 ...... WWTW ...... 1,527,511 1,526,625 11,964 26993 ...... WWUP–TV ...... 116,638 110,592 867 23338 ...... WXBU ...... 4,030,693 3,538,096 27,728 61504 ...... WXCW ...... 1,749,847 1,749,847 13,714 61084 ...... WXEL–TV ...... 5,416,604 5,416,604 42,450 60539 ...... WXFT–DT ...... 10,174,464 10,170,757 79,708 23929 ...... WXGA–TV ...... 608,494 606,801 4,755 51163 ...... WXIA–TV ...... 6,179,680 6,035,828 47,303 53921 ...... WXII–TV ...... 3,630,551 3,299,114 25,855 146 ...... WXIN ...... 2,721,639 2,699,366 21,155 39738 ...... WXIX–TV ...... 2,825,570 2,797,385 21,923 414 ...... WXLV–TV ...... 4,362,761 4,333,737 33,963 68433 ...... WXMI ...... 1,988,970 1,988,589 15,585 64549 ...... WXOW ...... 425,378 413,264 3,239 6601 ...... WXPX–TV ...... 4,566,037 4,564,088 35,769 74215 ...... WXTV–DT ...... 19,992,096 19,643,518 153,946 12472 ...... WXTX ...... 699,095 694,837 5,445 11970 ...... WXXA–TV * ...... 1,680,670 1,546,103 12,117 57274 ...... WXXI–TV ...... 1,178,402 1,163,073 9,115 53517 ...... WXXV–TV ...... 1,201,440 1,199,901 9,404 10267 ...... WXYZ–TV ...... 5,591,434 5,590,748 43,815 12279 ...... WYCC ...... 9,729,982 9,729,634 76,251 77515 ...... WYCI ...... 35,873 26,508 208 70149 ...... WYCW ...... 3,393,072 3,237,713 25,374 62219 ...... WYDC ...... 393,843 262,013 2,053 18783 ...... WYDN ...... 2,577,848 2,512,150 19,688 35582 ...... WYDO ...... 1,097,745 1,097,745 8,603 25090 ...... WYES–TV ...... 1,872,245 1,872,059 14,671 53905 ...... WYFF ...... 2,626,363 2,416,551 18,939 49803 ...... WYIN ...... 6,956,141 6,956,141 54,515 24915 ...... WYMT–TV ...... 1,180,276 863,881 6,770 17010 ...... WYOU * ...... 2,879,196 2,221,179 17,407 77789 ...... WYOW ...... 91,233 90,799 712 13933 ...... WYPX–TV ...... 1,529,500 1,413,583 11,078 4693 ...... WYTV ...... 4,898,622 4,535,576 35,545 5875 ...... WYZZ–TV ...... 1,042,140 1,036,721 8,125 15507 ...... WZBJ ...... 1,606,844 1,439,716 11,283 28119 ...... WZDX ...... 1,557,490 1,452,851 11,386 70493 ...... WZME ...... 5,996,408 5,544,708 43,454 81448 ...... WZMQ ...... 73,423 72,945 572 71871 ...... WZPX–TV ...... 2,094,029 2,093,653 16,408 136750 ...... WZRB ...... 952,279 951,693 7,458 418 ...... WZTV ...... 2,311,143 2,299,730 18,023 83270 ...... WZVI ...... 76,992 75,863 595 19183 ...... WZVN–TV ...... 1,916,098 1,916,098 15,016

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TABLE 8—FY 2020 FULL-SERVICE BROADCAST TELEVISION STATIONS BY CALL SIGN—Continued

FY 2020 Facility Id. No. Call sign Service area Terrain-Ltd Terrain-Ltd population population fee amount

49713 ...... WZZM ...... 1,574,546 1,548,835 12,138 Note: The list of call signs above include all feeable and exempt entities. It is the responsibility of licensees to inform the Commission of any status changes. As stated in the FY 2020 2020 Regulatory Fee Reform Order and FY 2020 NPRM, the fee of full-power television stations in Puerto Rico have been adjusted to reflect losses in population on the island since the 2010 U.S. Census. * The call signs with an (*) denote VHF stations licensed with a power level that exceeds the maximum based on the maximum power level specified for channels 2–6 in § 73.622(f)(6) and for channels 7–13 in § 73.622(f)(7). The population counts have been adjusted accordingly. 1 Call signs WOLE and WLII are stations in Puerto Rico that are linked together with a total fee of $24,300. 2 Call signs WSUR and WLII are stations in Puerto Rico that are linked together with a total fee of $24,300. 3 Call signs WTCV, WVOZ–TV, and WVEO–TV are stations in Puerto Rico that are linked together with a total fee of $24,300. 4 Call signs WAPA–TV, WTIN–TV, and WNJX–TV are stations in Puerto Rico that are linked together with a total fee of $24,300.

Table 9—FY 2019 Regulatory Fees Commission in advance to cover the Regulatory fees for the categories term of the license and are submitted at shaded in gray are collected by the the time the application is filed.

Annual regulatory fee Fee category (U.S. $s)

PLMRS (per license) (Exclusive Use) (47 CFR part 90) ...... 25. Microwave (per license) (47 CFR part 101) ...... 25. Marine (Ship) (per station) (47 CFR part 80) ...... 15. Marine (Coast) (per license) (47 CFR part 80) ...... 40. Rural Radio (47 CFR part 22) (previously listed under the Land Mobile category) ...... 10. PLMRS (Shared Use) (per license) (47 CFR part 90) ...... 10. Aviation (Aircraft) (per station) (47 CFR part 87) ...... 10. Aviation (Ground) (per license) (47 CFR part 87) ...... 20. CMRS Mobile/Cellular Services (per unit) (47 CFR parts 20, 22, 24, 27, 80 and 90) ...... 19. CMRS Messaging Services (per unit) (47 CFR parts 20, 22, 24 and 90) ...... 08. Broadband Radio Service (formerly MMDS/MDS) (per license) (47 CFR part 27) ...... 690. Local Multipoint Distribution Service (per call sign) (47 CFR part 101) ...... 690. AM Radio Construction Permits ...... 595. FM Radio Construction Permits ...... 1,000. AM and FM Broadcast Radio Station Fees ...... See Table Below. Digital TV (47 CFR part 73) VHF and UHF Commercial Fee Factor ...... 007224, See Appendix J for fee amounts due, also available at https://www.fcc.gov/licens- ing-databases/fees/regulatory-fees Construction Permits ...... 4,450. Low Power TV, Class A TV, TV/FM Translators & Boosters (47 CFR part 74) ...... 345. CARS (47 CFR part 78) ...... 1,225. Cable Television Systems (per subscriber) (47 CFR part 76), Including IPTV ...... 86. Direct Broadcast Service (DBS) (per subscriber) (as defined by section 602(13) of the Act) ...... 60. Interstate Telecommunication Service Providers (per revenue dollar) ...... 00317. Toll Free (per toll free subscriber) (47 CFR 52.101(f) of the rules) ...... 12. Earth Stations (47 CFR part 25) ...... 425. Space Stations (per operational station in geostationary orbit) (47 CFR part 25) also includes 159,625. DBS Service (per operational station) (47 CFR part 100). Space Stations (per operational system in non-geostationary orbit) (47 CFR part 25) ...... 154,875. International Bearer Circuits—Terrestrial/Satellites (per Gbps circuit) ...... 121. Submarine Cable Landing Licenses Fee (per cable system) ...... See Table Below.

FY 2019 RADIO STATION REGULATORY FEES

FM classes Population served AM class A AM class B AM class C AM class D FM classes B, C, C0, C1 A, B1 & C3 & C2

<=25,000 ...... $950 $685 $595 $655 $1,000 $1,200 25,001–75,000 ...... 1,425 1,000 895 985 1,575 1,800 75,001–150,000 ...... 2,150 1,550 1,350 1,475 2,375 2,700 150,001–500,000 ...... 3,200 2,325 2,000 2,225 3,550 4,050 500,001–1,200,000 ...... 4,800 3,475 3,000 3,325 5,325 6,075 1,200,001–3,000,000 ...... 7,225 5,200 4,525 4,975 7,975 9,125 3,000,001–6,000,000 ...... 10,825 7,800 6,775 7,450 11,950 13,675 >6,000,000 ...... 16,225 11,700 10,175 11,200 17,950 20,500

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FY 2019 INTERNATIONAL BEARER CIRCUITS—SUBMARINE CABLE SYSTEMS

Submarine cable systems FY 2019 (capacity as of December 31, 2018) regulatory fees

Less than 50 Gbps ...... $12,575 50 Gbps or greater, but less than 250 Gbps ...... 25,150 250 Gbps or greater, but less than 1,000 Gbps ...... 50,300 1,000 Gbps or greater, but less than 4,000 Gbps ...... 100,600 4,000 Gbps or greater ...... 201,225

V. Final Regulatory Flexibility Analysis ‘‘small organization,’’ and ‘‘small Under the applicable SBA size standard, 85. As required by the Regulatory governmental jurisdiction.’’ In addition, such a business is small if it has 1,500 Flexibility Act of 1980, as amended the term ‘‘small business’’ has the same or fewer employees. According to (RFA), an Initial Regulatory Flexibility meaning as the term ‘‘small business Commission data, census data for 2012 Analysis (IRFA) was included in the FY concern’’ under the Small Business Act. shows that there were 3,117 firms that 2020 NPRM. The Commission sought A ‘‘small business concern’’ is one operated that year. Of this total, 3,083 written public comment on these which: (1) Is independently owned and operated with fewer than 1,000 proposals including comment on the operated; (2) is not dominant in its field employees. The Commission therefore IRFA. This Final Regulatory Flexibility of operation; and (3) satisfies any estimates that most providers of local Analysis (FRFA) conforms to the IRFA. additional criteria established by the exchange carrier service are small Small Business Administration (SBA). entities that may be affected by the rules A. Need for, and Objectives of, the Nationwide, there are a total of adopted. Report and Order approximately 27.9 million small 92. Incumbent LECs. Neither the 86. In this Report and Order we adopt businesses, according to the SBA. Commission nor the SBA has developed our proposal in the FY 2020 NPRM on 90. Wired Telecommunications a small business size standard collecting $339,000,000 in regulatory Carriers. The U.S. Census Bureau specifically for incumbent local fees for FY 2020, pursuant to section 9 defines this industry as ‘‘establishments exchange services. The closest of the Communications Act of 1934, as primarily engaged in operating and/or applicable NAICS code category is amended (Communications Act or Act). providing access to transmission Wired Telecommunications Carriers as These regulatory fees will be due in facilities and infrastructure that they defined in paragraph 6 of this FRFA. September 2020. Under section 9 of the own and/or lease for the transmission of Under that size standard, such a Communications Act, regulatory fees are voice, data, text, sound, and video using business is small if it has 1,500 or fewer mandated by Congress and collected to wired communications networks. employees. According to Commission recover the regulatory costs associated Transmission facilities may be based on data, 3,117 firms operated in that year. with the Commission’s enforcement, a single technology or a combination of Of this total, 3,083 operated with fewer policy and rulemaking, user technologies. Establishments in this than 1,000 employees. Consequently, information, and international activities industry use the wired the Commission estimates that most in an amount that can be reasonably telecommunications network facilities providers of incumbent local exchange expected to equal the amount of the that they operate to provide a variety of service are small businesses that may be Commission’s annual appropriation. services, such as wired telephony affected by the rules and policies This Report and Order adopts the services, including VoIP services, wired adopted. Three hundred and seven (307) regulatory fees proposed in the FY 2020 (cable) audio and video programming Incumbent Local Exchange Carriers NPRM, with some minor changes. distribution, and wired broadband reported that they were incumbent local internet services. By exception, exchange service providers. Of this B. Summary of the Significant Issues establishments providing satellite total, an estimated 1,006 have 1,500 or Raised by the Public Comments in television distribution services using fewer employees. Response to the IRFA facilities and infrastructure that they 93. Competitive Local Exchange 87. None. operate are included in this industry.’’ Carriers (Competitive LECs), The SBA has developed a small Competitive Access Providers (CAPs), C. Response to Comments by the Chief business size standard for Wired Shared-Tenant Service Providers, and Counsel for Advocacy of the Small Telecommunications Carriers, which Other Local Service Providers. Neither Business Administration consists of all such companies having the Commission nor the SBA has 88. No comments were filed by the 1,500 or fewer employees. Census data developed a small business size Chief Counsel for Advocacy of the Small for 2012 shows that there were 3,117 standard specifically for these service Business Administration. firms that operated that year. Of this providers. The appropriate NAICS code total, 3,083 operated with fewer than category is Wired Telecommunications D. Description and Estimate of the 1,000 employees. Thus, under this size Carriers, as defined in paragraph 6 of Number of Small Entities to Which the standard, most firms in this industry this FRFA. Under that size standard, Rules Will Apply can be considered small. such a business is small if it has 1,500 89. The RFA directs agencies to 91. Local Exchange Carriers (LECs). or fewer employees. U.S. Census data provide a description of, and where Neither the Commission nor the SBA for 2012 indicate that 3,117 firms feasible, an estimate of the number of has developed a size standard for small operated during that year. Of that small entities that may be affected by businesses specifically applicable to number, 3,083 operated with fewer than the proposed rules and policies, if local exchange services. The closest 1,000 employees. Based on this data, the adopted. The RFA generally defines the applicable NAICS code category is Commission concludes that most term ‘‘small entity’’ as having the same Wired Telecommunications Carriers as Competitive LECS, CAPs, Shared- meaning as the terms ‘‘small business,’’ defined in paragraph 6 of this FRFA. Tenant Service Providers, and Other

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Local Service Providers, are small industry. Under the applicable SBA size estimates that the majority of toll entities. According to Commission data, standard, such a business is small if it resellers are small entities. 1,442 carriers reported that they were has 1,500 or fewer employees. U.S. 98. Other Toll Carriers. Neither the engaged in the provision of either Census data for 2012 show that 1,341 Commission nor the SBA has developed competitive local exchange services or firms provided resale services during a definition for small businesses competitive access provider services. Of that year. Of that number, 1,341 specifically applicable to Other Toll these 1,442 carriers, an estimated 1,256 operated with fewer than 1,000 Carriers. This category includes toll have 1,500 or fewer employees. In employees. Thus, under this category carriers that do not fall within the addition, 17 carriers have reported that and the associated small business size categories of interexchange carriers, they are Shared-Tenant Service standard, the majority of these prepaid operator service providers, prepaid Providers, and all 17 are estimated to calling card providers can be considered calling card providers, satellite service have 1,500 or fewer employees. Also, 72 small entities. According to Commission carriers, or toll resellers. The closest carriers have reported that they are data, 193 carriers have reported that applicable NAICS code category is for Other Local Service Providers. Of this they are engaged in the provision of Wired Telecommunications Carriers as total, 70 have 1,500 or fewer employees. prepaid calling cards. All 193 carriers defined in paragraph 6 of this FRFA. Consequently, based on internally have 1,500 or fewer employees. Under the applicable SBA size standard, researched FCC data, the Commission Consequently, the Commission such a business is small if it has 1,500 estimates that most providers of estimates that the majority of prepaid or fewer employees. Census data for competitive local exchange service, calling card providers are small entities 2012 shows that there were 3,117 firms competitive access providers, Shared- that may be affected by the rules that operated that year. Of this total, Tenant Service Providers, and Other adopted. 3,083 operated with fewer than 1,000 Local Service Providers are small 96. Local Resellers. Neither the employees. Thus, under this category entities. Commission nor the SBA has developed and the associated small business size 94. Interexchange Carriers (IXCs). a small business size standard standard, most Other Toll Carriers can Neither the Commission nor the SBA specifically for Local Resellers. The SBA be considered small. According to has developed a definition for has developed a small business size internally developed Commission data, Interexchange Carriers. The closest standard for the category of 284 companies reported that their NAICS code category is Wired Telecommunications Resellers. Under primary telecommunications service Telecommunications Carriers as defined that size standard, such a business is activity was the provision of other toll in paragraph 6 of this FRFA. The small if it has 1,500 or fewer employees. carriage. Of these, an estimated 279 applicable size standard under SBA Census data for 2012 show that 1,341 have 1,500 or fewer employees. rules is that such a business is small if firms provided resale services during Consequently, the Commission it has 1,500 or fewer employees. U.S. that year. Of that number, 1,341 estimates that most Other Toll Carriers Census data for 2012 indicates that operated with fewer than 1,000 are small entities. 3,117 firms operated during that year. employees. Under this category and the 99. Wireless Telecommunications Of that number, 3,083 operated with associated small business size standard, Carriers (except Satellite). This industry fewer than 1,000 employees. According the majority of these local resellers can comprises establishments engaged in to internally developed Commission be considered small entities. According operating and maintaining switching data, 359 companies reported that their to Commission data, 213 carriers have and transmission facilities to provide primary telecommunications service reported that they are engaged in the communications via the airwaves. activity was the provision of provision of local resale services. Of this Establishments in this industry have interexchange services. Of this total, an total, an estimated 211 have 1,500 or spectrum licenses and provide services estimated 317 have 1,500 or fewer fewer employees. Consequently, the using that spectrum, such as cellular employees. Consequently, the Commission estimates that the majority services, paging services, wireless Commission estimates that most of local resellers are small entities that internet access, and wireless video interexchange service providers are may be affected by the rules adopted. services. The appropriate size standard small entities that may be affected by 97. Toll Resellers. The Commission under SBA rules is that such a business the rules adopted. has not developed a definition for Toll is small if it has 1,500 or fewer 95. Prepaid Calling Card Providers. Resellers. The closest NAICS code employees. For this industry, Census Neither the Commission nor the SBA Category is Telecommunications data for 2012 show that there were 967 has developed a small business Resellers, and the SBA has developed a firms that operated for the entire year. definition specifically for prepaid small business size standard for the Of this total, 955 firms had fewer than calling card providers. The most category of Telecommunications 1,000 employees. Thus, under this appropriate NAICS code-based category Resellers. Under that size standard, such category and the associated size for defining prepaid calling card a business is small if it has 1,500 or standard, the Commission estimates that providers is Telecommunications fewer employees. Census data for 2012 the majority of wireless Resellers. This industry comprises show that 1,341 firms provided resale telecommunications carriers (except establishments engaged in purchasing services during that year. Of that satellite) are small entities. Similarly, access and network capacity from number, 1,341 operated with fewer than according to internally developed owners and operators of 1,000 employees. Thus, under this Commission data, 413 carriers reported telecommunications networks and category and the associated small that they were engaged in the provision reselling wired and wireless business size standard, the majority of of wireless telephony, including cellular telecommunications services (except these resellers can be considered small service, Personal Communications satellite) to businesses and households. entities. According to Commission data, Service (PCS), and Specialized Mobile Establishments in this industry resell 881 carriers have reported that they are Radio (SMR) services. Of this total, an telecommunications; they do not engaged in the provision of toll resale estimated 261 have 1,500 or fewer operate transmission facilities and services. Of this total, an estimated 857 employees. Thus, using available data, infrastructure. Mobile virtual networks have 1,500 or fewer employees. we estimate that the majority of wireless operators (MVNOs) are included in this Consequently, the Commission firms can be considered small.

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100. Television Broadcasting. This low power television stations, including 106. Cable Companies and Systems. Economic Census category ‘‘comprises Class A stations (LPTV). Given the The Commission has developed its own establishments primarily engaged in nature of these services, we will small business size standards for the broadcasting images together with presume that all LPTV licensees qualify purpose of cable rate regulation. Under sound. These establishments operate as small entities under the above SBA the Commission’s rules, a ‘‘small cable television broadcasting studios and small business size standard. company’’ is one serving 400,000 or facilities for the programming and 103. Radio Broadcasting. This fewer subscribers nationwide. The transmission of programs to the public.’’ Economic Census category ‘‘comprises Commission’s industry data indicate These establishments also produce or establishments primarily engaged in that there are currently 4,160 active transmit visual programming to broadcasting aural programs by radio to cable systems in the United States. Of affiliated broadcast television stations, the public. Programming may originate this total, all but ten cable operators which in turn broadcast the programs to in their own studio, from an affiliated nationwide are small under the 400,000- the public on a predetermined schedule. network, or from external sources.’’ The subscriber size standard. In addition, Programming may originate in their own SBA has established a small business under the Commission’s rate regulation studio, from an affiliated network, or size standard for this category, which is: rules, a ‘‘small system’’ is a cable system from external sources. The SBA has Such firms having $41.5 million or less serving 15,000 or fewer subscribers. created the following small business in annual receipts. Census data for 2012 Current Commission records show 4,160 size standard for Television show that 2,849 radio station firms cable systems nationwide. Thus, under Broadcasting firms: Those having $41.5 operated during that year. Of that this standard as well, we estimate that million or less in annual receipts. The number, 2,806 operated with annual most cable systems are small entities. 2012 Economic Census reports that 751 receipts of less than $25 million per 107. Cable System Operators television broadcasting firms operated year. According to Commission staff (Telecom Act Standard). The during that year. Of that number, 656 review of BIA Advisory Services, LLC’s Communications Act also contains a had annual receipts of less than $25 Media Access Pro Radio Database, on size standard for small cable system million per year. Based on that Census March 28, 2012, about 10,759 (97%) of operators, which is ‘‘a cable operator data we conclude that most firms that 11,102 commercial radio stations had that, directly or through an affiliate, operate television stations are small. revenues of $38.5 million or less. serves in the aggregate fewer than 1% of The Commission has estimated the Therefore, most such entities are small all subscribers in the United States and number of licensed commercial entities. is not affiliated with any entity or television stations to be 1,387. In 104. In assessing whether a business entities whose gross annual revenues in addition, according to Commission staff concern qualifies as small under the the aggregate exceed $250,000,000.’’ review of the BIA Advisory Services, above size standard, business There are approximately 53 million LLC’s Media Access Pro Television affiliations must be included. In cable video subscribers in the United Database, on March 28, 2012, about 950 addition, to be determined to be a States today. Accordingly, an operator of an estimated 1,300 commercial ‘‘small business,’’ the entity may not be serving fewer than 524,037 subscribers television stations (or approximately dominant in its field of operation. We shall be deemed a small operator if its 73%) had revenues of $14 million or note that it is difficult at times to assess annual revenues, when combined with less. We therefore estimate that the these criteria in the context of media the total annual revenues of all its majority of commercial television entities, and our estimate of small affiliates, do not exceed $250 million in broadcasters are small entities. businesses may therefore be over- the aggregate. Based on available data, 101. In assessing whether a business inclusive. we find that all but nine incumbent concern qualifies as small under the 105. Cable Television and Other cable operators are small entities under above definition, business (control) Subscription Programming. This this size standard. We note that the affiliations must be included. Our industry comprises establishments Commission neither requests nor estimate, therefore, likely overstates the primarily engaged in operating studios collects information on whether cable number of small entities that might be and facilities for the broadcasting of system operators are affiliated with affected by our action, because the programs on a subscription or fee basis. entities whose gross annual revenues revenue figure on which it is based does The broadcast programming is typically exceed $250 million. Although it seems not include or aggregate revenues from narrowcast in nature (e.g., limited certain that some of these cable system affiliated companies. In addition, an format, such as news, sports, education, operators are affiliated with entities element of the definition of ‘‘small or youth-oriented). These whose gross annual revenues exceed business’’ is that the entity not be establishments produce programming in $250 million, we are unable at this time dominant in its field of operation. We their own facilities or acquire to estimate with greater precision the are unable at this time to define or programming from external sources. The number of cable system operators that quantify the criteria that would programming material is usually would qualify as small cable operators establish whether a specific television delivered to a third party, such as cable under the definition in the station is dominant in its field of systems or direct-to-home satellite Communications Act. operation. Accordingly, the estimate of systems, for transmission to viewers. 108. Direct Broadcast Satellite (DBS) small businesses to which rules may The SBA has established a size standard Service. DBS Service is a nationally apply does not exclude any television for this industry of $41.5 million or less. distributed subscription service that station from the definition of a small Census data for 2012 shows that there delivers video and audio programming business on this basis and is therefore were 367 firms that operated that year. via satellite to a small parabolic dish possibly over-inclusive to that extent. Of this total, 319 operated with annual antenna at the subscriber’s location. 102. In addition, the Commission has receipts of less than $25 million. Thus DBS is now included in SBA’s estimated the number of licensed under this size standard, most firms economic census category ‘‘Wired noncommercial educational television offering cable and other program Telecommunications Carriers.’’ The stations to be 396. These stations are distribution services can be considered Wired Telecommunications Carriers non-profit, and therefore considered to small and may be affected by rules industry comprises establishments be small entities. There are also 2,528 adopted. primarily engaged in operating and/or

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providing access to transmission most ‘‘All Other Telecommunications’’ and wireless video services. The facilities and infrastructure that they firms potentially affected by the rules appropriate size standard under SBA own and/or lease for the transmission of adopted can be considered small. rules is that such a business is small if voice, data, text, sound, and video using 110. RespOrgs. RespOrgs, i.e., it has 1,500 or fewer employees. Census wired telecommunications networks. Responsible Organizations, are entities data for 2012 show that 967 Wireless Transmission facilities may be based on chosen by toll-free subscribers to Telecommunications Carriers operated a single technology or combination of manage and administer the appropriate in that year. Of that number, 955 technologies. Establishments in this records in the toll-free Service operated with less than 1,000 industry use the wired Management System for the toll-free employees. Based on that data, we telecommunications network facilities subscriber. Although RespOrgs are often conclude that most Carrier RespOrgs that they operate to provide a variety of wireline carriers, they can also include that operated with wireless-based services, such as wired telephony non-carrier entities. Therefore, in the technology are small. services, including VoIP services, wired definition herein of RespOrgs, two 114. Non-Carrier RespOrgs. Neither (cable) audio and video programming categories are presented, i.e., Carrier the Commission, the Census, nor the distribution; and wired broadband RespOrgs and Non-Carrier RespOrgs. SBA have developed a definition of internet services. By exception, 111. Carrier RespOrgs. Neither the Non-Carrier RespOrgs. Accordingly, the establishments providing satellite Commission, the U.S. Census, nor the Commission believes that the closest television distribution services using SBA have developed a definition for NAICS code-based definitional facilities and infrastructure that they Carrier RespOrgs. Accordingly, the categories for Non-Carrier RespOrgs are operate are included in this industry. Commission believes that the closest ‘‘Other Services Related To The SBA determines that a wireline NAICS code-based definitional Advertising’’ and ‘‘Other Management business is small if it has fewer than categories for Carrier RespOrgs are Consulting Services.’’ Wired Telecommunications Carriers and 1500 employees. Census data for 2012 115. The U.S. Census defines Other Wireless Telecommunications Carriers indicate that 3,117 wireline companies Services Related to Advertising as were operational during that year. Of (except satellite). 112. The U.S. Census Bureau defines comprising establishments primarily that number, 3,083 operated with fewer Wired Telecommunications Carriers as engaged in providing advertising than 1,000 employees. Based on that establishments primarily engaged in services (except advertising agency data, we conclude that most wireline operating and/or providing access to services, public relations agency firms are small under the applicable transmission facilities and infrastructure services, media buying agency services, standard. However, currently only two that they own and/or lease for the media representative services, display entities provide DBS service, AT&T and transmission of voice, data, text, sound, advertising services, direct mail DISH Network. AT&T and DISH and video using wired communications advertising services, advertising Network each report annual revenues networks. Transmission facilities may material distribution services, and that are in excess of the threshold for a be based on a single technology or a marketing consulting services. The SBA small business. Accordingly, we combination of technologies. has established a size standard for this conclude that DBS service is provided Establishments in this industry use the industry as annual receipts of $15 only by large firms. wired telecommunications network million dollars or less. Census data for 109. All Other Telecommunications. facilities that they operate to provide a 2012 show that 5,804 firms operated in ‘‘All Other Telecommunications’’ is variety of services, such as wired this industry for the entire year. Of that defined as follows: This U.S. industry is telephony services, including VoIP number, 5,249 operated with annual comprised of establishments that are services, wired (cable) audio and video receipts of less than $10 million. Based primarily engaged in providing programming distribution, and wired on that data we conclude that most Non- specialized telecommunications broadband internet services. By Carrier RespOrgs who provide TFN- services, such as satellite tracking, exception, establishments providing related advertising services are small. communications telemetry, and radar satellite television distribution services 116. The U.S. Census defines Other station operation. This industry also using facilities and infrastructure that Management Consulting Services as includes establishments primarily they operate are included in this establishments primarily engaged in engaged in providing satellite terminal industry. The SBA has developed a providing management consulting stations and associated facilities small business size standard for Wired services (except administrative and connected with one or more terrestrial Telecommunications Carriers, which general management consulting; human systems and capable of transmitting consists of all such companies having resources consulting; marketing telecommunications to, and receiving 1,500 or fewer employees. Census data consulting; or process, physical telecommunications from, satellite for 2012 show that there were 3,117 distribution, and logistics consulting). systems. Establishments providing Wired Telecommunications Carrier Establishments providing internet services or voice over internet firms that operated for that entire year. telecommunications or utilities protocol (VoIP) services via client- Of that number, 3,083 operated with management consulting services are supplied telecommunications less than 1,000 employees. Based on included in this industry. The SBA has connections are also included in this that data, we conclude that most Carrier established a size standard for this industry. The SBA has developed a RespOrgs that operated with wireline- industry of $15 million dollars or less. small business size standard for ‘‘All based technology are small. Census data for 2012 show that 3,683 Other Telecommunications,’’ which 113. The U.S. Census Bureau defines firms operated in this industry for that consists of all such firms with gross Wireless Telecommunications Carriers entire year. Of that number, 3,632 annual receipts of $35 million or less. (except satellite) as establishments operated with less than $10 million in For this category, census data for 2012 engaged in operating and maintaining annual receipts. Based on this data, we show that there were 1,442 firms that switching and transmission facilities to conclude that most non-carrier operated for the entire year. Of these provide communications via the RespOrgs who provide TFN-related firms, a total of 1,400 had gross annual airwaves, such as cellular services, management consulting services are receipts of less than $25 million. Thus, paging services, wireless internet access, small.

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117. In addition to the data contained in foreign territories and/or of financial hardship. See 47 CFR in the four (see above) U.S. Census international waters and the license 1.1166. NAICS code categories that provide does not otherwise allow the non-U.S. VI. Ordering Clauses definitions of what services and licensed space station access to the U.S. functions the Carrier and Non-Carrier market. This exemption could benefit 122. Accordingly, it is ordered that, RespOrgs provide, Somos, the trade non-U.S. licensed space stations that are pursuant to section 9(a), (b), (e), (f), and association that monitors RespOrg small entities. (iv) The revision of the (g) of the Communications Act of 1934, activities, compiled data showing that allocation of IBC fees between as amended, 47 U.S.C. 159(a), (b), (e), as of July 1, 2016, there were 23 submarine cable and terrestrial and (f), and (g), this Report and Order is RespOrgs operational in Canada and 436 satellite IBCs from 87.6%-12.4% to hereby adopted. RespOrgs operational in the United 95%-5%. Any terrestrial or satellite 123. It is further ordered that the States, for a total of 459 RespOrgs operator with IBCs will benefit. (v) The Report and Order shall be effective upon publication in the Federal Register. currently registered with Somos. Report and Order notes that the Media 124. It is further ordered that the FY Bureau has granted waivers to allow E. Description of Projected Reporting, 2020 section 9 regulatory fees VHF stations that demonstrate signal Recordkeeping and Other Compliance assessment requirements and the rules Requirements disruptions to exceed the maximum set forth in the Final Rules are adopted 118. This Report and Order does not power level specified for channels 2–6 as specified herein. adopt any new reporting, recordkeeping, in § 73.622(f)(6) and for channels 7–13 125. It is further ordered that the or other compliance requirements. in § 73.622(f)(7) and, accordingly, will Commission’s Consumer and assess the regulatory fees for those VHF F. Steps Taken To Minimize Significant Governmental Affairs Bureau, Reference stations that are licensed with a power Information Center, shall send a copy of Economic Impact on Small Entities and level that exceeds the maximum based Significant Alternatives Considered this Report and Order, including the on the maximum power level specified Final Regulatory Flexibility Analysis in 119. The RFA requires an agency to for channels 2–6 in § 73.622(f)(6) and for this rulemaking, to Congress and the describe any significant alternatives that channels 7–13 in § 73.622(f)(7). To the Government Accountability Office it has considered in reaching its extent that VHF stations in these pursuant to 5 U.S.C. 801(a)(1)(A). approach, which may include the circumstances are small entities, this following four alternatives, among could provide regulatory fee relief. (vi) List of Subjects in 47 CFR Part 1 others: (1) The establishment of The adopts two targeted measures to Administrative practice and differing compliance or reporting provide relief to Puerto Rico procedure, Broadband, Reporting and requirements or timetables that take into broadcasters. First, we account for the recordkeeping requirements, account the resources available to small objectively measurable reduction in Telecommunications. entities; (2) the clarification, population by reducing the population consolidation, or simplification of Federal Communications Commission. counts used in TVStudy by 16.9%, Marlene Dortch, compliance or reporting requirements which reflects the decline between the Secretary. under the rule for small entities; (3) the last census in 2010 and the current use of performance, rather than design, population estimate. Second, we limit Final Rules standards; and (4) an exemption from the market served by a primary coverage of the rule, or any part thereof, For the reasons discussed in the television stations and commonly preamble, the Federal Communications for small entities. owned satellite broadcast stations in 120. This Report and Order adopts the Commission 47 CFR part 1 is amended Puerto Rico to no more than 3.10 as follows: proposals in the Notice to collect million people, the latest population $339,000,000 in regulatory fees for FY estimate. Thus, the fee for television PART 1—PRACTICE AND 2020, as detailed in the fee schedules in broadcasters and commonly owned PROCEDURE Table 5, including the following: (i) An satellites, using the proposed increase in the DBS fee rate to 72 cents population fee of $.007837, would not ■ 1. The authority citation for part 1 per subscriber, per year, based on the exceed $24,300. (vii) The Order adopts continues to read as follows: Media Bureau FTEs devoted to issues streamlined processes for fee payors that that include DBS. The two DBS Authority: 47 U.S.C. 151, 154(i), 155, 157, have experienced financial hardship as 160, 201, 225, 227, 303, 309, 332, 1403, 1404, providers, AT&T and DISH are not small a result of the Covid-19 pandemic to 1451, 1452, and 1455; Sec. 102(c), Div. P, entities. (ii) The implementation of the seek relief and will provide for lowered Pub. L. 115–141, 132 Stat. 1084, unless new methodology for calculating the interest charges on installment payment otherwise noted. full power broadcast television plans. This could benefit small ■ 2. Section 1.1151 is revised to read as regulatory fees based on the actual businesses that experienced financial follows: population, which the Commission initially adopted in FY 2018 and was hardship due to the Covid-19 pandemic. § 1.1151 Authority to prescribe and collect transitioning in over two years. Basing 121. In keeping with the requirements regulatory fees. the fee on actual population should of the Regulatory Flexibility Act, we Authority to impose and collect offer relief to smaller broadcasters, have considered certain alternative regulatory fees is contained in section 9 which may include small entities. (iii) means of mitigating the effects of fee of the Communications Act, as amended An exemption from regulatory fees for increases to a particular industry by sections 101–103 of title I of the non-U.S. licensed space stations that are segment. For example, the de minimis Consolidated Appropriations Act of listed as a point of communication on threshold is $1,000, which will impact 2018 (Pub. L. 115–141, 132 Stat. 1084), earth stations onboard vessels (ESV) many small entities that pay regulatory 47 U.S.C. 159, which directs the licenses if the ESV license clearly limits fees. This de minimis threshold will Commission to prescribe and collect U.S. licensed ESV terminals’ access to relieve regulatees both financially and annual regulatory fees to recover the these non-U.S. licensed space stations to administratively. Regulatees may also cost of carrying out the functions of the situations in which these terminals are seek waivers or other relief on the basis Commission.

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■ 3. Section 1.1152 is revised to read as § 1.1152 Schedule of annual regulatory follows: fees for wireless radio services.

TABLE 1 TO § 1.1152

Exclusive use services (per license) Fee amount

1. Land Mobile (Above 470 MHz and 220 MHz Local, Base Station & SMRS) (47 CFR part 90) (a) New, Renew/Mod (FCC 601 & 159) ...... $25.00 (b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) ...... 25.00 (c) Renewal Only (FCC 601 & 159) ...... 25.00 (d) Renewal Only (Electronic Filing) (FCC 601 & 159) ...... 25.00 220 MHz Nationwide (a) New, Renew/Mod (FCC 601 & 159) ...... 25.00 (b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) ...... 25.00 (c) Renewal Only (FCC 601 & 159) ...... 25.00 (d) Renewal Only (Electronic Filing) (FCC 601 & 159) ...... 25.00 2. Microwave (47 CFR part 101) (Private) (a) New, Renew/Mod (FCC 601 & 159) ...... 25.00 (b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) ...... 25.00 (c) Renewal Only (FCC 601 & 159) ...... 25.00 (d) Renewal Only (Electronic Filing) (FCC 601 & 159) ...... 25.00 3. Shared Use Services Land Mobile (Frequencies Below 470 MHz—except 220 MHz) (a) New, Renew/Mod (FCC 601 & 159) ...... 10.00 (b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) ...... 10.00 (c) Renewal Only (FCC 601 & 159) ...... 10.00 (d) Renewal Only (Electronic Filing) (FCC 601 & 159) ...... 10.00 Rural Radio (47 CFR part 22) (a) New, Additional Facility, Major Renew/Mod (Electronic Filing) (FCC 601 & 159) ...... 10.00 (b) Renewal, Minor Renew/Mod (Electronic Filing) ...... 10.00 Marine Coast (a) New Renewal/Mod (FCC 601 & 159) ...... 40.00 (b) New, Renewal/Mod (Electronic Filing) (FCC 601 & 159) ...... 40.00 (c) Renewal Only (FCC 601 & 159) ...... 40.00 (d) Renewal Only (Electronic Filing) (FCC 601 & 159) ...... 40.00 Aviation Ground (a) New, Renewal/Mod (FCC 601 & 159) ...... 20.00 (b) New, Renewal/Mod (Electronic Filing) (FCC 601 & 159) ...... 20.00 (c) Renewal Only (FCC 601 & 159) ...... 20.00 (d) Renewal Only (Electronic Only) (FCC 601 & 159) ...... 20.00 Marine Ship (a) New, Renewal/Mod (FCC 605 & 159) ...... 15.00 (b) New, Renewal/Mod (Electronic Filing) (FCC 605 & 159) ...... 15.00 (c) Renewal Only (FCC 605 & 159) ...... 15.00 (d) Renewal Only (Electronic Filing) (FCC 605 & 159) ...... 15.00 Aviation Aircraft (a) New, Renew/Mod (FCC 605 & 159) ...... 10.00 (b) New, Renew/Mod (Electronic Filing) (FCC 605 & 159) ...... 10.00 (c) Renewal Only (FCC 605 & 159) ...... 10.00 (d) Renewal Only (Electronic Filing) (FCC 605 & 159) ...... 10.00 4. CMRS Cellular/Mobile Services (per unit) (FCC 159) ...... 1 .17 5. CMRS Messaging Services (per unit) (FCC 159) ...... 2 .08 6. Broadband Radio Service (formerly MMDS and MDS) ...... 560 7. Local Multipoint Distribution Service ...... 560 1 These are standard fees that are to be paid in accordance with § 1.1157(b) of this chapter. 2 These are standard fees that are to be paid in accordance with § 1.1157(b) of this chapter.

■ 4. Section 1.1153 is revised to read as § 1.1153 Schedule of annual regulatory follows: fees and filing locations for mass media services.

TABLE 1 TO § 1.1153

Radio [AM and FM] (47 CFR part 73) Fee amount

1. AM Class A <=25,000 population ...... $975 25,001–75,000 population ...... 1,475 75,001–150,000 population ...... 2,200 150,001–500,000 population ...... 3,300 500,001–1,200,000 population ...... 4,925 1,200,001–3,000,000 population ...... 7,400 3,000,001–6,000,000 population ...... 11,100

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TABLE 1 TO § 1.1153—Continued

Radio [AM and FM] (47 CFR part 73) Fee amount

>6,000,000 population ...... 16,675 2. AM Class B <=25,000 population ...... 700 25,001–75,000 population ...... 1,050 75,001–150,000 population ...... 1,575 150,001–500,000 population ...... 2,375 500,001–1,200,000 population ...... 3,550 1,200,001–3,000,000 population ...... 5,325 3,000,001–6,000,000 population ...... 7,975 >6,000,000 population ...... 11,975 3. AM Class C <=25,000 population ...... 610 25,001–75,000 population ...... 915 75,001–150,000 population ...... 1,375 150,001–500,000 population ...... 2,050 500,001–1,200,000 population ...... 3,075 1,200,001–3,000,000 population ...... 4,625 3,000,001–6,000,000 population ...... 6,950 >6,000,000 population ...... 10,425 4. AM Class D <=25,000 population ...... 670 25,001–75,000 population ...... 1,000 75,001–150,000 population ...... 1,500 150,001–500,000 population ...... 2,275 500,001–1,200,000 population ...... 3,400 1,200,001–3,000,000 population ...... 5,100 3,000,001–6,000,000 population ...... 7,625 >6,000,000 population ...... 11,450 5. AM Construction Permit ...... 610 6. FM Classes A, B1 and C3 <=25,000 population ...... 1,075 25,001–75,000 population ...... 1,625 75,001–150,000 population ...... 2,425 150,001–500,000 population ...... 3,625 500,001–1,200,000 population ...... 5,450 1,200,001–3,000,000 population ...... 8,175 3,000,001–6,000,000 population ...... 12,250 >6,000,000 population ...... 18,375 7. FM Classes B, C, C0, C1 and C2 <=25,000 population ...... 1,225 25,001–75,000 population ...... 1,850 75,001–150,000 population ...... 2,750 150,001–500,000 population ...... 4,150 500,001–1,200,000 population ...... 6,200 1,200,001–3,000,000 population ...... 9,300 3,000,001–6,000,000 population ...... 13,950 >6,000,000 population ...... 20,925 8. FM Construction Permits ...... 1,075

TV (47 CFR part 73)

Digital TV (UHF and VHF Commercial Stations) 1. Digital TV Construction Permits ...... 4,950 2. Television Fee Factor ...... 007837 per population count Low Power TV, Class A TV, TV/FM Translator, & TV/FM Booster (47 CFR part 74) ...... 315

■ 5. Section 1.1154 is revised to read as § 1.1154 Schedule of annual regulatory follows: charges for common carrier services.

TABLE 1 TO § 1.1154

Radio facilities Fee amount

1. Microwave (Domestic Public Fixed) (Electronic Filing) (FCC Form 601 & 159) ...... $25.00. Carriers 1. Interstate Telephone Service Providers (per interstate and international end-user revenues (see FCC Form 499–A) ...... 00321. 2. Toll Free Number Fee ...... 12 per Toll Free Number.

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■ 6. Section 1.1155 is revised to read as § 1.1155 Schedule of regulatory fees for follows: cable television services.

TABLE 1 TO § 1.1155

Fee amount

1. Cable Television Relay Service ...... $1,300. 2. Cable TV System, Including IPTV (per subscriber) ...... 89. 3. Direct Broadcast Satellite (DBS) ...... 72 per subscriber.

■ 6. Section 1.1156 is revised to read as § 1.1156 Schedule of regulatory fees for stations. The following schedule applies follows: international services. for the listed services: (a) Geostationary orbit (GSO) and non-geostationary orbit (NGSO) space

TABLE 1 TO PARAGRAPH (a)

Fee category Fee amount

Space Stations (Geostationary Orbit) ...... $98,125 Space Stations (Non-Geostationary Orbit) ...... 223,500 Earth Stations: Transmit/Receive & Transmit only (per authorization or registration) ...... 560

(b) International terrestrial and includes active circuits to themselves or purposes of this paragrpah (b) include satellite Bearer Circuits. (1) Regulatory to their affiliates. In addition, non- backup and redundant circuits. In fees for International Bearer Circuits are common carrier terrestrial and satellite addition, whether circuits are used to be paid by facilities-based common operators must pay a fee for each active specifically for voice or data is not carriers that have active (used or leased) circuit sold or leased to any customer, relevant in determining that they are international bearer circuits as of including themselves or their affiliates, active circuits. December 31 of the prior year in any other than an international common terrestrial or satellite transmission carrier authorized by the Commission to (2) The fee amount, per active Gbps facility for the provision of service to an provide U.S. international common circuit will be determined for each fiscal end user or resale carrier, which carrier services. ‘‘Active circuits’’ for year.

TABLE 2 TO PARAGRAPH (b)(2)

International terrestrial and satellite (capacity as of December 31, 2019) Fee amount

Terrestrial Common Carrier and Non Common Carrier ...... $41 per Gbps circuit. Satellite Common Carrier and Non-Common Carrier

(c) Submarine cable. Regulatory fees for all submarine cable systems fee amount will be determined by the for submarine cable systems will be operating based on their lit capacity as Commission for each fiscal year. paid annually, per cable landing license, of December 31 of the prior year. The

TABLE 3 TO PARAGRAPH (c)—FY 2020 INTERNATIONAL BEARER CIRCUITS—SUBMARINE CABLE SYSTEMS

FY 2020 Submarine cable systems (lit capacity as of December 31, 2019) Fee ratio regulatory fees

Less than 50 Gbps ...... 0625 Units ...... $13,450 50 Gbps or greater, but less than 250 Gbps ...... 125 Units ...... 26,875 250 Gbps or greater, but less than 1,500 Gbps ...... 25 Units ...... 53,750 1,500 Gbps or greater, but less than 3,500 Gbps ...... 5 Units ...... 107,500 3,500 Gbps or greater, but less than 6,500 Gbps ...... 1.0 Unit ...... 215,000 6,500 Gbps or greater ...... 2.0 Units ...... 430,000

[FR Doc. 2020–19817 Filed 9–22–20; 8:45 am] BILLING CODE 6712–01–P

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Part III

Department of Education

Office of the Secretary 34 CFR Parts 75 and 76 Office for Civil Rights 34 CFR Part 106 Office of Postsecondary Education 34 CFR Parts 606, 607, 608, and 609 Direct Grant Programs, State-Administered Formula Grant Programs, Non Discrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, Developing Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and Universities Program, and Strengthening Historically Black Graduate Institutions Program; Final Rule

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DEPARTMENT OF EDUCATION exemption provided under Title IX, 20 prescribe what shall be orthodox in U.S.C. 1681(a)(3), to the extent Title IX politics, nationalism, religion, or other Office of the Secretary or its implementing regulations would matters of opinion or force citizens to not be consistent with the religious confess by word or act their faith 34 CFR Parts 75 and 76 tenets of such organization. therein.’’ 5 As a result, officials at public DATES: This final rule is effective institutions may not abridge their Office for Civil Rights November 23, 2020. students’ or employees’ expressions, 6 FOR FURTHER INFORMATION CONTACT: ideas, or thoughts. 34 CFR Part 106 In a significant opinion, Keyishian v. Sophia McArdle, U.S. Department of Board of Regents of the University of the Education, 400 Maryland Avenue SW, Office of Postsecondary Education State of New York, the Supreme Court Room 290–44, Washington, DC 20202. observed, ‘‘Our Nation is deeply Telephone: 202–453–6318. Email: 34 CFR Parts 606, 607, 608, and 609 committed to safeguarding academic [email protected]. freedom, which is of transcendent value If you use a telecommunications [Docket ID ED–2019–OPE–0080] to all of us and not merely to the device for the deaf (TDD) or a text RIN 1840–AD45 teachers concerned. That freedom is telephone (TTY), call the Federal Relay therefore a special concern of the First Service (FRS), toll free at 1–800–877– Direct Grant Programs, State- Amendment, which does not tolerate Administered Formula Grant 8339. laws that cast a pall of orthodoxy over Programs, Non Discrimination on the SUPPLEMENTARY INFORMATION: the classroom.’’ 7 Consequently, the Basis of Sex in Education Programs or First Amendment right of free Executive Summary Activities Receiving Federal Financial expression means that public officials Assistance, Developing Hispanic- Purpose of this Regulatory Action: may not discriminate against students or Serving Institutions Program, Through these final regulations, the employees based on their viewpoints.8 Strengthening Institutions Program, Department reinforces First Amendment For example, public institutions cannot Strengthening Historically Black freedoms such as the freedom of speech charge groups excessive security costs Colleges and Universities Program, and free exercise of religion. On March ‘‘simply because [these groups and their and Strengthening Historically Black 21, 2019, President Trump signed speakers] might offend a hostile mob.’’ 9 Graduate Institutions Program Executive Order 13864, Improving Free In a landmark opinion, Tinker v. Des Inquiry, Transparency, and Moines Independent Community School AGENCY: Office for Civil Rights, Office of Accountability at Colleges and District, the Supreme Court Postsecondary Education, Department of Universities.1 In response to this acknowledged more than half a century Education. Executive Order, as well as the First ago that ‘‘[i]t can hardly be argued that ACTION: Final rule. Amendment, and the Secretary’s general either students or teachers shed their authority under 20 U.S.C. 1221e–3, the constitutional rights to freedom of SUMMARY: In response to Executive Department endeavors to ensure that all speech or expression at the schoolhouse Order 13864 (Improving Free Inquiry, institutions of higher education, as gate.’’ 10 These final regulations help Transparency, and Accountability at defined in 20 U.S.C. 1002(a), that ensure that students and teachers will Colleges and Universities), the receive Federal research or education retain their constitutional rights to Department of Education revises its grants 2 from the Department ‘‘promote freedom of speech at public institutions. current regulations to encourage free inquiry.’’ 3 Denying free inquiry is Academic freedom is another aspect institutions of higher education to foster inherently harmful at any institution of of freedom of speech, as ‘‘[f]reedom of environments that promote open, higher education because students are speech secures freedom of thought and intellectually engaging, and diverse denied the opportunity to learn and belief.’’ 11 Academic freedom is an debate, including through compliance faculty members are denied the indispensable aspect of the ‘‘freedom of with the First Amendment to the U.S. opportunity to freely engage in research thought and belief’’ to which Constitution for public institutions and and rigorous academic discourse. individuals across educational compliance with stated institutional Both Executive Order 13864 and these institutions, including private ones, may policies regarding freedom of speech, final regulations are intended to enjoy.12 It follows that academic including academic freedom, for private promote the First Amendment’s freedom is intertwined with, and is a institutions. These regulations also guarantees of free expression and predicate to, freedom of speech itself; require a public institution to not deny academic freedom, as the courts have and injury to one is tantamount to a religious student organization any of construed them; to align with Federal the rights, benefits, or privileges that are statutes to protect free expression in 5 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. otherwise afforded to other student schools; 4 and to protect free speech on 624, 642 (1943). 6 Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 organizations. In response to recent campuses nationwide. Under the decisions from United States Supreme U.S. 503, 505–07 (1969). Supreme Court’s First Amendment 7 385 U.S. 589, 603 (1967). Court’s decisions, the Department jurisprudence protecting the 8 See, e.g., Rosenberger v. Rector & Visitors of revises its current regulations regarding individual’s right to his own ideas and Univ. of Va., 515 U.S. 819, 829–30 (1995). grant programs authorized under titles beliefs, ‘‘no official, high or petty, can 9 Forsyth Cnty., Ga. v. Nationalist Mov’t, 505 U.S. III and V of the Higher Education Act of 123, 134–35 (1992); see also College Republicans of the Univ. of Wash. v. Cauce, No. C18–189–MJP, 1965, as amended (HEA), and the 1 84 FR 11402. 2018 WL 804497 (W.D. Wash. Feb. 9, 2018) eligibility of students to obtain certain 2 Exec. Order No. 13864, section 3(c) defines (holding University of Washington Security Fee benefits under those programs. The ‘‘federal research or education grants’’ as ‘‘all Policy violates the students’ First Amendment Department also revises its current funding provided by a covered agency directly to rights to freedom of speech and expression). regulations to clarify how educational an institution but do not include funding associated 10 393 U.S. at 506. with Federal student aid programs that cover 11 Nat’l Inst. of Family and Life Advocates v. institutions may demonstrate that they tuition, fees, or stipends.’’ Becerra, 138 S. Ct. 2361, 2379 (2018) (NIFLA) are controlled by a religious 3 Id. section 3(a). (Kennedy, J., concurring). organization to qualify for the 4 20 U.S.C. 1011a; 20 U.S.C. 4071. 12 Id.

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injury to both. Academic freedom’s participation in protected speech or complies with the First Amendment, noble premise is that the vigilant protected association, be excluded from and the Department cannot force any protection of free speech unshackled participation in, be denied the benefits religiously affiliated school to from the demands and constraints of of, or be subjected to discrimination or compromise the free exercise of its censorship will help generate new official sanction under [numerous] religion. thoughts, ideas, knowledge, and even education program[s], activit[ies], or Indeed, these final regulations help questions and doubts about previously division[s] of the institution[s] directly protect the right to free exercise of undisputed ideas. Although academic or indirectly receiving financial religion for both institutions and freedom’s value derives itself from the assistance.’’ 17 Congress has also students. Generally, the government fact that its ‘‘results . . . are to the articulated that ‘‘an institution of higher may not force institutions and students general benefit in the long run,’’ education should facilitate the free and to choose between exercising their academic freedom is also inherently open exchange of ideas,’’ and ‘‘students religion or participating in a publicly important in a free society.13 should not be intimidated, harassed, available government benefit program.20 Academic freedom, just like freedom discouraged from speaking out, or In accordance with this principle, no of speech itself, is predicated on the discriminated against’’ on account of religious student organization should be principle that thoughts, arguments, and their speech, ideas or expression.18 And forced to choose between their religion ideas should be expressed by since 1871, Congress has made and receiving the benefits, rights, and individuals and assessed by listeners on actionable violations of the First privileges that other student their own merit, rather than the censor’s Amendment by those acting in an organizations receive from a public coercion. Academic freedom insists on official government capacity, whether institution. Religious student the freedom and power of speech so that on campuses or elsewhere.19 Congress, organizations should be able to enjoy the speaker has a fair opportunity to thus, disapproves of the suppression of the benefits, rights, and privileges convince the listener of an idea and the or discrimination against ideas in the afforded to other student organizations listener a fair opportunity to be academic setting. at a public institution. Similarly, persuaded. The confluence of free To be certain, the Department will institutions that participate in Federal speech and academic freedom is honor the institutional mission of programs under Title III and Title V of nothing new as far as the United States’ private institutions, including their the HEA and their students should be educational institutions are concerned. religious mission. To this end, the final able to freely exercise their religion in As Yale University, a private American regulations do not require a private accordance with the First Amendment institution of higher learning, institution to ensure freedom of speech, and RFRA.21 Laws and policies which acknowledged almost half a century ago: including academic freedom, unless it provide public benefits in a way that is Because ‘‘[t]he primary function of a chooses to do so through its own stated ‘‘neutral and generally applicable university is to discover and institutional policies. Private without regard to religion’’ do not disseminate knowledge by means of institutions, however, cannot promise ordinarily offend the First Amendment, research and teaching,’’ ‘‘the university students, faculty, and others but policies that ‘‘single out the must do everything possible to ensure opportunities to engage in free speech, religious for disfavored treatment’’ within it the fullest degree of including academic freedom, in stated violate the Free Exercise Clause.22 The intellectual freedom.’’ 14 Yale further institutional policies without delivering Free Exercise Clause ‘‘ ‘protect[s] deduced that ‘‘[t]he history of on this promise. These private religious observers against unequal intellectual growth and discovery institutions must comply with whatever treatment’ ’’ 23 and ‘‘guard[s] against the clearly demonstrates the need for stated institutional policies regarding government’s imposition of ‘special unfettered freedom, the right to think freedom of speech, including academic disabilities on the basis of religious the unthinkable, discuss the freedom, that they choose to adopt. views or religious status.’ ’’ 24 unmentionable, and challenge the Religiously affiliated institutions, in Accordingly, public institutions cannot 15 unchallengeable.’’ When free speech freely exercising their faith, may define exclude religious student organizations is suppressed, academic freedom is the their free speech policies as they choose from receiving neutral and generally casualty many times over, ‘‘for whoever in a manner consistent with their available government benefits.25 These deprives another of the right to state mission. The final regulations do not final regulations help ensure that unpopular views necessarily also mandate that religiously affiliated religious institutions as well as their deprives others of the right to listen to students fully retain their right to free 16 institutions adopt any particular those views.’’ Neither harm is policies in order to participate in the tolerable, and these regulations Department’s grants and programs. In 20 Trinity Lutheran, 137 S. Ct. at 2024. endeavor to protect academic freedom, other words, the final regulations do not 21 Little Sisters of the Poor Saints Peter and Paul as a part of free speech, at institutions Home v. Pennsylvania, 140 S. Ct. 2367 (2020); require any private institution to adopt Espinoza v. Montana Department of Revenue, 140 of higher education. a campus free speech policy that Executive Order 13864 and the final S. Ct. 2246 (2020); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). regulations also align with Federal 17 20 U.S.C. 1011a. In the same section, Congress The Department also considered the Religious statutes to protect free inquiry. Congress has defined ‘‘protected speech’’ as ‘‘speech that is Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb, has expressed that ‘‘no student protected under the first and 14th amendments to et seq., the United States Attorney General’s attending an institution of higher the Constitution, or would be protected if the October 6, 2017 Memorandum on Federal Law Protections for Religious Liberty, Executive Order education . . . should, on the basis of institution of higher education involved were subject to those amendments,’’ 20 U.S.C. 13798 (Promoting Free Speech and Religious 1011a(c)(3); and has defined ‘‘protected Liberty), and Executive Order 13831 (Establishment 13 Chairman’s Letter to the Fellows of the Yale association’’ as ‘‘the joining, assembling, and of a White House Faith and Opportunity Initiative). Corporation, Report of the Committee on Freedom residing with others that is protected under the first 22 Trinity Lutheran, 137 S. Ct. at 2020. of Expression at Yale, Yale University (Dec. 23, and 14th amendments to the Constitution, or would 23 Id. at 2019 (quoting Church of Lukumi Babalu 1974) (Yale Report on Freedom of Expression). be protected if the institution of higher education Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 14 Yale Report on Freedom of Expression, supra involved were subject to those amendments,’’ 20 (1993)). (emphasis added). U.S.C. 1011a(c)(2). 24 Id. at 2021 (quoting Emp’t Div., Dep’t of Human 15 Id. 18 20 U.S.C. 1011a(2)(C)–(D). Res. of Ore. v. Smith, 494 U.S. 872, 877 (1990)). 16 Id. 19 42 U.S.C. 1983. 25 Id. at 2024–25.

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exercise of religion with respect to the institutions of varying denominations.27 they are controlled by a religious Department’s programs under Title III The Department also must take into organization and, thus, eligible to claim and V of the HEA. account RFRA in promulgating its an exemption to the application of Title Finally, Title IX provides that it shall regulations and must not substantially IX and its implementing regulations to not apply to an educational institution burden a person’s exercise of religion the extent Title IX and its implementing which is controlled by a religious through its regulations.28 The regulations would not be consistent organization if the application of Title Department’s non-exclusive list of with the institutions’ religious tenets or IX or its implementing regulations criteria for an institution to demonstrate practices; and would not be consistent with the that it is controlled by a religious • Amend regulations governing the religious tenets of such organization but organization reflect some methods that Developing Hispanic-Serving does not directly address how its Office for Civil Rights has used to Institutions Program, Strengthening educational institutions demonstrate evaluate and respond to a recipient’s Institutions Program, Strengthening whether they are controlled by a assertion of a religious exemption under Historically Black Colleges and religious organization.26 Nor does the Title IX. The final regulations, thus, Universities Program, and Strengthening statute provide necessary clarity that a offer educational institutions different Historically Black Graduate Institutions recipient can itself be a religious methods to demonstrate that they are Program by defining ‘‘school or organization that controls its own eligible to assert an exemption to the department of divinity’’ to be more operations, curriculum, or other extent application of Title IX and its consistent with the First Amendment features. These final regulations codify implementing regulations would not be and other Federal laws and by removing existing factors that the Assistant consistent with the institutions’ language that prohibits use of funds for Secretary for Civil Rights uses when religious tenets or practices. otherwise allowable activities if they evaluating a request for a religious Summary of the Major Provisions of merely relate to ‘‘religious worship’’ and exemption assurance from the Office for this Regulatory Action: The Department ‘‘theological subjects’’ and replace it Civil Rights and also address concerns promulgates these final regulations to: with language that more narrowly that there may be other means of • Require public institutions of defines the limitations in a manner establishing the requisite control. Many higher education that receive a Direct consistent with the First Amendment of these factors that the Assistant Grant or subgrant from a State- and other Federal laws. Secretary considers, however, have been Administered Formula grant program of Costs and Benefits: The Department included in non-binding guidance the Department to comply with the First estimates that these final regulations dating back more than 30 years. Amendment, as a material condition of would result in one-time costs of Accordingly, the Department provides the grant; approximately $297,770 and would clear terms in these final regulations to • Require private institutions that benefit the general public and grantees provide recipients and other receive a Direct Grant or subgrant from by improving the clarity of the stakeholders with clarity regarding what a State-Administered Formula Grant regulations. it means to be ‘‘controlled by a religious program of the Department to comply Timing, Comments, and Changes organization.’’ This clarity will create with their stated institutional policies On January 17, 2020, the Secretary more predictability, consistency in on freedom of speech, including published a notice of proposed enforcement, and confidence for academic freedom, as a material rulemaking (NPRM) for these parts in educational institutions asserting the condition of the grant; the Federal Register.29 The NPRM exemption. • Require that a public institution included proposed regulations that were The Department recognizes that receiving a Direct Grant or subgrant the same as or substantially similar to religious organizations are organized in from a State-Administered Formula regulations that other agencies proposed widely different ways that reflect their Grant program of the Department not about the rights and obligations of faith- respective theologies. Some educational deny to a faith-based student institutions are controlled by a board of based organizations with respect to organization any of the rights, benefits, grants.30 The NPRM also included trustees that includes ecclesiastical or privileges that are otherwise afforded leaders from a particular religion or proposed regulations that other agencies to non-faith-based student did not include and that were specific religious organization who have organizations, as a material condition of ultimate decision-making authority for to the Department of Education such as the grant; regulations regarding free inquiry, Title the educational institutions. Other • Add a non-exhaustive list of criteria educational institutions are effectively IX of the Education Amendments Act of that offers educational institutions 1972, and various programs such as the controlled by religious organizations different methods to demonstrate that that have a non-hierarchical structure, Developing Hispanic-Serving Institutions Program, Strengthening such as a congregational structure. The 27 Larson v. Valente, 456 U.S. 228, 244 (1982) Department does not discriminate (‘‘The clearest command of the Establishment Institutions Program, Strengthening against educational institutions that are Clause is that one religious denomination cannot be controlled by religious organizations officially preferred over another.’’); see also 29 Uniform Administrative Requirements, Cost Hosanna-Tabor Evangelical Lutheran Church & Principles, and Audit Requirements for Federal with different types of structures. Sch. v. EEOC, 565 U.S. 171, 202 (2012) (Alito, J., Awards, Direct Grant Programs, State-Administered Indeed, the Department has long concurring; joined by Kagan, J.) (arguing that a Formula Grant Programs, Developing Hispanic- recognized exemptions for educational broad, functionalist interpretation of religious Serving Institutions Program, and Strengthening institutions that are controlled by teachers for purposes of the ministerial exception Institutions Program, 85 FR 3190 (proposed Jan. 17, religious organizations with hierarchical is necessary to be inclusive of faiths like Islam and 2020). Jehovah’s Witnesses). 30 Compare 85 FR 3190, with 85 FR 2889 and non-hierarchical structures. 28 Little Sisters of the Poor Saints Peter and Paul (Department of Homeland Security), 85 FR 2897 The Department is constitutionally Home, 140 S. Ct. 2367, 2384 (2020) (stating that a (Department of Agriculture), 85 FR 2916 (U.S. obligated to broadly interpret federal agency would be susceptible to claims that Agency for International Development), 85 FR 2921 ‘‘controlled by a religious organization’’ a rule was arbitrary and capricious if it did not (Department of Justice), 85 FR 2929 (Department of consider the requirements of RFRA in formulating Labor), 85 FR 2938 (Department of Veterans to avoid religious discrimination among administrative solutions, and further, that it is not Affairs), 85 FR 2974 (Department of Health and error for a federal agency to look to RFRA as a guide Human Services), and 85 FR 8215 (Department of 26 20 U.S.C. 1681(a)(3). when framing a religious exemption). Housing and Urban Development).

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Historically Black Colleges and rule would produce beneficial effects condition for receiving grants from the Universities Program, and Strengthening because it would promote intellectually Department and of requiring private Historically Black Graduate Institutions vibrant and ideologically diverse institutions to comply with their own Program. This Final Rule consists of the educational communities. Commenters stated institutional policies regarding regulations that are unique to the commended the Department for freedom of speech, including academic Department of Education. The recognizing that the First Amendment freedom, as a material condition for remainder of the proposed regulations applies to public institutions of higher receiving grants from the Department. in the NPRM, including proposed education but not to private institutions The beneficial effects may include changes to 2 CFR 3474.15, 34 CFR of higher education. One commenter encouraging both public and private 75.51, 34 CFR 75.52, 34 CFR 75.712, 34 emphasized the importance of the institutions to foster environments that CFR 75.713, 34 CFR 75.714, Appendix Department respecting the role of the promote open, intellectually engaging, A to Part 75, Appendix B to Part 75, 34 courts in assessing the constitutionality and diverse debate. Free inquiry is an CFR 76.52, 34 CFR 76.712, 34 CFR of institutional policies and practices essential feature of our Nation’s 76.713, and 34 CFR 76.714, as well as that may violate the First Amendment democracy, and it promotes learning, the addition of a severability clause in and asserted that the proposed rule scientific discovery, and economic 34 CFR 3474.21, 34 CFR 75.63, and 34 appropriately leaves these prosperity. Indeed, the proposed CFR 76.53, will be promulgated through determinations to the courts. The regulations are intended to promote the a subsequent final rule. Consequently, commenter also expressed support for First Amendment’s guarantees of free there is a new Regulation Identification the Department in leaving private expression and academic freedom, as Number (RIN) for this rule (1840– institutions with the choice of whether the courts have construed them; to align AD45). Where a severability clause is to extend free speech protections to with Federal statutes to protect free being added to a subpart for which their students and faculty. This expression in schools; and to protect regulations are included in both final commenter suggested that for the free speech on campuses nationwide. As rules, the severability clause is included Department to impose First Amendment one commenter observed, reinforcing in only one of the two regulatory obligations on private institutions could intellectual diversity and freedom of packages. However, the severability potentially violate their own First speech on college campuses may be clauses will apply to all applicable Amendment rights. One commenter especially necessary, given the speech- rules, when published, and our expressed concerns regarding the rise of restrictive policies and actions some explanation of the reasoning for the ‘‘free speech zone’’ policies that limit institutions have taken in recent years.31 addition of these clauses in the NPRM the physical areas where students may Furthermore, we agree with commenters continues to apply. This final rule engage in demonstrations and other who noted it is appropriate for the contains changes from the NRPM, expressive activities, burdensome and Department to rely on the judiciary as which are fully explained in the potentially biased permitting processes, the primary arbiter of alleged violations Analysis of Comments and Changes and overbroad discriminatory of First Amendment freedoms section of this document. harassment policies that may have the concerning public institutions and effect of stifling free speech on college alleged violations of free speech Public Comment campuses and violating the First protections in stated institutional In response to our invitation in the Amendment at public institutions. This policies of private institutions. The NPRM, we received more than 17,000 commenter expressed some optimism courts have cultivated a well-developed comments on the proposed regulations. that the proposed rule would alter and intricate body of relevant case law We discuss substantive issues under institutions’ risk-benefit analysis when topical headings, and by the sections of 31 See In re Awad v. Fordham Univ., 2019 N.Y. setting and defending their policies and Slip Op. 51418(U) (N.Y. Sup. Ct. Jul. 29, 2019) the final regulations to which they actions, which may result in a (holding private university’s refusal to recognize a pertain. significant decrease in restrictive speech chapter of Students for Justice in Palestine was codes. Another commenter specifically contrary to the university’s mission statement Analysis of Comments and Changes guaranteeing freedom of inquiry); McAdams v. supported the inclusion of language Marquette Univ., 914 NW2d 708, 737 (Wis. 2018) An analysis of the public comments clarifying that private institutions are (holding private university breached its contract and a discussion of changes made free to honor their institutional policies with a professor over a personal blog post because, following publication of the NPRM by virtue of its adoption of the 1940 American and stated missions, specifically Association of University Professors (AAUP) follow below. religious missions, particularly as they Statement of Principles on Academic Freedom, the 34 CFR 75.500(b)–(c) and 34 CFR relate to freedom of speech and post was ‘‘a contractually-disqualified basis for academic freedom. They stated that discipline’’); Young America’s Found. v. 76.500(b)–(c)—Free Inquiry Napolitano, Case No. 3:17–cv–02255 (N.D. Cal. recognizing the autonomy of private Nov. 10, 2017) (Amended Complaint); id. (Doc. No. General Support institutions in this way respects the 44) (Statement of Interest by the U.S. Department freedom that allows for an array of rich, of Justice, stating that the University of California Comments: Several commenters at Berkeley policies violated the First Amendment); expressed general support for the diverse educational options. Shaw v. Burke, Case No. 2:17–cv–02386 (C.D. Cal. proposed rule’s free inquiry provisions Discussion: The Department Mar. 28, 2017) (Complaint); id. (Doc. No. 39) in 34 CFR 75.500 and 34 CFR 76.500. appreciates the general support from (Statement of Interest by the U.S. Department of Justice, stating that Pierce Community College’s Commenters stated that students should commenters for the free inquiry policies violated the First Amendment); see also not be shielded from ideas that might provisions contained in § 75.500(b) and Community College Agrees to Resolve Free Speech offend them because that may leave (c), which apply to Direct Grant Lawsuit, Associated Press (Jan. 23, 2018, 11:43 them ill-prepared to compete in the Programs, and § 76.500(b) and (c), a.m.), https://www.detroitnews.com/story/news/ local/michigan/2018/01/23/constitution-arrest- global marketplace of ideas. These which apply to State-Administered battle-creek-community-college/109735506/; Tal commenters expressed concern that Formula Grant Programs. The Kopan, Student stopped from handing out policies that insulate students from Department acknowledges the beneficial Constitutions on Constitution Day sues, Politico: different perspectives would undermine effects of requiring public institutions to Under the Radar (Oct. 10, 2013, 2:47 p.m.), https:// www.politico.com/blogs/under-the-radar/2013/10/ their ability to think critically. Some comply with the First Amendment to student-stopped-from-handing-out-constitutions- commenters stated that the proposed the U.S. Constitution as a material on-constitution-day-sues-174792.

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and may serve as the primary decision- easier to achieve compliance and reduce ‘‘Absent such a final, non-default making body with respect to free speech the risk of potentially losing Federal judgment, the Department will deem the matters under the final rule. As noted by funding, and stated that this would have public institution to be in compliance commenters, the final regulations also the effect of undermining the with the First Amendment.’’ Similarly, accurately recognize that the First Department’s goal of protecting free these final regulations clearly state in Amendment applies to public speech. One commenter argued that §§ 75.500(c)(1) and 76.500(c)(1): institutions and not private institutions, plaintiffs’ attorneys could effectively ‘‘Absent such a final, non-default and that private institutions may choose threaten public institutions with judgment, the Department will deem the stated institutional policies regarding potential loss of Federal funding if they private institution to be in compliance freedom of speech that reflect their do not agree to their demands, which with its stated institutional policies.’’ values. As explained later in this may undermine the constitutional State Rather than expose institutions to preamble, only public institutions that sovereign immunity doctrine that is liability from frivolous litigation, the are legally required to abide by the First designed to protect States. Department anticipates that State and Amendment must do so as a material Another commenter suggested that by Federal courts will continue to condition of a grant. raising the stakes of free speech recognize and dismiss any frivolous Changes: None. litigation for institutions, the final claims and adjudicate meritorious regulations may have the unintended General Litigation Concerns claims to appropriately vindicate the effect of pressuring courts not to find free speech rights of students, faculty, Comments: Many commenters such violations. To avoid this potential administrators, and other stakeholders. expressed concern that the proposed problem, the commenter suggested an Nothing in the final regulations rule would encourage excessive and alternative framework where the prohibits institutions from adopting frivolous litigation that may have Department would codify well- harmful effects on institutions of higher established First Amendment standards alternative dispute resolution processes education and students. One commenter as set forth by the Supreme Court into to resolve claims. We acknowledge that noted that litigation may not be the the final regulations instead of tying the some grantees may, in the event that ideal way to resolve free speech issues analysis to the outcome of litigation. they face a lawsuit alleging violations of and suggested that other forms of This commenter argued that adopting the First Amendment or institutional dispute resolution in the educational this approach through a formal notice- policies regarding freedom of speech, context may be more immediate and and-comment regulation would have the shift their litigation strategies to avoid a effective. Commenters argued that the added benefit of depoliticizing the final, non-default judgment by a Federal proposed rule would result in an enforcement of these rights without the or State court against them. To the increasing number and frequency of possibility of adverse effects on extent that they do so, such actions speech-related litigation against both litigation. could result in additional costs to public and private institutions, and that Discussion: It is not the intent of the grantees that they would not incur in this would only increase college and Department to subject public and the absence of the rule. However, university costs for students. private institutions to excessive and institutions may shift litigation Institutions would have to devote more frivolous litigation, unfairly pressure strategies for other reasons, such as to resources to lawyers and litigation institutions to change their litigation conserve resources through settlement personnel instead of on core educational strategies to avoid unfavorable court rather than seeking to prevail in court, functions of teaching, research, and judgments, discourage institutions from or for public relations and reputational service, which would ultimately harm adopting alternative dispute resolution purposes. Such violations of the First students. One commenter asserted that processes, discourage private Amendment or stated institutional by tying Federal grant money to the institutions from adopting stated policies ultimately result in harm to outcome of speech-related disputes, the institutional policies regarding free students with respect to the functions of proposed rule will incentivize plaintiffs’ speech, increase the costs of higher teaching, research, and service because attorneys to add frivolous free speech education and exacerbate affordability they will not be exposed to the claims to every lawsuit to pressure issues, distract institutions from their marketplace of ideas that is essential to institutions to settle. This commenter core educational functions, or to learning and education. With respect to reasoned that the proposed rule would otherwise harm students. The any potential costs for failing to comply undermine the Department’s free speech Department disagrees that the proposed with the First Amendment or stated goals by discouraging responsive and or final regulations encourage frivolous institutional policies, the Department immediate resolution of free speech litigation. Institutions are not required does not terminate an institution’s grant claims because institutions would have to report any lawsuit against a public as a first resort. The Department has not an incentive to appeal adverse court institution alleging a violation of First historically suspended or terminated a judgments instead of reaching a post- Amendment rights or any lawsuit Federal award or debarred a grantee as trial and pre-appeal resolution with against a private institution alleging a the first measure in addressing a plaintiffs. This commenter also violation of stated institutional policies violation and instead first attempts to suggested that by exposing institutions regarding freedom of speech, including secure voluntary compliance from the to the risk of being deemed in violation academic freedom. Additionally, grantee. Indeed, the Department’s of a material condition of their grant, the frivolous litigation does not result in a regulations provide that the Department proposed rule would add more pressure final, non-default judgment against the may suspend or terminate a Federal on institutions to avoid final adverse institution, and an institution’s grant award or debar a grantee, if there is a judgments by either settling before trial from the Department may only be in continued lack of compliance and if or by appealing the judgment. The jeopardy under these final regulations if imposing additional, specific conditions commenter expressed concern that the there is a final, non-default judgment is not successful.32 We do not believe it proposed rule may perversely encourage against the institution or an employee private institutions to eliminate or acting on behalf of the institution. These 32 See 34 CFR 75.901 (referencing 2 CFR 200.338); otherwise limit their stated institutional final regulations clearly state in 2 CFR 200.338 (stating Federal awarding agency policies regarding free speech to make it §§ 75.500(b)(1) and 76.500(b)(1): may suspend or terminate an award if

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is likely that such violations, if they do sovereign immunity and instead defendant ‘‘knowingly’’ submitting a occur, would result in a substantial recognize that employees acting on false or fraudulent claim for payment or number of grants being terminated behalf of a public institution are prone making false statements material to a unless the institution refuses after a to be sued under 42 U.S.C. 1983, if they false or fraudulent claim, apply final, non-default judgment to violate the First Amendment. regardless of a separate court judgment voluntarily comply with the First The Department agrees with the finding non-compliance. The Amendment or its own stated general assertion made by one commenter also stated that the proposed institutional policies regarding freedom commenter that the formal notice-and- rule purportedly linking FCA liability to of speech, including academic freedom, comment rulemaking process may have private institutional policies on free or any special conditions that the the benefit of de-politicizing regulatory inquiry and expression would create an Department may impose to achieve such enforcement. We, however, respectfully uneven playing field because FCA compliance. Accordingly, we believe disagree with the propositions that First liability is generally tied to fairly any effect on the litigation strategy of Amendment case law should be uniform regulations, statutes, and grantees is difficult to predict and codified in the final regulations and that contractual provisions. And the would be contingent on the unique facts the Department should have commenter asserted that the proposed and circumstances of each case. The responsibility for adjudicating rule failed to provide guidance on what Department also wishes to emphasize violations. The reality is that First type of conduct would be imputed to a that courts repeatedly have been called Amendment law is subject to change private institution. The commenter cited upon to vindicate the free speech rights over time. We considered the possibility Supreme Court precedent for the of students, faculty, and other that the Department itself should proposition that the government merely stakeholders on college campuses. The adjudicate claims alleging that a public claiming a condition is material, as the Department believes that State and institution violated the First Department purportedly did in the Federal courts are appropriate Amendment or alleging that a private proposed rule, does not by itself satisfy adjudicators of free speech violations institution violated its stated the materiality requirement under the under the final rule, and we believe they institutional policies regarding freedom FCA. Because of these concerns, the adjudicate such matters fairly and of speech, and the Department commenter recommended that the dispassionately. The Department is the ultimately decided against this Department remove language from the arbiter of the proper penalty, if any, alternative as both State and Federal preamble that would require private with respect to a public institution that courts have a well-developed body of institutions to certify to the Secretary violates the First Amendment or a case law concerning First Amendment their compliance with institutional private institution that violates its own freedoms as well as breach of contract policies on free speech as a material stated institutional policies regarding cases or other claims that may be condition of an award. Requiring such freedom of speech, including academic brought with respect to stated certification may increase potential FCA freedom. We note that one commenter institutional policies. exposure, result in a flood of baseless Changes: None. who raised the issue of State sovereign qui tam cases, and impose a substantial immunity did not appear to explain Potential False Claims Act (FCA) burden on private institutions. The exactly how that doctrine would be Liability commenter stated that if the Department implicated by potentially withholding Comments: Some commenters stated opts to retain the certification grant funds from public institutions for requirement then it should explicitly violating First Amendment rights, as that the proposed rule would result in a flood of frivolous FCA claims against clarify that the FCA is an independent determined in a final court judgment statute with standalone requirements issued by a State or Federal court. States private institutions under 31 U.S.C. 3729, et seq. Commenters were that must be proven by a preponderance are subject to the First Amendment of the evidence for a court to find a 33 concerned that inaccurate certifications through the Fourteenth Amendment, violation. and Congress may abrogate State of compliance submitted to the Discussion: The Department wishes to sovereign immunity for violations of the Secretary by private institutions may clarify that, and as one commenter First Amendment through legislation give rise to FCA liability. One correctly observed, the FCA is a separate under section 5 of the Fourteenth commenter noted that FCA actions may statute with distinct elements that must Amendment. The Department’s final result in treble damages plus sizable be established to prove liability. Indeed, regulations recognize that Congress penalties, which could create a the Department never stated that a provided a right of action in 42 U.S.C. significant incentive for private private institution’s failure to comply 1983 for violations of the First individuals or organizations to file qui with its own stated institutional policies Amendment by those acting in an tam cases. Commenters asserted that is a per se violation of the FCA. Rather, official government capacity, whether frivolous FCA litigation would impose substantial costs and disruption on and as the Department clearly noted in on campuses or elsewhere.34 These final private institutions and result in less, the preamble of its NPRM, the regulations do not in any way abrogate not more, protection of free inquiry and Department considers the condition that noncompliance cannot be remedied by imposing expression. One commenter argued that private institutions comply with their additional conditions); 34 CFR 76.401. the preamble wrongly suggested that the stated institutional policies regarding 33 De Jonge v. Oregon, 299 U.S. 353, 364 (1937) Department will treat final judgments of freedom of speech to be a material (‘‘Freedom of speech and of the press are non-compliance with institutional condition of the Department’s grant. fundamental rights which are safeguarded by the policies on free inquiry and expression Similarly, the Department considers the due process clause of the Fourteenth Amendment of the Federal Constitution.... The right of as per se FCA violations. This condition that public institutions peaceable assembly is a right cognate to those of commenter suggested such legal comply with the First Amendment to free speech and free press and is equally reasoning is flawed because the FCA is the U.S. Constitution to be a material fundamental.’’); Cantwell v. Connecticut, 310 U.S. a standalone statute with different condition of the Department’s grant. The 296, 303–04 (1940); Near v. Minnesota, 283 U.S. 697, 707 (1931). elements that plaintiffs must satisfy by Department has revised §§ 75.500(b)–(c) 34 See, e.g., Edelman v. Jordan, 415 U.S. 651 a preponderance of the evidence; these and 76.500(b)–(c) to expressly state that (1974); Ex parte Young, 209 U.S. 123 (1908). statutory requirements such as the such conditions are material conditions

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of the Department’s grant. The institution’s stated institutional policies student organization that promotes hate Department correctly noted in its NPRM reflect the values of that institution. speech prohibited by the public and maintains its position that if private Students may select institutions based institution’s policies, but a private institutions fail to comply with their on values reflected in stated institution in the same situation would own stated institutional policies institutional policies, and students pay not. regarding freedom of speech, including tuition and other fees in anticipation Commenters also emphasized that academic freedom, then such that the institution will comply with its tying Federal funding for public noncompliance may satisfy the stated institutional policies. institutions to First Amendment materiality requirement for FCA We do not wish to eliminate language compliance and funding for private liability.35 The Department also noted in that would require private institutions institutions to compliance with stated its NPRM that there are no cases directly to comply with their stated institutional institutional policies could result in on point under the False Claims Act policies as a material condition of a unfair treatment because different courts because the Department and other grant and explain the Department’s and jurisdictions have different Federal agencies have not previously authority to issue such regulations in jurisprudence. For example, the required compliance with stated the ‘‘Executive Orders and Other Department would create an unequal institutional policies on freedom of Requirements’’ section of this preamble. playing field where an institution could speech, including academic freedom, as Freedom of speech, including academic lose funding for engaging in the same a material condition of a grant.36 The freedom, is an integral part of learning underlying misconduct as another Department clearly states that these and education. Expressly requiring institution, but the latter did not lose conditions are material conditions in private institutions to comply with their funding because it was in a different this final rule to place institutions on stated institutional policies on freedom jurisdiction. Commenters noted that the adequate notice of the Department’s of speech, including academic freedom, First Amendment is a particularly position. However, there are other as a material condition of the complex area of law, and cases may be elements that must be proven to Department’s grant reinforces the decided by sharply divided courts. establish FCA liability. A court, and not importance of compliance and reminds One commenter suggested it may be the Department, will ultimately be the private institutions of the promises they reasonable for public institutions to rely arbiter of liability under the FCA. chose to make to their students, faculty, on dissenting First Amendment court The Department is not requiring a and other stakeholders. opinions. This commenter argued that private institution to adopt any Changes: The Department has revised the Department is incorrectly assuming particular policy regarding freedom of these final regulations to expressly state that First Amendment case law is speech, including academic freedom, in §§ 75.500(b)–(c) and 76.500(b)–(c) obvious, that public institutions should and private institutions should comply that complying with the First anticipate potential developments, and with their stated institutional policies. Amendment is a material condition of that this unfairness is compounded by Private institutions currently may face the Department’s grant for public the fact that it can take years for liability if they do not adhere to their institutions and that complying with appellate courts to resolve conflicting own stated institutional policies.37 stated institutional policies regarding First Amendment jurisprudence. Potential liability under the FCA is freedom of speech, including academic One commenter asserted that the another strong incentive for private freedom, is a material condition of the proposed rule would create an uneven institutions to comply with their own Department’s grant for private playing field between private institutions. In particular, this stated institutional policies, and the institutions. The Department made a commenter reasoned, courts in different gravity of any potential consequence technical correction to § 76.500(b)(2) to jurisdictions could reach different under the FCA serves as an adequate state ‘‘State or subgrantee’’ instead of conclusions about whether private deterrent to guard against institutions ‘‘grantee’’ to align with § 76.500(b)(1). institutions violated their stated making empty promises to its students The Department also made a technical policies. And courts may also differ on and faculty. Private institutions should correction to § 76.500(c)(2) to state the question of whether institutional accurately represent their stated ‘‘State or subgrantee’’ instead of ‘‘grantee’’ to align with § 76.500(c)(1). policies are legally binding contracts institutional policies regarding freedom These technical corrections also align such that violations may or may not give of speech and adhere to such policies. § 76.500(b)–(c) with the remainder of rise to legal remedies. The commenter Freedom of speech, including academic the regulations in Part 76 of Title 34 of expressed concern that this potential freedom, is of the utmost importance for the Code of Federal Regulations, as the inconsistency could result in some education and learning, and a private regulations in that part refer to States or private institutions losing Federal grant

35 subgrantees. funding but not other private See, e.g., Universal Health Servs., Inc. v. United institutions even where the underlying States ex rel. Escobar, 136 S. Ct. 1989, 2002–04 Unequal Treatment Between Institutions (2016). misconduct at issue is fundamentally 36 85 FR 3213 n.137. Comments: A handful of commenters the same. 37 See Doe v. Univ. of the Sciences, No. 19–2966 raised concerns that the proposed rule Discussion: The Department wishes to (3d Cir. May 29, 2020) (holding student sufficiently would result in unequal treatment of emphasize that, as a matter of law, stated a breach of contract claim that the private institution failed to provide procedural fairness as public and private institutions. One public institutions are subject to the promised in its policy); McAdams, 914 N.W.2d at commenter asserted that to hold public First Amendment, but private 737 (holding private university breached its institutions to the First Amendment institutions are not. Public institutions contract with a professor over a personal blog post while only holding private institutions that are legally required to abide by the because, by virtue of its adoption of the 1940 AAUP Statement of Principles on Academic Freedom, the to their own stated institutional policies First Amendment cannot as a matter of post was ‘‘a contractually-disqualified basis for is unfair and may raise constitutional law promulgate policies that are in discipline’’). The Department also noted in its concerns. This commenter suggested violation of the First Amendment. We NPRM that ‘‘public and private institutions also that application of the proposed rule also note that the commenter who may be held accountable to the Department for any substantial misrepresentation under the could create an illogical scenario where suggested that holding public Department’s borrower defense to repayment a public institution would lose Federal institutions to their First Amendment regulations. 34 CFR 668.71.’’ 85 FR 3213 n.137. funding for denying recognition to a obligations while holding private

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institutions to their stated institutional Amendment law or where there is a from Federal research grants where, for policies may raise constitutional split among courts in the jurisdiction example, the grants are wholly concerns did not provide an explanation over how to interpret private unrelated to First Amendment matters. as to how constitutional concerns would institutions’ stated institutional policies. The commenter expressed concern that be implicated. Nothing in this final rule Under the final rule, the Department students, researchers, and society as a requires private institutions to adopt a cannot find an institution in violation whole may suffer if research and particular stated institutional policy unless and until a State or Federal court campus programs are ended because of regarding freedom of speech, including of law has rendered a final, non-default First Amendment litigation unrelated to academic freedom, or to adopt a stated judgment against the institution. The that program. For example, the institutional policy regarding free final regulations in §§ 75.500(b)(1), commenter noted, a final judgment in a speech at all. As such, it may be (c)(1) and 76.500(b)(1), (c)(1) clearly close First Amendment case arising possible depending on the unique facts state: ‘‘A final judgment is a judgment from an unrelated area could lead to the and circumstances of a given case that that the . . . institution chooses not to termination of a TRIO grant designed to public institutions and private appeal or that is not subject to further help first-generation students graduate institutions are treated differently under appeal.’’ from college. the final rule even where the alleged Changes: None. A few commenters expressed general concern that the proposed rule leaves violation at issue is the same. Nothing The Department’s Approach Is the Department with too much latitude prohibits the Department from treating Unnecessarily Punitive public institutions differently than in determining how to punish private institutions in this regard. Comments: Some commenters institutions for noncompliance, which Indeed, the Department’s policy contended that conditioning Federal could include disbarment. One funding on compliance with the First position aligns with the different commenter suggested that the Amendment and stated institutional treatment between public and private Department could reduce the risk of policies is too extreme a punishment. institutions reflected in the law; the law public backlash by ensuring the penalty Commenters expressed concern that the subjects public institutions but not for a violation is proportional to the proposed rule is too broad because it private institutions to the First offense, such as by setting the penalty covers not only final non-default court Amendment through the Fourteenth on a sliding scale dependent on the judgments against public institutions or Amendment, while private institutions number of full-time students enrolled at private institutions but also against ‘‘any are legally subject to their own stated the institution. of its employees acting in their official institutional policies. Discussion: The Department capacity’’ for public institutions or acknowledges the general concerns The Department agrees with ‘‘employees acting on behalf of the raised by commenters that conditioning commenters who noted that the First private institution.’’ Commenters grants on compliance with the First Amendment may be a particularly asserted that this language could have Amendment for public institutions and complex area of law. It is precisely for the effect of potentially threatening on compliance with stated institutional this reason, among others, that this institutional funding based on the policies for private institutions may be regulation defers to courts as the conduct of a single rogue or unthinking unfair, excessively punitive, and adjudicators of free speech claims employee, even where the institution harmful to society in some against public and private institutions. terminated or otherwise disciplined the circumstances, and the more specific The Department believes our judicial employee whose alleged misconduct concerns raised by commenters system has the requisite expertise and resulted in an adverse court judgment. regarding private institutional liability impartiality to render such important One commenter argued that because of deriving from employee misconduct. decisions. We also acknowledge the this potential unfairness the Department With respect to concerns regarding reality raised by several commenters should remove the phrase ‘‘or an holding institutions accountable for that different jurisdictions may have employee of the private institution, their employees’ misconduct, the different interpretations of the First acting on behalf of the private Department wishes to emphasize that, Amendment and different institution’’ from the final rule. Another under the final regulations, State and interpretations of private institutions’ commenter raised the example of Federal courts, and not the Department, stated institutional policies. millions of dollars of critical Federal will have primary responsibility for Accordingly, it is possible that courts funding being withheld from an determining whether an employee may reach different conclusions with institution because of a single acting in the employee’s official respect to institutions’ free speech employee’s error or good-faith capacity violated the First Amendment compliance even where the underlying misinterpretation of institutional policy. or whether an employee acting on alleged misconduct is fundamentally This commenter emphasized the reality behalf of a private institution violated the same. Institutions, however, will be that an institution is comprised of many its stated institutional policies. The most familiar with the First Amendment different individuals, including reality is that institutions act through jurisprudence as well as other case law administrators, faculty, and employees, the people who work for them, and the in the Federal and State courts where who may have different interpretations final regulations make clear that they may be sued. Thus, it is fair to hold of the institution’s values and institutions will only be held institutions accountable to the laws that principles, and that the mens rea accountable for the actions taken by already apply to them. The Department requirement for institutional culpability their employees if the employee was also wishes to remind commenters that under the proposed rule is far too low. acting on behalf of the private nothing in the final rule would preclude The commenter reasoned that institution. We therefore believe it is the right of institutions to appeal organizations cannot always prevent important and necessary to retain adverse court judgments. This may be rogue employees from violating language in the final rule that would especially warranted and in the established policies and procedures. reflect that reality. These final institution’s best interests where, for Another commenter believed it is regulations implicate employees that are example, the matter involves an unfair and illogical to suspend, acting on behalf of the private especially complex area of First terminate, or disbar public institutions institution, and the private institution

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always may argue that such an requisite expertise and impartiality to circumstances of a given case, it is employee was not acting on their behalf render sound judgments that consider possible that the Department would in any litigation. Similarly, these all the relevant facts and circumstances conclude that no remedial action regulations implicate employees that are of a given case. following a final, non-default adverse acting in their official capacity for the We also wish to emphasize that an court judgment against the institution is public institution, and public adverse court judgment against a public warranted. Furthermore, we respectfully institutions always may argue that such or private institution does not disagree with one commenter’s assertion an employee was acting in the necessarily mean that the Department that the proposed rule leaves the employee’s personal or individual will implement a permanent or Department with excessive discretion in capacity and not in an official capacity otherwise severe remedial action against determining an appropriate remedial in the litigation. Indeed, lawsuits under the institution. As the proposed rule action. The NPRM lists several concrete 42 U.S.C. 1983 must be against an made clear, the Department has a broad factors that Department officials may employee and cannot be against a public range of remedial actions it may consider, such as the actual or potential institution because public institutions, consider in the event a State or Federal harm or impact that results or may which are state agencies, have immunity court renders an adverse judgment result from the institution’s wrongdoing, under the Eleventh Amendment.38 against a public or private institution, the frequency of incidents and/or Officials at public institutions may be and the remedies will be commensurate duration of the wrongdoing, whether sued in their official capacity for with the egregiousness of the violation. there is a pattern or prior history of injunctive relief and not monetary For example, the Department may wrongdoing or whether it was more relief,39 and may be sued in their impose special conditions aimed at isolated in nature, the relative positions personal or individual capacity for remedying noncompliance, temporarily within the institution of the individuals monetary relief.40 These regulations withhold cash payments pending involved in the wrongdoing, or whether provide that public institutions will correction of the institution’s the institution’s principals and other only be held to account for final deficiency, suspend or otherwise supervisory officials tolerated the judgments against the public institution terminate a Federal award, or misconduct.42 The list of factors or against an employee acting in the potentially disbar the institution, as debarring officials may consider is non- employee’s official and not personal or described in Subpart G of Part 75 and exhaustive and represents general individual capacity. Courts will Subpart I of Part 76 of Title 34 of the factors relevant for officials to consider consider and determine whether an Code of Federal Regulations.41 It is in tailoring potential remedial actions to employee was acting in the employee’s certainly not the intent of the the severity of an institution’s official capacity or personal or Department to impede important and misconduct.43 The reality is that individual capacity in determining beneficial research activities undertaken determining an appropriate remedial whether a cause of action was properly by public institutions. However, we action for institutional misconduct is a stated under 42 U.S.C. 1983 and what disagree with the proposition that the highly fact-specific inquiry. The type of relief is available. With respect First Amendment is not implicated in Department believes these factors to private institutions, factors courts research grants. Ensuring that public provide adequate notice to institutions may consider in tort or contract institutions respect the First and other stakeholders about our litigation could include whether the Amendment, which includes academic decision-making process. It is certainly violations carried out by the freedom, is essential to ensuring the not the Department’s intention to institution’s employees were intentional integrity of academic research and the excessively punish institutions or to or merely a mistake made in good-faith, fulfillment of public institutions’ harm broader societal interests by whether there was a pattern of educational mission. The First conditioning grants on public misconduct or an isolated incident, Amendment, which includes academic institutions’ compliance with the First whether any breach constitutes a freedom, may prohibit a public Amendment and private institutions’ material breach, or whether the institution from preventing a professor compliance with their stated institution took prompt and effective from conducting research on a institutional policies. remedial action to address the particular topic or subject matter. As The Department appreciates the misconduct. The courts’ analysis in any explained in more detail in the suggestion offered by one commenter to final, non-default judgment, thus, will ‘‘Purpose of this Regulatory Action’’ consider penalties on a sliding scale aid the Department in determining section, denying free inquiry is relative to the enrollment size of the whether and how to remedy a violation inherently harmful at any institution of institution. Nothing precludes the of the First Amendment with respect to higher education because students are Department from considering such a public institutions and a violation of denied the opportunity to learn and factor, if this factor is relevant to a stated institutional policies regarding faculty members are denied the determination of the appropriate freedom of speech, including academic opportunity to freely engage in research remedy. The relative enrollment size of freedom, with respect to private and rigorous academic discourse. the institution, however, may not be institutions. The Department also Securing First Amendment rights for relevant in every situation especially as believes that our judicial system has the students and faculty is fundamental to section 3(c) of Executive Order 13864 education at public institutions. defines ‘‘Federal research or education 38 Will v. Mich. Dep’t of State Police, 491 U.S. 58, Moreover, these potential remedial grants’’ as including ‘‘all funding 65–66 (1989); Pennhurst State Sch. & Hosp. v. actions are optional in nature. The provided by a covered agency directly to Halderman, 465 U.S. 89, 97–99 (1984); Ex Parte Young, 209 U.S. 123, 149 (1908); Collin v. Rector Department is not legally required to an institution but do not include & Bd. of Visitors of Univ. of Va., 873 F. Supp. 1008, implement any such remedial action; funding associated with Federal student 1013 (W.D. Va. 1995). rather, the final rule merely clarifies that aid programs that cover tuition, fees, or 39 Will, 491 U.S. at 70–71 & n.10; Cobb v. The we have the legal authority to do so. stipends.’’ Accordingly, the Federal Rector and Visitors of the Univ. of Va., 69 F. Supp. 2d 815, 823–24 (W.D. Va. 1999). Depending on the unique facts and research or education grants at issue do 40 Kentucky v. Graham, 473 U.S. 159, 167–68 (1985); Ridpath v. Bd. of Governors of Marshall 41 34 CFR 75.901 (cross-referencing 2 CFR 42 85 FR 3213. Univ., 447 F.3d 292, 306 (4th Cir. 2006). 200.338); 34 CFR 76.901; 2 CFR 180.800. 43 Id.; see also 2 CFR 180.860.

