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Vol. 89
Monday,
No. 208
October 28, 2024
Pages 85421–85850
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024
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The FEDERAL REGISTER (ISSN 0097–6326) is published daily,
Monday through Friday, except official holidays, by the Office
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III
Contents
Federal Register
Vol. 89, No. 208
Monday, October 28, 2024
Drug Enforcement Administration
Agriculture Department
See Food and Nutrition Service
See Forest Service
PROPOSED RULES
Possible Control of Phenethyl Bromide as a List I Chemical,
85459–85462
Centers for Disease Control and Prevention
NOTICES
Draft Skin Notation Profiles:
Allyl Alcohol, Formamide, Formic Acid, Phenothiazine
and Picric Acid, 85537–85538
Centers for Medicare & Medicaid Services
RULES
Patient Protection and Affordable Care Act, HHS Notice of
Benefit and Payment Parameters for 2025; Updating
Section 1332 Waiver Public Notice Procedures;
Medicaid; Consumer Operated and Oriented Plan
Program; and Basic Health Program; Correcting
Amendment, 85431–85432
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals, 85538–85540
Agency Information Collection Activities; Proposals,
Submissions, and Approvals; Withdrawal, 85538
Economic Development Administration
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Application Materials for Economic Development
Administration Investment Assistance, 85494–85495
Education Department
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Federal Family Educational Loan Program—
Servicemembers Civil Relief Act, 85524–85525
Performance Review Board Members, 85525–85526
Employee Benefits Security Administration
PROPOSED RULES
Children and Families Administration
NOTICES
Request for Information:
Development of Interoperability Standards for Human
Service Programs, 85540–85545
Enhancing Coverage of Preventive Services under the
Affordable Care Act, 85750–85795
Energy Department
See Federal Energy Regulatory Commission
Coast Guard
RULES
Environmental Protection Agency
Safety Zone:
Choctawhatchee Bay, FL, 85432–85433
Upper Galveston Bay, Kemah, TX, 85434–85435
NOTICES
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals, 85551–85552
Alternative Compliance:
Delta Marine Industries Shipyard Hull No. 107050, 85551
Commerce Department
See Economic Development Administration
See Foreign-Trade Zones Board
See International Trade Administration
See National Oceanic and Atmospheric Administration
See Patent and Trademark Office
Consumer Product Safety Commission
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Environmental Justice Thriving Communities
Grantmaking Program: Applications for Subawards—
November Launch, 85534–85535
Safer Choice Program Product and Partner Recognition
Activities, 85533–85534
Certain New Chemicals or Significant New Uses:
Statements of Findings for August 2024, 85530–85531
Pesticide Registration Review:
Decisions and Case Closures for Several Pesticides, 85531
Pesticide Dockets Opened for Review and Comment,
85531–85533
Phasedown of Hydrofluorocarbons:
Implementation of the American Innovation and
Manufacturing Act, 85535
Meetings; Sunshine Act, 85523
Executive Office of the President
See Office of National Drug Control Policy
Copyright Office, Library of Congress
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RULES
Exemption to Prohibition on Circumvention of Copyright
Protection Systems for Access Control Technologies,
85437–85450
Federal Aviation Administration
Defense Department
Airspace Designations and Reporting Points:
Anchorage, AK; Correction, 85423
NOTICES
PROPOSED RULES
Environmental Impact Statements; Availability, etc.:
Enhanced Integrated Air and Missile Defense System on
Guam, 85523–85524
Airspace Designations and Reporting Points:
Eastern United States, 85455–85459
Palm Beach International Airport, FL, 85455
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Contents
IV
Small Business Timber Sale Set-Aside Program; Appeal
Procedures on Recomputation of Shares, 85493–
85494
Federal Deposit Insurance Corporation
NOTICES
Hearings, Meetings, Proceedings, etc.:
Advisory Committee on Economic Inclusion, 85535–
85536
General Services Administration
NOTICES
Federal Energy Regulatory Commission
NOTICES
Combined Filings, 85526, 85528–85529
Environmental Assessments; Availability, etc.:
Pacific Gas and Electric Co., 85529–85530
Records Governing Off-the-Record Communications, 85529
Scoping Period:
EcoElectrica, L.P., Proposed Ecoelectrica Liquefied
Natural Gas Supply Pipeline Capacity Project,
85526–85528
Federal Highway Administration
NOTICES
Surface Transportation Project Delivery Program:
Arizona Department of Transportation Draft Audit Four
Report, 85578–85584
Federal Railroad Administration
RULES
Accident/Incident Investigation Policy for Gathering
Information and Consulting with Stakeholders;
Correction, 85450–85452
Health and Human Services Department
See Centers for Disease Control and Prevention
See Centers for Medicare & Medicaid Services
See Children and Families Administration
See Food and Drug Administration
See Health Resources and Services Administration
See National Institutes of Health
See Substance Abuse and Mental Health Services
Administration
RULES
Patient Protection and Affordable Care Act, HHS Notice of
Benefit and Payment Parameters for 2025; Updating
Section 1332 Waiver Public Notice Procedures;
Medicaid; Consumer Operated and Oriented Plan
Program; and Basic Health Program; Correcting
Amendment, 85431–85432
PROPOSED RULES
Enhancing Coverage of Preventive Services under the
Affordable Care Act, 85750–85795
PROPOSED RULES
Positive Train Control Systems, 85462–85487
Health Resources and Services Administration
NOTICES
Federal Transit Administration
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Behavioral Health Integration Evidence Based Telehealth
Network Program Outcome Measures, 85545–85546
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Survey of Stakeholders, 85584–85585
Fish and Wildlife Service
Homeland Security Department
See Coast Guard
NOTICES
Permits; Applications, Issuances, etc.:
Emergency Exemption to Import Endangered Species,
85555
Food and Drug Administration
RULES
New Animal Drugs:
Approval of New Animal Drug Applications; Change of
Sponsor; Change of Sponsor Address, 85423–85429
Housing and Urban Development Department
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Voucher Management System Form, 85552–85553
Housing and Urban Development-Held Non Vacant Loan
Sales, 85553–85555
Indian Affairs Bureau
Food and Nutrition Service
NOTICES
NOTICES
Documented Petition for Federal Acknowledgment as an
American Indian Tribe, 85555–85556
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Women, Infants and Children and Farmers’ Market
Nutrition Program Outreach, Innovation and
Modernization Evaluation, 85488–85492
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Requests for Nominations:
Green Building Advisory Committee, 85536–85537
Foreign-Trade Zones Board
Interior Department
See Fish and Wildlife Service
See Indian Affairs Bureau
See National Indian Gaming Commission
NOTICES
NOTICES
Fiscal Year 2022 Service Contract Inventory, 85556
Expansion under Alternative Site Framework:
Foreign-Trade Zone 84, Houston, TX, 85495
Internal Revenue Service
Forest Service
RULES
NOTICES
Advanced Manufacturing Production Credit, 85798–85846
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Significant Cave Nomination Application, 85492–85493
PROPOSED RULES
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Contents
International Trade Administration
NOTICES
Antidumping or Countervailing Duty Investigations, Orders,
or Reviews:
Disposable Aluminum Containers, Pans, Trays and Lids
from the People’s Republic of China, 85495–85497
Frozen Warmwater Shrimp from Ecuador, 85506–85508
Frozen Warmwater Shrimp from India, 85502–85505
Frozen Warmwater Shrimp from Indonesia, 85498–85500,
85512–85514
Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam, 85500–85502
Determination of Sales at Less Than Fair Value:
Frozen Warmwater Shrimp from Ecuador, 85508–85510
Quarterly Update:
Annual Listing of Foreign Government Subsidies on
Articles of Cheese Subject to an In-Quota Rate of
Duty, 85505–85506
Sales at Less Than Fair Value; Determinations,
Investigations, etc.:
Aluminum Extrusions from the Socialist Republic of
Vietnam; Correction, 85510–85512
Judicial Conference of the United States
NOTICES
Hearings, Meetings, Proceedings, etc.:
Committee on Rules of Practice and Procedure, 85557
Justice Department
See Drug Enforcement Administration
See Prisons Bureau
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Contract Guard Personal Qualification Statement, 85559
The Study of Interpersonal Violence among Young
Adults Pilot Project, 85557–85559
Proposed Consent Decree:
CERCLA, 85560
Eunice Kennedy Shriver National Institute of Child
Health and Human Development, 85550
National Institute of Allergy and Infectious Diseases,
85547–85548
National Institute of Dental and Craniofacial Research,
85549
National Oceanic and Atmospheric Administration
RULES
Atlantic Highly Migratory Species:
Atlantic Bluefin Tuna Fisheries; Closure of the General
Category October through November Fishery for
2024, 85452–85453
Fisheries off West Coast States:
Highly Migratory Species Fishery; Amendment 8
Revisions to Essential Fish Habitat in the Fishery
Management Plan, 85453–85454
PROPOSED RULES
Taking or Importing of Marine Mammals:
Cargo Terminals Replacement Project in Anchorage, AK,
85686–85747
NOTICES
Hearings, Meetings, Proceedings, etc.:
Pacific Fishery Management Council, 85518–85520
Permits; Applications, Issuances, etc.:
Atlantic Highly Migratory Species; Exempted Fishing,
Scientific Research, Display, and Shark Research
Fishery Permits; Letters of Acknowledgment, 85515–
85517
Endangered Species; File No. 21467, 85518
Endangered Species; File No. 28294, 85517–85518
Marine Mammals and Endangered Species, 85514–85515
Taking or Importing of Marine Mammals:
Maintenance and Rehabilitation of the Bellingham
Shipping Terminal, 85520–85523
Nuclear Regulatory Commission
NOTICES
Order:
Glow Rhino, LLC, 85566–85570
Labor Department
See Employee Benefits Security Administration
Office of National Drug Control Policy
Library of Congress
See Copyright Office, Library of Congress
NOTICES
Designation of Five Areas as High Intensity Drug
Trafficking Areas, 85535
Maritime Administration
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Approval of Underwriters for Marine Hull Insurance,
85585
Patent and Trademark Office
RULES
Post-Registration Audit Selection Requirements for
Affidavits or Declarations of Use, Continued Use, or
Excusable Nonuse in Trademark Cases, 85435–85437
Merit Systems Protection Board
NOTICES
Personnel Management Office
Performance Review Board Members, 85565–85566
NOTICES
Hearings, Meetings, Proceedings, etc.:
Federal Prevailing Rate Advisory Committee, 85570
National Indian Gaming Commission
NOTICES
Fee Rate and Fingerprint Fees, 85556–85557
Pipeline and Hazardous Materials Safety Administration
PROPOSED RULES
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National Institutes of Health
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Electronic Individual Development Plan; National Eye
Institute, 85546–85547
Hearings, Meetings, Proceedings, etc.:
Center for Scientific Review, 85548–85549
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Hazardous Materials:
Advancing Safety of Highway, Rail, and Vessel
Transportation, 85590–85683
Postal Regulatory Commission
NOTICES
New Postal Products, 85570–85573
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Contents
VI
RULES
Presidential Documents
Patient Protection and Affordable Care Act, HHS Notice of
Benefit and Payment Parameters for 2025; Updating
Section 1332 Waiver Public Notice Procedures;
Medicaid; Consumer Operated and Oriented Plan
Program; and Basic Health Program; Correcting
Amendment, 85431–85432
PROCLAMATIONS
Special Observances:
United Nations Day (Proc. 10844), 85421–85422
ADMINISTRATIVE ORDERS
Sudan; Continuation of National Emergency (Notice of
October 25, 2024), 85847–85850
United States Mint
Prisons Bureau
NOTICES
NOTICES
Record of Decision:
Proposed Federal Correctional Institution and Federal
Prison Camp, Letcher County, KY, 85560–85565
Pricing:
2024 Numismatic Gold, Commemorative Gold, Platinum,
and Palladium Products Grid, 85585–85587
Veterans Affairs Department
NOTICES
Securities and Exchange Commission
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion, and Specially
Adaptive Housing Assistive Technology Grants
Criteria and Responses, 85587
NOTICES
Meetings; Sunshine Act, 85573–85574
Self-Regulatory Organizations; Proposed Rule Changes:
Cboe BZX Exchange, Inc., 85574–85576
New York Stock Exchange LLC, 85574
Small Business Administration
NOTICES
Separate Parts In This Issue
Disaster Declaration:
Nebraska; Public Assistance Only, 85576
North Carolina; Public Assistance Only, 85577
San Carlos Apache Tribe, 85577
Part II
Transportation Department, Pipeline and Hazardous
Materials Safety Administration, 85590–85683
Part III
Commerce Department, National Oceanic and Atmospheric
Administration, 85686–85747
State Department
RULES
Notarial and Related Services, 85429–85430
NOTICES
Part IV
Health and Human Services Department, 85750–85795
Labor Department, Employee Benefits Security
Administration, 85750–85795
Treasury Department, Internal Revenue Service, 85750–
85795
Culturally Significant Objects Imported for Exhibition:
Franz Kafka, 85578
Pirouette: Turning Points in Design, 85578
Qi Baishi: Inspiration in Ink, 85577
Substance Abuse and Mental Health Services
Administration
Part V
Treasury Department, Internal Revenue Service, 85798–
85846
NOTICES
Hearings, Meetings, Proceedings, etc., 85550
Part VI
Presidential Documents, 85847–85850
Transportation Department
See Federal Aviation Administration
See Federal Highway Administration
See Federal Railroad Administration
See Federal Transit Administration
See Maritime Administration
See Pipeline and Hazardous Materials Safety
Administration
Reader Aids
Consult the Reader Aids section at the end of this issue for
phone numbers, online resources, finding aids, and notice
of recently enacted public laws.
To subscribe to the Federal Register Table of Contents
electronic mailing list, go to https://public.govdelivery.com/
accounts/USGPOOFR/subscriber/new, enter your e-mail
address, then follow the instructions to join, leave, or
manage your subscription.
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Treasury Department
See Internal Revenue Service
See United States Mint
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Contents
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:
10844...............................85421
Administrative Orders:
Notices:
Notice of October 25,
2024 .............................85849
14 CFR
73.....................................85423
Proposed Rules:
71 (2 documents) ............85455
21 CFR
510...................................85423
516...................................85423
520...................................85423
522...................................85423
524...................................85423
529...................................85423
556...................................85423
558...................................85423
Proposed Rules:
1310.................................85459
22 CFR
92.....................................85429
26 CFR
1.......................................85798
Proposed Rules:
54.....................................85750
29 CFR
Proposed Rules:
2590.................................85750
31 CFR
33.....................................85431
33 CFR
165 (2 documents) .........85432,
85434
37 CFR
2.......................................85435
7.......................................85435
201...................................85437
42 CFR
435...................................85431
600...................................85431
45 CFR
153...................................85431
155...................................85431
156...................................85431
Proposed Rules:
147...................................85750
49 CFR
225...................................85450
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Proposed Rules:
107...................................85590
171...................................85590
172...................................85590
173...................................85590
174...................................85590
176...................................85590
177...................................85590
178...................................85590
179...................................85590
180...................................85590
236...................................85462
50 CFR
635...................................85452
660...................................85453
Proposed Rules:
217...................................85686
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VII
85421
Presidential Documents
Federal Register
Vol. 89, No. 208
Monday, October 28, 2024
Title 3—
Proclamation 10844 of October 23, 2024
The President
United Nations Day, 2024
By the President of the United States of America
A Proclamation
Nearly 80 years ago, our forebearers gathered for the first United Nations
General Assembly. With the horrors of World War II weighing on their
hearts and the hopes of humanity resting on their shoulders, they opened
the General Assembly by declaring, ‘‘The whole world now waits upon
our decisions . . . looking to us to show ourselves capable of mastering
our problems.’’ Today, we reflect on the history of this storied institution.
And together, we recommit to sustaining and strengthening it to master
the challenges of our time.
Under my Administration, the United States has been a leader at the United
Nations—rallying global action to advance democratic values, safeguard
human rights, and address the issues our world faces. That includes standing
against Russia’s brutal aggression against Ukraine and Hamas’ despicable
terrorist attack on Israel. At the United Nations, we have been working
to secure a ceasefire in Gaza, with the release of hostages, and we have
been pushing to expand humanitarian access and assistance. The United
States has also played a key role in helping bring security to the people
of Haiti and addressing the conflict and dire humanitarian situation in
Sudan, where millions are displaced and facing famine.
But we know people need more than the absence of war. They need the
chance to live with dignity. They need to be protected from the ravages
of climate change, hunger, and disease. That is why my Administration
has invested over $150 billion to accelerate progress on the Sustainable
Development Goals, including ending poverty, eliminating hunger, promoting
health and well-being, and promoting gender equality. We also forged a
historic consensus on the first-ever General Assembly Resolution on Artificial
Intelligence to help people everywhere seize the potential—and minimize
the risks—of this technology.
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As we look ahead, countries need to work together to continue reforming
the United Nations to be more effective. The United States will keep pushing
for a stronger, more inclusive United Nations, including a reformed and
expanded United Nations Security Council. And the Security Council, like
the United Nations itself, needs to focus on making peace, brokering deals
to end wars and suffering, stopping the spread of the most dangerous weapons, and stabilizing troubled regions.
Finally, the United Nations’ work is carried out by brave and committed
United Nations humanitarian workers, development professionals, peacekeepers, and members of special political missions. And every day, they
risk their own lives to save the lives of others, undertaking often dangerous
work. Like nations around the world, the United States honors their sacrifices
and those of their families.
Today and every day, let us remember that the forces holding us together
are stronger than those pulling us apart. Let us continue to work together
to unleash the power of humanity and give people the opportunity to live
freely, think freely, breathe freely, and love freely. And in the face of
difficult challenges, let us prove that we are capable of building a better
world together.
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85422
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Presidential Documents
NOW, THEREFORE, I, JOSEPH R. BIDEN JR., 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 October 24, 2024,
as United Nations Day. I urge the governors of the United States and its
territories, and the officials of all other areas under the flag of the United
States, to observe United Nations Day with appropriate ceremonies and
activities.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-third
day of October, in the year of our Lord two thousand twenty-four, and
of the Independence of the United States of America the two hundred
and forty-ninth.
[FR Doc. 2024–25106
Filed 10–25–24; 8:45 am]
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BIDEN.EPS
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Billing code 3395–F4–P
85423
Rules and Regulations
Federal Register
Vol. 89, No. 208
Monday, October 28, 2024
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 73
[Docket No. FAA–2023–1957; Airspace
Docket No. 23–AAL–28]
RIN 2120–AA66
Amendment of Jet Route J–133 and
Establishment of Area Navigation
Route Q–801 in the Vicinity of
Anchorage, AK
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule; correction.
AGENCY:
This action corrects a final
rule correction published in the Federal
Register of September 19, 2024, that
amends Jet Route J–133 and establishes
Area Navigation Route (RNAV) Q–801
in the vicinity of Anchorage, AK. This
action corrects a typographical error in
the regulatory text for J–133.
DATES: Effective date: 0901 UTC October
31, 2024.
ADDRESSES: FAA Order JO 7400.11J,
Airspace Designations and Reporting
Points, and subsequent amendments can
be viewed online at www.faa.gov/air_
traffic/publications/. You may also
contact the Rules and Regulations
Group, Office of Policy, Federal
Aviation Administration, 600
Independence Avenue SW, Washington,
DC 20597; telephone: (202) 267–8783.
FOR FURTHER INFORMATION CONTACT:
Steven Roff, Rules and Regulations
Group, Office of Policy, Federal
Aviation Administration, 600
Independence Avenue SW, Washington,
DC 20597; telephone (202) 267–8783.
SUPPLEMENTARY INFORMATION:
lotter on DSK11XQN23PROD with RULES1
SUMMARY:
History
The FAA published a final rule for
Docket No. FAA–2023–1957 in the
VerDate Sep<11>2014
15:57 Oct 25, 2024
Jkt 265001
Federal Register (89 FR 70474; August
30, 2024) that amended Jet Route J–133
and established RNAV Q–801 in the
vicinity of Anchorage, AK. Subsequent
to publication, the FAA published a
final rule correction for Docket No.
FAA–2023–1957 in the Federal Register
(89 FR 76713; September 19, 2024) that
corrected a typographical error in the
rule section of the final rule preamble,
but inadvertently retained a
typographical error in the regulatory
text for J–133. The final rule and final
rule correction listed the J–133 route
points in a North to South order in
error. The route points should be listed
in a South to North order. This action
corrects that error.
ACTION:
Correction to Final Rule
2024.
Accordingly, pursuant to the
authority delegated to me, Amendment
of Jet Route J–133 and Establishment of
Area Navigation Route Q–801 in the
Vicinity of Anchorage, AK, published in
the Federal Register of September 19,
2024 (89 FR 76713), FR Doc. 2024–
21260, is corrected as follows:
On page 76714, in the middle of
column 1, the description for Jet Route
J–133 is revised to read as follows:
FOR FURTHER INFORMATION CONTACT:
J–133 [Amended]
From Anchorage, AK; to Galena, AK.
*
*
*
*
*
Issued in Washington, DC, on October 22,
2024.
Frank Lias,
Manager, Rules and Regulations Group.
[FR Doc. 2024–24934 Filed 10–25–24; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 510, 516, 520, 522, 524,
529, 556, and 558
Final rule; technical
amendments.
The Food and Drug
Administration (FDA or we) is
amending the animal drug regulations to
reflect application-related actions for
new animal drug applications (NADAs),
abbreviated new animal drug
applications (ANADAs), and
conditionally approved new animal
drug applications (CNADAs) during
April, May, and June 2024. The animal
drug regulations are also being amended
to improve their accuracy and
readability.
SUMMARY:
DATES:
This rule is effective October 28,
George K. Haibel, Center for Veterinary
Medicine, Food and Drug
Administration, 7500 Standish Pl.,
Rockville, MD 20855, 240–402–5689,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Approvals
FDA is amending the animal drug
regulations to reflect approval actions
for NADAs, ANADAs, and CNADAs
during April, May, and June 2024, as
listed in table 1. In addition, FDA is
informing the public of the availability,
where applicable, of documentation of
environmental review required under
the National Environmental Policy Act
(NEPA) and, for actions requiring
review of safety or effectiveness data,
summaries of the basis of approval
(FOIA Summaries) under the Freedom
of Information Act (FOIA). These
documents, along with marketing
exclusivity and patent information, may
be obtained at Animal Drugs @FDA:
https://animaldrugsatfda.fda.gov/
adafda/views/#/search.
[Docket No. FDA–2024–N–0002]
New Animal Drugs; Approval of New
Animal Drug Applications; Change of
Sponsor; Change of Sponsor Address
AGENCY:
Food and Drug Administration,
HHS.
PO 00000
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
TABLE 1—ORIGINAL AND SUPPLEMENTAL NADAS, ANADAS, AND CNADAS APPROVED DURING APRIL, MAY, AND JUNE
2024 REQUIRING EVIDENCE OF SAFETY AND/OR EFFECTIVENESS
Date of approval
Sponsor
(drug labeler code)
File No.
April 5, 2024 ..........
141–043
Zoetis Inc, 333 Portage St., Kalamazoo, MI 49007 (054771).
April 9, 2024 ..........
141–550
April 10, 2024 ........
200–777
April 25, 2024 ........
200–728
April 26, 2024 ........
141–582
May 8, 2024 ..........
200–780
May 9, 2024 ..........
200–782
May 10, 2024 ........
141–577
Elanco US Inc., 2500 Innovation
Way, Greenfield, IN 46140
(058198).
Felix Pharmaceuticals PVT Ltd., 25–
28 North Wall Quay, Dublin 1, Ireland (086101).
Cronus Pharma Specialties India Private Ltd., Plot No. 9(B), Survey
No. 99/1, GMR Hyderabad Aviation
SEZ Ltd., Mamidipalle Village,
Balapur Mandal, Shamshabad,
Rangareddy, Hyderabad,
Telangana, 500108, India (069043).
Warburton Technology Ltd., 36
Fitzwilliam Square, Dublin, Dublin,
D02HX82, Ireland (066679).
Aurora Pharmaceutical, Inc., 1196
Highway 3 South, Northfield, MN
55057–3009 (051072).
Cronus Pharma Specialties India Private Ltd., Plot No. 9(B), Survey
No. 99/1, GMR Hyderabad Aviation
SEZ Ltd., Mamidipalle Village,
Balapur Mandal, Shamshabad,
Rangareddy, Hyderabad,
Telangana, 500108, India (069043).
Vetoquinol USA, Inc., 4250 N Sylvania Ave., Fort Worth, TX 76137
(017030).
May 16, 2024 ........
200–781
May 23, 2024 ........
131–675
June 4, 2024 .........
138–255
June 11, 2024 .......
200–787
June 17, 2024 .......
200–785
June 20, 2024 .......
200–784
lotter on DSK11XQN23PROD with RULES1
SYNOVEX CHOICE (trenbolone acetate and estradiol benzoate) and
SYNOVEX PRIMER (trenbolone
acetate and estradiol benzoate).
PRADALEX (pradofloxacin injection)
Supplemental approval for increased
rate of weight gain in growing beef
steers and heifers in a dry lot.
522.2478
Original approval for treatment of bovine respiratory disease and swine
respiratory disease.
Original approval as a generic copy
of NADA 141–199.
522.1860
556.530
PIMOMEDIN (pimobendan) Tablets ..
Original approval as a generic copy
of NADA 141–033.
520.1780
MULTIMIN 90 (zinc, copper, manganese, and selenium injection).
Original approval as a supplemental
source of zinc, copper, manganese, and selenium in cattle.
Original approval as a generic copy
of NADA 013–149.
522.2694
ENROPRO Silver Otic (enrofloxacin/
silver sulfadiazine) Otic Emulsion.
Original approval as a generic copy
of NADA 141–176.
524.802
UPCARD–CA1 (torsemide oral solution).
Conditional approval as concurrent
therapy with pimobendan,
spironolactone, and an angiotensin
converting enzyme (ACE) inhibitor
for the management of pulmonary
edema in dogs with congestive
heart failure caused by
myxomatous mitral valve disease
(MMVD).
Original approval as a generic copy
of NADA 101–479.
516.2475
558.258
Carprofen Injectable Solution ............
COCCIAID (amprolium) for Calves ....
Sparhawk Laboratories, Inc., 12340
Santa Fe Trail Dr., Lenexa, KS
66215 (058005).
ZyVet Animal Health, Inc., 73 Route
31N, Pennington, NJ 08534
(086117).
Iron Dextran 20% Injection (iron hydrogenated dextran injection)
Injectable Solution.
Phenylpropanolamine Hydrochloride
Chewable Tablets.
Felix Pharmaceuticals PVT Ltd., 25–
28 North Wall Quay, Dublin 1, IRELAND.
ZyVet Animal Health, Inc., 73 Route
31N, Pennington, NJ 08534
(086117).
Maropitant Citrate Tablets
(maropitant citrate).
Supplemental approval for the treatment and control of cecal worms
(Aulonocephalus spp.) in wild quail.
Supplemental approval for the prevention or treatment of iron deficiency anemia in nursing piglets.
Original approval for the control of
urinary incontinence due to urethral
sphincter hypotonus in dogs as a
generic copy of NADA 141–324.
Original approval as a generic copy
of NADA 141–262.
Trimeprazine with prednisolone tablets.
Original approval as a generic copy
of NADA 012–437.
Elanco US Inc., 2500 Innovation Way,
Greenfield, IN 46140 has informed FDA
that it has transferred ownership of, and
all rights and interest in, ANADA 200–
582 for LONCOR 300 (florfenicol)
Injectable Solution to Zoetis Inc, 333
Portage St., Kalamazoo, MI 49007. As
provided in the regulatory text of this
VerDate Sep<11>2014
Effect of the action
Cronus Pharma Specialties India Pri- FLUNINE (flunixin meglumine injecvate Ltd., Plot No. 9(B), Survey
tion).
No. 99/1, GMR Hyderabad Aviation
SEZ Ltd., Mamidipalle Village,
Balapur Mandal, Shamshabad,
Rangareddy, Hyderabad,
Telangana, 500108, India (069043).
Intervet, Inc., 126 E Lincoln Ave.,
SAFE–GUARD 20% (fenbendazole)
Rahway, NJ 07065 (000061).
Type A medicated article.
II. Change of Sponsor
15:57 Oct 25, 2024
Jkt 265001
document, the animal drug regulations
are amended to reflect this action.
III. Change of Sponsor Address
Ivaoes Animal Health (drug labeler
code 086064 in 21 CFR 510.600(c)) has
informed FDA that it has changed its
address to 2101 W Atlantic Blvd., Suite
108, Pompano Beach, FL 33069. The
entries in § 510.600(c) are amended to
reflect this action.
PO 00000
Frm 00002
21 CFR
section
Product name
Fmt 4700
Sfmt 4700
522.304
520.100
522.970
522.1182
520.1760
520.1315
520.2604
IV. Technical Amendments
FDA is making the following
amendments to improve the accuracy
and readability of the animal drug
regulations.
• 21 CFR 510.600 is amended to
revise the entries for Ivaoes Animal
Health Inc. in the lists of sponsors of
approved applications and to add
entries for Warburton Technology Ltd.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
• 21 CFR 516.1760 is being amended
to provide for additional strengths of
phenobarbital tablets.
• 21 CFR 520.2130 is amended to
revise body weights of dogs and cats for
treatment with spinosad chewable
tablets.
• 21 CFR 520.2598 is being amended
to reflect an additional strength
trilostane capsule.
• 21 CFR 522.772 is amended to
revise specific parasite indications and
to reflect the prescription marketing
status of doramectin and levamisole
injectable solution for use in cattle.
• 21 CFR 522.970 is amended to
reflect approved food-producing animal
species for separate sponsor products.
• 21 CFR 522.1696b is amended to
revise the preslaughter withdrawal
period for cattle administered a
penicillin G procaine aqueous
suspension.
• 21 CFR 529.1004 is amended to
reflect approved conditions of use for
formalin in finfish.
• 21 CFR 529.1150 is amended to
reflect approved conditions of use for
hydrogen peroxide in freshwater-reared
salmonids.
• 21 CFR 556.275 is amended by
adding a tolerance for residues of
fenbendazole in edible tissues of quail
established as a consequence of the
supplemental approval of fenbendazole
medicated quail feed.
• 21 CFR 556.530 is added to provide
tolerances for residues of pradofloxacin
in edible tissues of cattle and swine.
• 21 CFR 558.261 is being amended
to reflect incorporation levels of
florfenicol in medicated feed for
freshwater-reared salmonids.
• 21 CFR 558.450 is being amended
to provide inclusion rates for
oxytetracycline in medicated feed for
finfish.
V. Legal Authority
This final rule is issued under section
512(i) of the Federal Food, Drug, and
Cosmetic Act (FD&C Act) (21
U.S.C.360b(i)). Although deemed a rule
pursuant to the FD&C Act, this
document does not meet the definition
of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because
it is a ‘‘rule of particular applicability’’
and is not subject to the congressional
review requirements in 5 U.S.C. 801–
808. Likewise, this is not a rule subject
to Executive Order 12866.
List of Subjects
21 CFR Part 510
Administrative practice and
procedure, Animal drugs, Labeling,
Reporting and recordkeeping
requirements.
21 CFR Part 516
Administrative practice and
procedure, Animal drugs, Confidential
business information, Reporting and
recordkeeping requirements.
21 CFR Part 556
Animal drugs, Dairy products, Foods,
Meat and meat products.
21 CFR Part 558
Animal drugs, Animal feeds.
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs, 21 CFR parts 510,
516, 520, 522, 524, 529, 556, and 558 are
amended as follows:
PART 510—NEW ANIMAL DRUGS
1. The authority citation for part 510
continues to read as follows:
■
Authority: 21 U.S.C. 321, 331, 351, 352,
353, 360b, 371, 379e.
2. In § 510.600(c):
a. In the table in paragraph (c)(1),
revise the entry for ‘‘Ivaoes Animal
Health’’ and add in alphabetical order
an entry for ‘‘Warburton Technology
Ltd.’’; and
■ b. In the table in paragraph (c)(2), add
an entry in numerical order for
‘‘066679’’ and revise the entry for
‘‘086064’’.
The revisions and additions read as
follows:
■
■
§ 510.600 Names, addresses, and drug
labeler codes of sponsors of approved
applications.
*
21 CFR Parts 520, 522, 524, and 529
Animal drugs.
*
*
(c) * * *
(1) * * *
*
*
Drug labeler
code
Firm name and address
*
*
*
*
*
*
Ivaoes Animal Health, 2101 W Atlantic Blvd., Suite 108, Pompano Beach, FL 33069 ......................................................................
*
*
*
*
*
*
*
Warburton Technology Ltd., 36 Fitzwilliam Square, Dublin 2, Dublin, D02HX82, Ireland ..................................................................
*
*
*
*
*
*
086064
066679
*
*
(2) * * *
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Drug labeler
code
Firm name and address
*
066679 ............
*
*
*
*
Warburton Technology Ltd., 36 Fitzwilliam Square, Dublin 2, Dublin, D02HX82, Ireland.
*
*
*
086064 ............
*
*
*
*
Ivaoes Animal Health, 2101 W Atlantic Blvd., Suite 108, Pompano Beach, FL 33069.
*
*
*
*
*
VerDate Sep<11>2014
*
15:57 Oct 25, 2024
*
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*
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*
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
PART 516—NEW ANIMAL DRUGS FOR
MINOR USE AND MINOR SPECIES
3. The authority citation for part 516
continues to read as follows:
■
Authority: 21 U.S.C. 360ccc–1, 360ccc–2,
371.
4. In § 516.1760, revise paragraph (a)
to read as follows:
■
§ 516.1760
Phenobarbital.
(a) Specifications. Each tablet
contains 15, 16.2, 30, 32.4, 60, 64.8, 97.2
or 100 milligrams (mg) phenobarbital.
*
*
*
*
*
5. Add § 516.2475 to subpart E to read
as follows:
■
§ 516.2475
Torsemide.
(a) Specifications. Each milliliter of
solution contains 0.2 milligrams (mg)
torsemide.
(b) Sponsor. See No. 017030 in
§ 510.600(c) of this chapter.
(c) Conditions of use in dogs—(1)
Amount. Administer orally once daily at
a dose of 0.05 to 0.2 mg/lb (0.11 to 0.44
mg/kg) of bodyweight.
(2) Indications for use. For use as
concurrent therapy with pimobendan,
spironolactone, and an angiotensin
converting enzyme (ACE) inhibitor for
the management of pulmonary edema in
dogs with congestive heart failure
caused by myxomatous mitral valve
disease (MMVD).
(3) Limitations. Federal law restricts
this drug to use by or on the order of
a licensed veterinarian. It is a violation
of Federal law to use this product other
than as directed in the labeling.
PART 520—ORAL DOSAGE FORM
NEW ANIMAL DRUGS
6. The authority citation for part 520
continues to read as follows:
■
7. In § 520.100, revise paragraph
(b)(2), and remove paragraph (b)(3) to
read as follows:
■
*
*
*
*
(b) Sponsors. See sponsors in
§ 510.600(c) of this chapter for use as in
paragraph (c) of this section:
(1) Nos. 055246 and 086117 for use of
product described in paragraph (a)(1) of
this section as in paragraphs (c)(1)(i)
and (c)(2) and (3) of this section.
(2) No. 055246 for use of product
described in paragraph (a)(2) of this
section as in paragraph (c)(1)(ii) and
(c)(2) and)(3) of this section.
*
*
*
*
*
■ 10. In § 520.1780, revise paragraph (b)
to read as follows:
§ 520.1780
Amprolium.
*
*
*
*
(b) Sponsors. See Nos. 000010 and
069043 in § 510.600(c) of this chapter.
*
*
*
*
*
§ 520.2130
§ 520.2598
14. The authority citation for part 522
continues to read as follows:
■
Authority: 21 U.S.C. 360b.
Maropitant.
§ 522.304
*
*
*
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*
Carprofen.
*
Frm 00004
*
Fmt 4700
*
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(b) Sponsors. See Nos. 016729,
017033, 054771, 055529, 069043, and
086101 in § 510.600(c) of this chapter.
*
*
*
*
*
■ 16. In § 522.772:
■ a. Revise paragraph (d)(1)(ii); and
■ b. In paragraph (d)(1)(iii), add a
sentence to the end of the paragraph.
The revision and addition read as
follows:
§ 522.772
Doramectin and levamisole.
*
*
*
*
*
(d) * * *
(1) * * *
(ii) Indications for use. For treatment
and control of gastrointestinal
roundworms (adults and fourth stage
larvae): Ostertagia ostertagi (including
inhibited larvae), O. lyrata,
Haemonchus placei, Trichostrongylus
axei, T. colubriformis, T. longispicularis
(adults only), Oncophora, Cooperia
pectinata (adults only), C. punctata, C.
surnabada, Bunostomum phlebotomum
(adults only), Strongyloides papillosus
(adults only), Oesophagostomum
radiatum, Trichuris spp. (adults only)
and Nematodirus helvetianus (adults
only); lungworms (adults and fourth
stage larvae): Dictyocaulus viviparus;
eyeworms (adults): Thelazia spp.; grubs
(parasitic stages): Hypoderma bovis and
H. lineatum; sucking lice:
Haematopinus eurysternus, Linognathus
vituli, and Solenopotes capillatus;
mange mites: Psoroptes bovis and
Sarcoptes scabiei in beef cattle 2 months
of age and older and replacement dairy
heifers less than 20 months of age. Not
for use in beef bulls intended for
breeding over 1 year of age, dairy calves,
and veal calves.
(iii) * * * Federal law restricts this
drug to use by or on the order of a
licensed veterinarian.
*
*
*
*
*
§ 522.955
[Amended]
17. In § 522.955:
a. In paragraph (b)(3), remove the text
‘‘Nos. 058005, 058198, and 069043’’ and
in its place add the text ‘‘Nos. 054771,
058005, and 069043’’; and
■ b. In paragraph (d)(1)(ii)(C), in the
second sentence, remove the text ‘‘Nos.
000061, 058005, 058198, and 069043’’
and in its place add the text ‘‘Nos.
000061, 054771, 058005, and 069043’’.
■ 18. In § 522.970, revise paragraphs
(b)(1) and (3) to read as follows:
■
■
§ 522.970
Flunixin.
*
15. In § 522.304, revise paragraph (b)
to read as follows:
*
Jkt 265001
Trimeprazine and prednisolone
PART 522—IMPLANTATION OR
INJECTABLE DOSAGE FORM NEW
ANIMAL DRUGS
§ 520.1315
15:57 Oct 25, 2024
Trilostane.
(a) Specifications. Each capsule
contains 5, 10, 20, 30, 60, or 120
milligrams (mg) trilostane.
*
*
*
*
*
■ 13. In § 520.2604, revise paragraph (b)
to read as follows:
■
VerDate Sep<11>2014
[Amended]
11. In § 520.2130:
a. In paragraph (d)(1)(ii), remove the
text ‘‘3.3 pounds’’ and in its place add
the text ‘‘5.0 pounds’’; and
■ b. In paragraph (d)(2)(ii), remove the
text ‘‘2 pounds’’ and in its place add the
text ‘‘4.1 pounds’’.
■ 12. In § 520.2598, revise paragraph (a)
to read as follows:
■
■
8. In § 520.1315, revise paragraph (b)
to read as follows:
■
*
Pimobendan tablets.
*
*
*
*
*
(b) Sponsors. See Nos. 054771 and
086117 in § 510.600(c) of this chapter.
*
*
*
*
*
*
*
*
*
(b) * * *
(2) Nos. 051072 and 066104 for use of
product described in paragraph (a)(1) of
this section as in paragraph (d) of this
section.
*
*
*
*
*
*
Phenylpropanolamine.
*
*
*
lotter on DSK11XQN23PROD with RULES1
§ 520.1760
§ 520.2604
tablets.
Authority: 21 U.S.C. 360b.
§ 520.100
(b) Sponsors. See Nos. 054771,
086101, and 086117 in § 510.600(c) of
this chapter.
*
*
*
*
*
■ 9. In § 520.1760, revise paragraph (b)
to read as follows:
*
*
*
*
(b) * * *
(1) See Nos. 000061, 055529, and
061133 for use as in paragraph (e) of this
section.
*
*
*
*
*
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(3) See Nos. 016592, 058198, and
069043 for use as in paragraphs (e)(1)
and (2) of this section.
*
*
*
*
*
■ 19. In § 522.1182, revise introductory
text of paragraph (b)(7) to read as
follows:
§ 522.1182
Iron injection.
*
*
*
*
*
(b) * * *
(7) Nos. 016592, 042552, and 058005
for use product described in paragraph
(a)(2) of this section as follows:
*
*
*
*
*
■ 20. In § 522.1696b, revise paragraph
(d)(2)(iii)(B) to read as follows:
§ 522.1696b Penicillin G procaine aqueous
suspension.
*
*
*
*
*
(d) * * *
(2) * * *
(iii) * * *
(B) For Nos. 016592 and 055529:
treatment should not exceed 4
consecutive days. A withdrawal period
has not been established for this product
in pre-ruminating calves. Discontinue
treatment for the following number of
days before slaughter: cattle—14;
sheep—9; and swine—7.
*
*
*
*
*
■ 21. Add § 522.1860 to read as follows:
lotter on DSK11XQN23PROD with RULES1
§ 522.1860
Pradofloxacin.
(a) Specifications. Each milliliter (mL)
of solution contains 200 milligrams (mg)
pradofloxacin.
(b) Sponsor. See No. 058198 in
§ 510.600(c) of this chapter.
(c) Related tolerances. See § 556.530
of this chapter.
(d) Conditions of use—(1) Cattle—(i)
Amount. Administer a single dose of 10
mg/kg (2.3 mL/100 lb) body weight by
subcutaneous injection.
(ii) Indications for use. Cattle
intended for slaughter (beef calves 2
months of age and older, growing beef
steers, growing beef heifers, and beef
bulls intended for slaughter), and in
cattle intended for breeding less than 1
year of age (replacement beef and dairy
heifers less than 1 year of age and beef
and dairy bulls less than 1 year of age):
for the treatment of bovine respiratory
disease associated with Mannheimia
haemolytica, Pasteurella multocida,
Histophilus somni, and Mycoplasma
bovis.
(iii) Limitations. Cattle intended for
human consumption must not be
slaughtered within 4 days of treatment.
Not for use in female dairy cattle 1 year
of age and older, including dry dairy
cows; use in these cattle may cause drug
residues in milk and/or in calves born
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15:57 Oct 25, 2024
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to these cows. Not for use in beef calves
less than 2 months of age, dairy calves,
and veal calves. A withdrawal period
has not been established for this product
in pre-ruminating calves. Federal law
restricts this drug to use by or on the
order of a licensed veterinarian. Federal
law prohibits the extralabel use of this
drug in food-producing animals.
(2) Swine—(i) Amount. Administer a
single dose of 7.5 mg/kg (1.7 mL/100 lb)
body weight by intramuscular injection.
(ii) Indications for use. Weaned swine
intended for slaughter (nursery,
growing, and finishing swine, boars
intended for slaughter, barrows, gilts
intended for slaughter, and sows
intended for slaughter): for the
treatment of swine respiratory disease
associated with Bordetella
bronchiseptica, Glaesserella
(Haemophilus) parasuis, Pasteurella
multocida, Streptococcus suis, and
Mycoplasma hyopneumoniae.
(iii) Limitations. Swine intended for
human consumption must not be
slaughtered within 2 days of treatment.
Federal law restricts this drug to use by
or on the order of a licensed
veterinarian. Federal law prohibits the
extralabel use of this drug in foodproducing animals.
■ 22. In § 522.2478:
■ a. Redesignate paragraphs (a)(1)(i) and
(ii) as paragraphs (a)(1)(ii) and (iii);
■ b. Add new paragraph (a)(1)(i);
■ c. Revise paragraphs (d)(1)(i)(A), (B),
and (D); and
■ d. Add paragraph (d)(3).
The revisions and additions read as
follows:
§ 522.2478 Trenbolone acetate and
estradiol benzoate.
(a) * * *
(1) * * *
(i) 50 milligrams (mg) trenbolone
acetate and 7 mg estradiol benzoate (one
implant consisting of two pellets, each
pellet containing 25 mg trenbolone
acetate and 3.5 mg estradiol benzoate)
per implant dose.
*
*
*
*
*
(d) * * *
(1) * * *
(i) * * *
(A) An implant containing 100 mg
trenbolone acetate and 14 mg estradiol
benzoate as described in paragraph
(a)(1)(ii) of this section for increased rate
of weight gain in growing beef steers fed
in confinement for slaughter and for
increased rate of weight gain and
improved feed efficiency in growing
beef heifers fed in confinement for
slaughter. For increased rate of weight
gain for up to 200 days in a
reimplantation program where an
implant as described in paragraph
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85427
(a)(1)(ii) of this section is the first
implant and an implant as described in
paragraph (a)(1)(ii) or (iii) or (a)(2)(ii) of
this section is administered 60 to 120
days later.
(B) An implant containing 200 mg
trenbolone acetate and 28 mg estradiol
benzoate as described in paragraph
(a)(1)(iii) of this section for increased
rate of weight gain and improved feed
efficiency in growing beef steers fed in
confinement for slaughter and for
increased rate of weight gain in growing
beef heifers fed in confinement for
slaughter. For increased rate of weight
gain for up to 200 days in a
reimplantation program where an
implant as described in paragraph
(a)(1)(ii) of this section is the first
implant and an implant as described in
paragraph (a)(1)(iii) of this section is
administered 60 to 120 days later.
*
*
*
*
*
(D) An extended-release implant
containing 200 mg trenbolone acetate
and 28 mg estradiol benzoate as
described in paragraph (a)(2)(ii) of this
section for increased rate of weight gain
and improved feed efficiency for up to
200 days. For increased rate of weight
gain for up to 200 days in a
reimplantation program where an
implant as described in paragraph
(a)(1)(ii) of this section is the first
implant and an implant as described in
paragraph (a)(2)(ii) of this section is
administered 60 to 120 days later.
*
*
*
*
*
(3) Growing beef steers and heifers in
a dry lot—(i) Amount and indications
for use. (A) An implant containing 50
mg trenbolone acetate and 7 mg
estradiol benzoate as described in
paragraph (a)(1)(i) of this section for
increased rate of weight gain in growing
beef steers and heifers in a dry lot.
(B) An implant containing 100 mg
trenbolone acetate and 14 mg estradiol
benzoate as described in paragraph
(a)(1)(ii) of this section for increased rate
of weight gain in growing beef steers
and heifers in a dry lot.
(ii) Limitations. Implant pellets
subcutaneously in ear only. Not
approved for repeated implantation
(reimplantation) with this or any other
cattle ear implant in growing beef steers
and heifers in a dry lot. Safety and
effectiveness following reimplantation
have not been evaluated. Do not use in
beef calves less than 2 months of age,
dairy calves, and veal calves because
effectiveness and safety have not been
established. A withdrawal period has
not been established for this product in
pre-ruminating calves. Do not use in
dairy cows or in animals intended for
subsequent breeding. Use in these cattle
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may cause drug residues in milk and/or
in calves born to these cows.
■
23. Add § 522.2694 to read as follows:
§ 522.2694
selenium.
Zinc, copper, manganese, and
(a) Specifications. Each milliliter (mL)
of solution contains 60 milligrams (mg)
zinc as zinc oxide, 15 mg copper as
copper carbonate, 10 mg manganese as
manganese carbonate, and 5 mg
selenium as sodium selenite.
(b) Sponsor. See No. 066679 in
§ 510.600(c) of this chapter.
(c) Conditions of use—(1) Amount.
Administer a single dose by
subcutaneous injection to cattle up to 1
year of age, 1 mL/100 lb bodyweight; to
cattle from 1 to 2 years of age, 1 mL/150
lb bodyweight, and to cattle over 2 years
of age, 1 mL/200 lb bodyweight.
*
*
*
*
(b) Sponsors. See Nos. 058198 and
069043 in § 510.600(c) of this chapter.
*
*
*
*
*
PART 529—CERTAIN OTHER DOSAGE
FORM NEW ANIMAL DRUGS
Authority: 21 U.S.C. 360b.
27. In § 529.1004, in the table in
paragraph (d)(2)(ii), revise footnote 1 to
read as follows:
■
24. The authority citation for part 524
continues to read as follows:
§ 529.1004
Authority: 21 U.S.C. 360b.
*
25. In § 524.802, revise paragraph (b)
to read as follows:
■
*
*
26. The authority citation for part 529
continues to read as follows:
■
*
§ 524.802 Enrofloxacin and silver
sulfadiazine otic emulsion.
■
PART 524—OPHTHALMIC AND
TOPICAL DOSAGE FORM NEW
ANIMAL DRUGS
Administer in tanks and raceways for up to 1 hour
(microliter/liter or part per million
(μL/L or ppm))
Aquatic species
*
(2) Indications for use. As a
supplemental source of zinc, copper,
manganese, and selenium in cattle.
(3) Limitations. Cattle must not be
slaughtered for human food
consumption within 14 days of the last
treatment. Federal law restricts this drug
to use by or on the order of a licensed
veterinarian.
Formalin.
*
*
(d) * * *
(2) * * *
(ii) * * *
*
*
Administer in earthen ponds single treatment
(μL/L or ppm)
*
*
*
*
1 Use
the lower concentration when ponds are heavily loaded with phytoplankton or fish to avoid oxygen depletion due to the biological oxygen
demand by decay of dead phytoplankton. Alternatively, a higher concentration may be used if dissolved oxygen is strictly monitored.
Authority: 21 U.S.C. 342, 360b, 371.
*
*
*
*
*
28. In § 529.1150, revise paragraph
(c)(1)(iv) to read as follows:
■
§ 529.1150
§ 556.275
30. In § 556.275, add paragraph (b)(6)
to read as follows:
■
Hydrogen peroxide.
*
*
*
*
*
(c) * * *
(1) * * *
(iv) Freshwater-reared salmonids for
the treatment and control of
Gyrodactylus spp: 100 mg/L for 30
minutes, or 50 mg/L for 60 minutes, in
a continuous flow water supply or as a
static bath once per day on alternate
days for three treatments.
*
*
*
*
*
PART 556—TOLERANCES FOR
RESIDUES OF NEW ANIMAL DRUGS
IN FOOD
29. The authority citation for part 556
continues to read as follows:
■
Species/class
lotter on DSK11XQN23PROD with RULES1
*
*
*
*
(b) * * *
(6) Quail. (i) Liver (target tissue): 6
ppm fenbendazole sulfone (marker
residue).
(ii) [Reserved]
*
*
*
*
*
■ 31. Add § 556.530 to subpart B to read
as follows:
§ 556.530
*
90.7
32. The authority citation for part 558
continues to read as follows:
■
Authority: 21 U.S.C. 354, 360b, 360ccc,
360ccc–1, 371.
32. In § 558.258, add heading to
paragraph (e)(1) and add paragraph
(e)(5)(iv) to read as follows:
■
§ 558.258
§ 558.261
*
*
*
*
*
33. In § 558.261, revise paragraph
(e)(2)(ii) to read as follows:
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Florfenicol.
*
*
(e) * * *
Frm 00006
*
Fmt 4700
Fenbendazole.
*
*
*
(e) * * *
(1) Turkeys.
*
*
*
(5) * * *
*
*
*
*
Limitations
*
*
For the treatment and control of Gastrointestinal
worms: cecal worms (Aulonocephalus spp.).
■
15:57 Oct 25, 2024
PART 558—NEW ANIMAL DRUGS FOR
USE IN ANIMAL FEEDS
Indications for use
*
VerDate Sep<11>2014
Pradofloxacin.
(a) Acceptable daily intake (ADI). The
ADI for total residue of pradofloxacin is
2 mg/kg of body weight per day.
(b) Tolerances. The tolerances for
pradofloxacin (marker residue) are:
(1) Cattle. Kidney (target tissue): 30
ppb.
Fenbendazole
grams per ton
*
(iv) Wild quail ..............
Fenbendazole.
*
(2) Swine. Kidney (target tissue): 1
ppm.
(c) Related conditions of use. See
§ 522.1860 of this chapter.
*
*
*
Feed for 21 consecutive days. Prior withdrawal of
feed is not necessary.
(2) * * *
*
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Florfenicol in grams/ton of
feed
*
(ii) 182 to 2,724 ...............
Indications for use
*
*
*
§ 558.450
■
*
*
*
*
*
34. In § 558.450, revise paragraphs
(e)(5)(iv), (v), and (vi) to read as follows:
Oxytetracycline amount
(v) 500 to 7,500 g/ton to
provide 3.75 g/100 lb of
fish/day.
(vi) 1.25 to 25 g/kg to
provide 11.35 g/100 lb
of fish/day.
*
*
BILLING CODE 4164–01–P
DEPARTMENT OF STATE
22 CFR Part 92
[Public Notice: 12553]
RIN 1400–AF89
Notarial and Related Services
Bureau of Consular Affairs,
Department of State.
ACTION: Final rule.
AGENCY:
The Bureau of Consular
Affairs amends its notarial rules to
reflect that the Director, Deputy
Directors, and regional Division Chiefs
of the Office of American Citizens
Services and Crisis Management,
Overseas Citizens Services will
SUMMARY:
15:57 Oct 25, 2024
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*
Frm 00007
Administer in mixed ration for 10 days. Do not liberate fish or
slaughter fish for food for 21 days following the last administration of medicated feed. Do not administer when water
temperature is below 16.7 °C (62 °F).
Administer in mixed ration for 10 days. Do not liberate fish or
slaughter fish for food for 21 days following the last administration of medicated feed.
Feed for 10 days. Immediate release is permitted following
last feeding of medicated feed.
Administer in mixed ration for 10 days. Do not liberate fish or
slaughter fish for food for 21 days following the last administration of medicated feed. Do not administer when water
temperature is below 16.7 °C (62 °F).
Administer medicated feed as the sole ration for 4 consecutive days. Do not liberate for at least 7 days following last
feeding of medicated feed.
*
Fmt 4700
Sponsor
*
*
*
Administer in mixed ration for 10 days. Do not liberate fish or
slaughter fish for food for 21 days following the last administration of medicated feed.
*
designate U.S. citizen employees of the
Department of State abroad, who are not
diplomatic or consular officers, to
perform notarial services. This change
will streamline the designation process
allowing expedited designation to
provide this and expedite notarial
service where needed at U.S. embassies
and consulates abroad.
DATES: This rule is effective on
November 27, 2024.
FOR FURTHER INFORMATION CONTACT:
Thales Dus, U.S. Department of State,
CA/OCS/MSU, SA–17, 10th Floor,
Washington, DC 20522–1707,
[email protected], 202–485–6020.
SUPPLEMENTARY INFORMATION: This final
rule modifies the Department’s
regulations on Notarial and Related
Services in 22 CFR part 92.
Amendments to § 92.1 authorize the
Director, Deputy Directors and regional
Division Chiefs of the Office of
American Citizens Services and Crisis
Management, Bureau of Consular
Affairs, to designate U.S. citizen
employees of the U.S. Department of
PO 00000
*
Limitations
*
[FR Doc. 2024–24820 Filed 10–25–24; 8:45 am]
lotter on DSK11XQN23PROD with RULES1
*
Pacific salmon not over 30 grams body weight: for marking of
the skeletal tissue.
*
*
Oxytetracycline.
*
*
(5) * * *
1. Freshwater-reared salmonids: for control of mortality due to
coldwater disease associated with Flavobacterium
psychrophilum or for control of mortality due to columnaris
disease associated with Flavobacterium columnare.
2. Freshwater-reared salmonids weighing up to 55 grams: for
marking of the skeletal tissue.
3. Catfish: for control of mortality due to columnaris disease
associated with Flavobacterium columnare.
Dated: October 21, 2024.
Eric Flamm,
Acting Associate Commissioner for Policy.
VerDate Sep<11>2014
*
*
*
*
1. Freshwater-reared salmonids: for control of ulcer disease
caused by Haemophilus piscium, furunculosis caused by
Aeromonas salmonicida, bacterial hemorrhagic septicemia
caused by A. hydrophila, and pseudomonas disease.
2. Catfish: for control of bacterial hemorrhagic septicemia
caused by A. hydrophila and pseudomonas disease.
*
*
*
Indications for use
*
*
Limitations
*
*
*
*
*
*
Freshwater-reared salmonids: for the control of morFeed as a sole ration for 10 consecutive days to deliver 10 to 15 mg florfenicol
tality due to coldwater disease associated with
per kg of fish. Feed containing florfenicol shall not be fed for more than 10
Flavobacterium psychrophilum and furunculosis asdays. Following administration, fish should be reevaluated by a licensed veterisociated with Aeromonas salmonicida.
narian before initiating a further course of therapy. The effects of florfenicol on
reproductive performance have not been determined. Feeds containing
florfenicol must be withdrawn 15 days prior to slaughter.
*
*
(iv) 333 to 7,500 g/ton to
provide 2.5 to 3.75 g/
100 lb of fish/day.
85429
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*
066104
066104
066104
066104
066104
066104
*
State abroad, who are not diplomatic or
consular officers, to perform notarial
services at U.S. diplomatic and consular
offices abroad. This change will replace
the authorization for the Deputy
Assistant Secretary for Overseas
Citizens Services as the sole Department
official able to designate U.S. citizen
employees of the Department abroad as
notarizing officers.
The Department is making this change
to improve efficiencies in the process of
designating Department employees as
notarizing officers at U.S. embassies and
consulates abroad. Demand for notarial
services at 230 diplomatic and consular
posts abroad varies from year to year but
the trend line for requests for notarial
services is ever increasing. The
authority to designate U.S. citizen
Department employees as notarizing
officers has been a key resource for
addressing increasing demand at posts
abroad. The changes to this regulation
authorizing an increase in the number of
persons able to make such designations
will place the Department on a more
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nimble, efficient footing able to better
manage capacity demands.
Regulatory Findings
Administrative Procedure Act
This rule is a rule of agency
organization, procedure, or practice, and
thus is exempt from the ‘‘notice and
comment’’ requirements of the
Administrative Procedure Act. 5 U.S.C.
553(b). Pursuant to 5 U.S.C. 553(d), this
rule will be effective 30 days after
publication.
Regulatory Flexibility Act
The Department of State, in
accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by
approving it, certifies that this rule will
not have a significant economic impact
on a substantial number of small
entities.
Unfunded Mandates Act of 1995
This rule will not result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any year and it will not significantly
or uniquely affect small governments.
Therefore, no actions were deemed
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995.
lotter on DSK11XQN23PROD with RULES1
Congressional Review Act
This rule is not a major rule as
defined by 5 U.S.C. 804. This rule will
not result in an annual effect on the
economy of $100 million or more; a
major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreign
based companies in domestic and
import markets.
Executive Order 12866, 14094, and
13563
The Office of Information and
Regulatory Affairs has designated this
rulemaking as not significant under
Executive Order 12866, section 3(f),
Regulatory Planning and Review. The
Department has reviewed the regulation
to ensure its consistency with the
regulatory philosophy and principles set
forth in Executive Order 12866, as
amended by Executive Order 14094.
The Department of State has
considered this rule in light of
Executive Order 13563, dated January
18, 2011, and affirms that this regulation
is consistent with the guidance therein.
Global notarial service volume in recent
years was as follows:
VerDate Sep<11>2014
15:57 Oct 25, 2024
Jkt 265001
2024–212,142 (as of August 2024)
2023–233,923
2022–263,036
The number of Designations of
Notarizing Officers approved by the
Deputy Assistant Secretary for Overseas
Citizens Services in recent years are:
2024–130 (as of September 2024)
2023–114
2022–90
This rule will authorize more
individuals than the Deputy Assistant
Secretary to make designations of
Notarizing Officers. The Department
believes this will benefit both the public
and the Department, and any cost
associated with this change is
outweighed by the efficiency this
should add to the notary process.
Executive Orders 12372 and 13132
This regulation will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to require consultations or
warrant the preparation of a federalism
summary impact statement. The
regulations implementing Executive
Order 12372 regarding
intergovernmental consultation on
Federal programs and activities do not
apply to this regulation.
Paperwork Reduction Act
This rule does not impose any new
reporting or record-keeping
requirements subject to the Paperwork
Reduction Act, 44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 92
Notarial and related services.
For the reasons set out in the
preamble, 22 CFR part 92 is amended as
follows:
PART 92—NOTARIAL AND RELATED
SERVICES
(d) For purposes of this part, except
§§ 92.36 through 92.42 relating to the
authentication of documents, the term
‘‘notarizing officer’’ includes consular
officers, officers of the Foreign Service
who are secretaries of embassy or
legation under section 24 of the Act of
August 18, 1856, 11 Stat. 61, as
amended (22 U.S.C. 4221), and such
U.S. citizen Department of State
employees as the Director or Deputy
Directors, and regional Division Chiefs,
Office of American Citizens Services
and Crisis Management, Overseas
Citizens Services, Bureau of Consular
Affairs, U.S. Department of State may
designate for the purpose of performing
notarial acts overseas pursuant to
Section 127(b) of the Foreign Relations
Authorization Act, Fiscal Years 1994–
1995, Public Law 103–236, April 30,
1994 (‘‘designated employees’’). The
authority of designated employees to
perform notarial services shall not
include the authority to perform
authentications, to notarize patent
applications, or take testimony in a
criminal action or proceeding pursuant
to a commission issued by a court in the
United States, but shall otherwise
encompass all notarial acts, including
but not limited to administering or
taking oaths, affirmations, affidavits or
depositions. The notarial authority of a
designated employee shall expire upon
termination of the employee’s
assignment to such duty and may also
be terminated at any time by the
Director or Deputy Directors, or regional
Division Chiefs of the Office of
American Citizen Services and Crisis
Management, Overseas Citizens
Services, Bureau of Consular Affairs,
U.S. Department of State.
Angela M. Kerwin,
Deputy Assistant Secretary, Bureau of
Consular Affairs/Office of Overseas Citizen
Services, Department of State.
[FR Doc. 2024–24890 Filed 10–25–24; 8:45 am]
BILLING CODE 4710–25–P
1. The authority citation for part 92 is
revised to read as follows:
■
Authority: 22 U.S.C. 2651a, 2656, 4215
and 4221.
§ 92.1
[AMENDED]
2. Amend § 92.1 by revising paragraph
(d) and removing the undesignated
paragraph following paragraph (d) to
read as follows:
■
§ 92.1
*
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*
*
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II. Summary of Errors in the Regulation
Text
DEPARTMENT OF THE TREASURY
31 CFR Part 33
On page 26424, in the amendatory
instruction for § 156.111, we
inadvertently noted changes to
paragraph (b)(2) and not specifically
paragraphs (b)(2)(i) and (ii). Therefore,
paragraphs (b)(2)(iii) through (v) were
inadvertently deleted.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
42 CFR Parts 435 and 600
III. Waiver of Proposed Rulemaking
and Delay in Effective Date
Office of the Secretary
We ordinarily publish a notice of
proposed rulemaking in the Federal
Register to provide a period for public
comment before the provisions of a rule
take effect in accordance with section
553(b) of the Administrative Procedure
Act (APA) (5 U.S.C. 553(b)). However,
we can waive this notice and comment
procedure if the Secretary finds, for
good cause, that the notice and
comment process is impracticable,
unnecessary, or contrary to the public
interest, and incorporates a statement of
the finding and the reasons therefore in
the notice.
Section 553(d) of the APA ordinarily
requires a 30-day delay in effective date
of final rules after the date of their
publication in the Federal Register.
This 30-day delay in effective date can
be waived, however, if an agency finds
for good cause that the delay is
impracticable, unnecessary, or contrary
to the public interest, and the agency
incorporates a statement of the findings
and its reasons in the rule issued.
Our policy on streamlining the
process for States to update their
Essential Health Benefits (EHB)
benchmark plans in the 2025 Payment
Notice has previously been subjected to
notice and comment procedures. This
correcting amendment is consistent
with the discussion of this policy in the
2025 Payment Notice and does not make
substantive changes to this policy.
Instead this correcting amendment
merely corrects technical errors,
specifically an unintended deletion, in
the regulations text caused by an error
in the amendatory instructions of the
2025 Payment Notice. As a result, this
correcting amendment is intended to
ensure that the 2025 Payment Notice
accurately reflects the policy adopted in
the final rule, which did not otherwise
indicate any intention to delete the
regulations text that was unintentionally
deleted. Therefore, we find that
undertaking further notice and comment
procedures to incorporate these
corrections into the final rule is
unnecessary and contrary to the public
interest.
For the same reasons, we are also
waiving the 30-day delay in effective
45 CFR Parts 153, 155, and 156
[CMS–9895–F2]
RIN–0938–AV22
Patient Protection and Affordable Care
Act, HHS Notice of Benefit and
Payment Parameters for 2025;
Updating Section 1332 Waiver Public
Notice Procedures; Medicaid;
Consumer Operated and Oriented Plan
(CO–OP) Program; and Basic Health
Program; Correcting Amendment
Centers for Medicare &
Medicaid Services (CMS), HHS.
ACTION: Correcting amendment.
AGENCY:
This document corrects
technical and typographical errors in
the final rule that appeared in the April
15, 2024 issue of the Federal Register
entitled, ‘‘Patient Protection and
Affordable Care Act, HHS Notice of
Benefit and Payment Parameters for
2025; Updating Section 1332 Waiver
Public Notice Procedures; Medicaid;
Consumer Operated and Oriented Plan
(CO–OP) Program; and Basic Health
Program.’’ The effective date of the final
rule was June 4, 2024.
DATES: Effective October 28, 2024 and
applicable beginning June 4, 2024.
FOR FURTHER INFORMATION CONTACT:
Dolma Tsering, (301) 448–3925.
SUPPLEMENTARY INFORMATION:
lotter on DSK11XQN23PROD with RULES1
SUMMARY:
I. Background
In FR Doc. 2024–07274 of April 15,
2024 (89 FR 26218), the final rule
entitled ‘‘Patient Protection and
Affordable Care Act, HHS Notice of
Benefit and Payment Parameters for
2025; Updating Section 1332 Waiver
Public Notice Procedures; Medicaid;
Consumer Operated and Oriented Plan
(CO–OP) Program; and Basic Health
Program’’ (hereinafter referred to as the
2025 Payment Notice), there were
technical errors that are identified and
corrected in the regulations text of this
correcting amendment. The provisions
of this correcting amendment are
effective October 28, 2024 and are
applicable beginning June 4, 2024.
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85431
date for this correcting amendment. We
believe that it is in the public interest
to ensure that the regulations text
accurately reflects the policy set forth in
the 2025 Payment Notice streamlining
the process for States to update their
EHB-benchmark plans. Thus, delaying
the effective date of this correcting
amendment would be contrary to the
public interest. Therefore, we also find
good cause to waive the 30-day delay in
effective date.
List of Subjects in 45 CFR Part 156
Administrative practice and
procedure, Advertising, Advisory
committees, Brokers, Conflict of
interests, Consumer protection, Grant
programs—health, Grants
administration, Health care, Health
insurance, Health maintenance
organization (HMO), Health records,
Hospitals, Indians, Individuals with
disabilities, Loan programs—health,
Medicaid, Organization and functions
(Government agencies), Public
assistance programs, Reporting and
recordkeeping requirements, State and
local governments, Sunshine Act,
Technical assistance, Women, Youth.
For the reasons set forth in the
preamble, HHS corrects 45 CFR part 156
by making the following correcting
amendments:
PART 156—HEALTH INSURANCE
ISSUER STANDARDS UNDER THE
AFFORDABLE CARE ACT, INCLUDING
STANDARDS RELATED TO
EXCHANGES
1. The authority citation for part 156
continues to read as follows:
■
Authority: 42 U.S.C. 18021–18024, 18031–
18032, 18041–18042, 18044, 18054, 18061,
18063, 18071, 18082, and 26 U.S.C. 36B.
2. Section 156.111 is amended by
adding paragraphs (b)(2)(iii) through (v)
to read as follows:
■
§ 156.111 State selection of EHBbenchmark plan for plan years beginning
on or after January 1, 2020.
*
*
*
*
*
(b) * * *
(2) * * *
(iii) Not have benefits unduly
weighted towards any of the categories
of benefits at § 156.110(a);
(iv) Provide benefits for diverse
segments of the population, including
women, children, persons with
disabilities, and other groups; and
(v) Not include discriminatory benefit
designs that contravene the non-
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discrimination standards defined in
§ 156.125.
*
*
*
*
*
Elizabeth J. Gramling,
Executive Secretary to the Department,
Department of Health and Human Services.
[FR Doc. 2024–24910 Filed 10–25–24; 8:45 am]
BILLING CODE 4120–01–M
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2024–0391]
RIN 1625–AA00
Safety Zone; Choctawhatchee Bay, FL
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone for
certain navigable waters of the
Choctawhatchee Bay where unexploded
ordnances were discovered and a
moving safety zone around vessels
relocating any unexploded ordnance
from Choctawhatchee Bay to the
disposal location. The safety zones are
needed to protect mariners from the
hazards associated with unexploded
ordnance clearance operations. Entry of
vessels or persons into this zone is
prohibited unless specifically
authorized by the Captain of the Port
Sector Mobile (COTP), or a designated
representative.
SUMMARY:
This rule is effective without
actual notice from October 28, 2024
through 11:59 p.m. on December 31,
2024. For the purposes of enforcement,
actual notice will be used from 1 p.m.
on October 22, 2024, until October 28,
2024.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2024–
0391 in the search box and click
‘‘Search.’’ Next, in the Document Type
column, select ‘‘Supporting & Related
Material.’’
DATES:
If
you have questions about this rule, call
or email MSTC Stacy Stevenson,
Waterways Management Division, U.S.
Coast Guard; telephone 251–382–8653,
email [email protected].
SUPPLEMENTARY INFORMATION:
lotter on DSK11XQN23PROD with RULES1
FOR FURTHER INFORMATION CONTACT:
I. Table of Abbreviations
CFR
Code of Federal Regulations
VerDate Sep<11>2014
15:57 Oct 25, 2024
Jkt 265001
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
II. Background Information and
Regulatory History
The Coast Guard is issuing this
temporary final rule under authority in
5 U.S.C. 553(b)(B). This statutory
provision authorizes an agency to issue
a rule without prior notice and
opportunity to comment when the
agency for good cause finds that those
procedures are ‘‘impracticable,
unnecessary, or contrary to the public
interest.’’ The Coast Guard finds that
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule because it is
impracticable and contrary to public
interest. It is impracticable to publish an
NPRM because we must establish this
safety zone by October 22, 2024, and
lack sufficient time to provide a
reasonable comment period and then
consider those comments before issuing
the rule. Publishing an NPRM is
contrary to public interest because
immediate action is needed to protect
people and property on the waterway
from potential hazards associated with
unexploded ordnance operations.
Also, under 5 U.S.C. 553(d)(3), the
Coast Guard finds that good cause exists
for making this rule effective less than
30 days after publication in the Federal
Register. Delaying the effective date of
this rule is contrary to public interest
because it would delay the safety
measures necessary to respond to
potential safety hazards associated with
the unexploded ordnance operations.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule
under authority in 46 U.S.C. 70034. The
Captain of the Port Sector Mobile
(COTP) has determined that the safety
zones are necessary for the protection of
persons and vessels from potential
hazards associated with the unexploded
ordnance operations.
IV. Discussion of the Rule
The Coast Guard is establishing a
temporary safety zone on certain
navigable waters of the Choctawhatchee
Bay within a 5,000 foot radius of
approximate position 30°25′38.1″ N,
86°33′32.5″ W, and a moving safety zone
within a 600 yard radius from any
vessel involved with relocating the
unexploded ordnance upon leaving the
area where the ordnance was discovered
until it is safely positioned in the
disposal location. The safety zones will
be enforced from 1 p.m. on October 22,
PO 00000
Frm 00010
Fmt 4700
Sfmt 4700
2024, until 11:59 p.m. on December 31,
2024. The duration of the zone is
intended to protect personnel, vessels,
and ensure maritime safety and security
in these navigable waters during
unexploded ordnance clearing
operations. No vessel or person will be
permitted to enter the safety zones
without obtaining permission from the
COTP or a designated representative.
V. Regulatory Analyses
We developed this rule after
considering numerous statutes and
Executive orders related to rulemaking.
Below we summarize our analyses
based on a number of these statutes and
Executive orders, and we discuss First
Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits.
This rule has not been designated a
‘‘significant regulatory action,’’ under
section 3(f) of Executive Order 12866, as
amended by Executive Order 14094
(Modernizing Regulatory Review).
Accordingly, this rule has not been
reviewed by the Office of Management
and Budget (OMB).
This regulatory action determination
is based on the size, location, duration,
and time-of-day of the safety zone. This
stationary safety zone will be enforced
for approximately 11 weeks or less and
prohibit vessel movement on a portion
of the Choctawhatchee Bay and a
moving safety zone around relocating
unexploded ordnances to the disposal
location. Moreover, the Coast Guard will
issue on scene actual notice via VHF–
FM marine channel 16 about the zone,
and the rule allows vessels to seek
permission to enter the zone.
B. Impact on Small Entities
The Regulatory Flexibility Act of
1980, 5 U.S.C. 601–612, as amended,
requires Federal agencies to consider
the potential impact of regulations on
small entities during rulemaking. The
term ‘‘small entities’’ comprises small
businesses, not-for-profit organizations
that are independently owned and
operated and are not dominant in their
fields, and governmental jurisdictions
with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C.
605(b) that this rule will not have a
significant economic impact on a
substantial number of small entities.
While some owners or operators of
vessels intending to transit the safety
zone may be small entities, for the
E:\FR\FM\28OCR1.SGM
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
reasons stated in section V.A above, this
rule will not have a significant
economic impact on any vessel owner
or operator.
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
we want to assist small entities in
understanding this rule. If the rule
affects your small business,
organization, or governmental
jurisdiction and you have questions
concerning its provisions or options for
compliance, please call or email the
person listed in the FOR FURTHER
INFORMATION CONTACT section.
Small businesses may send comments
on the actions of Federal employees
who enforce, or otherwise determine
compliance with, Federal regulations to
the Small Business and Agriculture
Regulatory Enforcement Ombudsman
and the Regional Small Business
Regulatory Fairness Boards. The
Ombudsman evaluates these actions
annually and rates each agency’s
responsiveness to small business. If you
wish to comment on actions by
employees of the Coast Guard, call 1–
888–REG–FAIR (1–888–734–3247). The
Coast Guard will not retaliate against
small entities that question or complain
about this rule or any policy or action
of the Coast Guard.
C. Collection of Information
This rule will not call for a new
collection of information under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3520).
lotter on DSK11XQN23PROD with RULES1
D. Federalism and Indian Tribal
Governments
A rule has implications for federalism
under Executive Order 13132,
Federalism, if it has a substantial direct
effect on the States, on the relationship
between the National Government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. We have
analyzed this rule under that Order and
have determined that it is consistent
with the fundamental federalism
principles and preemption requirements
described in Executive Order 13132.
Also, this rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
VerDate Sep<11>2014
15:57 Oct 25, 2024
Jkt 265001
E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any one year. Though this rule
will not result in such an expenditure,
we do discuss the effects of this rule
elsewhere in this preamble.
F. Environment
We have analyzed this rule under
Department of Homeland Security
Directive 023–01, Rev. 1, associated
implementing instructions, and
Environmental Planning COMDTINST
5090.1 (series), which guide the Coast
Guard in complying with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321–4370f), and have
determined that this action is one of a
category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves a safety
zone lasting eleven weeks or less that
will prohibit entry on a portion of the
Choctawhatchee Bay and a moving
safety zone around a vessel involved in
relocating any unexploded ordnance to
the disposal location. It is categorically
excluded from further review under
paragraph L60(d) of Appendix A, Table
1 of DHS Instruction Manual 023–01–
001–01, Rev. 1. A Record of
Environmental Consideration
supporting this determination is
available in the docket. For instructions
on locating the docket, see the
ADDRESSES section of this preamble.
G. Protest Activities
The Coast Guard respects the First
Amendment rights of protesters.
Protesters are asked to call or email the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
coordinate protest activities so that your
message can be received without
jeopardizing the safety or security of
people, places, or vessels.
List of Subjects in 33 CFR Part 165
Marine safety, Navigation (water),
Reporting, recordkeeping requirements,
and Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR 165 as follows:
PO 00000
Frm 00011
Fmt 4700
Sfmt 9990
85433
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
Authority: 46 U.S.C. 70034, 70051, 70124;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 00170.1, Revision No. 01.3.
2. Add § 165.T08–0391 to read as
follows:
■
§ 165.T08–0391 Safety Zone;
Choctawhatchee Bay, FL.
(a) Location. The following area is a
safety zone: All navigable waters of the
Choctawhatchee Bay within a 5,000 foot
radius of approximate position
30°25′38.1″ N, 86°33′32.5″ W, and a
moving safety zone 600 yards around
any vessel involved with relocating the
unexploded ordnance upon leaving the
area where the ordnance was discovered
until it is safely positioned in the
disposal location.
(b) Definitions. As used in this
section, designated representative
means a Coast Guard Patrol
Commander, including a Coast Guard
coxswain, petty officer, or other officer
operating a Coast Guard vessel and a
Federal, State, and local officer
designated by or assisting the Sector
Mobile Captain of the Port (COTP) in
the enforcement of the safety zone.
(c) Regulations. (1) Under the general
safety zone regulations in subpart C of
this part, you may not enter the safety
zones described in paragraph (a) of this
section unless authorized by the COTP
or the COTP’s designated representative.
No person may anchor, dredge, or trawl
in the safety zones unless authorized by
the COTP or the COTP’s designated
representative.
(2) To seek permission to enter,
contact the COTP or the COTP’s
designated representative on VHF–CH
16. Those in the safety zones must
comply with all lawful orders or
directions given to them by the COTP or
the COTP’s designated representative.
(d) Enforcement period. This section
will be subject to enforcement from 1
p.m. on October 22, 2024, through 11:59
p.m. on December 31, 2024. The
enforcement period will be announced
via on-scene actual notice via VHF–FM
marine channel 16.
Dated: October 21, 2024.
M.O. Vega,
Captain, U.S. Coast Guard, Captain of the
Port Sector Mobile.
[FR Doc. 2024–24932 Filed 10–25–24; 8:45 am]
BILLING CODE 9110–04–P
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2024–0895]
RIN 1625–AA00
Safety Zone; Upper Galveston Bay,
Kemah, TX
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone for
navigable waters within an 840-foot
radius of the firework display barge in
the Galveston Bay on the south side of
the channel, near Kemah Boardwalk in
Kemah, TX. The safety zone is needed
to protect personnel, vessels, and the
marine environment from potential
hazards created by a fireworks display.
Entry of vessels or persons into this
zone is prohibited unless specifically
authorized by the Captain of the Port,
Sector Houston-Galveston.
DATES: This rule is effective from 8 p.m.
until 10 p.m. on November 9, 2024.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2024–
0895 in the search box and click
‘‘Search.’’ Next, in the Document Type
column, select ‘‘Supporting & Related
Material.’’
SUMMARY:
If
you have questions about this rule, call
or email Lieutenant Rudy Ortega, Sector
Houston-Galveston Waterways
Management Division, U.S. Coast
Guard; telephone (713) 398–5823, email
[email protected].
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
lotter on DSK11XQN23PROD with RULES1
II. Background Information and
Regulatory History
The Coast Guard is issuing this
temporary rule under the authority in 5
U.S.C. 553(b)(B). This statutory
provision authorizes an agency to issue
a rule without prior notice and
opportunity to comment when the
agency for good cause finds that those
procedures are ‘‘impracticable,
unnecessary, or contrary to the public
interest.’’ The Coast Guard finds that
VerDate Sep<11>2014
15:57 Oct 25, 2024
Jkt 265001
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule because it is
impracticable due to notice period prior
to the event. The Coast Guard must
establish this safety zone by November
9, 2024 and prompt action is required to
respond to the potential safety hazards
associated with a fireworks display.
Also, under 5 U.S.C. 553(d)(3), the
Coast Guard finds that good cause exists
for making this rule effective less than
30 days after publication in the Federal
Register. Delaying the effective date of
this rule would be impracticable
because prompt action is needed to
respond to the potential safety hazards
of the event.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule
under authority in 46 U.S.C. 70034. The
Captain of the Port Houston-Galveston
(COTP) has determined that potential
hazards associated with the fireworks
show on November 9, 2024, in Kemah,
TX, will be a safety concern for anyone
within an 840-foot radius of a fireworks
display barge, located in Galveston Bay,
TX at 29°32′52.72″ N, 95°00′54.38″ W,
on the south side of the channel. The
purpose of this rulemaking is to protect
personnel, vessels, and the marine
environment in the navigable waters
within the safety zone before, during,
and after the scheduled fireworks
display.
IV. Discussion of the Rule
This rule establishes a safety zone
from 8 p.m. until 10 p.m. on November
9, 2024. The safety zone will cover all
navigable waters within an 840-foot
radius of a fireworks display barge,
located in Galveston Bay, TX, at
29°32′52.72″ N, 95°00′54.38″ W, on the
south side of the channel. The duration
of the zone is intended to protect
personnel, vessels, and the marine
environment in these navigable waters
before, during, and after the fireworks
display. No vessel or person is
permitted to enter the safety zone
without obtaining permission from the
COTP or a designated representative.
Persons or vessels seeking to enter the
safety zone must request permission
from the COTP on VHF–FM channel 16
or by telephone at 866–539–8114. If
permission is granted, all persons and
vessels shall comply with the
instructions of the COTP or designated
representative. The COTP or a
designated representative will inform
the public of the enforcement times and
date for this safety zone through
Broadcast Notices to Mariners, Local
Notices to Mariners, or Safety Marine
Information Broadcasts as appropriate.
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
V. Regulatory Analyses
We developed this rule after
considering numerous statutes and
Executive orders related to rulemaking.
Below we summarize our analyses
based on a number of these statutes and
Executive orders, and we discuss First
Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits.
This rule has not been designated a
‘‘significant regulatory action,’’ under
section 3(f) of Executive Order 12866, as
amended by Executive Order 14094
(Modernizing Regulatory Review).
Accordingly, this rule has not been
reviewed by the Office of Management
and Budget (OMB).
This regulatory action determination
is based on the size, duration, and
location of the safety zone. The safety
zone will last for the limited duration of
two hours. It covers an 840-foot radius
of navigable waters of Galveston Bay,
TX. The zone does not completely
restrict vessel traffic and allows
mariners to ask for permission to enter
the zone.
B. Impact on Small Entities
The Regulatory Flexibility Act of
1980, 5 U.S.C. 601–612, as amended,
requires Federal agencies to consider
the potential impact of regulations on
small entities during rulemaking. The
term ‘‘small entities’’ comprises small
businesses, not-for-profit organizations
that are independently owned and
operated and are not dominant in their
fields, and governmental jurisdictions
with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C.
605(b) that this rule will not have a
significant economic impact on a
substantial number of small entities.
While some owners or operators of
vessels intending to transit the safety
zone may be small entities, for the
reasons stated in section V.A above, this
rule will not have a significant
economic impact on any vessel owner
or operator.
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
we want to assist small entities in
understanding this rule. If the rule
would affect your small business,
organization, or governmental
jurisdiction and you have questions
concerning its provisions or options for
compliance, please call or email the
E:\FR\FM\28OCR1.SGM
28OCR1
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
person listed in the FOR FURTHER
INFORMATION CONTACT section.
Small businesses may send comments
on the actions of Federal employees
who enforce, or otherwise determine
compliance with, Federal regulations to
the Small Business and Agriculture
Regulatory Enforcement Ombudsman
and the Regional Small Business
Regulatory Fairness Boards. The
Ombudsman evaluates these actions
annually and rates each agency’s
responsiveness to small business. If you
wish to comment on actions by
employees of the Coast Guard, call 1–
888–REG–FAIR (1–888–734–3247). The
Coast Guard will not retaliate against
small entities that question or complain
about this rule or any policy or action
of the Coast Guard.
C. Collection of Information
This rule will not call for a new
collection of information under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3520).
lotter on DSK11XQN23PROD with RULES1
D. Federalism and Indian Tribal
Governments
F. Environment
We have analyzed this rule under
Department of Homeland Security
Directive 023–01, Rev. 1, associated
implementing instructions, and
Environmental Planning COMDTINST
5090.1 (series), which guide the Coast
Guard in complying with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321–4370f), and have
determined that this action is one of a
category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves a
temporary safety zone lasting only two
hours that will prohibit entry within
840 feet of the fireworks display barge.
It is categorically excluded from further
review under paragraph L60(a) of
Appendix A, Table 1 of DHS Instruction
Manual 023–01–001–01, Rev. 1. A
Record of Environmental Consideration
supporting this determination is
available in the docket. For instructions
on locating the docket, see the
ADDRESSES section of this preamble.
G. Protest Activities
A rule has implications for federalism
under Executive Order 13132,
Federalism, if it has a substantial direct
effect on the States, on the relationship
between the National Government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. We have
analyzed this rule under that Order and
have determined that it is consistent
with the fundamental federalism
principles and preemption requirements
described in Executive Order 13132.
Also, this rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
The Coast Guard respects the First
Amendment rights of protesters.
Protesters are asked to call or email the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
coordinate protest activities so that your
message can be received without
jeopardizing the safety or security of
people, places, or vessels.
E. Unfunded Mandates Reform Act
Authority: 46 U.S.C. 70034, 70051, 70124;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 00170.1, Revision No. 01.3.
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any one year. Though this rule
will not result in such an expenditure,
we do discuss the effects of this rule
elsewhere in this preamble.
VerDate Sep<11>2014
15:57 Oct 25, 2024
Jkt 265001
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
2. Add § 165.T08–0895 to read as
follows:
■
§ 165.T08–0895 Safety Zone; Galveston
Bay, Galveston, TX.
(a) Location. The following area is a
safety zone: All navigable waters within
an 840-foot radius of a fireworks display
barge, located in Galveston Bay, TX at
29°32′52.72″ N, 95°00′54.38″ W, on the
south side of the channel.
PO 00000
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85435
(b) Definition. The term ‘‘designated
representative’’ means Coast Guard
Patrol Commanders, including Coast
Guard coxswains, petty officers, and
other officers operating Coast Guard
vessels, and Federal, state, and local
officers designated by or assisting the
Captain of the Port Houston-Galveston
(COTP) in the enforcement of the
regulated areas.
(c) Regulations. (1) Under the general
safety zone regulations in subpart C of
this part, no person will be permitted to
enter, transit, anchor, or remain within
the safety zone described in paragraph
(a) of this section unless authorized by
the COTP or a designated
representative. If authorization is
granted, persons and vessels receiving
such authorization must comply with
the lawful instructions of the COTP or
designated representative.
(2) Persons or vessels seeking to enter
the safety zone must request permission
from the COTP on VHF–FM channel 16
or by telephone at 866–539–8114.
(d) Enforcement period. This section
will be enforced from 8 p.m. until 10
p.m. on November 9, 2024.
Dated: October 22, 2024.
Keith M. Donohue,
Captain, U.S. Coast Guard, Captain of the
Port Sector Houston-Galveston.
[FR Doc. 2024–24987 Filed 10–25–24; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF COMMERCE
Patent and Trademark Office
37 CFR Parts 2 and 7
[Docket No. PTO–T–2024–0043]
Changes in Post-Registration Audit
Selection for Affidavits or Declarations
of Use, Continued Use, or Excusable
Nonuse in Trademark Cases
United States Patent and
Trademark Office, U.S. Department of
Commerce.
ACTION: Policy update.
AGENCY:
To promote the accuracy and
integrity of the trademark register, the
United States Patent and Trademark
Office (USPTO or Office) is amending
its practice concerning the selection of
registrations for audit during the postregistration maintenance process. When
the USPTO implemented its audit
program in 2017, it announced that it
would conduct random audits of certain
affidavits or declarations filed each year.
To promote the accuracy and integrity
of the trademark register, the USPTO is
adding additional directed audits to its
practice.
SUMMARY:
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DATES:
As explained in the final rule, the
post-registration audit program benefits
the public because it facilitates the
USPTO’s ability to assess and promote
the integrity of the trademark register by
encouraging accuracy in the
identification of goods or services for
which use in commerce or continued
use is claimed. The accuracy of the
trademark register serves an important
purpose for the public, as it is a
reflection of marks that are actually in
use in commerce in the United States
for the goods/services identified in the
registrations listed in the register. The
public relies on the register to determine
whether a chosen mark is available for
use or registration. If a party’s search of
the register discloses a potentially
confusingly similar mark, that party
may incur a variety of resulting costs
and burdens, such as those associated
with investigating the actual use of the
disclosed mark to assess any conflict,
proceedings to cancel the registration or
oppose the application of the disclosed
mark, civil litigation to resolve a dispute
over the mark, or changing plans to
avoid use of the party’s chosen mark. If
a registered mark is not in use in
commerce in the United States, or is not
in use in commerce in connection with
all the goods or services identified in
the registration, these costs and burdens
may be incurred unnecessarily. An
accurate and reliable trademark register
helps parties avoid such needless costs
and burdens.
The statutory requirements in sections
8 and 71 exist to enable the USPTO to
clear the register by canceling, in whole
or in part, registrations for marks that
are not in use in commerce for all or
some of the goods or services identified
in the registration. The final rule
furthered this statutory purpose by
allowing the USPTO to assess whether
marks are actually in use for some or all
of the goods or services covered by a
registration, and to require deletion and/
or cancellation of those goods or
services for which a mark is not in use
(and for which excusable nonuse does
not apply).
To that end, the final rule provided
the USPTO with the authority to require
the submission of information, exhibits,
affidavits or declarations, and such
additional specimens of use as may be
reasonably necessary for the USPTO to
ensure that the register accurately
reflects marks that are in use in
commerce in the United States for all
the goods or services identified in the
registrations, unless excusable nonuse is
claimed in whole or in part. This
authority was not limited to random
audits. However, because the USPTO
previously announced that selection for
Effective date: This policy change is
effective October 28, 2024.
Comments due: Written comments
must be received on or before November
27, 2024 to ensure consideration.
ADDRESSES: Written comments must be
submitted through the Federal
eRulemaking Portal at
www.regulations.gov. To submit
comments via the portal, commenters
should go to www.regulations.gov/
docket/PTO-T-2024-0043 or enter
docket number PTO–T–2024–0043 on
the www.regulations.gov homepage and
select the ‘‘Search’’ button. The site will
provide search results listing all
documents associated with this docket.
Commenters can find a reference to this
document and select the ‘‘Comment’’
button, complete the required fields,
and enter or attach their comments.
Attachments to electronic comments
will be accepted in Adobe portable
document format (PDF) or Microsoft
Word format. Because comments will be
made available for public inspection,
information that the submitter does not
desire to make public, such as an
address or phone number, should not be
included in the comments.
Visit the Federal eRulemaking Portal
for additional instructions on providing
comments via the portal. If electronic
submission of comments is not possible,
please contact the USPTO using the
contact information below in the FOR
FURTHER INFORMATION CONTACT section of
this document for special instructions.
FOR FURTHER INFORMATION CONTACT:
Montia Pressey, Office of the Deputy
Commissioner for Trademark
Examination Policy, at 571–272–8944 or
[email protected].
SUPPLEMENTARY INFORMATION: On
January 19, 2017, the USPTO published
in the Federal Register a final rule
making permanent the program under
which it conducts audits of the
affidavits or declarations of continued
use or excusable nonuse filed pursuant
to section 8 of the Trademark Act (the
Act) (15 U.S.C. 1058), and affidavits or
declarations of use in commerce or
excusable nonuse filed pursuant to
section 71 of the Act (15 U.S.C. 1141k)
(collectively, affidavits or declarations).
See Changes in Requirements for
Affidavits or Declarations of Use,
Continued Use, or Excusable Nonuse in
Trademark Cases (82 FR 6259). The final
rule provided the USPTO with the
authority to request additional
information in connection with the
submission of an affidavit or declaration
under sections 8 or 71 to assess and
promote the accuracy and integrity of
the trademark register.
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the audits would be done on a random
basis, the agency now provides notice
that it amends its practice under 37 CFR
2.161(b) and 7.37(b) to include directed
audits.
Since the final rule was adopted in
2017, the USPTO has become aware of
circumstances in which the accuracy
and integrity of the trademark register
would benefit from directed audits in
addition to the current practice of
random audits. Specifically, the USPTO
discovered systemic efforts to subvert
the requirements for use in commerce of
a mark to support registration.
First, the USPTO became aware of an
ongoing issue of applicants submitting
specimens that were digitally created or
altered or were mockups and thus did
not show actual use in commerce, as is
required. That awareness led to the
publication in July 2019 of Examination
Guide 3–19, Examination of Specimens
for Use in Commerce: Digitally Created/
Altered or Mockup Specimens, which
was later incorporated into the
Trademark Manual of Examining
Procedure.