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not affect Federal student aid programs institution’s free speech contractual autonomy and believe such institutions such as programs under Title IV of the terms. This commenter reasoned such should retain flexibility to craft policies HEA. clarification would foreclose the that best fit the values of their unique Changes: None. argument in private lawsuits that an educational communities. Imposing an Proposed Modifications institution’s general commitments to affirmative obligation on private free speech and academic freedom are institutions to explain how their stated Comments: Commenters proposed actually subject to undisclosed carve- institutional policies deviate from First several modifications to the proposed outs that diverge from the principles of Amendment obligations would be rule. One commenter contended that the First Amendment or the core tenets intrusive because private institutions requiring institutions to submit of academic freedom. The commenter are not legally required to abide by the complaints, as distinct from court also asserted that the Department First Amendment. The Department also judgments, is unnecessary because should require private institutions to believes our judicial system is well- complaints may be unsubstantiated publish their certifications (and, if equipped to determine whether and in allegations that are irrelevant. This applicable, explain how their standards what way institutions’ violations of commenter suggested that requiring deviate from obligations imposed by the their free speech obligations and submission of complaints assumes a First Amendment) publicly and commitments are legally actionable level of institutional mens rea and prominently on their websites where under the final regulations. As such, it culpability that may be unfair. interested parties such as prospective would be improper for us to operate This commenter also advised the students, current students, and faculty under the assumption that all Department to consider providing grants are likely to visit. According to the commitments made by a private for security to institutions instead of commenter, this certification disclosure institution in connection with the conditioning Federal funding on requirement would have the benefit of Department’s grants are only contractual compliance with the First Amendment enabling those interested parties to in nature, and other laws such as State or with stated institutional policies. The choose the school that best fits their laws ultimately will determine whether commenter reasoned that providing values. any stated institutional policies grants for security to institutions could Discussion: The Department effectively protect controversial and constitute a contract. Even if the appreciates the many suggested Department considered these stated diverse speakers from being shut down modifications to the final rule offered by by protesting students. According to this institutional policies to constitute a commenters. We note that the final rule contract, the governing State law or commenter, grants for security may be a would not require institutions to submit more effective way to promote the other laws may require a different complaints to the Department. Rather, result. We also note that a private Department’s free speech goals because institutions would have an affirmative it is more narrowly focused on institution’s failure to adhere to its own obligation to submit only copies of any institutional policies can be a preserving the free speech rights of non-default, final judgment rendered students and staff, as opposed to the contractual breach but it can also be a against them in a State or Federal court tort or more. Additionally, we do not proposed rule’s disproportionately that a public institution or an employee punitive approach. wish to specify that only faculty and of the public institution, acting in his or students are the intended third-party Another commenter urged the her official capacity, violated the First Department to avoid discouraging beneficiaries of a private institution’s Amendment or that a private institution stated institutional policies regarding private institutions from adopting or an employee of the private freedom of speech, including academic institutional policies on free speech by institution, acting in his or her official freedom. There may be other groups of holding private institutions that promise capacity, violated its stated institutional people who also are third-party free speech protections to the same policy regarding freedom of speech, beneficiaries of a private institution’s standards that public institutions are including academic freedom. held to under the First Amendment With respect to the suggestion offered stated institutional policies regarding unless their application for Federal by one commenter to provide grants for freedom of speech, including academic grants specifically explains how the security as an alternative to the final freedom, and the Department will defer private institutions’ commitments to rule, we acknowledge that such funds to the State and Federal courts as well free speech deviate from First may be effective in safeguarding fair as the relevant case law to determine Amendment obligations. In short, this opportunities for controversial speakers which groups of people are third-party commenter believed the Department to present their ideas and for listeners beneficiaries of such stated institutional should require private institutions to to consider them. However, the policies. We believe courts provide clearly explain how and why they Department believes that grants for neutral, reasoned judgments, as they would like to be held to a lesser security without further action will not have long recognized contractual standard than public institutions under go far enough to address the problem of relationships between students and the First Amendment because that may the denial of free speech rights across their institutions, and between discourage private institutions from American college campuses. Such employees and other stakeholders and watering down their free speech grants for security will not prevent their institutions. protections to avoid liability. The public institutions from violating the The Department carefully considered commenter argued that the Department First Amendment or prevent private the potential value to students, should clarify in the final rule that a institutions from violating their own employees, and the general public by private institution’s acceptance of stated institutional policies regarding imposing a disclosure requirement on Federal grant money constitutes a freedom of speech, including academic private institutions to make publicly contract with the Department to honor freedom. Moreover, it is not our available their stated institutional commitments to free speech and intention to discourage private policies regarding free speech, including academic freedom and specifically state institutions from adopting stated academic freedom. We acknowledge that students and faculty, along with the institutional policies regarding free that such a requirement may enable Federal government, are the intended speech, including academic freedom. stakeholders to make informed choices third-party beneficiaries of the We respect private institutional and compare institutions. In addition,

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we note that the commenter did not Instead, the commenter requested that indispensable aspect of the freedom of suggest a similar disclosure requirement the Department substitute the actual text thought and belief to which individuals for public institutions, nor provide an of the Executive Order into the final across educational institutions, explanation as to why such a rule’s language or to otherwise make including private ones, are entitled. It is requirement should not apply. However, these changes through sub-regulatory intertwined with, and is a predicate to, we did not propose imposing such a guidance. freedom of speech itself. For example, burden on either public institutions or Discussion: The Department academic freedom may include faculty private institutions and do not wish to respectfully disagrees with the assertion rights to choose curriculum, do so now. Requiring either public or made by the commenter that all coursework, and other subject matter private institutions to post all of their reference to ‘‘academic freedom’’ should materials, and to explore avenues of policies regarding the First Amendment be removed from the final regulations. thought in and out of the classroom. or freedom of speech, including Executive Order 13864 references Academic freedom may also encompass academic freedom, respectively, is an ‘‘stated institutional policies regarding students’ right to pursue truth and enormous undertaking as institutions freedom of speech for private knowledge relevant to their fields of may have various policies for faculty institutions,’’ 45 and academic freedom study. The rigorous pursuit of truth and and students such as policies on is derived from and squarely rooted in knowledge is central to the purpose of curriculum, employee codes of conduct, freedom of speech.46 The Supreme an educational institution, and the chalking, posting on bulletin boards, Court of the United States has Department strongly believes that protesting, etc., and each school or eloquently explained why respect for institutional violations of academic department may have their own policies freedom of speech, which includes freedom rights are a legitimate basis for on freedom of expression. To gather all academic freedom, is so critical in remedial action. As the President’s such policies and publicly post them on higher education: Executive Order 13864 made clear, the websites is a burden that the The essentiality of freedom in the Department is to ‘‘take appropriate Department does not currently wish to community of American universities is steps’’ to ‘‘ensure institutions that impose at this juncture, although such almost self-evident. No one should receive Federal research or education a burden may be appropriate if private underestimate the vital role in a democracy grants promote free inquiry.’’ 51 Simply institutions seek to hide or obscure their that is played by those who guide and train substituting the Executive Order’s text stated institutional policies in the our youth. To impose any strait jacket upon into our final rule would not by itself future. The Department wishes to the intellectual leaders in our colleges and accomplish the objectives set out by the universities would imperil the future of our emphasize that nothing in the final rule Nation.... Teachers and students must President. Indeed, the Executive Order’s would prevent private or public always remain free to inquire, to study and very language contemplates that the institutions from publicly and to evaluate, to gain new maturity and Department would exercise at least prominently disclosing their free speech understanding; otherwise our civilization some discretion in determining the most policies, should they choose to do so. will stagnate and die.47 appropriate means of accomplishing its Some institutions may even be required As the Department explains in the goals. After careful consideration, the to do so under State laws.44 ‘‘Background—Part 2 (Free Inquiry) Department believes the approach Changes: None. section’’ of the NPRM,48 the courts have contained in the final rule, which would ‘‘Academic Freedom’’ Concerns consistently viewed academic freedom entail potential remedial action by the as an important and distinct interest Department only in the event of a non- Comments: One commenter with respect to freedom of speech. default and final adverse court judgment contended that the Department should Faculty, staff, and other institutional against an institution, would most remove all reference to ‘‘academic stakeholders have academic freedom effectively implement this Executive freedom’’ from the final rule. The interests. This concept of academic Order. Such an approach respects a commenter noted that neither the freedom is widely recognized as a core private institution’s academic freedom President’s Executive Order nor the value; for example, at least one because the Department does not Higher Education Act statutory commenter cited to the well-known and require a private institution to adopt any provisions cited in the proposed rule highly regarded American Association particular stated institutional policy explicitly referenced ‘‘academic of University Professors (AAUP), 1940 regarding freedom of speech, including freedom’’ or the concept of academic Statement of Principles on Academic academic freedom, and will respect freedom, and argued that the Freedom and Tenure with 1970 whatever stated institutional policies, if Department appears to mistakenly Interpretive Comments (AAUP’s any, that a private institution chooses to assume that academic freedom and Statement of Principles on Academic adopt. freedom of speech are coextensive. Freedom).49 Lastly, we believe that free inquiry on Academic freedom is a complex Indeed, courts have held private institutions accountable to the our Nation’s campuses is a concept, and the commenter stated that fundamentally important subject that the Department also failed to AAUP’s Statement of Principles on Academic Freedom to the extent such a deserves a serious rulemaking process. distinguish institutional academic As such, a formal notice-and-comment freedom from individual academic private school has adopted this statement.50 Academic freedom is an rulemaking, as opposed to non-binding freedom. For example, the commenter sub-regulatory guidance, is the most stated, institutions have their own 45 84 FR 11401. appropriate approach. It also reinforces academic freedom to hold their faculty 46 See 85 FR 3196–99. the Administration’s commitment to the accountable to certain professional 47 Sweezy v. New Hampshire, 354 U.S. 234, 250 rule of law and robust public standards and to require them to (1957). participation in the development of perform their duties with integrity. The 48 85 FR 3196–99. 49 regulations that govern us. commenter reasoned that purported Available at https://www.aaup.org/file/ Changes: None. violations of ‘‘academic freedom’’ are an 1940%20Statement.pdf. 50 McAdams, 914 N.W.2d at 737 (holding private inappropriate basis to withdraw grants. university breached its contract with a professor on Academic Freedom, the post was ‘‘a over a personal blog post because, by virtue of its contractually-disqualified basis for discipline’’). 44 See, e.g., Va. Code section 23.1–401.1(B). adoption of the 1940 AAUP Statement of Principles 51 84 FR 11402.

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Departmental Discretion Over Remedial their Department grant even if the the same regulatory rubric that it uses to Actions institution cured or otherwise remedied take other remedial actions for Comments: One commenter argued the violation before the court entered an violations of a grant condition for the that the trigger for noncompliance under adverse ruling. This commenter urged conditions in §§ 75.500(b)–(c) and the proposed rule is far too low and the Department to consider whether the 76.500(b)–(c), and a violation of the urged the Department to establish a institution had taken steps to First Amendment for a public higher threshold. The commenter voluntarily cure the underlying institution or a violation of stated believed that a single adverse court violation as a relevant factor in institutional policies for a private judgment should not by itself justify a determining appropriate remedies for an institution does not merit a completely loss of Federal funding; the impact of institution’s non-compliance. different regulatory scheme for remedial such a penalty is disproportionate. Discussion: The Department wishes to action. All the same concerns that the Instead, the Department should deem an emphasize that the final rule will not commenter raises may be raised about institution out of compliance only if compel the Secretary to take any existing grant conditions and the there is a pattern of final, non-default particular remedial action with respect Department’s discretion to address judgments finding serious violations of to a grant in the event of a final, non- them, and experience has not borne out the First Amendment or stated default judgment by a State or Federal these concerns. The Department uses institutional policies. Alternatively, the court that a public institution violated the existing regulatory scheme to Department could modify the trigger to the First Amendment or a private determine the most appropriate only apply where the institution failed institution violated its stated remedial action for egregious violations to immediately comply with an adverse institutional policies regarding freedom such as fraud or criminal actions such final court ruling. This commenter also of speech, including academic freedom. as theft, and the Department examines recommended that the Department more As a matter of course, the Department the unique factual circumstances of clearly define the circumstances under attempts to secure compliance by each violation before determining what, which it may terminate or suspend grant voluntary means or by imposing special if any, remedial action is appropriate. funding. The commenter expressed conditions before turning to more Similarly, we believe that, as with all concern that institutions may not have serious remedies, and the Department’s violations of the conditions of a 52 particular grant, decisions regarding adequate guidance or sufficiently clear final regulations state as much. The appropriate remedies must be made on precedent to understand when free final rule includes a broad range of pre- a case-by-case basis. As a practical speech violations can result in lost existing potential remedial actions matter it is therefore impossible to funding. The commenter acknowledged described in subpart G of Part 75 and provide comprehensive and exact that the preamble listed factors that the Subpart I of Part 76 of Title 34 of the guidance to institutions and Department may consider, including: Code of Federal Regulations, including stakeholders as to precisely how the The ‘‘actual or potential harm or impact imposing special conditions, Department will act in all future cases. that results or may result from the temporarily withholding cash payments The Department needs to retain some wrongdoing,’’ the ‘‘frequency of pending correction of the deficiency, suspension or termination of a Federal flexibility to determine appropriate incidents and/or duration of the remedial actions, if any, given the wrongdoing,’’ ‘‘whether there is a award, and disbarment. Indeed, the Secretary would retain discretion to, for unique facts and circumstances of each pattern or prior history of wrongdoing,’’ case. We also wish to remind ‘‘whether the wrongdoing was pervasive example, take remedial action where the institution has demonstrated a pattern commenters that the fundamental within [the institution of higher question of whether an institution education],’’ and whether the of non-compliance or deliberate indifference, or opt not to take remedial violated free speech rights in the first institution’s ‘‘principals tolerated the instance will be decided by the courts, offense.’’ However, the commenter action where the institution promptly implemented appropriate corrective and not the Department. This approach contended that the Department still has has the additional benefit of de- too much discretion in determining measures to remedy the violation. The Department also must abide by the politicizing the process. appropriate sanctions. According to the Changes: None. commenter, this may result in Administrative Procedure Act and politicized judgments and unfair cannot act in an arbitrary or capricious Timeframe for Submission of Adverse treatment of institutions who engage in manner with respect to any institution Court Judgments the same underlying misconduct. The without facing liability.53 The Comments: One commenter requested commenter asserted that the Department Department acknowledges the concerns that the Department extend the should more precisely define the raised by one commenter that the factors applicable timeframe for institutions to amount of discretion it has in elucidated in the preamble of the NPRM submit notice of a final adverse court determining sanctions. The commenter that debarring officials may consider judgment to the Department. The suggested, for example, that the might not provide adequate guidance to commenter noted that in Federal courts, Department be allowed to suspend or institutions in some circumstances and parties generally have 30 days to submit terminate grant funding only where could lead to inconsistent treatment of an appeal on a judgment but that there certain aggravating factors are present, institutions for engaging in the same are circumstances when this window such as a systematic pattern or practice misconduct. The Department will use should be extended. Some State courts of violations or deliberate indifference permit longer time periods for by an institution. This commenter also 52 See 34 CFR 75.901 (cross-referencing 2 CFR submitting appeals. The commenter 200.338 (Remedies for noncompliance)); 2 CFR believed that the Department should 200.338 (‘‘If the Federal awarding agency or pass- concluded that the Department should first be required to work with a given through entity determines that noncompliance amend the final rule to require institution to achieve compliance before cannot be remedied by imposing additional institutions to submit notice of any imposing any sanctions. Another conditions, the Federal awarding agency or pass- final, non-default court judgment no through entity may take one or more of the commenter expressed concern that the following actions, as appropriate in later than 30 days following the proposed rule would deem institutions circumstances. . . .’’). expiration of the period for filing a in violation of a material condition of 53 5 U.S.C. 706(2)(A). notice of appeal.

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Discussion: The Department is proposed rule would require private stated institutional policy, or to adopt sympathetic to the idea that institutions institutions that do not have stated any policy at all. If a private institution should have more time to submit copies institutional policies to adopt them and, chooses to adopt a stated institutional of final court judgments. However, if so, whether the protections offered by policy regarding free speech, which applicable appeals periods may vary their stated institutional policies must includes academic freedom, then across jurisdictions, and therefore tying be coextensive with First Amendment nothing in the final rule would compel the window for submitting adverse rights. Lastly, the commenter requested that institution to make its protections court judgments to such periods may clarity as to whether a private coextensive with the First Amendment. result in conflicting timelines and make institution’s compliance with its stated And the question of what effect, if any, it more challenging for the Department institutional policies regarding freedom a statement that a given institutional to ensure compliance. As a result, the of speech and academic freedom is a policy is not legally enforceable has is Department is extending the applicable material condition even where the a matter to be decided by State and timeframe from the 30 days proposed in institution states that its policies are Federal courts through litigation. the NPRM, to 45 calendar days. As the legally unenforceable. The commenter Changes: None. commenter noted, most Federal courts sought to know whether the proposed 34 CFR 75.500(d) and 34 CFR provide at least 30 days for a party to rule would require such policies to be 76.500(d)—Religious Student file an appeal, and allowing an enforceable through contract or tort, or Organizations institution 45 days to provide the at least prohibit private institutions Department with a copy of the final, from explicitly framing them as legally Comments in Support non-default judgment will help ensure unenforceable. A significant number of commenters that the institution has adequate time to Discussion: The Department advocated that universities should be decide whether to appeal the judgment. appreciates the substantive requests for diverse and inclusive spaces for all The Department believes that applying clarification regarding the scope of the students, including religious students. a uniform timeline of 45 calendar days phrase ‘‘stated institutional policies These commenters also stated that for all institutions would serve the regarding freedom of speech, including religious student organizations make interests of clarity, consistency, and academic freedom’’ in the proposed their best contribution to campus life ease of administration. Institutions will rule. We note that whether a given when they retain their distinct religious have 45 calendar days, as opposed to 45 institutional policy is covered by the identity and character and that the business days, because business days final rule will be clarified by State and proposed regulations would protect are not uniform across the country. For Federal courts first because these courts religious student organizations’ identity example, there may be regional holidays will determine whether the stated and character. Most of these same that apply for some institutions but not institutional policies concern freedom commenters thanked the Department for others. As such, the Department of speech, which includes academic the proposed regulations to promote the believes that using calendar days freedom. The Department will equal treatment of religious student instead of business days is clearer, more determine that a private institution has groups 54 so they can continue to serve consistent, and will make it easier to not complied with its stated their campuses. The Department ensure compliance. institutional policies only if there is a appreciates the comments in support of final, non-default judgment by a State or Changes: We have extended the these final regulations and includes the applicable timeframe for institutions to Federal court to the effect that the comments in support of these final submit copies of final adverse court private institution or an employee of the regulations based on the various topics judgments to the Department from 30 private institution, acting on behalf of the commenters addressed in describing days to 45 calendar days. the private institution, violated its the benefits of religious student stated institutional policy regarding Questions on ‘‘Stated Institutional organizations as well as the struggles freedom of speech or academic freedom. Policies’’ We note that nothing in the final rule that religious student organizations face. Comments: Comments: One commenter submitted necessarily limits covered policies to several requests for clarification those that are institution-wide, or Pluralism and Diversity regarding the phrase ‘‘stated requires covered policies to be Many former participants in religious institutional policies regarding freedom presented in a particular format. For student groups expressed how religious of speech, including academic freedom’’ example, covered policies may include, student groups enhanced their contained in the proposed rule. In but do not necessarily have to be experience at universities because they particular, the commenter noted that the presented as, circulars, bulletins, or were given the opportunity to explore Department did not clearly define what catalogues. Stated institutional policies personal beliefs and experience and types of documents constitute ‘‘stated also may be in the form of contribute to diversity on campus. institutional policies.’’ For example, it is representations made by an institution’s One commenter shared their unclear to what extent a particular employees who are acting on behalf of experience serving in their forty-first document must address ‘‘academic the institution. For example, an year as a campus minister at several freedom’’ or ‘‘free speech’’ such that employee acting on behalf of an different universities and is a member of compliance with it constitutes a institution may state that reservations an association of campus ministers at material condition for Federal research are required to reserve an outdoor space the university where they serve and in and education grants. The commenter for a demonstration or a protest, and this capacity met and collaborated with also expressed uncertainty as to what these representations may constitute a university presidents, deans, and a makes a given document ‘‘institutional.’’ stated institutional policy. And it may variety of student service departments For example, it is unclear whether any be possible for a covered policy to be throughout their time in ministry. This department or school within an department-specific, or to apply only to same commenter explained how institution can have its own students or to employees. Further, and ‘‘institutional’’ policy or whether the as stated in the preamble of the NPRM, 54 The Department refers to ‘‘religious student policy must be institution-wide. The these regulations would not compel organizations’’ interchangeably as ‘‘religious commenter also questioned whether the private institutions to adopt a particular student groups.’’

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campus ministers mediate between inclusive of the broader campus groups are important for students in a university governance and student communities. A commenter recalled time of anxiety. groups to contribute to campus diversity that all students were invited to One commenter shared how they and added that religious groups strive to participate in the religious attended a college where religious broaden diversity and enhance organization’s discussions and service conversations were encouraged, and inclusivity on college campuses. projects. The commenter clarified that they participated in a small group where One commenter recalled their while this religious group worked they talked about real life and real experience serving in student alongside groups with different beliefs, religion. They shared how they were so government at their university, how the commenters’ organization was grateful to have had the opportunity to allowing religious student groups to necessarily led by leaders with a mature in that environment. They stated participate in campus life contributed to distinctive religious perspective. that they were not allowed to rest on mutual understanding and appreciation Another commenter shared that the what they thought might be true, but among a diverse student body. The religious organization’s religious rather had to discover what was true. commenter stated that such diversity integrity was essential to its inclusivity They also stated that today’s youth are makes universities thrive. as the organization coordinated with the most anxious generation ever due to Another commenter recalled their other student groups to serve the a lack of agreed-upon truths that experience as a leader of a religious campus community. provide a framework for living well, and student group where students benefitted that the freedom to explore faith in from the diversity and inclusivity Personal Edification From Religious college let them hear about religious fostered by religious groups on campus. Student Organizations thought and the opportunity to find Students were able to explore faiths and Student Health and Well Being peace there. practice their beliefs which many commenters affirmed. A commenter stated that a religious Community One commenter noted how religious student group contributed to their A number of supportive commenters groups are often excluded from health and life trajectory in addition to were former or current participants in conceptions of diversity on college maturing their own beliefs in college. religious student groups expressing how campuses, yet religious organizations Another commenter expressed that those groups are valuable because they contribute to campus diversity. The participation in a religious student are spaces where community and commenter observed that organizations group offered social and emotional healthy, wholesome relationships can can only achieve this diversity by maturity throughout the commenter’s be formed, and mentorship organizing with the integrity and experience. Many commenters opportunities are available. conviction afforded by the proposed described participation in religious Another commenter shared how regulations. student groups as life-changing, participation in a religious student Several students from religious legal transformative, or with great impact on group developed a broader array of societies noted how they were able to their day-to-day life. Other commenters relationships across gender, ethnic, fellowship with those in their faith shared how participation in religious cultural, and sexuality lines than any traditions in addition to explore student groups allows for academic, other season of their life and it was different belief systems in the diverse, social, and psychological growth. One specifically because of their intense environment of law school. One commenter shared how numerous involvement with a religious student of these commenters noted how having studies conclude that religion and group. One commenter described a greater variety of religious student spirituality predict mental health, self- religious student groups as unique groups would have only further esteem, and constructive social places in the world where people from increased diversity to benefit the activities, and at the same time, non- any walk of life, social setting, socio- campus. involvement is negatively associated economic background, faith One commenter observed that with destructive behaviors such as drug background, sexual orientation, etc., can religious student groups provide and alcohol abuse, risk-taking, and come together to learn with and from support and opportunities for students. crime. One commenter shared a story of one another. This commenter was able to connect how they were struggling with One commenter described their with students of other faiths in this substance addiction as a freshman religious organization as welcoming and environment and suggested that entering university, but participation in creating an open atmosphere in which religious organizations allow students to a religious student group helped them conversation could be held. Another connect with the ‘‘outside world’’ get clean and become healthy and commenter found that participation in a beyond the university. Another involved in the university. Another religious student group made them a commenter noted how religious student commenter shared how participation in more compassionate citizen and groups contribute to students’ needs religious student groups has enabled informed discussions about justice and from a variety of backgrounds— good stress management while in faith on campus. including non-religious students— school, enhanced this commenter’s A commenter shared that when they offering students access to food, finding holistic thinking and leadership skills, were a college student, the religious housing for homeless students, and formed life-long friendships, and groups on their campus contributed the supported lonely or suicidal students. facilitated positive opportunities to most to campus life, community service, One former participant of a religious serve the campus and community. and social justice. The commenter student group noted how their group Several commenters shared how stated that the Black Campus Ministries especially encouraged multiethnic religious student groups allow students group, because of their convictions, diversity on campus and how this to thrive in a rigorous environment. A influenced the university’s President to initiative led to religious student group commenter expressed how religious make changes that made the university leaders assisting with training of student groups brought healing and more accessible for students of color. university dorm leaders on this topic. helped students through challenges One commenter shared how being a Commenters also observed how posed by post-graduate studies. Another minority on campus was an religious student organizations were commenter added that religious student intimidating experience, but a religious

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student group offered a safe space for According to another commenter, the power of ‘‘us’’ as opposed to ‘‘me’’ as an building relationships and community. community formed by religious student individual, and how much positive Several commenters expressed how a groups is paramount during transitional impact a group with the same mission religious student group was integral to periods in students’ lives and that some can have. One commenter expressed incorporating this commenter into the religions are centered around how religious student groups build campus community and acclimating to relationships with members of the same students up to empower them to do a large student body. One commenter faith tradition. A commenter noticed good in their communities. expressed how access to a religious how religious student groups One commenter stated that student organization provided access to particularly helped at-risk students. A participation in a religious student resources that would have been difficult commenter observed how religious group set a foundation for charity and to obtain without a vehicle, in addition student groups provide support to civic duties as a citizen. Another to creating a community. students who are adjusting to and commenter believed that participation Many commenters described how navigating life beyond the guidance of in a religious student group helped religious student groups unify and heal their families. Religious student groups them to become a more intentional, campuses. Several commenters noted provide spiritual and life guidance with compassionate person to care for others how religious student groups worked to warmth and compassion for students around them. Several commenters unify and support campuses after tragic who are settling into their new campus expressed that religious student groups on-campus events. Another commenter environments, according to several taught them how to care and advocate expressed that religious student groups commenters. A commenter noted how for the marginalized in society. One provided a place for racial harmony. religious student groups provide commenter shared about how Another commenter stated that religious mentorship and emotional support and involvement with religious student student groups preserve diversity when companionship for students struggling groups exposed the student to topics campuses are politically polarized, with their home lives or personal related to their major of study such as since the groups welcome students challenges. systemic injustices, caring for the across political lines. A commenter According to commenters, religious homeless and the marginalized, and explained how a religious student group student groups afforded students how to care for the environment. initiated a campus-wide debate series alternative social opportunities to Another commenter shared how which was beneficial to the community develop healthy relationships on religious groups would provide services beyond just religious students. campus. One commenter shared that to their campuses like cleaning up after One commenter expressed how a participation in a religious student fraternity campuses and working in religious student group allowed the group helped them long for a vision in soup kitchens. One commenter shared commenter to form a likeminded which the Greek system was healthier how participation enhanced their community and face challenges posed and restored to its original intent. They hospitality skills and ability to by law school. One commenter noted stated that the Greek system has a bad contribute to the campus environment. how religious student groups provided public image and persona, but the One former participant in a religious sanctuary and a safe haven for commenter believes at its roots was a student group shared how a Christian individuals in law school. A commenter desire to better men and women around group hosted a collective drive where recalled experiences from a religious a common set of core ideas and values. they could engage the entire campus student group at law school which Their time with Greek InterVarsity community to serve called ‘‘Love Puerto offered mentorship to first-year law helped them want to advance Greek life Rico’’, in which they collected supplies students. Religion was able to inform on campus that more holistically like generators, tarps, and extension these students’ legal studies, and reflected these original ideas and values cords that were sent to Puerto Rico to students were able to explore their than living into the perceived public assist in Hurricane Maria relief efforts. beliefs through religious student groups. image of just partying. The commenter Another commenter shared that their Additionally, one commenter expressed believes that those in the Greek system religious student group organized that participation in a religious sports are grown and challenged in this stage activities like serving the homeless, organization provided support through of life in such a way that it helps tutoring children, raising money for uniquely challenging experiences prepare and equip them to serve their cancer research, and more similar presented to student athletes. communities at large after graduation. service projects because of their Another commenter added that religious beliefs. One commenter shared Service learning how to respect religious beliefs how their religious student group set up made them a better global citizen. A significant number of commenters welcome events during the first weeks Several commenters recalled programs discussed the community service that of school so students can get to know through their religious student groups religious student groups perform, other students and build relationships which would reach out to and including many stories from current and on a campus where 95 percent of incorporate international students into former students about service projects students commute from around the city. the student body, and some offered through their religious student A commenter shared how a religious mentorship opportunities. organizations. Many commenters shared student group taught them to care about Several commenters noted that how they were able to partner with the global issues of the world and religious student groups create a place other campus organizations or lead played a key role in educating them for religious students to gather when campus initiatives. One Christian about fighting human trafficking and faculty did not appear welcoming or campus organization was even given an partnering broadly within the university were hostile towards religious beliefs. award for forming successful to work together to create programs to Another commenter noted that religious partnerships with local, national, or help others fight human trafficking. student groups were silenced, international organizations in an effort hampered, and discriminated against on to make a positive impact on society, Soft Skills campus which hurt religious student according to a commenter from a public Multiple commenters shared how groups and the greater campus university. Religious student groups participation in religious student community as a whole. were where one commenter learned the organizations can provide opportunities

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to lead and enhance leadership and 1970s, a religious student group guided Derecognition other practical skills. A commenter them to think about social issues like shared that they would not have race and class. One university student shared their developed as a leader if they had not One commenter recalled how, story of administrative interference in joined a religious student group, since although there were sometimes conflicts which a State university system refused other leadership activities such as among groups, allowing student groups to allow religious groups to have any sororities were selective organizations to have membership requirements faith-based qualifications for their with limited opportunities. One allowed diversity that was a helpful leaders, prompting concern among commenter recounted their experience preparatory experience for life. Another religious groups that their leaders would with leadership in religious student commenter added that their experience not be required to agree with their groups which uniquely provided an in a religious student group taught them mission or teach their faith. The opportunity to lead in their local how to respect others’ beliefs and to commenter explained how the community. Another commenter engage congenially with those who have university’s rules forced their religious experienced lifelong benefits from the different religions. One commenter organization to choose between getting leadership training provided by shared how exploring their faith in a registered and risking their specific religious student groups. Multiple Christian student group allowed them to beliefs being watered down or having commenters noted how involvement grow to be more accepting of religious strong leaders who could authentically with religious student groups improved differences, more aware of the failings teach the faith while losing their status communication and organizational, in and strengths of their own faith as a registered group for nearly one year. addition, to leadership skills. Another tradition, and more desirous of genuine The group chose not to compromise commenter noted how participation in a dialogue between differently-believing their beliefs and accept a non-registered religious organization was an asset to students on campus. status which lost them benefits granted the campus, as it increased their critical One university professor who teaches by the university. The group was unable thinking skills, knowledge base, political science and philosophy to host all of its usual events since they exposure to cultures, and provided a described their courses on ‘‘church and had to pay for a space on campus in community. A commenter found that state’’ issues, where the class would which to hold their meetings at an participation in a religious student debate this very issue as it has been a unsustainable cost. group informed some students’ career current event for the past few years. The One commenter shared that well- paths. professor was regularly unable to get intended anti-discrimination policies at Commenters noted the improvement their students to debate from the side of both public and private universities can to their educational environment from public universities that wish to be used in an ‘‘indiscriminate’’ manner participation in religious student discriminate against faith-based groups that nearly undermined the ability of groups. One commenter noted how by requiring them to adopt ‘‘university the campus ministry in which the religious groups’ participation provides standards’’ for student leadership of commenter participated. Their group a holistic education for students. One their clubs. The students, whether for was threatened with de-recognition if commenter recalled how participation faith-based reasons or not, were they had any faith criteria for their in a legal student group throughout law virtually 100 percent in agreement that leaders. school taught the commenter how to clubs should be free to choose their own A university professor who serves on practice the law in the context of their leaders and write their own the national board of a student-focused faith, and another law student shared constitutions without conforming to the ministry organization, shared how at how participation in a religious student university’s requirements. their university within the last three group created a forum in which law years, student groups have been told students could address related topics Administrative Burden on Religious that they cannot be recognized as a like the separation of church and state. Student Organizations student group because ‘‘there are too Another commenter shared they learned Several religious student group many Christian groups’’ on campus or to read religious texts and interpret representatives and commenters because their leadership is unable to them for themselves. expressed relief that State legislatures One commenter added to the confirm that they will comply with had passed legislation to protect the discussion on social benefits of religious university non-discrimination integrity of religious student groups and student groups by noting how they requirements which directly contravene therefore supported these regulations to learned to listen and value the the religious tenets that the religious apply federally. One commenter noted perspectives of a diverse group of groups embrace. Although these people—a skill the commenter stated that the Department’s adoption of the decisions were appealed and mostly was not taught inside the classroom. provision for religious student reversed, the student groups Multiple commenters observed how organizations would bring Federal experienced weeks of delay arising from policy in line with at least 15 States that prejudice or misconceptions. The religious student groups provided 55 forums for students to debate ideas. have enacted laws to this effect. commenter shared that even when the Another commenter described religious decision was eventually reversed, it 55 Commenter cited: 2019 Ala. Laws 396 (2019); unnecessarily exacerbated polarization student groups as a safe environment to Ariz. Rev. Stat. Ann. section 15–1863 (2019); Ark. ask hard and meaningful questions. Code Ann. section 60–60–1006 (2019); Idaho Code which discourages discussion and Another commenter elaborated that section 33–107D (2019); S.F. 274, 88th Gen. Ass. 1st debate of important ideas on campuses. religious student groups were a space to Sess. (Iowa 2019); Kan. Stat. Ann. section 60–5311– A college denied the application of a 5313 (2019); Ky. Rev. Stat. Ann. section explore questions of meaning and 164.348(2)(h) (LexisNexis 2019); La. Stat. Ann. religious student organization because purpose and learn how to pursue things section 17:3399.33 (2018); N.C. Gen. Stat. section the university alleged that there were like social justice, racial reconciliation, 115D–20.2, 116–40.12; Ohio Rev. Code Ann. section ‘‘enough of those’’ religious student and environmental stewardship on the 3345.023 (LexisNexis 2019); Okla. Stat. tit. 70, organizations. This organization was section 70–2119.1 (2014); H.B. 1087, 94th Leg. commenter’s campus and in the Assemb., Reg. Sess. (S.D. 2019); Tenn. Code Ann. denied official recognition so it could commenter’s community. One section 49–7–156 (2017); S.B. 18, 86th Leg. (Tex. not use college facilities or be listed as commenter shared that, during the 2019); Va. Code Ann. section 23.1–400 (2013). a resource for students.

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A religious student organization at a purpose of the organization is religious. student organizations could not require public university’s school of law The university did allow the their leaders to agree with their religious explained how their student organization to register after a year of beliefs. Only through official organization, along with other religious effort and forced the organization to recognition, the commenter recalled, organizations, were threatened with change the wording of its constitution. were religious groups able to partner exclusion from campus because of their A current student at a public with the atheist club, for example, to religious beliefs. The university university shared how the commenter’s host events like public debates. After eventually rescinded its proposed university student government tried to some struggle, the campus organization policy change that threatened these stop religious student organizations collaborated with the university to pass groups, but the university failed to from having faith-based criteria for their a policy which allowed religious groups adopt a written policy to assure leaders. Several groups expressed to uphold standards for their leaders. religious groups that it would not concern that such a requirement would A member of a religious student someday adopt the detrimental policy. lead to singling out religious groups organization at a law school commented This commenter expressed how Federal because other organizations could that they attended an event at another regulations would help make a final expect leaders to agree with their local law school with students who had decision for universities. purposes, but religious groups could not to change the name of their organization A representative from an on-campus because their purposes were religious. because of administrative hurdles. religious student organization shared The administration had to override the Denying Access to Resources how they were actively involved with student government and agreed that university service projects and complied religious student groups could have A commenter from a public university with all university requirements set by religious requirements for their leaders. shared how, on top of facing public the university. Yet twice, the One commenter, whose husband criticism because of their beliefs, their organizations faced de-recognition served as the staff sponsor for a campus religious student group faced because the religious student group Christian fellowship student club at a administrative hurdles like a lengthy required students to agree with the public university, recalled how their appeal process to get funding for an beliefs and mission of the religious religious student group was banned event that non-religious groups have organization. The group spent a year from campus because of a State never struggled to fund. A commenter negotiating with the university to university system regulation that who worked with a Catholic student resolve the question, and the second forbade student clubs from imposing group on more than 100 campuses time, it was necessary to procure help ideological requirements on their across the U.S. shared how they have from State legislators to pass religious student leaders. After communicating encountered resistance while bringing protections. This commenter supported with the religious student group’s viewpoint diversity to college expansion of these regulations on the parent organization, the chancellor of campuses. Their organizations had often Federal level. the university system recognized the been deprived from accessing campus One commenter recalled their unconstitutionality of its arbitrary facilities, funding, free speech, and even involvement with a religious student requirement and allowed the club back approval from the university based on group and how it was harassed by on campus the following year. their orthodox beliefs, even though complaints and even kicked off many these chapters help students to think Administrative Delay college campuses. The people critically and better prepare them for complained that since the religious A commenter from a public life. group required leaders to believe in university’s school of law shared that it A commenter shared how their their way of life that the religious group took one year for the university to religious sorority was allowed to leaders were discriminating against recognize the commenter’s religious collectively profess its faith while some other religions, so that religious groups student group as a registered student sister chapters were unable to do so. would not be able to choose leaders who organization; the delay was largely They stated that difficulties have been share their authentic religious beliefs. caused by confusion surrounding the caused by the organization’s The commenter wants to see religious organization’s desire to have a statement requirements for members to affirm student groups treated equally. of faith requirement for their board basic religious beliefs, so the national One commenter shared that they members. The organization felt this was organization had to eliminate the learned that a public university’s necessary because many of its board requirement that chapters achieve student government tried to de- members’ duties outlined in the by-laws campus recognition. They stated that recognize several religious student involved leading the group in prayer, this was done to maintain the religious groups because the groups expected worship, Bible studies, and fostering groups’ convictions, but the their leaders to agree with their beliefs. members’ spiritual growth. The consequences included organization While the issue was forgotten for some administration prolonged the decision members being unable to acquire space time, it resurged and distracted the because it stated that it would have to reservations on campus without fees, student group leadership from investing amend the school’s organizational unable to advertise, and unable to in their community. policies to permit faith-based student affiliate themselves with the brand A former member of a religious organizations to require such a name of the university, among other student group at a public university statement of faith for board members. complications. shared how the organization submitted The organization was forced to navigate A community member and advisor for its constitution for approval as a a bureaucratic maze to amend the a student organization at a public liberal registered student organization, but it university’s underlying organizational arts college shared how some of the was rejected because the constitution documents and risked the inability to be student leaders were told not to suggested that student leaders had to recognized. approach students on campus because agree with the group’s fundamental A student leader in a religious student of a solicitation policy which was beliefs. The commenter expressed that it group at a public university recalled enacted to restrict commercial speech or appeared the administration was how the university announced it was canvassing. The commenter stated that singling out this group because the changing its policy so that religious the university rewrote the policy based

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on the religious organization’s activities student groups, on an equal basis. Many to care for the nation’s poor and to serve to target the group. The religious commenters expressed that religious others in time of national calamity or organization sent a letter from legal students must have equal rights in order regional crisis. counsel to get the university to correct for public universities to remain truly A national campus ministry wrote of the overbreadth of its solicitation policy. tolerant of all people and to protect the tremendous loss when a religious diversity on campuses. student group is refused registered Other A commenter shared that universities status. They stated that such a group A legal practitioner who has should safeguard the environment in becomes essentially a second-class represented Christian ministries that which students are supposed to express group, becomes more isolated, and loses have faced pressure or exclusion from themselves freely, especially regarding credibility with students. It also often the campus community because of the freedom of religion. The commenter experiences considerable (and often group’s beliefs and the application of clarified that separation of church and prohibitive) financial costs, required to these beliefs to membership and state as conceived by America’s pay for the use of campus facilities that leadership expressed concern about the Founding Fathers was not intended to are made available to registered ongoing confusion about religious silence religious expression. organizations at no cost. The campus organizations’ rights. A commenter stated that if religious community is harmed as well, because A campus minister expressed support student groups are not being treated diversity is most rich when authentic for the rule because, even though they equally, then this is discrimination and belief-based expression by both worked at a private institution, they had oppositional to the U.S. Constitution’s individuals and groups is allowed to seen their colleagues be discriminated protection of religious freedom. flourish. against under the guise of Harms Suffered as a Result of Unequal Contribution to Diversity nondiscrimination. Treatment A commenter shared that religious Many commenters expressed support student ministry at a public university Several commenters wrote that for the regulations because they would was an outstanding example of stripping students’ religious groups of increase ideological diversity which contributing to the campus, yet religious their distinctiveness or kicking them off contributes to a more robust university student groups had been discriminated campus brings hardship and mental environment. Some commenters noted against for upholding and practicing stress to students, making universities the significance of this since public religious teachings that the group hostile to these students. Another institutions are taxpayer-funded. A espoused. commenter warned that when these significant number of commenters, An attorney shared that they had religious groups are threatened by the including organizations that represent heard many examples of student groups university for their religious various religions stated that universities at the secondary, college and graduate convictions, great stress and anxiety should be diverse and inclusive spaces levels who had encountered arbitrary plague student members who then need for all students and should treat and unfounded opposition from to use their energy and resources not for religions equally. These organizations administrators and educators, including studying but instead for fighting for supported the regulations so that two cases reviewed by the U.S. Supreme space to exist on campus without religious student groups will be treated Court. The commenter observed that the harassment. This commenter also fairly. Several commenters clarified that value of diversity has been used to described how religious groups provide diversity is only achieved when all disadvantage religious groups while it is support and help for their members to religions are respected. Some applied more favorably to other groups. be able to thrive as students. Another commenters added that religious This commenter shared that confronting commenter added that religious student student groups have a distinctive need universities about discriminatory groups allow students to manage stress, to be protected so that organizations can policies is expensive, confrontational while denying equal treatment to operate with integrity. Many and time-consuming which depletes religious student groups brings hardship commenters shared that allowing resources that could be better used. and mental stress. Another commenter religious student groups to fully express A political science professor wrote wrote that religious student groups can their convictions uniquely contributes that they served as a faculty advisor for develop students’ moral compasses that to campus diversity. many of these organizations and had can decrease depression, drug use, and Many commenters expressed the suffered through administrative anxiety that are so common on campus value of diversity on campuses. One discrimination and denial of privileges today. A licensed psychologist who commenter stated that universities on campus. formerly participated in a religious should be places where students grapple student group wrote that these with different viewpoints, so allowing Equal Treatment organizations offer critical stress relief the diversity that religious student A commenter expressed support through community and provide organizations bring would enhance because students need a sanctuary support, care, and mentorship to the cross-cultural and conflict conversation where they can practice their religious college students. competencies. A commenter asserted beliefs, like the sanctuary that other A commenter wrote that denying that more diversity leads to a more organizations afford. The commenter religious student groups equal treatment balanced perspective at universities. A worried that culture exempts religious would disadvantage individuals of faith commenter shared that diversity and organizations from teachings about in their formation, expression and inclusion are fundamental to students’ tolerance, and that religious service with no benefit to those outside education and development and organizations are not being treated of the faith other than stunting their granting equal access to these religious equally according to the U.S. awareness of the diverse faith culture in student groups would aid diversity and Constitution. which they participate. Another inclusion on campuses. Additionally, a Commenters overwhelmingly stated commenter wrote that to deprive and commenter added that diversity and that universities should provide limit campus access is to ensure an inclusion are measured by how well an services, spaces, and access to diverse education that will lack a capacity for institution tolerates students whose student groups, including religious compassion that has always stood ready opinions and life principles the

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institution may disagree with and how more robust university environment to history class or 30,000 students on their they are allowed to practice those engage in the free exchange of ideas. campus. These religious student groups principles. Another commenter noted One commenter expressed the need for provide mentorship, leadership, and that religious diversity increases free speech and First Amendment training. A different commenter stated tolerance. protections and shared a 2010 survey of these activities occur because of the One commenter contended that an college students which found that only religious organization’s unique institution prevents diversity on 36 percent agreed with the statement characteristics. Many commenters campuses by not allowing religious that ‘‘it is safe to hold unpopular views shared personal testimonies of how student groups to practice their religion on campus.’’ This number drops to 30 religious student groups created with integrity. One commenter stated percent for seniors, and only 16.7 community and life-long friendships, that beliefs cannot be uniform among a percent of faculty agreed with the especially amid stress. Another freethinking people, so valuing safety statement. The commenter elaborated commenter clarified that these over free expression will have a that the free market of ideas sharpens institutions are not riddled with hazing, disparate impact on the nation’s students’ critical thinking skills. They sexual abuse, or similar scandals as are intelligence. stated that protecting the First other college organizations. A Many commenters supported the Amendment will save students and commenter noted that groups like Hillel regulation to prevent discrimination universities from costly litigation. and InterVarsity serve important against religious student groups seeking A commenter whose daughter constituencies well in an increasingly to live out their values. One commenter participated in a religious student group polarized society. Another commenter expressed concern over certain shared that religious student groups are wrote that student’s religious and ideologies silencing religious, places where belief systems and spiritual beliefs are a key part of their conservative ones. The commenter cultures can be explored along with identity, and many have a strong desire advocated for more diversity, fed by other intellectual pursuits. Another to connect with other students who religious student groups’ activity, to commenter noted how religious student share their same identity, yet oftentimes create greater diversity of belief, groups afford students the opportunity religious student organizations are the experience, and opinion ultimately to to explore faith, examine and choose, as most active organizations on campus, create a more robust university an adult, a path they may want to and the most welcoming to people of all environment for the free exchange of follow. An additional commenter wrote (or no) spiritual background to their ideas. One commenter expressed that the university experience is a key events and activities on campus. concern over their children’s college time for intellectual development and Many commenters unpacked the environment where conservative character formation, so diversity added benefits of spiritual development on students could face bullying, isolation, from religious student groups is students and the campus as a whole. among other social repercussions, and profitable to students. Many One commenter observed spiritual emphasized that truly inclusive commenters underscored that students development is critical to ensuring a diversity is needed. Another commenter ought to be allowed to learn from a stable future for our country. A warned that religious student multiplicity of viewpoints to form their commenter explained that spiritual organizations should not be own convictions while forming common development contributes to students’ marginalized simply because other ground with and respect for other whole moral, conscious, and character prominent ideologies in society disagree beliefs. They stated that all students growth. Another commenter shared how with them. One national women’s need to be taught critical thinking and participation in a religious student organization expressed concern over be exposed to all intellectual and group creates spiritual habits that often discrimination against religious student religious ideas so that they can be result in a lifetime of community groups and emphasized that religious intelligent, wise, and fair-minded service. Many commenters observed the student groups should be treated individuals. community contributions religious equally. They supported the new rule Other commenters emphasized how student groups make through charity because they stated it would bring the spiritual maturity is important in an activities, giving, volunteerism, Department in line with the President’s educational environment where outreach to engage in civil services, etc. Executive Order on Improving Free students are pursuing their future Other commenters shared the values Inquiry, Transparency, and vocations. that are promulgated by religious Accountability at Colleges and A retired university professor student groups including caring for Universities to protect the First supported the proposed regulations others, community, temperance, Amendment rights of students of all because they saw much growth in young leadership, community, justice, faiths at public post-secondary people based on the open exchange of gratitude, prudence, and actually much institutions. ideas, both in the classroom and more tolerance than those trying to through extra-curricular activities. The eliminate them. Social Benefits commenter advocated that the Another commenter who serves as a A non-profit law firm stated that Department adopt these regulations so non-profit leader who works religion and the social networks and that religious student groups will have predominantly with students of color organizations surrounding it are crucial the ability to contribute to this exchange stated that they believe the community in transmitting civic norms and habits, from their own religious identity and afforded by campus religious such as belonging to a community character. organizations significantly aid in the organization, especially a health-related A commenter wrote how religious social and academic flourishing of all one, youth-serving organizations, student groups increase belonging on college students and especially those neighborhood and civic associations, campuses. Religious student groups from historically marginalized fraternal and service organizations, and provide students with great communities. A commenter recalled even professional and labor groups. encouragement and a place to feel they how they had seen a religious student A commenter wrote these clubs bring belong—this is especially needed and group help homeless students find vibrancy and diversity of belief, true for freshman that have left home shelter and food, emotionally hurting opinion, and experience, creating a and now have 800 people in their students find truth and healing, over-

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achieving and perfectionistic students would provide consistent protection for Amendment rights and that the State find grace, students who lack students’ speech and religious freedom cannot choose which morality and confidence become leaders of their regardless of which State a student ideologies it allows. Another commenter peers, students take risks to start groups chooses to move to in order to attend added government should neither favor that encourage and support other college. Another commenter expanded nor oppose religion, so public academic students who were hurting, and on the argument that universities should institutions should be handling students in general become more loving, not be picking which groups can receive religious issues exactly the same way as competent, and contributing equal treatment, since public university the government, in a completely neutral individuals. administrators and faculty are on the fashion. public payroll. The commenter stated One non-profit organization that Improvements to Educational supports campus ministries across the Environment that they administer public funds, yet they use taxpayer money against United States supported non- One commenter supported the members of the public when they (a) discrimination policies and believes regulations because they stated they deny approval for a group of Christian that they should be used to protect would inherently enhance the total students to meet in a building on against invidious discrimination. They cause of public education, and another campus, (b) revoke approval to post stated that non-discrimination commenter shared how university notices of their events on campus requirements should protect, rather than cultures are greatly enhanced by the bulletin boards, (c) require sponsorship penalize, religious groups that want to presence of religious organizations. by a member of the faculty in order to retain their distinct religious character. More specifically, a commenter believed exist on campus, or (d) exclude the This organization strongly supported one of the most important functions of group from receiving a share of the the proposed regulations because our universities is to expose students to distribution of student activity fee student organizations need protection diverse ideas in order to understand the revenues because of the group’s from administrative overreach by world and as a means of helping them religious nature. Another religious universities and colleges. According to learn to think logically and rigorously student group expressed support that this organization, the proposed about ideas. Additionally, they stated the proposed regulations would regulations, thus, strengthen current that universities should help equip emphasize that no religion-based non-discrimination policies. students to better discern truth from discrimination against faith-based Another commenter expressed that for falsehood, fact from fiction, and wish entities will be accepted at any stage of a college to kick a group off campus from reality. Furthermore, a commenter the funding process. unless they allow leaders who contest shared that a thriving institution is one the very principles for which the group that supports a student’s moral integrity, Many commenters expressed concern stands, is a surefire way to destroy which is based upon religious beliefs over increasing intolerance of free religious liberty on campus. The and not simply academia, which would speech and religious viewpoints which commenter stated that not only are such support student morale and campus may deviate from mainstream thought campus policies unfair to religious well-being. Another commenter echoed on college campuses, noting that many groups (and such policies have typically the value of diversity, stating that colleges have shown intolerance arisen from a desire to single out such universities are precisely a forum for towards religious organizations by groups), but such policies deprive exploring different and new ideas, and driving them off campuses. Many people of their First Amendment rights. for deepening knowledge in areas of commenters identified Jewish, Muslim, A commenter wrote that denying a interest. Developing one’s own Catholic, and Protestant organizations, religious organization access to a public spirituality helps human beings cope in particular, as targets of religious campus may impede growth toward better with life’s stresses, and religious discrimination. Several commenters religion while growth away from groups may provide just that support to posed that university officials were religion continues unfettered; this students on campus. penalizing religious groups specifically creates a bias against religion and because of their beliefs and speech, so impedes students’ religious freedoms. Concerns With Government Interference they were dictating their leadership This commenter stated that or Entanglement standards to the religious groups. A derecognition is a punitive action and A commenter observed that commenter argued that such derecognizing religious organizations on universities denying religious penalization and dictation of leadership public college campuses is a violation of organizations the ability to impose standards violated the Establishment religious freedom. moral criteria effectively bans the Clause. A few other commenters One commenter expressed strong organization. Another commenter suggested that students were physically concerns about anti-conservative, expressed discontent over State at risk when speaking controversial religious bias in America that is being university administrators deciding viewpoints and are not always protected manifested on U.S. campuses, including which religious student groups are by campus security, so they supported destruction of property and heckling, allowed or excluded. these regulations to provide support and among other problems. Another commenter stated that these protection to these groups. Another regulations would support the commenter shared that among many Religious Integrity constitutional rights guaranteed under other clubs that select leadership based A significant number of commenters the Establishment Clause—government on the alignment with a code of conduct shared that universities do themselves officials never should be allowed to or set of beliefs, people of faith, alone, and their students a disservice when a dictate to religious groups their have been singled out by universities religious student group’s ability to leadership standards, and government and harassed on the basis of those retain their distinct religious identity officials should never be able or allowed beliefs. A commenter stated that and character is hindered and the group to penalize religious groups because of seemingly offensive speech is not a is discriminated against on the basis of their religious beliefs and speech. justification for institutions of higher religious conviction. The commenters Commenters stated that a national education which receive Federal funds stated that religious student groups standard, codified by these regulations, to disrespect fundamental First make their best contribution to campus

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life when they retain their distinct understand the organization and expect organizations being able to elect their religious identity and character. They consistency. According to this own leaders. This commenter also contended that the proposed regulations commenter, leadership sharing these stated that the Establishment Clause is would make that possible on every convictions allows for the organization violated when government officials public campus. to build upon common ground and dictate to religious groups their Many commenters expressed that a grow. The national director of a major leadership standards or when such religious institution should be allowed nonprofit and interdenominational officials penalize religious groups the freedom to uphold the values it campus ministry operating hundreds of because of their religious beliefs and holds close in regard to who it hires, groups at campuses across the U.S. speech. fires, and what activities are allowed on supported the proposed regulations for One commenter reasoned that campus based on the particular tenets of reasons related to religious integrity denying religious groups their identities their faith practice, corresponding with because these proposed regulations makes every organization equal if it is the value that America places on recognize the value of association not able to express its core values and freedom of religion. They stated that around common interests, reflect beliefs and that having such groups student organizations on college and protections afforded other associative increases understanding and acceptance university campuses should be able to groups at universities, and affirm that an while allowing college students to grow. select leaders who share the associative group can and should be led One particular religious group organizations’ goals and mission. But by those who fully agree with the strongly supported the regulations they also noted that religious groups, purpose(s) of the group. because they support the right of including Jewish, Muslim, and Catholic A non-profit law firm elaborated that student organizations to maintain core student organizations, have been because personnel is policy, any religious beliefs as necessary for group discriminated against for requiring that organization dedicated to advancing a membership and leadership. They their leaders uphold and practice the particular cause must ensure that those contended that students do not lose religious teachings that the group who lead it are actually committed to constitutional rights simply because espouses. that cause. Thus, organizations they step onto a college campus. Public Many commenters drew analogies dedicated to advancing a particular university officials abridge the regarding organizations’ right to choose cause, whether the College Democrats, guarantees of the First Amendment leadership that reflects their values, the College Republicans, the Christian when they limit students’ ability to priorities, or skills. For example, one Medical Association, Chabad on freely assemble and gather around their commenter drew the analogy that a male Campus, or any other group formed most deeply held beliefs. football team would not be led by a around a common cause or belief should One commenter wrote in support of woman, a female acapella group is not be permitted to maintain membership the proposed rules because education is led by a man, Phi Beta Kappa is not led and leadership standards that ensure the an area of significant importance in by someone with poor grades. Further, common cause is furthered. Judaism, and they believe that these this commenter observed that groups Another commenter shared that proposed rules would help foster a like Phi Beta Kappa are not criticized for religious organizations’ values and better environment in which Jewish discriminating based on intelligence nor beliefs, particularly, make them positive Americans can educate their children. fraternities or acapella groups for contributors to campus life, so the They argued that the proposed excluding membership based on sex, so proposed regulations, which would regulations would also play an religious organizations should not be extend equal treatment to religious important role in safeguarding the rights considered any differently. student groups, would make the public of Jewish student organizations on Another commenter supported these campus a welcoming environment for public college campuses. proposed regulations and noted that all. One commenter reasoned that under Title VII of the Civil Rights Act A commenter wrote that, based on removing membership/leadership of 1964 (‘‘Title VII’’), if a factor such as many conversations they had over the qualifications gives space for leaders religion, sex, or national origin, etc., is past few years, the ability of each group with dangerous motives (such as reasonably necessary in the normal to retain that its unique religious someone seeking to manipulate others) operation of an organization to carry out identity can only be truly protected by to enter a leadership position, posing a a particular job function, then that factor regulations such as this—to once and for risk to belief-based organizations. is bona fide occupational qualification, all end the discrimination that too often and the use of such a factor is not happens and lessen the fear of lawsuits Clarity considered discriminatory. A if institutions try to protect groups that A significant number of commenters commenter supported the proposed others want to keep off campus. Another expressed support for the proposed regulations because setting standards for commenter added that further legal regulations because they would clarify the leaders of our organizations, protection is needed for religious longstanding confusion over religious whether religious or secular, is the best student groups, given the polarized organizations’ role and rights on measure to protect the core values, climate. university campuses. They noted how character and mission of such Another commenter reflected that these regulations would add clarity for organizations. This commenter stated faith and interfaith groups have become both religious organizations and campus that a scientific society would quickly increasingly sponsored and promoted in administrators by instituting clear lose effectiveness and credibility if it the workplace as a part of a larger standards. allowed its leadership to be infiltrated diversity and inclusion measure. Since Discussion: The Department by those who do not believe or universities educate tomorrow’s appreciates these comments in support subscribe to the ‘‘scientific method’’ as workers, universities should mirror and agrees that religious student the best course for research and these trends and provide students the organizations play an important role at scientific discovery. Another opportunity to explore faith during their public institutions of higher education. commenter noted that leaders sharing formative years. The Department revises §§ 75.500(d) basic convictions of the religious A commenter stated that having a and 76.500(d) to expressly note that the organization allowed the commenter to diversity of groups requires provisions, concerning religious student

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organizations, constitute material other student organizations at the public Commenters maintained that no public conditions of the Department’s grants. institution. The Department specifically funds should support religious student The Department consistently includes distribution of student fee organizations, but rather, churches characterized the provisions in funds in this non-exhaustive list. The alone should fund such student groups. §§ 75.500(d) and 76.500(d) in the NPRM Department makes a technical These commenters argued that Thomas as material conditions.56 The correction in § 75.500(d) to refer to Jefferson’s ‘‘wall of separation’’ is more tremendous amount of support for these grantees that are public institutions to important than ever in our diverse provisions demonstrates that these align with the language in the remainder world. Commenters also stated that the regulations are indeed material and of § 75.500. The Department makes a Constitution demands that our necessary to reinforce First Amendment technical correction to § 76.500(d) to children’s ability to get an education freedoms at public institutions. The refer to States or subgrantees that are must never depend on whether they Department has revised its other public institutions to align with the share the religious beliefs of any provisions in §§ 75.500(b)–(c) and language in the remainder of government-funded organization. 76.500(b)–(c) regarding compliance with § 76.500(d). Commenters also contended that the the First Amendment for public religious exemption violates the institutions and freedom of speech, Comments in Opposition Establishment Clause’s prohibition on including academic freedom, for private Separation of Church and State & government promotion or advancement institutions to reflect that these Concerns Under the Establishment of religion. According to this provisions are material conditions, Clause of the First Amendment commenter, in Corporation of Presiding consistent with the characterization of Bishop v. Amos, the Supreme Court Comments: Several commenters these provisions in the NPRM. The explained that the Title VII exemption asserted that the proposed regulation Department wishes to note that all of the allows ‘‘churches to advance religion,’’ pertaining to religious student provisions in §§ 75.500 and 76.500 which does not violate the organizations violates the Establishment promulgated through these final Constitution.59 The commenter regulations are material conditions. Clause. One commenter argued that the contended that the case would have Additionally, commenters described a Establishment Clause bars the been different had ‘‘the government myriad of ways in which public government from making itself . . . advanced religion through its institutions may treat religious student accommodations for religion that own activities and influence.’’ 60 The organizations differently than other impose significant burdens on third commenter concluded that unlike in student organizations. In response to parties, such as students or nonreligious Amos, here the government itself is these comments, the Department revised organizations. Another commenter involved. the parenthetical in §§ 75.500(d) and stated that the final regulation would Discussion: The Department disagrees 76.500(d) that includes a non- expand the allowable use of Federal with commenters who state that the exhaustive list of examples of how a financial assistance to support religious regulation violates the Establishment public institution may deny a religious instruction, worship, and Clause. It is a well-established principle organization a right, benefit, or privilege proselytization. The commenter noted that public institutions may provide that is otherwise afforded to other that the First Amendment prohibits the benefits to religious student student organizations at the public government from directly funding organizations without running afoul of institution. As commenters raised the religious instruction, worship, and the First Amendment. Indeed, ‘‘[i]f the issue of public institutions denying proselytization, as the Supreme Court Establishment Clause barred the religious student organizations student held in Locke v. Davey.58 Other extension of general benefits to religious fee funds provided to other student commenters maintained that any groups, a church could not be protected organizations and as the Supreme Court organization that makes the choice to by the police and fire departments, or of the United States decisively ruled on exclude classes of people based on have its public sidewalk kept in the distribution of student fee funds to religion, race, gender identity, or sexual repair.’’ 61 More specifically, ‘‘the religious student organizations in orientation should not receive public guarantee of neutrality is not offended Rosenberger v. Rector & Visitors of the tax dollars. where, as here, the government follows University of Virginia,57 the Department One commenter who identified as a neutral criteria and evenhanded policies revises the parenthetical to include former Episcopal chaplain at a large to extend benefits to recipients whose distribution of student fee funds as one public university stated that this ideologies and viewpoints, including way in which a public institution may commenter’s campus ministry included religious ones, are broad and treat a religious student organization a student organization recognized by the diverse[.]’’ 62 differently than other student university. This commenter noted, organizations. however, that there was no expectation 59 483 U.S. 327, 337 (1987). Changes: The Department revises that the university help fund the 60 Id. §§ 75.500(d) and 76.500(d) to state that chaplain’s ministry and that the funding 61 Widmar v. Vincent, 454 U.S. 263, 274–75 the provisions related to religious came entirely through the Episcopal (1981) (internal quotation marks and citation church. This commenter further noted omitted); Espinoza v. Montana Dep’t of Revenue, student organizations at public 140 S. Ct. 2246, 2254 (2020) (‘‘We have repeatedly institutions constitute a material that other campus ministries at that held that the Establishment Clause is not offended condition of the grant. The Department university used this same approach to when religious observers and organizations benefit also revises the parentheticals in separation of church and state and from neutral government programs.’’). §§ 75.500(d) and 76.500(d) that include advocated that the Department maintain 62 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 820–21 (1995) (citation omitted); see a non-exhaustive list of examples of such a separation. Commenters also also Widmar, 454 U.S. at 274 (internal quotation how a public institution may deny a argued that, because we live in a marks removed) (‘‘[A]n open forum in a public religious organization a right, benefit, or pluralistic society, it is inappropriate for university does not confer any imprimatur of state privilege that is otherwise afforded to publicly funded institutions to fund approval on religious sects or practices. As the Court of Appeals quite aptly stated, such a policy religious student organizations at all. would no more commit the University . . . to 56 See, e.g., 85 FR 3191, 3199, 3214. religious goals than it is now committed to the goals 57 515 U.S. 819 (1995). 58 Locke v. Davey, 540 U.S. 712 (2004). Continued

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Not only is providing benefits to religious tenets when selecting permissible: Allowing a religious group religious student organizations leadership—violates their freedoms of to exercise its religion without permitted under the Establishment speech, association, and free exercise. government interference.68 As the Clause, but withholding benefits from The First Amendment requires public Supreme Court stated: ‘‘A law is not religious student organizations because institutions of higher education to unconstitutional simply because it of their viewpoint or religious character refrain from infringing on this allows churches to advance religion, is forbidden under the First ecosystem of liberties unless a public which is their very purpose.’’ 69 Amendment, as the Supreme Court has institution adopts a true all-comers Changes: None. repeatedly recognized in cases involving policy as explained in the ‘‘All-Comers’ 63 ‘‘All-Comers’’ Policies for Student institutions of higher education. Policies for Student Organizations’’ Organizations Moreover, §§ 75.500(d) and 76.500(d) section, below. strengthen the wall of separation Additionally, §§ 75.500(d) and Comments: Several commenters between church and state by preventing 76.500(d) support, rather than hinder, opposed the changes to §§ 75.500(d) and public university administrators from pluralism, as these regulations prevent 76.500(d) because they contended violating the First Amendment by public institutions from suppressing or colleges have the right to require all interfering with religious beliefs or discriminating against ideas in an student organizations, religious or becoming entangled with religion. The academic setting. These final nonreligious, to comply with Supreme Court has found this kind of regulations ensure that institutions of nondiscrimination policies to receive interference unconstitutional, like in the higher education comply with Congress’ funding or recognition in accordance case of Widmar v. Vincent,64 in which mandate to ‘‘facilitate the free and open with the holding in Christian Legal the Court struck down a university exchange of ideas’’ and prevent students Society v. Martinez.70 Other policy excluding all religious groups from being ‘‘intimidated, harassed, [or] commenters contended that the from using school facilities. The Court discouraged from speaking out, or Department should not bar schools from observed that ‘‘the University would discriminated against’’ on account of applying neutral, generally applicable risk greater ‘entanglement’ ’’ between their speech, ideas or expression.67 The policies to religious student church and state because ‘‘the Department thus disagrees with organizations. Commenters argued that University would need to determine commenters who opined that the rule it is inappropriate for the executive which words and activities fall within requires children to share the religious branch to foreclose all-comers policies ‘religious worship and religious beliefs of a government-funded by public colleges and universities. teaching.’ ’’ 65 Similarly, it is improper organization in order to obtain an These commenters argued that these for universities to decide what education. Instead, §§ 75.500(d) and policy decisions are best left to constitutes religious qualifications, or to 76.500(d)—which deal exclusively with institutions as informed by their own determine which religious qualifications student organizations, not the school’s State laws. are acceptable. Indeed, ‘‘[a]ccording the curriculum—increases the range of Many commenters noted that in state the power to determine which religious and ideological diversity to Martinez, the Supreme Court upheld as individuals will minister to the faithful which students are exposed. constitutional a public university’s all- also violates the Establishment The Department notes that existing comers policy that required student Clause.’’ 66 §§ 75.532 and 76.532 strictly prohibit groups seeking official recognition to The Department notes that the final any State, grantee, or subgrantee from allow any student to join and participate rule will not impose constitutionally using its grant to pay for religious in that group, including in elections for significant burdens on third parties. worship, instruction, or proselytization. leadership positions. The Court held First, the rule mandates equal treatment These final regulations do not alter that such policies do not violate the free for religious student organizations as §§ 75.532 and 76.532 in any way. speech, expressive association, and free 71 compared to their secular counterparts; Assuming arguendo that the holding in exercise rights of the students. The these final regulations do not favor or Locke v. Davey requires such Court also concluded that all-comers restrictions, the Department’s existing policies do not violate the Free Exercise disfavor religious student organizations 72 or any particular religion. Second, the regulations are consistent with the Clause. Rejecting the argument that U.S. Constitution does not prohibit restrictions that the commenter believes such policies target religion, the Court religious student organizations from Locke requires. The Department’s explained that exempting religious excluding students from leadership existing regulations, thus, ensure that groups from all-comers policies would grants are not used in violation of the provide them ‘‘preferential, not equal, because they do not meet an 73 organization’s religious qualifications, Establishment Clause. treatment.’’ Commenters also remarked that the even though such exclusion may be Lastly, these final regulations are not proposed regulations would mandate potentially inconvenient or contrary to the Establishment Clause the very same preferential treatment for disappointing. Such exclusion under principles established in Corporation of religious student organizations that the these final regulations is a permissible the Presiding Bishop of Church of Jesus Supreme Court held was not necessary distinction based on religious belief or Christ of Latter-Day Saints v. Amos in Martinez. Commenters noted that in conduct. The alternative—requiring because the government is not using its Martinez, the Supreme Court held that faith-based groups to forgo their activities or influence to advance or promote religion, but is instead where a school implements a nondiscrimination policy requiring of the Students for a Democratic Society, the Young requiring public institutions not to deny Socialist Alliance, or any other group eligible to use to religious student organizations any its facilities.’’). right, benefit, or privilege that is 68 Corp. of Presiding Bishop of Church of Jesus 63 Rosenberger, 515 U.S. at 846; Healy v. James, otherwise afforded to other student Christ of Latter-day Saints v. Amos, 483 U.S. 327, 337 (1987). 408 U.S. 169, 194 (1972); Widmar, 454 U.S. at 277; organizations at the public institution. It see also Martinez, 561 U.S. at 685. 69 Id. 64 Widmar, 454 U.S. at 274–75. accomplishes exactly what Corporation 70 561 U.S. 661 (2010). 65 Id. at 272, n.11. of the Presiding Bishop ruled was 71 Id. at 683. 66 Hosanna-Tabor Evangelical Lutheran Church & 72 Id. at 697 n.27. Sch. v. E.E.O.C., 565 U.S. 171, 188–89 (2012). 67 20 U.S.C. 1011a(2)(C)–(D). 73 Id.

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official, school-funded student groups to sexuality (e.g., the Clara Foltz Feminist student organizations for unfavorable accept ‘‘all-comers,’’ the policy is a Association and Students Raising treatment. Numerous public reasonable, viewpoint neutral condition Consciousness at Hastings).’’ 79 The commenters described instances in governing the formal recognition of implications of such a policy were that which disfavored treatment of religious student organizations.74 According to ‘‘the . . . Democratic Caucus cannot bar student organizations occurs daily on commenters, in Martinez the Christian students holding Republican political college campuses nationwide, Legal Society argued that being required beliefs from becoming members or demonstrating the need for such a rule. to accept members who did not share seeking leadership positions in the Public institutions remain free to adopt the organization’s core beliefs about organization.’’ 80 With respect to a true generally applicable membership religion and sexual orientation violated all-comers policy, pro-choice groups policies, such as an all-comers policy, First Amendment rights to free speech, could not bar leadership positions from but a public institution may not expressive association, and free exercise pro-life individuals; Muslim groups selectively enforce its policies to target of religion.75 The commenters asserted could not bar leadership positions from religious student organizations so as to the Court recognized that it is ‘‘hard to non-Muslims; the feminist group could deny them any right, benefit, or imagine a more viewpoint-neutral not bar leadership positions from privilege that is otherwise afforded to policy than one requiring all student misogynists; and so on. Such a policy is other student organizations at the public groups to accept all comers’’,76 and that constitutional under Martinez, but is not institution. what the group actually sought was ‘‘not required by the U.S. Constitution or Changes: None. parity with other organizations, but a under the holding in Martinez. Indeed, Religious Student Organizations Should preferential exemption from [the many public institutions of higher 77 Not Receive Special Protection or school’s] policy.’’ education elect not to implement true Receive Preferential Treatment Discussion: In Christian Legal Society all-comers policies due to these obvious v. Martinez, the Supreme Court practical difficulties. Comments: Several commenters considered a policy that ‘‘mandated The final regulations would not, as opposed the final regulations because, acceptance of all comers’’ meaning that one commenter suggested, mandate by not expanding the exception to other ‘‘[s]chool-approved groups must ‘allow preferential treatment for religious groups with specific viewpoints such as any student to participate, become a student organizations. In Martinez, the political or affinity groups, they stated member, or seek leadership positions in religious student organization sought the proposed regulations would the organization, regardless of [her] ‘‘not parity with other organizations, but allegedly grant faith-based student status or beliefs.’ ’’ 78 The Department a preferential exemption from [the organizations preferential treatment. emphasizes that §§ 75.500(d) and institution’s all-comers] policy.’’ 81 One commenter noted that student 76.500(d) are consistent with the Here, the Department requires parity organizations at public colleges and holding in Martinez, as these among all organizations. A public universities constitute a public forum, regulations do not prohibit public institution of higher education may and that, while these institutions may colleges and universities from adopt a generally applicable policy, not discriminate based on viewpoint, implementing all-comers policies, nor such as an authentic all-comers policy, they also cannot favor some viewpoints do they bar these institutions from which applies equally to all student by granting special exemptions only to applying neutral, generally applicable organizations and which requires all religious organizations. policies to religious student student organizations to allow any Numerous commenters also organizations. By its very definition, a student to participate, become a contended that schools should fund neutral policy of general applicability member, or seek leadership positions in only those groups that serve ‘‘the common good’’ on their campus. binds all organizations, and thus is the organization, regardless of the Several commenters opined that ‘‘strict permissible under §§ 75.500(d) and student’s status or beliefs. A public sectarian groups’’ do not support the 76.500(d); therefore, an authentic all- institution also may adopt a generally common good. One commenter opined comers policy would be neutral and applicable policy that allows all student that a religious student group that generally applicable. organizations to set their own Under the stipulated facts of qualifications for membership and believes in creationism or a flat Earth Martinez, the policy applied to all 60 leadership. A public institution also should not be equally eligible for money groups on campus, including ‘‘political may adopt other types of generally as a physics club. Another commenter contended that, by promulgating this groups (e.g., the . . . Democratic Caucus applicable policies with respect to regulation, the Department is attacking and the . . . Republicans), religious student organizations as long as such science, and the commenter predicted groups (e.g., the . . . Jewish Law policies apply equally to all student that such attacks will ultimately damage Students Association and the . . . organizations, including religious the nation’s economy. Commenters also Association of Muslim Law Students), student organizations. None of these stated that the Department must not groups that promote[d] social causes scenarios give religious student require colleges and universities to fund (e.g., both pro-choice and pro-life organizations an exemption or groups that contradict accepted science groups), groups organized around racial preferential treatment, but merely equal or discriminate against select groups of or ethnic identity (e.g., the Black Law treatment, which is required under the students such as LBGTQ+ individuals, Students Association, the Korean First Amendment. racial minorities, or any other American Law Society, La Raza Law Ultimately, §§ 75.500(d) and 76.500(d) recognized group. Other commenters Students Association, and the Middle clarify that public institutions allowing suggested that religious students are not Eastern Law Students Association), and student organizations to restrict the students that government programs groups that focus[ed] on gender or membership or hold certain standards for leadership may not implement non- are ‘‘actually intended’’ to help, that 74 Id. at 669. neutral policies that single out religious religious student groups should refrain 75 Id. at 668. from proselytization, and that religious 76 Id. at 694. 79 Id. at 709. groups experience disfavored treatment 77 Id. at 669. 80 Id. at 675. because they do not truly work ‘‘for the 78 Id. at 671 (citations omitted). 81 Id. at 669. good of all humanity.’’

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Commenters opined that the final response to the exercise of a withholding funds from any student regulations would allow any religiously fundamental right—here, by religious organization under a neutral rule of affiliated student organization to student organizations—triggers strict general applicability is not blackmail universities by claiming to be scrutiny under the Equal Protection constitutionally suspect or prohibited discriminated against if they did not Clause.84 Making religious student under these final regulations.88 receive money from their university groups’ funding contingent on whether Finally, the Department disagrees that each time they requested it. Several they believe in creationism—or any these final regulations will damage the commenters remarked that schools other religious belief—is forbidden, as economy. As discussed should be able to discipline student the Supreme Court has repeatedly comprehensively in the NPRM, the organizations that practice exclusion held.85 Thus, contrary to the arguments Department has analyzed the costs and and bias. Commenters also claimed that, of these commenters, religious student benefits of complying with these if religious student organizations truly organizations, regardless of their regulations. We concluded that the work for the good of all humanity as religious beliefs, are entitled to the same regulations impose approximately they say they do, such groups would not general benefits as other secular $297,770 in costs in Year 1, and we are proselytize or discriminate against organizations under the First issuing them on a reasoned anyone, and therefore they would have Amendment. Neither the religious group determination that their benefits justify no need for these final regulations. nor the science club should be silenced. their costs. Further, we do not believe Discussion: The Department reiterates Further, §§ 75.500(d) and 76.500(d) do that the final regulations will result in that the final regulations do not not enable religious student any significant costs to the Federal mandate preferential treatment for faith- organizations to discriminate on the government, general public, or based student organizations; instead, the basis of protected classes, such as race recipients of support under the affected regulatory text requires that religious or sex. It simply allows them to create programs. If public institutions treat student organizations not be denied leadership or membership qualifications religious student organizations and benefits given to any other student based on religious tenets or standards of other student organizations equally, group because of their religious nature. conduct informed by their religion. then these public institutions will avoid Therefore, rather than giving religious Disciplining these organizations for liability for First Amendment violations, student organizations special treatment, exercising their First Amendment rights, which may even result in a cost savings. the regulation explicitly requires the as suggested by one commenter, is Changes: None. opposite outcome—that religious forbidden by the Constitution. Further, The Proposed Regulations Will Allow student organizations at public whether or not a religious group engages Discrimination Against Certain Groups institutions be afforded equal treatment. in proselytization is not relevant to of Students Indeed, the substance of the whether there is a need for these final numerous oppositional comments Comments: Several commenters regulations. The overwhelming number confirmed the need for a final rule maintained that the proposed of comments in support of these final requiring equal treatment for religious regulations are ‘‘dangerous’’ and regulations demonstrate that there are groups. First, contrary to the ‘‘harmful’’ to LGBTQ+ students, women instances in which religious student commenters who opined that religious and girls, religious minority students, organizations are treated unequally and student organizations do not contribute and ‘‘many others.’’ One commenter discriminated against on college to the common good, the Department stated that the changes proposed by the campuses, and support our received a tremendous number of Department are un-Christian and would determination that these final comments from students who had reward bigotry and hatred by creating a regulations are necessary to remedy benefited personally, academically, and religious right to discriminate against professionally because of participation such discrimination against religious vulnerable groups. Some commenters in religious student groups. These student organizations. who identified as parents of LGBTQ+ commenters also described numerous Religious student organizations would students opposed these proposed ways in which their communities not be empowered to ‘‘blackmail’’ regulations. These commenters were benefited because of service projects universities by ‘‘claiming’’ concerned that powerful religious carried out by these religious student discrimination each time they failed to groups in the U.S. would persecute and groups. receive money. If, in fact, a public harm their children openly because Second, while the Department institution of higher education does not these groups fear no reprisal from the understands that not everyone agrees provide religious student organizations government. These commenters also with the mission or beliefs of religious a public benefit that is generally noted that LGBTQ+ students should student organizations, the First available to secular organizations have the same rights as other students Amendment requires public institutions because of the religious character of the and not be pushed back into more of higher education to refrain from student organization, then it is engaging separation. content-based or viewpoint in discrimination prohibited by these Commenters also asserted that the discrimination under the Free Speech final regulations and the principles proposed regulations fail to address the Clause and to protect the free exercise established by the Supreme Court in harm that such an exemption would 86 87 of religion under the Free Exercise Trinity and Espinoza. However, pose for students who would face Clause. Indeed, the Supreme Court has discrimination by school-sanctioned 84 held that ‘‘[s]tate power,’’ which public See Clark v. Jeter, 486 U.S. 456, 461 (1988). student groups. These commenters 85 Rosenberger, 515 U.S. at 846; Healy, 408 U.S. noted that, because of the central role institutions wield, ‘‘is no more to be at 194; Widmar, 454 U.S. at 277. used so as to handicap religions than it 86 Trinity Lutheran, 137 S. Ct. at 2021–22 (holding that access to education plays in is to favor them.’’ 82 Likewise, the unconstitutional a policy forcing a religious Constitution ‘‘forbids hostility’’ toward institution to choose between ‘‘participat[ing] in an available benefits if they choose a religious private ‘‘all religions,’’ 83 and discrimination in otherwise available benefit program or remain[ing] school rather than a secular one’’). a religious institution’’). 88 RFRA applies to the Department when there is 87 Espinoza, 140 S. Ct. at 2261 (application of a substantial burden, even if the burden results 82 Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947). State’s no-aid provision violated the Free Exercise from a rule of general applicability. 42 U.S.C. 83 Lynch v. Donnelly, 465 U.S. 668, 673 (1984). Clause by ‘‘cutting families off from otherwise 2000bb–1.