Second, the enactment of the
Trademark Modernization Act in 2020,
and its implementation by the USPTO
in 2021, resulted in the creation of two
new post-registration proceedings that
allow the Office to examine whether a
registered mark is, or was at the time of
registration, in use in commerce for
goods or services covered by the
registration. See Changes To Implement
Provisions of the Trademark
Modernization Act of 2020, 86 FR 64300
(November 17, 2021). Certain disturbing
trends have been discovered since the
implementation of these proceedings,
such as the use of specimen farms.
These are websites that do not sell
products in the ordinary course of trade.
Instead, they provide applicants or
registrants with documents to submit to
the USPTO that appear to satisfy the
requirement to show use of the mark in
commerce on the goods recited in the
application or registration. No two
specimen farm websites are exactly
alike, but many have the following: (1)
incomplete contact information, blank
pages, or missing or incomplete product
descriptions; (2) place-holder text on
many pages; (3) the same, sometimes
incorrect, product information for
multiple product listings; and/or (4)
products that cannot be purchased in or
shipped to the United States. Additional
information about specimen farms has
been published on the USPTO website
at www.uspto.gov/trademarks/protect/
challenge-invalid-specimens.
The USPTO plans to conduct directed
audits of section 8 and 71 affidavits or
declarations when the registration file
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
and/or the post-registration
maintenance documents exhibit certain
attributes that call into question
whether a mark is in use in commerce
in the ordinary course of trade. Among
other things, these audits will focus on
registration files in which it appears that
a specimen accepted during
examination or submitted with a section
8 or 71 affidavit or declaration was
digitally altered, consistent with the
parameters set forth in Examination
Guide 3–19, or comprised printouts
from a website determined to be a
specimen farm. Under the directed audit
program, the initial office action may
request proof of use for all or some of
the goods or services covered by the
registration, in addition to other
information deemed relevant to the
USPTO to determine whether the mark
is in use in commerce in the ordinary
course of trade or whether the elements
of excusable nonuse apply. The
procedures will otherwise follow those
for random audits.
After considering any public
comments received in response to this
notice, the USPTO will publish
information about the program on its
Post Registration Audit Program web
page at www.uspto.gov/trademarks/
maintain/post-registration-auditprogram. The USPTO will likewise
publish future changes to the postregistration audit program on its
website.
These changes will better position the
audit program to address obvious issues
with registration, thus protecting the
integrity of the federal trademark
registration system and improving the
overall accuracy of the trademark
register.
Katherine K. Vidal,
Under Secretary of Commerce for Intellectual
Property and Director of the United States
Patent and Trademark Office.
In this final rule, the Librarian
of Congress adopts exemptions to the
provision of the Digital Millennium
Copyright Act (‘‘DMCA’’) that prohibits
circumvention of technological
measures that control access to
copyrighted works. As required under
the statute, the Register of Copyrights,
following a public proceeding,
submitted a recommendation to the
Librarian of Congress (‘‘Register’s
Recommendation’’) regarding proposed
exemptions. After careful consideration,
the Librarian adopts final regulations
based on the Register’s
Recommendation.
DATE: Effective October 28, 2024.
FOR FURTHER INFORMATION CONTACT:
Rhea Efthimiadis, Assistant to the
General Counsel, by email at meft@
copyright.gov or telephone at 202–707–
8350.
SUPPLEMENTARY INFORMATION: The
Librarian of Congress, pursuant to
section 1201(a)(1) of title 17, United
States Code, has determined in this
ninth triennial rulemaking proceeding
that the prohibition against
circumvention of technological
measures that effectively control access
to copyrighted works shall not apply for
the next three years to persons who
engage in certain noninfringing uses of
specified classes of such works. This
determination is based on the Register’s
Recommendation.
The discussion below summarizes the
rulemaking proceeding and the
Register’s recommendations, states the
Librarian’s determination, and adopts
the regulatory text specifying the
exempted classes of works. A more
complete discussion of the rulemaking
process, the evidentiary record, and the
Register’s analysis with respect to each
proposed exemption can be found in the
Register’s Recommendation at
www.copyright.gov/1201/2024/.
[FR Doc. 2024–24755 Filed 10–25–24; 8:45 am]
I. Background
BILLING CODE 3510–16–P
A. Statutory Requirements
In 1998, as part of the Digital
Millenium Copyright Act (‘‘DMCA’’),
Congress added section 1201 to title 17
to provide greater legal protection for
copyright owners in the emerging digital
environment. Section 1201 generally
makes it unlawful to ‘‘circumvent a
technological measure that effectively
controls access to’’ a copyrighted work.1
Congress established a set of
permanent exemptions to the
prohibition on circumvention, as well a
procedure to put in place limited
temporary exemptions. Every three
years, the Librarian of Congress, upon
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
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[Docket No. 2023–5]
Exemption to Prohibition on
Circumvention of Copyright Protection
Systems for Access Control
Technologies
U.S. Copyright Office, Library
of Congress.
ACTION: Final rule.
AGENCY:
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SUMMARY:
1 17
PO 00000
the recommendation of the Register of
Copyrights, is authorized to adopt
temporary exemptions, with respect to
certain classes of copyrighted works, to
remain in effect for the ensuing
three-year period. Congress established
this rulemaking as a ‘‘‘fail-safe’
mechanism’’ to ensure that the
prohibition on circumvention would not
adversely affect the public’s ability to
make lawful uses of copyrighted works,
including activities protected by the fair
use doctrine.2
The triennial rulemaking occurs
through a formal public process
administered by the Register, who
consults with the Assistant Secretary for
Communications and Information of the
Department of Commerce.3 Participants
must meet specific legal and evidentiary
requirements in order to qualify for a
temporary exemption. The Register’s
recommendations are based on her
conclusions as to whether each
proposed exemption meets those
statutory requirements.4 As prescribed
by the statute, she considers whether
the prohibition on circumvention is
having, or is likely to have, adverse
effects on users’ ability to make
noninfringing uses of a particular class
of copyrighted works. Petitioners must
provide evidence sufficient to allow the
Register to draw such a conclusion.
B. Rulemaking Standards
Congress has specified the legal and
evidentiary requirements for the section
1201 rulemaking proceeding; these
standards are discussed in greater detail
in the Register’s Recommendation 5 and
the Copyright Office’s 2017 policy study
on section 1201.6 The Register will
recommend granting an exemption only
‘‘when the preponderance of the
evidence in the record shows that the
conditions for granting an exemption
have been met.’’ 7 The evidence must
2 Id.
at 1201(a)(1)(B)–(D).
at 1201(a)(1)(C).
4 The Office has provided detailed analyses of the
statutory requirements in its 2017 policy study on
section 1201 and elsewhere. See U.S. Copyright
Office, Section 1201 of Title 17 at 105–127 (2017),
https://www.copyright.gov/policy/1201/section1201-full-report.pdf (‘‘Section 1201 Report’’).
5 Register of Copyrights, Section 1201
Rulemaking: Ninth Triennial Proceeding to
Determine Exemptions to the Prohibition on
Circumvention, Recommendation of the Register of
Copyrights (Oct. 2024), https://cdn.loc.gov/
copyright/1201/2024/2024_Section_1201_Registers_
Recommendation.pdf (‘‘Register’s
Recommendation’’).
6 Section 1201 Report at 111–12.
7 Id.; accord Register of Copyrights, Section 1201
Rulemaking: Seventh Triennial Proceeding to
Determine Exemptions to the Prohibition on
Circumvention, Recommendation of the Register of
Copyrights 12–13 (Oct. 2018). References to the
Register’s recommendations in prior rulemakings
3 Id.
U.S.C. 1201(a)(1)(A).
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
show ‘‘that it is more likely than not
that users of a copyrighted work will, in
the succeeding three-year period, be
adversely affected by the prohibition on
circumvention in their ability to make
noninfringing uses of a particular class
of copyrighted works.’’ 8 The Register
develops a comprehensive
administrative record to support her
recommendation.
Section 1201(a)(1) enumerates five
factors that guide the Register’s
Recommendation and the Librarian’s
determination regarding proposed
exemptions: (1) the availability for use
of copyrighted works; (2) the availability
for use of works for nonprofit archival,
preservation, and educational purposes;
(3) the impact that the prohibition on
the circumvention of technological
measures applied to copyrighted works
has on criticism, comment, news
reporting, teaching, scholarship, or
research; (4) the effect of circumvention
of technological measures on the market
for or value of copyrighted works; and
(5) such other factors as the Librarian
considers appropriate. The statute
mandates that any exemption to be
defined based on ‘‘a particular class of
works.’’ 9 Among other things, the
determination of the appropriate scope
of a ‘‘class of works’’ recommended for
exemption can take into account the
adverse effects an exemption may have
on the market for or value of
copyrighted works. Accordingly, ‘‘it can
be appropriate to refine a class by
reference to the use or user in order to
remedy the adverse effect of the
prohibition and to limit the adverse
consequences of an exemption.’’ 10
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II. History of the Ninth Triennial
Proceeding
The Copyright Office initiated the
ninth triennial rulemaking proceeding
by issuing a notice of inquiry (‘‘NOI’’)
on June 8, 2023.11 The NOI requested
petitions for renewal, comments in
response to petitions for renewal, and
petitions for new exemptions, including
proposals to expand current
exemptions.12 These public submissions
are cited by the year of publication followed by
‘‘Recommendation’’ (e.g., ‘‘2018
Recommendation’’). Prior Recommendations are
available on the Copyright Office website at https://
www.copyright.gov/1201/.
8 Section 1201 Report at 112.
9 17 U.S.C. 1201(a)(1)(B).
10 2006 Recommendation at 19.
11 Exemptions to Permit Circumvention of Access
Controls on Copyrighted Works, 88 FR 37486,
37487 (June 8, 2023).
12 Id. See Exemptions to Permit Circumvention of
Access Controls on Copyrighted Works, 82 FR
29804, 29806 (June 30, 2017) (petitions to expand
a current exemption are treated as petitions for new
exemptions) (‘‘Renewal may only be sought for
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15:57 Oct 25, 2024
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were due between July 7, 2023 and
August 25, 2023.13 The Office received
thirty-eight petitions for renewal of
existing exemptions and eleven
petitions for new and expanded
exemptions. It grouped the petitions for
new and expanded exemptions into
seven classes.
On October 19, 2023, the Office
issued a notice of proposed rulemaking
(‘‘NPRM’’) identifying the existing
exemptions that the Register intended to
recommend for renewal, and providing
a description of the proposed classes for
new and expanded exemptions.14
Public submissions were due between
December 22, 2023 and March 19, 2024.
The Office received approximately 50
submissions in response to the NPRM.15
After analyzing the written comments
regarding proposed new and expanded
exemptions, the Office held three days
of public hearings from April 16–18,
2024, via Zoom.16 Forty-one individuals
representing nineteen stakeholder
groups offered their views on specific
proposed exemptions, and an additional
four individuals took part in an
audience participation session. After the
hearings, the Office issued written
questions to participants regarding two
of the proposed classes and received
current exemptions as they are currently
formulated, without modification. This means that
if a proponent seeks to engage in any activities not
currently permitted by an existing exemption, a
petition for a new exemption must be submitted.’’).
13 88 FR 37486, 37486; Exemptions to Permit
Circumvention of Access Controls on Copyrighted
Works: Notice and Request for Public Comment, 88
FR 42891 (July 5, 2023). References to renewal
petitions and comments in response are by party
and class name (abbreviated where appropriate)
followed by ‘‘Renewal Pet.,’’ ‘‘Renewal Opp’n,’’ and
‘‘Renewal Supp.’’ References to petitions for new
exemptions and comments in response are by party
name and class number followed by ‘‘Pet.,’’
‘‘Initial,’’ ‘‘Opp’n,’’ or ‘‘Reply’’ for comments
submitted in the first, second, or third round, as
applicable.
14 Exemptions to Permit Circumvention of Access
Controls on Copyrighted Works, 88 FR 72013 (Oct.
19, 2023).
15 Comments received in this rulemaking are
available on the Office’s website. See Ninth
Triennial Section 1201 Proceeding, 2024 Cycle, U.S.
Copyright Office, https://www.copyright.gov/1201/
2024/ (last visited Oct. 17, 2024); see also Late Filed
Comments, U.S. Copyright Office, https://
www.copyright.gov/1201/2024/late-filings/ (last
visited Oct. 17, 2024).
16 Video recordings of these hearings are available
on the Office’s website and YouTube pages. See
Ninth Triennial Section 1201 Rulemaking Public
Hearings, U.S. Copyright Office, https://
www.copyright.gov/1201/2024/hearings.html (last
visited Oct. 17, 2024); U.S. Copyright Office,
Youtube, https://www.youtube.com/uscopyright
office/ (last visited Oct. 17, 2024). Under each
proposed class, citations to hearing transcripts refer
to that particular class. Hearing transcripts for each
individual class are available on the Office’s web
page. Transcripts of Public Hearings in the Ninth
Triennial Section 1201 Rulemaking, U.S. Copyright
Office, https://www.copyright.gov/1201/2024/
hearing-transcripts/ (last visited Oct. 17, 2024).
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seven responses.17 It then held three ex
parte meetings with participants
concerning three proposed classes.18 In
addition, it received three letters about
the rulemaking from other federal
agencies and government officials.19
The Register consulted with the
National Telecommunications and
Information Administration (‘‘NTIA’’),
in the Department of Commerce, as
required by section 1201(a)(1). NTIA
actively participated in the rulemaking
process, providing input at key stages in
meetings convened by the Office, and
participated in the virtual public
hearings where it engaged directly by
asking questions. NTIA communicated
its views on each of the proposed
exemptions in writing to the Register on
September 24, 2024.20 The Office
summarizes NTIA’s views below.
NTIA’s full recommendation is available
at https://cdn.loc.gov/copyright/1201/
2024/2024_NTIA_DMCA_Letter.pdf.
III. Summary of Register’s
Recommendation
A. Renewal Recommendations
The Register received petitions to
renew all but one of the exemptions
adopted pursuant to the eighth triennial
rulemaking,21 and recommends renewal
of all exemptions for which petitions
were filed.22 She finds that the reasons
17 Participants’ post-hearing letter responses are
available on the Office’s website. Post-Hearing
Questions, U.S. Copyright Office, https://
www.copyright.gov/1201/2024/post-hearing/ (last
visited Oct. 17, 2024).
18 Ex Parte Communications, U.S. Copyright
Office, https://www.copyright.gov/1201/2024/exparte-communications/ (last visited Oct.17, 2024).
The Office required participants to comply with its
ex parte regulation, codified at 37 CFR 205.24. This
regulation requires that parties submit a meeting
request and summary to the Office after an ex parte
meeting, which is substantially the same process
employed in prior section 1201 rulemakings.
Exemptions to Permit Circumvention of Access
Controls on Copyrighted Works, 85 FR 65293,
65310 (Oct. 15, 2020).
19 The letters are available on the Office’s website.
Letters Between the U.S. Copyright Office, Other
Agencies, and Other Government Officials, U.S.
Copyright Office, https://www.copyright.gov/1201/
2024/USCO-letters/ (last visited Oct. 17, 2024).
20 Letter from Alan Davidson, Assistant Sec’y for
Commc’ns & Info. Adm’r, Nat’l Telecomms. & Info.
Admin., U.S. Dep’t of Commerce, to Shira
Perlmutter, Register of Copyrights and Dir., U.S.
Copyright Office (Sept. 24, 2024) (‘‘NTIA Letter’’).
21 A renewal petition was not filed for the
exemption permitting circumvention of video
games in the form of computer programs for the
purpose of allowing an individual with a physical
disability to use alternative software or hardware
input methods. See 37 CFR 201.40(b)(21) (2023); 88
FR 72013, 72015 n.19.
22 See 85 FR 65293, 65295 (describing that there
was no ‘‘meaningful opposition’’ to renewing
exemptions when the Office had ‘‘not received
comments actually disputing whether there [wa]s a
continued basis for any exemptions’’); see also
Exemptions to Permit Circumvention of Access
Controls on Copyrighted Works, 85 FR 37399,
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for the Librarian’s prior adoption of the
exemptions are likely to continue
during the next three-year period. The
existing exemptions, and the bases for
the recommendation to renew each
exemption in accordance with the
streamlined renewal process, are
summarized below.
1. Audiovisual Works—Educational and
Derivative Uses
Multiple individuals and
organizations petitioned to renew the
exemption covering the use of short
portions of motion pictures for various
educational and derivative uses.23 The
Office did not receive meaningful
opposition to renewal. Renewal of each
of this exemption’s subparts was
unopposed, except for noncommercial
videos, as discussed below. The existing
exemption and its various subparts
collectively serve as the baseline in
assessing whether to recommend any
expansion to Classes 1 and 2.
a. Audiovisual Works—Criticism and
Comment—Filmmaking 24
Two organizations petitioned to
renew the exemption for motion
pictures for uses in documentary films
or other films where the use is in a
parody or for the work’s biographical or
historically significant nature. No
oppositions to the renewal were filed.
Petitioners stated that they personally
know many filmmakers who have found
it necessary to rely on this exemption
and will continue to do so. The
petitions summarized the continuing
need and justification for the
exemption.
b. Audiovisual Works–Criticism and
Comment–Noncommercial Videos 25
Two organizations petitioned to
renew the exemption for motion
pictures for uses in noncommercial
videos. The Office did not receive
meaningful opposition to renewal of
this exemption.26 Petitioners stated that
they had personal knowledge that video
creators have relied on this exemption
and anticipate needing to do so in the
future. The Organization for
Transformative Works (‘‘OTW’’)
included an account from an academic
who stated that footage ripped from
DVDs and Blu-ray is preferred for
‘‘vidders’’ (noncommercial remix artists)
because ‘‘it is high quality enough to
bear up under the transformations that
vidders make to it.’’ 27 The petitioners
demonstrated the continuing need and
justification for the exemption.
c. Audiovisual Works—Criticism and
Comment—Multimedia E-books 28
Petitioners also sought renewal of the
exemption for the use of motion picture
excerpts in nonfiction multimedia ebooks. No oppositions were filed against
renewal. The petition demonstrated the
continuing need and justification for the
exemption. In addition, the petitioners
demonstrated personal knowledge that
high-resolution video is not available
without circumvention of technological
protection measures (‘‘TPMs’’). They
provided, as an example, Bobette
Buster’s continued work on an e-book
series based on her lecture series,
‘‘Deconstructing Master Filmmakers:
The Uses of Cinematic Enchantment.’’ 29
d. Audiovisual Works—Criticism,
Comment, Teaching, or Scholarship—
Universities and K–12 Educational
Institutions 30
Multiple individuals and
organizations petitioned to renew the
exemption for motion pictures for
educational purposes by college and
university or K–12 faculty and students.
No oppositions were filed against
renewal. The petitions demonstrated the
continuing need and justification for the
exemption, indicating that educators
and students continue to rely on
excerpts from digital media for class
presentations and coursework. For
instance, a collective of individuals and
organizations provided several
examples of professors using DVD clips
in the classroom. A group of individual
educators and educational
organizations 31 broadly suggested that
the ‘‘entire field’’ of video essays or
multimedia criticism ‘‘could not have
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27 OTW
37402 (June 22, 2020) (describing ‘‘meaningful
opposition’’ standard).
23 See 37 CFR 201.40(b)(1).
24 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.A.1.
25 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.A.2.
26 Opposition to the Organization for
Transformative Works’ (‘‘OTW’) requested changes
is addressed as Class 1 below. Commenters objected
only to OTW’s request for changes to the
exemption, not to renewal of the exemption as-is.
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Noncom. Videos Renewal Pet. at 3.
Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.A.3.
29 Buster, Authors All. & Am. Ass’n of Univ.
Professors (‘‘AAUP’’) Nonfiction Multimedia EBooks Renewal Pet. at 3.
30 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.A.4.
31 The individuals and organizations include
Peter Decherney, Michael Delli Carpini, Library
Copyright Alliance (‘‘LCA’’), and the Society for
Cinema and Media Studies (‘‘SCMS’’) (collectively,
‘‘Joint Educators I’’).
28 The
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85439
existed in the United States without fair
use and the 1201 educational
exemption.’’ 32 Petitioners demonstrated
personal knowledge and experience
with this exemption based on their past
participation in the section 1201
triennial rulemaking and the experience
of their members—thousands of digital
and literacy educators and other
members supporting educators and
students. The Register finds that
petitioners demonstrated a continuing
need and justification for the
exemption.
e. Audiovisual Works—Criticism and
Comment—Massive Open Online
Courses (‘‘MOOCs’’) 33
A collective of individuals and
organizations petitioned to renew the
exemption for educational uses of
motion pictures in Massive Open
Online Courses (‘‘MOOCs’’). No
oppositions were filed against renewal.
The petitions demonstrated the
continuing need and justification for the
exemption, stating that instructors
continue to rely on the exemption to
develop, provide, and improve MOOCs,
as well as to increase the number of
(and therefore access to) MOOCs in the
field of film and media studies. As
teachers and proponents of MOOCs—
most of whom have advocated for this
exemption in prior rulemakings—
petitioners demonstrated personal
experience with and knowledge of this
exemption.
f. Audiovisual Works—Criticism and
Comment—Digital and Media Literacy
Programs 34
The Library Copyright Alliance
(‘‘LCA’’) and Renee Hobbs petitioned to
renew the exemption for motion
pictures for educational uses in
nonprofit digital and media literacy
programs offered by libraries, museums,
and other organizations. No oppositions
were filed against renewal. The petition
stated that librarians across the country
have relied on the current exemption
and will continue to do so for their
digital and media literacy programs,
thereby demonstrating the continuing
need and justification for the
exemption. Petitioners have personal
experience with this exemption, as they
engage with institutions and individuals
offering these programs.
32 Joint
Educators I AV Educ. Renewal Pet. at 3.
Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.A.5.
34 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.A.6.
33 The
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2. Audiovisual Works—Accessibility 35
The Association of Transcribers and
Speech-to-Text Providers (‘‘ATSP’’) and
LCA petitioned to renew the exemption
for motion pictures for the provision of
captioning and/or audio description by
disability services offices or similar
units at educational institutions for
students, faculty, or staff with
disabilities. No oppositions were filed
against renewal. The petitioners
demonstrated the continuing need and
justification for the exemption, and, as
‘‘represent[atives of] disability services
professionals and supporting entities
collectively responsible for the regular
provision of captioning and audio
description services for thousands of
students,’’ personal knowledge and
experience with the exemption.36
Petitioners stated that the ‘‘exemption
enables disability services offices and
similar units to ensure that students
with disabilities have access to the same
advantages as their peers in the pursuit
of education.’’ 37
3. Audiovisual works—Preservation or
Replacement—Library, Archives, and
Museum 38
LCA petitioned to renew the
exemption for motion pictures for
preservation or the creation of a
replacement copy by an eligible library,
archives, or museum. No oppositions
were filed against renewal. LCA
petitioned for the exemption’s adoption
in the eighth triennial rulemaking and
demonstrated the continuing need and
justification for the exemption.39 For
example, it asserted that institutions
across the country have relied on the
exemption to make preservation and
replacement copies of movies in their
collections, many of which are not
available for purchase or streaming.
LCA indicated that as DVD and Blu-ray
discs deteriorate, institutions like
libraries and museums will continue to
need to circumvent technological
protections to make such copies. LCA
also demonstrated its personal
knowledge of the exemption.
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35 The
Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.B.
36 ATSP & LCA Captioning Renewal Pet. at 3.
37 Id.
38 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.C.
39 LCA Preservation Renewal Pet. at 3.
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4. Audiovisual Works—Text and Data
Mining—Scholarly Research and
Teaching 40
Multiple organizations jointly
petitioned to renew the exemption for
text and data mining of motion pictures
by researchers affiliated with a
nonprofit institution of higher
education, or at the direction of such
researchers, for the purpose of scholarly
research and teaching. Petitioners
demonstrated the continuing need for
this exemption, citing researchers who
rely on it, such as professors using DVD
clips in their classrooms and in their
research. They also demonstrated their
personal experience with this
exemption, having advocated for its
adoption in the eighth triennial
rulemaking proceeding. Although two
organizations jointly objected to renewal
of this exemption, the comments
seemed to have misunderstood the
Register’s prior findings and did not
demonstrate that the previous
rulemaking record was no longer
reliable. Petitioners asserted that there
have not been any legal changes or
market developments that would
disturb the Office’s previous analysis or
materially impact the record on which
the Register had relied. This existing
exemption serves as the baseline in
assessing whether to recommend any
expansions in Class 3(a).
5. Literary Works—Text and Data
Mining—Scholarly Research and
Teaching 41
Multiple organizations jointly
petitioned to renew the exemption for
text and data mining of literary works
that were distributed electronically, by
researchers affiliated with a nonprofit
institution of higher education, or at the
direction of such researchers, for the
purpose of scholarly research and
teaching. No oppositions were filed
against renewal. The petitions
demonstrated the continuing need and
justification for the exemption,
highlighting various professors’ ongoing
and developing research projects
dependent on it. Petitioners also
demonstrated personal knowledge of the
exemption based on their ongoing
relationships with researchers using it.
This existing exemption serves as the
baseline in assessing whether to
recommend any expansions in Class
3(b).
40 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.D.
41 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.E.
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6. Literary Works—Text and Data
Mining—Assistive Technologies 42
Multiple organizations jointly
petitioned to renew the exemption for
literary works or previously published
musical works that have been fixed in
the form of text or notation, distributed
electronically, and include access
controls that interfere with assistive
technologies. No oppositions were filed
against renewal. The petitioners
demonstrated the continuing need and
justification for the exemption, stating
that individuals who are blind, visually
impaired, or print-disabled are
significantly disadvantaged with respect
to obtaining accessible e-book content
because TPMs interfere with the use of
assistive technologies. Additionally,
they demonstrated personal knowledge
and extensive experience with the
assistive technology exemption, as they
are all organizations that advocate for
the blind, visually impaired, and printdisabled.
7. Literary Works—Medical Device
Data 43
The Coalition of Medical Device
Patients and Researchers (‘‘the
Coalition’’) petitioned to renew the
exemption covering access to patient
data on medical devices or monitoring
systems. No oppositions were filed
against renewal. The Coalition
demonstrated the continuing need and
justification for the exemption, stating
that ‘‘the exemption is vital to patients’
ability to monitor the data output of
medical devices that monitor and
maintain their health’’ and to medical
research.44 It also demonstrated
personal knowledge and experience
with this exemption, citing member
Hugo Campos’s experiences as a patient
who has needed access data from his
implanted defibrillator, and its research
regarding medical devices.
8. Computer Programs—Unlocking 45
The Institute of Scrap Recycling
Industries, Inc. (‘‘ISRI’’) petitioned to
renew the exemption for computer
programs that operate wireless devices,
to allow connection of a new or used
device to an alternative wireless
network (‘‘unlocking’’). No oppositions
42 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.F.
43 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.G.
44 Coalition Medical Devices Renewal Pet. at 3.
45 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.H.
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were filed against renewal. The petition
demonstrated the continuing need and
justification for the exemption, stating
that users ‘‘continue to purchase or
acquire donated cell phones, tablets,
laptops, and a variety of other wireless
devices no longer needed by their
original owners and try to make the best
possible use of them through resale or
recycling,’’ which requires unlocking
the devices so they may be used on
other carriers.46 ISRI demonstrated
personal knowledge and experience
with the exemption based on its
involvement in previous triennial
rulemakings and its representation of
nearly 1,600 companies that process,
broker, and consume scrap
commodities.
9. Computer Programs—Jailbreaking 47
Multiple organizations petitioned to
renew the four exemptions for computer
programs that enable electronic devices
to interoperate with or to remove
software applications (‘‘jailbreaking’’).
These exemptions permit circumvention
for the purpose of jailbreaking (1)
smartphones and other portable allpurpose computing devices, (2) smart
televisions, (3) voice assistant devices,
and (4) routers and dedicated
networking devices. No oppositions
were filed against renewal. The
petitions demonstrated the continuing
need and justification for the exemption
and that petitioners have personal
knowledge and experience with regard
to this exemption. Petitioners described
how users of a variety products in each
of these categories rely on this
exemption to maintain functionality and
security of older devices, to install
alternative operation systems, and to
customize software applications on
electronic devices. Collectively, the
petitions demonstrated that without this
exemption, TPMs installed on the
enumerated products would have an
adverse effect on various noninfringing
uses.
10. Computer Programs—Repair of
Motorized Land Vehicles, Marine
Vessels, or Mechanized Agricultural
Vehicles or Vessels 48
iFixit and MEMA, The Vehicle
Suppliers Association (‘‘MEMA’’),
petitioned to renew the exemption for
computer programs that control
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46 ISRI
Unlocking Renewal Pet. at 3.
47 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.I.
48 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.J.
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motorized land vehicles, marine vessels,
or mechanized agricultural vehicles or
vessels for purposes of diagnosis, repair,
or modification of a vehicle or vessel
function. No oppositions were filed
against renewal. The petitioners each
represent or advise individuals and
businesses that perform vehicle service
and repair and have personal experience
with this exemption through those
activities. They demonstrated the
continuing need and justification for the
exemption. For example, MEMA stated
that its membership ‘‘continues to see
firsthand that the exemption is helping
protect consumer choice and a
competitive market, while mitigating
risks to intellectual property and vehicle
safety’’—particularly as ‘‘every year
vehicle computer programs become
more important and essential to today’s
motor vehicles.’’ 49 In the 2021
rulemaking, the Register concluded that
the ‘‘prohibition against circumvention
. . . [was] likely to adversely affect
diagnosis, repair, and lawful
modification of a vessel function for
marine vessels,’’ as well as functions for
land vehicles, including agricultural
land vehicles such as tractors.50 The
Office did not receive any evidence
indicating that these categories of
vehicles and vessels should be treated
differently in this proceeding.
11. Computer Programs—Repairs of
Devices Designed Primarily for Use by
Consumers 51
The Electronic Frontier Foundation
(‘‘EFF’’) petitioned to renew the
exemption for computer programs that
control devices designed primarily for
use by consumers for diagnosis,
maintenance, or repair of the device.
The Office did not receive meaningful
opposition to renewal.52 The petitioners
demonstrated the continuing need and
justification for the exemption. For
example, EFF asserted that
‘‘[m]anufacturers of these devices
continue to implement technological
protection measures that inhibit lawful
repairs, maintenance, and diagnostics,
and they show no sign of changing
course.’’ 53 EFF has personal knowledge
of this exemption, as it has been
involved with the section 1201
rulemaking process since its inception
Vehicle Repair Renewal Pet. at 3.
Recommendation at 223.
51 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.K.
52 Although Author Services filed a comment
opposing renewal of the exemption ‘‘in its present
form,’’ the comment only addressed devices outside
the scope of the existing exemption. See 88 FR
72013, 72020–21.
53 EFF Device Repair Renewal Pet. at 3.
85441
and has specifically advocated for
device repair exemptions.
12. Computer Programs—Repair of
Medical Devices and Systems 54
Multiple organizations petitioned to
renew the exemption to access
computer programs that are contained
in and control the functioning of
medical devices or systems, and related
data files, for purposes of diagnosis,
maintenance, or repair. The petitioners
repair, maintain, service, or sell medical
systems and devices and thus have
personal experience with this
exemption. The petitions demonstrated
the continuing need and justification for
the exemption, for example stating that
‘‘the use of TPMs in medical systems
and devices is widespread’’ and that
manufacturers ‘‘have developed new
systems that further restrict access to
use of necessary software tools.’’ 55
Petitioners also emphasized that this
exemption makes possible device repair
and maintenance services that ensure
continuity and efficiency of patient care.
Three organizations submitted timely
opposition comments. Opponents
asserted that the exemption undermines
the U.S. Food and Drug
Administration’s (‘‘FDA’’) maintenance
and repair standards for the intricate
equipment used in patient care and
conflicts with other congressional
policies. They also argued that the
Supreme Court’s decision in Andy
Warhol Found. for the Visual Arts v.
Goldsmith 56 undermined the validity of
the previous rulemaking’s analysis. As
in the Register’s 2021 Recommendation,
in this rulemaking the Register again
emphasizes that the Office ‘‘generally
does not consider other regulatory
schemes as part of the . . . analysis
because the focus of this proceeding is
on copyright-related considerations,’’ 57
and notes that granting an exemption
under section 1201 does not absolve any
user from compliance with other
relevant laws and regulations. The
Register further concludes that the
Warhol decision does not substantially
change the Office’s analysis of the uses
at issue in this exemption.
49 MEMA
50 2021
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54 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.L.
55 Avante Health Sols., Avante Diagnostic
Imaging, and Avante Ultrasound Medical Device
Repair Renewal Pet. at 5.
56 598 U.S. 508 (2023).
57 2021 Recommendation at 229.
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13. Computer Programs—Security
Research 58
Multiple organizations and security
researchers petitioned to renew the
exemption permitting circumvention for
purposes of good-faith security research.
No oppositions were filed against
renewal, and one group of security and
policy professionals submitted a
comment in support of the petition. The
petitioners demonstrated the continuing
need and justification for the
exemption, as well as personal
knowledge of and experience with this
exemption. They highlighted professors’
critical research regarding
vulnerabilities in voting machines,
devices underpinning the financial
industry, smart phones, and other
devices. They also stated that this
exemption enables security testing that
is vital to ensure device users’ privacy
is protected and security issues are
corrected.
14. Video Games—Preservation and
Abandoned Video Games 59
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The Software Preservation Network
(‘‘SPN’’) and LCA jointly petitioned to
renew the exemption for individual play
by gamers and preservation of video
games by a library, archives, or museum
for which outside server support has
been discontinued, and preservation by
a library, archives, or museum, of
discontinued video games that never
required server support. No oppositions
were filed against renewal, and one
individual filed a comment in support.
Petitioners demonstrated that there is a
continuing need and justification for the
exemption. They stated that video game
collection librarians report an ongoing
need to preserve TPM-encumbered
video games in their collections and that
the ‘‘[section] 1201 exemption has
become a crucial tool in their ongoing
efforts to save digital game culture
before it disappears.’’ 60 They
demonstrated personal knowledge and
experience through past participation in
section 1201 rulemakings and through
their representation of members who
have relied on this exemption.
This existing exemption serves as the
baseline in assessing whether to
recommend any expansions in Class
6(b).
58 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.M.
59 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.N.
60 SPN and LCA Abandoned Video Game
Renewal Pet. at 3.
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15. Computer Programs—Preservation 61
SPN and LCA jointly petitioned to
renew the exemption for the
preservation of computer programs
other than video games, and computer
program-dependent materials, by
libraries, archives, and museums. No
oppositions were filed against renewal,
and one individual filed a comment in
support. Petitioners demonstrated that
there is a continuing need and
justification for this exemption. For
example, they asserted that remotely
accessing preserved computer programs
‘‘fulfill[s] cultural heritage institutions’
missions to support research, analysis,
and other scholarly re-use of the
historical record (and to do so equitably
and inclusively).’’ 62 In addition, they
demonstrated personal knowledge and
experience through past participation in
section 1201 rulemakings relating to
access controls on software and through
representing major library associations
with members who have relied on this
exemption.63
This existing exemption serves as the
baseline in assessing whether to
recommend any expansions in Class
6(a).
16. Computer Programs—3D Printers 64
Michael Weinberg petitioned to renew
the exemption for computer programs
that operate 3D printers to allow use of
alternative material. No oppositions
were filed against renewal. The petition
demonstrated the continuing need and
justification for the exemption, and the
petitioner demonstrated personal
knowledge and experience. Specifically,
Mr. Weinberg declared that he is a
member of the 3D printing community
and has been involved with this
exemption’s renewal and modification
in each section 1201 rulemaking it has
been considered. Additionally, he stated
that while 3D printer manufacturers
‘‘continue to use TPMs to limit the types
of materials used in printers,’’ since the
last rulemaking proceeding, there has
been ‘‘an expansion of third-party
materials available for 3D printers’’ due
to the current exemption, which has
assured manufacturers and users that
their uses would not violate section
1201.65
61 The
Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.O.
62 SPN & LCA Software Preservation Renewal Pet.
at 3.
63 Id.
64 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.P.
65 Weinberg 3D Printers Renewal Pet. at 3.
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17. Computer Programs—Copyright
License Investigation 66
The Software Freedom Conservancy
(‘‘SFC’’) petitioned to renew the
exemption for computer programs, for
the purpose of investigating potential
infringement of free and open-source
computer programs. No oppositions
were filed against renewal. The petition
demonstrated the continuing need and
justification for the exemption,
including through discussion of how
TPMs, such as encryption, ‘‘prevent[ ]
the investigation of computer programs’’
within various devices, such as laptops,
IP-enabled doorbells, baby monitors,
and thermostats, that use free and open
source software (‘‘FOSS’’) to operate.67
SFC indicated that barriers to
investigating FOSS will ‘‘continue to
exist . . . [and would] prevent . . .
users from obtaining access to the
relevant copyrighted works’’ without
the exemption.68 As a participant in the
previous rulemaking and ‘‘the nonprofit
home for dozens of FOSS projects
representing well over a thousand
volunteer contributors,’’ SFC
demonstrated personal knowledge and
experience regarding the exemption.69
18. Computer Programs—Videogame
Accessibility 70
In 2021, the Register found that the
record ‘‘support[ed] an exemption to
enable individuals with disabilities to
use alternate input devices to play video
games.’’ 71 The Office previously noted
the strong justifications for the
exemption and recommended that
Congress enact a permanent exemption
to enable such accessibility. It did not,
however, receive a petition to renew
this exemption and, given the
constraints of the rulemaking process,
the Register is not able to recommend
renewal.
B. New or Expanded Designations of
Classes
Based upon the record in this
proceeding regarding proposed
expansions to existing exemptions or
newly proposed exemptions, the
Register recommends that the Librarian
grant the following additional
66 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.Q.
67 SFC Copyright License Investigation Renewal
Pet. at 3.
68 Id.
69 Id.
70 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at IV.R.
71 2021 Recommendation at 315.
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exemptions from the prohibition against
circumvention of technological
measures set forth in section 1201(a)(1):
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1. Proposed Classes 3(a) and 3(b):
Audiovisual Works and Literary
Works—Text and Data Mining 72
Authors Alliance, the American
Association of University Professors
(‘‘AAUP’’), and LCA petitioned to
expand the existing exemptions that
permit circumvention of technological
protection measures on copies of
copyrighted audiovisual and literary
works that were lawfully acquired, to
enable researchers to perform text and
data mining for the purpose of scholarly
research and teaching. The current
exemptions permit access to the corpora
to outside researchers ‘‘solely for
purposes of collaboration or replication
of the research.’’ 73 Petitioners stated
that additional research based on text
and data mining techniques is stymied
by uncertainty surrounding whether and
when the corpora at issue may be used
by researchers at outside institutions.
Proposed Classes 3(a) and 3(b) would
provide an exemption to allow
academic researchers to share copies of
corpora with researchers affiliated with
other nonprofit institutions of higher
education ‘‘for purposes of conducting
independent text [and] data mining
research and teaching, where those
researchers are in compliance with the
exemption.’’ 74
Association of American Publishers
(‘‘AAP’’); Motion Picture Association
(‘‘MPA’’), News Media Alliance, and the
Recording Industry Association of
America (‘‘RIAA’’) (collectively, ‘‘Joint
Creators III’’); DVD Copy Control
Association (‘‘DVD CCA’’) and the
Advanced Access Content System
Licensing Administrator, LLC (‘‘AACS
LA’’); and the International Association
of Scientific, Technical and Medical
Publishers opposed the proposed
expansions for classes 3(a) and 3(b).
They argued that the ‘‘proposed new
language would dramatically enlarge the
scope of the exemptions adopted in
2021’’ and could lead to ‘‘a wide range
of potentially infringing uses’’ of
copyrighted works.75 They also raised
72 The Register’s analysis and conclusions for this
class, including citations to the record and relevant
legal authority, can be found in the Register’s
Recommendation at V.C.
73 37 CFR 201.40(b)(4)–(5).
74 Authors All., AAUP & LCA Class 3(a) Pet. at
2; Authors All., AAUP & LCA Class 3(b) Pet. at 2.
75 Motion Picture Association (‘‘MPA’’), News
Media Alliance, and the Recording Industry
Association of America (‘‘RIAA’’) (collectively,
‘‘Joint Creators III’’) Class 3(a) Opp’n at 5; see Ass’n
of Am. Publishers (‘‘AAP’’) Class 3(b) Opp’n at 2–
3; DVD Copy Control Ass’n (‘‘DVD CCA’’) and
Advanced Access Content Sys. Licensing Adm’r,
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issues with the existing exemptions’
security measures and viewing
provisions.
As discussed in the Register’s
Recommendation, absent modifications
to the current exemptions for text and
data mining, researchers at other
academic institutions will face adverse
effects in their ability to make
noninfringing use of copyrighted
audiovisual and literary works. The
Register recommends that the current
exemptions be modified to permit
researchers affiliated with other
nonprofit institutions of higher
education to access corpora solely for
the purposes of text and data mining
research or teaching. ‘‘Access’’ in this
context means that an institution may
provide outside researchers with
credentials for security and
authentication to use a corpus that is
hosted on its servers; it does not mean
that an institution or a researcher may
disseminate a copy of a corpus (or
copyrighted works included therein) to
outside researchers or give outside
researchers the ability to download,
make copies of, or distribute any
copyrighted works.
The Register also recommends
amending the existing exemptions to
clarify the security measures provisions
and the viewing provisions to bring the
regulatory text in line with the fair use
analysis in the 2021 Recommendation.
These amendments do not require a new
fair use analysis. Specifically, she
recommends amending the security
measures provisions to: (1) include
reasonable requests from trade
associations; (2) permit inquiries into
security measures regardless of whether
they are based on individual agreements
or the institution’s own standards; and
(3) allow those inquiries when the
copyright owners reasonably believe
that their works are in the corpus. The
Register also recommends amending the
viewing provision to permit researchers
to view the contents of copyrighted
works as part of their research, provided
that viewing takes place in furtherance
of research objectives (e.g., processing or
annotating works to prepare them for
analysis) and not for the works’
expressive value.
2. Proposed Class 5: Computer
Programs—Repair of Commercial
Industrial Equipment 76
Public Knowledge and iFixit jointly
petitioned for an expanded repair
LLC (‘‘AACS LA’’) Class 3(a) Opp’n at 12–13, 19–
20.
76 The Register’s analysis and conclusions for this
class, including citations to the record and relevant
legal authority, can be found in the Register’s
Recommendation at V.E.
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exemption that would permit
circumvention for the purposes of
diagnosis, maintenance, and repair of
commercial and industrial equipment.
The U.S. Department of Justice Antitrust
Division and the Federal Trade
Commission filed comments in support
of the petition. Proponents asserted that
that there were sufficient commonalities
to support a broad class by providing
four representative examples, including
commercial food preparation
equipment. Opponents ACT √ The App
Association; Associated Equipment
Distributors; Entertainment Software
Association (‘‘ESA’’), MPA, and RIAA
(‘‘collectively, ‘‘Joint Creators I’’);
Philips North America, LLC; and the
Association of Home Appliance
Manufacturers primarily argued that the
scope of the class was overly broad and
unsupported by the record. NTIA
supported the proposed exemption.
The Register recommends adopting a
new exemption covering diagnosis,
maintenance, and repair of retail-level
commercial food preparation equipment
because proponents sufficiently
showed, by a preponderance of the
evidence, adverse effects on the
proposed noninfringing uses of such
equipment. However, she declines to
recommend an exemption for a broader
class of software-enabled commercial
and industrial devices in the absence of
a sufficient showing of adverse effects
on the record presented in this
rulemaking.
3. Proposed Class 7: Computer
Programs—Vehicle Operational Data 77
Class 7 proponents sought a new
exemption to permit lawful owners and
lessees, or those acting on their behalf,
to access, store, and share vehicle
operational and telematics data
generated by motorized land vehicles
and marine vessels. They argued that
the proposed exemption would allow
vehicle owners and lessees to make
productive, noninfringing uses of that
data, such as monitoring vehicle use
and streamlining the vehicle repair
process. In subsequent comments and at
the public hearing, proponents agreed
that any exemption should include
limitations, such as the continued
applicability of other laws.
Alliance for Automotive Innovation,
Association of Equipment
Manufacturers, National Association of
Manufacturers, and the Joint Creators I
opposed the exemption. They argued
that consumers already have sufficient
77 The Register’s analysis and conclusions for this
class, including citations to the record and relevant
legal authority, can be found in the Register’s
Recommendation at V.G.
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access under current laws and market
practices, particularly the existing
vehicle repair exemption found in
section 37 CFR 201.40(b)(13) (‘‘Repair
Exemption’’). They further contended
that the proposed exemption was
overbroad and would raise issues
related to safety, privacy, and trade
secrets.
NTIA supported the proposed
exemption and recommended that it
operate as a ‘‘standalone’’ exemption,
separate from the Repair Exemption. In
addition, NTIA recommended including
the term ‘‘analyze’’ within the proposed
regulatory language, as furthering the
intended goals of the exemption.
For the reasons detailed in the
Register’s Recommendation, the Register
concludes that the prohibition on
circumvention adversely affects the
ability of lawful owners and lessees, or
those acting on their behalf, to access,
store, and share operational and
telematics data, which are likely to be
noninfringing. She further finds that
such uses would not adversely affect the
market for or value of computer
programs integrated into vehicles and
vessels and that the purported
alternatives do not sufficiently mitigate
any adverse effects. She also
recommends adopting regulatory
provisions mirroring those within the
Repair Exemption regarding the
applicability of the exemption to other
laws, separate subscription services, and
unauthorized access to other
copyrighted works.
C. Classes Considered but Not
Recommended
Based upon the record in this
proceeding, the Register recommends
that the Librarian determine that the
following classes of works shall not be
exempt during the next three-year
period from the prohibition against
circumvention of technological
measures set forth in section 1201(a)(1):
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1. Proposed Class 1: Audiovisual
Works—Noncommercial Videos 78
Proposed Class 1 proponents sought
to expand the existing exemption that
permits circumvention of access
controls protecting excerpts of motion
pictures on DVDs, Blu-ray discs, and
digitally transmitted video for the
purposes of criticism and comment,
including for educational purposes by
certain users. The Office received one
petition from OTW seeking an
amendment to the language of the
78 The Register’s analysis and conclusions for this
subpart, including citations to the record and
relevant legal authority, can be found in the
Register’s Recommendation at V.A.
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existing exemption.79 Specifically, OTW
proposed rewriting the text of the
current exemption related to
noncommercial videos, which is being
renewed, by reverting to language used
in the 2010 rulemaking, when the
exemption was initially adopted. OTW
maintained that its proposed changes
would not substantively alter the
exemption but would render it more
understandable to users. It made
essentially the same request in the 2021
proceeding, which the Register did not
recommend adopting.
The Office received no comments in
support of the proposal, no requests
from OTW or other parties to participate
in the public hearings, and no other
evidence in support of the proposal.
Two groups, however, filed opposition
comments. These groups opposed the
language changes that OTW proposed,
but did not oppose renewal of the
exemption as currently written.
Opponents highlighted the Register’s
previous findings in the 2021
rulemaking that OTW’s proposed
changes were not warranted, as well as
OTW’s failure in this proceeding to
submit any evidence supporting its
petition. NTIA acknowledged that
petitioner did not submit its request in
a procedurally proper manner, but
supported petitioner’s proposed
modifications to the class and structural
alterations to the way exemptions are
written in general. The Register does not
recommend the expansion proposed as
Class 1, which does not include
substantive changes.
2. Proposed Class 2: Audiovisual
Works—Online Learning 80
Proposed Class 2 would expand the
existing exemption for circumvention of
access controls protecting motion
pictures on DVDs, Blu-ray discs, and
digitally transmitted video for
educational purposes in massive open
online courses (‘‘MOOCs’’) by faculty
and employees acting at the direction of
faculty of accredited nonprofit
educational institutions. Petitioner
sought to expand the scope of the
exemption for ‘‘educators . . . and
preparers of online learning materials
acting at the direction of educators’’ of
‘‘qualified online educational entities,’’
including for-profit entities and
unaccredited educational institutions, to
use short portions of motion pictures
79 OTW submitted a petition for renewal, which
the Office construed as a request for expansion
since petitioner requested alterations to the existing
exemption.
80 The Register’s analysis and conclusions for this
class, including citations to the record and relevant
legal authority, can be found in the
Recommendation at V.B.
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‘‘for the purpose of teaching registered
learners . . . in courses requiring close
analysis of film and media excerpts
when the transformative fair use of the
excerpts contributes significantly to
learning, for the purpose of criticism,
comment, illustration, or
explanation.’’ 81 Proponents argued that
these entities should have free and
efficient ways of accessing high-quality
motion picture excerpts to educate
nontraditional learners. Opponents
argued against the proposed expansion,
contending that proponents failed to
meet their evidentiary burden,
including that the conduct at issue
would be noninfringing. Finally, AACS
LA argued that screen capture
technology has improved and remains
an adequate alternative in some
circumstances.
NTIA supported the proposed
exemption with some modifications to
address opponents’ concerns.
The Register finds that the record
lacks support to expand the existing
exemption to for-profit and/or
unaccredited educational entities. She
therefore does not recommend adopting
the proposed exemption.
3. Proposed Class 4: Computer
Programs—Generative AI Research 82
Class 4 proponents sought an
exemption for the purpose of
conducting ‘‘trustworthiness’’ research
on AI systems. Specifically, they sought
to conduct research on harmful or
undesirable outputs from generative AI
systems, including content that is
biased, is sexually explicit, or infringes
copyrights. They asserted that section
1201 inhibits this research by
prohibiting the circumvention of
various safeguards on online platforms,
including account authentication
systems.
Opponents asserted that the proposed
language was overbroad, arguing that a
broad exemption could damage all
software markets and sweep in a variety
of systems and products, such as Bluray disc players. They also contended
that proponents failed to provide
sufficient information about the TPMs at
issue and whether they would be
circumvented for the proposed research.
Finally, they argued that an exemption
would be premature, and that the
rulemaking was not the appropriate
venue to establish new law, given the
nascent technology involved and
81 Peter Decherney, Sarah Banet-Weiser, Shiv
Gaglani & SCMS (collectively, ‘‘Joint Educators II’’)
Class 2 Reply at 2–3.
82 The Register’s analysis and conclusions for this
class, including citations to the record and relevant
legal authority, can be found in the
Recommendation at V.D.
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ongoing legislative and policy work on
generative AI.
NTIA supported an exemption
modeled after the current security
research exemption,83 but without the
requirement that research be conducted
on lawfully acquired devices, or with
the authorization of the system owner or
operator. Although NTIA concluded
that section 1201 would not apply to
most of the activities identified by
proponents, it believed that the use of
certain prompts could implicate the
prohibition on circumvention. NTIA
also found sufficient evidence of
adverse effects, crediting statements
from academic researchers describing
the ‘‘chilling effect’’ of section 1201 on
their work.
The Register recommends denying the
proposed exemption. She acknowledges
the importance of AI trustworthiness
research as a policy matter and notes
that Congress and other agencies may be
best positioned to act on this emerging
issue. She narrowed the proposed class
to generative AI systems made available
via software as a service based on the
rulemaking record. She finds, however,
that the adverse effects identified by
proponents arise from third-party
control of online platforms rather than
the operation of section 1201, so that an
exemption would not ameliorate their
concerns.
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4. Proposed Classes 6(a) and 6(b):
Computer Programs and Video Games—
Preservation 84
Proposed Classes 6(a) and 6(b) would
amend the existing exemptions
permitting libraries, archives, and
museums to circumvent TPMs on
computer programs and video games,
respectively, for the purpose of
preservation activities. The proposed
amendment to Class 6(a) would remove
the limitation that a preserved computer
program must be accessible to only one
user at a time (the ‘‘single-user
limitation’’). Petitioners sought
clarification of the single-user
limitation, arguing that it is currently
open to two different interpretations.
The existing exemption, they
contended, could be read to allow
multiple users to access circumvented
copies at once, so long as the number of
users does not exceed the number of
copies the institution owns; or to mean
that only one user at a time may access
a copy of the circumvented work
83 37 CFR 201.40(b)(16) (2023). The current
security research exemption is being renewed
during this rulemaking proceeding.
84 The Register’s analysis and conclusions for this
class, including citations to the record and relevant
legal authority, can be found in the
Recommendation at V.F.
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regardless of how many copies the
institution owns. Proposed Class 6(b)
would also remove the current
exemption’s limitation that a video
game must not be distributed or made
available outside of the physical
premises of the institution (the
‘‘premises limitation’’).
Proponents argued that researchers
could make noninfringing uses of the
exemption even if the single-user
limitation and the premises limitation
were removed. This position was based
in part on their view that proposed uses
would be transformative, and would not
affect the potential market for or value
of the copyrighted works because only
works that are no longer reasonably
available in the commercial marketplace
would be subject to the exemption.
DVD CCA and AACS LA and Joint
Creators I opposed removing the singleuser limitation. They argued if a
preservation institution were to allow
multiple simultaneous uses of a
preserved program, users’ conduct
would not be fair use and would cause
market harm.
DVD CCA and AACS LA, Joint
Creators I, and ESA opposed removing
the premises limitation. They contended
that there would be a significant risk
that preserved video games would be
used for recreational purposes. They
further argued that the expanded
exemption would give preservation
institutions too much discretion
regarding how they provide remote
users access to preserved works; and
that it did not contain appropriately
tailored restrictions to ensure that uses
would be limited to teaching, research,
or scholarship uses. They believe that
removing the premises limitation would
also adversely affect the existing market
for older video games.
NTIA supported the removal of each
limitation.
The Register concludes that
proponents did not show that removing
the single-user limitation for preserved
computer programs or permitting offpremises access to video games are
likely to be noninfringing. She also
notes the greater risk of market harm
with removing the video game
exemption’s premises limitation, given
the market for legacy video games. She
recommends clarifying the single copy
restriction language to reflect that
preservation institutions can allow a
copy of a computer program to be
accessed by as many individuals as
there are circumvented copies legally
owned. This clarifying text will address
the perceived ambiguity in the current
exemption, while maintaining the
single-user limitation’s intended
purpose to minimize the risk of
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85445
substitutional uses of preserved
computer programs.
D. Conclusion
Having considered the evidence in the
record, the comments of proponents and
opponents of the exemptions, and the
objectives of section 1201, the Register
recommends that the Librarian of
Congress exempt for the next three years
certain classes of works, as described
above, from the prohibition against
circumvention of technological
measures that effectively control access
to copyrighted works.
Dated: October 18, 2024.
Shira Perlmutter,
Register of Copyrights and Director of the
U.S. Copyright Office.
Determination of the Librarian of
Congress
Having duly considered the
recommendation of the Register of
Copyrights as summarized above, which
recommendation is hereby incorporated
by reference, the Librarian of Congress
accepts that recommendation with
respect to all the classes of works under
consideration. The Librarian, exercising
her authority pursuant to 17 U.S.C.
1201(a)(1)(C) and (D), hereby publishes
as a new rule the classes of copyrighted
works that shall for a three-year period
be subject to the exemption found in 17
U.S.C. 1201(a)(1)(B) from the
prohibition against circumvention of
technological measures that effectively
control access to copyrighted works set
forth in 17 U.S.C. 1201(a)(1)(A).
The Librarian is aware that the
Register and her legal staff have
invested a great deal of time over the
past two years in analyzing the many
issues underlying the 1201 process and
proposed exemptions.
Through this work, the Register has
come to believe that the issue of
research on artificial intelligence
security and trustworthiness warrants
more general Congressional and
regulatory attention. The Librarian
agrees with the Register in this
assessment. As a regulatory process
focused on technological protection
measures for copyrighted content,
section 1201 is ill-suited to address
fundamental policy issues with new
technologies.
The Librarian is further aware of the
policy and legal issues involving a
generalized ‘‘right to repair’’ equipment
with embedded software. These issues
have now occupied the White House,
Congress, state legislatures, federal
agencies, the Copyright Office, and the
general public through multiple rounds
of 1201 rulemaking.
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Copyright is but one piece in a
national framework for ensuring the
security, trustworthiness, and reliability
of embedded software, and other
copyright-protected technology that
affects our daily lives. Issues such as
these extend beyond the reach of 1201
and may require a broader solution, as
noted by the NTIA.
The Librarian fully supports the
Register in her examination of these
issues and urges Congress to work with
the Copyright Office and other federal
agencies to consider these issues beyond
the contours of this 1201 rulemaking.
List of Subjects in 37 CFR Part 201
Copyright, Exemptions to prohibition
against circumvention.
Final Regulations
For the reasons set forth in the
preamble, 37 CFR part 201 is amended
as follows:
PART 201—GENERAL PROVISIONS
1. The authority citation for part 201
continues to read as follows:
■
Authority: 17 U.S.C. 702.
2. Section 201.40 is amended by
revising paragraph (b) to read as follows:
■
§ 201.40 Exemption to prohibition against
circumvention.
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*
*
*
*
*
(b) Classes of copyrighted works.
Pursuant to the authority set forth in 17
U.S.C. 1201(a)(1)(C) and (D), and upon
the recommendation of the Register of
Copyrights, the Librarian has
determined that the prohibition against
circumvention of technological
measures that effectively control access
to copyrighted works set forth in 17
U.S.C. 1201(a)(1)(A) shall not apply to
persons who engage in noninfringing
uses of the following classes of
copyrighted works:
(1) Motion pictures (including
television shows and videos), as defined
in 17 U.S.C. 101, where the motion
picture is lawfully made and acquired
on a DVD protected by the Content
Scramble System, on a Blu-ray disc
protected by the Advanced Access
Content System, or via a digital
transmission protected by a
technological measure, and the person
engaging in circumvention under
paragraphs (b)(1)(i) and (b)(1)(ii)(A) and
(B) of this section reasonably believes
that non-circumventing alternatives are
unable to produce the required level of
high-quality content, or the
circumvention is undertaken using
screen-capture technology that appears
to be offered to the public as enabling
the reproduction of motion pictures
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after content has been lawfully acquired
and decrypted, where circumvention is
undertaken solely in order to make use
of short portions of the motion pictures
in the following instances:
(i) For the purpose of criticism or
comment:
(A) For use in documentary
filmmaking, or other films where the
motion picture clip is used in parody or
for its biographical or historically
significant nature;
(B) For use in noncommercial videos
(including videos produced for a paid
commission if the commissioning
entity’s use is noncommercial); or
(C) For use in nonfiction multimedia
e-books.
(ii) For educational purposes:
(A) By college and university faculty
and students or kindergarten through
twelfth-grade (K–12) educators and
students (where the K–12 student is
circumventing under the direct
supervision of an educator), or
employees acting at the direction of
faculty of such educational institutions
for the purpose of teaching a course,
including of accredited general
educational development (GED)
programs, for the purpose of criticism,
comment, teaching, or scholarship;
(B) By faculty of accredited nonprofit
educational institutions and employees
acting at the direction of faculty
members of those institutions, for
purposes of offering massive open
online courses (MOOCs) to officially
enrolled students through online
platforms (which platforms themselves
may be operated for profit), in film
studies or other courses requiring close
analysis of film and media excerpts, for
the purpose of criticism or comment,
where the MOOC provider through the
online platform limits transmissions to
the extent technologically feasible to
such officially enrolled students,
institutes copyright policies and
provides copyright informational
materials to faculty, students, and
relevant staff members, and applies
technological measures that reasonably
prevent unauthorized further
dissemination of a work in accessible
form to others or retention of the work
for longer than the course session by
recipients of a transmission through the
platform, as contemplated by 17 U.S.C.
110(2); or
(C) By educators and participants in
nonprofit digital and media literacy
programs offered by libraries, museums,
and other nonprofit entities with an
educational mission, in the course of
face-to-face instructional activities, for
the purpose of criticism or comment,
except that such users may only
circumvent using screen-capture
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technology that appears to be offered to
the public as enabling the reproduction
of motion pictures after content has
been lawfully acquired and decrypted.
(2)(i) Motion pictures (including
television shows and videos), as defined
in 17 U.S.C. 101, where the motion
picture is lawfully acquired on a DVD
protected by the Content Scramble
System, on a Blu-ray disc protected by
the Advanced Access Content System,
or via a digital transmission protected
by a technological measure, where:
(A) Circumvention is undertaken by a
disability services office or other unit of
a kindergarten through twelfth-grade
educational institution, college, or
university engaged in and/or
responsible for the provision of
accessibility services for the purpose of
adding captions and/or audio
description to a motion picture to create
an accessible version for students,
faculty, or staff with disabilities;
(B) The educational institution unit in
paragraph (b)(2)(i)(A) of this section has
a reasonable belief that the motion
picture will be used for a specific future
activity of the institution and, after a
reasonable effort, has determined that
an accessible version of sufficient
quality cannot be obtained at a fair
market price or in a timely manner,
including where a copyright holder has
not provided an accessible version of a
motion picture that was included with
a textbook; and
(C) The accessible versions are
provided to students or educators and
stored by the educational institution in
a manner intended to reasonably
prevent unauthorized further
dissemination of a work.
(ii) For purposes of this paragraph
(b)(2):
(A) ‘‘Audio description’’ means an
oral narration that provides an accurate
rendering of the motion picture;
(B) ‘‘Accessible version of sufficient
quality’’ means a version that in the
reasonable judgment of the educational
institution unit has captions and/or
audio description that are sufficient to
meet the accessibility needs of students,
faculty, or staff with disabilities and are
substantially free of errors that would
materially interfere with those needs;
and
(C) Accessible materials created
pursuant to this exemption and stored
pursuant to paragraph (b)(2)(i)(C) of this
section may be reused by the
educational institution unit to meet the
accessibility needs of students, faculty,
or staff with disabilities pursuant to
paragraphs (b)(2)(i)(A) and (B) of this
section.
(3)(i) Motion pictures (including
television shows and videos), as defined
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in 17 U.S.C. 101, where the motion
picture is lawfully acquired on a DVD
protected by the Content Scramble
System, or on a Blu-ray disc protected
by the Advanced Access Content
System, solely for the purpose of lawful
preservation or the creation of a
replacement copy of the motion picture,
by an eligible library, archives, or
museum, where:
(A) Such activity is carried out
without any purpose of direct or
indirect commercial advantage;
(B) The DVD or Blu-ray disc is
damaged or deteriorating;
(C) The eligible institution, after a
reasonable effort, has determined that
an unused and undamaged replacement
copy cannot be obtained at a fair price
and that no streaming service, download
service, or on-demand cable and
satellite service makes the motion
picture available to libraries, archives,
and museums at a fair price; and
(D) The preservation or replacement
copies are not distributed or made
available outside of the physical
premises of the eligible library, archives,
or museum.
(ii) For purposes of paragraph (b)(3)(i)
of this section, a library, archives, or
museum is considered ‘‘eligible’’ if—
(A) The collections of the library,
archives, or museum are open to the
public and/or are routinely made
available to researchers who are not
affiliated with the library, archives, or
museum;
(B) The library, archives, or museum
has a public service mission;
(C) The library, archives, or museum’s
trained staff or volunteers provide
professional services normally
associated with libraries, archives, or
museums;
(D) The collections of the library,
archives, or museum are composed of
lawfully acquired and/or licensed
materials; and
(E) The library, archives, or museum
implements reasonable digital security
measures as appropriate for the
activities permitted by paragraph
(b)(3)(i) of this section.
(4)(i) Motion pictures, as defined in
17 U.S.C. 101, where the motion picture
is on a DVD protected by the Content
Scramble System, on a Blu-ray disc
protected by the Advanced Access
Content System, or made available for
digital download where:
(A) The circumvention is undertaken
by a researcher affiliated with a
nonprofit institution of higher
education, or by a student or
information technology staff member of
the institution at the direction of such
researcher, solely to deploy text and
data mining techniques on a corpus of
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motion pictures for the purpose of
scholarly research and teaching;
(B) The copy of each motion picture
is lawfully acquired and owned by the
institution, or licensed to the institution
without a time limitation on access;
(C) The person undertaking the
circumvention or conducting research
or teaching under this exemption views
or listens to the contents of the motion
pictures in the corpus solely to conduct
text and data mining research or
teaching;
(D) The institution uses effective
security measures to prevent
dissemination or downloading of
motion pictures in the corpus, and upon
a reasonable request from a copyright
owner who reasonably believes that
their work is contained in the corpus, or
a trade association representing such
author, provide information to that
copyright owner or trade association
regarding the nature of such measures;
and
(E) The institution limits access to the
corpus to only the persons identified in
paragraph (b)(4)(i)(A) of this section or
to researchers affiliated with other
nonprofit institutions of higher
education, with all access provided only
through secure connections and on the
condition of authenticated credentials,
solely for purposes of text and data
mining research or teaching.
(ii) For purposes of paragraph (b)(4)(i)
of this section:
(A) An institution of higher education
is defined as one that:
(1) Admits regular students who have
a certificate of graduation from a
secondary school or the equivalent of
such a certificate;
(2) Is legally authorized to provide a
postsecondary education program;
(3) Awards a bachelor’s degree or
provides not less than a two-year
program acceptable towards such a
degree;
(4) Is a public or other nonprofit
institution; and
(5) Is accredited by a nationally
recognized accrediting agency or
association.
(B) The term ‘‘effective security
measures’’ is defined as:
(1) Security measures that have been
agreed to by all interested copyright
owners of motion pictures and
institutions of higher education; or
(2) Security measures that the
institution uses to keep its own highly
confidential information secure.
(5)(i) Literary works, excluding
computer programs and compilations
that were compiled specifically for text
and data mining purposes, distributed
electronically where:
(A) The circumvention is undertaken
by a researcher affiliated with a
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nonprofit institution of higher
education, or by a student or
information technology staff member of
the institution at the direction of such
researcher, solely to deploy text and
data mining techniques on a corpus of
literary works for the purpose of
scholarly research and teaching;
(B) The copy of each literary work is
lawfully acquired and owned by the
institution, or licensed to the institution
without a time limitation on access;
(C) The person undertaking the
circumvention or conducting research
or teaching under this exemption views
the contents of the literary works in the
corpus solely to conduct text and data
mining research or teaching;
(D) The institution uses effective
security measures to prevent
dissemination or downloading of
literary works in the corpus, and upon
a reasonable request from a copyright
owner who reasonably believes that
their work is contained in the corpus, or
a trade association representing such
author, provide information to that
copyright owner or trade association
regarding the nature of such measures;
and
(E) The institution limits access to the
corpus to only the persons identified in
paragraph (b)(5)(i)(A) of this section or
to researchers affiliated with other
nonprofit institutions of higher
education, with all access provided only
through secure connections and on the
condition of authenticated credentials,
solely for purposes of text and data
mining research or teaching.
(ii) For purposes of paragraph (b)(5)(i)
of this section:
(A) An institution of higher education
is defined as one that:
(1) Admits regular students who have
a certificate of graduation from a
secondary school or the equivalent of
such a certificate;
(2) Is legally authorized to provide a
post secondary education program;
(3) Awards a bachelor’s degree or
provides not less than a two-year
program acceptable towards such a
degree;
(4) Is a public or other nonprofit
institution; and
(5) Is accredited by a nationally
recognized accrediting agency or
association.
(B) The term ‘‘effective security
measures’’ is defined as:
(1) Security measures that have been
agreed to by all interested copyright
owners of literary works and
institutions of higher education; or
(2) Security measures that the
institution uses to keep its own highly
confidential information secure.
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(6)(i) Literary works or previously
published musical works that have been
fixed in the form of text or notation,
distributed electronically, that are
protected by technological measures
that either prevent the enabling of readaloud functionality or interfere with
screen readers or other applications or
assistive technologies:
(A) When a copy or phonorecord of
such a work is lawfully obtained by an
eligible person, as such a person is
defined in 17 U.S.C. 121; provided,
however, that the rights owner is
remunerated, as appropriate, for the
market price of an inaccessible copy of
the work as made available to the
general public through customary
channels; or
(B) When such a work is lawfully
obtained and used by an authorized
entity pursuant to 17 U.S.C. 121.
(ii) For the purposes of paragraph
(b)(6)(i) of this section, a ‘‘phonorecord
of such a work’’ does not include a
sound recording of a performance of a
musical work unless and only to the
extent the recording is included as part
of an audiobook or e-book.
(7) Literary works consisting of
compilations of data generated by
medical devices or by their personal
corresponding monitoring systems,
where such circumvention is
undertaken by or on behalf of a patient
for the sole purpose of lawfully
accessing data generated by a patient’s
own medical device or monitoring
system. Eligibility for this exemption is
not a safe harbor from, or defense to,
liability under other applicable laws,
including without limitation the Health
Insurance Portability and
Accountability Act of 1996, the
Computer Fraud and Abuse Act of 1986,
or regulations of the Food and Drug
Administration.
(8) Computer programs that enable
wireless devices to connect to a wireless
telecommunications network, when
circumvention is undertaken solely in
order to connect to a wireless
telecommunications network and such
connection is authorized by the operator
of such network.
(9) Computer programs that enable
smartphones and portable all-purpose
mobile computing devices to execute
lawfully obtained software applications,
where circumvention is accomplished
for the sole purpose of enabling
interoperability of such applications
with computer programs on the
smartphone or device, or to permit
removal of software from the
smartphone or device. For purposes of
this paragraph (b)(9), a ‘‘portable allpurpose mobile computing device’’ is a
device that is primarily designed to run
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a wide variety of programs rather than
for consumption of a particular type of
media content, is equipped with an
operating system primarily designed for
mobile use, and is intended to be
carried or worn by an individual.
(10) Computer programs that enable
smart televisions to execute lawfully
obtained software applications, where
circumvention is accomplished for the
sole purpose of enabling interoperability
of such applications with computer
programs on the smart television, and is
not accomplished for the purpose of
gaining unauthorized access to other
copyrighted works. For purposes of this
paragraph (b)(10), ‘‘smart televisions’’
includes both internet-enabled
televisions, as well as devices that are
physically separate from a television
and whose primary purpose is to run
software applications that stream
authorized video from the internet for
display on a screen.
(11) Computer programs that enable
voice assistant devices to execute
lawfully obtained software applications,
where circumvention is accomplished
for the sole purpose of enabling
interoperability of such applications
with computer programs on the device,
or to permit removal of software from
the device, and is not accomplished for
the purpose of gaining unauthorized
access to other copyrighted works. For
purposes of this paragraph (b)(11), a
‘‘voice assistant device’’ is a device that
is primarily designed to run a wide
variety of programs rather than for
consumption of a particular type of
media content, is designed to take user
input primarily by voice, and is
designed to be installed in a home or
office.
(12) Computer programs that enable
routers and dedicated network devices
to execute lawfully obtained software
applications, where circumvention is
accomplished for the sole purpose of
enabling interoperability of such
applications with computer programs
on the router or dedicated network
device, and is not accomplished for the
purpose of gaining unauthorized access
to other copyrighted works. For the
purposes of this paragraph (b)(12),
‘‘dedicated network device’’ includes
switches, hubs, bridges, gateways,
modems, repeaters, and access points,
and excludes devices that are not
lawfully owned.
(13) Computer programs that are
contained in and control the functioning
of a lawfully acquired motorized land
vehicle or marine vessel such as a
personal automobile or boat,
commercial vehicle or vessel, or
mechanized agricultural vehicle or
vessel, except for programs accessed
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through a separate subscription service,
when circumvention is a necessary step
to allow the diagnosis, repair, or lawful
modification of a vehicle or vessel
function, where such circumvention is
not accomplished for the purpose of
gaining unauthorized access to other
copyrighted works. Eligibility for this
exemption is not a safe harbor from, or
defense to, liability under other
applicable laws, including without
limitation regulations promulgated by
the Department of Transportation or the
Environmental Protection Agency.
(14) Computer programs that are
contained in and control the functioning
of a lawfully acquired motorized land
vehicle or marine vessel such as a
personal automobile or boat,
commercial vehicle or vessel, or
mechanized agricultural vehicle or
vessel, except for programs accessed
through a separate subscription service,
to allow vehicle or vessel owners and
lessees, or those acting on their behalf,
to access, store, and share operational
data, including diagnostic and
telematics data, where such
circumvention is not accomplished for
the purpose of gaining unauthorized
access to other copyrighted works.
Eligibility for this exemption is not a
safe harbor from, or defense to, liability
under other applicable laws, including
without limitation regulations
promulgated by the Department of
Transportation or the Environmental
Protection Agency.
(15) Computer programs that are
contained in and control the functioning
of a lawfully acquired device that is
primarily designed for use by
consumers, when circumvention is a
necessary step to allow the diagnosis,
maintenance, or repair of such a device,
and is not accomplished for the purpose
of gaining access to other copyrighted
works. For purposes of this paragraph
(b)(15):
(i) The ‘‘maintenance’’ of a device is
the servicing of the device in order to
make it work in accordance with its
original specifications and any changes
to those specifications authorized for
that device; and
(ii) The ‘‘repair’’ of a device is the
restoring of the device to the state of
working in accordance with its original
specifications and any changes to those
specifications authorized for that
device. For video game consoles,
‘‘repair’’ is limited to repair or
replacement of a console’s optical drive
and requires restoring any technological
protection measures that were
circumvented or disabled.
(16) Computer programs that are
contained in and control the functioning
of lawfully acquired equipment that is
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primarily designed for use in retail-level
commercial food preparation when
circumvention is a necessary step to
allow the diagnosis, maintenance, or
repair of such a device, and is not
accomplished for the purpose of gaining
access to other copyrighted works. For
purposes of this paragraph (b)(16):
(i) The ‘‘maintenance’’ of a device is
the servicing of the device in order to
make it work in accordance with its
original specifications and any changes
to those specifications authorized for
that device; and
(ii) The ‘‘repair’’ of a device is the
restoring of the device to the state of
working in accordance with its original
specifications and any changes to those
specifications authorized for that
device.
(17) Computer programs that are
contained in and control the functioning
of a lawfully acquired medical device or
system, and related data files, when
circumvention is a necessary step to
allow the diagnosis, maintenance, or
repair of such a device or system. For
purposes of this paragraph (b)(17):
(i) The ‘‘maintenance’’ of a device or
system is the servicing of the device or
system in order to make it work in
accordance with its original
specifications and any changes to those
specifications authorized for that device
or system; and
(ii) The ‘‘repair’’ of a device or system
is the restoring of the device or system
to the state of working in accordance
with its original specifications and any
changes to those specifications
authorized for that device or system.
(18)(i) Computer programs, where the
circumvention is undertaken on a
lawfully acquired device or machine on
which the computer program operates,
or is undertaken on a computer,
computer system, or computer network
on which the computer program
operates with the authorization of the
owner or operator of such computer,
computer system, or computer network,
solely for the purpose of good-faith
security research.
(ii) For purposes of paragraph
(b)(18)(i) of this section, ‘‘good-faith
security research’’ means accessing a
computer program solely for purposes of
good-faith testing, investigation, and/or
correction of a security flaw or
vulnerability, where such activity is
carried out in an environment designed
to avoid any harm to individuals or the
public, and where the information
derived from the activity is used
primarily to promote the security or
safety of the class of devices or
machines on which the computer
program operates, or those who use
such devices or machines, and is not
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used or maintained in a manner that
facilitates copyright infringement.
(iii) Good-faith security research that
qualifies for the exemption under
paragraph (b)(18)(i) of this section may
nevertheless incur liability under other
applicable laws, including without
limitation the Computer Fraud and
Abuse Act of 1986, as amended and
codified in title 18, United States Code,
and eligibility for that exemption is not
a safe harbor from, or defense to,
liability under other applicable laws.
(19)(i) Video games in the form of
computer programs embodied in
physical or downloaded formats that
have been lawfully acquired as
complete games, when the copyright
owner or its authorized representative
has ceased to provide access to an
external computer server necessary to
facilitate an authentication process to
enable gameplay, solely for the purpose
of:
(A) Permitting access to the video
game to allow copying and modification
of the computer program to restore
access to the game for personal, local
gameplay on a personal computer or
video game console; or
(B) Permitting access to the video
game to allow copying and modification
of the computer program to restore
access to the game on a personal
computer or video game console when
necessary to allow preservation of the
game in a playable form by an eligible
library, archives, or museum, where
such activities are carried out without
any purpose of direct or indirect
commercial advantage and the video
game is not distributed or made
available outside of the physical
premises of the eligible library, archives,
or museum.
(ii) Video games in the form of
computer programs embodied in
physical or downloaded formats that
have been lawfully acquired as
complete games, that do not require
access to an external computer server
for gameplay, and that are no longer
reasonably available in the commercial
marketplace, solely for the purpose of
preservation of the game in a playable
form by an eligible library, archives, or
museum, where such activities are
carried out without any purpose of
direct or indirect commercial advantage
and the video game is not distributed or
made available outside of the physical
premises of the eligible library, archives,
or museum.
(iii) Computer programs used to
operate video game consoles solely to
the extent necessary for an eligible
library, archives, or museum to engage
in the preservation activities described
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85449
in paragraph (b)(19)(i)(B) or (b)(19)(ii) of
this section.
(iv) For purposes of this paragraph
(b)(19), the following definitions shall
apply:
(A) For purposes of paragraphs
(b)(19)(i)(A) and (b)(19)(ii) of this
section, ‘‘complete games’’ means video
games that can be played by users
without accessing or reproducing
copyrightable content stored or
previously stored on an external
computer server.
(B) For purposes of paragraph
(b)(19)(i)(B) of this section, ‘‘complete
games’’ means video games that meet
the definition in paragraph (b)(19)(iv)(A)
of this section, or that consist of both a
copy of a game intended for a personal
computer or video game console and a
copy of the game’s code that was stored
or previously stored on an external
computer server.
(C) ‘‘Ceased to provide access’’ means
that the copyright owner or its
authorized representative has either
issued an affirmative statement
indicating that external server support
for the video game has ended and such
support is in fact no longer available or,
alternatively, server support has been
discontinued for a period of at least six
months; provided, however, that server
support has not since been restored.
(D) ‘‘Local gameplay’’ means
gameplay conducted on a personal
computer or video game console, or
locally connected personal computers or
consoles, and not through an online
service or facility.
(E) A library, archives, or museum is
considered ‘‘eligible’’ if—
(1) The collections of the library,
archives, or museum are open to the
public and/or are routinely made
available to researchers who are not
affiliated with the library, archives, or
museum;
(2) The library, archives, or museum
has a public service mission;
(3) The library, archives, or museum’s
trained staff or volunteers provide
professional services normally
associated with libraries, archives, or
museums;
(4) The collections of the library,
archives, or museum are composed of
lawfully acquired and/or licensed
materials; and
(5) The library, archives, or museum
implements reasonable digital security
measures as appropriate for the
activities permitted by this paragraph
(b)(19).
(20)(i) Computer programs, except
video games, that have been lawfully
acquired and that are no longer
reasonably available in the commercial
marketplace, solely for the purpose of
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lawful preservation of a computer
program, or of digital materials
dependent upon a computer program as
a condition of access, by an eligible
library, archives, or museum, where
such activities are carried out without
any purpose of direct or indirect
commercial advantage. Any electronic
distribution, display, or performance
made outside of the physical premises
of an eligible library, archives, or
museum of works preserved under this
paragraph may be made to only one user
at a time, for a limited time, and only
where the library, archives, or museum
has no notice that the copy would be
used for any purpose other than private
study, scholarship, or research.
(ii) For purposes of the exemption in
paragraph (b)(20)(i) of this section, a
library, archives, or museum is
considered ‘‘eligible’’ if—
(A) The collections of the library,
archives, or museum are open to the
public and/or are routinely made
available to researchers who are not
affiliated with the library, archives, or
museum;
(B) The library, archives, or museum
has a public service mission;
(C) The library, archives, or museum’s
trained staff or volunteers provide
professional services normally
associated with libraries, archives, or
museums;
(D) The collections of the library,
archives, or museum are composed of
lawfully acquired and/or licensed
materials; and
(E) The library, archives, or museum
implements reasonable digital security
measures as appropriate for the
activities permitted by this paragraph
(b)(20).
(iii) For purposes of paragraph (b)(20)
of this section, the phrase ‘‘one user at
a time’’ means that for each copy of a
work lawfully owned by an eligible
library, archives, or museum and
preserved under paragraph (b)(20)(i) of
this section, such library, archives, or
museum may make an electronic
distribution, display, or performance of
that work outside of its physical
premises. An eligible library, archives,
or museum may make each copy of such
lawfully owned and preserved work
available to different users
simultaneously. This provision does not
permit an eligible library, archives, or
museum to make multiple,
simultaneous copies of the same copy of
a work for the purposes of providing
users access to the work.
(21) Computer programs that operate
3D printers that employ technological
measures to limit the use of material,
when circumvention is accomplished
solely for the purpose of using
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alternative material and not for the
purpose of accessing design software,
design files, or proprietary data.
(22) Computer programs, solely for
the purpose of investigating a potential
infringement of free and open source
computer programs where:
(i) The circumvention is undertaken
on a lawfully acquired device or
machine other than a video game
console, on which the computer
program operates;
(ii) The circumvention is performed
by, or at the direction of, a party that has
a good-faith, reasonable belief in the
need for the investigation and has
standing to bring a breach of license or
copyright infringement claim;
(iii) Such circumvention does not
constitute a violation of applicable law;
and
(iv) The copy of the computer
program, or the device or machine on
which it operates, is not used or
maintained in a manner that facilitates
copyright infringement.
*
*
*
*
*
Dated: October 18, 2024.
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2024–24563 Filed 10–25–24; 8:45 am]
BILLING CODE 1410–30–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[Docket No. FRA–2024–0034]
RIN 2130–AC98
Federal Railroad Administration
Accident/Incident Investigation Policy
for Gathering Information and
Consulting With Stakeholders;
Correction
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule; correction.
AGENCY:
On October 1, 2024, FRA
published a final rule amending its
Accident/Incident Regulations
governing reporting, classification, and
investigations to codify FRA’s policy for
gathering information from, and
consulting with, stakeholders during an
accident/incident investigation. The
published final rule contains errors in
the preamble text. FRA is correcting
those errors so that the final rule
conforms to FRA’s intent.
DATES: Effective on November 15, 2024.
FOR FURTHER INFORMATION CONTACT:
Senya Waas, Senior Attorney, Office of
SUMMARY:
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the Chief Counsel, FRA, telephone: 202–
875–4158 or email: senyaann.waas@
dot.gov.
In FR
document 2024–22326 beginning on
page 79767 in the Federal Register of
October 1, 2024, make the following
corrections:
1. On page 79767, in the first and
second columns, correct the DATES
section to read:
DATES: Effective date: This final rule is
effective on November 15, 2024, unless
FRA receives adverse, substantive
comment by October 31, 2024. If no
adverse, substantive comments are
received, FRA will publish a notice in
the Federal Register indicating that no
adverse comment was received and
confirming that the rule will become
effective on November 15, 2024.
2. On page 79768, in the first column,
correct the first paragraph to read:
FRA is publishing this rule without a
prior proposed rule under FRA’s direct
final rulemaking procedures in 49 CFR
211.33 because it views this as a
noncontroversial action that generally
codifies FRA’s current process for
accident/incident investigations. Under
the Administrative Procedure Act
(APA), an agency may waive the normal
notice and comment procedures if the
action is a rule of agency organization,
procedure, or practice. 5 U.S.C.
553(b)(3)(A). Additionally, under the
APA, an agency may waive notice and
comment procedures when the agency
for good cause finds that notice and
public procedure are impracticable,
unnecessary, or contrary to the public
interest. 5 U.S.C. 553(b)(3)(B). As noted
above, this rule would codify FRA’s
procedures for accident/incident
investigations and FRA has already
worked with stakeholders (both labor
and the rail organizations) to develop
the Policy Document which is posted on
FRA’s website. Accordingly, FRA finds
that notice and comment are
unnecessary and anticipates no adverse,
substantive comment on any of the
provisions of the rule. If FRA receives
an adverse, substantive comment on any
of the provisions, it will publish in the
Federal Register a timely withdrawal,
informing the public that the direct final
rule will not take effect.
3. In the Section-by-Section Analysis,
on page 79769, in the 2nd column,
correct the fourth paragraph to read:
Previous paragraphs (b), (c), (d), (e),
and (f) remain substantively unchanged
but are being redesignated as paragraphs
(a)(2) through (6).
4. Under Regulatory Impact and
Notices, on page 79770, correct table 1
to read as follows:
SUPPLEMENTARY INFORMATION:
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TABLE 1—TOTAL COSTS OF THE DIRECT FINAL RULE
[2023 Dollars] *
Total
stakeholder
costs
Year
Total
government
costs
Discounted
7%
Total costs
Discounted
3%
Discounted
2%
1 .........................................................................
2 .........................................................................
3 .........................................................................
4 .........................................................................
5 .........................................................................
6 .........................................................................
7 .........................................................................
8 .........................................................................
9 .........................................................................
10 .......................................................................
$97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
$19,753
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
$117,675
108,463
108,463
108,463
108,463
108,463
108,463
108,463
108,463
108,463
$117,675
101,367
94,736
88,538
82,746
77,333
72,273
67,545
63,126
58,997
$117,675
105,304
102,237
99,259
96,368
93,561
90,836
88,190
85,622
83,128
$117,675
106,336
104,251
102,207
100,203
98,238
96,312
94,424
92,572
90,757
Total ............................................................
979,220
114,622
1,093,842
824,336
962,180
1,002,975
Note: This table and some others throughout this analysis may not sum due to rounding.
* All figures are presented in a 2023 base year unless otherwise noted.
5. Under Regulatory Impact and
Notices, on page 79774, correct the
paragraph before table 13 and the table
to read as follows:
Total Costs
stakeholders for this rule. Table 13
displays the total costs to stakeholders
for this final rule.
FRA estimates a total 10-year cost of
$0.9 million (PV, 2 percent) to
TABLE 13—TOTAL 10-YEAR COST TO STAKEHOLDERS
Investigation
participation
Document
submission
Total
stakeholder
costs
Discounted
7%
Discounted
3%
Discounted
2%
Year
Travel
1 .......................................................
2 .......................................................
3 .......................................................
4 .......................................................
5 .......................................................
6 .......................................................
7 .......................................................
8 .......................................................
9 .......................................................
10 .....................................................
$29,215
29,215
29,215
29,215
29,215
29,215
29,215
29,215
29,215
29,215
$56,861
56,861
56,861
56,861
56,861
56,861
56,861
56,861
56,861
56,861
$11,846
11,846
11,846
11,846
11,846
11,846
11,846
11,846
11,846
11,846
$97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
$97,922
91,516
85,529
79,934
74,704
69,817
65,250
60,981
56,991
53,263
$97,922
95,070
92,301
89,613
87,002
84,468
82,008
79,620
77,301
75,049
$97,922
96,002
94,120
92,274
90,465
88,691
86,952
85,247
83,575
81,937
Total ..........................................
292,150
568,610
118,460
979,220
735,907
860,354
897,185
6. Under Regulatory Impact and
Notices, on page 79774, correct the
paragraph above table 14 and the table
to read as follows:
Total Costs
this rule. Table 14 displays the total
costs to FRA for this final rule.
FRA estimates a total 10-year cost of
$0.1 million (PV, 2 percent) to FRA for
TABLE 14—TOTAL 10-YEAR COST TO FRA
lotter on DSK11XQN23PROD with RULES1
Year
Notifications
Outreach/
training
Documentation
review
Document
sharing site
Total
government
costs
Discounted
7%
Discounted
3%
Discounted
2%
1 ....................................................
2 ....................................................
3 ....................................................
4 ....................................................
5 ....................................................
6 ....................................................
7 ....................................................
8 ....................................................
9 ....................................................
10 ..................................................
$929
929
929
929
929
929
929
929
929
929
$631
631
631
631
631
631
631
631
631
631
$6,311
6,311
6,311
6,311
6,311
6,311
6,311
6,311
6,311
6,311
$11,882
2,670
2,670
2,670
2,670
2,670
2,670
2,670
2,670
2,670
$19,753
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
$19,753
9,851
9,207
8,605
8,042
7,516
7,024
6,564
6,135
5,734
$19,753
10,234
9,936
9,647
9,366
9,093
8,828
8,571
8,321
8,079
$19,753
10,334
10,132
9,933
9,738
9,547
9,360
9,177
8,997
8,820
Total .......................................
9,290
6,310
63,110
35,912
114,622
88,431
101,828
105,791
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E:\FR\FM\28OCR1.SGM
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85452
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
7. Under Regulatory Impact and
Notices, on page 79775, correct the
paragraph above table 15 and the table
to read as follows:
Total Costs
FRA estimates a total 10-year cost of
$1.0 million (PV, 2 percent) for this
direct final rule, shown in Table 15.
TABLE 15—10-YEAR TOTAL COSTS
Total
stakeholder
costs
Year
Total costs
Discounted
7%
Discounted
3%
Discounted
2%
1 .........................................................................
2 .........................................................................
3 .........................................................................
4 .........................................................................
5 .........................................................................
6 .........................................................................
7 .........................................................................
8 .........................................................................
9 .........................................................................
10 .......................................................................
$97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
$19,753
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
$117,675
108,463
108,463
108,463
108,463
108,463
108,463
108,463
108,463
108,463
$117,675
101,367
94,736
88,538
82,746
77,333
72,273
67,545
63,126
58,997
$117,675
105,304
102,237
99,259
96,368
93,561
90,836
88,190
85,622
83,128
$117,675
106,336
104,251
102,207
100,203
98,238
96,312
94,424
92,572
90,757
Total ............................................................
979,220
114,622
1,093,842
824,336
962,180
1,002,975
Issued in Washington, DC.
Allison Ishihara Fultz,
Chief Counsel, Federal Railroad
Administration.
[FR Doc. 2024–24967 Filed 10–25–24; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 635
[Docket No. 220919–0193]
RTID 0648–XE334
Atlantic Highly Migratory Species;
Atlantic Bluefin Tuna Fisheries;
Closure of the General Category
October Through November Fishery
for 2024
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
NMFS closes the General
category fishery for Atlantic bluefin
tuna (BFT) for the remainder of the
October through November time period.
The General category may only retain,
possess, or land large medium and giant
(i.e., measuring 73 inches (185
centimeters (cm) curved fork length
(CFL) or greater) BFT when the fishery
is open. This action applies to Atlantic
Tunas General category (commercial)
permitted vessels and Atlantic highly
migratory species (HMS) Charter/
Headboat permitted vessels with a
commercial sale endorsement when
SUMMARY:
lotter on DSK11XQN23PROD with RULES1
Total
government
costs
VerDate Sep<11>2014
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Jkt 265001
fishing commercially for BFT. This
action also waives the previously
scheduled restricted-fishing days (RFDs)
for the remainder of the October through
November time period. With the RFDs
waived during the closure, fishermen
aboard General category permitted
vessels and HMS Charter/Headboat
permitted vessels may tag and release
BFT of all sizes, subject to the
requirements of catch-and-release and
tag-and-release programs. On December
1, 2024, the fishery will reopen
automatically.
DATES: Effective 11:30 p.m., local time,
October 24, 2024, through November 30,
2024.
FOR FURTHER INFORMATION CONTACT:
Becky Curtis ([email protected])
and Larry Redd, Jr. (larry.redd@
noaa.gov) by email or by phone at 301–
427–8503.
SUPPLEMENTARY INFORMATION: Atlantic
BFT fisheries are managed under the
2006 Consolidated HMS Fishery
Management Plan (FMP) and its
amendments, pursuant to the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act; 16 U.S.C. 1801
et seq.) and consistent with the Atlantic
Tunas Convention Act (ATCA; 16 U.S.C.
971 et seq.). HMS implementing
regulations are at 50 CFR part 635.
Section 635.27(a) divides the U.S. BFT
quota, established by the International
Commission for the Conservation of
Atlantic Tunas (ICCAT) and as
implemented by the United States
among the various domestic fishing
categories, per the allocations
established in the 2006 Consolidated
HMS FMP and its amendments. NMFS
is required under the Magnuson-Stevens
PO 00000
Frm 00030
Fmt 4700
Sfmt 4700
Act at 16 U.S.C. 1854(g)(1)(D) to provide
U.S. fishing vessels with a reasonable
opportunity to harvest quotas under
relevant international fishery
agreements such as the ICCAT
Convention, which is implemented
domestically pursuant to ATCA.
Under § 635.28(a)(1), NMFS files a
closure action with the Office of the
Federal Register for publication when a
BFT quota (or subquota) is reached or is
projected to be reached. Retaining,
possessing, or landing BFT under that
quota category is prohibited on or after
the effective date and time of a closure
action for that category until the
opening of the relevant subsequent
quota period or until such date as
specified.
As described in § 635.27(a), the
current baseline U.S. BFT quota is
1,316.14 metric tons (mt) (not including
the 25 mt ICCAT allocated to the United
States to account for bycatch of BFT in
pelagic longline fisheries in the
Northeast Distant Gear Restricted Area
per § 635.27(a)(3)). The General category
baseline quota is 710.7 mt. The General
category baseline quota is suballocated
to different time periods. Relevant to
this action, the baseline subquota for the
October through November time period
is 92.4 mt. Effective October 2, 2024,
NMFS transferred 100 mt from the
Reserve category to the General category
October through November time period,
resulting in an adjusted October through
November time period subquota of
192.4 mt (89 FR 81032, October 7,
2024).
E:\FR\FM\28OCR1.SGM
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
Closure of the October Through
November 2024 BFT General Category
Fishery
To date, reported landings for the BFT
General category October through
November time period total 170.9 mt.
Based on these landings data, including
average daily catch rates, as well as
anticipated favorable fishing conditions
in the coming days, NMFS has
determined that the adjusted October
through November time period subquota
of 192.4 mt is projected to be reached
and exceeded shortly. Therefore,
retaining, possessing, or landing large
medium or giant (i.e., measuring 73
inches (185 cm) CFL or greater) BFT by
persons aboard vessels permitted in the
Atlantic Tunas General category and
HMS Charter/Headboat permitted
vessels (while fishing commercially)
must cease at 11:30 p.m. local time on
October 24, 2024. The BFT General
category will automatically reopen
December 1, 2024, for the December
time period with a retention limit of one
large medium or giant BFT per vessel
per day/trip. This action applies to
Atlantic Tunas General category
(commercial) permitted vessels and
HMS Charter/Headboat permitted
vessels with a commercial sale
endorsement when fishing
commercially for BFT and is taken
consistent with the regulations at
§ 635.28(a)(1).
lotter on DSK11XQN23PROD with RULES1
Waiver for Remaining October Through
November RFDs
On May 31, 2024 (89 FR 47095),
NMFS published a final rule that,
among other things, implemented RFDs
every Sunday, Tuesday, Friday, and
Saturday from July 1 through November
30, 2024. Since the fishery will be
closed for the remainder of the October
through November time period, NMFS
has decided to waive the previouslyscheduled RFDs for the remainder of
that time period.
With the RFDs waived during a
closure, consistent with § 635.23(a)(7),
fishermen aboard General category
permitted vessels and HMS Charter/
Headboat permitted vessels may tag and
release BFT of all sizes, subject to the
requirements of the catch-and-release
and tag-and-release programs described
at § 635.26(a). All BFT that are released
must be handled in a manner that will
maximize their survival, and without
removing the fish from the water,
consistent with requirements at
§ 635.21(a)(1). For additional
information on safe handling, see the
‘‘Careful Catch and Release’’ brochure
available at https://
www.fisheries.noaa.gov/resource/
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15:57 Oct 25, 2024
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outreach-and-education/careful-catchand-release-brochure/.
Monitoring and Reporting
NMFS will continue to monitor the
BFT fisheries closely. Per
§ 635.5(b)(2)(i)(A), dealers are required
to submit landing reports within 24
hours of a dealer receiving BFT. Late
reporting by dealers compromises
NMFS’ ability to timely implement
actions such as quota and retention
limit adjustments, as well as closures,
and may result in enforcement actions.
Additionally, and separate from the
dealer reporting requirement, General
and HMS Charter/Headboat category
vessel owners are required per
§ 635.5(a)(4) to report their own catch of
all BFT retained or discarded dead
within 24 hours of the landing(s) or end
of each trip, by accessing https://
hmspermits.noaa.gov, using the HMS
Catch Reporting app, or calling 888–
872–8862 (Monday through Friday from
8 a.m. until 4:30 p.m.).
After the fishery reopens on December
1, depending on the level of fishing
effort and catch rates of BFT at that
time, NMFS may determine that
additional adjustments are necessary to
ensure available subquotas are not
exceeded or to enhance scientific data
collection from, and fishing
opportunities in, all geographic areas as
specified under § 635.27(a)(7). If
needed, subsequent adjustments will be
published in the Federal Register. In
addition, fishermen may access https://
hmspermits.noaa.gov, for updates on
quota monitoring and inseason
adjustments.
Classification
NMFS issues this action pursuant to
section 305(d) of the Magnuson-Stevens
Act (16 U.S.C. 1855(d)) and regulations
at 50 CFR part 635 and this action is
exempt from review under Executive
Order 12866.
The Assistant Administrator for
NMFS (AA) finds that pursuant to 5
U.S.C. 553(b)(B), it is impracticable and
contrary to the public interest to provide
prior notice of, and an opportunity for
public comment on this action, for the
following reasons. Specifically, the
regulations implementing the 2006
Consolidated HMS FMP and
amendments provide for inseason
retention limit adjustments and fishery
closures to respond to the unpredictable
nature of BFT availability on the fishing
grounds, the migratory nature of this
species, and the regional variations in
the BFT fishery. Providing for prior
notice and an opportunity to comment
is impracticable and contrary to the
public interest as this fishery is
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Fmt 4700
Sfmt 4700
85453
currently underway and, based on the
most recent landings information, the
available time period subquota is
projected to be reached shortly.
Delaying this action could result in BFT
landings that exceed the October
through November time period
subquota, which may result in future
potential quota reductions for other BFT
categories, depending on the magnitude
of a potential overharvest. Taking this
action does not raise conservation and
management concerns and would
support effective management of the
BFT fishery. NMFS notes that the public
had an opportunity to comment on the
underlying rulemakings that established
the U.S. BFT quota and the inseason
adjustment and closure criteria.
For all of the above reasons, the AA
also finds that pursuant to 5 U.S.C.
553(d), there is good cause to waive the
30-day delay in effective date.
Authority: 16 U.S.C. 971 et seq. and 1801
et seq.
Dated: October 23, 2024.
Karen H. Abrams,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2024–25020 Filed 10–23–24; 4:15 pm]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[RTID 0648–XD487]
Amendment 8 Revisions to Essential
Fish Habitat in the Fishery
Management Plan for U.S. West Coast
Fisheries for Highly Migratory Species
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notification of agency decision.
AGENCY:
NMFS announces the
approval of amendment 8 to the Fishery
Management Plan (FMP) for the U.S.
West Coast Highly Migratory Species
(HMS). This amendment updates
essential fish habitat (EFH) provisions
in the existing HMS FMP. This
amendment promotes the goals and
objectives of the Magnuson-Stevens
Fishery Conservation and Management
Act (MSA) which requires periodic
review and revision of EFH components
of FMPs as warranted based on available
information.
DATES: The amendment was approved
on October 21, 2024.
SUMMARY:
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
Electronic copies of the
amendment may be obtained from
https://www.regulations.gov or the West
Coast Region website at https://
www.fisheries.noaa.gov/action/
amendment-8-revisions-essential-fishhabitat-fishery-management-plan-uswest-coast-highly. Additional
documents can be found on the
Council’s website at https://
www.pcouncil.org.
FOR FURTHER INFORMATION CONTACT:
Nicole Nasby-Lucas at (858) 334–2826,
[email protected], or Eric
Chavez at (562) 980–4064, eric.chavez@
noaa.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
lotter on DSK11XQN23PROD with RULES1
Background
The MSA requires that each regional
fishery management council submit any
FMP amendment it prepares to NMFS
for review and approval, disapproval, or
partial approval by the Secretary (16
U.S.C. 1854(a)). NMFS manages the
HMS fisheries off the U.S. Pacific Coast
under the HMS FMP. The Pacific
Fishery Management Council (Council)
prepared the FMP under the authority of
the MSA, 16 U.S.C. 1801 et seq.
Regulations governing U.S. fisheries and
implementing the FMPs appear at 50
CFR parts 600 and 660.
The MSA mandates that each FMP
describe and identify EFH for the
fishery (16 U.S.C. 1853(7)). EFH is
defined as ‘‘those waters and substrate
necessary to fish for spawning,
breeding, feeding or growth to maturity’’
(16 U.S.C. 1802(10)). Under this
authority, NMFS and the Council have
developed a comprehensive strategy to
conserve EFH. This includes
incorporating EFH into each of the
Council’s FMPs, identifying fishing and
non-fishing impacts and associated
conservation recommendations, and
other required EFH elements. EFH
requirements and the process for
periodic EFH reviews are described in
the EFH regulations at 50 CFR
600.815(a). EFH components for each
management unit species (MUS) were
included in appendix A to the Final
Environmental Impact Statement when
NMFS approved the HMS FMP in 2004
and have not been reviewed since that
time.
This FMP amendment includes eight
major components that (1) update the
description and identification of EFH,
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15:57 Oct 25, 2024
Jkt 265001
(2) include new maps for each MUS in
the HMS FMP, (3) update information
on life history, (4) update information
on fishing impacts, (5) update
information on non-fishing impacts and
conservation measures, (6) update text
on habitat areas of particular concern
(HAPCs), (7) update research and
information needs, and (8) add a
reference to Council’s Operating
Procedure 22 as a description of the
review and revision process. The
revised FMP text and appendix F
include supporting information and
rationale for the modifications adopted
by the Council.
Further detail describing the
amendments was provided in the Notice
of Availability (NOA) for this action and
is not repeated here.
Procedural Aspects of the Amendment
The Council submitted the
amendments to the Secretary for review
on June 28, 2024. On July 24, 2024,
NMFS published the NOA for the
amendment and requested public
review and comment (87 FR 21603).
Public comments were received
pertaining to the HMS FMP amendment
and are addressed below.
The amendment does not add any
new reporting requirements and does
not change any regulatory requirements.
Therefore, no proposed or final rule was
prepared. This action only adds to or
updates HMS EFH provisions in the
HMS FMP.
Comments and Responses
NMFS received seven comments
during the comment period on
amendment 8 revisions to EFH in the
HMS FMP, which ended on September
23, 2024. Six comments were in support
of the amendment, and two of those
encouraged consideration of HAPCs.
One of the comments was outside of the
scope of this action.
Comments 1–4: The commenters
expressed support for the amendment as
a fishery management tool for the
protection of species, including the
creation of new maps, advisories on
fishing impact, and recognition of needs
for additional research.
Response: NMFS thanks the
commenters for the support of this
amendment. NMFS agrees that the
updated maps will help achieve the
overall EFH objectives of supporting a
PO 00000
Frm 00032
Fmt 4700
Sfmt 9990
sustainable fishery and the managed
species’ contribution to a healthy
ecosystem. NMFS agrees that it is
important to identify any potential
adverse effects on EFH from fishing
activities, including lost fishing gear
and discharge of processing waste, and
whether any additional measures are
needed to address those adverse effects.
NMFS also agrees that additional
research is needed to improve our
understanding of fish habitats, the
functions they provide, and adverse
effects from both fishing and nonfishing activities.
Comments 5–6: The commenters
expressed support for the amendment
and reaffirmed the importance of
updating information, identifying
fishing and non-fishing impacts, and
considering HAPCs. One commenter
was concerned about the risk of
delaying protective measures for
vulnerable areas, such as shark
nurseries and migratory corridors.
Response: NMFS thanks the
commenters for the support of this
amendment. NMFS agrees that updating
species information is important
particularly since newer information is
based on current fishery-independent
information that was not available when
the original EFH descriptions were
adopted. NMFS agrees that it is
important to identify potential adverse
effects on EFH from fishing and nonfishing activities that may adversely
affect HMS EFH along with any
appropriate conservation measures.
NMFS also agrees with the importance
of HAPCs, although none were proposed
at this time. Available data do not point
to a focused pupping ground for sharks
and available electronic tagging data
across species reveals no specific
migratory pathway within the U.S.
Exclusive Economic Zone. However, we
recommend additional research to
collect more information that could
inform consideration of HAPCs in the
future.
Authority: 16 U.S.C. 1801 et seq.
Dated: October 21, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2024–24869 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–22–P
E:\FR\FM\28OCR1.SGM
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85455
Proposed Rules
Federal Register
Vol. 89, No. 208
Monday, October 28, 2024
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
Proposed Amendment of Class C
Airspace at Palm Beach International
Airport, FL; Public Meeting
Federal Aviation
Administration (FAA), DOT.
ACTION: Notification of meeting.
AGENCY:
This document announces a
fact-finding informal airspace meeting
regarding a plan to amend Class C
Airspace at Palm Beach International
Airport, FL (KPBI). The purpose of the
meeting is to solicit aeronautical
comments on the proposal’s effects on
local aviation operations. All comments
received during the meeting, and the
subsequent comment period, will be
considered prior to the issuance of a
notice of proposed rulemaking (NPRM).
DATES: The meeting will be held on
Thursday, December 5, 2024, from 5
p.m. to 7 p.m. (Eastern Time).
Comments must be received on or
before January 4, 2025.
Format: This will be a virtual
informal airspace meeting using the
Zoom teleconferencing tool. The
meeting will also be recorded and
available to watch on the FAA YouTube
social media channel.
ADDRESSES: Comments: Send comments
on the proposal to: Matthew Cathcart,
Manager, Operations Support Group,
Eastern Service Center, Air Traffic
Organization, Federal Aviation
Administration, 1701 Columbia Avenue,
College Park, GA 30337; or via email to:
[email protected].
FOR FURTHER INFORMATION CONTACT:
Mark Siviglia, Acting Air Traffic
Manager, Palm Beach Airport Traffic
Control Tower, 3550 Belvedere Rd.,
West Palm Beach, FL 33406. Telephone
Number (561) 275–1401, Email:
[email protected].
SUPPLEMENTARY INFORMATION:
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SUMMARY:
VerDate Sep<11>2014
16:25 Oct 25, 2024
Jkt 265001
Meeting Procedures
The meeting will provide interested
parties an opportunity to present views,
recommendations, and comments on the
proposed airspace.
(a) Registration: To attend the
meeting, the public can register here:
https://airportnetwork.zoom.us/
webinar/register/WN_v-ZwjHMtTc6DxR
jewMawAg.
(b) The meeting will be open to all
persons on a space-available basis.
There will be no admission fee or other
charge to attend and participate. The
meeting will be informal in nature and
will be conducted by one or more
representatives of the FAA Eastern
Service Area. A representative from the
FAA will present a briefing on the
planned airspace modifications.
(c) Each participant will be given an
opportunity to deliver comments or
make a presentation, although a time
limit may be imposed to accommodate
closing times. Only comments
concerning the plan to amend the Palm
Beach International Airport Class C
airspace area will be accepted.
(d) Each person wishing to make a
presentation will be asked to note their
intent when registering for the meeting
so those time frames can be established.
This meeting will not be adjourned until
everyone registered to speak has had an
opportunity to address the panel. This
meeting may be adjourned at any time
if all persons present have had an
opportunity to speak.
(e) Position papers or other handout
material relating to the substance of the
meeting will be accepted. Participants
submitting papers or handout materials
should send them to the mail or email
address noted in the COMMENTS
section, above.
(f) This meeting will be formally
recorded and available on the FAA
YouTube channel. A summary of the
comments made at the meeting will be
filed in the rulemaking docket.
Information gathered through this
meeting will assist the FAA in drafting
a NPRM that would be published in the
Federal Register. The public will be
afforded the opportunity to comment on
any NPRM published on this matter.
A graphic depiction of the proposed
airspace modifications may be viewed at
the following URL: www.faa.gov/go/
palmbeach.
Agenda for the Meeting
• Presentation of Meeting Procedures
PO 00000
Frm 00001
Fmt 4702
Sfmt 4702
• Informal Presentation of the proposed
amendment to the Class C Airspace
area
• Public Presentations
• Discussions and Questions
• Closing Comments
Authority: 49 U.S.C. 106(f), 106(g);
40103, 40113, 40120; E.O. 10854, 24 FR
9565, 3 CFR, 1959–1963 Comp., p. 389.
Issued in Washington, DC, on October 22,
2024.
Frank Lias,
Manager, Rules and Regulations Group.
[FR Doc. 2024–24935 Filed 10–25–24; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA–2024–2352; Airspace
Docket No. 24–AEA–4]
RIN 2120–AA66
Establishment of United States Area
Navigation Route Q–161 and
Amendment of United States Area
Navigation Routes Q–97, Q–133, Q–
437, Q–439, Q–445, and Q–481; Eastern
United States
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
This action proposes to
establish United States Area Navigation
(RNAV) Route Q–161 and amend RNAV
Routes Q–97, Q–133, Q–437, Q–439, Q–
445, and Q–481 in the eastern United
States. This action supports the
Northeast Corridor Atlantic Coast Route
(NEC ACR) Optimization Project to
improve the efficiency of the National
Airspace System (NAS).
DATES: Comments must be received on
or before December 12, 2024.
ADDRESSES: Send comments identified
by FAA Docket No. FAA–2024–2352
and Airspace Docket No. 24–AEA–4
using any of the following methods:
* Federal eRulemaking Portal: Go to
www.regulations.gov and follow the
online instructions for sending your
comments electronically.
* Mail: Send comments to Docket
Operations, M–30; U.S. Department of
Transportation, 1200 New Jersey
SUMMARY:
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
Avenue SE, Room W12–140, West
Building Ground Floor, Washington, DC
20590–0001.
* Hand Delivery or Courier: Take
comments to Docket Operations in
Room W12–140 of the West Building
Ground Floor at 1200 New Jersey
Avenue SE, Washington, DC, between 9
a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
* Fax: Fax comments to Docket
Operations at (202) 493–2251.
Docket: Background documents or
comments received may be read at
www.regulations.gov at any time.
Follow the online instructions for
accessing the docket or go to the Docket
Operations in Room W12–140 of the
West Building Ground Floor at 1200
New Jersey Avenue SE, Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FAA Order JO 7400.11J, Airspace
Designations and Reporting Points, and
subsequent amendments can be viewed
online at www.faa.gov/air_traffic/
publications/. You may also contact the
Rules and Regulations Group, Policy
Directorate, Federal Aviation
Administration, 600 Independence
Avenue SW, Washington, DC 20597;
telephone: (202) 267–8783.
FOR FURTHER INFORMATION CONTACT:
Brian Vidis, Rules and Regulations
Group, Policy Directorate, Federal
Aviation Administration, 600
Independence Avenue SW, Washington,
DC 20597; telephone: (202) 267–8783.
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking
lotter on DSK11XQN23PROD with PROPOSALS1
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority. This rulemaking is
promulgated under the authority
described in Subtitle VII, Part A,
Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of the airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This regulation is within the
scope of that authority as it amends the
route structure to maintain the efficient
flow of air traffic within the NAS.
Comments Invited
The FAA invites interested persons to
participate in this rulemaking by
submitting written comments, data, or
views. Comments are specifically
invited on the overall regulatory,
aeronautical, economic, environmental,
VerDate Sep<11>2014
16:25 Oct 25, 2024
Jkt 265001
and energy-related aspects of the
proposal. The most helpful comments
reference a specific portion of the
proposal, explain the reason for any
recommended change, and include
supporting data. To ensure the docket
does not contain duplicate comments,
commenters should submit only one
time if comments are filed
electronically, or commenters should
send only one copy of written
comments if comments are filed in
writing.
The FAA will file in the docket all
comments it receives, as well as a report
summarizing each substantive public
contact with FAA personnel concerning
this proposed rulemaking. Before acting
on this proposal, the FAA will consider
all comments it receives on or before the
closing date for comments. The FAA
will consider comments filed after the
comment period has closed if it is
possible to do so without incurring
expense or delay. The FAA may change
this proposal in light of the comments
it receives.
Privacy: In accordance with 5 U.S.C.
553(c), DOT solicits comments from the
public to better inform its rulemaking
process. DOT posts these comments,
without edit, including any personal
information the commenter provides, to
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
www.dot.gov/privacy.
Availability of Rulemaking Documents
An electronic copy of this document
may be downloaded through the
internet at www.regulations.gov.
Recently published rulemaking
documents can also be accessed through
the FAA’s web page at www.faa.gov/air_
traffic/publications/airspace_
amendments/.
You may review the public docket
containing the proposal, any comments
received and any final disposition in
person in the Dockets Operations office
(see ADDRESSES section for address,
phone number, and hours of
operations). An informal docket may
also be examined during normal
business hours at the office of the
Eastern Service Center, Federal Aviation
Administration, Room 210, 1701
Columbia Avenue, College Park, GA,
30337.
Incorporation by Reference
United States Area Navigation Routes
(Q-Routes) are published in paragraph
2006 of FAA Order JO 7400.11, Airspace
Designations and Reporting Points,
which is incorporated by reference in 14
CFR 71.1 on an annual basis. This
document proposes to amend the
PO 00000
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Fmt 4702
Sfmt 4702
current version of that order, FAA Order
JO 7400.11J, dated July 31, 2024, and
effective September 15, 2024. These
updates would be published in the next
update to FAA Order JO 7400.11. That
order is publicly available as listed in
the ADDRESSES section of this document.
FAA Order JO 7400.11J lists Class A,
B, C, D, and E airspace areas, air traffic
service routes, and reporting points.
The Proposal
The FAA is proposing an amendment
to 14 CFR part 71 to establish RNAV
Route Q–161 and amend RNAV Routes
Q–97, Q–133, Q–437, Q–439, Q–445,
and Q–481 in the eastern United States
This action supports the NEC ACR
Optimization Project to improve the
efficiency of the NAS. The proposed
route changes are described below.
Additionally, the FAA identified that
the route descriptions of RNAV Routes
Q–133 and Q–437 list the KALDA, VA;
VILLS, NJ; and LLUND, NY route points
as Fixes, in error. These route points
were modified on June 20, 2023, from a
Fix to become a waypoint (WP). The
KALDA, VILLS, and LLUND route
points are identified as a WP in the
National Airspace System Resource
(NASR) database and charted as a WP
accordingly. This proposal would
correct these errors and refer to the
KALDA, VILLS, and LLUND route
points as a WP.
In place of a two-letter state
abbreviation for multiple listed route
points in route descriptions the ‘‘OA’’
means ‘‘Offshore Atlantic’’.
Q–97: Q–97 currently extends
between the TOVAR, FL, WP and the
Presque Isle, ME (PQI), Very High
Frequency Omnidirectional Range/
Distance Measuring Equipment (VOR/
DME). The FAA proposes to remove the
BYSEL, MD, WP from the route
description as it is a turn of less than
one degree. Additionally, the FAA
proposes to add six route points
between the ZJAAY, MD, WP and the
Calverton, NY (CCC), VOR/DME. The
route points that would be added are the
PAJET, DE, WP; CAANO, DE, WP;
TBONN, OA, WP; ZIZZI, NJ, WP;
YAZUU, NJ, WP; and HEADI, NJ, WP.
The proposed route modification would
move RNAV Route Q–97 to the east to
eliminate traffic conflicts between
aircraft flying southbound on RNAV
Route Q–97 and aircraft flying
northbound on RNAV Route Q–439
descending into the New York and
Connecticut areas. As amended, the
route would continue to extend between
the TOVAR WP and the Presque Isle
VOR/DME.
Q–133: Q–133 currently extends
between the CHIEZ, NC, WP and the
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PONCT, NY, WP. The FAA proposes to
remove the airway segments between
the CHIEZ WP and the CONFR, MD, WP
and replace it with the airway segment
between the JAMIE, VA, Fix and the
CONFR WP. The route segment between
the CHIEZ WP and the KALDA, VA, WP
is still needed for navigation, and this
action proposes to continue to provide
this RNAV connectivity to the KALDA
WP as new RNAV Route Q–161
proposed in this action. Additionally,
the FAA proposes to remove the airway
segment between the Kennedy, NY (JFK)
VOR/DME and the PONCT WP and
replace it with the airway segments
between the Kennedy VOR/DME and
the PBERG, NY, WP. These proposed
changes improve the connectivity of
multiple airports along the east coast of
the United States to the MontrealTrudeau Airport, Canada, where the
preferred arrival route is over the
PBERG WP. As amended, the route
would be changed to extend between
the JAMIE Fix and the PBERG WP.
Q–161: Q–161 is a new RNAV route
proposed to extend between the CHIEZ,
NC, WP and the KALDA, VA, WP. This
new proposed RNAV route overlays a
portion of RNAV Route Q–133,
proposed to be amended in this action,
but would provide additional efficiency
by becoming its own distinct route. The
new proposed route would continue to
provide RNAV connectivity between the
CHIEZ WP and the KALDA WP.
Q–437: Q–437 currently extends
between the VILLS, NJ, WP and the
LLUND, NY, WP. The FAA proposes to
remove the airway segments between
the VILLS WP and the LLUND WP and
replace it with the airway segments
between the CRPLR, VA, WP and the
PONCT, NY, WP due to high traffic
density over the New York City area.
These proposed changes would move
aircraft from being directly over New
York City to an area west of Newark, NJ.
Additionally, the proposed would
expand RNAV connectivity further to
the south to Norfolk, VA area, and
further to the north to the Albany, NY
area. As amended, the route would be
changed to extend between the CRPLR
WP and the PONCT WP.
Q–439: Q–439 currently extends
between the HOWYU, DE, WP and the
Presque Isle, ME (PQI), VOR/DME. The
FAA proposes to remove the airway
segments between the HOWYU WP and
the MANTA, NJ, Fix and replace it with
the airway segments between the
KALDA, VA, WP and the MANTA Fix
due to a need to separate aircraft
arriving to the John F. Kennedy
International Airport, NY from aircraft
arriving to other airports in the New
York City area. As amended, the route
would be changed to extend between
the KALDA WP and the Presque Isle
VOR/DME.
Q–445: Q–445 currently extends
between the SHAUP, OA, WP and the
KYSKY, NY, WP. The FAA proposes to
extend RNAV Route Q–445 to the south
between the KALDA, VA, WP and the
SHAUP WP. The proposed route
extension would provide RNAV
connectivity from the KALDA WP to the
eastern Massachusetts area. As
amended, the route would be changed
to extend between the KALDA WP and
the KYSKY WP.
Q–481: Q–481 currently extends
between the CONFR, MD, WP and the
Deer Park, NY (DPK), VOR/DME. The
FAA proposes to extend RNAV Route
Q–481 to the south between the JAMIE,
VA, WP and the CONFR WP; and
remove the LEEAH, NJ, Fix from the
route and replace it with the SOSBY,
OA, WP and the ECOIL, OA, WP. These
proposed route modifications are
necessary to ensure adequate separation
with other parallel RNAV routes in the
Atlantic City, NJ area. As amended, the
route would be changed to extend
between the JAMIE WP and the Deer
Park VOR/DME.
Regulatory Notices and Analyses
The FAA has determined that this
proposed regulation only involves an
established body of technical
regulations for which frequent and
routine amendments are necessary to
keep them operationally current. It,
therefore: (1) is not a ‘‘significant
Q–97 TOVAR, FL to Presque Isle, ME (PQI) [Amended]
TOVAR, FL
WP
(Lat. 26°33′05.09″
MALET, FL
FIX
(Lat. 28°41′29.90″
DEBRL, FL
WP
(Lat. 29°17′48.73″
KENLL, FL
WP
(Lat. 29°34′28.35″
PRMUS, FL
WP
(Lat. 29°49′05.67″
WOPNR, OA
WP
(Lat. 30°37′36.03″
JEVED, GA
WP
(Lat. 31°15′02.60″
CAKET, SC
WP
(Lat. 32°31′08.63″
ELLDE, NC
WP
(Lat. 34°24′14.57″
PAACK, NC
WP
(Lat. 35°55′40.26″
SAWED, VA
WP
(Lat. 37°32′00.73″
KALDA, VA
WP
(Lat. 37°50′31.06″
ZJAAY, MD
WP
(Lat. 38°03′09.95″
PAJET, DE
WP
(Lat. 38°28′04.13″
VerDate Sep<11>2014
16:25 Oct 25, 2024
Jkt 265001
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N,
N,
N,
N,
N,
N,
N,
N,
N,
N,
N,
N,
N,
N,
long.
long.
long.
long.
long.
long.
long.
long.
long.
long.
long.
long.
long.
long.
85457
regulatory action’’ under Executive
Order 12866; (2) is not a ‘‘significant
rule’’ under DOT Regulatory Policies
and Procedures (44 FR 11034; February
26, 1979); and (3) does not warrant
preparation of a regulatory evaluation as
the anticipated impact is so minimal.
Since this is a routine matter that will
only affect air traffic procedures and air
navigation, it is certified that this
proposed rule, when promulgated, will
not have a significant economic impact
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
Environmental Review
This proposal will be subject to an
environmental analysis in accordance
with FAA Order 1050.1F,
‘‘Environmental Impacts: Policies and
Procedures’’ prior to any FAA final
regulatory action.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the
Federal Aviation Administration
proposes to amend 14 CFR part 71 as
follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for 14 CFR
part 71 continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of FAA Order JO 7400.11J,
Airspace Designations and Reporting
Points, dated July 31, 2024, and
effective September 15, 2024, is
amended as follows:
■
Paragraph 2006 United States Area
Navigation Routes.
*
*
080°02′19.75″
080°52′04.30″
081°08′02.88″
081°07′25.26″
081°07′20.74″
081°04′26.44″
081°03′40.14″
080°16′09.21″
078°41′50.60″
077°15′30.99″
075°51′29.10″
075°37′35.34″
075°26′34.27″
075°03′00.55″
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*
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28OCP1
*
*
85458
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
CAANO, DE
TBONN, OA
ZIZZI, NJ
YAZUU, NJ
HEADI, NJ
Calverton, NY (CCC)
NTMEG, CT
VENTE, MA
BLENO, NH
FRIAR, ME
Presque Isle, ME (PQI)
*
*
*
*
WP
WP
WP
WP
WP
VOR/DME
WP
WP
WP
FIX
VOR/DME
*
*
*
*
*
*
N,
N,
N,
N,
N,
N,
N,
N,
N,
N,
N,
long.
long.
long.
long.
long.
long.
long.
long.
long.
long.
long.
074°58′52.32″
074°45′03.77″
074°31′44.28″
074°01′01.55″
073°43′28.85″
072°47′55.89″
072°28′52.08″
071°53′38.08″
071°04′43.37″
069°53′04.38″
068°05′40.37″
W)
W)
W)
W)
W)
W)
W)
W)
W)
W)
W)
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
37°36′20.58″
38°16′10.90″
38°46′16.00″
39°15′39.27″
40°20′42.97″
40°37′58.38″
41°17′02.86″
42°59′39.44″
44°42′06.25″
N,
N,
N,
N,
N,
N,
N,
N,
N,
long.
long.
long.
long.
long.
long.
long.
long.
long.
075°57′48.81″
075°24′32.98″
075°18′09.00″
074°57′11.01″
073°56′58.07″
073°46′17.01″
073°34′50.20″
073°20′38.47″
073°31′22.18″
W)
W)
W)
W)
W)
W)
W)
W)
W)
(Lat.
(Lat.
(Lat.
(Lat.
34°31′05.93″
35°54′21.71″
37°05′19.78″
37°50′31.06″
N,
N,
N,
N,
long.
long.
long.
long.
077°32′25.74″
076°41′56.22″
075°53′22.19″
075°37′35.34″
W)
W)
W)
W)
*
Q–161 CHIEZ, NC to KALDA, VA [New]
CHIEZ, NC
WP
KOOKI, NC
WP
PYSTN, VA
WP
KALDA, VA
WP
*
38°31′46.37″
38°45′02.83″
38°56′26.46″
39°24′44.82″
39°57′49.56″
40°55′46.63″
41°16′30.75″
42°08′24.33″
42°54′55.00″
44°26′28.93″
46°46′27.07″
*
Q–133 JAMIE, VA to PBERG, NY [Amended]
JAMIE, VA
FIX
CONFR, MD
WP
MGERK, DE
WP
LEEAH, NJ
FIX
MYRCA, NJ
WP
Kennedy, NY (JFK)
VOR/DME
BIZEX, NY
WP
Cambridge, NY (CAM)
VOR/DME
WP
PBERG, NY
*
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
(Lat.
*
Q–437 CRPLR, VA to PONCT, NY [Amended]
CRPLR, VA
WP
(Lat. 37°36′24.01″ N, long. 076°09′57.67″ W)
TRPOD, MD
WP
(Lat. 38°20′20.33″ N, long. 075°32′01.85″ W)
OYVAY, OA
WP
(Lat. 39°01′03.58″ N, long. 075°26′28.07″ W)
VILLS, NJ
WP
(Lat. 39°18′03.87″ N, long. 075°06′37.90″ W)
SIZZR, NJ
WP
(Lat. 39°33′57.22″ N, long. 074°53′58.83″ W)
METRO, NJ
WP
(Lat. 40°25′21.77″ N, long. 074°40′10.30″ W)
CLAUS, NJ
WP
(Lat. 40°48′50.07″ N, long. 074°10′08.96″ W)
GANDE, NY
WP
(Lat. 41°30′36.66″ N, long. 073°48′52.03″ W)
WP
(Lat. 42°44′48.83″ N, long. 073°48′48.07″ W)
PONCT, NY
*
*
*
*
*
Q–439 KALDA, VA to Presque Isle, ME (PQI) [Amended]
KALDA, VA
WP
(Lat. 37°50′31.06″ N, long. 075°37′35.34″ W)
ZJAAY, MD
WP
(Lat. 38°03′09.95″ N, long. 075°26′34.27″ W)
BYSEL, MD
WP
(Lat. 38°15′02.70″ N, long. 075°16′52.87″ W)
RADDS, DE
FIX
(Lat. 38°38′54.80″ N, long. 075°05′18.48″ W)
SHHAY, DE
WP
(Lat. 38°47′04.08″ N, long. 074°55′55.42″ W)
BRIGS, NJ
FIX
(Lat. 39°31′24.72″ N, long. 074°08′19.67″ W)
MANTA, NJ
FIX
(Lat. 39°54′07.01″ N, long. 073°32′31.63″ W)
SARDI, NY
FIX
(Lat. 40°31′26.61″ N, long. 072°47′55.87″ W)
WP
(Lat. 40°41′24.18″ N, long. 072°34′54.89″ W)
RIFLE, NY
FOXWD, CT
WP
(Lat. 41°48′21.66″ N, long. 071°48′07.03″ W)
BOGRT, MA
WP
(Lat. 42°13′56.08″ N, long. 071°31′07.37″ W)
BLENO, NH
WP
(Lat. 42°54′55.00″ N, long. 071°04′43.37″ W)
BEEKN, ME
WP
(Lat. 43°20′51.95″ N, long. 070°44′50.28″ W)
Presque Isle, ME (PQI)
VOR/DME
(Lat. 46°46′27.07″ N, long. 068°05′40.37″ W)
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*
*
*
*
*
Q–445 KALDA, VA to KYSKY, NY [Amended]
KALDA, VA
WP
(Lat.
ZJAAY, MD
WP
(Lat.
PAJET, DE
WP
(Lat.
CAANO, DE
WP
(Lat.
TBONN, OA
WP
(Lat.
ZIZZI, NJ
WP
(Lat.
YAZUU, NJ
WP
(Lat.
SHAUP, OA
WP
(Lat.
VALCO, OA
WP
(Lat.
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37°50′31.06″
38°03′09.95″
38°28′04.13″
38°31′46.37″
38°45′02.83″
38°56′26.46″
39°24′44.82″
39°44′23.91″
40°05′29.86″
Sfmt 4702
N,
N,
N,
N,
N,
N,
N,
N,
N,
long.
long.
long.
long.
long.
long.
long.
long.
long.
075°37′35.34″
075°26′34.27″
075°03′00.55″
074°58′52.32″
074°45′03.77″
074°31′44.28″
074°01′01.55″
073°34′33.84″
073°08′22.91″
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KYSKY, NY
*
*
*
*
WP
(Lat. 40°46′52.75″ N, long. 072°12′21.45″ W)
*
Q–481 JAMIE, VA to Deer Park, NY (DPK) [Amended]
JAMIE, VA
WP
(Lat. 37°36′20.58″
CONFR, MD
WP
(Lat. 38°16′10.90″
MGERK, DE
WP
(Lat. 38°46′16.00″
SOSBY, OA
WP
(Lat. 39°15′24.74″
ECOIL, OA
WP
(Lat. 39°49′58.45″
ZIGGI, NJ
FIX
(Lat. 40°03′07.01″
Deer Park, NY (DPK)
VOR/DME
(Lat. 40°47′30.30″
*
*
*
*
*
Issued in Washington, DC, on October 22,
2024.
Frank Lias,
Manager, Rules and Regulations Group.
[FR Doc. 2024–24938 Filed 10–25–24; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1310
[Docket No. DEA–1282]
Possible Control of Phenethyl Bromide
as a List I Chemical
Drug Enforcement
Administration, Department of Justice.
ACTION: Advanced notice of proposed
rulemaking.
AGENCY:
The Drug Enforcement
Administration (DEA) finds that
phenethyl bromide is used in the illicit
manufacture of the controlled substance
fentanyl, as well as fentanyl analogues
and fentanyl-related substances, and is
important to the manufacture of these
substances because it is often used in
synthetic pathways to illicitly
manufacture fentanyl, fentanyl
analogues, and fentanyl-related
substances. Prior to proposing to list
phenethyl bromide as a list I chemical
under the Controlled Substances Act,
DEA is soliciting information on the
current uses of phenethyl bromide
(other than for the synthesis of fentanyl)
in order to properly determine the effect
such a proposed action would have on
legitimate industry.
DATES: Comments must be submitted
electronically or postmarked on or
before November 27, 2024. Commenters
should be aware that the electronic
Federal Docket Management System
will not accept any comments after
11:59 p.m. Eastern Time on the last day
of the comment period.
ADDRESSES: To ensure proper handling
of comments, please reference ‘‘Docket
No. DEA–1282’’ on all electronic and
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SUMMARY:
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N,
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N,
N,
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N,
long.
long.
long.
long.
long.
long.
long.
075°57′48.81″
075°24′32.98″
075°18′09.00″
074°55′30.57″
074°14′06.07″
074°00′49.34″
073°18′13.17″
written correspondence, including any
attachments.
• Electronic comments: The Drug
Enforcement Administration (DEA)
encourages that all comments be
submitted electronically through the
Federal eRulemaking Portal, which
provides the ability to type short
comments directly into the comment
field on the web page or attach a file for
lengthier comments. Please go to
https://www.regulations.gov and follow
the online instructions at that site for
submitting comments. Upon completion
of your comment submission, you will
receive a Comment Tracking Number.
Please be aware that submitted
comments are not instantaneously
available for public view on
Regulations.gov. If you have received a
Comment Tracking Number, your
comment has been successfully
submitted and there is no need to
resubmit the same comment.
• Paper comments: Paper comments
that duplicate electronic submissions
are not necessary. Should you wish to
mail a paper comment, in lieu of an
electronic comment, it should be sent
via regular or express mail to: Drug
Enforcement Administration, Attn: DEA
Federal Register Representative/DPW,
8701 Morrissette Drive, Springfield,
Virginia 22152.
FOR FURTHER INFORMATION CONTACT:
Terrence L. Boos, Drug and Chemical
Evaluation Section, Diversion Control
Division, Drug Enforcement
Administration; Telephone: (571) 362–
3249.
SUPPLEMENTARY INFORMATION:
Posting of Public Comments
Please note that all comments
received in response to this docket are
considered part of the public record.
The Drug Enforcement Administration
(DEA) will make comments available for
public inspection online at https://
www.regulations.gov. Such information
includes personal or business
identifying information (such as name,
address, State or Federal identifiers,
etc.) voluntarily submitted by the
commenter. Generally, all information
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W)
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voluntarily submitted by the
commenter, unless clearly marked as
Confidential Information in the method
described below, will be publicly
posted. Comments may be submitted
anonymously. The Freedom of
Information Act applies to all comments
received.
Commenters submitting comments
which include personal identifying
information (PII), confidential, or
proprietary business information that
the commenter does not want made
publicly available should submit two
copies of the comment. One copy must
be marked ‘‘CONTAINS
CONFIDENTIAL INFORMATION’’ and
should clearly identify all PII or
business information the commenter
does not want to be made publicly
available, including any supplemental
materials. DEA will review this copy,
including the claimed PII and
confidential business information, in its
consideration of comments. The second
copy should be marked ‘‘TO BE
PUBLICLY POSTED’’ and must have all
claimed PII and business information
already redacted. DEA will post only the
redacted comment on https://
www.regulations.gov for public
inspection.
For easy reference, an electronic copy
of this document and a plain language
summary of this advanced notice of
proposed rulemaking are available at
https://www.regulations.gov.
Legal Authority
The Controlled Substances Act (CSA)
authorizes the Attorney General to
specify, by regulation, chemicals as list
I chemicals.1 The Attorney General has
delegated his authority to designate list
I chemicals to the Administrator of DEA
(Administrator).2 A ‘‘list I chemical’’ is
a chemical that is used in
manufacturing a controlled substance in
violation of the CSA and is important to
the manufacture of the controlled
substances.3 The current list of all listed
chemicals is published at 21 CFR
1 21
2 28
U.S.C. 802(34).
CFR 0.100(b).
3 Id.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
1310.02. DEA regulations set forth the
process by which DEA may add a
chemical as a listed chemical. As set
forth in 21 CFR 1310.02(c), the agency
may do so by publishing a final rule in
the Federal Register following a
published notice of proposed
rulemaking with at least 30 days for
public comments.
Background
The clandestine manufacture of
fentanyl, fentanyl analogues, and
fentanyl-related substances remains
extremely concerning as the distribution
of illicit fentanyl, fentanyl analogues,
and fentanyl-related substances
continues to drive drug-related overdose
deaths in the United States. Fentanyl is
a synthetic opioid and was first
synthesized in Belgium in the late
1950s. Fentanyl was introduced into
medical practice and is approved for
medical practitioners in the United
States to prescribe lawfully for
anesthesia and analgesia. Yet, due to its
pharmacological effects, fentanyl can be
used as a substitute for heroin,
oxycodone, and other opioids in opioid
dependent individuals. Therefore,
despite its accepted medical use in
treatment in the United States, DEA
controls fentanyl as a schedule II
controlled substance due to its high
potential for abuse and dependence.4
from fentanyl, fentanyl analogues, and
fentanyl-related substances in the
United States in recent years. According
to the Centers for Disease Control and
Prevention (CDC), opioids, mainly
synthetic opioids (which includes
fentanyl), are predominantly
responsible for drug overdose deaths in
recent years. According to CDC
WONDER,9 drug-induced overdose
deaths involving synthetic opioids
(excluding methadone) in the United
States increased from 36,359 in 2019, to
56,516 in 2020, and to 70,601 in 2021.
Based on provisional data, the predicted
number of drug overdose deaths
involving synthetic opioids (excluding
methadone) in the United States for the
12 months ending March 2023 is 76,472
individuals, or approximately 69.2
percent of all drug-induced overdose
deaths for that time period.10 The
increase in overdose fatalities involving
synthetic opioids coincides with a
dramatic increase in law enforcement
encounters of fentanyl, fentanyl
analogues, and fentanyl-related
substances. According to the National
Forensic Laboratory Information System
(NFLIS-Drug),11 reports from forensic
laboratories of drug items containing
fentanyl, fentanyl analogues, and
fentanyl-related substances increased
dramatically since 2014, as shown in
Table 1.
Moreover, there are a substantial
number of fentanyl analogues 5 and
fentanyl-related substances 6 that are
being distributed on the illicit drug
market despite DEA’s recent actions
adding them as scheduled controlled
substances.7 Illicit manufacturers of
fentanyl, fentanyl analogues, and
fentanyl-related substances attempt to
utilize unregulated precursor chemicals
to evade law enforcement detection and
precursor chemical controls in order to
keep manufacturing these substances.
This strategy allows for the synthesis of
a variety of fentanyl analogues and
fentanyl-related substances by making
slight modifications to the core fentanyl
structure while maintaining the same
synthetic methodology used to
synthesize fentanyl, fentanyl analogues,
and fentanyl-related substances.
The unlawful trafficking of fentanyl,
fentanyl analogues, and fentanyl-related
substances in the United States
continues to pose an imminent hazard
to public safety. Since 2012, fentanyl
has shown a dramatic increase in the
illicit drug supply as a single substance,
in mixtures with other illicit drugs (i.e.,
heroin, cocaine, and
methamphetamine), and in forms that
mimic pharmaceutical preparations
including prescription opiates and
benzodiazepines.8
DEA has noted a significant increase
in overdoses and overdose fatalities
TABLE 1—ANNUAL REPORTS OF FENTANYL AND SELECT FENTANYL ANALOGUES AND FENTANYL-RELATED SUBSTANCES
IDENTIFIED IN DRUG ENCOUNTERS
Year
2014
Annual Fentanyl Reports .........................
Annual Reports of select fentanyl analogues and fentanyl-related substances
5,554
I
Role of Phenethyl Bromide in the
Synthesis of Fentanyl
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Fentanyl, fentanyl analogues, and
fentanyl-related substances are not
naturally occurring substances. As such,
the manufacture of these substances
requires them to be produced through
synthetic organic chemistry. Synthetic
organic chemistry is the process in
4 21 U.S.C. 812(c) Schedule II(b)(6); 21 CFR
1308.12(c).
5 Schedules of Controlled Substances: Temporary
Placement of Seven Fentanyl-Related Substances in
Schedule I. 83 FR 4580 (Feb. 1, 2018).
6 Schedules of Controlled Substances: Temporary
Placement of Fentanyl-Related Substances in
Schedule I, 83 FR 5188 (Feb. 6, 2018).
7 Schedules of Controlled Substances: Placement
of 10 Specific Fentanyl-Related Substances in
Schedule I, 86 FR 22113 (Apr. 27, 2021).
8 United Nations Office on Drugs and Crime,
Global SMART Update Volume 17, March 2017.
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78
I
2015
2016
2017
2018
2019
15,461
37,154
61,642
89,967
108,133
2,317
I
7,624
I
21,980
I
16,033
I
2020
20,864
126,0099
I
7,774
I
2021
2022
165,104
165,920
26,363
I
29,404
which a new organic molecule is
created through a series of chemical
reactions, which involve precursor
chemicals. Through chemical reactions,
the chemical structures of precursor
chemicals are modified in a desired
fashion. These chemical reaction
sequences, also known as synthetic
pathways, are designed to create a
desired substance. Several synthetic
pathways to fentanyl, fentanyl
analogues, and fentanyl-related
substances have been identified in
clandestine laboratory settings; these
include the original ‘‘Janssen method,’’
the ‘‘Siegfried method,’’ and the ‘‘Gupta
method.’’ In response to the illicit
manufacture of fentanyl, fentanyl
https://www.unodc.org/documents/scientific/
Global_SMART_Update_17_web.pdf.
9 Centers for Disease Control and Prevention,
National Center for Health Statistics. National Vital
Statistics System, Provisional Mortality on CDC
WONDER Online Database. Data are from the final
Multiple Cause of Death Files, 2018–2021, and from
provisional data for years 2022–2023, as compiled
from data provided by the 57 vital statistics
jurisdictions through the Vital Statistics
Cooperative Program. Accessed at http://
wonder.cdc.gov/mcd-icd10-provisional.html on
March 16, 2023.
10 Ahmad FB, Cisewski JA, Rossen LM, Sutton P.
Provisional drug overdose death counts. National
Center for Health Statistics. 2023. Accessed at
https://www.cdc.gov/nchs/nvss/vsrr/drug-overdosedata.htm on August 17, 2023.
11 NFLIS-Drug is a national forensic laboratory
reporting system that systematically collects results
from drug chemistry analyses conducted by
Federal, State and local forensic laboratories in the
United States. While NFLIS-Drug data is not direct
evidence of abuse, it can lead to an inference that
a drug has been diverted and abused. See 76 FR
77330, 77332 (Dec. 12, 2011). NFLIS-Drug data was
queried on July 31, 2023, and August 17, 2023.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
analogues, and fentanyl-related
substances using these methods, DEA
controlled N-phenethyl-4-piperidone
(NPP),12 N-(1-benzylpiperidin-4-yl)-Nphenylpropionamide (benzylfentanyl),
N-phenylpiperidin-4-amine (4anilinopiperidine; including its amides
and carbamates),13 and 4-piperidone
(piperidin-4-one) 14 as list I chemicals,
and 4-anilino-N-phenethylpiperidine
(ANPP) 15 and N-phenyl-N-(piperidin-4yl)propionamide (norfentanyl) 16 as
schedule II immediate precursors under
the CSA.
In 2017, the United Nations
Commission on Narcotic Drugs placed
NPP and ANPP in Table I of the
Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances of 1988 (1988 Convention)
in response to the international
reintroduction of fentanyl on the illicit
drug market. As such, member states of
the United Nations are required to
regulate these precursor chemicals at
the national level. Importantly, the
People’s Republic of China regulated
NPP and ANPP on February 1, 2018.17
Subsequently, in 2022, the United
Nations Commission on Narcotic Drugs
placed norfentanyl, 1-boc-4anilinopiperidine, and 4anilinopiperidine in Table I of the 1988
Convention in response to the
international reintroduction of fentanyl
on the illicit drug market and the
introduction of new precursors used in
the illicit manufacture of fentanyl.
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Phenethyl Bromide
The original published synthetic
pathway to fentanyl, known as the
Janssen method, involves the list I
chemical benzylfentanyl 18 and
schedule II immediate precursor
norfentanyl.19 In this synthetic
12 Control of a Chemical Precursor Used in the
Illicit Manufacture of Fentanyl as a List I Chemical,
72 FR 20039 (Apr. 23, 2007).
13 Designation of Benzylfentanyl and 4Anilinopiperidine, Precursor Chemicals Used in the
Illicit Manufacture of Fentanyl, as List I Chemicals,
85 FR 20822 (Apr. 15, 2020).
14 Designation of 4-Piperidone as a List I
Chemical, 88 FR 21902 (Apr. 12, 2023).
15 Control of Immediate Precursor Used in the
Illicit Manufacture of Fentanyl as a Schedule II
Controlled Substance, 75 FR 37295 (June 29, 2010).
16 Control of the Immediate Precursor Norfentanyl
Used in the Illicit Manufacture of Fentanyl as a
Schedule II Controlled Substance, 85 FR 21320
(Apr. 17, 2020).
17 https://www.dea.gov/press-releases/2018/01/
05/china-announces-scheduling-controls-twofentanyl-precursor-chemicals. Accessed March 9,
2022.
18 Designation of Benzylfentanyl and 4Anilinopiperidine, Precursor Chemicals Used in the
Illicit Manufacture of Fentanyl, as List I Chemicals,
85 FR 20822 (April 15, 2020).
19 Control of the Immediate Precursor Norfentanyl
Used in the Illicit Manufacture of Fentanyl as a
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pathway, benzylfentanyl, a list I
chemical under the CSA, is then
converted to norfentanyl, the schedule II
immediate precursor in this synthetic
pathway. Norfentanyl is reacted with
phenethyl bromide (also known as 2bromoethyl benzene) to complete the
synthesis of fentanyl. This synthetic
pathway can also be easily modified to
produce fentanyl analogues and
fentanyl-related substances.
Phenethyl bromide also serves as a
precursor chemical in the Siegfried
method. In this synthetic pathway,
phenethyl bromide is reacted with 4piperidone, a list I chemical under the
CSA, to produce NPP, another list I
chemical, which is further converted to
ANPP,20 the schedule II immediate
precursor in the Siegfried method. One
additional step completes the synthesis
of fentanyl. This synthetic pathway can
also be easily modified to produce
fentanyl analogues and fentanyl-related
substances.
In addition to the Janssen and
Siegfried methods, clandestine
manufacturers are using other methods
to synthesize fentanyl, one of which is
known as the Gupta method. In this
synthetic pathway, 4-piperidone, a list I
chemical under the CSA, is used to
synthesize 4-anilinopiperidine, another
list I chemical under the CSA,21 which
serves as an alternative precursor
chemical to NPP, a list I chemical, in the
synthesis of ANPP, a schedule II
immediate precursor, albeit through a
different synthetic process. 4Anilinopiperidine is reacted with
phenethyl bromide to produce ANPP,
which is then converted to the schedule
II controlled substance, fentanyl. This
synthetic pathway can also be easily
modified to produce fentanyl analogues
and fentanyl-related substances.
Phenethyl Halides and Sulfonates
Phenethyl bromide is attractive to
illicit manufacturers due to the lack of
regulations on this chemical; it is
readily available from chemical
suppliers. Additionally, related
phenethyl halides (i.e., phenethyl
chloride, phenethyl iodide, etc.) and
phenethyl sulfonates (i.e., phenethyl
tosylate, phenethyl mesylate, etc.) can
be used as substitutes for phenethyl
bromide in many of the known
synthetic pathways. These pathways
Schedule II Controlled Substance, 85 FR 21320
(April 17, 2020).
20 Control of Immediate Precursor Used in the
Illicit Manufacture of Fentanyl as a Schedule II
Controlled Substance, 75 FR 37295 (June 29, 2010).
21 Designation of Benzylfentanyl and 4Anilinopiperidine, Precursor Chemicals Used in the
Illicit Manufacture of Fentanyl, as List I Chemicals,
85 FR 20822 (April 15, 2020).
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can be easily used, and modified, in the
illicit manufacture of fentanyl, fentanyl
analogues, and fentanyl-related
substances.
Solicitation for Information
With this advanced notice of
proposed rulemaking, DEA is soliciting
information on any possible legitimate
uses of phenethyl bromide, and related
halides and sulfonates, unrelated to
fentanyl production (including
industrial uses) in order to assess the
potential economic impact of
controlling phenethyl bromide as a list
I chemical. DEA seeks to document any
unpublicized use(s) and other
proprietary use(s) of phenethyl bromide,
and related halides and sulfonates, that
are not in the public domain. Therefore,
DEA is soliciting comment on the uses
of phenethyl bromide, and related
halides and sulfonates, in the legitimate
marketplace.
DEA is soliciting input from all
potentially affected parties regarding: (1)
the types of legitimate industries using
phenethyl bromide, and related halides
and sulfonates; (2) the legitimate uses,
legitimate needs, and quantities
produced, used, and distributed of
phenethyl bromide, and related halides
and sulfonates; (3) the size of the
domestic market for phenethyl bromide,
and related halides and sulfonates, if
any; (4) the number of manufacturers of
phenethyl bromide, and related halides
and sulfonates; (5) the number of
distributors of phenethyl bromide, and
related halides and sulfonates; (6) the
level of import and export of phenethyl
bromide, and related halides and
sulfonates; (7) the potential burden that
controlling phenethyl bromide, and
related halides and sulfonates, as a list
I chemical may have on any legitimate
industry and trade; (8) the potential
number of individuals/firms that may be
adversely affected by such regulatory
controls (particularly with respect to the
impact on small businesses); and (9) any
other information on the manner of
manufacturing, distribution,
consumption, storage, disposal, and
uses of phenethyl bromide, and related
halides and sulfonates, by industry and
others. DEA invites all interested parties
to provide any information on any
legitimate uses of phenethyl bromide,
and related halides and sulfonates, in
industry, commerce, academia, research
and development, or other applications.
DEA seeks both quantitative and
qualitative data.
Such information may be submitted
electronically to the address listed
above and is requested by November 27,
2024. This information will be used to
properly determine the effect that
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proposed regulations to make phenethyl
bromide a list I chemical under the CSA
would have on industry.
DEPARTMENT OF TRANSPORTATION
Handling of Confidential or Proprietary
Information
49 CFR Part 236
Confidential or proprietary
information may be submitted as part of
a comment regarding this advanced
notice of proposed rulemaking. Please
see the ‘‘POSTING OF PUBLIC
COMMENTS’’ section above for a
discussion of the identification and
redaction of confidential business
information and personally identifying
information.
Regulatory Analyses
This ANPRM was developed in
accordance with the principles of
Executive Order (E.O.) 12866,
‘‘Regulatory Planning and Review,’’ E.O.
13563, ‘‘Improving Regulation and
Regulatory Review,’’ and E.O. 14094,
‘‘Modernizing Regulatory Review.’’
Because this action is an ANPRM, the
requirement of E.O. 12866 to assess the
costs and benefits of this action does not
apply.
Furthermore, the requirements of the
Regulatory Flexibility Act do not apply
to this action because, at this stage, it is
an ANPRM and not a ‘‘rule’’ as defined
in 5 U.S.C. 601. Following review of the
comments received in response to this
ANPRM, if DEA proceeds with a notice
of proposed rulemaking regarding this
matter, DEA will conduct all relevant
analyses as required by statute or E.O.
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Signing Authority
This document of the Drug
Enforcement Administration was signed
on October 10, 2024, by Administrator
Anne Milgram. That document with the
original signature and date is
maintained by DEA. For administrative
purposes only, and in compliance with
requirements of the Office of the Federal
Register, the undersigned DEA Federal
Register Liaison Officer has been
authorized to sign and submit the
document in electronic format for
publication, as an official document of
DEA. This administrative process in no
way alters the legal effect of this
document upon publication in the
Federal Register.
Heather Achbach,
Federal Register Liaison Officer, Drug
Enforcement Administration.
[FR Doc. 2024–24616 Filed 10–25–24; 8:45 am]
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Federal Railroad Administration
[Docket No. FRA–2023–0064]
RIN 2130–AC95
Positive Train Control Systems
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
FRA is proposing to amend
certain regulations governing positive
train control (PTC) systems. Since
December 31, 2020, by law, PTC
systems have generally governed rail
operations on PTC-mandated main
lines, which encompass nearly 59,000
route miles today. Through FRA’s
oversight and continued engagement
with the industry, FRA has found that
its existing PTC regulations do not
adequately address temporary situations
during which PTC technology is not
enabled, including after certain
initialization failures or in cases where
a PTC system needs to be temporarily
disabled to facilitate repair,
maintenance, infrastructure upgrades, or
capital projects. FRA expects PTC
systems to be reliable and robust,
further reducing the occurrence of
initialization failures and outages. This
NPRM proposes to establish strict
parameters and operating restrictions
under which railroads may continue to
operate safely in certain necessary
scenarios when PTC technology is
temporarily not governing rail
operations. The purpose of this NPRM
is to enable continued, safe operations
and improve rail safety by facilitating
prompt repairs, upgrades, and
restoration of PTC system service.
DATES: Written comments must be
received by December 27, 2024. FRA
believes a 60-day comment period is
appropriate to allow the public to
comment on this proposed rule. FRA
will consider comments received after
that date to the extent practicable.
ADDRESSES:
Comments: Comments related to
Docket No. FRA–2023–0064 may be
submitted by going to https://
www.regulations.gov and following the
online instructions for submitting
comments.
Instructions: All submissions must
include the agency name, docket
number (FRA–2023–0064), and
Regulation Identifier Number (RIN) for
this rulemaking (2130–AC95). All
SUMMARY:
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comments received will be posted
without change to https://
www.regulations.gov; this includes any
personal information. Please see the
Privacy Act heading in the
SUPPLEMENTARY INFORMATION section of
this document for Privacy Act
information related to any submitted
comments or materials.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov and follow the
online instructions for accessing the
docket.
FOR FURTHER INFORMATION CONTACT:
Gabe Neal, Staff Director, Signal, Train
Control, and Crossings Division,
telephone: 816–516–7168, email:
[email protected]; or Stephanie
Anderson, Attorney Adviser, telephone:
202–834–0609, email:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary
Information
I. Executive Summary
II. Background
A. Legal Authority To Prescribe PTC
Regulations
B. Public Participation Prior to the
Issuance of the NPRM
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
A. Executive Order 12866 as Amended by
Executive Order 14094
B. Regulatory Flexibility Act and Executive
Order 13272
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Impact
G. Environmental Justice
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
J. Privacy Act Statement
K. Tribal Consultation
L. Rulemaking Summary, 5 U.S.C.
553(b)(4)
I. Executive Summary
Section 20157 of title 49 of the United
States Code (U.S.C.) mandates each
Class I railroad, and each entity
providing regularly scheduled intercity
or commuter rail passenger
transportation, to implement an FRAcertified PTC system on: (1) its main
lines over which poison- or toxic-byinhalation hazardous materials are
transported, if the line carries five
million or more gross tons of any annual
traffic; (2) its main lines over which
intercity or commuter rail passenger
transportation is regularly provided; and
(3) any other tracks the Secretary of
Transportation (Secretary) prescribes by
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regulation or order.1 By law, PTC
systems must be designed to prevent
certain accidents or incidents, including
train-to-train collisions, over-speed
derailments, incursions into established
work zones, and movements of trains
through switches left in the wrong
position.2
Currently, 37 host railroads 3—
including 7 Class I railroads,4 24 entities
that provide regularly scheduled
intercity or commuter rail passenger
transportation (hereinafter referred to as
‘‘intercity passenger railroads or
commuter railroads,’’ respectively), and
6 Class II or III, short line, or terminal
railroads—are directly subject to the
statutory mandate. On December 29,
2020, FRA announced that railroads had
fully implemented FRA-certified and
interoperable PTC systems on all PTCmandated main lines.5 49 U.S.C.
20157(a); 49 CFR 236.1005(b)(7).
Today, PTC technology is governing
rail operations on nearly 59,000 route
miles. Based on FRA’s oversight of PTC
technology since FRA last amended its
PTC regulations in 2021, FRA identified
three aspects of its existing PTC
regulations that warrant revision to
address ongoing challenges. Overall, the
proposed amendments would benefit
the railroad industry, the public, and
FRA by facilitating repairs,
maintenance, upgrades, and capital
improvements; expanding certain
railroad informational requirements;
reducing costs; and enabling the safe,
1 See Rail Safety Improvement Act of 2008, Public
Law 110–432, section 104, 122 Stat. 4848 (Oct. 16,
2008), as amended by the Positive Train Control
Enforcement and Implementation Act of 2015,
Public Law 114–73, 129 Stat. 568 (Oct. 29, 2015);
the Fixing America’s Surface Transportation Act,
Public Law 114–94, section 11315(d), 129 Stat. 1312
(Dec. 4, 2015); and the Passenger Rail Expansion
and Rail Safety Act of 2021, Public Law 117–58,
section 22414, 135 Stat. 429 (Nov. 15, 2021),
codified as amended at 49 U.S.C. 20157. See also
49 CFR part 236, subpart I.
2 See, e.g., 49 U.S.C. 20157(g)(1), (i)(5); 49 CFR
236.1005 (setting forth the technical specifications).
3 As this proposed rule primarily focuses on host
railroads, FRA references the current number of
PTC-mandated host railroads (37). A host railroad
is ‘‘a railroad that has effective operating control
over a segment of track,’’ and a tenant railroad is
‘‘a railroad, other than a host railroad, operating on
track upon which a PTC system is required.’’ See
49 CFR 236.1003(b).
4 FRA acknowledges that one Class I railroad
(Canadian Pacific Railway) recently acquired a
second Class I railroad (Kansas City Southern
Railway). However, for purposes of FRA’s PTC
regulations and related oversight, FRA is currently
counting these railroads separately, as they
presently submit separate PTC filings and have
indicated they will do so unless and until they fully
integrate their PTC systems.
5 Federal Railroad Administration, FRA
Announces Landmark Achievement with Full
Implementation of Positive Train Control (Dec. 29,
2020), available at https://railroads.dot.gov/sites/
fra.dot.gov/files/2020-12/fra1920.pdf.
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reliable, and resilient movement of
people and goods, while preserving rail
safety.
This NPRM proposes to establish
strict parameters and operating
restrictions under which railroads may
continue to operate safely in three
specific scenarios when PTC technology
is temporarily not governing rail
operations:
1. When non-revenue passenger
equipment needs to operate to a
maintenance facility or yard, for the sole
purpose of repairing or exchanging PTC
technology;
2. When a PTC system needs to be
temporarily disabled to facilitate repair,
maintenance, an infrastructure upgrade,
or a capital project; and
3. When a system-level or widescale
problem occurs resulting in multiple
trains’ PTC systems failing to initialize.
FRA’s objective in this rulemaking is
to establish clear, uniform processes,
rather than addressing issues that arise
in a reactive and piecemeal manner.
FRA expects that establishing
predictable, prescriptive processes will
both enable continued operations and
improve railroad safety by facilitating
prompt repairs, upgrades, and
restoration of PTC system service and
eliminating uncertainty and
inconsistent application of FRA’s
regulations. FRA’s proposed parameters
and operating restrictions in this NPRM
are intended to be sufficiently strict to
ensure that railroads and PTC system
suppliers and vendors proactively
identify and remedy problems before
they arise and immediately correct any
problems that may surface despite
proactive measures.
First, FRA is proposing to establish an
exception, under 49 CFR 236.1006(b)(6),
to permit, under certain conditions,
non-revenue passenger equipment to
operate to maintenance facilities or
yards, without being governed by PTC
technology. This NPRM proposes to
extend the exception currently afforded
to certain freight movements to
movements of non-revenue passenger
equipment, including equipment that is
owned or controlled by an intercity
passenger railroad or commuter
railroad.
This proposed exception would
enable non-revenue passenger
equipment, including a locomotive,
locomotive consist, or train without
passengers onboard, to operate to a
maintenance facility or yard for the sole
purpose of repairing or exchanging 6 a
6 FRA’s existing regulations, including 49 CFR
236.1029(b)(6), refer to repairing or exchanging a
PTC system or component. To clarify, FRA notes
that ‘‘exchange’’ is intended to refer to the
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PTC system or component. Commuter
railroads have informed FRA this
proposed exception would be beneficial
and necessary, as it would enable them,
for example, to operate a PTC-equipped
locomotive, where the onboard PTC
technology is not functioning and
requires repair, to a maintenance facility
or yard to repair or exchange the PTC
system. To ensure rail safety, FRA is
proposing to impose six conditions on
each movement of non-revenue
passenger equipment subject to this
exception, including speed and distance
restrictions, the requirement to establish
an absolute block (meaning no other
traffic may be present in the area), and
other protections of the route.
Second, FRA proposes to improve the
existing process, under 49 CFR
236.1021(m), that railroads currently
utilize to request and obtain FRA’s
approval to disable their PTC systems
temporarily when necessary to facilitate
repair, maintenance, infrastructure
upgrades, and capital projects. This
NPRM proposes to add paragraph (m)(4)
to existing § 236.1021 to focus on this
specific type of request for amendment
(RFA) to PTC systems (i.e., where a
temporary PTC system outage is
proposed), as it is different from the
other types of RFAs that railroads
submit under § 236.1021 and requires
additional FRA oversight.
FRA proposes to require railroads to
provide additional, essential
information in an RFA that seeks to
temporarily disable a PTC system to
enable FRA to evaluate more fully the
scope, circumstances, and necessity of a
proposed temporary outage and
properly determine whether granting
the request is in the public interest and
consistent with railroad safety. For
example, this NPRM proposes to impose
nine additional content requirements for
this specific type of RFA, including
certain justifications, safety analyses,
mitigations, and other documentation to
demonstrate the proposed outage is as
narrow in scope, impact, and duration,
as possible.
Third, FRA proposes to reintroduce as
a permanent provision a version of a
temporary provision regarding PTC
system initialization failures, which
expired on December 31, 2022.7 The
expired regulatory provision previously
permitted any train, including an
individual train, to keep operating
subject to certain restrictions, if the train
failed to initialize for any reason prior
to the train’s departure from its initial
terminal. In FRA’s 2014 final rule, FRA
industry’s practice of, for example, swapping out a
defective component for a functioning component.
7 See 49 CFR 236.1029(g)(2).
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authorized this provision temporarily,
recognizing that ‘‘there may be issues
that could be identified and resolved in
the early days following PTC system
implementation and revenue service
operation.’’ 8 In 2014, FRA also observed
that ‘‘[e]xperience over these
intervening years will provide more
empirical data on PTC system
reliability, and may be a basis for FRA
to revisit this issue at a later date should
circumstances warrant.’’ 9
FRA’s intention in this NPRM, by
proposing to reintroduce an updated
version of this provision, is to address
only system-level outages or failures
that result in multiple trains’ PTC
systems failing to initialize, impacting
the trains of the host railroad and often
most, if not all, of its tenant railroads.
Currently, if a PTC system fails to
initialize, trains are generally prohibited
from operating, which has resulted in
situations where passengers could be
stranded, and vital freight shipments
halted.
Although PTC technology is generally
reliable and robust, it is a complex
technology, composed of many
subsystems and dependent on external
networks, and it continues to experience
unplanned outages. For example,
railroads’ Quarterly Reports of PTC
System Performance 10 show that PTC
technology failed to initialize on
approximately 236 intercity passenger
or commuter trains and 894 freight
trains in 2023.11 Additionally, based on
voluntary reporting by railroads, FRA is
aware of eight (8) system-level outages
that occurred in 2023 that caused
multiple trains to fail to initialize.
FRA is proposing to impose two tiers
of operating restrictions that would
become increasingly restrictive as time
passes, to ensure both that railroads
utilize any operating flexibility only
when necessary and that railroads and
their vendors and suppliers identify and
resolve issues promptly. FRA expects
this will help strike the appropriate
balance between enabling continued
operations subject to speed restrictions,
pending resolution of a PTC failure, and
restoring PTC systems as quickly as
possible. In short, if a PTC system fails
to initialize, impacting multiple trains,
FRA proposes to permit railroads to
continue operating for 24 hours, subject
to the operating restrictions, including
speed limits, that previously applied to
initialization failures and that currently
apply to en route failures.12 After the
first 24 hours, FRA proposes to impose
a significant speed limit of restricted
speed, among other restrictions, both to
help ensure rail safety and to propel the
industry to act quickly to restore PTC
system service.
FRA analyzed the economic impact of
this proposed rule over a 10-year period
and estimated its benefits and costs,
which are shown in the table below.
The total estimated 10-year net benefits
would be $81.8 million (discounted at 2
percent), and the annualized net
benefits would be $9.1 million
(discounted at 2 percent). The industry
benefits associated with FRA’s proposal
to amend three provisions—i.e., to
introduce a new exception for certain
non-revenue passenger equipment
movements, improve the RFA process
regarding temporary PTC system
outages, and permit continued
operations following certain
initialization failures, subject to
operating restrictions—would outweigh
the industry costs and government
administrative costs associated with
FRA’s proposal to expand the content
requirements for RFAs related to
temporary outages.
TABLE A—TOTAL 10-YEAR DISCOUNTED BENEFITS, COSTS, AND NET BENEFITS
[2023 Dollars] 1
Present
value 2%
($)
Present
value 3%
($)
Present
value 7%
($)
Industry Benefits ........................................................
Total Costs .................................................................
Industry Costs ............................................................
Government Administrative Costs .............................
83,534,444
1,760,775
1,514,075
246,700
80,105,191
1,688,492
1,451,919
236,573
68,518,285
1,444,258
1,241,905
202,353
9,299,600
196,021
168,557
27,464
9,390,772
197,943
170,209
27,734
9,755,462
205,630
176,819
28,811
Net Benefits 2 ......................................................
81,773,669
78,416,699
67,074,027
9,103,579
9,192,829
9,549,832
Category
Annualized
2%
($)
Annualized
3%
($)
Annualized
7%
($)
1 Numbers
in this table and subsequent tables may not sum due to rounding. The present value of costs and benefits are calculated in this
analysis. Present value provides a way of converting future benefits into equivalent dollars today. The formula used to calculate the present
value at the particular discount rate is: 1/(1+r)t, where ‘‘r’’ is the discount rate, and ‘‘t’’ is the year. Discount rates of 2%, 3%, and 7% are used in
this analysis.
2 Net Benefits = Industry Benefits ¥ (Industry Costs + Government Administrative Costs). FRA notes that the net industry benefits of this proposed rule may help reduce the overall industry costs for implementing and operating PTC systems.
II. Background
A. Legal Authority To Prescribe PTC
Regulations
Section 104(a) of the Rail Safety
Improvement Act of 2008 required the
Secretary to prescribe PTC regulations
lotter on DSK11XQN23PROD with PROPOSALS1
8 79
FR 49693, 49706 (Aug. 22, 2014).
9 Id.
10 Form FRA F 6180.152, Office of Management
and Budget (OMB) Control No. 2130–0553; 49
U.S.C. 20157(m) (as amended by the Passenger Rail
Expansion and Rail Safety Act of 2021, Public Law
117–58, section 22414, 135 Stat. 429 (Nov. 15,
2021)).
11 The referenced initialization failures exclude
any initialization failures where the source or cause
was the onboard subsystem, as proposed
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necessary to implement the statutory
mandate, including regulations
specifying the essential technical
functionalities of PTC systems and how
FRA certifies PTC systems.13 The
Secretary delegated to the Administrator
of the Federal Railroad Administration
the authority to carry out the functions
and exercise the authority vested in the
Secretary by the Rail Safety
Improvement Act of 2008. 49 CFR
1.89(b).
In accordance with its authority under
49 U.S.C. 20157(g) and 49 CFR 1.89(b),
§ 236.1029(g)(3) excludes such initialization failures
from receiving the flexibility afforded under
proposed § 236.1029(g), as they typically impact
one train. FRA is citing to the relevant initialization
failures where the source or cause was, for example,
the back office, wayside, or communications
subsystems because those types of issues would
generally impact more than one train and would be
within the scope of this proposed provision.
12 An en route failure is a situation where a
controlling locomotive experiences a ‘‘PTC system
failure or the PTC system is otherwise cut out while
en route (i.e., after the train has departed its initial
terminal).’’ 49 CFR 236.1029(b) (emphasis added).
FRA’s current regulations provide that when an en
route failure occurs, a train may continue operating
in accordance with certain restrictions, including
speed limits that are based on the underlying signal
or train control system still in effect, outlined under
49 CFR 236.1029(b)(1) through (6).
13 Public Law 110–432, 122 Stat. 4848 (Oct. 16,
2008), codified as amended at 49 U.S.C. 20157(g).
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
FRA published its first final PTC rule on
January 15, 2010, which is set forth, as
amended, under 49 CFR part 236,
subpart I.14 FRA’s PTC regulations
under 49 CFR part 236, subpart I,
prescribe ‘‘minimum, performancebased safety standards for PTC systems
. . . including requirements to ensure
that the development, functionality,
architecture, installation,
implementation, inspection, testing,
operation, maintenance, repair, and
modification of those PTC systems will
achieve and maintain an acceptable
level of safety.’’ 49 CFR 236.1001(a).
FRA subsequently amended its PTC
regulations via final rules published in
2010, 2012, 2014, 2016, and 2021.15
Most recently, on July 27, 2021, FRA
amended its PTC regulations to improve
the process by which railroads submit,
and FRA reviews, RFAs to railroads’
FRA-certified PTC systems and their
associated PTC Safety Plans (PTCSPs),
and to establish more robust reporting
requirements to enable FRA to oversee
the reliability and performance of
railroads’ PTC systems effectively. Also,
in January 2023, FRA announced that it
issued a guidance document addressing
requirements related to the submission
of requests for waivers, applications to
modify or discontinue a signal system,
and other special approval requests to
FRA, and FRA underscored the
importance of ensuring that railroads’
filings contain sufficient, nonconfidential information for the public
to review and on which to comment.16
In this proposed rule, FRA proposes
to revise three sections, 49 CFR
236.1006, 236.1021, and 236.1029, of
FRA’s existing PTC regulations pursuant
to its specific authority under 49 CFR
1.89 and 49 U.S.C. 20157(g), and its
general authority under 49 U.S.C. 20103
to prescribe regulations and issue orders
for every area of railroad safety.
B. Public Participation Prior to the
Issuance of the NPRM
FRA regularly engages with host
railroads, tenant railroads, PTC system
vendors and suppliers, industry
associations, and labor organizations, as
part of FRA’s oversight of railroads’
14 75
FR 2598 (Jan. 15, 2010).
75 FR 59108 (Sept. 27, 2010); 77 FR 28285
(May 14, 2012); 79 FR 49693 (Aug. 22, 2014); 81
FR 10126 (Feb. 29, 2016); and 86 FR 40154 (July
27, 2021).
16 88 FR 1448 (Jan. 10, 2023); Federal Railroad
Administration, Guidance on Submitting Requests
for Waivers, Block Signal Applications, and Other
Approval Requests to FRA (Dec. 2022), available at
https://railroads.dot.gov/sites/fra.dot.gov/files/
2022-12/Guidance%20on%20Submitting%20
Waiver%20Special%20Approval%20Other%20
Requests%20for%20Approval%20
to%20FRA%20%28Dec%202022%29%20final.pdf.
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15 See
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operation of PTC systems on the
mandated main lines under 49 U.S.C.
20157 and the other lines where
railroads are voluntarily implementing
PTC technology. The purpose of this
section is to summarize FRA’s pertinent
meetings prior to the issuance of this
NPRM, pursuant to 49 CFR 5.5.
From November 2023 to February
2024, FRA met with the following four
industry associations and their member
railroads to discuss the objectives of this
NPRM and solicit their feedback: the
American Public Transportation
Association (APTA), the American
Short Line and Regional Railroad
Association (ASLRRA), the Association
of American Railroads (AAR), and the
Commuter Rail Coalition (CRC).
Representatives from the following 35
Class I railroads, commuter and
passenger railroads, and short line and
regional railroads, listed alphabetically,
attended one or more of the AAR,
APTA,17 ASLRRA, and CRC meetings
referenced immediately above: Alaska
Railroad; Altamont Corridor Express;
BNSF Railway (BNSF); Canadian
National Railway (CN); Canadian Pacific
Kansas City Limited (CPKC); Capital
Metropolitan Transportation Authority
(CMTY); Central Florida Rail Corridor
(CFRC); CSX Transportation, Inc. (CSX);
Denton County Transportation
Authority; Genesee & Wyoming Inc.
(G&W); Long Island Rail Road (LIRR);
Maryland Area Rail Commuter (MARC);
Massachusetts Bay Transportation
Authority (MBTA); Metro-North
Railroad (Metro-North); National
Railroad Passenger Corporation
(Amtrak); New Jersey Transit (NJT);
New Mexico Rail Runner Express;
Norfolk Southern Railway (NS); North
County Transit District (NCTD);
Northeast Illinois Regional Commuter
Railroad Corporation (Metra); Northern
Indiana Commuter Transportation
District (NICD); Northstar Commuter
Rail; Peninsula Corridor Joint Powers
Board (Caltrain); Regional
Transportation District (Denver RTDC);
Sonoma-Marin Area Rail Transit
(SMART); Sound Transit; South Florida
Regional Transportation Authority
(SFRTA); Southeastern Pennsylvania
Transportation Authority (SEPTA);
Southern California Regional Rail
Authority (Metrolink); TEXRail; TriCounty Metropolitan Transportation
District of Oregon (TriMet); Trinity
Railway Express (TRE); Union Pacific
Railroad (UP); Utah Transit Authority
17 In addition to FRA’s meeting with APTA, FRA
met with the following two user groups in February
2024, as coordinated through APTA: the Enhanced
Automatic Train Control (E–ATC) User Group and
the Interoperable Electronic Train Management
System (I–ETMS) User Group.
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(UTA FrontRunner); and Virginia
Railway Express (VRE).
In addition, for the same purpose,
FRA met with the following 10 labor
organizations in February 2024: the
American Train Dispatchers Association
(ATDA); the Brotherhood of Locomotive
Engineers and Trainmen, a Division of
the Rail Conference of the International
Brotherhood of Teamsters (BLET); the
Brotherhood of Maintenance of Way
Employes Division of the International
Brotherhood of Teamsters (BMWED);
the Brotherhood of Railroad Signalmen
(BRS); the Brotherhood of Railway
Carmen Division, Transportation
Communications International Union
(BRC); the International Association of
Machinists and Aerospace Workers
(IAM); the International Association of
Sheet Metal, Air, Rail, and
Transportation Workers—
Transportation Division (SMART–TD);
the International Brotherhood of
Electrical Workers (IBEW); the
Transport Workers Union of America
(TWU); and the Transportation Trades
Department, AFL–CIO (TTD).
In general, the four industry
associations and 35 railroads strongly
supported the three objectives of this
NPRM. The labor organizations FRA
met with supported FRA’s objective of
enabling operations while maintaining
rail safety, but they expressed concern
that regulatory flexibility might have the
unintended consequence of degrading
safety or delaying repairs to PTC
technology. Accordingly, with all
feedback in mind, FRA drafted its
proposed requirements and restrictions
in 49 CFR 236.1006(b)(6),
236.1021(m)(4), and 236.1029(g) to
prioritize rail safety, address limited
circumstances for facilitating repairs,
maintenance, and infrastructure
upgrades, and enable the safe, reliable,
and resilient movement of passengers,
commuters, and freight.
As the detailed feedback the
associations, railroads, and labor
organizations provided during the
meetings was directed at a specific
proposal in this NPRM, FRA discusses
the feedback in the appropriate portions
of Section III (Section-by-Section
Analysis) of this NPRM.
The proposals in this NPRM are based
on FRA’s own review and analysis and,
in part, on the feedback provided during
the meetings in 2023 and 2024,
specified above. FRA seeks comments
on all proposals made in this NPRM.
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III. Section-by-Section Analysis
Section 236.1006 Equipping
Locomotives Operating in PTC Territory
Existing paragraph (b) in § 236.1006
contains a list of exceptions to the
general requirement under paragraph (a)
that each locomotive, locomotive
consist, or train that operates on any
PTC-governed track segment ‘‘be
controlled by a locomotive equipped
with an onboard PTC apparatus that is
fully operative and functioning in
accordance with the applicable PTCSP
approved under this subpart.’’ 49 CFR
236.1006(a), (b)(1) through (5).
FRA proposes to add a new exception,
under proposed paragraph (b)(6), to
permit non-revenue passenger
equipment to operate to maintenance
facilities or yards, without being
governed by PTC technology, under
certain conditions. Currently, a similar
exception is available only to freight
railroads under existing paragraph (b)(5)
of this section. The purpose of new
proposed paragraph (b)(6) is to extend
that type of exception to movements of
certain non-revenue passenger
equipment, which would include
equipment owned or controlled by an
intercity passenger railroad or
commuter railroad.
The sole purpose of new proposed
paragraph (b)(6) is to enable nonrevenue passenger equipment, including
a locomotive, locomotive consist, or
train, to operate to a maintenance
facility or yard for the purpose of
repairing or exchanging a PTC system.
During FRA’s APTA and CRC meetings
in February 2024, several commuter
railroads, including CMTY, MARC,
Metro-North, NICD, and NJT,
commented that this proposed
exception would be beneficial and
necessary, as it would enable them, for
example, to operate a PTC-equipped
locomotive, where the onboard PTC
technology is not functioning and
requires repair, to a maintenance facility
or yard to repair or exchange the PTC
system or component. Without this
proposed provision, intercity passenger
railroads and commuter railroads would
need to utilize rescue trains or, in other
words, use an operative, PTC-equipped
locomotive, locomotive consist, or train
to move the non-operative, PTCequipped equipment to a maintenance
facility or yard. This proposed provision
will enable a railroad to repair the
equipment more efficiently, thus
helping improve rail safety.
During FRA’s meetings in February
2024, commuter railroads cited often
experiencing issues with transporting
equipment requiring repair to their
maintenance facilities, including
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16:25 Oct 25, 2024
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unavailability of equipment and
cascading schedule delays, and they
supported this proposed exception,
even though it would potentially
constrain some operations. For example,
the introductory text of proposed
paragraph (b)(6) makes it clear that this
proposed exception would apply only to
non-revenue movements, meaning no
intercity passenger or commuter rail
service could be provided while moving
this equipment not governed by a PTC
system.
Proposed paragraphs (b)(6)(i) through
(v) and (vii) outline the six additional
conditions FRA proposes an intercity
passenger railroad or commuter railroad
must satisfy while utilizing this
proposed exception. First, proposed
paragraph (b)(6)(i) would limit the
speed of the locomotive, locomotive
consist, or train to a maximum of 49
miles per hour (mph), which is
significantly slower than the normal
maximum authorized speed for
passenger equipment, which generally
ranges between 79 mph and 150 mph.
Second, proposed paragraph (b)(6)(ii)
would require an absolute block 18 to be
established in front of the locomotive,
locomotive consist, or train. This would
help ensure safety by essentially
eliminating the possibility of a train-totrain collision. During FRA’s February
2024 meetings, CMTY, SMART, and
UTA FrontRunner commented that they
currently use absolute blocks in similar
circumstances and supported the
proposal of this condition.
Third, proposed paragraph (b)(6)(iii)
specifies that there cannot be any
working limits established under part
214 of this chapter on any part of the
route. FRA proposes to eliminate the
risk of an incursion into an established
work zone by not permitting work zones
or any roadway workers at all on the
route the non-revenue passenger
equipment uses to reach the
maintenance facility or yard to repair or
exchange its PTC technology. To be
clear, roadway workers may not perform
any work on the route where the nonrevenue passenger equipment operates
subject to this proposed exception, until
after the equipment arrives at its
destination, the maintenance facility or
yard.
Fourth, proposed paragraph (b)(6)(iv)
specifies that the locomotive,
locomotive consist, or train could
operate in non-revenue service no
farther than the next forward location
designated in the railroad’s PTCSP for
18 Under
49 CFR 236.709, an absolute block is
defined as a ‘‘block in which no train is permitted
to enter while it is occupied by another train.’’
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the repair or exchange 19 of PTC
technology. During FRA’s meeting with
labor organizations in February 2024,
BLET and BRS commented that they
were concerned a railroad might utilize
this proposed exception to avoid
repairing the PTC system or to delay
repairing the PTC system by operating
the equipment to a more distant repair
location than available.
Relatedly, during a meeting in
February 2024, NICD observed that the
structure of commuter rail operations
would inherently prevent railroads from
overusing any exception or provision
that involves speed restrictions because
of the negative impact that has on their
operations. For example, even a single
train operating at a slower speed can
create scheduling issues and cascading
delays for commuter trains. In addition,
FRA expects that its proposed
conditions, including the imposition of
a speed restriction, the prohibition
against work zones, and an absolute
block requirement, would prevent
overuse of this exception. Also, FRA
crafted proposed paragraph (b)(6)(iv)
with BLET and BRS’s comments in
mind, and this proposed condition
would explicitly prohibit the nonrevenue passenger equipment from
operating farther than the next forward
designated location in the railroad’s
FRA-approved PTCSP.
Fifth, similar to a condition in the
existing freight version of this exception
in paragraph (b)(5) of this section,
proposed (b)(6)(v) would require the
railroad to protect the route against
conflicting operations and establish and
comply with sufficient operating rules
to protect against a train-to-train
collision and the movement of a train
through a switch left in the wrong or
improper position. This condition
would further reduce the possibility of
a train-to-train collision as it would
address traffic on intersecting tracks.
Furthermore, to protect against the
movement of a train through a switch
left in the wrong or improper position,
a railroad’s operating rules could, for
example, explain that the railroad
utilizes a system or technology capable
of monitoring switches. If a railroad
does not have such a system or
technology, a switch’s position must be
manually verified before any movement
over the switch points. To accomplish
this, a switch tender must check the
switch, or the train crew must stop and
then confirm the switch position before
operating over the switch.
19 To clarify, FRA notes that ‘‘exchange’’ is
intended to refer to the industry’s practice of, for
example, swapping out a defective component for
a functioning component.
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During an FRA meeting in February
2024, SFRTA inquired whether FRA
intends to limit the distance of the
movement of non-revenue passenger
equipment in this proposed exception,
as it does in the freight railroad
exception in existing paragraph (b)(5).
FRA notes that the purpose of the two
exceptions is different: the purpose of
the freight exception in paragraph (b)(5)
is to facilitate freight switching and
freight transfer train service, including
in revenue service, in or near yards,
whereas the purpose of the proposed
paragraph (b)(6) exception would be to
enable non-revenue passenger
equipment to reach maintenance
facilities or yards, without being
governed by PTC technology, for the
specific purpose of repairing or
exchanging a PTC system. The
commuter railroad SMART commented
that it would not be possible to identify
a specific distance that applies to all
cases because the distance to each
intercity passenger or commuter
railroad’s maintenance facilities and
yards, based on the starting point, is
unique. FRA agrees, as the applicable
distance varies greatly based on case-bycase circumstances. Accordingly, rather
than imposing an exact distance limit,
FRA expects that the five conditions in
proposed paragraphs (b)(6)(i) through
(v) would sufficiently define the scope
of this exception.
Proposed paragraph (b)(6)(vi)
provides that FRA may, in its discretion,
approve alternative criteria and
conditions, in a PTCSP or an RFA to a
PTCSP, if the railroad demonstrates that
the alternative criteria and conditions
would provide an equivalent or greater
level of safety than the default criteria
and conditions. FRA is proposing to add
this paragraph to mirror that
discretionary element of the freight yard
movements exception in existing
paragraph (b)(5)(vii). Proposed
paragraph (b)(6)(vi) provides the
opportunity for railroads to propose
alternative applications of this
exception to FRA for review and
approval. An intercity passenger
railroad or commuter railroad must
obtain FRA’s approval only if it seeks to
use alternative exception criteria or
conditions under proposed paragraph
(b)(6)(vi), whereas the standard
exception for non-revenue passenger
equipment movements would be
immediately available for use for any
movement that meets all default criteria
and conditions in proposed paragraphs
(b)(6)(i) through (v).20
20 FRA notes that railroads would report any use
of the proposed exception under 49 CFR
236.1006(b)(6) in their Quarterly Reports of PTC
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Finally, proposed paragraph (b)(6)(vii)
imposes a notification requirement that
a railroad must satisfy before moving
non-revenue passenger equipment
pursuant to this exception. Specifically,
this paragraph proposes that before
utilizing the default exception under
paragraphs (b)(6)(i) through (v) or the
discretionary exception under
paragraph (b)(6)(vi), the railroad must
notify each person involved with the
movement of the non-revenue passenger
equipment, including any dispatchers
and train crews, in addition to any
roadway workers who may no longer
work on that segment during the
movement subject to this exception.
Section 236.1021 Discontinuances,
Material Modifications, and
Amendments
On December 31, 2022, the regulatory
provision under 49 CFR 236.1029(g)(3)
expired, which previously permitted a
railroad to temporarily disable its PTC
system when necessary to perform PTC
system repair or maintenance, after
notifying an FRA regional office. As
§ 236.1029(g)(3) has expired, a simple
notification to FRA no longer suffices,
and a railroad must obtain FRA’s
approval through an RFA pursuant to 49
CFR 236.1021(m) before a railroad
temporarily disables its PTC system and
continues rail operations.
The purpose of existing § 236.1021, in
relevant part, is to prohibit a railroad
from making certain changes to its PTC
system or disabling or discontinuing its
PTC system, unless the railroad first
submits an RFA to its PTC system with
certain information and obtains FRA’s
approval.
This NPRM proposes to add a new
paragraph (m)(4) to § 236.1021 to clarify
that the RFA process under existing
paragraph (m) applies to a case where a
railroad seeks to temporarily disable its
PTC system, and to continue operations
during that time, to facilitate repair,
maintenance, infrastructure upgrades, or
capital projects. During FRA’s meetings
with AAR, APTA, ASLRRA, CRC, and
their member railroads in November
2023 and February 2024 to discuss this
NPRM, these four associations and
several railroads, including all Class I
railroads, Alaska Railroad, Amtrak,
G&W, Metra, Metro-North, Metrolink,
and SFRTA, expressed general support
for FRA’s proposal to revise existing
paragraph (m) to acknowledge explicitly
that it covers RFAs to PTC systems
involving temporary outages.
System Performance (Form FRA F 6180.152, OMB
Control No. 2130–0553), as either a ‘‘cut out’’ or
‘‘initialization failure’’ depending on the
circumstances and based on the definitions under
49 CFR 236.1003.
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Specifically, proposed paragraph
(m)(4) clarifies that a host railroad must
utilize the RFA process under paragraph
(m) to request and obtain FRA’s
approval of a temporary PTC system
outage, during which train movements
may continue, including a short-term
outage related to repair, maintenance,
an infrastructure upgrade, or a capital
project.21 To provide non-exhaustive
examples of what a temporary PTC
system outage includes, proposed
paragraph (m)(4) clarifies that the term
includes, but is not limited to, any
scenario when the onboard PTC
apparatus or subsystem, wayside
subsystem, communications subsystem,
or back office subsystem would be
disabled. FRA interprets the term
‘‘disabled’’ broadly and acknowledges
the industry also uses the verb
‘‘disengage’’ interchangeably in this
context.
Consistent with the current process
under existing paragraph (m), proposed
paragraph (m)(4)(i) provides that a
railroad may temporarily disable PTC
technology pursuant to this paragraph
only after it obtains approval from the
Director of FRA’s Office of Railroad
Systems and Technology.
Based on FRA’s experience reviewing
RFAs involving temporary outages
throughout 2023 and 2024 to date, FRA
found that the current content
requirements for RFAs to PTC systems
under existing paragraph (m)(2) do not
yield sufficient information for FRA to
assess the full scope and circumstances
of each proposed temporary outage.
Accordingly, proposed paragraphs
(m)(4)(ii)(A) through (I) identify nine
additional content elements this type of
RFA must include, in addition to the
standard content requirements under
paragraph (m)(2), which apply to a
broader cross-section of RFAs to PTC
systems and PTCSPs.
Proposed paragraph (m)(4)(ii)(A)
would require this specific type of RFA
to describe the necessity for the
proposed temporary outage. For
example, in 2023 and 2024, railroads
have filed RFAs seeking to temporarily
disable a PTC system to facilitate the
installation of automatic train control or
a new interlocking, or to execute an
upgrade of a computer-aided dispatch
system, a back office server migration or
replacement, or an electrical
infrastructure upgrade. This section of
the RFA would explain why temporarily
21 Several railroads have expressed that their
chief concern is a path forward for undertaking
non-PTC-related capital projects that necessitate
temporarily disabling the PTC system, and FRA is
using the general term ‘‘capital projects’’ in this
NPRM to avoid any ambiguity and clarify that this
process applies to such projects.