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personal and professional development, not to discriminate against religious protected characteristic such as race eliminating discrimination in education student organizations, no matter what when forming school policies—which is has long been recognized as a their religious beliefs may be. These what the Supreme Court struck down in governmental interest of the utmost final regulations apply to religious Norwood and Bob Jones University.93 As importance. They cited Supreme Court student organizations, including noted above in the comments in support precedent to support their positions.89 religious minorities and religious groups of these final regulations, many One commenter stressed the long that have endured persecution. The commenters described policies in which history of student groups serving as overwhelming number of comments their religious student organizations vehicles for discrimination, preventing received in support of these final required leaders, regardless of their race marginalized students from being fully regulations regarding religious student or sex, to either espouse certain integrated into student life on university organizations and recent case law about religious beliefs or to conduct campuses across the country.90 The religious student organizations being themselves according to the tenets of commenter claimed that the denied the rights and benefits afforded their faith. Nevertheless, many of these Department’s proposed regulations to other student organizations at public groups were denied recognition by their would return public university institutions demonstrate these final institutions because of alleged campuses to a shameful era in which regulations are indeed necessary.92 ‘‘discrimination.’’ These comments public universities broadly Religious freedom, by its definition, demonstrate that, rather than using countenanced discrimination against promotes tolerance and pluralism religious liberty to further vulnerable groups of students. because it protects the right of discrimination, institutions are using Several commenters opined that the individuals and groups to obey their ‘‘tolerance’’ as an excuse to hurt Department is using religious liberty as conscience even when their conscience religious organizations. Depriving an excuse to discriminate or hurt other is at odds with popular beliefs and student groups of their rights in the students. Commenters suggested that practices. Additionally, religious name of ‘‘anti-discrimination’’ furthers the Department seems to have proposed freedom constrains State action that religious discrimination itself, which these regulations because the would otherwise seek to enforce the Constitution does not tolerate. Department desires to attack LGBTQ+ uniformity of thought or silence dissent. The Department does not agree with students and promote bigotry on Thus, requiring public institutions to commenters who suggest that the final university campuses. A commenter recognize students’ First Amendment regulations reflect a theocratic form of suggested that the employees at the rights to speech, association, and free government or are an attempt to force Department who helped work on the exercise will foster a culture that is the beliefs of older, white, upper-middle proposed regulations should move to a more welcoming of various viewpoints class conservative Christians onto the theocratic government overseas such as and lifestyles, not less. Accordingly, the rest of America. The purpose of the final Saudi Arabia or Israel. Several Department does not desire to attack rule is not to favor a certain viewpoint, commenters remarked that the any group but instead intends to but to reestablish neutrality on Department, by proposing these encourage coexistence among a wide campuses, which is what the First regulations, is forcing the beliefs of variety of organizations and viewpoints. Amendment requires. Moreover, with older, white, upper-middle class This will help, not harm, LGBTQ+ neutrality comes ideological and conservative Christians onto the rest of students, women, religious minorities, religious pluralism, which is healthy for America. and student organizations of all kinds. a democratic society. One commenter stated that the Indeed, LGBTQ+ students would be able The final regulations are intended to government should never fund to organize student organizations that protect religious organizations from discrimination, and that allowing such limited membership to only students unconstitutional action stemming from discrimination raises constitutional who identify as LGBTQ+, if a public the disapproval of a particular religion 94 concerns. This commenter asserted that institution of higher education adopted or of religion in general. Bias against the government has a ‘‘constitutional a generally applicable policy that religion and religious student obligation’’ to ‘‘steer clear, . . . of giving allowed all student organizations to organizations is a growing problem as significant aid to institutions that promulgate membership criteria. many commenters noted that public practice racial or other invidious The Department remains committed institutions have become increasingly discrimination.’’ 91 to eliminating invidious discrimination less diverse and more hostile towards Discussion: The Department disagrees in the educational setting and religious student organizations. This with commenters who state that the vigorously enforces Title VI of the Civil trend is caused by institutions moving final regulations will promote Rights Act of 1964, which prohibits away from the First Amendment and discrimination, bigotry, and hate on discrimination on the basis of race, seeking to establish viewpoint college campuses. The Department is color, and national origin, as well as uniformity, which is not good for those not espousing any religious beliefs and Title IX of the Education Amendments in the minority or the majority. is instead requiring public institutions of 1972, which prohibits discrimination Ultimately, the final regulations will on the basis of sex. However, the ensure that religious student 89 See, e.g., Norwood v. Harrison, 413 U.S. 455, Department clarifies that excluding organizations will not be coerced by 469 (1973) (holding that Mississippi could not give individuals from leadership in a student university administrators to abandon textbooks to students attending racially segregated group because of their beliefs or conduct their sincerely held beliefs in lieu of private schools because ‘‘discriminatory treatment is not comparable to using the prevailing opinions on college exerts a pervasive influence on the entire campuses. It will restore to religious educational process’’); see also, e.g., Bob Jones ‘‘constitutionally suspect criteria’’ of a Univ. v. United States, 461 U.S. 574, 604 (1983) student organizations the ability to (footnote omitted) (‘‘[T]he Government has a 92 InterVarsity Christian Fellowship/USA v. Univ. fundamental, overriding interest in eradicating of Iowa, 408 F. Supp. 3d 960 (S.D. Iowa 2019) 93 Norwood, 413 U.S. at 469; Bob Jones Univ., 461 racial discrimination in education. . . .’’) (currently on appeal to the U.S. Court of Appeals U.S. at 604. 90 Commenter cited the Brief of Amicus Curiae of for the 8th Circuit); Bus. Leaders in Christ v. Univ. 94 Lukumi, 508 U.S. at 532 (‘‘[T]he First the ACLU et al. at 10–12, Christian Legal Soc’y, 561 of Iowa, 360 F. Supp. 3d 885, 899 (S.D. Iowa 2019) Amendment forbids an official purpose to U.S. 661 (Mar. 15, 2010). (currently on appeal to the U.S. Court of Appeals disapprove of a particular religion or of religion in 91 Norwood, 413 U.S. at 465–66. for the 8th Circuit). general.’’).

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participate at public institutions of without all-comers policies would, in Department clarifies that §§ 75.500(d) higher education on equal footing with some jurisdictions, expose themselves and 76.500(d) do not, as several all student organizations without to a legal challenge grounded in State commenters stated, prevent institutions disadvantaging or harming any students and local nondiscrimination laws. from implementing all-comers policies or organizations. One commenter also opined that the which were upheld in Martinez, nor Changes: None. proposed regulations include language does it constitute an ‘‘exemption’’ for that is worrisome in its vagueness, as it The Proposed Regulations Are Not religious student groups from all-comers prohibits public institutions from Required by Law or Allegedly Violate policies. Instead, these final regulations denying rights to a religious student the Law reinforce the First Amendment’s organization based on the group’s mandate that public institutions treat Comments: Many commenters stated ‘‘practices, policies, . . . and leadership religious student organizations the same that the Department does not explain standards.’’ 97 This commenter as other student organizations. As such, the need for what they characterize as contended that this language is a university does not have to choose a broad exemption for religious student untethered to religious beliefs or between compliance with State law and organizations on college campuses. religious speech. This commenter securing Federal funding in the form of Several commenters argued that no asserted that the Department should not grants; it is free to enforce an all-comers laws, including the Free Exercise want colleges and universities to policy, which is permissible under Clause, require these final regulations. abdicate their responsibility to set Martinez, in order to comply with any These commenters noted that, in CLS v. reasonable and appropriate standards State anti-discrimination laws as long as Martinez, the Court held that CLS, in for student organizations, and it it applies that policy equally to all seeking an exemption from Hastings’ certainly ought not to compel that student organizations as stipulated in across-the-board all-comers policy, abdication. This commenter gave the Martinez. If a public institution chooses sought preferential, not equal treatment; example that no college or university not to adopt an all-comers policy, which the group therefore could not moor its should be encouraged or compelled to is also permissible, then the institution request for accommodation to the Free turn a blind eye to hazing because it is 95 cannot require a student organization, Exercise Clause. Commenters also occurring within a religious student including a religious student stressed that the regulation is not organization. organization, to open eligibility for required under Title IV of the HEA. Another commenter expressed membership and leadership to all Commenters argued that the proposed concerns that the proposed regulations students. Ultimately, a university has regulations violate the clear directive of may create a scenario in which a public the discretion to choose what kind of Executive Order 13864, namely that institution of higher education could policy will best comply with its own agencies ‘‘take appropriate steps, in a lose Federal funding for denying State and local anti-discrimination laws. manner consistent with applicable recognition to a student organization 96 Additionally, these final regulations law[.]’’ that promotes hate speech barred by are consistent with the U.S. Constitution One commenter maintained that the school policies, while a private and governing case law.98 ‘‘The Free proposed regulations could conflict institution receiving funding under the Exercise Clause ‘protect[s] religious with State and/or Federal civil rights identical program could censor speech observers against unequal treatment’ laws that require campus all-comers or otherwise protected by the First and subjects to the strictest scrutiny non-discrimination policies. This Amendment but which violates the laws that target the religious for ‘special commenter noted that Title IX and other school’s internal speech policies. The disabilities’ based on their ‘religious Federal and State civil rights laws commenter argued that such an outcome status.’ ’’ 99 The Supreme Court has prohibit public institutions of higher defies reason and would likely not ‘‘repeatedly confirmed’’ that ‘‘denying a education from discriminating on the survive constitutional scrutiny. generally available benefit solely on basis of sex and other protected Discussion: The Department disagrees account of religious identity imposes a characteristics. According to this with commenters who state that the penalty on the free exercise of religion commenter, public universities also may Department does not explain the need that can be justified only by a state choose to advance State-law goals for the rule. The NRPM noted that interest of the highest order.’’ 100 Most through the school’s educational courts repeatedly have been called upon recently in Espinoza, the Supreme Court endeavors. The commenter opined that to vindicate the rights of dissident confirmed again: ‘‘This rule against in order to ensure full compliance with campus speakers who do not share the express religious discrimination is no State and Federal civil rights laws, views of the majority of campus faculty, doctrinal innovation. Far from it. As public colleges and universities often administrators, or students. It also have in place robust non-discrimination provided numerous examples of cases 98 These final regulations also are consistent with policies that apply neutrally to all in which Federal courts found that and in furtherance of the Religious Freedom student organizations. Similarly, public universities discriminated Restoration Act (RFRA). 20 U.S.C. 2000bb, et seq.; another commenter asserted that the against religious student organizations Little Sisters of the Poor Saints Peter & Paul Home proposed regulations offer some public v. Pennsylvania, 140 S. Ct., at 2383–84 (U.S. July in violation of the First Amendment by 8, 2020). RFRA ‘‘provide[s] very broad protection institutions a choice between aligning withholding funding or denying other for religious liberty.’’ Burwell v. Hobby Lobby, 573 with State and local non-discrimination rights, benefits, and privileges afforded U.S. 682, 693 (2014). RFRA applies to the laws and maintaining eligibility for to secular student organizations. Department, and some of the Department’s grantees Federal grant funding. This commenter may essentially act on behalf of the Department in Sections 75.500(d) and 76.500(d) are awarding subgrants or administering formula-grant contended that colleges and universities wholly consistent with applicable law, programs. These final regulations as material that choose to maintain eligibility for including but not limited to Supreme conditions of a Department’s grant under Departmental grants by revising their Court precedent, the First Amendment, §§ 75.500(d) and 76.500(d) will help ensure that any protocols to allow for recognition of entity, acting on behalf of the Department with Title IX, and the HEA. First, regarding respect to a grant, does not substantially burden a faith-based student organizations Supreme Court precedent, the person’s free exercise of religion. 99 Trinity Lutheran, 137 S. Ct. at 2019 (quoting 95 Martinez, 561 U.S. at 697 n.27. 97 This commenter quotes from §§ 75.500(d) and Lukumi, 508 U.S. at 533). 96 84 FR 11402. 76.500(d), as proposed in the NRPM. 100 Id.

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Trinity Lutheran explained, the rule is more fully in the ‘‘Executive Orders and practices, policies, speech, membership ‘unremarkable in light of our prior Other Requirements’’ section, the standards, or leadership standards, decisions.’ ’’ 101 Sections 75.500(d) and Department is authorized under 20 which are informed by sincerely held 76.500(d) are designed to bolster these U.S.C. 1221e–3, 20 U.S.C. 3474, and religious beliefs. These revisions clarify protections and prevent public E.O. 13864 to promulgate these final which student organizations may be institutions from denying rights, regulations. considered religious by noting that the benefits, and privileges to religious Lastly, the Department acknowledges student organization’s own stated student organizations because of their that under these final regulations, a mission is religious in nature. These religious character. The First public institution may lose Federal revisions also clarify that beliefs, Amendment protects religious student funding for violating the First practices, policies, membership organizations’ right to free exercise of Amendment—by, for example, standards, or leadership standards, religion in addition to the freedoms of prohibiting hate speech,106 if such hate which are informed by sincerely held speech and association, and these final speech constitutes protected speech religious beliefs, must not constitute the regulations are consistent with the First under the First Amendment, while a basis for differential treatment from Amendment, including the Free private institution may not lose its other student organizations, which is Exercise Clause, which requires equal funding for engaging in the same consistent with the First Amendment. treatment of secular and religious conduct. But this distinction between Changes: The Department revised student organizations. Given the public and private institutions is not §§ 75.500(d) and 76.500(d) to clarify that abundant evidence noted by unique to these final regulations. It is a religious student organizations include commenters regarding schools ‘‘denying well-established principle that private any student organization whose stated generally available benefits’’ to religious institutions are not bound by the First mission is religious in nature. The groups ‘‘solely on account of religious Amendment.107 Such an outcome is Department further revised these identity,’’ these regulations are contemplated by the very text of the regulations to clarify that a public necessary to make the guarantees in the First Amendment, which prohibits institution cannot deny any right, First Amendment, including the Free ‘‘Congress’’ from violating fundamental benefit, or privilege that is otherwise Exercise Clause, a reality at public freedoms and which was later made afforded to other student organizations institutions.102 Similarly, a public applicable to the States through the at the public institution because of the institution does not violate Title IX by Fourteenth Amendment.108 Despite this religious student organization’s beliefs, allowing religious student organizations constitutionally mandated distinction, practices, policies, speech, membership to have faith-based criteria for their the Department emphasizes that private standards, or leadership standards, leaders or to otherwise engage in the institutions are still bound by their own which are informed by sincerely held free exercise of their religion. These ‘‘stated institutional policies regarding religious beliefs. freedom of speech, including academic final regulations reinforce freedoms Whether Public Institutions freedom’’ under §§ 75.500(c) and guaranteed by the First Amendment. Discriminate Against Religious Additionally, the Title IX Final Rule, 76.500(c) of these final regulations. Organizations which became effective on August 14, Additionally, these final regulations 2020, expressly states that none of the would not interfere with an institution’s Comments: Numerous commenters regulations implementing Title IX ability to enforce an anti-hazing policy, shared specific instances in which faith- requires a recipient of Federal financial because such a policy would be a based student organizations were assistance to ‘‘[r]estrict any rights that neutral, generally applicable rule discriminated against because of their would otherwise be protected from applied to all student groups. These religious status. As noted in more detail government action by the First final regulations are instead intended to in the ‘‘Comments in Support’’ Amendment of the U.S. address policies that single out religious subsection of the ‘‘34 CFR 75.500(d) and 34 CFR 76.500(d)—Religious Student Constitution.’’ 103 groups for disparate treatment. To With respect to the HEA, the clarify that religious student Organizations’’ section, many different Department acknowledges that these organizations may not be treated commenters reported, for example, that final regulations are not a condition of differently on account of their religion, universities refused to recognize or participation in programs under Title IV the Department revises §§ 75.500(d) and outright banned religious organizations of the HEA. These final regulations are 76.500(d) to state that public that used faith-based qualifications to consistent with the HEA, which institutions shall not deny to any select leadership. As a result, these expressly states that ‘‘an institution of student organization whose stated organizations, if they were even allowed higher education should facilitate the mission is religious in nature any right, on campus at all, were stripped of free and open exchange of ideas’’ 104 and benefit, or privilege that is otherwise university benefits such as funding or ‘‘students should be treated equally and afforded to other students organizations facilities, faced bureaucratic hurdles fairly.’’ 105 Further and as explained at the public institution because of the that were not applied to secular religious student organization’s beliefs, organizations, and in one case, could 101 Espinoza, 140 S. Ct. at 2260 (quoting Trinity not even approach students on campus Lutheran, 137 S. Ct. at 2021) (internal quotation infringe upon any constitutionally protected because of the university’s biased marks and citation omitted). religious liberty, freedom, expression, or solicitation policy. Commenters noted 102 Lukumi, 508 U.S. at 532 (‘‘At a minimum, the association.’’ that even when these institutions protections of the Free Exercise Clause pertain if the 106 Matal v. Tam, 137 S. Ct. 1744, 1765 (2017) (‘‘it reversed their policies, religious student law at issue discriminates against some or all is a fundamental principle of the First Amendment religious beliefs or regulates or prohibits conduct that the government may not punish or suppress organizations were still subject to because it is undertaken for religious reasons.’’). speech based on disapproval of the ideas or administrative delays of up to a year in 103 85 FR 30573 (the Title IX final regulations perspectives the speech conveys.’’). some cases, faced prejudice and provide this express statement at 34 CFR 107 Manhattan Cmty. Access Corp. v. Halleck, 139 misconceptions, and experienced 106.6(d)(1)). S. Ct. 1921, 1926 (2019) (‘‘The Free Speech Clause increased polarization, which 104 20 U.S.C. 1011a(a)(2)(C). of the First Amendment constrains governmental 105 20 U.S.C. 1011a(a)(2)(E). Congress also stated actors’’). discouraged debate. in 20 U.S.C. 1011a(a)(2)(F) that ‘‘nothing in this 108 First Nat’l Bank of Bos. v. Bellotti, 435 U.S. Conversely, some commenters paragraph shall be construed to modify, change, or 765, 778 (1978). maintained that religious student

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organizations are already treated equally organizations suffer compared to secular Discussion: This commenter describes under the current rules, and the student organizations, only some of what is known as an all-comers policy Department failed to include even which are described above. These which, while uncommon in practice, anecdotal evidence that religious anecdotes concerned religious student was upheld by the Supreme Court of the student organizations who wish to organizations at hundreds of schools United States in CLS v. Martinez.116 It restrict their membership or leadership across the country; came from national is permissible for an institution to have been treated differently from other nonprofit organizations, professors, implement such a policy under the types of private groups. A commenter faculty advisors, students, and lawyers; Department’s final regulations, since it argued that this ‘‘fix’’ is the very and described experiences that occurred is a neutral rule of general applicability. definition of a solution in search of a over decades. However, absent such an all-comers problem. A commenter also stated that The Department acknowledges that policy, §§ 75.500(d) and 76.500(d) unofficial student groups often have there may be instances when unofficial prevents public institutions from failing access to the school’s facilities to student groups are granted access to to recognize religious student conduct meetings and the use of some of an institution’s facilities or organizations because of their faith- chalkboards and generally available resources, as was the case in based membership or leadership bulletin boards to advertise events. Martinez.112 Nevertheless, such access criteria. According to this commenter, even the to limited benefits does not cure the The Department further responds that Supreme Court, in CLS v. Martinez, constitutional infirmities under the First §§ 75.500(d) and 76.500(d)—which are found that the CLS chapter was being Amendment when religious student rooted in the First Amendment—do not treated the same as other private groups organizations are denied benefits apply to private institutions because on campus, including fraternities, afforded to other student organizations private institutions are not bound by the sororities, social clubs and secret or unequally burdened as compared to First Amendment.117 Private societies, which maintained a presence other student organizations. And often institutions are, however, obligated to at the university without official religious student organizations are uphold their ‘‘stated institutional 109 status. denied access to any of an institution’s policies regarding freedom of speech, Discussion: The Department notes the facilities or resources, which, as one including academic freedom,’’ through numerous comments recounting commenter expressed, relegates them to §§ 75.500(c) and 76.500(c) of these final instances of discrimination against second-class status. Singling out regulations. Institutions that violate religious student organizations, in religious student organizations for their own stated institutional policies which they were deprived of disfavored treatment because of their regarding freedom of speech, including recognition, funding, or facilities, religious nature or religious viewpoints academic freedom, will be found in among other benefits, due to their is precisely what the Supreme Court violation of the material conditions in religious status or character. The held impermissible in Rosenberger v. §§ 75.500(c) and 76.500(c) if there is a Department is revising §§ 75.500(d) and Rector & Visitors of University of final, non-default judgment by a State or 76.500(d) specifically to remedy these Virginia 113 and Widmar v. Vincent.114 Federal court to the effect that the issues of disparate treatment. Thus, these final regulations are private institution violated such stated We disagree with the commenters institutional policies.118 who suggest that religious student consistent with Supreme Court case law. As explained in more detail in the Changes: None. organizations are always treated equally Comments: One commenter noted with respect to secular organizations ‘‘ ‘All-Comers’ Policies for Student Organizations’’ section, these final that §§ 75.500(d) and 76.500(d) provide under the current regulations, and that no indication of how the Department the Department included no evidence to regulations are consistent with the holding in Martinez, which permitted will determine that a public college or the contrary. For example, the NPRM university has violated the regulation’s cited to Rosenberger v. Rector & Visitors but did not require public institutions to adopt all-comers policies.115 requirement to treat religious of the University of Virginia,110 in organizations and secular organizations Changes: None. which the Supreme Court held that a the same. The commenter guessed that, public institution denying funding to a Proposed Modifications & Requests for absent indications to the contrary, the religious student newspaper but not Clarification Department will make this other secular student newspapers determination entirely by itself. The Comments: One commenter expressed amounted to unlawful viewpoint commenter opined that this type of the need for private colleges to be discrimination under the First inquiry is inappropriate for the included under the regulations for Amendment. In addition, the NPRM Department to engage in and one it is public institutions because of concerns cited Business Leaders in Christ v. ill-equipped to make. University of Iowa,111 in which the regarding a policy at one private Discussion: The Department has the Federal district court very recently held institution requiring student groups to resources and expertise to determine the that treating a religious student open leadership to any student or lose narrow issue as to whether a public organization differently than other school recognition. This commenter university has violated the regulation’s student organizations violated the noted that a loss of recognition results requirement to not deny a religious religious student organization’s First in a loss of access to student activity fee student organization any of the rights, Amendment rights to free speech, money, low-cost or free university benefits, and privileges afforded to other expressive association, and free exercise spaces, and recruiting tools. student organizations. Whether religious of religion. Further, the Department student organizations are denied the received a tremendous number of 112 Martinez, 561 U.S. at 673 (finding school rights, benefits, and privileges as other comments replete with examples of the withheld official recognition from Christian Legal Society but allowed it the use of facilities, student organizations is a discrete issue differential treatment that faith-based chalkboards, and generally available campus bulletin boards). 116 561 U.S. 661 (2010). 109 Martinez, 561 U.S. at 691. 113 515 U.S. 819, 845 (1995). 117 Manhattan Cmty. Access Corp., 139 S. Ct. at 110 515 U.S. 819, 845, 829–30 (1995). 114 454 U.S. 263, 277 (1981). 1926. 111 360 F. Supp. 3d 885, 899 (S.D. Iowa 2019). 115 561 U.S. at 698. 118 34 CFR 75.500(c)(1); 34 CFR 76.500(c)(1).

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that the Department may easily greater specificity and clarity, however, finalized, would make clear that Title IX investigate. This issue does not involve given the broad range of relevant provides institutions with an affirmative the full panoply of First Amendment statutes, regulations, and individual defense against accusations of issues that the other regulations in grant program requirements, the discrimination. Commenters also noted §§ 75.500(b)–(c) and 76.500(b)–(c) commenter believed there is no rational that Title IX does not require permission present. The Department would only justification to modify these or recognition from the government determine whether other student requirements. The commenter did not before an institution asserts its organizations indeed received the right, provide further explanation or eligibility for a religious exemption as a benefit, or privilege that the religious clarification for this position. defense for a religious belief or the student organization was allegedly Discussion: The Department wishes to practice dictated by that belief. denied because of the religious student clarify that the current language of Similarly, one commenter supported organization’s beliefs, practices, §§ 75.700 and 76.700 already requires the Department’s acknowledgement of policies, speech, membership standards, grantees and subgrantees to comply the various ways that an institution may or leadership standards, which are with all applicable laws, regulations, establish its eligibility for a religious informed by sincerely held religious and approved applications. Statutory exemption under Title IX, and noted beliefs. The Department routinely and regulatory requirements to which that, in prior administrations, responses investigates violations of its regulations, grant recipients must comply already to letters claiming the religious and attorneys within the Department’s include the prohibition on race exemption were significantly delayed. Office of General Counsel regularly discrimination under Title VI, the According to the commenter, this advise the relevant office within the prohibition on sex discrimination under caused religious institutions to worry Department on any legal issues that Title IX, the prohibition on that the Department’s Office for Civil arise in an investigation. Unlike discrimination on the basis of handicap Rights (OCR) was considering whether investigations of any potential violation under Section 504 of the Rehabilitation to deem the schools ineligible for the of any provision of the First Act of 1973, and the prohibition on age exemption, despite their thoroughly Amendment or any stated institutional discrimination under the Age religious character. policy regarding freedom of speech, Discrimination Act. Section 75.700, as One commenter believed that the including academic freedom, an proposed and as promulgated in these ‘‘application’’ for an assurance that a investigation of the treatment of final regulations, would clarify that school could invoke or maintain a religious student organizations as grantees participating in Direct Grant religious exemption had previously compared to other student organizations Programs must comply with all of the been misconstrued by the Department, is limited in scope and presents a statutes and provisions in § 75.500, to the detriment of religious schools and discrete issue. An investigation to including § 75.500(b) and § 75.500(d) if universities, and to the detriment of the determine whether religious student they are public institutions and values protected by the United States organizations are being treated § 75.500(c) if they are private Constitution. The commenter contended differently than other student institutions. Similarly, § 76.700 would that there is no ‘‘application process’’ organizations is similar to the types of clarify that States and subgrantees set forth in the Title IX statute for a investigations that the Department participating in State-Administered religious exemption. The commenter currently conducts. The Department has Formula Grant Programs must comply further contended that the Department developed expertise in investigating, for with all of the statutes and provisions in has no power or authority to review and example, the discrimination or different § 76.500, including § 76.500(b) and rule upon a school’s religious tenets, or treatment on the basis of sex under Title § 76.500(d) if they are public whether a school is justified on the basis IX or on the basis of race, color, and institutions and must comply with of those tenets to invoke an exemption. national origin under Title VI. § 76.500(c) if they are private The commenter stated that not only Additionally, §§ 75.500(d) and 76.500(d) institutions. does the Title IX statute not require expressly indicate ways in which a Changes: None. such review before a school may invoke public institution may treat a religious 34 CFR 106.12 Educational a religious exemption, but that the First organization differently from a secular Institutions Controlled by Religious Amendment would not permit such organization, such as by failing to Organizations review. provide full access to the facilities of the Discussion: The Department public institution, withholding funds During the public comment period, appreciates and agrees with the from a religious organization, or the Department received comments both comments that religious liberty must be denying official recognition to a in support of and in opposition to the preserved and protected.119 In religious organization. proposed regulations about the religious promulgating this regulation, the Changes: None. exemption under Title IX. Below, we Department took into account the discuss substantive issues under topical 34 CFR 75.700 and 34 CFR 76.700— RFRA 120 and the United States Attorney headings, and by the sections of the Compliance With the U.S. Constitution, General’s October 6, 2017 Memorandum final regulations to which they pertain. Statutes, Regulations, Stated Institutional Policies, and Applications General Support for Proposed Changes 119 See Bostock v. Clayton County, Georgia, 140 to 34 CFR 106.12 S. Ct. 1731, 1754 (2020) (stating, in the Title VII Comments: One commenter asserted religious exemption context, ‘‘We are also deeply that under §§ 75.700 and 76.700, Comments: Some commenters concerned with preserving the promise of the free grantees must comply with all relevant expressed strong support for the exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic statutes, regulations, and approved proposed changes to § 106.12. One society.’’). applications. However, the Department commenter, for instance, believed that 120 42 U.S.C. 2000bb–2(4) (referring to 42 U.S.C. would limit compliance requirements to the proposed changes were necessary to 2000cc–5(7)(A) (defining ‘‘religious exercise’’ as only specific sections of four statutes ensure the continued protection of ‘‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief’’)). See and related regulations. The commenter religious liberty for religious also Little Sisters of the Poor Saints Peter & Paul noted the Department’s stated rationale educational institutions, contending Home v. Pennsylvania, 140 S. Ct. 2367 (2020); that this modification would provide that the proposed regulations, if Burwell v. Hobby Lobby, 573 U.S. 682 (2014).

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on Federal Law Protections for Religious educational institutions to seek an Department chose to engage in notice- Liberty.121 Further, the Department assurance letter describing their and-comment rulemaking to clarify the believes that its view of the religious religious exemption before a complaint religious exemption under Title IX. exemption provisions within Title IX is filed against them, the Department Changes: None. avoids unconstitutional discrimination notes that the reasons for the changes to General Opposition to Proposed against faith-based entities that would 34 CFR 106.12(b) were addressed in the Changes to 34 CFR 106.12 otherwise occur if OCR required that November 29, 2018 Title IX NPRM,123 educational institutions fit one specific and the recently released Title IX Final Comments: Many commenters organizational structure before they can Rule, effective August 14, 2020.124 As expressed opposition to the proposed become eligible for a religious explained in the Title IX NPRM and changes to § 106.12 because they exemption. Final Rule, the current version of 34 believed that the changes would allow The Department agrees with the CFR 106.12(b) could suggest that schools to claim sweeping, almost commenter who stated that there is no recipients are required to write a letter unlimited religious exemptions to Title ‘‘application process’’ set forth in the to the Assistant Secretary for Civil IX. These commenters asserted that the Title IX statute. No part of the statute Rights, and argue that parts of the proposed rule would make it easier for requires that recipients receive an regulation conflict with a specific tenet a broader range of schools to claim a assurance letter from OCR, and no part of the religious institution. The religious exemption, which the of the statute suggests that a recipient Department has determined that such a commenters often described as a right to must be publicly on the record as a requirement is unnecessary in order to discriminate while nevertheless still religious institution that claims a assert certain exemptions, and the Title receiving Federal monies. Some of these religious exemption before it may IX final regulation seeks to codify the commenters stated that the Department invoke a religious exemption in the Title IX statute’s broad statement that should find a Title IX violation in every context of Title IX. While the ‘‘this section shall not apply to an case of sex discrimination, and protect implementing regulations at 34 CFR educational institution which is all students in all schools receiving 106.12 set forth a process for recipients controlled by a religious organization if Federal funds, instead of allowing to ‘‘claim’’ the exemption by submitting the application of this subsection would schools to find ways to shield a letter, in writing, to the Assistant not be consistent with the religious themselves from liability for Secretary, the Department has tenets of such organization.’’ The NPRM discriminatory practices. eliminated that requirement in the Title for these regulations did not propose Commenters also expressed general IX Final Rule, effective on August 14, any changes to 34 CFR 106.12(b). opposition to the proposed changes to 2020, which permits but does not However, some commenters expressed § 106.12 by way of sharing their personal experiences of being educators, require recipients to submit a letter strong agreement with the Department’s female students, LGBTQ students, claiming a religious exemption from proposed changes to § 106.12(b) in the 122 parents of LGBTQ students, victims of Title IX. November 29, 2018 Title IX NPRM sexual assault, and students at religious The Department further acknowledges addressing sexual harassment and other schools. These commenters stated that that the final regulation promulgated topics, especially when coupled with students who go to religious schools through this rulemaking with respect to the proposed changes outlined in this should be equally protected against sex § 106.12 provides a non-exhaustive list January 17, 2020 NPRM for these final discrimination as all other students, of criteria that offer educational regulations. The Department has even if the discrimination stems from a institutions different methods to determined that, in the aggregate, these religious practice. Commenters argued demonstrate that they are eligible to changes better align the Title IX claim an exemption to the application of that sex-based discrimination can result regulations with the Title IX statute, the in students like them being disciplined, Title IX, 20 U.S.C. 1681, and its First Amendment, and the Religious implementing regulations, to the extent mistreated, or forced out of school. Freedom Restoration Act, 42 U.S.C. These commenters asserted that as a Title IX and its implementing 2000bb, et seq. The Department regulations would not be consistent result of the proposed changes to understands the often complex § 106.12, female students who were with the institutions’ religious tenets or relationships between recipients and practices. Title IX, 20 U.S.C. 1681(a)(3), either pregnant or parenting, LGBTQ controlling religious organizations. students, and religious minority does not directly address how The Department acknowledges that its students could face enormous costs, educational institutions demonstrate practices in the recent past regarding such as having to interrupt or end their whether they are controlled by a assertion of a religious exemption, degree program due to expulsion, losing religious organization. The criteria in 34 including delays in responding to their tuition payments made up until CFR 106.12(c) codify existing factors inquiries about the religious exemption, that point, and missing out on that the Assistant Secretary for Civil may have caused educational subsequent professional opportunities. Rights uses when evaluating, on a case- institutions to become reluctant to Some of these commenters further by-case basis, a request for a religious exercise their rights under the Free suggested that religious schools are exemption assurance from OCR, and Exercise Clause of the First sometimes the only or best higher also addresses concerns that there may Amendment. The Department would education option for these students, be other means for establishing the like to make sure its regulations are even for people who do not identify necessary control. consistent with educational institutions’ with the tenets of the religion of the While several commenters argued that ability to fully and freely enjoy rights the best course for OCR is to require school. guaranteed under the Free Exercise Commenters also expressed specific Clause of the U.S. Constitution and 121 concerns about potential situations that Available at https://www.federalregister.gov/ Federal statutes. Accordingly, the documents/2017/10/26/2017-23269/federal-law- could result from the proposed changes protections-for-religious-liberty. to § 106.12, including a student who is 122 Nondiscrimination on the Basis of Sex in 123 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Education Programs or Activities Receiving Federal sexually assaulted on an abstinence- Financial Assistance, 85 FR 30026, 30573 (May 19, Financial Assistance, 83 FR 61462 (Nov. 29, 2018). only campus being expelled due to 2020). 124 See 85 FR 30573. engaging in sexual activity; a school

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being unable to stop another student religious freedom is an important part of to certain entities, including 20 U.S.C. from forming a club based on hatred of the First Amendment, but also 1681(a)(3) (titled, ‘‘Educational women or LGBTQ students based on expressed opposition to the proposed institutions of religious organizations purported religious principles, or a rule. Other commenters asserted that, as with contrary religious tenets’’). While school being required to equally offer a legal matter, schools receiving money the Establishment Clause is an school resources to such a group on from the Federal government are not important part of the Constitution, equal terms as other student groups. allowed to discriminate because of the implementing the religious exemption Other examples posed by the separation of church and State as language expressly contemplated by the commenters included a student raped required by the Constitution. Title IX statute does not violate the on a ‘‘dry’’ campus after drinking being One commenter expressed concern Constitution or its Establishment expelled after reporting the rape, due to that the proposed changes to § 106.12 Clause. Where, as here, a statute consumption of alcohol in violation of would create a separate, federally expressly provides for a religious school policies. Alternatively, a school funded system of religious schools that exemption from statutory provisions, might expel the same student, asserted are allowed to define who makes up the recipient of Federal funds’ free commenters, for not reporting the rape, their student body in narrow, exercise of religion, which also is and allowing the rapist to continue to discriminatory ways that undermine the guaranteed under the Constitution, may pose a threat on campus, even if the ethics and intent of publicly-funded be infringed by failing to recognize that failure to report was out of fear of schools. exemption under the statute. retaliation for drinking. According to Discussion: As the Department stated The Department acknowledges that commenters, this posed a dilemma for in the NPRM for this rulemaking, the some commenters felt that proposed students, who might be disciplined purpose of these proposed amendments § 106.12(c) would allow recipients to whether or not they reported sexual is to implement Executive Order 13831 shield themselves from losing Federal assault. Commenters described and conform more closely to the funds over their discriminatory scenarios where schools could not stop Supreme Court’s current First practices. In response, the Department a student group or faculty member from Amendment jurisprudence; relevant again reiterates that the Title IX statute, bringing a speaker to campus who is Federal statutes such as Title IX and at 20 U.S.C. 1681(a)(3), created an known for hate speech and inciting RFRA; Executive Order 13279, as express exemption from the violence; or a gay student at a religious amended by Executive Orders 13559 requirements of Title IX for and 13831; and the Attorney General’s institution who is being harassed, and ‘‘educational institutions of religious Memorandum on Religious Liberty.125 discloses his sexual orientation as part organizations with contrary religious The regulations in 34 CFR part 106 of his report of the harassment, and who tenets.’’ While our revised § 106.12(c) address discrimination on the basis of is subsequently expelled by his school, seeks to clarify eligibility for claiming a sex in education programs or activities purportedly for his own safety. religious exemption, the Department receiving Federal financial assistance, One commenter believed that the will evaluate and respond to all and the Secretary has authority to proposed changes to § 106.12 would complaints filed with OCR that allege condone schools that receive Federal regulate with regard to discrimination discrimination under Title IX, including funding looking the other way toward on the basis of sex in such programs allegations that the religious exemption sex discrimination, and would in fact under 20 U.S.C. 1682. The proposed in 20 U.S.C. 1681(a)(3) does not apply replicate the predatory and violent types changes to § 106.12(c) of the Title IX to an institution. of behavior against students that these regulations will eliminate the need for The Department understands that schools should be working to prevent schools and other stakeholders to some commenters were concerned that and respond to. The commenter also consult non-binding guidance to help asserted that the Department should not discern whether an institution is religious schools are sometimes the best allow schools to discriminate against controlled by a religious organization or only higher education option for students who are victims and survivors for a religious exemption under Title IX students, even for students who do not of sexual violence. and provides a non-exhaustive list of identify with the tenets of the religion Another commenter asserted that criteria that is sufficient to establish that of the school. While the Department is expanding or providing religious an institution is controlled by a sympathetic to this point, a recipient exemptions under Title IX will allow religious organization. that meets the criteria for a religious religious beliefs and religiously- The Department understands that exemption is entitled to the protections motivated acts to be weaponized against some commenters opposed the that the statute affords it. students and families. The commenter proposed regulation because they feel The Department recognizes that believed that schools using religious that institutions should never be several commenters remarked upon the exemptions will use them to harm and permitted to discriminate on the basis of ‘‘broad’’ language utilized in multiple damage the students that they want to sex in education programs or activities subsections of proposed § 106.12(c). target, and religious people and schools receiving Federal financial assistance. While the Department does not agree will be able to do whatever they want Many of these commenters with the assessment by one commenter without common sense and oversight. characterized the religious exemption that the Department is opening the The commenter also questioned under Title IX as the right to floodgates to ‘‘almost unlimited’’ whether religious exemptions are discriminate on the basis of sex, which religious exemptions under Title IX, the automatically reviewed by the these individuals felt violated the Department appreciates the thoughtful Department’s Office of the General principle of separation of church and comments about the ‘‘moral beliefs or Counsel or its OCR on an annual basis, State. practices’’ language used in proposed or for reasonableness, so that religious In response to these comments, the § 106.12(c)(5),126 and acknowledges that exemptions that conflict with recent Department notes that the Title IX developments in the law or case law are statute expressly provides for multiple 126 See proposed 34 CFR 106.12(c)(5) (‘‘A statement that the educational institution revoked. exceptions to the application of Title IX subscribes to specific moral beliefs or practices, and Some commenters expressed a statement that members of the institution agreement with the basic principle that 125 85 FR 3190–01. Continued

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the language could be interpreted in an associated case law.127 Section 106.12(c) and regulations, and respond overly broad manner. In response to does not address those complex issues, accordingly. Finally, the Department these and other concerns raised about and it should not be construed as notes that anyone who believes that a the ‘‘moral beliefs or practices’’ affecting the recipient’s rights to address recipient institution has engaged in sex language, the Department has removed First Amendment issues on their discrimination in violation of Title IX the entirety of proposed § 106.12(c)(5) in campuses. may file a complaint with OCR. Details the final regulation. This change is The Department thanks the many about filing a complaint are available on discussed in more detail in the commenters who shared their personal OCR’s website at www.ed.gov/ocr/ ‘‘Proposed 34 CFR 106.12(c)(5)’s experiences in attending institutions complaintintro.html. Additional reference to moral beliefs’’ section of controlled by religious organizations. resources on Title IX are available on this preamble. Some of these commenters expressed OCR’s website at www.ed.gov/ocr/ general opposition to the proposed rule frontpage/pro-students/sex-pr.html. As discussed in more detail in the because of their fear of the possible Changes: In the final regulation, the ‘‘Proposed 34 CFR 106.12(c)(7)’’ section consequences to certain groups of Department is removing proposed of this preamble, the Department also individuals attending such institutions, § 106.12(c)(5) from the non-exhaustive received comments that expressed including LGBTQ students, pregnant list of criteria for establishing a religious concern about the ‘‘other evidence’’ and parenting students, students who exemption. language used in proposed have experienced sexual violence while In addition, the Department is adding § 106.12(c)(7). Specifically, some intoxicated, students who have engaged two qualifiers to proposed commenters expressed that an in sexual activity that is against their § 106.12(c)(7), which is § 106.12(c)(6) in educational institution could attempt to religion’s teachings, and religious the final regulations, to make clear that meet the criteria of § 106.12(c)(7) with minority students. In particular, one the other evidence used to meet this very minimal evidence that they are commenter suggested that the final criterion must be sufficient to controlled by a religious institution. In Department should not permit establish that an educational institution the final regulation, the Department educational institutions to discriminate is controlled by a religious organization, added qualifiers to § 106.12(c)(7) to against students who have experienced pursuant to 20 U.S.C. 1681(a)(3). make clear that ‘‘other evidence’’ must sexual violence. The Department Proposed Changes to 34 CFR 106.12 and be sufficient to establish that an reiterates that a religious exemption Relationship to Title IX Generally educational institution is controlled by under Title IX is not a wholesale a religious organization, pursuant to 20 exemption from all provisions Comments: Some commenters U.S.C. 1681(a)(3). In doing so, the pertaining to sex-based discrimination, asserted that the proposed changes to Department clarifies that there has to be and that any assertion of an exemption § 106.12 ignore the purpose of Title IX. sufficient ‘‘other evidence’’ to establish must be based on the religious tenets of These commenters further argued that control. a religious organization that controls the the proposed changes undermine the educational institution. In this regard, mission of OCR by letting institutions The Department notes, in response to allow discrimination by student groups commenters who allege that this the Department is skeptical that schools will be eligible to assert exemptions and staff, even when doing so means provision exceeds the scope of the that the institution would not meet the statute by requiring almost no evidence from the requirement to respond appropriately to sexual harassment general duties it would have under Title of control by a religious organization, IX. Some commenters even suggested that the ‘‘other evidence’’ must itself under Title IX or from the prohibition on retaliation against individuals who that OCR was forcing institutions to establish control by a religious invoke exemptions from Title IX, in the organization, and not merely a tenuous invoke their rights under Title IX. One commenter specifically asked if sense that religious institutions might be tie to a religious organization. This the Department (either OCR or the forced to invoke a religious exemption, provision does not expand the Office of the General Counsel) would even if they wanted to comply with the permissible scope of the statute to mean automatically review religious general non-discrimination duties of that literally any evidence—regardless exemptions for reasonableness, on an Title IX. of the amount of evidence, its relevance, annual basis. In response, the One commenter noted the impact of or its persuasiveness—is sufficient to Department states that it will review what happens when students’ Title IX establish a religious exemption. assertions of religious exemptions, like rights are ignored. The commenter With respect to arguments that raised all Title IX matters, pursuant to its believed that the proposed changes to concerns about the proposed regulation enforcement authority under Title IX. § 106.12 would put all students at risk permitting students to form hate groups However, the Department has never, because when one student is affected, it on campus, or concerns that schools and will not begin now, ‘‘automatically also affects their peers who may witness would be unable to control which reviewing’’ all religious exemptions harassment, be subjected to increased speakers are brought to campus, the under Title IX, on an annual basis. If a harassment themselves, and may final regulations do no such thing. A complaint is filed, and the complaint become anxious and unable to school’s ability to assert a religious alleges that a recipient improperly concentrate in school. Another exemption from Title IX does not affect applied a religious exemption or any commenter was concerned that the a school’s rights to permit student other exemption under Title IX, OCR proposed changes would require public groups or speakers from forming or will carefully consider the complaint, institutions to fund religious student speaking on campus. The issues of evaluate compliance with the statute organizations, even when they invited speakers, freedom of association, discriminate against students protected and campus speech, generally, are 127 See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609 under Title IX. The commenter believed complex issues that are evaluated in (1984) (freedom of association); Bd. of Regents of this contradicts the Supreme Court’s light of the First Amendment and Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 233 opinion in Christian Legal Society v. (2000) (free speech and free association on a college 128 campus); Rosenberger v. Rector and Visitors of Martinez, and would force public community may be subjected to discipline for Univ. of, Va., 515 U.S. 819 (1995) (viewpoint violating those beliefs or practices.’’). neutrality and the First Amendment). 128 561 U.S. 661 (2010).

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institutions to fund discrimination Commenters’ fears that § 106.12, as providing much-needed clarity to the prohibited by Title IX. proposed, will permit students or meaning of vague terminology utilized Some commenters expressed general student groups to obligate their schools in the statute. opposition to the proposed changes to to distribute monies or services in a Finally, the Department notes that it § 106.12 and asserted that the different manner, based on a religious has addressed a commenter’s concerns Department did not explain how the exemption to Title IX, are incorrect. To pertaining to public institutions funding proposed changes are consistent with the extent that individual students may student organizations that discriminate the Title IX statute. A commenter not be protected by non-discrimination on the basis of sex, and the Supreme asserted that the Department did not obligations if they attend an educational Court’s decision in Christian Legal explain why the proposed changes are institution controlled by a religious Society v. Martinez,129 in the ‘‘All- needed to assist qualifying institutions. organization, such a consequence is a Comers’ Policies for Student Finally, a commenter asserted that the result of the Title IX statute itself, and Organizations’’ section of this preamble. Department did not explain why any not the regulations. In short, the Department clarifies that alleged benefits of the proposed changes The Department acknowledges that this regulation does not prevent are greater than the discriminatory harm some commenters felt that the institutions from implementing all- faced by students and employees at Department did not sufficiently comers policies, which were upheld in educational institutions. articulate why the proposed changes are Martinez, nor does it constitute an Discussion: The religious exemption needed to assist institutions controlled ‘‘exemption’’ for religious student provision of Title IX, 20 U.S.C. by religious organizations. As explained groups from all-comers policies. Instead, 1681(a)(3), does not directly address these final regulations reinforce the First above, these proposed revisions how educational institutions Amendment’s mandate that public conform more closely to the intent of demonstrate whether they are controlled institutions treat religious student Executive Order 13831 and to the by a religious organization. As the organizations the same as other student Supreme Court’s current First comments in response to the proposed organizations. As such, a university Amendment jurisprudence; relevant rule demonstrate, some commenters does not have to choose between Federal statutes such as RFRA; have taken this lack of clarity to mean compliance with State law and securing Executive Order 13279, as amended by that an educational institution can never Federal funding in the form of grants; it Executive Orders 13559 and 13831; and be controlled by a religious is free to enforce an all-comers policy in the Attorney General’s Memorandum on organization, unless the religious order to comply with any State anti- organization takes the form of a separate Religious Liberty. The Department has discrimination laws as long as it applies corporate or other legal entity. The determined that the codification of the that policy equally to all student criteria in § 106.12(c) helpfully codify factors utilized by OCR in analyzing a organizations. If a public institution existing factors that the Assistant religious exemption from Title IX will chooses to not adopt an all-comers Secretary for Civil Rights uses when promote transparency and remove policy, which is also permissible under evaluating, on a case-by-case basis, barriers to recipients exercising their Martinez, then the institution cannot requests for a religious exemption First Amendment rights. Further, require a student organization, assurance from OCR, and while enacting clear regulations will provide including a religious student addressing concerns that there may be recipients and other stakeholders with organization, to open eligibility for other means of establishing the clarity regarding what it means to be membership and leadership to all necessary control. ‘‘controlled by a religious organization.’’ students. Ultimately, a university has Additionally, because many of these As some commenters argued, some the discretion to choose what kind of factors are contained in non-binding educational institutions were concerned policy will best comply with its own guidance issued to OCR personnel that they might not be eligible for a State and local anti-discrimination laws. dating back more than 30 years, religious exemption because their In any event, whether a school meets enacting clear regulatory provisions will religious and organizational structure the definition of an educational provide recipients and other did not include an external controlling institution controlled by a religious stakeholders with clarity regarding what organization. This provision’s clarity— organization in § 106.12, and further, it means to be ‘‘controlled by a religious which also enshrines specific criteria for whether it opts to invoke an exemption organization.’’ Here, the Department has ‘‘control’’ into regulations with the force from Title IX, do not affect its rights authority to regulate with regard to and effect of law, as opposed to non- under the First Amendment. discrimination on the basis of sex under binding guidance—will create more Changes: None. 20 U.S.C. 1682, and the Department has predictability, consistency in determined it is necessary to regulate enforcement, and confidence for Impact of Proposed Changes to 34 CFR given the statutory silence and genuine educational institutions asserting the 106.12 on LGBTQ Individuals ambiguity in regard to the criteria for exemption. The Department carefully Comments: Many commenters obtaining a religious exemption under considered comments about weighing expressed specific concerns that the Title IX. These regulations are the anticipated benefits of the proposed proposed changes to § 106.12 would consistent with the Title IX statute in regulation against the potential create barriers for and cause harm to that they do not contradict, but attempt discriminatory harm that may be LGBTQ students, parents, and school to clarify, an explicit exception experienced by students and employees. employees. Some commenters provided for in the Title IX statute. While the Department appreciates that articulated specific concerns related to Of course, no educational institution many commenters were concerned LGBTQ students, including direct controlled by a religious organization is about potential harm to vulnerable financial costs like lost tuition for required to assert any religious populations, the Department asserts that students who are forced to leave their exemption at all. Nor does § 106.12 alter Congress enacted Title IX with explicit schools; lost wages for employees who the ability of individual students to exceptions to the requirements of Title are fired for reasons that otherwise pressure a school into asserting a IX, and these final regulations do not would violate Title IX; and, health- religious exemption to Title IX or create new exceptions to the Title IX declining to assert such an exemption. statute. Instead, the Department is 129 561 U.S. 661 (2010).

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related costs like the impact of stress on the trend to continue under the the statute’s enactment in 1972.130 Since mental and physical health. One proposed changes to § 106.12. that time, the Department has issued a commenter noted that policies that One commenter argued that number of letters in response to extend equal rights and legal protections employment discrimination based on educational institutions’ are associated with decreased stress sex, including sexual orientation and correspondence asserting eligibility for a levels and improved health outcomes gender identity, remains a grave religious exemption, and the among sex and gender minorities. problem in the United States. The Department has stated publicly that it Some commenters asserted that the commenter asserted that although utilizes many of the criteria contained proposed changes to § 106.12 would Federal law currently prohibits in this proposed regulation when 131 harm LGBTQ students by referencing discrimination based on sex, the considering such correspondence. specific statistics regarding the proposed changes to § 106.12 would The Department cannot predict whether experiences of LGBTQ youth in school, embolden Federal contractors to cite the number of recipients claiming the including statistics from GLSEN’s 2017 religious beliefs in order to justify exemption will increase because (1) National School Climate Survey (GLSEN religious discrimination. OCR’s past practice has been to allow Survey), to support their assertions. recipients to claim a religious One commenter expressed concern exemption even after a complaint has These commenters noted that the that, as a practical matter, the proposed GLSEN Survey found that the vast been filed against the recipient, and changes mean that a student who thus, OCR has never had a concrete majority of LGBTQ students identifies as LGBTQ or who is a child experienced harassment or assault based number of recipients who are claiming of LGBTQ parents could be confronted a religious exemption at a given time; on personal characteristics, including with open anti-LGBTQ hostility by a sexual orientation, gender expression, and (2) after August 14, 2020 (the Department-funded social service effective date of the Title IX Final Rule), gender, religion, race and ethnicity, and program partnering with public schools disability; seven in ten LGBTQ students it is clear that the recipient is under no to provide healthcare screening, obligation to affirmatively notify OCR experienced verbal harassment based on transportation, shelter, clothing, or new sexual orientation; more than half of that they are claiming a religious immigrant services. The commenter also exemption. In any event, based on LGBTQ students experienced verbal believed that the proposed changes harassment based on gender expression; public comment, the Department does increase the likelihood that these harms not believe that there are a significant more than a third of LGBTQ students will result by requiring the Department missed at least a day of school in the number of educational institutions who to issue special notices informing have not previously sought a religious last month because of feeling unsafe at potential grantees that they can apply to school, and at least two in five students exemption, but would be eligible to do be exempt from generally applicable so as a result of these final regulations, avoided bathrooms and locker rooms civil rights laws. because they felt unsafe or which include existing factors from uncomfortable; the frequency of verbal Discussion: The Department OCR’s non-binding guidance. With respect to commenters alleging harassment based on gender expression acknowledges that the religious that Federal contractors will now be increased from 2015 to 2017; and exemptions sought by some educational able to discriminate on the basis of sex, LGBTQ students who experienced high- institutions have involved the the Department notes that this provision levels of anti-LGBTQ victimization were application of Title IX to complex issues only applies to educational institutions nearly twice as likely to report that they involving sexual orientation, gender that are controlled by a religious do not plan to pursue postsecondary identity, or transgender status. These organization. The Department is education; and these students had lower educational institutions have often cited their religious texts and tenets when committed to the rule of law and robust GPAs, lower self-esteem, and higher enforcement of Title IX’s non- levels of depression. articulating conflicts with Title IX in correspondence with OCR. While the discrimination mandate. As a statutory Other commenters provided statistics exemption to certain provisions of Title related to LGBTQ youth without Department understands that some commenters believe that religious IX exists for educational institutions referencing a specific study, noting that controlled by a religious organization, LGBTQ youth are more likely to attempt exemptions should not be granted when there is a conflict with Title IX the Department must acknowledge and suicide than heterosexual youth; that practically administer such an almost two-thirds of LGBTQ youth stemming from a religious tenet addressing sexual orientation, gender exemption. report being personally affected by anti- Changes: None. LGBTQ policies and practices; that 18 identity, or transgender status, the percent of LGBTQ students report Department enforces Title IX consistent Impact of Proposed Changes to 34 CFR leaving a school because they felt unsafe with applicable statutes, including 106.12 on Pregnant and Parenting or uncomfortable; and that among RFRA, and case law. Title IX does not Individuals LGBTQ students who make it to college, require the Department to deny Comments: Many commenters 31 percent have experienced a hostile otherwise valid religious exemption expressed specific concerns that the campus environment. requests if they relate to sexual proposed changes to § 106.12 would orientation, gender identity, or Some commenters noted that a recent negatively impact pregnant and transgender status. assessment of schools seeking religious exemptions found that the vast majority Further, the Department disagrees that 130 Title IX of the Education Amendments of of requesting institutions sought these proposed regulations will have a 1972, Public Law 92–318, 373, 86 Stat. 235 (signed significantly increased negative impact into law on June 23, 1972). exemptions from Title IX that were 131 upon LGBTQ individuals, because the See, e.g., U.S. Dep’t of Educ., Office for Civil related to sexual orientation and gender Rights, Memorandum from William Smith, Acting identity. Commenters contended that final regulations clarify existing Assistant Sec’y for Civil Rights, to OCR Senior Staff these exemptions were invoked in order statutory exemptions to Title IX and the regarding Title IX Religious Exemption Procedures to facilitate sex discrimination by the recipients’ eligibility for claiming such and Instructions for Investigating Complaints at exemptions. The religious exemption Institutions with Religious Exemptions (Oct. 11, institutions. According to these 1989), available at https://www2.ed.gov/about/ commenters, it is reasonable to expect contained in Title IX has existed since offices/list/ocr/docs/smith-memo-19891011.pdf.

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parenting students. Some of these obligations, including On the other hand, other commenters commenters also expressed specific nondiscrimination on the basis of expressed support for the Department’s concerns that the proposed changes gender and sexual orientation. The position that ‘‘[a]n institution’s exempt would permit discrimination based on commenter also stated that the concept status is not dependent upon its seeking reproductive health care, of religious exemptions is irrational and submission of a written statement to including those who have had an unworkable and inherently subjective. OCR.’’ One commenter felt that, abortion or are unmarried and pregnant. The commenter asserted that we would although the proposed rule did not One commenter asserted that the not entertain people indulging a propose changes to § 106.12(b), proposed rule would allow colleges and religious belief to discriminate against clarification should be added to universities to discriminate against a racial groups, and to allow § 106.12(b) that the law does not require significant portion of the population discrimination against sexual groups is the submission of a letter to claim the given that one in four women will have equally absurd. religious exemption. One commenter an abortion in their lifetime. Discussion: The Department suggested that the Department ought to Discussion: The Department understands that several commenters’ clarify that schools may inherently appreciates and has considered the opposition to the proposed changes assert the religious exemption, rather comments raising concerns that the stemmed from their opposition to than having to apply for it. The proposed changes may negatively religious exemptions generally. commenter suggested that the impact pregnant and parenting students. However, the Title IX statute explicitly Department modify or eliminate existing However, the Department reiterates its provides for an exception to Title IX for § 106.12(b): disagreement with the contention that an educational institution which is Exemption. An educational institution the proposed changes will have a controlled by a religious organization if which wishes to claim the exemption set significant increased impact on certain the application of Title IX would not be forth in paragraph (a) of this section, shall do students, given that the process to assert consistent with the religious tenets of so by submitting in writing to the Assistant eligibility for a religious exemption that organization. This is one of nine Secretary a statement by the highest ranking already exists, and the final rule does specific exemptions to the prohibition official of the institution, identifying the against discrimination on the basis of provisions of this part which conflict with a not significantly change the scope of specific tenet of the religious organization. educational institutions who are eligible sex that Congress included in Title IX to assert a religious exemption. The before adopting the statute.134 The The commenter expressed concern Title IX implementing regulations Department is charged with that the phrase ‘‘shall do so’’ implies a regarding the religious exemption were implementing and administering this form of application; whereas, the initially issued on May 9, 1980,132 and law, but it did not create the religious institution should be able to assert that the Department has issued a number of exemption from Title IX, and it has no they have the exemption when they letters addressing religious exemptions authority to disregard the statutory meet the criteria in proposed 135 on the basis of pregnancy and/or text. § 106.12(c). Accordingly, the commenter familial status since that time.133 Changes: None. suggested the following revision: In any event, if an educational Advance Notice of Religious Exemptions Exemption. An educational institution may institution controlled by a religious assert the exemption set forth in paragraph organization seeks a religious exemption Require Advance Notice (a) without prior written assurance from the from Title IX for the purposes of treating Comments: Some commenters Department. An educational institution may request such written assurance from the students differently on the basis of asserted that the proposed changes to Assistant Secretary but is not required to do pregnancy or familial status, or having § 106.12 were particularly concerning so. previously sought or obtained an because students’ rights may be denied abortion, and the criteria described in at exempt institutions with no prior One commenter suggested a § 106.12 are met, the school would have notice, since a school may use the ‘‘tightening’’ of the language in proposed § 106.12(c) to clarify that stated a valid religious exemption under exemption as a defense to a Title IX government approval is not needed for Title IX, regardless of the practical complaint without ever having officially a religious exemption. The commenter consequences of such a finding. These requested the exemption from the believed that the phrases ‘‘sufficient to final regulations do not create a Department. One commenter asserted establish’’ and ‘‘is eligible to assert’’ religious exemption where there was that the proposed changes to § 106.12 could be used to claim that an none. would eliminate the advance notice Changes: None. requirement for religious exemptions. institution must receive the Another commenter opposed the Department’s permission to exercise its Opposition to Religious Exemptions proposed changes to § 106.12 and stated right to a religious exemption. The Generally that the current process for obtaining an commenter suggested that this section Comments: Some commenters assurance of an exemption under Title be rephrased to clearly indicate that expressed opposition to the concept of IX is (1) minimally burdensome, (2) requests by institutions for Department religious exemptions in general. One provides notice to the public as to what review and opinion are entirely commenter stated that when a person schools are requesting exemptions, and voluntary in nature. signs up to a certain profession and to (3) ensures that religion as a basis for Discussion: The Department has conduct business, like an institution of the exemption mirrors what is legally reviewed and considered the comments higher education, they accept certain permissible. urging the Department to require advanced publication of an educational 132 The Department notes that the Title IX 134 See 20 U.S.C. 1681. institution’s religious exemption under regulations were amended on November 13, 2000, 135 Additionally, the RFRA applies to the Title IX before the institution may claim to include provisions pertaining to single-sex Department and ‘‘operates as a kind of super the exemption. However, the education. statute, displacing the normal operations of other Department declines to adopt a new 133 See ‘‘Other Correspondence.’’ Office for Civil federal laws,’’ often mandating religious Rights, Department of Education, https:// accommodations and exemptions. Bostock v. requirement mandating that educational www2.ed.gov/about/offices/list/ocr/ Clayton County, Georgia, 140 S. Ct. 1731, 1754 institutions controlled by religious correspondence/other.html. (2020). organizations publicize their invocation

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of a religious exemption to students, changes to § 106.12 focus on the General shall coordinate the employees, or other individuals. The Department of Education only, even implementation and enforcement by Department is not persuaded that such though there are 25 other Federal Executive agencies of various a mandate would be consistent with the agencies with Title IX regulations, and nondiscrimination provisions of the Title IX statute, or beneficial overall. most of those agencies provide financial following laws: With respect to some commenters’ assistance to the same private schools, (a) Title VI of the Civil Rights Act of 1964 suggestions that the Department modify colleges, and universities that the (42 U.S.C. 2000d et seq.). § 106.12(b), the Department states that Department of Education funds. The (b) Title IX of the Education Amendments the NPRM for these final regulations did commenter also asserted that the of 1972 (20 U.S.C. 1681 et seq.). not propose, nor do we make here, Department must work with all other (c) Section 504 of the Rehabilitation Act of changes to § 106.12(b). However, the Federal agencies to adopt a common set 1973, as amended (29 U.S.C. 794). Department’s November 29, 2018, of standards on this common question (d) Any other provision of Federal 136 statutory law which provides, in whole or in NPRM, and the recently released of which entities are eligible for part, that no person in the United States 137 Title IX Final Rule, both address exemptions to Title IX. The commenter shall, on the ground of race, color, national changes to § 106.12(b). believed that the Regulatory Flexibility origin, handicap, religion, or sex, be In regard to the comment requesting Act requires the Department to identify excluded from participation in, be denied the that the Department clarify that and address all relevant Federal rules benefits of, or be subject to discrimination government approval is not needed in that may duplicate, overlap, or conflict under any program or activity receiving 141 order for a recipient to claim a religious with the proposed rule. The commenter Federal financial assistance. exemption, the Department again also believed that Executive Order Specifically, section 1–202 of the reiterates that recipients are not 12866 requires the Department to avoid Executive Order 12250 states: required to request a religious regulations that are inconsistent, In furtherance of the Attorney General’s exemption from specific provisions of incompatible, or duplicative with those responsibility for the coordination of the Title IX. If they meet the criteria for a of other Federal agencies. The implementation and enforcement of the religious exemption, recipients may commenter contended that it is not nondiscrimination provisions of laws simply assert the religious exemption at sufficient to merely predict that other covered by this Order, the Attorney General any time, whether before or after an agencies will amend their Title IX shall review the existing and proposed rules, investigation has been opened. The regulations to comport with the regulations, and orders of general applicability of the Executive agencies in Department’s position and Department’s proposed changes to order to identify those which are inadequate, interpretation is clear on this point, § 106.12 in the future. According to the unclear or unnecessarily inconsistent.142 especially when coupled with the Title commenter, dissimilarity in Title IX As it pertains to the aspects of this IX Final Rule, and further clarification regulations leads to confusion about NPRM that propose changing the Title is not needed. how different agency Title IX IX regulations, the Department is in Changes: None. regulations interact among courts and compliance with Executive Order 12250 recipients, as has been the case with Other Concerns Related to Proposed because the Department submitted this single-sex schools and classes and dress Changes to 34 CFR 106.12 proposed rule for consideration to the codes. The commenter stated that the Office of Management and Budget Comments: One commenter expressed Department may also struggle with (OMB), and OMB initiated a clearance concern that the Department did not inconsistencies because it has entered process with the Department of Justice. obtain approval of the proposed rule into delegation agreements with other Pursuant to this OMB clearance process, from the Attorney General, in violation Federal agencies to handle complaints the Department of Justice has had an of Executive Order 12250. According to of discrimination under Title IX and opportunity to review the proposed the commenter, Executive Order 12250 complaints filed with other agencies changes to § 106.12. Additionally, the requires any NPRM that addresses sex may be referred to the Department for Department is aware that, pursuant to discrimination under Title IX to be handling. According to the commenter, Executive Order 12250, the Attorney reviewed by the Attorney General prior this means that the Department may General of the United States must to its publication in the Federal have to investigate, on behalf of another 138 approve the final text of any changes to Register. The commenter noted that agency, a Title IX complaint at a private regulations pertaining to Title IX before the aforementioned authority (although school that the Department believes is they take effect.143 not the authority to approve final exempt from Title IX. Next, with respect to the concerns regulations) had been delegated to the Another commenter was concerned about the Department of Education’s Assistant Attorney General for Civil that the proposed rule would eliminate Title IX regulations diverging from other Rights.139 religious freedom protections for college Federal agency regulations pertaining to One commenter asserted that any preparation and work-study programs Title IX, we begin by noting that the changes to the Department’s Title IX intended to help high school students Department of Education’s regulations should be done in from low income families prepare for implementing regulations for Title IX coordination with the other Federal college, and would impact federally are available at 34 CFR 106.1, et seq. In agencies that have Title IX regulations. funded afterschool and summer learning contrast, the Title IX common rule, The commenter stated that the proposed programs for students in high-poverty, published on August 30, 2000, covers low performing schools. 136 83 FR 61482, 61496. Discussion: First, Executive Order education program providers or 137 85 FR at 30475–82, 30573–74. 12250 was signed by President Jimmy recipients that are funded by other 138 Citing sections 1–202, 1–402 of Executive Carter on November 2, 1980.140 This Federal agencies, including the Nuclear Order 12250; see also Memorandum from John Executive Order states that the Attorney Regulatory Commission, the Small Gore, Acting Assistant Attorney General, to Federal Business Administration, the National Agency Civil Rights Directors regarding Clearance Requirements for Title VI, Title IX, Section 504, and 140 Exec. Order No.12250, Leadership and Related Nondiscrimination Regulations and Policy Coordination of Nondiscrimination Laws, 45 FR 141 See id. Guidance Documents (Apr. 24, 2018). 72995 (Nov. 2, 1980), https://www.justice.gov/crt/ 142 Id. § 1–202. 139 28 CFR 0.51(a). executive-order-12250. 143 Id. section 1–1.

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Aeronautics and Space Administration, help ensure that this is the case. One commenter was supportive of the the Department of Commerce, the Further, we discuss our compliance proposed changes to § 106.12(c) Tennessee Valley Authority, the with the Regulatory Flexibility Act in because, according to the commenter, Department of State, the Agency for the ‘‘Executive Orders and Other these changes would preclude the International Development, the Requirements’’ section of this preamble. Department from engaging in Department of Housing and Urban The Department acknowledges that it unconstitutional differentiation among Development, the Department of Justice, has previously entered into delegation religious institutions based on their the Department of the Treasury, the agreements with other Federal agencies connection (or lack thereof) with any Department of Defense, the National to review and enforce complaints filed outside entity such as a denomination Archives and Records Administration, with those agencies, although OCR has or religious order. the Department of Veterans Affairs, the suspended several of these interagency One commenter expressed gratitude Environmental Protection Agency, the agreements. In any event, if OCR were for the six added provisions in proposed General Services Administration, the to accept complaints filed with other § 106.12(c) to help explain the Department of the Interior, the Federal agencies as part of a delegation ‘‘controlled by’’ language. The Emergency Management Agency, the arrangement, OCR would make the commenter felt that the list would add National Science Foundation, the necessary coordination efforts to ensure clarity for schools and stakeholders. Corporation for National and compliance with all laws, including Another commenter also believed that Community Service, and the Title IX. the proposed changes to § 106.12(c)(1)– Department of Transportation.144 Last, with respect to one commenter (7) clarified what constitutes an However, the Department of who was concerned that the rule would institution that is ‘‘controlled by a Education is in a unique position with eliminate religious freedom protections religious organization.’’ One commenter respect to Federal agencies for college preparation and work-study supported the proposal to clarify the implementing and enforcing Title IX programs, § 106.12 would not eliminate eligibility to assert religious exemptions because, as the common rule existing religious freedom protections under Title IX because it will give acknowledges, the Department is (and for any individual or program. Instead, students clear parameters for whether has historically been) the lead agency § 106.12 is designed to codify in part the institutions they apply to and attend for enforcement of Title IX through its existing OCR guidance with respect to are eligible for religious exemptions. guidance, interpretations, technical the definition of an educational The commenter also argued, separately, that the proposed rule would expand assistance, investigative expertise, and institution controlled by a religious the limited exemption for religious the amount of resources that the organization and clarify when such schools in Title IX to a broader range of Department commits to enforcement of entities are eligible to assert an schools that can claim their First Title IX. Despite the assertions of some exemption. Amendment rights, and suggested that commenters, there is no requirement Changes: None. that there be perfect parity in Title IX such an expansion could lead to regulations across the Federal agencies. Proposed 34 CFR 106.12(c)—Definition equality for all schools. Indeed, differences between the of ‘‘Controlled by’’ a Religious One commenter believed that the Department’s regulations and the Organization criteria in proposed § 106.12(c) would common rule exist even apart from this prevent the imposition of a government Comments: Some commenters standard of what constitutes a religious rule. expressed general support for § 106.12, Given the Department’s historical role identity on institutions established for a noting that a recipient can itself be a religious educational purpose, and as a leader in Title IX administration religious organization that controls its and enforcement, it is appropriate that protect an individual’s and an own operations, curriculum, and other institution’s free exercise and assembly substantive changes to the Title IX features. One commenter asserted that regulations originate with the rights. One commenter supported what many of the schools in the Jewish they called a broad reading of what Department. Once the Department’s community are entities that are wholly proposed changes to Title IX are in could qualify as a religious institution independent from a synagogue or other because according to the commenter, it effect, other Federal agencies may hierarchical body, and thus are not would ensure that the freedom of all consider whether the Department’s controlled by a religious organization types of religious institutions are changes should be reflected in their own that maintains a separate legal form. The protected. regulations. However, the assertion that commenter felt that the list of non- In addition, some commenters the Department is prohibited from exhaustive factors for claiming a expressed general concern that the amending, or that it would be religious exemption represented an Department’s proposal would expand unworkable to amend, the Department’s understanding that religious institutions the definition in § 106.12(c) of schools Title IX regulations because other may be controlled by religion in controlled by a religious organization in Federal agencies have Title IX different ways, yet they are no less ways that have nothing to do with regulations that differ slightly from the religious. In the same vein, another religion, which would lead to increased Department’s regulations is simply not a commenter supported the changes discrimination by schools that were not correct statement of law or policy. We because they stated that some Christian truly religious, and against the students do not believe these final regulations and other religious educational that Title IX was intended to protect. would be inconsistent, incompatible, or institutions are organized and governed Some commenters asserted that the duplicative with those of other agencies, by a local board or body of religious proposed changes to the definition of and have engaged in the interagency leaders, rather than being operated ‘‘controlled by’’ a religious organization review process through OMB’s Office of under a hierarchical organization. in § 106.12(c) would strip the word Information and Regulatory Affairs to According to the commenter, for many ‘‘control’’ of its intended meaning, and of these organizations, local control, free would virtually adopt an expanded 144 Title IX Final Common Rule for 21 Federal of any denominational or hierarchical religious exemption for schools ‘‘closely agencies: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal organization, is a deeply held religious identified with the tenets of a religious Financial Assistance (65 FR 52857). belief and practice. organization,’’ which the commenter

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argued was previously rejected by have a religious exemption, and neither commenter asserted that the Department Congress. These commenters believed do Section 504 of the Rehabilitation Act has no authority to rewrite Title IX to that if Congress had intended to allow of 1973 or the Age Discrimination Act include language that Congress included exemptions for educational institutions of 1975, which were both enacted after elsewhere, but not in Title IX. without regard to the existence of an Title IX. Thus, the commenter One commenter contended that while outside, external religious organization, contended that Congress did not think there may be varied methods of it would have modeled the language in that a religious exemption was establishing control, it cannot be enough Title IX on Title VII of the Civil Rights necessary in order to place non- that an educational institution has Act of 1964, which allows an exemption discrimination conditions on recipients elected to subscribe to or adopt a for educational institutions without of Federal financial assistance, even particular doctrinal statement or regard to the existence of a religious when the type of discrimination was not practices because the term ‘‘control’’ organization, but instead Congress subject to heightened constitutional suggests a more coercive, two-party restricted the religious exemption in scrutiny. The commenter also noted that relationship. The commenter noted that Title IX to schools ‘‘controlled by’’ a Congress confronted the question when Congress has defined a ‘‘tribally ‘‘religious organization.’’ it reauthorized the statute in 1988 and controlled college or university’’ to One commenter believed that the rejected expanding the religious mean ‘‘an institution of higher Department’s statement that it is exemption in Title IX. The commenter education which is formally controlled ‘‘constitutionally obligated’’ to broadly also stated that the majority of statutes or has been formally sanctioned, or interpret the phrase ‘‘controlled by a enacted by Congress addressing sex chartered, by the governing body of an religious organization’’ to avoid discrimination by recipients of financial Indian tribe or tribes.’’ The commenter religious discrimination among assistance have consistently prohibited also noted that under ERISA, a pension institutions of varying denominations is sex discrimination without any religious plan qualifies for the ‘‘church plan’’ an incorrect interpretation of the cannon exemptions, including statutes enacted exemption if the organization of statutory avoidance, which does not around the same time as Title IX. maintaining it is either ‘‘controlled by or permit an agency to rewrite a statute. One commenter noted that several associated with a church.’’ The The commenter referred to Jennings v. other Federal statutes enacted around commenter further explained that courts Rodriguez,145 when discussing this the same time as Title IX provide an use a multi-factor test for determining proposition. The commenter asserted exemption involving looser or more whether an organization is ‘‘associated that if a statutory exemption that is informal relationships with religious with’’ a church, but both the IRS and limited to educational institutions organizations that do not rise to the courts have used the commonsense ‘‘controlled by a religious organization’’ level of actual control, which definition of organizational control: ‘‘the unconstitutionally discriminates against demonstrates that Congress ability of church officials to appoint the religious organizations with different intentionally limited the exemption in majority of the trustees or directors of an types of structures, then the Title IX to only instances where an organization.’’ Thus, the commenter Department’s only choice is not to apply educational institution is controlled by asserted, there is no ground to deviate the unconstitutional exemption to an outside religious organization. This from such a commonsense definition in anyone. The commenter contended that commenter also stated that although interpreting the same language in Title Congress, in 1972 when Title IX was courts have not yet interpreted the IX. originally passed, and in 1988 when it language ‘‘controlled by’’ in Title IX, One commenter asserted that when was amended, would have wanted to cases interpreting similar language in Congress wants to permit an exemption enact Title IX without a religious other statutes are instructive. The from non-discrimination laws for exemption, if a court were to hold that commenter referenced cases interpreting educational institutions that have the limited religious exemption it the Federal Unemployment Tax Act relationships with religious enacted was unconstitutional. The (FUTA) and Fair Housing Act (FHA), organizations not based solely on commenter noted that there is no where courts have demanded a showing control, it knows how to do it, but has statutory language in Title IX that can be of actual or legal control of an entity’s done so only rarely. The commenter excised from the religious exemption governing body to establish that an explained that in other situations, for itself if the ‘‘controlled by a religious entity is ‘‘controlled by’’ a religious example, Congress has permitted organization’’ is unconstitutionally organization. According to the exemptions for ‘‘a non-public school limiting, because without this language, commenter, the language of the FHA that is controlled by a religious the exemption makes no sense. The religious exemption is narrower than organization or organized and operated commenter also asserted that even that of Title IX and, thus, the courts’ on the basis of religious tenets;’’ 146 for without the religious exemption in Title narrow interpretation of the FHA ‘‘any educational institution that is IX, an educational institution can exemption demands an even narrower affiliated with a religious organization invoke the Religious Freedom interpretation in the Title IX context. or closely associated with the tenets of Restoration Act if it can show that Title One commenter asserted the a religious organization;’’ 147 for ‘‘a IX substantially burdens its exercise of suggestion that one component of an school that is operated by, supervised religion. educational institution can be the by, controlled by, or connected to a The commenter further asserted that, religious organization has no basis in religious organization;’’ 148 and for ‘‘an if the religious exemption in Title IX as the statutory text. The commenter stated institution which is controlled by or written is unconstitutional, the that this would make language that longstanding course of conduct by Congress has specifically included in 146 Elementary and Secondary Education Congress demonstrates that it would other statutes redundant and noted that, Hurricane Relief Act, Public Law 109–148, section have wanted Title IX to remain in effect. in authorizing Federal funds to go to 107, 119 Stat 2680 (2005). The commenter noted that Title IX was private schools after Hurricane Katrina, 147 District of Columbia Appropriations Act, 1990, modeled on Title VI of the Civil Rights Congress exempted ‘‘a non-public Public Law 101–168, section 141(b), 103 Stat 1267 (Nov. 21, 1989). Act of 1964, but that Title VI does not school that is controlled by a religious 148 Department of Defense and Full-Year organization or organized and operated Continuing Appropriations Act, 2011, Public Law 145 138 S. Ct. 830, 836 (2018). on the basis of religious tenets.’’ The 112–10, section 3008, 125 Stat 38.

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which is closely affiliated with the the proposed changes to § 106.12(c) religious exemptions to some tenets of a particular religious would allow a broad range of schools institutions that are controlled by organization.’’ 149 that are not controlled by a religious religious organizations but not others, One commenter noted that Congress organization to discriminate against on the sole basis that some religions are considered changes to the religious students and employees based on sex. required by their tenets not to be exemption language in Title IX to According to the commenter, associated to an external entity that expand it beyond ‘‘control’’ in 1988 approximately one fifth of Maryland controls their operations. when it expanded the coverage of Title colleges and universities describe The Department understands that IX in the Civil Rights Restoration Act. themselves as having a religious some commenters felt that the proposed The commenter explained that at that affiliation, regardless of whether they addition of § 106.12(c) was a departure time, proponents of an expanded are controlled by a religious from a long-established agency protocol religious exemption in Title IX, organization. The commenter contended pertaining to religious exemptions. including the Department, urged that that the proposed changes would enable However, the Department notes that the the language in Title IX be changed to these institutions to use Federal funds provisions in proposed § 106.12(c)(1)– include educational institutions to legally discriminate against teachers (5) are factors consistent with the ‘‘closely identified with the tenets of a and students, and such an expansion Department’s past practice in religious organization.’’ 150 The would leave thousands of Maryland acknowledging an educational commenter further explained that students and teachers vulnerable to institution’s religious exemption. For Congress rejected the proposal to sexual harassment, retaliation, and instance, provisions (c)(1) through (c)(3) broaden the religious exemption in Title unwarranted disciplinary actions. are consistent with guidance issued by IX, and President Reagan stated that one One commenter asserted that the former Assistant Secretary for Civil reason for his veto of the Civil Rights proposed changes to § 106.12(c) Rights Harry Singleton to Regional Civil Restoration Act was the ‘‘failure to represent an unwarranted expansion of Rights Directors on February 19, protect the religious freedom of private Title IX’s religious exemption. The 1985.153 To guide attorneys within OCR schools that are closely identified with commenter explained that the Title IX as to whether an educational institution the religious tenets of, but not statute includes important limitations may establish ‘‘control’’ by a religious controlled by, a religious about which schools can qualify for an organization, the guidance relied on the organization.’’ 151 The commenter exemption and in particular the school March 1977 version of HEW Form 639A, believed that the Department has no needs to be ‘‘controlled by a religious which was issued by the former U.S. authority to rewrite Title IX to treat organization.’’ According to the Department of Health, Education, and ‘‘controlled by’’ as if it encompassed commenter, this means that it is not Welfare. Proposed provisions (c)(4) and any other types of relationships because sufficient for a school to be affiliated (5) also are consistent with a letter from Congress considered and rejected this with a religion or to follow certain Acting Assistant Secretary for Civil idea. religious principles; the school needs to Rights William L. Smith to OCR Senior One commenter believed that the be controlled by another organization, Staff.154 religious exemption in Title IX must be one that has specific religious tenets and The Department received both interpreted narrowly to give effect to the is capable of exerting control over a comments in support of and in statute’s primary purpose to protect school. opposition to the Department’s position students and ensure equal access to One commenter generally stated that that, consistent with prior OCR education through the vigorous the Department has no authority to guidance, an educational institution enforcement of civil rights. The violate or rewrite unambiguous law, may itself be the controlling religious commenter stated that the Title IX citing Chevron v. NRDC,152 and organization under Title IX. Section regulations therefore must, as a default contended that the expansion of 106.12(c)(6), as proposed, is consistent rule, aim primarily to realize Title IX’s ‘‘controlled by’’ violates the statutory with longstanding OCR practice in purpose for preventing and addressing text of Title IX and thus the proposed recognizing this principle. For example, sex discrimination in federally funded rule must be withdrawn in its entirety. OCR has long recognized that a school entities, and if the Department chooses Discussion: The Department or department of divinity is an to change this default expectation, it appreciates comments that the rule educational institution controlled by a must provide an extremely compelling ensures that educational institutions religious organization, without any justification for doing so. The that are controlled by religious requirement that the school or commenter asserted that the Department organizations will be protected by department of divinity be controlled by offered little justification for its broad § 106.12. However, to be clear, the a religious organization that is organized Department does not agree with the interpretation of Title IX’s religious as a separate legal entity from the commenter who supported the proposed exemption in the proposed changes to educational institution itself. regulation because, in the commenter’s While the Department understands § 106.12(c). The commenter further view, the proposed changes to § 106.12 the assertions raised by some asserted that the limited nature of Title impliedly expanded the eligibility for IX’s religious exemption is further religious exemptions to all schools, or to 153 U.S. Dep’t of Educ., Office for Civil Rights, underscored by its legislative history, in all schools that are associated with Memorandum from Harry Singleton, Assistant Sec’y both its initial drafting and negotiations for Civil Rights, to Regional Civil Rights Directors religious beliefs. That is not the case, over later amendments, which make regarding Policy Guidance for Resolving Religious and the Department’s regulation only Exemption Requests (Feb. 19, 1985), available at clear that legislators intended and addresses those educational institutions www2.ed.gov/about/offices/list/ocr/docs/singleton- understood the exemption to be narrow. that are controlled by a religious memo-19850219.pdf. One commenter was concerned that, 154 U.S. Dep’t of Educ., Office for Civil Rights, contrary to the plain text of the statute, organization. Further, the Department Memorandum from William Smith, Acting agrees with commenters who stated that Assistant Sec’y for Civil Rights, to OCR Senior Staff regarding Title IX Religious Exemption Procedures 149 it would pose challenges, and perhaps Higher Education Amendments of 1992, and Instructions for Investigating Complaints at Public Law 102–325, section 724, 106 Stat 448. constitutional questions, to offer Institutions with Religious Exemptions (Oct. 11, 150 S. Rep. 100–64, at 27 (1987). 1989), available at https://www2.ed.gov/about/ 151 134 Cong. Rec. H1037 (Mar. 22, 1988). 152 467 U.S. 837 (1984). offices/list/ocr/docs/smith-memo-19891011.pdf.

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commenters that an educational eligible for religious exemptions—were includes ecclesiastical leaders from a institution must be controlled by a issued before the events described by particular religion or religious separate legal entity in the form of an one of the commenters above occurred, organization who have ultimate external religious organization in order such as the passage of a statute decision-making authority for the to qualify for a religious exemption, addressing Hurricane Katrina recovery, educational institutions. Other those assertions are atextual, and the or President Ronald Reagan’s veto of the educational institutions are effectively Department’s final regulations Civil Rights Restoration Act. The controlled by religious organizations recognizes that some educational Department thus disagrees with this that have a non-hierarchical structure, institutions are organized and governed commenter, who suggested that OCR such as a congregational structure. The by a local board or body of religious lacks regulatory authority for § 106.12 Department does not discriminate leaders, rather than being operated because Congress, in other statutes, against educational institutions that are under a hierarchical organization. The suggested a distinction between controlled by religious organizations on Title IX statute does not require that an maintaining religious tenets and being the sole basis that they are organized educational institution and a controlling controlled by another legal entity that with different types of internal religious organization be separate and maintains religious tenets. That a structures. Indeed, the Department has distinct entities. Further, the different Congress drafted legislation in long recognized exemptions for Department has long recognized that a different way does not alter the fact educational institutions that are these entities can be one and the same, that the Title IX statute, as written, does controlled by religious organizations such as in the case of schools of not contain an independent requirement with hierarchical and non-hierarchical divinity. that the controlling religious structures. Additionally, the Department organization be a separate legal entity As the Supreme Court explained in acknowledges that the statutory text than the educational institution. Indeed, Jennings v. Rodriguez,157 under the leads to potential ambiguities as to the difference between these two constitutional-avoidance canon of which educational institutions are categories of educational institutions statutory interpretation, when statutory eligible for exemptions, and over the appears to be a legal formality, in the language is susceptible to multiple years, the Department has had to sense that this comment could imply interpretations, a court may avoid an develop a system for evaluating what is that forming a new legal entity on paper, interpretation that raises serious sufficient to establish that an and merely having that entity ‘‘control’’ constitutional doubts, and instead may educational institution is ‘‘controlled by the educational institution would, in adopt an alternative that avoids those a religious organization.’’ The fact, be sufficient to establish eligibility problems. However, the Supreme Court Department has previously shared the under the control test. Yet under this cautioned that, ‘‘a court relying on that parameters of this system with the rationale, even a school of divinity canon still must interpret the statute, public through (1) issuing non-binding would need to be controlled by an not rewrite it.’’ Here, the Department is agency memoranda 155 and (2) publicly outside organization that is also a not re-writing the statute. The regulatory posting the Department’s responses to religious organization, contrary to over language is clearly in line with the text letters seeking a religious exemption 30 years of OCR practice. Why Congress of the statute. The Department does from Title IX.156 These procedures left would desire such an outcome, even as recognize, however, that the phrase educational institutions in the difficult a policy matter—to say nothing of the ‘‘controlled by a religious organization,’’ position of digging through agency constitutional questions that might arise could potentially give rise to different memoranda from the 1980s, and reading by privileging some religious structures meanings. In that sense, Chevron v. dozens of letters from OCR, in order to over others—is left unaddressed by the NRDC does not preclude an agency from assess their eligibility for asserting a commenter. adopting a reasonable interpretation that religious exemption under Title IX. The Department agrees with is both consistent with the text of the Notably, however, many of these commenters who have asserted that the statute, and that also, avoids potential documents—including the document Department has no authority to change constitutional conflicts with the First that referenced divinity schools being the language in the Title IX statute. The Amendment. Opting to ‘‘level down,’’ Department does not endeavor to however, and having the Department 155 See U.S. Dep’t of Educ., Office for Civil Rights, change the language of the statute, or to enforce Title IX without regard for any Memorandum from William Smith, Acting expand it beyond the scope of its text. assertion of a religious exemption, Assistant Sec’y for Civil Rights, to OCR Senior Staff regarding Title IX Religious Exemption Procedures The Department sees no textual reason would require re-writing the statute that and Instructions for Investigating Complaints at that would require limiting 20 U.S.C. Congress passed. If Congress prefers an Institutions with Religious Exemptions (Oct. 11, 1681(a)(3) exclusively to schools that outcome where no educational 1989), available at https://www2.ed.gov/about/ are controlled by external religious institution is allowed to claim a offices/list/ocr/docs/smith-memo-19891011.pdf; U.S. Dep’t of Educ., Office for Civil Rights, organizations. Accordingly, it will religious exemption from Title IX, as Memorandum from Harry Singleton, Assistant Sec’y continue to recognize that an opposed to all educational institutions for Civil Rights, to Regional Civil Rights Directors educational institution may, in some controlled by a religious organization, it regarding Title IX Religious Exemptions (Aug. 2, cases, also be the controlling religious can amend the relevant statute, but the 1985), available at https://www2.ed.gov/about/ offices/list/ocr/docs/singleton-memo-19850802.pdf; organization. Department of Education cannot act U.S. Dep’t of Educ., Office for Civil Rights, Moreover, as a separate and unilaterally. Memorandum from Harry Singleton, Assistant Sec’y independent basis for interpreting the The Department proposed for Civil Rights, to Regional Civil Rights Directors text in the manner above, and as the § 106.12(c)(7) in recognition that neither regarding Policy Guidance for Resolving Religious Department explained in the NPRM, Congress nor OCR could ever Exemption Requests (Feb. 19, 1985), available at https://www2.ed.gov/about/offices/list/ocr/docs/ and consistent with many comments promulgate an exhaustive and exclusive singleton-memo-19850219.pdf; Assurance of described above, the Department list of criteria by which an educational Compliance with Title IX, HEW Form 639–A (Mar. recognizes that religious organizations institution may assert an exemption 18, 1977), available at https://www2.ed.gov/about/ are organized in widely different ways under Title IX. This provision is offices/list/ocr/docs/hew-form-639-a-1977.pdf. 156 See Department website at https:// that reflect their respective theologies. consistent with the Department’s www2.ed.gov/about/offices/list/ocr/ Some educational institutions are correspondence/other.html. controlled by a board of trustees that 157 138 S. Ct. 830, 836 (2018).