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disabling a PTC system is technically
necessary to perform that type of repair,
maintenance, infrastructure upgrade, or
capital project.
Proposed paragraph (m)(4)(ii)(B)
would require the RFA to describe the
physical limits and PTC system
functions that would be affected by the
proposed temporary outage. This
section of the RFA would require an
analysis that demonstrates the affected
physical limits and affected functions
pose the least risk to railroad safety,
compared to other options. To assess the
RFA, FRA needs to understand the exact
location(s) that will be impacted,
including milepost limits and other
descriptors. Identifying the precise PTC
system functions that would be
impacted is also essential for FRA to
understand the scope of the temporary
outage, as an outage might impact only
a narrow set of PTC system capabilities.
Proposed paragraph (m)(4)(ii)(C)
would require the RFA to include an
explanation about how the proposed
temporary outage is in the public
interest and consistent with railroad
safety. Existing § 236.1021(f) requires
FRA to determine whether granting a
request is in the public interest and
consistent with railroad safety, and it is
important for an RFA to provide such
information.
Proposed paragraph (m)(4)(ii)(D)
would require the railroad to provide
the proposed timeframe of the
temporary outage and an analysis that
demonstrates the proposed period poses
the least risk to railroad safety,
compared to other times. This proposal
mirrors a similar requirement under
former § 236.1029(g)(3)(ii), which
expired in December 2022. FRA has
seen railroads prudently identify the
timeslot of a specific day of the week
with the least traffic, which is what FRA
expects this content requirement will
help ensure in future RFAs.
As a note, FRA has also seen cases
where a railroad avoids needing to
submit and obtain FRA’s approval of an
RFA involving a temporary outage, as
the railroad either ceases all operations
until it finishes the relevant work, or the
railroad selects a time when no trains
will operate. FRA commends railroads
for structuring their projects that way
and expects railroads to submit an RFA,
seeking to disable its PTC system
temporarily with continued rail service,
under proposed paragraph (m)(4) only
when ceasing operations would not be
feasible.
Relatedly, proposed paragraph
(m)(4)(ii)(E) would require the RFA to
include both a justification and an
analysis that show how the proposed
duration of the temporary outage is the
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minimum time necessary to complete
the pertinent work, test the PTC system,
and place the PTC system back into
service without undue delay. FRA
highlights that proposed paragraph
(m)(4) is intended to address short-term
outages only, and FRA will deny an
RFA that seeks to disable a PTC system
for an unreasonable, extensive period.
In general, PTC-mandated main lines
must be governed by PTC technology,
given the presence of intercity passenger
rail, commuter rail, or certain freight
transportation. See, e.g., 49 U.S.C.
20157(a); 49 CFR 236.1005(b),
236.1006(a). Railroads must show how
the length of the proposed temporary
outage is the minimum amount of time
needed based on the circumstances,
which could include outlining a precise
schedule and the number of hours
involved in each phase and
justifications for each timeframe.
Proposed paragraph (m)(4)(ii)(F)
would require the RFA to outline the
type and frequency of rail operations
that would continue during the
proposed temporary outage, including
those of the host railroad and each
tenant railroad.
Proposed paragraph (m)(4)(ii)(G)
would require the RFA to identify the
applicable speed limit of any train that
would operate during the proposed
temporary outage, and any other
operating restrictions in place to ensure
rail safety. For example, a properly
drafted RFA will outline the railroad’s
proposed reduced speed for each type of
freight train, based on the commodity
transported, and each intercity
passenger or commuter train, compared
to the normal authorized speeds.
Proposed paragraph (m)(4)(ii)(H)
would require the railroad to specify in
its RFA the additional safety measures
that the host railroad and each tenant
railroad must comply with during the
proposed temporary outage, to ensure
each type of PTC-preventable accident
or incident does not occur. Specifically,
such safety measures must be designed
to prevent a train-to-train collision, an
over-speed derailment, an incursion
into an established work zone, and a
movement of a train through a switch
left in the wrong position. It is integral
that FRA understands exactly how the
railroad will mitigate and eliminate the
risk of each type of PTC-preventable
accident and incident during the shortterm PTC system outage. For example,
a railroad might propose to utilize an
absolute block to mitigate and eliminate
the risk of a train-to-train collision,
enforce speed limits through the use of
other technology, suspend the
establishment of work zones, and
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Fmt 4702
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protect switches through other specific
means.
Finally, proposed paragraph
(m)(4)(ii)(I) would require the railroad to
confirm in its RFA that each impacted
railroad (including the host railroad and
any applicable tenant railroads) will
notify all applicable dispatchers, train
crews, and roadway workers about the
temporary PTC system outage (if FRA
authorizes it), including the specific
location and duration of the temporary
outage, the additional safety measures
with which the railroad must comply,
and any actions the individual must
take during the temporary outage. FRA
expects that the proposed specific
information an RFA must contain under
proposed paragraphs (m)(4)(ii)(A)
through (H) would aid the railroad in
these notifications. The railroad may
make these notifications in accordance
with the railroad’s operating rules and
practices, which may require, for
example, such information to be
provided via track bulletins, dispatcher
bulletins, or special instructions.
Also, FRA notes that its 45-day
review-and-decision period under
existing paragraph (m) begins when a
railroad properly files a complete RFA
with all information required under
paragraph (m). To be clear, the 45-day
clock will not begin on that initial filing
date, if an RFA to a PTC system,
involving a temporary outage, fails to
include any of the contents explicitly
required under existing paragraphs
(m)(2)(i) through (iv) or the additional
content requirements FRA is proposing
in paragraphs (m)(4)(ii)(A) through (I).22
Instead, consistent with the current
§ 236.1021(m) process, the 45-day clock
begins on the date the railroad or
railroads properly submit any remaining
information required under existing
paragraph (m)(2)(i) through (iv) and
proposed paragraphs (m)(4)(ii)(A)
through (I). FRA expects this will help
ensure a railroad submits a complete
RFA, with all required information, in
its initial filing.
In addition, FRA acknowledges that it
currently publishes a notice in the
Federal Register when a railroad
submits an RFA to its PTC system under
existing § 236.1021(m) and invites
public comment on the RFA. See 49
CFR 236.1021(e). During FRA’s meeting
with labor organizations in February
2024, TTD requested confirmation that
FRA will not eliminate the opportunity
for the public to comment on these
RFAs. FRA confirmed during that
22 Consistent with FRA’s current practice, if an
RFA is missing required information, an FRA PTC
specialist will contact the railroad via email to
inform the railroad of the missing, required
content(s).
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meeting that RFAs submitted pursuant
to proposed paragraph (m)(4), like all
RFAs submitted pursuant to paragraph
(m), will be announced in the Federal
Register, and the public will be afforded
an opportunity to review and comment
on such RFAs. That notice and
comment requirement under
§ 236.1021(e) is outside the scope of this
NPRM and will remain part of FRA’s
regulations. As a reminder, FRA’s
December 2022 guidance document
underscores the importance of ensuring
that railroads’ filings contain sufficient,
non-confidential information for the
public to review and on which to
comment.23
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Section 236.1029 PTC System Use and
Failures
Currently, paragraphs (g)(1) through
(3), entitled ‘‘Temporary exceptions,’’ of
this section set forth expired
regulations. Specifically, existing
paragraph (g) indicates that paragraphs
(g)(1) through (3) were in effect from
October 21, 2014, through December 31,
2022. FRA proposes to replace existing
paragraphs (g)(1) through (3) with new
provisions that deal directly with
initialization failures. FRA’s existing
regulations, at 49 CFR 236.1003, define
‘‘initialization failure’’ as ‘‘any instance
when a PTC system fails to activate on
a locomotive or train, unless the PTC
system successfully activates during a
subsequent attempt in the same location
or before entering PTC-governed
territory.’’ 24 In relevant part, nowexpired paragraph (g)(2) previously
permitted any train to continue
operating subject to certain speed limits,
potentially indefinitely, if a PTC system
failed to initialize for any reason.
FRA recognizes that unplanned
outages and other technical issues
continue to occur, causing PTC systems
to fail to initialize, based on FRA’s
oversight and railroads’ Quarterly
Reports of PTC System Performance.25
Railroads’ Quarterly Reports of PTC
23 88 FR 1448 (Jan. 10, 2023); Federal Railroad
Administration, Guidance on Submitting Requests
for Waivers, Block Signal Applications, and Other
Approval Requests to FRA (Dec. 2022), available at
https://railroads.dot.gov/sites/fra.dot.gov/files/
2022-12//Guidance%20/on%20/Submitting%20/
Waiver%20/Special%20Approval%20/
Other%20Requests%20/for%20Approval%20/
to%20FRA%20%28/Dec%202022%29%/20final./
pdf.
24 The definition under 49 CFR 236.1003 also
clarifies, ‘‘For the types of PTC systems that do not
initialize by design, a failed departure test is
considered an initialization failure for purposes of
the reporting requirement under § 236.1029(h),
unless the PTC system successfully passes the
departure test during a subsequent attempt in the
same location or before entering PTC-governed
territory.’’
25 Form FRA F 6180.152, OMB Control No. 2130–
0553; 49 U.S.C. 20157(m).
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System Performance show, for example,
that PTC technology failed to initialize
on approximately 236 intercity
passenger or commuter trains and 894
freight trains in 2023.26 Additionally,
FRA, based on voluntary reporting by
railroads, is aware of eight (8) systemlevel outages that occurred in 2023 that
caused trains to fail to initialize.
During FRA’s meetings in November
2023 and February 2024, AAR, APTA,
ASLRRA, CRC, and many railroads 27
conveyed strong support for FRA’s
proposal to reintroduce requirements
analogous to the provision that expired
in 2022. Consistent with FRA’s own
observations, AAR, APTA, ASLRRA,
CRC, and their member railroads
underscored the need for FRA to
establish a process to enable railroads to
continue operating safely, following
certain initialization failures, because
otherwise freight, intercity passenger,
and commuter trains will be unable to
depart from their initial terminals or
other locations and provide necessary
transportation.
Specifically, FRA’s intention in this
NPRM is to address only system-level
outages or failures that result in
multiple trains’ PTC systems failing to
initialize, like when a back office server
goes down, impacting the trains of the
host railroad and most, if not all, of its
tenant railroads. Accordingly, FRA
proposes to provide a caveat in
proposed paragraph (g)(4), which would
specify that the relief under paragraph
(g)(1), discussed below, does not apply
to a single train that experiences an
onboard PTC system failure when
attempting to initialize. The purpose of
proposed paragraph (g) is to address
issues affecting multiple trains.
During FRA’s meeting with labor
organizations in February 2024, BLET,
BRS, and TTD acknowledged that FRA’s
objective in proposed paragraph (g) is to
enable operations while maintaining rail
safety, but they expressed concern for
the potential unintended consequence
of degrading safety or delaying repairs
to PTC technology. FRA agrees that it is
important to structure proposed
26 The referenced initialization failures exclude
any initialization failures where the source or cause
was the onboard subsystem, as proposed paragraph
(g)(3) excludes such initialization failures from
receiving the flexibility afforded under proposed
paragraph (g). FRA is citing to the relevant
initialization failures where the source or cause
was, for example, the back office, wayside, or
communications subsystems because those types of
issues would generally impact more than one train
and would be within the scope of this proposed
provision.
27 Including, for example, Alaska Railroad,
Amtrak, BNSF, Caltrain, CN, CPKC, CSX, Denver
RTDC, G&W, MARC, MBTA, Metra, Metrolink,
NICD, NJT, NS, OmniTRAX, TEXRail, TRE, UP,
UTA FrontRunner, VRE, and Watco.
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paragraph (g) to ensure railroads,
vendors, and suppliers identify and fix
any issues causing initialization failures
immediately.
To ensure this provision is utilized
only when necessary and railroads and
their vendors and suppliers identify and
promptly resolve the root cause of
initialization failures, FRA is proposing
to impose two tiers of operating
requirements that would become
increasingly restrictive over time. FRA
expects this will help strike the
appropriate balance between enabling
continued operations, subject to
restrictions, and restoring PTC systems
as quickly as possible.
First, proposed paragraph (g)(1)(i)
provides that when a PTC system fails
to initialize as defined in § 236.1003, a
train may proceed, during the first 24
hours, only as prescribed under existing
paragraphs (b)(1) through (6) of
§ 236.1029. FRA is proposing to require
railroads to utilize the current operating
restrictions set forth in existing
paragraphs (b)(1) through (6) because
railroads, including train crews, are
accustomed to complying with those
speed limits and other restrictions when
they experience en route failures, and
those restrictions are based on the
underlying signal or train control
system still in effect. During FRA’s
meetings, the following railroads
explicitly recommended this approach,
based on industry’s longstanding use of
these operating restrictions when PTC
technology fails or is otherwise cut out
en route: Alaska Railroad, Amtrak,
BNSF, CN, CPKC, CSX, G&W, MARC,
Metra, Metrolink, NICD, NS, and UP.
Second, proposed paragraph (g)(1)(ii)
states that after the first 24 hours, the
train may proceed only as prescribed
under paragraphs (b)(4) through (6) of
this section and must not exceed
restricted speed as defined in
§ 236.1003. FRA proposes to require
compliance with existing paragraphs
(b)(4) through (6) as they contain other
applicable restrictions and
communication requirements.28
However, instead of the standard speed
restrictions under existing paragraph
(b), this stricter tier of operating
restrictions would limit any train that
utilizes this provision beyond 24 hours
to restricted speed, which is defined as
a ‘‘speed that will permit stopping
28 Specifically, 49 CFR 236.1029(b)(4) through (6)
require notifying the designated railroad officer of
the failure or cut out as soon as safe and practicable,
impose further operating restrictions if the PTC
system is the exclusive method of delivering
mandatory directives, and prohibit operating farther
than the next forward designated location for the
repair or exchange of onboard PTC apparatuses, if
the failure or cut out was the result of a defective
onboard PTC apparatus.
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within one-half the range of vision, but
not exceeding 20 miles per hour.’’ 29
During FRA’s meetings with APTA,
CRC, and their member railroads in
February 2024, several commuter
railroads, including Denver RTD,
MARC, Metra, NICD, NJT, TEXRail,
TRE, and UTA FrontRunner supported
FRA’s intention to propose a two-tiered
framework. For example, MARC and
NICD noted that the unplanned outages
they recently experienced were resolved
in approximately two hours, which
means those trains, in a similar scenario
under this proposed framework, would
be subject to the standard operating
restrictions under existing paragraph
(b). Furthermore, these commuter
railroads expressed appreciation that
this proposed framework—with more
flexibility on day one—would enable
them to transport commuters to their
destination if PTC technology fails
midday and trains are unable to
initialize the PTC system for the
remainder of the day. Without this
proposed provision, if a train’s PTC
system fails midday and is not restored
by the evening rush hour, commuters
attempting to return home would be
forced to rely on alternative modes of
transportation, with little to no notice.
These eight commuter railroads also
recognized that a clear, tiered
approach—which introduces additional
restrictions, including restricted speed,
24 hours after the onset of the technical
issue—would enable railroads to
communicate effectively with their
customers if the railroad finds that an
issue cannot be remedied within the
first 24 hours. Commuter railroads
emphasized the importance of being
able to provide advance notice to their
customers about the speed restrictions
that would apply the following day, as
that could result in service reductions.
Several stakeholders, including
ASLRRA, ATD, NJT, and UTA
FrontRunner, stressed that the operating
restrictions FRA proposes in paragraph
(g) should be as simple, straightforward,
and objective as possible given the
complexity of other PTC regulations.
Furthermore, FRA recognizes that
predictability and transparency are vital
when it comes to a process that will
govern whether and how intercity
passenger, commuter, and freight rail
transportation may continue.
Proposed paragraph (g)(2) imposes a
notification requirement that a railroad
must, as early as is possible, ensure
workers are aware of PTC system-level
outages and corresponding operating
restrictions. Specifically, proposed
29 49 CFR 236.1003 (citing to the definition in
subpart G, at 49 CFR 236.812).
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paragraph (g)(2) requires each railroad
operating in accordance with (g)(1) to
notify, as early as is possible, all
dispatchers, train crews, and roadway
workers about PTC system-level outages
or failures that result in multiple trains’
PTC systems failing to initialize, which
result in trains proceeding in
accordance with operating restrictions.
Railroads must ensure job safety
briefings reflect such operations.
Proposed paragraph (g)(3) proposes to
require railroads to attempt to initialize
the PTC system again, when the reason
it is not initializing is loss of
communications or lack of navigational
information, like temporary lack of
access to the Global Positioning System
(GPS)TM. FRA is aware of multiple PTC
systems that rely on GPS, like I–ETMS
and the Incremental Train Control
System. Specifically, proposed
paragraph (g)(3) would require,
notwithstanding the relief under
paragraph (g)(1), that when a PTC
system fails to initialize due to loss of
communications or lack of navigational
information, the train must attempt to
initialize the PTC system again at the
next forward, available location. The
next forward, available location,
depending on the circumstances, could
be a segment of a main line, a siding, a
yard, or a station, whichever is closest.
In addition, FRA acknowledges that
PTC systems are comprised of many
subsystems and are often interfaced
with other technology. For example, at
an AAR meeting in November 2023, CN
emphasized that the nature of a system
of subsystems, like PTC technology,
means there is always the possibility of
an outage, as a PTC system relies or
depends on the proper functioning of
many subsystems. Similarly, FRA is also
aware that PTC systems have failed to
initialize due to a failure of an
interfaced system, like a dispatching
system or an electronic storage system.
Accordingly, FRA wants to clarify that
proposed paragraphs (g)(1) through (5)
of this section likewise apply to cases in
which a PTC system fails to initialize
due to an issue or failure arising from
a subsystem or an interfaced system.
In addition, FRA wants to offer a
clarification about the application of
proposed paragraphs (g)(1) to (5) to the
Advanced Civil Speed Enforcement
System II (ACSES II). An initialization
failure is defined in existing § 236.1003
as ‘‘any instance when a PTC system
fails to activate on a locomotive or train,
unless the PTC system successfully
activates during a subsequent attempt in
the same location or before entering
PTC-governed territory.’’ Section
236.1003 specifies that for the types of
PTC systems that do not initialize by
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design, like ACSES II, a failed departure
test is considered an initialization
failure, unless the PTC system
successfully passes the departure test
during a subsequent attempt in the same
location or before entering PTCgoverned territory. ACSES II typically
encompasses automatic train control
(ATC), and FRA wants to emphasize
that the FRA-certified PTC system,
however, is ACSES II.30 If ACSES II fails
to initialize (i.e., fails its departure test),
an ACSES II-equipped train may utilize
the relief outlined in proposed
paragraph (g) of § 236.1029. By contrast,
however, if ATC fails its departure test,
a railroad must comply with all
applicable signal and train control
prohibitions and restrictions in other
subparts of part 236. FRA wants to
address this nuance to clarify that
proposed paragraph (g) does not
supersede other existing signal and train
control regulations that directly govern
ATC.
Finally, proposed paragraph (g)(5)
recognizes that FRA may impose
additional operating restrictions and
other conditions to address recurring
issues that result in multiple trains’ PTC
systems failing to initialize. For
example, under proposed paragraph
(g)(5), FRA could require the applicable
railroads and PTC system vendors and
suppliers to take certain actions or
satisfy additional reporting
requirements, as they resolve the
recurring issues. In addition, proposed
paragraph (g)(4) would clarify that FRA
reserves the right to deny the relief
under proposed paragraph (g)(1) for
recurring issues that result in multiple
trains’ PTC systems failing to initialize.
Although the relief under proposed
paragraph (g)(1) is generally selfexecuting, FRA may choose to intervene
under proposed paragraph (g)(5) and
deny such relief if, for example, a
railroad and/or its applicable PTC
system vendor and supplier are not
sufficiently correcting a recurrent
problem.
IV. Regulatory Impact and Notices
A. Executive Order 12866 as Amended
by Executive Order 14094
This proposed rule is a nonsignificant
regulatory action under Executive Order
12866, as amended by Executive Order
14094, Modernizing Regulatory
Review,31 and DOT Order 2100.6A
(‘‘Rulemaking and Guidance
Procedures’’). FRA made this
30 Or in NJT’s case, the Advanced Speed
Enforcement System II (ASES II).
31 88 FR 21879 (Apr. 11, 2023), available at
https://www.federalregister.gov/documents/2023/
04/11/2023-07760/modernizing-regulatory-review.
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determination by finding that the
economic effects of this proposed
regulatory action would not exceed the
$100 million annual threshold defined
by Executive Order 12866.
FRA complied with OMB Circular A–
4 when accounting for benefits, costs,
and cost savings relative to a baseline
condition. Typically, a baseline
represents a best judgement about what
the world would be like in the absence
of the regulatory interventions.32
In this analysis, discount rates are
used to account for differences in the
timing of the estimated benefits and
costs. Benefits and costs that accrue
further in the future are more heavily
discounted than those impacts that
occur today. Discounting reflects
individuals’ general preference to
receive benefits sooner rather than later
(and defer costs) and recognizes that
costs incurred today are more expensive
than future costs because businesses
must forgo an expected rate of return on
investment of that capital.33 OMB
recommends using a discount rate of 2
percent.34 This represents the real
(inflation-adjusted) rate of return on
long-term Federal Government debt over
the last 30 years, calculated between
1993 and 2022, and is considered a
reasonable approximation of the social
rate of time preference.
FRA analyzed the economic impact of
this proposed rule over a 10-year period
and estimated its costs and benefits, as
shown in the table below. The total
estimated 10-year net benefits of this
proposed rule would be $81.8 million
(discounted at 2 percent), and the
annualized net benefits would be $9.1
million (discounted at 2 percent). The
industry benefits associated with FRA’s
proposal to amend three provisions—
i.e., to introduce a new exception for
85471
certain non-revenue passenger
equipment movements, improve the
RFA process regarding temporary PTC
system outages, and permit continued
operations following certain
initialization failures, subject to
operating restrictions—would outweigh
the industry costs and government
administrative costs associated with
FRA’s proposal to expand the content
requirements for RFAs related to
temporary outages.
The following table shows the
estimated 10-year benefits, net benefits,
and costs of the proposed rule. The total
10-year estimated benefits would be
$83.5 million (discounted at 2 percent),
with annualized benefits at $9.3 million
(discounted at 2 percent). The total 10year estimated costs would be $1.8
million (discounted at 2 percent), with
annualized costs at $0.2 million
(discounted at 2 percent).
TABLE B—TOTAL 10-YEAR DISCOUNTED BENEFITS, COSTS, AND NET BENEFITS
[2023 Dollars] 1
Category
Industry Benefits ........................................................
Total Costs 2 ...............................................................
Industry Costs ............................................................
Government Administrative Costs .............................
Net Benefits 3 ......................................................
Present
value 2%
($)
Present
value 3%
($)
Present
value 7%
($)
83,534,444
1,760,775
1,514,075
246,700
81,773,669
80,105,191
1,688,492
1,451,919
236,573
78,416,699
68,518,285
1,444,258
1,241,905
202,353
67,074,027
Annualized
2%
($)
9,299,600
196,021
168,557
27,464
9,103,579
Annualized
3%
($)
9,390,772
197,943
170,209
27,734
9,192,829
Annualized
7%
($)
9,755,462
205,630
176,819
28,811
9,549,832
1 Numbers in this table and subsequent tables may not sum due to rounding. The present value of costs and benefits are calculated in this
analysis. Present value provides a way of converting future benefits into equivalent dollars today. The formula used to calculate the present
value at the particular discount rate is: 1/(1+r)t, where ‘‘r’’ is the discount rate, and ‘‘t’’ is the year. Discount rates of 2%, 3%, and 7% are used in
this analysis.
2 Total Costs = Industry Costs + Government Administrative Costs.
3 Net Benefits = Industry Benefits—(Industry Costs + Government Administrative Costs). FRA notes that the net industry benefits of this proposed rule may help reduce the overall industry costs for implementing and operating PTC systems.
1. Ten-Year Benefits
Proposed 49 CFR 236.1006(b)(6)
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FRA analyzed the potential industry
benefits of the three proposed
amendments. Overall, the three
proposed amendments would benefit
the railroad industry, the public, and
FRA by facilitating repairs,
maintenance, upgrades, and capital
improvements; expanding certain
railroad informational requirements;
reducing costs; and enabling the safe,
reliable, and resilient movement of
people and goods, while preserving rail
safety.
32 U.S. Office of Management and Budget,
Circular A–4 (Nov. 9, 2023), available at https://
www.whitehouse.gov/wp-content/uploads/2023/11/
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The proposed exception under
§ 236.1006(b)(6) would enable nonrevenue passenger equipment, including
a locomotive, locomotive consist, or
train without passengers onboard, to
operate to a maintenance facility or yard
for the sole purpose of repairing or
exchanging a PTC system. To ensure rail
safety, FRA is proposing to impose five
conditions on each movement of nonrevenue passenger equipment subject to
this exception, including speed and
distance restrictions, the requirement to
establish an absolute block, and other
protections of the route.
In assessing the potential benefits of
the proposed provision, FRA focused on
the impact on train operations in the
absence of this proposed rule. The
methodology employed involved
estimating the transportation costs
associated with relocating nonoperative, PTC-equipped passenger
equipment to a maintenance facility or
yard to repair or exchange the PTC
technology. For example, without this
proposed provision, intercity passenger
railroads and commuter railroads would
need to use an operative, PTC-equipped
locomotive, locomotive consist, or train
to move the non-operative, PTCequipped equipment to a maintenance
facility or yard.
CircularA-4.pdf. See Section 4, Developing an
Analytic Baseline, pages 11–14.
33 U.S. Office of Management and Budget,
Circular A–4 (Nov. 9, 2023). See Section 12,
Discount Rates, pages 75–82.
34 Id.
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Based on consultation with FRA
subject matter experts, FRA calculated
the potential benefits for train
operations, under proposed
§ 236.1006(b)(6), by multiplying the
expected number of impacted passenger
equipment by the transportation cost of
moving that equipment to a
maintenance facility or yard. FRA
estimated a range of $3,000 to $4,000 to
transport this type of equipment, or an
average cost of $3,500 per piece of
equipment, similar to the amount
utilized in another FRA NPRM 35 to
estimate the transportation cost of
moving an empty car. FRA estimates
that the transportation cost savings of
moving this equipment is the estimated
number of non-revenue passenger
equipment that may use this proposed
exception (i.e., 30 per year or 1 per
intercity passenger or commuter
railroad 36), multiplied by the expected
transportation cost of $3,500, resulting
in an overall transportation cost savings
of $105,000 annually. Given the
uncertainty about the amount of affected
equipment and the five safety
conditions or restrictions that FRA is
proposing a railroad must comply with
while utilizing this exception, FRA is
seeking input from the public on
whether the cost of these five safety
conditions, which FRA did not calculate
due to insufficient data, might reduce
the calculated net benefits.
Over a 10-year period, FRA estimates
that this proposed provision would
result in potential benefits of $1 million,
at the 2-percent discount, or on an
annual basis, $107,100, at the 2 percent
discount.
TABLE C—POTENTIAL BENEFITS FROM PERMITTING NON-REVENUE PASSENGER EQUIPMENT TO OPERATE TO
MAINTENANCE FACILITIES OR YARDS WITHOUT PTC—10-YEAR BENEFIT
Undiscounted
benefit
($)
lotter on DSK11XQN23PROD with PROPOSALS1
Year
Present
value 2%
($)
Present
value 3%
($)
Present
value 7%
($)
1 .......................................................................................................................
2 .......................................................................................................................
3 .......................................................................................................................
4 .......................................................................................................................
5 .......................................................................................................................
6 .......................................................................................................................
7 .......................................................................................................................
8 .......................................................................................................................
9 .......................................................................................................................
10 .....................................................................................................................
105,000
105,000
105,000
105,000
105,000
105,000
105,000
105,000
105,000
105,000
105,000
102,941
100,923
98,944
97,004
95,102
93,237
91,409
89,616
87,859
105,000
101,942
98,973
96,090
93,291
90,574
87,936
85,375
82,888
80,474
105,000
98,131
91,711
85,711
80,104
74,864
69,966
65,389
61,111
57,113
Total ..........................................................................................................
Annualized ................................................................................................
1,050,000
........................
962,035
107,100
922,541
108,150
789,099
112,350
Proposed 49 CFR 236.1021(m)(4)
Under proposed § 236.1021(m)(4), a
railroad seeking to temporarily disable
its PTC system, for certain purposes, can
request FRA’s approval through the
standard RFA process under existing
§ 236.1021(m). There have been no
accidents or incidents associated with
railroads’ RFAs for temporary PTC
system outages from 2022 to early 2024,
the relevant period during which FRA
began approving such outages by
regulation.
Based on past RFA filings from 2022
to early 2024 involving temporary PTC
system outages, FRA estimates that
railroads will file approximately 15
RFAs, on average on an annual basis,
under proposed § 236.1021(m)(4) in the
future. FRA estimates that two-thirds of
railroads’ RFAs would involve a PTC
system outage lasting for a few hours,
while one-third would seek to disable
PTC technology for a period of days,
given the different nature of underlying
capital improvement or maintenance
projects. FRA used the Bureau of
35 87
FR 43467 (July 21, 2022).
FRA is counting any intercity passenger
railroad or commuter railroad, including tenant
railroads that provide such service, as the proposed
exception is not limited to host railroads.
36 Here,
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Transportation Statistics’ (BTS) 2021
fare rates for intercity passenger and
commuter rail transportation—i.e., a
$72.10 average rate for Amtrak and a
$6.30 average rate for commuter
railroads. FRA estimated weighted fare
rates by using those average 2021 BTS
fare rates and analyzing past, pertinent
RFAs to estimate that the average fare
rate would be approximately $11 for
each intercity passenger railroad or
commuter railroad that submits an RFA
pursuant to § 236.1021(m)(4) in the
future.37
Similarly, FRA analyzed the average
number of passengers or commuters per
train movement 38 during a temporary
PTC system outage by analyzing past
RFAs and found that each train carries,
on average, approximately 200
passengers or commuters. Likewise,
FRA analyzed the average number of
train movements during a temporary
PTC system outage by analyzing past
RFAs and estimating the expected
number of filings by type of railroad.
Based on past RFAs, FRA estimates that
on average, 5 trains operate during a
freight railroad’s temporary PTC system
outage; 12 trains operate during an
intercity passenger or commuter
railroad’s PTC system outage that lasts
24 hours or less; and 1,700 trains
operate during an intercity passenger or
commuter railroad’s PTC system outage
that lasts longer (days). For freight
railroads, the average cost per train
movement is $250, based on previous
FRA estimates.
Then, the expected annual number of
RFAs, involving temporary PTC system
outages, is multiplied by: (1) the average
number of train movements during the
temporary outage; (2) the average cost
per fare or train movement; and (3) the
average number of passengers or
commuters per train (for intercity
passenger or commuter railroads), and is
then adjusted for reduced speed.39 As
shown in the tables below, the 15
relevant RFAs that FRA expects to
receive annually would result in
$8,578,734 in total benefits,
undiscounted, per year. FRA notes this
37 U.S. Department of Transportation, Bureau of
Transportation Statistics, Transportation Economic
Trends (2022), available at https://data.bts.gov/
stories/s/5h3f-jnbe#transportation-fares.
38 By ‘‘train movement,’’ FRA is referring to the
movement or operation of a train.
39 In its decision letters approving such RFAs,
FRA typically requires railroads to comply with the
operating restrictions under 49 CFR 236.1029(b),
which limit the speed of trains depending on the
underlying signal or train control system.
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calculation did not include variable
operating costs such as fuel expenses
and other operational costs.
Determining these costs is challenging
when assessing benefits. Therefore, the
estimated benefits could be reduced by
these variable operating costs, although
the exact amount is unclear.40
Additionally, FRA is seeking comments
on this economic analysis, its
85473
underlying assumptions, and any
additional benefits that could be
quantified, like the potential impact to
ridership from avoiding related train
delays or cancelations.
TABLE D—RFA FILINGS INVOLVING TEMPORARY PTC SYSTEM OUTAGES—BENEFITS
Estimated
number of
RFAs per year
Average
number of
train
movements
during outage
Average
cost per fare
or train
movement
($)
Average
number of
passengers
per train
RFA average
benefit
(adjusted for
reduced
speed)
($)
PTC System Outages (Hours)—Freight Railroads ..............
PTC System Outages (Hours)—Passenger or Commuter
Railroads ..........................................................................
PTC System Outages (Days)—Passenger or Commuter
Railroads ..........................................................................
2
5
250
N/A
2,076
10
12
11
200
197,165
3
1,700
11
200
8,379,494
Total ..............................................................................
15
........................
........................
........................
8,578,734
Over a 10-year period, FRA estimates
railroads will submit approximately 150
RFAs under proposed § 236.1021(m)(4)
with potential benefits of $78.6 million,
at the 2-percent discount, or $8.8
million, at the 2-percent discount, on an
annual basis.
TABLE E—POTENTIAL BENEFITS FROM CONTINUOUS TRAIN OPERATIONS ASSOCIATED WITH RFAS FOR TEMPORARY PTC
SYSTEM OUTAGES—10-YEAR BENEFIT
Undiscounted
($)
Year
Present
value 3%
($)
Present
value 7%
($)
1 .......................................................................................................................
2 .......................................................................................................................
3 .......................................................................................................................
4 .......................................................................................................................
5 .......................................................................................................................
6 .......................................................................................................................
7 .......................................................................................................................
8 .......................................................................................................................
9 .......................................................................................................................
10 .....................................................................................................................
8,578,734
8,578,734
8,578,734
8,578,734
8,578,734
8,578,734
8,578,734
8,578,734
8,578,734
8,578,734
8,578,734
8,410,524
8,245,612
8,083,933
7,925,425
7,770,024
7,617,671
7,468,305
7,321,867
7,178,301
8,578,734
8,328,868
8,086,280
7,850,757
7,622,094
7,400,092
7,184,555
6,975,296
6,772,132
6,574,886
8,578,734
8,017,509
7,492,999
7,002,803
6,544,675
6,116,519
5,716,373
5,342,405
4,992,902
4,666,263
Total ..........................................................................................................
Annualized ................................................................................................
85,787,345
........................
78,600,396
8,750,309
75,373,696
8,836,097
64,471,182
9,179,246
Proposed 49 CFR 236.1029(g)
The proposed exception under
§ 236.1029(g) would reintroduce a
revised version of a provision regarding
PTC system initialization failures that
expired on December 31, 2022. This
proposed exception would be beneficial
even with the conditions and
restrictions outlined under this
proposed provision.
In assessing the potential benefits of
this proposed provision, FRA focused
on the impact on train operations in the
lotter on DSK11XQN23PROD with PROPOSALS1
Present
value 2%
($)
40 Another method for assessing the benefits
regarding this proposed provision is to calculate the
revenue per ton-mile, provided that information
regarding the number of miles that would be
utilized is available for the affected railroads. Since
FRA does not currently possess that level of
information, the methodology described above was
employed.
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absence of this proposed rule. Currently,
if a PTC system fails to initialize, trains
are generally prohibited from operating,
which could result in situations where
passengers are stranded and vital freight
shipments halted, as the prior regulatory
process expired on December 31, 2022.
Based on consultation with FRA subject
matter experts, FRA estimates the
number of future PTC system
initialization failures by analyzing
railroads’ initialization failures in
calendar year 2023, as reported to FRA
in railroads’ Quarterly Reports of PTC
System Performance 41 and projecting to
the future. In total, based on past data,
FRA expects freight railroads to
experience approximately 900
initialization failures per year and
intercity passenger or commuter
railroads to experience approximately
200 initialization failures per year in the
future.42 Then, the expected annual
number of initialization failures is
multiplied by: (1) the average cost of
$11 per fare for intercity passenger or
41 Form FRA F 6180.152 (OMB Control No. 2130–
0553), under 49 U.S.C. 20157(m) and 49 CFR
236.1029(h). These reports include information
about railroads’ initialization failures.
42 The estimated 1,100 initialization failures
exclude any initialization failures where the source
or cause is the onboard subsystem, as proposed
§ 236.1029(g)(3) excludes such initialization failures
from receiving the flexibility afforded under
proposed § 236.1029(g), as they typically impact
one train. FRA’s estimate refers to the number of
initialization failures where the source or cause is,
for example, the back office, wayside, or
communications subsystems because those types of
issues would generally impact more than one train
and would be within the scope of this proposed
provision.
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commuter railroads and $250 per train
movement for freight railroads; and (2)
the average number of passengers or
commuters per train of 200 (for intercity
passenger or commuter railroads), and is
then adjusted for the reduced speed,
based on the proposed speed
restrictions under 49 CFR 236.1029(g).
As shown in the table below, FRA’s
proposal to permit the operation of
approximately 1,100 trains that FRA
expects might experience PTC system
initialization failures would result in
$433,520 in total benefits,
undiscounted, per year. FRA notes this
calculation did not include variable
operating costs such as fuel expenses
and other operational costs. Therefore,
the estimated benefit could be reduced
by these variable operating costs,
although the exact amount is unclear.
Additionally, FRA is seeking comments
on this economic analysis, its
underlying assumptions, and any
additional benefits that could be
quantified, like the potential impact on
ridership from avoiding related train
delays or cancelations.
TABLE F—ENABLING THE OPERATION OF TRAINS IMPACTED BY INITIALIZATION FAILURES—BENEFITS
Estimated
trains
impacted
annually
Railroad type
Average cost
per fare or
train
movement
Average
number of
passengers
per train
Average
benefit
(adjusted
for reduced
speed)
($)
Freight ..............................................................................................................
Intercity Passenger or Commuter ....................................................................
900
200
250
11
N/A
200
$159,220
274,300
Total ..........................................................................................................
1,100
........................
........................
433,520
Over a 10-year period, FRA estimates
that proposed § 236.1029(g) would
result in potential benefits of $4.0
million, or on an annualized basis,
$442,190, discounted at 2 percent.
TABLE G—POTENTIAL BENEFITS FROM CONTINUOUS TRAIN OPERATIONS DUE TO PROCESS REGARDING CERTAIN
INITIALIZATION FAILURES—10-YEAR BENEFIT
lotter on DSK11XQN23PROD with PROPOSALS1
Year
Freight
railroads
($)
Passenger
railroads
($)
Undiscounted
benefit
($)
a
b
c=a+b
Present
value 2%
($)
Present
value 3%
($)
Present
value 7%
($)
1 ...............................................................................
2 ...............................................................................
3 ...............................................................................
4 ...............................................................................
5 ...............................................................................
6 ...............................................................................
7 ...............................................................................
8 ...............................................................................
9 ...............................................................................
10 .............................................................................
159,220
159,220
159,220
159,220
159,220
159,220
159,220
159,220
159,220
159,220
274,300
274,300
274,300
274,300
274,300
274,300
274,300
274,300
274,300
274,300
433,520
433,520
433,520
433,520
433,520
433,520
433,520
433,520
433,520
433,520
433,520
425,020
416,686
408,516
400,505
392,652
384,953
377,405
370,005
362,750
433,520
420,893
408,634
396,732
385,177
373,958
363,066
352,491
342,225
332,257
433,520
405,159
378,653
353,881
330,730
309,094
288,873
269,974
252,313
235,806
Total ..................................................................
Annualized ........................................................
1,592,200
....................
2,743,000
....................
4,335,200
......................
3,972,013
442,190
3,808,954
446,526
3,258,003
463,866
In addition to these direct benefits,
there are potential societal benefits to
the proposals in the NPRM. For
example, there are possible fuel and
emission savings from people not using
alternative transportation modes like
traditional buses or cars that use fuel or
non-carbon technologies like batteries,
which would be necessary if the
proposals in this NPRM did not exist,
and railroads were not allowed to
operate trains in certain circumstances.
Freight trains are generally known for
their fuel efficiency compared to fuelpowered trucks, and intercity passenger
or commuter trains are more efficient
than driving fuel-powered vehicles,
potentially resulting in lower carbon
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emissions. Specifically, a single freight
train can be up to 75% more fuelefficient than a fuel-powered truck.43
Similarly, passenger trains are up to
46% more efficient than driving fuelpowered vehicles.44 However, policies
promoting electric vehicle use may lead
to increased adoption of electric
vehicles, which could reduce the
anticipated emission benefits.
43 Federal Railroad Administration, FRA
Announces Climate Challenge to Meet Net-Zero
Greenhouse Gas Emissions by 2050 (Apr. 22, 2022),
available at https://railroads.dot.gov/newsroom/
press-releases/federal-railroad-administrationannounces-climate-challenge-meet-net-zero-0.
44 Id.
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2. Ten-Year Costs
FRA analyzed the potential industry
costs of the proposed amendments,
which would: (1) permit non-revenue
passenger equipment to operate to
maintenance facilities or yards, without
being governed by PTC technology and
with no passengers onboard, for the sole
purpose of repairing or exchanging a
PTC system, under certain conditions;
(2) improve the existing process
railroads utilize to request and obtain
FRA’s approval to disable their PTC
systems temporarily—when necessary
to facilitate repair, maintenance,
infrastructure upgrades, and capital
projects—by requiring railroads to
provide additional, essential
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information in their requests to amend
their PTC systems; and (3) reintroduce
a limited version of a provision
regarding PTC system initialization
failures, which expired on December 31,
2022, under certain conditions.
Of the three proposed amendments,
FRA analyzed the cost of railroads filing
RFAs regarding temporary PTC system
outages under proposed
§ 236.1021(m)(4), which contains
additional content requirements to
enable FRA to assess the full scope and
circumstances of each proposed
temporary outage. Since the other two
proposed provisions, under
§§ 236.1006(b)(6) and 236.1029(g),
would establish an exception or process
with certain conditions, there may be
Based on consultation with FRA
subject matter experts, FRA calculated
the total cost for filing an RFA by
multiplying the number of submissions
by its associated hourly burden. The
hourly burden is then multiplied by the
wage rate of an Executive, Official, &
Staff Assistant employee. For this
analysis, FRA used the fully burdened
wage rate of $118.46 to calculate both
costs (i.e., the cost of submitting a new
RFA and the cost of submitting a revised
RFA).45 This wage rate includes factors
such as salary, benefits, and overhead
costs associated with employing staff
members involved in the RFA filing
process.
minimal potential costs tied to these
proposed provisions. However, FRA
expects the potential benefits of these
proposed provisions to outweigh any
potential costs they might present. FRA
welcomes comments on the potential
impact.
Also, FRA acknowledges that a
proposal to establish a new exception
for non-revenue passenger equipment
and reintroduce a limited version of an
expired process might appear to present
safety risks, if not properly addressed.
Accordingly, FRA’s proposed rule
contains multiple operating restrictions
and other protections to help mitigate or
eliminate any associated risks and help
preserve or improve rail safety.
TABLE H—COSTS OF RFAS TO PTC SYSTEMS INVOLVING TEMPORARY OUTAGES
Hourly
wage rate
($)
Number of
RFAs per year
Number of
hours per RFA
Total cost of
RFAs per year
($)
a
b
c
d=a*b*c
New RFAs ........................................................................................................
Revised RFAs ..................................................................................................
118.46
118.46
15
1
90
45
159,921
5,331
Total ..........................................................................................................
........................
........................
........................
165,252
The following table provides the 10year cost to the railroad industry
associated with the filing of an RFA
involving a temporary PTC system
outage under proposed
§ 236.1021(m)(4). FRA estimates that the
total cost to the railroad industry would
be $1.5 million, or $168,557 annualized,
discounted at 2 percent.
TABLE I—TOTAL COSTS OF RFAS ABOUT TEMPORARY PTC SYSTEM OUTAGES
Cost of new
RFAs per
year
lotter on DSK11XQN23PROD with PROPOSALS1
Year
Cost of
revised RFAs
per year
($)
Undiscounted
cost of RFAs
($)
Present
value 2%
($)
Present
value 3%
($)
Present
value 7%
($)
1 .........................................................................
2 .........................................................................
3 .........................................................................
4 .........................................................................
5 .........................................................................
6 .........................................................................
7 .........................................................................
8 .........................................................................
9 .........................................................................
10 .......................................................................
159,921
159,921
159,921
159,921
159,921
159,921
159,921
159,921
159,921
159,921
5,331
5,331
5,331
5,331
5,331
5,331
5,331
5,331
5,331
5,331
165,252
165,252
165,252
165,252
165,252
165,252
165,252
165,252
165,252
165,252
165,252
162,011
158,835
155,720
152,667
149,674
146,739
143,862
141,041
138,275
165,252
160,439
155,766
151,229
146,824
142,548
138,396
134,365
130,451
126,652
165,252
154,441
144,337
134,895
126,070
117,822
110,114
102,910
96,178
89,886
Total ............................................................
Annualized ..................................................
159,921
......................
5,331
......................
1,652,517
........................
1,514,075
168,557
1,451,919
170,209
1,241,905
176,819
Additionally, alongside the railroad
industry’s cost of filing RFAs under
proposed § 236.1021(m)(4), there are
governmental costs associated with the
filing of these RFAs. The following table
shows the annual estimated government
costs for reviewing railroads’ RFAs
pertaining to temporary PTC system
outages and issuing related decision
letters.
45 Throughout this document, the dollar
equivalent cost or benefit for the industry is derived
from the Surface Transportation Board’s 2023 Full
Year Wage A&B data series using the appropriate
employee group hourly wage rate, which includes
an additional 75 percent for fringe benefits and
overhead. For instance, the 2023 hourly wage rate
of $67.69 is burdened by 75 percent ($67.69 × 1.75
= $118.46).
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TABLE J—GOVERNMENT ADMINISTRATIVE COSTS FROM RFA REVIEW AND APPROVAL—ANNUAL COSTS
Average
number of
employees
Railroad
Railroad
Railroad
Railroad
Railroad
Attorney
Hourly wage
rate
($) 46
Number of
hours per RFA
Estimated
RFAs per year
Total cost ($)
a
b
c
d=a*b*c
Safety Specialist (GS–13)—All locations ..............
Safety Specialist (GS–14)—All locations ..............
Safety Specialist (GS–14)—All locations ..............
Safety Specialist Supervisor (GS–15)—DC Metro
Safety Specialist Senior Executive—DC Metro ....
(GS–15)—DC Metro ..............................................
1
1
1
1
1
1
98.77
116.71
116.71
147.96
175.00
147.96
6
3
2
1
1
2
15
15
15
15
15
15
8,889
5,252
3,501
2,219
2,625
4,439
Annual Total Cost .........................................................
........................
........................
15
15
26,926
The followingtable shows the 10-year
estimated government costs for
reviewing RFAs pertaining to temporary
PTC system outages and issuing related
decision letters. FRA expects it would
cost approximately $246,700 over the
10-year period, or $27,464 annualized,
discounted at 2 percent, to review and
approve or deny these RFAs, as shown
in the following table.
TABLE K—GOVERNMENT ADMINISTRATIVE COSTS FROM RFA REVIEW AND APPROVAL—10-YEAR COSTS
Undiscounted
government
administrative
cost
($)
Year
Present
value 2%
($)
Present
value 3%
($)
Present
value 7%
($)
1 .................................................................................................................
2 .................................................................................................................
3 .................................................................................................................
4 .................................................................................................................
5 .................................................................................................................
6 .................................................................................................................
7 .................................................................................................................
8 .................................................................................................................
9 .................................................................................................................
10 ...............................................................................................................
26,926
26,926
26,926
26,926
26,926
26,926
26,926
26,926
26,926
26,926
26,926
26,398
25,880
25,373
24,875
24,387
23,909
23,440
22,981
22,530
26,926
26,142
25,380
24,641
23,923
23,226
22,550
21,893
21,255
20,636
26,926
25,164
23,518
21,979
20,542
19,198
17,942
16,768
15,671
14,646
Total ....................................................................................................
Annualized ..........................................................................................
269,258
..............................
246,700
27,464
236,573
27,734
202,353
28,811
3. Results
The industry benefits associated with
FRA’s proposal to amend three
provisions—i.e., to introduce a new
exception for certain non-revenue
passenger equipment movements,
improve the RFA process regarding
temporary PTC system outages, and
permit continued operations following
certain initialization failures, subject to
operating restrictions—would outweigh
the industry costs and government
administrative costs associated with
FRA’s proposal to expand the content
requirements for RFAs related to
temporary outages.
The following table shows the
estimated 10-year costs, benefits, and
net benefits of the proposed rule. The
total estimated 10-year net benefits
would be $81.8 million (discounted at 2
percent) and annualized net benefits
would be $9.1 million (discounted at 2
percent).
TABLE L—TOTAL 10-YEAR DISCOUNTED BENEFITS, COSTS, AND NET BENEFITS
[2023 Dollars]
Present
value 2%
($)
Present
value 3%
($)
Present
value 7%
($)
Industry Benefits ........................................................
Total Costs .................................................................
Industry Costs ............................................................
Government Administrative Costs .............................
83,534,444
1,760,775
1,514,075
246,700
80,105,191
1,688,492
1,451,919
236,573
68,518,285
1,444,258
1,241,905
202,353
9,299,600
196,021
168,557
27,464
9,390,772
197,943
170,209
27,734
9,755,462
205,630
176,819
28,811
Net Benefits ........................................................
81,773,669
78,416,699
67,074,027
9,103,579
9,192,829
9,549,832
lotter on DSK11XQN23PROD with PROPOSALS1
Category
46 U.S. Office of Personnel Management, ‘‘2023
General Schedule (GS) Locality Pay Tables,’’
available at https://www.opm.gov/policy-data-
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oversight/pay-leave/salaries-wages/2023/generalschedule/. The base salary is burdened with an
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Annualized
2%
($)
Annualized
3%
($)
Annualized
7%
($)
additional 75 percent to account for fringe benefits
and overhead.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
B. Regulatory Flexibility Act and
Executive Order 13272
The Regulatory Flexibility Act of 1980
(5 U.S.C. 601, et seq.) and Executive
Order 13272, ‘‘Proper Consideration of
Small Entities in Agency Rulemaking,’’
(67 FR 53461 (Aug. 16, 2002)) require
agency review of proposed and final
rules to assess their impacts on small
entities. An agency must prepare an
Initial Regulatory Flexibility Analysis
(IRFA) unless it determines and certifies
that a rule, if promulgated, would not
have a significant economic impact on
a substantial number of small entities.
FRA has not determined whether this
proposed rule would have a significant
economic impact on a substantial
number of small entities.
FRA invites all interested parties to
submit comments, data, and information
demonstrating the potential economic
impact on small entities that will result
from the adoption of this proposed rule.
FRA particularly encourages small
entities potentially impacted by the
proposed amendments to participate in
the public comment process. FRA will
consider all comments received during
the public comment period for this
NPRM when making a final
determination of the rule’s economic
impact on small entities. FRA prepared
an IRFA, which is included below, to
aid the public in commenting on the
potential small business impacts of the
proposed requirements in this NPRM.
lotter on DSK11XQN23PROD with PROPOSALS1
1. Reasons for Considering Agency
Action
Through FRA’s oversight and
continued engagement with the
industry, FRA has found that its existing
PTC regulations do not adequately
address temporary situations during
which PTC technology is not enabled,
including after certain initialization
failures or in cases where a PTC system
needs to be temporarily disabled to
facilitate repair, maintenance,
infrastructure upgrades, or capital
projects. This NPRM proposes to
establish parameters and operating
restrictions under which railroads may
continue to operate safely in certain
scenarios when PTC technology is
temporarily not governing rail
operations. Overall, the proposed
amendments would benefit the railroad
industry, the public, and FRA by
facilitating repairs, maintenance,
upgrades, and capital improvements;
expanding certain railroad
informational requirements; reducing
costs; and enabling the safe, reliable,
and efficient movement of people and
goods, while preserving rail safety.
VerDate Sep<11>2014
16:25 Oct 25, 2024
Jkt 265001
2. A Succinct Statement of the
Objectives of, and the Legal Basis for,
the Proposed Rule
FRA is proposing to revise three PTC
regulations based on the statutory
general authority of the Secretary. The
Secretary has broad statutory authority
to ‘‘prescribe regulations and issue
orders for every area of railroad safety’’
under 49 U.S.C. 20103 and regarding
PTC technology under 49 U.S.C.
20157(g). The Secretary delegated this
authority to the Federal Railroad
Administrator. 49 CFR 1.89(b).
This proposed rule would provide
flexibility to certain train movements
and improve existing processes, which
would result in net benefits to railroads.
The industry benefits associated with
FRA’s proposal to amend
§§ 236.1006(b), 236.1021(m) and
236.1029(g)—i.e., to introduce a new
exception for certain non-revenue
passenger equipment movements,
improve the RFA process regarding
temporary PTC system outages, and
permit continued operations following
certain initialization failures, subject to
operating restrictions—would outweigh
the industry costs and government
administrative costs associated with
FRA’s proposal to expand the content
requirements for RFAs related to
temporary outages under § 236.1021(m),
while also maintaining rail safety.
FRA’s objective in this rulemaking is
to establish clear, uniform processes,
rather than addressing issues that arise
in a reactive and piecemeal manner.
FRA expects that establishing
predictable, prescriptive processes will
both enable continued operations and
improve railroad safety by eliminating
uncertainty and inconsistent application
of FRA’s regulations and facilitating
prompt repairs, upgrades, and
restoration of PTC system service. FRA’s
proposed parameters and operating
restrictions in this NPRM are intended
to be sufficiently strict to ensure that
railroads and PTC system suppliers and
vendors proactively identify and
remedy problems before they arise and
immediately correct any problems that
may surface despite proactive measures.
3. A Description of and, Where Feasible,
an Estimate of the Number of Small
Entities to Which the Proposed Rule
Would Apply
The Regulatory Flexibility Act of 1980
requires a review of proposed and final
rules to assess their impact on small
entities, unless the Secretary certifies
that the rule would not have a
significant economic impact on a
substantial number of small entities.
‘‘Small entity’’ is defined in 5 U.S.C.
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85477
601 as a small business concern that is
independently owned and operated and
is not dominant in its field of operation.
The U.S. Small Business Administration
(SBA) has authority to regulate issues
related to small businesses, and
stipulates in its size standards that a
‘‘small entity’’ in the railroad industry is
a for-profit ‘‘line-haul railroad’’ that has
fewer than 1,500 employees, a ‘‘short
line railroad’’ with fewer than 500
employees, or a ‘‘commuter rail system’’
with annual receipts of less than seven
million dollars. See ‘‘Size Eligibility
Provisions and Standards,’’ 13 CFR part
121, subpart A.
The proposed rule would directly
apply to all 37 host railroads subject to
49 U.S.C. 20157—including 7 Class I
railroads, 24 intercity passenger
railroads or commuter railroads, and 6
Class II or III, short line, or terminal
railroads. Only 5 of the current PTCmandated host railroads are small
entities.
4. A Description of the Projected
Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule,
Including an Estimate of the Class of
Small Entities That Will be Subject to
the Requirements and the Type of
Professional Skill Necessary for
Preparation of the Report or Record
The proposed amendments would
improve the process railroads use to file
an RFA involving a temporary PTC
system outage. Those entities would be
subject to the requirements of this
proposed rule and would also benefit
from the additional flexibility associated
with this proposed rule.
FRA expects that a railroad’s RFA
pursuant to proposed § 236.1021(m)(4)
would be completed by an executive or
senior manager and require analytical
and writing skills.
To calculate the individual costs for
small entities, FRA divided the total
annualized cost by the number of
estimated host railroads. FRA assumes
that the hourly burden to submit an
RFA is independent of an entity’s size
because the RFA depends upon the PTC
system and not the individual railroad
making the submission. The total
annualized cost for all host railroads
would be $168,557, discounted at 2
percent. FRA estimates that the
annualized cost to each host railroad
would be approximately $4,556,
discounted at 2 percent. Although the
proposed rule would impose costs on
those host railroads that are small
entities, benefits would also accrue.
To calculate the individual benefit for
small entities, FRA divided the total
annualized benefits by the number of
estimated host railroads. The total
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annualized benefits for all host railroads
would be $9.3 million, discounted at 2
percent. FRA estimates that the
annualized benefit for each host railroad
would be $251,341, discounted at 2
percent. FRA requests comments on the
economic impact that small entities
would face under this proposed rule.
5. Identification, to the Extent
Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or
Conflict With the Proposed Rule
FRA is not aware of any relevant
Federal rule that duplicates, overlaps
with, or conflicts with the proposed
rule. This proposed rule intends to
improve the process associated with
RFAs for temporary PTC system
outages, establish a new exception for
certain non-revenue passenger
equipment, and reintroduce a limited
lotter on DSK11XQN23PROD with PROPOSALS1
235.6(c)—Expedited application for approval of certain changes described
in this section.
—Copy of expedited application to labor
union.
—Railroad letter rescinding its request
for expedited application of certain
signal system changes.
—Revised application for certain signal
system changes.
—Copy of railroad revised application to
labor union.
236.1—Railroad maintained signal
plans at all interlockings, automatic
signal locations, and controlled
points, and updates to ensure accuracy.
236.15—Designation of automatic
block, traffic control, train stop, train
control, cab signal, and PTC territory
in timetable instructions.
236.18—Software management control
plan—New railroads.
236.23(e)—The names, indications, and
aspects of roadway and cab signals
shall be defined in the carrier’s Operating Rule Book or Special Instructions. Modifications shall be filed with
FRA within 30 days after such modifications become effective.
236.587(d)—Certification and departure
test results.
236.905(a)—Railroad Safety Program
Plan (RSPP)—New railroads.
236.913(a)—Filing and approval of a
joint Product Safety Plan (PSP).
—(c)(1) Informational filing/petition for
special approval.
Jkt 265001
would not be afforded the same type of
exception currently available to freight
railroads under § 236.1006(b). In
addition, without this rule, railroads
would not be able to operate in certain
scenarios when PTC technology is
temporarily not governing rail
operations under proposed
§ 236.1029(g).
C. Paperwork Reduction Act
FRA is submitting the information
collection requirements in this proposed
rule to OMB 47 under the Paperwork
Reduction Act of 1995.48 Please note
that any new or revised requirements, as
proposed in this NPRM, are marked by
asterisks (*) in the table below. The
sections that contain the proposed and
current information collection
requirements under OMB Control No.
2130–0553 and the estimated time to
fulfill each requirement are as follows:
Total annual
responses
Average time per
response
Total annual
burden hours
Total cost
equivalent
in USD
(A)
(B)
(C = A * B)
(D = C * wage
rates)
42 railroads ...........
10 expedited applications.
5.00 hours .............
50.00 hours ...........
$4,456.50
42 railroads ...........
10 copies ..............
30.00 minutes .......
5.00 hours .............
445.65
42 railroads ...........
1 letter ...................
6.00 hours .............
6.00 hours .............
534.78
42 railroads ...........
1 application ..........
5.00 hours .............
5.00 hours .............
445.65
42 railroads ...........
1 copy ...................
30.00 minutes .......
0.50 hours .............
44.57
700 railroads .........
25 plan changes ...
15.00 minutes .......
6.25 hours .............
557.06
700 railroads .........
10 timetable instructions.
30.00 minutes .......
5.00 hours .............
445.65
2 railroads .............
2 plans ..................
160.00 hours .........
320.00 hours .........
28,521.60
700 railroads .........
2 modifications ......
1.00 hour ...............
2.00 hours .............
178.26
742 railroads .........
5.00 seconds ........
6,336.81 hours ......
564,799.88
2 railroads .............
4,562,500 train departures.
2 RSPPs ...............
40.00 hours ...........
80.00 hours ...........
7,130.40
742 railroads .........
1 joint plan ............
2,000.00 hours ......
2,000.00 hours ......
236,920.00
742 railroads .........
0.5 filings/approval
petitions.
50.00 hours ...........
25.00 hours ...........
2,228.25
47 FRA will be using the OMB control number
2130–0553 for this information collection.
16:25 Oct 25, 2024
6. A Description of Significant
Alternatives to the Rule
The proposed amendments in this
rulemaking would benefit the railroad
industry, the public, and FRA by
facilitating repairs, maintenance,
upgrades, and capital improvements;
expanding certain railroad
informational requirements; reducing
costs; and enabling the safe, reliable,
and resilient movement of people and
goods, while preserving rail safety.
The main alternative to this
rulemaking would be to maintain the
status quo. The alternative of not issuing
the proposed rule would forgo
improving the process under
§ 236.1021(m) that host railroads use to
submit RFAs for temporary PTC system
outages. In the absence of this proposed
rule, non-revenue passenger equipment
Respondent
universe
CFR section
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expired.
48 44
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Total annual
responses
Average time per
response
Total annual
burden hours
Total cost
equivalent
in USD
(A)
(B)
(C = A * B)
(D = C * wage
rates)
0.25 data calls/documents.
0.25 data calls/documents.
5.00 hours .............
1.25 hour ...............
111.41
1.00 hour ...............
0.25 hours .............
22.28
742 railroads .........
0.25 technical consultations.
5.00 hours .............
1.25 hour ...............
111.41
742 railroads .........
0.25 petitions ........
1.00 hour ...............
0.25 hours .............
22.28
742 railroads .........
1 request ...............
50.00 hours ...........
50.00 hours ...........
4,456.50
742 railroads .........
0.5 comments/letters.
10.00 hours ...........
5.00 hours .............
445.65
742 railroads .........
742 railroads .........
20.00 hours ...........
100.00 hours .........
40.00 hours ...........
100.00 hours .........
3,565.20
8,913.00
13 railroads with
PSP.
2 amendments ......
1 field test/document.
13 PSP safety results.
160.00 hours .........
2,080.00 hours ......
185,390.40
13 railroads ...........
1 report .................
40.00 hours ...........
40.00 hours ...........
3,565.20
13 railroads ...........
1 report .................
10.00 hours ...........
10.00 hours ...........
891.30
13 railroads ...........
1 OMM update ......
40.00 hours ...........
40.00 hours ...........
3,565.20
13 railroads ...........
1 plan update ........
40.00 hours ...........
40.00 hours ...........
3,565.20
13 railroads ...........
1 revision ..............
40.00 hours ...........
40.00 hours ...........
3,565.20
13 railroads ...........
1 program .............
40.00 hours ...........
40.00 hours ...........
3,565.20
13 railroads ...........
350 records ...........
10.00 minutes .......
58.33 hours ...........
5,198.95
38 railroads ...........
1 rule or instruction
40.00 hours ...........
40.00 hours ...........
4,738.40
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CFR section
—(c)(2) Response to FRA’s request for
further data after informational filing.
—(d)(1)(ii) Response to FRA’s request
for further information within 15 days
after receipt of the Notice of Product
Development (NOPD).
—(d)(1)(iii) Technical consultation by
FRA with the railroad on the design
and planned development of the
product.
—(d)(1)(v) Railroad petition to FRA for
final approval of NOPD.
—(d)(2)(ii) Response to FRA’s request
for additional information associated
with a petition for approval of PSP or
PSP amendment.
—(e) Comments to FRA on railroad informational filing or special approval
petition.
—(h)(3)(i) Railroad amendment to PSP
—(j) Railroad field testing/information filing document.
236.917(a)—Railroad retention of
records: results of tests and inspections specified in the PSP.
—(b) Railroad report that frequency of
safety-relevant hazards exceeds
threshold set forth in PSP.
—(b)(3) Railroad final report to FRA on
the results of the analysis and countermeasures taken to reduce the frequency of safety-relevant hazards.
236.919(a)—Railroad Operations and
Maintenance Manual (OMM).
—(b) Plans for proper maintenance, repair, inspection, and testing of safetycritical products.
—(c) Documented hardware, software,
and firmware revisions in OMM.
236.921 and 923(a)—Railroad Training
and Qualification Program.
236.923(b)—Training records retained
in a designated location and available
to FRA upon request.
236.1001(b)—A railroad’s additional or
more stringent rules than prescribed
under 49 CFR part 236, subpart I.
742 railroads .........
742 railroads .........
lotter on DSK11XQN23PROD with PROPOSALS1
236.1005(b)(4)(i)–(ii)—A railroad’s submission of estimated traffic projections for the next 5 years, to support
a request, in a PTCIP or an RFA, not
to implement a PTC system based on
reductions in rail traffic.
236.1005(b)(4)(iii)—A railroad’s request
for a de minimis exception, in a
PTCIP or an RFA, based on a minimal quantity of PIH materials traffic.
The burden for this requirement is included under §§ 236.1009(a) and 236.1021.
7 Class I railroads
—(b)(5) A railroad’s request to remove
a line from its PTCIP based on the
sale of the line to another railroad
and any related request for FRA review from the acquiring railroad.
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1 exception request.
40.00 hours ...........
40.00 hours ...........
The burden for this requirement is included under §§ 236.1009(a) and 236.1021.
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—(g)(1)(i) A railroad’s request to temporarily reroute trains not equipped with
a PTC system onto PTC-equipped
tracks and vice versa during certain
emergencies.
—(g)(1)(ii) A railroad’s written or telephonic notice to FRA of the conditions necessitating emergency rerouting and other required information
under 236.1005(i).
—(g)(2) A railroad’s temporary rerouting
request due to planned maintenance
not exceeding 30 days.
—(h)(1) A response to any request for
additional information from FRA, prior
to commencing rerouting due to
planned maintenance.
—(h)(2) A railroad’s request to temporarily reroute trains due to planned
maintenance exceeding 30 days.
Total annual
responses
Average time per
response
Total annual
burden hours
Total cost
equivalent
in USD
(A)
(B)
(C = A * B)
(D = C * wage
rates)
38 railroads ...........
45 routing extension requests.
8.00 hours .............
360.00 hours .........
32,086.80
38 railroads ...........
45 written or telephonic notices.
2.00 hours .............
90.00 hours ...........
8,021.70
38 railroads ...........
720 requests .........
8.00 hours .............
5,760.00 hours ......
513,388.80
38 railroads ...........
10 responses ........
2.00 hours .............
20.00 hours ...........
1,782.60
38 railroads ...........
160 requests .........
8.00 hours .............
1,280.00 hours ......
114,086.40
236.1006(b)(4)(iii)(B)—A progress report due by December 31, 2020, and
by December 31, 2022, from any
Class II or III railroad utilizing a temporary exception under this section.
The paperwork requirement is no longer applicable.
—(b)(5)(vii) A railroad’s request to utilize different yard movement procedures, as part of a freight yard movements exception—.
The burden for this requirement is included under §§ 236.1015 and 236.1021.
—(b)(6) Establishing a new exception to
permit non-revenue passenger equipment to operate to maintenance facilities or yards, without being governed
by PTC technology, under certain
conditions (*New proposed
provision*).
There is no paperwork requirement associated with this proposed provision.
236.1007(b)(1)—For any high-speed
service over 90 miles per hour (mph),
a railroad’s PTC Safety Plan
(PTCSP) must additionally establish
that the PTC system was designed
and will be operated to meet the failsafe operation criteria in appendix C.
The burden for this requirement is included under §§ 236.1015 and 236.1021.
—(c) An HSR–125 document accompanying a host railroad’s PTCSP, for
operations over 125 mph.
—(c)(1) A railroad’s request for approval to use foreign service data,
prior to submission of a PTCSP.
—(d) A railroad’s request in a PTCSP
that FRA excuse compliance with one
or more of this section’s requirements.
236.1009(a)(2)—A PTCIP if a railroad
becomes a host railroad of a main
line requiring the implementation of a
PTC system, including the information under 49 U.S.C. 20157(a)(2) and
49 CFR 236.1011.
—(a)(3) Any new PTCIPs jointly filed by
a host railroad and a tenant railroad.
—(b)(1) A host railroad’s submission,
individually or jointly with a tenant
railroad or PTC system supplier, of
an unmodified Type Approval.
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38 railroads ...........
1 HSR–125 document.
3,200.00 hours ......
3,200.00 hours ......
379,072.00
38 railroads ...........
0.33 requests ........
8,000.00 hours ......
2,640.00 hours ......
235,303.20
38 railroads ...........
1 request ...............
1,000.00 hours ......
1,000.00 hours ......
118,460.00
264 railroads .........
1 PTCIP ................
535.00 hours .........
535.00 hours .........
63,376.10
264 railroads .........
1 joint PTCIP ........
267.00 hours .........
267.00 hours .........
31,628.82
264 railroads .........
1 document ...........
8.00 hours .............
8.00 hours .............
713.04
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—(b)(2) A host railroad’s submission of
a PTCDP with the information required under 49 CFR 236.1013, requesting a Type Approval for a PTC
system that either does not have a
Type Approval or has a Type Approval that requires one or more
variances.
264 railroads .........
—(d) A host railroad’s submission of a
PTCSP.
—(e)(3) Any request for full or partial
confidentiality of a PTCIP, Notice of
Product Intent (NPI), PTCDP, or
PTCSP.
—(h) Any responses or documents submitted in connection with FRA’s use
of its authority to monitor, test, and
inspect processes, procedures, facilities, documents, records, design and
testing materials, artifacts, training
materials and programs, and any
other information used in the design,
development, manufacture, test, implementation, and operation of the
PTC system, including interviews with
railroad personnel.
—(j)(2)(iii) Any additional information
provided in response to FRA’s consultations or inquiries about a PTCDP
or PTCSP.
236.1011(a) through (b)—PTCIP content requirements.
—(e) Any public comment on PTCIPs,
NPIs, PTCDPs, and PTCSPs.
lotter on DSK11XQN23PROD with PROPOSALS1
236.1013—PTCDP and NPI content requirements.
236.1015—Any new host railroad’s
PTCSP meeting all content requirements under 49 CFR 236.1015.
—(g) A PTCSP for a PTC system replacing an existing certified PTC system.
—(h) A quantitative risk assessment, if
FRA requires one to be submitted.
236.1017(a)—An independent thirdparty assessment, if FRA requires
one to be conducted and submitted.
—(b) A railroad’s written request to confirm whether a specific entity qualifies
as an independent third party.
—Further information provided to FRA
upon request.
—(d) A request not to provide certain
documents otherwise required under
appendix F for an independent, thirdparty assessment.
—(e) A request for FRA to accept information certified by a foreign regulatory entity for purposes of 49 CFR
236.1017 and/or 236.1009(i).
236.1019(b)—A request for a passenger terminal main line track exception (MTEA).
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85481
Total annual
responses
Average time per
response
Total annual
burden hours
Total cost
equivalent
in USD
(A)
(B)
(C = A * B)
(D = C * wage
rates)
1 PTCDP ...............
2,000.00 hours ......
2,000.00 hours ......
178,260.00
The burden for this requirement is included under § 236.1015.
38 railroads ...........
10 confidentiality
requests.
8.00 hours .............
80.00 hours ...........
7,130.40
38 railroads ...........
36 interviews and
documents.
4.00 hours .............
144.00 hours .........
12,834.72
38 railroads ...........
1 set of additional
information.
400.00 hours .........
400.00 hours .........
35,652.00
The burden for this requirement is included under §§ 236.1009(a) and (e) and 236.1021.
38 railroads ...........
2 public comments
8.00 hours .............
16.00 hours ...........
1,426.08
The burden for this requirement is included under §§ 236.1009(b), (c), and (e) and 236.1021.
264 railroads .........
1 PTCSP ...............
8,000.00 hours ......
8,000.00 hours ......
713,040
38 railroads ...........
0.33 PTCSPs ........
3,200.00 hours ......
1,056.00 hours ......
94,121.28
38 railroads ...........
0.33 assessments
800.00 hours .........
264.00 hours .........
23,530.32
38 railroads ...........
0.33 assessments
1,600.00 hours ......
528.00 hours .........
62,546.88
38 railroads ...........
0.33 written requests.
8.00 hours .............
2.64 hours .............
235.30
38 railroads ...........
6.60 hours .............
588.26
38 railroads ...........
0.33 sets of addi20.00 hours ...........
tional information.
0.33 requests ........ 20.00 hours ...........
6.60 hours .............
588.26
38 railroads ...........
0.33 requests ........
32.00 hours ...........
10.56 hours ...........
941.21
38 railroads ...........
1 MTEA .................
160.00 hours .........
160.00 hours .........
14,260.80
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—(c)(1) A request for a limited operations exception (based on restricted
speed, temporal separation, or a risk
mitigation plan).
—(c)(2) A request for a limited operations exception for a non-Class I,
freight railroad’s track.
—(c)(3) A request for a limited operations exception for a Class I railroad’s track.
—(d) A railroad’s collision hazard analysis in support of an MTEA, if FRA
requires one to be conducted and
submitted.
—(l) Any jointly filed RFA to a PTCDP
or PTCSP.
—(m) Any RFA to a railroad’s PTCSP ..
—(m)(4) Any RFA to a railroad’s PTC
system that involves a proposed temporary PTC system outage (*New
proposed provision*).
—(m) A railroad’s revised RFA, if needed.
236.1023(a)—A railroad’s PTC Product
Vendor List, which must be continually updated.
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Jkt 265001
Total cost
equivalent
in USD
(A)
(B)
(C = A * B)
(D = C * wage
rates)
160.00 hours .........
160.00 hours .........
14,260.80
10 railroads ...........
1 request ...............
160.00 hours .........
160.00 hours .........
14,260.80
7 railroads .............
1 request ...............
160.00 hours .........
160.00 hours .........
14,260.80
38 railroads ...........
0.33 collision hazard analyses.
50.00 hours ...........
16.50 hours ...........
1,470.65
The burden for this requirement is included under § 236.1019(c)(1).
38 railroads ...........
10 RFAs ................
160.00 hours .........
1,600.00 hours ......
142,608.00
5 Interested parties
10 RFA public
comments.
16.00 hours ...........
160.00 hours .........
14,260.80
The burden for this requirement is included under § 236.1021(a) through (d) and (m).
38 railroads ...........
38 railroads ...........
15 RFAs ................
15 RFAs ................
80.00 hours ...........
90.00 hours ...........
1,200.0 hours ........
1,350.0 hours ........
106,956.00
159,921.00
38 railroads ...........
1 revised RFA .......
45.00 hours ...........
45.00 hours ...........
5,330.70
38 railroads ...........
2 updated lists ......
8.00 hours .............
16.00 hours ...........
1,426.08
The burden for this requirement is included under §§ 236.1015 and 236.1021.
10 vendors or suppliers.
—(c)(1) through (2) A railroad’s process
and procedures for taking action
upon being notified of a safety-critical
failure or a safety-critical upgrade,
patch, revision, repair, replacement,
or modification, and a railroad’s configuration/revision control measures,
set forth in its PTCSP.
VerDate Sep<11>2014
Total annual
burden hours
1 request and/or
plan.
—(b)(1) The railroad shall specify within
its PTCSP all contractual arrangements between a railroad and its
hardware and software suppliers or
vendors for certain immediate notifications.
—(b)(2) through (3) A vendor’s or supplier’s notification, upon receipt of a
report of any safety-critical failure of
its product, to any railroads using the
product.
Average time per
response
38 railroads ...........
—(e) Any temporal separation procedures utilized under the 49 CFR
236.1019(c)(1)(ii) exception.
236.1021(a) through (d)—An RFA to a
railroad’s PTCIP or PTCDP.
—(e) Any public comments, if an RFA
includes a request for approval of a
discontinuance or material modification of a signal or train control system
and a Federal Register notice is
published.
Total annual
responses
10 notifications ......
8.00 hours .............
80.00 hours ...........
The burden for this requirement is included under §§ 236.1015 and 236.1021.
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—(d) A railroad’s submission, to the applicable vendor or supplier, of the railroad’s procedures for action upon notification of a safety-critical failure, upgrade, patch, or revision to the PTC
system and actions to be taken until
it is adjusted, repaired, or replaced.
—(e) A railroad’s database of all safetyrelevant hazards, which must be
maintained after the PTC system is
placed in service.
—(e)(1) A railroad’s notification to the
vendor or supplier and FRA if the frequency of a safety-relevant hazard
exceeds the threshold set forth in the
PTCDP and PTCSP, and about the
failure, malfunction, or defective condition that decreased or eliminated
the safety functionality—Form FRA F
6180.179—Errors and Malfunctions
Notification.
—(e)(2) Continual updates about any
and all subsequent failures.
—(f) Any notifications that must be submitted to FRA under 49 CFR
236.1023.
—(g) A railroad’s and vendor’s or supplier’s report, upon FRA request,
about an investigation of an accident
or service difficulty due to a manufacturing or design defect and their corrective actions.
—(h) A PTC system vendor’s or supplier’s reports of any safety-relevant
failures, defective conditions, previously unidentified hazards, recommended mitigation actions, and
any affected railroads—Form FRA F
6180.179—Errors and Malfunctions
Notification.
—(k) A report of a failure of a PTC system resulting in a more favorable aspect than intended or other condition
hazardous to the movement of a
train, including the reports required
under part 233.
lotter on DSK11XQN23PROD with PROPOSALS1
Total annual
responses
Average time per
response
Total annual
burden hours
Total cost
equivalent
in USD
(A)
(B)
(C = A * B)
(D = C * wage
rates)
38 railroads ...........
2.50 notifications ...
16.00 hours ...........
40.00 hours ...........
3,565.20
38 railroads ...........
38 database updates.
16.00 hours ...........
608.00 hours .........
54,191.04
38 railroads ...........
8 notifications ........
7.50 hours .............
60.00 hours ...........
5,347.80
38 railroads ...........
1 update ................
8.00 hours .............
8.00 hours .............
713.04
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CFR section
The burden for this requirement is included under § 236.1023(e)(1), (g), and (h)(1)(2).
38 railroads ...........
0.50 reports ...........
40.00 hours ...........
20.00 hours ...........
1,782.60
10 vendors ............
20 reports ..............
7.50 hours .............
150.00 hours .........
13,370
The burden for this requirement is included under § 236.1023(e)(1), (g), and (h)(1)(2) and 49 CFR
233.7.
—236.1029(b)(4)—A report of an en
route failure, other failure, or cut out
to a designated railroad officer of the
host railroad.
150 host and tenant railroads.
—(g) Reintroducing a provision regarding initialization failures that previously expired in December 2022,
and establishing operating restrictions
under which railroads may continue
to operate safely when a PTC system
fails to initialize (* New proposed requirement *).
In this proposed provision, there is no paperwork requirement. However, under an existing regulation,
FRA requires host railroads operating FRA-certified PTC systems to submit Quarterly Reports of
PTC System Performance, using Form FRA F 6180.152, under 49 U.S.C. 20157(m) and 49 CFR
236.1029(h). These reports include information about railroads’ initialization failures.
—(h) Form FRA F 6180.152—Report of
PTC System Performance.
38 railroads ...........
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16:25 Oct 25, 2024
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1,000 reports .........
148 reports ............
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30.00 minutes .......
32.00 hours ...........
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500.00 hours .........
4,736.00 hours ......
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CFR section
Average time per
response
Total annual
burden hours
Total cost
equivalent
in USD
(A)
(B)
(C = A * B)
(D = C * wage
rates)
236.1031(a)–(d)—A railroad’s Request
for Expedited Certification.
FRA anticipates that there will be zero requests for expedited certification during this 3-year ICR.
236.1033—Communications and security requirements.
The burden for this requirement is included under §§ 236.1009 and 236.1015.
236.1035(a) through (b)—A railroad’s
38 railroads ...........
request for authorization to field test
an uncertified PTC system and any
responses to FRA’s testing conditions.
236.1037(a)(1) through (2)—Records
retention.
—(b) Results of inspections and tests
specified in a railroad’s PTCSP and
PTCDP.
—(c) A contractor’s records related to
the testing, maintenance, or operation
of a PTC system maintained at a
designated office.
—(d)(3) A railroad’s final report of the
results of the analysis and countermeasures taken to reduce the frequency of safety-related hazards
below the threshold set forth in the
PTCSP.
236.1039(a) through (c), (e)—A railroad’s PTC Operations and Maintenance Manual (OMM), which must be
maintained and available to FRA
upon request.
—(d) A railroad’s identification of a PTC
system’s safety-critical components,
including spare equipment.
236.1041(a) through (b) and
236.1043(a)—A railroad’s PTC Training and Qualification Program (i.e., a
written plan).
236.1043(b)—Training records retained
in a designated location and available
to FRA upon request.
Total ................................................
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Jkt 265001
40.00 hours ...........
400.00 hours .........
35,652.00
The burden for this requirement is included under §§ 236.1039 and 236.1043(b).
38 railroads ...........
800 records ...........
1.00 hour ...............
800.00 hours .........
71,304.00
20 contractors .......
1,600 records ........
10.00 minutes .......
266.67 hours .........
23,768.30
38 railroads ...........
8 final reports ........
160.00 hours .........
1,280 hours ...........
114,086.40
38 railroads ...........
2 OMM updates ....
10.00 hours ...........
20.00 hours ...........
1,782.60
38 railroads ...........
1 identified new
component.
1.00 hour ...............
1.00 hour ...............
89.13
38 railroads ...........
2 programs ............
10.00 hours ...........
20.00 hours ...........
1,782.60
150 host and tenant railroads.
150 PTC training
records.
1.00 hour ...............
150.00 hours .........
13,369.50
742 railroads and
10 vendors.
4,567,839 responses.
N/A ........................
53,309 hours .........
5,014,416
All estimates include the time for
reviewing instructions; searching
existing data sources; gathering or
maintaining the needed data; and
reviewing the information. Pursuant to
44 U.S.C. 3506(c)(2)(B), FRA solicits
comments concerning: whether these
information collection requirements are
necessary for the proper performance of
the functions of FRA, including whether
the information has practical utility; the
accuracy of FRA’s estimates of the
burden of the information collection
requirements; the quality, utility, and
clarity of the information to be
collected; and whether the burden of
collection of information on those who
VerDate Sep<11>2014
10 requests ...........
The burden for this requirement is included under §§ 236.1009 and 236.1015.
—(a)(3) through (4) Records retention ..
lotter on DSK11XQN23PROD with PROPOSALS1
Total annual
responses
are to respond, including through the
use of automated collection techniques
or other forms of information
technology, may be minimized.
Organizations and individuals desiring
to submit comments on the collection of
information requirements or to request a
copy of the paperwork package
submitted to OMB should contact Ms.
Arlette Mussington, Information
Collection Clearance Officer, at email:
[email protected] or
telephone: (571) 609–1285, or Ms.
Joanne Swafford, Information Collection
Clearance Officer, at email:
[email protected] or telephone:
(757) 897–9908.
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OMB is required to make a decision
concerning the collection of information
requirements contained in this proposed
rule between 30 and 60 days after
publication of this document in the
Federal Register. Therefore, a comment
to OMB is best assured of having its full
effect if OMB receives it within 30 days
of publication. The final rule will
respond to any OMB or public
comments on the information collection
requirements contained in this proposal.
FRA is not authorized to impose a
penalty on persons for violating
information collection requirements that
do not display a current OMB control
number, if required.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
D. Federalism Implications
Executive Order 13132, ‘‘Federalism,’’
requires FRA to develop an accountable
process to ensure ‘‘meaningful and
timely input by State and local officials
in the development of regulatory
policies that have federalism
implications.’’ See 64 FR 43255 (Aug.
10, 1999). ‘‘Policies that have federalism
implications’’ are defined in Executive
Order 13132 to include regulations
having ‘‘substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government.’’ Id. Under
Executive Order 13132, the agency may
not issue a regulation with federalism
implications that imposes substantial
direct compliance costs and that is not
required by statute, unless the Federal
Government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments or the agency consults
with State and local government
officials early in the process of
developing the regulation. Where a
regulation has federalism implications
and preempts State law, the agency
seeks to consult with State and local
officials in the process of developing the
regulation.
FRA has analyzed this proposed rule
under the principles and criteria
contained in Executive Order 13132.
FRA has determined this proposed rule
would not have a substantial direct
effect on the States or their political
subdivisions; on the relationship
between the Federal Government and
the States or their political subdivisions;
or on the distribution of power and
responsibilities among the various
levels of government. In addition, FRA
has determined this proposed rule does
not impose substantial direct
compliance costs on State and local
governments. Therefore, the
consultation and funding requirements
of Executive Order 13132 do not apply.
This proposed rule could have
preemptive effect by the operation of
law under a provision of the former
Federal Railroad Safety Act of 1970,
repealed and recodified at 49 U.S.C.
20106. Section 20106 provides that
States may not adopt or continue in
effect any law, regulation, or order
related to railroad safety or security that
covers the subject matter of a regulation
prescribed or order issued by the
Secretary of Transportation (with
respect to railroad safety matters) or the
Secretary of Homeland Security (with
respect to railroad security matters),
except when the State law, regulation,
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or order qualifies under the ‘‘essentially
local safety or security hazard’’
exception to section 20106.
FRA has analyzed this proposed rule
in accordance with the principles and
criteria contained in Executive Order
13132. As explained above, FRA has
determined that this proposed rule has
no federalism implications, other than
the possible preemption of State laws
under Federal railroad safety statutes,
specifically 49 U.S.C. 20106.
Accordingly, FRA has determined that
preparation of a federalism summary
impact statement for this proposed rule
is not required.
E. International Trade Impact
Assessment
The Trade Agreements Act of 1979
prohibits Federal agencies from
engaging in any standards or related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. Legitimate domestic
objectives, such as safety, are not
considered unnecessary obstacles. The
statute also requires consideration of
international standards and where
appropriate, that they be the basis for
U.S. standards. This proposed rule is
not expected to affect trade
opportunities for U.S. firms doing
business overseas or for foreign firms
doing business in the United States.
F. Environmental Impact
FRA has evaluated this proposed rule
consistent with the National
Environmental Policy Act (NEPA; 42
U.S.C. 4321, et seq.), the Council of
Environmental Quality’s NEPA
implementing regulations at 40 CFR
parts 1500 through 1508, and FRA’s
NEPA implementing regulations at 23
CFR part 771, and determined that it is
categorically excluded from
environmental review and therefore
does not require the preparation of an
environmental assessment (EA) or
environmental impact statement (EIS).
Categorical exclusions (CEs) are actions
identified in an agency’s NEPA
implementing regulations that do not
normally have a significant impact on
the environment and therefore do not
require either an EA or EIS. See 40 CFR
1508.4. Specifically, FRA has
determined that this proposed rule is
categorically excluded from detailed
environmental review pursuant to 23
CFR 771.116(c)(15), ‘‘Promulgation of
rules, the issuance of policy statements,
the waiver or modification of existing
regulatory requirements, or
discretionary approvals that do not
result in significantly increased
emissions of air or water pollutants or
noise.’’
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85485
This proposed rule does not directly
or indirectly impact any environmental
resources and would not result in
significantly increased emissions of air
or water pollutants or noise. Instead, the
proposed rule is likely to result in safety
benefits. In analyzing the applicability
of a CE, FRA must also consider
whether unusual circumstances are
present that would warrant a more
detailed environmental review. See 23
CFR 771.116(b). FRA has concluded that
no such unusual circumstances exist
with respect to this proposed rule and
the proposal meets the requirements for
categorical exclusion under 23 CFR
771.116(c)(15).
Pursuant to Section 106 of the
National Historic Preservation Act and
its implementing regulations, FRA has
determined this undertaking has no
potential to affect historic properties.
See 16 U.S.C. 470. FRA has also
determined that this rulemaking does
not approve a project resulting in a use
of a resource protected by section 4(f).
See Department of Transportation Act of
1966, as amended (Pub. L. 89–670, 80
Stat. 931); 49 U.S.C. 303.
G. Environmental Justice
Executive Order 12898, ‘‘Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations’’ requires DOT
agencies to achieve environmental
justice as part of their mission by
identifying and addressing, as
appropriate, disproportionately high
and adverse human health or
environmental effects, including
interrelated social and economic effects,
of their programs, policies, and
activities on minority populations and
low-income populations. DOT Order
5610.2C (‘‘U.S. Department of
Transportation Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations’’) instructs DOT agencies to
address compliance with Executive
Order 12898 and requirements within
DOT Order 5610.2C in rulemaking
activities, as appropriate, and also
requires consideration of the benefits of
transportation programs, policies, and
other activities where minority
populations and low-income
populations benefit, at a minimum, to
the same level as the general population
as a whole when determining impacts
on minority and low-income
populations.49 FRA has evaluated this
49 Executive Order 14096 ‘‘Revitalizing Our
Nation’s Commitment to Environmental Justice,’’
issued on April 26, 2023, supplements Executive
Order 12898, but is not currently referenced in DOT
Order 5610.2C.
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proposed rule under Executive Orders
12898 and 14096 and DOT Order
5610.2C and has determined it would
not cause disproportionate and adverse
human health and environmental effects
on communities with environmental
justice concerns.
H. Unfunded Mandates Reform Act of
1995
Under section 201 of the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4, 2 U.S.C. 1531), each Federal
agency ‘‘shall, unless otherwise
prohibited by law, assess the effects of
Federal regulatory actions on State,
local, and tribal governments, and the
private sector (other than to the extent
that such regulations incorporate
requirements specifically set forth in
law).’’ Section 202 of the Act (2 U.S.C.
1532) further requires that ‘‘before
promulgating any general notice of
proposed rulemaking that is likely to
result in promulgation of any rule that
includes any Federal mandate that may
result in the expenditure by State, local,
and tribal governments, in the aggregate,
or by the private sector, of $100,000,000
or more (adjusted annually for inflation)
in any 1 year, and before promulgating
any final rule for which a general notice
of proposed rulemaking was published,
the agency shall prepare a written
statement’’ detailing the effect on State,
local, and Tribal governments and the
private sector. This proposed rule
would not result in the expenditure, in
the aggregate, of $100,000,000 or more
(as adjusted annually for inflation) in
any one year, and thus preparation of
such a statement is not required.
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I. Energy Impact
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use,’’ requires Federal
agencies to prepare a Statement of
Energy Effects for any ‘‘significant
energy action.’’ 66 FR 28355 (May 22,
2001). As FRA acknowledged in section
IV, there are societal benefits to the
proposals in this NPRM. For example,
there are possible fuel savings and
carbon emission savings 50 from people
not using alternative transportation
modes like buses or cars, which would
be necessary if the proposed flexibilities
in this NPRM did not exist and railroads
were not allowed to operate trains in
certain circumstances. FRA evaluated
this proposed rule under Executive
Order 13211 and determined that this
50 As noted above, passenger trains are up to 46%
more efficient than driving and 34% more efficient
than flying. Also, a single freight train can be up
to 75% more fuel-efficient than a truck.
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proposed rule is not a ‘‘significant
energy action’’ within the meaning of
Executive Order 13211, based on
currently available information.
However, FRA welcomes comments on
the extent to which this proposed rule
would result in fuel and emission
savings.
1. The authority citation for part 236
continues to read as follows:
■
J. Privacy Act Statement
In accordance with 5 U.S.C. 553(c),
DOT solicits comments from the public
to better inform its rulemaking process.
DOT posts these comments, without
edit, to www.regulations.gov, as
described in the system of records
notice, DOT/ALL–14 FDMS, accessible
through https://www.transportation.gov/
privacy. To facilitate comment tracking
and response, DOT encourages
commenters to provide their name, or
the name of their organization; however,
submission of names is completely
optional. Whether or not commenters
identify themselves, all timely
comments will be fully considered. If
you wish to provide comments
containing proprietary or confidential
information, please contact the agency
for alternate submission instructions.
K. Tribal Consultation
FRA has evaluated this NPRM in
accordance with the principles and
criteria contained in Executive Order
13175, ‘‘Consultation and Coordination
with Indian Tribal Governments.’’ 51
The proposed rule would not have a
substantial direct effect on one or more
Indian tribes, would not impose
substantial direct compliance costs on
Indian Tribal governments, and would
not preempt Tribal laws. Therefore, the
funding and consultation requirements
of Executive Order 13175 do not apply,
and a Tribal summary impact statement
is not required.
L. Rulemaking Summary, 5 U.S.C.
553(b)(4)
As required by 5 U.S.C. 553(b)(4), a
summary of this rulemaking can be
found in the Abstract section of the
Department’s Unified Agenda entry for
this rulemaking at: https://
www.reginfo.gov/public/do/
eAgendaViewRule?pubId=202310&
RIN=2130-AC95.
List of Subjects in 49 CFR Part 236
Penalties, Positive train control,
Railroad safety, Reporting and
recordkeeping requirements.
In consideration of the foregoing, FRA
proposes to amend 49 CFR part 236 as
follows:
51 65
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FR 67249 (Nov. 9, 2000).
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PART 236—RULES, STANDARDS, AND
INSTRUCTIONS GOVERNING THE
INSTALLATION, INSPECTION,
MAINTENANCE, AND REPAIR OF
SIGNAL AND TRAIN CONTROL
SYSTEMS, DEVICES, AND
APPLIANCES
Authority: 49 U.S.C. 20102–20103, 20107,
20133, 20141, 20157, 20301–20303, 20306,
20501–20505, 20701–20703, 21301–21302,
21304; 28 U.S.C. 2461, note; and 49 CFR
1.89.
2. Amend § 236.1006 by adding
paragraph (b)(6) to read as follows:
■
§ 236.1006 Equipping locomotives
operating in PTC territory.
*
*
*
*
*
(b) * * *
(6) Exception for certain non-revenue
passenger equipment movements. This
exception is available to enable only
non-revenue passenger equipment,
including a locomotive, locomotive
consist, or train without passengers, to
operate to a maintenance facility or yard
for the purpose of repairing or
exchanging a PTC system. Such nonrevenue equipment may operate to a
maintenance facility or yard without
being governed by PTC technology, as
otherwise required under this part, only
if it meets the criteria in this paragraph
(b)(6) and the following conditions:
(i) The speed of the locomotive,
locomotive consist, or train must not
exceed 49 miles per hour;
(ii) An absolute block must be
established in front of the locomotive,
locomotive consist, or train;
(iii) There cannot be any working
limits established under part 214 of this
chapter or any roadway workers on any
part of the route;
(iv) The locomotive, locomotive
consist, or train must operate no farther
than the next forward location
designated in the railroad’s PTCSP for
the repair or exchange of PTC
technology; and
(v) The railroad must protect the route
of the locomotive, locomotive consist, or
train against conflicting operations and
establish and comply with sufficient
operating rules to protect against a trainto-train collision and the movement of
a train through a switch left in the
improper position.
(vi) FRA may, in its discretion,
approve exception criteria and
conditions other than those outlined in
paragraphs (b)(6) and (b)(6)(i) through
(v) of this section, in a PTCSP or an
RFA, if the proposed criteria and
conditions provide an equivalent or
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greater level of safety than these default
criteria and conditions.
(vii) Before utilizing the default
exception under paragraphs (b)(6)(i)
through (v) of this section or the
discretionary exception under
paragraph (b)(6)(vi) of this section, the
railroad must notify each person
involved with the movement of the nonrevenue passenger equipment, including
any dispatchers and train crews, and
any roadway workers who may no
longer work on that segment during the
movement subject to this exception.
*
*
*
*
*
■ 3. Amend § 236.1021 by adding
paragraph (m)(4) to read as follows:
§ 236.1021 Discontinuances, material
modifications, and amendments.
*
*
*
*
(m) * * *
(4) A host railroad must utilize the
RFA process under this paragraph (m) to
request and obtain FRA’s approval of a
temporary PTC system outage, during
which train movements may continue,
including a short-term outage related to
repair, maintenance, an infrastructure
upgrade, or a capital project. A
temporary PTC system outage includes,
but is not limited to, any scenario when
the onboard PTC apparatus or
subsystem, wayside subsystem,
communications subsystem, or back
office subsystem would be disabled to
perform a repair, maintenance, an
infrastructure upgrade, or a capital
project.
(i) A railroad may temporarily disable
PTC technology pursuant to paragraph
(m)(4) of this section only after it
obtains approval from the Director of
FRA’s Office of Railroad Systems and
Technology.
(ii) In addition to the content
requirements outlined in paragraph
(m)(2) of this section, an RFA that seeks
to disable a PTC system temporarily
must also contain the following
information:
(A) The technical necessity for the
proposed temporary outage to perform
the repair, maintenance, infrastructure
upgrade, or capital project;
(B) The physical limits and PTC
system functions that would be affected
by the proposed temporary outage, and
an analysis that demonstrates the
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affected physical limits and affected
functions pose the least risk to railroad
safety, compared to other options;
(C) An explanation about how the
proposed temporary outage is in the
public interest and consistent with
railroad safety;
(D) The proposed timeframe of the
temporary outage, and an analysis that
demonstrates the proposed period of
time poses the least risk to railroad
safety, compared to other times;
(E) A justification and an analysis that
show how the proposed duration of the
temporary outage is the minimum time
necessary to complete the pertinent
work, test the PTC system, and place the
PTC system back into service without
undue delay;
(F) The type and frequency of rail
operations that would continue during
the proposed temporary outage,
including those of the host railroad and
each tenant railroad;
(G) The applicable speed limit of any
train that would operate during the
proposed temporary outage and the
speed limit prior to any proposed
temporary outage, and any other
operating restrictions;
(H) The additional safety measures
the host railroad and each tenant
railroad must comply with during the
proposed temporary outage, to ensure
each type of PTC-preventable accident
or incident does not occur. Specifically,
such safety measures must be designed
to prevent a train-to-train collision, an
over-speed derailment, an incursion
into an established work zone, and a
movement of a train through a switch
left in the wrong position; and
(I) A confirmation that before
initiating the proposed temporary
outage (if FRA authorizes it), each
impacted railroad will notify all
applicable dispatchers, train crews, and
roadway workers about the temporary
PTC system outage, including the
specific location and duration of the
temporary outage, the additional safety
measures with which the railroad must
comply, and any actions the individual
must take during the temporary outage.
■ 4. Amend § 236.1029 by revising
paragraph (g) to read as follows:
85487
(g) Initialization failures. (1) Except as
stated under paragraph (g)(3) or (4) of
this section, when a PTC system fails to
initialize as defined in § 236.1003, a
train may proceed only according to the
following operating restrictions:
(i) For the first 24 hours, the train may
proceed only as prescribed under
paragraphs (b)(1) through (6) of this
section; and
(ii) After the first 24 hours, the train
may proceed only as prescribed under
paragraphs (b)(4) through (6) of this
section, and must not exceed restricted
speed as defined in § 236.1003.
(2) Each railroad operating in
accordance with paragraph (g)(1) of this
section will notify, as early as is
possible, all dispatchers, train crews,
and roadway workers about PTC
system-level outages or failures that
result in multiple trains’ PTC systems
failing to initialize, thus resulting in
trains proceeding in accordance with
operating restrictions. Railroads must
ensure that job safety briefings reflect
such operations.
(3) Notwithstanding the relief under
paragraph (g)(1) of this section, when a
PTC system fails to initialize due to loss
of communications or lack of
navigational information, the train must
attempt to initialize the PTC system at
the next forward, available location,
including a main line, siding, yard, or
station, whichever is closest.
(4) The relief under paragraph (g)(1) of
this section does not apply to a single
train that experiences an onboard PTC
system failure at the initial terminal.
The purpose of this paragraph (g) is to
address issues affecting multiple trains.
(5) FRA reserves the right to impose
additional operating restrictions and
other conditions to address recurring
issues that result in multiple trains’ PTC
systems failing to initialize and to deny
the relief under paragraph (g)(1) of this
section for recurring issues that result in
multiple trains’ PTC systems failing to
initialize.
*
*
*
*
*
Issued in Washington, DC.
Amitabha Bose,
Administrator.
§ 236.1029
PTC system use and failures.
[FR Doc. 2024–24559 Filed 10–25–24; 8:45 am]
*
*
BILLING CODE 4910–06–P
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85488
Notices
Federal Register
Vol. 89, No. 208
Monday, October 28, 2024
This section of the FEDERAL REGISTER
contains documents other than rules or
proposed rules that are applicable to the
public. Notices of hearings and investigations,
committee meetings, agency decisions and
rulings, delegations of authority, filing of
petitions and applications and agency
statements of organization and functions are
examples of documents appearing in this
section.
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
Agency Information Collection
Activities: WIC & FMNP Outreach,
Innovation, and Modernization
Evaluation
Food and Nutrition Service
(FNS), Department of Agriculture
(USDA).
ACTION: Notice.
AGENCY:
In accordance with the
Paperwork Reduction Act of 1995, this
notice invites the general public and
other public agencies to comment on
this proposed information collection.
This collection is a new collection. The
purpose of this information collection is
to provide information on the
implementation and effectiveness of
modernization projects across all 88
Special Supplemental Nutrition
Program for Women, Infants, and
Children (WIC) State agencies to help
identify successes, opportunities for
improvement, and areas for additional
support from FNS to strengthen project
implementation.
DATES: Written comments must be
received on or before December 27,
2024.
ADDRESSES: Comments may be emailed
to [email protected].
Comments will also be accepted through
the Federal eRulemaking Portal. Go to
http://www.regulations.gov, and follow
the online instructions for submitting
comments electronically.
All responses to this notice will be
summarized and included in the request
for Office of Management and Budget
approval. All comments will be a matter
of public record.
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
requests for copies of this information
collection should be directed to Carol
Dreibelbis at [email protected]
or 703–305–2161.
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SUMMARY:
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The
American Rescue Plan Act of 2021
(ARPA), which was signed into law in
March 2021, provided USDA with $390
million and waiver authority for
outreach, innovation, and program
modernization in WIC and the WIC
Farmers’ Market Nutrition Program
(FMNP). FNS is interested in
understanding the implementation and
outcomes related to these modernization
efforts.
Comments are invited on: (a) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions that were
used; (c) ways to enhance the quality,
utility, and clarity of the information to
be collected; and (d) ways to minimize
the burden of the collection of
information on those who are to
respond, including use of appropriate
automated, electronic, mechanical, or
other technological collection
techniques or other forms of information
technology.
Title: WIC & FMNP Outreach,
Innovation, and Modernization
Evaluation.
Form Number: N/A.
OMB Number: 0584–NEW.
Expiration Date: Not Yet Determined.
Type of Request: New collection.
Abstract: The Special Supplemental
Nutrition Program for Women, Infants,
and Children (WIC) provides
supplemental food, nutrition education,
and referrals to health and social
services to pregnant and postpartum
women, infants, and children up to age
5 who are living in households with low
incomes and are at nutritional risk. The
WIC Farmers’ Market Nutrition Program
(FMNP) provides eligible WIC
participants with FMNP benefits, in
addition to their regular WIC benefits,
which can be used to buy eligible foods
from farmers, farmers’ markets, or
roadside stands that have been
approved by the WIC State agency.
While the benefits of participating in
WIC have been well documented, WIC
continues to reach only about half of
those eligible to participate.1 WIC has
SUPPLEMENTARY INFORMATION:
1 Kessler C., Bryant A., Munkacsy K., and Gray K.
(2024). National- and State-Level Estimates of the
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relied on a traditional service delivery
model that includes potentially
challenging requirements for
participants—such as regular in-persononly appointments to determine
eligibility and to continue receiving
services; limited or no online or digital
services; and in-person shopping only.
In an effort to improve service delivery
and permanently modernize WIC, the
American Rescue Plan Act (ARPA) of
2021 provided FNS with $390 million
and waiver authority to support WIC
modernization. Under ARPA, FNS
supports WIC modernization efforts by
providing grants to all State agencies,
offering waivers that support
modernization efforts, collaborating
with partners via cooperative
agreements and contracts, and
conducting projects. WIC modernization
efforts seek to improve the WIC
participant experience, reduce
disparities in WIC service delivery, and
increase WIC participation and
retention.
The WIC & FMNP Outreach,
Innovation, and Modernization
Evaluation (WIC modernization
evaluation) will help FNS understand
the implementation and impacts of
ARPA-funded projects and waivers to
inform current and future
modernization efforts. The WIC
modernization evaluation has three
components: an implementation study,
a waiver study, and an impact study.
The implementation study will provide
a comprehensive understanding of
project implementation while
accommodating variations in the timing
of projects within different program
areas, implementation within and
between State agencies, and innovative
approaches. The implementation study
component will collect a broad range of
data from WIC State agencies, local
agencies, clinics, vendors and
authorized outlets (including farmers,
farmers’ markets, and roadside stands),
and WIC participants. These data will
provide current and ongoing
information about modernization efforts
in all 88 WIC State agencies.
Special Supplemental Nutrition Program for
Women, Infants, and Children (WIC) Eligibility and
WIC Program Reach in 2022. Prepared by Insight
Policy Research, Contract No. 12319819A0005.
Alexandria, VA: U.S. Department of Agriculture,
Food and Nutrition Service, Office of Policy
Support, Project Officer: Grant Lovellette. Available
online at: www.fns.usda.gov/research-analysis.
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The waiver study component will
provide an understanding of waiver
issuance and how State agencies used
waivers. The waiver study will rely on
many of the same data sources as the
implementation study, especially the
interviews with WIC State agencies. The
study will also collect information on
whether and how unique waivers were
implemented by WIC State agencies to
conduct the modernization projects.
The impact study component of the
evaluation will measure the impact of
the WIC and FMNP modernization
projects on participants through key
short-term and intermediate-term
outcome measures, including
enrollment, participation, retention,
benefit redemption, participant
experience (e.g., satisfaction), and
disparities in program delivery. It will
address whether the modernization
projects improved these key outcome
measures and how changes in these
outcomes were related to the number
and type of modernization projects.
While most outcomes will be measured
with administrative data (collected
under existing projects), the impact
study will also use surveys to learn
about the experiences and satisfaction of
WIC program staff, vendor/authorized
outlet staff, and participants with the
changes to the WIC program because of
the modernization activities. In
addition, the impact study will rely on
information from the implementation
and waiver studies regarding where and
when projects and waivers were
implemented.
Affected Public: Identified respondent
groups include the following:
1. State, local, and tribal governments:
WIC State agency staff in all 88 State
agencies and local agency and clinic
staff in every State agency jurisdiction.
2. Business (profit, non-profit, or
farm) respondents: WIC and FMNP
vendors and authorized outlet staff in
every State agency jurisdiction.
3. Individual/household respondents:
WIC participants in every State agency
jurisdiction.
Estimated Number of Respondents:
The total estimated number of
respondents is 186,608. Of the 186,608
respondents to be contacted, 24,564 are
expected to be responsive and 162,044
are expected to be nonresponsive. The
breakout is as follows:
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1. 5,938 State, local, and tribal
government staff: Of the 132 State
agency staff contacted for an interview,
132 are expected to be responsive. Of
the 222 local agency and clinic staff
contacted for a case study interview,
160 are expected to be responsive. Of
the 5,200 State agency, local agency,
and clinic staff contacted for a survey,
4,160 are expected to be responsive. Of
the 88 State agency staff invited for a
webinar, 88 are expected to be
responsive. Of the 176 State agency staff
invited for a data collection planning
meeting, 176 are expected to be
responsive. Of the 88 State agency staff
asked to support data collection, 88 are
expected to be responsive. Of the 32
local agency staff invited for a data
collection planning meeting and
support data collection, 32 are expected
to be responsive.
2. 4,200 business respondents: Of the
100 WIC vendor/outlet staff contacted
for a case study interview, 68 are
expected to be responsive. Of the 4,100
WIC vendor/outlet staff contacted for a
survey, 3,280 are expected to be
responsive.
3. 176,470 individual respondents: Of
the 920 WIC participants contacted for
a case study focus group, 580 are
expected to be responsive. Of the
175,550 WIC participants contacted for
a survey, 15,800 are expected to be
responsive.
Estimated Number of Responses per
Respondent: 9.2 across the entire
collection, including respondents who
receive communications but do not
provide data for the study. The breakout
is as follows:
1. State agency staff: 6.3 responses per
respondent. 132 State agency staff will
be asked to complete a virtual interview
(each year, for three years) and 1,300
State agency staff will be asked to
complete a survey. Prior to data
collection, they will receive advanced
communications about the study. 88
State agency staff will be invited to
attend a webinar. 176 State agency staff
will be invited to attend a planning
meeting. 88 State agency staff will be
asked to support data collection.
2. Local agency and clinic staff: 6.6
responses per respondent. 222 local
agency and clinic staff will be asked to
complete an in-person interview and
3,900 will be asked to complete a
PO 00000
Frm 00002
Fmt 4703
Sfmt 4703
85489
survey. Prior to data collection, they
will receive advanced communications
about the study. 32 local agency staff
will be asked to attend a planning
meeting and support data collection.
3. WIC vendor/outlet staff: 10.8
responses per respondent. 100 vendor/
outlet staff will be asked to complete an
in-person case study interview and
4,100 will be asked to complete a
survey. Prior to data collection, they
will receive advanced communications
about the study.
4. Individual respondents: 9.3
responses per respondent. 920 WIC
participants will be asked to participate
in a case study focus group and 175,550
will be asked to complete a survey. Prior
to data collection, they will receive
advanced communications about the
study.
Estimated Total Annual Responses:
Including respondents who receive
communications but do not provide
data for the study, there are an
estimated 1,717,385 total responses and
572,462 annual responses. This is an
estimated annual average, as data
collection activities will take place over
the course of three years: 2025, 2026,
and 2027.
Estimated Time per Response: The
estimated time of responses varies from
1 minute (0.0167 hours) for receipt of a
text or email to 3.0167 hours for local
agency staff planning and supporting
data collection for case studies.
Including respondents who receive
communications but do not provide
data for the study, the estimated average
response time is about 1.2 minutes (0.02
hours).
Estimated Total Annual Burden on
Respondents: Including burden on
respondents who receive
communications but do not provide
data for the study, there is an estimated
32,108 hours of total burden and 10,703
hours of annual burden on respondents.
This is an estimated annual average, as
data collection activities will take place
over the course of three years: 2025,
2026, and 2027. Please see the table
below for estimated total annual burden
for each type of respondent.
BILLING CODE 3410–30–P
E:\FR\FM\28OCN1.SGM
28OCN1
lotter on DSK11XQN23PROD with NOTICES1
Type of
respondents
case study
locus groups
Jkt 265001
Individual/
Household
PO 00000
Frm 00003
\VIC
participants
participating in
experience
surveys
WI C Participant Gase Study Focus Group Reminder Text
WI C Participant Gase Study Focus Group Guide
WIC Participant Gase Study Focus Group Thank You Bnail
WIC Participant Gase Study Focus Group Thank You Text
WI C Participant Gase Study Focus Group Recruitment Flyer
WI C Participant Experience Survey Recruitment Email from WIC
State Agency
WIC Participant Experience Survey lnvitaion Email from WIC Stats
Agency
WI C Participant Experience Survey lnvitaion Text
WI C Participant Experience Survey Reminder Email
WIC Participant Experience Survey Reminder Text
Fmt 4703
WI C Participant Experience Survey Reminder Phone Call
WI C Participant Experience Survey Reminder Postcard
WI C Participant Experience Survey
WI C Participant Experience Survey Thank You Email
WIC Participant Experience Survey Thank You Text
St11dv □•sr.rintinn for VIIC Partir,inani.
•. /,::'!i_'{//'.'f,•;',/;'i/ii:')2{,•;i;
'.ln!ff~ldu~tlflouaeho)II SUb-'l'otai .•.. :
Sfmt 4725
E:\FR\FM\28OCN1.SGM
WIC & FMNP
vendor/outlet
staff
participating in
case study
interviews
WI C& FMNP Vendor/Outlet Staff Case Study lnlerview
Recruitment Email from State or Local Agency
WI C& FMNP Vendor/Outlet Staff Case Study lnlerview
Recruitment Email from the Mathematica Study Team
WI C& FMNP Vendor/Outlet Staff Case Study lnlerview
Confirmation Email
WI C& FMNP Vendor/Outlet Staff Case Study lnlerview
Confirmation Text
WI C& FMNP Vendor/Outlet Staff Case Study lnlerview Reminder
Email
WI C& FMNP Vendor/Outlet Staff Case Study lnlerview Reminder
Text
WI C& FMNP Vendor/Outlet Staff Case Study lnlerview Protocol
28OCN1
Business
(Profit, NonProfit, or
Farm)
WIC & FMNP
vendor/outlet
staff
participating In
experience
surveys
EN28OC24.006
WI C Participant Case Study Focus Group Reminder Email
WI C& FMNP Vendor/Outlet Staff Case Study lnlerview Thank You
Email
WI C& FMNP Vendor/Outlet Staff Case Study lnlerview Thank You
Text
WI C& FMNP Vendor/Outlet Staff Experience Survey Recruitment
Email from WIC Stats Agency
WI C& FMNP Vendor/Outlet Staff Experience Survey Invitation
Email from the Mathematica Study lean
WIC & FMNP Vendor/Outlet Stal Experience Survey Invitation Text
WI C& FMNP Vendor/Outlet Stal Experience Survey Reminder
Email
WI C& FMNP Vendor/Outlet Stal Experience Survey Reminder
Text
WI C& FMNP Vendor/Outlet Stal Experience Survey Reminder
Phone Gall
WI C& FMNP Vendor/Outlet Stal Experience Survey
WI C& FMNP Vendor/Outlet Staff Experience Survey Thank You
Email
WI C& FMNP Vendor/Outlet Staff Experience Survey Thank You
Text
Appendix
Appendix N.2
Append0< N.3
AppendD< N.5
Append0< N.6
Appendix N. 7
Appendix N.8
Appendix F.4
Append"' N.9
Appendix N.10
Appendix N. t
Appendix T.2
AppendixT.3
AppendixT.4
Append0< T.5
Appendix T.6
Append"' T.5
Appendix T.5
AppendixQ
Appendix T.7
Appendix T.8
Annandix N.4
, ..,
AppendixM.1
Appendix M.2
AppendixM.4
Appendix M.5
Appendix M.6
Appendix M. 7
Append0< F.2
Appendix M.8
Appendix M.9
Appendix S.2
Appendix S.3
Appendix S.4
Appendix S.5
Appendix S.6
Appendix S.5
Appendix P
Appendix S.7
Appendix S.8
Number of
respondents
Frequency
of response
Total
responses
Hours per
response
Total
burden
(hours)
Number of
Non•
respondents
Frequency
of
response
Total
responses
Hours per
response
Grand Total
Burda,
Estimate
(hours)
920
920
644
644
644
644
644
580
580
t,600
920
644
644
644
644
644
580
580
580
1,600
I
1
1
1
I
1
1
1
1
I
920
644
644
644
644
644
580
580
580
1,600
0.0167
0.0167
0.0167
0.0167
0.0167
0.0167
1.5000
0.0167
0.0167
0.0167
15
11
11
11
11
11
870
10
10
27
0
276
0
0
0
0
64
0
0
0
0
1
0
0
0
0
1
0
0
0
175,550
175,550
1
175,550
0.0167
2,932
0
0
0.0167
2,932
175,550
175,550
175,550
175,550
175,550
175,550
175,550
15,800
15,800
175550
175,550
175,550
175,550
175,550
8,778
5,267
15,800
15,800
15,800
175,550
1
1
2
2
1
1
1
1
I
I
175,550
175,550
351,100
351,IOO
8,778
5,267
15,800
15,800
15,800
175.550
0.0167
0.0167
0.0167
0.0167
0.0334
0.0167
0.1670
0.0167
0.0167
0.0167
2,932
2,932
5,863
5,863
293
88
2,639
264
264
2,932
0
0
0
0
0
0
159,750
0
0
0
0
0
0
0
0
0
1
0
0
0
0.0167
0.0167
0.0167
0.0167
0.0334
0.0167
0.0000
0.0000
0.0000
0.0167
2,932
2,932
5,863
5,863
293
88
2,639
264
264
2,932
....
;;;;(t\11.~': Y}hit;,..,i
e .,;:.
''~il\£ij\r.: '
276
64
159,750
0.0167
0.0167
0.0000
0.0000
0.0000
0.0000
0.0000
0.0000
0.0000
0.0167
Total
burden
(hours)
4.609
15
15
11
11
11
11
870
10
10
27
:;,: ;t;;o:oc ::: ):®;~. 8.):/J!{~ ;i;\;qi.,,; j} ';]!fi';ffl'.)
100
100
1
100
0.0167
2
0
0
2
100
75
1
75
0.0167
1
25
1
75
75
I
75
0.0167
1
0
0
0.0000
1
75
75
I
75
0.0167
1
0
0
0.0000
1
75
75
1
75
0.0167
1
0
0
0.0000
1
75
75
1
75
0.0167
1
0
0
75
68
1
68
1.0000
68
7
7
68
68
1
68
0.0167
1
0
68
68
1
68
0.0167
1
0
4,100
4,100
I
4,100
0.0167
68
4,100
4,100
4,100
4,100
1
I
4,100
4,100
0.0167
0.0167
4,100
4,100
2
8,200
4,100
4,100
2
4,100
4,100
1,230
3,280
3,280
3,280
0.0167
25
0.0167
0.418
2
0.0000
1
0.0000
68
0
0.0000
1
0
0.0000
1
0
0
0.0167
68
68
68
0
0
0
0
0.0167
0.0167
68
68
0.0167
137
0
0
0.0167
137
8,200
0.0167
137
0
0
0.0167
137
1
1
1,230
3,280
0.0334
0.1670
41
548
0
820
0
1
0.0334
0.0000
41
548
3,280
1
3,280
0.0167
55
0
0
0.0000
55
3,280
1
3,280
0.0167
55
0
0
0.0000
55
1
820
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
19:13 Oct 25, 2024
WIC
participants
participating in
Instruments
WI C Participant Gase Study Focus Group Recruitment Email from
State/Local Agency
WI C Participant Gase Study Focus Group Scheduling Email
WI C Participant Gase Study Focus Group Confinnation Email
WI C Participant Gase Study Focus Group Confinnation Text
Sample
Size
85490
VerDate Sep<11>2014
Respondent
Category
lotter on DSK11XQN23PROD with NOTICES1
VerDate Sep<11>2014
I
Type of
respondents
I
Jkt 265001
PO 00000
Frm 00004
Fmt 4703
Sfmt 4725
E:\FR\FM\28OCN1.SGM
28OCN1
Instruments
Study Descnption for WIC & FMNP Vendors/Outlets
'$41irie$9:(Ptofil,Non•l?'roli~ qr Farm} $4~-r~llii\
?dt
WIC Local Agency Case Study Recruibnent Emal from State
Agency
WIC Local Agency Case Study Planning Call Recruibnent Email
VIIClocal
agency/clinic from the Mathematica Study Team and Planning Call
staff
WIC Local Agency Staff Case Study lnrerview Scheduling Email
participating in
WIC Local Agency Staff Case Study lnrerview Reminder Email
case study
WIC Local Agency Staff Case Study lnrerview Protocol
interviews
WIC Local Agency Staff Case Study lnrerview Thank You Email
Study Descnption for WIC Local Agencies
VIIClocal
WIC Program Staff Experience Survey Invitation Email from 1he
agency/cllnlc
Mathematica Study Team
staff
WIC Program Staff Experience Survey Reminder Email
participating in
WIC Program Staff Experience Survey
experience
WIC Program Staff Experience Survey Thank You Emal
surveys
WIC State Agency Study Recruitment Email from the Mathematica
Study Team and Planning Call
WIC State Agency Staff Interview Scheduling Email and
State, Local,
WIC State
Prep_aration Time
or Tribal
agency staff
Government participating in WIG State Agency Staff Interview Reminder Email
WIG State Agency Staff Interview Protocol
interviews
WIC State Agency Staff Interview Thank You Email and Follow-up
Questions
Study Descnption for WIC Stale Agencies
WIG Program Staff Experience Survey Invitation Email from 1he
WIG State
Mathematica Study Team
agency staff
participating in WIG Pmgram Staff Experience Survey Reminder Email
experience
WIG Program Staff Experience Survey
surveys
WIC Program Staff Experience Survey Thank You Email
Mathematica Study Team Request to WIC State Agencies for WIC
Program Staff Contact List for Experience Survey
Mathematica Study Team Request to WIC State Agencies for WIC
WICState
Participant Contact List for Experience Survey
agency staff
coordinating
Mathematica Study Team Request to WIC State agencies for WIC
&FMNPvendor/ouHetstafcontactlistfaexperiencesurvey
I
logistics
''<,f
COMBINED TOTAL
Sample
Size
4,100
Appendix
Appendix M.3
I
Number of
re■pondents
4,100
·~
32
Frequency
of re■pon ■e
1
t~;,~
I Hours per I
I Frequency
of
Number of
Non•
Total
burden
Grand Total
Burden
Estimate
(hours)
68
re■pondents reapon■e I re■pon■e■ I re■pon■e
0
0
•
0.0167
'·\~~•:rt::;>; ~1!2,?1-/f: }:tb1A~•fh>/ :-<~:r:::,;;: ;.#,,;g:;:;.:;;:x..~:r::>~mt:. :.·,:::;,»¥:•
Total
re■ pon■e■
re■ pon ■e
Total
Hours per
(hour■ )
4,100
0.0167
68
32
0.0167
0.5344
32
222
178
178
160
32
32
178
178
160
160
32
32
178
178
160
160
32
3.0167
0.0167
0.0167
1.0000
0.0167
0.0167
96.5344
2.9726
2.9726
160.0000
2.6720
0.5344
3,900
3,900
3,900
3,120
3,900
3,900
3,120
3,120
3900
15600
3120
3120
0.0167
0.0167
0.1670
0.0167
65.1300
260.5200
521.0400
52.1040
176
176
176
0.5167
132
132
132
132
132
132
396
398
396
132
176
132
176
1,300
1,300
1,300
1,040
(hour■ )
;j)f;~'!,
0.0167
44
44
18
18
3.0167
0.0167
0.0000
0.0000
0.0000
0.0167
0.735
97
4
3
160
0.0167
0.0167
0.0000
0.0000
65
261
521
52
90.9392
0.5167
91
0.2667
0.0167
1.0000
105.6132
6.6132
396.0000
0.2667
0.0167
1.0000
106
7
396
396
176
0.2667
0.0167
105.6132
2.9392
0.2667
0.0167
106
3
1,300
1,300
1,040
1,040
1300
5200
1040
1040
0.0167
0.0167
0.1670
0.0167
21.7100
86.8400
173.6800
17.3680
0.0167
0.0167
0.0000
0.0000
22
87
174
17
88
88
88
2.0000
176.0000
2.0000
176
88
88
88
2.0000
176.0000
2.0000
176
AA I
88
88 I
88
?nMn
2.0000
2.0000
0.0167
1.0167
176
1
89
••88 I
88 I
88
'L ,&tiff:
186,608
AA I
88
88 I
88
j/(jl;a)&.
24,564
11
1I
1
I
0.0167 I
1.0167
>'Jilt {'.f')';;/'.31.~t' .\ ;ftf~:; t
8.33
1,555,341
0.021164
17Annnn I
176.0000
1.4696 I
89.4696
780
780
260
260
n
o
O
O
,:J;~t ;.';'' {;;.:; ,t,ttf ;,;y. ;.:.11. .
32,102
162,1144
1.00
;1,10.t; :\ W: /;.::;J~r. •· ... / 2,Ji21
162,044
0.0000
5.8
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
19:13 Oct 25, 2024
Respondent
Category
Total
burden
32,108
85491
EN28OC24.007
85492
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Tameka Owens,
Acting Administrator and Assistant
Administrator, Food and Nutrition Service.
[FR Doc. 2024–25008 Filed 10–25–24; 8:45 am]
statement and/or any comments
received be sent via return email.
Requests should be emailed to
[email protected].
BILLING CODE 3410–30–C
FOR FURTHER INFORMATION CONTACT:
DEPARTMENT OF AGRICULTURE
Forest Service
Information Collection; Significant
Cave Nomination Application
Forest Service, Agriculture
(USDA).
ACTION: Notice; request for comment.
AGENCY:
In accordance with the
Paperwork Reduction Act of 1995, the
Forest Service is seeking comments
from all interested individuals and
organizations on the extension without
change to a currently approved
collection information collection,
Significant Cave Nominations under the
Federal Cave Resources Protection Act.
DATES: Comments must be received in
writing on or before December 27, 2024
to be assured of consideration.
Comments received after that date will
be considered to the extent practicable.
ADDRESSES: Comments concerning this
notice should be addressed to Limaris
Soto, Lands, Minerals, and Geology,
1617 Cole Boulevard, Building 17,
Lakewood CO 80401. Comments also
may be submitted via facsimile to 303–
275–5122 or by email to limaris.soto@
usda.gov.
Comments submitted in response to
this notice may be made available to the
public through relevant websites and
upon request. For this reason, please do
not include in your comments
information of a confidential nature,
such as sensitive personal information
or proprietary information. If you send
an email comment, your email address
will be automatically captured and
included as part of the comment that is
placed in the public docket and made
available on the internet. Please note
that responses to this public comment
request containing any routine notice
about the confidentiality of the
communication will be treated as public
comments that may be made available to
the public notwithstanding the
inclusion of the routine notice.
The public may inspect the draft
supporting statement and/or comments
received at 1617 Cole Boulevard,
Building 17, Lakewood, CO 80401,
during normal business hours. Visitors
are encouraged to call ahead to 720–
827–8912 to facilitate entry to the
building. The public may request an
electronic copy of the draft supporting
lotter on DSK11XQN23PROD with NOTICES1
SUMMARY:
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
Limaris Soto, Lands, Minerals, and
Geology, by phone at 720–827–8912 or
email to [email protected].
Individuals who use
telecommunications devices for the deaf
and hard of hearing may call 711 to
reach the Telecommunications Relay
Service, 24 hours a day, every day of the
year, including holidays.
SUPPLEMENTARY INFORMATION:
Title: Significant Cave Nomination
Application.
OMB Number: 0596–0244.
Expiration Date of Approval:
December 31, 2024.
Type of Request: Extension without
change to a currently approved
collection.
Abstract: The information covered in
this request applies to caves on Federal
lands administered by the U.S.
Department of Agriculture, Forest
Service. The Forest Service proposes to
collect the information in this request in
accordance with the Federal Cave
Resources Protection Act (FCRPA) [Pub.
L. 100–691, 107 Stat. 4546] and
regulations at 36 CFR 290 (Cave
Resources Management) which require
the Secretary of Agriculture to identify
and protect significant caves on
National Forest System lands.
The Forest Service must collect this
information to comply with the FCRPA
(16 U.S.C. 4301–4310) and its
implementing regulations at 36 CFR 290
that contain criteria for the
identification of significant caves. The
information collection is also responsive
to requirements of the 36 CFR part
290—Cave Management regulations that
specify the process for nomination of
significant caves and assessment of
whether the listed criteria for a cave to
be considered significant have been met.
36 CFR 290.3(a) states that significant
cave nominations will be accepted by
the Forest Supervisor where the cave is
located.
The Forest Service uses the
information in a cave nomination to
determine if specified criteria are met
for the nominated cave to be listed as
significant in accordance with the
FCRPA and regulations at 36 CFR 290.3.
The information is necessary for full
compliance with agencies’
responsibilities to identify and protect
significant caves and their resources.
Nominations are voluntary. The
information collected in the Significant
Cave Nomination Worksheet includes:
• The name, address, and telephone
number of the individual or
PO 00000
Frm 00005
Fmt 4703
Sfmt 4703
organization submitting the nomination.
This allows us to confirm the source of
the information;
• The name of the cave, which is
necessary for the listing of caves and to
ensure there are no duplications;
• The location of the cave, which is
essential for verification, management,
and future planning purposes;
• The name of the agency and the
administrative unit, which is necessary
to ensure that the application is
forwarded to the appropriate agency
office;
• A discussion of how the cave meets
the criteria, which is the key aspect of
the nomination, and is used to
determine whether the cave should be
designated as significant;
• Studies, maps, research papers, and
other supporting documentation, which
are important in the significance
evaluation;
• The name, address, and telephone
number of the individual who is
knowledgeable about the resources in
the cave, which are necessary in case
the information in the nomination is
unclear or there is a need for additional
information to complete the evaluation;
• The date that the nomination is
submitted, which is essential for
tracking purposes; and
• The signature and title of the
individual submitting the nomination,
which is necessary to confirm that it is
an official nomination.
The Forest Service collects the
information from anyone who wishes to
nominate a cave to be considered
significant. Caves can be nominated by
the public, Forest Service partners,
other government agencies, and Forest
Service staff. The information collected
is used to determine whether a
nominated cave meets specified criteria
to be considered significant per the
FCRPA and 36 CFR 290.
Forest Service Manual 2880.43 states
that the Forest Supervisor must ensure
that all caves within their jurisdictions
are evaluated in accordance with the
FCRPA and 36 CFR 290 and make a
determination of significant caves
nominated for such designation. Under
the FCRPA the Secretary shall request
that the list of significant caves shall be
updated periodically, after consultation
with appropriate private sector interest,
including cavers. If agencies did not
collect cave nominations, they might
not become aware of potentially
significant caves’ existence or might
have insufficient information upon
which to base a judgment as to their
significance. As a result, it is likely that
agencies would not be able to comply
fully with their statutory responsibilities
to identify and protect significant caves
E:\FR\FM\28OCN1.SGM
28OCN1
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
and their resources. The information is
collected on occasion, which is the
minimum frequency necessary to
comply with the statute.
Affected Public: Individuals and
Households.
Estimate of Burden per Response: 11
hours.
Estimated Annual Number of
Respondents: 10.
Estimated Annual Number of
Responses per Respondent: 1.
Estimated Total Annual Burden on
Respondents: 110.
Comment Is Invited
Comment is invited on: (1) whether
this collection of information is
necessary for the stated purposes and
the proper performance of the functions
of the agency, including whether the
information will have practical or
scientific utility; (2) the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used; (3) ways to enhance
the quality, utility, and clarity of the
information to be collected; and (4)
ways to minimize the burden of the
collection of information on
respondents, including the use of
automated, electronic, mechanical, or
other technological collection
techniques or other forms of information
technology.
All comments received in response to
this notice, including names and
addresses when provided, will be a
matter of public record. Comments will
be summarized and included in the
submission request for Office of
Management and Budget approval.
Christopher French,
Deputy Chief for National Forest System.
[FR Doc. 2024–24996 Filed 10–25–24; 8:45 am]
BILLING CODE 3411–15–P
DEPARTMENT OF AGRICULTURE
Forest Service
Information Collection; Small Business
Timber Sale Set-Aside Program;
Appeal Procedures on Recomputation
of Shares
Forest Service, Agriculture
(USDA).
ACTION: Notice; request for comment.
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AGENCY:
In accordance with the
Paperwork Reduction Act of 1995, the
Forest Service is seeking comments
from all interested individuals and
organizations on the extension with
revision of a currently approved
information collection, titled Small
SUMMARY:
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Jkt 265001
Business Timber Sale Set-Aside
Program; Appeal Procedures on
Recomputation of Shares.
DATES: Comments must be received in
writing on or before December 27, 2024
to be assured of consideration.
Comments received after that date will
be considered to the extent practicable.
ADDRESSES: Comments concerning this
notice should be addressed to Director,
Forest Management, Mail Stop 1103,
Forest Service, USDA, 1400
Independence Avenue SW, Washington,
DC 20024.
Comments also may be submitted by
email to: SM.FS.WONFSSBAIC@
usda.gov.
Comments submitted in response to
this notice may be made available to the
public through relevant websites and
upon request. For this reason, please do
not include in your comments
information of a confidential nature,
such as sensitive personal information
or proprietary information. If you send
an email comment, your email address
will be automatically captured and
included as part of the comment that is
placed in the public docket and made
available on the internet. Please note
that responses to this public comment
request containing any routine notice
about the confidentiality of the
communication will be treated as public
comments that may be made available to
the public notwithstanding the
inclusion of the routine notice.
The public may inspect the draft
supporting statement and/or comments
received. The public may request an
electronic copy of the draft supporting
statement and/or any comments
received be sent via return email.
Requests should be emailed to
[email protected].
FOR FURTHER INFORMATION CONTACT:
Mike Spisak, Natural Resources Staff,
910–975–0114. Individuals who use
telecommunication devices for the
hearing impaired may call 711 to reach
the Telecommunications Relay Service,
24 hours a day, every day of the year,
including holidays.
SUPPLEMENTARY INFORMATION:
Title: Small Business Timber Sale SetAside Program; Appeal Procedures on
Recomputation of Shares.
OMB Number: 0596–0141.
Expiration Date of Approval: February
28, 2025.
Type of Request: Extension with
revision of a currently approved
information collection.
Abstract: The Forest Service adopted
the Small Business Timber Sale SetAside Program (Set-Aside Program) on
July 26, 1990 (55 FR 30485). The agency
administers the Set-Aside Program in
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85493
cooperation with the Small Business
Administration (SBA) under the
authorities of the Small Business Act
(15 U.S.C. 631), the National Forest
Management Act of 1976, and SBA
regulations in 13 CFR part 121. The SetAside Program is designed to ensure
that small business timber purchasers
have the opportunity to purchase a fair
proportion of National Forest System
timber offered for sale. Under the SetAside Program, the Forest Service must
recompute the shares of timber sales to
be set aside for qualifying small
businesses every 5 years based on the
actual volume of sawtimber that has
been purchased by small businesses.
Additionally, shares must be
recomputed if there is a change in
manufacturing capability, if the
purchaser size class changes, or if
certain purchasers discontinue
operations.
In 1992, the agency adopted new
administrative appeal procedures (36
CFR part 215), which excluded the SetAside Program. Prior to adoption of 36
CFR part 215, the agency accepted
appeals of recomputation decisions
under 36 CFR part 217 and therefore
decided to establish procedures for
providing notice to affected purchasers
offering an opportunity to comment on
the recomputation of shares (61 FR
7468). The Conference Report
accompanying the 1997 Omnibus
Appropriation Act (Pub. L. 104–208)
directed the Forest Service to reinstate
an appeals process for decisions
concerning recomputation of Small
Business Set-Aside shares, structural
recomputations of SBA shares, or
changes in policies impacting the SetAside Program prior to December 31,
1996. The Small Business Timber Sale
Set-Aside Program, Appeal Procedures
on Recomputation of Shares (36 CFR
223.118; 64 FR 411, January 5, 1999),
outlines the types of decisions that are
subject to appeal, who may appeal
decisions, the procedures for appealing
decisions, the timelines for appeal, and
the contents of the notice of appeal.
The Forest Service provides
qualifying timber sale purchasers with
30-days for pre-decisional review and
comment on draft decisions to reallocate
shares, including the data used in
making the proposed recomputation
decision. Within 15 days after the close
of the 30-day pre-decisional review
period, an agency official makes a
decision on the shares to be set aside for
small businesses and gives written
notice of the decision to all parties on
the national forest timber sale bidders
list for the affected area. The written
notice provides the date by which the
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appeal may be filed and how to obtain
information on appeal procedures.
Only those timber sale purchasers, or
their representatives, who are affected
by small business share timber sale setaside recomputation decisions and who
have submitted pre-decisional
comments may appeal recomputation
decisions. The appellant must file a
notice of appeal with the appropriate
Forest Service official within 20 days of
the date on the notice of decision. The
notice of appeal must include:
1. The appellant’s name, mailing
address, and daytime telephone
number;
2. The title or type of recomputation
decision involved and date of the
decision;
3. The name of the responsible Forest
Service official;
4. A brief description and date of the
decision being appealed;
5. A statement of how the appellant
is adversely affected by the decision
being appealed;
6. A statement of facts in dispute
regarding the issue(s) raised by the
appeal;
7. Specific references to law,
regulation, or policy that the appellant
believes have been violated (if any) and
the basis for such an allegation;
8. A statement as to whether and how
the appellant has tried to resolve the
appeal issues with the responsible
Forest Service official, including
evidence of submission of written
comments at the pre-decisional stage;
and
9. A statement of the relief the
appellant seeks.
The Appeal Deciding Officer shall
review the decision and appeal record
and issue a written appeal decision to
the parties as required by 36 CFR
223.118. The data gathered in this
information collection is not available
from other sources.
Affected Public: Timber sale
purchasers, or their representatives,
who are affected by recomputations of
small business share of timber sales.
Estimate of Burden per Response: 20
hours, inclusive of pre-decisional
comments and appeal.
Estimated Annual Number of
Respondents: 10.
Estimated Annual Number of
Responses per Respondent: 2.
Estimated Total Annual Burden on
Respondents: 200 hours.
Comment Is Invited
Comment is invited on: (1) whether
this collection of information is
necessary for the stated purposes and
the proper performance of the functions
of the agency, including whether the
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information will have practical or
scientific utility; (2) the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used; (3) ways to enhance
the quality, utility, and clarity of the
information to be collected; and (4)
ways to minimize the burden of the
collection of information on
respondents, including the use of
automated, electronic, mechanical, or
other technological collection
techniques or other forms of information
technology.
All comments received in response to
this notice, including names and
addresses when provided, will be a
matter of public record. Comments will
be summarized and included in the
submission request for Office of
Management and Budget approval.
Christopher French,
Deputy Chief, National Forest System.
[FR Doc. 2024–24995 Filed 10–25–24; 8:45 am]
BILLING CODE 3411–15–P
DEPARTMENT OF COMMERCE
Economic Development Administration
Agency Information Collection
Activities; Submission for OMB
Review; Comment Request;
Application Materials for EDA
Investment Assistance
The Department of Commerce will
submit the following information
collection request to the Office of
Management and Budget (OMB) for
review and clearance in accordance
with the Paperwork Reduction Act of
1995, on or after the date of publication
of this notice. We invite the general
public and other Federal agencies to
comment on proposed, and continuing
information collections, which helps us
assess the impact of our information
collection requirements and minimize
the public’s reporting burden. Public
comments were previously requested
via the Federal Register on August 28,
2024 during a 60-day comment period.
This notice allows for an additional 30
days for public comments.
Agency: Economic Development
Administration (EDA), Commerce.
Title: Application Materials for EDA
Investment Assistance.
OMB Control Number: 0610–0094.
Form Number(s): ED–900, ED–900B,
ED–900C, ED–900D, ED–900E, ED–
900F.
Type of Request: Extension of a
currently approved information
collection.
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Number of Respondents: For
construction projects, 977 estimated
respondents, and for non-construction
projects, 1,663 estimated respondents,
for a total of 2,640 estimated
respondents.
Average Hours per Response: For
construction projects, 43.0 estimated
hours per response, and for nonconstruction projects, 17.1 estimated
hours per response.
Burden Hours: For construction
projects, 42,011 estimated annual
burden hours, and for non-construction
projects, 28,437 estimated annual
burden hours, for a total of 70,448
estimated total annual burden hours.
Needs and Uses: EDA must collect
specific information from applicants for
EDA investment assistance to evaluate
whether proposed projects satisfy
eligibility and programmatic
requirements contained in EDA’s
authorizing legislation, the Public
Works and Economic Development Act
of 1965, as amended (42 U.S.C. 3121 et
seq.); EDA regulations at 13 CFR
Chapter III; and applicable Notices of
Funding Opportunity.
EDA proposes to extend the following
forms under this information collection:
Forms ED–900 (General Application for
EDA Programs), ED–900B (Beneficiary
Information Form), ED–900C (EDA
Application Supplement for
Construction Programs), ED–900D
(Requirements for Design and
Engineering Assistance), ED–900E
(Calculation of Estimated Relocation
and Land Acquisition Expenses), and
ED–900F (Additional EDA Assurances
for Revolving Loan Fund Investments).
Affected Public: Entities eligible for
EDA financial assistance, including
Federal, State, and local governments;
Indian tribes; institutions of higher
education; not-for-profit entities; and
business or other for-profit
organizations.
Frequency: During application for
EDA investment assistance.
Respondent’s Obligation: Mandatory.
Legal Authority: The Public Works
and Economic Development Act of 1965
(42 U.S.C. 3121 et seq.).
This information collection request
may be viewed at www.reginfo.gov.
Follow the instructions to view the
Department of Commerce collections
currently under review by OMB.
Written comments and
recommendations for the proposed
information collection should be
submitted within 30 days of the
publication of this notice on the
following website www.reginfo.gov/
public/do/PRAMain. Find this
particular information collection by
selecting ‘‘Currently under 30-day
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Review—Open for Public Comments’’ or
by using the search function and
entering either the title of the collection
or the OMB Control Number 0610–0094.
Sheleen Dumas,
Departmental PRA Clearance Officer, Office
of the Under Secretary of Economic Affairs,
Commerce Department.
[FR Doc. 2024–25006 Filed 10–25–24; 8:45 am]
Dated: October 23, 2024.
Dawn Shackleford,
Executive Director of Trade Agreements
Policy & Negotiations, Alternate Chairman,
Foreign-Trade Zones Board.
[FR Doc. 2024–25011 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
BILLING CODE 3510–34–P
International Trade Administration
DEPARTMENT OF COMMERCE
[C–570–171]
Foreign-Trade Zones Board
Disposable Aluminum Containers,
Pans, Trays, and Lids From the
People’s Republic of China:
Preliminary Affirmative Countervailing
Duty Determination, Preliminary
Affirmative Determination of Critical
Circumstances, and Alignment of Final
Determination With Final Antidumping
Duty Determination
[Order No. 2170]
Activation Limit Increase Under
Alternative Site Framework; ForeignTrade Zone 84; Houston, Texas
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Pursuant to its authority under the ForeignTrade Zones Act of June 18, 1934, as
amended (19 U.S.C. 81a–81u), the ForeignTrade Zones Board (the Board) adopts the
following Order:
Whereas, the Foreign-Trade Zones
(FTZ) Act provides for ‘‘. . . the
establishment . . . of foreign-trade
zones in ports of entry of the United
States, to expedite and encourage
foreign commerce, and for other
purposes,’’ and authorizes the Board to
grant to qualified corporations the
privilege of establishing foreign-trade
zones in or adjacent to U.S. Customs
and Border Protection ports of entry;
Whereas, the Board adopted the
alternative site framework (ASF) (15
CFR 400.2(c)) as an option for the
establishment or reorganization of
zones;
Whereas, the Port of Houston
Authority, grantee of Foreign-Trade
Zone 84, submitted an application to the
Board (FTZ Docket B–36–2024,
docketed June 26, 2024) for authority to
increase the activation limit of the zone
under the ASF to 3,000 acres;
Whereas, the application has been
processed pursuant to the FTZ Act and
the Board’s regulations; and,
Whereas, the Board adopts the
findings and recommendations of the
examiner’s report, and finds that the
requirements of the FTZ Act and the
Board’s regulations are satisfied;
Now, therefore, the Board hereby
orders:
The application to increase the
activation limit of the zone under the
ASF to 3,000 acres is approved, subject
to the FTZ Act and the Board’s
regulations, including section 400.13.
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Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of
Commerce (Commerce) preliminarily
determines that countervailable
subsidies are being provided to
producers and exporters of disposable
aluminum containers, pans, trays, and
lids (disposable aluminum containers)
from the People’s Republic of China
(China). The period of investigation
(POI) is January 1, 2023, through
December 31, 2023. Interested parties
are invited to comment on this
preliminary determination.
DATES: Applicable October 28, 2024.
FOR FURTHER INFORMATION CONTACT:
Brian Warnes, AD/CVD Operations,
Office VII, Enforcement and
Compliance, International Trade
Administration, U.S. Department of
Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone:
(202) 482–0028.
SUPPLEMENTARY INFORMATION:
AGENCY:
85495
703(c)(1)(A) of the Act.2 On July 26,
2024, Commerce further tolled all
deadlines in this proceeding by seven
days.3 The deadline for the preliminary
determination is now October 21, 2024.
For a complete description of events
that followed the initiation of this
investigation, see the Preliminary
Decision Memorandum.4 A list of topics
discussed in the Preliminary Decision
Memorandum is included as Appendix
II to this notice. The Preliminary
Decision Memorandum is a public
document and is on file electronically
via Enforcement and Compliance’s
Antidumping and Countervailing Duty
Centralized Electronic Service System
(ACCESS). ACCESS is available to
registered users at https://
access.trade.gov. In addition, a complete
version of the Preliminary Decision
Memorandum can be accessed directly
at https://access.trade.gov/public/
FRNoticesListLayout.aspx.
Scope of the Investigation
The products covered by this
investigation are disposable aluminum
containers from China. For a complete
description of the scope of this
investigation, see Appendix I.
Scope Comments
In accordance with the Preamble to
Commerce’s regulations,5 the Initiation
Notice set aside a period of time for
parties to raise issues regarding product
coverage (i.e., scope).6 No interested
party commented on the scope of the
investigation as it appeared in the
Initiation Notice.
Methodology
Commerce is conducting this
investigation in accordance with section
701 of the Act. For each of the subsidy
programs found to be countervailable,
Commerce preliminarily determines
that there is a subsidy, i.e., a financial
contribution by an ‘‘authority’’ that
gives rise to a benefit to the recipient,
Background
This preliminary determination is
made in accordance with section 703(b)
of the Tariff Act of 1930, as amended
(the Act). Commerce published the
notice of initiation of this countervailing
duty (CVD) investigation on June 12,
2024.1 On July 25, 2024, Commerce
postponed the deadline for the
preliminary determination until October
15, 2024, in accordance with section
1 See Disposable Aluminum Containers, Pans,
Trays, and Lids from the People’s Republic of
China: Initiation of Countervailing Duty
Investigation, 89 FR 49833 (June 12,2024) (Initiation
Notice).
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2 See Disposable Aluminum Containers, Pans,
Trays, and Lids from the People’s Republic of
China: Postponement of Preliminary Determination
in the Countervailing Duty Investigation, 89 FR
60355 (July 25, 2024).
3 See Memorandum, ‘‘Tolling of Deadlines for
Antidumping and Countervailing Duty
Proceedings,’’ dated July 25, 2024.
4 See Memorandum, ‘‘Decision Memorandum for
the Preliminary Affirmative Determination of the
Countervailing Duty Investigation of Disposable
Aluminum Containers, Pans, Trays, and Lids from
the People’s Republic of China,’’ dated concurrently
with, and hereby adopted by, this notice
(Preliminary Decision Memorandum).
5 See Antidumping Duties; Countervailing Duties,
Final Rule, 62 FR 27296, 27323 (May 19, 1997)
(Preamble).
6 See Initiation Notice, 89 FR at 49834.
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and that the subsidy is specific.7 For a
full description of the methodology
underlying our preliminary
determination, see the Preliminary
Decision Memorandum.
Commerce notes that, in making these
findings, it relied, in part, on facts
available, and, because it finds that
certain respondents and the
Government of China did not act to the
best of their ability to respond to
Commerce’s requests for information, it
drew an adverse inference where
appropriate in selecting from among the
facts otherwise available.8 For further
information, see the ‘‘Use of Facts
Otherwise Available and Adverse
Inferences’’ section in the Preliminary
Decision Memorandum.
Preliminary Affirmative Determination
Critical Circumstances
In accordance with section 703(e)(1)
of the Act, we preliminarily find that
critical circumstances exist with respect
to imports of subject merchandise from
Henan Aluminium Corporation (Henan),
Zhejiang Acumen Living Technology
Co., Ltd. (Zhejiang Acumen), and all
other exporters/producers of disposable
aluminum containers from China. For a
full discussion of our preliminary
critical circumstances determination,
see the ‘‘Preliminary Affirmative
Determination of Critical
Circumstances’’ section of the
Preliminary Decision Memorandum.
Alignment
In accordance with section 705(a)(1)
of the Act and 19 CFR 351.210(b)(4),
Commerce is aligning the final CVD
determination in this investigation with
the final determination in the
concurrent antidumping duty (AD)
investigation of disposable aluminum
containers from China, based on a
request made by the Aluminum Foil
Container Manufacturers Association
(the petitioner).9 Consequently, the final
CVD determination will be issued on
the same date as the final AD
determination, which is currently
scheduled to be issued no later than
March 4, 2025, unless postponed.
All-Others Rate
Sections 703(d) and 705(c)(5)(A) of
the Act provide that, in the preliminary
determination, Commerce shall
determine an estimated all-others rate
for companies not individually
examined. This rate shall be an amount
equal to the weighted average of the
estimated subsidy rates established for
those companies individually
examined, excluding any rates that are
zero, de minimis, or based entirely
under section 776 of the Act.
In this investigation, Commerce
preliminarily calculated a total subsidy
rate for Henan that is not zero, de
minimis, or based entirely on the facts
otherwise available. The rate
determined for the other mandatory
respondent, Zhejiang Acumen, is based
entirely under section 776 of the Act.
Because Commerce calculated a total
countervailable subsidy rate for Henan
that is not zero, de minimis, or based
entirely on the facts otherwise available,
and because the only other respondent,
Zhejiang Acumen, is based entirely on
the facts otherwise available, we have
preliminarily determined the all-others
rate to be Henan’s rate.10
Preliminary Determination
Commerce preliminarily determines
that the following estimated
countervailable subsidy rates exist:
Subsidy rate
(percent ad valorem)
Company
Henan Aluminium Corporation ............................................................................................................................................
Zhejiang Acumen Living Technology Co., Ltd ....................................................................................................................
All Others .............................................................................................................................................................................
78.12
* 312.91
78.12
* Rate based on facts available with adverse inferences.
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Disclosure
Commerce intends to disclose its
calculations and analysis performed to
interested parties in this preliminary
determination within five days of its
public announcement or, if there is no
public announcement, within five days
of the date of publication of this notice
in the Federal Register, accordance with
19 CFR 351.224(b).
Consistent with 19 CFR 351.224(e),
Commerce will analyze and, if
appropriate, correct any timely
allegations of significant ministerial
errors by amending the preliminary
determination. However, consistent
with 19 CFR 351.224(d), Commerce will
not consider incomplete allegations that
do not address the significance standard
under 19 CFR 351.224(g) following the
preliminary determination. Instead,
Commerce will address such allegations
in the final determination together with
7 See sections 771(5)(B) and (D) of the Act
regarding financial contribution; section 771(5)(E)
of the Act regarding benefit; and section 771(5A) of
the Act regarding specificity.
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issues raised in the case briefs or other
written comments.
Suspension of Liquidation
Section 703(e)(2) of the Act provides
that, given an affirmative determination
of critical circumstances, any
suspension of liquidation shall apply to
unliquidated entries of merchandise
entered, or withdrawn from warehouse,
for consumption on or after the later of:
(a) the date which is 90 days before the
date on which the suspension of
liquidation was first ordered; or (b) the
date on which notice of initiation of the
investigation was published. Commerce
preliminarily finds that critical
circumstances exist for imports of
subject merchandise from all exporters/
producers. In accordance with section
703(e)(2)(A) of the Act, the suspension
of liquidation shall apply to
unliquidated entries of merchandise
from all exporters/producers that were
8 See
sections 776(a) and (b) of the Act.
Petitioner’s Letter, ‘‘Petitioner’s Request to
Align Final Antidumping and Countervailing Duty
Determinations,’’ dated October 11, 2024.
9 See
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entered, or withdrawn from warehouse,
for consumption on or after the date
which is 90 days before the publication
of this notice. Further, pursuant to 19
CFR 351.205(d), Commerce will instruct
U.S. Customs and Border Protection to
require a cash deposit to suspended
entries equal to the rates indicated
above.
Verification
As provided in section 782(i)(1) of the
Act, Commerce intends to verify the
information relied upon in making its
final determination.
Public Comment
Case briefs or other written comments
may be submitted to the Assistant
Secretary for Enforcement and
Compliance no later than seven days
after the date on which the last
verification report is issued in this
investigation. Rebuttal briefs, limited to
10 See Memorandum, ‘‘Calculation of Subsidy
Rate for All Others,’’ dated concurrently with this
notice.
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issues raised in the case briefs, may be
filed not later than five days after the
date for filing case briefs.11 Interested
parties who submit case or rebuttal
briefs in this proceeding must submit:
(1) a table of contents listing each issue;
and (2) a table of authorities.12
As provided under 19 CFR
351.309(c)(2) and (d)(2), in prior
proceedings we have encouraged
interested parties to provide an
executive summary of their brief that
should be limited to five pages total,
including footnotes. In this
investigation, we instead request that
interested parties provide at the
beginning of their briefs a public
executive summary for each issue raised
in their briefs.13 Further, we request that
interested parties limit their public
executive summary of each issue to no
more than 450 words, not including
citations. We intend to use the public
executive summaries as the basis of the
comment summaries included in the
issues and decision memorandum that
will accompany the final determination
in this investigation. We request that
interested parties include footnotes for
relevant citations in the executive
summary of each issue. Note that
Commerce has amended certain of its
requirements pertaining to the service of
documents in 19 CFR 351.303(f).14
Pursuant to 19 CFR 351.310(c),
interested parties who wish to request a
hearing, limited to issues raised in the
case and rebuttal briefs, must submit a
written request to the Assistant
Secretary for Enforcement and
Compliance, U.S. Department of
Commerce, via ACCESS, within 30 days
after the date of publication of this
notice. Requests should contain (1) the
party’s name, address, and telephone
number; (2) the number of participants
and whether any participant is a foreign
national; and (3) a list of the issues to
be discussed. Oral presentations at the
hearing will be limited to issues raised
in the briefs. If a request for a hearing
is made, parties will be notified of the
time and date for the hearing.15 Parties
should confirm by telephone the date,
time, and location of the hearing two
days before the scheduled date.
11 See 19 CFR 351.309(d); see also Administrative
Protective Order, Service, and Other Procedures in
Antidumping and Countervailing Duty Proceedings,
88 FR 67069, 67077 (September 29, 2023) (APO and
Service Final Rule).
12 See 19 CFR 351.309(c)(2) and (d)(2).
13 We use the term ‘‘issue’’ here to describe an
argument that Commerce would normally address
in a comment of the Issues and Decision
Memorandum.
14 See APO and Service Final Rule, 88 FR at
67069.
15 See 19 CFR 351.310(d).
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All submissions, including case and
rebuttal briefs, as well as hearing
requests, should be filed using ACCESS.
An electronically-filed document must
be received successfully in its entirety
by ACCESS by 5:00 p.m. Eastern Time
on the established deadline.
U.S. International Trade Commission
(ITC) Notification
In accordance with section 703(f) of
the Act, Commerce will notify the ITC
of its determination. If the final
determination is affirmative, the ITC
will determine before the later of 120
days after the date of this preliminary
determination or 45 days after the final
determination whether imports of
disposable aluminum containers from
China are materially injuring, or
threaten material injury to, the U.S.
industry.
Notification to Interested Parties
This determination is issued and
published in accordance with sections
703(f) and 777(i)(1) of the Act, and 19
CFR 351.205(c).
Dated: October 21, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and
Negotiations, performing the non-exclusive
functions and duties of the Assistant
Secretary for Enforcement and Compliance.
Appendix I
Scope of the Investigation
The merchandise covered by this
investigation is disposable aluminum
containers, pans, trays, and lids produced
primarily from flat-rolled aluminum. The
subject merchandise includes disposable
aluminum containers, pans, trays, and lids
regardless of shape or size and whether or
not wrinkled or smooth.
The term ‘‘disposable’’ is used to identify
an aluminum article that is designed to be
used once, or for a limited number of times,
and then recycled or otherwise disposed.
‘‘Containers, pans, and trays’’ are receptacles
for holding goods.
The subject disposable aluminum lids are
intended to be used in combination with
disposable containers produced from
aluminum or other materials (e.g., paper or
plastic). Where a disposable aluminum lid is
imported with a non-aluminum container,
only the disposable aluminum lid is included
in the scope.
Disposable aluminum containers, pans,
trays, and lids are also included within the
scope regardless of whether the surface has
been embossed, printed, coated (including
with a non-stick substance), or decorated,
and regardless of the style of the edges. The
inclusion of a nonaluminum lid or dome sold
or packaged with an otherwise in-scope
article does not remove the article from the
scope, however, only the disposable
aluminum container, pan, tray, and lid is
covered by the scope definition.
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Disposable aluminum containers, pans,
trays, and lids are typically used in foodrelated applications, including but not
limited to food preparation, packaging,
baking, barbequing, reheating, takeout, or
storage, but also have other uses. Regardless
of end use, disposable aluminum containers,
pans, trays, and lids that meet the scope
definition and are not otherwise excluded are
subject merchandise.
Excluded from the scope are disposable
aluminum casks, drums, cans, boxes and
similar containers (including disposable
aluminum cups and bottles) properly
classified under Harmonized Tariff Schedule
of the United States (HTSUS) subheading
7612.90. However, aluminum containers,
pans, trays, and lids that would otherwise be
covered by the scope are not excluded based
solely on the fact that they are being
classified under HTSUS subheading
7612.90.5000 due to the thickness of
aluminum being less than 0.04 mm or greater
than 0.22 mm.
The flat-rolled aluminum used to produce
the subject articles may be made to ASTM
specifications ASTM B479 or ASTM B209–14
but can also be made to other specifications.
Regardless of the specification, however, all
disposable aluminum containers, pans, trays,
and lids meeting the scope description are
included in the scope.
Disposable aluminum containers, pans,
trays, and lids are currently classifiable
under HTSUS subheading 7615.10.7125.
Further, merchandise that falls within the
scope of this proceeding may also be entered
into the United States under HTSUS
subheadings 7612.90.1090, 7615.10.3015,
7615.10.3025, 7615.10.7130, 7615.10.7155,
7615.10.7180, 7615.10.9100, and
8309.90.0000. Although the HTSUS
subheadings are provided for convenience
and customs purposes, the written
description of the scope of this proceeding is
dispositive.
Appendix II
List of Topics Discussed in the Preliminary
Decision Memorandum
I. Summary
II. Background
III. Alignment
IV. Injury Test
V. Preliminary Affirmative Determination of
Critical Circumstances
VI. Diversification of China’s Economy
VII. Use of Facts Available and Adverse
Inferences
VIII. Subsidies Valuation
IX. Benchmarks and Interest Rates
X. Analysis of Programs
XI. Recommendation
[FR Doc. 2024–25013 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–DS–P
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
DEPARTMENT OF COMMERCE
International Trade Administration
[A–560–842]
Frozen Warmwater Shrimp From
Indonesia: Final Affirmative
Determination of Sales at Less-ThanFair Value
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of
Commerce (Commerce) determines that
imports of frozen warmwater shrimp
(shrimp) from Indonesia are being, or
are likely to be, sold in the United States
at less-than-fair value (LTFV) for the
period of investigation (POI) October 1,
2022, through September 30, 2023.
DATES: Applicable October 28, 2024.
FOR FURTHER INFORMATION CONTACT:
Rachel Jennings or Miranda Bourdeau,
AD/CVD Operations, Office V,
Enforcement and Compliance,
International Trade Administration,
U.S. Department of Commerce, 1401
Constitution Avenue NW, Washington,
DC 20230; telephone: (202) 482–1110 or
(202) 482–2021, respectively.
SUPPLEMENTARY INFORMATION:
AGENCY:
lotter on DSK11XQN23PROD with NOTICES1
Background
On May 30, 2024, Commerce
published in the Federal Register its
preliminary affirmative determination
in the LTFV investigation of shrimp
from Indonesia.1 We invited interested
parties to comment on the Preliminary
Determination. On July 22, 2024,
Commerce tolled certain deadlines in
this administrative proceeding by seven
days.2 The deadline for the final
determination is now October 21, 2024.3
A summary of the events that
occurred since Commerce published the
Preliminary Determination, as well as a
full discussion of the issues raised by
parties for this final determination may
be found in the Issues and Decision
Memorandum.4 The Issues and Decision
1 See Frozen Warmwater Shrimp from Indonesia:
Preliminary Affirmative Determination of Sales at
Less Than Fair Value, Postponement of Final
Determination, and Extension of Provisional
Measures, 89 FR 46861 (May 30, 2024) (Preliminary
Determination), and accompanying Preliminary
Decision Memorandum (PDM).
2 See Memorandum, ‘‘Tolling of Deadlines for
Antidumping and Countervailing Duty
Proceedings,’’ dated July 22, 2024.
3 Id.
4 See Memorandum, ‘‘Issues and Decision
Memorandum for the Final Affirmative
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Memorandum is a public document and
is on file electronically via Enforcement
and Compliance’s Antidumping and
Countervailing Duty Centralized
Electronic Service System (ACCESS).
ACCESS is available to registered users
at https://access.trade.gov. In addition, a
complete version of the Issues and
Decision Memorandum can be accessed
directly at https://access.trade.gov/
public/FRNoticesListLayout.aspx.
Scope of the Investigation
The product covered by this
investigation is shrimp from Indonesia.
For a complete description of the scope
of this investigation, see Appendix I.
Scope Comments
We received no comments from
interested parties on the scope of the
investigation as it appeared in the
Preliminary Determination. Therefore,
we made no changes to the scope of the
investigation.
Verification
As provided in section 782(i) of the
Tariff Act of 1930, as amended (the Act),
Commerce verified the sales and cost
information submitted by PT Bahari
Makmur Sejati (BMS),5 and PT First
Marine Seafoods and PT Khom Foods
(collectively, First Marine/Khom
Foods) 6 for use in our final
determination. We used standard
verification procedures, including an
examination of relevant sales and
accounting records, and original source
Determination of Sales at Less-Than-Fair-Value of
Frozen Warmwater Shrimp from Indonesia,’’ dated
concurrently with, and hereby adopted by, this
notice (Issues and Decision Memorandum).
5 See Memoranda, ‘‘Verification of the
Questionnaire Responses of PT Bahari Makmur
Sejati in the Less-Than-Fair-Value Investigation of
Frozen Warmwater Shrimp from Indonesia,’’ dated
July 22, 2024; and ‘‘Verification of the Cost
Response of PT Bahari Makmur Sejati in the
Antidumping Duty Investigation of Frozen
Warmwater Shrimp from Indonesia,’’ dated August
6, 2024.
6 See Memoranda, ‘‘Verification of the
Questionnaire Responses of PT First Marine
Seafoods and PT Khom Foods in the Less-ThanFair-Value Investigation of Frozen Warmwater
Shrimp from Indonesia,’’ dated August 2, 2024, and
‘‘Verification of the Cost Response of PT First
Marine Seafoods in the Less Than Fair Value
Investigation of Frozen Warm Water Shrimp from
Indonesia,’’ dated September 6, 2024. In the
Preliminary Determination, Commerce determined
that PT First Marine Seafoods and PT Khom Foods
are a single entity and no party commented on this
finding. Accordingly, we continue to treat these
companies as a single entity for this final
determination. See Preliminary Determination PDM
at 5.
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documents provided by BMS and First
Marine/Khom Foods.
Analysis of Comments Received
All issues raised in the case and
rebuttal briefs by interested parties in
this investigation are addressed in the
Issues and Decision Memorandum. A
list of the issues raised is attached to
this notice as Appendix II.
Changes Since the Preliminary
Determination
We have made certain changes since
the Preliminary Determination. See the
Issues and Decision Memorandum for a
discussion of these changes.
Use of Adverse Facts Available
In making this final determination,
Commerce relied, in part, on facts
otherwise available with an adverse
inference (AFA), pursuant to sections
776(a) and (b) of the Act, in determining
BMS’s domestic brokerage and handling
expenses. For further discussion of our
application of AFA, see the Issues and
Decision Memorandum.
All-Others Rate
Section 735(c)(5)(A) of the Act
provides that Commerce shall determine
an estimated all-others rate for all
exporters and producers not
individually examined. This rate shall
be an amount equal to the weighted
average of the estimated weightedaverage dumping margins established
for exporters and producers
individually investigated, excluding any
zero and de minimis margins, and any
margins determined entirely under
section 776 of the Act.
For the final determination of this
investigation, Commerce calculated an
estimated weighted-average dumping
margin of 0.00 percent for BMS, and an
estimated weighted-average dumping
margin of 3.90 percent for First Marine/
Khom Foods. Therefore, the only rate
that is not zero, de minimis, or based
entirely on facts otherwise available is
the rate calculated for First Marine/
Khom Foods. Consequently, the rate
calculated for First Marine/Khom Foods
is also assigned as the rate for all other
producers and exporters.
Final Determination
Commerce determines that the
following estimated weighted-average
dumping margins exist:
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Weighted-average
dumping margin
(percent) 7
Exporter/producer
PT Bahari Makmur Sejati ............................................................................................................................................................
PT First Marine Seafoods/PT Khom Foods ................................................................................................................................
All Others .....................................................................................................................................................................................
Disclosure
Commerce intends to disclose the
calculations performed in connection
with this final determination to
interested parties within five days of
any public announcement or, if there is
no public announcement, within five
days of the date of publication of this
notice in the Federal Register, in
accordance with 19 CFR 351.224(b).
Continuation of Suspension of
Liquidation
lotter on DSK11XQN23PROD with NOTICES1
In accordance with section
735(c)(1)(B) of the Act, Commerce will
instruct U.S. Customs and Border
Protection (CBP) to continue to suspend
liquidation of all entries of subject
merchandise, as described in Appendix
I of this notice, which were entered, or
withdrawn from warehouse, for
consumption on or after May 30, 2024,
the date of publication of the
Preliminary Determination in the
Federal Register except for those entries
of subject merchandise produced and
exported by BMS.
Pursuant to section 735(c)(1)(B)(ii) of
the Act and 19 CFR 351.210(d), upon
the publication of this notice, we will
instruct CBP to require a cash deposit
for estimated weighted-average
antidumping duties as follows: (1) the
cash deposit rate for the companies
listed in the table above that exported
the subject merchandise will be equal to
the company-specific estimated
weighted-average dumping margins
determined in this final determination;
(2) if the exporter is not a company
identified in the table above, but the
producer is, then the cash deposit rate
will be equal to the company-specific
estimated weighted-average dumping
margin established for that producer of
the subject merchandise; and (3) the
cash deposit rate for all other producers
and exporters will be equal to the
estimated weighted-average dumping
margin for all other producers and
exporters. These suspension of
7 Commerce determined that countervailable
subsidies are not being provided to producers and
exporters of shrimp from Indonesia. See
Memorandum, ‘‘Decision Memorandum for the
Final Negative Determination of the Countervailing
Duty Investigation of Frozen Warmwater Shrimp
from Indonesia,’’ dated concurrently with this
notice.
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Jkt 265001
liquidation instructions will remain in
effect until further notice.
Because the estimated weightedaverage dumping margin for BMS is
zero, entries of shipments of subject
merchandise that are produced and
exported by BMS will not be subject to
suspension of liquidation or cash
deposit requirements. In such
situations, Commerce also applies the
exclusion from the provisional measures
to the producer/exporter combination
that was examined in the investigation.
Accordingly, Commerce will not be
directing CBP to suspend liquidation of
entries of subject merchandise produced
and exported by BMS. However, entries
of subject merchandise from this
company in any other producer/
exporter combination (i.e., where BMS
is either the producer or the exporter,
but not both), or by third parties that
sourced subject merchandise from the
excluded producer/exporter
combination, will be subject to
suspension of liquidation at the allothers rate.
Further, because the estimated
weighted-average dumping margin is
zero for subject merchandise produced
and exported by BMS, entries of such
merchandise will be excluded from the
potential antidumping duty order. Such
an exclusion will not be applicable to
merchandise exported to the United
States by this respondent in any other
producer/exporter combinations or by
third parties that sourced subject
merchandise from the excluded
producer/exporter combination.
U.S. International Trade Commission
Notification
In accordance with section 735(d) of
the Act, we will notify the U.S.
International Trade Commission (ITC) of
our final affirmative determination of
sales at LTFV. Because the final
determination in this proceeding is
affirmative, in accordance with section
735(b)(2) of the Act, the ITC will make
its final determination as to whether the
domestic industry in the United States
is materially injured, or threatened with
material injury, by reason of imports of
shrimp from Indonesia no later than 45
days after this final determination. If the
ITC determines that material injury or
threat of material injury does not exist,
the proceeding will be terminated and
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0.00
3.90
3.90
all cash deposits will be refunded or
canceled, and suspension of liquidation
will be lifted. If the ITC determines that
such injury does exist, Commerce will
issue an antidumping duty order
directing CBP to assess, upon further
instruction by Commerce, antidumping
duties on all imports of the subject
merchandise that are entered, or
withdrawn from warehouse, for
consumption on or after the effective
date of the suspension of liquidation, as
discussed above in the ‘‘Continuation of
Suspension of Liquidation’’ section.
Administrative Protective Order
This notice serves as the only
reminder to parties subject to an
administrative protective order (APO) of
their responsibility concerning the
disposition of proprietary information
disclosed under APO in accordance
with 19 CFR 351.305(a)(3). Timely
written notification of the return or
destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and terms of an
APO is a sanctionable violation.
Notification to Interested Parties
This final determination and notice
are issued and published in accordance
with sections 735(d) and 777(i) of the
Act, and 19 CFR 351.210(c).
Dated: October 21, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and
Negotiations, performing the non-exclusive
functions and duties of the Assistant
Secretary for Enforcement and Compliance.
Appendix I
Scope of the Investigation
The scope of this investigation includes
certain frozen warmwater shrimp and prawns
whether wild-caught (ocean harvested) or
farm-raised (produced by aquaculture), headon or head-off, shell-on or peeled, tail-on or
tail-off, deveined or not deveined, cooked or
raw, or otherwise processed in frozen form.
‘‘Tails’’ in this context means the tail fan,
which includes the telson and the uropods.
The frozen warmwater shrimp and prawn
products included in the scope, regardless of
definitions in the Harmonized Tariff
Schedule of the United States (HTSUS), are
products which are processed from
warmwater shrimp and prawns through
freezing and which are sold in any count
size.
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The products described above may be
processed from any species of warmwater
shrimp and prawns. Warmwater shrimp and
prawns are generally classified in, but are not
limited to, the Penaeidae family. Some
examples of the farmed and wild-caught
warmwater species include, but are not
limited to, whiteleg shrimp (Penaeus
vannemei), banana prawn (Penaeus
merguiensis), fleshy prawn (Penaeus
chinensis), giant river prawn
(Macrobrachium rosenbergii), giant tiger
prawn (Penaeus monodon), redspotted
shrimp (Penaeus brasiliensis), southern
brown shrimp (Penaeus subtilis), southern
pink shrimp (Penaeus notialis), southern
rough shrimp (Trachypenaeus curvirostris),
southern white shrimp (Penaeus schmitti),
blue shrimp (Penaeus stylirostris), western
white shrimp (Penaeus occidentalis), and
Indian white prawn (Penaeus indicus).
Frozen shrimp and prawns that are packed
with marinade, spices or sauce are included
in the scope. In addition, food preparations,
which are not ‘‘prepared meals,’’ that contain
more than 20 percent by weight of shrimp or
prawn are also included in the scope.
Excluded from the scope are: (1) breaded
shrimp and prawns (HTSUS subheading
1605.21.10.20); (2) shrimp and prawns
generally classified in the Pandalidae family
and commonly referred to as coldwater
shrimp, in any state of processing; (3) fresh
shrimp and prawns whether shell-on or
peeled (HTSUS subheadings 0306.36.0020
and 0306.36.0040); (4) shrimp and prawns in
prepared meals (HTSUS subheading
1605.21.05.00 and 1605.29.05.00); (5) dried
shrimp and prawns; (6) canned warmwater
shrimp and prawns (HTSUS subheading
1605.29.10.40); and (7) certain battered
shrimp. Battered shrimp is a shrimp-based
product: (1) that is produced from fresh (or
thawed-from-frozen) and peeled shrimp; (2)
to which a ‘‘dusting’’ layer of rice or wheat
flour of at least 95 percent purity has been
applied; (3) with the entire surface of the
shrimp flesh thoroughly and evenly coated
with the flour; (4) with the non-shrimp
content of the end product constituting
between four and ten percent of the product’s
total weight after being dusted, but prior to
being frozen; and (5) that is subjected to IQF
freezing immediately after application of the
dusting layer. When dusted in accordance
with the definition of dusting above, the
battered shrimp product is also coated with
a wet viscous layer containing egg and/or
milk, and par-fried.
The products covered by the scope are
currently classified under the following
HTSUS subheadings: 0306.17.0004,
0306.17.0005, 0306.17.0007, 0306.17.0008,
0306.17.0010, 0306.17.0011, 0306.17.0013,
0306.17.0014, 0306.17.0016, 0306.17.0017,
0306.17.0019, 0306.17.0020, 0306.17.0022,
0306.17.0023, 0306.17.0025, 0306.17.0026,
0306.17.0028, 0306.17.0029, 0306.17.0041,
0306.17.0042, 1605.21.1030, and
1605.29.1010. These HTSUS subheadings are
provided for convenience and for customs
purposes only and are not dispositive, but
rather the written description of the scope is
dispositive.
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Appendix II
List of Topics Discussed in the Issues and
Decision Memorandum
I. Summary
II. Background
III. Changes Since the Preliminary
Determination
IV. Discussion of the Issues
Comment 1: Whether BMS’s Cost
Reporting Warrants the Application of
Total AFA
Comment 2: Whether Commerce Should
Rely on BMS’s Reported Selling Prices
and Expenses for Products Containing
Sauce
Comment 3: Whether Commerce Should
Apply Partial AFA to BMS’s Reported
Domestic Brokerage and Handling
Expenses (DBROKU)
Comment 4: Whether Commerce Should
Use BMS’s Quarterly Cost Data
Comment 5: Whether Commerce Should
Revise BMS’s ‘‘Transactions
Disregarded’’ Calculation
Comment 6: Whether Commerce Should
Reject the Petitioner’s Pre-Verification
Comments
Comment 7: Whether Commerce Should
Reject First Marine/Khom Foods’ Raw
Material Cost Reporting
Comment 8: Whether Commerce Should
Make a Correction to First Marine/Khom
Foods’ Final Margin Program
Comment 9: Whether Commerce Should
Continue to Rely on the Financial
Statements of PT Central Poteina Prima
Tbk (CP Prima) to Calculate Constructed
Value (CV) Profit and Selling Expenses
V. Recommendation
[FR Doc. 2024–24953 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[C–552–838]
Frozen Warmwater Shrimp From the
Socialist Republic of Vietnam: Final
Affirmative Countervailing Duty
Determination
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of
Commerce (Commerce) determines that
countervailable subsidies are being
provided to producers and exporters of
frozen warmwater shrimp (shrimp) from
the Socialist Republic of Vietnam
(Vietnam). The period of investigation
(POI) is January 1, 2022, through
December 31, 2022.
DATES: Applicable October 28, 2024.
FOR FURTHER INFORMATION CONTACT:
Adam Simons, AD/CVD Operations,
Office IX, Enforcement and Compliance,
International Trade Administration,
U.S. Department of Commerce, 1401
AGENCY:
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Constitution Avenue NW, Washington,
DC 20230; telephone: (202) 482–6172.
SUPPLEMENTARY INFORMATION:
Background
On April 1, 2024, Commerce
published its Preliminary Determination
in the Federal Register and invited
interested parties to comment.1 On July
22, 2024, Commerce tolled certain
deadlines in this administrative
proceeding by seven days.2 The
deadline for the final determination is
now October 21, 2024. For a complete
discussion of the events that followed
the Preliminary Determination, see the
Issues and Decision Memorandum.3
The Issues and Decision
Memorandum is a public document and
is made available to the public via
Enforcement and Compliance’s
Antidumping and Countervailing Duty
Centralized Electronic Service System
(ACCESS). ACCESS is available to
registered users at https://
access.trade.gov. In addition, a complete
version of the Issues and Decision
Memorandum can be accessed directly
at https://access.trade.gov/public/
FRNoticesListLayout.aspx.
Scope of the Investigation
The merchandise covered by the
scope of this investigation is shrimp
from Vietnam. For a complete
description of the scope of this
investigation, see Appendix I.
Scope Comments
We received no comments from
interested parties on the scope of the
investigation as it appeared in the
Preliminary Determination. Therefore,
we made no changes to the scope of the
investigation.
Verification
As provided in section 782(i) of the
Tariff Act of 1930, as amended (the Act),
in May and June, 2024, Commerce
conducted verification of the subsidy
information reported by the Government
of Vietnam (GOV), Soc Trang Seafood
1 See Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam: Preliminary
Affirmative Countervailing Duty Determination, and
Alignment of Final Determination with Final
Antidumping Duty Determination, 89 FR 22374
(April 1, 2024) (Preliminary Determination), and
accompanying Preliminary Decision Memorandum
(PDM).
2 See Memorandum, ‘‘Tolling of Deadlines for
Antidumping and Countervailing Duty
Proceedings,’’ dated July 22, 2024.
3 See Memorandum, ‘‘Issues and Decision
Memorandum for the Final Determination of the
Countervailing Duty Investigation of Frozen
Warmwater Shrimp from the Socialist Republic of
Vietnam,’’ dated concurrently with, and hereby
adopted by, this notice (Issues and Decision
Memorandum).
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Joint Stock Company (STAPIMEX), and
STAPIMEX’s supplier Giang Hong
Phuong for use in our final
determination. We used standard
verification procedures, including an
examination of relevant accounting
records and original source documents
provided by STAPIMEX, Giang Hong
Phuong, and the GOV.4
Analysis of Subsidy Programs and
Comments Received
The subsidy programs under
investigation and the issues raised in
the case and rebuttal briefs that were
submitted by interested parties in this
investigation are discussed in the Issues
and Decision Memorandum. For a list of
the issues raised by interested parties
and addressed in the Issues and
Decision Memorandum, see Appendix
II.
Methodology
Commerce conducted this
investigation in accordance with section
701 of the Act. For each of the subsidy
programs found to be countervailable,
Commerce determines that there is a
subsidy, i.e., a financial contribution by
an ‘‘authority’’ that gives rise to a
benefit to the recipient, and that the
subsidy is specific.5 For a full
description of the methodology
underlying our final determination, see
the Issues and Decision Memorandum.
In making this final determination,
Commerce relied, in part, on facts
otherwise available, including with an
adverse inference, pursuant to sections
776(a) and (b) of the Act. For a full
discussion of our application of adverse
facts available (AFA), see the
Preliminary Determination,6 and the
Issues and Decision Memorandum at the
section entitled ‘‘Uses of Facts Available
and Application of Adverse Inferences.’’
Changes Since the Preliminary
Determination
Based on our review and analysis of
the information at verification and
comments received from interested
parties, we made changes to the subsidy
rate calculations for Thong Thuan
Company Limited to include the
subsidy programs included in the PostPreliminary Analysis Memo.7 For a
discussion of these changes, see the
Issues and Decision Memorandum.
85501
All-Others Rate
Pursuant to section 705(c)(5)(A)(i) of
the Act, Commerce will determine an
all-others rate equal to the weightedaverage countervailable subsidy rates
established for exporters and/or
producers individually investigated,
excluding any zero and de minimis
countervailable subsidy rates, and any
rates determined entirely under section
776 of the Act. We continue to assign a
rate based entirely on facts available to
Thong Thuan Company Limited.
Therefore, the only rate that that is not
zero, de minimis, or based entirely on
facts otherwise available is the rate
calculated for STAPIMEX.
Consequently, we continue to assign the
rate calculated for STAPIMEX as the
rate for all other producers and
exporters, pursuant to section
705(c)(5)(A)(i) of the Act.
Final Determination
Commerce determines that the
following estimated countervailable
subsidy rates exist for the period
January 1, 2022, through December 31,
2022:
Subsidy rate
(percent
ad valorem)
Company
Soc Trang Seafood Joint Stock Company ..................................................................................................................................
Thong Thuan Company Limited ..................................................................................................................................................
All Others .....................................................................................................................................................................................
2.84
* 221.82
2.84
* Rate based on AFA.
Disclosure
Commerce intends to disclose to
interested parties the calculations and
analysis performed in this final
determination within five days of any
public announcement or, if there is no
public announcement, within five days
of the date of publication of this notice
in accordance with 19 CFR 351.224(b).
lotter on DSK11XQN23PROD with NOTICES1
Continuation of Suspension of
Liquidation
As a result of our Preliminary
Determination, and pursuant to sections
703(d)(1)(B) and (d)(2) of the Act, we
instructed U.S. Customs and Border
Protection (CBP) to collect cash deposits
and suspend liquidation of entries of
subject merchandise from Vietnam that
were entered, or withdrawn from
warehouse, for consumption, on or after
4 See Memoranda, ‘‘Verification of Soc Trang
Seafood Joint Stock Company,’’ dated August 14,
2024; ‘‘Verification of the Government of the
Socialist Republic of Vietnam,’’ dated August 29,
2024; and ‘‘Verification of Giang Hong Phuong,’’
dated July 31, 2024.
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19:13 Oct 25, 2024
Jkt 265001
April 1, 2024, the date of the
publication of the Preliminary
Determination in the Federal Register.8
In accordance with section 703(d) of the
Act, we instructed CBP to discontinue
the suspension of liquidation of all
entries of subject merchandise entered
or withdrawn from warehouse, on or
after July 30, 2024, but to continue the
suspension of liquidation of all entries
of subject merchandise on or before July
29, 2024.
If the U.S. International Trade
Commission (ITC) issues a final
affirmative injury determination, we
will issue a countervailing duty order,
reinstate the suspension of liquidation
under section 706(a) of the Act, and
require a cash deposit of estimated
countervailing duties for entries of
subject merchandise in the amounts
indicated above. If the ITC determines
that material injury, or threat of material
injury, does not exist, this proceeding
will be terminated, and all estimated
duties deposited or securities posted as
a result of the suspension of liquidation
will be refunded or cancelled.
5 See sections 771(5)(B) and (D) of the Act
regarding financial contribution; see also section
771(5)(E) of the Act regarding benefit; and section
771(5A) of the Act regarding specificity.
6 See Preliminary Determination PDM at 6–15.
7 See Memorandum, ‘‘Post-Preliminary Analysis
in the Countervailing Duty Investigation of Frozen
Warmwater Shrimp from the Socialist Republic of
Vietnam,’’ dated May 23, 2024; see also Issues and
Decision Memorandum at Appendix for the revised
AFA rate calculation.
8 See Preliminary Determination, 89 FR at 22374.
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ITC Notification
In accordance with section 705(d) of
the Act, we will notify the ITC of our
final affirmative determination that
countervailable subsidies are being
provided to producers and exporters of
shrimp from Vietnam. Because the final
determination is affirmative, in
accordance with section 705(b) of the
Act, the ITC will make its final
determination as to whether the
domestic industry in the United States
is materially injured, or threatened with
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material injury, by reason of imports of
shrimp from Vietnam no later than 45
days after our final determination. In
addition, we are making available to the
ITC all non-privileged and
nonproprietary information related to
this investigation. We will allow the ITC
access to all privileged and business
proprietary information in our files,
provided the ITC confirms that it will
not disclose such information, either
publicly or under an administrative
protective order (APO), without the
written consent of the Assistant
Secretary for Enforcement and
Compliance. If the ITC determines that
material injury or threat of material
injury does not exist, this proceeding
will be terminated and all cash deposits
will be refunded. If the ITC determines
that such injury does exist, Commerce
will issue a countervailing duty order
directing CBP to assess, upon further
instruction by Commerce,
countervailing duties on all imports of
the subject merchandise that are
entered, or withdrawn, for consumption
on or after the effective date of the
suspension of liquidation, as discussed
above in the ‘‘Continuation of
Suspension of Liquidation’’ section.
Administrative Protective Order
In the event that the ITC issues a final
negative injury determination, this
notice will serve as the only reminder
to parties subject to an APO of their
responsibility concerning the
destruction of proprietary information
disclosed under APO, in accordance
with 19 CFR 351.305(a)(3). Timely
written notification of the return/
destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and terms of an
APO is a violation which is subject to
sanction.
Notification to Interested Parties
This determination is issued and
published in accordance with sections
705(d) and 777(i) of the Act, and 19 CFR
351.210(c).
lotter on DSK11XQN23PROD with NOTICES1
Dated: October 21, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and
Negotiations, performing the non-exclusive
functions and duties of the Assistant
Secretary for Enforcement and Compliance.
Appendix I
Scope of the Investigation
The scope of this investigation includes
certain frozen warmwater shrimp and prawns
whether wild-caught (ocean harvested) or
farm-raised (produced by aquaculture), headon or head-off, shell-on or peeled, tail-on or
tail-off, deveined or not deveined, cooked or
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19:13 Oct 25, 2024
Jkt 265001
raw, or otherwise processed in frozen form.
‘‘Tails’’ in this context means the tail fan,
which includes the telson and the uropods.
The frozen warmwater shrimp and prawn
products included in the scope, regardless of
definitions in the Harmonized Tariff
Schedule of the United States (HTSUS), are
products which are processed from
warmwater shrimp and prawns through
freezing and which are sold in any count
size.
The products described above may be
processed from any species of warmwater
shrimp and prawns. Warmwater shrimp and
prawns are generally classified in, but are not
limited to, the Penaeidae family. Some
examples of the farmed and wild-caught
warmwater species include, but are not
limited to, whiteleg shrimp (Penaeus
vannemei), banana prawn (Penaeus
merguiensis), fleshy prawn (Penaeus
chinensis), giant river prawn
(Macrobrachium rosenbergii), giant tiger
prawn (Penaeus monodon), redspotted
shrimp (Penaeus brasiliensis), southern
brown shrimp (Penaeus subtilis), southern
pink shrimp (Penaeus notialis), southern
rough shrimp (Trachypenaeus curvirostris),
southern white shrimp (Penaeus schmitti),
blue shrimp (Penaeus stylirostris), western
white shrimp (Penaeus occidentalis), and
Indian white prawn (Penaeus indicus).
Frozen shrimp and prawns that are packed
with marinade, spices or sauce are included
in the scope. In addition, food preparations,
which are not ‘‘prepared meals,’’ that contain
more than 20 percent by weight of shrimp or
prawn are also included in the scope.