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established position that an educational commenters also expressed general commenter pointed to the religious institution may show that it is concern that the new test would add a exemption provision for the Federal ‘‘controlled by a religious organization’’ range of new bases that a school can rely voucher program for DC, which exempts through innumerable facts and on to claim the exemption. a participating private school ‘‘to the circumstances that are unique to that Discussion: The Department does not extent that the application of’’ the educational institution and/or the agree with commenters’ arguments that prohibition against sex discrimination controlling religious organization. the new provisions create more ‘‘is inconsistent with the religious tenets Finally, the Department has changed ambiguity about which educational or beliefs of the school.’’ The the first sentence of proposed institutions may assert a religious commenter stated that the Department § 106.12(c) to clarify and reiterate that exemption. The new provisions spell has no authority to rewrite the an educational institution must be out specific requirements—many of exemption in Title IX to include controlled by a religious organization to which have been interpreted and language that Congress included be eligible to assert a religious applied for decades by OCR—for elsewhere, but not in Title IX. exemption from Title IX, and that it is educational institutions to refer to when Discussion: Following review of the tenets of the religious organization considering whether to assert a religious comments on the NPRM, the that are referenced in 20 U.S.C. exemption. Additionally, with respect Department has re-evaluated whether 1681(a)(3). A few commenters pointed to § 106.12(c)(5), the language references § 106.12(c) should state that the out that the proposed language in a specific accreditation regulatory criterion in § 106.12(c) shall be § 106.12(c) of the NPRM did not provision that educational institutions sufficient to establish that an explicitly mention that the recipient will be able to review and consider educational institution may assert a must be controlled by a religious before asserting a religious exemption. religious exemption to the extent that organization. The Department The Department appreciates application of this part would not be understands and appreciates the points commenters’ concerns but reiterates that consistent with its religious ‘‘tenets or raised by these commenters, and the the final rule is designed to put into practices.’’ After further consideration, Department has amended the language place clear parameters for when an the Department has opted to use only of § 106.12(c) to include the ‘‘controlled educational institution can be the word ‘‘tenets,’’ which mirrors the by a religious organization’’ language, determined to be controlled by a language of the statute. and to clarify that the tenets referenced religious organization. Commenters’ The Department understands that in 20 U.S.C. 1681(a)(3) are those of the argument that no educational institution some commenters asserted that the religious organization. has previously been denied a religious religious exemption under Title IX only Changes: The Department has exemption is not a reason to avoid exists when a Title IX obligation changed the first sentence of proposed having clear parameters for how to conflicts with the religious tenets of a § 106.12(c) to further clarify that an establish control, or to avoid embracing controlling religious organization. As educational institution must be the value of enshrining into regulations, the Department has explained in both controlled by a religious organization, as which have the force and effect of law, the NPRM and throughout this contemplated under subsection (a), to be standards that have only been expressed discussion of comments, OCR has long eligible to assert a religious exemption. in non-binding guidance. To be clear, a recognized that an educational Change to Longstanding Policy/Need for school that merely has loose ties to institution may itself be the controlling Such a Change religious teachings or principles, religious organization. Thus, an without establishing ‘‘control’’ by a educational institution that itself is a Comments: One commenter asserted religious organization, is not eligible to religious organization that controls its that there is no evidence that the assert a religious exemption. own operations may point to its own proposed changes to the definition of Changes: None. religious tenets when claiming a ‘‘controlled by’’ a religious organization Proposed 34 CFR 106.12(c)—Tenets of religious exemption under Title IX. in § 106.12(c) are needed. The Changes: The Department removed the Religious Organization commenter stated that hundreds of the word ‘‘practices’’ from the first schools have requested religious Comments: Some commenters sentence of § 106.12(c). exemptions under Title IX, and not a expressed concern that proposed single request has been denied. Another § 106.12(c) is inconsistent with Title IX Proposed 34 CFR 106.12(c)(1)–(4)’s commenter asserted that even under the because it would permit an educational Inclusion of the Phrase ‘‘a Statement.’’ existing criteria for seeking an institution to assert an exemption when Comments: One commenter was exemption under Title IX, schools with application of Title IX would not be concerned that the language in loose ties to religious organizations have consistent with merely its practices (not § 106.12(c)(1)–(4) put a burden on the claimed to satisfy the test and sought tenets). The commenters asserted that recipient to taken action in claiming the exemptions. the term ‘‘practices’’ is vague and religious exemption by submitting a Some commenters were concerned ambiguous. The commenters further statement to the Assistant Secretary for that the proposed changes would alter asserted that the Department has no Civil Rights. This commenter felt that the standard for religious exemptions authority to rewrite the Title IX statute the recipient should be able to assert the under Title IX, which has been in place via regulation. exemption when the recipient meets the for more than 30 years. One of these One commenter contended that the criteria, not when they submit a commenters also was concerned that the exemption in the Title IX statute statement to the Assistant Secretary, and proposed changes to § 106.12(c) would addresses the religious tenets of the that the language implied that a replace the longstanding test with a religious organization and not, as the statement would need to be submitted sweeping and vague standard that will proposed changes to § 106.12(c) would to OCR for consideration. create more, rather than less, ambiguity have it, the tenets of the educational Discussion: The Department seeks to about which schools are eligible for a institution. The commenter asserted that clarify that educational institutions religious exemption under Title IX, when Congress wants a school to be claiming a religious exemption do not which will create confusion for students exempt based on its own religious need to submit any such statements to and schools. Another of these tenets, it knows how to do it. The OCR. To highlight this point, in the final

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regulation, the Department removed the commenters never explain why them, or a religion from which their words ‘‘a statement’’ from the beginning Congress would have wanted, as a beliefs stem, to qualify for a religious of subsections § 106.12(c)(1)–(4). policy matter, to encourage educational exemption under proposed Changes: The Department removed institutions to form external legal § 106.12(c)(5). The commenter felt that, the words ‘‘a statement’’ from entities, and then have those entities if institutions are not required to tie the § 106.12(c)(1)–(4). ‘‘control’’ the educational institution, religious exemption to a specific before an exemption could be asserted. religion or religious belief, this Proposed 34 CFR 106.12(c)(4) Additionally, and as a separate basis for proposed subsection would undermine Comments: One commenter asserted § 106.12, the Department is Title IX’s protections. that proposed § 106.12(c)(4) would constitutionally obligated to broadly One commenter asserted that substantially expand the eligibility for a interpret ‘‘controlled by a religious proposed § 106.12(c)(5) was the most religious exemption to schools that are organization’’ to avoid religious concerning part of the proposed changes not, in fact, controlled by religious discrimination among institutions of to § 106.12, because it would allow organizations. This commenter was varying denominations that have schools to simply state that they concerned that there is no requirement different governance structures.159 ‘‘subscribe to specific moral beliefs or in this subsection that a statement of Changes: As discussed above, the practices’’ to claim a religious doctrines or religious practices be Department removed the words ‘‘a exemption, without the institution derived from a religious organization, or statement’’ from § 106.12(c)(1)–(4). subscribing to a specific religious belief or being controlled by a specific that the educational institution have any Proposed 34 CFR 106.12(c)(5)’s religious institution. The commenter relationship with a religious Reference to Moral Beliefs organization. was worried that this scenario would Discussion: As the Department has Comments: Many commenters were give any institution carte blanche to explained in both the NPRM and concerned that, under proposed expel pregnant or parenting students, throughout this discussion of § 106.12(c)(5), a religious exemption ignore sexual harassment in the comments, OCR has long recognized may be granted to an institution that classroom, or deny women scholarships that an educational institution may ‘‘subscribes to specific moral beliefs’’ or jobs based solely on their sex, itself be the controlling religious without that institution being without having to establish anything organization in the case of schools of ‘‘controlled’’ by a religious organization. related to religious tenets or affiliation. divinity.158 Thus, an educational Some commenters felt that this was a Some commenters believed that institution may point to its own substantial expansion of the religious proposed § 106.12(c)(5), in conjunction religious tenets when claiming a exemption under Title IX. with other parts of the proposed Some commenters argued that religious exemption under Title IX. changes to § 106.12, would render the establishing a ‘‘control’’ test based on Under this proposed subsection, there phrase ‘‘controlled by a religious moral beliefs would open the door for is no requirement that the doctrinal organization’’ meaningless. One many more schools—beyond those that statement or statement of religious commenter explained that, under are actually controlled by a religious practices be derived from an external proposed § 106.12(c)(5), institutions organization—to demand an exemption. religious organization. The Department would no longer be required to Many commenters contended that recognizes that religious organizations demonstrate any connection to a proposed § 106.12(c)(5) would allow are organized in different ways that may religious organization, let alone that institutions to claim a religious reflect their respective theologies. The they are controlled by a religious exemption from Title IX, even if they Department does not discriminate organization. had no meaningful relationship at all One commenter asserted that the against educational institutions that are with a religious organization. One Department has no authority to controlled by religious organizations commenter argued that, under the transform the religious exemption in with different types of structures, proposed language, educational § 106.12 into a ‘‘moral’’ exemption, or to including educational institutions that institutions may receive religious extend it to any organization not are their own controlling religious exemptions even if they believe in ‘‘controlled by a religious organization.’’ organization. secular moral principles. In that vein, one commenter contended Although these educational Some commenters felt that the that the proposed ‘‘moral beliefs’’ institutions may not have a formal legal proposed expansion of the religious provision was the one that most relationship with another entity that exemption under Title IX was exemplified the objection that the rule controls their operations, they are unwarranted. One commenter felt that relaxed the requirements for educational nonetheless eligible for a religious proposed § 106.12(c)(5) would distort institutions to claim an exemption, exemption under Title IX. The the boundaries of the religious arguing that a school need not even Department does not find the arguments exemption beyond any resemblance to subscribe to a religious belief to be that there must be a specific the statutory language. exempt. relationship between the educational One commenter expressed concern One commenter expressed concern institution and an external religious that institutions did not need to identify that, if the proposed changes to § 106.12 organization to be persuasive, given that any particular religion that controls were adopted, the Department’s position nothing in the text indicates such a would be that schools meet the requirement, and the fact that the 159 Larson v. Valente, 456 U.S. 228, 244 (1982) ‘‘controlled by a religious organization’’ requirement would seem to impose a (‘‘The clearest command of the Establishment test simply by saying that they legal hurdle that would differently affect Clause is that one religious denomination cannot be ‘‘subscribe to specific moral beliefs or different religions, and would have little officially preferred over another.’’); see also Hosanna-Tabor Evangelical Lutheran Church & practices.’’ The commenter noted that or no practical policy benefit. These Sch. v. EEOC, 565 U.S. 171, 202 (2012) (Alito, J., schools seeking an exemption under concurring; joined by Kagan, J.) (arguing that a proposed § 106.12 do not need to point 158 See, e.g., U.S. Dep’t of Educ., Policy Guidance broad, functionalist interpretation of religious for Resolving Religious Exemption Requests (Feb. teachers for purposes of the ministerial exception to any particular religious organization 19, 1985), available at www2.ed.gov/about/offices/ is necessary to be inclusive of faiths like Islam and that controls them, or a religious list/ocr/docs/singleton-memo-19850219.pdf. Jehovah’s Witnesses). organization that those moral beliefs or

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practices come from. Further, the violating those beliefs or practices,’’ examples of certain information that commenter contended that the proposed without a requirement that these schools provided in the past to assist § 106.12(c)(5) does not even say that statements need to be ‘‘written, OCR’s analysis as to whether a religious those moral beliefs or practices have to published, or otherwise made available exemption assurance request is be connected to religion at all. Thus, as to the institution’s community, supported, and it specifically includes proposed, according to the commenter, approved prior to a discriminatory act, the ‘‘moral belief and practices’’ § 106.12 could allow a school with only or otherwise enforced by the school.’’ language in proposed § 106.12(c)(5). a tenuous relationship with religion to One commenter was concerned that However, after further consideration, claim an exemption. proposed § 106.12(c)(5) applies to the Department agrees with the One commenter stated that the ‘‘moral schools whose ‘‘moral beliefs and commenters who have expressed that beliefs and practices’’ language in practices’’ do not appear in writing, are this language is too expansive. The proposed § 106.12(c)(5) is ‘‘strikingly not consistently enforced, or are simply Department can envision a scenario ambiguous and wholly unconnected to a post-hoc rationalization asserted to wherein an educational institution religion altogether.’’ The commenter rebut discrimination claims in the would attempt to utilize § 106.12(c)(5) stated that moral beliefs are difficult to context of litigation. to avoid Title IX obligations based upon define and may not have grounding in One commenter posited that the ‘‘moral beliefs and practices’’ that are religious practice; some may be statement of moral beliefs and not even tangentially tied to religion. indirectly inspired by religion, but not principles would not even need to exist We believe this criterion is too broad as tied to religion explicitly. The until a student filed a complaint of written and agree with the commenters commenter stated that, by conflating discrimination, at which time an who expressed concern that this moral beliefs with religion, the institution may claim a religious provision could exceed the scope of the proposed changes to § 106.12 would exemption from Title IX based on non- statutory text. open the religious exemption to religious moral beliefs. One commenter The Department acknowledges the widespread abuse by institutions with was concerned that students and concerns that schools could invoke no religious connection that want to employees would have no notice that pretextual moral beliefs or quickly limit their obligations and liability their school believes itself exempt from develop moral beliefs once they are under Title IX. Title IX’s requirements until after they One commenter asserted that the accused of discrimination. We believe are harmed by discrimination and ask our removal of the provision regarding broad language in proposed their school to take protective or § 106.12(c)(5) does not clarify the moral beliefs from the final regulations remedial action. addresses these commenters’ concerns. religious exemption, but rather muddles One commenter believed that Changes: The Department removed it. This commenter urged the students would feel that that they were proposed § 106.12(c)(5) from the non- Department to remove the ‘‘moral protected from sex-based discrimination exhaustive list of criteria for belief’’ language from this subsection until they experience such establishing a religious exemption. because moral institutions are not the discrimination and try to file a same as religiously-owned institutions, complaint. The commenter was Proposed 34 CFR 106.12(c)(6) and because the commenter suggested concerned that institutions would then General Opposition that seeking permission to discriminate make a disclosure that they are exempt on the basis of sex is never an from Title IX requirements. Comments: One commenter expressed expression of morality. Discussion: As outlined above, the concern that proposed § 106.12(c)(6) Other commenters were concerned Department received considerable would permit a religious exemption that proposed § 106.12(c)(5) did not comment on the inclusion of proposed upon a statement that ‘‘the educational require the governing body of an § 106.12(c)(5) in the NPRM. Most of institution is asserting that the institution, or a controlling religious these commenters expressed concern educational institution is itself the organization, to approve the statement that the ‘‘moral beliefs or practices’’ controlling religious organization,’’ of moral beliefs or practices upon which language would significantly increase provided that the statement ‘‘includes, the religious exemption is claimed. One the number of institutions that could refers to, or is predicated on religious commenter was concerned that the seek a religious exemption from Title statement of moral beliefs and tenets, beliefs, teachings.’’ IX. Some commenters opined that the One commenter contended that principles in proposed § 106.12(c)(5) ‘‘moral beliefs or practices’’ language did not have to be included in any proposed § 106.12(c)(6) would exempt a could even apply to secular educational school from Title IX’s requirements official document, it did not have to be institutions, resulting in an outcome enforced consistently, and it did not when a governing body of a school that a secular institution would be have to be available to students before approves a statement that ‘‘includes, claiming a religious exemption from an institution could claim the religious refers to, or is predicated upon religious compliance with certain provisions of exemption. One commenter was tenets, beliefs, or teachings.’’ The Title IX. concerned that the statement of moral commenter stated that approval of such As stated in the NPRM, the proposed a statement does not transform a beliefs and principles did not have to be paragraph (c)(5) was based in part on a reflected in any official school school’s governing body into a letter from Acting Assistant Secretary controlling religious organization as documents or policies or accompanied for Civil Rights William L. Smith to by any evidence of prior positions on required by Title IX. OCR Senior Staff.160 That letter details the stated moral principles. One One commenter asserted that, under commenter expressed concern that an 160 U.S. Dep’t of Educ., Office for Civil Rights, an expansive reading of proposed educational institution could submit a Memorandum from William Smith, Acting § 106.12(c)(6), an institution’s statement ‘‘statement that the educational Assistant Sec’y for Civil Rights, to OCR Senior Staff to claim a religious exemption could institution subscribes to specific moral regarding Title IX Religious Exemption Procedures include a secular statement on any and Instructions for Investigating Complaints at beliefs or practices, and a statement that Institutions with Religious Exemptions (Oct. 11, topic, as long as it is simply ‘‘predicated members of the institution community 1989), available at https://www2.ed.gov/about/ upon’’—that is, it draws from or is may be subjected to discipline for offices/list/ocr/docs/smith-memo-19891011.pdf. inspired by—religious teachings.

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One commenter asserted that, if recognizing that the educational no part of the 20 U.S.C. 1681(a)(3) proposed § 106.12(c)(6) is implemented, institution may itself be the controlling suggests that adopting a religious ‘‘a single, post hoc board-approved religious organization. For example, mission after an OCR complaint is filed statement referring to any religious OCR has long recognized that a school is impermissible, or that schools may beliefs would permit an institution to or department of divinity is an not assert a religious exemption once disregard Title IX’s prohibitions against educational institution controlled by a OCR receives a complaint involving an sex discrimination.’’ The commenter religious organization without any educational institution. Indeed, OCR’s expressed concern that the statement requirement that the school or practice is to evaluate assertions of would not even need to be included in department of divinity be controlled by religious exemptions even after a any official document, be enforced an external religious organization. complaint has been filed with OCR. If consistently, or made available to Additionally, § 106.12(c)(6) aligns well OCR receives a complaint involving a students. The commenter was also with the Department’s recently recipient’s adoption of a religious concerned that the statement would not published definition of ‘‘religious mission after a complaint was filed, or even need to exist until after a student mission’’ in 34 CFR 600.2.161 In that a complaint involving a recipient’s files a complaint for discrimination. provision, a ‘‘religious mission’’ is assertion of a religious exemption after One commenter contended that under defined as ‘‘[a] published institutional a complaint was filed, OCR will proposed § 106.12(c)(6), an institution mission that is approved by the carefully evaluate and consider the facts would be able to get an exemption if it governing body of an institution of and circumstances of that complaint makes a statement that is loosely postsecondary education and that and respond appropriately. inspired by religious teachings, even if includes, refers to, or is predicated upon that statement does not mention religion religious tenets, beliefs, or teachings’’ in After careful consideration of the explicitly. the context of regulations about comments pertaining to the various On the other hand, one commenter eligibility for Federal student aid under structures utilized by the religious supported the clarity added to proposed Title IV of the Higher Education Act of institutions and/or the controlling § 106.12 by the Department, specifically 1965, as amended. Where an religious organizations, the Department to proposed § 106.12(c)(6) to expressly educational institution has a religious has opted to make changes to the final acknowledge that a recipient can itself mission, as defined in § 600.2, it may regulation to even further bring it into be a religious organization that controls choose to assert an exemption to the line with the Department’s recently its own operations, curriculum, or other extent application of Title IX and its published definition of ‘‘religious features. This commenter noted that it implementing regulations would not be mission.’’ The Department’s definition represented many different consistent with the institution’s of ‘‘religious mission’’ in 34 CFR 600.2 denominations, as well as non- religious tenets. defines ‘‘religious mission’’ as ‘‘[a] denominational schools, and that all of While one commenter asserted that, published institutional mission that is the schools are distinctly Christian, but under an expansive reading of proposed approved by the governing body of an the hierarchy and structure vary. The § 106.12(c)(6), an institution’s statement institution of postsecondary education commenter believed that the non- to claim a religious exemption could and that includes, refers to, or is exhaustive factors in proposed include a secular statement on any predicated upon religious tenets, beliefs, § 106.12(c) represent an understanding topic, as long as it is simply ‘‘predicated or teachings’’ in the context of that religious institutions may be upon’’ religious tenets, beliefs, or regulations about eligibility for Federal controlled by religion in different ways, teachings, the Department notes that financial student aid under Title IV of yet are no less religious. this provision is not meant to be read the Higher Education Act of 1965, as Discussion: Proposed § 106.12(c)(6) ‘‘expansively’’ or ‘‘narrowly.’’ It is amended. An educational institution provided that an educational institution meant to be read for what it is: an that has a religious mission, as defined was eligible to assert the exemption if example of an educational institution in § 600.2, may choose to assert an the educational institution had a that is controlled by a religious exemption to the extent application of statement that is approved by its organization, because it maintains a Title IX and its implementing governing board and that includes, religious mission. That a school has and regulations would not be consistent refers to, or is predicated upon religious maintains a religious mission, as with the institution’s religious tenets. tenets, beliefs, or teachings. This defined in 34 CFR 600.2, is sufficient to Here, the Department sees merit in provision echoes the discussion above, establish that it is an educational aligning this portion of the regulation stating that a recipient can itself be a institution controlled by a religious with the recently adopted definition of religious organization that controls its institution. Of course, if the school does ‘‘religious mission’’ in 34 CFR 600.2 in own operations, curriculum, or other not meet the definition of an institution order to promote congruency in the features. In short, an educational with a religious mission, it cannot avail language referencing these same types of institution’s assertion of an exemption itself of this provision. And with respect recipients across the Department’s pursuant to § 106.12(c)(6), is not, to commenters who argued that regulations. without more, a concession that it is educational institutions might avail controlled by an external religious themselves of this provision after a Changes: The provision is revised to organization. Instead, the educational complaint with OCR has been filed, the refer to a ‘‘published institutional institution is asserting that the Department thinks that it is unlikely mission that is approved by the educational institution is itself the that educational institutions will— governing body of an educational controlling religious organization. consistent with the changes being made institution and that includes, refers to, The Department acknowledges some to this provision—publish an or is predicated upon religious tenets, commenters’ general disagreement with institutional religious mission merely beliefs, or teachings.’’ The Department the proposition that an educational for the purpose of defending themselves will re-number proposed § 106.12(c)(6) institution could be its own controlling from an OCR complaint. In any event, to reflect the deletion of proposed religious organization. However, § 106.12(c)(5). Accordingly, proposed proposed § 106.12(c)(6) is consistent 161 84 FR 58834, 58914 (Nov. 1, 2019) (revising § 106.12(c)(6) will appear as with longstanding OCR practice in definition in 34 CFR 600.2). § 106.12(c)(5) in the final regulation.

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Proposed 34 CFR 106.12(c)(7) receive an exemption, and therefore discussed above, § 106.12(c)(7) was Comments: Some commenters expanding the numbers of private, included in this regulation because the expressed concern about the use of the charter, and other schools legally Department recognizes that there could phrase ‘‘other evidence,’’ suggesting that permitted to not comply with Title IX’s be a variety of ways for a recipient to this would lead to an even lower requirements, the proposed changes establish that it is eligible for a religious threshold for obtaining a religious would plainly undermine Congress’s exemption. The Department has always exemption under proposed objective. carefully considered the evidence Some commenters believed that the § 106.12(c)(7). One commenter was submitted when evaluating a religious proposed changes ignored a long- concerned that proposed § 106.12(c)(7) exemption from Title IX, and given the standing test for religious exemption wide array of recipients with different would invite institutions to seek a requests and added an overly broad structures and belief systems, the religious exemption even when they range of new bases that a school can rely Department has determined that it is cannot meet the ‘‘demonstrably low’’ on to claim the exemption. appropriate to provide some flexibility threshold of proposed § 106.12(c)(1)–(6) Discussion: The Department in the types of evidence that would be or identify religious tenets that conflict appreciated the insightful comments sufficient to establish eligibility for the with Title IX. One commenter expressed pertaining to the language of religious exemption. This is not an concern that proposed § 106.12(c)(7) is a § 106.12(c)(7). The Department unquantifiable expansion of the catch-all provision, and that it would especially appreciated those comments religious exemption, as one commenter permit institutions to establish religious directed at potential confusion about asserted. It is, however, an control via any ‘‘other evidence,’’ and whether ‘‘other evidence,’’ meant any acknowledgment that recipients may does not define or otherwise delineate other evidence, regardless of how much use many forms of evidence, including what this ‘‘other evidence’’ may be, or or how persuasive the evidence might evidence that is not specifically how much of this evidence must exist. be. outlined in the other criteria of One commenter believed that the The Department proposed § 106.12(c), to establish eligibility for proposed § 106.12(c)(7) would provide § 106.12(c)(7) in recognition that the religious exemption. This flexibility an avenue by which institutions can Congress did not promulgate an is appropriate given the broad religious incorporate any religious belief to justify exclusive list of criteria by which an exemption language in the Title IX non-compliance with Title IX educational institution may assert an statute and given that the Department is regulations. According to the exemption under Title IX. Further, the subject to the U.S. Constitution, commenter, if proposed § 106.12(c)(7) is Department acknowledges that there including the Free Exercise Clause, as adopted, the end result would likely be may be ways for an educational well as RFRA. that institutions with little-to-no institution to establish that it is As to the comment that this regulation connection to religion would be controlled by a religious organization will allow institutions to incorporate empowered to engage in federally beyond the criteria articulated in any religious belief into their operations unchecked sex discrimination with no proposed § 106.12(c)(1)–(6). The to justify non-compliance with Title IX Federal recourse for harmed Department merely seeks to provide regulations, and that this will result in individuals. flexibility for institutions to assert a institutions with little-to-no connection Some commenters were also religious exemption since there may be to religion being empowered to engage concerned that proposed § 106.12(c)(7) innumerable facts and circumstances in federally unchecked sex would substantially expand the that an educational institution may wish discrimination, the Department rejects religious exemption language in Title IX to use to show that it is ‘‘controlled’’ by the assertion that educational to include institutions that are not a religious organization. institutions will adopt religious beliefs, actually controlled by religious The Department’s intent in drafting perhaps as a pretext, in order to avoid organizations. Some of these the proposed § 106.12(c)(7), however, their Title IX obligations. Based on commenters were concerned that even was not to empower schools with public comments, however, the schools with only a tenuous connection tenuous relationships to religious Department has no information to to a religious institution would request organizations to utilize this ‘‘other suggest that there are educational religious exemptions. One commenter evidence’’ criterion to claim an institutions that are not currently asserted that, by interpreting the exemption under Title IX. The concerns eligible for a religious exemption, but exemption so broadly and departing so pertaining to § 106.12(c)(7) have been which will become eligible as a result of far from Title IX’s language, the duly noted by the Department, and in this final rule. Additionally, the Department would open the door for the final regulation, the Department Department seeks to make clear that many more schools—beyond those that emphasizes that the ‘‘other evidence’’ abuses of the religious exemption are actually controlled by a religious criterion must include sufficient provisions of this regulation will not be organization—to demand an exemption. evidence to establish that the unchecked. Individuals who contend One commenter opposed proposed educational institution is, in fact, that a recipient has improperly claimed § 106.12(c)(7) because, under the controlled by a religious organization, a religious exemption from Title IX may expanded criteria proposed for religious pursuant to 20 U.S.C. 1681(a)(3). file a complaint with OCR. Further, the exemptions, by its own admission, the Indeed, while the point of the provision Department’s criteria still require that Department creates a potential is to avoid unnecessarily limiting the the recipient to be controlled by a unquantifiable expansion of schools that scope of what type of evidence could religious organization and, thus, can claim religious exemptions. establish control by a religious recipients with little-to-no connection to According to the commenter, this would organization, this ‘‘other evidence’’ religion would not meet the eligibility increase the likelihood that students must be more than, for instance, a standard for claiming the exemption. and residents will attend schools where scintilla of evidence. Changes: The Department has discrimination on the basis of sex is The Department disagrees with the clarified that ‘‘other evidence’’ in permitted. commenters asserting that § 106.12(c)(7) § 106.12(c)(6) must be ‘‘sufficient to One commenter stated that, by would substantially expand the establish’’ that the educational significantly expanding opportunity to religious exemption from Title IX. As institution is controlled by a religious

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organization, pursuant to 20 U.S.C. commenter, the proposed regulations instance of ‘‘solely’’ in the definition of 1681(a)(3). In addition, due to the align with a singular exception in ‘‘school or department of divinity’’ in deletion of proposed § 106.12(c)(5), current Supreme Court case law that a §§ 606.10(a)(4), 607.10(a)(4), proposed § 106.12(c)(7) is re-designated government entity may exclude a school 608.10(a)(4), and 609.10(a)(4) because as § 106.12(c)(6) in the final regulation. or a department whose function is to the second instance of ‘‘solely’’ is prepare students to become ministers redundant. This revision is technical in Severability from an otherwise generally available nature to improve clarity and does not Comments: None. scholarship program. change the meaning of the proposed or Discussion: We believe that each of One commenter contended that final regulation. the regulations discussed in this proposed §§ 606.10, 607.10, and 608.10 Changes: The Department omitted the preamble would serve one or more demonstrate that the Department would second instance of ‘‘solely’’ in important, related, but distinct allow Federal financial assistance to §§ 606.10(a)(4), 607.10(a)(4), purposes. We also believe that each of support religious instruction, religious 608.10(a)(4), and 609.10(a)(4). the paragraphs and provisions in 34 worship, and proselytization. According Executive Orders and Other CFR 106.12 would serve one or more to this commenter, the Department is Requirements important, related, but distinct concerned that the current regulations purposes. Each provision in 34 CFR inhibit the ability of institutions to use Comments: A commenter argued that 106.12 provides a distinct value to the Federal funds for such activities. This the NPRM is unlawful because 20 U.S.C. Department, recipients, elementary and commenter asserted that using Federal 1098a (§ 492 of the Higher Education secondary schools, institutions of higher funds for such activities is prohibited by Act of 1965, as amended (HEA)) education, students, employees, the the Establishment Clause of the First requires the Department to engage in public, taxpayers, the Federal Amendment and cited Locke v. negotiated rulemaking for the proposed Government, and other recipients of Davey 163 to support this assertion. regulations, which it did not do. In that Federal financial assistance separate Discussion: We appreciate the section, Congress used the phrase from, and in addition to, the value comment in support. The commenter ‘‘pertaining to this subchapter’’ when provided by the other provisions. To who opposed the proposed regulations describing regulations for which best serve these purposes and parallel to misunderstood the Department’s negotiated rulemaking was required, the severability clauses proposed in the proposed changes to §§ 606.10, 607.10, which the commenter interpreted NPRM and included in these final and 608.10, which expressly address broadly. The commenter also asserted regulations, we include a severability unallowable activities or activities that that the HEA’s negotiated rulemaking provision in 34 CFR 106.12(d) in the a grantee may not carry out under a requirement was particularly relevant in final regulations to make clear that these development grant. The Department this case because the NPRM’s RIA stated final regulations are designed to operate proposed revising §§ 606.10(c)(3), that ‘‘some of the changes proposed in independently of each other and to 607,10(c)(3), and 608.10(c)(3) to this regulatory action would materially convey the Department’s intent that the expressly prohibit a grantee from using alter the rights and obligations of potential invalidity of one provision a development grant for ‘‘activities or recipients of Federal financial assistance should not affect the remainder of the services that constitute religious under Title IV of the HEA.’’ The provisions. Similarly, the validity of any instruction, religious worship, or commenter also argued that the HEA’s of the regulations, which were proposed proselytization.’’ The Department also master calendar requirement (20 U.S.C. in ‘‘Part 1—Religious Liberty’’ of the proposed revising § 609.10(c)(3) in this 1089(c)(1)) should apply to these NPRM, should not affect the validity of same manner. The Department’s regulations, meaning that regulations any of the regulations, which were revisions align §§ 606.10(a)(3), that have not been published by proposed in ‘‘Part 2—Free Inquiry’’ of 607.10(a)(3), 608.10(a)(3), and November 1 prior to the start of the the NPRM. 609.10(a)(3) with the Department’s other award year will not become effective Changes: The Department adds a regulations such as 34 CFR 75.532 and until the beginning of the second award severability clause in 34 CFR 106.12(d). 34 CFR 76.532 that prohibit grants, year after such November 1 date, July 1. subgrants, or state-administered formula Discussion: The negotiated 34 CFR 606.10 (Developing Hispanic- rulemaking requirement in section 492 Serving Institutions Program); 34 CFR grants to be used for religious worship, religious instruction, or proselytization. of the HEA applies only to regulations 607.10 (Strengthening Institutions that implement the provisions of Title Program); 162 34 CFR 608.10 Accordingly, the Department’s proposed revisions do not violate the IV of the HEA, all of which relate to (Strengthening Historically Black student aid programs or specific grants Colleges and Universities Program); 34 Establishment Clause of the First Amendment or Supreme Court designed to prepare individuals for CFR 609.10 (Strengthening Historically postsecondary education programs. Black Graduate Institutions Program) precedent interpreting the Establishment Clause. Specifically, Title IV contains seven Comments: One commenter expressed Changes: None. parts: (1) Part A—Grants to Students at support for these proposed regulations Comments: None. Attendance at Institutions of Higher because the existing regulation may be Discussion: Sections 606.10(a)(4), Education; (2) Part B—Federal Family seen as excluding any school that 607.10(a)(4), 608.10(a)(4), and Education Loan Program; (3) Part C— teaches its students about theology, and, 609.10(a)(4) provide in relevant part that Federal Work-Study Programs; (4) Part if interpreted in such a manner, the a ‘‘school or department of divinity’’ D—William D. Ford Federal Direct regulation would violate the First means ‘‘an institution, or a department Student Loan Program; (5) Part E— Amendment. According to this of an institution, whose program is Federal Perkins Loans; (6) Part F—Need solely to prepare students to become Analysis; and (7) Part G—General 162 The Department notes that 34 CFR 607.10 ministers of religion or solely to enter Provisions Relating to Student Financial applies to the Strengthening Institutions Program into some other religious vocation.’’ The Assistance Programs. umbrella, which includes the American Indian Tribally Controlled Colleges and University (TCCU) Department is omitting the second The requirements of section 492 do program and the Alaska Native- and Native not apply to every Department Hawaiian-Serving Institutions (ANNH) program. 163 540 U.S. 712 (2004). regulation that impacts institutions of

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higher education; instead, they apply address or incorporate that data violated considered in the NPRM.166 Issuing exclusively to regulations that both the APA and Executive Order guidance documents instead of implement Title IV of the HEA, in other 13563. The commenter also stated that regulations to address the issues words, that ‘‘pertain to’’ Title IV of the the Department was required to discussed in the NPRM, including in HEA. Section 492 of the HEA does not consider and address alternatives for ‘‘Part 1—Religious Liberty’’ and ‘‘Part apply to regulations implementing small entities. 2—Free Inquiry,’’ would prove programs authorized by other titles of Discussion: Section 605(b) of the RFA insufficient because guidance the HEA, such as the discretionary grant states that an agency need not include documents are not binding and do not programs in Title VI, or the institutional an initial regulatory flexibility analysis carry the force and effect of law.167 To aid programs in titles III and V, all of (5 U.S.C. 603) and final regulatory address these issues in a clear and which impact many institutions that flexibility analysis (5 U.S.C. 604) if it enforceable manner, a formal notice- also participate in the Title IV student can certify in the notice of proposed and-comment rulemaking was the most aid programs. rulemaking or final regulations that the appropriate approach. The Department The statement in the RIA that the rule does not have a significant places conditions on its grants through proposed regulations ‘‘would materially economic impact on a substantial its regulations, and the Department alter the rights and obligations of number of small entities. Consistent would not be able to implement the recipients of Federal financial assistance with 5 U.S.C. 605, we can and do make directive in Executive Order 13864 ‘‘to under Title IV of the HEA’’ was this certification in the final rule. ensure institutions that receive Federal included in error, and we have Therefore, the requirements in sections research or education grants promote corrected the RIA in these final 603 and 604 that the commenter cites, free inquiry, including through regulations. Because the programs that including those related to identification compliance with all applicable Federal are the subject of this rulemaking are of alternatives for small entities, are not laws, regulations, and policies’’ without not implementing the provisions of title applicable to the NPRM or these final promulgating regulations. Notice-and- IV of the HEA, the negotiated regulations, and the Department has met comment rulemaking reinforces our rulemaking requirement does not apply. its obligations under the RFA and commitment to the rule of law and Similarly, the title IV master calendar Executive Order. The notification robust public participation in the requirements do not apply to these requirement the commenter referenced development of regulations that govern regulations. The HEA provides that in Executive Order 13272 also does not us. ‘‘any regulatory changes initiated by the apply, as it applies to ‘‘any draft rules Despite the guarantees of the First Secretary affecting the programs under that may have a significant economic Amendment which applies to public [title IV] that have not been published impact on a substantial number of small institutions, and despite the ability to in final form by November 1 prior to the entities.’’ 165 Further, because the choose stated institutional policies at start of the award year shall not become private institutions, courts have been effective until the beginning of the certification under 5 U.S.C. 605 that this rule does not have a significant called upon to vindicate the rights of second award year after such November dissident campus speakers, who do not 1 date.’’ 164 While the Department has economic impact on a substantial number of small entities is based on the necessarily share the views of the acknowledged that these regulations majority of campus faculty, would impact institutions that fact that this rule does not result in quantifiable costs, the information the administrators, or students. Without participate in the title IV student these lawsuits and the added incentive assistance programs, among others, that commenter refers to from a prior rulemaking related to the number of that these final regulations provide, the impact does not trigger the master censorship and suppression of the calendar requirement. These final HEA Title IV recipients that are small entities was not necessary for the speech of faculty, other employees, and regulations are not part of a ‘‘program students could go unredressed. For under Title IV,’’ and the master calendar Department’s compliance with the RFA and related Executive Order, or the instance, when a public university, the requirement therefore does not apply. University of North Carolina Changes: None. public’s understanding of and ability to Comments: One commenter stated comment on our RFA certification. Wilmington, denied a promotion to a that the Department did not properly Changes: None. professor because he had authored notify and consult with the Small Comments: A commenter contended newspaper columns about academic Business Administration early in the that the Department did not comply freedom, civil rights, campus culture, rulemaking process, and also that it with Executive Order 12866 because the sex, feminism, abortion, homosexuality, violated the Regulatory Flexibility Act NPRM only identified alternatives and religion, he sued the university and (5 U.S.C. 601, et seq.) (RFA) by failing relating to adopting different regulations prevailed. The United States Court of to identify the costs of the proposed and did not identify why the status quo Appeals for the Fourth Circuit regulations on small entities and required additional regulation. concluded that the professor’s ‘‘speech businesses or to identify alternatives, According to the commenter, the was clearly that of a citizen speaking on and that its treatment of small entities Department acknowledged in the NPRM a matter of public concern’’ and, thus, that the Department has not identified was entitled to constitutional also violated Executive Order 13272. 168 The commenter also asserted that the any significant issues with grantees protection. Similarly, the Supreme Department failed to provide the public related to a failure to comply with the Court of Wisconsin recently held that a with information about its regulatory First Amendment or stated institutional private university breached its contract flexibility analysis, specifically how policies regarding freedom of speech, with a professor over a personal blog many grant recipients are small entities. undercutting the Department’s argument post because, by virtue of the adoption The commenter cited data provided in that these regulations are necessary. of the 1940 AAUP Statement of a prior rulemaking about the number of Discussion: The Department 166 HEA Title IV recipients that were small 85 FR 3219. sufficiently identified the alternatives it 167 Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 97 institutions and stated that the failure to (2015). 165 Exec. Order No. 13272, section 3(b), 67 FR 168 Adams v. Trs. of the Univ. of N.C.-Wilmington, 164 20 U.S.C. 1089(c)(1). 53461 (Aug. 16, 2002). 640 F.3d 550, 565 (4th Cir. 2011).

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Principles on Academic Freedom, the A violation of the First Amendment at a public institution or a private post was ‘‘a contractually-disqualified a public institution or a violation of institution. A student or employee may basis for discipline.’’ 169 stated institutional policies regarding risk their education or employment in Additionally, the United States freedom of speech, including academic filing such a lawsuit. They also may fear District Court for the Southern District freedom, at a private institution is retaliation from the institution, their of California recently held that egregious in education. The hallmark of peers, their colleagues, or their California State University San Marcos education includes an opportunity to supervisors. Additionally, many had violated the First Amendment by learn from diverse viewpoints and to institutions may choose to settle such committing viewpoint discrimination consider and be challenged by ideas, disputes such that a court never renders against the pro-life student organization, opinions, theories, and hypotheses. In a final, non-default judgment. Students for Life, when allocating grants enacting the HEA, Congress expressly Accordingly, the lack of a final, non- from the university’s mandatory student recognized that ‘‘an institution of higher default judgment against an institution fee.170 Recent victories in court cases by education should facilitate the free and does not mean that a public institution religious student groups against their open exchange of ideas’’ 174 and that has not violated the First Amendment or public institutions for violating the First ‘‘no student attending an institution of that a private institution has not Amendment in denying them the same higher education on a full- or part-time violated its own stated institutional rights, benefits, and privileges as other basis should, on the basis of policies regarding freedom of speech, student groups also persuaded the participation in protected speech or including academic freedom. It may Department that regulatory action is protected association, be excluded from mean that the institution remedied any necessary to address these problems.171 participation in, be denied the benefits problem before a lawsuit was filed or of, or be subjected to discrimination or during any litigation. Remedying such a Even cases that have settled official sanction under any education problem before a final, non-default demonstrate the denial of free speech program, activity, or division of the judgment is rendered saves institutions rights across American college institution[.]’’ 175 These regulations the cost of litigation, and remedying any campuses is a serious issue. For align with and advance these legislative such problem during litigation saves the instance, the Yosemite Community goals. institution the continued cost of College District and its administrators The commenter also contended that litigation. We believe these final settled a First Amendment lawsuit filed there is not a need for regulation regulations will have the additional by a student whom a constituent college because the Department allegedly benefit of increasing and incentivizing of that District had stopped from acknowledged that violations of the awareness about the importance of handing out copies of the United States First Amendment or stated institutional upholding the First Amendment for Constitution on Constitution Day in a public institutions and of complying 172 policies on freedom of speech are rare, public part of campus. And the but the commenter takes the with stated institutional policies University of California at Berkeley Department’s statements in the NPRM regarding freedom of speech, including settled a high-profile lawsuit in out of context. The Department academic freedom, for private December 2018 alleging that the acknowledged that it is ‘‘unaware of any institutions. Additionally, the university selectively had deployed its prior instance in which a violation of Department stated that ‘‘available vague policies to prevent conservative the First Amendment or institutional remedies for the violation [of a material groups from bringing to campus policies regarding freedom of speech condition of a grant], . . . can include speakers harboring ideas the university suspension or termination of Federal 173 raised serious concerns about a grantee’s administration just did not like. ability to effectively carry out a awards or debarment’’ and that 176 ‘‘decisions regarding appropriate 169 Department grant.’’ We made this McAdams, 914 NW2d at 737 (holding private remedies are made on a case by case university breached its contract with a professor statement in the context of final, non- 177 over a personal blog post because, by virtue of its default judgments because the proposed basis.’’ The Department further adoption of the 1940 AAUP Statement of Principles and final regulations state that an acknowledged that the ‘‘potential on Academic Freedom, the post was ‘‘a institution will only be found to have suspension or termination of a Federal contractually-disqualified basis for discipline’’). award and potential debarment would, 170 See Apodaca v. White, 401 F. Supp. 3d 1040, violated the material condition if there 1057 (S.D. Cal. 2019). is a final, non-default judgment against in the event that they occurred, 171 InterVarsity Christian Fellowship/USA v. that institution. We acknowledge that represent real costs’’ but that ‘‘such Univ. of Iowa, 408 F. Supp. 3d 960 (S.D. Iowa 2019), final, non-default judgments against a outcomes would be generally unlikely appeal docketed, No. 19–3389 (8th Cir. Nov. 5, public or private institution may be and difficult to meaningfully 2019); Bus. Leaders in Christ v. Univ. of Iowa, 360 predict.’’ 178 In this context, the F. Supp. 3d 885 (S.D. Iowa 2019), appeal docketed, infrequent, but the absence of such a No. 19–1696, (8th Cir. Apr. 3, 2019).). judgment does not necessarily mean Department stated that ‘‘such violations 172 See Van Tuinen v. Yosemite Cmty. Coll. Dist., that public institutions are complying are rare,’’ meaning that such violations Case No. 1:13–at–00729, Doc. No. 1 (E.D. Cal. filed with the First Amendment or that of a material condition of a grant that Oct. 10, 2013) (Complaint); Victory: Modesto Junior private institutions are complying with lead to potential suspension or College Settles Student’s First Amendment Lawsuit, termination of a Federal award and Foundation for Individual Rights in Education their stated institutional policies 179 (FIRE) (Feb. 25, 2014), available at www.thefire.org/ regarding freedom of speech, including potential debarment are rare. victory-modesto-junior-college-settles-students-first- academic freedom. Individuals may However, the Department believes that amendment-lawsuit/. experience a violation of the First violations of the First Amendment and 173 See Young America’s Found. v. Napolitano, of stated institutional policies regarding Case No. 3:17–cv–02255, Doc. No. 32 (N.D. Cal. Amendment or a stated institutional filed Apr. 24, 2017) (Amended Complaint); see also policy regarding freedom of speech and freedom of speech, including academic id. (Doc. No. 44) (Statement of Interest by the choose not to file a lawsuit to challenge freedom, are a concern for the reasons United States Department of Justice) (stating that stated in the NPRM, including the cases the University of California at Berkeley’s policies cited in the NPRM, and the comments violated the First Amendment); Jonathan Stempel, treatment-of-conservative-speakers- UC Berkeley Settles Lawsuit over Treatment of idUSKBN1O22K4. Conservative Speakers, Reuters (Dec. 3, 2018, 174 20 U.S.C. 1011a(a)(2)(C). 177 Id. available at www.reuters.com/article/us-california- 175 20 U.S.C. 1011a(a)(1). 178 Id. lawsuit-ucberkeley/uc-berkeley-settles-lawsuit-over- 176 85 FR 3217–18. 179 Id.

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that we received about proposed State and city-funded services. Others changes or other policy initiatives will regulations 34 CFR 75.500(b)–(c) and 34 asserted that the proposed rules would often affect Tribes and, thus, may CFR 76.500(b)–(c) confirm that such directly prohibit States from applying require Tribal consultation. It further violations are a concern. The their nondiscrimination laws and provides that for other programs that Department has not historically constitutional protections in the public affect students as a whole, but are not suspended or terminated a Federal educational institutions that they fund, focused solely on Native American award or debarred a grantee as the first putting public schools in the position of students, the Department will include measure in addressing a violation and having to choose between following Native American Tribes in the outreach instead attempts to secure voluntary State and Federal law as interpreted by normally conducted with other compliance from the State, grantee, or the Department. Commenters also stakeholders who are affected by the subgrantee. Indeed, the Department’s asserted that the NPRM was not in action. Thus, given that the regulations regulations provide that the Department compliance with the Unfunded do not have a substantial direct effect on may suspend or terminate a Federal Mandates Reform Act of 1995 (UMRA) Indian educational opportunities, we award or debar a grantee, if there is a because it neither included the requisite did not engage in Tribal consultation. continued lack of compliance and if analysis, nor qualified for an exemption. Accordingly, Native American Tribes imposing additional, specific conditions In the NRPM, the Department stated that had the same opportunity to comment is not successful.180 The fact that the proposed regulations were exempt on the proposed rules as other historically we have rarely taken actions under section 4(2) of the UMRA, 2 stakeholders. such as suspension or termination and U.S.C. 1503(2), which excludes any Additionally, we have revised these that those instances may be rare and proposed or final Federal regulation that final regulations to clarify that we are difficult to predict does not in any way ‘‘establishes or enforces any statutory not imposing the First Amendment on detract from the concerns about rights that prohibit discrimination on any entity, including any institution violations of the First Amendment and the basis of race, color, religion, sex, controlled by a Tribal government, that stated institutional policies regarding national origin, age, handicap, or is not already legally required to abide freedom of speech that are addressed in disability.’’ Commenters asserted that by the First Amendment to the U.S. case law, the NPRM, and comments. the NPRM instead would create new Constitution. We note that generally the Changes: None. religious exemptions that surpass the Bill of Rights, including the First Comments: One commenter stated protections found in existing statutes, Amendment, does not apply to Tribes 182 that the Department failed to consult including RFRA. They stated that the and Tribal governments. The Indian Tribal governments in violation NPRM justified the religious exemptions Department is revising § 75.500(b) to of Executive Order 13175 and the based on case law, executive orders, and state: ‘‘Each grantee that is an institution Department’s consultation policy. The Department of Justice memoranda, and of higher education, as defined in 20 commenter stated that the proposed that the RFRA does not create a U.S.C. 1002(a), that is public and that is regulations’ imposition of the First categorical right that prohibits legally required to abide by the First Amendment on Tribally-controlled discrimination. Therefore, they asserted Amendment to the U.S. Constitution institutions creates Tribal implications that the exemption from the UMRA was (hereinafter ‘public institution’), must and requires consultation under § 5(a) of not applicable, and the NPRM should also comply with the First Amendment Executive Order 13175. The commenter have included a UMRA analysis. to the U.S. Constitution . . . as a also noted that the Department of Discussion: With regard to Native material condition of the Department’s Housing and Urban Development, in its grant.’’ Similarly, the Department is American tribal consultation, we note parallel NPRM, acknowledged that the revising § 76.500(b) to state: ‘‘Each State that the comment we received was not proposal had Tribal implications and or subgrantee that is an institution of from a commenter that identified as a purported to engage in Tribal higher education, as defined in 20 Native American Tribe or from a consultation on that ground. U.S.C. 1002(a), that is public and that is representative of a Native American Commenters also stated that the legally required to abide by the First Tribe. Section 5(a) of Executive Order Department’s federalism analysis in the Amendment to the U.S. Constitution 13175 requires each agency to have an NPRM was erroneous, or that the NPRM (hereinafter ‘public institution’), must accountable process to ensure should have included such an analysis also comply with the First Amendment meaningful and timely input by Tribal under Executive Order 13132. One to the U.S. Constitution . . . as a commenter asserted that the proposed officials in the development of material condition of the Department’s rules would have federalism regulatory policies that have tribal grant.’’ The Department notes that implications, because by creating implications. In accordance with ‘‘[p]ublic, as applied to an agency, loopholes and upending the regulatory Executive Order 13175, Section IV of organization, or institution’’ in 34 CFR regime applicable to government-funded the Department’s Consultation and 77.1 ‘‘means that the agency, entities that espouse religious Coordination with American Indian and organization, or institution is under the viewpoints, they would complicate the Alaska Native Tribal Governments administrative supervision or control of 181 ability of State and local jurisdictions to policy, provides that the Department a government other than the Federal safeguard their workforce and enforce will conduct Tribal consultation Government.’’ The Department further generally applicable anti-discrimination regarding actions that have a substantial notes that in 34 CFR 77.1, ‘‘[p]rivate, as laws such as sex discrimination laws, and direct effect on tribes. The policy applied to an agency, organization, or and that they also would cause lists specific programs that serve Native institution means that it is not under economic hardships to State and local American students or that have a Federal or public supervision or governments, in the forms of higher specific impact on Tribes and provides control.’’ Accordingly, if an institution unemployment and greater demand for that for those programs, regulatory 182 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 180 See 34 CFR 75.901 (referencing 2 CFR 181 U.S. Dep’t of Educ., Consultation and 56 (1978). The Indian Civil Rights Act (ICRA) 200.338); 2 CFR 200.338 (stating Federal awarding Coordination with American Indian and Alaska extended some of the Bill of Rights to tribes, but agency may suspend or terminate an award if Native Tribal Governments, available at the ICRA is not the First Amendment to the U.S. noncompliance cannot be remedied by imposing www2.ed.gov/about/offices/list/oese/oie/ Constitution, and the ICRA does not include an additional conditions). tribalpolicyfinal.pdf. Establishment Clause. 25 U.S.C. 1302(a)(1).

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is a public institution that is not legally stated institutional policies regarding Universities Program, or Strengthening required to abide by the First freedom of speech, including academic Historically Black Graduate Institutions Amendment to the U.S. Constitution, freedom, as a material condition of the Program. Any entity may choose not to then that institution is not required to Department’s grant, does not impose accept such a grant or subgrant, Federal comply with the First Amendment to any federalism concerns. The financial assistance, or forego the U.S. Constitution as a material Department does not dictate what a participating in a program that the condition of the Department’s grant. The private institution’s stated institutional Department administers. The final regulations concerning the First policies must be, and private commenters do not provide any Amendment, thus, do not apply to institutions should comply with all evidence to support that these final Tribal institutions that are not legally applicable laws, including any State’s regulations will lead to increased required to comply with the First anti-discrimination laws. unemployment or any other negative Amendment to the U.S. Constitution. Additionally, the First Amendment consequence such that States would Similarly, § 106.12(c) in these final does not allow public institutions to bear a greater economic burden with regulations clarifies the exemption for treat religious student organizations respect to increased unemployment or an educational institution which is differently based on their status as a an increased need for State or local controlled by a religious organization if religious organization or on account of services. Accordingly, these final the application of Title IX and its their sincerely held religious beliefs, regulations do not pose any federalism implementing regulations would not be and the Department’s regulation with concerns. consistent with the religious tenets of respect to religious student We disagree with some commenters’ such organization pursuant to 20 U.S.C. organizations at public institutions is characterization of Executive Order 1681(a)(3). Indeed, the revisions to these consistent with the First Amendment 13132.187 That Order’s goal was ‘‘to final regulations with respect to parts and also the Religious Freedom guarantee the division of governmental 106, 606, 607, 608, and 609 of title 34 Restoration Act, 42 U.S.C. 2000bb, et responsibilities between the national of the Code of Federal Regulations are seq. (‘‘RFRA’’), which applies to the government and the States’’ and to consistent with the Indian Civil Rights Department and requires the ‘‘further the policies of the Unfunded Act, which contains language similar to Department not to substantially burden Mandates Reform Act[.]’’ 188 The almost the entire First Amendment to a person’s exercise of religion unless purpose of the Unfunded Mandates 185 the U.S. Constitution except the certain conditions are satisfied. As Reform Act is, in its own words, ‘‘to end Establishment Clause of the First the Department explains in the ‘‘‘All the imposition, in the absence of full Amendment. The Individual Civil Comers’ Policies for Student consideration by Congress, of Federal Rights Act provides in relevant part: Organizations’’ subsection in the ‘‘34 mandates on State, local, and Tribal ‘‘No Indian tribe in exercising powers of CFR 75.500(d) and 34 CFR 76.500(d)— governments without adequate Federal self-government shall make or enforce Religious Student Organizations’’ funding, in a manner that may displace any law prohibiting the free exercise of section, public institutions may choose other essential State, local, and tribal religion, or abridging the freedom of to adopt a true ‘‘all-comers’’ policy as governmental priorities[.]’’ 189 In other speech, or of the press, or of the right described in Christian Legal Society v. 186 words, when the Federal government of the people peaceably to assembly and Martinez, as long as public imposed an unfunded mandate on the to petition for a redress of institutions do not treat religious 183 States (including local governments) grievances.’’ student organizations differently than and Tribal governments carrying These final regulations are consistent other student organizations under any federalism implications and had effects with the First Amendment and, thus, do ‘‘all-comers’’ policy. The Department’s on State and local laws, this Order not pose federalism concerns because revision to 34 CFR 106.12 clarifies a required the Federal government to States are legally required to abide by statutory exemption under Title IX for consult with State and local authorities. the First Amendment.184 Requiring institutions controlled by a religious However, these final regulations are public institutions that are legally organization and is consistent with the entirely premised as a condition of required to abide by the First First Amendment and RFRA. Finally, receiving Federal funds, and the Amendment to the U.S. Constitution to the revisions to parts 606, 607, 608, 609 recipient has the right to forgo such also comply with the First Amendment of title 34 of the Code of Federal funds if the recipient does not wish to to the U.S. Constitution as a material Regulations concern programs under the condition of the Department’s grant HEA, that the Department is required to comply with these final regulations. does not pose any federalism concerns. administer, and these revisions are Additionally, this Order states: ‘‘To the Such a requirement does not preclude consistent with the First Amendment extent practicable and permitted by law, States from enforcing any anti- and also the Religious Freedom no agency shall promulgate any discrimination laws because any State Restoration Act, 42 U.S.C. 2000bb, et regulation that has federalism anti-discrimination law, including laws seq., which applies to the Department. implications, that imposes substantial that prohibit discrimination on the basis These final regulations apply to direct compliance costs on State and of sex, must be consistent with the First entities that choose to apply for and local governments, and that is not Amendment. Similarly, requiring accept a grant or subgrant, Federal required by statute’’ unless the agency private institutions to comply with their financial assistance, or participate in the takes a few steps.190 The use of ‘‘and’’ Developing Hispanic-Serving as well as ‘‘to the extent practicable’’ 183 25 U.S.C. 1302(a)(1). Institutions Program, Strengthening indicate that each of these requirements 184 De Jonge v. Oregon, 299 U.S. 353, 364 (1937) Institutions Program, Strengthening must be met before the agency is (‘‘Freedom of speech and of the press are Historically Black Colleges and compelled to take those additional fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment 187 Exec. Order No. 13132, 64 FR 43255 (Aug. 10, of the Federal Constitution.... The right of 185 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. peaceable assembly is a right cognate to those of 682, 719 (2014) (holding ‘‘person’’ within meaning 1999). 188 free speech and free press and is equally of the Religious Freedom Restoration Act’s Id. fundamental.’’); Cantwell v. Connecticut, 310 U.S. protection of a person’s exercise of religion includes 189 2 U.S.C. 1501(2). 296, 303–04 (1940); Near v. Minnesota, 283 U.S. for-profit corporations). 190 Exec. Order 13132, section 6(b), 64 FR 43255 697, 707 (1931). 186 561 U.S. 661 (2010). (Aug. 10, 1999) (emphasis added).

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steps. These final regulations do not Executive Order 13771, stating that 606, 607, 608, and 609, which are compel a recipient to accept grants or since it imposed costs, the Department described at length in other sections of subgrants, Federal financial assistance, should identify two deregulatory actions this preamble, affect institutions and not or any funds through programs under with cost savings. families. Therefore, the Department, in Title III and Title V of the HEA. In addition, commenters stated that its assessment of these final regulations Moreover, these final regulations are the proposed rule violated the Treasury has concluded that they will not have a consistent with Title IX and other and General Government negative effect on families. Federal statutory provisions. Thus, we Appropriations Act of 1999, note to 5 Changes: The Department has revised do not believe that Executive Order U.S.C. 601, because it failed to include its analysis and has determined that 13132 is implicated by these final a Family Policy Making Assessment, these final regulations impose net costs. regulations. which would assess the proposed rules’ Comments: Commenters asserted that The Unfunded Mandates Reform Act impact on family wellbeing. various provisions of the proposed expressly does not apply to ‘‘any Discussion: The Office of Management regulations and RIA were arbitrary and provision in a proposed or final Federal and Budget’s guidance implementing capricious, for reasons such as that the regulation that enforces constitutional Executive Order 13771 describes the Department failed to provide a reasoned rights of individuals’’ 191 or that offset required by the Executive Order basis or justification for them, or ‘‘establishes or enforces any statutory as meaning that ‘‘at least two E.O. 13771 because the proposed rule departed rights that prohibit discrimination on deregulatory actions have been taken from the prior rules and positions the basis of race, color, religion, sex, per E.O. 13771 regulatory action and without adequate explanation. national origin, age, handicap, or that the incremental cost of the E.O. Commenters cited various legal disability[.]’’ 192 These final regulations 13771 regulatory action has been authorities to substantiate an agency’s enforce the constitutional rights of appropriately counterbalanced by responsibility to explain the basis for its individuals by requiring public incremental cost savings from E.O. decision-making, including when institutions that are legally required to 13771 deregulatory actions, consistent changing position on a given issue. abide by the First Amendment to also with the agency’s total incremental cost Especially with respect to the religious comply with the First Amendment as a allowance.’’ 193 The memorandum exemption in proposed § 106.12(c), they material condition of a grant or subgrant defines a ‘‘13771 Regulatory Action’’ for asserted that, for instance, the proposed under 34 CFR 75.500, 34 CFR 75.700, 34 relevant purposes as a ‘‘significant rule included reversal of previous CFR 76.500, and 34 CFR 76.700. As regulatory action as defined in Section Department positions, failed to provide explained more fully in the ‘‘34 CFR 3(f) of E.O. 12866 that has been finalized a reasoned justification or adequate 75.500(d) and 34 CFR 76.500(d)— and that imposes total costs greater than basis, did not provide adequate Religious Student Organizations’’ zero.’’ 194 The Department has revised evidence of the need for the proposed section, the First Amendment prohibits its analysis and has determined that rule or its benefits, and failed to provide public institutions from treating these final regulations impose net costs an adequate regulatory analysis and religious student organizations under Executive Order 13771. In consider important evidence regarding differently than other student accordance with Executive Order 13771, the rule’s impact. They also asserted organizations on the basis of their status the Department will identify at least two that the Department failed to consider as religious organizations or on account deregulatory actions. the impact of the proposed rules on of their sincerely held religious beliefs. The provision of the Treasury and various stakeholders. As explained throughout this preamble General Government Appropriations Discussion: We agree with and the NPRM, these final regulations Act of 1999 cited by commenters commenters that an agency must give help prohibit discrimination on the pertains to ‘‘policies and regulations adequate reasons for its decisions and 195 basis of religion, and these final that may affect family well-being.’’ consider relevant factors,196 and that regulations are consistent with both the As the proposed regulations, and these when an agency changes its position, it First Amendment and RFRA. final regulations, did not have a direct must display awareness that it is Additionally, 34 CFR 106.12(c), enforces effect on families, such an analysis was changing position and show that there a statutory exemption for educational not required. These final regulations are good reasons for the new policy. In institutions controlled by a religious affect institutions that receive a Direct explaining its changed position, an organization with respect to Title IX, Grant or subgrant from a State- agency must be ‘‘cognizant that which prohibits discrimination on the Administered Formula grant program of longstanding policies may have basis of sex. the Department, which does not have a ‘engendered serious reliance interests Changes: The Department revised 34 direct bearing on individual families. that must be taken into account.... In CFR 75.500 and 34 CFR 76.500 to clarify Similarly, the revisions to parts 106, such cases it is not that further that only public institutions that are justification is demanded by the mere legally required to abide by the First 193 Office of Mgmt. & Budget, Exec. Office of the fact of policy change; [ ] a reasoned Amendment to the U.S. Constitution President, M–17–21, Guidance Implementing Executive Order 13771 (OMB 13771 Guidance), at explanation is needed for disregarding must also comply with the First 4 (Q5) (Apr. 5, 2017), available at facts and circumstances that underlay or Amendment to the U.S. Constitution as www.whitehouse.gov/sites/whitehouse.gov/files/ were engendered by the prior policy.197 a material condition of the Department’s omb/memoranda/2017/M-17-21-OMB.pdf. On the other hand, the agency need not 194 grant. Id. at 3 (defining an E.O. 13771 Regulatory demonstrate . . . that the reasons for the Comments: Commenters asserted that Action as ‘‘(i) A significant regulatory action as defined in Section 3(f) of E.O. 12866 that has been the Department’s NPRM did not comply finalized and that imposes total costs greater than 196 See, e,g., Motor Vehicle Mfrs. Ass’n. of United with other Executive orders and zero; or (ii) A significant guidance document (e.g., States, U.S., Inc. v. State Farm Mut. Automobile statutory requirements. One commenter significant interpretive guidance) reviewed by OIRA Auto. Ins. Co., 463 U.S. 29, 43 (1983). disputed the Department’s treatment of under the procedures of E.O. 12866 that has been 197 See Encino Motorcars, LLC v. Navarro, 136 S. the proposed regulations under finalized and that imposes total costs greater than Ct. 2117, 2125–(2016) (quoting FCC v. Fox zero.’’). Television Stations, Inc., 129 S. Ct. 1800 (2009 195 ‘‘Assessment of Federal Regulations and Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 191 2 U.S.C. 1503(1). Policies on Families,’’ paragraph (c), note to 5 2126 (2016) (quoting FCC v. Fox Television 192 2 U.S.C. 1503(2). U.S.C. 601. Stations, Inc., 556 U.S. 502, 515–16 (2009)).

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new policy are better than the reasons divided.’’ Secretary DeVos’ service as in the Senate gets to do what, for the old one; it suffices that the new the Secretary of Education has therefore concerning all Senate business. In this policy is permissible under the statute, been lawful and in accordance with the section of Article I, the Vice President, that there are good reasons for it, and Constitution. as President of the Senate, accordingly that the agency believes it to be A commenter largely relies on one is given the power to break ties. This better.’’ 198 piece of scholarship to advance this was the most logical section in which to Throughout the NPRM and this claim.200 But that source principally put this prerogative of the Vice preamble, we discuss the reasoned basis concerns the Vice President’s power to President. And given how the power to for these regulations, and include break Senate ties on judicial cast tie-breaking votes is left open- explanations for any changes in position nominations, not Executive ones. Morse ended, the most natural inference is that regarding each provision in the relevant does not develop robustly an argument it applies to all Senate votes in all section, including those specifically about the latter. Moreover, Morse Senate business. Consequently, this mentioned by the commenters. Any acknowledges there is nothing evidence refutes the commenter’s claim changes from the proposed regulations ‘‘conclusive’’ about Executive about Secretary DeVos’ confirmation are explained in the relevant sections of nominations, and argues only that Vice because: (1) This section in Article I this preamble, including the Regulatory Presidents are without constitutional simply concerned the functions and Impact Analysis (RIA) section. In authority to break ties in judicial prerogatives of the Senate and its particular, the ‘‘34 CFR 106.12 nominations.201 Morse cites three various officers, including the Vice Educational Institutions Controlled by examples from 1806 (Vice President President’s general tie-breaking Religious Organizations’’ section of this George Clinton voted to confirm John authority; and (2) that the Senate’s preamble addresses many of these Armstrong as the Minister to Spain), power to try impeachments is included arguments in greater depth. We address 1832 (Vice President Calhoun cast a tie- in the same section means that this comments concerning the RIA, breaking vote that defeated the section is just as applicable to Executive including its legal sufficiency, in depth nomination of Martin Van Buren as nominations as to anything else (that in the RIA section of this final rule. Minister to Great Britain), and 1925 neither the commenter nor the article is Changes: None. (Vice President Charles G. Dawes almost challenging).205 This analysis shows Comments: At least one commenter cast the tie-breaking vote to confirm that Morse’s argument, and transitively suggested that Secretary Elisabeth President Calvin Coolidge’s nominee for that of the commenter, is flawed. 202 DeVos lacks the authority to issue the attorney general), respectively. But Furthermore, one commenter’s NPRM and to promulgate the final even the evidence in this source points reference to Senator King’s statement in regulations because Vice President to the fact that the Vice President was 1850 as supporting a view that could Michael Pence cast the deciding vote to always considered to hold the tie- lead anyone in the present day to confirm the Secretary after the Senators breaking vote for Executive nominations conclude Secretary DeVos’s Senate were equally divided on her (indeed for all Senate votes). confirmation is invalid is unhelpful 199 confirmation. The commenter Particularly the nineteenth century because the overwhelming weight of contended that the Vice President is not examples do seem to show that text and history is against the merits of constitutionally authorized to break a tie historically Vice Presidents have this pronouncement. Even at that time, for a cabinet member’s confirmation, enjoyed this widely acknowledged 203 King appears to have been one of a thereby rendering Secretary DeVos’ power. Due to this time period’s handful of people, if that, to express this chronological proximity to the Senate confirmation itself invalid and view. It was not a widely accepted view, Constitution’s ratifying generation, this rendering her actions legally before or after. is strong evidence that the original unauthorized. Finally, a commenter’s citation to public meaning of the Constitution, left Discussion: We disagree with John Langford’s Did the Framers Intend undisputed by intervening centuries of commenters’ concerns that Secretary the Vice President to Have a Say in DeVos might not be constitutionally practice, confers the power of breaking Judicial Appointments? Perhaps Not 206 empowered to issue the NPRM or the Senate ties in executive nominations on and the reference to the Federalist final regulations because the Vice Vice Presidents. Papers also misconceive the President lacked the constitutional As for the argument that the constitutional text, design, and history. prerogative to cast the tie-breaking vote placement of this power in Article I, To be sure, Alexander Hamilton in The to confirm the Secretary. Because the which generally deals with Congress, Federalist No. 69 does contrast the New Vice President is constitutionally meant the power was limited to the York council at the time,207 with the empowered to cast the tie-breaking vote legislative votes, this misconceives the Senate of the national government the in executive nominations, President context in which the provision exists: Framers were devising (‘‘[i]n the Trump’s nomination of Secretary DeVos that section concerns length of Senate national government, if the Senate properly was confirmed by the United tenure, the roles of congressional should be divided, no appointment States Senate; and Secretary DeVos personnel, and the Senate’s powers, could be made’’).208 The commenter’s therefore may function as the Secretary including that of trying overall point is unpersuasive. As an of Education. Article I, § 3, clause 4 of impeachments.204 It is not limited to initial matter, the Federalist Papers were the Constitution confers on the Vice what the Senate can accomplish but rather encompasses matters about who President the power to break ties when 205 But see Morse, supra note 196, at 144, 146. the Senators’ votes ‘‘be equally 206 John Langford, Did the Framers Intend the 200 See Samuel Morse, The Constitutional Vice President to Have a Say in Judicial 198 Fox Television, 129 S. Ct. at 1811 (emphasis Argument Against the Vice President Casting Tie- Appointments? Perhaps Not, Balkanization (Oct. 5, in original). Breaking Votes on Judicial Nominees, 2018 Cardozo 2018), available at https://balkin.blogspot.com/ L. Rev. de novo 142 (2018) (herein, ‘‘Morse,’’ ‘‘the 199 U.S. Senate, Vote: On the Nomination 2018/10/did-framers-intend-vice-president-to.html. source’’ or ‘‘the article’’). (Confirmation Elisabeth Prince DeVos, of Michigan, 207 See The Federalist No. 69, at 424 (Alexander 201 to be Secretary of Education), Feb. 7, 2017, See id. at 151. Hamilton) (Bantam Classic ed., 2003) (‘‘[I]f the [New available at https://www.senate.gov/legislative/LIS/ 202 See id. at 150–51. York] council should be divided the Governor can roll_call_lists/roll_call_vote_ 203 See id. at 143–44 n.4. turn the scale and confirm his own nomination.’’). cfm.cfm?congress=115&session=1&vote=00054. 204 See generally U.S. Const. art. I, sec. 3. 208 Id.

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persuasion pieces to convince the Executive needs a majority of the voting nomination would fail.’’ However, the People (as sometimes addressed to ‘‘The Senators present to confirm real reason for these placements is People of New York,’’ etc.) to accept the nominations. simple and has been alluded to earlier: Constitution. Therefore, while the Langford’s interpretation wrongly The Treaty Clause belongs in Article II Papers supply a framework and conflates the necessary with the because the President is the first mover understanding closely linked to the sufficient, for Hamilton was saying only on treaties; the Senate’s role is reactive. Constitution’s text by some of the that it will suffice for a President to get Also, the Vice President is a different authors of that text, it does not supplant a nominee confirmed with a majority of actor from the President under the the original public meaning of that text the Senate, not that he needs a Senate Constitution. This placement, therefore, itself. Moreover, all The Federalist No. majority to get his nominee confirmed. has nothing to do with the Vice 69 refers to is that the President himself This is all the more so because Senators President’s tie-breaking power, which may not cast the tie-breaking vote in the may abstain from voting, so not every remains universally applicable across Senate. The Vice President, however, Senator will necessarily be voting. Senate floor votes. And even Langford is may do so, for he is not the Executive. Doubtless Hamilton knew this because inconclusive about the reason for this For much of our Nation’s history, the Constitution gives the Senate the placement and structure of keeping the including when the Equally Divided power to decide its own rules, including Treaty Clause separate from the Equally Clause was written as part of the quorum, see U.S. Const. art. I, sec. 5, cl. Divided Clause. original Constitution, the President and 1, 2, and therefore, a President need not Therefore, the Constitution permits the Vice President could be from even ‘‘corrupt or seduce’’ a majority of the Vice President to cast the tie- different parties and fail to get along. the full Senate, The Federalist No. 76; breaking vote for executive This Clause gave the Vice President all he needs is a majority of the voting nominations. Vice President Pence some power and authority independent Senators. Thus, Hamilton’s phrasing constitutionally cast the tie-breaking of the President. There is an important indicates not precision but a common vote to confirm President Trump’s context behind this. Prior to the Twelfth parlance. It is, accordingly, too slender nomination of Secretary DeVos. The Amendment’s adoption, the Vice a reed (outside the constitutional text, at Secretary is a constitutionally appointed Presidency was awarded to the that) for Langford to base much of his officer functioning in her present presidential candidate who won the thesis on, providing no support for the capacity and suffers from no want of second most number of votes, regardless commenter’s argument. authority to issue the NPRM or to of which political party he Langford is also incorrect in saying promulgate the final regulations on this represented.209 In the 1796 election, for that ‘‘the Framers situated the Senate’s or any other matter pertaining to the instance, voters chose the Federalist ‘advice and consent’ powers in Article Department of Education. II, not Article I,’’ where the Equally Changes: None. John Adams to be President.210 But they Divided Clause is located, means that chose Thomas Jefferson, a Democratic- Length of Public Comment Period/ the Vice President’s tie-breaking power Republican, as the election’s runner-up, Requests for Extension does not apply to nominations. This so Jefferson became Adams’ Vice argument fails because, as noted earlier, Comments: Several commenters President.211 Under the Twelfth it made more sense for the original asserted that the 30-day public comment Amendment, however, usually Constitution’s drafters and the ratifying period provided for the NPRM was Presidents and Vice Presidents are generation to name the Vice President’s inadequate. Commenters noted that the elected on the same ticket. But this does tie-breaking power right in the same proposed regulatory changes were not change the Equally Divided Clause, section of Article I when they were substantive, far-reaching, and complex, preserving the Vice President’s spelling out that he would be the as opposed to technical, and requested authority to break Senate ties for President of the Senate. It is a limitation comment periods of a minimum of 60 executive and other nominations. As a on his role as President of the Senate as days. They noted that the implications result, any argument to the contrary well as his prerogative. Article II, by of the proposed rules for universities necessarily ignores the constitutional contrast, says what the President can do; and numerous other stakeholders were text, design, and history. and as already noted, when the original immense. One commenter stated this Langford and the commenter at issue Constitution was ratified, the President was particularly the case if the proposed also misunderstand what Hamilton and the Vice President were two rule forms the basis of further action by actually stated in The Federalist No. 76, different and often conflicting entities. research agencies per Executive Order which was: ‘‘A man disposed to view Langford assumes the modern view that 13864, and others pointed out that it is human nature as it is . . . will see President and Vice President work hand a significant regulatory action. Some sufficient ground of confidence in the in hand; that was not the original commenters asserted that the proposed probity of the Senate, to rest satisfied Constitution’s presupposition, rules reflected significant shifts in long- not only that it will be impracticable to explaining why Langford’s argument term legal interpretations and practices. the Executive to corrupt or seduce a (and the commenter’s) is flawed. One commenter noted that the rules, if majority of its members; but that the Langford is also wrong to suggest that finalized as proposed, would reject key necessity of its co-operation in the because ‘‘the Framers explicitly guarded recommendations that were the result of business of appointments will be a against a closely divided Senate by advisory council deliberations and considerable and salutary restraint upon requiring a two-thirds majority of would reverse rules that were proposed the conduct of that magistrate.’’ 212 Senators present to concur in order to for 60-day comment periods. Langford reads this to mean that consent to a particular treaty,’’ this Commenters claimed that the 30-day Alexander Hamilton was saying the might show that: ‘‘Perhaps the Framers comment period did not afford them a assumed the default rule [of the Vice ‘meaningful opportunity to comment’’ 209 See U.S. Const. amend. XII. President’s tie-breaking power] would as required by the APA and pointed to 210 See Jerry H. Goldfeder, Election Law and the Presidency, 85 Fordham L. Rev. 965, 974–(2016). apply whereby a tie goes to the Vice Executive Orders 12866 and 13563 and 211 See id. President; perhaps, instead, the Framers the regulatory timeline on 212 The Federalist No. 76, at 465 (Alexander meant to provide for the possibility of Regulations.gov suggesting a comment Hamilton) (Bantam Classics ed., 2003). a divided Senate, in which case the period of 60 days. Commenters noted

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that the Department had received rule is not arbitrary and capricious or to prepare and submit their comments. requests for extensions of the comment rendered invalid by the lack of such a According to commenters, an individual period and that failure to extend the showing in the NPRM. or entity interested in commenting on comment period was arbitrary and Commenters cited Housing Study one of the agencies’ rules would most capricious. Commenters stated that the Group v. Kemp to support the likely be interested in commenting on Department did not include a required proposition that a 30-day comment all of them. They asserted that each rule justification or finding of good cause or period is inadequate. However, that case required a unique analysis, which the exigent circumstances for a comment dealt with an interim final rule, which length of the comment period would not period of less than 60 days. Some differs from these final regulations in allow, and that the short comment commenters cited to Housing Study that an interim final rule takes effect period indicated that the Group v. Kemp,213 as authority for the immediately or soon after publication, Administration was uninterested in proposition that a comment period prior to an agency’s receipt and/or public comments. Commenters also should not be less than 60 days. analysis of any solicited public referred to an alleged White House One commenter stated that the comments.219 That is not the case for statement that the agencies had been proposed rule did not provide a these final regulations, which we are working in coordination for months on meaningful cost-benefit analysis, promulgating through standard APA the proposed rules, and noted this was estimates of the scope of the rule’s notice and comment procedures. indicative of the complexity of the task, impact, or any evidence to support its We understand commenters’ concerns therefore requiring additional time for conclusions, so the need for about having an adequate opportunity to comment. One commenter noted that stakeholders to undertake an analysis of comment on the proposed regulations, more time was especially appropriate if the rules was all the more essential. but believe that the comment period the Department is to become a model for Discussion: We appreciate afforded them an adequate opportunity other agency efforts. commenters’ concerns about the length to do so, on all of the issues in the Commenters cited instances of other of the comment period. We understand NPRM including those related to similar regulations that were published the importance of these final regulations Executive Order 13864. The with a longer comment periods, to various stakeholder groups and have Department’s proposed regulations will including the related proposed rule proceeded thoughtfully and carefully to not necessarily be determinative of published by the Department of Housing develop final regulations that balance other agencies’ implementation of and Urban Development (HUD). varying interests appropriately. Executive Order 13864; in fact, the other Commenters stated that this indicates The APA does not mandate a specific agencies’ proposals may differ with that the Department could have allowed length for an NPRM comment period, respect to implementation of that a longer comment period on these but states that agencies must ‘‘give Executive Order. Further, the proposed regulations and that, since interested persons an opportunity to Department received over 17,000 other agencies will need to coordinate participate’’ in the proceeding.214 This comments on the proposed regulations, with HUD before finalizing their rules, provision has generally been interpreted many representing large constituencies. that was another reason to extend the as requiring a ‘‘meaningful opportunity The large number, complexity, and comment period. Other commenters to comment.’’ 215 Executive Orders diversity of comments received pointed to past revisions of these or 12866 and 13563, which are mirrored by indicates that the public had adequate similar rules that provided for longer comment periods, including when the the timeline commenters referenced on time to comment on the Department’s Department and other agencies Regulations.gov, state that a meaningful proposals. The length of comment proposed revisions to the same opportunity to comment on any periods in past rulemaking proceedings regulations in 2015 and included a 60- proposed regulation, in most cases, is not necessarily determinative of the proper comment period length for the day comment period. should include a comment period of not Discussion: The Department disagrees 216 present rulemaking. Any shifts in policy less than 60 days. However, 60 days that the proposal of the agencies’ final or departures from prior practice are is not a mandatory timeframe—case law regulations on the same timeline did not explained in the relevant sections of this interpreting the APA generally provide the public a meaningful preamble. In addition, we address stipulates that comment periods should opportunity to comment. The agencies’ comments about the sufficiency of the not be less than 30 days to provide proposals were very similar in some 217 RIA in the applicable section of this adequate opportunity to comment. In areas, such that comments on aspects of preamble. addition, the designation of a regulatory one agency’s regulations could be action as ‘‘significant’’ does not Changes: None. Comments: In support of their submitted in response to other agencies’ automatically require a comment period NPRMs with minor changes. The work of longer than 30 days. Contrary to requests for a longer comment period, several commenters noted that the undertaken by the various agencies to commenters’ assertions, the APA does coordinate their NPRMs facilitated the not require a showing of good cause or Administration issued nine interconnected, but distinct proposed preparation of more streamlined exigent circumstances for a comment proposals on which the public could 218 regulations on the same day. Given the period of less than 60 days, so the comment in a more efficient manner. complexity and wide-ranging impacts of Although we are not certain of the 213 the proposed regulations, commenters 736 F. Supp. 321 (D.D.C. 1990). manner in which one commenter meant 214 5 U.S.C. 553(c). did not feel that they had sufficient time that the Department would be a model 215 E.g., Asiana Airlines v. F.A.A., 134 F.3d 393, for other agencies, the Department’s 396 (D.C. Cir. 1998). that notice and public procedure thereon are 216 Exec. Order 12866, Section 6(a), 58 FR 51735 impracticable, unnecessary, or contrary to the proposal was not intended to lead or (Oct. 4, 1993); Exec. Order 13563, section 2(b), 76 public interest.’’ supersede that of other agencies. FR 3821 (Jan. 1, 2011). 219 736 F. Supp. at 334. Moreover, in that case, Further, any public statements about 217 See, e.g., Nat’l Retired Teachers Ass’n v. U.S. the court found the agency’s own regulations that work and preparation would have Postal Serv., 430 F. Supp. 141, 147 (D.D.C. 1977). required that, absent good cause, ‘‘the public be 218 Instead, 5 U.S.C. 553(b)(B) states that the afforded a minimum of 60 days to submit been reflective of the agencies’ efforts, notice and comment requirements of 553(b) do not comments.’’ Hous. Study Grp. v. Kent, 739 F. Supp. not necessarily those required of public apply ‘‘when the agency for good cause finds . . . 633, 635 n.6 (D.D.C. 1990) (citing 24 CFR 10.1). commenters.

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The Department greatly values the authority citations in these final Speech and Religious Liberty),225 public’s comments on the proposed regulations and appreciate that the Executive Order 13831 (Establishment regulations but does not believe that a commenters brought this error to our of a White House Office Faith and longer comment period was necessary attention. However, the negotiated Opportunity Initiative),226 Executive in this case. HUD’s regulations were rulemaking, 60-day comment period, Order 13864 (Improving Free Inquiry, proposed for a longer comment period and other requirements of 20 U.S.C. Transparency, and Accountability at due to its unique requirements. 6571 are inapplicable to these Colleges and Universities).227 The Specifically, HUD’s regulations state regulations, so the Department was not Department notes that in 2016, the that it is HUD’s policy ‘‘that its notices required to comply with them. Department issued final regulations of proposed rulemaking are to afford the expressly to ‘‘implement Executive public not less than sixty days for The Department has authority to Order 13279, as amended by Executive submission of comments.’’ 220 In promulgate these final regulations under Order 13559.... to guide the policies addition, the length of comment periods 20 U.S.C. 1221e–3 and 20 U.S.C. 3474, of Federal agencies regarding the in past rulemaking proceedings is not which give the Secretary general participation of faith-based and other necessarily determinative of the proper authority to make regulations governing community organizations in programs comment period length for the present the Department’s applicable programs that the Federal agencies rulemaking; the Department evaluates and to manage the functions of the administer.’’ 228 The Department cited the appropriate length of a comment Department. These final regulations are the same authority, 20 U.S.C. 1221e–3 period on an individualized basis for consistent with the statutes that govern and 20 U.S.C. 3474, for its 2015 each proposed regulation. institutions of higher education. NPRM 229 and subsequent final Changes: None. Congress expressly stated in the HEA regulations issued in 2016,230 as it did Comments: Commenters also noted that ‘‘no student attending an institution for the NPRM underlying this notice- that 20 U.S.C. 6511 was included in of higher education on a full- or part- and-comment rulemaking and these authority citations for the proposed time basis should, on the basis of final regulations. regulations. They pointed out that there participation in protected speech or Changes: We have revised the is no 20 U.S.C. 6511, and inferred that protected association, be excluded from authority citations for the final the Department instead intended to cite participation in, be denied the benefits regulations to cite 20 U.S.C. 1221e–3 20 U.S.C. 6571. Commenters noted that of, or be subjected to discrimination or and 20 U.S.C. 3474. 20 U.S.C. 6571 requires negotiated official sanction under any education Effective Date rulemaking and a 60-day comment program, activity, or division of the period, among other procedural institution directly or indirectly Comments: One commenter, a public university, requested that the requirements, and stated that the receiving financial assistance[.]’’ 221 Department delay the effective date Department did not comply with those These final regulations also are sufficiently far in the future (at least requirements. One commenter also consistent with the Equal Access Act, eight months) because institutions may questioned how the proposed which concerns public secondary be required to revise their policies. This regulations were authorized by 20 schools and states: ‘‘It shall be unlawful U.S.C. 6571. commenter suggested that the final rule for any public secondary school which Another commenter contended that should become effective eight months receives Federal financial assistance and the Department has no statutory basis after publication for consistency with for the proposed regulations to require which has a limited open forum to deny the Higher Education Act’s master public institutions to comply with equal access or a fair opportunity to, or calendar requirement. certain provisions of the U.S. discriminate against, any students who Discussion: The Department Constitution, to require private colleges wish to conduct a meeting within that appreciates the commenter’s suggestion; to comply with their own stated limited open forum on the basis of the however, the Department does not institutional policies regarding freedom religious, political, philosophical, or believe that institutions of higher of speech, including academic freedom, other content of the speech at such education will need at least eight and to require public institutions to meetings.’’ 222 As explained in more months to comply with this final rule. treat religious student organizations the detail in ‘‘Part 1—Religious Liberty’’ Public institutions of higher education same as secular student organizations. and ‘‘Part 2—Free Inquiry’’ of the that are already legally required to abide This commenter asserted that 20 U.S.C. NPRM, these regulations also were by the First Amendment to the U.S. 1221e–3 and 20 U.S.C. 3474 cannot proposed in response to Supreme Court Constitution will simply also comply legally support these proposed case law, interpreting the First with the First Amendment to the U.S. regulations. Amendment, such as the United States Constitution as a material condition of Discussion: The Department Supreme Court’s decision in Trinity a grant from the Department under 34 inadvertently included 20 U.S.C. 6511, Lutheran Church of Columbia, Inc. v. CFR 75.500 and 34 CFR 76.500. Public which is currently cited as the authority Comer,223 the Religious Freedom institutions should not need to review for some of the Department’s existing Restoration Act, the United States regulations and is now obsolete, in the Attorney General’s October 6, 2017 225 Exec. Order No. 13798, 82 FR 21675 (May 4, authority citations for some of the Memorandum on Federal Law 2017). proposed regulations. We did not intend Protections for Religious Liberty,224 226 Exec. Order No. 13831, 83 FR 20715 (May 8, to cite that section, or 20 U.S.C. 6571, Executive Order 13798 (Promoting Free 2018). 227 Exec. Order No. 13864, 84 FR 11401 (March as authority for these regulations. 26, 2019). Indeed, 20 U.S.C. 6571 is part of the 221 20 U.S.C. 1011a(a)(1). 228 Federal Agency Final Regulations Elementary and Secondary Education 222 20 U.S.C. 4071(a). Implementing Executive Order 13559: Fundamental Act of 1965, as amended, which is not 223 137 S. Ct. 2012 (2017). Principles and Policymaking Criteria for a source of authority for these 224 Jeff Sessions, Federal Law Protections for Partnerships with Faith-Based and Other Religious Liberty, Memorandum for All Executive Neighborhood Organizations, 81 FR 19355 (Apr. 4, regulations. We have corrected the Departments and Agencies (Oct. 6, 2017), https:// 2016). www.justice.gov/opa/press-release/file/1001891/ 229 80 FR 47253. 220 24 CFR 10.1. download. 230 81 FR 19405–09.