Excluded from the scope are: (1) breaded
shrimp and prawns (HTSUS subheading
1605.21.1020); (2) shrimp and prawns
generally classified in the Pandalidae family
and commonly referred to as coldwater
shrimp, in any state of processing; (3) fresh
shrimp and prawns whether shell-on or
peeled (HTSUS subheadings 0306.36.0020
and 0306.36.0040); (4) shrimp and prawns in
prepared meals (HTSUS subheadings
1605.21.0500 and 1605.29.0500); (5) dried
shrimp and prawns; (6) canned warmwater
shrimp and prawns (HTSUS subheading
1605.29.1040); and (7) certain battered
shrimp. Battered shrimp is a shrimp-based
product: (1) that is produced from fresh (or
thawed-from-frozen) and peeled shrimp; (2)
to which a ‘‘dusting’’ layer of rice or wheat
flour of at least 95 percent purity has been
applied; (3) with the entire surface of the
shrimp flesh thoroughly and evenly coated
with the flour; (4) with the non-shrimp
content of the end product constituting
between four and ten percent of the product’s
total weight after being dusted, but prior to
being frozen; and (5) that is subjected to
individually quick frozen (IQF) freezing
immediately after application of the dusting
layer. When dusted in accordance with the
definition of dusting above, the battered
shrimp product is also coated with a wet
viscous layer containing egg and/or milk, and
par-fried.
The products covered by the scope are
currently classified under the following
HTSUS subheadings: 0306.17.0004,
0306.17.0005, 0306.17.0007, 0306.17.0008,
0306.17.0010, 0306.17.0011, 0306.17.0013,
PO 00000
Frm 00015
Fmt 4703
Sfmt 4703
0306.17.0014, 0306.17.0016, 0306.17.0017,
0306.17.0019, 0306.17.0020, 0306.17.0022,
0306.17.0023, 0306.17.0025, 0306.17.0026,
0306.17.0028, 0306.17.0029, 0306.17.0041,
0306.17.0042, 1605.21.1030, and
1605.29.1010. These HTSUS subheadings are
provided for convenience and for customs
purposes only and are not dispositive, but
rather the written description of the scope is
dispositive.
Appendix II
List of Topics Discussed in the Issues and
Decision Memorandum
I. Summary
II. Background
III. Subsidies Valuation
IV. Use of Facts Available and Adverse
Inferences
V. Benchmarks
VI. Analysis of Programs
VII. Discussion of the Issues
Comment 1: Whether the Accelerated
Depreciation and Increase of Deductible
Expense Program is Specific
Comment 2: Whether to Countervail
Lending Programs Deferred at the
Preliminary Determination
Comment 3: Whether to Apply AFA to
Water in the Provision of Utilities at
Reduced Rates in Industrial and Export
Processing Zones Program
Comment 4: Whether to Select an
Alternative Land for Less Than Adequate
Remuneration (LTAR) Benchmark
Comment 5: Whether to Reconsider the
Countervailability of the Import Duty
Exemptions for Imports Used to Produce
Exported Goods Program
Comment 6: Whether to Continue to Find
Certain Programs Not Countervailable
Comment 7: Whether Commerce Should
Implement Section 771B of the Act
VIII. Recommendation
[FR Doc. 2024–24955 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[C–533–921]
Frozen Warmwater Shrimp From India:
Final Affirmative Countervailing Duty
Determination
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of
Commerce (Commerce) determines that
countervailable subsidies are being
provided to producers and exporters of
frozen warmwater shrimp (shrimp) from
India. The period of investigation (POI)
is April 1, 2022, through March 31,
2023.
DATES: Applicable October 28, 2024.
FOR FURTHER INFORMATION CONTACT:
Benjamin Nathan, AD/CVD Operations,
Office II, Enforcement and Compliance,
AGENCY:
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International Trade Administration,
U.S. Department of Commerce, 1401
Constitution Avenue NW, Washington,
DC 20230; telephone: (202) 482–3834.
SUPPLEMENTARY INFORMATION:
Background
On April 1, 2024, Commerce
published the Preliminary
Determination in the Federal Register.1
In the Preliminary Determination, and
in accordance with section 705(a)(1) of
the Tariff Act of 1930, as amended (the
Act), and 19 CFR 351.210(b)(4),
Commerce aligned the final
countervailing duty (CVD)
determination with the final
antidumping duty determination.2
Commerce invited parties to comment
on the Preliminary Determination.3 On
July 19, 2024, Commerce released its
Post-Preliminary Decision.4 On July 22,
2024, Commerce tolled certain
deadlines in this administrative
proceeding by seven days.5 The
deadline for the final determination is
now October 21, 2024.
For a complete description of the
events that followed the Preliminary
Determination, see the Issues and
Decision Memorandum.6 The Issues and
Decision Memorandum is a public
document and is on file electronically
via Enforcement and Compliance’s
Antidumping and Countervailing Duty
Centralized Electronic Service System
(ACCESS). ACCESS is available to
registered users at https://
access.trade.gov. In addition, a complete
version of the Issues and Decision
Memorandum can be accessed directly
at https://access.trade.gov/public/
FRNoticesListLayout.aspx.
Scope of the Investigation
lotter on DSK11XQN23PROD with NOTICES1
The products covered by this
investigation are shrimp from India. For
a complete description of the scope of
the investigation, see appendix I.
1 See Frozen Warmwater Shrimp from India:
Preliminary Affirmative Determination of
Countervailable Subsidies, and Alignment of Final
Determination With the Final Antidumping Duty
Determination, 89 FR 22386 (April 1, 2024)
(Preliminary Determination), and accompanying
Preliminary Decision Memorandum (PDM).
2 See Preliminary Determination, 89 FR at 22386.
3 Id.
4 See Memorandum, ‘‘Post Preliminary Analysis,’’
dated July 19, 2024.
5 See Memorandum, ‘‘Tolling of Deadlines for
Antidumping and Countervailing Duty
Proceedings,’’ dated July 22, 2024.
6 See Memorandum, ‘‘Issues and Decision
Memorandum for the Final Affirmative
Determination of the Countervailing Duty
Investigation of Frozen Warmwater Shrimp from
India,’’ dated concurrently with, and hereby
adopted by, this notice (Issues and Decision
Memorandum).
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
Scope Comments
We received no comments from
interested parties on the scope of the
investigation as it appeared in the
Preliminary Determination. Therefore,
we made no changes to the scope of the
investigation.
Verification
As provided in section 782(i) of the
Act, in July and August 2024,
Commerce verified all information
reported by Devi Sea Foods Limited
(Devi), Sandhya Aqua Exports Private
Limited (Sandhya), and the Government
of India (GOI). We used standard
verification procedures, including an
examination of relevant account records
and original source documents provided
by the respondents.7
Analysis of Subsidy Programs and
Comments Received
The subsidy programs under
investigation, and the issues raised in
the case and rebuttal briefs by parties in
this investigation, are discussed in the
Issues and Decision Memorandum. For
a list of the issues raised by parties, and
to which we responded in the Issues
and Decision Memorandum, see
Appendix II.
Methodology
Commerce conducted this
investigation in accordance with section
701 of the Act. For each of the subsidy
programs found to be countervailable,
Commerce determines that there is a
subsidy, i.e., a financial contribution by
an ‘‘authority’’ that gives rise to a
benefit to the recipient, and that the
subsidy is specific.8 For a full
description of the methodology
underlying our final determination, see
the Issues and Decision Memorandum.
Changes Since the Preliminary
Determination
Based on our review and analysis of
the information received during
verification and comments received
from parties, for this final
determination, we made certain changes
to the countervailable subsidy rate
calculations for Devi, Sandhya, and for
all other producers/exporters. For a
discussion of these changes, see the
Issues and Decision Memorandum.
7 See Memoranda, ‘‘Verification of the
Questionnaire Responses of the Government of
India,’’ dated August 29, 2024; ‘‘Verification of the
Questionnaire Responses of Devi Seafoods Private
Limited,’’ dated August 29, 2024; and ‘‘Verification
of the Questionnaire Responses of Sandhya Aqua
Exports Private Limited.,’’ dated August 29, 2024.
8 See sections 771(5)(B) and (D) of the Act
regarding financial contribution; section 771(5)(E)
of the Act regarding benefit; and section 771(5A) of
the Act regarding specificity.
PO 00000
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85503
All-Others Rate
In accordance with section
705(c)(1)(B)(i) of the Act, we calculated
an individual estimated countervailable
subsidy rate for the two mandatory
respondents, Devi and Sandhya. Section
705(c)(5)(A)(i) of the Act states that, for
companies not individually
investigated, Commerce will determine
an all-others rate equal to the weightedaverage countervailable subsidy rates
established for exporters and/or
producers individually investigated,
excluding any zero and de minimis
countervailable subsidy rates, and any
rates determined entirely under section
776 of the Act.
In this investigation, we continue to
calculate individual total net
countervailable subsidy rates for Devi
and Sandhya that are not zero, de
minimis, or based entirely on facts
otherwise available. We, therefore,
continue to calculate the all-others rate
using a weighted average of the
individual estimated subsidy rates
calculated for the examined respondents
(Devi and Sandhya) using each
company’s publicly-ranged sales value
for their exports to the United States of
subject merchandise,9 in accordance
with section 705(c)(5)(A)(i) of the Act.
Final Determination
Commerce determines that the
following estimated net countervailable
subsidy rates exist for the period April
1, 2022, through March 31, 2023:
Company
Devi Sea Foods Limited 10 ...
Sandhya Aqua Exports Private Limited 11 ...................
Subsidy rate
(percent ad
valorem)
5.87
5.63
9 With two respondents under examination,
Commerce normally calculates: (A) a weightedaverage of the estimated subsidy rates calculated for
the examined respondents; (B) a simple average of
the estimated subsidy rates calculated for the
examined respondents; and (C) a weighted-average
of the estimated subsidy rates calculated for the
examined respondents using each company’s
publicly-ranged U.S. sale quantities for the
merchandise under consideration. Commerce then
compares (B) and (C) to (A) and selects the rate
closest to (A) as the most appropriate rate for all
other producers and exporters. See, e.g., Ball
Bearings and Parts Thereof from France, Germany,
Italy, Japan, and the United Kingdom: Final Results
of Antidumping Administrative Reviews, Final
Results of Changed-Circumstances Review, and
Revocation of an Order in Part, 75 FR 53661, 53663
(September 1, 2010); see also Forged Steel Fluid
End Blocks from Italy: Preliminary Affirmative
Countervailing Duty Determination, and Alignment
of Final Determination with Final Antidumping
Duty Determination, 85 FR 31460, 31461 (May 26,
2020), unchanged in Forged Steel Fluid End Blocks
from Italy: Final Affirmative Countervailing Duty
Determination, 85 80022, 80023 (December 11,
2020).
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Company
Subsidy rate
(percent ad
valorem)
suspension of liquidation will be
refunded or cancelled.
ITC Notification
All Others ..............................
5.77
Disclosure
Commerce intends to disclose its
calculations performed to interested
parties in this final determination
within five days of its public
announcement or, if there is no public
announcement, within five days of the
date of the publication of this notice in
the Federal Register, in accordance with
19 CFR 351.224(b).
Continuation of Suspension of
Liquidation
lotter on DSK11XQN23PROD with NOTICES1
As a result of our Preliminary
Determination, and pursuant to sections
703(d)(1)(B) and (d)(2) of the Act,
Commerce instructed U.S. Customs and
Border Protection (CBP) to collect cash
deposits and suspend liquidation of
entries of subject merchandise as
described in the scope of the
investigation section entered, or
withdrawn from warehouse, for
consumption on or after April 1, 2024,
the date of publication of the
Preliminary Determination in the
Federal Register. In accordance with
section 703(d) of the Act, we instructed
CBP to discontinue the suspension of
liquidation of all entries of subject
merchandise entered or withdrawn from
warehouse, on or after July 30, 2024, but
to continue the suspension of
liquidation of all entries of subject
merchandise on or before July 29, 2024.
If the U.S. International Trade
Commission (ITC) issues a final
affirmative injury determination, we
will issue a countervailing duty order,
reinstate the suspension of liquidation
under section 706(a) of the Act, and
require a cash deposit of estimated
countervailing duties for such entries of
subject merchandise in the amounts
indicated above. Pursuant to section
705(c)(2) of the Act, if the ITC
determines that material injury, or
threat of material injury, does not exist,
this proceeding will be terminated, and
all estimated duties deposited or
securities posted as a result of the
10 Commerce continues to determine that Devi is
cross owned with Devi Sea Foods Inc, Devee
Horizon LLP, Devee Power Corporation Limited,
and Devee Superior Feeds Limited. See Preliminary
Determination PDM at 9; see also Memorandum,
‘‘Post-Preliminary Analysis,’’ dated July 19, 2024, at
5–6.
11 Commerce continues to determine that
Sandhya is cross owned with Neeli Sea Foods
Private Limited, Vijay Aqua Processors Private
Limited, and Neeli Aqua Farms. See Preliminary
Determination PDM at 9.
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19:13 Oct 25, 2024
Jkt 265001
In accordance with section 705(d) of
the Act, Commerce will notify the ITC
of its final affirmative determination
that countervailable subsidies are being
provided to producers and exporters of
shrimp from India. As Commerce’s final
determination is affirmative, in
accordance with section 705(b) of the
Act, the ITC will determine, within 45
days, whether the domestic industry in
the United States is materially injured,
or threated with material injury, by
reason of import of shrimp from India.
In addition, we are making available to
the ITC all non-privileged and nonproprietary information in our files,
provided the ITC confirms that it will
not disclose such information, either
publicly or under administrative
protective order (APO), without the
written consent of the Assistant
Secretary for Enforcement and
Compliance.
If the ITC determines that material
injury or threat of material injury does
not exist, this proceeding will be
terminated and all cash deposits will be
refunded. If the ITC determines that
such injury does exist, Commerce will
issue a countervailing duty order
directing CBP to assess, upon further
instruction by Commerce,
countervailing duties on all imports of
the subject merchandise that are
entered, or withdrawn, for consumption
on or after the effective date of the
suspension of liquidation, as discussed
above in the ‘‘Continuation of
Suspension of Liquidation’’ section.
Administrative Protective Order
This notice will serve as the only
reminder to parties subject to the APO
of their responsibility concerning the
destruction of proprietary information
disclosed under APO, in accordance
with 19 CFR 351.305(a)(3). Timely
written notification of the return/
destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and terms of an
APO is a violation which is subject to
sanction.
Notification to Interested Parties
This determination is issued and
published pursuant to sections 705(d)
and 777(i) of the Act, and 19 CFR
351.210(c).
PO 00000
Frm 00017
Fmt 4703
Sfmt 4703
Dated: October 21, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and
Negotiations, performing the non-exclusive
functions and duties of the Assistant
Secretary for Enforcement and Compliance.
Appendix I
Scope of the Investigation
The scope of this investigation includes
certain frozen warmwater shrimp and prawns
whether wild-caught (ocean harvested) or
farm-raised (produced by aquaculture), headon or head-off, shell-on or peeled, tail-on or
tail-off, deveined or not deveined, cooked or
raw, or otherwise processed in frozen form.
‘‘Tails’’ in this context means the tail fan,
which includes the telson and the uropods.
The frozen warmwater shrimp and prawn
products included in the scope, regardless of
definitions in the Harmonized Tariff
Schedule of the United States (HTSUS), are
products which are processed from
warmwater shrimp and prawns through
freezing and which are sold in any count
size.
The products described above may be
processed from any species of warmwater
shrimp and prawns. Warmwater shrimp and
prawns are generally classified in, but are not
limited to, the Penaeidae family. Some
examples of the farmed and wild-caught
warmwater species include, but are not
limited to, whiteleg shrimp (Penaeus
vannemei), banana prawn (Penaeus
merguiensis), fleshy prawn (Penaeus
chinensis), giant river prawn
(Macrobrachium rosenbergii), giant tiger
prawn (Penaeus monodon), redspotted
shrimp (Penaeus brasiliensis), southern
brown shrimp (Penaeus subtilis), southern
pink shrimp (Penaeus notialis), southern
rough shrimp (Trachypenaeus curvirostris),
southern white shrimp (Penaeus schmitti),
blue shrimp (Penaeus stylirostris), western
white shrimp (Penaeus occidentalis), and
Indian white prawn (Penaeus indicus).
Frozen shrimp and prawns that are packed
with marinade, spices or sauce are included
in the scope. In addition, food preparations,
which are not ‘‘prepared meals,’’ that contain
more than 20 percent by weight of shrimp or
prawn are also included in the scope.
Excluded from the scope are: (1) breaded
shrimp and prawns (HTSUS subheading
1605.20.10.20); (2) shrimp and prawns
generally classified in the Pandalidae family
and commonly referred to as coldwater
shrimp, in any state of processing; (3) fresh
shrimp and prawns whether shell-on or
peeled (HTSUS subheadings 0306.36.0020
and 0306.36.0040); (4) shrimp and prawns in
prepared meals (HTSUS subheading
1605.20.05.10); (5) dried shrimp and prawns;
(6) canned warmwater shrimp and prawns
(HTSUS subheading 1605.20.10.40); (7)
certain dusted shrimp; and (8) certain
battered shrimp. Dusted shrimp is a shrimpbased product: (1) that is produced from
fresh (or thawed-from-frozen) and peeled
shrimp; (2) to which a ‘‘dusting’’ layer of rice
or wheat flour of at least 95 percent purity
has been applied; (3) with the entire surface
of the shrimp flesh thoroughly and evenly
coated with the flour; (4) with the nonshrimp
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content of the end product constituting
between four and 10 percent of the product’s
total weight after being dusted, but prior to
being frozen; and (5) that is subjected to IQF
freezing immediately after application of the
dusting layer. Battered shrimp is a shrimpbased product that, when dusted in
accordance with the definition of dusting
above, is coated with a wet viscous layer
containing egg and/or milk, and par-fried.
The products covered by the scope are
currently classified under the following
HTSUS subheadings: 0306.17.0004,
0306.17.0005, 0306.17.0007, 0306.17.0008,
0306.17.0010, 0306.17.0011, 0306.17.0013,
0306.17.0014, 0306.17.0016, 0306.17.0017,
0306.17.0019, 0306.17.0020, 0306.17.0022,
0306.17.0023, 0306.17.0025, 0306.17.0026,
0306.17.0028, 0306.17.0029, 0306.17.0041,
0306.17.0042, 1605.21.1030, and
1605.29.1010. These HTSUS subheadings are
provided for convenience and for customs
purposes only and are not dispositive, but
rather the written description of the scope is
dispositive.
Appendix II
List of Topics Discussed in the Issues and
Decision Memorandum
I. Summary
II. Background
III. Use of Facts Available
IV. Subsidies Valuation
V. Analysis of Cross-Ownership
VI. Changes Since the Preliminary
Determination
VII. Analysis of Programs
VIII. Discussion of the Issues
Comment 1: Whether Commerce Erred in
Its Export Promotion of Capital Goods
Scheme (EPCGS) Calculation for
Sandhya
Comment 2: Whether Commerce Erred in
its Productivity-Linked Incentive (PLI)
Calculation
Comment 3: Whether Commerce Erred in
its Calculation of The Andhra Pradesh
Power Subsidy for Aquaculture Farmers
(PSA)
Comment 4: Whether Commerce Erred in
Calculating the Grants for Food
Processing
Comment 5: Whether Commerce Erred in
Calculating the Pre-Shipment and PostShipment Export Financing Programs
(EFPPS, EF2, and EF3)
Comment 6: Whether the EFPPS Program
is Countervailable
Comment 7: Whether Section 771b of the
Act is Applicable to this Investigation
Comment 8: Whether the Duty Drawback
Program (DDB) is Countervailable
Comment 9: Whether the Remission of
Duties and Taxes on Export Products
(RoDTEP) is Countervailable
Comment 10: Whether Neeli Sea Foods
Private Limited (Neeli) Received Any
Export Financing (EFPPS, EF2, or EF3)
Benefit During the POI
IX. Recommendation
[FR Doc. 2024–24952 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
Quarterly Update to Annual Listing of
Foreign Government Subsidies on
Articles of Cheese Subject to an InQuota Rate of Duty
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
AGENCY:
Comments must be submitted by
December 31, 2024.
DATES:
Commerce encourages any
person having information on foreign
government subsidy programs which
benefit articles of cheese subject to an
in-quota rate of duty to submit such
information in writing. All comments
must be submitted through the Federal
eRulemaking Portal at https://
www.regulations.gov, Docket No. ITA–
2020–0005. The materials in the docket
will not be edited to remove identifying
or contact information, and Commerce
cautions against including any
information in an electronic submission
that the submitter does not want
publicly disclosed. Attachments to
electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF
formats only.
All comments should be addressed to
Ryan Majerus, Deputy Assistant
Secretary for Policy and Negotiations,
performing the non-exclusive functions
and duties of the Assistant Secretary for
Enforcement and Compliance, at the
U.S. Department of Commerce, 1401
ADDRESSES:
Constitution Avenue NW, Washington,
DC 20230.
FOR FURTHER INFORMATION CONTACT:
Samuel Brummitt, AD/CVD Operations,
Office III, Enforcement and Compliance,
International Trade Administration,
U.S. Department of Commerce, 1401
Constitution Ave. NW, Washington, DC
20230, telephone: (202) 482–7851.
On August
5, 2024 the U.S. Department of
Commerce (Commerce), pursuant to
section 702(h) of the Trade Agreements
Act of 1979 (as amended) (the Act),
published the quarterly update to the
annual listing of foreign government
subsidies on articles of cheese subject to
an in-quota rate of duty covering the
period January 1, 2024, through March
31, 2024.1 In the First Quarter 2024
Update, we requested that any party
that had information on foreign
government subsidy programs that
benefited articles of cheese subject to an
in-quota rate of duty submit such
information to Commerce.2 We received
no comments, information, or requests
for consultation from any party.
Pursuant to section 702(h) of the Act,
we hereby provide Commerce’s update
of subsidies on articles of cheese that
were imported during the period April
1, 2024, through June 30, 2024. The
appendix to this notice lists the country,
the subsidy program or programs, and
the gross and net amounts of each
subsidy for which information is
currently available. Commerce will
incorporate additional programs which
are found to constitute subsidies, and
additional information on the subsidy
programs listed, as the information is
developed.
This determination and notice are in
accordance with section 702(a) of the
Act.
SUPPLEMENTARY INFORMATION:
Dated: October 22, 2024.
Abdelali Elouaradia,
Deputy Assistant Secretary for Enforcement
and Compliance.
Appendix
lotter on DSK11XQN23PROD with NOTICES1
SUBSIDY PROGRAMS ON CHEESE SUBJECT TO AN IN-QUOTA RATE OF DUTY
Gross 3 subsidy
($/lb)
Net 4 Subsidy
($/lb)
Country
Program(s)
27 European Union Member
States.5
Canada ........................................
European Union Restitution Payments .............................................
$0.00
$0.00
Export Assistance on Certain Types of Cheese ...............................
0.47
0.47
1 See Quarterly Update to Annual Listing of
Foreign Government Subsidies on Articles of Cheese
Subject to an In-Quota Rate of Duty, 89 FR 63405
(August 5, 2024) (First Quarter 2024 Update).
2 Id.
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19:13 Oct 25, 2024
Jkt 265001
3 Defined
in 19 U.S.C. 1677(5).
in 19 U.S.C. 1677(6).
5 The 27 member states of the European Union
are: Austria, Belgium, Bulgaria, Croatia, Cyprus,
4 Defined
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Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Latvia,
Lithuania, Luxembourg, Malta, Netherlands,
Poland, Portugal, Romania, Slovakia, Slovenia,
Spain, and Sweden.
E:\FR\FM\28OCN1.SGM
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
SUBSIDY PROGRAMS ON CHEESE SUBJECT TO AN IN-QUOTA RATE OF DUTY—Continued
Program(s)
Norway .........................................
Indirect (Milk) Subsidy .......................................................................
Consumer Subsidy ............................................................................
Total ..................................................................................................
Deficiency Payments .........................................................................
Switzerland ..................................
[FR Doc. 2024–24956 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[C–331–806]
Frozen Warmwater Shrimp From
Ecuador: Final Affirmative
Countervailing Duty Determination
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of
Commerce (Commerce) determines that
countervailable subsidies are being
provided to producers and exporters of
frozen warmwater shrimp (shrimp) from
Ecuador. The period of investigation
(POI) is January 1, 2022, through
December 31, 2022.
DATES: Applicable October 28, 2024.
FOR FURTHER INFORMATION CONTACT:
Reginald Anadio or Zachary Shaykin,
AD/CVD Operations, Office IV,
Enforcement and Compliance,
International Trade Administration,
U.S. Department of Commerce, 1401
Constitution Avenue NW, Washington,
DC 20230; telephone: (202) 482–3166 or
(202) 482-5377, respectively.
SUPPLEMENTARY INFORMATION:
AGENCY:
Background
On April 1, 2024, Commerce
published its Preliminary Determination
in the Federal Register and invited
interested parties to comment.1 In the
Preliminary Determination, and in
accordance with section 705(a)(1) of the
Tariff Act of 1930, as amended (the Act),
and 19 CFR 351.210(b)(4), Commerce
aligned this final countervailing duty
(CVD) determination with the final
antidumping duty (AD) determination
of frozen warmwater shrimp from
lotter on DSK11XQN23PROD with NOTICES1
Gross 3 subsidy
($/lb)
Country
1 See Frozen Warmwater Shrimp from Ecuador:
Preliminary Affirmative Countervailing Duty
Determination, and Alignment of Final
Determination with the Final Antidumping Duty
Determination, 89 FR 22379 (April 1, 2024)
(Preliminary Determination), amended in Frozen
Warmwater Shrimp from Ecuador: Amended
Preliminary Determination of Countervailing Duty
Investigation, 89 FR 31722 (April 25, 2024)
(Amended Preliminary Determination).
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
Ecuador.2 On July 12 and September 26,
2024, Commerce issued its postpreliminary determinations.3 On July
22, 2024, Commerce tolled certain
deadlines in this administrative
proceeding by seven days.4 The
deadline for the final determination is
now October 21, 2024.
For a complete description of the
events that followed the Preliminary
Determination, see the Issues and
Decision Memorandum.5 The Issues and
Decision Memorandum is a public
document and is made available to the
public via Enforcement and
Compliance’s Antidumping and
Countervailing Duty Centralized
Electronic Service System (ACCESS).
ACCESS is available to registered users
at http://access.trade.gov. In addition, a
complete version of the Issues and
Decision Memorandum can be accessed
directly at https://access.trade.gov/
public/FRNoticesListLayout.aspx.
Scope of the Investigation
The product covered by this
investigation is frozen freshwater
shrimp from Ecuador. For a complete
description of this investigation, see
Appendix I.
Scope Comments
We received no comments from
interested parties on the scope of the
investigation as it appeared in the
Preliminary Determination. Therefore,
we made no changes to the scope of the
investigation.
2 Id.,
89 FR at 22380.
Memoranda, ‘‘Countervailing Duty
Investigation of Frozen Warmwater Shrimp from
Ecuador: Post-Preliminary Analysis,’’ dated July 12,
2024 (First Post-Preliminary Determination); and
‘‘Countervailing Duty Investigation of Frozen
Warmwater Shrimp from Ecuador: Second PostPreliminary Determination Calculations for
Sociedad Nacional de Galapagos C.A.,’’ dated
September 26, 2024 (Second Post-Preliminary
Determination).
4 See Memorandum, ‘‘Tolling of Deadlines for
Antidumping and Countervailing Duty
Proceedings,’’ dated July 22, 2024.
5 See Memorandum, ‘‘Issues and Decision
Memorandum for the Final Affirmative
Determination of the Countervailing Duty
Investigation of Frozen Warmwater Shrimp from
Ecuador,’’ dated concurrently with, and hereby
adopted by, this notice (Issues and Decision
Memorandum).
3 See
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0.00
0.00
0.00
0.00
Net 4 Subsidy
($/lb)
0.00
0.00
0.00
0.00
Verification
As provided in section 782(i)(1) of the
Act, in July 2024, Commerce conducted
verification of the subsidy information
reported by Industrial Pesquera Santa
Priscila S.A. (Santa Priscila), Sociedad
Nacional de Gala´pagos C.A. (SONGA),
and the Government of Ecuador (GOE)
for use in our final determination. We
used standard verification procedures,
including an examination of relevant
accounting records and original source
documents provided by Santa Priscila,
SONGA, and the GOE.6
Analysis of Subsidy Programs and
Comments Received
The subsidy programs under
investigation, and the issues raised in
the case and rebuttal briefs that were
submitted by interested parties in this
investigation are discussed in the Issues
and Decision Memorandum. For a list of
the issues raised by interested parties
and addressed in the Issues and
Decision Memorandum, see Appendix
II.
Methodology
Commerce conducted this
investigation in accordance with section
701 of the Act. For each of the subsidy
programs found to be countervailable,
Commerce determines that there is a
subsidy, i.e., a financial contribution by
an ‘‘authority’’ that gives rise to a
benefit to the recipient, and that the
subsidy is specific.7 For a full
description of the methodology
underlying our final determination, see
the Issues and Decision Memorandum.
In making this final determination,
Commerce relied, in part, on facts
6 See Memoranda, ‘‘Countervailing Duty
Investigation of Frozen Warmwater Shrimp from
Ecuador: Verification of the Questionnaire
Responses of Sociedad Nacional de Gala´pagos
C.A.,’’ dated August 13, 2024; ‘‘Countervailing Duty
Investigation of Frozen Warmwater Shrimp from
Ecuador: Verification of the Questionnaire
Responses of Industrial Pesquera Santa Priscila
S.A.,’’ dated August 22, 2024; and ‘‘Countervailing
Duty Investigation of Frozen Warmwater Shrimp
from Ecuador: Verification of the Questionnaire
Responses of the Government of Ecuador,’’ dated
September 3, 2024.
7 See sections 771(5)(B) and (D) of the Act
regarding financial contribution; section 771(5)(E)
of the Act regarding benefit; and section 771(5A) of
the Act regarding specificity.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
otherwise available, including with an
adverse inference, pursuant to sections
776(a) and (b) of the Act. For a full
discussion of our application of adverse
facts available (AFA), see the
Preliminary Determination,8 First PostPreliminary Determination and Second
Post-Preliminary Determination,9 and
the Issues and Decision Memorandum
section entitled ‘‘Use of Facts Otherwise
Available and Application of Adverse
Inferences.’’
Changes Since the Preliminary
Determination
Based on our review and analysis of
the information at verification and
comments received from interested
parties, we made certain changes to the
subsidy rate calculations for both Santa
Priscila and SONGA.10 For a discussion
of these changes, see the Issues and
Decision Memorandum.
All-Others Rate
In accordance with section
705(c)(1)(B)(i) of the Act, we calculated
an individual estimated countervailable
subsidy rates for the mandatory
respondents, Santa Priscila and SONGA.
Section 705(c)(5)(A)(i) of the Act states
that, for companies not individually
investigated, Commerce will determine
an all-others rate equal to the weightedaverage countervailable subsidy rates
established for exporters and/or
producers individually investigated,
excluding any subsidy rates that are
zero, de minimis, or determined entirely
under section 776 of the Act.
In this investigation, we calculated
individual total net countervailable
subsidy rates for both Santa Priscila and
SONGA that are not zero, de minimis,
or based entirely on facts otherwise
available. Therefore, we calculated the
all-others rate using a weighted average
of the individual estimated subsidy
rates calculated for the examined
respondents (Santa Priscila and
SONGA) using each company’s
publicly-ranged sales value for their
exports to the United States of subject
merchandise,11 in accordance with
section 705(c)(5)(A)(i) of the Act.
Final Determination
Commerce determines that the
following estimated countervailable
subsidy rates exist:
Subsidy rate
(percent
ad valorem)
Company
Industrial Pesquera Santa Priscila S.A .......................................................................................................................................
Sociedad Nacional de Gala´pagos C.A ........................................................................................................................................
All Others .....................................................................................................................................................................................
Disclosure
We intend to disclose to interested
parties the calculations and analysis
performed in this final determination
within five days of any public
announcement or, if there is no public
announcement, within five days of the
date of publication of this notice in
accordance with 19 CFR 351.224(b).
lotter on DSK11XQN23PROD with NOTICES1
Continuation of Suspension of
Liquidation
As a result of our Preliminary
Determination, and pursuant to sections
703(d)(1)(B) and (d)(2) of the Act,
Commerce instructed U.S. Customs and
Border Protection (CBP) to collect cash
deposits and suspend liquidation of
entries of subject merchandise from
Ecuador that were entered, or
withdrawn from warehouse, for
consumption on April 1, 2024, the date
of publication of the Preliminary
Determination in the Federal Register.
In accordance with section 703(d) of the
Act, we instructed CBP to discontinue
the suspension of liquidation of all
entries of subject merchandise entered
8 See Preliminary Determination and Amended
Preliminary Determination.
9 See First Post-Preliminary Determination and
Second Post-Preliminary Determination.
10 See Memorandum, ‘‘Final Determination
Calculations for Santa Priscila,’’ dated concurrently
with this notice, and Memorandum, ‘‘Final
Determination Calculations for SONGA,’’ dated
concurrently with this notice.
11 With two respondents under examination,
Commerce normally calculates: (A) a weightedaverage of the estimated subsidy rates calculated for
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19:13 Oct 25, 2024
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85507
3.57
4.41
3.78
In accordance with section 705(d) of
the Act, Commerce will notify the ITC
of its final affirmative determination
that countervailable subsidies are being
provided to producers and exporters of
shrimp from Ecuador. Because the final
determination is affirmative, in
accordance with section 705(b) of the
Act, the ITC will make its final
determination as to whether the
domestic industry in the United States
is materially injured, or threatened with
material injury, by reason of imports of
shrimp from Ecuador no later than 45
days after our final determination. In
addition, we are making available to the
ITC all non-privileged and
nonproprietary information related to
this investigation. We will allow the ITC
access to all privileged and business
proprietary information in our files,
provided the ITC confirms that it will
not disclose such information, either
publicly or under an administrative
protective order (APO), without the
written consent of the Assistant
Secretary for Enforcement and
Compliance. If the ITC determines that
material injury or threat of material
injury does not exist, this proceeding
will be terminated and all cash deposits
will be refunded. If the ITC determines
the examined respondents; (B) a simple average of
the estimated subsidy rates calculated for the
examined respondents; and (C) a weighted-average
of the estimated subsidy rates calculated for the
examined respondents using each company’s
publicly-ranged U.S. sale quantities for the
merchandise under consideration. Commerce then
compares (B) and (C) to (A) and selects the rate
closest to (A) as the most appropriate rate for all
other producers and exporters. See, e.g., Ball
Bearings and Parts Thereof from France, Germany,
Italy, Japan, and the United Kingdom: Final Results
of Antidumping Administrative Reviews, Final
Results of Changed-Circumstances Review, and
Revocation of an Order in Part, 75 FR 53661, 53663
(September 1, 2010); see also Forged Steel Fluid
End Blocks from Italy: Preliminary Affirmative
Countervailing Duty Determination, and Alignment
of Final Determination with Final Antidumping
Duty Determination, 85 FR 31460, 31461 (May 26,
2020), unchanged in Forged Steel Fluid End Blocks
from Italy: Final Affirmative Countervailing Duty
Determination, 85 80022, 80023 (December 11,
2020).
or withdrawn from warehouse, on or
after July 30, 2024, but to continue the
suspension of liquidation of all entries
of subject merchandise on or before July
29, 2024.
If the U.S. International Trade
Commission (ITC) issues a final
affirmative injury determination, we
will issue a countervailing duty order,
reinstate the suspension of liquidation
under section 706(a) of the Act, and
require a cash deposit of estimated
countervailing duties for entries of
subject merchandise in the amounts
indicated above. If the ITC determines
that material injury, or threat of material
injury, does not exist, this proceeding
will be terminated, and all estimated
duties deposited or securities posted as
a result of the suspension of liquidation
will be refunded or cancelled.
U.S. International Trade Commission
Notification
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
that such injury does exist, Commerce
will issue a countervailing duty order
directing CBP to assess, upon further
instruction by Commerce,
countervailing duties on all imports of
the subject merchandise that are
entered, or withdrawn, for consumption
on or after the effective date of the
suspension of liquidation, as discussed
above in the ‘‘Continuation of
Suspension of Liquidation’’ section.
Administrative Protective Orders
In the event that the ITC issues a final
negative injury determination, this
notice will serve as the only reminder
to parties subject to an APO of their
responsibility concerning the
destruction of proprietary information
disclosed under APO, in accordance
with 19 CFR 351.305(a)(3). Timely
written notification of the return/
destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and terms of an
APO is a violation which is subject to
sanction.
Notification to Interested Parties
This determination is issued and
published in accordance with sections
705(d) and 777(i) of the Act, and 19 CFR
351.210(c).
Dated: October 21, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and
Negotiations, performing the non-exclusive
functions and duties of the Assistant
Secretary for Enforcement and Compliance.
lotter on DSK11XQN23PROD with NOTICES1
Appendix I
Scope of the Investigation
The scope of this investigation includes
certain frozen warmwater shrimp and prawns
whether wild-caught (ocean harvested) or
farm-raised (produced by aquaculture), headon or head-off, shell-on or peeled, tail-on or
tail-off, deveined or not deveined, cooked or
raw, or otherwise processed in frozen form.
‘‘Tails’’ in this context means the tail fan,
which includes the telson and the uropods.
The frozen warmwater shrimp and prawn
products included in the scope, regardless of
definitions in the Harmonized Tariff
Schedule of the United States (HTSUS), are
products which are processed from
warmwater shrimp and prawns through
freezing and which are sold in any count
size.
The products described above may be
processed from any species of warmwater
shrimp and prawns. Warmwater shrimp and
prawns are generally classified in, but are not
limited to, the Penaeidae family. Some
examples of the farmed and wild-caught
warmwater species include, but are not
limited to, whiteleg shrimp (Penaeus
vannemei), banana prawn (Penaeus
merguiensis), fleshy prawn (Penaeus
chinensis), giant river prawn
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
(Macrobrachium rosenbergii), giant tiger
prawn (Penaeus monodon), redspotted
shrimp (Penaeus brasiliensis), southern
brown shrimp (Penaeus subtilis), southern
pink shrimp (Penaeus notialis), southern
rough shrimp (Trachypenaeus curvirostris),
southern white shrimp (Penaeus schmitti),
blue shrimp (Penaeus stylirostris), western
white shrimp (Penaeus occidentalis), and
Indian white prawn (Penaeus indicus).
Frozen shrimp and prawns that are packed
with marinade, spices or sauce are included
in the scope. In addition, food preparations,
which are not ‘‘prepared meals,’’ that contain
more than 20 percent by weight of shrimp or
prawn are also included in the scope.
Excluded from the scope are: (1) breaded
shrimp and prawns (HTSUS subheading
1605.20.10.20); (2) shrimp and prawns
generally classified in the Pandalidae family
and commonly referred to as coldwater
shrimp, in any state of processing; (3) fresh
shrimp and prawns whether shell-on or
peeled (HTSUS subheadings 0306.36.0020
and 0306.36.0040); (4) shrimp and prawns in
prepared meals (HTSUS subheading
1605.20.05.10); (5) dried shrimp and prawns;
(6) canned warmwater shrimp and prawns
(HTSUS subheading 1605.20.10.40); (7)
certain dusted shrimp; and (8) certain
battered shrimp. Dusted shrimp is a shrimpbased product: (1) that is produced from
fresh (or thawed-from-frozen) and peeled
shrimp; (2) to which a ‘‘dusting’’ layer of rice
or wheat flour of at least 95 percent purity
has been applied; (3) with the entire surface
of the shrimp flesh thoroughly and evenly
coated with the flour; (4) with the nonshrimp
content of the end product constituting
between four and 10 percent of the product’s
total weight after being dusted, but prior to
being frozen; and (5) that is subjected to IQF
freezing immediately after application of the
dusting layer. Battered shrimp is a shrimpbased product that, when dusted in
accordance with the definition of dusting
above, is coated with a wet viscous layer
containing egg and/or milk, and par-fried.
The products covered by the scope are
currently classified under the following
HTSUS subheadings: 0306.17.0004,
0306.17.0005, 0306.17.0007, 0306.17.0008,
0306.17.0010, 0306.17.0011, 0306.17.0013,
0306.17.0014, 0306.17.0016, 0306.17.0017,
0306.17.0019, 0306.17.0020, 0306.17.0022,
0306.17.0023, 0306.17.0025, 0306.17.0026,
0306.17.0028, 0306.17.0029, 0306.17.0041,
0306.17.0042, 1605.21.1030, and
1605.29.1010. These HTSUS subheadings are
provided for convenience and for customs
purposes only and are not dispositive, but
rather the written description of the scope is
dispositive.
Comment 1: Commerce Should Countervail
the Provision of Brackish Water
Comment 2: Commerce Should Countervail
the Provision of Fuel
Comment 3: Commerce Should Revise the
Benchmark Used To Value the Provision
of Electricity
Comment 4: Commerce Should Correct the
Multiplier Used for Programs Benefitting
Respondents’ Shrimp Suppliers
Comment 5: Commerce Should Apply
Adverse Facts Available (AFA) To
Countervail Unverifiable and Omitted
Income Tax Programs
Comment 6: Commerce Should Revise the
Denominator for the Investment
Contract/Tax Incentives for Priority
Sectors Under the 2010 Organic
Production Code for Santa Priscila
Comment 7: Commerce Should Make
Certain Revisions to SONGA’s Subsidy
Calculations
Comment 8: Commerce Should Make
Certain Revisions to Santa Priscila’s
Subsidy Calculations
Comment 9: Commerce Should Revise Its
Countervailable Subsidy Calculation
Regarding Provision of Land Concessions
Comment 10: Commerce Should Find That
Certain Tax Programs are not
Countervailable
Comment 11: Commerce Should Revise its
Attribution of Benefits Received by
Cross-Owned Input Suppliers to Santa
Priscila
Comment 12: Commerce Should
Recalculate Its Countervailable Subsidy
Calculation for SONGA Under the
Refund of Currency Outflow Tax (ISD)
On Inputs Program
Comment 13: Section 771B Is Not
Supported by the Record
Comment 14: Commerce Should Adjust the
Cash Deposit (CD) Rates
Comment 15: Commerce’s Should Reverse
Its Rejection of SONGA’s Minor
Correction
Comment 16: Commerce Should Correct its
Application of AFA to SONGA and
Naturisa, and Santa Priscila and
Produmar Under the Motor Vehicle Tax
Reduction Program
IX. Recommendation
Appendix II
Frozen Warmwater Shrimp From
Ecuador: Final Negative Determination
of Sales at Less Than Fair Value
List of Topics Discussed in the Issues and
Decision Memorandum
I. Summary
II. Background
III. Scope of the Investigation
IV. Diversification of Ecuador’s Economy
V. Subsidies Valuation
VI. Use of Facts Otherwise Available and
Application of Adverse Inferences
VII. Analysis of Programs
VIII. Discussion of the Issues
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[FR Doc. 2024–24957 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–331–805]
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of
Commerce (Commerce) determines that
imports of frozen warmwater shrimp
(shrimp) from Ecuador are not being, or
not likely to be, sold in the United
AGENCY:
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States at less than fair value (LTFV) for
the period of investigation (POI) October
1, 2022, through September 30, 2023.
DATES: Applicable October 28, 2024.
FOR FURTHER INFORMATION CONTACT: Kyle
Clahane or Matthew Palmer, AD/CVD
Operations, Office III, Enforcement and
Compliance, International Trade
Administration, U.S. Department of
Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone:
(202) 482–5449 or (202) 482–1678,
respectively.
be found in the Issues and Decision
Memorandum.4 The Issues and Decision
Memorandum is a public document and
is on file electronically via Enforcement
and Compliance’s Antidumping and
Countervailing Duty Centralized
Electronic Service System (ACCESS).
ACCESS is available to registered users
at https://access.trade.gov. In addition, a
complete version of the Issues and
Decision Memorandum can be accessed
directly at https://access.trade.gov/
public/FRNoticesListLayout.aspx.
SUPPLEMENTARY INFORMATION:
Scope of the Investigation
Background
On May 30, 2024, Commerce
published in the Federal Register its
preliminary affirmative determination
in the LTFV investigation of shrimp
from Ecuador.1 We invited interested
parties to comment on the Preliminary
Determination.2 On July 22, 2024,
Commerce tolled certain deadlines in
this administrative proceeding by seven
days.3 The deadline for the final
determination of this investigation is
now October 21, 2024.
A summary of the events that
occurred since Commerce published the
Preliminary Determination, as well as a
full discussion of the issues raised by
parties for this final determination, may
The product covered by this
investigation is shrimp from Ecuador.
For a complete description of the scope
of this investigation, see Appendix I.
Scope Comments
We received no comments from
interested parties on the scope of the
investigation as it appeared in the
Preliminary Determination. Therefore,
we made no changes to the scope of the
investigation.
Verification
Commerce was unable to conduct onsite verifications of the information
relied on in making its final
determination in this investigation.
However, in August 2024, we took
additional steps in lieu of on-site
verifications to verify the information
relied upon in making this final
determination, in accordance with
section 782(i) of the Tariff Act of 1930,
as amended (the Act), by conducting
virtual verifications of Industrial
Pesquera Santa Priscila S.A. (Santa
Priscila) and Sociedad Nacional de
Gala´pagos C.A. (SONGA).5
Analysis of Comments Received
All issues raised in the case and
rebuttal briefs submitted by interested
parties in this investigation are
addressed in the Issues and Decision
Memorandum. A list of the issues
addressed in the Issues and Decision
Memorandum is attached to this notice
as Appendix II.
Changes Since the Preliminary
Determination
We made certain changes regarding
Santa Priscila and SONGA’s reported
sales and cost data since the Preliminary
Determination. For a discussion of these
changes, see the Issues and Decision
Memorandum.
Final Determination
Commerce determines that the
following estimated weighted-average
dumping margins exist:
Weighted-average
dumping margin
(percent)
Exporter/Producer
Sociedad Nacional de Gala´pagos C.A./Marina del Rey ...........................................................................................................
Industrial Pesquera Santa Priscila S.A./Tropical Packing Ecuador Tropack S.A .....................................................................
Consistent with section 735(c) of the
Act, Commerce has not calculated an
estimated weighted-average dumping
margin for all other producers and
exporters because it has not made an
affirmative final determination of sales
at LTFV.
Disclosure
lotter on DSK11XQN23PROD with NOTICES1
Commerce intends to disclose the
calculations performed in connection
with this final determination to
interested parties within five days of
any public announcement or, if there is
no public announcement, within five
1 See Frozen Warmwater Shrimp from Ecuador:
Preliminary Affirmative Determination of Sales at
Less Than Fair Value, Postponement of Final
Determination, and Extension of Provisional
Measures, 89 FR 46857 (May 30, 2024) (Preliminary
Determination), and accompanying Preliminary
Decision Memorandum.
2 Id. 89 FR at 46859.
3 See Memorandum, ‘‘Tolling of Deadlines for
Antidumping and Countervailing Duty
Proceedings,’’ dated July 22, 2024.
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19:13 Oct 25, 2024
Jkt 265001
days of the date of publication of this
notice in the Federal Register, in
accordance with 19 CFR 351.224(b).
Suspension of Liquidation
Because Commerce has made a
negative final determination of sales at
LTFV with regard to subject
merchandise, Commerce will not direct
U.S. Customs and Border Protection to
suspend liquidation or to require a cash
deposit of estimated antidumping duties
for entries of shrimp from Ecuador.
4 See Memorandum, ‘‘Issues and Decision
Memorandum for the Final Affirmative
Determination of Sales at Less Than Fair Value in
the Investigation of Certain Frozen Warmwater
Shrimp from Ecuador,’’ dated concurrently with,
and hereby adopted by, this notice (Issues and
Decision Memorandum).
5 See Memoranda, ‘‘Verification of the Cost
Response of Sociedad Nacional de Galapagos C.A.
in the Less-Than-Fair-Value Investigation of Frozen
Warmwater Shrimp from Ecuador,’’ dated
September 20, 2024 (SONGA’s Cost Verification
PO 00000
Frm 00022
Fmt 4703
Sfmt 4703
0.00.
0.48 (de minimis).
U.S. International Trade Commission
Notification
In accordance with section 735(d) of
the Act, we will notify the U.S.
International Trade Commission of this
final negative determination of sales at
LTFV. As our final determination is
negative, this proceeding is terminated
in accordance with section 735(c)(2) of
the Act.
Administrative Protective Order
This notice serves as the only
reminder to parties subject to an
administrative protective order (APO) of
Report); ‘‘Sales Verification of Sociedad Nacional
de Gala´pagos C.A,’’ dated August 27, 2024
(SONGA’s Sales Verification Report) (collectively,
SONGA’s Verification Reports); ‘‘Verification of the
Cost Response of Industrial Pesquera Santa Priscila
in the Antidumping Duty Investigation of Frozen
warm Water Shrimp from Ecuador,’’ dated
September 18, 2024 (Santa Priscila’s Cost
Verification Report); and ‘‘Sales Verification of
Industrial Santa Priscila,’’ dated September 19,
2024 (Santa Priscila’s Sales Verification Report)
(collectively, Santa Priscila’s Verification Reports).
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their responsibility concerning the
disposition of proprietary information
disclosed under APO in accordance
with 19 CFR 351.305(a)(3). Timely
written notification of the return or
destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and terms of an
APO is a sanctionable violation.
Notification to Interested Parties
This final determination and notice
are issued and published in accordance
with sections 735(d) and 777(i) of the
Act and 19 CFR 351.210(c).
Dated: October 21, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and
Negotiations, performing the non-exclusive
functions and duties of the Assistant
Secretary for Enforcement and Compliance.
lotter on DSK11XQN23PROD with NOTICES1
Appendix I
Scope of the Investigation
The scope of this investigation includes
certain frozen warmwater shrimp and prawns
whether wild-caught (ocean harvested) or
farm-raised (produced by aquaculture), headon or head-off, shell-on or peeled, tail-on or
tail-off, deveined or not deveined, cooked or
raw, or otherwise processed in frozen form.
‘‘Tails’’ in this context means the tail fan,
which includes the telson and the uropods.
The frozen warmwater shrimp and prawn
products included in the scope, regardless of
definitions in the Harmonized Tariff
Schedule of the United States (HTSUS), are
products which are processed from
warmwater shrimp and prawns through
freezing and which are sold in any count
size.
The products described above may be
processed from any species of warmwater
shrimp and prawns. Warmwater shrimp and
prawns are generally classified in, but are not
limited to, the Penaeidae family. Some
examples of the farmed and wild-caught
warmwater species include, but are not
limited to, whiteleg shrimp (Penaeus
vannemei), banana prawn (Penaeus
merguiensis), fleshy prawn (Penaeus
chinensis), giant river prawn
(Macrobrachium rosenbergii), giant tiger
prawn (Penaeus monodon), redspotted
shrimp (Penaeus brasiliensis), southern
brown shrimp (Penaeus subtilis), southern
pink shrimp (Penaeus notialis), southern
rough shrimp (Trachypenaeus curvirostris),
southern white shrimp (Penaeus schmitti),
blue shrimp (Penaeus stylirostris), western
white shrimp (Penaeus occidentalis), and
Indian white prawn (Penaeus indicus).
Frozen shrimp and prawns that are packed
with marinade, spices or sauce are included
in the scope. In addition, food preparations,
which are not ‘‘prepared meals,’’ that contain
more than 20 percent by weight of shrimp or
prawn are also included in the scope.
Excluded from the scope are: (1) breaded
shrimp and prawns (HTSUS subheading
1605.21.1020); (2) shrimp and prawns
generally classified in the Pandalidae family
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19:13 Oct 25, 2024
Jkt 265001
and commonly referred to as coldwater
shrimp, in any state of processing; (3) fresh
shrimp and prawns whether shell-on or
peeled (HTSUS subheadings 0306.36.0020
and 0306.36.0040); (4) shrimp and prawns in
prepared meals (HTSUS subheadings
1605.21.0500 and 1605.29.0500); (5) dried
shrimp and prawns; (6) canned warmwater
shrimp and prawns (HTSUS subheading
1605.29.1040); and (7) certain battered
shrimp. Battered shrimp is a shrimp-based
product: (1) that is produced from fresh (or
thawed-from-frozen) and peeled shrimp; (2)
to which a ‘‘dusting’’ layer of rice or wheat
flour of at least 95 percent purity has been
applied; (3) with the entire surface of the
shrimp flesh thoroughly and evenly coated
with the flour; (4) with the non-shrimp
content of the end product constituting
between four and ten percent of the product’s
total weight after being dusted, but prior to
being frozen; and (5) that is subjected to
individually quick frozen (IQF) freezing
immediately after application of the dusting
layer. When dusted in accordance with the
definition of dusting above, the battered
shrimp product is also coated with a wet
viscous layer containing egg and/or milk, and
par-fried.
The products covered by the scope are
currently classified under the following
HTSUS subheadings: 0306.17.0004,
0306.17.0005, 0306.17.0007, 0306.17.0008,
0306.17.0010, 0306.17.0011, 0306.17.0013,
0306.17.0014, 0306.17.0016, 0306.17.0017,
0306.17.0019, 0306.17.0020, 0306.17.0022,
0306.17.0023, 0306.17.0025, 0306.17.0026,
0306.17.0028, 0306.17.0029, 0306.17.0041,
0306.17.0042, 1605.21.1030, and
1605.29.1010. These HTSUS subheadings are
provided for convenience and for customs
purposes only and are not dispositive, but
rather the written description of the scope is
dispositive.
Appendix II
List of Topics Discussed in the Issues and
Decision Memorandum
I. Summary
II. Background
III. Changes Since the Preliminary
Determination
IV. Discussion of the Issues
Comment 1: Whether Commerce Should
Revise SONGA’s Cost Adjustment for Its
Purchases of Raw Shrimp From
Affiliated Suppliers
Comment 2: Whether Commerce Should
Recalculate SONGA’s Reported Financial
Expenses
Comment 3: Whether Revisions are
Warranted to SONGA’s Reported Indirect
Selling Expenses
Comment 4: Whether Commerce Should
Continue To Offset G&A Expenses by the
Amount of Scrap Sales Revenue
Comment 5: Whether Commerce Should
Revise SONGA’s Per-Unit Costs for the
Additional Wrapping and Finger-Laying
Processes
Comment 6: Whether Commerce Should
Compare U.S. Sales of Broken Shrimp to
Constructed Value
Comment 7: Treatment of Clerical Errors in
SONGA’s Preliminary Margin
Calculation
PO 00000
Frm 00023
Fmt 4703
Sfmt 4703
Comment 8: Inclusion of SONGA’s Revised
Sales and Cost Databases
Comment 9: Treatment of SONGA’s
Reported U.S. Customs Duty and
Brokerage and Handling Expenses
Comment 10: Treatment of Export
Subsidies for Santa Priscila and SONGA
Comment 11: Whether Commerce Should
Apply Adverse Facts Available (AFA) to
Santa Priscila for its Misrepresentation of
its Payment Dates and its Failure To
Report All Expenses
Comment 12: Whether Commerce Should
Apply AFA to Santa Priscila’s Credit
Expenses, Other Discounts and Bank
Charges.
Comment 13: Whether Commerce Should
Apply the Market Price Adjustment to all
Santa Priscila Raw Shrimp Purchases
Comment 14: Whether Commerce Should
Reject Santa Priscila’s Claimed Scrap
Offset
Comment 15: Treatment of Santa Priscila’s
Return Expenses
Comment 16: Whether Commerce Should
Incorporate Santa Priscila’s Cost
Verification Minor Corrections
Comment 17: Treatment of Clerical Errors
in Santa Priscila’s Preliminary Margin
Calculation
V. Recommendation
[FR Doc. 2024–24958 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–552–837]
Aluminum Extrusions From the
Socialist Republic of Vietnam:
Amended Final Affirmative
Determination of Sales at Less Than
Fair Value and Final Affirmative
Determination of Critical
Circumstances
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
AGENCY:
The U.S. Department of
Commerce (Commerce) is amending its
final affirmative determination in the
less than fair value (LTFV) investigation
of aluminum extrusions from the
Socialist Republic of Vietnam (Vietnam)
to correct ministerial errors. The period
of investigation is April 1, 2023, through
September 30, 2023.
SUMMARY:
DATES:
Applicable October 28, 2024.
FOR FURTHER INFORMATION CONTACT:
Rebecca Janz, AD/CVD Operations,
Office II, Enforcement and Compliance,
International Trade Administration,
U.S. Department of Commerce, 1401
Constitution Avenue NW, Washington,
DC 20230; telephone: (202) 482–2972.
SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Background
On October 3, 2024, Commerce
published in the Federal Register its
final affirmative determination of sales
at LTFV and final affirmative
determination of critical circumstances,
in part, in the investigation of
aluminum extrusions from Vietnam.1
Also on October 3, 2024, the petitioners
submitted a timely allegation that
Commerce made ministerial errors in
the Final Determination.2 No other
interested party filed an allegation of a
ministerial error or submitted a rebuttal
to the petitioners’ ministerial error
allegation. We agree that we made
ministerial errors in the Final
Determination, and we are amending
the weighted-average dumping margin
for East Asia Aluminum Company
Limited (East Asia) and the nonindividually examined separate rate
companies. Additionally, due to our
revision of the weighted-average
dumping margins, we are amending our
final determination of critical
circumstances with respect to these
companies.
Scope of the Investigation
The product covered by this
investigation is aluminum extrusions
from Vietnam. For a complete
description of the scope of this
investigation, see Final Determination.3
Amendment to the Final Determination
Commerce reviewed the record, and
we agree that the errors alleged by the
petitioners constitute ministerial errors
within the meaning of section 735(e) of
the Tariff Act of 1930, as amended (the
Act) and 19 CFR 351.224(f).4
Specifically, we find that we made
inadvertent errors in valuing East Asia’s
ocean freight and marine insurance
expenses. Pursuant to 19 CFR
351.224(e), Commerce is amending the
Final Determination to reflect the
correction of the ministerial errors, as
described in the Ministerial Error
Memorandum.5 Based on the
Amendment to the Final Determination
of Critical Circumstances, in Part
In the Final Determination, we found
that critical circumstances exist with
respect to the Vietnam-wide entity, but
critical circumstances do not exist for
imports of aluminum extrusions from
Vietnam with respect to East Asia and
the non-individually examined separate
rate companies, pursuant to sections
735(a)(3)(A) and (B) of the Act, and 19
CFR 351.206.6 As a result of our
amended final determination, we now
find that importers of aluminum
extrusions exported by East Asia and
the non-individually examined separate
rate companies knew or should have
known that the exporter was selling the
subject merchandise at less than its fair
value and that there would be material
injury by reason of such sales, pursuant
to section 735(a)(3)(A)(ii) of the Act, and
these imports of subject merchandise
were massive over a relatively short
period, pursuant to section 735(a)(3)(B).
Accordingly, we are amending our Final
Determination to find that critical
circumstances do exist with respect to
East Asia and the non-individually
examined separate rate companies. For
further discussion, see Ministerial Error
Memorandum.
Amended Final Determination
The amended final estimated
weighted-average dumping margins are
as follows:
Exporter
Producer
East Asia Aluminum Company Limited.
Austdoor
Group Joint
Stock Company.
BKQ Manufacturing and
Trading
Company
Limited.
East Asia Aluminum Company Limited.
Austdoor
Group Joint
Stock Company.
Fravi Vietnam
Group Joint
Stock Company.
1 See
lotter on DSK11XQN23PROD with NOTICES1
Aluminum Extrusions from the Socialist
Republic of Vietnam: Final Affirmative
Determination of Sales at Less Than Fair Value and
Final Affirmative Determination of Critical
Circumstances, in Part, 89 FR 80530 (October 3,
2024) (Final Determination), and accompanying
Issues and Decision Memorandum (IDM).
2 See Petitioners’ Letter, ‘‘Ministerial Error
Allegation,’’ dated October 3, 2024. The petitioners
are U.S. Aluminum Extruders Coalition and the
United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and
Service Workers International Union.
3 See Final Determination, 89 FR at 80533.
4 See Memorandum, ‘‘Analysis of Ministerial
Error Allegation,’’ dated concurrently with this
Federal Register notice (Ministerial Error
Memorandum).
5 Id.
corrections, East Asia’s final dumping
margin changed from 14.15 percent to
16.02 percent. As a result, we are also
revising the rate assigned to the nonindividually examined separate rate
companies from 14.15 percent to 16.02
percent. The amended estimated
weighted-average dumping margins are
listed in the ‘‘Amended Final
Determination’’ section below.
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
6 See
PO 00000
Weightedaverage
dumping
margin
(percent)
16.02
16.02
16.02
Final Determination, 89 FR at 80531.
Frm 00024
Fmt 4703
Sfmt 4703
Exporter
Viet Nam
Chuangxing
Aluminium
Company
Limited.
Do Thanh Aluminium Joint
Stock Company.
Ha Noi DST
Joint Stock
Company.
Euroha Joint
Stock Company.
Fravi Viet Nam
Group Joint
Stock Company.
Gold Well Co.,
Ltd.
Hong Xin Co.,
Ltd.
Producer
Vietnam
Yongxing
Aluminium
Industry Co.,
Ltd.
Do Thanh Aluminium Joint
Stock Company.
Ha Noi DST
Joint Stock
Company.
Euroha Joint
Stock Company.
Fravi Viet Nam
Group Joint
Stock Company.
Gold Well Co.,
Ltd.
Vietnam
Yongxing
Aluminium
Industry Co.,
LTD.
Hyundai AluHyundai Aluminum Vina
minum Vina
Shareholding
ShareholdinCompany.
g Company.
KIMSEN Indus- KIMSEN Intrial Corporadustrial Cortion.
poration.
Mien Hua Pre- Mien Hua Precision Mecision Mechanical Co.,
chanical
Ltd.
Co., Ltd.
Ngoc Diep Alu- Ngoc Diep
minium Joint
Aluminium
Stock ComJoint Stock
pany.
Company.
Nhon Trach
Nhon Trach
Branch of
Branch of
Tung Kuang
Tung Kuang
Industrial
Industrial
Joint Stock
Joint Stock
Company.
Company.
Northstar PreNorthstar Precision (Vietcision (Vietnam) Co.,
nam) Co.,
Ltd.
Ltd.
Sapa Ben
Sapa Ben
Thanh AluThanh Aluminium Prominium Profiles, Co., Ltd.
files, Co.,
Ltd.
Song Hong
Song Hong
Aluminum
Aluminum
Shalumi
Shalumi
Group Joint
Group Joint
Stock ComStock Company.
pany.
Shinyang Metal Shinyang
Korea Co.,
Metal Korea
Ltd.
Co., Ltd.
Shinyang Metal Shinyang
Vietnam Co.,
Metal VietLtd.
nam Co.,
Ltd.
E:\FR\FM\28OCN1.SGM
28OCN1
Weightedaverage
dumping
margin
(percent)
16.02
16.02
16.02
16.02
16.02
16.02
16.02
16.02
16.02
16.02
16.02
16.02
16.02
16.02
16.02
16.02
16.02
85512
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Exporter
Producer
Tan A Aluminum Company Limited.
Tin An Investment Production Trading Joint
Stock Company.
Tin An Investment Production Trading Joint
Stock Company.
Tin Kim Plastic
Joint Stock
Company.
Tin Kim Plastic
Joint Stock
Company.
Tung Kuang Industrial Joint
Stock Company.
Tung Shin Industrial Co.,
Ltd.
Vietnam Beta
Aluminum
Company
Limited.
Vietnam
Yongxing
Aluminium
Industry Co.,
Ltd.
liquidation instructions will remain in
effect until further notice.
In accordance with section 735(c)(4)
of the Act, because Commerce now
finds that critical circumstances exist
16.02 for East Asia and the non-individually
examined separate rate companies,
16.02 Commerce intends to instruct U.S.
Customs and Border Protection (CBP) to
suspend liquidation of all entries of
subject merchandise from these
companies that were entered, or
withdrawn from warehouse for
16.02
consumption on or after February 7,
2024, which is 90 days before the
publication of the Preliminary
Determination 7 in the Federal Register.
Weightedaverage
dumping
margin
(percent)
Tan A Aluminum Company Limited.
Austdoor
Group Joint
Stock Company.
Viet Phap Aluminium Factory—Viet
Phap Shal
Aluminium
Joint Stock
Company.
Austdoor
Group Joint
Stock Company.
Viet Phap Aluminium Factory—Viet
Phap Shal
Aluminium
Joint Stock
Company.
Tung Kuang
Industrial
Joint Stock
Company.
Tung Shin Industrial Co.,
Ltd.
Vietnam Beta
Aluminum
Company
Limited.
Vietnam
Yongxing
Aluminium
Industry Co.,
Ltd.
16.02
16.02
16.02
16.02
16.02
16.02
lotter on DSK11XQN23PROD with NOTICES1
Disclosure
Commerce intends to disclose the
calculations performed in this amended
final determination to interested parties
within five days of any public
announcement or, if there is no public
announcement, within five days of the
date of publication of this notice in the
Federal Register in accordance with 19
CFR 351.224(b).
Amended Cash Deposits and
Continuation of Suspension of
Liquidation
The collection of cash deposits and
suspension of liquidation will be
revised according to the rates
established in this amended final
determination, in accordance with
section 735(c)(1)(B) of the Act. These
rates will be effective on the date of
publication of this notice in the Federal
Register. These suspension of
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19:13 Oct 25, 2024
Jkt 265001
U.S. International Trade Commission
Notification
In accordance with section 735(d) of
the Act, we will notify the U.S.
International Trade Commission (ITC) of
our amended final affirmative
determination of sales at LTFV. If the
ITC determines that material injury or
threat of material injury does not exist,
the proceeding will be terminated and
all cash deposits will be refunded or
canceled, and suspension of liquidation
will be lifted. If the ITC determines that
such injury does exist, Commerce will
issue an antidumping duty order
directing CBP to assess, upon further
instruction by Commerce, antidumping
duties on all imports of the subject
merchandise that are entered, or
withdrawn from warehouse, for
consumption on or after the effective
date of the suspension of liquidation, as
discussed above in the ‘‘Amended Cash
Deposits and Continuation of
Suspension of Liquidation’’ section.
Notification to Interested Parties
This amended final determination
and notice are issued and published
pursuant to sections 735(d) and 777(i)(1)
of the Act, and 19 CFR 351.210(c).
Dated: October 22, 2024.
Abdelali Elouaradia,
Deputy Assistant Secretary for Enforcement
and Compliance.
[FR Doc. 2024–25012 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–DS–P
7 See Aluminum Extrusions from the Socialist
Republic of Vietnam: Preliminary Affirmative
Determination of Sales at Less Than Fair Value,
Postponement of Final Determination, and
Extension of Provisional Measures, 89 FR 38075
(May 7, 2024).
PO 00000
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Fmt 4703
Sfmt 4703
DEPARTMENT OF COMMERCE
International Trade Administration
[C–560–843]
Frozen Warmwater Shrimp From
Indonesia: Final Negative
Countervailing Duty Determination
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of
Commerce (Commerce) determines that
countervailable subsidies are not being
provided to producers and exporters of
frozen warmwater shrimp (shrimp) from
Indonesia. The period of investigation is
January 1, 2022, through December 31,
2022.
DATES: Applicable October 28, 2024.
FOR FURTHER INFORMATION CONTACT:
Kelsie Hohenberger, AD/CVD
Operations, Office V, Enforcement and
Compliance, International Trade
Administration, U.S. Department of
Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone:
(202) 482–2517.
SUPPLEMENTARY INFORMATION:
AGENCY:
Background
On April 1, 2024, Commerce
published its Preliminary Determination
in the Federal Register and invited
interested parties to comment.1 In the
Preliminary Determination, and in
accordance with section 705(a)(1) of the
Tariff Act of 1930, as amended (the Act),
and 19 CFR 351.210(b)(4), Commerce
aligned this final countervailing duty
(CVD) determination with the final
antidumping duty (AD) determinations
of frozen warmwater shrimp from
Ecuador and Indonesia.2 On July 22,
2024, Commerce tolled certain
deadlines in this administrative
proceeding by seven days.3 The
deadline for the final determination is
now October 21, 2024.
A summary of the events that
occurred since Commerce published the
Preliminary Determination may be
found in the Issues and Decision
Memorandum.4 The Issues and Decision
1 See Frozen Warmwater Shrimp from Indonesia:
Preliminary Negative Countervailing Duty
Determination, and Alignment of Final
Determination With the Final Antidumping Duty
Determination, 89 FR 22383 (April 1, 2024)
(Preliminary Determination), and accompanying
Preliminary Decision Memorandum (PDM).
2 Id., 89 FR 22384.
3 See Memorandum, ‘‘Tolling of Deadlines for
Antidumping and Countervailing Duty
Proceedings,’’ dated July 22, 2024.
4 See Memorandum, ‘‘Issues and Decision
Memorandum for the Final Negative Determination
in the Countervailing Duty Investigation of Frozen
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Memorandum is a public document and
is made available to the public via
Enforcement and Compliance’s
Antidumping and Countervailing Duty
Centralized Electronic Service System
(ACCESS). ACCESS is available to
registered users at https://
access.trade.gov. In addition, a complete
version of the Issues and Decision
Memorandum can be accessed directly
at https://access.trade.gov/public/
FRNoticesListLayout.aspx.
Scope of the Investigation
The merchandise covered by this
investigation is shrimp from Indonesia.
For a complete description of the scope
of this investigation, see Appendix I.
Scope Comments
We received no comments from
interested parties on the scope of the
investigation as it appeared in the
Preliminary Determination. Therefore,
we made no changes to the scope of the
investigation.
Verification
Methodology
As provided in section 782(i) of the
Act, in May 2024, we conducted
verifications of information submitted
by the Government of Indonesia (GOI),
PT. Bahari Makmur Sejati (BMS), PT.
First Marine Seafoods (First Marine),5
and BMS and First Marine’s unaffiliated
farmer-suppliers for use in our final
determination. We used standard
verification procedures, including an
examination of relevant accounting
records and original source documents
provided by the GOI, BMS, First Marine,
and the farmer-suppliers.6
Commerce conducted this
investigation in accordance with section
701 of the Act. For each of the subsidy
programs found to be countervailable,
Commerce determines that there is a
subsidy, i.e., a financial contribution by
an ‘‘authority’’ that gives rise to a
benefit to the recipient, and that the
subsidy is specific.7 For a full
description of the methodology
underlying our final determination, see
the Issues and Decision Memorandum.
Analysis of Subsidy Programs and
Comments Received
The subsidy programs under
investigation, and the issues raised in
the case and rebuttal briefs that were
submitted by interested parties in this
investigation are discussed in the Issues
and Decision Memorandum. For a list of
the issues raised by interested parties
and addressed in the Issues and
Decision Memorandum, see Appendix
II.
Changes Since the Preliminary
Determination
Based on our analysis of the
comments received from interested
parties and our verification findings, we
made certain changes to the subsidy rate
calculations for BMS. For a discussion
of these changes, see the Issues and
Decision Memorandum.
Final Determination
Commerce determines that the
following estimated countervailable
subsidy rates exist:
Subsidy rate
(percent
ad valorem)
Company
PT. Bahari Makmur Sejati 8 .........................................................................................................................................................
PT. First Marine Seafoods/PT Khom Foods 9 .............................................................................................................................
Disclosure
We intend to disclose to interested
parties the calculations and analysis
performed in this final determination
within five days of any public
announcement or, if there is no public
announcement, within five days of the
date of publication of this notice in
accordance with 19 CFR 351.224(b).
Suspension of Liquidation
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In the Preliminary Determination, the
total net countervailable subsidy rates
for the individually examined
respondents were de minimis and,
therefore, we did not suspend
liquidation of entries of frozen
warmwater shrimp from Indonesia.10
Because Commerce determines that no
countervailable subsidies are being
Warmwater Shrimp from Indonesia,’’ dated
concurrently with, and hereby adopted by, this
notice (Issues and Decision Memorandum).
5 Commerce determined that First Marine is
cross-owned with PT Khom Foods. Hereinafter,
both companies are collectively referred to as First
Marine, unless stated otherwise.
6 See Memoranda, ‘‘Verification of the
Government of Indonesia Questionnaire
Responses,’’ dated August 19, 2024; ‘‘Verification of
the Questionnaire Responses of PT First Marine
Seafoods,’’ dated August 9, 2024; ‘‘Verification of
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provided to the production or
exportation of subject merchandise,
Commerce will not direct U.S. Customs
and Border Protection to suspend
liquidation of any such entries.
International Trade Commission (ITC)
Notification
In accordance with section 705(d) of
the Act, Commerce will notify the ITC
of our final determination that
countervailable subsidies are not being
provided to producers and exporters of
shrimp from Indonesia. Because the
final determination is negative, this
proceeding is terminated in accordance
with section 705(c)(2) of the Act.
Administrative Protective Order (APO)
This notice will serve as the only
reminder to parties subject to an APO of
the Questionnaire Responses of PT. First Marine
Seafoods’ Unaffiliated Farmer-Supplier’s
Questionnaire Responses,’’ dated August 9, 2024;
‘‘Verification of the Questionnaire Responses of PT
Bahari Makmur Sejati,’’ dated August 23, 2024; and
‘‘Verification of the Questionnaire Responses of
BMS’s Unaffiliated Farmer-Suppliers,’’ dated
August 23, 2024.
7 See sections 771(5)(B) and (D) of the Act
regarding financial contribution; see also section
771(5)(E) of the Act regarding benefit; and section
771(5A) of the Act regarding specificity.
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0.20 (de minimis).
0.71 (de minimis).
their responsibility concerning the
destruction of proprietary information
disclosed under APO, in accordance
with 19 CFR 351.305(a)(3). Timely
written notification of the return/
destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and terms of an
APO is a violation which is subject to
sanction.
Notification to Interested Parties
This determination is issued and
published pursuant to sections 705(d)
and 777(i) of the Act, and 19 CFR
351.210(c).
8 As discussed in the PDM, Commerce
determined that PT Bahari Makmur Sejati is crossowned with input suppliers PT International
Packaging Manufacturing and PT Total Pack
Indonesia.
9 As discussed in the PDM, Commerce
determined that PT First Marine Seafoods is crossowned with PT Khom Foods, a producer/distributor
of subject merchandise.
10 See Preliminary Determination, 89 FR 22384.
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Dated: October 21, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and
Negotiations, performing the non-exclusive
functions and duties of the Assistant
Secretary for Enforcement and Compliance.
Appendix I
Scope of the Investigation
The scope of this investigation includes
certain frozen warmwater shrimp and prawns
whether wild-caught (ocean harvested) or
farm-raised (produced by aquaculture), headon or head-off, shell-on or peeled, tail-on or
tail-off, deveined or not deveined, cooked or
raw, or otherwise processed in frozen form.
‘‘Tails’’ in this context means the tail fan,
which includes the telson and the uropods.
The frozen warmwater shrimp and prawn
products included in the scope, regardless of
definitions in the Harmonized Tariff
Schedule of the United States (HTSUS), are
products which are processed from
warmwater shrimp and prawns through
freezing and which are sold in any count
size.
The products described above may be
processed from any species of warmwater
shrimp and prawns. Warmwater shrimp and
prawns are generally classified in, but are not
limited to, the Penaeidae family. Some
examples of the farmed and wild-caught
warmwater species include, but are not
limited to, whiteleg shrimp (Penaeus
vannemei), banana prawn (Penaeus
merguiensis), fleshy prawn (Penaeus
chinensis), giant river prawn
(Macrobrachium rosenbergii), giant tiger
prawn (Penaeus monodon), redspotted
shrimp (Penaeus brasiliensis), southern
brown shrimp (Penaeus subtilis), southern
pink shrimp (Penaeus notialis), southern
rough shrimp (Trachypenaeus curvirostris),
southern white shrimp (Penaeus schmitti),
blue shrimp (Penaeus stylirostris), western
white shrimp (Penaeus occidentalis), and
Indian white prawn (Penaeus indicus).
Frozen shrimp and prawns that are packed
with marinade, spices or sauce are included
in the scope. In addition, food preparations,
which are not ‘‘prepared meals,’’ that contain
more than 20 percent by weight of shrimp or
prawn are also included in the scope.
Excluded from the scope are: (1) breaded
shrimp and prawns (HTSUS subheading
1605.21.1020); (2) shrimp and prawns
generally classified in the Pandalidae family
and commonly referred to as coldwater
shrimp, in any state of processing; (3) fresh
shrimp and prawns whether shell-on or
peeled (HTSUS subheadings 0306.36.0020
and 0306.36.0040); (4) shrimp and prawns in
prepared meals (HTSUS subheadings
1605.21.0500 and 1605.29.0500); (5) dried
shrimp and prawns; (6) canned warmwater
shrimp and prawns (HTSUS subheading
1605.29.1040); and (7) certain battered
shrimp. Battered shrimp is a shrimp-based
product: (1) that is produced from fresh (or
thawed-from-frozen) and peeled shrimp; (2)
to which a ‘‘dusting’’ layer of rice or wheat
flour of at least 95 percent purity has been
applied; (3) with the entire surface of the
shrimp flesh thoroughly and evenly coated
with the flour; (4) with the non-shrimp
content of the end product constituting
between four and ten percent of the product’s
total weight after being dusted, but prior to
being frozen; and (5) that is subjected to
individually quick frozen (IQF) freezing
immediately after application of the dusting
layer. When dusted in accordance with the
definition of dusting above, the battered
shrimp product is also coated with a wet
viscous layer containing egg and/or milk, and
par-fried.
The products covered by the scope are
currently classified under the following
HTSUS subheadings: 0306.17.0004,
0306.17.0005, 0306.17.0007, 0306.17.0008,
0306.17.0010, 0306.17.0011, 0306.17.0013,
0306.17.0014, 0306.17.0016, 0306.17.0017,
0306.17.0019, 0306.17.0020, 0306.17.0022,
0306.17.0023, 0306.17.0025, 0306.17.0026,
0306.17.0028, 0306.17.0029, 0306.17.0041,
0306.17.0042, 1605.21.1030, and
1605.29.1010. These HTSUS subheadings are
provided for convenience and for customs
purposes only and are not dispositive, but
rather the written description of the scope is
dispositive.
Appendix II
List of Topics Discussed in the Issues and
Decision Memorandum
I. Summary
II. Background
III. Changes from the Preliminary
Determination
IV. Subsidies Valuation
V. Analysis of Programs
VI. Discussion of the Issues
Comment 1: Whether Commerce Should
Apply Adverse Facts Available (AFA) To
Countervail the Provision of Water or
Port Facilities to First Marine
Comment 2: Whether Commerce Should
Apply AFA To Countervail Export
Financing From the Export-Import Bank
of Indonesia (Eximbank)
Comment 3: Whether Commerce Should
Apply Total AFA to the GR 55/2022 and
Article 31E Income Tax Reduction
Programs
Comment 4: Whether Commerce Should
Correct the Benefit Calculations Under
the Government Regulation 55/2022 and
Article 31E Income Tax Reduction
Programs
Comment 5: Whether Commerce Should
Make Corrections to the Sales
Denominators Used To Calculate the Ad
Valorem Subsidy Rates
VII. Recommendation
[FR Doc. 2024–24954 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XE383]
Marine Mammals and Endangered
Species
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
AGENCY:
Notice; issuance of permits,
permit amendments, and permit
modifications.
ACTION:
Notice is hereby given that
permits, permit amendments, and
permit modifications have been issued
to the following entities under the
Marine Mammal Protection Act
(MMPA) and the Endangered Species
Act (ESA), as applicable.
SUMMARY:
The permits and related
documents are available for review
upon written request via email to
[email protected].
ADDRESSES:
Sara
Young (Permit No. 27597), Erin Markin,
Ph.D., (Permit No. 28148), Amy
Hapeman (Permit No. 21163–01), and
Malcolm Mohead (Permit 20347–02); at
(301) 427–8401.
FOR FURTHER INFORMATION CONTACT:
Notices
were published in the Federal Register
on the dates listed below that requests
for a permit, permit amendment, or
permit modification had been submitted
by the below-named applicants. To
locate the Federal Register notice that
announced our receipt of the
application and a complete description
of the activities, go to https://
www.federalregister.gov and search on
the permit number provided in table 1
below.
SUPPLEMENTARY INFORMATION:
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TABLE 1—ISSUED PERMITS, PERMIT AMENDMENTS, AND PERMIT MODIFICATIONS
Permit No.
RTID
Applicant
Previous Federal Register Notice
Issuance date
20347–02 .........
0648–XE179 .....
89 FR 64879, August 8, 2024 ............
October 1, 2024.
21163–01 .........
0648–XR004 ....
University of Maine, 5741 Libby Hall, Room
202A, Orono, ME 04469 (Responsible Party:
Gayle Zydlewski, Ph.D.).
Marine Ecology and Telemetry Research, 2468
Camp McKenzie Trail NW, Seabeck WA
98380 (Responsible Party: Greg Schorr).
84 FR 54121, October 9, 2019 ..........
September 23,
2024.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
85515
TABLE 1—ISSUED PERMITS, PERMIT AMENDMENTS, AND PERMIT MODIFICATIONS—Continued
Permit No.
RTID
Applicant
Previous Federal Register Notice
27597 ...............
0648–XD928 .....
89 FR 36761, May 3, 2024 ................
September 9,
2024.
28148 ...............
0648–XE164 .....
NMFS Alaska Fisheries Science Center’s Marine Mammal Laboratory, 7600 Sand Point
Way NE, Seattle, WA 98115 (Responsible
Party: John Bengtson, Ph.D.).
NMFS Pacific Islands Regional Office, 1845
Wasp Boulevard, Building 176, Honolulu, HI
96818 (Responsible Party: Jamie Marchetti).
89 FR 63412, August 5, 2024 ............
September 25,
2024.
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In compliance with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.), for Permit Nos.
20347–02, 21163–01, and 28148, and a
final determination has been made that
the activities proposed are categorically
excluded from the requirement to
prepare an environmental assessment
(EA) or environmental impact statement
(EIS).
For Permit No. 27597, a determination
was made that the activities authorized
are consistent with the Preferred
Alternative in the Final Programmatic
EIS for Steller Sea Lion and Northern
Fur Seal Research (NMFS 2007). A
supplemental EA (NMFS 2014) was
prepared for the addition of unmanned
aerial surveys to the suite of research
activities analyzed under the EIS and
concluded that issuance of the permits
would not have a significant adverse
impact on the human environment. An
environmental review memo was
prepared to summarize these findings.
As required by the ESA, as applicable,
issuance of these permit was based on
a finding that such permits: (1) were
applied for in good faith; (2) will not
operate to the disadvantage of such
endangered species; and (3) are
consistent with the purposes and
policies set forth in section 2 of the
ESA.
Authority: The requested permits
have been issued under the MMPA of
1972, as amended (16 U.S.C. 1361 et
seq.), the regulations governing the
taking and importing of marine
mammals (50 CFR part 216), the ESA of
1973, as amended (16 U.S.C. 1531 et
seq.), and the regulations governing the
taking, importing, and exporting of
endangered and threatened species (50
CFR parts 222–226), as applicable.
Dated: October 15, 2024.
Julia M. Harrison,
Chief, Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service.
[FR Doc. 2024–24976 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–22–P
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XE320]
Atlantic Highly Migratory Species;
Exempted Fishing, Scientific Research,
Display, and Shark Research Fishery
Permits; Letters of Acknowledgment
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of intent; request for
comments.
AGENCY:
NMFS announces its intent to
issue exempted fishing permits (EFPs),
scientific research permits (SRPs),
display permits, letters of
acknowledgment (LOAs), and shark
research fishery permits for Atlantic
highly migratory species (HMS) (tunas,
billfish, swordfish, and sharks) in 2025.
EFPs and related permits other than
LOAs exempt permit holders from
specific portions of the regulations for
the purposes of scientific research, data
collection, the investigation of bycatch,
and public display, among other things.
LOAs acknowledge that researchers are
conducting scientific research activities
on board a scientific research vessel.
Generally, EFPs and related permits are
valid from the date of issuance through
the end of the calendar year for which
they are issued, unless otherwise
specified in the permit, subject to the
terms and conditions of individual
permits.
DATES: NMFS will consider written
comments received in response to this
notice when issuing EFPs and related
permits. Submit comments on or before
November 27, 2024.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2024–0109, electronically via
the Federal e-Rulemaking Portal. Visit
https://www.regulations.gov and type
‘‘NOAA–NMFS–2024–0109’’ in the
Search box. Click on the ‘‘Comment’’
icon, complete the required fields, and
enter or attach your comments.
SUMMARY:
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Issuance date
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on https://www.regulations.gov
without change. All personal identifying
information (e.g., name, address),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous).
FOR FURTHER INFORMATION CONTACT: Elsa
Gutierrez, 301–427–8503,
[email protected].
SUPPLEMENTARY INFORMATION: HMS
fisheries (tunas, billfish, swordfish, and
sharks) are managed under the 2006
Consolidated HMS Fishery Management
Plan (FMP) and its amendments
pursuant to the authority of the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act; 16 U.S.C. 1801
et seq.) and consistent with the Atlantic
Tunas Convention Act (ATCA; 16 U.S.C.
971 et seq.). ATCA is the implementing
statute for binding recommendations of
the International Commission for the
Conservation of Atlantic Tunas. HMS
implementing regulations are at 50 CFR
part 635. The regulations specific to
HMS EFPs and related permits can be
found at § 635.32.
NMFS issues EFPs and related
permits in cases where HMS regulations
(e.g., fishing seasons, prohibited species,
authorized gear, closed areas, minimum
sizes) may otherwise prohibit scientists
and other interested parties from
conducting scientific research; acquiring
information and data related to HMS
and fishing for HMS; enhancing safety
at sea; collecting HMS for public
education or display; investigating
bycatch, economic discards, or
regulatory discards in HMS fisheries; or
conducting other fishing activities that
NMFS has an interest in permitting or
acknowledging. Consistent with
§§ 600.745 and 635.32, a NMFS
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Regional Administrator or Director may
authorize, for limited testing, public
display, data collection, exploratory
fishing, compensation fishing,
conservation engineering, health and
safety surveys, environmental cleanup,
and/or hazard removal purposes, the
target or incidental harvest of species
managed under an FMP or fishery
regulations that would otherwise be
prohibited. These permits exempt
permit holders from the specific
portions of the regulations that may
otherwise be prohibited. Collection of
HMS under EFPs, SRPs, display
permits, and shark research fishery
permits represents a small portion of the
overall fishing mortality for HMS, and
NMFS counts this mortality against the
relevant quota, as appropriate and
applicable. The terms and conditions of
individual permits are unique; however,
all permits include reporting
requirements, limit the number and/or
species of HMS to be collected (if
appropriate), and only authorize
collection and/or other research
activities in Federal waters of the
Atlantic Ocean, Gulf of Mexico, and
Caribbean Sea (for Atlantic tunas, we
may authorize the activities all the way
to shore).
The Magnuson-Stevens Act exempts
any scientific research activity
conducted by a scientific research vessel
from the definition of ‘‘fishing.’’ NMFS
issues LOAs acknowledging such bona
fide research activities involving species
that are directly regulated only under
the Magnuson-Stevens Act (e.g., most
shark species) and not under ATCA.
NMFS generally does not consider
recreational or commercial vessels to be
bona fide research vessels. However, if
the researcher contracts a vessel only to
conduct research and not participate in
any commercial or recreational fishing
activities during that research, NMFS
may consider those vessels as bona fide
research platforms while conducting the
specified research. For example, in the
past, NMFS has determined that
commercial pelagic longline fishing
vessels assisting with shark population
surveys may be considered ‘‘bona fide
research vessels’’ while engaged only in
the specified research. For such
activities, NMFS reviews the scientific
research plans and may issue an LOA
acknowledging that the proposed
activity is scientific research for
purposes of the Magnuson-Stevens Act.
While scientific research is not
defined as ‘‘fishing’’ subject to the
Magnuson-Stevens Act, scientific
research is not exempt from regulation
under ATCA. Therefore, NMFS issues
SRPs that authorize researchers to
conduct scientific research related to
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19:13 Oct 25, 2024
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HMS from bona fide research vessels for
species managed directly under this
statute (i.e., tunas, swordfish, and
billfish). One example of research
conducted under SRPs would be tunas,
swordfish, and billfish scientific surveys
conducted from NOAA research vessels.
NMFS issues EFPs for activities
conducted from commercial or
recreational fishing vessels. Examples of
activities conducted under EFPs include
collection of young-of-the-year bluefin
tuna for genetic research from
recreational fishing vessels; conducting
billfish larval tows to determine billfish
habitat use, life history, and population
structure from private vessels; and
tagging sharks caught on commercial or
recreational fishing gear to determine
post-release mortality rates from
commercial or recreational fishing
vessels.
NMFS issues display permits for the
collection of HMS for public display.
Collection of HMS for public display in
aquaria often involves collection when
the commercial fishing seasons are
closed, collection of otherwise
prohibited species (e.g., sand tiger
sharks), and collection of fish below the
regulatory minimum size. Not all HMS
can be collected for public display.
NMFS published the final rule for
Amendment 2 to the 2006 Consolidated
HMS FMP (73 FR 35778, June 24, 2008;
corrected 73 FR 40658, July 15, 2008)
that, among other things, prohibited the
collection of dusky sharks for public
display. In 2022, NMFS published a
final rule (87 FR 39373, July 1, 2022)
that, among other things, prohibited the
collection of shortfin mako sharks for
public display.
The majority of EFPs and related
permits described in this annual notice
relate to scientific sampling and tagging
of HMS within existing quotas, and the
impacts of these activities were
previously analyzed in various
environmental assessments and
environmental impact statements for
HMS management. In most such cases,
NMFS intends to issue these permits
without additional opportunity for
public comment beyond what is
provided in this notice. Occasionally,
NMFS receives applications which may
warrant further consideration, such as
those for unanticipated research
activities, for research that is outside the
scope of general scientific sampling and
tagging of HMS, or for research that is
particularly controversial. In those
instances, NMFS will provide
additional opportunity for public
comment, consistent with the
regulations at § 600.745.
On May 10, 2024, the Environmental
Protection Agency published a notice
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announcing the availability of the Final
Environmental Impact Statement for
Amendment 15 to the 2006
Consolidated HMS FMP (89 FR 40481).
In Amendment 15, NMFS prefers an
alternative that would allow for
cooperative research via an EFP within
the various areas that are currently
closed to pelagic longline fishing. NMFS
would use the data collected to help
assess the effectiveness of the pelagic
longline closed areas. At this time,
NMFS has not yet published any final
rule for Amendment 15. NMFS is not
aware of any researchers who plan to
conduct research specific to the
objectives in Amendment 15 in the
closed areas in 2025. If after the
publication of any final rule, NMFS
receives such applications, NMFS may
consider providing additional
opportunity for public comment,
dependent upon the particulars of the
scientific research plan submitted,
consistent with the regulations at
§ 600.745.
Additionally, this notice invites
comments on the shark research fishery,
which NMFS implemented in 2008
through Amendment 2 to the 2006
Consolidated HMS FMP. NMFS
conducts this research fishery under the
auspices of the EFP program. Shark
research fishery participants assist
NMFS in collecting valuable shark life
history and other scientific data
required in shark stock assessments.
Since NMFS established the shark
research fishery, the research fishery has
allowed for:
• Fishery-dependent data collection
for current and future stock
assessments;
• Cooperative research to meet
NMFS’ ongoing research objectives;
• Collection of updated life-history
information used in the sandbar shark
(and other species) stock assessments;
• Data collection on habitat
preferences that might help reduce
fishery interactions through bycatch
mitigation;
• Evaluation of the utility of the midAtlantic closed area on the recovery of
dusky sharks;
• Collection of hook-timer and popup satellite archival tag information to
determine at-vessel and post-release
mortality of dusky sharks; and
• Collection of sharks to update the
weight conversion factor from dressed
weight to whole weight.
Shark research fishery participants are
subject to 100-percent observer
coverage. In recent years, NMFS has
required shark research fishery
participants to retain all non-prohibited
shark species dead at haulback and
NMFS has counted that mortality
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against the appropriate quotas of the
shark research fishery participant.
Additionally, in recent years, all shark
research fishery participants were
limited to a very small number of dusky
shark mortalities on a regional basis.
Once the designated number of dusky
shark mortalities occurs in a specific
region, certain terms and conditions are
applied (e.g., soak time limits). While
NMFS has not yet determined the
specific terms and conditions of the
2025 shark research fishery permits,
NMFS expects the terms and conditions
to be similar to those in 2024 permits.
For example, participants may continue
to be limited in the number of sets
allowed on each trip and the number of
hooks allowed on each set and on the
vessel itself. A Federal Register notice
describing the specific objectives for the
2025 shark research fishery and
requesting applications from interested
and eligible shark fishermen may be
published in the near future. NMFS
requests public comment regarding
NMFS’ intent to issue shark research
fishery permits in 2025 during the
comment period of this notice.
Table 1 summarizes the number of
specimens authorized under EFPs and
related permits thus far in 2024, as well
as the number of specimens collected in
2023. The total amount of collections in
2023 was within the analyzed quotas for
all quota-managed HMS species. The
number of specimens collected in 2024
will be available when NMFS receives
all 2024 interim and annual reports.
In all cases, NMFS counts mortalities
associated with EFPs, SRPs, or display
permits (except for larvae) against the
appropriate quota. In 2023, NMFS
issued a total of 46 EFPs, SRPs, display
permits, and LOAs for the collection,
sampling, and/or tagging of HMS and 3
shark research fishery permits. As of
October 1, 2024, NMFS has issued a
total of 46 EFPs, SRPs, display permits,
and LOAs and 3 shark research fishery
permits.
TABLE 1—SUMMARY OF HMS EXEMPTED FISHING PERMITS ISSUED IN 2023 AND 2024, OTHER THAN SHARK RESEARCH
FISHERY PERMITS
2023
Permit type
Species
EFP ......................................
HMS .....................................
Shark ...................................
Tuna .....................................
HMS .....................................
Shark ...................................
Swordfish .............................
HMS .....................................
Shark ...................................
2
8
2
8
0
1
1
3
Total ................................................................................
SRP .....................................
Display .................................
LOA ......................................
Authorized
fish
(numbers) 1
Permits
issued
Shark ...................................
2024
Fish kept/
discarded dead
(numbers)
184
Authorized
fish
(numbers) 1
Permits
issued
30
1,027
0
30
55
223
0
0
0
6
0
0
0
47
2
6
1
5
1
1
1
3
84
0
120
540
1010
0
54
223
26
25
55
20
1 203
20
1 N/A
102
26
1 N/A
1 N/A
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Note: ‘‘HMS’’ refers to multiple species being collected under a given permit type.
1 NMFS issued some EFPs, SRPs, and LOAs for the purposes of tagging and the opportunistic sampling of HMS and were not expected to result in large amounts of mortality, thus no limits on sampling were set. NMFS will account for any mortality that may occur throughout 2024 under
the appropriate HMS research and display quota.
NMFS does not currently anticipate
any significant environmental impacts
from the issuance of EFPs, SRPS,
display permits, and shark research
fishery permits, consistent with the
assessment of such activities as
identified in Categorical Exclusion B12
of the Companion Manual for NOAA
Administrative Order 216–6A or within
the environmental impacts analyses in
existing HMS actions. Existing actions
include the 1999 FMP, the 2006
Consolidated HMS FMP and its
amendments, Amendment 2 to the 2006
Consolidated HMS FMP, the
Environmental Assessment for the 2012
Swordfish Specifications, the
Environmental Assessment for the 2022
Final Bluefin Tuna Quota and Atlantic
Tuna Fisheries Management Measures,
and the 2022 Zero Atlantic Shortfin
Mako Shark Retention Limit Final Rule.
Final decisions on the issuance of any
EFPs, SRPs, display permits, and shark
research fishery permits will depend on:
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• The submission of all required
information about the proposed
activities;
• NMFS’ review of public comments
received on this notice;
• The applicant’s reporting history on
past permits;
• If vessels or applicants were issued
any prior violations of marine resource
laws administered by NOAA;
• Consistency with relevant National
Environmental Policy Act analyses; and
• Any consultations with appropriate
Regional Fishery Management Councils,
states, or Federal agencies.
Authority: 16 U.S.C. 971 et seq. and
16 U.S.C. 1801 et seq.
Dated: October 22, 2024.
Karen H. Abrams,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2024–25023 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–22–P
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XE412]
Endangered Species; File No. 28294
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; receipt of application.
AGENCY:
Notice is hereby given that
Matthew Fisher (Normandeau
Associates Inc., 2233 Spring Street,
West Lawn, PA 19609), has applied in
due form for a permit to take Atlantic
(Acipenser oxyrinchus) and shortnose
(A. brevirostrum) sturgeon for purposes
of scientific research.
DATES: Written comments must be
received on or before November 27,
2024.
SUMMARY:
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The application and related
documents are available for review by
selecting ‘‘Records Open for Public
Comment’’ from the ‘‘Features’’ box on
the Applications and Permits for
Protected Species home page, https://
apps.nmfs.noaa.gov, and then selecting
File No. 28294 from the list of available
applications. These documents are also
available upon written request via email
to [email protected].
Written comments on this application
should be submitted via email to
[email protected]. Please
include File No. 28294 in the subject
line of the email comment.
Those individuals requesting a public
hearing should submit a written request
via email to NMFS.Pr1Comments@
noaa.gov. The request should set forth
the specific reasons why a hearing on
this application would be appropriate.
FOR FURTHER INFORMATION CONTACT: Erin
Markin, Ph.D. or Malcolm Mohead,
(301) 427–8401.
SUPPLEMENTARY INFORMATION: The
subject permit is requested under the
authority of the Endangered Species Act
of 1973, as amended (ESA; 16 U.S.C.
1531 et seq.) and the regulations
governing the taking, importing, and
exporting of endangered and threatened
species (50 CFR parts 222–226).
The applicant requests to conduct
research on Atlantic and shortnose
sturgeon in freshwater and estuary areas
of the Delaware River. Research
objectives would include assessing and
quantifying the presence of Atlantic and
shortnose sturgeon at the egg, larval,
juvenile and sub-adult/adult life stages.
Other studies would also include
assessing sturgeon home range,
individual movement patterns, seasonal
movements, habitat use, nursery areas,
over-wintering habitat use, population
dynamics, and habitat assessment.
Up to 265 juvenile and 25 adult/subadult shortnose sturgeon and 265
juvenile and 5 adult/sub-adult Atlantic
sturgeon would be captured by gill net
or trawl, measured, weighed,
biologically sampled (tissue), marked
(passive integrated transponder), and
photographed/videoed, annually, prior
to release. Sub-sets of Atlantic and
shortnose sturgeon may be anesthetized
and implanted with acoustic
transmitters, gastric lavaged, and fin ray
sampled. The applicant requests one
unintentional mortality of juvenile and
adult/subadult shortnose sturgeon and
one juvenile Atlantic sturgeon annually,
but no more than two of each species
life stage over the life of the permit.
A total 300 shortnose and 100
Atlantic sturgeon of early life stages
would be taken in directed lethal
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ADDRESSES:
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research annually. The permit would be
valid for up to 10 years from the date
of issuance.
Dated: October 21, 2024.
Julia M. Harrison,
Chief, Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service.
[FR Doc. 2024–24992 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XE413]
Endangered Species; File No. 21467
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; receipt of application for
a permit modification.
AGENCY:
Notice is hereby given that
Karen Holloway-Adkins, Ph.D., East
Coast Biologists, Inc., P.O. Box 33715,
Indialantic, FL 32903, has requested a
modification to scientific research
Permit No. 21467–02.
DATES: Written comments must be
received on or before November 27,
2024.
ADDRESSES: The modification request
and related documents are available for
review by selecting ‘‘Records Open for
Public Comment’’ from the Features box
on the Applications and Permits for
Protected Species home page, https://
apps.nmfs.noaa.gov, and then selecting
File No. 21467 Mod 6 from the list of
available applications. These documents
are also available upon written request
via email to NMFS.Pr1Comments@
noaa.gov.
Written comments on this application
should be submitted via email to
[email protected]. Please
include File No. 21467 in the subject
line of the email comment.
Those individuals requesting a public
hearing should submit a written request
via email to NMFS.Pr1Comments@
noaa.gov. The request should set forth
the specific reasons why a hearing on
this application would be appropriate.
FOR FURTHER INFORMATION CONTACT: Erin
Markin, Ph.D., or Amy Hapeman, (301)
427–8401.
SUPPLEMENTARY INFORMATION: The
subject modification to Permit No.
21467–02, issued on July 2, 2021 (86 FR
43630, August 10, 2021), is requested
under the authority of the Endangered
Species Act of 1973, as amended (16
SUMMARY:
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U.S.C. 1531 et seq.) and the regulations
governing the taking, importing, and
exporting of endangered and threatened
species (50 CFR parts 222–226).
Permit No. 21467–02 authorizes the
permit holder to determine (1) spatial
and temporal distribution, (2) mean
size, (3) foraging habitats and diet
composition, (4) body conditions and
fibropapillomatosis ratios, (5) genetic
origin, and (6) home-range, site fidelity,
and residency times of green (Chelonia
mydas) and loggerhead (Caretta caretta)
sea turtles in Brevard County, Florida.
Researchers may capture by tangle, cast,
or dip net or hand, measure, mark,
biologically sample, tag, weigh, and
photograph sea turtles prior to release.
The permit holder requests
authorization to (1) increase the annual
number of juvenile green sea turtles
from 25 to 95 for the authorized
methods listed above and (2) add 10
adult green turtles annually for capture
by tangle net, measure, and photograph/
video, prior to release. The permit is
valid through September 30, 2027.
Dated: October 21, 2024.
Julia M. Harrison,
Chief, Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service.
[FR Doc. 2024–24993 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XE418]
Pacific Fishery Management Council;
Public Meetings
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of public meetings.
AGENCY:
The Pacific Fishery
Management Council (Pacific Council)
and its advisory bodies will meet
November 13–18, 2024, in Costa Mesa,
CA and via webinar. The Council
meeting will be live streamed with the
opportunity to provide public comment
remotely.
DATES: The Pacific Council meeting will
begin on Thursday, November 14, 2024,
at 10 a.m., Pacific Time (PT),
reconvening at 8 a.m. on Friday,
November 15 through Monday,
November 18, 2024. All meetings are
open to the public, except for a Closed
Session held from 8 a.m. to 10 a.m.,
Thursday, November 14, 2024, to
SUMMARY:
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address litigation and personnel
matters. The Pacific Council will meet
as late as necessary each day to
complete its scheduled business.
ADDRESSES:
Meeting address: Meetings of the
Pacific Council and its advisory entities
will be held at the Hilton Orange
County at 3050 Bristol Street in Costa
Mesa, CA 92626; telephone: (714) 540–
7000. Specific meeting information,
including directions on joining the
meeting, connecting to the live stream
broadcast, and system requirements will
be provided in the meeting
announcement on the Pacific Council’s
website (see www.pcouncil.org). You
may send an email to Mr. Kris
Kleinschmidt (kris.kleinschmidt@
noaa.gov) or contact him at (503) 820–
2412 for technical assistance.
Council address: Pacific Fishery
Management Council, 7700 NE
Ambassador Place, Suite 101, Portland,
OR 97220–1384.
FOR FURTHER INFORMATION CONTACT: Mr.
Merrick Burden, Executive Director,
Pacific Council; telephone: (503) 820–
2280 or (866) 806–7204 toll-free, or
access the Pacific Council website,
www.pcouncil.org, for the proposed
agenda and meeting briefing materials.
SUPPLEMENTARY INFORMATION: The
November 13–18, 2024 meeting of the
Pacific Council will be streamed live on
the internet. The broadcasts begin
initially at 10 a.m. PT Thursday,
November 14, 2024, and 8 a.m. PT
Friday, November 15 through Monday,
November 18, 2024. Broadcasts end
when business for the day is complete.
Only the audio portion and
presentations displayed on the screen at
the Pacific Council meeting will be
broadcast. The audio portion for the
public is listen-only except that an
opportunity for oral public comment
will be provided prior to Council Action
on each agenda item. Additional
information and instructions on joining
or listening to the meeting can be found
on the Pacific Council’s website (see
www.pcouncil.org).
The following items are on the Pacific
Council agenda, but not necessarily in
this order. Agenda items noted as
‘‘Final’’ refer to actions the Council may
take requiring the transmission of a
proposed fishery management plan,
proposed plan amendment, or proposed
regulations to the U.S. Secretary of
Commerce, under sections 304 or 305 of
the Magnuson-Stevens Fishery
Conservation and Management Act.
Additional detail on agenda items,
Council action, and advisory entity
meeting times, are described in Agenda
Item A.3, Proposed Council Meeting
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19:13 Oct 25, 2024
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Agenda, and will be in the advance
November 2024 briefing materials and
posted on the Pacific Council website at
www.pcouncil.org no later than Friday,
October 25, 2024.
A. Call to Order
1. Opening Remarks
2. Roll Call
3. Agenda
4. Executive Director’s Report
B. Open Comment Period
1. Comments on Non-Agenda Items
C. Administrative Matters
1. Council Coordination Committee
Report
2. Fiscal Matters
3. Legislative Matters
4. Approve Council Meeting Record
5. Membership Appointments and
Council Operating Procedures—
Including Final 2025–27 Advisory
Body Appointments
6. Future Council Meeting Agenda
and Workload Planning
D. Cross Fishery Management Plan
1. National Marine Fisheries Service
(NMFS) 2024 Accomplishments
and 2025 Priorities
2. Marine Planning
3. Research and Data Needs
4. Council Operations and Priorities
E. Habitat Issues
1. Current Habitat Issues
F. Salmon Management
1. National Marine Fisheries Service
Report
2. Final Methodology Review Results
and Proposed Council Operating
Procedure (COP) 15 Updates
3. Queets Spring/Summer Chinook
Rebuilding Plan—Final
4. Final 2025 Preseason Management
Schedule
5. Klamath River Fall Chinook
Workgroup Progress Report and
Recommendations
6. Sacramento River Fall Chinook
Workgroup Progress Report and
Recommendations
G. Pacific Halibut Management
1. 2025 Catch Sharing Plan and
Annual Regulations—Final
2. Commercial Fishery Regulation
Changes: Vessel Monitoring
Systems, Seabird Avoidance, and
Catch Reporting—Final
H. Highly Migratory Species
Management
1. National Marine Fisheries Service
Report
2. International Management
Activities including Bluefin Tuna
Trip Limits
3. Biennial Harvest Specifications and
Management Measures—Final
4. Highly Migratory Species Roadmap
Workshop Report and Next Steps
I. Groundfish Management
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85519
1. National Marine Fisheries Service
Report
2. Trawl Catch Share Program and
Intersector Allocation Reviews:
Hearing Officers and Locations
3. Methodology Review: Final Fishery
Impact Model Review Topics and
Stock Assessment Methodologies
4. Stock Definitions for Species
Assessed in 2025 and 2027—Final
5. Cordell Bank Conservation Area
Revisions
6. Inseason Adjustments and
Technical Corrections for 2025–
2026—Final Action
J. Coastal Pelagic Species Management
1. National Marine Fisheries Service
Report
2. Pacific Sardine Rebuilding Plan
Fishery Management Plan
Amendment (FMP)—Final
3. Stock Assessment Prioritization
Advisory Body Agendas
Advisory body agendas will include
discussions of relevant issues that are
on the Pacific Council agenda for this
meeting and may also include issues
that may be relevant to future Council
meetings. Proposed advisory body
agendas for this meeting will be
available on the Pacific Council website,
www.pcouncil.org, no later than Friday,
October 25, 2024 by the end of the
business day.
Schedule of Ancillary Meetings
Day 1—Wednesday, November 13, 2024
Scientific and Statistical Committee 8
a.m.
Salmon Technical Team 8 a.m.
Groundfish Management Team 8 a.m.
Groundfish Advisory Subpanel 8 a.m.
Legislative Committee 10 a.m.
Budget Committee 2 p.m.
Enforcement Consultants 2 p.m.
Day 2—Thursday, November 14, 2024
Oregon State Delegation 7 a.m.
California State Delegation 7 a.m.
Washington State Delegation 7 a.m.
Salmon Advisory Subpanel 8 a.m.
Scientific and Statistical Committee 8
a.m.
Highly Migratory Species Advisory
Subpanel 8 a.m.
Highly Migratory Species Management
Team 8 a.m.
Groundfish Management Team 8 a.m.
Groundfish Advisory Subpanel 8 a.m.
Enforcement Consultants As Necessary
Day 3—Friday, November 15, 2024
Oregon State Delegation 7 a.m.
California State Delegation 7 a.m.
Washington State Delegation 7 a.m.
Groundfish Advisory Subpanel 8 a.m.
Groundfish Management Team 8 a.m.
Highly Migratory Species Advisory
Subpanel 8 a.m.
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Highly Migratory Species Management
Team 8 a.m.
Enforcement Consultants As Necessary
Day 4—Saturday, November 16, 2024
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to the
Maintenance and Rehabilitation of the
Bellingham Shipping Terminal
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; issuance of renewal
incidental harassment authorization.
AGENCY:
Day 5—Sunday, November 17, 2024
Day 6—Monday, September 23, 2024
Oregon State Delegation 7 a.m.
California State Delegation 7 a.m.
Washington State Delegation 7 a.m.
Although non-emergency issues not
contained in the meeting agenda may be
discussed, those issues may not be the
subject of formal action during these
meetings. Action will be restricted to
those issues specifically listed in this
document and any issues arising after
publication of this document that
require emergency action under section
305(c) of the Magnuson-Stevens Fishery
Conservation and Management Act,
provided the public has been notified of
the intent to take final action to address
the emergency.
Special Accommodations
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Requests for sign language
interpretation or other auxiliary aids
should be directed to Mr. Kris
Kleinschmidt (kris.kleinschmidt@
noaa.gov; (503) 820–2412) at least 10
business days prior to the meeting date.
Authority: 16 U.S.C. 1801 et seq.
Dated: October 23, 2024.
Rey Israel Marquez,
Acting Deputy Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
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In accordance with the
regulations implementing the Marine
Mammal Protection Act (MMPA), as
amended, notification is hereby given
that NMFS has issued a renewal
incidental harassment authorization
(IHA) to the Port of Bellingham to
incidentally harass marine mammals
incidental to maintenance and
rehabilitation of the Bellingham
Shipping Terminal in Bellingham, WA.
DATES: This renewal IHA is effective
from November 7, 2024 through
November 7, 2025.
ADDRESSES: Electronic copies of the
original application, renewal request,
and supporting documents (including
NMFS Federal Register notices of the
initial proposed and final
authorizations, and the proposed
renewal IHA), as well as a list of the
references cited in this document, may
be obtained online at: https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-portbellinghams-bellingham-shippingterminal-bellingham. In case of
problems accessing these documents,
please call the contact listed below.
FOR FURTHER INFORMATION CONTACT:
Craig Cockrell, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Oregon State Delegation 7 a.m.
California State Delegation 7 a.m.
Washington State Delegation 7 a.m.
Coastal Pelagic Species Advisory
Subpanel 8 a.m.
Coastal Pelagic Species Management
Team 8 a.m.
Enforcement Consultants As
Necessary, Online
BILLING CODE 3510–22–P
National Oceanic and Atmospheric
Administration
[RTID 0648–XE406]
Oregon State Delegation 7 a.m.
California State Delegation 7 a.m.
Washington State Delegation 7 a.m.
Coastal Pelagic Species Advisory
Subpanel 8 a.m.
Coastal Pelagic Species Management
Team 8 a.m.
Enforcement Consultants As
Necessary, Online
[FR Doc. 2024–24988 Filed 10–25–24; 8:45 am]
DEPARTMENT OF COMMERCE
Background
The MMPA prohibits the ‘‘take’’ of
marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
(D) of the MMPA (16 U.S.C. 1361 et
seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon
request, the incidental, but not
intentional, taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region if certain findings
are made and either regulations are
promulgated or, if the taking is limited
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to harassment, an incidental harassment
authorization is issued.
Authorization for incidental takings
shall be granted if NMFS finds that the
taking will have a negligible impact on
the species or stock(s) and will not have
an unmitigable adverse impact on the
availability of the species or stock(s) for
taking for subsistence uses (where
relevant). Further, NMFS must prescribe
the permissible methods of taking and
other ‘‘means of effecting the least
practicable adverse impact’’ on the
affected species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of such species or stocks for
taking for certain subsistence uses
(referred to here as ‘‘mitigation
measures’’). NMFS must also prescribe
requirements pertaining to monitoring
and reporting of such takings. The
definition of key terms such as ‘‘take,’’
‘‘harassment,’’ and ‘‘negligible impact’’
can be found in the MMPA and NMFS’s
implementing regulations (see 16 U.S.C.
1362; 50 CFR 216.103).
NMFS’ regulations implementing the
MMPA at 50 CFR 216.107(e) indicate
that IHAs may be renewed for
additional periods of time not to exceed
1 year for each reauthorization. In the
notice of proposed IHA for the initial
IHA, NMFS described the circumstances
under which we would consider issuing
a renewal for this activity, and
requested public comment on a
potential renewal under those
circumstances. Specifically, on a caseby-case basis, NMFS may issue a onetime 1-year renewal IHA following
notice to the public providing an
additional 15 days for public comments
when (1) up to another year of identical,
or nearly identical, activities as
described in the Detailed Description of
Specified Activities section of the initial
IHA issuance notice is planned or (2)
the activities as described in the
Description of the Specified Activities
and Anticipated Impacts section of the
initial IHA issuance notice will not be
completed by the time the initial IHA
expires and a renewal will allow for
completion of the activities beyond that
described in the DATES section of the
notice of issuance of the initial IHA,
provided all of the following conditions
are met:
1. A request for renewal is received no
later than 60 days prior to the needed
renewal IHA effective date (recognizing
that the renewal IHA expiration date
cannot extend beyond 1 year from
expiration of the initial IHA);
2. The request for renewal must
include the following:
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• An explanation that the activities to
be conducted under the requested
renewal IHA are identical to the
activities analyzed under the initial
IHA, are a subset of the activities, or
include changes so minor (e.g.,
reduction in pile size) that the changes
do not affect the previous analyses,
mitigation and monitoring
requirements, or take estimates (with
the exception of reducing the type or
amount of take); and
• A preliminary monitoring report
showing the results of the required
monitoring to date and an explanation
showing that the monitoring results do
not indicate impacts of a scale or nature
not previously analyzed or authorized;
and
3. Upon review of the request for
renewal, the status of the affected
species or stocks, and any other
pertinent information, NMFS
determines that there are no more than
minor changes in the activities, the
mitigation and monitoring measures
will remain the same and appropriate,
and the findings in the initial IHA
remain valid.
An additional public comment period
of 15 days (for a total of 45 days), with
direct notice by email, phone, or postal
service to commenters on the initial
IHA, is provided to allow for any
additional comments on the proposed
renewal. A description of the renewal
process may be found on our website at:
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
incidental-harassment-authorizationrenewals.
History of Request
On November 6, 2023, NMFS issued
an IHA to the Port of Bellingham to take
marine mammals incidental to the
Maintenance and Rehabilitation of the
Bellingham Shipping Terminal Project
in Bellingham, WA (88 FR 77972,
November 11, 2023), effective from
November 6, 2023 through November 6,
2024. On September 20, 2024, NMFS
received an application for the renewal
of that initial IHA. As described in the
application for renewal IHA, the
activities for which incidental take is
requested are nearly identical to those
covered in the initial authorization and
will not be completed prior to its
expiration. Under the initial IHA a
number of piles have been removed but
no pile installations have occurred. As
required, the Port of Bellingham also
provided preliminary monitoring data,
which confirms that the Port of
Bellingham had implemented the
required mitigation and monitoring, and
also showed that no impacts of a scale
or nature not previously analyzed or
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19:13 Oct 25, 2024
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authorized have occurred as a result of
the activities conducted. The notice of
the proposed renewal incidental
harassment authorization was published
on October 4, 2024 (89 FR 80890). There
are no changes from the proposed
renewal IHA to the final renewal IHA.
Description of the Specified Activities
and Anticipated Impacts
The purpose of the project at the
Bellingham Shipping Terminal is to
repair some of the failing wharf and pier
structures of the terminal. As described
in detail in the notice for the initial IHA
(88 FR 77972, November 11, 2023), inwater construction will include both
pile removal and installation of a
multiple types of piles with vibratory
and impact hammers. A minor change
to the activities conducted by the Port
of Bellingham was requested in the
renewal letter. The initial IHA noted
that the Port of Bellingham would limit
vibratory pile driving time to 90
minutes per day. The Port of Bellingham
will increase the vibratory pile driving
time to 360 minutes per day for this
renewal period. This change will
increase the size of the Level A
harassment zones and shutdown zones
associated with vibratory pile driving
and removal as compared with those
analyzed in the initial IHA (see
Description of Mitigation, Monitoring
and Reporting Measures). The increase
to shutdown zones follows the same
goals for mitigation articulated in the
notice of the initial proposed IHA, i.e.,
the shutdown zones are equal to the
estimated Level A harassment zones,
and there is no increase to the estimated
take numbers. Therefore, NMFS has
determined that this change is minor
and that the action is eligible for
renewal. The construction is still
expected to occur for 87 nonconsecutive days. Sounds produced by
these activities may result in take, by
Level A harassment and Level B
harassment, of marine mammals located
in Bellingham Bay.
Incidental take resulting from the inwater pile driving and removal in this
renewal will be at the same level as
authorized in the initial IHA. Four
marine mammal species are expected to
experience Level B harassment and one
of these species additionally has the
potential for Level A harassment (see
Estimated Take).
All documents related to the initial
IHA are available on our website:
https://www.fisheries.noaa.gov/action/
incidental-take-authorization-portbellinghams-bellingham-shippingterminal-bellingham.
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85521
Detailed Description of the Activity
A detailed description of the
demolition and construction activities
for which take is authorized here may
be found in the Notices of the Proposed
and Final IHAs for the initial
authorization. The location, timing, and
nature of the activities, including the
types of equipment planned for use, are
identical to those described in the
previous notices.
Description of Marine Mammals
A description of the marine mammals
in the area of the activities for which
take is authorized, including
information on abundance, status,
distribution, and hearing, may be found
in the notices of the proposed and final
IHAs for the initial authorization. NMFS
has reviewed the monitoring data from
the initial IHA, recent draft Stock
Assessment Reports, information on
relevant Unusual Mortality Events, and
other scientific literature, and
determined there is no new information
that affects which species or stocks have
the potential to be affected or the
pertinent information in the Description
of the Marine Mammals in the Area of
Specified Activities contained in the
supporting documents for the initial
IHA.
It should be noted that the draft 2023
NMFS’ Marine Mammal Stock
Assessment Reports (SARs) updated
stock abundances for the Eastern
Distinct Population Segment for Steller
sea lions (Eumetopias jubatus) and
harbor seals (Phoca vitulina) (Carretta et
al. 2023). For Steller sea lions, the
abundance decreased slightly from the
initial IHA stock abundance estimate of
43,201 individuals to 36,308
individuals. During the development of
the initial IHA the Washington Northern
Inland Waters stock of harbor seals had
an unknown abundance. Since then, the
abundance estimate in the draft 2023
SARs has been updated to 16,451
individuals. None of these population
changes impact the findings made in
support of the initial IHA. Additional
information on all stocks affected by
this action is available in the NMFS’
U.S. Pacific SARs (available online at:
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-stock-assessmentreports).
Potential Effects on Marine Mammals
and Their Habitat
A description of the potential effects
of the specified activity on marine
mammals and their habitat for the
activities for which take is authorized
may be found in the notices of the
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
proposed and final IHAs for the initial
authorization. NMFS has reviewed the
monitoring data from the initial IHA,
recent draft SARs, information on
relevant Unusual Mortality Events, and
other scientific literature, and
determined that there is no new
information that affects our initial
analysis of impacts on marine mammals
and their habitat.
Estimated Take
A detailed description of the methods
and inputs used to estimate take for the
specified activity are found in the
notices of the proposed and final IHAs
for the initial authorization.
Specifically, the source levels, days of
operation, and marine mammal
occurrence data applicable to this
authorization remain unchanged from
the previously issued IHA. Similarly,
the stocks taken, methods of take, and
types of take remain unchanged from
the previously issued IHA, as do the
number of takes, which are indicated
below in table 1.
TABLE 1—ESTIMATED TAKE BY LEVEL A AND LEVEL B HARASSMENT, BY SPECIES AND STOCK
Stock
abundance a
Common name
Stock
Harbor porpoise ..................
Steller sea lion ....................
California sea lion ...............
Harbor seal .........................
Washington Inland Waters
Eastern U.S. .......................
U.S. ....................................
Washington Northern Inland
Waters.
a Stock
Level
A
11,233
36,308
257,606
16,451
Level
B
0
0
0
264
Total
take
261
87
87
2,029
Take as
percentage of
stock
261
87
87
3,050
2.3
0.2
< 0.1
18.5
or DPS size is Nbest according to NMFS 2023 Draft Stock Assessment Reports.
Description of Mitigation, Monitoring
and Reporting Measures
The mitigation, monitoring, and
reporting measures included as
requirements in this authorization are
nearly identical to those included in the
Federal Register notice announcing the
issuance of the initial IHA, and the
discussion of the least practicable
adverse impact included in that
document and the notice of the
proposed IHA remains accurate.
As noted above, the increase vibratory
pile installation time from 90 minutes
per day to 360 minutes per day has
increased the size of the shutdown
zones as noted in table 2 of this section.
The applicant and NMFS analyzed the
Level A harassment and associated
shutdown zones using vibratory pile
installation duration of 90 minutes a
day, for inputs in the optional User
Spreadsheet tool as reported in table 5
of the final IHA Federal Register notice
(88 FR 77972, November 14, 2023). In
the request for renewal of the initial IHA
the applicant requested that NMFS
analyze and revise the shutdown zones
associated with an increase in vibratory
pile driving time to 360 minutes per
day. Using the optional User
Spreadsheet tool the applicants and
NMFS analyzed and revised the
shutdown zones based on this expected
increase in vibratory pile installation
duration. The following standard
mitigation measures are required:
• Shutdown zones for Level A
harassment as specified in the initial
IHA with the exception of vibratory pile
installation where the Port of
Bellingham expects to drive piles for
360 minutes a day. The updated
shutdown zones are shown in table 2;
TABLE 2—UPDATED SHUTDOWN ZONES DURING VIBRATORY PILE INSTALLATION
Shutdown zones (m) 1
Activity
Vibratory installation (360 minutes) .............................................................................................
lotter on DSK11XQN23PROD with NOTICES1
1 Shutdown
Phocids
Otariids
75 (30)
30 (20)
10 (10)
zones shown in parentheticals are what was included in the initial IHA.
• Protected species observers (PSO)
observing the monitoring zones
established in the initial IHA during all
pile installation and removal activities;
• Soft start procedures for impact pile
driving consisting of an initial set of
strikes from the hammer at reduced
energy, with each strike followed by a
30-second waiting period;
• The use of a marine pile-driving
energy attenuator (i.e., air bubble
curtain system) will be implemented by
the Port of Bellingham during impact
pile driving of all steel pipe piles; and
• Prior to the start of daily in-water
construction activity, or whenever a
break in pile driving/removal of 30
minutes or longer occurs, PSOs will
observe the shutdown and monitoring
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19:13 Oct 25, 2024
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zones for a period of 30 minutes. If a
marine mammal is observed within the
shutdown zone, a soft start cannot
proceed until the animal has left the
zone or has not been observed for 15
minutes.
Monitoring and reporting
requirements associated with this
renewal are as follows:
• A minimum of one PSO will be on
duty during impact pile driving
activities and a minimum of two PSOs
during vibratory installation/removal;
• Observers will be required to use
approved data forms; and
• A draft report will be submitted to
NMFS within 90 days of the completion
of marine mammal monitoring. The
report will include marine mammal
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Fmt 4703
Sfmt 4703
observations pre-activity, duringactivity, and post-activity during pile
driving days (and associated PSO data
sheets).
Comments and Responses
A notice of NMFS’ proposal to issue
a renewal IHA to the Port of Bellingham
was published in the Federal Register
on October 4, 2024 (89 FR 80890). That
notice either described, or referenced
descriptions of, the Port of Bellingham’s
activity, the marine mammal species
that may be affected by the activity, the
anticipated effects on marine mammals
and their habitat, estimated amount and
manner of take, and proposed
mitigation, monitoring and reporting
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
measures. NMFS received no public
comments.
lotter on DSK11XQN23PROD with NOTICES1
Determinations
The construction activities are nearly
identical to those analyzed for the initial
IHA, as are the method of taking and the
effects of the action. The higher
vibratory drive time does increase the
size of the Level A harassment zones
and shutdown zones slightly. This
increase in zone sizes, however, does
not change the anticipated take numbers
analyzed in the initial IHA. In analyzing
the effects of the activities for the initial
IHA, NMFS determined that the Port of
Bellingham’s activities will have a
negligible impact on the affected species
or stocks and that the authorized take
numbers of each species or stock were
small relative to the relevant stocks (e.g.,
less than one-third of the abundance of
all stocks). Although some marine
mammal abundances have changed
since the initial IHA, none of this new
information affects NMFS’
determinations supporting issuance of
the initial IHAs. The mitigation
measures and monitoring and reporting
requirements as described above are
nearly identical to the initial IHA.
NMFS has concluded that there is no
new information suggesting that our
analysis or findings should change from
those reached for the initial IHA. Based
on the information and analysis
contained here and in the referenced
documents, NMFS has determined the
following: (1) the required mitigation
measures will effect the least practicable
impact on marine mammal species or
stocks and their habitat; (2) the
authorized takes will have a negligible
impact on the affected marine mammal
species or stocks; (3) the authorized
takes represent small numbers of marine
mammals relative to the affected stock
abundances; (4) the Port of Bellingham’s
activities will not have an unmitigable
adverse impact on taking for subsistence
purposes as no relevant subsistence uses
of marine mammals are implicated by
this action, and; (5) appropriate
monitoring and reporting requirements
are included.
National Environmental Policy Act
This action is consistent with
categories of activities identified in
Categorical Exclusion B4 (incidental
take authorizations with no anticipated
serious injury or mortality) of the
Companion Manual for NOAA
Administrative Order 216–6A, which do
not individually or cumulatively have
the potential for significant impacts on
the quality of the human environment
and for which we have not identified
any extraordinary circumstances that
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19:13 Oct 25, 2024
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would preclude this categorical
exclusion. Accordingly, NMFS
determined that the issuance of the
initial IHA qualified to be categorically
excluded from further National
Environmental Policy Act review.
NMFS has determined that the
application of this categorical exclusion
remains appropriate for this renewal
IHA.
Endangered Species Act
No incidental take of ESA-listed
species is authorized or expected to
result from this activity. Therefore,
NMFS has determined that consultation
under section 7 of the ESA is not
required for this action.
Renewal
Dated: October 23, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2024–25021 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–22–P
CONSUMER PRODUCT SAFETY
COMMISSION
Sunshine Act Meeting
Wednesday, October 30,
2024—10:00 a.m. (See MATTERS TO BE
CONSIDERED).
TIME AND DATE:
The meeting will be held
remotely, and in person at 4330 EastWest Highway, Bethesda, Maryland
20814.
To attend the meeting remotely,
please use the following link: https://
cpsc.webex.com/cpsc/
j.php?MTID=m316a2dd3fc
8c521a03226e1fc2027958.
PLACE:
Commission Meeting—Open to
the Public.
STATUS:
MATTERS TO BE CONSIDERED:
Decisional Matter: FY 2025 Operating
Plan.
CONTACT PERSON FOR MORE INFORMATION:
Alberta E. Mills, Office of the Secretary,
U.S. Consumer Product Safety
Commission, 4330 East-West Highway,
Bethesda, MD 20814, 301–504–7479
(Office) or 240–863–8938 (Cell).
Frm 00036
Dated: October 23, 2024.
Alberta E. Mills,
Commission Secretary.
[FR Doc. 2024–25066 Filed 10–24–24; 11:15 am]
BILLING CODE 6355–01–P
DEPARTMENT OF DEFENSE
Office of the Secretary
Notice of Availability of Draft
Environmental Impact Statement for
the Enhanced Integrated Air and
Missile Defense System on Guam
Missile Defense Agency (MDA),
Department of Defense (DoD).
ACTION: Notice of availability.
AGENCY:
The MDA, as the lead agency,
announces the availability of the Draft
Environmental Impact Statement (EIS)
(EISX–007–20–MDA–1725955966) for
the proposed construction, deployment,
and operation and maintenance of an
Enhanced Integrated Air and Missile
Defense (EIAMD) System on Guam
(Proposed Action). The United States
Army (USA), the United States Navy
(USNAV), the United States Air Force
(USAF), and the Federal Aviation
Administration (FAA) are cooperating
agencies on this Draft EIS. The Draft EIS
was prepared in accordance with the
National Environmental Policy Act of
1969 (NEPA); the Council on
Environmental Quality Regulations for
Implementing the Procedural Provisions
of NEPA; and the agency implementing
procedures of MDA, USA, USNAV,
USAF, and FAA. The Draft EIS also
supports compliance with the National
Historic Preservation Act of 1966
(NHPA) and its implementing
regulations.
SUMMARY:
NMFS has issued a renewal IHA to
the Port of Bellingham for the take of
marine mammals incidental to the
Maintenance and Rehabilitation of the
Bellingham Shipping Terminal Project
in Bellingham, WA from November 7,
2024 to November 7, 2025.
PO 00000
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Fmt 4703
Sfmt 4703
The 75-day public comment
period will be from October 25, 2024, to
January 8, 2025. Comments must be
postmarked or received on or before
January 8, 2025 to ensure consideration
in the Final EIS.
ADDRESSES: Written comments may be
submitted by: Email: [email protected], Online form: www.EIAMDEIS.com, Mail: ManTech International
Corporation, Attention: EIAMD EIS
Project Support, PMB 403, 1270 N.
Marine Corps Drive, Suite 101,
Tamuning, Guam 96913–4331.
Comments will also be accepted at the
open house public meetings. The public
meetings will be held at the following
locations: (1) November 13, 2024, Ha˚gat
Mayor’s Office Community Center
Building 393, Route 2, Ha˚gat, Guam; (2)
November 14, 2024, Hilton Guam Resort
Micronesian Room, 202 Hilton Road,
DATES:
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Tumon Bay, Guam; (3) November 15,
2024, Dededo Senior Center, 319 Iglesia
Circle, Dededo, Guam. Mr. Mark Wright,
MDA Public Affairs, at 571–231–8212 or
by email to [email protected], may be
contacted regarding the public meetings.
All comments, including names and
addresses, will be included in the
administrative record, but to protect
your personal information, addresses
and phone numbers will be kept
confidential unless release is otherwise
required by law.
FOR FURTHER INFORMATION CONTACT: Mr.
Mark Wright, MDA Public Affairs, at
571–231–8212, or by email: mda.info@
mda.mil. For more information,
including a downloadable copy of the
Draft EIS, visit the MDA website:
https://www.mda.mil/system/eiamd.
SUPPLEMENTARY INFORMATION: Proposed
Action and Alternative within the
context of homeland defense, Guam is a
key strategic location for sustaining and
maintaining United States (U.S.)
capabilities, deterring adversaries,
responding to crises, and maintaining a
free and open Indo-Pacific. An attack on
Guam would be considered a direct
attack on the U.S. and would be met
with an appropriate response. Current
U.S. forces are capable of defending
Guam against regional ballistic missile
threats. However, regional missile
threats continue to increase and
advance technologically. The U.S. IndoPacific Command identified a
requirement for a 360-degree EIAMD
capability on Guam as soon as possible
to address the rapid evolution of
adversary missile threats.
In the Draft EIS, MDA, in
coordination with cooperating agencies,
evaluated the potential environmental
impacts associated with the Proposed
Action as well as a No Action
Alternative. The Proposed Action
includes the construction, deployment,
and operations and maintenance of a
comprehensive, persistent, 360-degree
EIAMD system to defend the people,
infrastructure, and territory of Guam
against the rapidly evolving threats of
advanced cruise, ballistic, and
hypersonic missile attacks from regional
adversaries. The proposed system
includes a combination of components
from the MDA, USA, and USNAV,
including missile defense radars,
sensors, missile launchers and missile
interceptors, and command and control
systems. The MDA and USA need to
strategically locate and integrate the
various system components at multiple
sites around Guam. To meet the purpose
and need of the Proposed Action, MDA
and USA have identified 16 proposed
sites on Guam—eight are on Naval Base
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19:13 Oct 25, 2024
Jkt 265001
Guam (NBG), including the NBG
Munitions Site, six are on Andersen Air
Force Base, and two are on Marine
Corps Base Camp Blaz. The proposed
EIAMD system components, associated
support facilities (e.g., maintenance
buildings, entry control, administrative
buildings), and infrastructure (e.g.,
utility infrastructure, fuel storage
facilities, water storage facilities) would
be distributed across the proposed sites.
Additionally, airspace restrictions
would be necessary at sites where radars
would be located to ensure that aircraft
would not encounter high-intensity
radiation fields (HIRF) resulting from
the radar operations that exceed FAA’s
HIRF certification standards for aircraft
electrical and electronic systems.
The environmental analysis in the
Draft EIS addresses the following
environmental resource areas: airspace
management, health and safety, cultural,
terrestrial biological, socioeconomics,
environmental justice and protection of
children, land use and recreation,
transportation, visual quality, utilities,
air quality, climate change, noise, water,
and geology and soils. Mitigation
measures that, if employed, could avoid,
minimize, or mitigate potential
environmental impacts resulting from
the Proposed Action are also analyzed
in the Draft EIS. The Draft EIS only
analyzes peacetime operations.
The MDA and the USA, as the action
proponents, are coordinating and
consulting with appropriate Federal
agencies as required by the Endangered
Species Act, Coastal Zone Management
Act, Clean Water Act, Clean Air Act,
and other laws and regulations
determined to be applicable to the
project. This public comment period
also supports compliance with Section
106 of the NHPA and its implementing
regulations. The USNAV has
determined that the proposed
undertaking shall follow The
Programmatic Agreement Among the
Commander, Navy Region Marianas, the
Advisory Council on Historic
Preservation, and the Guam Historic
Preservation Officer, Regarding Navy
Undertakings on the Island of Guam
(2008) to fulfill Section 106
responsibilities and to avoid, minimize,
and/or mitigate effects on historic
properties. Members of the public are
welcome to provide input.
The MDA intends to publish the Final
EIS in summer 2025 and sign a Record
of Decision following the 30-day Final
EIS waiting period.
Public Participation Invited: The
MDA invites all interested members of
the public, as well as Federal and
territorial agencies, to comment on the
Draft EIS and the project’s potential to
PO 00000
Frm 00037
Fmt 4703
Sfmt 4703
affect historic properties pursuant to
Section 106 of the NHPA. The Draft EIS
is available for public review on the
MDA website at www.mda.mil/system/
eiamd and at the following public
libraries: (1) University of Guam Robert
F. Kennedy Memorial Library, UOG
Station, Mangilao, Guam 96913; (2)
Nieves M. Flores Memorial Library, 254
Martyr St., Agana, Guam 96910.
In support of NEPA and NHPA
Section 106 requirements, the MDA and
cooperating agencies will host three inperson open house public meetings in
Guam. Similar to the scoping meetings
held in August 2023, the open-house
format will include poster stations
staffed by MDA and representatives of
the cooperating agencies who can
provide information and answer
questions about the Proposed Action
and the findings in the Draft EIS.
The public meetings will be held as
follows: (1) November 13, 2024, from
4:00 to 7:00 p.m. Chamorro Standard
Time (ChST) at Ha˚gat Mayor’s Office
Community Center Building 393, Route
2, Ha˚gat, Guam; (2) November 14, 2024,
from 4:00 to 7:00 p.m. ChST at Hilton
Guam Resort Micronesian Room, 202
Hilton Road, Tumon Bay, Guam; (3)
November 15, 2024, from 5:00 to 8:00
p.m. ChST at Dededo Senior Center, 319
Iglesia Circle, Dededo, Guam. Attendees
will be able to submit oral and written
comments during the public meetings.
Official oral comments will be recorded
by a court reporter in a one-on-one
setting.
Dated: October 23, 2024.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2024–25027 Filed 10–24–24; 8:45 am]
BILLING CODE 6001–FR–P
DEPARTMENT OF EDUCATION
[Docket No.: ED–2024–SCC–0102]
Agency Information Collection
Activities; Submission to the Office of
Management and Budget for Review
and Approval; Comment Request;
Federal Family Educational Loan
Program—Servicemembers Civil Relief
Act (SCRA)
Federal Student Aid (FSA),
Department of Education (ED).
ACTION: Notice.
AGENCY:
In accordance with the
Paperwork Reduction Act (PRA) of
1995, the Department is proposing an
extension without change of a currently
approved information collection request
(ICR).
SUMMARY:
E:\FR\FM\28OCN1.SGM
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Interested persons are invited to
submit comments on or before
November 27, 2024.
ADDRESSES: Written comments and
recommendations for proposed
information collection requests should
be submitted within 30 days of
publication of this notice. Click on this
link www.reginfo.gov/public/do/
PRAMain to access the site. Find this
information collection request (ICR) by
selecting ‘‘Department of Education’’
under ‘‘Currently Under Review,’’ then
check the ‘‘Only Show ICR for Public
Comment’’ checkbox. Reginfo.gov
provides two links to view documents
related to this information collection
request. Information collection forms
and instructions may be found by
clicking on the ‘‘View Information
Collection (IC) List’’ link. Supporting
statements and other supporting
documentation may be found by
clicking on the ‘‘View Supporting
Statement and Other Documents’’ link.
FOR FURTHER INFORMATION CONTACT: For
specific questions related to collection
activities, please contact Beth
Grebeldinger, (202) 570–8414.
SUPPLEMENTARY INFORMATION: The
Department is especially interested in
public comment addressing the
following issues: (1) is this collection
necessary to the proper functions of the
Department; (2) will this information be
processed and used in a timely manner;
(3) is the estimate of burden accurate;
(4) how might the Department enhance
the quality, utility, and clarity of the
information to be collected; and (5) how
might the Department minimize the
burden of this collection on the
respondents, including through the use
of information technology. Please note
that written comments received in
response to this notice will be
considered public records.
Title of Collection: Federal Family
Educational Loan Program—
Servicemembers Civil Relief Act
(SCRA).
OMB Control Number: 1845–0093.
Type of Review: Extension without
change of a currently approved ICR.
Respondents/Affected Public: Private
Sector; State, Local, and Tribal
Governments.
Total Estimated Number of Annual
Responses: 4,408.
Total Estimated Number of Annual
Burden Hours: 13,216.
Abstract: The Department of
Education (the Department) is
requesting an extension of the currently
approved OMB information collection
1845–0093, Federal Family Education
Loan (FFEL) Program Servicemembers
Civil Relief Act (SCRA) based on a
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DATES:
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decrease in the number of
servicemembers accessing the benefit.
The regulations require the FFEL loan
holder to match its database against the
Department of Defense (DOD) Defense
Manpower Data Center (DMDC) or other
official DOD database and automatically
apply the interest rate limitation, as
appropriate, to borrowers under the
SCRA. There has been no change in the
statute or in the regulations at 34 CFR
682.208(j). There is no form tied to this
collection.
Dated: October 22, 2024.
Kun Mullan,
PRA Coordinator, Strategic Collections and
Clearance, Governance and Strategy Division,
Office of Chief Data Officer, Office of
Planning, Evaluation and Policy
Development.
[FR Doc. 2024–24937 Filed 10–25–24; 8:45 am]
BILLING CODE 4000–01–P
DEPARTMENT OF EDUCATION
Membership of the Performance
Review Board
Office of Finance and
Operations, Department of Education.
ACTION: Notice.
AGENCY:
The Secretary publishes an
updated list of persons who may be
named to serve on the Performance
Review Board that oversees the
evaluation of performance appraisals for
Senior Executive Service members of
the Department of Education
(Department).
DATES: These appointments are effective
on October 28, 2024.
FOR FURTHER INFORMATION CONTACT:
Jennifer Geldhof, Director, Executive
Resources Division, Office of Human
Resources, Office of Finance and
Operations, U.S. Department of
Education, 400 Maryland Avenue SW,
Room 210–00, LBJ, Washington, DC
20202–4573. Telephone: (202) 580–
9669. Email: [email protected].
If you are deaf, hard of hearing, or
have a speech disability and wish to
access telecommunications relay
services, please dial 7–1–1.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Membership
Under the Civil Service Reform Act of
1978, Public Law 95–454 (5 U.S.C.
4314(c)(4)), the Department must
publish in the Federal Register a list of
persons who may be named to serve on
the Performance Review Board that
oversees the evaluation of performance
appraisals for Senior Executive Service
members of the Department. On
September 18, 2024, the Department of
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85525
Education published in the Federal
Register (89 FR 76464) a list of persons
who may be named to serve on the
Performance Review Board. Since that
date, there has been a change to the list
because one of the persons named in the
earlier notice is not available to serve on
the Performance Review Board. This
notice updates that list and the
following persons may be named to
serve on the Performance Review Board:
Ceja, Beatriz
Chapman, Christopher D.
Clay, Jacqueline
Juengst, Phillip R.
Shirley, Victory
St. Pierre, Tracey
Wood, Gary
Accessible Format: On request to the
program contact person listed under FOR
FURTHER INFORMATION CONTACT,
individuals with disabilities can obtain
this document in an accessible format.
The Department will provide the
requestor with an accessible format that
may include Rich Text Format (RTF) or
text format (txt), a thumb drive, an MP3
file, braille, large print, audiotape,
compact disc, or other accessible format.
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
Register. You may access the official
edition of the Federal Register and the
Code of Federal Regulations at
www.govinfo.gov. At this site you can
view this document, as well as all other
Department documents published in the
Federal Register, in text or Portable
Document Format (PDF). To use PDF,
you must have Adobe Acrobat Reader,
which is available free at the site.
You may also access Department
documents published in the Federal
Register by using the article search
feature at www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department.
Signing Authority
This document of the U.S.
Department of Education was signed on
October 18, 2024, by Miguel A. Cardona,
Secretary of Education. That document
with the original signature and date is
maintained by the U.S. Department of
Education. For administrative purposes
only, and in compliance with
requirements of the Office of the Federal
Register, the undersigned has been
authorized to sign the document in
electronic format for publication, as an
official document of the U.S.
Department of Education. This
administrative process in no way alters
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
the legal effect of this document upon
publication in the Federal Register.
contact OPP at (202) 502–6595 or OPP@
ferc.gov.
Sharon Cooke,
Associate Director, Communications Team,
Office of the Executive Secretariat, Office of
the Secretary, U.S. Department of Education.
Dated: October 22, 2024.
Debbie-Anne A. Reese,
Secretary.
[FR Doc. 2024–24991 Filed 10–25–24; 8:45 am]
BILLING CODE 6717–01–P
[FR Doc. 2024–25000 Filed 10–25–24; 8:45 am]
BILLING CODE 4000–01–P
DEPARTMENT OF ENERGY
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
Federal Energy Regulatory
Commission
[Docket No. CP24–490–000]
Combined Notice of Filings
lotter on DSK11XQN23PROD with NOTICES1
Take notice that the Commission has
received the following Natural Gas
Pipeline Rate and Refund Report filings:
Filings Instituting Proceedings
Docket Numbers: RP25–86–000.
Applicants: Iroquois Gas
Transmission System, L.P.
Description: § 4(d) Rate Filing:
10.22.24 Negotiated Rates—Hartree
Partners, LP R–7090–14 to be effective
11/1/2024.
Filed Date: 10/22/24.
Accession Number: 20241022–5019.
Comment Date: 5 p.m. ET 11/4/24.
Any person desiring to intervene, to
protest, or to answer a complaint in any
of the above proceedings must file in
accordance with Rules 211, 214, or 206
of the Commission’s Regulations (18
CFR 385.211, 385.214, or 385.206) on or
before 5:00 p.m. Eastern time on the
specified comment date. Protests may be
considered, but intervention is
necessary to become a party to the
proceeding.
The filings are accessible in the
Commission’s eLibrary system (https://
elibrary.ferc.gov/idmws/search/
fercgensearch.asp) by querying the
docket number.
eFiling is encouraged. More detailed
information relating to filing
requirements, interventions, protests,
service, and qualifying facilities filings
can be found at: http://www.ferc.gov/
docs-filing/efiling/filing-req.pdf. For
other information, call (866) 208–3676
(toll free). For TTY, call (202) 502–8659.
The Commission’s Office of Public
Participation (OPP) supports meaningful
public engagement and participation in
Commission proceedings. OPP can help
members of the public, including
landowners, environmental justice
communities, Tribal members and
others, access publicly available
information and navigate Commission
processes. For public inquiries and
assistance with making filings such as
interventions, comments, or requests for
rehearing, the public is encouraged to
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19:13 Oct 25, 2024
Jkt 265001
Notice of Scoping Period Requesting
Comments on Environmental Issues
for the Proposed Ecoele´ctrica LNG
Supply Pipeline Capacity Project:
EcoEle´ctrica, L.P.
The staff of the Federal Energy
Regulatory Commission (FERC or
Commission) will prepare an
environmental document, that will
discuss the environmental impacts of
the EcoEle´ctrica LNG Supply Pipeline
Capacity Project involving adjustments
to existing liquefied natural gas (LNG)
sendout pressure control setpoints on
EcoEle´ctrica, L.P. (EcoEle´ctrica)
facilities in Pen˜uelas, Puerto Rico. The
Commission will use this environmental
document in its decision-making
process to determine whether the
project is in the public interest.
This notice announces the opening of
the scoping process the Commission
will use to gather input from the public
and interested agencies regarding the
project. As part of the National
Environmental Policy Act (NEPA)
review process, the Commission takes
into account concerns the public may
have about proposals and the
environmental impacts that could result
from its action whenever it considers
the issuance of an authorization. This
gathering of public input is referred to
as ‘‘scoping.’’ The main goal of the
scoping process is to focus the analysis
in the environmental document on the
important environmental issues.
Additional information about the
Commission’s NEPA process is
described below in the NEPA Process
and Environmental Document section of
this notice.
By this notice, the Commission
requests public comments on the scope
of issues to address in the
environmental document. To ensure
that your comments are timely and
properly recorded, please submit your
comments so that the Commission
receives them in Washington, DC on or
before 5:00 p.m. Eastern Time on
November 20, 2024. Comments may be
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submitted in written form. Further
details on how to submit comments are
provided in the Public Participation
section of this notice.
Your comments should focus on the
potential environmental effects,
reasonable alternatives, and measures to
avoid or lessen environmental impacts.
Your input will help the Commission
staff determine what issues they need to
evaluate in the environmental
document. Commission staff will
consider all written comments during
the preparation of the environmental
document.
If you submitted comments on this
project to the Commission before the
opening of this docket on July 5, 2024,
you will need to file those comments in
Docket No. CP24–490–000 to ensure
they are considered as part of this
proceeding.
This notice is being sent to the
Commission’s current environmental
mailing list for this project. State and
local government representatives should
notify their constituents of this
proposed project and encourage them to
comment on their areas of concern.
Public Participation
There are three methods you can use
to submit your comments to the
Commission. Please carefully follow
these instructions so that your
comments are properly recorded. The
Commission encourages electronic filing
of comments and has staff available to
assist you at (866) 208–3676 or
[email protected].
(1) You can file your comments
electronically using the eComment
feature, which is located on the
Commission’s website (www.ferc.gov)
under the link to FERC Online. Using
eComment is an easy method for
submitting brief, text-only comments on
a project;
(2) You can file your comments
electronically by using the eFiling
feature, which is also located on the
Commission’s website (www.ferc.gov)
under the link to FERC Online. With
eFiling, you can provide comments in a
variety of formats by attaching them as
a file with your submission. New
eFiling users must first create an
account by clicking on ‘‘eRegister.’’ You
will be asked to select the type of filing
you are making; a comment on a
particular project is considered a
‘‘Comment on a Filing’’; or
(3) You can file a paper copy of your
comments by mailing them to the
Commission. Be sure to reference the
project docket number (CP24–490–000)
on your letter. Submissions sent via the
U.S. Postal Service must be addressed
to: Debbie-Anne A. Reese, Secretary,
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Federal Energy Regulatory Commission,
888 First Street NE, Room 1A,
Washington, DC 20426. Submissions
sent via any other carrier must be
addressed to: Debbie-Anne A. Reese,
Secretary, Federal Energy Regulatory
Commission, 12225 Wilkins Avenue,
Rockville, Maryland 20852.
Additionally, the Commission offers a
free service called eSubscription which
makes it easy to stay informed of all
issuances and submittals regarding the
dockets/projects to which you
subscribe. These instant email
notifications are the fastest way to
receive notification and provide a link
to the document files which can reduce
the amount of time you spend
researching proceedings. Go to https://
www.ferc.gov/ferc-online/overview to
register for eSubscription.
The Commission’s Office of Public
Participation (OPP) supports meaningful
public engagement and participation in
Commission proceedings. OPP can help
members of the public, including
landowners, environmental justice
communities, Tribal members and
others, access publicly available
information and navigate Commission
processes. For public inquiries and
assistance with making filings such as
interventions, comments, or requests for
rehearing, the public is encouraged to
contact OPP at (202) 502–6595 or OPP@
ferc.gov.
Summary of the Proposed Project
EcoEle´ctrica proposes to increase the
existing LNG Supply Pipeline sendout
capacity between the LNG terminal in
Pen˜uelas, Puerto Rico and the off-site
truck loading facility (TLF) from 250
gallons per minute (gpm) to 500 gpm.
EcoEle´ctrica states the project would
satisfy the increasing demand for LNG
from the TLF and its downstream users.
The requested capacity increase would
not require construction and would only
require LNG sendout pressure control
setpoint adjustments at the inlet of the
LNG Supply Pipeline.
The general location of the project
facilities is shown in appendix 1.1
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NEPA Process and the Environmental
Document
Any environmental document issued
by the Commission will discuss impacts
that could occur as a result of the
construction and operation of the
1 The appendices referenced in this notice will
not appear in the Federal Register. Copies of the
appendices were sent to all those receiving this
notice in the mail and are available at www.ferc.gov
using the link called ‘‘eLibrary’’. For instructions on
connecting to eLibrary, refer to the last page of this
notice. For assistance, contact FERC at
[email protected] or call toll free, (886)
208–3676 or TTY (202) 502–8659.
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19:13 Oct 25, 2024
Jkt 265001
proposed project under the relevant
general resource areas:
• environmental justice; and
• reliability and safety.
Commission staff will also evaluate
reasonable alternatives to the proposed
project or portions of the project and
make recommendations on how to
lessen or avoid impacts on the various
resource areas. Your comments will
help Commission staff identify and
focus on the issues that might have an
effect on the human environment and
potentially eliminate others from further
study and discussion in the
environmental document.
Following this scoping period,
Commission staff will determine
whether to prepare an Environmental
Assessment (EA) or an Environmental
Impact Statement (EIS). The EA or the
EIS will present Commission staff’s
independent analysis of the issues. If
Commission staff prepares an EA, a
Notice of Schedule for the Preparation
of an Environmental Assessment will be
issued. The EA may be issued for an
allotted public comment period. The
Commission would consider timely
comments on the EA before making its
decision regarding the proposed project.
If Commission staff prepares an EIS, a
Notice of Intent to Prepare an EIS/
Notice of Schedule will be issued,
which will open up an additional
comment period. Staff will then prepare
a draft EIS which will be issued for
public comment. Commission staff will
consider all timely comments received
during the comment period on the draft
EIS and revise the document, as
necessary, before issuing a final EIS.
Any EA or draft and final EIS will be
available in electronic format in the
public record through eLibrary 2 and the
Commission’s natural gas
environmental documents web page
(https://www.ferc.gov/industries-data/
natural-gas/environment/
environmental-documents). If
eSubscribed, you will receive instant
email notification when the
environmental document is issued.
With this notice, the Commission is
asking agencies with jurisdiction by law
and/or special expertise with respect to
the environmental issues of this project
to formally cooperate in the preparation
of the environmental document.3
Agencies that would like to request
cooperating agency status should follow
the instructions for filing comments
2 For instructions on connecting to eLibrary, refer
to the last page of this notice.
3 The Council on Environmental Quality
regulations addressing cooperating agency
responsibilities are at Title 40, Code of Federal
Regulations, Section 1501.8.
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85527
provided under the Public Participation
section of this notice.
Environmental Mailing List
The environmental mailing list
includes: federal, state, and local
government representatives and
agencies; elected officials;
environmental and public interest
groups; Native American Tribes; other
interested parties; and local libraries
and newspapers. This list also includes
all affected landowners (as defined in
the Commission’s regulations) who own
homes within certain distances of
aboveground facilities, and anyone who
submits comments on the project and
includes a mailing address with their
comments. Commission staff will
update the environmental mailing list as
the analysis proceeds to ensure that
Commission notices related to this
environmental review are sent to all
individuals, organizations, and
government entities interested in and/or
potentially affected by the proposed
project.
If you need to make changes to your
name/address, or if you would like to
remove your name from the mailing list,
please complete one of the following
steps:
(1) Send an email to
[email protected]
stating your request. You must include
the docket number CP24–490–000 in
your request. If you are requesting a
change to your address, please be sure
to include your name and the correct
address. If you are requesting to delete
your address from the mailing list,
please include your name and address
as it appeared on this notice. This email
address is unable to accept comments.
OR
(2) Return the attached ‘‘Mailing List
Update Form’’ (appendix 2).
Additional Information
Additional information about the
project is available from the
Commission’s Office of External Affairs,
at (866) 208–FERC, or on the FERC
website at www.ferc.gov using the
eLibrary link. Click on the eLibrary link,
click on ‘‘General Search’’ and enter the
docket number in the ‘‘Docket Number’’
field. Be sure you have selected an
appropriate date range. For assistance,
please contact FERC Online Support at
[email protected] or (866)
208–3676, or for TTY, contact (202)
502–8659. The eLibrary link also
provides access to the texts of all formal
documents issued by the Commission,
such as orders, notices, and
rulemakings.
Public sessions or site visits will be
posted on the Commission’s calendar
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
located at https://www.ferc.gov/newsevents/events along with other related
information.
Dated: October 22, 2024.
Debbie-Anne A. Reese,
Secretary.
[FR Doc. 2024–25002 Filed 10–25–24; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
lotter on DSK11XQN23PROD with NOTICES1
Combined Notice of Filings #1
Take notice that the Commission
received the following electric corporate
filings:
Docket Numbers: EC24–107–000.
Applicants: Split Rail Solar Energy
LLC, Union Electric Company d/b/a
Ameren Missouri.
Description: Supplement to July 30,
2024, Joint Application for
Authorization Under Section 203 of the
Federal Power Act of Split Rail Solar
Energy LLC, et al.
Filed Date: 10/21/24.
Accession Number: 20241021–5133.
Comment Date: 5 p.m. ET 10/31/24.
Docket Numbers: EC25–9–000.
Applicants: Green Country Energy,
LLC, Public Service Company of
Oklahoma.
Description: Joint Application for
Authorization Under Section 203 of the
Federal Power Act of Green Country
Energy, LLC, et al.
Filed Date: 10/15/24.
Accession Number: 20241015–5554.
Comment Date: 5 p.m. ET 12/16/24.
Take notice that the Commission
received the following exempt
wholesale generator filings:
Docket Numbers: EG25–18–000.
Applicants: OneLNG Power, LLC.
Description: OneLNG Power, LLC
submits Notice of Self-Certification of
Exempt Wholesale Generator Status.
Filed Date: 10/22/24.
Accession Number: 20241022–5099.
Comment Date: 5 p.m. ET 11/12/24.
Take notice that the Commission
received the following electric rate
filings:
Docket Numbers: ER16–2449–004;
ER21–628–004.
Applicants: Harry Allen Solar Energy
LLC, Boulder Solar II, LLC.
Description: Supplement to 10/31/
2023 Notice of Change in Status of
Boulder Solar II, LLC et al.
Filed Date: 10/18/24.
Accession Number: 20241018–5224.
Comment Date: 5 p.m. ET 11/8/24.
Docket Numbers: ER21–136–005.
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
Applicants: Flat Ridge 3 Wind Energy,
LLC.
Description: Supplement to 10/31/
2023 Notice of Change in Status of Flat
Ridge 3 Wind Energy, LLC.
Filed Date: 10/18/24.
Accession Number: 20241018–5226.
Comment Date: 5 p.m. ET 11/8/24.
Docket Numbers: ER21–2460–008.
Applicants: New York Independent
System Operator, Inc.
Description: Third Informational
Report Addressing NYISO Efforts to
Improve Ability of Aggregations to
Provide Ancillary Services in
compliance with the Commission’s 04/
20/2023 Order.
Filed Date: 10/21/24.
Accession Number: 20241021–5207.
Comment Date: 5 p.m. ET 11/12/24.
Docket Numbers: ER24–2563–001.
Applicants: Sheetz Energy Inc.
Description: Tariff Amendment:
Sheetz MBRA Tariff to be effective 10/
22/2024.
Filed Date: 10/21/24.
Accession Number: 20241021–5182.
Comment Date: 5 p.m. ET 11/12/24.
Docket Numbers: ER25–172–000.
Applicants: SunZia Transmission,
LLC.
Description: § 205(d) Rate Filing:
Service Agreement No. 4—LGIA with
SunZia Wind North and CAISO to be
effective 12/31/9998.
Filed Date: 10/21/24.
Accession Number: 20241021–5169.
Comment Date: 5 p.m. ET 11/12/24.
Docket Numbers: ER25–173–000.
Applicants: SunZia Transmission,
LLC.
Description: § 205(d) Rate Filing: 2nd
Amended & Restated TSA with SunZia
Wind (SA No. 1) to be effective 12/31/
9998.
Filed Date: 10/21/24.
Accession Number: 20241021–5171.
Comment Date: 5 p.m. ET 11/12/24.
Docket Numbers: ER25–174–000.
Applicants: Tri-State Generation and
Transmission Association, Inc.
Description: § 205(d) Rate Filing:
Mountain Parks Electric, Inc.
Withdrawal Agreement to be effective
12/21/2024.
Filed Date: 10/21/24.
Accession Number: 20241021–5187.
Comment Date: 5 p.m. ET 11/12/24.
Docket Numbers: ER25–175–000.
Applicants: PJM Interconnection,
L.L.C.
Description: § 205(d) Rate Filing:
Notice of Cancellation of ICSA Service
Agreement No. 5365; AB2–160 to be
effective 12/21/2024.
Filed Date: 10/22/24.
Accession Number: 20241022–5013.
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Comment Date: 5 p.m. ET 11/12/24.
Docket Numbers: ER25–176–000.
Applicants: Southwest Power Pool,
Inc.
Description: § 205(d) Rate Filing:
1166R44 Oklahoma Municipal Power
Authority NITSA and NOA to be
effective 10/1/2024.
Filed Date: 10/22/24.
Accession Number: 20241022–5014.
Comment Date: 5 p.m. ET 11/12/24.
Docket Numbers: ER25–177–000.
Applicants: Southwest Power Pool,
Inc.
Description: § 205(d) Rate Filing:
Revisions to Add a Compensation
Mechanism for System Support
Resources to be effective 12/31/9998.
Filed Date: 10/22/24.
Accession Number: 20241022–5017.
Comment Date: 5 p.m. ET 11/12/24.
Docket Numbers: ER25–178–000.
Applicants: WSPP Inc.
Description: § 205(d) Rate Filing: List
of Members Update 2024 to be effective
10/21/2024.
Filed Date: 10/22/24.
Accession Number: 20241022–5021.
Comment Date: 5 p.m. ET 11/12/24.
Docket Numbers: ER25–179–000.
Applicants: AEP Texas Inc.
Description: § 205(d) Rate Filing:
AEPTX-Wichita Solar I Generation
Interconnection Agreement to be
effective 10/2/2024.
Filed Date: 10/22/24.
Accession Number: 20241022–5030.
Comment Date: 5 p.m. ET 11/12/24.
Docket Numbers: ER25–180–000.
Applicants: AEP Texas Inc.
Description: § 205(d) Rate Filing:
AEPTX-Flying Kite Solar Generation
Interconnection Agreement to be
effective 10/2/2024.
Filed Date: 10/22/24.
Accession Number: 20241022–5039.
Comment Date: 5 p.m. ET 11/12/24.
Docket Numbers: ER25–181–000.
Applicants: Southwest Power Pool,
Inc.
Description: § 205(d) Rate Filing:
1637R4 Kansas Electric Power
Cooperative, Inc. NITSA and NOA to be
effective 10/1/2024.
Filed Date: 10/22/24.
Accession Number: 20241022–5073.
Comment Date: 5 p.m. ET 11/12/24.
The filings are accessible in the
Commission’s eLibrary system (https://
elibrary.ferc.gov/idmws/search/
fercgensearch.asp) by querying the
docket number.
Any person desiring to intervene, to
protest, or to answer a complaint in any
of the above proceedings must file in
accordance with Rules 211, 214, or 206
of the Commission’s Regulations (18
E:\FR\FM\28OCN1.SGM
28OCN1
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
CFR 385.211, 385.214, or 385.206) on or
before 5:00 p.m. Eastern time on the
specified comment date. Protests may be
considered, but intervention is
necessary to become a party to the
proceeding.
eFiling is encouraged. More detailed
information relating to filing
requirements, interventions, protests,
service, and qualifying facilities filings
can be found at: http://www.ferc.gov/
docs-filing/efiling/filing-req.pdf. For
other information, call (866) 208–3676
(toll free). For TTY, call (202) 502–8659.
The Commission’s Office of Public
Participation (OPP) supports meaningful
public engagement and participation in
Commission proceedings. OPP can help
members of the public, including
landowners, environmental justice
communities, Tribal members and
others, access publicly available
information and navigate Commission
processes. For public inquiries and
assistance with making filings such as
interventions, comments, or requests for
rehearing, the public is encouraged to
contact OPP at (202) 502–6595 or OPP@
ferc.gov.
Dated: October 22, 2024.
Debbie-Anne A. Reese,
Secretary.
[FR Doc. 2024–24999 Filed 10–25–24; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
[Docket No. RM98–1–000]
Records Governing Off-the-Record
Communications; Public Notice
This constitutes notice, in accordance
with 18 CFR 385.2201(b), of the receipt
of prohibited and exempt off-the-record
communications.
Order No. 607 (64 FR 51222,
September 22, 1999) requires
Commission decisional employees, who
make or receive a prohibited or exempt
off-the-record communication relevant
to the merits of a contested proceeding,
to deliver to the Secretary of the
Commission, a copy of the
communication, if written, or a
summary of the substance of any oral
communication.
Prohibited communications are
included in a public, non-decisional file
associated with, but not a part of, the
decisional record of the proceeding.
Unless the Commission determines that
the prohibited communication and any
responses thereto should become a part
of the decisional record, the prohibited
off-the-record communication will not
be considered by the Commission in
reaching its decision. Parties to a
proceeding may seek the opportunity to
Docket Nos.
respond to any facts or contentions
made in a prohibited off-the-record
communication and may request that
the Commission place the prohibited
communication and responses thereto
in the decisional record. The
Commission will grant such a request
only when it determines that fairness so
requires. Any person identified below as
having made a prohibited off-the-record
communication shall serve the
document on all parties listed on the
official service list for the applicable
proceeding in accordance with Rule
2010, 18 CFR 385.2010.
Exempt off-the-record
communications are included in the
decisional record of the proceeding,
unless the communication was with a
cooperating agency as described by 40
CFR 1501.6, made under 18 CFR
385.2201(e) (1) (v).
The following is a list of off-therecord communications recently
received by the Secretary of the
Commission. Each filing may be viewed
on the Commission’s website at http://
www.ferc.gov using the eLibrary link.
Enter the docket number, excluding the
last three digits, in the docket number
field to access the document. For
assistance, please contact FERC Online
Support at FERCOnlineSupport@
ferc.gov or toll free at (866) 208–3676, or
for TTY, contact (202) 502–8659.
File date
Prohibited:
1. CP16–454–000 .....................................................................................................................
2. CP19–502–000 .....................................................................................................................
Exempt:
1. P–14861–002 ........................................................................................................................
2. P–14861–002 ........................................................................................................................
3. CP16–116–000 .....................................................................................................................
4. CP16–454–000, CP16–455–000, CP20–481–000 ...............................................................
85529
Presenter or requester
10–15–2024
10–17–2024
FERC Staff.1
FERC Staff.2
10–15–2024
10–17–2024
10–22–2024
FERC Staff.3
FERC Staff.4
Kickapoo Traditional Tribe of
Texas.
Kickapoo Traditional Tribe of
Texas.
10–22–2024
1 Emailed
comments dated 10/15/24 from Alejandro Garcia.
comments dated 10/16/24 from David Robinson.
3 Memorandum regarding ex parte communication with Washington State Historic Preservation Office.
4 Memorandum regarding ex parte communication with Washington State Historic Preservation Office on 10/11/24.
2 Emailed
Dated: October 22, 2024.
Debbie-Anne A. Reese,
Secretary.
DEPARTMENT OF ENERGY
[FR Doc. 2024–25001 Filed 10–25–24; 8:45 am]
[Project No. 137–221]
BILLING CODE 6717–01–P
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Federal Energy Regulatory
Commission
Pacific Gas and Electric Company;
Notice of Intent To Prepare an
Environmental Assessment
On November 15, 2023, the Pacific
Gas and Electric Company (licensee)
filed an application for a non-capacity
amendment at the Tiger Creek regulator
dam of the Mokelumne River
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Hydroelectric Project No. 137. The dam
is located on Tiger Creek in Amador
County, California.
The licensee proposes to construct a
new 240-foot-long, 40-foot-wide
concrete spillway and plunge pool at
the right abutment of the Tiger Creek
regulator dam. As part of the proposal,
the licensee would construct a spoil
area, and a temporary and permanent
access road at the dam site which would
be closed to the public during
construction. The licensee also intends
to develop a staging and spoils area on
Doakes Ridge approximately 0.7 miles
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
southwest of the dam site and place a
staging area and concrete batch plant on
state route 88 in Pioneer, California.
State route 88 and Tiger Creek Road
between Pioneer and the dam site
would be used as a haul route. The
existing spillway would be abandoned
in place. The licensee expects
construction to take approximately 2
years.
On July 26, 2024, the Commission
issued a public notice for the proposed
amendment. On August 2, August 5,
and August 20, 2024, the California
Department of Fish and Wildlife, the
California State Water Resources
Control Board, and the U.S. Department
of the Interior filed notices of
intervention, respectively.
This notice identifies Commission
staff’s intention to prepare an
environmental assessment (EA) for the
project.1 The planned schedule for the
completion of the EA is June 18, 2025.
Revisions to the schedule may be made
as appropriate. The EA will be issued
and made available for review by all
interested parties during a 30-day public
comment period. All comments filed on
the EA will be reviewed by staff and
considered in the Commission’s final
decision on the proceeding.
The Commission’s Office of Public
Participation (OPP) supports meaningful
public engagement and participation in
Commission proceedings. OPP can help
members of the public, including
landowners, environmental justice
communities, Tribal members, and
others to access publicly available
information and navigate Commission
processes. For public inquiries and
assistance with making filings such as
interventions, comments, or requests for
rehearing, the public is encouraged to
contact OPP at (202)502–6595 or OPP@
ferc.gov.
Any questions regarding this notice
may be directed to Steven Sachs at 202–
502–8666 or [email protected].
Dated: October 22, 2024.
Debbie-Anne A. Reese,
Secretary.
[FR Doc. 2024–24997 Filed 10–25–24; 8:45 am]
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BILLING CODE 6717–01–P
1 In accordance with the Council on
Environmental Quality’s regulations, the unique
identification number for documents relating to this
environmental review is EAXX–019–20–000–
1729247760. 40 CFR 1501.5(c)(4) (2024).
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ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPPT–2024–0159; FRL–11684–
08–OCSPP]
Certain New Chemicals or Significant
New Uses; Statements of Findings for
August 2024
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
The Toxic Substances Control
Act (TSCA) requires EPA to publish in
the Federal Register a statement of its
findings after its review of certain TSCA
submissions when EPA makes a finding
that a new chemical substance or
significant new use is not likely to
present an unreasonable risk of injury to
health or the environment. Such
statements apply to premanufacture
notices (PMNs), microbial commercial
activity notices (MCANs), and
significant new use notices (SNUNs)
submitted to EPA under TSCA. This
document presents statements of
findings made by EPA on such
submissions during the period from
August 1, 2024 to August 31, 2024.
ADDRESSES: The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPPT–2024–0159, is
available online at https://
www.regulations.gov or in-person at the
Office of Pollution Prevention and
Toxics Docket (OPPT Docket),
Environmental Protection Agency
Docket Center (EPA/DC), West William
Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW, Washington, DC.
The Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The
telephone number for the Public
Reading Room is (202) 566–1744, and
the telephone number for the OPPT
Docket is (202) 566–0280. For the latest
status information on EPA/DC services
and docket access, visit https://
www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: For
technical information contact: Rebecca
Edelstein, New Chemical Division
(7405M), Office of Pollution Prevention
and Toxics, Environmental Protection
Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20460–0001; telephone
number: (202) 564–1667 email address:
[email protected].
For general information contact: The
TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCA-Hotline@
epa.gov.
SUMMARY:
SUPPLEMENTARY INFORMATION:
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I. Executive Summary
A. Does this action apply to me?
This action provides information that
is directed to the public in general.
B. What action is the Agency taking?
This document lists the statements of
findings made by EPA after review of
submissions under TSCA section 5(a)
that certain new chemical substances or
significant new uses are not likely to
present an unreasonable risk of injury to
health or the environment. This
document presents statements of
findings made by EPA during the
reporting period.
C. What is the Agency’s authority for
taking this action?
TSCA section 5(a)(3) requires EPA to
review a submission under TSCA
section 5(a) and make one of several
specific findings pertaining to whether
the substance may present unreasonable
risk of injury to health or the
environment. Among those potential
findings is that the chemical substance
or significant new use is not likely to
present an unreasonable risk of injury to
health or the environment per TSCA
section 5(a)(3)(C).
TSCA section 5(g) requires EPA to
publish in the Federal Register a
statement of its findings after its review
of a submission under TSCA section
5(a) when EPA makes a finding that a
new chemical substance or significant
new use is not likely to present an
unreasonable risk of injury to health or
the environment. Such statements apply
to PMNs, MCANs, and SNUNs
submitted to EPA under TSCA section
5.
Anyone who plans to manufacture
(which includes import) a new chemical
substance for a non-exempt commercial
purpose and any manufacturer or
processor wishing to engage in a use of
a chemical substance designated by EPA
as a significant new use must submit a
notice to EPA at least 90 days before
commencing manufacture of the new
chemical substance or before engaging
in the significant new use.
The submitter of a notice to EPA for
which EPA has made a finding of ‘‘not
likely to present an unreasonable risk of
injury to health or the environment’’
may commence manufacture of the
chemical substance or manufacture or
processing for the significant new use
notwithstanding any remaining portion
of the applicable review period.
D. Does this action have any
incremental economic impacts or
paperwork burdens?
No.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
II. Statements of Findings Under TSCA
Section 5(a)(3)(C)
In this unit, EPA provides the
following information (to the extent that
such information is not claimed as
Confidential Business Information
(CBI)) on the PMNs, MCANs and
SNUNs for which, during this period,
EPA has made findings under TSCA
section 5(a)(3)(C) that the new chemical
substances or significant new uses are
not likely to present an unreasonable
risk of injury to health or the
environment:
The following list provides the EPA
case number assigned to the TSCA
section 5(a) submission and the
chemical identity (generic name if the
specific name is claimed as CBI).
• J–24–0020, Genetically modified
microorganism (Generic Name).
To access EPA’s decision document
describing the basis of the ‘‘not likely to
present an unreasonable risk’’ finding
made by EPA under TSCA section
5(a)(3)(C), look up the specific case
number at https://www.epa.gov/
reviewing-new-chemicals-under-toxic-
substances-control-act-tsca/chemicalsdetermined-not-likely.
Authority: 15 U.S.C. 2601 et seq.
Dated: October 22, 2024.
Lisa Christ,
Acting Director, New Chemicals Division,
Office of Pollution Prevention and Toxics.
[FR Doc. 2024–24945 Filed 10–25–24; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPP–2017–0751; FRL–12313–01–
OCSPP]
Pesticide Registration Review;
Decisions and Case Closures for
Several Pesticides; Notice of
Availability
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
This notice announces the
availability of EPA’s interim registration
review decision for chlorine gas. In
addition, this notice announces the
closure of the registration review case
SUMMARY:
85531
for metschnikowia fructicola strain
NRRL Y–27328 because the last U.S.
registrations for this pesticide have been
canceled.
FOR FURTHER INFORMATION CONTACT:
For pesticide specific information,
contact: The Chemical Review Manager
for the pesticide of interest identified in
Table 1 of Unit I.
For general information on the
registration review program, contact:
Melanie Biscoe, Pesticide Re-Evaluation
Division (7508P), Office of Pesticide
Programs, Environmental Protection
Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20460–0001; telephone
number: (202) 566–0701; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Purpose of This Notice
Pursuant to 40 CFR 155.58(c), this
notice announces the availability of
EPA’s interim registration review
decision for the pesticide shown in
Table 1. The interim registration review
decision is supported by rationales
included in the docket established for
the chemical.
TABLE 1—INTERIM REGISTRATION REVIEW DECISIONS BEING ISSUED
Chemical review manager and contact
information
Registration review case name and number
Docket ID No.
Chlorine Gas ......................................................
EPA–HQ–OPP–2010–0242 .............................
Erin Dandridge, [email protected],
(202) 566–0635.
Case Number 4022 ............................................
This notice also announces the
closure of the registration review case
for Metschnikowia fructicola strain
NRRL Y–27328 (Case Number 6531)
because the last U.S. registrations for
these pesticides have been canceled.
There is no docket number established
for this registration review case as all
products were cancelled in Case 6531
before the registration review
assessments were initiated.
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II. Background
EPA is conducting its registration
review of the chemical listed in Table 1
of Unit I pursuant to the Federal
Insecticide, Fungicide, and Rodenticide
Act (FIFRA) section 3(g) (7 U.S.C.
136a(g)) and the Procedural Regulations
for Registration Review at 40 CFR part
155, subpart C. FIFRA section 3(g)
provides, among other things, that
pesticide registrations are to be
reviewed every 15 years. Consistent
with 40 CFR 155.57, in its final
registration review decision, EPA will
ultimately determine whether a
pesticide continues to meet the
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19:13 Oct 25, 2024
Jkt 265001
registration standard in FIFRA section
3(c)(5) (7 U.S.C. 136a(c)(5)). As part of
the registration review process, the
Agency has completed interim or final
registration review decisions for the
pesticide in Table 1 of Unit I.
Prior to completing the interim
registration review decision in Table 1
of Unit I, EPA posted the proposed
interim decision for the chemical and
invited the public to submit any
comments or new information,
consistent with 40 CFR 155.58(a). EPA
considered and responded to any
comments or information received
during these public comment periods in
the respective interim decision or final
registration review decisions.
For additional background on the
registration review program, see: https://
www.epa.gov/pesticide-reevaluation.
Authority: 7 U.S.C. 136 et seq.
Dated: October 22, 2024.
Jean Anne Overstreet,
Director, Pesticide Re-Evaluation Division,
Office of Pesticide Programs.
[FR Doc. 2024–25004 Filed 10–25–24; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPP–2017–0720; FRL–12312–01–
OCSPP]
Pesticide Registration Review;
Pesticide Dockets Opened for Review
and Comment; Notice of Availability
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
This notice announces the
availability of the EPA’s work plans and
registration review case dockets for the
following chemicals: capsaicin and
related capsaicinoids; cis-jasmone;
cyantraniliprole; GS-omega/kappa-HxtxHv1a; male sea lamprey mating
pheromone [3-Ketopetromyzonol-24sulfate, ammonium salt]; methyl
dihydrojasmolate (cyclopentaneacetic
acid, 3- hydroxy- 2-pentyl-, methyl
ester); methyl jasmonate; natamycin;
prohydrojasmon (PDJ), propyl-3-oxo-2pentylcyclo-pentylacetate; and tobacco
mild green mosaic tobamovirus strain
U2. EPA is opening a 60-day public
SUMMARY:
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
comment period for these work plans
and case dockets.
Comments must be received on
or before December 27, 2024.
DATES:
Submit your comments, to
the docket identification (ID) number for
the specific pesticide of interest
provided in Table 1 of Unit I, by one of
the following methods:
• Federal eRulemaking Portal at
https://www.regulations.gov. Follow the
online instructions for submitting
comments. Do not submit electronically
any information you consider to be
Confidential Business Information (CBI)
ADDRESSES:
or other information whose disclosure is
restricted by statute.
• Mail: https://www.epa.gov/dockets/
where-send-comments-epa-dockets.
OPP Docket, Environmental Protection
Agency Docket Center (EPA/DC),
(28221T), 1200 Pennsylvania Ave., NW,
Washington, DC 20460–0001.
FOR FURTHER INFORMATION CONTACT:
For pesticide specific information,
contact: The Chemical Review Manager
for the pesticide of interest identified in
Table 1 of Unit I.
For general questions on the
registration review program, contact:
Melanie Biscoe, Pesticide Re-Evaluation
Division (7508P), Office of Pesticide
Programs, Environmental Protection
Agency, 1200 Pennsylvania Ave., NW,
Washington, DC 20460–0001; telephone
number: 202–566–0701; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Purpose of This Notice
Pursuant to 40 CFR 155.50(b), this
notice announces the availability of the
EPA’s work plans and registration
review case dockets for the pesticides
shown in Table 1 and opens a 60-day
public comment period on the work
plans and case dockets.
TABLE 1—WORK PLANS BEING MADE AVAILABLE FOR PUBLIC COMMENT
Registration review case name and No.
Docket ID No.
Chemical review manager and contact
information
Capsaicin and Related Capsaicinoids Case No. 4018 ..............................................
EPA–HQ–OPP–
2024–0396.
Cis-jasmone Case Number 6336 ...............................................................................
EPA–HQ–OPP–
2024–0219.
EPA–HQ–OPP–
2024–0106.
EPA–HQ–OPP–
2024–0280.
EPA–HQ–OPP–
2024–0382.
EPA–HQ–OPP–
2024–0219.
EPA–HQ–OPP–
2024–0219.
EPA–HQ–OPP–
2024–0132.
EPA–HQ–OPP–
2024–0219.
EPA–HQ–OPP–
2024–0263.
Bibiana Oe, [email protected], (202)
566–1538.
Kendall Ziner,[email protected],
(202) 566–0621.
Joseph Mabon, [email protected],
(202) 566–1535.
Rachel Fletcher, fletcher.rachel@
epa.gov, (202) 566–2354.
Michael Glikes, [email protected],
(202) 566–1461.
Susanne Cerrelli, cerrelli.susanne@
epa.gov, (202) 566–1516.
Joseph Mabon,[email protected],
(202) 566–1535.
Joseph Mabon, [email protected],
(202) 566–1535.
Joseph Mabon, [email protected],
(202) 566–1535.
Joseph Mabon, [email protected],
(202) 566–1535.
Bibiana Oe, [email protected], (202)
566–1538.
Cyantraniliprole Case Number 5096 ..........................................................................
GS-omega/kappa-Hxtx-Hv1a Case Number 6602 .....................................................
Male Sea Lamprey Mating pheromone, [3-Ketopetromyzonol-24-sulfate, ammonium salt] Case Number 6325.
Methyl Dihydrojasmolate (Cyclopentaneacetic acid, 3- hydroxy- 2-pentyl-, methyl
ester) Case Number 6355.
Methyl jasmonate Case Number 6319 .......................................................................
Natamycin Case Number 6316 ..................................................................................
Prohydrojasmon (PDJ), propyl-3-oxo-2-pentylcyclo-pentylacetate Case Number
6322.
Tobacco mild green mosaic tobamovirus strain U2 Case Number 6533 ..................
lotter on DSK11XQN23PROD with NOTICES1
II. Background
EPA is conducting its registration
review of the chemicals listed in Table
1 of Unit I pursuant to the Federal
Insecticide, Fungicide, and Rodenticide
Act (FIFRA) section 3(g) (7 U.S.C.
136a(g)) and the Procedural Regulations
for Registration Review at 40 CFR part
155, subpart C. FIFRA section 3(g)
provides, among other things, that
pesticide registrations are to be
reviewed every 15 years. Consistent
with 40 CFR 155.57, in its final
registration review decision, EPA will
ultimately determine whether a
pesticide continues to meet the
registration standard in FIFRA section
3(c)(5) (7 U.S.C. 136a(c)(5)).
Pursuant to 40 CFR 155.50, EPA
initiates a registration review by
establishing a public docket for a
pesticide registration review case.
Registration review dockets contain
information that will assist the public in
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19:13 Oct 25, 2024
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understanding the types of information
and issues that the Agency has consider
during registration review. Consistent
with 40 CFR 155.50(a), these dockets
may include information from the
Agency’s files including, but not limited
to, an overview of the registration
review case status, a list of current
product registrations and registrants,
any Federal Register notices regarding
any pending registration actions, any
Federal Register notices regarding
current or pending tolerances, risk
assessments, bibliographies concerning
current registrations, summaries of
incident data, and any other pertinent
data or information. EPA includes in
these dockets a Preliminary Work Plan
(PWP), and in some cases a continuing
work plan (CWP), summarizing
information EPA has on the pesticide
and the anticipated path forward.
Consistent with 40 CFR 155.50(b),
EPA provides for at least a 60-day
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Fmt 4703
Sfmt 4703
public comment period on work plans
and registration review dockets. This
comment period is intended to provide
an opportunity for public input and a
mechanism for initiating any necessary
changes to a pesticide’s workplan.
During this public comment period, the
Agency is asking that interested persons
identify any additional information they
believe the agency should consider
during the registration reviews of these
pesticides. The Agency identifies in
each docket the areas where public
comment is specifically requested,
though comment in any area is
welcome.
For additional background on the
registration review program, see: https://
www.epa.gov/pesticide-reevaluation.
III. What should I consider as I prepare
a comment for EPA?
This notice is directed to the public
in general and may be of interest to a
wide range of stakeholders including
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
environmental, human health, farm
worker, and agricultural advocates; the
chemical industry; pesticide users; and
members of the public interested in the
sale, distribution, or use of pesticides.
Since others also may be interested, the
Agency has not attempted to describe all
the specific entities that may be affected
by this action. If you have any questions
regarding the applicability of this action
to a particular entity, consult the
Chemical Review Manager identified in
Table 1 of Unit I. In submitting a
comment to EPA, please consider the
following:
1. Submitting CBI. Do not submit this
information to the EPA through
regulations.gov or email. Clearly mark
the part or all of the information that
you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to the EPA, mark the outside
of the disk or CD–ROM as CBI and then
identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for preparing your comments.
When preparing and submitting your
comments, see the commenting tips at
https://www.epa.gov/dockets/
commenting-epa-dockets.
3. Environmental justice. EPA seeks to
achieve environmental justice, the fair
treatment and meaningful involvement
of any group, including minority and/or
low-income populations, in the
development, implementation, and
enforcement of environmental laws,
regulations, and policies. To help
address potential environmental justice
issues, the Agency seeks information on
any groups or segments of the
population who, as a result of their
location, cultural practices, or other
factors, may have atypical or
disproportionately high and adverse
human health impacts or environmental
effects from exposure to the pesticides
discussed in this document, compared
to the general population.
All comments should be submitted
using the methods in ADDRESSES and
must be received by the EPA on or
before the closing date. These comments
will become part of the docket for the
pesticides included in Table 1 of Unit
I. The Agency will consider all
comments received by the closing date
and may respond to comments in a
‘‘Response to Comments Memorandum’’
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19:13 Oct 25, 2024
Jkt 265001
in the docket or the Final Work Plan
(FWP), as appropriate.
(Authority: 7 U.S.C. 136 et seq.)
Dated: October 22, 2024.
Jean Overstreet,
Director, Pesticide Re-evaluation Division,
Office of Pesticide Programs.
[FR Doc. 2024–24947 Filed 10–25–24; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPPT–2021–0245; FRL—12378–
01–OMS]
Agency Information Collection
Activities; Submission to the Office of
Management and Budget for Review
and Approval; Comment Request;
EPA’s Safer Choice Program Product
and Partner Recognition Activities
(Renewal)
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
The Environmental Protection
Agency (EPA) has submitted an
information collection request (ICR),
EPA’s Safer Choice Program Product
and Partner Recognition Activities (EPA
ICR Number 2692.02, OMB Control
Number 2070–0221) to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act. This is a
proposed revision of the ICR, which is
currently approved through May 31,
2025. Public comments were previously
requested via the Federal Register on
May 8, 2024 during a 60-day comment
period. This notice allows for an
additional 30 days for public comments.
DATES: Comments may be submitted on
or before November 27, 2024.
ADDRESSES: Submit your comments,
referencing Docket ID Number EPA–
HQ–OPPT–2021–0245, to EPA online
using www.regulations.gov (our
preferred method) or by mail to: EPA
Docket Center, Environmental
Protection Agency, Mail Code 2822T,
1200 Pennsylvania Ave. NW,
Washington, DC 20460.
EPA’s policy is that all comments
received will be included in the public
docket without change including any
personal information provided, unless
the comment includes profanity, threats,
information claimed to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute.
Submit written comments and
recommendations to OMB for the
proposed information collection within
SUMMARY:
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85533
30 days of publication of this notice to
www.reginfo.gov/public/do/PRAMain.
Find this particular information
collection by selecting ‘‘Currently under
30-day Review—Open for Public
Comments’’ or by using the search
function.
FOR FURTHER INFORMATION CONTACT:
Katherine Sleasman, Office of Program
Support (7602M), Office of Chemical
Safety and Pollution Prevention,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC
20460; telephone number: (202) 566–
1204; email address:
[email protected].
SUPPLEMENTARY INFORMATION: This is a
proposed revision of the ICR, which is
currently approved through May 31,
2025. An agency may not conduct or
sponsor and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number.