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and revise their policies and practices as a result of this final rule, the composition of entities asserting the a result of this final rule. If public Department understands that exemption for educational institutions institutions review and revise their institutions and recipients of Federal which are controlled by a religious policies and practices, then the First financial assistance may choose to organization would not substantially Amendment and not this final rule review their existing policies and change and, thus, there would be no dictates whether their policies and practices to ensure compliance with the quantifiable costs for the proposed practices should change. Similarly, First Amendment for public institutions regulation, 34 CFR 106.12(c). One private institutions of higher education and with their own stated institutional commenter expressed concern that must simply comply with their own policies concerning freedom of speech, proposed § 106.12(c), regarding the stated institutional policies regarding including academic freedom, for private exemption for educational institutions freedom of speech, including academic institutions. In case institutions would which are controlled by a religious freedom, as a material condition of a like to review their existing policies and organization, would increase sex-based grant from the Department under 34 practices, the Department will set the discrimination, particularly hurting CFR 75.500 and 34 CFR 76.500, and effective date at 60 days after the date students and employees. private institutions are not required to of publication in the Federal Register. Another commenter asserted that the adopt any particular policy regarding Changes: None. Department’s cost-benefit analysis is flawed because it did not consider freedom of speech, including academic Regulatory Impact Analysis freedom. Institutions generally comply direct health and financial costs to with their own stated institutional Comments: A few commenters argued beneficiaries who may be prevented policies and are prepared to suffer that the Department’s cost-benefit from accessing safety net programs, consequences such as breach of contract analysis was unsubstantiated by experience discrimination and claims or other complaints for failing to evidence and failed to consider broad decreased fairness and respect for their comply with their own stated economic and non-economic impacts, rights, the potential cost-shifting to institutional policies. primarily discrimination. These other health or human service agencies, The other regulations in this final commenters asserted that the and more confusion and familiarization regulatory action clarify the exemption Department did not conduct a costs. This commenter contended that in Title IX, 20 U.S.C. 1681(a)(3), for meaningful cost-benefit analysis. the proposed regulations are educational institutions controlled by a Some commenters argued that the economically significant because they religious organization to the extent Title Department’s cost-analysis calculation cover programs totaling hundreds of IX or its implementing regulations are was incomplete and violates the billions of dollars and expressed not consistent with the religious tenets Administrative Procedure Act and concern that the Department did not of such organization. Similarly, the Executive Orders 12866 and 13563. One fulfill Executive Order 12866. This revisions to 34 CFR parts 606, 607, 608, commenter asserted that these legal commenter also argued that the and 609 remove language that prohibits requirements were violated because the Department failed to consider the total use of funds for otherwise allowable Department did not assess all costs and effect on the economy and costs as well activities if they merely relate to benefits or select approaches that as potential costs to beneficiaries, ‘‘religious worship’’ and ‘‘theological maximize net benefits. families, communities, and funded subjects’’ and replace it with language Another commenter asserted that the organizations. that more narrowly defines the Department violated the Administrative Discussion: As an initial matter, we limitations. Such points of clarification Procedure Act and Executive Order note that the NPRM and its associated do not require eight months of 13563 by not releasing information Regulatory Impact Analysis (RIA) preparation on the part of an institution. relevant to the cost estimates. One included two parts—Part 1 related to As discussed previously, the master commenter argued that the issues of Religious Liberty and Part 2 calendar requirements in Title IV of the Department’s claim that the proposed related to issues of Free Inquiry. HEA do not apply to these final regulations would impose zero costs is However, this final rule only includes regulations. The HEA provides that false and stated that accurate estimates changes to a subset of the provisions ‘‘any regulatory changes initiated by the cannot be developed in the absence of originally included in Part 1 Secretary affecting the programs under more information from the Department. (specifically 34 CFR parts 106, 606, 607, [Title IV] that have not been published One commenter asserted that the 608, and 609) and all of the provisions in final form by November 1 prior to the Department failed to assess the net originally included in Part 2. start of the award year shall not become economic and non-economic effects of The analysis pertinent to the relevant effective until the beginning of the the proposed changes, particularly costs provisions in Part 1 addressed proposed second award year after such November for current and prospective students and changes to 34 CFR 106.12, 606,10, 1 date.’’ 231 These regulations, however, for schools themselves. This commenter 606.11, 607.10, 607.11, 608.10, 608.12, are not promulgated under Title IV of also contended that the Department 609.10, and 609.12. Of those sections, the HEA, and the master calendar must consider costs to current and four are severability clauses. requirement does not apply here. prospective employees who may face We note that the analysis pertinent to Even though these final regulations do higher rates of sex discrimination by part 2 addressed proposed changes to not constitute a ‘‘major rule’’ under the religious schools due to these proposed seven sections (34 CFR 75.500, 75.684, Congressional Review Act,232 such that regulations. This commenter asserted 75.700, 75.741, 76.500, 76.700, and they may not take effect until 60 days that such individuals may face lost 76.784). Of those sections, three are after the date of publication in the wages, fewer future employment severability clauses and two are updated Federal Register,233 and even though opportunities, and long-term health cross-references. institutions are not required to review consequences, as well as the more While many commenters were not and revise their policies and practices as indirect costs of increased specific about the sources of their discrimination. concerns, we do not believe commenters 231 20 U.S.C. 1089(c)(1). Another commenter asserted that the intended to imply that there were 232 5 U.S.C. 804(2). Department did not cite evidence to economic or non-economic impacts of 233 5 U.S.C. 801(a)(3). support the assertion that the number or the severability provisions or cross-

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reference updates that were not additional likely economic or non- the religious exemption under Title IX considered. Severability clauses, economic impacts. In the absence of and these regulations does not apply to generally, do not have any practical additional, specific information an educational institution, that effect on the cost implications of any regarding the types of impacts individual may always file a complaint other provisions and only clarify the commenters believed we failed to with OCR. Further, if the assertion of effectiveness of those provisions in consider, we decline to amend our the exemption in 34 CFR 106.12(a) were certain circumstances. As such, we initial assumptions and estimates likely to cause the harms cited by generally do not assume severability related to these provisions. commenters, there should be ample clauses to have cost implications and That being said, while we disagree evidence of those harms at the entities decline to do so in this instance. with commenters that the issues they already asserting the exemption. We do Similarly, updating cross-references identified should be quantified and not have evidence that those harms does not have any practical effect on included in our analysis of the likely actually occurred, and commenters did cost implications but rather serves only impacts of these final regulations, we do not identify any examples of such. If we to improve the clarity of regulations. We note that our analysis did not include do not anticipate any change in the decline to estimate additional effects time for grant recipients under 34 CFR number of individuals affected by the from these clauses. parts 75 and 76 to review these final policies and practices of these entities to With regard to changes to §§ 75.500 regulations or for a subset of those which the religious exemption applies, and 76.500, we disagree that there were grantees to engage in a review of their and we have no evidence to suggest that economic or non-economic impacts, policies as a result of these final rules. the policies and practices of these including discrimination, that we failed We have revised our cost estimates to entities actually generate the harms to consider, or that our analysis was include these items. cited by commenters (including, among otherwise not meaningful. As noted in With regard to changes to 34 CFR others, increased rates of intimate the NPRM, the regulatory changes serve 106.12(c), which provide greater clarity partner violence and psychological primarily to clarify that public regarding the statutory exemption in 20 abuse and lower rates of cervical cancer institutions must comply with the First U.S.C. 1681(a)(3) and reflected in 34 screenings), we cannot reasonably Amendment and to require that, in the CFR 106.12(a), we disagree that there attach costs associated with those harms event there is a final, non-default were economic or non-economic to the changes being made herein. We judgment against them in a State or impacts, including discrimination, that therefore decline to include costs Federal court alleging a violation we failed to consider, or that our related to discrimination, lack of access thereof, such judgment must be analysis was otherwise not meaningful. to safety net programs, or costs submitted to the Department. Based on One commenter alleged that the associated with confusion or our active and ongoing monitoring of Department provided no basis on which familiarization with new providers. grantees, we have not yet been made to substantiate its assumption that this With regard to changes to 34 CFR aware of any significant issues with change would not substantially change 606.10, 607.10. 608.10, and 609.10, we grantees resulting in final, non-default the number or composition of entities disagree that there were economic or judgments that a grantee has failed to claiming the exemption. However, as non-economic impacts, including comply with the First Amendment in noted in the NPRM and this final rule, discrimination, that we failed to large part because grantees are not these changes only clarify and codify in consider, or that our analysis was required to and do not report such regulations many long-standing otherwise not meaningful. As noted in judgments or violations to us. We practices of the Department. A number the NPRM, these changes would remove specifically requested the public submit of the standards in 34 CFR 106.12(c)(1)– language that prohibits the use of funds any evidence of such violations to (5) are criteria that have been used by for otherwise allowable activities that inform our estimates and did not receive OCR for decades in adjudicating claims merely relate to sectarian instruction or any information about the number of to the exemption under 20 U.S.C. religious worship and replace it with final, non-default judgments against a 1681(a)(3) and reflected in 34 CFR language more narrowly defining the public institution, holding that the 106.12(a) and, therefore, it is likely that limitation. In general, the Department public institution violated the First any entities that contacted the does not estimate costs associated with Amendment, or the number of final, Department about this exemption would regulatory changes that only affect the non-default judgments against a private have received guidance in accordance expenditure of Federal funds as all costs institution, holding that the private with these changes. Informed by public associated with compliance are institution violated a stated institution comment, the Department has no subsidized with Federal grants. At most, policy regarding freedom of speech, information to suggest that a substantial such changes could result in transfers including academic freedom. number of educational institutions will across eligible activities or recipients. In addition to our request about be newly eligible to assert a religious The Department noted this potential for compliance with the First Amendment, exemption under Title IX, where they transfers in the NPRM and specifically we specifically asked the public to could not before. We therefore have no requested public feedback on the extent submit relevant information regarding evidence to refute and stand by the to which these transfers were likely to the likely effects—both economic and assumption that these changes would occur. We received no information from non-economic—of these changes. In not result in a substantial change in the the public on this matter. We therefore response to that request, members of the number or composition of entities retain this as a potential, but public cited potential economic and asserting the exemption. Further, given unquantified transfer among allowable non-economic effects of increased that we do not believe that there would activities and recipients. discrimination. As discussed elsewhere, be a substantial change in the number Commenters also asserted potential we did not find these arguments or composition of entities asserting the violations of the Administrative convincing. Despite the lack of exemption, we have no reason to believe Procedure Act and Executive Orders persuasive comments, the Department that there would be a substantial 12866 and 13563 with respect to did review our initial assumptions increase in the number of individuals additional information they believe the pursuant to commenters’ general affected by the policies and practices of Department should have released to aid concerns and were unable to identify these entities. If an individual feels that them in their review of these estimates,

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such as information about grants, grant deregulatory actions. The final from these final regulations. The recipients and effects on small entities. regulations are a significant regulatory approach that the Department chooses The only non-publicly-available action under E.O. 12866, and impose upholds the First Amendment to the information used in developing those total one-time costs of approximately U.S. Constitution with respect to public estimates was the Department’s active $297,770. Pursuant to the Congressional institutions of higher education and monitoring of our grantees, and the Review Act (5 U.S.C. 801 et seq.), the holds private institutions of higher relevant aspects of that information Office of Information and Regulatory education accountable to their own were discussed in the NPRM. We do not Affairs designated this rule as not a stated institutional policies regarding believe it would be necessary or ‘‘major rule,’’ as defined by 5 U.S.C. freedom of speech, including academic appropriate for the Department to 804(2). freedom. The Department’s approach release all monitoring records for all We have also reviewed these final with respect to discretionary grant grantees, nor would the provision of regulations under E.O. 13563, which programs under Title III and Title V of that information aid commenters in supplements and explicitly reaffirms the the HEA aligns with the most current further assessing the reasonableness of principles, structures, and definitions precedent from the U.S. Supreme Court. our assumptions. governing regulatory review established The Department also clarifies how Changes: We have revised our cost in E.O. 12866. To the extent permitted educational institutions may estimates to include time for grantees to by law, E.O. 13563 requires that an demonstrate that they are controlled by read the rule and review their agency— a religious organization to qualify for institutional policies. (1) Propose or adopt regulations only the exemption provided under Title IX, on a reasoned determination that their 20 U.S.C. 1681(a)(3), to the extent Title Executive Orders 12866, 13563, and benefits justify their costs (recognizing IX or its implementing regulations 13771 that some benefits and costs are difficult would not be consistent with the Regulatory Impact Analysis to quantify); religious tenets of such organization. (2) Tailor its regulations to impose the Under E.O. 12866, the Office of We also have determined that this least burden on society, consistent with regulatory action does not unduly Management and Budget (OMB) must obtaining regulatory objectives and determine whether this regulatory interfere with State, local, or Tribal taking into account—among other things governments in the exercise of their action is ‘‘significant’’ and, therefore, and to the extent practicable—the costs subject to the requirements of the governmental functions. of cumulative regulations; In this regulatory impact analysis, we Executive Order and subject to review (3) In choosing among alternative discuss the need for regulatory action, by OMB. Section 3(f) of E.O. 12866 regulatory approaches, select those the potential costs and benefits, defines a ‘‘significant regulatory action’’ approaches that maximize net benefits assumptions, limitations, and data as an action likely to result in a rule that (including potential economic, sources that we considered. may— environmental, public health and safety, (1) Have an annual effect on the and other advantages; distributive Need for Regulatory Action economy of $100 million or more, or impacts; and equity); The Department is revising its adversely affect a sector of the economy, (4) To the extent feasible, specify regulations in response to the United productivity, competition, jobs, the performance objectives, rather than the States Supreme Court’s decisions in environment, public health or safety, or behavior or manner of compliance a Trinity Lutheran Church of Columbia, State, local, or Tribal governments or regulated entity must adopt; and Inc. v. Comer 234 and consistent with communities in a material way (also (5) Identify and assess available Espinoza v. Montana Dep’t of referred to as an ‘‘economically alternatives to direct regulation, Revenue 235 as well as Little Sisters of significant’’ rule); including economic incentives—such as the Poor Saints Peter and Paul Home v. (2) Create serious inconsistency or user fees or marketable permits—to Pennsylvania,236 RFRA, the United otherwise interfere with an action taken encourage the desired behavior, or States Attorney General’s October 6, or planned by another agency; provide information that enables the 2017, Memorandum on Federal Law (3) Materially alter the budgetary public to make choices. Protections for Religious Liberty, E.O. impacts of entitlement grants, user fees, E.O. 13563 also requires an agency ‘‘to 13798 (Promoting Free Speech and or loan programs or the rights and use the best available techniques to Religious Liberty),237 and E.O. 13831 obligations of recipients thereof; or quantify anticipated present and future (Establishment of a White House Faith (4) Raise novel legal or policy issues benefits and costs as accurately as and Opportunity Initiative). arising out of legal mandates, the possible.’’ The Office of Information and Additionally, the Department is revising President’s priorities, or the principles Regulatory Affairs of OMB has its regulations to enforce E.O. 13864,238 stated in the Executive Order. emphasized that these techniques may Improving Free Inquiry, Transparency, Under E.O. 12866, section 3(f)(1), this include ‘‘identifying changing future and Accountability at Colleges and regulatory action is a significant compliance costs that might result from Universities. regulatory action subject to review by technological innovation or anticipated The Department believes that even a OMB. behavioral changes.’’ single instance of a violation of the First Under E.O. 13771, for each new We are issuing these final regulations Amendment at a public institution or a regulation that the Department proposes only on a reasoned determination that their benefits justify their costs. While for notice and comment or otherwise 234 137 S. Ct. 2012 (2017). promulgates that is a significant the Department is required to estimate 235 140 S. Ct. 2246 (2020). regulatory action under E.O. 12866 and the benefits and costs of every 236 140 S. Ct. 2367 (2020). that imposes total costs greater than regulation, and has considered those 237 Att’y Gen. Mem. nn Federal Law Protections zero, it must identify two deregulatory benefits and costs for these final for Religious Liberty, Memorandum for All actions. For FY 2020, any new regulations, our decision regarding the Executive Departments and Agencies (Oct. 6, 2017), https://www.justice.gov/opa/press-release/file/ incremental costs associated with a new final regulations rely on legal and policy 1001891/download. regulation must be fully offset by the considerations discussed elsewhere, and 238 Exec. Order 13864, 84 FR 11401 (Mar. 21, elimination of existing costs through not on the estimated cost likely to result 2019).

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single instance of a violation of stated Discussion of Costs, Benefits, and of speech, including academic freedom, institutional policies regarding freedom Transfers unless a State or Federal court renders of speech, including academic freedom, For purposes of these estimates, the a final, non-default judgment against the at a private institution, as adjudicated Department assumes that approximately institution or its employee acting on its by a court, is egregious with respect to 1,500 institutions of higher education behalf, finding that the private Federal research or education grants. are grant recipients under 34 CFR parts institution or such an employee violated Such violations deny students the 75 and 76. Of those, we assume that a stated institutional policy regarding opportunity to learn and also deny approximately 70 percent (1,050) are freedom of speech, including academic teachers and faculty the opportunity to public institutions and 30 percent (350) freedom. These final regulations require research and engage in rigorous are private institutions.240 We assume grantees to submit to the Department a academic discourse. The freedoms in that most activities outlined below copy of any final, non-default judgment the First Amendment for public would be conducted by an attorney at a rendered against them by a State or institutions and stated institutional rate of $102.05 per hour.241 Federal court, finding a violation of the policies regarding freedom of speech, We assume that representatives of all First Amendment for public institutions including academic freedom, for private 1,500 institutions receiving grants under or finding a violation of a stated institutions are fundamental for 34 CFR parts 75 and 76 will review the institutional policy regarding freedom of education. final rule. We estimate that such review speech, including academic freedom, for Additionally, these final regulations will take, on average, 1 hour per private institutions. Additionally, the governing the Hispanic-Serving institution for a one-time cost of changes prohibit public institutions of Institutions Program, Strengthening approximately $209,700. While the higher education from denying religious Institutions Program, Strengthening Department recognizes that some student organizations any rights, Historically Black Colleges and institutions may take longer to complete benefits, or privileges afforded to other Universities Program, and Strengthening this review, we believe many student organizations because of the Historically Black Graduate Institutions institutions will take far less time, religious student organization’s beliefs, Program provide consistency with instead relying on high level summaries practices, policies, speech, membership current Supreme Court case law or overviews, such as those produced by standards, or leadership standards, regarding the Free Exercise Clause and a central office for an entire university which are informed by sincerely held RFRA. These final regulations also help system. religious beliefs. ensure that religious student Generally, the Department assumes organizations at public institutions do 34 CFR Part 75—Direct Grant Programs that public institutions, to which the not have to choose between exercising and 34 CFR Part 76—State- First Amendment already applies, make their religion or participating in a Administered Formula Grant Programs a good faith effort to comply with the publicly available government benefit Changes to 34 CFR 75.500 and 34 CFR First Amendment. As such, we do not program. 76.500 clarify public institutions that believe the majority of institutions will Finally, the Department for the first are grantees or subgrantees and that conduct a review of their policies as a time provides clarity through already are legally required to abide by result of this final rule. We assume that regulations as to how an educational the First Amendment, must comply approximately 15 percent of public institution may demonstrate that it is with the First Amendment as a material institutions of higher education will controlled by a religious organization condition of the Department’s grant. review their policies to ensure such that Title IX and its implementing Similarly, private institutions must compliance with the First Amendment. regulations would not apply pursuant to comply with their own stated We believe such a review will take 20 U.S.C. 1681(a)(3). The Department institutional policies regarding freedom approximately four (4) hours. We do not previously addressed such matters of speech, including academic freedom, assume a more comprehensive or through guidance which does not have as a material condition of a grant. These burdensome review process because, as the force and effect of law. These final final regulations assume that generally, noted above, public institutions have regulations provide a non-exhaustive a public institution makes a good faith always been required to comply with list of criteria that is consistent with effort to comply with this material the First Amendment, and we assume RFRA and that institutions may choose condition unless a State or Federal court that public institutions are making a to use in asserting an exemption under renders a final, non-default judgment good faith effort to comply. We further 20 U.S.C. 1681(a)(3). against the institution or its employee assume that no private institutions will The Department’s need for regulatory acting in the employee’s official conduct such a review given that they action is explained more fully in the capacity, finding that the public are only required to comply with their NPRM in ‘‘Background—Part 1 institution or such an employee violated existing policies. However, to the extent (Religious Liberty)’’ and ‘‘Background— the First Amendment. Similarly, these that private institutions do choose to Part 2 (Free inquiry).’’ 239 final regulations assume that generally, conduct such a review (for instance, to verify their continued support of all Discussion of Costs and Benefits a private institution makes a good faith effort to comply with its own stated previously adopted policies), the costs The Department has analyzed the institutional policies regarding freedom noted herein will be underestimates of costs and benefits of complying with the actual costs generated by these final these final regulations. Due to the 240 Estimates based on analysis of grant awards regulations. We therefore assume that number of affected entities and made by the Department in fiscal year 2018. approximately 158 institutions will recipients, we cannot estimate, with 241 Estimates based on a median hourly wage for conduct a review of their policies for a absolute precision, the likely effects of lawyers employed by colleges, universities, and professional schools, State government owned from total one-time cost of $88,070. these regulations. However, as the May 2019 National Occupational Employment The Department recognizes that the discussed below, we estimate that these and Wage Estimates by ownership, published by the number of final, non-default judgments Bureau of Labor Statistics (www.bls.gov/oes/ holding that a public institution or an final regulations will have a one-time _ current/611300 2.htm#23–0000). We have used employee acting on its behalf has net cost of approximately $297,770. loaded wage rates, assuming a factor of 2.0 to account for both the employer cost for employee violated the First Amendment is 239 85 FR 3191–99. compensation and overhead costs. unpredictable and may be infrequent.

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While the Department is choosing to public institutions or permissible for private institutions, or any special take a measured approach in these final speech, including academic freedom, conditions that the Department may regulations in finding a public or private under stated institutional policies. The impose to achieve such compliance. institution in violation of the newly burden and cost of complying with the Accordingly, we do not believe it is added material conditions in §§ 75.500 First Amendment for public institutions likely that such violations will result in and 76.500 only when there is a final, and with stated institutional policies any large number of grants being non-default judgment against an regarding freedom of speech, including terminated. Further, as with all institution, we believe these final academic freedom, for private violations of the conditions of a regulations will have the additional institutions is a burden and cost that particular grant, decisions regarding benefit of increasing and incentivizing these institutions already must bear. appropriate remedies are made on a awareness about the importance of These final regulations do not add any case-by-case basis, and we therefore compliance generally. These changes such burden or cost beyond what is cannot reliably estimate the effects on are qualitative in nature and, therefore, discussed above. any particular grantee’s awards, even if we have not quantified them as part of To the extent that grantees do have we assume a failure to comply with the this analysis. We note that individuals such judgments rendered against them, First Amendment. Nonetheless, the may experience a violation of the First we believe the cost of submitting a copy potential suspension or termination of a Amendment or a stated institutional to the Department will be negligible. Federal award and potential debarment policy regarding freedom of speech and The final rule does not require grantees would, in the event that they occurred, choose not to file a lawsuit to challenge to submit the information in any represent real costs to grantees. a public institution or a private particular format or venue, and we However, as noted above, we believe institution. A student or employee may believe the requirement could easily such outcomes are generally unlikely risk their education or employment in and efficiently be addressed by grantees and difficult to meaningfully predict. filing such a lawsuit. They also may fear by forwarding a copy of the judgment We also note that some grantees or retaliation from the institution, their via email to their project officer. Such subgrantees may, in the event that they peers, their colleagues, or their an approach likely will take less than face a lawsuit alleging violations of the supervisors. Additionally, many thirty minutes to accomplish for an First Amendment or institutional institutions may choose to settle such estimated cost of no more than $50 policies regarding freedom of speech, disputes such that a court never renders (assuming the work is completed by a shift their litigation strategies to avoid a final, non-default judgment. lawyer employed by the institution) per final, non-default judgments against Accordingly, the lack of a final, non- submission. them. To the extent that they did so, default judgment against an institution Specifically, regarding the prohibition such actions could result in additional on denying religious student does not mean that a public institution costs to grantees that would not occur organizations the rights, benefits, and has not violated the First Amendment or in the absence of the rule. However, as privileges afforded to other student that a private institution has not noted above, although such violations organizations in §§ 75.500(d) and violated its own stated institutional do occur, we believe they are difficult 76.500(d), we assume no costs policies regarding freedom of speech, to predict with certainty and any effect associated with ensuring that all student including academic freedom. It may on the litigation strategy of grantees is organizations have equal access to mean that the institution remedied any case-dependent. As such, we continue generally available resources. To the problem before a lawsuit was filed or to estimate negligible costs associated extent that generally available resources during any litigation. Remedying such a with this provision. are, as a result of this change, now made problem before a final, non-default The addition of 34 CFR 75.684 available to a wider range of student clarifies that the provisions of this judgment is rendered saves institutions organizations, this change may result in the cost of litigation, and remedying any section are severable. We do not a small transfer of benefits from existing anticipate this change to have any such problem during litigation saves the student organizations to religious institution the continued cost of quantifiable cost. student organizations. We believe that Changes to 34 CFR 76.700 add a cross- litigation. the number of student organizations reference to 34 CFR 76.500. We do not A final, non-default judgment against usually operating on each campus likely anticipate this change to have any a public institution for a violation of the makes these transfer effects minimal for quantifiable cost and may benefit the First Amendment or against a private any given student organization. Department and the general public by institution for stated institutional As noted above, grantees that are improving the clarity of the regulations. policies regarding freedom of speech, found to be in violation of the First The addition of 34 CFR 76.784 including academic freedom, may be Amendment or their stated institutional clarifies that the provisions of this rare, but such a judgment may signify policies regarding freedom of speech, section are severable. We do not that the institution refused to remedy including academic freedom, will be anticipate this change to have any any such problem until a State or considered to be in violation of a quantifiable cost. Federal court ordered it to do so. The material condition of their grant and the Department believes that a single Department will consider available 34 CFR Part 106—Nondiscrimination on instance of such a violation is egregious. remedies for the violation. We do not the Basis of Sex in Education Programs First Amendment rights at public believe it is likely that such violations, or Activities Receiving Federal institutions and freedom of speech, if they do occur, would result in a Financial Assistance including academic freedom, at private substantial number of grants being Changes to 34 CFR 106.12 help define institutions are essential to learning and terminated because the Department the term ‘‘controlled by a religious education. Even one violation may have would first seek to acquire voluntary organization’’ for purposes of asserting a detrimental effect on students, faculty, compliance from the institution with the exemption under 20 U.S.C. and the educational environment. One the First Amendment for public 1681(a)(3) and reflected in § 106.12(a). such instance may chill students’, institutions or its own stated While these changes provide substantial faculty’s, and others’ protected speech institutional policies regarding freedom clarity to regulated entities about how to with respect to the First Amendment at of speech, including academic freedom, demonstrate that an educational

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institution is controlled by a religious are currently prohibited under the The addition of 34 CFR 609.12 organization, the Department does not broader, current limitation. In the clarifies that the provisions of this believe that they substantially change NPRM, the Department noted that it had section are severable. We do not the number or composition of entities insufficient information available to anticipate this change to have any asserting the exemption. To the extent quantify this potential transfer at that quantifiable cost. that it would, we believe there could be time and requested information from the Regulatory Alternatives Considered an expansion of previously eligible public to help us do so. The entities beginning to assert the commenters did not provide any such The Department considered issuing exemption due to an increased clarity information and we therefore, without guidance documents instead of regarding the regulatory standard for sufficient information, we retain this as regulations to address the issues doing so. We do not anticipate this a potential unquantified transfer. discussed in the NPRM, including in change to have any quantifiable cost. The addition of 34 CFR 607.11 ‘‘Part 1—Religious Liberty’’ and ‘‘Part The addition of 34 CFR 106.12(d) clarifies that the provisions of this 2—Free Inquiry.’’ The Department clarifies that the provisions of this section are severable. We do not determined that guidance documents section are severable. We do not anticipate this change to have any would prove insufficient because anticipate this change to have any quantifiable cost. guidance documents are not binding quantifiable cost. and do not carry the force and effect of 34 CFR Part 608—Strengthening law.242 To address these issues in a 34 CFR Part 606—Developing Hispanic- Historically Black Colleges and clear and enforceable manner, a formal Serving Institutions Program Universities Program notice-and-comment rulemaking was Changes to 34 CFR 606.10 removes Changes to 34 CFR 608.10 removes the most appropriate approach. It also language that prohibits the use of funds language that prohibits the use of funds reinforces our commitment to the rule of for otherwise allowable activities that for otherwise allowable activities that law and robust public participation in merely relate to sectarian instruction or merely relate to sectarian instruction or the development of regulations that religious worship and replace it with religious worship and replace it with govern us. language more narrowly defining the language more narrowly defining the The Department considered whether limitation. The Department also revises limitation. The Department also revises the Department, itself, should the definition of a ‘‘school or the definition of a ‘‘school or adjudicate claims alleging that a public department of divinity’’ in a manner department of divinity’’ in a manner institution violated the First that is more consistent with the First that is more consistent with the First Amendment or alleging that a private Amendment and other Federal laws. We Amendment and other Federal laws. We institution violated its stated do not anticipate these changes to result do not anticipate these changes to result institutional policies regarding freedom in any quantifiable costs. However, it is in any quantifiable costs. However, it is of speech. The Department decided possible that grantees may shift their possible that grantees may shift their against this alternative as both State and use of funds to support activities that use of funds to support activities that Federal courts are adequate guardians of are currently prohibited under the are currently prohibited under the the First Amendment and have a well- broader, current limitation. In the broader, current limitation. The developed body of case law concerning NPRM, the Department noted that it had Department does not have sufficient First Amendment freedoms. Relying on insufficient information available to information to quantify this potential State and Federal courts to make these quantify this potential transfer at that transfer at this time. determinations decreases the time and requested information from the The addition of 34 CFR 608.12 administrative burden on the public to help us do so. The clarifies that the provisions of this Department. If the Department were to commenters did not provide any such section are severable. We do not determine whether First Amendment information and therefore, without anticipate this change to have any rights were violated, then the sufficient information, we retain this as quantifiable cost. Department officials would have to become experts in the panoply of First a potential unquantified transfer. 34 CFR Part 609—Strengthening The addition of 34 CFR 606.11 Amendment issues, including guarding Historically Black Graduate Institutions clarifies that the provisions of this against any establishment of religion, Program section are severable. We do not the free exercise of religion, freedom of anticipate this change to have any Changes to 34 CFR 609.10 removes speech, freedom of association, freedom quantifiable cost. language that prohibits the use of funds of petition, freedom of assembly, and for otherwise allowable activities that freedom of the press. The Department 34 CFR Part 607—Strengthening merely relate to sectarian instruction or also would have to become familiar Institutions Program religious worship and replaces it with with the governing case law regarding Changes to 34 CFR 607.10 removes language more narrowly defining the each aspect of the First Amendment that language that prohibits the use of funds limitation. The Department also revises applies to the jurisdiction where a for otherwise allowable activities that the definition of a ‘‘school or public institution is located. Unlike merely relate to sectarian instruction or department of divinity’’ in a manner other Federal agencies, such as the religious worship and replaces it with that is more consistent with the First Department of Justice, the Department language more narrowly defining the Amendment and other Federal laws. We does not routinely enforce or handle limitation. The Department also revises do not anticipate these changes to result matters regarding the First Amendment the definition of a ‘‘school or in any quantifiable costs. However, it is and would like to rely on the courts for department of divinity’’ in a manner possible that grantees may shift their their expertise in such judgments. With that is more consistent with the First use of funds to support activities that respect to private institutions, the Amendment and other Federal laws. We are currently prohibited under the Department would have to become do not anticipate these changes to result broader, current limitation. The familiar with each private institution’s in any quantifiable costs. However, it is Department does not have sufficient stated institutional policies regarding possible that grantees may shift their information to quantify this potential use of funds to support activities that transfer at this time. 242 Perez, 575 U.S. at 97,

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freedom of speech, including academic the Strengthening Historically Black List of Subjects freedom, and each discrete issue that Graduate Institutions Program, are 34 CFR Part 75 may be presented under such policies. subject to the requirements of Executive State and Federal courts are well Order 12372 and the regulations in 34 Accounting, Copyright, Education, equipped to make necessary factual and CFR part 79. One of the objectives of the Grant programs—Education, Inventions legal determinations with respect to Executive Order is to foster an and patents, Private schools, Reporting stated institutional policies regarding intergovernmental partnership and a and recordkeeping requirements. freedom of speech, including academic strengthened federalism. The Executive 34 CFR Part 76 freedom, that private institutions choose Order relies on processes developed by to adopt. State and local governments for Accounting, Administrative practice and procedure, American Samoa, Regulatory Flexibility Act coordination and review of proposed Federal financial assistance. Education, Grant programs—education, Pursuant to the Regulatory Flexibility Guam, Northern Mariana Islands, Act, the Secretary certifies that these This document provides early Pacific Islands Trust Territory, Private final regulations do not have a notification of our specific plans and schools, Reporting and recordkeeping significant economic impact on a actions for these programs. requirements, Virgin Islands. substantial number of small entities. Assessment of Educational Impact The final rule affects all institutions of 34 CFR Part 106 higher education receiving grants from In the NPRM we requested comments Education, Sex discrimination, Civil the Department. In FY 2018, 1,548 IHEs on whether the proposed regulations rights, Sexual harassment received such awards, totaling would require transmission of 34 Part 606 approximately $3.3 billion. information that any other agency or Approximately 130 of those IHEs authority of the United States gathers or Colleges and universities, Grant qualify as small, receiving makes available. programs—education, Reporting and approximately $183 million.243 As recordkeeping requirements. described in the Discussion of Costs and Based on the response to the NPRM 34 Part 607 Benefits section of this notice, the and on our review, we have determined Department estimates that these final that these final regulations do not Colleges and universities, Grant regulations will impose one-time costs require transmission of information that programs—education, Reporting and of approximately $510 per institution any other agency or authority of the recordkeeping requirements. that conducts a review of their policies. United States gathers or makes 34 Part 608 We do not believe this would represent available. a significant economic impact on small Accessible Format Colleges and universities, Grant entities. programs—education, Reporting and recordkeeping requirements. Paperwork Reduction Act of 1995 Individuals with disabilities can obtain this document in an accessible 34 Part 609 Under the final regulations, a public format (e.g., Braille, large print, or private institution must submit to the audiotape, or compact disc) on request Colleges and universities, Grant Secretary a copy of certain final, non- to the person listed under FOR FURTHER programs—education, Reporting and default judgments by a State or Federal INFORMATION CONTACT. recordkeeping requirements. court. We believe such a submission will take no longer than 30 minutes per Electronic Access to This Document Betsy DeVos, judgment. As discussed in the NPRM Secretary of Education. and in the Discussion of Costs, Benefits, The official version of this document is the document published in the For the reasons discussed in the and Transfers above, we do not estimate preamble, the Secretary of Education Federal Register. Free internet access to 10 or more parties will have such amends parts 75, 76, 106, 606, 607, 608, the official edition of the Federal judgments to submit to the Department. and 609 of title 34 of the Code of Register and the Code of Federal Therefore, the Paperwork Reduction Act Federal Regulations as follows: is not implicated. Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. PART 75—DIRECT GRANT Intergovernmental Review You can view this document at that site, PROGRAMS The programs in parts 606, 607, 608, as well as all other documents of this and 609 of title 34 of the Code of Department published in the Federal ■ 1. The authority citation for part 75 Federal Regulations may be affected by Register, in text or PDF. To use PDF, continues to read as follows: these regulations, and these programs, you must have Adobe Acrobat Reader, Authority: 20 U.S.C. 1221e–3 and 3474, which include the Developing Hispanic- which is available free at the site. unless otherwise noted. Serving Institutions Program, You may also access documents of the Strengthening Institutions Program, ■ 2. Section 75.500 is revised to read as Department published in the Federal follows: Strengthening Historically Black Register by using the article search Colleges and Universities Program, and feature at: www.federalregister.gov. § 75.500 Constitutional rights, freedom of Through the advanced search feature at inquiry, and Federal statutes and 243 For purposes of this analysis, the Department regulations on nondiscrimination. defines a small IHE as a two-year institution with this site, you can limit your search to 500 FTE or less or a four-year institution with an documents published by the (a) Each grantee shall comply with the enrollment of 1,000 FTE or less. Department. following statutes and regulations:

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TABLE 1 TO § 75.500(a)

Subject Statute Regulation

Discrimination on the basis of race, color, or national ori- Title VI of the Civil Rights Act of 1964 (42 U.S.C. 34 CFR part 100. gin. 2000d through 2000d–4). Discrimination on the basis of sex...... Title IX of the Education Amendments of 1972 (20 34 CFR part 106. U.S.C. 1681–1683). Discrimination on the basis of handicap ...... Section 504 of the Rehabilitation Act of 1973 (29 34 CFR part 104. U.S.C. 794). Discrimination on the basis of age...... The Age Discrimination Act (42 U.S.C. 6101 et seq.) .... 34 CFR part 110.

(b)(1) Each grantee that is an private institution or an employee of the § 75.684 Severability. institution of higher education, as private institution, acting on behalf of If any provision of this subpart or its defined in 20 U.S.C. 1002(a), that is the private institution, violated its application to any person, act, or public and that is legally required to stated institutional policy regarding practice is held invalid, the remainder abide by the First Amendment to the freedom of speech or academic freedom. of the subpart or the application of its U.S. Constitution (hereinafter ‘‘public A final judgment is a judgment that the provisions to any person, act, or practice institution’’), must also comply with the private institution chooses not to appeal shall not be affected thereby. First Amendment to the U.S. or that is not subject to further appeal. (Authority: 20 U.S.C. 1221e–3 and 3474) Constitution, including protections for Absent such a final, non-default ■ freedom of speech, association, press, judgment, the Department will deem the 4. Section 75.700 is revised to read as religion, assembly, petition, and private institution to be in compliance follows: academic freedom, as a material with its stated institutional policies. § 75.700 Compliance with the U.S. condition of the Department’s grant. The (2) Each grantee that is a private Constitution, statutes, regulations, stated Department will determine that a public institution also must submit to the institutional policies, and applications. institution has not complied with the Secretary a copy of the final, non- A grantee shall comply with § 75.500, First Amendment only if there is a final, default judgment by that State or applicable statutes, regulations, and non-default judgment by a State or Federal court to conclude the lawsuit no approved applications, and shall use Federal court that the public institution later than 45 calendar days after such Federal funds in accordance with those or an employee of the public institution, final, non-default judgment is entered. statutes, regulations, and applications. acting in his or her official capacity, violated the First Amendment. A final (d) As a material condition of the (Authority: 20 U.S.C. 1221e–3 and 3474) judgment is a judgment that the public Department’s grant, each grantee that is ■ 5. Section 75.741 is added to subpart institution chooses not to appeal or that a public institution shall not deny to F to read as follows: is not subject to further appeal. Absent any student organization whose stated § 75.741 Severability. such a final, non-default judgment, the mission is religious in nature and that Department will deem the public is at the public institution any right, If any provision of this subpart or its institution to be in compliance with the benefit, or privilege that is otherwise application to any person, act, or First Amendment. afforded to other student organizations practice is held invalid, the remainder (2) Each grantee that is a public at the public institution (including but of the subpart or the application of its institution also must submit to the not limited to full access to the facilities provisions to any person, act, or practice Secretary a copy of the final, non- of the public institution, distribution of shall not be affected thereby. default judgment by that State or student fee funds, and official (Authority: 20 U.S.C. 1221e–3 and 3474) Federal court to conclude the lawsuit no recognition of the student organization later than 45 calendar days after such by the public institution) because of the PART 76—STATE–ADMINISTERED final, non-default judgment is entered. religious student organization’s beliefs, FORMULA GRANT PROGRAMS (c)(1) Each grantee that is an practices, policies, speech, membership institution of higher education, as standards, or leadership standards, ■ 6. The authority citation for part 76 defined in 20 U.S.C. 1002(a), that is which are informed by sincerely held continues to read as follows: private (hereinafter ‘‘private religious beliefs. Authority: 20 U.S.C. 1221e–3 and 3474, institution’’) must comply with its (e) A grantee that is a covered entity unless otherwise noted. stated institutional policies regarding as defined in 34 CFR 108.3 shall comply ■ 7. Section 76.500 is revised to read as freedom of speech, including academic with the nondiscrimination follows: freedom, as a material condition of the requirements of the Boy Scouts of Department’s grant. The Department America Equal Access Act, 20 U.S.C. § 76.500 Constitutional rights, freedom of will determine that a private institution 7905, 34 CFR part 108. inquiry, and Federal statutes and has not complied with these stated regulations on nondiscrimination. (Authority: 20 U.S.C. 1221e–3 and 3474) institutional policies only if there is a (a) A State and a subgrantee shall final, non-default judgment by a State or ■ 3. Section 75.684 is added to subpart comply with the following statutes and Federal court to the effect that the E to read as follows: regulations:

TABLE 1 TO § 76.500(a)

Subject Statute Regulation

Discrimination on the basis of race, color, or national ori- Title VI of the Civil Rights Act of 1964 (42 U.S.C. 34 CFR part 100. gin. 2000d through 2000d–4).

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TABLE 1 TO § 76.500(a)—Continued

Subject Statute Regulation

Discrimination on the basis of sex...... Title IX of the Education Amendments of 1972 (20 34 CFR part 106. U.S.C. 1681–1683). Discrimination on the basis of handicap ...... Section 504 of the Rehabilitation Act of 1973 (29 34 CFR part 104. U.S.C. 794). Discrimination on the basis of age ...... The Age Discrimination Act (42 U.S.C. 6101 et seq.) .... 34 CFR part 110.

(b)(1) Each State or subgrantee that is final, non-default judgment, the applications, and shall use Federal an institution of higher education, as Department will deem the private funds in accordance with those statutes, defined in 20 U.S.C. 1002(a), that is institution to be in compliance with its regulations, plan, and applications. public and that is legally required to stated institutional policies. (Authority: 20 U.S.C. 1221e–3, 3474) (2) Each State or subgrantee that is a abide by the First Amendment to the ■ 10. Section 76.784 is added to subpart U.S. Constitution (hereinafter ‘‘public private institution also must submit to I to read as follows: institution’’), must also comply with the the Secretary a copy of the final, non- First Amendment to the U.S. default judgment by that State or § 76.784 Severability. Constitution, including protections for Federal court to conclude the lawsuit no If any provision of this subpart or its freedom of speech, association, press, later than 45 calendar days after such application to any person, act, or religion, assembly, petition, and final, non-default judgment is entered. practice is held invalid, the remainder academic freedom, as a material (d) As a material condition of the of the subpart or the application of its condition of the Department’s grant. The Department’s grant, each State or provisions to any person, act, or practice Department will determine that a public subgrantee that is a public institution shall not be affected thereby. institution has not complied with the shall not deny to any student First Amendment only if there is a final, organization whose stated mission is (Authority: 20 U.S.C. 1221e–3 and 3474) religious in nature and that is at the non-default judgment by a State or PART 106—NON DISCRIMINATION ON public institution any right, benefit, or Federal court that the public institution THE BASIS OF SEX IN EDUCATION privilege that is otherwise afforded to or an employee of the public institution, PROGRAMS OR ACTIVITIES other student organizations at the public acting in his or her official capacity, RECEIVING FEDERAL FINANCIAL institution (including but not limited to violated the First Amendment. A final ASSISTANCE judgment is a judgment that the public full access to the facilities of the public institution chooses not to appeal or that institution, distribution of student fee ■ 11. The authority citation for part 106 is not subject to further appeal. Absent funds, and official recognition of the continues to read as follows: such a final, non-default judgment, the student organization by the public institution) because of the religious Authority: 20 U.S.C. 1681 et seq., unless Department will deem the public otherwise noted. institution to be in compliance with the student organization’s beliefs, practices, ■ 12. Section 106.12 is amended by First Amendment. policies, speech, membership standards, (2) Each State or subgrantee that is a or leadership standards, which are adding paragraphs (c) and (d) to read as public institution also must submit to informed by sincerely held religious follows: the Secretary a copy of the final, non- beliefs. § 106.12 Educational institutions default judgment by that State or (e) A State or subgrantee that is a controlled by religious organizations. Federal court to conclude the lawsuit no covered entity as defined in 34 CFR * * * * * later than 45 calendar days after such 108.3 shall comply with the (c) Eligibility. Any of the following in final, non-default judgment is entered. nondiscrimination requirements of the paragraphs (c)(1) through (6) of this (c)(1) Each State or subgrantee that is Boy Scouts of America Equal Access section shall be sufficient to establish an institution of higher education, as Act, 20 U.S.C. 7905, 34 CFR part 108. that an educational institution is defined in 20 U.S.C. 1002(a), that is (Authority: 20 U.S.C. 1221e–3, 3474) controlled by a religious organization, as private (hereinafter ‘‘private ■ 8. Section 76.684 is added to subpart contemplated under paragraph (a) of institution’’) must comply with its F to read as follows: this section, and is therefore eligible to stated institutional policies regarding assert a religious exemption to the freedom of speech, including academic § 76.684 Severability. extent application of this part would not freedom. The Department will If any provision of this subpart or its be consistent with its religious tenets: determine that a private institution has application to any person, act, or (1) That the educational institution is not complied with these stated practice is held invalid, the remainder a school or department of divinity. institutional policies only if there is a of the subpart or the application of its (2) That the educational institution final, non-default judgment by a State or provisions to any person, act, or practice requires its faculty, students, or Federal court to the effect that the shall not be affected thereby. employees to be members of, or private institution or an employee of the (Authority: 20 U.S.C. 1221e–3, 3474) otherwise engage in religious practices private institution, acting on behalf of ■ 9. Section 76.700 is revised to read as of, or espouse a personal belief in, the the private institution, violated its follows: religion of the organization by which it stated institutional policy regarding claims to be controlled. freedom of speech or academic freedom, § 76.700 Compliance with the U.S. (3) That the educational institution, in as a material condition of the Constitution, statutes, regulations, stated its charter or catalog, or other official Department’s grant. A final judgment is institutional policies, and applications. publication, contains an explicit a judgment that the private institution A State and a subgrantee shall comply statement that it is controlled by a chooses not to appeal or that is not with § 76.500, the State plan, applicable religious organization or an organ subject to further appeal. Absent such a statutes, regulations, and approved thereof, or is committed to the doctrines

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or practices of a particular religion, and ■ 16. New § 606.11 is added to read as § 608.10 What activities may be carried out the members of its governing body are follows: under a grant? appointed by the controlling religious * * * * * organization or an organ thereof, and it § 606.11 Severability. (b) * * * receives a significant amount of If any provision of this subpart or its (5) Activities or services that financial support from the controlling application to any person, act, or constitute religious instruction, religious organization or an organ practice is held invalid, the remainder religious worship, or proselytization. thereof. of the subpart or the application of its (6) Activities provided by a school or (4) That the educational institution provisions to any person, act, or practice department of divinity. For the purpose has a doctrinal statement or a statement shall not be affected thereby. of this provision, a ‘‘school or of religious practices, along with a (Authority: 20 U.S.C. 1101 et seq.) department of divinity’’ means an statement that members of the institution, or a department of an institution community must engage in PART 607—STRENGTHENING institution, whose program is solely to the religious practices of, or espouse a INSTITUTIONS PROGRAM prepare students to become ministers of personal belief in, the religion, its religion or to enter into some other ■ 17. The authority citation for part 607 practices, or the doctrinal statement or religious vocation. continues to read as follows: statement of religious practices. * * * * * Authority: 20 U.S.C. 1057–1059g, 1067q, (5) That the educational institution ■ has a published institutional mission 1068–1068h unless otherwise noted. 23. Section 608.12 is added to subpart that is approved by the governing body ■ 18. Section 607.10 is amended by B to read as follows: of an educational institution and that revising paragraphs (c)(3) and (4) to read § 608.12 Severability. includes, refers to, or is predicated upon as follows: If any provision of this subpart or its religious tenets, beliefs, or teachings. application to any person, act, or (6) Other evidence sufficient to § 607.10 What activities may and may not be carried out under a grant? practice is held invalid, the remainder establish that an educational institution of the subpart or the application of its is controlled by a religious organization, * * * * * (c) * * * provisions to any person, act, or practice pursuant to 20 U.S.C. 1681(a)(3). shall not be affected thereby. (d) Severability. If any provision of (3) Activities or services that this section or its application to any constitute religious instruction, (Authority: 20 U.S.C. 1060 through 1063c, person, act, or practice is held invalid, religious worship, or proselytization. and 1068 through 1068h) (4) Activities provided by a school or the remainder of this section or the department of divinity. For the purpose PART 609—STRENGTHENING application of its provisions to any of this provision, a ‘‘school or HISTORICALLY BLACK GRADUATE person, act, or practice shall not be department of divinity’’ means an INSTITUTIONS PROGRAM affected thereby. institution, or a department of an ■ PART 606—DEVELOPING HISPANIC– institution, whose program is solely to 24. The authority citation for part 609 SERVING INSTITUTIONS PROGRAM prepare students to become ministers of is revised to read as follows: religion or to enter into some other Authority: 20 U.S.C. 1060 through 1063c, ■ 13. The authority citation for part 606 religious vocation. and 1068 through 1068h, unless otherwise continues to read as follows: * * * * * noted. Authority: 20 U.S.C. 1101 et seq., unless ■ 25. Section 609.10 is amended by § § 607.11 through 607.13 [Redesignated otherwise noted. revising paragraphs (b)(5) and (6) to read as §§ 607.12 through 607.14] ■ 14. Section 606.10 is amended by as follows: ■ 19. Redesignate §§ 607.11 through revising paragraphs (c)(3) and (4) to read 607.13 as §§ 607.12 through 607.14. § 609.10 What activities may be carried out as follows: under a grant? ■ 20. New § 607.11 is added to read as § 606.10 What activities may and may not follows: * * * * * be carried out under a grant? (b) * * * § 607.11 Severability. * * * * * (5) Activities or services that (c) * * * If any provision of this subpart or its constitute religious instruction, (3) Activities or services that application to any person, act, or religious worship, or proselytization. constitute religious instruction, practice is held invalid, the remainder (6) Activities provided by a school or religious worship, or proselytization. of the subpart or the application of its department of divinity. For the purpose (4) Activities provided by a school or provisions to any person, act, or practice of this provision, a ‘‘school or department of divinity. For the purpose shall not be affected thereby. department of divinity’’ means an of this provision, a ‘‘school or (Authority: 20 U.S.C. 1057 et seq.) institution, or a department of an department of divinity’’ means an institution, whose program is solely to institution, or a department of an PART 608—STRENGTHENING prepare students to become ministers of institution, whose program is solely to HISTORICALLY BLACK COLLEGES religion or to enter into some other prepare students to become ministers of AND UNIVERSITIES PROGRAM religious vocation. religion or to enter into some other * * * * * ■ 21. The authority citation for part 608 religious vocation. ■ is revised as follows: 26. Section 609.12 is added to subpart * * * * * B to read as follows: Authority: 20 U.S.C. 1060 through 1063c, § § 606.11 through 606.13 [Redesignated and 1068 through 1068h, unless otherwise § 609.12 Severability. as §§ 606.12 through 606.14] noted. If any provision of this subpart or its ■ 15. Sections 606.11 through 606.13 ■ 22. Section 608.10 is amended by application to any person, act, or are redesignated as §§ 606.12 through revising paragraphs (b)(5) and (6) to read practice is held invalid, the remainder 606.14. as follows: of the subpart or the application of its

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provisions to any person, act, or practice (Authority: 20 U.S.C. 1060 through 1063c, shall not be affected thereby. and 1068 through 1068h) [FR Doc. 2020–20152 Filed 9–22–20; 8:45 am] BILLING CODE 4000–01–P

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Part IV

Department of Health and Human Services

Food and Drug Administration 21 CFR Part 1 Requirements for Additional Traceability Records for Certain Foods; Proposed Rule

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DEPARTMENT OF HEALTH AND Comments submitted electronically, claimed confidential information HUMAN SERVICES including attachments, to https:// redacted/blacked out, will be available www.regulations.gov will be posted to for public viewing and posted on Food and Drug Administration the docket unchanged. Because your https://www.regulations.gov. Submit comment will be made public, you are both copies to the Dockets Management 21 CFR Part 1 solely responsible for ensuring that your Staff. If you do not wish your name and [Docket No. FDA–2014–N–0053] comment does not include any contact information to be made publicly confidential information that you or a available, you can provide this RIN 0910–AI44 third party may not wish to be posted, information on the cover sheet and not such as medical information, your or in the body of your comments and you Requirements for Additional anyone else’s Social Security number, or must identify this information as Traceability Records for Certain Foods confidential business information, such ‘‘confidential.’’ Any information marked AGENCY: Food and Drug Administration, as a manufacturing process. Please note as ‘‘confidential’’ will not be disclosed HHS. that if you include your name, contact except in accordance with 21 CFR 10.20 information, or other information that and other applicable disclosure law. For ACTION: Proposed rule. identifies you in the body of your more information about FDA’s posting SUMMARY: The Food and Drug comments, that information will be of comments to public dockets, see 80 Administration (FDA, the Agency, or posted on https://www.regulations.gov. FR 56469, September 18, 2015, or access • we) is proposing to establish additional If you want to submit a comment the information at: https:// traceability recordkeeping requirements with confidential information that you www.govinfo.gov/content/pkg/FR-2015- for persons that manufacture, process, do not wish to be made available to the 09-18/pdf/2015-23389.pdf. pack, or hold foods the Agency has public, submit the comment as a Docket: For access to the docket to designated for inclusion on the Food written/paper submission and in the read background documents or the Traceability List. The proposed rule manner detailed (see ‘‘Written/Paper electronic and written/paper comments would require these entities to establish Submissions’’ and ‘‘Instructions’’). received, go to https:// and maintain records containing Written/Paper Submissions www.regulations.gov and insert the information on critical tracking events docket number, found in brackets in the Submit written/paper submissions as in the supply chain for these designated heading of this document, into the follows: foods, such as growing, shipping, • ‘‘Search’’ box and follow the prompts Mail/Hand Delivery/Courier (for and/or go to the Dockets Management receiving, creating, and transforming the written/paper submissions): Dockets foods. The proposed requirements are Staff, 5630 Fishers Lane, Rm. 1061, Management Staff (HFA–305), Food and Rockville, MD 20852. intended to help the Agency rapidly and Drug Administration, 5630 Fishers effectively identify recipients of foods to Submit comments on the information Lane, Rm. 1061, Rockville, MD 20852. collection under the Paperwork prevent or mitigate foodborne illness • For written/paper comments outbreaks and address credible threats Reduction Act of 1995 to the Office of submitted to the Dockets Management Management and Budget (OMB) to of serious adverse health consequences Staff, FDA will post your comment, as or death resulting from foods being https://www.reginfo.gov/public/do/ well as any attachments, except for PRAMain. Find this particular adulterated or misbranded. We are information submitted, marked, and issuing this proposed rule in accordance information collection by selecting identified as confidential, if submitted ‘‘Currently under Review—Open for with the FDA Food Safety as detailed in ‘‘Instructions.’’ Modernization Act (FSMA). Public Comments’’ or by using the Instructions: All submissions received search function. The title of this DATES: Submit either electronic or must include the Docket No. FDA– proposed collection is ‘‘Requirements written comments on the proposed rule 2014–N–0053 for ‘‘Requirements for for Additional Traceability Records for by January 21, 2021. Submit written Additional Traceability Records for Certain Foods.’’ comments (including recommendations) Certain Foods.’’ Received comments, FOR FURTHER INFORMATION CONTACT: on the collection of information under those filed in a timely manner (see Regarding the proposed rule: Brian the Paperwork Reduction Act of 1995 by ADDRESSES), will be placed in the docket Pendleton, Office of Policy, Food and November 23, 2020. and, except for those submitted as Drug Administration, 10903 New ADDRESSES: You may submit comments ‘‘Confidential Submissions,’’ publicly Hampshire Ave., Silver Spring, MD as follows. Please note that late, viewable at https://www.regulations.gov 20993–0002, 301–796–4614, untimely filed comments will not be or at the Dockets Management Staff [email protected]. between 9 a.m. and 4 p.m., Monday considered. The https:// Regarding the information collection: through Friday. www.regulations.gov electronic filing Domini Bean, Office of Operations, • Confidential Submissions—To system will accept comments until Food and Drug Administration, Three submit a comment with confidential 11:59 p.m. Eastern Time at the end of White Flint North, 10A–12M, 11601 information that you do not wish to be January 21, 2021. Comments received by Landsdown St., North Bethesda, MD made publicly available, submit your mail/hand delivery/courier (for written/ 20852, 301–796–5733, PRAStaff@ comments only as a written/paper paper submissions) will be considered fda.hhs.gov. timely if they are postmarked or the submission. You should submit two delivery service acceptance receipt is on copies total. One copy will include the SUPPLEMENTARY INFORMATION: or before that date. information you claim to be confidential Table of Contents with a heading or cover note that states Electronic Submissions ‘‘THIS DOCUMENT CONTAINS I. Executive Summary Submit electronic comments in the CONFIDENTIAL INFORMATION.’’ The A. Purpose and Coverage of the Proposed Rule following way: Agency will review this copy, including • B. Summary of the Major Provisions of the Federal eRulemaking Portal: the claimed confidential information, in Proposed Rule https://www.regulations.gov. Follow the its consideration of comments. The C. Legal Authority instructions for submitting comments. second copy, which will have the D. Costs and Benefits

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II. Table of Abbreviations and Commonly efficiently trace the movement through inspection. These traceability program Used Acronyms in This Document the supply chain of foods identified as records include a description of the III. Background causing illness, identify and remove reference records (e.g., bills of lading, A. Introduction contaminated food from the purchase orders) in which they keep B. Need for the Regulation C. FDA’s Current Regulatory Framework marketplace, and develop mitigation required tracing information, a list of D. History of the Rulemaking strategies to prevent future foods on the Food Traceability List they E. Improving Traceability for All Foods contamination. ship, a description of how they assign IV. Legal Authority We are issuing the proposed rule traceability lot codes, and other A. Designation of High-Risk Foods because Congress directed us, in section information needed to understand their B. Additional Recordkeeping Requirements 204(d)(1) of FSMA, to establish traceability programs. V. Description of the Proposed Rule recordkeeping requirements for these The core components of the proposed A. Scope/Applicability (Proposed § 1.1300) foods that would be additional to the rule are the requirements to establish B. Exemptions (Proposed § 1.1305) traceability recordkeeping requirements and maintain records containing key C. Definitions (Proposed § 1.1310) in section 414 of the FD&C Act (21 data elements (KDEs) associated with D. Traceability Program Records (Proposed U.S.C. 350c) and FDA regulations in 21 §§ 1.1315 to 1.1320) different critical tracking events (CTEs) E. Records of Growing, Receiving, CFR part 1, subpart J (subpart J). The in a listed food’s supply chain, Transforming, Creating, and Shipping existing requirements in subpart J are including the growing, receiving, Food (Proposed §§ 1.1325 to 1.1350) designed to enable FDA to identify the transforming, creating, and shipping of F. Special Requirements for Foods immediate previous sources and listed foods. The recordkeeping Subjected to a Kill Step (Proposed immediate subsequent recipients of requirements we propose emphasize the § 1.1355) foods to address credible threats of importance of documenting the G. Procedures for Modified Requirements serious adverse health consequences or applicable traceability lot codes and and Exemptions (Proposed §§ 1.1360 to death to humans or animals. The 1.1400) linking these codes to other KDEs at proposed rule would adopt additional critical points in the supply chain of a H. Waivers (Proposed §§ 1.1405–1.1450) recordkeeping requirements beyond I. Records Maintenance and Availability food to aid product tracing during an (Proposed § 1.1455) those in subpart J for foods we designate investigation of a foodborne illness J. Consequences of Failure To Comply as high-risk foods (including foods that outbreak or during a recall. (Proposed § 1.1460) contain foods designated as high risk) in The proposed rule includes several K. Updating the Food Traceability List accordance with factors specified by proposed full and partial exemptions Congress in section 204(d)(2)(A) of (Proposed § 1.1465) from the additional recordkeeping VI. Proposed Effective and Compliance Dates FSMA. We will list these designated requirements, including some specified VII. Economic Analysis of Impacts foods on a ‘‘Food Traceability List,’’ a by Congress and some we are proposing VIII. Analysis of Environmental Impact draft of which is available for on our own initiative. Proposed full IX. Paperwork Reduction Act of 1995 comments. We will publish a final exemptions include those for small X. Federalism version of the Food Traceability List on XI. Consultation and Coordination With retail food establishments (under one our website when we issue the final Indian Tribal Governments option of a ‘‘co-proposal’’ regarding rule, and we will update the list as XII. References such establishments), small farms, farms appropriate under the procedures set selling food directly to consumers, I. Executive Summary forth in section 204(d)(2)(B) of FSMA and the proposed rule. certain food produced and packaged on A. Purpose and Coverage of the a farm, food that receives certain types Proposed Rule B. Summary of the Major Provisions of of processing, and transporters of food. In accordance with section 204(d) of the Proposed Rule Partial exemptions would apply to FSMA, this proposed rule would We are proposing recordkeeping certain commingled raw agricultural establish traceability recordkeeping requirements for foods on the Food commodities (not including fruits and requirements for persons who Traceability List (‘‘listed foods’’) vegetables subject to the produce safety manufacture, process, pack, or hold designed to improve the traceability regulations), fishing vessels, retail food foods that FDA has designated as foods information available for these foods establishments that receive a listed food for which additional recordkeeping during foodborne illness outbreaks and directly from a farm, and farm to school requirements are appropriate and to increase the speed and precision of and farm to institution programs. necessary to protect the public health. traceforward investigations for recall The proposed rule also includes The requirements are intended to help events. The proposed requirements are special requirements for foods on the us rapidly and effectively identify informed by the challenges we have Food Traceability List that are subjected recipients of these foods to prevent or faced in obtaining critical tracing to a kill step. mitigate a foodborne illness outbreak information and the advancements in In accordance with section 204 of and to address credible threats of traceability approaches that industry FSMA, we are proposing to establish serious adverse health consequences or has already begun to implement. procedures under which persons subject death as a result of such foods being The proposed rule would require to the proposed rule (when finalized) adulterated under section 402 of the persons who manufacture, process, could request modified requirements or Federal Food, Drug, and Cosmetic Act pack, or hold foods on the Food an exemption from these recordkeeping (FD&C Act) (21 U.S.C. 342) or Traceability List (including foods that regulations for a specific food or a type misbranded under section 403(w) of the contain foods on the list as ingredients) of entity on the grounds that application FD&C Act (21 U.S.C. 343(w)). The to keep certain records describing their of the requirements to that food or type proposed requirements would reduce traceability operations and the listed of entity is not necessary to protect the harm to public health caused by foods they handle to help FDA public health. In addition, the proposed foodborne illness outbreaks and limit investigators understand their rule includes procedures for requesting adverse impacts on industry sectors traceability procedures and records a waiver of one or more of the affected by these outbreaks by when reviewing them during a requirements for an individual entity or improving the ability to quickly and foodborne illness outbreak or a routine a type of entity on the grounds that

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having to meet the requirements would million per year. At a three percent increase in transparency and trust and impose an economic hardship. discount rate, annualized costs under potential deterrence of fraud. The proposed rule also includes proposed Option 1 would range from We estimate public health benefits procedures for future updating of the approximately $33 million to $2.4 using several case studies of outbreak Food Traceability List in accordance billion per year, with a primary estimate tracebacks for four pathogens associated with section 204(d)(2)(B) of FSMA. of $400 million per year. with illnesses caused by foods on the We estimate that the present value of Food Traceability List. These benefits C. Legal Authority costs of the rule over 10 years, if Option have a tendency toward Section 204(d)(1) of FSMA directs 2 of the co-proposal for retail food underestimation of the total public FDA to publish a notice of proposed establishments with 10 or fewer full- health benefits because these four rulemaking to establish recordkeeping time equivalent employees (exemption pathogens do not represent the total requirements, in addition to the from the requirement to make available burden of all illnesses associated with requirements under section 414 of the to FDA, in certain circumstances, an listed foods. However, adjustments FD&C Act and the subpart J regulations, electronic sortable spreadsheet made for undiagnosed and unattributed for facilities that manufacture, process, containing requested traceability illnesses may have the opposite pack, or hold foods that FDA designates information) were selected, would range tendency of overstating both illnesses as foods for which additional from $301 million to $22.5 billion, with and benefits associated with listed recordkeeping requirements are needed a primary estimate of $3.8 billion in foods. We calculate these monetized under section 204(d)(2) of FSMA. 2018 dollars at a seven percent discount benefits from illnesses averted per year Section 204(d)(2)(A) of FSMA directs rate, and from $356 million to $26.1 based on an estimated 84 percent FDA to designate foods for which the billion, with a primary estimate of $4.4 reduction of traceback time resulting additional recordkeeping requirements billion at a three percent discount rate. from the requirements of this rule. described in section 204(d)(1) of FSMA At a seven percent discount rate, Under Option 1 of the co-proposal, for are appropriate and necessary to protect annualized costs of the rule under an estimated 84 percent traceback the public health. proposed Option 2 would range from improvement, the annualized monetized approximately $43 million to $3.2 benefits range from $33 million to $1.4 D. Costs and Benefits million per year in 2018 dollars, with a billion with a primary estimate of $567 This proposed rule, if finalized, primary estimate of $535 million per million, discounted at seven percent would impose compliance costs on year. At a three percent discount rate, over ten years. At a three percent affected entities to establish and annualized costs under proposed discount rate over ten years, the maintain traceability records for foods Option 2 would range from annualized monetized benefits range on the Food Traceability List and costs approximately $42 million to $3.1 from $33 million to $1.4 billion with a to read and understand the rule. Some billion per year, with a primary estimate primary estimate of $580 million. Under entities may also incur initial capital of $513 million per year. Option 2 of the co-proposal, for an investment and training costs. We The proposed rule, if finalized, would estimated 84 percent traceback estimate that the present value of costs result in public health benefits if it improvement, the annualized monetized of the rule over 10 years, if Option 1 of averts foodborne illnesses related to benefits range from $36 million to $1.5 the co-proposal for retail food outbreaks linked to foods on the Food billion with a primary estimate of $626 establishments with 10 or fewer full- Traceability List. It would also improve million, discounted at a seven percent time equivalent employees (full the likelihood of conducting more over ten years, and from $37 million to exemption from the rule) were selected, targeted recalls and reduce the cost of $1.5 billion with a primary estimate of would range from $238 million to $17 conducting recalls by avoiding overly $640 million, discounted at three billion, with a primary estimate of $2.9 broad recalls and market withdrawals. percent over ten years. Using examples billion in 2018 dollars at a seven Additional benefits may include from three recalls, additional (non- percent discount rate, and from $285 increased food supply system health) benefits for both Options 1 and million to $20.1 billion, with a primary efficiencies, such as improvements in 2 of avoiding overly broad recalls could estimate of $3.4 billion at a three supply chain management and range from $1.7 billion to $5.6 billion percent discount rate. At a seven inventory control; more expedient per year at a seven percent discount rate percent discount rate, annualized costs initiation and completion of recalls; and from $1.7 billion to $5.8 billion of the rule under proposed Option 1 avoidance of costs due to unnecessary using a three percent discount rate. We would range from approximately $34 preventive actions by consumers; and lack complete information on other million to $2.4 billion per year in 2018 other benefits due to a standardized benefits described above and discuss dollars, with a primary estimate of $411 approach to traceability, including an them qualitatively.

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TABLE 1—COSTS AND BENEFITS [In 2018 dollars annualized over 10 years at 7 percent discount rate]

Option 1 Option 2

Total Costs ...... $411 million ...... $535 million. Total Benefits ...... $567 million in public health benefits for an estimated scenario of 84 percent $626 million in public health benefits for traceback time improvement. Additional potential benefits that we describe an estimated scenario of 84 percent qualitatively include increased food supply system efficiencies; more expe- traceback time improvement. Addi- dient initiation and completion of recalls; avoidance of costs due to unneces- tional potential benefits that we de- sary preventive actions; and other efficiencies from a standardized approach scribe qualitatively include increased to traceability. However, if retail food establishments with 10 or fewer full-time food supply system efficiencies; more equivalent employees are exempt from subpart S requirements, the timeli- expedient initiation and completion of ness, precision, and accuracy of traceability efforts can be impacted, and recalls; avoidance of costs due to un- qualitative benefits, such as the ability to narrow the number of lots in a recall necessary preventive actions; and and the ability for retail food establishments with 10 or fewer full-time equiva- other efficiencies from a standardized lent employees to have the data necessary to quickly identify and remove approach to traceability. contaminated products from shelves, will be lessened in comparison to Option 2.

II. Table of Abbreviations and pack, or hold foods that the Agency tracing helps government agencies Commonly Used Acronyms in This designates as high-risk to facilitate the identify the points in the food supply Document rapid and effective traceability of such chain, including the source of the foods. These recordkeeping product, where contamination may have Abbreviation or What it means requirements will be additional to the occurred and, working in partnership acronym food traceability requirements under with industry, subsequently remove the ASN ...... Advance shipping no- section 414 of the FD&C Act (added to food from the marketplace. It also helps tice. the FD&C Act in title III, subtitle A, those who sell food to notify those in BOL ...... Bill of lading. section 306, of the Public Health the distribution chain that they may CDC ...... Centers for Disease Security and Bioterrorism Preparedness have received the product. Efficient Control and Preven- and Response Act of 2002 (the traceability enables the government and tion. Bioterrorism Act) (Pub. L. 107–188)) and the food industry to take action more CSA ...... Community supported the implementing regulations in subpart quickly, thus preventing illnesses and agriculture. J of part 1 of title 21 of the Code of reducing economic harm. CTE ...... Critical tracking event. Federal Regulations (§§ 1.326 to 1.368) FDA ...... Food and Drug Admin- Traceability includes traceback and istration. (the subpart J regulations). Congress traceforward investigations. Traceback FD&C Act ...... Federal Food, Drug, directed FDA to adopt the subpart J begins at the end of the supply chain at and Cosmetic Act. recordkeeping requirements to allow the the point of purchase or point of service FSIS ...... Food Safety and In- Agency to identify the immediate (e.g., grocery stores and restaurants) and spection Service. previous sources and immediate follows the food product back through FSMA ...... FDA Food Safety Mod- subsequent recipients of foods the points of distribution, processing, ernization Act. (commonly referred to as ‘‘one-up, one- and production to determine the source FOIA ...... Freedom of Information back’’ recordkeeping) to address of the product and its ingredients. Act. credible threats of serious adverse GAP ...... Good agricultural prac- Traceforward follows the movement of tices. health consequences or death to humans a food in the opposite direction, from GPS ...... Global positioning sys- or animals. In section 204(d)(1) of the source (e.g., a farm or manufacturer) tem. FSMA, Congress directed FDA to adopt forward to the retail shelf, to determine KDE ...... Key data element. additional recordkeeping requirements the scope of a potential recall and the LACF ...... Low-acid canned foods. to prevent or mitigate foodborne illness impact of the contaminated product on OMB ...... Office of Management outbreaks and address credible threats the public health. and Budget. of serious adverse health consequences RAC ...... Raw agricultural com- Even before the enactment of FSMA, or death to humans or animals resulting FDA had been considering ways to modity. from foods being adulterated under USDA ...... U.S. Department of Ag- improve food product traceability and riculture. section 402 of the FD&C Act or increase the speed and accuracy of our misbranded with respect to allergen traceback and traceforward III. Background labeling under section 403(w) of the investigations. For example, in 2008 we FD&C Act. held two public meetings to discuss A. Introduction The proposed additional mechanisms to enhance product tracing On January 4, 2011, President Obama recordkeeping requirements, when systems for fresh produce and to signed the FDA Food Safety finalized, will help FDA follow the improve our ability to identify the Modernization Act (FSMA) (Pub. L. movement of listed food products and source of contamination associated with 111–353) into law. As a component of ingredients both backward and forward fresh produce-related outbreaks of FSMA’s overhaul of U.S. food safety law throughout the supply chain. foodborne illnesses (see 73 FR 55115, to better ensure the safety and security Documenting the movement of foods September 24, 2008). In the spring of of the nation’s food supply, section through the supply chain is called 2009, we engaged in a pilot project with 204(d) of FSMA requires that FDA product tracing or traceability. In the the Institute of Food Technologists (IFT) establish recordkeeping requirements case of a foodborne illness outbreak or to conduct a mock traceback scenario on for facilities that manufacture, process, evidence of contaminated food, product tomatoes with representatives of the

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industry, academia, States, and two one-up, one-back tracing required under challenging to resolve, such as those technology companies (Ref. 1). In the subpart J regulations, the complexity involving multiple foods and foods with December 2009, we conducted a public and level of implementation of tracing multiple ingredients. meeting, in collaboration with the systems that exceed those requirements The Agency has sometimes been United States Department of vary. From our traceback investigations unable to determine links between Agriculture’s (USDA’s) Food Safety and and discussions with food industry illnesses and specific product Inspection Service (FSIS), regarding companies and organizations, we distribution due to inconsistent, product tracing systems for human food recognize that many firms have unstandardized recordkeeping, lack of a and animal food (see 74 FR 56843, developed traceability procedures for deliberate method to connect records, November 3, 2009). internal use to help ensure the safety of and the frequent lack of lot tracing After FSMA was enacted, FDA sought their products and the security of their regarding distribution to specific retail public comment, scientific data, and supply chains. A smaller number of locations. The retail food establishment information in February 2014 to inform firms employ tracing systems that are is the first point in the supply chain our draft approach to identifying high- more robust and allow linking of where an investigation is initiated to risk foods (see 79 FR 6596, February 4, incoming and outgoing products collect traceback data to identify the 2014). Section 204(d)(2)(A) of FSMA throughout the supply chain, primarily source of a product. The more accurate requires FDA to designate high-risk through reference to applicable lot and detailed the data available on the foods for which the proposed additional codes in records documenting the product of interest at the retail food recordkeeping requirements are production, processing, and distribution establishment, the more refined record appropriate and necessary to protect the of the foods. The proposed collection can be throughout the public health. The high-risk food recordkeeping requirements, which go remainder of the supply chain. In 2018, designation must be based on the beyond subpart J, including by FDA investigated a cluster of illnesses following factors: mandating such linking information, caused by Cyclospora cayetanensis at • The known safety risks of a would reduce the harm to public health small restaurants. We were unable to particular food, including the history caused by foodborne illness outbreaks obtain enough information to identify and severity of foodborne illness and limit adverse impacts on industry specific farms/growers (from among outbreaks attributed to such food, taking sectors affected by these outbreaks. The several suppliers) as the source of the into consideration foodborne illness requirements would achieve this by products suspected of contamination data collected by the Centers for Disease improving the ability to (1) quickly and (e.g., basil, cilantro, vegetable trays) due Control and Prevention (CDC); efficiently trace the movement of listed to the restaurants’ lack of records • the likelihood that a particular food foods through the supply chain and (2) indicating lot numbers received and has a high potential risk for identify and remove contaminated food lack of linking to information microbiological or chemical from the marketplace during an throughout the supply chain. In the contamination or would support the outbreak. absence of more specific data at the growth of pathogenic microorganisms This proposed rule is intended to retail food establishment, we had to due to the nature of the food or the establish the framework of information conduct a broader record collection processes used to produce the food; needed to be maintained in traceability involving numerous suppliers to ensure • the point in the manufacturing records to accurately and efficiently that we had sufficient tracing process of the food where trace contaminated foods (both domestic information to accurately determine contamination is most likely to occur; and imported) across the U.S. food what lots likely would have been • the likelihood of contamination and supply chain to protect the health of all available for consumption or purchase steps taken during the manufacturing consumers. The rule would establish a at the establishments by the sickened process to reduce the possibility of consistent approach for product tracing persons. One benefit of the proposed contamination; for the different types of products and requirements is that they would allow • the likelihood that consuming a firms subject to this regulation. The rule us to conduct comparative analyses on particular food will result in a also specifies the data elements and supply chains of multiple commodities foodborne illness due to contamination information firms must establish and to rule in or out specific ingredients in of the food; and maintain, along with information they outbreaks in which ill persons have • the likely or known severity, must send, in certain circumstances, to reported concerns about mixed- including health and economic impacts, the next entity in the supply chain. The ingredient foods. of a foodborne illness attributed to a rule also would help establish a When a foodborne illness outbreak particular food. foundation for the use of consistent food occurs, a firm with an effective Section 204(d)(2)(B) of FSMA requires tracing terminology, a transition from traceability program can lessen the the Agency to publish the list of high- paper-based recordkeeping to electronic potential adverse economic impact of risk foods on our website when we issue records, and a universal understanding the event. This is possible when the the final rule establishing the additional of the critical information needed for a firm can quickly and precisely provide recordkeeping requirements for high- standardized and efficient system for specific traceability information on a risk foods. traceability. suspected product to regulatory Tracing a food back in the supply agencies. This information can enable B. Need for the Regulation chain from the point of sale or service the confirmation of common foods and Each day that a foodborne illness to a common source is important for ingredients associated with illnesses outbreak remains unresolved, the health identifying contaminated foods or and also help determine which foods of consumers remains at risk. We ingredients and removing those and ingredients can be potentially recognize that to fully realize the public products from the marketplace to eliminated from further consideration as health benefits envisioned by FSMA, we prevent additional illnesses. Tracing possible sources of contamination. As a need to improve our ability to rapidly foods forward can help FDA understand result, regulatory agencies can narrow identify and trace foods that may be how the distribution of a food product the scope of necessary recall actions, causing illness. While industry has relates to illnesses or illness clusters, public health alerts, and countrywide generally adopted the requirements for especially for outbreaks that are import alerts. Furthermore, being able to

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identify the source of a contaminated remained available in the marketplace. cyclosporiasis outbreaks (Ref. 9). There product quickly enables FDA to conduct This outbreak illustrates the challenges were numerous traceback challenges more timely root-cause analysis, which posed by ingredient-based outbreaks during all three of the investigations due could provide important information to and lack of standardized records to commingling of product, help in understanding how documenting a product’s distribution recordkeeping issues, and contamination may have occurred and chain. Manual review of a variety of inconsistencies in documented firm prevent future outbreaks. records was necessary to determine the names that hindered our ability to Lack of traceability has led to delays subsequent commercial recipients of the identify the suppliers of the in product recalls and notification to the peanut butter and the inclusion of the contaminated cilantro. Poor traceability public, allowing potentially peanut butter as an ingredient in other delayed us from taking product actions contaminated foods to remain on the food products. This time-consuming to ensure contaminated product was market longer. In 2017, the review resulted in a delay in the removed from the market and manufacturer of a soy nut butter product identification of the many products conducting environmental assessments recalled the product after it was found ultimately recalled in this outbreak (Ref. that could have identified routes of to be the source of a multistate outbreak 7). contamination to reduce future of Shiga toxin-producing Escherichia Poor traceability records also can lead illnesses. coli (E. coli) that sickened 32 people (81 to an inability to appropriately narrow Poor traceability can affect not only percent of whom were younger than 18) the scope of a recall. In 2018, a leafy outbreaks caused by infectious in 12 states (Refs. 2 to 4). Weeks later, greens mix was linked to an outbreak of pathogens but also illnesses associated another company announced a recall of Shiga toxin-producing E. coli. FDA with fish poisonings. For example, in its products because they were made identified numerous farms that could 2019, FDA investigated a cluster of 50 with soy nut butter supplied by the potentially have produced leafy greens illnesses that were attributed to original company (Ref. 5). Inadequate linked to the outbreak. Traceback data Scombrotoxin fish poisoning. In cases of traceability significantly impeded gathered during the investigation led to fish toxin poisonings, the illness onset product actions for potentially issuance of a public advisory to not can occur within minutes of consuming contaminated product associated with consume chopped romaine lettuce from fish products, making it even more vital this outbreak investigation. the identified growing region. However, to have specific tracing data available at Inadequate traceability can affect both lack of traceability records hindered our the point of sale. Because cases reported traceback and traceforward ability to identify specific lots and a variety of frozen tuna products due to investigations. In 2015, FDA, CDC, and growers of contaminated product. After inconsistent product descriptions, multiple states investigated a multistate the initial advisory was issued, we FDA’s traceback investigation traced all outbreak of Salmonella associated with identified an additional cluster of cuts of tuna supplied by two firms imported cucumbers that ultimately illnesses in people who consumed rather than narrowing the focus to one sickened 907 people (Ref. 6). While the whole-head romaine lettuce from the specific cut of tuna (Ref. 10). The traceback was able to identify a single same region. As a result, we expanded traceback investigation was unable to grower of the cucumbers resulting in the initial public advisory to include all confirm that the most recent shipments product recalls, the CDC reported romaine lettuce from the identified to the points of sale contained the actual additional sporadic cases of Salmonella growing region. Because we were unable product used to prepare meals reported 6 months after the recall. Having more to identify a point of origin for the food by the cases, due to the extended 2-year robust traceforward information could that made people ill, we were unable to shelf life of the frozen product and lack have helped ensure a more complete narrow the scope of the advisory but of recordkeeping for this product. recall by identifying more locations that instead had to expand it (Ref. 8). Additionally, the traceback received the contaminated product and Lack of specific lot-level tracing data investigation could not identify/ may have helped assess whether there can impact FDA’s ability to perform implicate lot codes at the point of sale were other contaminated products on root-cause analyses to determine the because at least two distributors reboxed the market subject to the same point of contamination once the product into different packaging, and conditions that led to contamination of source(s) is identified, which can lead to there was potential commingling of cucumbers. recurring outbreaks. For example, in product at least one point of sale. Given During an outbreak of Salmonella 2013, 2014, and 2015, the CDC and state the extended shelf life and lack of lot Typhimurium in 2008, almost 4,000 public health officials identified codes available at the point of sale, the peanut butter-containing products were annually recurring outbreaks of traceback investigation could not recalled over a period of three and a half Cyclospora cayetanensis infections in determine relevant lot codes for the months. Cases of illness were first seen the United States associated with fresh implicated products. Due to these in patients residing in a long-term care cilantro from the state of Puebla, traceability limitations, the Agency was facility and other institutional settings. Mexico. Although not confirmed by only able to place one of the importers Records at these locations identified a epidemiological means, FDA reviewed a of the contaminated tuna products on an common brand of peanut butter, which cluster of cyclosporiasis illnesses from import alert, and multiple recalls were led to a common manufacturer, and a 2012 in which the state of Texas had required to ensure that importers recall of the brand was initiated. But previously identified cilantro as one of removed all contaminated products. illnesses continued to be reported across multiple possible suspect vehicles. FDA Inconsistent product descriptions and the United States, and further case determined that cilantro from Puebla commingling of product can also affect interviews indicated that the illnesses was supplied to the point of service traceability efforts. In June 2017, FDA could not be explained by consumption implicated in that outbreak and was one investigated an outbreak of multiple of the recalled brand of peanut butter. potential source of the outbreak. After serotypes of Salmonella that caused 220 An extensive traceback and the outbreak investigation in 2015, FDA cases of illnesses associated with traceforward investigation led to implemented an import alert for contaminated papayas (Ref. 11). Tracing expanded recalls over several months, shipments of fresh cilantro from Puebla the contaminated papayas was delayed during which many potentially during April through August to align by inconsistent descriptions of the contaminated peanut butter products with the seasonality of previous papayas, making it difficult to link the

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product with the records. Ultimately, C. FDA’s Current Regulatory Framework When FDA faces challenges during a the traceback investigation was not able traceback investigation, it is often due to The subpart J traceability to implicate the shipments of the one or more of the above-listed gaps in recordkeeping requirements stemming contaminated papayas due to product the subpart J requirements. The from the 2002 Bioterrorism Act require commingling, resulting in an inability to exemptions for point-of-service firms firms to know and record the immediate differentiate suppliers of the papayas. (foodservice and retail) affect almost previous sources of their food products As these examples show, while some every investigation because consumer and ingredients and the immediate data often is used to initiate a traceback elements of internal product tracing subsequent recipients of the products event. During the investigation of an information are kept by many food they make and/or distribute. The outbreak of E. coli O26 in 2015 at a producers, manufacturers, distributors, regulations, which we adopted in a final restaurant, the available consumer data and retailers, the types of information rule issued in 2004 (see 69 FR 71562, could not identify a single ingredient for recorded and maintained, the format in December 9, 2004), specify information tracing because customers who became which information is kept, the length of that ‘‘non-transporters’’ of food (persons ill had consumed a variety of dishes time information is retained, and the who own food or who hold, with multiple common ingredients. This amount of information shared between manufacture, process, pack, import, problem was magnified by the lack of trading partners varies among firms. receive, or distribute food for purposes information linking the distribution These challenges are further other than transportation) must center to the point of sale. compounded when looking at the maintain regarding their receipt and In the last few years, numerous traceability of a product moving through release of food, with more limited outbreaks associated with leafy greens multiple entities in a supply chain. requirements for transporters of food. In have resulted in expansive recalls due Standardization of data elements is accordance with section 414(b) of the to, among other reasons, a lack of needed to help ensure successful FD&C Act, the subpart J regulations uniform data collection across the traceability throughout the supply exempt farms and restaurants from the supply chain. While our traceback chain. requirements. Also exempt are retail activities identified farms that could Recognizing the need for food establishments that employ ten or have supplied affected product during improvement in food traceability, when fewer full-time equivalent employees. the timeframe of interest for those Congress enacted FSMA in 2011 it Since implementation of the subpart J outbreaks, a lack of data about the included provisions, in section 204, regulations more than 10 years ago, FDA source of individual lots restricted our intended to enhance tracking and has learned that these one-up, one-back ability to identify which farms actually tracing of food. As noted, section 204(d) recordkeeping requirements do not supplied the contaminated product. of FSMA directed FDA to establish capture all the data elements necessary These limitations in the existing additional recordkeeping requirements to effectively and rapidly link tracing recordkeeping requirements for certain foods. Under section 204(a) shipments of food through each point in have been evident in FDA investigations of FSMA, Congress directed us to the supply chain. In many outbreak of foodborne illness outbreaks since the adoption of the subpart J requirements. establish pilot projects in coordination investigations, we typically request By including section 204 in FSMA, with the food industry to explore and additional information not explicitly Congress recognized the need for evaluate methods to rapidly and required to be maintained under subpart improvement of food tracking and effectively identify recipients of food to J to help us conduct traceback and tracing generally and traceability prevent or mitigate foodborne illness traceforward investigations. This additional information often is available recordkeeping requirements in outbreaks and address credible threats particular. In not excluding farms and of serious adverse health consequences because many firms maintain it for business (other than tracing) purposes. restaurants from the scope of the or death to humans or animals as a additional requirements for high-risk result of such food being adulterated or However, piecing together information from several types of documents to foods, Congress also recognized the misbranded. At FDA’s request, the IFT importance of ensuring traceability to conducted two product tracing pilots extract useful tracing data at each point in the supply chain is laborious and both ends of the supply chain. The (involving mock tracebacks and requirements of this proposed rule, traceforwards) of foods that had been time-consuming, significantly slowing the tracing process and potentially when finalized, will help ensure that implicated in foodborne illness the food industry maintains the outbreaks between 2005 and 2010, putting more consumers at risk. Among the most significant gaps in traceability information we have assessed the costs and benefits of determined is needed to enable us to efficient and effective methods for the subpart J recordkeeping requirements are the following: respond quickly and effectively to tracking the foods, and evaluated the foodborne illness outbreaks and recall • Lack of coverage of all sectors feasibility of such methodologies being events. adopted by different sectors of the food involved in food production, industry. In its 2012 final report to FDA distribution, and sale (e.g., exemptions D. History of the Rulemaking on the pilot studies, the IFT found that for farms and restaurants). On February 4, 2014, FDA issued a pilot participants appeared to have • Lack of uniform data collection notice in the Federal Register (79 FR many tools and procedures needed to (e.g., regarding the source of food 6596) announcing the opening of a capture and communicate key ingredients used in each lot of finished docket (FDA–2014–N–0053) to obtain traceability information at critical points product; the requirement to record a lot comments and scientific data and of product transfer and transformation. code or other identifier only ‘‘to the information to help us implement However, the IFT identified several extent this information exists’’ (see section 204(d)(2) of FSMA, which problems with current tracing systems, §§ 1.337(a)(4) and 1.345(a)(4)); and requires us to designate high-risk foods including inconsistencies in • Inability to link incoming with (2014 Notice). The 2014 Notice terminology and the production of outgoing product within a firm and from summarized our tentative draft information in formats that cannot be one point in the supply chain to the approach for the review and evaluation electronically manipulated (Ref. 12). next (Ref. 13). of data to designate high-risk foods. We

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included as a reference to the notice a information submitted, we developed a only for humans and cannot draft approach document in which we draft risk-ranking model and collected accommodate applicability to other described the process and methodology data to populate the model for chemical animal species. A principal reason for we were considering using to designate and microbiological hazards associated this is that one of the criteria used in the high-risk foods. We invited interested with specific foods, with technical risk model is illness data. While human parties to submit comments, scientific assistance from external expert panels. illnesses related to food are tracked by data, and information that would help We conducted an extensive internal the CDC, there is no Federal agency us refine the draft approach to review of the draft model and data with with the authority or capability to track identifying these foods. In addition to Agency subject-matter experts. Two foodborne illness outbreaks in animals. requesting comment and information separate peer-review panels of Although FDA and state animal food related to the draft approach to high-risk independent external experts reviewed regulatory programs have begun efforts food designation, we sought information the draft model and the data used to to collect data on animal food-related on the following: generate risk scores with the model. illnesses, there are no requirements for • Scientific data and methods that Taking into consideration comments reporting such illnesses, which has led can be used to assess the public health from these peer reviews (Refs. 14 and to significant gaps in the data. 15), we revised the model and updated impact of acute or chronic exposures to Although animal foods are not pathogens and chemical contaminants the data. As discussed more fully in FDA’s included in FDA’s risk-ranking model, in food; and we may revisit the issue of animal foods • For representative foods in each ‘‘Methodological Approach to when we conduct any future food category or commodity group, a list Developing a Risk-Ranking Model for reassessments of the model. We of pathogens and chemical Food Tracing FSMA Section 204 (21 welcome comments on whether and contaminants likely to be found in the U.S.C. 2223)’’ (Ref. 16), which is how we should consider incorporating food, the percentage prevalence of available in the public docket for this animal foods or animal food-related contaminants in the food, the levels of rulemaking and on our website, the risk- illness into this or a separate model. contaminants in the food, the point in ranking model uses a semiquantitative, the manufacturing process where multicriteria decision analysis risk- Using the results of the risk-ranking contaminants are likely to be ranking approach. The approach is model, we tentatively identified foods introduced, and the typical steps and consistent with the factors set forth in for which additional traceability records control measures taken in the section 204(d)(2) of FSMA and is will be required in accordance with manufacturing process to reduce the operationalized with data relevant to section 204 of FSMA (see ‘‘Designation possibility of contamination of the food those factors, enabling the Agency to of the Food Traceability List Using the with the pathogen or chemical rank, on the basis of public health risk Risk-Ranking Model for Food Tracing’’ contaminant (79 FR 6596 at 6597). criteria, commodity-hazard pairs and, (Ref. 17). Based on that analysis, and in ultimately, foods we regulate. accordance with section 204(d)(2) of 1. Risk-Ranking Model and Food Although section 204(d) of FSMA FSMA, following is the tentative list of Traceability List does not exclude food for animals, we foods for which additional traceability FDA received many comments in have not included animal foods in our records would be required under the response to the 2014 Notice. Taking into risk-ranking model. The current risk- proposed rule (the Food Traceability consideration the comments and other ranking model was designed to account List) (Ref. 18):

TABLE 2—TENTATIVE FOOD TRACEABILITY LIST

Food traceability list Description

Cheeses, other than hard Includes all soft ripened or semi-soft cheeses, and fresh soft cheeses that are made with pasteurized or cheeses. unpasteurized milk. Shell eggs ...... Shell egg means the egg of the domesticated chicken. Nut butter ...... Includes all types of tree nut and peanut butters; does not include soy or seed butters. Cucumbers ...... Includes all varieties of cucumbers. Herbs (fresh) ...... Includes all types of herbs, such as parsley, cilantro, basil. Leafy greens, including Includes all types of leafy greens, such as lettuce, (e.g., iceberg, leaf and Romaine lettuces), kale, chicory, water- fresh-cut leafy greens. cress, chard, arugula, spinach, pak choi, sorrel, collards, and endive. Melons ...... Includes all types of melons, such as cantaloupe, honeydew, and watermelon. Peppers ...... Includes all varieties of peppers. Sprouts ...... Includes all varieties of sprouts. Tomatoes ...... Includes all varieties of tomatoes. Tropical tree fruits ...... Includes all types of tropical tree fruit, such as mango, papaya, mamey, guava, lychee, jackfruit, and starfruit. Fruits and Vegetables (fresh- Includes all types of fresh-cut fruits and vegetables. cut). Finfish, including smoked Includes all finfish species, such as cod, haddock, Alaska pollack, tuna, mahi mahi, mackerel, grouper, barra- finfish. cuda, and salmon; except does not include siluriformes fish, such as catfish. Crustaceans ...... Includes all crustacean species, such as shrimp, crab, lobster, and crayfish. Mollusks, bivalves ...... Includes all species of bivalve mollusks, such as oysters, clams, and mussels; does not include scallop adductor muscle. Ready-to-eat deli salads ...... Includes all types of ready-to-eat deli salads, such as egg salad, potato salad, pasta salad, and seafood salad; does not include meat salads.

We note that, as discussed in section recordkeeping requirements would appearing on the Food Traceability List V.A, the proposed traceability apply not only to foods specifically

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but also to foods that contain foods on recognizing the benefits both to their affected sectors of the food industry. In the list as ingredients. businesses and to public health of addition, maintaining records in A proposed Food Traceability List, adopting such an approach to product accordance with the proposed including descriptions of the foods on tracing recordkeeping (Ref. 20). requirements would help ensure that a the list (referred to in this document as However, the KDEs/CTEs the food firm is well-prepared if a food the firm ‘‘listed foods’’), is available in the public industry uses are not consistently produces or distributes is added to the docket for this rulemaking and on FDA’s implemented across supply chains. Food Traceability List as a result of a website. In accordance with section Further, many firms have not adopted future reassessment of the list. 204(d)(2)(B) of FSMA, when we issue updated traceability approaches and are Of particular importance to an the final rule, we will publish a awaiting further agreement on standard effective food traceability system under finalized Food Traceability List on our KDEs and CTEs to be used throughout the proposed rule is the use of lot codes website. That list might differ from the the food industry. in documenting CTEs. Tracebacks are list we are publishing with this As discussed in more detail in section most efficient when point-of-service proposed rule. We also note that, as V.E, the proposed rule adopts an entities can provide investigators with discussed in section V.K, we anticipate approach to recordkeeping for foods on as much information as possible about periodically conducting a review to the Food Traceability List focused on the origination of the food. If a point-of- determine whether it is appropriate to maintaining and sharing specific KDEs service entity can provide lot codes and revise the Food Traceability List in for certain CTEs in a food’s supply other relevant information for suspect accordance with the procedures set chain, which aligns with consensus foods, including the originating farm or forth in the proposed rule. standards for traceability currently used firm, FDA investigators can more by industry. The information required to quickly identify the potential common 2. Proposed Recordkeeping be kept would vary depending on the source of an outbreak and take Requirements for Foods on the Food type of supply chain activity, such as regulatory action. Tracing the lot Traceability List the growing, receiving, transforming, information associated with suspect To help us develop appropriate creating, and shipping of listed foods. products can narrow the scope of an traceability recordkeeping requirements We believe that the proposed rule will investigation, provide FDA with under section 204(d) of FSMA, we have align the tracing information for foods information to quickly go directly to the met with stakeholders and reviewed the on the Food Traceability List with our person that created the lot, and limit current state of food traceability need to quickly and effectively respond further illnesses by enabling more rapid standards, systems, and technologies. to foodborne illness outbreaks and other removal of contaminated food from the We considered a broad range of contamination events associated with marketplace. Lot code information can domestic and international tracing these foods. also allow investigators to more quickly standards and approaches, including determine which products are outside E. Improving Traceability for All Foods those of the IFT, the business global the scope of the investigation, reducing standards organization GS1, the Produce Ideally, a robust traceability system the likelihood of unnecessary category- Traceability Initiative, the International would provide for traceability of all wide recalls. Standards Organization, the Global foods, not just foods on the Food Although the proposed rule does not Food Safety Initiative, and others. We Traceability List. Regardless of the type require the use of electronic records and researched standards and systems for of food that is the subject of a foodborne electronic communications for traceability in effect in several regions illness outbreak investigation, sufficient traceability (except to aid FDA’s review and countries, including the European traceability information is needed to of records during investigations of Union, Canada, Australia, Japan, and identify the source of an outbreak, foodborne illness outbreaks), we China. We also discussed traceability expedite the removal of contaminated encourage all segments of the food approaches and concerns with food food from the marketplace, and prevent industry to incorporate electronic industry and consumer groups (Ref. 19). additional consumer exposures. recordkeeping and communication In addition, we have taken into account Although section 204 of FSMA limits procedures into their traceability our experiences and challenges in recordkeeping requirements to foods on programs. Keeping records of KDEs in conducting investigations in response to the Food Traceability List, the types of electronic, rather than paper, form and outbreaks of foodborne illness and recall records required to be maintained under sharing tracing information events. the proposed rule could be used by electronically with others in the supply From our traceback investigations and entities in the supply chains of all foods chain can greatly facilitate the analysis discussions with food industry to improve traceability. of information during investigations companies and organizations, we The tracing information required to be into foodborne illness outbreaks and recognize that most firms have kept under the proposed rule is speed the completion of traceback and developed and use some traceability consistent with information FDA traceforward operations. Sharing of procedures. For those firms that have typically requests during an outbreak standard KDEs electronically allows all traceability processes, it appears that an investigation, regardless of the food entities in the supply chain access to increasingly common approach to commodity. Firms that maintain records reliable information on the traceability traceability involves the identification containing this information can help of a product. of CTEs for which KDEs are recorded FDA more quickly trace the movement Further, while this proposed rule and maintained. One of the IFT’s of products through the supply chain, would not require retail establishments recommendations in its 2012 final identify the source of contamination, to maintain KDEs for consumer report was that FDA require firms to and reduce harm to consumers posed by purchases, we support efforts by identify and maintain records of CTEs tainted food. By facilitating faster and retailers to identify and provide and KDEs as determined by the Agency more accurate identification of anonymized consumer purchase data for (Ref. 12). While not all firms at all contaminated foods, the availability of outbreak investigations. Presently, we points in the supply chain employ KDE/ such records can help narrow the scope rely on date ranges to identify CTE-specific tracing tools and of an outbreak investigation and limit potentially contaminated products procedures, those that do are the adverse impact of an outbreak on purchased by consumers. Access to

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traceability lot codes and product regulations for the efficient enforcement creating the additional recordkeeping identifiers at the consumer level would of the FD&C Act; and requirements that are mandated by further enhance our ability to focus on • sections 311, 361, and 368 of the section 204(d)(1). These include the specific products purchased and narrow Public Health Service Act (PHS Act) (42 following: the scope of implicated shipments. U.S.C. 243, 264, and 271), which relate • The requirement that these To realize the full benefits of end-to- to communicable disease, including by proposed regulations not require the end traceability, although the proposed providing FDA with authority to make creation and maintenance of duplicate rule applies only to foods on the Food and enforce such regulations as in records where the information is Traceability List, we encourage all firms FDA’s judgment are necessary to contained in other company records involved in food production, prevent the introduction, transmission, kept in the normal course of business distribution, and sale to consumers to or spread of communicable diseases (section 204(d)(1)(E)), which is adopt the recordkeeping practices set from foreign countries into the States or addressed in proposed § 1.1455(e); forth in the proposed rule for all the possessions, or from one State or • the requirement that persons foods they manufacture, process, pack, possession into any other State or subject to these regulations be allowed and hold. Consistent with FDA’s ‘‘New possession (see section 361(a) of the to maintain the required records at a Era of Smarter Food Safety’’ initiative PHS Act). central or reasonably accessible location (Ref. 21), we will pursue ways to help A. Designation of High-Risk Foods provided that such records can be made all supply chain entities adopt practices available to FDA not later than 24 hours and technologies that will promote Section 204(d)(2) of FSMA directs after we request them (section rapid and effective tracking and tracing FDA to designate high-risk foods for 204(d)(1)(H)), which is addressed in of foods to prevent or mitigate which the additional recordkeeping proposed § 1.1455(b)(2); foodborne illness outbreaks. The New requirements promulgated under the • the requirement to include a Era of Smarter Food Safety is FDA’s authority of FSMA section 204(d)(1) are process by which FDA may issue a FSMA-based, technology-enabled, appropriate and necessary to protect the waiver of the recordkeeping strategic initiative for modernizing food public health. Each such designation is requirements if we determine that such safety. Comments provided during and to be based on the factors enumerated in requirements would result in an after the October 29, 2019, public section 204(d)(2)(A), which are listed in economic hardship for an individual meeting on the New Era initiative section III.A of this document. facility or a type of facility (section indicated a strong desire for FDA to To assist with the fulfillment of this 204(d)(1)(I)), which is addressed in specify required CTEs and KDEs to requirement, we developed a semi- proposed §§ 1.1405 through 1.1450; and enable interoperability of tracing quantitative risk-ranking model that • the requirement to include a procedures among all stakeholders. The utilizes multiple data sources to score process by which FDA may remove a proposed rule defines the minimum commodity-hazard pairs according to a high-risk food designation developed CTEs and KDEs necessary for achieving set of criteria that address the factors set under section 204(d)(2) for a food or the goal of improving food safety and out in section 204(d)(2)(A) of FSMA. type of food (section 204(d)(1)(M)), will provide the food industry with the This model is explained in greater detail which is addressed in proposed framework and language for in Reference 16 of this document. Foods § 1.1465. communicating tracing information were included on the list of foods FDA Furthermore, section 204(d)(5) of throughout the supply chain. has tentatively designated as high-risk FSMA provides that FDA may require (the ‘‘Food Traceability List’’) based on that a facility retain records for not more IV. Legal Authority the strength of the criteria scores that than 2 years, taking into consideration Under section 204(d) of FSMA, in the model produced (Ref. 16). the risk of spoilage, loss of value, or loss order to rapidly and effectively identify FSMA section 204(d)(2)(B) provides of palatability of the applicable food recipients of a food to prevent or that the list of foods designated under when determining the appropriate mitigate a foodborne illness outbreak section 204(d)(2)(A) (i.e., the Food timeframes; this is addressed in and to address credible threats of Traceability List) shall be published on proposed § 1.1455(c). serious adverse health consequences or FDA’s website at the time of publication Section 204(d)(6) of FSMA places a death to humans or animals as a result of the final rule that creates the number of limitations on the of such food being adulterated under recordkeeping requirements described requirements that FDA can impose, section 402 of the FD&C Act or in section 204(d)(1). Proposed § 1.1300 including limitations relating to the misbranded under section 403(w) of the would provide for such publication. following: FD&C Act, FDA is required to issue FSMA section 204(d)(2)(B) further states • Farm to school or farm to regulations to establish recordkeeping that FDA may update the list to institution programs (section requirements, in addition to the designate new foods or to remove foods 204(d)(6)(A)), which are addressed in requirements under section 414 of the that are no longer deemed necessary for proposed § 1.1305(i); FD&C Act and the subpart J regulations inclusion, provided that each such • identity-preserved labels with (or any successor regulations), for update to the list is consistent with the respect to farm sales of food that is facilities that manufacture, process, requirements of FSMA section 204(d) produced and packaged on a farm pack, or hold foods that FDA designates and provided that notice of the update (section 204(d)(6)(B)), which are under section 204(d)(2) of FSMA as is published in the Federal Register. addressed in proposed § 1.1305(c); high-risk foods. The procedures for updating the list that • fishing vessels (section We are proposing these regulations are set forth in proposed § 1.1465 would 204(d)(6)(C)), which are addressed in under the following authorities: address this requirement. proposed § 1.1305(j); • Section 204 of FSMA, the specific • commingled raw agricultural provisions of which are discussed in the B. Additional Recordkeeping commodities (RACs) (section remainder of this section; Requirements 204(d)(6)(D)), which are addressed in • section 701(a) of the FD&C Act (21 Section 204(d)(1)(A)–(M) of FSMA proposed § 1.1305(e); and U.S.C. 371(a)), which provides FDA provides both general and specific • the sale of a food directly from the with the authority to promulgate guidelines that FDA must follow in farm that produced it to a grocery store

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or consumer (sections 204(d)(6)(G)–(I)), proposed requirements related to the 1 of the FDA regulations, we refer to the which are addressed in proposed establishment of traceability lot codes proposed requirements as ‘‘the subpart § 1.1305(h) and (b), respectively. (proposed § 1.1320); proposed S regulations.’’ In addition, section 204(d)(6)(E) of requirements for those who grow, A. Scope/Applicability (Proposed FSMA states the conditions under receive, transform, create, or ship foods § 1.1300) which FDA may modify the additional on the Food Traceability List (proposed recordkeeping requirements or exempt a §§ 1.1325 through 1.1350); proposed Proposed § 1.1300 answers the food or type of facility from those special requirements related to the question, ‘‘Who is subject to this requirements. This process is addressed application of a kill step (proposed subpart?’’ Proposed § 1.1300 would in proposed §§ 1.1360 through 1.1400. § 1.1355); and proposed requirements provide that, except as specified Section 204(d)(6)(F) of FSMA sets forth relating to records maintenance and otherwise in subpart S, the proposed limited requirements for a person or availability (proposed § 1.1455). These regulations would apply to persons who food who receives such a modification proposed requirements would address manufacture, process, pack, or hold or exemption, as well as limited Congress’s directive to create additional foods that appear on the list of foods for requirements for any person or food to recordkeeping requirements for foods of which additional traceability records are which a limitation or exemption applies the Food Traceability List. required in accordance with section under the provisions relating to fishing • proposed requirements for when a 204(d)(2) of FSMA (the ‘‘Food vessels and commingled RACs. These traceability lot code must be established Traceability List’’). Proposed § 1.1300 limited requirements are included in the and when it cannot be established also states that we will publish the Food proposed provisions that would (proposed §§ 1.1320 and 1.1330(c)), Traceability List on our website in implement FSMA sections 204(d)(6)(C) which would help ensure that this key accordance with section 204(d)(2)(B) of through (E). data element serves its intended FSMA. In addition to the limitations function with respect to traceability, as Although section 204(d)(1) of FSMA prescribed by Congress, we have discussed in sections V.D.1 to V.D.2. refers to ‘‘facilities’’ that manufacture, • identified certain persons or foods that proposed requirements for those process, pack, or hold food, we propose we have tentatively concluded should who ship a food on the Food that the rule would apply to ‘‘persons’’ not be covered by the rule. These Traceability List to send records that manufacture, process, pack, or hold include the following: containing certain information to the food to avoid possible confusion with • Certain small originators of food, as immediate subsequent recipient (other other uses of the term ‘‘facilities’’ in described in proposed § 1.1305(a); than a transporter) of the food (proposed other FDA food regulations. For • foods that receive certain types of § 1.1350(b)), which would help ensure example, regulations such as those on processing, as described in proposed that the recipient of the food has the preventive controls for human food (21 § 1.1305(d); information they would be required to CFR part 117), preventive controls for • produce that is rarely consumed maintain under the proposed rule. animal food (21 CFR part 507), and raw, as described in proposed • proposed requirements related to foreign supplier verification programs § 1.1305(e); record availability (proposed (21 CFR part 1, subpart L) define • transporters of food, as described in § 1.1455(b)), which would help ensure ‘‘facility’’ in part as a domestic or proposed § 1.1305(k); that FDA has access to the required foreign entity that is required to register • nonprofit food establishments, as records in the event of an outbreak or with FDA under section 415 of the described in proposed § 1.1305(l); other threat to the public health, and FD&C Act (21 U.S.C. 350d). It is clear • persons who manufacture, process, which would also assist FDA in that Congress intended that these pack, or hold food for personal ensuring compliance with these proposed recordkeeping requirements consumption, as described in proposed regulations and in identifying any would apply to some persons that are § 1.1305(m); and violations. not required to register with FDA, such • certain persons who hold food on The definitions we are proposing in as grocery stores (see section behalf of individual consumers, as proposed § 1.1310 would provide a 204(d)(6)(G) of FSMA), which do not described in proposed § 1.1305(n). common terminology, which would have to register with FDA under section In addition, we are proposing (in help all parties as they implement the 415 of the FD&C Act due to the § 1.1305(h)) to extend section proposed recordkeeping requirements. exemption for retail food establishments 204(d)(6)(G) of FSMA’s partial The consequences of a failure to comply in § 1.226(c). Consequently, we propose exemption for grocery stores (with with the recordkeeping requirements that these regulations apply to respect to food they purchase directly established under section 204 of FSMA ‘‘persons’’ who manufacture, process, from a farm) to all retail food were set forth by Congress in section pack, or hold food, rather than establishments. 204(j)(1) and (2), which amended ‘‘facilities,’’ to avoid possible confusion To effectuate and efficiently enforce sections 301(e) and 801(a) of the FD&C with other uses of the term ‘‘facility.’’ section 204 of FSMA, we are proposing Act (21 U.S.C. 331(e) and 381(a)), The term ‘‘person,’’ as defined in several requirements for entities that are respectively. These consequences are section 201(e) of the FD&C Act (21 covered by the proposed rule. In reiterated in proposed § 1.1460. U.S.C. 321(e)) and proposed § 1.1310, accordance with FSMA section includes an individual, partnership, 204(d)(1), proposed § 1.1300 provides V. Description of the Proposed Rule corporation, and association. that, except as specified otherwise, We are proposing to establish In accordance with section 204(d)(1) these requirements would apply to additional traceability recordkeeping of FSMA, the proposed recordkeeping persons who manufacture, process, requirements for persons who requirements would apply to persons pack, or hold foods on the Food manufacture, process, pack, or hold that ‘‘manufacture, process, pack, or Traceability List. The proposed foods we have designated as requiring hold’’ foods on the Food Traceability requirements are as follows: additional traceability records under List. We note that this differs from the • Proposed requirements to establish section 204(d) of FSMA. Because we scope of section 414(b) of the FD&C Act and maintain certain traceability propose to establish these new and the subpart J requirements, which program records (proposed § 1.1315); requirements in a new subpart S to part apply to persons (excluding farms and

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restaurants) who manufacture, process, the foods specifically listed and foods with the regulations on shell egg pack, transport, distribute, receive, hold, that contain foods on the list as production, storage, and transportation or import food. Unlike section 414 of ingredients. We use the term in this way (see 21 CFR 118.1(a) (§ 118.1(a))) and the FD&C Act, section 204 of FSMA for the remainder of this preamble. other FDA food safety regulations (e.g., does not explicitly apply to persons foreign supplier verification program B. Exemptions (Proposed § 1.1305) who transport, distribute, receive, or regulations (see 21 CFR 1.512(a)(2)(iii))). Proposed § 1.1305 answers the import food. However, with respect to c. Certain Other Originators of Food importation, section 204(j)(2) of FSMA question, ‘‘What foods and persons are (codified in section 801(a)(4) of the exempt from this subpart?’’ We propose Proposed § 1.1305(a)(3) would FD&C Act) authorizes FDA to refuse to create exemptions from the provide that subpart S would not apply admission to foods for which the traceability recordkeeping requirements to originators of food with an average recordkeeping requirements under in proposed subpart S for certain types annual monetary value of food sold section 204 of FSMA have not been of food and certain types of persons who during the previous 3-year period of no complied with. As discussed more fully manufacture, process, pack, or hold more than $25,000 (on a rolling basis), in section V.C., we believe that many, foods on the Food Traceability List. adjusted for inflation using 2019 as the but not all, persons who transport, Some of the proposed exemptions are baseline year for calculating the distribute, receive, or import food also specified in section 204 of FSMA, while adjustment. This exemption would ‘‘hold’’ food, as we propose to define others reflect our thinking that applying apply to, for example, small aquaculture holding. the proposed requirements to certain farms and small farms that grow non- produce foods that may be on the Food We propose that the additional persons or foods is not appropriate at Traceability List in the future. recordkeeping requirements in subpart this time for the reasons discussed later S would apply not only to persons who in this document. 2. Exemption for Farms Regarding Food manufacture, process, pack, or hold 1. Exemption for Certain Types of Small Sold Directly to Consumers (Proposed foods specified on the Food Traceability Originators (Proposed § 1.1305(a)) § 1.1305(b)) List, but also to persons who On our own initiative, we propose to Consistent with section 204(d)(6)(H) manufacture, process, pack, or hold exempt from the proposed traceability and (I) of FSMA, we propose to exempt foods that contain foods on that list as recordkeeping requirements certain farms from the proposed traceability ingredients. We identified foods on the types of small or very small farms and recordkeeping requirements with Food Traceability List based on the other originators of food (i.e., persons respect to food produced on the farm factors that Congress provided in who grow, raise, or catch food or who (including food that is also packaged on section 204(d)(2) of FSMA. The harvest a non-produce commodity). the farm) when the owner, operator, or potential risk associated with these These firms include very small produce agent in charge of the farm sells the food foods are not diminished when the farms, small producers of shell eggs, and directly to a consumer (proposed foods are used as ingredients in other other small originators of food. Given § 1.1305(b)). This means that if the food products (absent application of a the relatively low volume of food owner, operator, or agent in charge of a kill step). However, it would be produced by these entities, and the fact farm sells food that is produced (or both unwieldy and impractical for the Food that subsequent parties in the supply produced and packaged) on the farm Traceability List to specify every food chain will be required to maintain directly to a consumer, the farm would product of this sort, i.e., food products records regarding the food produced by not be subject to the proposed subpart whose risk derives from their having a these entities, covering these small S requirements with respect to that food listed food as an ingredient. originators would produce little (e.g., recordkeeping requirements Nonetheless, foods that contain foods on measurable public health benefit. applicable to food growers). These the Food Traceability List as ingredients direct-to-consumer sales by farms would a. Farms That Have No More Than would be considered part of the list, as include applicable sales at farmers’ $25,000 in Annual Sales of Produce stated in the definition of the list in markets, roadside stands, over the proposed § 1.1310. If the proposed Proposed § 1.1305(a)(1) would internet, and through community- recordkeeping requirements did not provide that subpart S would not apply supported agriculture programs. apply to foods containing an ingredient to farms or the farm activities of farm that is on the Food Traceability List, it mixed-type facilities with respect to the 3. Inapplicability to Certain Food would be much more difficult for the produce (as defined in 21 CFR 112.3 Produced and Packaged on a Farm Agency to quickly identify and remove (§ 112.3) in the produce safety (Proposed § 1.1305(c)) common lots of such an ingredient regulations) (21 CFR part 112) they In addition to the farm-related when investigating a foodborne illness grow, when the farm is not a covered exemptions in proposed § 1.1305(a) and outbreak believed to be linked to the farm under the produce safety (b), proposed § 1.1305(c) would provide, ingredient. A multi-ingredient food that regulations in accordance with consistent with section 204(d)(6)(B) of contains a food on the Food Traceability § 112.4(a). The farms addressed in FSMA, that the proposed traceability List as an ingredient (e.g., a pre-made § 112.4(a) have no more than $25,000 in recordkeeping requirements would not sandwich containing leafy greens) may annual sales of produce. apply to food produced and packaged be a signal triggering an outbreak on a farm, provided that: investigation that ultimately leads to b. Certain Producers of Shell Eggs • The packaging of the food remains identification of the contaminated Proposed § 1.1305(a)(2) would in place until the food reaches the ingredient. For these reasons, the provide that subpart S would not apply consumer, and such packaging proposed recordkeeping requirements to shell egg producers with fewer than maintains the integrity of the product would apply not only to specifically 3,000 laying hens at a particular farm, and prevents subsequent contamination listed foods but also to foods that with respect to the shell eggs produced or alteration of the product (proposed contain listed foods as ingredients. In at that farm. This designation of small § 1.1305(c)(1)); and proposed § 1.1310, we propose to define shell egg producers as those with fewer • the labeling of the food that reaches ‘‘Food Traceability List’’ to include both than 3,000 laying hens is consistent the consumer includes the name,

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complete address (street address, town, discarded by consumers, resulting in 5. Exemption for Produce That Is Rarely State, country, and zip or other postal loss of information identifying the farm. Consumed Raw (Proposed § 1.1305(e)) code for a domestic farm and We recommend that retail food On our own initiative, we propose to comparable information for a foreign establishments maintain records on the exempt from the proposed traceability farm), and business phone number of receipt of the produce including the recordkeeping requirements produce the farm on which the food was date of receipt and the name, complete that is listed as ‘‘rarely consumed raw’’ produced and packaged (proposed address (street address, town, State, in § 112.2(a)(1) in the produce safety § 1.1305(c)(2)). country, and zip or other postal code), regulations. We believe that because of In accordance with section and business phone number of the farm the lesser risk to public health posed by 204(d)(6)(B) of FSMA, upon request we on which the food was produced and this produce (as reflected in its being would waive the requirement for the packaged. farm to include a business phone exempt from the produce safety number, as appropriate, to 4. Inapplicability to Foods That Receive regulations), it is not necessary to apply accommodate a religious belief of the Certain Types of Processing (Proposed the additional recordkeeping individual in charge of the farm § 1.1305(d)) requirements to these foods. (proposed § 1.1305(c)(2)). On our own initiative, we propose to 6. Partial Exemption of Commingled Examples of foods that might be exempt from the proposed traceability Raw Agricultural Commodities exempt under proposed § 1.1305(c), recordkeeping requirements produce (Proposed § 1.1305(f)) provided the specified packaging and and shell eggs that receive certain types labeling requirements were met, include of processing. Under proposed Proposed § 1.1305(f)(1) would provide the following: § 1.1305(d)(1), subpart S would not that, except as specified in proposed • Iceberg whole head lettuce that is apply to produce that receives § 1.1305(f)(2), subpart S would not harvested and packaged for the commercial processing that adequately apply to commingled RACs, in consumer in the field with individual reduces the presence of microorganisms accordance with section 204(d)(6)(D) of non-vented cellophane wrapping that of public health significance, provided FSMA. Consistent with section maintains the integrity of the lettuce the conditions set forth in § 112.2(b) in 204(d)(6)(D) of FSMA, we propose to and prevents subsequent contamination the produce safety regulations are met define ‘‘commingled raw agricultural or alteration; and for the produce. We believe that because commodity’’ for the purposes of this • English cucumbers individually of the lesser risk to public health posed exemption as any commodity that is wrapped for the consumer by a farm in by this produce (as reflected in its being combined or mixed after harvesting but sealed plastic that maintains the exempt from almost all of the before processing, except that the term integrity of the cucumbers and prevents requirements of the produce safety ‘‘commingled raw agricultural subsequent contamination or alteration. regulations), it is not necessary to apply commodity’’ would not include types of However, produce packed or the additional recordkeeping fruits and vegetables that are RACs to packaged in containers such as requirements to this food. This which the standards for the growing, clamshells with holes, cardboard boxes, proposed exemption would apply to all harvesting, packing, and holding of vented crates, plastic bags with holes, or persons who manufacture, process, produce for human consumption in part netted bags would not be eligible for pack, or hold such produce, not just the 112 apply (proposed § 1.305(e)(1)). As a this exemption from the subpart S farms that grow it. This means that no result, the proposed exemption would requirements because such packaging persons handling produce that receives not apply to produce subject to the does not necessarily maintain the the commercial processing exemption in produce safety regulations. product’s integrity and prevent accordance with § 112.2(b) would be For the purpose of the definition of subsequent contamination and required to keep subpart S records for ‘‘commingled raw agricultural alteration. the produce. commodity,’’ a commodity would be We note that, consistent with section Similarly, subpart S would not apply regarded as ‘‘combined or mixed . . . 204(d)(6)(B) of FSMA, the exemption in to shell eggs when all the eggs produced before processing’’ only when the proposed § 1.1305(c) would only apply at a particular farm receive a treatment combination or mixing involves food if, among other things, the labeling of (as defined in 21 CFR 118.3 (§ 118.3)) in from different farms (proposed the food that reaches the consumer accordance with § 118.1(a)(2). Section § 1.1305(f)(1)). We believe this includes the farm’s complete address, 118.3 of the shell egg regulations (21 clarification is appropriate because most including the street address, town, CFR part 118) defines ‘‘treatment’’ as a of the traceability challenges associated State, country, and zip or other postal technology or process that achieves at with commingling of food from different code for a domestic farm and least a 5-log destruction of Salmonella farms are less present (or entirely comparable information for a foreign Enteritidis for shell eggs, or the absent) when food from different parts farm. However, we recognize that not all processing of egg products in of a single farm is commingled. farms have a street address. In the event accordance with the Egg Products In keeping with section that a farm without a street address Inspection Act. Under § 118.1(a)(2), if 204(d)(6)(D)(ii)(III) of FSMA, the term wanted to rely on this proposed all shell eggs produced at a particular ‘‘processing’’ as used in the definition of exemption for certain food produced farm receive a treatment, the producer commingled RAC would mean and packaged on that farm, the farm must comply only with the refrigeration operations that alter the general state of could substitute its geographical requirements in § 118.4(e) for the commodity, such as canning, coordinates for a traditional street production of eggs on that farm and cooking, freezing, dehydration, milling, address in the labeling of the food that with the registration requirements in grinding, pasteurization, or reaches the consumer. § 118.11. We believe that the lesser risk homogenization (proposed While the statute requires this to public health posed by shell eggs that § 1.1305(f)(1)). exemption, we encourage retail food have received this treatment in An example of a RAC that would be establishments to keep records on foods accordance with § 118.1(a)(2) makes it exempt from the proposed traceability covered under the exemption as a best unnecessary to apply the subpart S recordkeeping requirements when they practice because packaging is often requirements to these eggs. are commingled is shell eggs. For the

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purposes of this rule, we would with the retention requirement for other when investigating a foodborne illness consider commingled shell eggs to be records maintained in accordance with outbreak. There would likely be eggs from separate farms under different subpart S. We discuss the proposed significant delays in obtaining pertinent company management that are retention requirements for subpart S tracing data due to the variability of physically mixed before packing. records in more detail in section V.H.3. information maintained by these small Packed eggs that are from a single farm establishments. The need to rely on the 7. Exemption or Partial Exemption for or from separate farms under the same supplier of these small establishments Small Retail Food Establishments management would not be considered for the tracing data that would be (Proposed § 1.1305(g)) commingled shell eggs. Shell eggs are required under this rule would likely the only commingled RAC (as defined On our own initiative, we are co- result in at least a 24- to 48-hour delay in proposed § 1.1305(f)(1)) on the proposing either a full exemption or a in the traceback. In addition, small retail current proposed Food Traceability List. partial exemption from the proposed food establishments can make a Although the limited exemption for subpart S requirements for retail food particularly important contribution to commingled RACs in § 1.1305(f) applies establishments that employ 10 or fewer tracebacks by serving to narrow the to commingled shell eggs, we full-time equivalent employees. Such scope of products implicated during an nevertheless encourage shell egg retail food establishments are exempt investigation. Key data elements, such producers to keep records on the from the subpart J requirements under as lot codes, are not required at the commingling of eggs as a transformation § 1.327(f), except that they are subject to consumer level, requiring traceback event to help ensure that we are able to §§ 1.361 and 1.363, which relate to investigations to implicate all lot codes determine the source of contaminated record availability. Although we are available for purchase on a given eggs in a foodborne illness outbreak or considering adopting a full exemption purchase date identified by the recall event. from the proposed subpart S consumer. Retail food establishments, Notwithstanding this proposed recordkeeping requirements for small especially larger ones, often receive the exemption from the subpart S retail food establishments, we also are same product from multiple requirements for commingled RACs, considering whether a more limited distributors, which makes it difficult to and in accordance with section exemption for these firms would be narrow the suppliers of interest in an 204(d)(6)(D) and (F) of FSMA, proposed appropriate. Therefore, in proposed investigation. On the other hand, small § 1.1305(f)(2) would specify that, with § 1.1305(g), we are co-proposing two establishments often receive product respect to a commingled RAC that options for full or partial exemption for from limited sources, which can make receives the exemption in proposed small retail food establishments, as them particularly valuable during an § 1.1305(f)(1), if a person manufactures, discussed in the following paragraphs. outbreak in narrowing the suppliers of processes, packs, or holds a commingled a. Option 1: Full Exemption for Small interest and focusing the traceback RAC and is required to register with Retail Food Establishments investigation. The inability to narrow FDA under section 415 of the FD&C Act the suppliers of interest and focus the in accordance with 21 CFR part 1, Option 1 of the co-proposal would information relevant to the potential subpart H (subpart H), such person must specify that subpart S does not apply to source of contamination not only maintain records identifying the retail food establishments that employ prolongs a traceback effort but might immediate previous source of such food 10 or fewer full-time equivalent also result in conducting a broader and the immediate subsequent recipient employees. Option 1 would further state recall than would otherwise be of such food in accordance with the that the number of full-time equivalent necessary had the firms maintained subpart J traceability requirements in employees is based on the number of records required under subpart S (Ref. §§ 1.337 and 1.345 (which apply to the such employees at each retail food 22). receipt and release of foods by establishment and not the entire nontransporters of food). Thus, although business, which may own numerous b. Option 2: Partial Exemption for Small certain commingled RACs (as defined in retail stores. Because these smaller retail Retail Food Establishments proposed § 1.1305(f)(1)) generally would food establishments might handle a Option 2 for proposed § 1.1305(g) be exempt from the proposed rule, lesser volume of food than larger would specify that the requirement in persons who manufacture, process, establishments, it is possible that proposed § 1.1455(b)(3) to make pack, or hold these RACs who are requiring the smaller establishments to available to FDA under specified required to register with FDA as a food comply with subpart S would impose circumstances an electronic sortable facility would have to comply with the costs that would outweigh the benefits spreadsheet containing the information existing food traceability recordkeeping of such compliance. In addition, required to be maintained under this requirements in §§ 1.337 and 1.345. because many of the foods sold at small subpart (for the foods and date ranges While we recognize that many firms are retail food establishments are nationally specified in FDA’s request) does not already required to comply with distributed and are also sold at larger apply to retail food establishments that §§ 1.337 and 1.345 because they are retail food establishments, we may be employ 10 or fewer full-time equivalent subject to the subpart J recordkeeping able to obtain relevant information employees. (The above-stated text requirements, this provision creates an about the source of a foodborne illness regarding determination of the number independent obligation to comply with outbreak from a larger establishment of full-time equivalent employees also these provisions with respect to foods that sold the same food using the same would be included.) As discussed in on the Food Traceability List, including distributor. section V.I.2, we propose to require that, for firms that are not subject to subpart On the other hand, because these when necessary to help FDA prevent or J. smaller firms might also be more likely mitigate a foodborne illness outbreak, or Proposed § 1.1305(f)(2) would further to have less robust traceability records to assist in the implementation of a specify that such records identifying and procedures, fully exempting these recall, or to otherwise address a threat immediate previous sources and firms from the proposed recordkeeping to the public health, persons subject to immediate subsequent recipients of requirements would make it more the subpart S requirements must make these commingled RACs would have to difficult for FDA to obtain needed available, within 24 hours of request by be maintained for 2 years, consistent tracing information from these firms an authorized FDA representative, an

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electronic sortable spreadsheet proposed § 1.1305(h)(2). Under to the school or institution. Under containing the information in the proposed § 1.1305(h)(2), when a retail proposed § 1.1305(i)(2), when a school records they are required to maintain food establishment purchases a food on or institution conducting farm to school under subpart S, for the foods and date the Food Traceability List directly from or farm to institution activities ranges specified in the request. We the owner, operator, or agent in charge purchases a food on the Food believe that having access to a firm’s of a farm, the retail food establishment Traceability List directly from a farm, required traceability information in would be required to establish and the school food authority or relevant such electronic form would help us maintain a record documenting the food procurement entity must establish more quickly identify the source of name and address of the farm that was and maintain a record documenting the potentially contaminated food on the the source of the food. Consistent with name and address of the farm that was Food Traceability List and remove the section 204(d)(6)(G) of FSMA, retail the source of the food. Proposed food from the marketplace. food establishments would be required § 1.1305(i)(2) specifies that the school Nevertheless, we recognize that smaller to maintain these farm identification food authority or relevant food firms might be less likely to have the records for 180 days. procurement entity must maintain the resources to readily produce their Although section 204(d)(6)(G) of records identifying the farm for 180 traceability information in such a FSMA specifies that this limited tracing days, the same retention period that we format. Exempting small retail food requirement to document the farm that propose for records maintained under establishments from this requirement was the source of the food applies to the partial exemption for retail food could reduce their burden of complying grocery stores, we propose to broaden establishments in proposed § 1.1305(g). with the subpart S requirements, while the application of this partial exemption 10. Partial Exemption for Fishing still providing us with access to relevant to include all retail food establishments Vessels (Proposed § 1.1305(j)) and specific tracing information when purchasing food directly from farms. We investigating foodborne illness believe it is appropriate to apply this In accordance with section outbreaks involving listed foods partial exemption to all retail food 204(d)(6)(C) of FSMA, we propose to received by such establishments. establishments because we think there adopt a partial exemption from the We request comment on whether we is no meaningful or easy way to proposed traceability recordkeeping should adopt Option 1 of the co- distinguish grocery stores from other requirements for fishing vessels. proposal for § 1.1305(g), which would retail food establishments such as Proposed § 1.1305(j)(1) would provide fully exempt small retail food convenience stores and vending that, except as specified in proposed establishments from subpart S, or machine locations. § 1.1305(j)(2), with respect to a food Option 2, which would exempt these produced through the use of a fishing 9. Partial Exemption for Farm to School firms from the requirement to provide to vessel, subpart S would not apply to the and Farm to Institution Programs FDA, under certain circumstances, an owner, operator, or agent in charge of (Proposed § 1.1305(i)) electronic sortable spreadsheet the fishing vessel. In accordance with containing required traceability Having consulted with the USDA in section 204(d)(6)(C) of FSMA, ‘‘fishing information. Of course, you may also accordance with section 204(d)(6)(A) of vessel’’ would be defined (in proposed comment on whether any full or partial FSMA, we believe it is appropriate to § 1.1310) as that term is defined in exemption for small retail food establish, in proposed § 1.1305(i), a section 3(18) of the Magnuson-Stevens establishments from the proposed partial exemption from the subpart S Fishery Conservation and Management traceability recordkeeping requirements requirements for farm to school and Act (16 U.S.C. 1802(18)), i.e., as any is appropriate. We also request farm to institution programs operated vessel, boat, ship, or other craft which comment on whether having 10 or fewer under the auspices of the USDA, State is used for, equipped to be used for, or full-time equivalent employees is an agencies, or local jurisdictions to avoid of a type which is normally used for: (1) appropriate size limit for a ‘‘small’’ placing undue burdens on these Fishing or (2) aiding or assisting one or retail food establishment under these programs. Farm to school programs more vessels at sea in the performance proposed options and, if not, what an include, but are not limited to, programs of any activity relating to fishing, appropriate limit would be. in which farms sell food such as fruits, including, but not limited to, vegetables, eggs, beans, and meat to: (1) preparation, supply, storage, 8. Partial Exemption for Retail Food Schools under competitive refrigeration, transportation, or Establishments (Proposed § 1.1305(h)) procurement; (2) competitively processing. Under this partial In addition to the proposed full or procured food distributors; and (3) exemption, activities of fishing vessels partial exemption for small retail food Child Nutrition Programs, including the such as harvesting, transporting, establishments in proposed § 1.1305(g), USDA DoD Fresh Fruit and Vegetable heading, eviscerating, and freezing fish in accordance with section 204(d)(6)(G) Program, that provide USDA-purchased would generally not be subject to the of FSMA, we propose to adopt a partial domestic agricultural products (USDA proposed recordkeeping requirements. exemption from the subpart S Foods). Proposed § 1.1305(i)(1) would Under this exemption, the owner, requirements for all retail food provide that, except as specified in operator, or agent in charge of a fishing establishments when they receive foods § 1.1305(i)(2), the subpart S vessel also would not have to keep on the Food Traceability List directly requirements would not apply to an tracing records on the sale and shipment from a farm. Proposed § 1.1305(h)(1) institution operating a child nutrition of food produced through the use of the would provide that subpart S would not program authorized under the Richard vessel, except as provided in proposed apply to a retail food establishment with B. Russell National School Lunch Act or § 1.1305(j)(2) (discussed in the following respect to foods on the Food Section 4 of the Child Nutrition Act of paragraph). Section 204(d)(6)(C) of Traceability List that are produced on a 1966, or any other entity conducting a FSMA somewhat ambiguously states farm (including foods produced and farm to school or farm to institution that the section 204(d) requirements packaged on the farm) and sold directly program, with respect to a food on the applicable to fishing vessels would be to the retail food establishment by the Food Traceability List that is produced limited to certain requirements for owner, operator, or agent in charge of on a farm (including food produced and vessels that are required to register with that farm, except as specified in packaged on the farm) and sold directly FDA (set forth in proposed

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§ 1.1305(j)(2)) ‘‘until such time as the course of business or, when applicable, purchase of the food they hold and are food is sold by the owner, operator, or in accordance with the subpart J not in the business of distributing food agent in charge of such fishing vessel.’’ regulations. (see 69 FR 71562 at 71570 to 71571). Although the phrase ‘‘until such time’’ 12. Exemption for Nonprofit Food C. Definitions (Proposed § 1.1310) could be interpreted as meaning that the Establishments (Proposed § 1.1305(l)) owner, operator, or agent in charge of Proposed § 1.1310 sets forth the the fishing vessel could be subject to Proposed § 1.1305(l) would provide meaning of several terms we propose to requirements relating to the sale of the that subpart S would not apply to use in the regulations on additional relevant food, we believe it is nonprofit food establishments, traceability recordkeeping. Some of the appropriate to exempt the owner, consistent with their exclusion from the definitions are self-explanatory or are operator, or agent in charge of the subpart J regulations (see § 1.327(l)). We being used for consistency with the fishing vessel from all requirements propose to define a nonprofit food existing traceability recordkeeping relating to the relevant food (except as establishment as in subpart J (§ 1.328), requirements in subpart J and/or other specified in proposed § 1.1305(j)(2)). i.e., as a charitable entity that prepares food safety regulations. In the following In accordance with section or serves food directly to the consumer paragraphs we discuss definitions of 204(d)(6)(C) and (F) of FSMA, proposed or otherwise provides food or meals for terms used in the proposed rule. § 1.1305(j)(2) would specify that if the consumption by humans or animals in owner, operator, or agent in charge of the United States (proposed § 1.1310). 1. Category the fishing vessel who receives the The term would include central food We propose to define ‘‘category’’ as a exemption in proposed § 1.1305(j)(1) is banks, soup kitchens, and nonprofit code or term used to classify a food required to register with FDA under food delivery services. In addition, to be product in accordance with a section 415 of the FD&C Act with considered a nonprofit food recognized industry or regulatory respect to the manufacturing, establishment, the establishment must classification scheme, or a classification processing, packing, or holding of the meet the terms of section 501(c)(3) of scheme a person develops for their own applicable food, in accordance with the U.S. Internal Revenue Code (26 use. Examples of industry or regulatory subpart H, that person would be U.S.C. 501(c)(3)). classification schemes include the GS1 required to maintain records identifying 13. Exemption for Persons Who Global Product Classification standard, the immediate previous source of such Manufacture, Process, Pack, or Hold the United Nations Standard Products food and the immediate subsequent Food for Personal Consumption and Services Code, the Food and recipient of such food in accordance (Proposed § 1.1305(m)) Agriculture Organization of the United with §§ 1.337 and 1.345. This means Nations 3-Alpha Seafood Species Code, that fishing vessels that must register Proposed § 1.1305(m) would provide and the European Union Common with FDA because they process fish on that subpart S would not apply to Procurement Vocabulary. Rather than the vessel would be required to comply persons who manufacture, process, use a recognized product classification with the existing subpart J traceability pack, or hold food for personal scheme, a firm might choose to develop recordkeeping requirements in §§ 1.337 consumption. Such persons are its own classification scheme to meet its and 1.345, even though many such excluded from the subpart J unique product, customer, or other fishing vessels are currently exempt requirements under § 1.327(m). As business needs. from those requirements under discussed in the preamble to the final § 1.327(c). Affected fishing vessels rule adopting the subpart J requirements 2. Cooling would be required to maintain such (69 FR 71562 at 71579), whether a food We propose to define ‘‘cooling’’ as records for 2 years (proposed is for personal consumption depends on active temperature reduction of a food § 1.1305(j)(2)), the retention period for many factors, but we would consider using hydrocooling, icing, forced air subpart S records specified in proposed food prepared in a private home and cooling, vacuum cooling, or a similar § 1.1460(c) (see section V.H.3). transported for other than business process, either before or after packing. purposes (e.g., to a ‘‘pot luck’’ dinner We discuss proposed recordkeeping 11. Exemption for Transporters with friends) to qualify for this (Proposed § 1.1305(k)) requirements related to the cooling of exemption. listed foods beginning in section V.E.2. On our own initiative, we propose to exempt transporters of food from the 14. Exemption for Persons Who Hold 3. Creating Food for Individual Consumers proposed traceability recordkeeping We propose to define ‘‘creating’’ as (Proposed § 1.1305(n)) requirements (proposed § 1.1305(k)). We making or producing a food on the Food propose to define a ‘‘transporter’’ as a Proposed § 1.1305(n) would provide Traceability List (e.g., through person who has possession, custody, or that subpart S would not apply to manufacturing or processing) using only control of an article of food for the sole persons who hold food on behalf of ingredient(s) that are not on the Food purpose of transporting the food, specific individual consumers, provided Traceability List. The definition further whether by road, rail, water, or air that such persons: (1) Are not parties to states that creating does not include (proposed § 1.1310). We believe that the transaction involving the food they originating or transforming a food. We transporters should be exempt from the hold and (2) are not in the business of discuss proposed recordkeeping proposed rule because we find that in distributing food. This would mirror the requirements related to the creation of most of our investigations of potential exemption for such persons from the listed foods in sections V.D and V.E.4. foodborne illness outbreaks, it is not subpart J requirements (see § 1.327(n)). necessary to inspect records maintained This exemption would cover persons 4. Critical Tracking Event by food transporters because we such as a hotel concierge, reception We propose to define ‘‘critical generally are able to obtain the tracing desk staff in an apartment building, and tracking event’’ as an event in the information we need from other persons staff at an office complex who receive supply chain of a food involving the in the food’s supply chain. If necessary, and store a food on the Food growing, receiving (including receipt by we could review records maintained by Traceability List on behalf of the a first receiver), transforming, creating, transporters of the food in the usual consumer but are not parties to the or shipping of the food. We discuss

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proposed recordkeeping requirements 3(18) of the Magnuson-Stevens Fishery we want to make clear that we consider for particular critical tracking events in Conservation and Management Act. these activities to be harvesting. We section V.E. propose not to include ‘‘cooling’’ as an 8. Food Traceability List example of harvesting activities under 5. Farm We propose to define the ‘‘Food subpart S, even though it is included in The proposed rule would define Traceability List’’ as the list of foods for the subpart J definition, because for ‘‘farm’’ as it is defined in § 1.328 of the which additional traceability records are traceability purposes we wish to subpart J traceability regulations (and required to be maintained, as designated distinguish cooling from harvesting. other FDA food safety regulations). The in accordance with section 204(d)(2) of definition further states that, for FSMA. The definition further states that 11. Holding producers of shell eggs, ‘‘farm’’ means the term ‘‘Food Traceability List’’ We propose to define ‘‘holding’’ as all poultry houses and grounds includes both the foods specifically storage of food, and to also include immediately surrounding the poultry listed and foods that contain specifically activities performed incidental to houses covered under a single listed foods as ingredients. storage of a food (e.g., activities biosecurity program (matching the performed for the safe or effective 9. Growing Area Coordinates definition of farm under § 118.3 in the storage of that food, such as fumigating shell egg production regulations). We propose to define ‘‘growing area food during storage, and drying/ coordinates’’ as the geographical dehydrating raw agricultural 6. First Receiver coordinates (under the global commodities when the drying/ We propose to define ‘‘first receiver’’ positioning system (GPS) or latitude/ dehydrating does not create a distinct as the first person (other than a farm) longitude) for the entry point of the commodity (such as drying/dehydrating who purchases and takes physical physical location where the food was hay or alfalfa)). Holding would also possession of a food on the Food grown and harvested. We discuss the include activities performed as a Traceability List that has been grown, importance for traceability of requiring practical necessity for the distribution of raised, caught, or (in the case of a non- growers of food to maintain information that food (such as blending of the same produce commodity) harvested. A first on the growing area coordinates for the raw agricultural commodity and receiver of a food might be a food in section V.E.1. breaking down pallets) but would not manufacturer/processor, distributor, or 10. Harvesting include activities that transform a raw other non-farm entity who receives a agricultural commodity into a processed food that has been originated. As We propose to define ‘‘harvesting’’ as food as defined in section 201(gg) of the discussed in section V.E.2, we believe it it is defined in the subpart J regulations FD&C Act. The proposed definition is appropriate to require first receivers and other FDA food safety regulations, specifies that holding facilities include of listed foods to maintain records with some minor differences. Thus, warehouses, cold storage facilities, containing information about the ‘‘harvesting’’ applies to farms and farm storage silos, grain elevators, and liquid production of the foods (including mixed-type facilities and means storage tanks. information on the harvesting, cooling, activities that are traditionally We believe that persons who do not and packing of the foods, if applicable) performed on farms for the purpose of physically possess food are not engaged and, for first receivers of seafood, removing raw agricultural commodities in holding of food within the meaning information related to the harvest date from the place they were grown or of the proposed rule. This means, for range and locations for the trip during raised and preparing them for use as example, that a person who coordinates which the seafood was caught. food. Harvesting is limited to activities the import of a listed food but never However, an entity that receives a performed on raw agricultural takes physical possession of the food listed food after it has been created (e.g., commodities, or on processed foods would not be subject to the rule, while the first purchaser of a nut butter created by drying/dehydrating a raw a person who imports a listed food they product) would not be a first receiver agricultural commodity without physically possess would be subject to under the proposed rule. It would not be additional manufacturing/processing, the rule unless an exemption applied. appropriate to require the first on a farm. Harvesting does not include For example, some firms buy food purchaser of a created food to establish activities that transform a raw produced in foreign countries, arrange and maintain the first receiver KDEs agricultural commodity into a processed for the importation of the food into the because those KDEs focus on on-farm food as defined in section 201(gg) of the United States, and sell the food to other practices and other originating events, FD&C Act. Examples of harvesting U.S. firms without ever taking physical while created foods have already include cutting (or otherwise separating) possession of the food; such firms undergone some form of manufacturing the edible portion of the raw would not be subject to the rule. or processing. agricultural commodity from the crop Similarly, food brokers who negotiate plant and removing or trimming part of sales of food from producers to 7. Fishing Vessel the raw agricultural commodity (e.g., wholesalers, retail stores, and others but We propose to define ‘‘fishing vessel’’ foliage, husks, roots, or stems). never physically possess the food would as any vessel, boat, ship, or other craft Examples of harvesting also include not be subject to the rule. which is used for, equipped to be used collecting eggs, taking of fish and other We are aware that such importers and for, or of a type which is normally used seafood in aquaculture operations, brokers often maintain tracing for: (a) Fishing; or (b) aiding or assisting milking, field coring, filtering, information on the food, while some one or more vessels at sea in the gathering, hulling, shelling, sifting, firms that would be subject to the rule performance of any activity relating to threshing, trimming of outer leaves of, because they hold food (such as fishing, including, but not limited to, and washing raw agricultural distributors) might not currently preparation, supply, storage, commodities grown on a farm. Although maintain tracing information. For refrigeration, transportation, or egg collection and taking of fish and example, a cold storage facility that processing. In accordance with section other seafood in aquaculture operations receives imported produce might not 204(d)(6)(C) of FSMA, this matches the are not included among the examples of keep tracing records on such produce definition of ‘‘fishing vessel’’ in section harvesting in the definition in subpart J, because the importer of record, broker,

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or other firm has the relevant third parties to maintain their Food Traceability List that are subjected information on the produce. As traceability records on their behalf to a kill step in section V.F. discussed in section V.D.1, we propose (although the establishment would 14. Location Description to allow persons subject to the proposed remain responsible for ensuring the rule to designate an individual or firm subpart S requirements are met for the We propose to define ‘‘location who will establish and maintain tracing foods the firm holds). description’’ as a complete physical records on behalf of the person, address and other key contact 12. Key Data Element although the person subject to the rule information, specifically the business would remain responsible for meeting We proposed to define ‘‘key data name, physical location name, primary the subpart S requirements. This would element’’ as information associated with phone number, physical location street enable firms who hold imported foods a CTE for which a record must be address (or geographical coordinates), to enter into agreements with importers established and maintained in city, state, and zip code for domestic of record, brokers, and others to keep accordance with subpart S. We discuss facilities and comparable information required tracing records for the foods on proposed requirements for records for foreign facilities, including country; their behalf. containing KDEs associated with CTEs except that for fishing vessels, ‘‘location We also recognize that the in section V.E. description’’ would mean the name of headquarters for retail food the fishing vessel that caught the 13. Kill Step establishments typically provide seafood, the country in which the centralized information technology We propose to define ‘‘kill step’’ as fishing vessel’s license (if any) was resources for their stores, distribution processing that significantly minimizes issued, and a point of contact for the centers, and, in most cases, franchisee pathogens in a food. Examples of kill fishing vessel. locations. For example, even though a steps include cooking, pasteurization, Location descriptions are typically firm’s headquarters location may not heat treatment, high-pressure stored in business systems used for hold food, the firm may decide that processing, and irradiation, as long as purchasing, manufacturing, and selling headquarters will maintain the records those processes are conducted in a goods and services. Table 3 provides an for each of the firm’s retail food manner that significantly minimizes example of the data attributes in a establishment locations. In addition, pathogens in the food. We discuss location description for a food retail food establishments may designate proposed requirements for foods on the processor.

TABLE 3—EXAMPLE OF DATA ATTRIBUTES FOR LOCATION DESCRIPTION

KDE Data attributes Example

Location Description ...... Business name ...... Fin-to-Tail Processing Co. Physical location name ...... Facility #345. primary phone number ...... 222.222.2222. Physical location street address ...... 456 Blue Water Way. City ...... Sarasota. State ...... FL. ZIP code ...... 98765.

15. Location Identifier manufacturing, and selling goods and to simplify business transactions. We propose to define ‘‘location services. Persons subject to the proposed rule identifier’’ as a unique identification Along with location descriptions, could meet their requirements to keep code that an entity assigns to the firms could keep all the location records on different location physical location name identified in the identifiers for their suppliers, descriptions and identifiers (e.g., for corresponding location description; customers, and other supply chain firms from which they receive foods and except that for fishing vessels, ‘‘location partners in an electronic master file. firms to which they ship food) in identifier’’ would mean the vessel Many firms maintain ‘‘master data’’ electronic master data files. Table 4 identification number or license number containing information on products, illustrates how a firm might maintain (both if available) for the fishing vessel. companies, and locations, as well as relevant information identifying the Location identifiers are typically stored other key commercial information. locations of its supply chain partners with location descriptions in business Trading partners often share certain using location identifier and location systems used for purchasing, master data information with each other description KDEs. TABLE 4—EXAMPLE OF LOCATION MASTER DATA LISTING

Location description Location identifier Physical Location Business Name Name Primary Phone Street City State Zip code

ALPHA–01 ...... Alpha Eggs ...... Bldg. 3 ...... 999.999.9999 101 Birch ...... Springfield ...... MO ...... 111111 GG–CA–01 ...... Gary Greens ...... Field 21 ...... 888.888.8888 818 Elm ...... Salinas ...... CA ...... 222222 GG–AZ–02 ...... Gary Greens ...... Cooler #1 ...... 777.777.7777 789 Maple ...... Yuma ...... AZ ...... 333333

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16. Lot prepares or serves food directly to the 25. Point of Contact We propose to define ‘‘lot’’ as the food consumer or otherwise provides food or We propose to define ‘‘point of produced during a period of time at a meals for consumption by humans or contact’’ as an individual having single physical location and identified animals in the United States. The term familiarity with an entity’s procedures by a specific code, noting that a lot may would include central food banks, soup for traceability, including their name, also be referred to as a ‘‘batch’’ or kitchens, and nonprofit food delivery telephone number, and, if available, ‘‘production run.’’ While each firm services. To be considered a nonprofit their email address and fax number. As determines the size or quantity of a lot, food establishment, the establishment discussed, beginning in section V.E.2, we recommend that lots consist of would be required to meet the terms of the proposed rule would require certain product produced under uniform section 501(c)(3) of the U.S. Internal first receivers, receivers, and shippers of conditions, be as small as possible, and Revenue Code. listed foods to maintain information on generally not exceed 24 hours of 20. Originating points of contact for certain entities in production. Limiting the size of a lot a food’s supply chain. allows for more precise traceability of a We propose to define ‘‘originating’’ as product and helps narrow the scope of an event in a food’s supply chain 26. Produce potentially recalled product. involving the growing, raising, or We propose to define ‘‘produce’’ to catching of a food (typically on a farm, mean produce as defined in § 112.3 in 17. Manufacturing/Processing a ranch, or at sea), or the harvesting of the produce safety regulations. We propose to define a non-produce commodity. Section ‘‘manufacturing/processing’’ as it is V.E.2 discusses a proposed requirement 27. Receiving defined in subpart J and other FDA food that the first receiver of a listed food We propose to define ‘‘receiving’’ as safety regulations, i.e., making food keep information on the originator of an event in a food’s supply chain in from one or more ingredients, or the food, such as a farm. which a food is received by a customer (other than a consumer) at a defined synthesizing, preparing, treating, 21. Originator modifying, or manipulating food, location after being transported (e.g., by including food crops or ingredients. The We propose to define ‘‘originator’’ as truck or ship) from another defined definition further provides that a person who grows, raises, or catches location. We discuss the traceability examples of manufacturing/processing a food, or harvests a non-produce records we propose to require for receipt activities include the following: baking, commodity. of foods on the Food Traceability List in boiling, bottling, canning, cooking, 22. Packing section V.E.3. cooling, cutting, distilling, drying/ 28. Reference Record dehydrating raw agricultural We propose to define ‘‘packing’’ as it commodities to create a distinct is defined in subpart J and other food We propose to define ‘‘reference commodity (such as drying/dehydrating safety regulations, i.e., placing food into record’’ as a record used to identify an grapes to produce raisins), evaporating, a container other than packaging the event in the supply chain of a food, eviscerating, extracting juice, food. ‘‘Packing’’ also includes re- such as a shipping, receiving, growing, formulating, freezing, grinding, packing and activities performed creating, or transformation event. The homogenizing, irradiating, labeling, incidental to packing or re-packing a proposed definition states that types of milling, mixing, packaging (including food (e.g., activities performed for the reference records include, but are not modified atmosphere packaging), safe or effective packing or re-packing of limited to, bills of lading (BOL), pasteurizing, peeling, rendering, treating that food (such as sorting, culling, purchase orders, advance shipping to manipulate ripening, trimming, grading, and weighing or conveying notices (ASNs), work orders, invoices, washing, or waxing. The definition also incidental to packing or re-packing)), batch logs, production logs, and states that for farms and farm mixed- but would not include activities that receipts. We discuss the use of reference type facilities, manufacturing/ transform a raw agricultural commodity records in product tracing beginning in processing does not include activities (as defined in section 201(r) of the FD&C section V.D.1. that are part of harvesting, packing, or Act) into a processed food as defined in 29. Reference Record Number holding. section 201(gg) of the FD&C Act. We propose to define ‘‘reference 23. Person 18. Mixed-Type Facility record number’’ as the identification We propose to define ‘‘mixed-type We propose to define ‘‘person’’ as number assigned to a reference record, facility’’ as it is defined in subpart J, i.e., including an individual, partnership, such as a purchase order number, bill of an establishment that engages in both corporation, and association. This lading number, or work order number. activities that are exempt from matches the definition of ‘‘person’’ in 30. Retail Food Establishment registration under section 415 of the section 201(e) of the FD&C Act. We propose to define ‘‘retail food FD&C Act and activities that require the 24. Physical Location Name establishment to be registered. The establishment’’ as it is defined in the proposed definition further states that We propose to define ‘‘physical food facility registration regulations an example of a mixed-type facility is a location name’’ as the word(s) used to (§ 1.227)), i.e., as an establishment that farm mixed-type facility, which is an identify the specific physical site of a sells food products directly to establishment that is a farm but also business entity where a particular CTE consumers as its primary function. The conducts activities outside the farm occurs. Examples could be ‘‘Packing definition further specifies the definition that require the establishment Shed 2,’’ ‘‘Store #7228,’’ or ‘‘Warehouse following: to be registered. A.’’ The definition further states that a • The term ‘‘retail food physical location name might be the establishment’’ includes facilities that 19. Nonprofit Food Establishment same as an entity’s business name if the manufacture, process, pack, or hold We propose to define ‘‘nonprofit food entity has only one physical location. food if the establishment’s primary establishment’’ as it is defined in Tables 3 and 4 provide additional function is to sell from that subpart J, i.e., a charitable entity that examples of physical location names. establishment food, including food that

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it manufactures, processes, packs, or respect to sale of food directly to in business systems and printed in holds, directly to consumers; consumers from an establishment human readable and machine-readable • a retail food establishment’s located on a farm. format on food product packaging. We primary function is to sell food directly Although not specified in this discuss the generation and use of to consumers if the annual monetary definition of ‘‘retail food traceability lot codes in product tracing value of sales of food products directly establishment,’’ we regard restaurants, in section V.D.1. to consumers exceeds the annual online food retailers, and meal kit 34. Traceability Lot Code Generator monetary value of sales of food products delivery companies as other examples of to all other buyers; such establishments. We propose to define ‘‘traceability lot • the term ‘‘consumers’’ in the 31. Shipping code generator’’ to mean the person who definition does not include businesses; assigns a traceability lot code to a and We propose to define ‘‘shipping’’ as product. • an event in a food’s supply chain in retail food establishments include, 35. Traceability Product Description but are not limited to, grocery stores, which a food is arranged for transport convenient stores, and vending machine (e.g., by truck or ship) from a defined We propose to define ‘‘traceability locations. location to another defined location at a product description’’ to mean a different farm, a first receiver, or a The definition of ‘‘retail food description of a food product typically subsequent receiver. This would mean establishment’’ also includes certain used commercially for purchasing, that, for example, shipping would not farm-operated businesses selling food stocking, or selling, and includes the include arranging for transport of a food directly to consumers as their primary category code or term, category name, between different locations of a single function. The definition further and trade description. As with farm. The definition further specifies specifies that the sale of food directly to traceability lot codes, traceability that shipping does not include the sale consumers from an establishment product descriptions are typically stored or shipment of a food directly to a located on a farm includes sales by that in business systems and printed in consumer or the donation of surplus establishment directly to consumers in human readable format on food product food. the following circumstances: packaging. As with the subpart J regulations, the • The definition of ‘‘traceability product At a roadside stand (a stand proposed traceability recordkeeping description’’ further states that for situated on the side of or near a road or requirements would not apply to the single-ingredient products, the trade thoroughfare at which a farmer sells sale of food to consumers by retail food description includes the brand name, food from his or her farm directly to establishments, such as grocery stores, commodity, variety, packaging size, and consumers) or farmers’ market (a convenience stores, and restaurants. We packaging style; for multiple-ingredient location where one or more local have tentatively concluded that to food products, the trade description farmers assemble to sell food from their require retail facilities to keep records of includes the brand name, product name, farms directly to consumers); each individual recipient consumer • packaging size, and packaging style. through a community supported would be too burdensome and not agriculture program. Community necessary to address credible threats of The same term might be used for supported agriculture (CSA) program serious adverse health consequences or different components of the traceability means a program under which a farmer death to humans or animals. However, product description of a food. For or group of farmers grows food for a we acknowledge that some retail food example, ‘‘cucumber’’ may be used as group of shareholders (or subscribers) establishments are able to use their both the category and the commodity. who pledge to buy a portion of the consumer loyalty cards to provide 36. Traceability Product Identifier farmer’s crop(s) for that season. This consumer-level data (see 68 FR 25188 at includes CSA programs in which a 25192, May 9, 2003). We discuss the We propose to define ‘‘traceability group of farmers consolidate their crops traceability records we propose to product identifier’’ as a unique at a central location for distribution to require for shipment of foods on the identification code (such as an shareholders or subscribers; and Food Traceability List in section V.E.5. alphanumeric code) that an entity • at other such direct-to-consumer assigns to designate a specific type of sales platforms, including door-to-door 32. Traceability Lot food product. As with traceability lot sales; mail, catalog and internet order, We propose to define ‘‘traceability codes and traceability product including online farmers’ markets and lot’’ as a lot of food that has been descriptions, traceability product online grocery delivery; religious or originated, transformed, or created. identifiers are typically stored in other organization bazaars; and State business systems and printed in human and local fairs. 33. Traceability Lot Code and machine-readable format on food The definition further states that the We propose to define ‘‘traceability lot product packaging. We discuss the use sale of food directly to consumers by a code’’ to mean a descriptor, often of traceability product identifiers in farm-operated business includes the sale alphanumeric, used to identify a section V.E.3. of food by that farm-operated business traceability lot. As with location Table 5 illustrates how information in directly to consumers in the same descriptions and location identifiers, traceability product identifiers and circumstances just specified with traceability lot codes are typically stored descriptions could be maintained.

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TABLE 5—EXAMPLE OF DATA ATTRIBUTES FOR TRACEABILITY PRODUCT DESCRIPTIONS AND TRACEABILITY PRODUCT IDENTIFIERS

Traceability product description data attributes

Traceability product Category Trade Description identifier Category code or Category Packaging term name Brand name Commodity Variety Product name size Packaging style

614141007349 ...... 10006162 1 Cherry To- Brand ABC Tomatoes ...... Cherry ...... n/a ...... 25 LB ...... Carton. matoes— Round 1. 183859303020 ...... 10006260 1 Sprouts Brand ABC n/a ...... n/a ...... Sprout Mix ...... 4 oz ...... Clamshell. (Fresh) 1. 20614141004366 ...... BFT 2 ...... Blue Fin Brand 123 Tuna ...... Atlantic Bluefin .. n/a ...... 10 KG ...... Bin. Tuna 2. 498265800732 ...... Soft Soft Brand XYZ N/A ...... N/A ...... Queso Fresco .... 12 × 8 Vac Pack. Cheese 3. Cheese 3. Ounce. 5 1462872318 2 ...... Fresh Cut Fresh Cut Brand 999 N/A ...... N/A ...... Small Vegetable 6 oz ...... Tray. Produce 3. Produce 3. Tray w/dip. 7483945748383 ...... 10000161 1 Biscuits/ Brand CDE N/A ...... N/A ...... Peanut Butter 12 oz ...... Box. Cookies Sandwich (Shelf Cracker. Stable) 1. 1 Example of a category that is assigned using the GS1 Global Product Classification Scheme. 2 Example of a category that is assigned using the United Nations Food and Agriculture Organization’s Aquatic Sciences and Fisheries Information System (ASFIS) List of Species for Fishery Statistics Purposes, 3A code. 3 Example of a category that is self-assigned by a firm.

37. Transformation 39. Vessel Identification Number 1. Traceability Program Records (Proposed § 1.1315) We propose to define We propose to define ‘‘vessel ‘‘transformation’’ as an event in a food’s identification number’’ to mean the Proposed § 1.1315 answers the supply chain that involves changing a number assigned to a fishing vessel by question, ‘‘What traceability program records must I have for foods on the food on the Food Traceability List, its the International Maritime Organization, Food Traceability List that I package, and/or its label (regarding the or by any entity or organization, for the manufacture, process, pack, or hold?’’ traceability lot code or traceability purpose of uniquely identifying the vessel. We request comment on whether Proposed § 1.1315(a) would require product identifier), such as by persons subject to subpart S to establish combining ingredients or processing a the proposed definition provides appropriate flexibility regarding the and maintain certain traceability food (e.g., by cutting, cooking, program records. We note that, for these commingling, repacking, or manner in which fishing vessels are uniquely identified. and all other records required under repackaging). The definition would subpart S, persons subject to these further specify that transformation does D. Traceability Program Records requirements may enter into agreements not include initial packing of a single- (Proposed §§ 1.1315 Through 1.1320) with individuals or firms to create and ingredient food or creating a food. We keep the records required under this understand that this definition of We propose to require persons who rule on their behalf. As discussed later ‘‘transformation’’ might differ from the manufacture, process, pack, or hold in this document, this could include way the term is defined in other foods on the Food Traceability List to records documenting KDEs for CTEs traceability systems and approaches; create and maintain certain records such as growing, receiving, shipping, related to their internal traceability however, we believe this definition is transforming, and creating listed foods. program. As described further below, appropriate for use with traceability Firms could, for example, retain these ‘‘traceability program records’’ records for foods on the Food consultants or other outside entities to concern the use of reference records, perform some or all of their subpart S Traceability List, as discussed in section maintaining a list of foods on the Food V.E.4. responsibilities, or rely on their supply Traceability List that are shipped, the chain partners, such as their brokers or 38. Transporter assignment of traceability lot codes to suppliers, to establish and maintain listed foods, and information on the required records on their behalf. We We propose to define ‘‘transporter’’ as classification schemes a firm uses for believe that allowing firms to enter into a person who has possession, custody, traceability. such agreements will allow for or control of an article of food for the We encourage firms to maintain flexibility and accommodate current sole purpose of transporting the food, required traceability information in business practices while ensuring that whether by road, rail, water, or air. This electronic form. Because electronic persons subject to the rule remain definition of ‘‘transporter’’ is the same recordkeeping itself has not yet been responsible for ensuring that these as in subpart J except that it omits universally adopted, it is especially recordkeeping requirements are met. language differentiating foreign from important that firms be able to provide domestic transporters, which is not information on how they conduct their a. Description of Reference Records necessary under subpart S. As discussed required traceability operations to help (Proposed § 1.1315(a)(1)) in section V.B.9, we propose to exempt us more quickly review and understand Proposed § 1.1315(a)(1) would require transporters from the subpart S the information we need to conduct an persons subject to subpart S to establish requirements. investigation into a foodborne illness and maintain a description of the outbreak involving a listed food. reference records in which they

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maintain the information required ‘‘lettuce liner size 24’’ by others. In a in manufacturing other listed foods of under subpart S, an explanation of 2012 outbreak of Salmonella Bareilly in which we were unaware. For example, where on the records the required tuna, the tuna was identified as ‘‘tuna in a 2008 outbreak involving peanut information appears, and, if applicable, ground meat AAA’’ by one supplier and butter, numerous recalls spanning a description of how reference records ‘‘frozen yellow fin tuna CO treated’’ by several months were conducted due to for different tracing events for a food the next firm in the supply chain. Use the use of the contaminated peanut (e.g., receipt, transformation, shipment) of different descriptions for the same butter in other products. Even though are linked. We encourage firms to product can make it very difficult or we were able to identify the firm that maintain required traceability impossible to determine whether two was the source of the peanut butter, information in a single electronic records refer to the same products or having access to a comprehensive list of system; however, we recognize there are shipments. peanut butter products produced and firms that currently do not have product Having information on how a firm shipped from the source may have tracing systems that enable them to do links its records of incoming and avoided multiple expanded recalls by this. We therefore propose to require outgoing food products, including the same firm over several weeks. In firms to describe the particular types of records of any transformation that may addition, review of a complete list of reference records in which they keep occur at the firm, can help verify peanut butter products may have led to the required tracing information to help movement of a received product efficient and quick traceforward expedite the firm’s production of through the firm regardless of any activities to determine additional records and facilitate our review of changes made to the product or its recipients of potentially contaminated those records during a foodborne illness naming convention. For example, a products, which might have enabled outbreak investigation. In some recent distributor may use invoices and BOLs faster identification of products foodborne illness outbreaks, some firms’ as reference records for their traceability produced with potentially contaminated inability to quickly identify and make information. Knowing which pieces of peanut butter by other firms, leading to available to us pertinent information on information are kept within each type of earlier notification to consumers to such matters as production, receipt, and reference record and how those records avoid such products. In addition, shipment of a possibly contaminated can be used to show the movement of reviewing a firm’s list of all foods on the food has significantly delayed products within the firm would help Food Traceability List the firm completion of our investigation, FDA understand the products a firm manufactures, processes, packs, or holds resulting in greater harm to consumers. received and what the firm did with also would help us evaluate the firm’s Furthermore, even when a firm them. For example, if a distributor’s compliance with the subpart S produces the relevant records, BOL records contain the necessary requirements, and we anticipate it will additional delays can occur when it is information on products received and also help firms with their own internal difficult for us to find the relevant its invoice records contain the compliance programs. information on those records. information on products shipped, the Although proposed § 1.1315(a)(2) Proposed § 1.1315(a)(1) also would distributor could indicate in its would only require maintenance of a list require documentation, if applicable, of traceability program records that an of foods on the Food Traceability List how the reference records used for invoice sent to the next point in the that a firm ships, best practice would be different tracing events for a food are supply chain contains the BOL number for a firm to maintain a list of all foods linked. The ability to link incoming for the distributor’s receipt of the it ships. Firms following that practice with outgoing products within a firm product. This information would help could satisfy the requirements of and from one point in the supply chain FDA understand the distributor’s § 1.1315(a)(2) by denoting the foods that to the next is critical for traceability. recordkeeping system and verify are on the Food Traceability List (e.g., Rarely are there identifiers that link a movement of incoming and outgoing with an asterisk). product as it moves from firm to firm products at the firm. We realize that a firm’s list of foods through the supply chain, and often on the Food Traceability List that they b. List of Foods on the Food Traceability identifiers are lacking within a single ship may not be accurate in real time if List Shipped (Proposed § 1.1315(a)(2)) firm. One firm may assign a lot code to the firm is temporarily out of a a product shipment, and the firm Proposed § 1.1315(a)(2) would require commodity or only handles certain receiving the product may assign a new persons subject to subpart S to establish products seasonally. The list of foods lot code or other identifying code to the and maintain a list of foods on the Food would indicate which foods on the Food product that is not connected by records Traceability List that they ship, Traceability List a firm generally ships, to the incoming product. Additionally, including the traceability product even if there are gaps in those the incoming product may be processed identifier and traceability product shipments. and used as an ingredient in many description for each food. Depending on c. Description of How Traceability Lot different products without any the volume of product that a firm Codes Are Established and Assigned documentation of the link between the handles, if they did not maintain the list (Proposed § 1.1315(a)(3)) ingredient and the finished products, required under proposed § 1.1315(a)(2), thus compounding the challenge of during an outbreak investigation we Proposed § 1.1315(a)(3) would require linking incoming products within a firm might not be able to quickly and easily persons subject to subpart S to establish to outgoing products. determine all of the foods on the Food and maintain a description of how they Another challenge associated with Traceability List that the firm establish and assign traceability lot linking of traceability records is that a manufactures, processes, packs, or codes to foods on the Food Traceability food product may not always retain the holds, which could delay completion of List that they originate, transform, or same description as it moves through product tracing or recall. In addition, create, if applicable. Assignment of a lot the supply chain. For example, an FDA reviewing a firm’s list would help us code allows a food product to be traceback of iceberg lettuce during a more quickly analyze information for uniquely identified and provides cyclosporiasis outbreak in 2013 revealed traceforward purposes during an information needed to link shipments of that the lettuce was referred to as outbreak, such as when a firm has a food between different entities in the ‘‘iceberg lettuce’’ by some firms and as received and used a recalled ingredient supply chain. We believe that tracking

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foods to the lot level provides adequate e. Retention Requirement for confusion that can hinder traceback and information for traceability operations. Traceability Program Records (Proposed traceforward efforts during investigation (Although some firms conduct product § 1.1315(b)) of foodborne illness outbreaks. tracing to the case level, the proposed Although we are proposing that most Therefore, the proposed rule generally rule would not require that, in subpart S records be retained for 2 years would prohibit establishment of a accordance with section 204(d)(1)(L)(iii) from the date of creation (see section traceability lot code (for the purpose of of FSMA.) During a tracing or recall V.I.3), proposed § 1.1315(b) would meeting the proposed subpart S event, FDA routinely requests lot code require firms to retain the records requirements) for a listed food except information from firms to effectively required under proposed § 1.1315(a) for when originating, transforming, or creating a listed food. However, under link movement of foods within a firm 2 years after their use is discontinued and shipments throughout the supply proposed § 1.1330(c) (discussed in (e.g., because the firm changes the chain. The availability of lot codes along section V.F.2), if a first receiver receives records in which the required an entire supply chain can facilitate a listed food to which the originator has information is maintained, updates the identifying the specific food involved in not assigned a traceability lot code, the list of foods on the Food Traceability a contamination event and limiting the first receiver would be required to List it ships, or changes its procedures scope of a recall event. Lot codes can establish (and maintain a record of) a for establishing and assigning contain data such as the production line traceability lot code for the food. traceability lot codes). We believe that a used, plant location, or harvest date. different retention period is appropriate E. Records of Growing, Receiving, Because of the significance of lot codes because the records in § 1.1315(a) Transforming, Creating, and Shipping in food tracing, understanding how a Food (Proposed §§ 1.1325 to 1.1350) firm creates and assigns traceability lot involve procedures and processes, codes would provide us with rather than documentation of the As discussed in section III.D.2, we are information about the relevance of a production and handling of particular proposing to require persons who code to a particular outbreak lots of food products. For example, manufacture, process, pack, or hold investigation and insight on how the proposed § 1.1315(b) would ensure that foods on the Food Traceability List to code can help us appropriately narrow even if a firm uses the same procedures establish and maintain records or broaden the investigation. to establish and assign traceability lot containing KDEs related to CTEs in the codes for many years, a record of these production and transfer of such foods. d. Other Information Needed To procedures will remain available for Under the proposed rule, the CTEs for Understand Data (Proposed FDA review for 2 years after the which records must be kept are growing § 1.1315(a)(4)) procedures are discontinued. a listed food, receiving a listed food Proposed § 1.1315(a)(4) would require 2. When Traceability Lot Codes Must Be (including receipt by a first receiver of persons subject to subpart S to establish Assigned (Proposed § 1.1320) a listed food), transforming a listed food, and maintain records containing any creating a listed food, and shipping a other information needed to understand Proposed § 1.1320 answers the listed food. In addition, the proposed the data provided within any required question, ‘‘When must I establish and rule includes KDE requirements subpart S records, such as internal or assign traceability lot codes to foods on concerning activities such as harvesting, external coding systems, glossaries, and the Food Traceability List?’’ Proposed cooling, and packing food that are abbreviations. We need this information § 1.1320(a) would require a person included in the CTE requirements just to be able to adequately understand the subject to subpart S to establish and noted. The proposed rule also includes terminology, methods, and systems a assign a traceability lot code when they requirements concerning KDEs that firm uses in its traceability operations. originate, transform, or create a food on shippers of foods on the Food For example, many firms use the Food Traceability List. Proposed Traceability List must provide to their classification schemes developed by § 1.1320(b) would specify that, except as customers. industry (such as the GS1 Global otherwise specified in the subpart S As discussed in more detail in the Product Classification standard and the regulations, a person may not establish following paragraphs, the KDEs required Food and Agriculture Organization of a new traceability lot code when to be kept would vary depending on the the United Nations Fisheries and conducting other activities (e.g., type of supply chain activity. In Aquaculture and Information Branch shipping, receiving) in the supply chain developing the recordkeeping List of Species for Fishery Statistics for a food on the Food Traceability List. requirements, we identified which KDEs Purposes) or regulatory agency schemes Typically, persons who grow or would be necessary to effectively trace (such as the United Nations Standard otherwise originate food assign a lot a product based on the CTEs a firm Products and Services Code and the code to the food; the same is true when performs (e.g., receiving, transformation, European Union Common Procurement a food is transformed (e.g., processed in shipping). Not all KDEs are relevant for Vocabulary) to categorize foods for some way) or ‘‘created’’ by combining each CTE; however, firms that perform traceability purposes. Use of several different ingredients. As multiple CTEs would be required to standardized product classification previously discussed, lot codes provide maintain all the KDEs that pertain to the schemes, lookup tables, and important tracing information for a food CTEs they perform. For example, a firm abbreviations can streamline a firm’s product. Therefore, we propose to that receives a food on the Food internal records and promote require the assignment of a traceability Traceability List and then transforms interoperability throughout the supply lot code when a firm originates, and ships it would be required to keep chain, which can speed outbreak transforms, or creates a food on the records of KDEs relevant to the investigations. When the records kept in Food Traceability List. However, some receiving, transforming, and shipping accordance with subpart S make use of firms assign lot codes to foods they events. such classification schemes, receive even though they do not The proposed KDE/CTE abbreviations, or similar methods, it is transform the food or use the food to recordkeeping requirements would important that firms be able to provide create a new food product. We believe require the person performing the us with the information we need to that assignment of new lot codes to relevant CTE to establish and maintain understand those records. foods in such circumstances can create records containing and linking the

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food’s traceability lot code to the KDEs assigned by the seed grower, and the investigation to a limited number of that must be kept. As discussed in date of seed harvesting (proposed farms. sections III.B and IV.D.1, lot codes play § 1.1325(b)(1)); b. Information on Seeds for Sprouting a critical role in linking a food to events Æ the location identifier and location (Proposed § 1.1325(b)) in the food’s supply chain, allowing description of the seed conditioner or firms and regulators to identify and processor, the associated seed lot code Because sprouts pose unique food verify the movement of a food assigned by the seed conditioner or safety concerns, as reflected in the throughout its supply chain to facilitate processor, and the date of conditioning special provisions for sprouts in the traceback and traceforward operations. or processing (proposed § 1.1325(b)(2)); produce safety regulations (subpart M of For this reason, it is critical that firms Æ the location identifier and location part 112) (see, e.g., 78 FR 3504 at 3594 maintain records, such as purchase description of the seed packinghouse to 3595 (January 16, 2013); 80 FR 74354 orders and BOLs, that indicate a food’s (including any repackers, if applicable), at 74496 to 74497 (November 27, 2015)), traceability lot code and link it to other the associated seed lot code assigned by proposed § 1.1325(b) would require information about the food. the seed packinghouse, and the date of growers of sprouts to keep records For the most part, the proposed packing (and of repacking, if applicable) linking the traceability lot code for each requirements related to KDEs associated (proposed § 1.1325(b)(3)); lot of sprouts to certain information with CTEs in a food’s supply chain Æ the location identifier and location about the grower and supply chain of reflect tracing practices in use by many, description of the seed supplier the seeds they use for sprouting. (By though not all, sectors and individual (proposed § 1.1325(b)(4)); ‘‘seeds’’ we mean everything sprouted to firms in the food industry. We believe Æ a description of the seeds, produce sprouts for human that firms’ compliance with the including the seed type or taxonomic consumption, including beans.) Seeds proposed requirements would name, growing specifications, volume, have been the underlying source of substantially improve our ability to type of packaging, and antimicrobial contamination in numerous sprout understand how and where potentially treatment (proposed § 1.1325(b)(5)); outbreaks (Refs. 23 and 24). Although harmful foods have moved in the supply Æ the seed lot code assigned by the FDA encourages sprout operations to chain and facilitate removal of such seed supplier, including the master lot use seed that was grown according to foods from the market. and sub-lot codes, and any new seed lot good agricultural practices (GAPs), this code assigned by the sprouter (proposed does not always occur. Most seeds 1. Records of Growing a Food on the § 1.1325(b)(6)); produced in the United States are used Food Traceability List (Proposed Æ the date of receipt of the seeds by as planting stock to produce forages for § 1.1325) the sprouter (proposed § 1.1325(b)(7)); livestock or for field cultivation. Such Proposed § 1.1325 answers the and seeds are generally not grown according question, ‘‘What records must I keep Æ for each seed lot code received by to GAPs, and may be grown, when I grow a food on the Food the sprouter, the sprout traceability lot conditioned/processed, harvested, and/ Traceability List?’’ We propose to code(s) and the date(s) of production or stored under conditions where require persons who grow foods on the associated with that seed lot code contamination is likely to occur. These Food Traceability List (e.g., certain (proposed § 1.1325(b)(8)). seeds are sometimes diverted to be used fruits and vegetables) to establish and a. Growing Area Coordinates (Proposed for sprouting, which can create a risk to maintain records on certain matters § 1.1325(a)) the public health. Contaminated seed related to the growing of the food represents a particular food safety issue because they are the persons most likely Proposed § 1.1325(a) would require for sprouts because the conditions to have certain information that is persons who grow a listed food to keep under which sprouts are produced critical for traceability of the foods. We a record linking each traceability lot of (time, temperature, water activity, pH, note that, in addition to these the food to the growing area coordinates and available nutrients) are also ideal requirements for records of the growing for that lot. Many farms are in rural for the growth of pathogens, if present. of listed foods, farms are also subject to locations that lack street addresses; in During sprout-related outbreak the proposed recordkeeping addition, many farms have multiple investigations, FDA frequently has been requirements applicable to the shipment fields in which the same commodity is unable to obtain information needed to of listed foods, which are discussed grown. FDA often requests growing area determine the scope of potentially later in this document. Furthermore, coordinates for foods under affected sprouts and take action against farms would be subject to the proposed investigation to more precisely identify firms that sold adulterated seeds or recordkeeping requirements for the the place where the food was grown and processed, packed, or re-packed seeds in receipt and transformation of listed to determine proximity to other farms a way that might result in adulterated foods, when applicable, as discussed that have been identified in the product. Requiring sprout growers to later in this document. investigation. To meet this requirement keep records identifying seed growers, For each food on the Food to record growing area coordinates, processors, packers, repackers, and Traceability List grown, proposed farms typically would maintain the GPS suppliers (proposed § 1.1325(b)(1) § 1.1325 would require the grower of the coordinates for the entrance of the through (4)) would provide the Agency food to establish and maintain records specific field or ranch where the food with information needed to avoid these containing and linking the traceability was grown. This information allows us hurdles as well as help us conduct lot code of the food to the following to pinpoint the source of the food more outbreak follow-up activities that would information: specifically than would be possible with aid in preventing future outbreaks. • The growing area coordinates the address information for the farm. Similarly, requiring sprout growers to (proposed § 1.1325(a)); and For example, in a 2018 traceback keep records on seed lot codes assigned • for growers of sprouts, the following investigation of leafy greens, firms by seed harvesters, conditioners, information (if applicable): provided GPS coordinates for the processors, and repackers, along with Æ The location identifier and location locations at which the greens were the dates of seed harvesting, description of the grower of seeds for grown, enabling us to triangulate the conditioning, processing, and repacking sprouting, the associated seed lot code farms and narrow the focus of the (proposed § 1.1325(b)(1) through (3)),

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would help us scope a sprout recall commodity), raised, or caught) would fishing vessel, as addressed in proposed event and identify the seed lot used to have a first receiver. As stated in section § 1.1330(b)) to establish and maintain grow the sprouts involved in a V.C.3, when a food on the Food records, in addition to the records of contamination event. Traceability List is created exclusively receipt of foods required under The description of the seeds the from ingredients that are not on the proposed § 1.1335 (discussed in section sprout grower used, as required under Food Traceability List, the first person V.F.3), containing and linking the proposed § 1.1325(b)(5), includes the who purchases and takes physical traceability lot code of the food received seed type or taxonomic name, growing possession of the food would not be a to the following information: specifications, volume, type of first receiver. In other words, when a • The location identifier and location packaging, and antimicrobial treatment. listed food is created, rather than description of the originator of the food Examples of growing specifications originated, there would not be a first (proposed § 1.1330(a)(1)); could include production in accordance receiver. • the business name, point of contact, with GAP standards and/or FDA’s draft We are proposing to establish the term and phone number of the harvester of guidance for industry on ‘‘Reducing ‘‘first receiver’’ of a food on the Food the food, and the date(s) and time(s) of Microbial Food Safety Hazards in the Traceability List and to require that first harvesting (proposed § 1.1330(a)(2)); Production of Seed for Sprouting’’ (Ref. receivers keep certain records of their • the location identifier and location 25), certification under USDA’s Seeds receipt (in addition to the receiving description of the place where the food for Sprouting Export Certification records they are required to keep under was cooled, and the date and time of Program, information on seed purity or proposed § 1.1335) because a first cooling (if applicable) (proposed germination rate, and whether the seeds receiver is the person who is best § 1.1330(a)(3)); and are organic or conventionally grown. positioned to maintain comprehensive • the location identifier and location Antimicrobial treatment refers to information about the origination and description of the place where the food treatment of seeds or beans conducted subsequent handling of a food. This was packed, and the date and time of by a grower, distributor, or supplier of includes information identifying the packing (proposed § 1.1330(a)(4)). the seeds or beans using a scientifically persons who originated, harvested, Maintenance of these records by first valid method to reduce microorganisms cooled, and packed the food. The foods receivers of a listed food will help of public health significance. If seeds on the Food Traceability List include prevent delays in determining who grew are not grown to any growing foods in several different commodity and physically handled a product by specifications or antimicrobial types with varying growing and alleviating the initial need to visit each treatments are not used, that production practices and associated entity performing farm activities. In information should be included as part business relationships. For some foods, addition, requiring first receivers to of the description. firms that conduct on-farm production keep this information could help Sprout growers would also be and handling activities may not own the identify precisely where originating and required to keep records of the lot codes food and may not be well-positioned to handling activities occurred. In some for the seeds used for sprouting maintain the necessary records. cases, a food might undergo several (including the master lot and sub-lot Furthermore, on-farm activities can handling steps (e.g., cooling, packing) at codes assigned by the seed supplier and involve movement of a food between different locations before the first any new seed lot code assigned by the different entities (e.g., growers, receiver takes physical possession of the sprouter) (proposed § 1.1325(b)(6)), the harvesters, coolers) without sale of the food. Sometimes all these activities are date of receipt of seeds by the sprouter food, and the relevant business conducted by the originator of the food (proposed § 1.1325(b)(7)), and sprout relationships can be complex. (e.g., the farm that grew it), but in some traceability lot codes for the sprouts Identifying the first receiver of a food as cases other firms harvest, cool, and/or produced from each lot of seeds the first person who purchases and pack the food with or without taking received by the sprouter (and the dates takes physical possession of the food ownership of it. During outbreak of production) (proposed § 1.1325(b)(8)). ensures that comprehensive records investigations, FDA has experienced Having information to identify incoming relating to the origination and handling delays in determining who was seed lots, any changes to seed lot codes, of the food are maintained by a single responsible for handling the and outgoing sprout lots would greatly person who both owns and possesses contaminated product identified in a improve our ability to trace sprout- the food. traceback because the documents related foodborne illness outbreaks to Because unique tracing information is available to us did not accurately their source. relevant for seafood products obtained indicate who conducted different from fishing vessels, we are proposing activities with the product. Given the 2. Records To Be Kept by First Receivers to adopt separate recordkeeping wide variety of business models used in of Foods on the Food Traceability List requirements for: (1) First receivers of the farming community, we believe it (Proposed § 1.1330) foods on the Food Traceability List will be most efficient to have the first Proposed § 1.1330 answers the other than food produced through the non-farm entity that has purchased and question, ‘‘What records must I keep use of a fishing vessel (proposed taken physical possession of a listed when I am the first receiver of a food on § 1.1330(a)) and (2) first receivers of food—i.e., the first receiver—maintain the Food Traceability List?’’ As stated in listed seafood products obtained from the tracing information provided by the section V.C.3, a first receiver of a food fishing vessels (proposed § 1.1330(b)), as farm(s) that originated and handled the is the first person (other than a farm) discussed in the following paragraphs. product. who purchases and takes physical With respect to the location possession of a listed food. Examples of a. First Receivers of Food (Other Than description for the cooler of a food, first receivers could include Food Produced Through the Use of a when a food has been cooled by a manufacturers, processors, buyers of Fishing Vessel) (Proposed § 1.1330(a)) portable cooler, the first receiver of the seafood from fishing vessels, and Proposed § 1.1330(a) would require food could satisfy the requirement in distribution centers. Only listed foods each first receiver of a food on the Food proposed § 1.1330(a)(3) by keeping a that are originated (i.e., grown, Traceability List (except first receivers record of the location description for the harvested (if a non-produce of food produced through the use of a headquarters of the firm that performed

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the cooling. In this case, the physical of the seafood would facilitate traceback number) and the food’s filer/broker location name would be the words and traceforward operations to remove (who assigns the remaining parts of the identifying the portable cooler (e.g., contaminated seafood from the market. entry number) can help FDA identify ‘‘Cooler No. 17’’). the shipper of an imported food, such as 3. Records for Receipt of Foods on the As noted above, not all of the the foreign farm that grew imported proposed requirements would apply to Food Traceability List (Proposed produce. We note that if an imported every first receiver of a listed food. For § 1.1335) food is subsequently transformed (as example, not all foods undergo cooling Proposed § 1.1335 answers the discussed in section V.E.4 of this before the first receiver takes possession question, ‘‘What records must I keep document), the resulting food is not of the food. when I receive a food on the Food regarded as being imported, and the Traceability List?’’ Consistent with the b. First Receivers of Food Produced receiver of the food produced through existing subpart J regulations and Through Use of a Fishing Vessels transformation would not be required to common industry practice, we propose (Proposed § 1.1330(b)) keep a record of the entry number for to require persons who receive foods on any imported food that is a component Proposed § 1.1330(b) would require the Food Traceability List to keep of such food. each first receiver of a seafood product certain records documenting this critical Although subpart J only requires on the Food Traceability List that was tracking event for the foods. We propose receivers of food who manufacture, produced through use of a fishing vessel that, for each food on the Food process, or pack food to record the lot to establish and maintain records, in Traceability List that is received, the code for the food ‘‘to the extent this addition to the records of receipt of receiver must establish and maintain information exists’’ (§ 1.337(a)(4)), we foods required under proposed § 1.1335 records containing and linking the believe that all persons who receive (discussed in section V.F.3), containing traceability lot code for the food to the listed foods should keep a record of the and linking the traceability lot code of following information: food’s traceability lot code because lot the seafood product received to the • The location identifier and location codes provide important tracing harvest date range and locations description for the immediate previous information that can link received food (National Marine Fisheries Service source (other than a transporter) of the not just to manufacturers/processors Ocean Geographic Code or geographical food (proposed § 1.1335(a)); and packers but also to others in the coordinates) for the trip during which • the entry number assigned to the supply chain who receive the food, the seafood was caught. Compliance food (if the food was imported) including distributors and retail food with these requirements by first (proposed § 1.1335(b)); establishments. In addition, although it receivers of seafood from fishing vessels • the location identifier and location is not required under § 1.337(a)(3) (the would facilitate traceback efforts by description of where the food was provision in subpart J that requires helping us more quickly identify received, and date and time the food receivers of foods to keep a record of the physical locations and date ranges that was received (proposed § 1.1335(c)); date of receipt), we believe that the time might be linked to a foodborne illness • the quantity and unit of measure of of receipt (proposed § 1.1335(c)) also is outbreak involving a seafood product. the food (e.g., 6 cases, 25 returnable needed to more precisely identify foods c. Establishment of Traceability Lot plastic containers, 100 tanks, 200 that might be implicated in a foodborne Codes (Proposed § 1.1330(c)) pounds) (proposed § 1.1335(d)); illness outbreak, given that many firms • the traceability product identifier receive multiple shipments of different Proposed § 1.1330(c) would require a and traceability product description for food products each day. first receiver of a food on the Food the food (proposed § 1.1335(e)); We propose to require receivers of Traceability List to which the originator • the location identifier, location listed foods to maintain the traceability of the food has not assigned a description, and point of contact for the product identifier and traceability traceability lot code to establish a traceability lot code generator (proposed product description for each listed food traceability lot code for the food and § 1.1335(f)); they receive (proposed § 1.1335(e)) maintain a record of the traceability lot • the reference record type(s) and because this would provide descriptive code linked to the information specified reference record number(s) (e.g., information about the food to which the in proposed § 1.1330(a) or (b) (as ‘‘Invoice 750A,’’ ‘‘BOL 042520 XYX’’) traceability lot code was assigned. For applicable to the type of food received). for the document(s) containing the example, the originator (grower) of a lot Although originators of food would be information specified in proposed of papayas might describe them as required to establish and assign a § 1.1335(a) through (f) (proposed Maradol papayas or assign to the lot an traceability lot code to the food under § 1.1335(g)); and identification code that the grower uses proposed § 1.1320(a), not all originators • the name of the transporter who for papayas of this type. The availability would be subject to the rule. For transported the food to the receiver of such product information would help example, certain small farms, small (proposed § 1.1335(h)). prevent confusion during traceback shell egg producers, and other small Information linking the lot code for a investigations in situations in which a originators of food would be exempt received food with the immediate subsequent firm in the supply chain from subpart S under proposed previous source of the food, the entry uses a different product identifier for § 1.1305(a). Because we believe it is number (for an imported food), the the food. In addition, having critical that a traceability lot code is location and date the food was received, information on the location of the assigned to a food as early in its supply and the quantity and unit of measure of person who generated the traceability chain as possible, we propose to require the food received (proposed § 1.1335(a) lot code (proposed § 1.1335(f)) would first receivers of listed foods to establish through (d)) is widely regarded in the provide another way of confirming that a traceability lot code for the food when food industry as essential for effective a traceability lot code applies to a the food’s originator has not done so. tracing of food. For imported foods, particular food, as well as help the For example, by establishing a knowing the entry number assigned to Agency identify the previous point in traceability lot code for seafood a food by U.S. Customs and Border the supply chain that transformed, produced from a fishing vessel that Protection (who assigns the first three created, or originated the food (and lacked such a lot code, the first receiver alphanumeric digits of a food’s entry generated the lot code for the food).

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Information on the reference record ingredients, commingling it, or produced through transformation, the (specific type and number) associated repackaging it. For example, processing transformer of a listed food would have with receipt of a listed food (proposed whole head lettuce (a listed food) for to establish and maintain records § 1.1335(g)) would provide important inclusion in a bagged salad mix would containing and linking the new documentation of receipt. As stated in involve transformation of the lettuce. traceability lot code for the food section V.C.23, a reference record is a We propose to require firms that produced through transformation to the record used to identify an event in a transform listed foods to keep certain reference record type(s) and reference food’s supply chain; reference records records of the transformation. However, record number(s) (e.g., ‘‘Production Log commonly used to document receipt of we propose that this requirement would 123,’’ ‘‘Batch Log 01202021’’) for the a food include BOLs, invoices, sale not apply to retail food establishments documents containing the information receipts, and ASNs. Although keeping a with respect to the listed foods they sell specified in proposed § 1.1340(a)(1) and reference record for receipt of a food is directly to consumers, as discussed in (2) (proposed § 1.1340(a)(3)). not required under subpart J, many the following paragraphs. The traceability lot code, traceability firms do retain reference records, and Except as specified in proposed product identifier and traceability we typically request reference records in § 1.1340(b), proposed § 1.1340(a) would product description, and the quantity of our traceback investigations. We believe require, for each new traceability lot of each traceability lot for the food that is maintaining reference records for food produced through transformation to be transformed (proposed receipt of foods provides an important of foods on the Food Traceability List, § 1.1340(a)(1)(i) through (iii)) all provide ‘‘cross-check’’ of relevant traceability lot that the person who transforms the food important data linking the food codes as a food moves between supply establish and maintain records produced through transformation to chain partners. containing and linking the traceability products the transforming firm has Consistent with the subpart J lot code of the food transformed to received from its suppliers. With respect requirements, we propose to require certain information regarding: (1) The to the food that has undergone persons who receive listed foods to keep food on the Food Traceability List used transformation, the transformer of the a record of the name of the transporter in transformation and (2) the food food would have to keep information on who delivered the food (proposed produced through transformation. For the location and date the transformation § 1.1335(h)). However, we believe it is the food(s) on the Food Traceability List was completed, the new traceability not necessary for the receiver to retain used in transformation (proposed product identifier and traceability other information on the transporter § 1.1340(a)(1)), the transformer of the product description, and the quantity (e.g., address, telephone number). We food must establish and maintain and unit of measure of the food note that in many cases, the receiver records containing and linking the produced through transformation will have this information as a result of traceability lot code of the food to the (proposed § 1.1340(a)(2)(i) through (iii)). subpart J requirements (see following information: Finally, the transformer of a listed food § 1.337(a)(6)). • The traceability lot code(s) for the would keep the reference record type As stated in section V.E.2, in addition food (proposed § 1.1340(a)(1)(i)); (such as a production log) and reference to meeting the requirements for ‘‘first • the traceability product identifier record number that links the food receivers’’ of listed foods stated in and traceability product description for produced through transformation with proposed § 1.1330, the first receiver of a the foods to which the traceability lot the listed food that was received and listed food would be required to code applies (proposed transformed (proposed § 1.1340(a)(3)). establish and maintain records of § 1.1340(a)(1)(ii)); and These proposed recordkeeping receipt for the food in accordance with • the quantity of each traceability lot requirements for the transformation of proposed § 1.1335. of the food(proposed § 1.1340(a)(1)(iii)). listed foods would help ensure that vital tracing information linking a food 4. Records of Transformation of Foods For the food produced through produced through transformation to the on the Food Traceability List (Proposed transformation (proposed incoming food that was subjected to § 1.1340) § 1.1340(a)(2)), the transformer of the food must establish and maintain transformation is available for review in Proposed § 1.1340 answers the records containing and linking the a traceback investigation. question ‘‘What records must I keep traceability lot code of the food to the Most firms can provide information when I transform a food on the Food following information: about what lots of product were Traceability List?’’ As previously stated, • The location identifier and location available for potential use during the transformation of a food, such as by description for where the food was transformation or manufacturing processing it or combining it with other transformed (e.g., by a manufacturing/ process. However, some firms currently foods to make a new food product, is processing step), and the date the lack the ability to connect the finished another critical event in product tracing. transformation was completed transformed product to its ingredients Foods (and their packaging and (proposed § 1.1340(a)(2)(i)); and the amount of each ingredient lot labeling) can be changed in a variety of • the new traceability product used during the transformation. ways, such as by cutting, cooking, identifier and traceability product Depending on the quantity of food in an commingling, boiling, mixing, freezing, description for the food produced ingredient lot, one lot could be used for milling, repacking, and repackaging. through transformation to which the multiple days of production and Documentation of transformation is new traceability lot code applies commingled with other lots of the same needed to ensure traceability between (proposed § 1.1340(a)(2)(ii)); and ingredient. An inability to precisely the food that is changed during • the quantity and unit of measure of identify ingredient lots used in transformation and the resulting new the food produced through transformation could adversely affect a product. transformation for each new traceability traceback or recall by limiting our Transformation of a food on the Food code (e.g., 6 cases, 25 returnable plastic ability to accurately identify the Traceability List involves taking a listed containers, 100 tanks, 200 pounds) products within the scope of such food and changing the food (or its (proposed § 1.1340(a)(2)(iii)). action. We believe that compliance with packaging and/or labeling) such as by In addition to this information on the proposed recordkeeping processing it, combining it with other foods used in transformation and foods requirements for transformation of foods

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will substantially improve traceability therefore cannot expect that firms will foods they sell or send directly to for these foods. necessarily have relevant records for consumers). As previously stated, we propose to any of the ingredients in a created food, 6. Records To Be Kept and Sent for exempt retail food establishments it is appropriate to apply different Shipment of Foods on the Food (under certain circumstances) from this recordkeeping requirements to Traceability List (Proposed § 1.1350) proposed requirement to keep records of transformation and creation events. transformation of listed foods. Proposed We propose to require firms that Proposed § 1.1350 answers the § 1.1340(b) would provide that proposed create listed foods to keep tracing question, ‘‘What records must I keep § 1.1340(a) would not apply to retail records of the creation, with a partial and send when I ship a food on the food establishments with respect to exemption for retail food establishments Food Traceability List?’’ Shipment or foods they do not ship (e.g., foods they as proposed for transformation of listed release of foods from one person in the sell or send directly to consumers). As foods. Therefore, except as specified in supply chain to another is widely previously stated, we do not believe it proposed § 1.1345(b), proposed recognized as a critical tracking event. is reasonable to expect restaurants, § 1.1345(a) would require a person who As with records of receipt of foods, grocery stores, and other retail food creates a food on the Food Traceability maintaining tracing records of shipment establishments to keep traceability List to establish and maintain records of foods to others in the supply chain is records of their sales of food to containing and linking the traceability common industry practice and required consumers. We believe that a similar lot code of the food created to the under the subpart J regulations. exemption from recordkeeping following information: Therefore, we propose to require requirements should apply when retail • The location identifier and location persons who ship foods on the Food food establishments transform food they description for where the food was Traceability List to keep certain records then sell directly to consumers (or that created (e.g., by a manufacturing/ documenting these shipments. In they donate or dispose of, if it is not processing step), and the date creation addition, to help ensure that those who sold). We would still be able to trace the was completed (proposed receive listed foods obtain the movement of listed foods to retail food § 1.1345(a)(1)); information they would be required to • establishments from farms, the traceability product identifier keep under the proposed rule, we manufacturers, distributors, and others and traceability product description for propose to require persons who ship because retail food establishments will the food (proposed § 1.1345(a)(2)); • listed foods to provide their customers be required, under proposed § 1.1335, to the quantity and unit of measure of with certain information related to the keep records on listed foods they the food (e.g., 6 cases, 25 returnable foods they ship, as this information receive. plastic containers, 100 tanks, 200 might not always be provided under However, this proposed exemption for pounds) (proposed § 1.1345(a)(3)); and current commercial practices. retail food establishments would not • the reference record type(s) and apply when an establishment transforms reference record number(s) (e.g., a. Records of Shipment (Proposed a listed food it then ships to a ‘‘Production Lot 123,’’ ‘‘Batch Log § 1.1350(a)). distributor or another retail food 01202021’’) for the document(s) Proposed § 1.1350(a) would require establishment instead of selling the food containing the information specified in persons who ship a food on the Food directly to consumers. Because a retail proposed § 1.1345(a)(1) through (3) Traceability List to establish and food establishment that transforms a (proposed § 1.1345(a)(4)). maintain records containing and linking food and ships it to another business Because creation of a food on the the traceability lot code for the food to (rather than to consumers) would be Food Traceability List does not involve the following information: functioning as a manufacturer, it is the use of any listed foods as • The entry number(s) assigned to the necessary and appropriate for effective ingredients, the creator of a listed food food (if the food is imported) (proposed traceability that such a retail food would not be required to maintain § 1.1350(a)(1)); establishment be required to keep tracing records on the ingredients used • the quantity and unit of measure of tracing records of the transformation in to create the listed food. Instead, the the food (e.g., 6 cases, 25 returnable accordance with proposed § 1.1340(a). creator of the food would only have to plastic containers, 100 tanks, 200 keep records providing information on 5. Records of Creation of Foods on the pounds) (proposed § 1.1350(a)(2)); the created food, including the location • the traceability product identifier Food Traceability List (Proposed and date of creation, the traceability lot § 1.1345) and traceability product description for code, the traceability product identifier the food (proposed § 1.1350(a)(3)); Proposed § 1.1345 answers the and product description, the quantity • the location identifier, location question, ‘‘What records must I keep and unit of measure for each traceability description, and point of contact for the when I create a food on the Food lot code, and the reference record type traceability lot code generator (proposed Traceability List?’’ Creating a food on and number for the created food. § 1.1350(a)(4)); the Food Traceability List is a critical Although such records would not by • the location identifier and location tracking event. Creation of a food on the themselves provide full traceability description for the immediate Food Traceability List involves making (because the product is made from foods subsequent recipient (other than a or producing a listed food (such as not on the list), they would provide the transporter) of the food (proposed through manufacturing or processing) principal information needed to trace § 1.1350(a)(5)); using only ingredients that are not on the created food through the rest of the • the location identifier and location the Food Traceability List. For example, supply chain. description for the location from which manufacturing peanut butter, which is For the reasons discussed in section the food was shipped, and the date and on the Food Traceability List, would V.F.4, proposed § 1.1345(b) would time the food was shipped (proposed constitute creating a listed food because provide that the requirement to § 1.1350(a)(6)); none of the ingredients of peanut butter establish and maintain records on the • the reference record type(s) and are listed foods. Because listed foods are creation of listed foods would not apply reference record number(s) (e.g., ‘‘BOL not used in the creation (as opposed to to retail food establishments with No. 123,’’ ‘‘ASN 10212025’’) for the transformation) of a listed food, and we respect to foods they do not ship (e.g., document(s) containing the information

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specified in proposed § 1.1350(a)(1) delays in completing a traceback product description, information on the through (6) (proposed § 1.1350(a)(7)); investigation. traceability lot code generator, location and For this reason, proposed § 1.1350(b) identifier and location description for • the name of the transporter who would require persons who ship a food the immediate subsequent recipient, transported the food from the shipper on the Food Traceability List to send and location identifier and location (proposed § 1.1350(a)(8)). records (in electronic or other written description for the place of shipment) The records we propose to require form) containing the following because, as previously noted, this shippers of listed foods to keep are information to the immediate information is not always provided by similar to the records that receivers of subsequent recipient (other than a firms to their customers under current food would have to keep, except that transporter) of each traceability lot businesses practices. Because we need rather than information on an incoming shipped: food, its source, and the place and date • The information in proposed to be able to review this information it was received, the shipper would keep § 1.1350(a)(1) through (6) (i.e., when we visit such a customer during information on the food it sent out, the traceability lot code, quantity and unit a tracing investigation involving a listed recipient of the food, and the date of measure of food shipped for each food, we propose to require that shipment and location from which the traceability lot code, traceability shippers provide this information to food was shipped. As with the product identifier and traceability their customers. requirements for receivers of food, if an product description, information on the We are proposing the additional imported food is subsequently traceability lot code generator, location information disclosure requirements for transformed, a shipper of the food identifier and location description for shippers who are farms because we produced through transformation would the immediate subsequent recipient, propose to require that the first receiver not be required to keep (or send and location identifier and location of a food on the Food Traceability List forward) a record of the entry number description for the place of shipment) (i.e., the first person other than a farm for any imported food that is a (proposed § 1.1350(b)(1)); and who purchases and takes physical component of such food. • if the shipper is a farm, the possession of the food) maintain this As described in proposed § 1.1320, following information (if applicable) for information, and we understand that not there are circumstances in which the each traceability lot of the food: shipper would be required to establish Æ A statement that the shipper is a all farms routinely provide this and assign the traceability lot code for farm (proposed § 1.1350(b)(2)(i)); information to firms that buy food from the shipped food. In all other Æ the location identifier and location the farms. Therefore, we believe it is circumstances, the traceability lot code description of the originator of the food appropriate to require farms to provide would be the code assigned by a (if not the shipper) (proposed information on the origination (if not by previous entity in the food’s supply § 1.1350(b)(2)(ii)); the farm), harvesting, cooling, and chain, which could be the immediate Æ the business name, point of contact, packing of the food (if applicable) when previous source of the food or a person and phone number of the harvester of they ship the food. several steps previous in the supply the food (if not the shipper), and the In situations where food is sold from chain. date(s) and time(s) of harvesting one farm to a second farm before being b. Records To Be Sent to Recipients of (proposed § 1.1350(b)(2)(iii)); sold to a first receiver, this system Æ the location identifier and location the Food (Proposed § 1.1350(b)) description of the place where the food would allow for all of the necessary In many cases, persons who would be was cooled (if not by the shipper), and information to reach the first receiver, required under the proposed rule to the date and time of cooling (proposed even if some of the activities (e.g., keep certain records containing key § 1.1350(b)(2)(iv)); and origination and harvesting) took place information on events such as receipt Æ the location identifier and location on the first farm, while others (e.g., and transformation of food either description of the place where the food cooling and packing) took place on the receive or generate this information in was packed (if not by the shipper), and second farm. In that situation, the first the normal course of business, such as the date and time of packing (proposed farm would be obligated under in shipping records (e.g., bills of lading, § 1.1350(b)(2)(v)). proposed § 1.1350(b)(1) to send purchase orders) and production Shippers of listed foods would have information about their location to the records (e.g., batch logs, work orders, to send the information in proposed second farm, and they would be repack logs). However, as previously § 1.1350(b) to the recipients of the food obligated under proposed stated, in some circumstances firms in electronic or other written form. We § 1.1350(b)(3)(iii) to send the second such as manufacturers, distributors, and would encourage firms to send the farm information about the date and retailers may not always have all the information electronically, such as in an time of harvesting. This would allow the information on foods they receive that email to their customer or an ASN, but second farm to fulfill its obligation we believe is essential for ensuring shippers could elect to send the under proposed § 1.1350(b)(2)(ii) and traceability of the foods throughout the information in other written form, such (iii) to send the first receiver supply chain. For example, some as by mailing paper documents or information about the originator of the reference records will state a firm’s post including the information on the food and the date and time of office box number but not identify the documents that accompany the harvesting. Moreover, the statement that location where the food was handled. shipment, such as the BOL. During a recent outbreak, FDA was We believe it is necessary to require the sender is a farm would allow the delayed in gathering records from a shippers of listed foods to send their first receiver to recognize its status as a distributor because the records available customers the information in proposed first receiver of a listed food, which to us from the retailer of the food listed § 1.1350(a)(1) through (6) (i.e., might not otherwise be clear in this a home address of the distributor rather traceability lot code, quantity of food situation, where the second farm did not than the address of the physical location shipped and unit measure of food originate the food but nonetheless is a of the firm. This lack of critical tracing shipped for each traceability lot code, farm as defined in proposed § 1.1310. information can result in significant traceability product identifier and

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F. Special Requirements for Foods to assign to the canned sardines under The following paragraphs discuss our Subjected to a Kill Step (Proposed proposed § 1.1320(a) (see proposed proposed procedures for adopting § 1.1355) § 1.1340(a)(6)). However, under exemptions from, and modifications to, We are proposing to adopt special proposed § 1.1355(a), the manufacturer the proposed traceability recordkeeping recordkeeping requirements for foods on would not be required to maintain requirements for particular foods or the Food Traceability List that are tracing records of shipment of the types of entities. canned sardines (as otherwise would be subjected to a kill step to more 1. Circumstances Under Which FDA required under proposed § 1.1350) appropriately address traceability issues Will Modify Requirements or Grant provided that the manufacturer associated with these foods. Proposed Exemptions (Proposed § 1.1360) maintained a record of its application of § 1.1355 answers the question, ‘‘What Proposed § 1.1360 answers the recordkeeping requirements apply to the kill step to the sardines. The requirement to maintain records question, ‘‘Under what circumstances foods on the Food Traceability List that will FDA modify the requirements in are subjected to a kill step?’’ We documenting the kill step could be fulfilled using records that are already this subpart that apply to a food or type recognize that applying a kill step to a of entity or exempt a food or type of food can reduce the food’s potential to required under the regulations on LACF (part 113) and hazard analysis and entity from the requirements of this harm public health by significantly subpart?’’ Proposed § 1.1360(a) would minimizing the presence of pathogens critical control point operations for seafood (21 CFR part 123). specify that, except as stated in in the food. Adequately applying a kill Documentation of the kill step would proposed § 1.1360(b), FDA will modify step to a food on the Food Traceability have to be maintained for 2 years, in the requirements of subpart S applicable List could potentially reduce the risk accordance with proposed § 1.1460(c). to a food or type of entity, or exempt a posed by the food and reduce the In addition, under proposed § 1.1355(b), food or type of entity from subpart S, likelihood that the food would be because the kill step had been applied, when we determine that application of involved in an outbreak, thereby the manufacturer’s customer and the requirements that would otherwise reducing the need for further tracing of subsequent persons in the supply chain apply to the food or type of entity is not that food. Therefore, proposed would not be required to maintain any necessary to protect the public health. § 1.1355(a) would provide that if a records required under proposed Under proposed § 1.1360(b), if a person applies a kill step to a food on subpart S regarding receipt, person to whom modified requirements the Food Traceability List, the proposed transformation, or shipment of the or an exemption applies under subpart S recordkeeping requirements canned sardines. However, both the § 1.1360(a) (including a person who would not apply to that person’s manufacturer and subsequent persons in manufactures, processes, packs, or holds subsequent shipping of the food, the supply chain would still need to a food to which modified requirements provided that the person maintained a maintain any records that are required or an exemption applies under record of application of the kill step. We of them under the subpart J regulations. § 1.1360(a)) is required to register with anticipate that many manufacturers/ FDA under section 415 of the FD&C Act processors would be able to use records G. Procedures for Modified (and in accordance with subpart H) with required under existing regulations, Requirements and Exemptions respect to the manufacturing, such as those requiring documentation (Proposed §§ 1.1360 to 1.1400) processing, packing, or holding of the of monitoring of a preventive control The proposed rule includes applicable food, such person must (see § 117.190(a)(2)) or documentation provisions allowing the Agency to maintain records identifying the of thermal processing of low-acid modify the recordkeeping requirements immediate previous source of such food canned foods (LACF) (see 21 CFR applicable to certain foods or types of and the immediate subsequent recipient 113.100 (§ 113.100)), to meet the entities, or to exempt foods or types of of such food in accordance with requirement to document application of entities from the requirements, under §§ 1.337 and 1.345. Proposed § 1.1360(b) the kill step to the food. In addition, certain circumstances. Section further states that such records would proposed § 1.1355(b) would specify that 204(d)(6)(E) of FSMA states that FDA have to be maintained for 2 years, if a person receives a food on the Food may, by notice in the Federal Register, consistent with the record retention Traceability List that has been subjected modify the recordkeeping requirements requirement we are proposing for to a kill step, the proposed applicable to a food or type of facility subpart S records (see section V.H.3). recordkeeping requirements would not under section 204(d), or exempt a food 2. Means by Which FDA Will Consider apply to that person’s receipt or or type of facility from these subsequent transformation and/or requirements, if we determine that Whether To Adopt Modified shipping of the food. product tracing requirements for such Requirements or Grant Exemptions As an example of application of these food or type of facility are not necessary (Proposed § 1.1365) proposed provisions, consider the to protect the public health. However, Proposed § 1.1365 answers the production of canned sardines. A section 204(d)(6)(E) and (F) of FSMA question, ‘‘How will FDA consider manufacturer of canned sardines would also provide that, in situations where whether to adopt modified requirements be required to maintain records of such modification or exemption applies, or grant an exemption from the receipt of the sardines under proposed if the person who manufactures, requirements of this subpart?’’ Proposed § 1.1335 (assuming sardines are on the processes, packs, or holds the food is § 1.1365 would provide that we will Food Traceability List at the time, as required to register with FDA under consider modifying subpart S they are now), and the manufacturer section 415 of the FD&C Act with requirements applicable to a food or would have to maintain records of respect to the manufacturing, type of entity, or exempting a food or transformation of the sardines under processing, packing, or holding of the type of entity from these requirements, proposed § 1.1340(a) because it food, we shall require the person to on our own initiative or in response to processes the sardines (including by maintain records that identify the a citizen petition submitted under 21 canning them). These records would immediate previous source of the food CFR 10.30 (§ 10.30) by any interested include the new traceability lot code and the immediate subsequent recipient party. FDA’s citizen petition regulations that the manufacturer would be required of the food. in § 10.30 provide standardized

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procedures for requesting that FDA take petition requesting modified setting forth the proposed modified (or refrain from taking) an requirements or an exemption?’’ requirements or exemption and the administrative action. A citizen petition Proposed § 1.1380 would establish a reasons for the proposal. The may be submitted by any person process for FDA’s handling of citizen notification will establish a public (including a person who is not a citizen petitions requesting modified docket so that interested persons may of the United States). Among other requirements or an exemption from submit written comments on the things, the citizen petition regulations subpart S. Proposed § 1.1380(a) would proposal. Proposed § 1.1385(b) would provide a format for such requests and provide that, in general, the procedures provide that, after considering any a procedure under which a docket is in § 10.30 would govern our response to comments timely submitted, we will created and interested persons may such a petition, and an interested publish a notification in the Federal submit comments to the docket person could submit comments on such Register stating whether we are regarding the requested action. a petition in accordance with § 10.30(d). adopting modified requirements or Proposed § 1.1380(b) would specify that, granting an exemption, and the reasons 3. Requirements for Citizen Petition under § 10.30(h)(3), we would publish a for our decision. Requesting Modified Requirements or notification in the Federal Register 7. When Modified Requirements and an Exemption (Proposed § 1.1370) requesting information and views on a Exemptions Become Effective (Proposed Proposed § 1.1370 answers the submitted petition, including § 1.1390) question, ‘‘What must be included in a information and views from persons petition requesting modified who could be affected by the modified Proposed § 1.1390 answers the requirements or an exemption from the requirements or exemption if we question, ‘‘When will modified requirements?’’ Proposed § 1.1370 granted the petition. requirements that we adopt or an would require that, in addition to Proposed § 1.1380(c) would provide exemption that we grant become meeting the requirements on the content that, under § 10.30(e)(3), we would effective?’’ Proposed § 1.1390 would and format of a citizen petition in respond to a petitioner in writing. If we provide that any modified requirements § 10.30, a petition requesting modified granted the petition either in whole or that we adopt or exemption that we requirements or an exemption from the in part, we would publish a notification grant will become effective on the date subpart S requirements would have to: in the Federal Register setting forth any that notice of the modified requirements • Specify the food or type of entity to modified requirements or exemptions or exemption is published in the which the modified requirements or and the reasons for them (proposed Federal Register, unless otherwise exemption would apply (proposed § 1.1380(c)(1)). If we denied the petition stated in the notification. (including a partial denial), our written § 1.1370(a)); 8. Circumstances Under Which FDA • if the petition requests modified response to the petitioner would explain Might Revise or Revoke Modified requirements, specify the proposed the reasons for the denial (proposed Requirements or an Exemption modifications to the subpart S § 1.1380(c)(2)). (Proposed § 1.1395) requirements (proposed § 1.1370(b)); Proposed § 1.1380(d) states that we and will make readily accessible to the Proposed § 1.1395 answers the • present information demonstrating public, and periodically update, a list of question, ‘‘Under what circumstances why application of the requirements petitions requesting modified may FDA revise or revoke modified requested to be modified or from which requirements or exemptions, including requirements or an exemption?’’ exemption is requested is not necessary the status of each petition (for example, Proposed § 1.1395 would provide that to protect the public health (proposed pending, granted, or denied). We believe we may revise or revoke modified § 1.1370(c)). that maintaining such a list would help requirements or an exemption if we ensure that all persons who might be determine that such revision or 4. Public Availability of Information in affected by or otherwise interested in revocation is necessary to protect the a Citizen Petition (Proposed § 1.1375) these petitions have access to public health. For example, we might Proposed § 1.1375 answers the information about the status of the conclude that revocation of an question, ‘‘What information submitted petitions. exemption was appropriate following in a petition requesting modified 6. Adopting Modified Requirements or the emergence of a significant safety requirements or an exemption, or Granting an Exemption on FDA’s Own concern (e.g., repeated contamination information in comments on such a Initiative (Proposed § 1.1385) events) associated with the food or type petition, is publicly available?’’ of entity for which the exemption had Proposed § 1.1375 would specify that Proposed § 1.1385 answers the been granted. FDA will presume that information question, ‘‘What process will FDA submitted in a petition requesting follow when adopting modified 9. Procedures for Revision or Revocation modified requirements or an exemption, requirements or granting an exemption of Modified Requirements or an as well as information in comments on our own initiative?’’ Proposed Exemption (Proposed § 1.1400) submitted on such a petition, does not § 1.1385 would establish the procedures Proposed § 1.1400 answers the contain information exempt from public we would follow if, on our own question, ‘‘What procedures apply if disclosure under 21 CFR part 20 (part initiative, we proposed to adopt FDA tentatively determines that 20) (FDA’s regulations on public modified requirements or grant an modified requirements or an exemption information) and would be made public exemption from the traceability should be revised or revoked?’’ as part of the docket associated with the recordkeeping requirements. Proposed Proposed § 1.1400(a) would provide that petition. § 1.1385(a) would provide that if we, on if we tentatively determine that we our own initiative, determine that should revise or revoke modified 5. Process for Citizen Petitions adopting modified requirements or requirements or an exemption, we will Requesting Modified Requirements or granting an exemption from the provide the following notifications: an Exemption (Proposed § 1.1380) requirements for a food or type of entity • We will notify the person that Proposed § 1.1380 answers the is appropriate, we will publish a originally requested the modified question, ‘‘What process applies to a notification in the Federal Register requirements or exemption (if we

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adopted modified requirements or of the individual entity or type of entity circumstances as the purpose for granted an exemption in response to a (proposed § 1.1405(a)); developing these proposed regulations. petition) in writing at the address • the waiver will not significantly Therefore, we propose to adopt, as a identified in the petition (proposed impair our ability to rapidly and condition for granting a waiver, a § 1.1400(a)(1)); and effectively identify recipients of a food determination that the waiver would not • we will publish in the Federal to prevent or mitigate a foodborne undermine this central purpose of Register a notification of our tentative illness outbreak or to address credible subpart S. For example, we likely would determination that the modified threats of serious adverse health not grant a waiver to a certain type of requirements or exemption should be consequences or death to humans or entity that processes, distributes, or sells revised or revoked and the reasons for animals as a result of such food being a food on the Food Traceability List if our tentative decision. The notification adulterated under section 402 of the granting the waiver could significantly will establish a public docket so that FD&C Act or misbranded under section impair our ability to conduct traceback interested persons may submit written 403(w) of the FD&C Act (proposed operations in response to a foodborne § 1.1405(b)); and illness outbreak involving that food. comments on our tentative • determination (proposed § 1.1400(a)(2)). the waiver will not otherwise be Proposed § 1.1405(c) states, as a final contrary to the public interest (proposed Under proposed § 1.1400(b), after condition for a waiver, that the waiver § 1.1405(c)). considering any comments timely will not otherwise be contrary to the Proposed § 1.1405(a) incorporates the public interest. For example, we might submitted, we will publish in the concept of ‘‘economic hardship’’ that Federal Register a notification of our conclude that a waiver for an individual Congress set forth in section 204(d)(1)(I) entity would not be appropriate because decision whether to revise or revoke the of FSMA, while clarifying that such modified requirements or exemption it might provide an unfair economic hardship must stem from the unique advantage over similarly situated firms and the reasons for the decision. circumstances of the individual entity Proposed § 1.1400(b) further states that in a particular sector of the food or type of entity. Examples of ‘‘unique industry. if we do revise or revoke the modified circumstances’’ might include, but are requirements or exemption, the effective We request comment on the proposed not limited to, issues related to unique criteria for granting a waiver of the date of the decision will be 1 year after business operations or geographical the date of publication of the proposed recordkeeping requirements factors. We note that merely having and, in particular, what should notification, unless otherwise stated in relatively low revenue or relatively few the notification. constitute an economic hardship employees would not ordinarily warranting such a waiver. H. Waivers (Proposed §§ 1.1405 to constitute an economic hardship 1.1450) sufficient to qualify for a waiver from 2. Mechanisms by Which FDA Will the subpart S requirements. As Waive Requirements (Proposed In accordance with section previously discussed, the proposed rule § 1.1410) 204(d)(1)(I) of FSMA, we propose to includes exemptions from the subpart S Proposed § 1.1410 answers the establish a process for the issuance of a requirements for certain small produce question, ‘‘How will FDA consider waiver of the additional traceability farms, small shell egg producers, and whether to waive a requirement of this recordkeeping requirements in subpart other small originators of food (see subpart?’’ Proposed § 1.1410 would S if we determine that application of the section V.B.1), and it would either fully provide that we will consider whether requirements would result in an exempt retail food establishments to waive a requirement of subpart S on economic hardship for an individual having ten or fewer full-time equivalent our own initiative or in response to the entity or a type of entity. Under the employees from the rule (under Option following: proposed procedures, a person could 1 of the co-proposal) or exempt such • A written request for a waiver for an request a waiver for an individual entity establishments from the proposed individual entity (proposed § 1.1410(a)); by submitting a written request to FDA, requirement to provide traceability or or a person could request a waiver for information to FDA in an electronic • a citizen petition requesting a a type of entity by submitting a citizen spreadsheet upon request during waiver for a type of entity submitted petition to FDA. In addition, we could situations such as outbreak under § 10.30 by any person subject to elect to issue a waiver for an individual investigations (under Option 2 of the co- the requirements of subpart S (proposed entity or a type of entity on our own proposal) (see section V.B.7). The § 1.1410(b)). initiative. waiver process in proposed § 1.1405 is For a waiver request regarding an 1. Circumstances Under Which FDA not meant to substitute for the decisions individual entity, we think that a Will Waive Requirements (Proposed discussed in sections V.B.1 and V.B.7 written request to the Agency is § 1.1405) regarding these proposed exemptions. sufficient, and the citizen petition Under proposed § 1.1405(b) we would process is unnecessary. But for requests Proposed § 1.1405 answers the grant a waiver only if doing so would that concern a type of entity, we believe question, ‘‘Under what circumstances not significantly impair our ability to that the fact that the waiver could apply will FDA waive one or more of the rapidly and effectively identify to multiple parties, including persons requirements of this subpart for an recipients of a food to prevent or unaware that the waiver request had individual entity or a type of entity?’’ mitigate a foodborne illness outbreak or been submitted, makes it appropriate to Proposed § 1.1405 would provide that to address credible threats of serious require that the request be submitted in we will waive one or more of the adverse health consequences or death to a citizen petition. subpart S requirements when we humans or animals as a result of such determine that all of the following food being adulterated under section 3. Requesting a Waiver for an Individual conditions are met: 402 of the FD&C Act or misbranded Entity (Proposed § 1.1415) • Application of the requirements under section 403(w) of the FD&C Act. Proposed § 1.1415 answers the would result in an economic hardship In section 204(d)(1) of FSMA, Congress question, ‘‘How may I request a waiver for an individual entity or a type of specified rapidly and effectively for an individual entity?’’ Proposed entity, due to the unique circumstances identifying recipients of a food in such § 1.1415 would provide that a person

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may request a waiver of one or more 5. Citizen Petition for Waiver for Type of entity?’’ Proposed § 1.1435(a) would requirements of subpart S for an of Entity (Proposed § 1.1425) specify that, in general, the procedures individual entity by submitting a Proposed § 1.1425 answers the in § 10.30 govern FDA’s response to a written request to FDA that includes the question, ‘‘What must be included in a petition requesting a waiver, and that an following: petition requesting a waiver for a type interested person may submit comments • on a petition requesting a waiver in The name, address, and point of of entity?’’ Proposed § 1.1425 would accordance with § 10.30(d). Proposed contact of the individual entity to which provide that, in addition to meeting the § 1.1435(b) would provide that, under the waiver would apply (proposed requirements on the content and format § 10.30(h)(3), we will publish a § 1.1415(a)); of a citizen petition in § 10.30, a petition • notification in the Federal Register the requirements of subpart S to requesting a waiver for a type of entity requesting information and views on a which the waiver would apply must: submitted petition requesting a waiver (proposed § 1.1415(b)); • Specify the type of entity to which • for a type of entity, including information demonstrating why the waiver would apply and the information and views from persons application of the requirements requirements of subpart S to which the requested to be waived would result in who could be affected by the waiver if waiver would apply (proposed we granted the petition. an economic hardship for the entity, § 1.1425(a)); including information about the unique • Under proposed § 1.1435(c), we present information demonstrating would respond to a petitioner in writing circumstances faced by the entity that why application of the requirements result in unusual economic hardship under § 10.30(e)(3), as follows: requested to be waived would result in • If we grant a petition either in from the application of these an economic hardship for the type of whole or in part, we will publish a requirements (proposed § 1.1415(c)); entity, including information about the notification in the Federal Register • information demonstrating why the unique circumstances faced by the type setting forth any requirements we have waiver will not significantly impair of entity that result in unusual waived and the reasons for the waiver FDA’s ability to rapidly and effectively economic hardship from the application (proposed § 1.1435(c)(1)); and identify recipients of a food to prevent of these requirements (proposed • if we deny the petition (including a or mitigate a foodborne illness outbreak § 1.1425(b)); partial denial), our written response to or to address credible threats of serious • present information demonstrating the petitioner will explain the reasons adverse health consequences or death to why the waiver will not significantly for the denial (proposed § 1.1435(c)(2)). humans or animals as a result of such impair FDA’s ability to rapidly and Proposed § 1.1435(d) would provide food being adulterated under section effectively identify recipients of a food that we will make readily accessible to 402 of the FD&C Act or misbranded to prevent or mitigate a foodborne the public, and periodically update, a under section 403(w) of the FD&C Act illness outbreak or to address credible list of petitions requesting waivers for (proposed § 1.1415(d)); and threats of serious adverse health types of entities, including the status of • information demonstrating why the consequences or death to humans or each petition (for example, pending, waiver would not otherwise be contrary animals as a result of such food being granted, or denied). As with citizen to the public interest (proposed adulterated under section 402 of the petitions requesting modified § 1.1415(e)). FD&C Act or misbranded under section requirements or an exemption from We anticipate that after we publish 403(w) of the FD&C Act (proposed subpart S, we believe that maintaining the final rule on additional traceability § 1.1425(c)); and a list of these waiver petitions would requirements, we will establish an • present information demonstrating help ensure that all persons who might electronic mailbox to receive requests why the waiver would not otherwise be be affected by or are otherwise for waivers for individual entities. We contrary to the public interest (proposed interested in these petitions can obtain also expect that we will publish on our § 1.1425(d)). information about them. website information about how to submit materials to this electronic 6. Public Availability of Information in 8. Process for Granting Waivers on mailbox, as well as specifying a physical Citizen Petition Requesting a Waiver FDA’s Own Initiative (Proposed FDA address to which waiver requests (Proposed § 1.1430) § 1.1440) could be mailed. Proposed § 1.1430 answers the Proposed § 1.1440 answers the question, ‘‘What information submitted question, ‘‘What process will FDA 4. Process for Request for Waiver for in a petition requesting a waiver for a follow when waiving a requirement of Individual Entity (Proposed § 1.1420) type of entity, or information in this subpart on our own initiative?’’ Proposed § 1.1420 answers the comments on such a petition, is Proposed § 1.1440(a) would provide that question, ‘‘What process applies to a publicly available?’’ Proposed § 1.1430 if FDA, on its own initiative, determines request for a waiver for an individual would specify that we will presume that that a waiver of one or more entity?’’ Proposed § 1.1420(a) would information submitted in a petition requirements for an individual entity or provide that, after considering the requesting a waiver for a type of entity, type of entity is appropriate, we will information submitted in a request for a as well as information in comments publish a notification in the Federal waiver for an individual entity, we will submitted on such a petition, does not Register setting forth the proposed respond in writing to the person that contain information exempt from public waiver and the reasons for such waiver. submitted the waiver request stating disclosure under part 20 and would be The notification will establish a public whether we are granting the waiver (in made public as part of the docket docket so that interested persons may whole or in part) and the reasons for the associated with the petition. submit written comments on the decision. Proposed § 1.1420(b) would proposal. Proposed § 1.1440(b) would specify that any waiver for an 7. Process for Citizen Petition provide that after considering any individual entity that we grant will Requesting a Waiver (Proposed § 1.1435) comments timely submitted, we will become effective on the date we issue Proposed § 1.1435 answers the publish a notification in the Federal our response to the waiver request, question, ‘‘What process applies to a Register stating whether we are granting unless otherwise stated in the response. petition requesting a waiver for a type the waiver (in whole or in part) and the

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reasons for our decision. Under writing of our tentative determination of the original records). Proposed proposed § 1.1440(c), any waiver for a that the waiver should be modified or § 1.1455(a)(2) would require that all type of entity that we grant will become revoked. The notice will provide the records be legible and stored to prevent effective on the date that notice of the waiver recipient 60 days in which to deterioration or loss. waiver is published in the Federal submit information stating why the As discussed in section IV.D, we Register, unless otherwise stated in the waiver should not be modified or understand that many firms in the food notification. revoked. Proposed § 1.1450(a)(2) would industry, including farms, provide that upon consideration of any manufacturers, distributors, and retail 9. Circumstances Under Which FDA information submitted by the waiver food establishments, have begun May Modify or Revoke a Waiver recipient, we will respond in writing maintaining and sharing product (Proposed § 1.1445) stating our decision whether to modify information in electronic records, which Proposed § 1.1445 answers the or revoke the waiver and the reasons for can have substantial benefits for tracing question, ‘‘Under what circumstances the decision. The provision further foods throughout the supply chain. The may FDA modify or revoke a waiver?’’ states that if we modify or revoke the use of paper records, on the other hand, Proposed § 1.1445 would provide that waiver, the effective date of the decision can delay traceback activities as FDA we may modify or revoke a waiver if we will be 1 year after the date of our investigators must request the records, determine that: response to the waiver recipient, unless wait for the firm to gather them, and • Compliance with the waived otherwise stated in the response. then sort through the records by hand. requirements would no longer impose a Proposed § 1.1450(b)(1)(i) would In addition, individual paper records unique economic hardship on the provide that if we tentatively determine may not contain all the necessary individual entity or type of entity to that we should modify or revoke a information, and investigators may need which the waiver applies (proposed waiver for a type of entity, we will to request additional information to § 1.1445(a)); notify the person that originally determine how the records can be • the waiver could significantly requested the waiver (if we granted the linked together for tracing purposes. impair our ability to rapidly and waiver in response to a petition) in When paper records are handwritten, effectively identify recipients of a food writing at the address identified in the there can be additional delays if the to prevent or mitigate a foodborne petition. Proposed § 1.1450(b)(1)(ii) handwriting is not legible. In contrast, illness outbreak or to address credible would specify that we will also publish when firms provide data electronically threats of serious adverse health a notification in the Federal Register of in a sortable format, investigators can consequences or death to humans or our tentative determination that the trace food through the supply chain animals as a result of such food being waiver should be modified or revoked more quickly. As previously stated, we adulterated under section 402 of the and the reasons for our tentative strongly encourage all entities in the FD&C Act or misbranded under section decision. The proposed provision food industry to adopt the use of 403(w) of the FD&C Act (proposed further states that the notification will electronic data systems for their § 1.1445(b)); or establish a public docket so that traceability operations, including for • the waiver is otherwise contrary to interested persons may submit written maintenance of KDEs, reference records, the public interest (proposed comments on our tentative and traceability program records. § 1.1445(c)). determination. However, we are aware that not all firms One way in which we might become Proposed § 1.1450(b)(2) would have systems in place that would allow aware that the circumstances under provide that, after considering any for the maintenance of these records in which we had granted a waiver to a firm comments timely submitted, we will electronic form, and it might be had changed might be through a routine publish a notification in the Federal burdensome for some firms if we inspection of the firm or an inspection Register of our decision whether to required that all subpart S records be in the course of an investigation into a modify or revoke the waiver and the kept electronically. Therefore, proposed foodborne illness outbreak. In addition, reasons for the decision. Proposed § 1.1455(a)(1) would not require the we would encourage firms to which we § 1.1450(b)(2) further states that if we maintenance of records in electronic had granted a waiver to notify us if their modify or revoke the waiver, the form, although we strongly encourage economic/financial circumstances had effective date of the decision will be 1 electronic recordkeeping. changed such that compliance with year after the date of publication of the subpart S would no longer result in an 2. Record Availability (Proposed notification, unless otherwise stated in § 1.1455(b)) economic hardship for them. that notification. Proposed § 1.1455(b) sets forth 10. Procedures for Modification or I. Records Maintenance and Availability proposed requirements on making Revocation of a Waiver (Proposed (Proposed § 1.1455) records available to FDA. Proposed § 1.1450) Proposed § 1.1455 answers the § 1.1455(b)(1) would require that all Proposed § 1.1450 answers the question, ‘‘How must records required records required to be kept under the question, ‘‘What procedures apply if by this subpart be maintained?’’ We proposed regulations be made available FDA tentatively determines that a propose to adopt several requirements to an authorized FDA representative as waiver should be modified or revoked?’’ concerning the maintenance of records soon as possible but not later than 24 As with respect to requests for waivers, required by subpart S and FDA access hours after the request. Proposed we propose to establish different to these records. § 1.1455(b)(2) would specify that offsite procedures for modifications and storage of records is permitted if such revocations of waivers for (1) individual 1. General Requirements (Proposed records can be retrieved and provided entities and (2) types of entities. § 1.1455(a)) onsite within 24 hours of request for Proposed § 1.1450(a)(1) would provide Proposed § 1.1455(a)(1) would require official review; electronic records would that if we tentatively determine that we that records be kept as original paper or be considered to be onsite if they are should modify or revoke a waiver for an electronic records or true copies (such accessible from an onsite location. individual entity, we will notify the as photocopies, pictures, scanned Proposed § 1.1455(b)(3) would require person that had received the waiver in copies, or other accurate reproductions that, when necessary to help FDA

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prevent or mitigate a foodborne illness removal of the food from the market. of food must retain records according to outbreak, or to assist in the Although we realize that not all persons the following schedule: implementation of a recall, or to subject to the proposed rule currently • Foods having a significant risk of otherwise address a threat to the public maintain such a spreadsheet or other spoilage, loss of value, or loss of health, including but not limited to electronic records, we believe it is not palatability within 60 days after the date situations where FDA has a reasonable unduly burdensome to require firms to of receipt or release: Retain records for belief that an article of food (and any have the capacity to create such a 6 months; other article of food that FDA spreadsheet—limited to the specific • foods for which a significant risk of reasonably believes is likely to be scope of the foods and dates at issue— spoilage, loss of value, or loss of affected in a similar manner) presents a in the event of an outbreak or other palatability occurs 60 days to 6 months threat of serious adverse health threat to the public health. Furthermore, after the date of receipt or release: consequences or death to humans or Retain records for 1 year; and requiring firms to make their tracing • animals as a result of the food being information available to us in such a foods for which a significant risk of adulterated under section 402 of the concise yet comprehensive and spoilage, loss of value, or loss of FD&C Act or misbranded under section accessible form is needed to facilitate palatability does not occur sooner than 403(w) of the FD&C Act, persons subject Agency review of tracing information 6 months after the date of receipt or to the subpart S requirements must and consequently help minimize the release: Retain records for 2 years. These criteria are similar to the make available, within 24 hours of potential harm to public health resulting definitions of perishable, request by an authorized FDA from foodborne illness outbreaks. semiperishable, and long shelf-life food representative, an electronic sortable We request comment on the spreadsheet containing the information used in regulations of the National appropriateness and feasibility of the Institute of Standards and Technology in the records they are required to proposed requirement that information maintain under subpart S, for the foods (NIST). We adopted this record be made available to FDA in this form retention schedule for subpart J records and date ranges specified in the request. when needed to prevent or mitigate a Proposed § 1.1455(b)(3) further states because we concluded that the food foodborne illness outbreak, assist in industry was familiar with the that we will withdraw a request for such implementation of a recall, or address a spreadsheet when necessary to classification of foods into these three credible threats of serious adverse categories due to existing regulations accommodate a religious belief of a health consequences or death due to an person asked to provide a spreadsheet. and practices, and we believed that use adulterated or misbranded food, and, if of this classification would mitigate the (As previously discussed in section not appropriate and/or feasible, what V.B.7, under Option 2 of our co- concern, raised by some commenters, alternate approaches might be regarding inadequate infrastructure for proposal regarding proposed § 1.1305(g), appropriate to address the need for we would exempt retail food long-term storage of records for shorter expedited access to critical traceability shelf-life foods (69 FR 71562 at 71602 to establishments with 10 or fewer full- information in such circumstances. time equivalent employees from this 71603). Proposed § 1.1455(b)(4) would specify requirement.) However, we believe that this tiered We believe that this proposed that, upon FDA request, persons subject record retention approach would not be requirement to provide an electronic to the proposed recordkeeping appropriate for the proposed additional sortable spreadsheet containing requirements must provide within a traceability recordkeeping requirements traceability information on foods that reasonable time an English translation in subpart S. Instead, we believe that, are the focus of an FDA investigation of records maintained in a language except for certain limited exceptions into a foodborne illness outbreak or other than English. A reasonable time previously discussed in this document, other threat to public health would be for translation might vary, for example, records for all foods on the Food one of the most effective ways to from a few days to several days, Traceability List should be retained for improve the speed and efficiency of our depending on the volume of records 2 years. Even though a highly perishable traceback efforts. The electronic requested to be translated and the extent food might pose a risk to consumers for spreadsheet would contain, in a to which persons with the necessary only a few weeks, illnesses caused by a searchable format, all of the information language fluency are available to contaminated food can be linked the person is required to maintain under perform the translation. retrospectively to past illnesses through whole genome sequencing and other the proposed regulations, such as 3. Record Retention (Proposed evidence months or even years after the applicable records of shipment, receipt, § 1.1455(c)) and transformation, for the foods (and food was sold. Exposure and relevant date ranges) that are the subject Proposed § 1.1455(c) would specify consumption information collected from of FDA’s records request. that persons subject to these illness cases can be compared to such As noted, we would only request the recordkeeping requirements must information from past cases of illness specified spreadsheet when we maintain the records containing with the same whole genome conclude that obtaining the information information required under subpart S sequencing pattern. Having access to in this format is necessary to help us for 2 years from the date they created traceability records for the food for up prevent or mitigate a foodborne illness the records, except as specified to 2 years after the records were created outbreak, assist in implementation of a elsewhere in subpart S. We note that could greatly aid our investigation into recall, or address a credible threat of this proposed record retention period an illness outbreak involving the food. serious adverse health consequences or differs from the retention periods in In addition, if we could review food death due to an adulterated or subpart J (§ 1.360), which applies production records up to 2 years old, it misbranded food. Reviewing an different record retention requirements could help us determine whether a electronic sortable spreadsheet would depending on the length of time before current foodborne illness outbreak was allow us to more quickly aggregate a food experiences a significant risk of part of a long-standing contamination tracing information to link points in the spoilage, loss of value, or loss of problem with a food or firm. For these supply chain of a potentially palatability. For example, under reasons, we propose to require that contaminated food, leading to faster § 1.360(b) through (d), nontransporters traceability records for all foods on the

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Food Traceability List be maintained for J. Consequences of Failure To Comply relevant to these factors. We anticipate 2 years after the records were created. (Proposed § 1.1460) periodically performing a review of such information to conclude whether it 4. Electronic Records (Proposed Proposed § 1.1460 answers the is appropriate to revise the Food § 1.1455(d)) question, ‘‘What consequences could result from failing to comply with the Traceability List. In addition, we also Proposed § 1.1455(d) would provide will consider whether new data or other that records that are established or requirements of this subpart?’’ Section 204(j)(1) of FSMA amends section information warrants a reassessment of maintained to satisfy the requirements the methodology used to develop the of subpart S and that meet the definition 301(e) of the FD&C Act to make it a prohibited act to violate any list. of electronic records in 21 CFR Upon review of relevant information, recordkeeping requirement under 11.3(b)(6) (§ 11.3(b)(6)) are exempt from we might conclude that it would be section 204 (except when the violation the requirements of 21 CFR part 11 (part appropriate to revise the Food 11), which contains FDA regulations on is committed by a farm). Therefore, Traceability List by deleting a food from electronic records and electronic proposed § 1.1460(a) would specify that the list, adding a food to the list, or signatures. Proposed § 1.1455(d) would the violation of any recordkeeping both. Proposed § 1.1465(a) would further specify that records that satisfy requirement under section 204 of provide that when we tentatively the requirements of subpart S, but that FSMA, including the violation of any conclude, in accordance with section also are required under other applicable requirement of subpart S, is prohibited 204(d)(2) of FSMA, that it is appropriate statutory provisions or regulations, under section 301(e) of the FD&C Act, to revise the Food Traceability List, we remain subject to part 11, if not except when such violation is will publish a notice in the Federal otherwise exempt (e.g., under other committed by a farm. Register stating the proposed changes to regulations). Section 204(j)(2) of FSMA amended the list and the reasons for these section 801(a) of the FD&C Act by changes, and requesting information 5. Use of Existing Records (Proposed adding paragraph (a)(4), which states § 1.1455(e)) and views on the proposed changes. that FDA shall refuse admission to an Proposed § 1.1465(b) would provide Proposed § 1.1455(e) would provide article of food if it appears from that after considering any information that persons subject to these examination of samples of the food or and views submitted on the proposed recordkeeping requirements would not otherwise that the recordkeeping changes to the list, we will publish a have to duplicate existing records (e.g., requirements under section 204 of notice in the Federal Register stating records kept in the ordinary course of FSMA (other than the requirements whether we are making any changes to business or that are maintained to under section 204(f), which concern the list and the reasons for the decision. comply with other Federal, State, Tribal, FDA requests for information from Proposed § 1.1465(b) further states that territorial, or local regulations) if the farms under certain circumstances, and if we revise the list, we will also publish records contain all of the information which are not addressed in this the revised list on our website. required under the proposed rule. For rulemaking) have not been complied Proposed § 1.1465(c) would specify example, firms would be able to rely on with regarding such article. Therefore, that when we update the Food tracing records they keep in accordance proposed § 1.1460(b) would specify that Traceability List in accordance with with subpart J to meet some of the an article of food is subject to refusal of § 1.1465, any deletions from the list will requirements that would apply to them admission under section 801(a)(4) of the become effective immediately, but any under proposed subpart S. Proposed FD&C Act if it appears that the additions to the list will become § 1.1455(e) further states that persons recordkeeping requirements under effective 1 year after the date of may supplement any such existing section 204 of FSMA (other than the publication of the Federal Register records as necessary to include all of the requirements under section 204(f)), notice announcing the revised list, information required by subpart S. including the requirements of subpart S, unless otherwise stated in the notice. Proposed § 1.1455(e) is consistent with have not been complied with regarding We believe it would be appropriate to section 204(d)(1)(E) of FSMA, which in such article. allow time for persons who part directs that the proposed K. Updating the Food Traceability List manufacture, process, pack, or hold a traceability recordkeeping requirements (Proposed § 1.1465) food that we add to the Food not require the creation and Traceability List to come into maintenance of duplicate records where Proposed § 1.1465 answers the compliance with the additional the required information is contained in question, ‘‘How will FDA update the traceability recordkeeping requirements other company records kept in the Food Traceability List?’’ Section for the food under subpart S. normal course of business. 204(d)(2)(B) of FSMA states that we may Proposed § 1.1455(e) would also update the Food Traceability List to VI. Proposed Effective and Compliance provide that persons subject to the designate new high-risk foods and Dates recordkeeping requirements would not remove foods no longer deemed to be We propose that any final rule on have to keep all of the required high-risk foods, provided that the additional traceability recordkeeping information in one set of records. update of the list is consistent with requirements for persons who However, the provision would specify section 204(d)(2) and we publish notice manufacture, process, pack, or hold that if a person keeps the required of the update in the Federal Register. foods on the Food Traceability List information in more than one set of We will monitor the factors set forth in would become effective 60 days after records, the person must indicate the section 204(d)(2) (e.g., known safety the date on which the rule is published different records in which the risks of foods (including history and in the Federal Register. However, as information is maintained in accordance severity of attributed foodborne illness discussed below, we are proposing to with proposed § 1.1315(a), which would outbreaks), points in manufacturing provide additional time before persons require persons subject to subpart S to processes where contamination is likely subject to the regulations would be maintain a document describing the to occur, likelihood of contamination) required to comply with them. reference records in which required and consider new scientific data or Section 204(i) of FSMA directs that information is kept. other scientific information that is the traceability recordkeeping

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requirements adopted under section associated with at least two prior are likely to reduce the time that a 204(d) will apply to small businesses (as regulations.’’ This proposed rule is an violative or contaminated food product defined under section 103 of FSMA) 1 economically significant regulatory is distributed in the market. year after the effective date of the final action as defined by Executive Order Other non-health related benefits of regulations, and to very small 12866. this rule, if realized, would be from businesses (as defined under section The Regulatory Flexibility Act avoiding costs associated with 103 of FSMA) 2 years after the effective requires us to analyze regulatory options conducting overly broad recalls and date of the final regulations. As defined that would minimize any significant market withdrawals that affect products under section 103 of FSMA, a ‘‘small impact of a rule on small entities. that otherwise would not need to be business’’ is a business (including any Because some small firms may incur withdrawn or recalled. Although recalls subsidiaries and affiliates) employing annualized costs that exceed one of rightly implicated foods come with fewer than 500 full-time equivalent percent of their annual revenue, we find necessary costs, overly broad recalls that employees (see 21 CFR 117.3); a ‘‘very that the proposed rule will have a involve loosely related or unrelated small business’’ is a business (including significant economic impact on a products can make overall recalls any subsidiaries and affiliates), substantial number of small entities. unnecessarily costly. The costs of a averaging less than $1,000,000, adjusted The Unfunded Mandates Reform Act broad recall or market withdrawal for inflation, per year, during the 3-year of 1995 (section 202(a)) requires us to include lost revenues from period preceding the applicable prepare a written statement, which unimplicated products, plus expenses calendar year in sales of human food includes an assessment of anticipated associated with notifying retailers and plus the market value of human food costs and benefits, before proposing consumers, collection, shipping, manufactured, processed, packed, or ‘‘any rule that includes any Federal disposal, inventory, and legal costs.1 held without sale (e.g., held for a fee). mandate that may result in the There are no benefits from removing Although Congress established these expenditure by State, local, and tribal unimplicated products from the market. later compliance dates for smaller governments, in the aggregate, or by the It is possible, but not certain, that both entities, we believe that we could more private sector, of $100,000,000 or more of these categories of benefits separately effectively and efficiently implement (adjusted annually for inflation) in any or jointly could be experienced to the the new traceability recordkeeping one year.’’ The current threshold after extent quantified in this regulatory regulations by having all persons subject adjustment for inflation is $156 million, impact analysis. On the other hand, it is to them come into compliance by the using the most current (2019) Implicit also possible, but not certain, that a same date. In particular, because Price Deflator for the Gross Domestic given instance of baseline proposed § 1.1350(b) would require that Product. This proposed rule would contamination would lead to a very certain records be sent to the immediate result in an expenditure in any year that broad recall (that could be narrowed by subsequent recipient of the food—a meets or exceeds this amount. the proposed rule) or to illnesses (that This proposed rule, if finalized, provision which would help the could be avoided due to the proposed would allow FDA and industry to more recipient comply with the proposed rule), but not both. rapidly and effectively trace food requirements by providing them with Additional benefits may include products that cause illnesses back some of the information necessary to increased food supply system through the food supply system to the comply—we are concerned that efficiencies, such as improvements in source and forward to determine staggered compliance dates would supply chain management and recipients of the contaminated product. hinder the rule’s effectiveness. inventory control; more expedient This rule would only apply to foods we Therefore, we propose that the initiation and completion of recalls; have designated for inclusion on the compliance date for all persons subject avoidance of costs due to unnecessary Food Traceability List. By allowing to these recordkeeping requirements preventive actions by consumers; and faster identification of contaminated would be 2 years after the effective date other food supply system efficiencies of the final regulations. We request foods and increasing rates of successful tracing completions, the proposed rule due to a standardized approach to comment on our proposed approach to traceability, including an increase in compliance dates. may result in public health benefits if foodborne illnesses directly related to transparency and trust and potential VII. Economic Analysis of Impacts those outbreaks are averted. This may deterrence of fraud. This proposed rule, if finalized, We have examined the impacts of the also lead to more efficient use of FDA would impose compliance costs on proposed rule under Executive Order and industry resources needed for covered entities by increasing the 12866, Executive Order 13563, outbreak investigations by potentially number of records that are required for Executive Order 13771, the Regulatory resulting in more precise recalls and food products on the Food Traceability Flexibility Act (5 U.S.C. 601–612), and avoidance of overly broad market the Unfunded Mandates Reform Act of withdrawals and advisories for listed List. Entities that manufacture, process, 1995 (Pub. L. 104–4). Executive Orders foods. pack, or hold listed foods would incur 12866 and 13563 direct us to assess all Benefits from this rule could be costs to establish and maintain costs and benefits of available regulatory generated if the following two 1 For example, in an undifferentiated product alternatives and, when regulation is conditions hold: (1) A foodborne recall, a single firm’s investment in traceability may necessary, to select regulatory outbreak occurs and (2) the traceability be ineffective when competitors and partners have approaches that maximize net benefits records required by this proposed rule not instituted a traceability system. This is (including potential economic, help FDA to quickly and accurately problematic because, for example, in the event of an undifferentiated leafy greens outbreak, issuing a environmental, public health and safety, locate a commercially distributed broad recall could be unavoidable, at least until the and other advantages; distributive violative product and ensure it is implicated product is identified and removed from impacts; and equity). Executive Order removed from the market. The primary the market. In situations where the recalled 13771 requires that the costs associated public health benefits of this rule are the products are insured, targeted recalls will help prevent unnecessary recall of insured products, with significant new regulations ‘‘shall, value from the reduction of the which may have long-term consequence to retailers to the extent permitted by law, be offset foodborne illnesses or deaths because from increases in their insurance rates due to by the elimination of existing costs records required by the proposed rule imprecise recalls.

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traceability records. Some firms may have a tendency toward 6a and 6b avoid a definitive statement also incur initial capital investment and underestimation of the total public that they should be summed. training costs in systems that would health benefits because these four Costs are lower in Option 1, relative enable them to establish, maintain, sort, pathogens do not represent the total to Option 2, because fewer retail food and make available upon our request burden of all illnesses associated with establishments would need to comply their traceability records. Moreover, listed foods.2 However, adjustments with the proposed rule. However, if firms would incur one-time costs of made for undiagnosed and unattributed reading and understanding the rule. The illnesses may have the opposite retail food establishments with 10 or information flows brought about by the tendency of overstating both illnesses fewer full-time equivalent employees proposed rule may prompt new and benefits associated with listed are exempt from the Subpart S protective actions—for example, in foods. We calculate these monetized requirements, the timeliness, precision, farming, manufacturing or cooking benefits from illnesses averted per year and accuracy of traceability efforts can processes—that themselves would have based on an estimated 84 percent be impacted and non-quantified costs. These potential costs have not reduction of traceback time resulting benefits, such as enhancement of our been quantified but their occurrence is from the requirements of this rule. ability to narrow the number of lots in likely to be correlated with the Under Option 1 of the co-proposal, for a recall and the ability of retail food realization of health and longevity an estimated 84 percent traceback establishments with 10 or fewer full- benefits of this rule. improvement, the annualized monetized time equivalent employees to have the Tables 6a and 6b summarize the costs benefits range from $33 million to $1.4 data necessary to quickly identify and and the benefits of the proposed rule. billion with a primary estimate of $567 remove contaminated products from Table 6a shows our estimates of the million, discounted at seven percent shelves, will be lessened in comparison rule’s cost if proposed Option 1 of the over ten years.3 At a three percent to Option 2. Requiring recordkeeping by co-proposal regarding retail food discount rate over ten years, the retail food establishments of all sizes establishments with 10 or fewer full- annualized monetized benefits range allows for more consistent, organized, time equivalent employees (full from $33 million to $1.4 billion with a and specific information that covers the exemption from the proposed rule) were primary estimate of $580 million. entire supply chain. selected. At a seven percent discount Under Option 2 of the co-proposal, for rate, ten-year annualized costs would an estimated 84 percent traceback range from approximately $34 million to improvement, the annualized monetized $2.4 billion per year in 2018 dollars, benefits range from $36 million to $1.5 with a primary estimate of $411 million billion with a primary estimate of $626 per year. At a three percent discount million, discounted at seven percent rate, annualized costs would range from over ten years, and from $37 million to approximately $33 million to $2.4 $1.6 billion with a primary estimate of billion per year, with a primary estimate $640 million, discounted at three of $400 million per year. percent over ten years. Using examples Table 6b shows our estimates of the from three recalls, we also estimate that rule’s cost under proposed Option 2 of additional (non-health) benefits of the co-proposal, which would exempt avoiding overly broad recalls could retail food establishments with 10 or range from $1.7 billion to $5.6 billion fewer full-time equivalent employees per year at a seven percent discount rate from the requirement to provide FDA, and from $1.7 billion to $5.8 billion under certain circumstances, with an using a three percent discount rate. As electronic sortable spreadsheet noted earlier, it is possible that both of containing requested tracing these categories of benefits could be information. At a seven percent experienced to the extent quantified in discount rate, annualized costs under the regulatory impact analysis, either Option 2 would range from separately or jointly. Therefore, tables approximately $43 million to $3.2 billion per year in 2018 dollars, with a 2 We cannot scale up to 100 percent because our primary estimate of $535 million per estimates of the percentage of illnesses potentially year. At a three percent discount rate, avoided with improved traceability depend on data annualized costs would range from specific to each pathogen. We describe our methods in detail in section II.E.2 (‘‘Public Health Benefits approximately $42 million to $3.1 from Averted Illnesses’’) of the full Preliminary billion per year, with a primary estimate Regulatory Impact Analysis (PRIA) for the proposed of $513 million per year. rule (Ref. 26). In short, these four pathogens may We estimate public health benefits account for roughly 95 percent of the total dollar using several case studies of outbreaks value of the illnesses for which traceability might be an effective preventive measure. tracebacks for four pathogens associated 3 See the PRIA for the proposed rule (Ref. 26) for with illnesses caused by foods on the an explanation of the estimated range of benefits of Food Traceability List. These benefits the proposed rule.

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TABLE 6a—SUMMARY OF BENEFITS, COSTS AND DISTRIBUTIONAL EFFECTS OF PROPOSED RULE [Option 1, in millions of dollars]

Units Category Primary Low High Discount Period Notes estimate estimate estimate Year rate covered dollars (%) (years)

Benefits: Annualized Monetized $millions/year ...... $567 $33 $1,355 2018 7 10 Monetized benefits from an 580 33 1,385 2018 3 10 estimated 84% improve- ment in traceback time for four pathogens. Additional benefits of avoiding overly broad recalls could range from $1.7 billion to $5.6 billion (7%, 10 years) and $1.7 billion to $5.8 billion (3%, 10 years).

Annualized Quantified ......

Qualitative ...... Additional potential benefits include increased food ...... supply system efficiencies; more expedient initi- ation and completion of recalls; avoidance of costs due to unnecessary preventive actions; and other efficiencies from a standardized approach to traceability. However, if retail food establish- ments with 10 or fewer full-time equivalent em- ployees are exempt from Subpart S require- ments, the timeliness, precision, and accuracy of traceability efforts can be impacted, and quali- tative benefits, such as the ability to narrow the number of lots in a recall and the ability for retail food establishments with 10 or fewer full-time equivalent employees to have the data necessary to quickly identify and remove contaminated prod- ucts from shelves, will be lessened in comparison to Option 2.

Costs: Annualized Monetized $millions/year ...... $411 $34 $2,425 2018 7 10 A portion of foreign costs 400 33 2,352 2018 3 10 could be passed on to do- mestic consumers. We estimate that up to $259 million in annualized costs (7%, 10 years) to foreign facilities could be passed on to domestic con- sumers.

Annualized Quantified ...... Qualitative ......

Transfers: Federal Annualized Monetized $millions/year ......

From/To ...... From: To:

Other Annualized Monetized $millions/year ......

From/To ...... From: To:

Effects: State, Local or Tribal Government: No significant effect. Small Business: Potential impact on some small entities that are currently not keeping traceability records described by the proposed rule. Wages: N/A. Growth: N/A.

TABLE 6b—SUMMARY OF BENEFITS, COSTS AND DISTRIBUTIONAL EFFECTS OF PROPOSED RULE [Option 2, in millions of dollars]

Units Category Primary Low High Discount Period Notes estimate estimate estimate Year rate covered dollars (%) (years)

Benefits:

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TABLE 6b—SUMMARY OF BENEFITS, COSTS AND DISTRIBUTIONAL EFFECTS OF PROPOSED RULE—Continued [Option 2, in millions of dollars]

Units Category Primary Low High Discount Period Notes estimate estimate estimate Year rate covered dollars (%) (years)

Annualized Monetized $millions/year ...... $626 $36 $1,497 2018 7 10 Monetized benefits from an 640 37 1,531 2018 3 10 estimated 84% reduction in traceback time for four pathogens. Additional benefits of avoiding overly broad recalls could range from $1.7 billion to $5.6 billion (7%, 10 years) and $1.7 billion to $5.8 billion (3%, 10 years).

Annualized Quantified ......

Qualitative ...... Additional unquantified benefits include increased ...... food supply system efficiencies; more expedient initiation and completion of recalls; avoidance of costs due to unnecessary preventive actions; and other efficiencies from a standardized approach to traceability.

Costs: Annualized Monetized $millions/year ...... 535 43 3,210 2018 7 10 A portion of foreign costs 513 42 3,063 2018 3 10 could be passed on to do- mestic consumers. We estimate that up to $259 million in annualized costs (7%, 10 years) to foreign facilities could be passed on to domestic con- sumers. Annualized Quantified ...... Qualitative ......

Transfers: Federal Annualized Monetized $millions/year ......

From/To ...... From: To:

Other Annualized Monetized $millions/year ......

From/To ...... From: To:

Effects: State, Local or Tribal Government: No significant effect. Small Business: Potential impact on small entities that are currently not keeping traceability records described by the proposed rule. Wages: N/A. Growth: N/A.

In accordance with Executive Order and cost savings of the proposed rule regulatory action under Executive Order 13771, in tables 7a and 7b we estimate over an infinite time horizon. This 13771. present and annualized values of costs proposed rule is expected to be a

TABLE 7a—E.O. 13771 SUMMARY TABLE [Option 1, in millions 2016 dollars, over an infinite time horizon]

Primary Lower Upper Item estimate estimate estimate (7%) (7%) (7%)

Present Value of Costs ...... $5,105 $438 $29,659 Present Value of Cost Savings ...... Present Value of Net Costs ...... 5,105 438 29,659 Annualized Costs ...... 357 31 2,076 Annualized Cost Savings ...... Annualized Net Costs ...... 357 31 2,076

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TABLE 7b—E.O. 13771 SUMMARY TABLE [Option 2, in millions 2016 dollars, over an infinite time horizon]

Primary Lower Upper Item estimate estimate estimate (7%) (7%) (7%)

Present Value of Costs ...... $6,288 $532 $36,867 Present Value of Cost Savings ...... Present Value of Net Costs ...... 6,288 532 36,867 Annualized Costs ...... 440 37 2,581 Annualized Cost Savings ...... Annualized Net Costs ...... 440 37 2,581

We have also considered an with listed foods (e.g., public health scenarios where market actors already alternative way of describing costs and benefits of products with better fully account for the costs of overly benefits. Given uncertainties in the data traceability are not captured in product broad recalls. Then recall-associated underlying our costs and benefits price) and/or the costs of overly broad benefits would not be greater than the estimates, tables 8a and 8b explore the recalls (e.g., firms do not invest enough cost of the rule. This means firms have possibility that baseline costs of recalls in traceability because they do not already invested in traceability to the are more fully internalized by market expect other firms to also invest). point where further investment would actors. Primary estimates (and relatively large cost more than the benefit they would Column (a) of tables 8a and 8b portions of the uncertainty ranges) expect to receive. Then the total benefits explores the possibility that market indicate that benefits of the rule would of the rule, including health benefits, actors do not already account for the be greater than the rule’s cost. Column may or may not be greater than the costs of foodborne illnesses associated (b) of tables 8a and 8b considers rule’s cost.

TABLE 8a—SUMMARY OF BENEFITS AND COSTS OF PROPOSED RULE (OPTION 1), ASAFUNCTION OF ASSUMPTIONS REGARDING BASELINE COST INTERNALIZATION *

Neither adverse health effects nor recall-associated costs Recall-associated costs, but not adverse health effects, fully fully internalized in market transactions for listed foods internalized in market transactions for listed foods

(a) (b)

PRIA Section Health Benefits: $567M (range: $33M to $1.4B) ...... Health Benefits: $567M (range: $33M to $1.4B) IV.B. and/or ...... PRIA Section Recall-Associated Benefits: $1.7B to $5.6B ...... Recall-Associated Benefits: $1.7B to $5.6B. II.E.3. Direct Compliance Costs >$1.7B to $5.6B. Protective Action Costs (potential): Not quantified. or Recall-Associated Benefits < Costs. PRIA Sections Direct Compliance Costs (if foreign passed through to U.S. Direct Compliance Costs (if foreign passed through to U.S. IV.C and IV.D. supply chain & consumers): $670M (range: $52M to $4B). supply chain & consumers): $670M (range: $52M to $4B). Direct Compliance Costs (if foreign not passed through to Direct Compliance Costs (if foreign not passed through to U.S. supply chain & consumers): $411M (range: $34M to U.S. supply chain & consumers): $411M (range: $34M to $2.4B). $2.4B). Protective Action Costs (potential): not quantified ...... Protective Action Costs (potential): not quantified. * Primary estimates presented in this table are calculated with a 7 percent discount rate; primary estimates discounted at 3 percent differ only slightly. All estimates are expressed in 2018 dollars and annualized over 10 years. Abbreviations: M = million, B = billion.

TABLE 8b—SUMMARY OF BENEFITS AND COSTS OF PROPOSED RULE (OPTION 2), ASAFUNCTION OF ASSUMPTIONS REGARDING BASELINE COST INTERNALIZATION *

Neither adverse health effects nor recall-associated costs Recall-associated costs, but not adverse health effects, fully fully internalized in market transactions for listed foods internalized in market transactions for listed foods

(a) (b)

PRIA Section Health Benefits: $626M (range: $36M to $1.5B) ...... Health Benefits: $626M (range: $36M to $1.5B). II.E.2. and/or ...... Recall-Associated Benefits: $1.7B to $5.6B. PRIA Section Recall-Associated Benefits: $1.7B to $5.6B ...... Direct Compliance Costs >$1.7B to $5.6B II.E.3. Protective Action Costs (potential): Not quantified. or Recall-Associated Benefits < Costs. RIA Sections Direct Compliance Costs (if foreign passed through to U.S. Direct Compliance Costs (if foreign passed through to U.S. II.F and II.H. supply chain & consumers): $794M (range: $61M to $4.8B). supply chain & consumers): $794M (range: $61M to $4.8B). Direct Compliance Costs (if foreign not passed through to Direct Compliance Costs (if foreign not passed through to U.S. supply chain & consumers): $535M (range: $43M to U.S. supply chain & consumers): $535M (range: $43M to $3.2B). $3.2B).

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TABLE 8b—SUMMARY OF BENEFITS AND COSTS OF PROPOSED RULE (OPTION 2), ASAFUNCTION OF ASSUMPTIONS REGARDING BASELINE COST INTERNALIZATION *—Continued

Neither adverse health effects nor recall-associated costs Recall-associated costs, but not adverse health effects, fully fully internalized in market transactions for listed foods internalized in market transactions for listed foods

(a) (b)

Protective Action Costs (potential): Not quantified ...... Protective Action Costs (potential): Not quantified. * Primary estimates presented in this table are calculated with a 7 percent discount rate; primary estimates discounted at 3 percent differ only slightly. All estimates are expressed in 2018 dollars and annualized over 10 years. Abbreviations: M = million, B = billion.

The full PRIA (Ref. 26) is available in collection of information is necessary with section 204(d)(2) of FSMA. The the docket for this proposed rule and at for the proper performance of FDA’s proposed subpart S recordkeeping, http://www.fda.gov/AboutFDA/Reports functions, including whether the reporting, and disclosure requirements ManualsForms/Reports/Economic information will have practical utility; are intended to strengthen public health Analyses/default.htm). (2) the accuracy of FDA’s estimate of the protections by improving FDA’s ability VIII. Analysis of Environmental Impact burden of the proposed collection of to trace the movement of foods information, including the validity of throughout the supply chain to identify We have determined under 21 CFR the methodology and assumptions used; the source of contaminated foods and 25.30(h) that this action is of a type that (3) ways to enhance the quality, utility, aid in the removal of contaminated does not individually or cumulatively and clarity of the information to be products from the market. Access to and have a significant effect on the human collected; and (4) ways to minimize the utilization of such records would better environment. Therefore, neither an burden of the collection of information enable FDA to respond to and contain environmental assessment not an on respondents, including through the threats to the public health introduced environmental impact statement is use of automated collection techniques, through foods on the Food Traceability required. when appropriate, and other forms of List (‘‘listed foods’’). Existing IX. Paperwork Reduction Act of 1995 information technology. regulations in subpart J set forth traceability recordkeeping requirements This proposed rule contains Title: Traceability Records for Certain for firms that manufacture, process, information collection provisions that Foods—OMB Control No. 0910–0560— pack, transport, distribute, receive, hold, are subject to review by the Office of Revision. or import food. We are proposing to Management and Budget (OMB) under Description: If the proposed rule is establish additional recordkeeping the Paperwork Reduction Act of 1995 finalized, provisions in 21 CFR part 1, (44 U.S.C. 3501–3521). A description of subpart S, would implement section requirements for foods on the Food these provisions is given in the 204(d)(1) of FSMA, which requires FDA Traceability List. Description section with an estimate of to establish traceability recordkeeping Description of Respondents: Except as the reporting, recordkeeping, and requirements, in addition to the specified otherwise, the requirements in disclosure burden associated with the requirements under section 414 of the the proposed rule apply to persons who proposed rule. Included in the estimate FD&C Act and 21 CFR part 1, subpart J manufacture, process, pack, or hold is the time for reviewing instructions, (the subpart J requirements) (currently foods that appear on the list of foods for searching existing data sources, approved under OMB control number which additional traceability records are gathering and maintaining the data 0910–0560), for facilities that required in accordance with section needed, and completing and reviewing manufacture, process, pack, or hold 204(d)(2) of FSMA (the Food each collection of information. foods that the Agency has designated as Traceability List). FDA invites comments on these high-risk foods (i.e., placed on the We estimate the burden of the topics: (1) Whether the proposed ‘‘Food Traceability List’’) in accordance information collection as follows:

TABLE 9—ESTIMATED ONE-TIME RECORDKEEPING BURDEN

Number of Average burden Proposed activity Number of records per Total annual per record Total hours respondents respondent records (in hours)

Reading and understanding the new record- 422,145 1 422,145 3.3...... 1,393,079 keeping requirements. § 1.1315; traceability program records (one-time 130,063 1,000 130,063,000 0.03 (2 minutes) ...... 3,901,890 set-up). Training personnel ...... 96,644 3 289,932 2 ...... 579,864

Total ...... 5,874,833

As reflected in table 9, we assume all assume that reading and understanding of establishing traceability program potential respondents to the information the new requirements will require an records under proposed § 1.1315. We collection will incur burden for reading average of 3.3 hours for each of the estimate that 130,063 firms will need and understanding the proposed 422,145 respondents, for an estimated 0.03 hours to establish each of an regulations. Based on our experience burden of 1,393,079 hours. In addition, average of 1,000 records, for an with similar information collection, we some firms will incur a one-time burden estimated one-time burden of 3,901,890

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hours. Additionally, upon reviewing the training employees in procedures for 2 hours of training with respect to an regulations and implementing properly documenting key data average of 3 records, for a total of procedures to satisfy the information elements identified in the proposed 579,864 hours. Cumulatively, this collection, we expect that some firms regulations. We estimate that 96,644 results in a total of 5,874,833 one-time will incur burden associated with firms will need to conduct an average of burden hours for respondents.

TABLE 10—ESTIMATED ANNUAL REPORTING BURDEN

Average Number of Number of Total annual burden per Proposed reporting activity respondents responses per responses response Total hours respondent (in hours)

§ 1.1370; Requests for modified requirements and exemp- tions ...... 5 1 5 10 50 §§ 1.1415 through 1.1425; Requests for waivers ...... 15 1 15 10 150 § 1.1465(a); Comments on proposed revisions to the Food Traceability List...... 1 1 1 1 1

Total ...... 22 ...... 202

Proposed §§ 1.1300 and 1.1305 set experience with similar information requests (compared to requests for forth the scope and applicability of the collection, we assume few requests for modified requirements or an exemption) regulations, as well as identify certain modified requirements or exemptions will be submitted and we therefore foods and persons that would be exempt will be submitted to the Agency and provide a base estimate of 15 from the additional recordkeeping therefore provide a base estimate of five submissions annually, as reflected in requirements. Proposed §§ 1.1360 submissions annually, as reflected in table 10, row 2. Assuming each through 1.1400 discuss how table 10, row 1. Assuming each submission requires an average of 10 respondents to the information submission requires an average of 10 hours to prepare, this results in a total collection may request modified hours to prepare, this results in a total of 150 hours. We invite comment on the requirements and exemptions from the of 50 hours. We invite comment on the estimated burden associated with subpart S requirements for certain foods estimated burden associated with requests for waivers from the proposed or types of entities. If the proposed rule requests for modified requirements or requirements. exemptions from the proposed is finalized, the regulations would requirements. Finally, proposed § 1.1465 provides explain the procedures and identify the Proposed §§ 1.1410 through 1.1455 for FDA publication of proposed content and format elements that should pertain to waivers from the subpart S updates to the Food Traceability List in be included in such requests submitted requirements for individual entities and the Federal Register, which would to FDA, as well as the procedures FDA types of entities. If the rule is finalized, include the opportunity for public will follow when proposing modified these regulations would specify that the comment on proposed changes. Because requirements or exemptions on its own procedures for submitting waiver we believe that, on an annualized basis, initiative. Specifically, the proposed requests for types of entities are the burden associated with submitting regulations provide that respondents governed by § 10.30 and would identify comments on a proposed change to the requesting modified requirements and requisite content and format elements Food Traceability List would be exemptions must petition the Agency for such requests. The regulations negligible, we provide a minimal under our regulations in § 10.30. In would further specify that requests for estimate of one response requiring 1 accordance with the proposed waivers for individual entities are to be burden hour annually, as reflected in regulations, FDA will publish a made via written requests (not governed table 10, row 3. We invite comment on notification in the Federal Register by § 10.30). Based on our experience the estimated burden associated with requesting information and views on a with similar information collection, we requesting views on a proposed updated submitted petition. Based on our believe that slightly more waiver Food Traceability List.

TABLE 11—ESTIMATED ANNUAL RECORDKEEPING BURDEN

Number of Average burden Proposed 21 CFR recordkeeping Number of records per Total annual per recordkeeping Total hours recordkeepers recordkeeper records (in hours)

§ 1.1305; partial exemption under: (e)(2)—com- 1 1 1 1...... 1 mingled RACs; (h)(2)—retail food establish- ments; (i)(2)—farms; (j)(2)—fishing vessels. § 1.1315; traceability program general records 130,063 1,000 130,063,000 0.004 (15 seconds) ...... 520,252 (recurring). § 1.1325; grower (non-sprout growers) ...... 9,408 1,000 9,408,000 0.03 (2 minutes) ...... 282,240 § 1.1325; grower (sprout growers) ...... 51 1,000 51,000 0.07 (4 minutes) ...... 3,570 § 1.1330; first receiver ...... 12,700 1,000 12,700,000 0.03 (2 minutes) ...... 381,000 § 1.1335; receiver ...... 265,610 1,000 265,610,000 0.004 (15 seconds) ...... 1,062,440 § 1.1340; transformer ...... 5,244 1,000 5,244,000 0.03 (2 minutes) ...... 157,320 § 1.1345; creator ...... 222 1,000 222,000 0.03 (2 minutes) ...... 6,660

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TABLE 11—ESTIMATED ANNUAL RECORDKEEPING BURDEN—Continued

Number of Average burden Proposed 21 CFR recordkeeping Number of records per Total annual per recordkeeping Total hours recordkeepers recordkeeper records (in hours)

§ 1.1350; shipper (wholesalers/warehouses/dis- 12,657 48,333 611,750,781 0.008 (30 seconds) ...... 4,894,006 tribution centers; includes disclosure require- ment). § 1.1350; shipper (other shippers; includes dis- 16,936 1,000 16,936,000 0.06 (3.5 minutes) ...... 1,016,160 closure requirement).

Total ...... 8,323,649

Proposed § 1.1305 provides for certain and the key data elements that must be record of application of a kill step to exemptions and partial exemptions from documented. listed foods would not create an the proposed subpart S requirements. In table 11, we provide recordkeeping additional recordkeeping burden for For the proposed partial exemptions for burden estimates associated with these such firms under the proposed rule. recordkeeping requirements. The farm to school programs and for retail Proposed § 1.1455 discusses the number of respondents, number of food establishments with respect to food maintenance and accessibility of records, and time per recordkeeping produced on a farm and sold directly to records. Under proposed § 1.1455(b)(3), activity is consistent with figures the retail food establishment, we when necessary to help FDA prevent or included in our PRIA for the proposed conclude that any burden under the mitigate a foodborne illness outbreak, rule (Ref. 26). Although we note that proposed rule would be negligible shippers of listed foods must also assist in the implementation of a recall, because most retail food establishments disclose required records in accordance or otherwise address a threat to the and farms already keep the records they with proposed § 1.1350(b), we have public health, respondents may be would be required to keep under the included this burden as part of our asked to make available within 24 hours partial exemptions (i.e., the name and recordkeeping estimate for this of request by an authorized FDA address of the farm that was the source provision. This is because we believe representative an electronic sortable of the food) as part of their standard that this disclosure burden would be spreadsheet containing the information business practices. For these reasons, minimal since, with the exception of they are required to maintain under we therefore provide a minimum certain information that farms must subpart S, for the foods and date ranges estimate of one respondent requiring 1 disclose (addressed in table 12 below), specified in the request. We anticipate hour to establish one record, resulting in respondents must establish and that most firms will never be the subject an estimated burden of 1 hour. We maintain such information under the of such a request, because the proposed invite comment on the estimated burden proposed rule. We invite comment on provision only applies to situations associated with these partial exemptions the estimated burden associated with where there is a threat to the public in proposed § 1.1305. both recordkeeping and disclosure health. Furthermore, we believe that provisions in §§ 1.1315 and 1.1325 such spreadsheets can be created using The requirements in §§ 1.1315 through 1.1350 of the proposed rule. software that is readily available and through 1.1350 would identify Proposed § 1.1355 would exempt that is commonly used for other general respondents who are subject to the listed foods to which a kill step has business purposes. In situations where respective recordkeeping provisions, been applied from all subsequent the firm does not maintain records including with respect to general requirements of the proposed rule, electronically, the information for the traceability program records and records provided that a record of application of specific foods and date ranges could be documenting the critical tracking events the kill step is maintained. Because input manually into such software. We of growing, receiving (including by first firms that apply a kill step to a food are therefore estimate any additional receivers), transforming, creating, and required to document this activity under burden posed by proposed shipping foods on the Food Traceability other FDA regulations (e.g., 21 CFR § 1.1455(b)(3) would be negligible. We List. The requirements specify when 113.100, 21 CFR 117.190(a)(2)), the invite comment on this estimated certain records should be established proposed requirement to maintain a burden.

TABLE 12—ESTIMATED ANNUAL DISCLOSURE BURDEN

Average Number of Number of Total annual burden per Proposed disclosure activity respondents disclosures per disclosures disclosure Total hours respondent (in hours)

§ 1.1350(b)(2); farms ...... 9,459 1,000 9,459,000 0.004 37,836

Total ......

In addition to the disclosures that attributable to requirements to disclose table 12 we estimate that 9,459 farms entities other than farms must make information (if applicable) about the will need to make 1,000 such under proposed § 1.1350(b), farms origination, harvesting, cooling, and disclosures, resulting in a total would incur additional burden packing of the food the farm shipped. In disclosure burden of 37,836 hours. We

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invite comment on this estimated Friday; they are also available January 24, 2020 (https://www.fda.gov/ disclosure burden for farms under electronically at https:// food/outbreaks-foodborne-illness/ proposed § 1.1350(b)(2). www.regulations.gov. References outbreak-investigation-scombrotoxin- To ensure that comments on without asterisks are not on public fish-poisoning-yellowfinahi-tuna- information collection are received, november-2019). display at https://www.regulations.gov 11. Hassan, R., B. Whitney, D.L. Williams, et OMB recommends that written because they have copyright restriction. al., ‘‘Multistate Outbreaks of Salmonella comments be submitted to https:// Some may be available at the website Infections Linked to Imported Maradol www.reginfo.gov/public/do/PRAMain address, if listed. References without Papayas—United States, December (see ADDRESSES). All comments should asterisks are available for viewing only 2016–September 2017,’’ Epidemiology be identified with the title of the at the Dockets Management Staff. FDA and Infection, 147:E265, 2019. information collection. has verified the website addresses as of 12. * Institute of Food Technologists, ‘‘Pilot In compliance with the Paperwork the date this document publishes in the Projects for Improving Product Tracing Along the Food Supply System—Final Reduction Act of 1995 (44 U.S.C. Federal Register, but websites are 3407(d)), we have submitted the Report,’’ August 2012 (https:// subject to change over time. www.google.com/url?sa=t&rct=j&q=& information collection provisions of this 1. * Institute of Food Technologists, ‘‘Task esrc=s&source=web& proposed rule to OMB for review. These Order No. 7 Final Report (revised): cd=3&ved=2ahUKEwiIouiZ6 information collection requirements Tracing systems: an exercise exploring tvnAhU7kHIEHWMoDS0QFjAC will not be effective until FDA data needs and design,’’ 2009. egQIAxAB&url= publishes a final rule, OMB approves 2. * The SoyNut Butter Co., ‘‘The Soynut https%3A%2F%2Fwww.fda.gov the information collection requirements, Butter Co Recalls I.M. Healthy Original %2Fmedia%2F124149%2F Creamy Soynut Butter Because of download&usg=AOvVaw0eWDUpKt and the rule goes into effect. We will _ announce OMB approval of the Possible Health Risk,’’ March 3, 2017 LegiKqn c9NdU1). 13. * FDA, ‘‘Report to Congress on Enhancing information collection requirements in (https://www.fda.gov/safety/recalls- market-withdrawals-safety-alerts/soynut- Tracking and Tracing of Food and the Federal Register. butter-co-recalls-im-healthy-original- Recordkeeping. Submitted Pursuant to X. Federalism creamy-soynut-butter-because-possible- Section 204 of the FDA Food Safety health-risk). Modernization Act, Public Law 111– We have analyzed this proposed rule 3. * CDC, ‘‘Multistate Outbreak of Shiga 353,’’ November 16, 2016 (https:// in accordance with the principles set Toxin-Producing Escherichia coli www.fda.gov/media/102784/download). forth in Executive Order 13132. We O157:H7 Infections Linked to I.M. 14. * FDA, ‘‘FDA’s Response to External Peer have determined that the proposed rule Healthy Brand SoyNut Butter (Final Review—Model Review on FDA’s ‘Draft does not contain policies that have Update),’’ May 4, 2017 (https:// Report for Peer Review: Risk-Ranking substantial direct effects on the States, www.cdc.gov/ecoli/2017/o157h7-03-17/ Model for Product Tracing as Required on the relationship between the index.html). by Section 204 of FSMA’ (September 4. * FDA, ‘‘FDA Investigated Multistate 2015),’’ August 2020. National Government and the States, or Outbreak of E. coli O157:H7 Infections 15. * FDA, ‘‘FDA’s Response to External Peer on the distribution of power and Linked to SoyNut Butter,’’ May 4, 2017 Review—Data Review on FDA’s ‘Draft responsibilities among the various (https://www.fda.gov/food/outbreaks- Report for Peer Review: Risk-Ranking levels of government. Accordingly, we foodborne-illness/fda-investigated- Model for Product Tracing as Required conclude that the rule does not contain multistate-outbreak-e-coli-o157h7- by Section 204 of FSMA’ (September policies that have federalism infections-linked-soynut-butter). 2015),’’ August 2020. implications as defined in the Executive 5. * Pro Sports Club, ‘‘Pro Sports Club Recalls 16. * FDA Memorandum, ‘‘Methodological order and, consequently, a federalism Yogurt Peanut Crunch Bar Because of Approach to Developing a Risk-Ranking summary impact statement is not Possible Health Risk,’’ March 24, 2017 Model for Food Tracing FSMA Section (https://www.fda.gov/safety/recalls- 204 (21 U.S. Code § 2223),’’ August 2020 required. market-withdrawals-safety-alerts/pro- (https://www.fda.gov/food/food-safety- XI. Consultation and Coordination With sports-club-recalls-yogurt-peanut- modernization-act-fsma/fsma-reports- Indian Tribal Governments crunch-bar-because-possible-health- studies). risk). 17. * FDA Memorandum, ‘‘Designation of the We have analyzed this proposed rule 6. Laughlin, M., L. Bottichio, J. Weiss, et al., Food Traceability List Using the Risk- in accordance with the principles set ‘‘Multistate Outbreak of Salmonella Ranking Model for Food Tracing (2019 forth in Executive Order 13175. We Poona Infections Associated with Version),’’ September 2, 2020. have tentatively determined that the Imported Cucumbers, 2015–2016,’’ 18. * FDA Memorandum, ‘‘Food Traceability rule does not contain policies that Epidemiology and Infection, 147:1017, List for Requirements for Additional would have a substantial direct effect on 2019. Traceability Records for Certain Foods one or more Indian Tribes, on the 7. Cavallaro, E., K. Date, C. Medus, et al., Proposed Rule 2020,’’ August 12, 2020. ‘‘Salmonella Typhimurium Infections 19. * FDA Memorandum, ‘‘Summary of relationship between the Federal Associated with Peanut Products,’’ New Meetings With Stakeholders on Government and Indian Tribes, or on England Journal of Medicine, 365:601– Development of Additional the distribution of power and 610, 2011. Recordkeeping Requirements for Certain responsibilities between the Federal 8. Bottichio, L., A. Keaton, D. Thomas, et al., Foods Under Section 204(d) of the FDA Government and Indian Tribes. We ‘‘Shiga Toxin-Producing E. coli Food Safety Modernization Act,’’ July 20, invite comments from tribal officials on Infections Associated With Romaine 2020. any potential impact on Indian Tribes Lettuce—United States, 2018,’’ Clinical 20. Sterling, B., M. Gooch, B. Dent, et al., from this proposed action. Infectious Diseases, ciz1182, 2019. ‘‘Assessing the Value and Role of 9. Abanyie, F., R.R. Harvey, J.R. Harris, et al., Seafood Traceability from an Entire XII. References ‘‘2013 multistate outbreaks of Cyclospora Value-Chain Perspective,’’ The following references marked with cayetanensis infections associated with Comprehensive Reviews in Food Science fresh produce: Focus on the Texas and Food Safety, 14:205–268, 2015. an asterisk (*) are on display at the investigations,’’ Epidemiology and 21. * FDA, ‘‘A New Era of Smarter Food Dockets Management Staff (see Infection, 143:3451–3458, 2015. Safety; Public Meeting; Request for ADDRESSES) and are available for 10. * FDA, ‘‘Outbreak Investigation of Comments,’’ Docket No. 2019–N–4187, viewing by interested persons between Scombrotoxin Fish Poisoning: September 18, 2019 (https:// 9 a.m. and 4 p.m., Monday through Yellowfin/Ahi Tuna (November 2019),’’ www.federalregister.gov/documents/

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2019/09/18/2019-20229/a-new-era-of- 1.1320 When must I establish and assign 1.1420 What process applies to a request for smarter-food-safety-public-meeting- traceability lot codes to foods on the a waiver for an individual entity? request-for-comments). Food Traceability List? 1.1425 What must be included in a petition 22. * FDA Memorandum, ‘‘Inclusion of Retail requesting a waiver for a type of entity? Records of Growing, Receiving, Establishments of All Sizes Under FSMA 1.1430 What information submitted in a Transforming, Creating, and Shipping Food Section 204,’’ August 13, 2020. petition requesting a waiver for a type of 23. National Advisory Committee on 1.1325 What records must I keep when I entity, or information in comments on Microbiological Criteria for Foods, grow a food on the Food Traceability such a petition, is publicly available? ‘‘Microbiological Safety Evaluations and List? 1.1435 What process applies to a petition Recommendations on Sprouted Seeds,’’ 1.1330 What records must I keep when I am requesting a waiver for a type of entity? International Journal of Food the first receiver of a food on the Food 1.1440 What process will FDA follow when Microbiology 52(3): 123–153 (1999). Traceability List? waiving a requirement of this subpart on 24. * FDA Memorandum, ‘‘2012–2020 1.1335 What records must I keep when I our own initiative? Sprout-Related Outbreak Data,’’ July 20, receive a food on the Food Traceability 1.1445 Under what circumstances may FDA 2020. List? modify or revoke a waiver? 25. * FDA, ‘‘Reducing Microbial Food Safety 1.1340 What records must I keep when I 1.1450 What procedures apply if FDA Hazards in the Production of Seed for transform a food on the Food tentatively determines that a waiver Sprouting: Guidance for Industry’’ (Draft Traceability List? should be modified or revoked? Guidance), June 2019 (https:// 1.1345 What records must I keep when I Records Maintenance and Availability www.fda.gov/regulatory-information/ create a food on the Food Traceability search-fda-guidance-documents/draft- List? 1.1455 How must records required by this guidance-industry-reducing-microbial- 1.1350 What records must I keep and send subpart be maintained? when I ship a food on the Food food-safety-hazards-production-seed- Consequences of Failure To Comply sprouting). Traceability List? 26. * FDA, ‘‘Preliminary Regulatory Impact Special Requirements for Certain Persons 1.1460 What consequences could result Analysis; Initial Regulatory Flexibility and Foods from failing to comply with the Analysis; Unfunded Mandates Reform requirements of this subpart? 1.1355 What recordkeeping requirements Act Analysis,’’ Docket No. FDA–2014– apply to foods on the Food Traceability Updating the Food Traceability List N–0053, September 2020. List that are subjected to a kill step? 1.1465 How will FDA update the Food List of Subjects in 21 CFR Part 1 Procedures for Modified Requirements and Traceability List? Exemptions Cosmetics, Drugs, Exports, Food Subpart S—Additional Traceability labeling, Imports, Labeling, Reporting 1.1360 Under what circumstances will FDA Records for Certain Foods and recordkeeping requirements. modify the requirements in this subpart that apply to a food or type of entity or General Provisions Therefore, under the Federal Food, exempt a food or type of entity from the Drug, and Cosmetic Act and under requirements of this subpart? § 1.1300 Who is subject to this subpart? authority delegated to the Commissioner 1.1365 When will FDA consider whether to Except as specified otherwise in this of Food and Drugs, it is proposed that adopt modified requirements or grant an subpart, the requirements in this 21 CFR part 1 be amended as follows: exemption from the requirements of this subpart? subpart apply to persons who PART 1—GENERAL ENFORCEMENT 1.1370 What must be included in a petition manufacture, process, pack, or hold REGULATIONS requesting modified requirements or an foods that appear on the list of foods for exemption from the requirements? which additional traceability records are ■ 1. The authority citation for part 1 is 1.1375 What information submitted in a required in accordance with section petition requesting modified revised to read as follows: 204(d)(2) of the FDA Food Safety requirements or an exemption, or Modernization Act (Food Traceability Authority: 15 U.S.C. 1333, 1453, 1454, information in comments on such a List). FDA will publish the Food petition, is publicly available? 1455, 4402; 19 U.S.C. 1490, 1491; 21 U.S.C. Traceability List on its website in 321, 331, 332, 333, 334, 335a, 343, 350c, 1.1380 What process applies to a petition 350d, 350j, 352, 355, 360b, 360ccc, 360ccc– requesting modified requirements or an accordance with section 204(d)(2)(B) of 1, 360ccc–2, 362, 371, 374, 381, 382, 384a, exemption? the FDA Food Safety Modernization 387, 387a, 387c, 393, and 2223; 42 U.S.C. 1.1385 What process will FDA follow when Act. 216, 241, 243, 262, 264, 271. adopting modified requirements or granting an exemption on our own § 1.1305 What foods and persons are ■ 2. Add subpart S, consisting of initiative? exempt from this subpart? §§ 1.1300 through 1.1465, to read as 1.1390 When will modified requirements (a) Exemptions for small originators— follows: that we adopt or an exemption that we (1) Certain produce farms. This subpart grant become effective? does not apply to farms or the farm Subpart S—Additional Traceability Records 1.1395 Under what circumstances may FDA for Certain Foods activities of farm mixed-type facilities revise or revoke modified requirements with respect to the produce (as defined Sec. or an exemption? 1.1400 What procedures apply if FDA in § 112.3 of this chapter) they grow, tentatively determines that modified when the farm is not a covered farm General Provisions requirements or an exemption should be under part 112 of this chapter in 1.1300 Who is subject to this subpart? revised or revoked? accordance with § 112.4(a) of this 1.1305 What foods and persons are exempt Waivers chapter. from this subpart? (2) Certain shell egg producers. This 1.1310 What definitions apply to this 1.1405 Under what circumstances will FDA subpart does not apply to shell egg subpart? waive one or more of the requirements producers with fewer than 3,000 laying of this subpart for an individual entity or Traceability Program Records a type of entity? hens at a particular farm, with respect 1.1315 What traceability program records 1.1410 When will FDA consider whether to to the shell eggs they produce at that must I have for foods on the Food waive a requirement of this subpart? farm. Traceability List that I manufacture, 1.1415 How may I request a waiver for an (3) Certain other originators of food. process, pack, or hold? individual entity? This subpart does not apply to

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originators of food with an average term ‘‘commingled raw agricultural business, which may own numerous annual monetary value of food sold commodity’’ does not include types of retail stores. during the previous 3-year period of no fruits and vegetables that are raw (h) Partial exemption for retail food more than $25,000 (on a rolling basis), agricultural commodities to which the establishments. (1) Except as specified adjusted for inflation using 2019 as the standards for the growing, harvesting, in paragraph (h)(2) of this section, the baseline year for calculating the packing, and holding of produce for recordkeeping requirements of this adjustment. human consumption in part 112 of this subpart do not apply to a retail food (b) Exemption for farms when food is chapter apply. For purposes of this establishment with respect to a food that sold directly to consumers. This subpart paragraph (f)(1), a commodity is is produced on a farm (including food does not apply to a farm with respect to ‘‘combined or mixed’’ only when the produced and packaged on the farm) food produced on the farm (including combination or mixing involves food and sold directly to the retail food food that is also packaged on the farm) from different farms. Also, for purposes establishment by the owner, operator, or that is sold directly to a consumer by of this paragraph (f)(1), the term agent in charge of that farm. the owner, operator, or agent in charge ‘‘processing’’ means operations that (2) When a retail food establishment of the farm. alter the general state of the commodity, purchases a food on the Food (c) Inapplicability to certain food such as canning, cooking, freezing, Traceability List directly from a farm in produced and packaged on a farm. This dehydration, milling, grinding, accordance with paragraph (h)(1) of this subpart does not apply to food produced pasteurization, or homogenization. section, the retail food establishment must establish and maintain a record and packaged on a farm, provided that: (2) With respect to a commingled raw (1) The packaging of the food remains documenting the name and address of agricultural commodity that receives the in place until the food reaches the the farm that was the source of the food. exemption set forth in paragraph (f)(1) consumer, and such packaging The retail food establishment must of this section, if a person who maintains the integrity of the product maintain such records for 180 days. manufactures, processes, packs, or holds and prevents subsequent contamination (i) Partial exemption for farm to such commingled raw agricultural or alteration of the product; and school and farm to institution programs. commodity is required to register with (2) The labeling of the food that (1) Except as specified in paragraph FDA under section 415 of the Federal reaches the consumer includes the (i)(2) of this section, this subpart does Food, Drug, and Cosmetic Act with name, complete address (street address, not apply to an institution operating a respect to the manufacturing, town, State, country, and zip or other child nutrition program authorized processing, packing, or holding of the postal code for a domestic farm and under the Richard B. Russell National applicable raw agricultural commodity, comparable information for a foreign School Lunch Act or Section 4 of the in accordance with the requirements of farm), and business phone number of Child Nutrition Act of 1966, or any subpart H of this part, such person must the farm on which the food was other entity conducting a farm to school maintain records identifying the produced and packaged. Upon request, or farm to institution program, with immediate previous source of such raw FDA will waive the requirement to respect to a food that is produced on a agricultural commodity and the include a business phone number, as farm (including food produced and immediate subsequent recipient of such appropriate, to accommodate a religious packaged on the farm) and sold directly food in accordance with §§ 1.337 and belief of the individual in charge of the to the school or institution. 1.345. Such records must be maintained farm. (2) When a school or institution (d) Inapplicability to foods that for 2 years. conducting farm to school or farm to receive certain types of processing. This Option 1 for Paragraph (g) institution activities purchases a food subpart does not apply to the following directly from a farm in accordance with foods that receive certain processing: (g) Exemption for small retail food paragraph (i)(1) of this section, the (1) Produce that receives commercial establishments. This subpart does not school food authority or relevant food processing that adequately reduces the apply to retail food establishments that procurement entity must establish and presence of microorganisms of public employ 10 or fewer full-time equivalent maintain a record documenting the health significance, provided the employees. The number of full-time name and address of the farm that was conditions set forth in § 112.2(b) of this equivalent employees is based on the the source of the food. The school food chapter are met for the produce; and number of such employees at each retail authority or relevant food procurement (2) Shell eggs when all eggs produced food establishment and not the entire entity must maintain such records for at the particular farm receive a business, which may own numerous 180 days. treatment (as defined in § 118.3 of this retail stores. (j) Partial exemption for food chapter) in accordance with Option 2 for Paragraph (g) produced through the use of fishing § 118.1(a)(2) of this chapter. vessels. (1) Except as specified in (e) Exemption for produce that is (g) Partial exemption for small retail paragraph (j)(2) of this section, with rarely consumed raw. This subpart does food establishments. The requirement in respect to a food that is produced not apply to produce that is listed as § 1.1455(b)(3) to make available to FDA through the use of a fishing vessel, this rarely consumed raw in § 112.2(a)(1) of under specified circumstances an subpart does not apply to the owner, this chapter. electronic sortable spreadsheet operator, or agent in charge of the (f) Partial exemption of commingled containing the information required to fishing vessel. raw agricultural commodities. (1) be maintained under this subpart (for (2) With respect to the owner, Except as specified in paragraph (f)(2) of the foods and date ranges specified in operator, or agent in charge of the this section, this subpart does not apply FDA’s request) does not apply to retail fishing vessel who receives the partial to commingled raw agricultural food establishments that employ 10 or exemption set forth in paragraph (j)(1) of commodities. For the purpose of this fewer full-time equivalent employees. this section, if such person is required subpart, a ‘‘commingled raw agricultural The number of full-time equivalent to register with FDA under section 415 commodity’’ means any commodity that employees is based on the number of of the Federal Food, Drug, and Cosmetic is combined or mixed after harvesting such employees at each retail food Act with respect to the manufacturing, but before processing, except that the establishment and not the entire processing, packing, or holding of the

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applicable food, in accordance with the biosecurity program, as set forth in incidental to storage of a food (e.g., requirements of subpart H of this part, § 118.3 of this chapter. activities performed for the safe or such person must maintain records First receiver means the first person effective storage of that food, such as identifying the immediate previous (other than a farm) who purchases and fumigating food during storage, and source of such food and the immediate takes physical possession of a food on drying/dehydrating raw agricultural subsequent recipient of such food in the Food Traceability List that has been commodities when the drying/ accordance with §§ 1.337 and 1.345. grown, raised, caught, or (in the case of dehydrating does not create a distinct Such records must be maintained for 2 a non-produce commodity) harvested. commodity (such as drying/dehydrating years. Fishing vessel means any vessel, boat, hay or alfalfa)). Holding also includes (k) Exemption for transporters. This ship, or other craft which is used for, activities performed as a practical subpart does not apply to transporters of equipped to be used for, or of a type necessity for the distribution of that food. which is normally used for fishing or food (such as blending of the same raw (l) Exemption for nonprofit food aiding or assisting one or more vessels agricultural commodity and breaking establishments. This subpart does not at sea in the performance of any activity down pallets) but does not include apply to nonprofit food establishments. relating to fishing, including, but not activities that transform a raw (m) Exemption for persons who limited to, preparation, supply, storage, agricultural commodity into a processed manufacture, process, pack, or hold refrigeration, transportation, or food as defined in section 201(gg) of the food for personal consumption. This processing. Federal Food, Drug, and Cosmetic Act. subpart does not apply to persons who Food Traceability List means the list Holding facilities include warehouses, manufacture, process, pack, or hold of foods for which additional cold storage facilities, storage silos, food for personal consumption. traceability records are required to be grain elevators, and liquid storage tanks. (n) Exemption for certain persons who maintained, as designated in accordance Key data element means information hold food on behalf of individual with section 204(d)(2) of the FDA Food associated with a critical tracking event consumers. This subpart does not apply Safety Modernization Act. The term for which a record must be established to persons who hold food on behalf of ‘‘Food Traceability List’’ includes both and maintained in accordance with this specific individual consumers, provided the foods specifically listed and foods subpart. that these persons: that contain specifically listed foods as Kill step means processing that (1) Are not parties to the transaction ingredients. significantly minimizes pathogens in a involving the food they hold; and Growing area coordinates means the food. (2) Are not in the business of geographical coordinates (under the Location description means a distributing food. global positioning system or latitude/ complete physical address and other longitude) for the entry point of the key contact information, specifically the § 1.1310 What definitions apply to this physical location where the food was business name, physical location name, subpart? grown and harvested. primary phone number, physical The definitions of terms in section Harvesting applies to farms and farm location street address (or geographical 201 of the Federal Food, Drug, and mixed-type facilities and means coordinates), city, state, and zip code for Cosmetic Act apply to such terms when activities that are traditionally domestic facilities and comparable used in this subpart. In addition, the performed on farms for the purpose of information for foreign facilities, following definitions apply to words removing raw agricultural commodities including country; except that for and phrases as they are used in this from the place they were grown or fishing vessels, location description subpart: raised and preparing them for use as means the name of the fishing vessel Category means a code or term used food. Harvesting is limited to activities that caught the seafood, the country in to classify a food product in accordance performed on raw agricultural which the fishing vessel’s license (if with a recognized industry or regulatory commodities, or on processed foods any) was issued, and a point of contact classification scheme, or a classification created by drying/dehydrating a raw for the fishing vessel. scheme a person develops for their own agricultural commodity without Location identifier means a unique use. additional manufacturing/processing, identification code that an entity assigns Cooling means active temperature on a farm. Harvesting does not include to the physical location name identified reduction of a food using hydrocooling, activities that transform a raw in the corresponding location icing, forced air cooling, vacuum agricultural commodity into a processed description; except that for fishing cooling, or a similar process, either food as defined in section 201(gg) of the vessels, location identifier means the before or after packing. Federal Food, Drug, and Cosmetic Act. vessel identification number or license Creating means making or producing Examples of harvesting include cutting number (both if available) for the fishing a food on the Food Traceability List (or otherwise separating) the edible vessel. (e.g., through manufacturing or portion of the raw agricultural Lot means the food produced during processing) using only ingredient(s) that commodity from the crop plant and a period of time at a single physical are not on the Food Traceability List. removing or trimming part of the raw location and identified by a specific Creating does not include originating or agricultural commodity (e.g., foliage, code. A lot may also be referred to as a transforming a food. husks, roots, or stems). Examples of batch or production run. Critical tracking event means an event harvesting also include collecting eggs, Manufacturing/processing means in the supply chain of a food involving taking of fish and other seafood in making food from one or more the growing, receiving (including aquaculture operations, milking, field ingredients, or synthesizing, preparing, receipt by a first receiver), transforming, coring, filtering, gathering, hulling, treating, modifying, or manipulating creating, or shipping of the food. shelling, sifting, threshing, trimming of food, including food crops or Farm means farm as defined in outer leaves of, and washing raw ingredients. Examples of § 1.328. For producers of shell eggs, agricultural commodities grown on a manufacturing/processing activities ‘‘farm’’ means all poultry houses and farm. include baking, boiling, bottling, grounds immediately surrounding the Holding means storage of food and canning, cooking, cooling, cutting, poultry houses covered under a single also includes activities performed distilling, drying/dehydrating raw

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agricultural commodities to create a Physical location name means the thoroughfare at which a farmer sells distinct commodity (such as drying/ word(s) used to identify the specific food from his or her farm directly to dehydrating grapes to produce raisins), physical site of a business entity where consumers) or farmers’ market (a evaporating, eviscerating, extracting a particular critical tracking event location where one or more local juice, formulating, freezing, grinding, occurs. A physical location name might farmers assemble to sell food from their homogenizing, irradiating, labeling, be the same as an entity’s business name farms directly to consumers); milling, mixing, packaging (including if the entity has only one physical (ii) Through a community supported modified atmosphere packaging), location. agriculture program. Community pasteurizing, peeling, rendering, treating Point of contact means an individual supported agriculture (CSA) program to manipulate ripening, trimming, having familiarity with an entity’s means a program under which a farmer washing, or waxing. For farms and farm procedures for traceability, including or group of farmers grows food for a mixed-type facilities, manufacturing/ their name, telephone number, and, if group of shareholders (or subscribers) processing does not include activities available, their email address and fax who pledge to buy a portion of the that are part of harvesting, packing, or number. farmer’s crop(s) for that season. This holding. Produce means produce as defined in includes CSA programs in which a Mixed-type facility means an § 112.3 of this chapter. group of farmers consolidate their crops establishment that engages in both Receiving means an event in a food’s at a central location for distribution to activities that are exempt from supply chain in which a food is shareholders or subscribers; and registration under section 415 of the received by a customer (other than a (iii) At other such direct-to-consumer Federal Food, Drug, and Cosmetic Act consumer) at a defined location after sales platforms, including door-to-door and activities that require the being transported (e.g., by truck or ship) sales; mail, catalog and internet order, establishment to be registered. An from another defined location. including online farmers’ markets and Reference record means a record used example of such a facility is a ‘‘farm online grocery delivery; religious or to identify an event in the supply chain mixed-type facility,’’ which is an other organization bazaars; and State of a food, such as a shipping, receiving, establishment that is a farm, but also and local fairs. growing, creating, or transformation (2) Sale of food directly to consumers conducts activities outside the farm event. Types of reference records by a farm-oriented business includes the definition that require the establishment include, but are not limited to, bills of sale of food by that farm-operated to be registered. lading, purchase orders, advance business directly to consumers: Nonprofit food establishment means a shipping notices, work orders, invoices, (i) At a roadside stand (a stand charitable entity that prepares or serves batch logs, production logs, and situated on the side of or near a road or food directly to the consumer or receipts. thoroughfare at which a farmer sells otherwise provides food or meals for Reference record number means the food from his or her farm directly to consumption by humans or animals in identification number assigned to a consumers) or farmers’ market (a the United States. The term includes reference record, such as a purchase location where one or more local central food banks, soup kitchens, and order number, bill of lading number, or farmers assemble to sell food from their nonprofit food delivery services. To be work order number. farms directly to consumers); considered a nonprofit food Retail food establishment means an (ii) Through a community supported establishment, the establishment must establishment that sells food products agriculture program. Community meet the terms of section 501(c)(3) of directly to consumers as its primary supported agriculture (CSA) program the U.S. Internal Revenue Code (26 function. The term ‘‘retail food means a program under which a farmer U.S.C. 501(c)(3)). establishment’’ includes facilities that or group of farmers grows food for a Originating means an event in a food’s manufacture, process, pack, or hold group of shareholders (or subscribers) supply chain involving the growing, food if the establishment’s primary who pledge to buy a portion of the raising, or catching of a food (typically function is to sell from that farmer’s crop(s) for that season. This on a farm, a ranch, or at sea), or the establishment food, including food that includes CSA programs in which a harvesting of a non-produce commodity. it manufactures, processes, packs, or group of farmers consolidate their crops Originator means a person who grows, holds, directly to consumers. A retail at a central location for distribution to raises, or catches a food, or harvests a food establishment’s primary function is shareholders or subscribers; and non-produce commodity. to sell food directly to consumers if the (iii) At other such direct-to-consumer Packing means placing food into a annual monetary value of sales of food sales platforms, including door-to-door container other than packaging the food products directly to consumers exceeds sales; mail, catalog and internet order, and also includes re-packing and the annual monetary value of sales of including online farmers’ markets and activities performed incidental to food products to all other buyers. The online grocery delivery; religious or packing or re-packing a food (e.g., term ‘‘consumers’’ does not include other organization bazaars; and State activities performed for the safe or businesses. A ‘‘retail food and local fairs. effective packing or re-packing of that establishment’’ includes grocery stores, (3) For the purposes of this definition, food (such as sorting, culling, grading, convenience stores, and vending ‘‘farm-operated business’’ means a and weighing or conveying incidental to machine locations. A ‘‘retail food business that is managed by one or more packing or re-packing)), but does not establishment’’ also includes certain farms and conducts manufacturing/ include activities that transform a raw farm-operated businesses selling food processing not on the farm(s). agricultural commodity, as defined in directly to consumers as their primary Shipping means an event in a food’s section 201(r) of the Federal Food, Drug, function. supply chain in which a food is and Cosmetic Act, into a processed food (1) Sale of food directly to consumers arranged for transport (e.g., by truck or as defined in section 201(gg) of the from an establishment located on a farm ship) from a defined location to another Federal Food, Drug, and Cosmetic Act. includes sales by that establishment defined location at a different farm, a Person includes an individual, directly to consumers: first receiver, or a subsequent receiver. partnership, corporation, and (i) At a roadside stand (a stand Shipping does not include the sale or association. situated on the side of or near a road or shipment of a food directly to a

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consumer or the donation of surplus applicable, a description of how (3) The location identifier and food. reference records for different tracing location description of the seed Traceability lot means a lot of food events for a food (e.g., receipt, packinghouse (including any repackers, that has been originated, transformed, or transformation, shipment) are linked; if applicable), the associated seed lot created. (2) A list of foods on the Food code assigned by the seed Traceability lot code means a Traceability List that you ship, packinghouse, and the date of packing descriptor, often alphanumeric, used to including the traceability product (and of repacking, if applicable); identify a traceability lot. identifier and traceability product (4) The location identifier and Traceability lot code generator means description for each food; location description of the seed the person who assigns a traceability lot (3) A description of how you establish supplier; code to a product. and assign traceability lot codes to foods (5) A description of the seeds, Traceability product description on the Food Traceability List you including the seed type or taxonomic means a description of a food product originate, transform, or create, if name, growing specifications, volume, typically used commercially for applicable; and type of packaging, and antimicrobial purchasing, stocking, or selling, and (4) Any other information needed to treatment; includes the category code or term, understand the data provided within (6) The seed lot code assigned by the category name, and trade description. any records required by this subpart, seed supplier, including the master lot For single-ingredient products, the trade such as internal or external coding and sub-lot codes, and any new seed lot description includes the brand name, systems, glossaries, and abbreviations. code assigned by the sprouter; commodity, variety, packaging size, and (b) You must retain the records (7) The date of receipt of the seeds by packaging style. For multiple-ingredient required under paragraph (a) of this the sprouter; and food products, the trade description section for 2 years after their use is (8) For each lot code for seeds includes the brand name, product name, discontinued (e.g., because you change received by the sprouter, the sprout packaging size, and packaging style. the records in which you maintain traceability lot code(s) and the date(s) of Traceability product identifier means required information, you update the production associated with that seed lot a unique identification code (such as an list of foods on the Food Traceability code. alphanumeric code) that an entity List that you ship, or you change your § 1.1330 What records must I keep when I assigns to designate a specific type of procedures for establishing and am the first receiver of a food on the Food food product. assigning traceability lot codes). Traceability List? Transformation means an event in a (a) Except as specified in paragraph food’s supply chain that involves § 1.1320 When must I establish and assign traceability lot codes to foods on the Food (b) of this section, in addition to the changing a food on the Food records of receipt of foods required Traceability List, its package, and/or its Traceability List? (a) You must establish and assign a under § 1.1335, the first receiver of a label (regarding the traceability lot code food on the Food Traceability List must traceability lot code when you originate, or traceability product identifier), such establish and maintain records transform, or create a food on the Food as by combining ingredients or containing and linking the traceability Traceability List. processing a food (e.g., by cutting, lot code of the food received to the cooking, commingling, repacking, or (b) Except as specified otherwise in this subpart, you may not establish a following information: repackaging). Transformation does not (1) The location identifier and new traceability lot code when you include the initial packing of a single- location description of the originator of conduct other activities (e.g., shipping, ingredient food or creating a food. the food; Transporter means a person who has receiving) in the supply chain for a food (2) The business name, point of possession, custody, or control of an on the Food Traceability List. contact, and phone number of the article of food for the sole purpose of Records of Growing, Receiving, harvester of the food, and the date(s) transporting the food, whether by road, Transforming, Creating, and Shipping and time(s) of harvesting; rail, water, or air. Food (3) The location identifier and Vessel identification number means location description of the place where the number assigned to a fishing vessel § 1.1325 What records must I keep when I the food was cooled, and the date and by the International Maritime grow a food on the Food Traceability List? time of cooling (if applicable); and Organization, or by any entity or For each food on the Food (4) The location identifier and organization, for the purpose of Traceability List that you grow, you location description of the place where uniquely identifying the vessel. must establish and maintain records the food was packed, and the date and You means a person subject to this containing and linking the traceability time of packing. subpart under § 1.1300. lot code of the food to the following (b) If you are the first receiver of a seafood product on the Food Traceability Program Records information: (a) The growing area coordinates; and Traceability List that was obtained from § 1.1315 What traceability program (b) For growers of sprouts, the a fishing vessel, in addition to the records must I have for foods on the Food following information (if applicable): records of receipt of foods required Traceability List that I manufacture, (1) The location identifier and under § 1.1335, you must establish and process, pack, or hold? location description of the grower of maintain records containing and linking (a) If you are subject to the seeds for sprouting, the associated seed the traceability lot code of the seafood requirements in this subpart, you must lot code assigned by the seed grower, product received to the harvest date establish and maintain records and the date of seed harvesting; range and locations (National Marine containing the following information: (2) The location identifier and Fisheries Service Ocean Geographic (1) A description of the reference location description of the seed Code or geographical coordinates) for records in which you maintain the conditioner or processor, the associated the trip during which the seafood was information required under this subpart, seed lot code assigned by the seed caught. an explanation of where on the records conditioner or processor, and the date of (c) If you are the first receiver of a the required information appears, and, if conditioning or processing; food on the Food Traceability List to

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which the originator of the food has not (2) For the food produced through lot code of the food to the following assigned a traceability lot code, you transformation, the following information: must establish a traceability lot code for information: (1) The entry number(s) assigned to the food and maintain a record of the (i) The location identifier and location the food (if the food is imported); traceability lot code linked to the description for where you transformed (2) The quantity and unit of measure information specified in paragraph (a) or the food (e.g., by a manufacturing/ of the food (e.g., 6 cases, 25 returnable (b) of this section (as applicable to the processing step), and the date plastic containers, 100 tanks, 200 type of food received). transformation was completed; pounds); (ii) The new traceability product (3) The traceability product identifier § 1.1335 What records must I keep when I identifier and traceability product and traceability product description for receive a food on the Food Traceability List? description for the food to which the the food; new traceability lot code applies; and (4) The location identifier, location For each food on the Food (iii) The quantity and unit of measure description, and point of contact for the Traceability List you receive, you must of the food for each new traceability lot traceability lot code generator; establish and maintain records code (e.g., 6 cases, 25 returnable plastic (5) The location identifier and containing and linking the traceability containers, 100 tanks, 200 pounds). location description for the immediate lot code of the food to the following (3) The reference record type(s) and subsequent recipient (other than a information: reference record number(s) (e.g., (a) The location identifier and transporter) of the food; ‘‘Production Log 123,’’ ‘‘Batch Log location description for the immediate (6) The location identifier and 01202021’’) for the document(s) previous source (other than a location description for the location containing the information specified in transporter) of the food; from which you shipped the food, and (b) The entry number(s) assigned to paragraphs (a)(1) and (2) of this section. date and time you shipped the food; the food (if the food is imported); (b) Paragraph (a) of this section does (7) The reference record type(s) and (c) The location identifier and not apply to retail food establishments reference record number(s) (e.g., ‘‘BOL location description of where the food with respect to foods they do not ship No. 123,’’ ‘‘ASN 10212025’’) for the was received, and date and time you (e.g., foods they sell or send directly to document(s) containing the information received the food; consumers). specified in paragraphs (a)(1) through (a)(6) of this section; and (d) The quantity and unit of measure § 1.1345 What records must I keep when I of the food (e.g., 6 cases, 25 returnable create a food on the Food Traceability List? (8) The name of the transporter who plastic containers, 100 tanks, 200 transported the food from you. (a) Except as specified in paragraph (b) You must send records (in pounds); (b) of this section, for each food on the (e) The traceability product identifier electronic or other written form) Food Traceability List you create, you and traceability product description for containing the following information to must establish and maintain records the food; the immediate subsequent recipient (f) The location identifier, location containing and linking the traceability (other than a transporter) of each description, and point of contact for the lot code of the food created to the traceability lot that you ship: following information: traceability lot code generator; (1) The information in paragraphs (1) The location identifier and (g) The reference record type(s) and (a)(1) through (6) of this section; and location description for where you reference record number(s) (e.g., (2) If you are a farm, the following created the food (e.g., by a ‘‘Invoice 750A,’’ ‘‘BOL 042520 XYZ’’) information (if applicable) for each manufacturing/processing step), and the for the document(s) containing the traceability lot of the food: date creation was completed; information specified in paragraphs (a) (i) A statement that you are a farm; (2) The traceability product identifier through (f) of this section; and (ii) The location identifier and and traceability product description for (h) The name of the transporter who location description of the originator of the food; transported the food to you. the food (if not you); (3) The quantity and unit of measure (iii) The business name, point of § 1.1340 What records must I keep when I of the food (e.g., 6 cases, 25 returnable contact, and phone number of the transform a food on the Food Traceability plastic containers, 100 tanks, 200 harvester of the food (if not you), and List? pounds); and the date(s) and time(s) of harvesting; (a) Except as specified in paragraph (4) The reference record type(s) and (iv) The location identifier and (b) of this section, for each new reference record number(s) (e.g., location description of the place where traceability lot of food produced ‘‘Production Log 123,’’ ‘‘Batch Log the food was cooled (if not by you), and through transformation you must 01202021’’) for the document(s) the date and time of cooling; and establish and maintain records containing the information specified in (v) The location identifier and containing and linking the new paragraphs (a)(1) through (3) of this location description of the place where traceability lot code of the food section. the food was packed (if not by you), and produced through transformation to the (b) Paragraph (a) of this section does the date and time of packing. following information: not apply to retail food establishments (1) For the food(s) on the Food with respect to foods they do not ship Special Requirements for Certain Traceability List used in transformation, (e.g., foods they sell or send directly to Persons and Foods the following information: consumers). (i) The traceability lot code(s) for the § 1.1355 What recordkeeping requirements food; § 1.1350 What records must I keep and apply to foods on the Food Traceability List (ii) The traceability product identifier send when I ship a food on the Food that are subjected to a kill step? and traceability product description for Traceability List? (a) If you apply a kill step to a food the food to which the traceability lot (a) For each food on the Food on the Food Traceability List, the code applies; and Traceability List you ship, you must requirements of this subpart do not (iii) The quantity of each traceability establish and maintain records apply to your subsequent shipping of lot of the food. containing and linking the traceability the food, provided that you maintain a

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record of your application of the kill (a) Specify the food or type of entity § 1.1385 What process will FDA follow step. to which the modified requirements or when adopting modified requirements or (b) If you receive a food on the Food exemption would apply; granting an exemption on our own Traceability List that has been subjected initiative? (b) If the petition requests modified to a kill step, the requirements of this (a) If FDA, on our own initiative, requirements, specify the proposed subpart do not apply to your receipt or determines that adopting modified subsequent transformation and/or modifications to the requirements of requirements or granting an exemption shipping of the food. this subpart; and from the requirements for a food or type (c) Present information demonstrating of entity is appropriate, we will publish Procedures for Modified Requirements why application of the requirements a notification in the Federal Register and Exemptions requested to be modified or from which setting forth the proposed modified § 1.1360 Under what circumstances will exemption is requested is not necessary requirements or exemption and the FDA modify the requirements in this to protect the public health. reasons for the proposal. The subpart that apply to a food or type of entity notification will establish a public or exempt a food or type of entity from the § 1.1375 What information submitted in a docket so that interested persons may requirements of this subpart? petition requesting modified requirements submit written comments on the (a) General. Except as specified in or an exemption, or information in proposal. paragraph (b) of this section, FDA will comments on such a petition, is publicly (b) After considering any comments modify the requirements of this subpart available? timely submitted, we will publish a applicable to a food or type of entity, or FDA will presume that information notification in the Federal Register exempt a food or type of entity from the submitted in a petition requesting stating whether we are adopting requirements of this subpart, when we modified requirements or an exemption, modified requirements or granting an determine that application of the as well as information in comments exemption, and the reasons for our requirements that would otherwise submitted on such a petition, does not decision. apply to the food or type of entity is not contain information exempt from public necessary to protect the public health. § 1.1390 When will modified requirements disclosure under part 20 of this chapter (b) Registered facilities. If a person to that we adopt or an exemption that we grant whom modified requirements or an and will be made public as part of the become effective? exemption applies under paragraph (a) docket associated with the petition. Any modified requirements that FDA of this section (including a person who § 1.1380 What process applies to a petition adopts or exemption that we grant will manufactures, processes, packs, or holds requesting modified requirements or an become effective on the date that notice a food to which modified requirements exemption? of the modified requirements or or an exemption applies under exemption is published in the Federal paragraph (a) of this section) is required (a) In general, the procedures set forth Register, unless otherwise stated in the to register with FDA under section 415 in § 10.30 of this chapter govern FDA’s notification. of the Federal Food, Drug, and Cosmetic response to a petition requesting § 1.1395 Under what circumstances may Act (and in accordance with the modified requirements or an exemption. An interested person may submit FDA revise or revoke modified requirements of subpart H of this part) requirements or an exemption? with respect to the manufacturing, comments on such a petition in FDA may revise or revoke modified processing, packing, or holding of the accordance with § 10.30(d) of this requirements or an exemption if we applicable food, such person must chapter. determine that such revision or maintain records identifying the (b) Under § 10.30(h)(3) of this chapter, revocation is necessary to protect the immediate previous source of such food FDA will publish a notification in the public health. and the immediate subsequent recipient Federal Register requesting information of such food in accordance with and views on a submitted petition, § 1.1400 What procedures apply if FDA §§ 1.337 and 1.345. Such records must including information and views from tentatively determines that modified be maintained for 2 years. persons who could be affected by the requirements or an exemption should be revised or revoked? modified requirements or exemption if § 1.1365 When will FDA consider whether (a) If FDA tentatively determines that to adopt modified requirements or grant an we granted the petition. exemption from the requirements of this we should revise or revoke modified (c) Under § 10.30(e)(3) of this chapter, requirements or an exemption, we will subpart? we will respond to the petitioner in FDA will consider modifying the provide the following notifications: writing, as follows: (1) We will notify the person that requirements of this subpart applicable originally requested the modified to a food or type of entity, or exempting (1) If we grant the petition either in requirements or exemption (if we a food or type of entity from the whole or in part, we will publish a adopted modified requirements or requirements of this subpart, on our notification in the Federal Register granted an exemption in response to a own initiative or in response to a citizen setting forth any modified requirements petition) in writing at the address petition submitted under § 10.30 of this or exemptions and the reasons for them. identified in the petition; and chapter by any interested party. (2) If we deny the petition (including (2) We will publish notification in the a partial denial), our written response to § 1.1370 What must be included in a Federal Register of our tentative the petitioner will explain the reasons petition requesting modified requirements determination that the modified or an exemption from the requirements? for the denial. requirements or exemption should be In addition to meeting the (d) We will make readily accessible to revised or revoked and the reasons for requirements on the content and format the public, and periodically update, a our tentative decision. The notification of a citizen petition in § 10.30 of this list of petitions requesting modified will establish a public docket so that chapter, a petition requesting modified requirements or exemptions, including interested persons may submit written requirements or an exemption from the the status of each petition (for example, comments on our tentative requirements of this subpart must: pending, granted, or denied). determination.

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(b) After considering any comments (c) Information demonstrating why consequences or death to humans or timely submitted, we will publish application of the requirements animals as a result of such food being notification in the Federal Register of requested to be waived would result in adulterated under section 402 of the our decision whether to revise or revoke an economic hardship for the entity, Federal Food, Drug, and Cosmetic Act the modified requirements or exemption including information about the unique or misbranded under section 403(w) of and the reasons for the decision. If we circumstances faced by the entity that the Federal Food, Drug, and Cosmetic do revise or revoke the modified result in unusual economic hardship Act; and requirements or exemption, the effective from the application of these (d) Present information demonstrating date of the decision will be 1 year after requirements; why the waiver would not otherwise be the date of publication of the (d) Information demonstrating why contrary to the public interest. notification, unless otherwise stated in the waiver will not significantly impair § 1.1430 What information submitted in a the notification. FDA’s ability to rapidly and effectively petition requesting a waiver for a type of identify recipients of a food to prevent Waivers entity, or information in comments on such or mitigate a foodborne illness outbreak a petition, is publicly available? § 1.1405 Under what circumstances will or to address credible threats of serious FDA will presume that information FDA waive one or more of the requirements adverse health consequences or death to submitted in a petition requesting a of this subpart for an individual entity or a humans or animals as a result of such type of entity? waiver for a type of entity, as well as food being adulterated under section information in comments submitted on FDA will waive one or more of the 402 of the Federal Food, Drug, and such a petition, does not contain requirements of this subpart when we Cosmetic Act or misbranded under information exempt from public determine that: section 403(w) of the Federal Food, disclosure under part 20 of this chapter (a) Application of the requirements Drug, and Cosmetic Act; and and will be made public as part of the would result in an economic hardship (e) Information demonstrating why docket associated with the petition. for an individual entity or a type of the waiver would not otherwise be entity, due to the unique circumstances contrary to the public interest. § 1.1435 What process applies to a petition of the individual entity or type of entity; requesting a waiver for a type of entity? (b) The waiver will not significantly § 1.1420 What process applies to a request (a) In general, the procedures set forth for a waiver for an individual entity? impair our ability to rapidly and in § 10.30 of this chapter govern FDA’s effectively identify recipients of a food (a) After considering the information response to a petition requesting a to prevent or mitigate a foodborne submitted in a request for a waiver for waiver. An interested person may illness outbreak or to address credible an individual entity, we will respond in submit comments on such a petition in threats of serious adverse health writing to the person that submitted the accordance with § 10.30(d) of this consequences or death to humans or waiver request stating whether we are chapter. animals as a result of such food being granting the waiver (in whole or in part) (b) Under § 10.30(h)(3) of this chapter, adulterated under section 402 of the and the reasons for the decision. FDA will publish a notification in the Federal Food, Drug, and Cosmetic Act (b) Any waiver for an individual Federal Register requesting information or misbranded under section 403(w) of entity that FDA grants will become and views on a submitted petition the Federal Food, Drug, and Cosmetic effective on the date we issue our requesting a waiver for a type of entity, Act; and response to the waiver request, unless including information and views from (c) The waiver will not otherwise be otherwise stated in the response. persons who could be affected by the contrary to the public interest. § 1.1425 What must be included in a waiver if we granted the petition. petition requesting a waiver for a type of (c) Under § 10.30(e)(3) of this chapter, § 1.1410 When will FDA consider whether we will respond to the petitioner in to waive a requirement of this subpart? entity? In addition to meeting the writing, as follows: FDA will consider whether to waive (1) If we grant the petition either in requirements on the content and format a requirement of this subpart on our whole or in part, we will publish a of a citizen petition in § 10.30 of this own initiative or in response to the notification in the Federal Register chapter, a petition requesting a waiver following: setting forth any requirements we have (a) A written request for a waiver for for a type of entity must: (a) Specify the type of entity to which waived and the reasons for the waiver. an individual entity; or (2) If we deny the petition (including the waiver would apply and the (b) A citizen petition requesting a a partial denial), our written response to requirements of this subpart to which waiver for a type of entity submitted the petitioner will explain the reasons the waiver would apply; under § 10.30 of this chapter by any for the denial. person subject to the requirements of (b) Present information demonstrating (d) We will make readily accessible to this subpart. why application of the requirements the public, and periodically update, a requested to be waived would result in list of petitions requesting waivers for § 1.1415 How may I request a waiver for an an economic hardship for the type of individual entity? types of entities, including the status of entity, including information about the each petition (for example, pending, You may request a waiver of one or unique circumstances faced by the type granted, or denied). more requirements of this subpart for an of entity that result in unusual individual entity by submitting a economic hardship from the application § 1.1440 What process will FDA follow written request to the Food and Drug of these requirements; when waiving a requirement of this subpart Administration. The request for a (c) Present information demonstrating on our own initiative? waiver must include the following: why the waiver will not significantly (a) If FDA, on our own initiative, (a) The name, address, and point of impair FDA’s ability to rapidly and determines that a waiver of one or more contact of the individual entity to which effectively identify recipients of a food requirements for an individual entity or the waiver would apply; to prevent or mitigate a foodborne type of entity is appropriate, we will (b) The requirements of this subpart to illness outbreak or to address credible publish a notification in the Federal which the waiver would apply; threats of serious adverse health Register setting forth the proposed

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waiver and the reasons for such waiver. should modify or revoke a waiver for a the Federal Food, Drug, and Cosmetic The notification will establish a public type of entity, we will provide the Act, you must make available, within 24 docket so that interested persons may following notifications: hours of request by an authorized FDA submit written comments on the (i) We will notify the person that representative, an electronic sortable proposal. originally requested the waiver (if we spreadsheet containing the information (b) After considering any comments granted the waiver in response to a in the records you are required to timely submitted, we will publish a petition) in writing at the address maintain under this subpart, for the document in the Federal Register identified in the petition. foods and date ranges specified in the stating whether we are granting the (ii) We will publish notification in the request. FDA will withdraw a request waiver (in whole or in part) and the Federal Register of our tentative for such a spreadsheet when necessary reasons for our decision. determination that the waiver should be to accommodate a religious belief of a (c) Any waiver for a type of entity that modified or revoked and the reasons for person asked to provide such a FDA grants will become effective on the our tentative decision. The notification spreadsheet. date that notice of the waiver is will establish a public docket so that (4) Upon FDA request, you must published in the Federal Register, interested persons may submit written provide within a reasonable time an unless otherwise stated in the comments on our tentative English translation of records notification. determination. maintained in a language other than (2) After considering any comments English. § 1.1445 Under what circumstances may (c) Record retention. Except as FDA modify or revoke a waiver? timely submitted, we will publish specified otherwise in this subpart, you FDA may modify or revoke a waiver notification in the Federal Register of our decision whether to modify or must maintain records containing the if we determine that: information required by this subpart for (a) Compliance with the waived revoke the waiver and the reasons for the decision. If we do modify or revoke 2 years from the date you created the requirements would no longer impose a records. unique economic hardship on the the waiver, the effective date of the decision will be 1 year after the date of (d) Electronic records. Records that individual entity or type of entity to are established or maintained to satisfy publication of the notification, unless which the waiver applies; the requirements of this subpart and otherwise stated in the notification. (b) The waiver could significantly that meet the definition of electronic impair our ability to rapidly and Records Maintenance and Availability records in § 11.3(b)(6) of this chapter are effectively identify recipients of a food exempt from the requirements of part 11 to prevent or mitigate a foodborne § 1.1455 How must records required by of this chapter. Records that satisfy the this subpart be maintained? illness outbreak or to address credible requirements of this subpart, but that threats of serious adverse health (a) General requirements for records. also are required under other applicable consequences or death to humans or (1) You must keep records as original statutory provisions or regulations, animals as a result of such food being paper or electronic records or true remain subject to part 11, if not adulterated under section 402 of the copies (such as photocopies, pictures, otherwise exempt. Federal Food, Drug, and Cosmetic Act scanned copies, or other accurate (e) Use of existing records. You do not or misbranded under section 403(w) of reproductions of the original records). need to duplicate existing records you the Federal Food, Drug, and Cosmetic (2) All records must be legible and have (e.g., records that you keep in the Act; or stored to prevent deterioration or loss. ordinary course of business or that you (c) The waiver is otherwise contrary (b) Record availability. (1) You must maintain to comply with other Federal, to the public interest. make all records required under this State, Tribal, territorial, or local § 1.1450 What procedures apply if FDA subpart available to an authorized FDA regulations) if they contain the tentatively determines that a waiver should representative as soon as possible but information required by this subpart. be modified or revoked? not later than 24 hours after the request. You may supplement any such existing (a) Waiver for an individual entity. (1) (2) Offsite storage of records is records as necessary to include all of the If FDA tentatively determines that we permitted if such records can be information required by this subpart. In should modify or revoke a waiver for an retrieved and provided onsite within 24 addition, you do not have to keep all of individual entity, we will notify the hours of request for official review. the information required by this subpart person that had received the waiver in Electronic records are considered to be in one set of records. However, you writing of our tentative determination onsite if they are accessible from an must indicate the different records in that the waiver should be modified or onsite location. which you keep this information in revoked. The notice will provide the (3) When necessary to help FDA accordance with § 1.1315(a). prevent or mitigate a foodborne illness waiver recipient 60 days in which to Consequences of Failure To Comply submit information stating why the outbreak, or to assist in the waiver should not be modified or implementation of a recall, or to § 1.1460 What consequences could result revoked. otherwise address a threat to the public from failing to comply with the (2) Upon consideration of any health, including but not limited to requirements of this subpart? information submitted by the waiver situations where FDA has a reasonable (a) Prohibited act. The violation of recipient, we will respond in writing belief that an article of food (and any any recordkeeping requirement under stating our decision whether to modify other article of food that FDA section 204 of the FDA Food Safety or revoke the waiver and the reasons for reasonably believes is likely to be Modernization Act, including the the decision. If we modify or revoke the affected in a similar manner) presents a violation of any requirement of this waiver, the effective date of the decision threat of serious adverse health subpart, is prohibited under section will be 1 year after the date of our consequences or death to humans or 301(e) of the Federal Food, Drug, and response to the waiver recipient, unless animals as a result of the food being Cosmetic Act, except when such otherwise stated in the response. adulterated under section 402 of the violation is committed by a farm. (b) Waiver for a type of entity. (1) If Federal Food, Drug, and Cosmetic Act (b) Refusal of admission. An article of FDA tentatively determines that we or misbranded under section 403(w) of food is subject to refusal of admission

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under section 801(a)(4) of the Federal the FDA Food Safety Modernization we will also publish the revised list on Food, Drug, and Cosmetic Act if it Act, that it is appropriate to revise the our website. appears that the recordkeeping Food Traceability List, we will publish (c) When FDA updates the Food requirements under section 204 of the a notice in the Federal Register stating Traceability List in accordance with this FDA Food Safety Modernization Act the proposed changes to the list and the section, any deletions from the list will (other than the requirements under reasons for these changes and requesting become effective immediately. Any subsection (f) of that section), including information and views on the proposed additions to the list will become the requirements of this subpart, have changes. effective 1 year after the date of not been complied with regarding such publication of the Federal Register article. (b) After considering any information notice announcing the revised list, and views submitted on the proposed unless otherwise stated in the notice. Updating the Food Traceability List changes to the Food Traceability List, FDA will publish a notice in the Federal Dated: September 8, 2020. § 1.1465 How will FDA update the Food Stephen M. Hahn, Traceability List? Register stating whether we are making any changes to the list and the reasons Commissioner of Food and Drugs. (a) When FDA tentatively concludes, for the decision. If FDA revises the list, [FR Doc. 2020–20100 Filed 9–21–20; 11:15 am] in accordance with section 204(d)(2) of BILLING CODE 4164–01–P

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Part V

The President

Proclamation 10076—National Hispanic Heritage Month, 2020 Executive Order 13949—Blocking Property of Certain Persons With Respect to the Conventional Arms Activities of Iran

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Federal Register Presidential Documents Vol. 85, No. 185

Wednesday, September 23, 2020

Title 3— Proclamation 10076 of September 14, 2020

The President National Hispanic Heritage Month, 2020

By the President of the United States of America

A Proclamation During National Hispanic Heritage Month, we celebrate the countless con- tributions of more than 60 million Hispanic Americans to our culture and society. Hispanic Americans are the largest minority group in the United States today, and generations of Hispanic Americans have consistently helped make our country strong and prosperous. They contribute to our Nation beyond description. Hispanic Americans embody the best of our American values, including commitment to faith, family, and country. They serve in our military and protect us as members of law enforcement. In fact, Hispanic Americans make up half of our Border Patrol agents. The Hispanic- American community has left an indelible mark on our government, culture, and economy. As part of our commitment to promoting the success of Hispanic Americans, my Administration will always promote educational opportunity for our Nation’s Hispanic-American communities. Hispanic Americans benefit great- ly from school choice programs, including the Nation’s largest school choice program in Florida, where more than one-third of the recipients are Hispanic- American students. No American student should ever be trapped in a failing public school or a school that does not meet his individual needs. Addition- ally, we have spurred the creation of more than 16 million education and training opportunities through our Pledge to the American Worker. My Administration is also working to increase economic opportunities for Hispanic Americans by providing pathways to in-demand jobs and investing in Hispanic-American communities. On July 9, 2020, I signed an Executive Order to establish the White House Hispanic Prosperity Initiative to promote educational and workforce development, encourage private-sector action and public-private partnerships, and to monitor how Federal programs best pro- vide opportunities for Hispanic Americans. Additionally, this Executive Order established the President’s Advisory Commission on Hispanic Pros- perity, which is dedicated to advising my Administration on ways to improve access to educational and economic opportunities for the Hispanic-American community. This year, my Administration also delivered $1 billion in funding to Minority-Serving Institutions, including Hispanic-Serving Institutions. And since I signed the Tax Cuts and Jobs Act of 2017 into law, nearly 9,000 Opportunity Zones have attracted an estimated $75 billion in new capital investment in economically distressed areas, helping to bring wealth and jobs to the neighborhoods where many Hispanic Americans live. We are already seeing the positive results of these policies in communities throughout the United States. In the 2017–2018 academic year, the graduation rate for Hispanic students at public high schools rose to 81%, the highest level ever recorded. Before the coronavirus pandemic, the median income for Hispanic Americans had reached its highest level in history. Unemploy- ment reached the lowest rate ever recorded. The poverty rate for Hispanic Americans also hit a record low. And from 2017 to 2018, 362,000 Hispanic Americans became new homeowners, the largest net gain for Hispanics since 2005. In the past 4 months as we have recovered from the coronavirus, we added 3.3 million jobs for Hispanic Americans. It is my promise to

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the Hispanic-American community and to all Americans that my Administra- tion will continue to do everything in its power to rebuild the economy, ensure opportunity, grow wages, and cut regulations so every family can achieve their own American Dream. Hispanic Americans will play an incredible role in our country’s great years to come, and my Administration proudly stands with them. Their steadfast commitment to America’s core values, their steadfast opposition to socialism, and their innumerable contributions to our prosperity enrich our Nation and add to our unmatched culture and way of life. To honor the achievements of Hispanic Americans, the Congress, by Public Law 100–402, as amended, has authorized and requested the President to issue annually a proclamation designating September 15 through October 15 as ‘‘National Hispanic Heritage Month.’’ 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 September 15 through October 15, 2020, as National Hispanic Heritage Month. I call on public officials, educators, librarians, and all Americans to observe this month with appropriate ceremonies, activities, and programs. IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of September, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fifth.

[FR Doc. 2020–21159 Filed 9–22–20; 11:15 am] Billing code 3295–F0–P

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Executive Order 13949 of September 21, 2020 Blocking Property of Certain Persons With Respect to the Conventional Arms Activities of Iran

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Countering America’s Adversaries Through Sanctions Act (Public Law 115–44), the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the Na- tional Emergencies Act (50 U.S.C. 1601 et seq.), section 212(f) of the Immigra- tion and Nationality Act of 1952 (8 U.S.C. 1182(f)), and section 301 of title 3, United States Code, I, DONALD J. TRUMP, President of the United States of America, find that: It remains the policy of the United States to counter Iran’s malign influence in the Middle East, including transfers from Iran of destabilizing conventional weapons and acquisition of arms and related materiel by Iran. Transfers to and from Iran of arms or related materiel or military equipment represent a continuing threat to regional and international security—as evidenced by Iran’s continued military support that fuels ongoing conflict in Syria, Lebanon, Iraq, and Yemen. Iran benefits from engaging in the conventional arms trade by strengthening its relationships with other outlier regimes, lessening its international isolation, and deriving revenue that it uses to support terror groups and fund malign activities. In light of these findings and in order to take additional steps with respect to the national emergency declared in Executive Order 12957 of March 15, 1995 (Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Re- sources), I hereby order: Section. 1. (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: (i) any person determined by the Secretary of State, in consultation with the Secretary of the Treasury, to engage in any activity that materially contributes to the supply, sale, or transfer, directly or indirectly, to or from Iran, or for the use in or benefit of Iran, of arms or related materiel, including spare parts; (ii) any person determined by the Secretary of State, in consultation with the Secretary of the Treasury, to provide to Iran any technical training, financial resources or services, advice, other services, or assistance related to the supply, sale, transfer, manufacture, maintenance, or use of arms and related materiel described in subsection (a)(i) of this section; (iii) any person determined by the Secretary of State, in consultation with the Secretary of the Treasury, to have engaged, or attempted to engage, in any activity that materially contributes to, or poses a risk of materially contributing to, the proliferation of arms or related materiel or items intended for military end-uses or military end-users, including any efforts to manufacture, acquire, possess, develop, transport, transfer, or use such items, by the Government of Iran (including persons owned or controlled by, or acting for or on behalf of the Government of Iran) or paramilitary organizations financially or militarily supported by the Government of Iran;

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(iv) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any person whose property and interests in property are blocked pursuant to this order; or (v) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order. (b) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted before the date of this order. (c) The prohibitions in subsection (a) of this section do not apply to property and interests in property of the Government of Iran that were blocked pursuant to Executive Order 12170 of November 14, 1979 (Blocking Iranian Government Property), and thereafter made subject to the transfer directives set forth in Executive Order 12281 of January 19, 1981 (Direction to Transfer Certain Iranian Government Assets), and implementing regula- tions thereunder. Sec. 2. The prohibitions in section 1 of this order include: (a) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order; and (b) the receipt of any contribution or provision of funds, goods, or services from any such person. Sec. 3. The unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in section 1(a) of this order would be detrimental to the interests of the United States, and the entry of such persons into the United States, as immigrants or nonimmigrants, is hereby suspended, except where the Secretary of State determines that the person’s entry would not be contrary to the interests of the United States, including when the Secretary so determines, based on a recommendation of the Attorney General, that the person’s entry would further important United States law enforcement objectives. In exercising this responsibility, the Secretary of State shall consult the Secretary of Homeland Security on matters related to admissibility or inadmissibility within the authority of the Secretary of Homeland Security. Such persons shall be treated in the same manner as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions). The Secretary of State shall have the responsibility for implementing this section pursuant to such conditions and procedures as the Secretary of State has established or may establish pursuant to Proclamation 8693. Sec. 4. (a) Any transaction that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibi- tions set forth in this order is prohibited. (b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited. Sec. 5. I hereby determine that the making of donations of the types of articles specified in section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order would seriously impair my ability to deal with the national emergency declared in Executive Order 12957, and I hereby prohibit such donations as provided by section 1 of this order. Sec. 6. For the purposes of this order:

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(a) the term ‘‘entity’’ means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization; (b) the term ‘‘Government of Iran’’ includes the Government of Iran; any political subdivision, agency, or instrumentality thereof, including the Central Bank of Iran; and any person owned or controlled by, or acting for or on behalf of, the Government of Iran; (c) the term ‘‘Iran’’ means the Government of Iran and the territory of Iran; (d) the term ‘‘person’’ means an individual or entity; and (e) the term ‘‘United States person’’ means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States. Sec. 7. For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in Executive Order 12957, there need be no prior notice of a listing or determination made pursuant to section 1 of this order. Sec. 8. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA as may be necessary to carry out the purposes of this order. The Secretary of the Treasury may, consistent with applicable law, redelegate any of these functions within the Department of the Treasury. All depart- ments and agencies of the United States shall take all appropriate measures within their authority to carry out the provisions of this order. Sec. 9. This order shall not apply with respect to any person for conducting or facilitating a transaction for the provision (including any sale) of agricul- tural commodities, food, medicine, or medical devices to Iran. Sec. 10. Nothing in this order shall prohibit transactions for the conduct of the official business of the United States Government or the United Nations (including its specialized agencies, programs, funds, and related organizations) by employees, grantees, or contractors thereof. Sec. 11. The measures taken pursuant to this order are in response to actions of the Government of Iran occurring after the conclusion of the 1981 Algiers Accords, and are intended solely as a response to those later actions. Sec. 12. (a) Nothing in this order shall be construed 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. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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(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, September 21, 2020.

[FR Doc. 2020–21160 Filed 9–22–20; 11:15 am] Billing code 3295–F0–P

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Reader Aids Federal Register Vol. 85, No. 185 Wednesday, September 23, 2020

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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. 6 CFR Presidential Documents 3 CFR Executive orders and proclamations 741–6000 Proclamations: Ch. I ...... 59651 9705 (See Proc. The United States Government Manual 741–6000 7 CFR 10064) ...... 54877 Other Services 9759 (See Proc. Ch. XVIII ...... 59388 Electronic and on-line services (voice) 741–6020 10064) ...... 54877 1...... 55359 Privacy Act Compilation 741–6050 10064...... 54877 9...... 59174, 59380 10065...... 55161 205...... 57937 10066...... 55163 905...... 55359 ELECTRONIC RESEARCH 10067...... 55165 990...... 55363 1210...... 56471 World Wide Web 10068...... 55167 10069...... 56463 1710...... 57077 Full text of the daily Federal Register, CFR and other publications 10070...... 57663 1779...... 57077, 59388 is located at: www.govinfo.gov. 10071...... 59165 1780...... 57077, 59388 1783...... 57077 Federal Register information and research tools, including Public 10072...... 59167 10073...... 59643 1942...... 57077 Inspection List and electronic text are located at: 1980...... 57077 www.federalregister.gov. 10074...... 59645 10075...... 59647 3570...... 57077, 59388 E-mail 10076...... 60041 3575...... 59388 Executive Orders: 4274...... 57077 FEDREGTOC (Daily Federal Register Table of Contents Electronic 13947...... 59171 4279...... 57077, 59388 Mailing List) is an open e-mail service that provides subscribers 13948...... 59649 4280...... 57077, 59388 with a digital form of the Federal Register Table of Contents. The 13949...... 60043 Proposed Rules: digital form of the Federal Register Table of Contents includes 959...... 55388 HTML and PDF links to the full text of each document. Administrative Orders: Memorandums: 1222...... 54945 To join or leave, go to https://public.govdelivery.com/accounts/ Memorandum of 1223...... 59610 USGPOOFR/subscriber/new, enter your email address, then September 20, 2013 3560...... 59682 follow the instructions to join, leave, or manage your (revoked by 8 CFR subscription. Memorandum of PENS (Public Law Electronic Notification Service) is an e-mail September 2, Ch. I ...... 59651 service that notifies subscribers of recently enacted laws. 2020) ...... 55585 208...... 59655 Memorandum of Proposed Rules: To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html August 29, 2020...... 54883 1...... 56338 and select Join or leave the list (or change settings); then follow Memorandum of 103...... 55597, 56338 the instructions. September 2, 204...... 56338 FEDREGTOC and PENS are mailing lists only. We cannot 2020 ...... 55585 207...... 56338 respond to specific inquiries. Presidential 208...... 56338 Reference questions. Send questions and comments about the Determinations: 209...... 56338 Federal Register system to: [email protected] No. 2020–10 of 210...... 56338 September 9, 212...... 56338 The Federal Register staff cannot interpret specific documents or 2020 ...... 57075 214...... 56338 regulations. Notices: 215...... 56338 Notice of September 216...... 56338 FEDERAL REGISTER PAGES AND DATE, SEPTEMBER 10, 2020 ...... 56467 235...... 55597, 56338 Notice of September 236...... 56338 54233–54480...... 1 10, 2020 ...... 56469 240...... 56338 54481–54884...... 2 Space Policy 244...... 56338 54885–55168...... 3 Directives: 245...... 56338 55169–55358...... 4 Space Policy 245a...... 56338 55359–55586...... 8 Directive—5...... 56155 264...... 56338 55587–55780...... 9 287...... 56338 5 CFR 55781–56158...... 10 316...... 56338 333...... 56338 56159–56470...... 11 841...... 59377 843...... 59378 335...... 56338 56471–57076...... 14 1600...... 57665 1003...... 59692 57077–57664...... 15 1650...... 57665, 59173 1208...... 59692 57665–57936...... 16 Proposed Rules: 1240...... 59692 57937–58250...... 17 212...... 59207 9 CFR 58251–59172...... 18 213...... 59207 59173–59376...... 21 302...... 59207 93...... 57944 59377–59642...... 22 316...... 56536 Proposed Rules: 59643–60046...... 23 930...... 59207 2...... 57998

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3...... 57998 16 CFR 31 CFR 160...... 58268 4...... 57998 1450...... 58263 501...... 54911 161...... 58268 352...... 56538 162...... 58268 Proposed Rules: 800...... 57124 354...... 56538 164...... 58268 641...... 57172 1010...... 57129 412...... 56538 165 ...... 54497, 54499, 54501, 642...... 59226 1020...... 57129 55190, 56517, 56519, 58268 10 CFR 680...... 59466 Proposed Rules: 1...... 58308 166...... 58268 72...... 54885, 59395 698...... 59226 Ch. X...... 58023 167...... 58268 429...... 56475 17 CFR 169...... 58268 430...... 56475 32 CFR 177...... 58268 1...... 57462 Proposed Rules: 23...... 56924, 57462 105...... 57967 Proposed Rules: 35...... 57148 143...... 56172 Ch. II ...... 57298 50...... 56548 140...... 57462 200...... 57089 199...... 54914 117...... 57808 52...... 56548 204...... 55783 165 ...... 54946, 56186, 57175, 72...... 59447 202...... 57089 227...... 54483 217...... 55783 59254 73...... 56548 327...... 57967 429...... 58299 239...... 54483 34 CFR Proposed Rules: 430...... 56185, 57787 240...... 55082 553...... 57640 75...... 59916 431...... 57149 270...... 57089 276...... 55155 76...... 59916 33 CFR 106...... 59916 12 CFR Proposed Rules: 1...... 58268 Ch. III ...... 57693 3...... 57956 23...... 59470, 59702 2...... 58268 Ch. VI...... 57138 217...... 57956 232...... 58018 3...... 58268 600...... 54742 261...... 57616 5...... 58268 602...... 54742 324...... 57956 18 CFR 6...... 58268 606...... 59916 624...... 54233 292...... 54638 8...... 58268 607...... 59916 701...... 56498, 57666 375...... 54638 13...... 58268 608...... 59916 Proposed Rules: Proposed Rules: 17...... 58268 609...... 59916 22...... 54946 37...... 55201 23...... 58268 668...... 54742 208...... 54946 38...... 55201 25...... 58268 Proposed Rules: 339...... 54946 292...... 58300 26...... 58268 Ch. III ...... 55802 614...... 54946, 55786 27...... 58268 19 CFR 615...... 55786 40...... 58268 36 CFR 620...... 55786 Ch. I...... 57108, 59651, 59669, 45...... 58268 1155...... 59187 628...... 55786 59670 50...... 58268 Proposed Rules: 760...... 54946 360...... 56162 51...... 58268 214...... 54311 Ch. IV...... 59651 14 CFR 52...... 58268 228...... 54311 Proposed Rules: 55...... 58268 261...... 54311 21...... 58251 351...... 55801 62...... 58268 23...... 59400 64...... 58268 37 CFR 39 ...... 54481, 54885, 54888, 21 CFR 66...... 58268 1...... 58282 54891, 54893, 54896, 54900, 101...... 55587 67...... 58268 55169, 55171, 55781, 56159, 11...... 58282 514...... 59427 70...... 58268 41...... 58282 56161, 57666, 57668, 57671, 72...... 58268 57965, 59175, 59178, 59180, Proposed Rules: 42...... 58282 1...... 59984 74...... 58268 59404, 59406, 59409, 59411, 210...... 58114, 58160 201...... 59718 76...... 58268 59413, 59416, 59661, 59663 Proposed Rules: 300...... 55802 80...... 58268 71 ...... 54233, 55174, 55366, 210...... 58170 801...... 59718 82...... 58268 55368, 55369, 55371, 56514, 866...... 58300 83...... 58268 38 CFR 57085, 57086, 57088, 57673, 100...... 54494, 58268 21...... 59190 57674, 59665, 59667, 59668 24 CFR 101...... 58268 73...... 57675 103...... 58268 Proposed Rules: Proposed Rules: 91...... 55372 104...... 58268 3...... 56189 887...... 59234 93...... 58255, 58258 105...... 58268 984...... 59234 39 CFR 95...... 55174 106...... 58268 97 ...... 54902, 54909, 58260, 26 CFR 107...... 58268 551...... 55192 58262 109...... 58268 Proposed Rules: Proposed Rules: 1 ...... 55185, 56686, 58266, 114...... 58268 111...... 59484 25...... 55198 59428 115...... 58268 3050...... 56192 39 ...... 54286, 54515, 55388, Proposed Rules: 117 ...... 54496, 56516, 57691, 55391, 55619, 55622, 55624, 1 ...... 56846, 58307, 59481 58268 40 CFR 57165, 57168, 57799, 57802, 118...... 58268 9...... 57968 27 CFR 57804, 58002, 58004, 58007, 125...... 58268 52 ...... 54504, 54507, 54509, 58010, 58014, 59217, 59449, 9...... 54491 126...... 58268 54510, 54924, 56521, 57694, 59451, 59454, 59457, 59460 127...... 58268 57696, 57698, 57700, 57701, 29 CFR 71 ...... 55200, 55395, 55627, 143...... 58268 57703, 57707, 57712, 57714, 57170, 57806, 59220, 59463, 826...... 57677 145...... 58268 57721, 57723, 57727, 57729, 59465, 59700 1926...... 57109 146...... 58268 57731, 57733, 57736, 58283, 2520...... 59132 148...... 58268 58286, 59192, 59194, 59436, 15 CFR 4022...... 57123 149...... 58268 59672 743...... 56294 4044...... 57123 150...... 58268 55...... 55377 744...... 59419 Proposed Rules: 151...... 58268 60 ...... 57018, 57398, 57739 772...... 56294 2509...... 55219 153...... 58268 61...... 57739 774...... 56294 2510...... 54288 154...... 58268 63 ...... 55744, 56080, 57739 Proposed Rules: 2550...... 55219 155...... 58268 81 ...... 57733, 57736, 58286 30...... 58016 4022...... 55587 156...... 58268 141...... 54235

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143...... 54235 412...... 55385, 58432 7...... 58268 543...... 55386 180 ...... 54259, 54927, 55193, 413...... 54820, 58432 8...... 58268 571...... 54273 55380, 57746, 57750 414...... 54820, 57980 16...... 58268 633...... 59672 281...... 57754 417...... 58432 28...... 58268 1244...... 54936 30...... 58268 282...... 56172 422...... 54820, 55385 Proposed Rules 35...... 58268 300...... 54931 423...... 54820, 55385 571...... 55396 721...... 57756, 57968 460...... 55385 39...... 58268 Proposed Rules: 476...... 58432 68...... 58268 50 CFR 49...... 55628 480...... 58432 47 CFR 52 ...... 54947, 54952, 54954, 482...... 54820 17...... 54281 1...... 57980, 59864 54960, 54961, 56193, 56196, 483...... 54820, 55385 216...... 58297 56198, 57810, 58310, 58315, 484...... 58432 2...... 57980 25...... 57980 223...... 59198 58319, 58320, 59256, 59486, 485...... 54820 300...... 58297 59729 488...... 54820, 55385 27...... 57765, 57980 52...... 57767 600...... 56177, 59199 60...... 57815 493...... 54820, 55385 54...... 56528, 59196 622 ...... 54513, 54942, 54943, 61...... 57815 495...... 58432 64...... 56530 55592, 57982 63...... 57815 Proposed Rules: 73...... 58295 635...... 57783, 59445 81...... 54517 Ch. I ...... 56108 101...... 57980 648 ...... 54514, 55595, 56534, 131...... 54967 405...... 54327 57785, 57986 180...... 55810 Proposed Rules: 1 ...... 54523, 56549, 58032 660...... 55784 271...... 56200 43 CFR 2...... 56549 665...... 57988 282...... 56207 Proposed Rules: 64...... 59110 300...... 54970 3170...... 55940 679 ...... 54285, 55595, 57785, 57786, 58298, 59204, 59205, 48 CFR 41 CFR 44 CFR 59206 Proposed Rules: Proposed Rules: 201...... 54263 64...... 55196, 58294 1...... 56549, 57177 17 ...... 54339, 55398, 57578, 7...... 56549 42 CFR 45 CFR 57816, 58192, 58224, 59487, 12...... 56558 59732 9...... 54271 1173...... 56525 25...... 56549, 56558 71...... 56424 Proposed Rules: 44...... 56549 229...... 59258 121...... 59438 302...... 58029 52 ...... 56549, 56558, 57177 300...... 58321 402...... 55385 227...... 59258 600...... 56569 403...... 55385 46 CFR 252...... 59258 660...... 54529 405...... 58432 1...... 57757, 58268 665...... 56208 410...... 54820 2...... 58268 49 CFR 679...... 55243, 58322 411...... 55385 4...... 58268 Ch. XII...... 57108 680...... 55243

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