Public comments were previously
requested via the Federal Register on
May 8, 2024, during a 60-day comment
period (89 FR 38895). This notice allows
for an additional 30 days for public
comments. Supporting documents,
which explain in detail the information
the information that the EPA will be
collecting, are available in the public
docket for this ICR. The docket can be
viewed online at www.regulations.gov
or in person at the EPA Docket Center,
WJC West, Room 3334, 1301
Constitution Ave. NW, Washington, DC.
The telephone number for the Docket
Center is 202–566–1744. For additional
information about EPA’s public docket,
visit http://www.epa.gov/dockets.
Abstract: This ICR renewal covers the
information collection activities
associated with the reporting and
recordkeeping requirements for
individuals, businesses, organizations,
and government entities participating in
or collaborating with EPA’s Safer Choice
and Design for the Environment (DfE)
programs (referred to collectively as
‘‘the Safer Choice program’’ in this
document unless otherwise indicated).
This ICR also includes additional
sections for the Safer Choice cleaning
service certification and third-party
profiler (TPP) solicitations. These
components are designed to:
• Improve data efficiency by
electronic data collection via a cloudbased Salesforce system called the Safer
Choice Community;
•Monitor the public’s awareness of
the Safer Choice program and the Safer
Choice label and DfE logo;
• Clarify the Safer Choice Partner of
the Year Awards application process
and form;
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
• Describe information collected
through the new Safer Choice cleaning
service certification program; and,
• Clarify the TPP application process
and form.
Form numbers: 9600–017, 9600–018,
9600–019, 9600–020, 9600–021, 9600–
022, 9600–023, 9600–058, 9600–059,
9600–060, 9600–061.
Respondents/affected entities: Entities
potentially affected by this ICR include
a wide range of sectors that
participation in the Safer Choice
Program including chemical
manufacturers, paint and coating
manufacturing, merchant wholesalers,
janitorial services, and environmental
consulting firms.
Respondent’s obligation to respond:
Voluntary.
Estimated number of respondents:
4,539 (total).
Frequency of response: On occasion.
Total estimated burden: 4,511 hours
(per year). Burden is defined at 5 CFR
1320.3(b).
Total estimated cost: $854,358 (per
year), which includes $553,850
annualized capital or operation &
maintenance costs.
Changes in the estimates: There is an
increase of 1,279 hours in the total
estimated respondent burden compared
with the ICR currently approved by
OMB. This increase, which is discussed
in more detail in the ICR, is due to an
increase in annual consumer online
surveys, which increased from 2,000 to
4,000 annually, the inclusion of a new
program, the ‘‘Safer Choice Cleaning
Service Certification,’’ and the inclusion
of the TPP solicitation process. These
changes qualify as a program change.
Courtney Kerwin,
Director, Information Engagement Division.
[FR Doc. 2024–24986 Filed 10–25–24; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
lotter on DSK11XQN23PROD with NOTICES1
[EPA–OEJECR–2024–0479; FRL—12368–
01–OMS]
Agency Information Collection
Activities; Submission to the Office of
Management and Budget for Review
and Approval; Comment Request;
Environmental Justice Thriving
Communities Grantmaking Program:
Applications for Subawards—
November Launch
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
The Environmental Protection
Agency (EPA) has submitted an
SUMMARY:
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19:13 Oct 25, 2024
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information collection request (ICR),
Environmental Justice Thriving
Communities Grantmaking Program:
Applications for Subawards—November
Launch (EPA ICR Number 7790.01,
OMB Control Number 2035–NEW) to
the Office of Management and Budget
(OMB) for review and approval in
accordance with the Paperwork
Reduction Act. This is a request for
emergency clearance of a new
collection. A two-week public comment
period has been initiated via a notice in
the Federal Register.
DATES: Comments may be submitted on
or before November 12, 2024.
ADDRESSES: Submit your comments,
referencing Docket ID Number EPA–
OEJECR–2024–0479 or by mail to: EPA
Docket Center, Environmental
Protection Agency, Mail Code 28221T,
1200 Pennsylvania Ave. NW,
Washington, DC 20460. EPA’s policy is
that all comments received will be
included in the public docket without
change including any personal
information provided, unless the
comment includes profanity, threats,
information claimed to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute.
FOR FURTHER INFORMATION CONTACT:
Aarti Iyer, Office of the Chief Financial
Officer, Mail Code 2710A,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC
20460; telephone number: 202–564–
0214; email address: [email protected].
SUPPLEMENTARY INFORMATION: This is a
request for approval of a new collection.
An agency may not conduct or sponsor
and a person is not required to respond
to a collection of information unless it
displays a currently valid OMB control
number.
This notice allows for a 14 day public
comment period. Supporting
documents, which explain in detail the
information that the EPA will be
collecting, are available in the public
docket for this ICR. The docket can be
viewed online at www.regulations.gov
or in person at the EPA Docket Center,
WJC West, Room 3334, 1301
Constitution Ave. NW, Washington, DC.
The telephone number for the Docket
Center is 202–566–1744. For additional
information about EPA’s public docket,
visit http://www.epa.gov/dockets.
Abstract: To meet the goals and
objectives that demonstrate the U.S.
Environmental Protection Agency
(EPA’s) and the Administration’s
commitment to achieving
environmental justice and embedding
environmental justice into Agency
programs, the Environmental Justice
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Thriving Communities Grantmaking
Program provides about $600 million in
11 cooperative agreements funding to
‘‘Grantmakers’’ who will function as
pass-through entities for the
Environmental Justice Thriving
Communities Subgrants (2 CFR parts
200 and 1500). Each Grantmaker will
collaborate with EPA to design and
build their own processes to receive and
evaluate applications to fund the initial
development of community-led
environmental justice projects. With
this Information Collection Request
(ICR), EPA seeks emergency clearance
by October 31, 2024 for six Grantmakers
to solicit applications for their first
round of subgrants to be launched in
November 2024.
This is the third of three related
Grantmaker ICRs submitted on an
emergency basis (see also 2090–0035
and 2090–0036). EPA cannot reasonably
comply with the normal clearance
procedures because subaward programs
must be launched within 3 months,
which does not allow sufficient time to
obtain PRA clearance using the standard
ICR process. Collection of the
information requested under this
emergency clearance (i.e., applications)
is essential for the Grantmakers to have
a mechanism for selecting and
distributing subaward grants to fund
environmental justice projects in
underserved communities, thus
fulfilling the central objective of the
program.
This emergency clearance will cover
the first round of subaward applications
solicited by six Grantmakers in
November 2024. Subsequent rounds of
applications will be authorized via a
Standard ICR package for the
Grantmaking Program that will be
submitted for review via the standard
ICR approval process.
Form Numbers: None.
Respondents/affected entities:
Respondents will include entities who
are eligible to receive subawards,
including community based nonprofit
organizations, Puerto Rico, U.S.
Territories and Freely Associated States,
Native American organizations, local
governments, and institutions of higher
education.
Respondent’s obligation to respond:
Voluntary.
Estimated number of respondents:
7,496 (total).
Frequency of response: Once.
Total estimated burden: 13,622 hours
(total). Burden is defined at 5 CFR
1320.03(b).
Total estimated cost: $897,264.38
(total), which includes $178,057.92
annualized capital or operation &
maintenance costs.
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Requested approval date: October 31,
2024.
Courtney Kerwin,
Director, Information Engagement Division.
[FR Doc. 2024–24985 Filed 10–25–24; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OAR–2021–0643; FRL–12136–01–
OAR]
Phasedown of Hydrofluorocarbons:
Notice of Information Availability for
Regulations Implementing the
American Innovation and
Manufacturing Act
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
The purpose of this notice is
to alert stakeholders that the U.S.
Environmental Protection Agency (EPA)
has published frequently asked
questions related to the regulations
implementing the American Innovation
and Manufacturing Act. While the
questions broadly cover topics on
hydrofluorocarbons, the Act itself, and
the three new programs established
under the Act, the majority of these new
and updated frequently asked question
are related to the Technology
Transitions program restrictions on the
use of certain hydrofluorocarbons. The
Agency has published and continues to
update these frequently asked questions
in the Frequent Questions on the
Phasedown of Hydrofluorocarbons web
area and in the existing rulemaking
docket.
DATES: October 28, 2024.
FOR FURTHER INFORMATION CONTACT:
Allison Cain, U.S. Environmental
Protection Agency, Stratospheric
Protection Division, telephone number:
202–564–1566; or email address:
[email protected]. You may also
visit EPA’s website at https://
www.epa.gov/climate-hfcs-reduction for
further information.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
I. Background
The American Innovation and
Manufacturing (AIM) Act of 2020 was
enacted on December 27, 2020, and
codified at 42 U.S.C. 7675. The AIM Act
authorizes EPA to address climatedamaging hydrofluorocarbons (HFCs) by
providing new authorities in three main
areas: to phase down the production
and consumption of listed HFCs,
manage these HFCs and their
substitutes, and facilitate the transition
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19:13 Oct 25, 2024
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to next-generation technologies through
sector-based restrictions. Since the AIM
Act was enacted, EPA has finalized a
number of rulemakings that implement
the AIM Act through three regulatory
programs: the HFC Allowance
Allocation Program, the Technology
Transitions Program, and the Emissions
Reduction and Reclamation Program.
EPA has provided information to
stakeholders about these three programs
through our frequently asked questions
web page.
The majority of the questions and
responses relate to the Technology
Transitions final rule published on
October 24, 2023 (88 FR 73098). This
rule facilitates sector-based transitions
to next-generation technologies, as
specified in the AIM Act. The rule
limits the use of HFCs in specific
technology sectors and subsectors, such
as foams, aerosols, and refrigeration, air
conditioning, and heat pumps. In most
subsectors, EPA set a maximum global
warming potential (GWP) limit on HFCs
or HFC blends that can be used in new
products and equipment. In a few
subsectors, EPA listed the specific HFCs
or HFC blends that are restricted.
Compliance dates and GWP limits vary
based on sector and subsector. The rule
requires that new products and
components using HFCs be labeled and
that companies that manufacture or
import such products or components
using HFCs report information to EPA.
Since the publication of the various
AIM Act rulemakings, EPA has posted
information for stakeholders in
question-and-answer form to help
stakeholders understand key aspects of
these the rules across regulatory
programs. To maintain transparency and
ensure consistency, EPA has been
providing answers to common
stakeholder inquiries in the form of
frequently asked questions.
II. What information is available and
where is it located?
EPA has published these frequently
asked questions in the Frequent
Questions on the Phasedown of
Hydrofluorocarbons web page, available
at: https://www.epa.gov/climate-hfcsreduction/frequent-questionsphasedown-hydrofluorocarbons. EPA
has also entered a document with the
same title and content as the web page
noted above in the rulemaking docket
titled ‘‘Restrictions on Certain Uses of
Hydrofluorocarbons under Subsection
(i) of the American Innovation and
Manufacturing Act.’’ This docket can be
accessed on Regulations.gov using
Docket ID No. EPA–HQ–OAR–2021–
0643. EPA intends to update the list of
questions and answers on the website
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85535
and in the docket periodically and may
not issue a notice in the Federal
Register each time that it does so.
Cynthia A. Newberg,
Director, Stratospheric Protection Division.
[FR Doc. 2024–24929 Filed 10–25–24; 8:45 am]
BILLING CODE 6560–50–P
EXECUTIVE OFFICE OF THE
PRESIDENT
Office of National Drug Control Policy
Designation of Five Areas as High
Intensity Drug Trafficking Areas
Office of National Drug Control
Policy (ONDCP), Executive Office of the
President.
ACTION: Notice of five High Intensity
Drug Trafficking Areas (HIDTA)
designations.
AGENCY:
The Director of the Office of
National Drug Control Policy designated
five additional areas as HIDTAs.
FOR FURTHER INFORMATION CONTACT:
Questions regarding this notice should
be directed to Shannon Kelly, National
HIDTA Director, ONDCP, Executive
Office of the President, Washington, DC
20503; (202) 841–5240.
SUPPLEMENTARY INFORMATION: The new
areas are (1) Yavapai County in Arizona
as part of the Arizona HIDTA; (2)
Kankakee County in Illinois as part of
the Chicago HIDTA; (3) Rensselaer
County in New York as part of the New
York/New Jersey HIDTA; (4) Beltrami
County in Minnesota as part of the
North Central HIDTA; and (5) Stearns
County in Minnesota as part of the
North Central HIDTA.
Authority: 21 U.S.C. 1706(b)(1).
SUMMARY:
Dated: October 22, 2024.
Brian Skinner,
General Counsel.
[FR Doc. 2024–24949 Filed 10–25–24; 8:45 am]
BILLING CODE 3280–F5–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
FDIC Advisory Committee on
Economic Inclusion; Notice of Meeting
Federal Deposit Insurance
Corporation (FDIC).
ACTION: Notice of open meeting.
AGENCY:
In accordance with the
Federal Advisory Committee Act, notice
is hereby given of a meeting of the FDIC
Advisory Committee on Economic
Inclusion. The Advisory Committee will
provide advice and recommendations
SUMMARY:
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on initiatives to expand access to
banking services by underserved
populations. The meeting is open to the
public. The public’s means to observe
this meeting of the Advisory Committee
on Economic Inclusion will be both inperson and via a Webcast live on the
internet. In addition, the meeting will be
recorded and subsequently made
available on-demand approximately two
weeks after the event. To view the live
event, visit http://
fdic.windrosemedia.com.
Dated at Washington, DC, on October 23,
2024.
James P. Sheesley,
Assistant Executive Secretary.
Wednesday, November 13, 2024,
from 9 a.m. to 4 p.m.
Office of Federal High-Performance
Green Buildings; Green Building
Advisory Committee; Request for
Membership Nominations
DATES:
The meeting will be held in
the FDIC Board Room on the 6th floor
of the FDIC Building located at 550 17th
Street NW, Washington, DC.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Requests for further information
concerning the meeting may be directed
to Debra A. Decker, Committee
Management Officer of the FDIC at (202)
898–8748.
lotter on DSK11XQN23PROD with NOTICES1
SUPPLEMENTARY INFORMATION:
Agenda: The agenda will include
updates from Committee members about
key challenges facing their communities
or organizations. There will be
presentations and panel discussions on
qualitative research regarding consumer
perceptions of banks and non-bank
financial services firms, the FDIC’s
proposed rulemaking on recordkeeping
for custodial deposit accounts with
transactional features, as well as a
review of results from the 2023 FDIC
National Survey of the Unbanked and
Underbanked Households. The agenda
is subject to change. Any changes to the
agenda will be announced at the
beginning of the meeting.
Type of Meeting: The meeting will be
open to the public, limited only by the
space available on a first-come, firstserved basis. For security reasons,
members of the public will be subject to
security screening procedures and must
present a valid photo identification to
enter the building. Observers requiring
auxiliary aids (e.g., sign language
interpretation) for this meeting should
email [email protected] to
make necessary arrangements. This
meeting will also be Webcast live via
the internet at http://
fdic.windrosemedia.com. To view the
recording, visit http://
fdic.windrosemedia.com/
index.php?category=Advisory+
Committee+on+Economic+Inclusion++(Come-IN). Written statements may be
filed with the committee before or after
the meeting.
Federal Deposit Insurance Corporation.
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
[FR Doc. 2024–25022 Filed 10–25–24; 8:45 am]
BILLING CODE 6714–01–P
GENERAL SERVICES
ADMINISTRATION
[Notice MG–2024–03; Docket No. 2024–
0002; Sequence No. 19]
Office of Government-wide
Policy, General Services Administration
(GSA).
ACTION: Notice of request for
membership nominations.
AGENCY:
This notice invites qualified
candidates to apply for an appointment
to serve as a member of GSA’s Green
Building Advisory Committee. The
Green Building Advisory Committee
provides advice to GSA as a statutorily
(see below for citations) required
Federal advisory committee. This is a
competitive process for multiple open
membership seats.
DATES: All nominations must be
submitted to [email protected]
by 5:00 p.m., Eastern Time (ET), by
November 27, 2024.
FOR FURTHER INFORMATION CONTACT: Mr.
Bryan Steverson, Office of Federal HighPerformance Green Buildings, GSA, at
[email protected] or 202–501–
6115.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Background
The Administrator of the GSA
established the Green Building Advisory
Committee (hereafter, ‘‘the Committee’’)
on June 20, 2011 (76 FR 118) pursuant
to section 494 of the Energy
Independence and Security Act of 2007
(42 U.S.C. 17123, or EISA), in
accordance with the provisions of the
Federal Advisory Committee Act
(FACA), as amended (5 U.S.C. 1001 et
seq.). Under this authority, the
Committee advises GSA on how the
Office of Federal High-Performance
Green Buildings can most effectively
accomplish its mission. Information
about this Office is available online at
https://www.gsa.gov/hpb, and
information about the Committee may
be found at https://www.gsa.gov/gbac.
EISA requires the Committee to be
represented by specific categories of
members as well as ‘‘other relevant
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Fmt 4703
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agencies and entities, as determined by
the Federal Director’’ (EISA
§ 494(b)(1)(B)). The specific categories of
members include:
‘‘(i) State and local governmental
green building programs;
(ii) Independent green building
associations or councils;
(iii) Building experts, including
architects, material suppliers, and
construction contractors;
(iv) Security advisors focusing on
national security needs, natural
disasters, and other dire emergency
situations;
(v) Public transportation industry
experts; and
(vi) Environmental health experts,
including those with experience in
children’s health.’’
Member Responsibilities
New Committee members will be
appointed to a three year term.
Membership is limited to the specific
individuals appointed and is nontransferrable. Committee members are
expected to personally attend all
meetings, review all Committee
materials, and actively provide their
advice and input on topics covered by
the Committee. Committee members
will not receive compensation, nor will
they receive travel reimbursements from
the Government except where a need
has been demonstrated and funds are
available.
Request for Membership Nominations
This notice provides an opportunity
for individuals, or others on their
behalf, to present their qualifications to
serve as a member on the Committee.
GSA values and welcomes diversity. In
an effort to obtain nominations of
diverse candidates, GSA encourages
nominations from people of all
communities, identities, races,
ethnicities, backgrounds, abilities,
cultures, and beliefs, including from
underserved communities and all
geographic locations of the United
States of America. No person appointed
to serve in an individual capacity shall
be a federally registered lobbyist in
accordance with the Presidential
Memorandum ‘‘Lobbyists on Agency
Boards and Commissions’’ (June 18,
2010) and OMB Final Guidance
published in the Federal Register on
October 5, 2011 and revised on August
13, 2014.
Nomination Process for Advisory
Committee Appointment
Individuals may nominate themselves
or others. All nominees should have:
• At least 5 years of high-performance
green building experience, which may
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
include a combination of project-based,
research and policy experience.
• Academic degrees, certifications
and/or training demonstrating green
building and related sustainability and
real estate expertise;
• Knowledge of Federal sustainability
and energy laws and programs;
• Proven ability to work effectively
with a diverse group of professionals in
a collaborative, multidisciplinary
environment.
• Qualifications appropriate to a
specific statutory category of members
listed above.
A nomination package shall include
the following information for each
nominee:
(1) A letter of nomination stating the
name, title and organization of the
nominee, nominee’s field(s) of expertise,
specific qualifications to serve on the
Committee, and description of interest
and qualifications;
(2) A professional resume or CV; and
(3) Complete contact information
including name, return address, email
address, and daytime telephone number
of the nominee and nominator.
GSA reserves the right to choose
Committee members based on
qualifications, experience, Committee
balance, statutory requirements and all
other factors deemed critical to the
success of the Committee. Candidates
under consideration may be asked to
provide specific financial information to
ensure that the interests and affiliations
of advisory committee members are
reviewed for conformance with
applicable conflict of interest statutes
and other Federal ethics rules.
Kinga Porst Hydras,
Acting Federal Director, Office of Federal
High-Performance Green Buildings, Office of
Government-Wide Policy, General Services
Administration.
[FR Doc. 2024–24971 Filed 10–25–24; 8:45 am]
BILLING CODE 6820–14–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Disease Control and
Prevention
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[Docket Number CDC–2024–0085, NIOSH–
153–F]
Request for Public Comment on the
Draft Skin Notation Profiles: Allyl
Alcohol, Formamide, Formic Acid,
Phenothiazine, and Picric Acid
Centers for Disease Control and
Prevention (CDC), Department of Health
and Human Services (HHS).
ACTION: Request for comment.
AGENCY:
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19:13 Oct 25, 2024
Jkt 265001
The National Institute for
Occupational Safety and Health
(NIOSH) in the Centers for Disease
Control and Prevention (CDC), an
Operating Division of the Department of
Health and Human Services (HHS),
requests public comment on the draft
Skin Notation Profiles: Allyl alcohol,
Formamide, Formic Acid,
Phenothiazine, and Picric Acid.
DATES: Electronic or written comments
must be received by December 27, 2024.
ADDRESSES: You may submit comments,
identified by docket number CDC–
2024–0085 and docket number NIOSH–
153–F, by either of the following
methods:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: National Institute for
Occupational Safety and Health, NIOSH
Docket Office, 1090 Tusculum Avenue,
MS C–34, Cincinnati, OH 45226–1998.
Instructions: All information received
in response to this notice must include
the agency name and docket number
(CDC–2024–0085; NIOSH–153–F). All
relevant comments, including any
personal information provided, will be
posted without change to https://
www.regulations.gov. Do not submit
comments by email. CDC does not
accept comments by email. For access to
the docket to read background
documents or comments received, go to
https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Naomi Hudson, DrPH, National Institute
for Occupational Safety and Health, MS
C–15, 1090 Tusculum Avenue,
Cincinnati, OH 45226–1998. Telephone:
(513) 533–8388.
SUPPLEMENTARY INFORMATION: NIOSH is
requesting public comment on draft
Skin Notation Profile documents for the
chemicals Allyl alcohol, Formamide,
Formic Acid, Phenothiazine, and Picric
Acid. To facilitate the review of these
documents, NIOSH requests responses
to the following specific questions for
each draft Profile document:
1. Does this document clearly outline
the systemic health hazards associated
with exposures of the skin to the
chemical? If not, what specific
information is missing from the
document?
2. If the SYS or SYS (FATAL)
notations are assigned, are the rationale
and logic behind the assignment clear?
If not assigned, is the logic clear why it
was not (e.g., insufficient data, no
identified health hazard)? If not clear,
what clarification is suggested?
3. Does this document clearly outline
the direct (localized) health hazards
associated with exposures of the skin to
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85537
the chemical? If not, what specific
information is missing from the
document?
4. If the DIR, DIR (IRR), or DIR (COR)
notations are assigned, are the rationale
and logic behind the assignment clear?
If not assigned, is the logic clear why it
was not (e.g., insufficient data, no
identified health hazard)? If not clear,
what clarification is suggested?
5. Does this document clearly outline
the immune-mediated responses
(allergic response) associated with
exposures of the skin to the chemical?
If not, what specific information is
missing from the document?
6. If the SEN notation is assigned, are
the rationale and logic behind the
assignment clear? If not assigned, is the
logic clear why it was not assigned (e.g.,
insufficient data, no identified health
hazard)? If not clear, what clarification
is suggested?
7. If the ID (SK) or SK were assigned,
are the rationale and logic outlined
clearly within the document? If not
clear, what clarification is suggested?
8. Are the conclusions supported by
the data? If not, what changes are
suggested?
9. Are the tables clear and
appropriate? If not, what changes are
suggested?
10. Are you aware of any scientific
data reported in governmental
publications, databases, peer-reviewed
journals, or other sources that should be
considered within this document?
Please include the full reference citation
for any additional scientific data to be
considered.
11. There have been considerable
improvements and advancements in
dermal absorption studies and modeling
since the publication of NIOSH Current
Intelligence Bulletin 61: A Strategy for
Assigning New NIOSH Skin Notations
[NIOSH 2017]. In response to expert
external peer reviewers’ comments
regarding the limitation of the skin to
inhalation dose (SI) ratio information,
the SI ratio was removed from the
individual skin notation profile
documents. Do you have any
information to support removing or
including the SI ratio information in
these NIOSH documents?
The draft Skin Notation Profiles were
developed to provide the scientific
rationale behind the development of
skin notation designations for the
following chemicals:
• Allyl alcohol (CAS: 107–18–6)
• Formamide (CAS: 75–12–7)
• Formic acid (CAS: 64–18–6)
• Picric acid (CAS: 88–89–1)
• Phenothiazine (CAS: 92–84–2)
The Skin Notation Profiles provide a
detailed summary of the health hazards
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of chemical exposure to the skin. The
final publication, which will address
public comments, will be available on
the NIOSH website and in the NIOSH
docket (153–F) and in Regulations.gov
(CDC–2024–0085).
Background: In 2009, NIOSH
published Current Intelligence Bulletin
(CIB) 61: A Strategy for Assigning New
NIOSH Skin Notations [NIOSH 2009].
The CIB presents a strategic framework
that is a form of hazard identification
designed to do the following:
• Ensure that the assigned skin
notations reflect the contemporary
state of scientific knowledge
• Provide transparency behind the
assignment process
• Communicate the hazards of chemical
exposures of the skin
• Meet the needs of health
professionals, employers, and other
interested parties in protecting
workers from chemical contact with
the skin.
This strategy involves the assignment
of multiple skin notations for
distinguishing systemic (SYS), direct
(DIR), and sensitizing (SEN) effects
caused by exposure of skin (SK) to
chemicals. Chemicals that are highly or
extremely toxic and may be potentially
lethal or life-threatening following
exposures of the skin are designated
with the systemic subnotation (FATAL).
Potential irritants and corrosive
chemicals are indicated by the direct
effects subnotations (IRR) and (COR),
respectively. The five draft Skin
Notation Profiles available for review
were developed following the
framework in NIOSH CIB 61.
Reference
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NIOSH [2009]. Current Intelligence
Bulletin 61: A strategy for assigning
new NIOSH skin notations.
Cincinnati, OH: U.S. Department of
Health and Human Services,
Centers for Disease Control and
Prevention, National Institute for
Occupational Safety and Health,
DHHS (NIOSH) Publication 2009–
147, https://www.cdc.gov/niosh/
docs/2009-147/.
Dated: October 23, 2024.
John J. Howard,
Director, National Institute for Occupational
Safety and Health, Centers for Disease Control
and Prevention, Department of Health and
Human Services.
[FR Doc. 2024–24983 Filed 10–25–24; 8:45 am]
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DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
[Document Identifier: CMS–10856]
Agency Information Collection
Activities: Submission for OMB
Review; Comment Request;
Withdrawal
Centers for Medicare &
Medicaid Services, Health and Human
Services (HHS).
ACTION: Notice; withdrawal.
AGENCY:
On Thursday, September 26,
2024, the Centers for Medicare &
Medicaid Services (CMS) published a
30-day Paperwork Reduction Act of
1995 notice entitled, ‘‘Agency
Information Collection Activities:
Submission for OMB Review; Comment
Request.’’ The notice invited public
comment on Document Identifier: CMS–
10856; Title of Information Collection:
Medicaid Managed Care and Supporting
Regulations; and Form Number: CMS–
10856 (OMB control number 0938–
1453). Through the publication of this
document we are withdrawing the
September 26, 2024, notice in its
entirety.
SUMMARY:
This withdrawal is applicable on
October 28, 2024.
SUPPLEMENTARY INFORMATION: Through
the publication of this notice we are
withdrawing FR document 2024–21982
which published in the Federal Register
on September 26, 2024 (89 FR 78875).
Upon further review the associated
collection of information request was
not ready for public review and
comment. The 30-day notice will
republish at a date to be determined.
DATES:
William N. Parham, III,
Director, Division of Information Collections
and Regulatory Impacts, Office of Strategic
Operations and Regulatory Affairs.
[FR Doc. 2024–25019 Filed 10–25–24; 8:45 am]
BILLING CODE 4120–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
[Document Identifiers: CMS–10912]
Agency Information Collection
Activities: Proposed Collection;
Comment Request
Centers for Medicare &
Medicaid Services, Health and Human
Services (HHS).
AGENCY:
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ACTION:
Notice.
The Centers for Medicare &
Medicaid Services (CMS) is announcing
an opportunity for the public to
comment on CMS’ intention to collect
information from the public. Under the
Paperwork Reduction Act of 1995
(PRA), federal agencies are required to
publish notice in the Federal Register
concerning each proposed collection of
information (including each proposed
extension or reinstatement of an existing
collection of information) and to allow
60 days for public comment on the
proposed action. Interested persons are
invited to send comments regarding our
burden estimates or any other aspect of
this collection of information, including
the necessity and utility of the proposed
information collection for the proper
performance of the agency’s functions,
the accuracy of the estimated burden,
ways to enhance the quality, utility, and
clarity of the information to be
collected, and the use of automated
collection techniques or other forms of
information technology to minimize the
information collection burden.
DATES: Comments must be received by
December 27, 2024.
ADDRESSES: When commenting, please
reference the document identifier or
OMB control number. To be assured
consideration, comments and
recommendations must be submitted in
any one of the following ways:
1. Electronically. You may send your
comments electronically to http://
www.regulations.gov. Follow the
instructions for ‘‘Comment or
Submission’’ or ‘‘More Search Options’’
to find the information collection
document(s) that are accepting
comments.
2. By regular mail. You may mail
written comments to the following
address: CMS, Office of Strategic
Operations and Regulatory Affairs,
Division of Regulations Development,
Attention: Document Identifier/OMB
Control Number:___, Room C4–26–05,
7500 Security Boulevard, Baltimore,
Maryland 21244–1850.
To obtain copies of a supporting
statement and any related forms for the
proposed collection(s) summarized in
this notice, please access the CMS PRA
website by copying and pasting the
following web address into your web
browser: https://www.cms.gov/
Regulations-and-Guidance/Legislation/
PaperworkReductionActof1995/PRAListing.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
William N. Parham at (410) 786–4669.
SUPPLEMENTARY INFORMATION:
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Contents
This notice sets out a summary of the
use and burden associated with the
following information collections. More
detailed information can be found in
each collection’s supporting statement
and associated materials (see
ADDRESSES).
CMS–10912 Medicare Transaction
Facilitator for 2026 and 2027 under
Sections 11001 and 11002 of the
Inflation Reduction Act (IRA)
Information Collection Request
Under the PRA (44 U.S.C. 3501–
3520), federal agencies must obtain
approval from the Office of Management
and Budget (OMB) for each collection of
information they conduct or sponsor.
The term ‘‘collection of information’’ is
defined in 44 U.S.C. 3502(3) and 5 CFR
1320.3(c) and includes agency requests
or requirements that members of the
public submit reports, keep records, or
provide information to a third party.
Section 3506(c)(2)(A) of the PRA
requires federal agencies to publish a
60-day notice in the Federal Register
concerning each proposed collection of
information, including each proposed
extension or reinstatement of an existing
collection of information, before
submitting the collection to OMB for
approval. To comply with this
requirement, CMS is publishing this
notice.
Information Collections
1. Type of Information Collection
Request: New Collection; Title of
Information Collection: Medicare
Transaction Facilitator for 2026 and
2027 under Sections 11001 and 11002 of
the Inflation Reduction Act (IRA)
Information Collection Request; Use:
Under the authority in sections 11001
and 11002 of the Inflation Reduction
Act of 2022 (Pub. L. 117–169), the
Centers for Medicare & Medicaid
Services (CMS) is implementing the
Medicare Drug Price Negotiation
Program, codified in sections 1191
through 1198 of the Social Security Act
(‘‘the Act’’). The Act establishes the
Negotiation Program to negotiate
maximum fair prices (‘‘MFPs’’), defined
at 1191(c)(3) of the Act, for certain high
expenditure, single source selected
drugs covered under Medicare Part B
and Part D (‘‘selected drugs’’). In
accordance with section 1193(a) of the
Act, any Primary Manufacturer of a
selected drug that continues to
participate in the Negotiation Program
and reaches agreement upon an MFP
must provide access to the MFP to MFPeligible individuals, defined in section
1191(c)(2)(A) of the Act, and to
pharmacies, mail order services, other
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dispensing entities, providers and
suppliers with respect to such MFPeligible individuals who are dispensed
that selected drug during a price
applicability period. The purpose of this
information collection request (ICR) is
for CMS to collect information from
manufacturers of drugs covered under
Part D selected for negotiation under the
Inflation Reduction Act for the initial
price applicability years 2026 and 2027
and the dispensing entities that
dispense the selected drugs to MFPeligible individuals. To facilitate the
effectuation of the MFP, CMS will
engage a Medicare Transaction
Facilitator (‘‘MTF’’). The MTF system
will be composed of two modules: the
MTF Data Module (MTF DM), and the
MTF Payment Module (MTF PM).
Medicare Transaction Facilitator Data
Elements: The MTF system will be
composed of two modules: the MTF
Data Module (MTF DM), and the MTF
Payment Module (MTF PM). Primary
Manufacturers participating in the
Negotiation Program are required to
participate in the MTF DM. Further,
CMS intends to propose in future
rulemaking to require Part D plan
sponsors to include in their pharmacy
agreements provisions requiring
dispensing entities to participate in the
MTF DM for purposes of data exchange.
As such, for the purposes of this ICR,
CMS assumes full participation in the
MTF DM by affected Primary
Manufacturers and dispensing entities.
Meanwhile, participation in the MTF
PM, for use in passing through payment
from the Primary Manufacturer to
dispensing entities, will be optional for
Primary Manufacturers; as a result,
dispensing entities may receive fund
transfers from the MTF PM, or via an
alternative process established by a
Primary Manufacturer. As discussed in
section 40.4 of the Medicare Drug Price
Negotiation Program: Final Guidance,
Implementation of Sections 1191–1198
of the Social Security Act for Initial
Price Applicability Year 2027 and
Manufacturer Effectuation of the
Maximum Fair Price (MFP) in 2026 and
2027 (‘‘final guidance’’), CMS will
engage the MTF DM to facilitate the
exchange of certain claim-level data
elements and payment elements for
selected drugs. The data exchange
component of the MTF will involve
both the transmission of certain claimlevel data elements to the Primary
Manufacturer and receipt of claim-level
payment elements from the Primary
Manufacturer. Both Primary
Manufacturers and dispensing entities
will need to provide certain information
at the onset of their enrollment in the
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85539
MTF DM system to facilitate
effectuation of the MFP via refunds from
Primary Manufacturers. Both Primary
Manufacturers and dispensing entities
will be able to submit complaints and
disputes through their participation in
the MTF DM. Primary Manufacturers
will also submit information to fulfill
their requirement to provide an MFP
Effectuation Plan and transmit recurring
data submissions reflecting their
payment elements, as described in the
final guidance. Given these information
collection requirements, this ICR
includes the following forms: (A) Drug
Price Negotiation Program MTF DM
Dispensing Entity and Third-Party
Support Enrollment Form; (B) Drug
Price Negotiation Program MTF DM
Primary Manufacturer Maximum Fair
Price (MFP) Effectuation Plan Form; (C)
Drug Price Negotiation Program MTF
DM Primary Manufacturer Payment
Elements Form; and (D) Drug Price
Negotiation Program Complaint and
Dispute Intake Form. Form Number:
CMS–10912 (OMB control number:
0938-New); Frequency: Once and Daily;
Affected Public: Private sector, Business
or other for-profit, and individuals;
Number of Respondents: 85,853; Total
Annual Responses: 93,120; Total
Annual Hours: 821,560. (For policy
questions regarding this collection
contact Brennan Folsom at 667–414–
0014.)
William N. Parham, III,
Director, Division of Information Collections
and Regulatory Impacts, Office of Strategic
Operations and Regulatory Affairs.
[FR Doc. 2024–25009 Filed 10–25–24; 8:45 am]
BILLING CODE 4120–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
[Document Identifier: CMS–10261]
Agency Information Collection
Activities: Submission for OMB
Review; Comment Request
Centers for Medicare &
Medicaid Services, Health and Human
Services (HHS).
ACTION: Notice.
AGENCY:
The Centers for Medicare &
Medicaid Services (CMS) is announcing
an opportunity for the public to
comment on CMS’ intention to collect
information from the public. Under the
Paperwork Reduction Act of 1995
(PRA), federal agencies are required to
publish notice in the Federal Register
concerning each proposed collection of
SUMMARY:
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information, including each proposed
extension or reinstatement of an existing
collection of information, and to allow
a second opportunity for public
comment on the notice. Interested
persons are invited to send comments
regarding the burden estimate or any
other aspect of this collection of
information, including the necessity and
utility of the proposed information
collection for the proper performance of
the agency’s functions, the accuracy of
the estimated burden, ways to enhance
the quality, utility, and clarity of the
information to be collected, and the use
of automated collection techniques or
other forms of information technology to
minimize the information collection
burden.
Comments on the collection(s) of
information must be received by the
OMB desk officer by November 27,
2024.
DATES:
Written comments and
recommendations for the proposed
information collection should be sent
within 30 days of publication of this
notice to www.reginfo.gov/public/do/
PRAMain. Find this particular
information collection by selecting
‘‘Currently under 30-day Review—Open
for Public Comments’’ or by using the
search function.
To obtain copies of a supporting
statement and any related forms for the
proposed collection(s) summarized in
this notice, please access the CMS PRA
website by copying and pasting the
following web address into your web
browser: https://www.cms.gov/
Regulations-and-Guidance/Legislation/
PaperworkReductionActof1995/PRAListing.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
William Parham at (410) 786–4669.
Under the
Paperwork Reduction Act of 1995 (PRA)
(44 U.S.C. 3501–3520), federal agencies
must obtain approval from the Office of
Management and Budget (OMB) for each
collection of information they conduct
or sponsor. The term ‘‘collection of
information’’ is defined in 44 U.S.C.
3502(3) and 5 CFR 1320.3(c) and
includes agency requests or
requirements that members of the public
submit reports, keep records, or provide
information to a third party. Section
3506(c)(2)(A) of the PRA (44 U.S.C.
3506(c)(2)(A)) requires federal agencies
to publish a 30-day notice in the
Federal Register concerning each
proposed collection of information,
including each proposed extension or
reinstatement of an existing collection
of information, before submitting the
collection to OMB for approval. To
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SUPPLEMENTARY INFORMATION:
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comply with this requirement, CMS is
publishing this notice that summarizes
the following proposed collection(s) of
information for public comment:
1. Type of Information Collection
Request: Revision with change of a
currently approved collection; Title of
Information Collection: Part C Medicare
Advantage Reporting Requirements;
Use: The Centers for Medicare and
Medicaid Services (CMS) established
reporting requirements for Medicare
Advantage Organizations (MAOs) under
the authority described in 42 CFR
422.516(a). Each MAO must have an
effective procedure to develop, compile,
evaluate, and report to CMS, to its
enrollees, and to the general public at
the times and in the manner that CMS
requires. At the same time, each MAO
must, in accordance with 42 CFR
422.516(a), safeguard the confidentiality
of the provider-patient relationship.
Health plans can use this information
to measure and benchmark their
performance. CMS receives inquiries
from the industry and other interested
stakeholders about the beneficiary use
of available benefits, including
supplemental benefits, grievance and
appeals rates, cost, and other factors
pertaining to use of government funds,
as well the performance of MA plans.
Form Number: CMS–10261 (OMB
control number: 0938–1054); Frequency:
Yearly; Affected Public: Business or
other for-profits; Number of
Respondents: 783; Total Annual
Responses: 7,830; Total Annual Hours:
225,575. (For policy questions regarding
this collection contact Lucia Patrone at
410–786–8621 or Lucia.Patrone@
cms.hhs.gov).
William N. Parham, III,
Director, Division of Information Collections
and Regulatory Impacts, Office of Strategic
Operations and Regulatory Affairs.
[FR Doc. 2024–25015 Filed 10–25–24; 8:45 am]
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DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Children and
Families
Request for Information:
Administration for Children and
Families Development of
Interoperability Standards for Human
Service Programs
Office of the Chief Technology
Officer, Administration of Children and
Families, Department of Health and
Human Services.
ACTION: Request for information (RFI).
AGENCY:
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The Administration for
Children and Families (ACF), in the
U.S. Department of Health and Human
Services (HHS), invites public
comments to inform the use or adoption
of interoperability standards for human
services programs. ACF and state, local,
and tribal governments all provide a
number of health and human services
programs for children, youth, families,
communities, and individuals. ACF
seeks public comment on the most
effective approaches, technical
standards, and technological tools that
currently or could promote
interoperability between health and
human services programs. ACF
collaborates with the Assistant Secretary
for Technology Policy/Office of the
National Coordinator for Health
Information Technology (ASTP/ONC) as
a critical steward and advisor for human
services interoperability with
responsibility for leading the
development and harmonization of
interoperability standards between
health and human services in line with
the HHS Data Strategy. The potential of
interoperability across the full spectrum
of health and human services is
immense—it can enable efficient
delivery of government services,
enhance access to critical non-profit
programs, and most importantly,
improve overall individual and
community outcomes. ACF has
authority under the Title IV of the
Social Security Act to designate use of
interoperable data standards for several
of its programs (e.g., Temporary
Assistance for Needy Families (TANF),
child support, child welfare, and foster
care). The purpose of this RFI is to
understand how ACF, in collaboration
with ASTP/ONC, can better support
interoperability between human
services within and across states and
local community resources, between
states, and ACF.
DATES: Comments are due within 60
days of publication.
ADDRESSES: Submit responses to
[email protected], a federal mailbox
allowing the public to submit comments
on documents agencies have published
in the Federal Register and are open for
comment. Simply type ‘‘ACF-2024Interoperability-RFI’’ in the Comment or
Submission search box, click Go, and
follow the instructions for submitting
comments.
Comments submitted in response to
this notice are subject to the Freedom of
Information Act and may be made
available to the public. For this reason,
please do not include any information
of a confidential nature, such as
sensitive personal information or
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proprietary information. If you submit
your email address, it will be
automatically captured and included as
part of the comment placed in the
public docket. Please note that
responses to this public comment
request containing any routine notice
about the confidentiality of the
communication will be treated as public
comments that may be made available to
the public, notwithstanding the
inclusion of the routine notice.
SUPPLEMENTARY INFORMATION:
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1. Background
The Administration for Children and
Families (ACF) requests comments to
inform the use of interoperable data
standards across human services
programs. This will improve the quality
of service delivery and increase
efficiency in collaborations between
agencies administering ACF programs
and other government and nongovernment agencies that serve the same
populations.
1.1 Regulation Development Process
The data exchange standardization
requirements under the Social Security
Act Title IV programs of child welfare
and foster care (Titles IV–B and IV–E),
child support (Title IV–D), and
Temporary Assistance for Needy
Families (TANF, Title IV–A) result from
Public Laws 112–34,1 112–96,2 113–
183,3 and 115–123.4 These laws require
the designation of interoperable
standards for data that must be
exchanged: (1) between states and ACF;
and/or (2) between states under
specified programs.
ACF’s Office of the Chief Technology
Officer (OCTO) will lead the drafting of
any regulations with respect to the
programs described above with subject
matter expertise from ACF program
offices including, but not limited to, the
Children’s Bureau (CB), Family and
Youth Services Bureau (FYSB), Office of
Early Childhood Development (ECD),
Office of Child Care (OCC), Office of
Head Start (OHS), Office of Child
Support Services (OCSS), Office of
Community Services (OCS), Office of
Family Assistance (OFA), and Office of
Family Violence and Prevention
Services (OFVPS).
Additionally, OCTO will coordinate
and consult on the input received in
response to this RFI both with the
ASTP/ONC and with other agencies
executing programs and policies
involving human services interoperable
data standards, such as the Centers for
Medicare & Medicaid Services (CMS),
Administration for Community Living
(ACL), and the Health Resources and
Services Administration (HRSA).
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ASTP/ONC enable standards on
behalf of HHS under section 3004 of the
Public Health Service Act (PHSA) in
45 CFR part 170 Subpart B. As lead for
the development and harmonization of
interoperability standards between
health and human services, ASTP/ONC
may enable standards for human
services which will be available for use
by any HHS program, including ACF.
Adopting standards in one location for
HHS use enables alignment across HHS
programs to further interoperability,
including alignment described under
Sections 13111 and 13112 of the Health
Information Technology for Economic
and Clinical Health Act (‘‘HITECH Act’’)
(Pub. L. 111–5, Title XIII, secs. 13111
and 13112).
1.2 For the Purposes of This Notice
Interoperability refers to the ability of
different information systems, devices,
or applications to connect, in a
coordinated way, within and beyond
organizational boundaries to access,
exchange, and use data in a cooperative
way between stakeholders, with the aim
of optimizing the health and wellbeing
of individuals and populations (adapted
from HIMSS, 2019).5 The definition of
interoperability in section 4003 of the
21st Century Cures Act calls for all
electronically accessible information to
be accessed, exchanged, and used
without special effort on the user’s part
(Pub. L. 114–255).
Standards, for the purposes of this
RFI, refer to any documented,
consistent, and repeatable method for
exchanging data through technical or
non-technical means. There are
technical standards for electronic data
exchange, such as through data
exchange standards, including Health
Level Seven (HL7) Fast Healthcare
Interoperability Resources (FHIR®).
There are also standards of practice in
the context of business processes, such
as protocols for encryption, hashing, or
establishment of accessible websites.
These standards of practice are often
codified in policies, interagency
agreements, memoranda of
understanding, service-level
agreements, etc.
Human Services Interoperability
refers to the ability of health and human
service systems to exchange data for
service planning, coordination, delivery,
monitoring, and evaluation in an
automated, standards-based, and
integrated manner that improves
outcomes for children, families, and
communities. Human services refer to
programs that may not exclusively be
provided or funded by HHS but may
include those funded through other
federal agencies. Human services
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include a wide variety of programs and
services to enhance the quality of life,
promote well-being, and address the
needs of individuals and communities.
1.3 Purpose of Interoperable Data
Standardization for Interoperability
The purpose of designating
interoperable data standards is to ensure
all parts of the human services delivery
ecosystem can effectively and efficiently
exchange information between and
among programs for seamless service
delivery. Effective and efficient
information exchange can help
appropriately reach people and deliver
the right benefits, supporting
coordinated case management, benefits
enrollment, and new service delivery
models. Interoperability promotes many
objectives, from the availability of
higher quality, more recent data that can
be used to appropriately reach people
and deliver the right benefits to
coordinated case management, benefits
enrollment, and new service delivery
models.
Using timely and quality data, for
example, a child welfare caseworker
might be able to retrieve a family’s
current address from child support data
to locate the family for an in-person
visit or locate the non-custodial parent
for possible placement of the children.
Interoperable data standards between a
public child welfare agency with care
and custody of a child and a foster care
placing agency could ensure both
agencies have the most current
information on the child in care.
Interoperability can also help identify if
household composition has changed, or
a recipient has moved out of state, and
changes to benefits levels are needed.
For example, if a parent was reunited
with their children exiting foster care,
data sharing across information systems
would allow the TANF agency to update
the benefit eligibility for the family.
Widespread adherence to data standards
can enable better interoperability and
reduce the burden of connecting
disparate systems containing the
information described in this example.
Interoperable data standards can also
help to facilitate initiatives. For
example, a Medicaid applicant works
with a health insurance navigator
during the annual Marketplace
enrollment period and participates in a
Social Determinants of Health (SDOH)
questionnaire with the navigator, who
recognizes that the applicant is
experiencing challenges in securing
adequate food and necessary clothing.
The navigator could pre-fill an
enrollment application for SNAP
benefits and provide information to
complete the enrollment. Also, the
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navigator can provide the Medicaid
applicant with the local food bank’s
name, location, phone number, and a
resource for the community clothing
closet. Further, with the Medicaid
applicant’s consent, the navigator can
send an electronic message or alert to
the local non-profits identified in a
statewide network of non-profit
community resources, allowing
receiving organizations to reach out to
the applicant to determine if they need
additional support to get connected
with services. Common standards can
help simplify the complex interactions
between different systems described in
this scenario and ensure scalability as
new entities seek to participate in the
exchange.
ACF believes that designating
nationally recognized interoperable data
standards in the programs described
above will make it easier to share data
across multiple organizations. While
likely more effective and cost-effective
in the long run, ACF also recognizes
that this approach may initially involve
financial and time costs related to
updating proprietary systems to use
open standards. Therefore, as part of
any future ACF programmatic and
policy development, and in
coordination with ASTP/ONC, ACF
seeks to strike the appropriate balance
between the benefits of interoperability
and standardization and ease of
implementation.
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2. Legal Authority
Federal statutes require ACF to
designate interoperable data standards
to promote data exchange in state
human services programs at the state
level and with the federal government.
Most recently, the Family First
Prevention Services Act (FFPSA),
enacted as part of Public Law (Pub. L.)
115–123, authorized optional Title IV–
E funding for time-limited prevention
services for mental health, substance
abuse, and in-home parent skill-based
programs for children or youth who are
candidates for foster care, pregnant or
parenting youth in foster care, and the
parents or kin caregivers of those
children and youth. This law amended
Title IV–B of the Social Security Act to
require that ACF must ‘‘designate data
exchange standards to govern . . . (1)
necessary categories of information that
State agencies operating programs under
State plans approved under this part are
required under applicable Federal law
to exchange with another State agency
electronically; and (2) Federal reporting
and data exchange required under
applicable Federal law’’ (42 U.S.C.
629m(a)).
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The statute further provides that ACF
shall incorporate, to the extent practical,
interoperable standards developed and
maintained by intergovernmental
partnerships and federal agencies with
authority over contracting and financial
assistance. The data exchange reporting
standards shall incorporate a widely
accepted, nonproprietary, searchable,
computer-readable format; be consistent
with and implement applicable
accounting principles; be implemented
in a manner that is cost-effective and
improves program efficiency and
effectiveness; and be capable of being
continually upgraded as necessary (42
U.S.C. 629m(b)).
Additionally, ACF coordinates with
the ASTP/ONC in a manner consistent
with Sections 13111 and 13112 of the
HITECH Act to ensure alignment across
HHS and non-HHS agencies around
health IT standards ASTP/ONC adopts
on behalf of HHS under section 3004 of
the PHSA in 45 CFR part 170 Subpart
B. ACF coordinates with ASTP/ONC
pursuant to the provisions of the
HITECH Act above when adopting,
implementing, or upgrading health IT
systems used for the direct exchange of
individually identifiable health
information between agencies and nonFederal entities.
The extent of data elements that need
to be shared to enable improved service
delivery and program management often
exceeds the minimum legal
requirements. As described throughout
ACF’s Confidentiality Toolkit 6 in the
Applicable Federal Legislation sections,
data sharing beyond the minimum
regulatory requirements (as referenced
throughout this RFI) is permissible and
encouraged when practical use cases
exist.
3. Current Interoperability Standards
and Initiatives
3.1 FHIR and Gravity Project
HL7® Fast Healthcare Interoperability
Resources (FHIR®) is a rapidly maturing
interoperability standard based on
modern internet technology approaches.
FHIR goes beyond document-level
interoperability to data element-level
exchange. It uses standardized
application programming interface (API)
standards to facilitate interoperable data
standards, enabling more efficient
application development across
multiple device types. There is a
growing open-source community
developing around FHIR
implementation.7
Today, several stakeholder efforts are
underway to extend the use of FHIR to
support the interoperability of human
services information. For instance, the
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Gravity Project 8 is a stakeholder-led
initiative to identify and harmonize
social risk factor data for interoperable
electronic health information exchange.
The HL7 Gravity Accelerator 9
established codes for data elements such
as housing instability, food insecurity,
transportation insecurity, etc. It creates
a common terminology for exchanging
content related to non-medical factors
influencing health and human services
outcomes. Another HL7 group is the
Health and Social Services (HSS) Work
Group, supported by ACF, which is
focused on facilitating human services
data content further. A project
description of Enhancing the FHIR for
Social Services and Social Determinants
(EFSS) and a list of use cases can be
found in Appendices 1 and 2.
3.2 United States Core Data for
Interoperability (USCDI/USCDI+)
In the 21st Century Cures Act:
Interoperability, Information Blocking,
and the ONC Health IT Certification
Program final rule (85 FR 25642) 10
published in May 2020, ASTP/ONC
adopted the United States Core Data for
Interoperability (USCDI) 11 standard,
which describes a standardized set of
health data and constituent data
elements for nationwide, interoperable
health information exchange (85 FR
25669). USCDI is implemented in FHIR
by mapping data elements and value
sets to FHIR resources and
implementation guides through the US
Core Implementation Guide.12 ASTP/
ONC published Version 3 of the USCDI
in July 2022 13 and subsequently
adopted Version 3 as the new baseline
for the ASTP/ONC Certification Program
in the Health Data, Technology, and
Interoperability: Certification Program
Updates, Algorithm Transparency, and
Information Sharing (HTI–1) Final Rule
(89 FR 1210). Version 3 included new
data elements for social determinants of
health (SDOH), which includes SDOH
Problems/Health Concerns, SDOH
Interventions, SDOH Goals, and SDOH
Assessments. USCDI Version 4,
published in July 2023,14 added 20 data
elements to help address and mitigate
health and healthcare inequities and
disparities. Additional priorities for
USCD v4 were to address underserved
communities’ needs, behavioral health
integration with primary care and other
physical care, and public health
interoperability needs of reporting,
investigation, and emergency response.
Further, ASTP/ONC oversees the
USCDI+ 15 initiative to support
identifying and establishing domain, or
program-specific, datasets that build on
the existing USCDI. Specifically,
USCDI+ is a service that ASTP/ONC
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provides to federal and industry
partners to establish, harmonize, and
advance the use of interoperable
datasets that extend beyond the core
data in the USCDI to meet specific
programmatic and/or use case
requirements. This approach allows
ASTP/ONC to assure that new datasets
build from the same core USCDI
foundation, and allows for alignment of
similar data needs across agency
programs and corresponding data users
and/or participants at the state and local
levels.
3.3 Human Services Interoperability
Innovations (HSII) Demonstration
Program
ACF has focused on programmatic
investments to advance human services
interoperability. ACF’s Human Services
Interoperability Innovations (HSII)
demonstration program 16 was intended
to expand data-sharing efforts by state
and local governments, tribes, and
territories to improve human services
program delivery and to identify novel
data-sharing approaches that can be
replicated in other jurisdictions. These
investments enabled ACF to fund
entities to focus on addressing
longstanding barriers to interoperability
through cooperative agreements for the
HL7 Care Plan for Maternal Opioid
Misuse and the implementation of FHIR
operating systems necessary to support
Centers for Medicare and Medicaid
Innovation (CMMI) Integrated Care for
Kids model grantees in both New Jersey
and Connecticut.
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3.4 HL7 Human and Social Services
(HSS) Workgroup
ACF led the creation of the HL7
Human and Social Services (HSS)
Workgroup.17 The HSS Workgroup’s
mission is to provide a space to design
and validate HL7 interoperable human
services data standards. The group is
also developing a common format for
social services provider directory
information. This project maps the
definitions from Open Referral to the
FHIR standard using an FHIR Facade
before the Human Services Data API
(HSDA).
4. Proposed Direction for Developing
Interoperable Data Standards
The health sector has increasingly
looked to FHIR as a core standard,
catalyzed by the industry’s embrace of
FHIR and codified through the
incorporation of ASTP/ONC-certified
health IT systems featuring FHIR APIs
into CMS program requirements for use
of certified electronic health record
technology (CEHRT) (for instance,
Medicare Promoting Interoperability
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Program and the Promoting
Interoperability performance category of
the Merit-Based Incentive Payment
System (MIPS)),18 and ASTP/ONC’s
efforts to incorporate FHIR as part of the
technical requirements for the Trusted
Exchange Framework Common
Agreement (TEFCA).19 Given the need
for human services data to be
interoperable with health data to
support integrated case management at
the person level and in light of the
opportunity to significantly leverage
health sector infrastructure such as
Qualified Health Information Networks
(QHINs) and existing data exchange
pathways using FHIR, ACF is
considering the HL7 FHIR standard as
the foundation of data interoperability
for ACF-covered domains.
5. Request for Information
ACF seeks a more interoperable
human services data ecosystem with
available and shareable data between
care providers, programs, and the
government to drive improved outcomes
for children and families. To deliver
that goal, more consistent use of
interoperable standards and practices is
needed at all levels. ACF recognizes that
organizations may be limited in major
IT system transitions without significant
new funding. However, without
government-backed standards, pilots,
and processes, the current and future IT
systems will maintain and even
accelerate their current degree of
fragmentation. Therefore, ACF is
seeking input on how to support a drive
toward interoperability across the field
in economical, efficient, effective, and
reasonable ways.
ACF also seeks feedback on proposed
initial domain focus areas for standards
development and pilots. These focus
areas may encompass areas where HHS/
ASTP/ONC and ACF have formal
regulatory powers to set standards for
child welfare and foster care as well as
prevention, adoption and guardianship
(Title IV–B and IV–E), child support
(Title IV–D), and Temporary Assistance
for Needy Families (TANF, Title IV–A).
It also includes areas where ACF could
engage more actively with standards
development organizations, such as the
HL7 Human and Social Services (HSS)
Workgroup (currently focusing on food,
housing, and economic insecurity as its
priority use cases). We are interested in
receiving input affecting additional
programs.
ACF requests comments on the
following topics. Please comment or
respond to any questions that apply
from the perspective of your agency,
organization, program, or setting;
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85543
commenters are not required to respond
to every question:
Input on specific topics
1. Practical enablers of/or barriers to
interoperability:
1.1 Provide examples of the key
enablers and/or inhibitors to using
interoperable human services data
standards (including data content and
data exchange) in your program or
agency.
1.2 How is the ability to exchange
human services data impacted by state
or federal law, policies, or other
governing frameworks (including CMS
Interoperability rules)?
1.3 What is the highest priority
legal, policy, or governance issues to be
addressed when moving to an
interoperable ACF environment? (e.g.,
minor consent, guardianship, Family
Education Rights and Privacy Act
(FERPA), privacy, security, sensitive
data, parental controls, etc.)
1.4 Describe any mitigation
strategies or policy levers that have
effectively moved interoperable human
services data exchange forward in your
organization, state, or program.
2. Impact of lack of human services
interoperable data standardization:
Provide examples of existing and
planned human services interoperable
data efforts and to what degree, if any,
does a lack of standardization negatively
impact them.
2.1 What interoperable data
standards are being used today in ACFfunded programs?
2.2 Describe any impediments
experienced in current systems when
accessing, analyzing, or sending data to
the federal level.
2.3 What are the benefits of moving
to a common interoperable data
standard like Fast Healthcare
Interoperability Resources (FHIR)?
3. Care coordination: ACF seeks
comments on current care coordination
activities and data standards to support
the interoperable data exchange for
service delivery, operations, and
reporting.
3.1 How do you currently use
interoperable data to support care
coordination across human services,
both between human services programs
and between human services and health
services? For example, are you able to
collect medical data for children who
have medical issues?
3.2 Describe use cases that benefit
from interoperable data standards for
advancing service coordination
activities among state and federal
programs (e.g., clinical, administrative,
operations). Tell us about systems
currently used that are API-enabled.
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3.3 What are the most important use
cases where interoperable data
standards or exchange protocols must be
piloted/validated?
3.4 What federal support would be
necessary or helpful to catalyze those
efforts?
4. Interoperable data standards
needed for operations and reporting:
ACF recognizes that not all systems
operate using interoperable data
standards, and as a result, not all
applications are capable of data
exchange. Since 2021, ACF has
sponsored an HL7 Human and Social
Services (HSS) workgroup to develop
data standards using FHIR
specifications for Human and Social
Services.
4.1 What ACF domains or programs
would benefit from using an
interoperable data standard for business
operation and reporting?
4.2 To what extent is the HL7 or the
HL7 FHIR standard used in ACF
programs today?
4.3 Will your organization
experience specific benefits or
drawbacks if an interoperable data
standard like FHIR is widely used in
ACF programs?
4.4 Should any domain or program
be exempt from using a standard like
FHIR?
5. Standards in practice: In cases
where human services data systems
currently use interoperable data
standards, describe how they do or do
not incorporate the following:
5.1 Interoperable standards
developed and maintained by an
international voluntary consensus
standards body such as HL7.
5.2 Interoperable standards
developed and maintained by
intergovernmental partnerships such as
the National Information Exchange
Model (NIEM).
5.3 Interoperable standards
developed and maintained by specific
federal agencies with authority over
contracting and financial assistance.
6. Intra- and inter-state human
services data sharing: Describe the types
of human services agencies in your state
that electronically exchange with other
states, state agencies, or community
organizations in healthcare or human
services within your state.
6.1 How are they aligned, or not,
with a specific industry standard(s), e.g.,
FHIR, to ensure ease of access and use
of interoperable data?
6.2 What types of systems and nonproprietary, open-data standards are
used to facilitate interoperability across
programs?
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6.3 Are there tools in use for
normalizing and/or harmonizing data to
standards?
6.4 Tell us about any significant data
quality and matching issues to be
addressed to make the data exchange
meaningful.
6.5 What additional infrastructure
would need to be developed to ensure
that data is interoperable and actively
exchanged?
7. Funding: Describe current funding
mechanisms that support or hinder
interoperable data systems’ design,
development, and implementation.
7.1 What types of funding have you
leveraged to design, develop, and
implement interoperable data systems
(e.g., Advance Planning Documents and
grants)?
7.2 What incentives or requirements
would be needed to drive key use cases
of data exchange once systems are
interoperable (e.g., data quality and/or
identity management)?
7.3 What barriers or challenges have
you encountered with these funding
mechanisms?
8. Technical Assistance: What
technical assistance have you leveraged
in designing, developing, and
implementing interoperable data
systems?
8.1 What technical assistance (such
as subject matter expertise in data
standards and coding/software
development) would be necessary to
move to an interoperable standard like
FHIR?
8.2 What top actions should the
federal government take to provide
technical assistance to encourage
human services interoperability?
9. United States Core Data for
Interoperability (USCDI/USCDI+):
Provide input to inform how ACF may
identify, create, and standardize human
services data elements leveraging the
ASTP/ONC USCDI+ initiative, HL7
FHIR, and relevant HHS policy levers,
including applicable regulations, to
improve interoperability for human
services programs. 9.1 How could an
initiative such as USCDI+ be leveraged
to harmonize human services data
needed for care coordination, program
evaluations, and reporting
requirements?
9.2 What is the highest priority use
case(s) that need further development in
USCDI+ and FHIR to address ACF’s
stakeholders’ needs?
9.3 What data elements are a high
priority to enable comprehensive case
management, including whole-person
care, referrals, and research?
9.4 What technical and policy
approaches effectively link human
services data to health IT codes and
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value sets to help improve
interoperability, and use across multiple
systems and domains?
10. General questions—Provide input
on the current state of data that your
organization receives and/or exchanges.
10.1 What information do you
exchange, if any, and from whom?
10.2 What information to you
currently collect and from whom?
10.3 What information do you need
to exchange, that you have trouble
exchanging and with whom? How does
that challenge impact your work,
community, etc.?
11. Other considerations: ACF
welcomes comments on other aspects of
recognizing and establishing
interoperable data standards for human
services programs you wish to provide.
Kevin M. Duvall,
Chief Technology Officer, Administration of
Children and Families.
Endnotes
1 Public Law 112–34—Child and Family
Service Improvement and Innovation Act.
(2011). Retrieved from https://
www.govinfo.gov/app/details/PLAW112publ34/summary.
2 Public Law 112–96—Middle Class Tax
Relief and Job Creation Act. (2012). Retrieved
from https://www.govinfo.gov/app/details/
PLAW-112publ96/summary.
3 Public Law 113–183—Preventing Sex
Trafficking and Strengthening Families Act.
(2014). Retrieved from https://
www.govinfo.gov/app/details/PLAW113publ183/summary.
4 Public Law 115–123—Bipartisan Budget
Act of 2018. (2018). Retrieved from https://
www.govinfo.gov/app/details/PLAW115publ123/summary.
5 Health Information Management Systems
Society: Interoperability Definition. (2021).
Retrieved from HIMSS writes new definition
of interoperability—Digital-health.
6 Administration of Children and Families
(ACF): Confidentiality Toolkit. (2021).
Retrieved from https://www.acf.hhs.gov/
opre/report/confidentiality-toolkit.
7 Redox. Popular Open Source FHIR
Libraries. (2021). Retrieved from https://
www.redoxengine.com/blog/popular-opensource-fhir-libraries/.
8 Health Level Seven (HL7) Confluence.
(2023). The Gravity Project. Consensusdriven standards on social determinants of
health. Retrieved from https://
confluence.hl7.org/display/GRAV/
The+Gravity+Project.
9 HealthITbuzz. (2022). FAST Continues
FHIR Scalability Work as a New HL7 FHIR
Accelerator. Retrieved from https://
www.healthit.gov/buzz-blog/health-it/fastcontinues-fhir-scalability-work-as-a-new-hl7fhir-accelerator.
10 National Archives Federal Register.
(2020). 21st Century Cures Act:
Interoperability, Information Blocking, and
the ONC Health IT Certification Program.
Retrieved from https://
www.federalregister.gov/documents/2020/05/
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01/2020-07419/21st-century-cures-actinteroperability-information-blocking-andthe-onc-health-it-certification.
11 Office of the National Coordinator for
Health IT. (2023). United States Core Data for
Interoperability (USCDI). Retrieved from
https://www.healthit.gov/isa/united-statescore-data-interoperability-uscdi.
12 Office of the National Coordinator for
Health IT. (2023) United States Core (US
Core) Fast Healthcare Interoperability
Resources (FHIR) Retrieved from https://
hl7.org/fhir/us/core/history.html.
13 Office of the National Coordinator for
Health IT. (2023) United States Core (US
Core) Fast Healthcare Interoperability
Resources (FHIR) Retrieved from https://
hl7.org/fhir/us/core/history.html.
14 Office of the National Coordinator for
Health IT. (2023). United States Core Data for
Interoperability. Retrieved from https://
www.healthit.gov/isa/sites/isa/files/2023-10/
USCDI-Version-4-October-2023-ErrataFinal.pdf.
15 Office of the National Coordinator for
Health IT. (2023). United States Core Data for
Interoperability Plus (USCDI+). Retrieved
from https://www.healthit.gov/topic/
interoperability/uscdi-plus.
16 Office of Planning, Research and
Evaluation an Office of the Administration of
Children & Families. (2023). Human Services
Interoperability Innovations (HSII). Retrieved
from https://www.acf.hhs.gov/opre/project/
human-services-interoperability-innovationshsii-2020-2021.
17 Health Level Seven (HL7) Confluence.
(2023). Human and Social Services Home.
Retrieved from https://confluence.hl7.org/
display/HSS/
Human+and+Social+Services+Home.
18 Centers for Medicare & Medicaid
Services. (2020). CMS Interoperability and
Patient Access Final Rule (CMS–9115–F).
Retrieved from https://www.cms.gov/
interoperability/policies-and-regulations/
cms-interoperability-and-patient-accessfinal-rule-cms-9115-f.
19 The Sequoia Project. (2022). FHIR
Roadmap v1.0. Retrieved from https://
rce.sequoiaproject.org/wp-content/uploads/
2022/01/FHIR-Roadmap-v1.0_updated.pdf.
[FR Doc. 2024–24924 Filed 10–25–24; 8:45 am]
BILLING CODE 4184–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
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Health Resources and Services
Administration
Agency Information Collection
Activities: Proposed Collection: Public
Comment Request; Information
Collection Request Title: Behavioral
Health Integration Evidence Based
Telehealth Network Program Outcome
Measures
Health Resources and Services
Administration (HRSA), Department of
Health and Human Services.
AGENCY:
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ACTION:
Notice.
In compliance with the
requirement for opportunity for public
comment on proposed data collection
projects of the Paperwork Reduction Act
of 1995, HRSA announces plans to
submit an Information Collection
Request (ICR), described below, to the
Office of Management and Budget
(OMB). Prior to submitting the ICR to
OMB, HRSA seeks comments from the
public regarding the burden estimate,
below, or any other aspect of the ICR.
DATES: Comments on this ICR should be
received no later than December 27,
2024.
ADDRESSES: Submit your comments to
[email protected] or mail the HRSA
Information Collection Clearance
Officer, Room 14NWH04, 5600 Fishers
Lane, Rockville, Maryland, 20857.
FOR FURTHER INFORMATION CONTACT: To
request more information on the
proposed project or to obtain a copy of
the data collection plans and draft
instruments, email [email protected]
or call Joella Roland, the HRSA
Information Collection Clearance
Officer, at (301) 443–3983.
SUPPLEMENTARY INFORMATION: When
submitting comments or requesting
information, please include the ICR title
for reference.
Information Collection Request Title:
Behavioral Health Integration Evidence
Based Telehealth Network Program
Outcome Measures, OMB No. 0906–
xxxx—New.
Abstract: This clearance request is for
OMB approval of a new information
collection, the Behavioral Health
Integration Evidence Based Telehealth
Network Program (BHI EB-TNP)
Outcome Measures. Under the BHI EBTNP, HRSA administers grants in
accordance with section 330I(d)(1) of
the Public Health Service Act (42 U.S.C.
254c–14(d)(1)). The purpose of this
program is to integrate behavioral health
services into primary care settings using
telehealth technology through telehealth
networks and evaluate the effectiveness
of such integration. This program
supports evidence-based projects that
utilize telehealth technologies through
telehealth networks in rural and
underserved areas to (1) improve access
to integrated behavioral health services
in primary care settings; and (2) expand
and improve the quality of health
information available to health care
providers by evaluating the
effectiveness of integrating
telebehavioral health services into
primary care settings and establishing
SUMMARY:
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an evidence-based model that can assist
health care providers. HRSA created a
set of outcome measures to evaluate the
effectiveness of grantees’ services
programs and monitor their progress
using performance reporting data. The
measures address behavioral health and
substance use disorder priorities,
originating and distant sites, specialties
and services by site, volume of services
by site and specialty, patient travel
miles saved, and other uses of the
telehealth network.
Need and Proposed Use of the
Information: HRSA’s goals for the
program are to improve access to
needed services, reduce rural
practitioner isolation, improve health
system productivity and efficiency, and
improve patient outcomes. HRSA
worked with program grantees to
develop outcome measures to evaluate
and monitor the progress of the grantees
in each of these categories, with specific
indicators to be reported annually
through a performance monitoring data
collection platform/website. Measures
capture awardee-level and aggregate
data that illustrate the impact and scope
of program funding along with assessing
these efforts. The measures are intended
to inform HRSA’s progress toward
meeting program goals, specifically
improving access to telebehavioral
health services that support primary
care providers.
Likely Respondents: BHI EB-TNP
grantees.
Burden Statement: Burden in this
context means the time expended by
persons to generate, maintain, retain,
disclose, or provide the information
requested. This includes the time
needed to review instructions; to
develop, acquire, install, and utilize
technology and systems for the purpose
of collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; to train
personnel and to be able to respond to
a collection of information; to search
data sources; to complete and review
the collection of information; and to
transmit or otherwise disclose the
information. The total annual burden
hours estimated for this ICR are
summarized in the table below.
E:\FR\FM\28OCN1.SGM
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
TOTAL ESTIMATED ANNUALIZED BURDEN HOURS
Number of
respondents
Form name
Total
responses
Average
burden per
response
(in hours)
Total
burden
hours
BHI EB-TNP Outcome Measurement Report ......................
27
1
27
5
135
Total ..............................................................................
27
........................
27
........................
135
HRSA specifically requests comments
on (1) the necessity and utility of the
proposed information collection for the
proper performance of the agency’s
functions; (2) the accuracy of the
estimated burden; (3) ways to enhance
the quality, utility, and clarity of the
information to be collected; and (4) the
use of automated collection techniques
or other forms of information
technology to minimize the information
collection burden.
Maria G. Button,
Director, Executive Secretariat.
[FR Doc. 2024–24962 Filed 10–25–24; 8:45 am]
BILLING CODE 4165–15–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
Submission for OMB Review; 30-Day
Comment Request; Electronic
Individual Development Plan (eIDP)
(National Eye Institute)
AGENCY:
National Institutes of Health,
HHS.
ACTION:
Notice.
In compliance with the
Paperwork Reduction Act of 1995, the
National Institutes of Health (NIH) has
submitted to the Office of Management
and Budget (OMB) a request for review
and approval of the information
collection listed below.
DATES: Comments regarding this
information collection are best assured
of having their full effect if received
within 30-days of the date of this
publication.
ADDRESSES: Written comments and
recommendations for the proposed
information collection should be sent
within 30 days of publication of this
notice to www.reginfo.gov/public/do/
PRAMain. Find this particular
information collection by selecting
‘‘Currently under 30-day Review—Open
for Public Comments’’ or by using the
search function.
FOR FURTHER INFORMATION CONTACT: To
obtain a copy of the data collection
plans and instruments, submit
SUMMARY:
lotter on DSK11XQN23PROD with NOTICES1
Number of
responses per
respondent
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
comments in writing, or request more
information on the proposed project,
contact: Dr. Cesar E. Perez-Gonzalez,
Training Director, Office of the
Scientific Director, National Eye
Institute, NIH, Building 31, Room 6A22,
MSC 0250, Bethesda, Maryland 20892
or call non-toll-free number (301) 451–
6763 or Email your request, including
your address to: [email protected].
Formal requests for additional plans and
instruments must be requested in
writing.
SUPPLEMENTARY INFORMATION: This
proposed information collection was
previously published in the Federal
Register on August 1, 2024, 89 FR 62749
and allowed 60 days for public
comment. No public comments were
received. The purpose of this notice is
to allow an additional 30 days for public
comment.
The National Eye Institute (NEI),
National Institutes of Health, may not
conduct or sponsor, and the respondent
is not required to respond to, an
information collection that has been
extended, revised, or implemented on or
after October 1, 1995, unless it displays
a currently valid OMB control number.
In compliance with Section
3507(a)(1)(D) of the Paperwork
Reduction Act of 1995, the National
Institutes of Health (NIH) has submitted
to the Office of Management and Budget
(OMB) a request for review and
approval of the information collection
listed below.
Proposed Collection: Electronic
Individual Development Plans, 0925–
0772 and 10/31/2024-Extension,
National Eye Institute (NEI), National
Institutes of Health (NIH).
Need and Use of Information
Collection: The National Eye Institute’s
(NEI) Office of the Scientific Director
(OSD) goal is to train the next
generation of vision researchers and
ophthalmologists. Trainees who
participate in NEI research come with
different levels of education (student,
postbaccalaureate, predoctoral
including graduate and medical
students, postdoctoral fellows) and for
different amounts of time (6 months to
5 years). Training at the NEI focuses on
scientific and professional skill
PO 00000
Frm 00059
Fmt 4703
Sfmt 4703
development. To enhance their chances
of obtaining their ideal career,
completing an annual Individual
Development Plan (IDP) is an important
step in helping a trainee’s career and
professional development and is
standard practice in graduate and
postdoctoral education. An IDP is an
effective tool for trainees to think about
their career goals and skills needed to
achieve them during their time at the
NEI. Trainees work together with their
research mentor to organize and
summarize their research projects,
consider career goals, and set training
goals and expectations, both for the
mentee and mentor.
This information collection request is
to implement an electronic Individual
Development Plan (eIDP). The data
collected comes from a detailed
questionnaire focused on responses to
professional goals and expectations
while they are at the NEI. It is expected
that the trainees will complete the eIDP
annually and by doing so, it will help
enhance the effectiveness of their
training by setting clear goals that can
be monitored not only by the trainee
themselves but also by their mentor, the
Training Director, and their
Administrative Officer. In addition to
this eIDP, the system will also
implement an electronic exit survey.
The data collected comes from a
detailed questionnaire focused on
responses to questions focused on
trainee mentoring and professional
experiences at the NEI as well as their
plans after they depart. It is expected
that the trainees will complete at the
end of their tenure and that by doing so,
the NEI Training Program can learn
about ways to improve career
development opportunities for future
trainees as well as learn more about
trainee job choices to better advise
fellows. Additionally, we can use the
survey to help determine mentor
effectiveness and help identify problems
in mentoring at the NEI.
OMB approval is requested for 3
years. There are no costs to respondents
other than their time. The total
estimated annualized burden hours are
213.
E:\FR\FM\28OCN1.SGM
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
ESTIMATED ANNUALIZED BURDEN HOURS
Total
annual
burden
hour
eIDP (Attachment 1) ................................................................
Exit Survey Part 1 (Attachment 2) ..........................................
Exit Survey Part 2 (Attachment 3) ..........................................
Individuals ..............
Individuals ..............
Individuals ..............
150
150
150
1
1
1
1
5/60
20/60
150
13
50
Total ..................................................................................
................................
......................
450
......................
213
and Transplantation Research; 93.856,
Microbiology and Infectious Diseases
Research, National Institutes of Health, HHS)
Dated: October 23, 2024.
Cesar E. Perez-Gonzalez,
Training Director, National Eye Institute,
National Institutes of Health.
Dated: October 22, 2024.
Lauren A. Fleck,
Program Analyst, Office of Federal Advisory
Committee Policy.
[FR Doc. 2024–25017 Filed 10–25–24; 8:45 am]
BILLING CODE 4140–01–P
[FR Doc. 2024–24975 Filed 10–25–24; 8:45 am]
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
BILLING CODE 4140–01–P
National Institutes of Health
National Institute of Allergy and
Infectious Diseases; Notice of Closed
Meeting
Pursuant to section 1009 of the
Federal Advisory Committee Act, as
amended, notice is hereby given of the
following meeting.
The meeting will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
lotter on DSK11XQN23PROD with NOTICES1
Average
time per
response
(in hours)
Type of
respondent
Name of Committee: National Institute of
Allergy and Infectious Diseases Special
Emphasis Panel; NIAID Investigator Initiated
Program Project Applications (P01 Clinical
Trial Not Allowed).
Date: November 21, 2024.
Time: 11:00 a.m. to 5:00 p.m.
Agenda: To review and evaluate grant
applications.
Place: National Institute of Allergy and
Infectious Diseases, National Institutes of
Health, 5601 Fishers Lane, Room 3G34,
Rockville, MD 20892 (Video Assisted
Meeting).
Contact Person: Vishakha Sharma, Ph.D.,
Scientific Review Officer, Scientific Review
Program, Division of Extramural Activities,
National Institute of Allergy and Infectious
Diseases, National Institutes of Health, 5601
Fishers Lane, Room 3G34, Rockville, MD
20892, 301–761–7036, vishakha.sharma@
nih.gov.
(Catalogue of Federal Domestic Assistance
Program Nos. 93.855, Allergy, Immunology,
VerDate Sep<11>2014
19:13 Oct 25, 2024
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Number of
respondents
Number of
responses per
respondent
Form name
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
National Institute of Allergy and
Infectious Diseases; Notice of Closed
Meeting
Pursuant to section 1009 of the
Federal Advisory Committee Act, as
amended, notice is hereby given of the
following meeting.
The meeting will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
Name of Committee: National Institute of
Allergy and Infectious Diseases Special
Emphasis Panel: Tailoring HIV Curative
Strategies to the Participant (UM1 Clinical
Trial Not Allowed).
Date: December 2–3, 2024.
Time: 9:30 a.m. to 6:00 p.m.
Agenda: To review and evaluate grant
applications.
Place: National Institute of Allergy and
Infectious Diseases, National Institutes of
Health, 5601 Fishers Lane, Room 3G22
Rockville, MD 20892 (Video Assisted
Meeting).
Contact Person: Kristina S. Wickham,
Ph.D., Scientific Review Officer, Scientific
Review Program, Division of Extramural
Activities, National Institute of Allergy and
Infectious Diseases, National Institutes of
Health, 5601 Fishers Lane, Room 3G22,
PO 00000
Frm 00060
Fmt 4703
Sfmt 4703
Rockville, MD 20892, 301–761–5390,
[email protected].
(Catalogue of Federal Domestic Assistance
Program Nos. 93.855, Allergy, Immunology,
and Transplantation Research; 93.856,
Microbiology and Infectious Diseases
Research, National Institutes of Health, HHS)
Dated: October 22, 2024.
Lauren A. Fleck,
Program Analyst, Office of Federal Advisory
Committee Policy.
[FR Doc. 2024–24980 Filed 10–25–24; 8:45 am]
BILLING CODE 4140–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
National Institute of Allergy and
Infectious Diseases; Notice of Closed
Meeting
Pursuant to section 1009 of the
Federal Advisory Committee Act, as
amended, notice is hereby given of the
following meeting.
The meeting will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
Name of Committee: National Institute of
Allergy and Infectious Diseases Special
Emphasis Panel; NIAID Clinical Trial
Implementation Cooperative Agreement (U01
Clinical Trial Required).
Date: November 19, 2024.
Time: 1:00 p.m. to 4:00 p.m.
Agenda: To review and evaluate grant
applications.
Place: National Institute of Allergy and
Infectious Diseases, National Institutes of
Health, 5601 Fishers Lane, Room 3G11,
Rockville, MD 20892 (Video Assisted
Meeting).
Contact Person: Barry J. Margulies, Ph.D.,
Scientific Review Officer, Scientific Review
Program, Division of Extramural Activities,
E:\FR\FM\28OCN1.SGM
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
National Institute of Allergy and Infectious
Diseases, National Institutes of Health, 5601
Fishers Lane, Room 3G11, Rockville, MD
20892, (301) 761–7956, barry.margulies@
nih.gov.
(Catalogue of Federal Domestic Assistance
Program Nos. 93.855, Allergy, Immunology,
and Transplantation Research; 93.856,
Microbiology and Infectious Diseases
Research, National Institutes of Health, HHS)
Dated: October 22, 2024.
Lauren A. Fleck,
Program Analyst, Office of Federal Advisory
Committee Policy.
[FR Doc. 2024–24979 Filed 10–25–24; 8:45 am]
BILLING CODE 4140–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
Center for Scientific Review; Notice of
Closed Meetings
lotter on DSK11XQN23PROD with NOTICES1
Pursuant to section 1009 of the
Federal Advisory Committee Act, as
amended, notice is hereby given of the
following meetings.
The meetings will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
Name of Committee: Center for Scientific
Review Special Emphasis Panel PAR Panel:
Biodata Management and Common Fund
Data Sets.
Date: November 19–20, 2024.
Time: 9:00 a.m. to 6:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Janice Duy, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, 6701 Rockledge Drive,
Bethesda, MD 20892, 301–594–3139,
[email protected].
Name of Committee: Social and
Community Influences on Health Integrated
Review Group Population and Public Health
Approaches to HIV/AIDS Study Section.
Date: November 19–20, 2024.
Time: 9:00 a.m. to 6:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: In Person and Virtual
Meeting.
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
Contact Person: Aubrey S. Madkour, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 1000C,
Bethesda, MD 20892, (301) 594–6891,
[email protected].
Name of Committee: Center for Scientific
Review Special Emphasis Panel; The Cancer
Drug Development and Cancer Therapeutics.
Date: November 19, 2024.
Time: 10:00 a.m. to 6:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Lambratu Rahman Sesay,
Ph.D., Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 6214,
MSC 7804, Bethesda, MD 20892, 301–905–
8294, [email protected].
Name of Committee: Center for Scientific
Review Special Emphasis Panel PAR Panel:
Advancing HIV Service Delivery Through
Pharmacies and Pharmacists.
Date: November 20–21, 2024.
Time: 9:00 a.m. to 6:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Mark P. Rubert, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 5218,
MSC 7852, Bethesda, MD 20892, 301–806–
6596, [email protected].
Name of Committee: Center for Scientific
Review Special Emphasis Panel Member
Conflict: Musculoskeletal Sciences.
Date: November 20, 2024.
Time: 9:30 a.m. to 6:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Chee Lim, Ph.D., Scientific
Review Officer, Center for Scientific Review,
National Institutes of Health, 6701 Rockledge
Drive, Room 4128 Bethesda, MD 20892, (301)
435–1850, [email protected].
Name of Committee: Center for Scientific
Review Special Emphasis Panel PAR–22–
180: Maximizing Investigators’ Research
Award (R35).
Date: November 20–21, 2024.
Time: 9:30 a.m. to 6:30 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Mufeng Li, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Bethesda, MD
20892, (240) 507–9155, [email protected].
PO 00000
Frm 00061
Fmt 4703
Sfmt 9990
Name of Committee: Center for Scientific
Review Special Emphasis Panel Member
Conflict: Cellular Signaling and Aging.
Date: November 20, 2024.
Time: 10:00 a.m. to 6:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Robert O’Hagan, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Bethesda, MD,
20892 (240) 909–6378, ohaganr2@
csr.nih.gov.
Name of Committee: Infectious Diseases
and Immunology B Integrated Review Group
Immunobiology of Transplantation and
Alloimmunity Study Section.
Date: November 20–21, 2024.
Time: 10:00 a.m. to 6:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Anthony David Foster,
Scientific Review Officer, The Center for
Scientific Review, The National Institutes of
Health, 6701 Rockledge Drive, Bethesda, MD
20892, (301) 496–3297, anthony.foster@
nih.gov.
Name of Committee: Center for Scientific
Review Special Emphasis Panel Member
Conflict: Pain Mechanisms.
Date: November 20, 2024.
Time: 2:00 p.m. to 6:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge, Drive
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Kirk Thompson, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 5184,
MSC 7844, Bethesda, MD 20892, 301–435–
1242, [email protected].
(Catalogue of Federal Domestic Assistance
Program Nos. 93.306, Comparative Medicine;
93.333, Clinical Research, 93.306, 93.333,
93.337, 93.393–93.396, 93.837–93.844,
93.846–93.878, 93.892, 93.893, National
Institutes of Health, HHS)
Dated: October 23, 2024.
Miguelina Perez,
Program Analyst, Office of Federal Advisory
Committee Policy.
[FR Doc. 2024–24977 Filed 10–25–24; 8:45 am]
BILLING CODE 4140–01–P
E:\FR\FM\28OCN1.SGM
28OCN1
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
Center for Scientific Review; Notice of
Closed Meetings
lotter on DSK11XQN23PROD with NOTICES1
Pursuant to section 1009 of the
Federal Advisory Committee Act, as
amended, notice is hereby given of the
following meetings.
The meetings will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
Name of Committee: Center for Scientific
Review Special Emphasis Panel; PAR Panel:
Shared Instrumentation: Interdisciplinary
Molecular Sciences and Technologies (S10).
Date: November 21–22, 2024.
Time: 9:30 a.m. to 6:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Alexander Gubin, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 4196,
MSC 7812, Bethesda, MD 20892, 301–435–
2902, [email protected].
Name of Committee: Center for Scientific
Review Special Emphasis Panel; Topics in
Disease Control and Applied Immunology.
Date: November 21, 2024.
Time: 9:30 a.m. to 8:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Liangbiao Zheng, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 3202,
MSC 7808, Bethesda, MD 20892, 301–996–
5819, [email protected].
Name of Committee: Infectious Diseases
and Immunology B Integrated Review Group;
HIV Coinfections and HIV Associated
Cancers Study Section.
Date: November 21–22, 2024.
Time: 9:30 a.m. to 5:30 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Joshua D. Powell, Ph.D.,
Scientific Review Officer, Center for
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Bethesda, MD
20892, (301) 594–5370 [email protected].
Name of Committee: Center for Scientific
Review Special Emphasis Panel; Member
Conflict: Topics in Gastroenterology.
Date: November 21–22, 2024.
Time: 10:00 a.m. to 8:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Santanu Banerjee, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 2106,
Bethesda, MD 20892, (301) 435–5947
[email protected].
Name of Committee: Center for Scientific
Review Special Emphasis Panel; Member
Conflict: Oral and Dental Sciences.
Date: November 21, 2024.
Time: 10:00 a.m. to 7:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive Bethesda,
MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Carmen Bertoni, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 805B,
Bethesda, MD 20892, (301) 867–5309,
[email protected].
Name of Committee: Center for Scientific
Review, Special Emphasis Panel;
Biobehavioral Medicine, Lifestyle Change
and Health Outcomes.
Date: November 21, 2024.
Time: 10:00 a.m. to 8:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive Bethesda,
MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Kristen Prentice, Ph.D.
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 3112,
MSC 7808, Bethesda, MD 20892 (301) 496–
0726 [email protected].
Name of Committee: Center for Scientific
Review, Special Emphasis Panel;
Fellowships: Infectious Diseases and
Immunology Panel C.
Date: November 21–22, 2024.
Time: 10:00 a.m. to 8:00 p.m.
Agenda: To review and evaluate grant
applications.
Address: National Institutes of Health,
Rockledge II, 6701 Rockledge Drive Bethesda,
MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Melinda H. Krick, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Dr., Room 808G,
Bethesda, MD 20892, (301) 435–1199
[email protected].
(Catalogue of Federal Domestic Assistance
Program Nos. 93.306, Comparative Medicine;
PO 00000
Frm 00062
Fmt 4703
Sfmt 9990
85549
93.333, Clinical Research, 93.306, 93.333,
93.337, 93.393–93.396, 93.837–93.844,
93.846–93.878, 93.892, 93.893, National
Institutes of Health, HHS)
Dated: October 22, 2024.
Lauren A. Fleck,
Program Analyst, Office of Federal Advisory
Committee Policy.
[FR Doc. 2024–24978 Filed 10–25–24; 8:45 am]
BILLING CODE 4140–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
National Institute of Dental &
Craniofacial Research; Notice of
Closed Meeting
Pursuant to section 1009 of the
Federal Advisory Committee Act, as
amended, notice is hereby given of a
meeting of the Board of Scientific
Counselors, National Institute of Dental
and Craniofacial Research.
The meeting will be closed to the
public as indicated below in accordance
with the provisions set forth in section
552b(c)(6), Title 5 U.S.C., as amended
for the review, discussion, and
evaluation of individual intramural
programs and projects conducted by the
National Institute of Dental &
Craniofacial Research, including
consideration of personnel
qualifications and performance, and the
competence of individual investigators,
the disclosure of which would
constitute a clearly unwarranted
invasion of personal privacy.
Name of Committee: Board of Scientific
Counselors, National Institute of Dental and
Craniofacial Research.
Date: December 3, 2024.
Time: 10:00 a.m. to 6:30 p.m.
Agenda: To review and evaluate personnel
qualifications and performance, and
competence of individual investigators.
Address: National Institute of Dental &
Craniofacial Research, 31 Center Drive,
Bethesda, MD 20892.
Meeting Format: Virtual Meeting.
Contact Person: Yun Mei, M.D., Scientific
Review Officer, Scientific Review Branch,
National Institute of Dental & Craniofacial
Research, National Institutes of Health, 31
Center Drive, Bethesda, MD 20892, 301–827–
4639, email: [email protected].
(Catalogue of Federal Domestic Assistance
Program No. 93.121, Oral Diseases and
Disorders Research, National Institutes of
Health, HHS)
Dated: October 22, 2024.
Bruce A. George,
Program Analyst, Office of Federal Advisory
Committee Policy.
[FR Doc. 2024–24951 Filed 10–25–24; 8:45 am]
BILLING CODE 4140–01–P
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DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
Eunice Kennedy Shriver National
Institute of Child Health & Human
Development; Notice of Meeting
lotter on DSK11XQN23PROD with NOTICES1
Pursuant to section 1009 of the
Federal Advisory Committee Act, as
amended, notice is hereby given of a
meeting of the National Advisory Board
on Medical Rehabilitation Research.
This will be a hybrid meeting held inperson and virtually and will be open to
the public as indicated below.
Individuals who plan to attend inperson or view the virtual meeting and
need special assistance or other
reasonable accommodations, should
notify the Contact Person listed below
in advance of the meeting. The meeting
can be accessed from the NIH Videocast
at the following link: https://
videocast.nih.gov/.
Name of Committee: National Advisory
Board on Medical Rehabilitation Research.
Date: December 2–3, 2024.
Time: December 02, 2024, 10:00 a.m. to
5:00 p.m.
Agenda: NICHD Director’s Report, NCMRR
Director’s report; NABMRR Liaison to NICHD
Advisory Council Report; Scientific Talk on
Collaboration; Report from the NIH Disability
Research Coordinating Committee; Scientific
Talk on Bilateral Task Training Post Stroke;
Updates on the NIH Research Plan on
Rehabilitation; Nominations for next Chair.
Address: Eunice Kennedy Shriver National
Institute of Child Health and Human
Development, 6710B Rockledge Drive,
Bethesda, MD 20817 (In Person and Virtual
Meeting).
Time: December 03, 2024, 10:00 a.m. to
2:00 p.m.
Agenda: Implementation of the NIH’s
Simplified Review Framework; Scientific
Talk on BCI; Election of Chair; Talk on
Community Engagement in Research;
Planning for next meeting in May 2025.
Address: Eunice Kennedy Shriver National
Institute of Child Health and Human
Development, 6710B Rockledge Drive,
Bethesda, MD 20817 (In Person and Virtual
Meeting).
Contact Person: Ralph M. Nitkin, Ph.D.,
Deputy Director, National Center for Medical
Rehabilitation, Eunice Kennedy Shriver
National Institute of Child Health and
Human Development, NIH, 6710B Rockledge
Drive, Room 2116, Bethesda, MD 20892–
7510, (301) 402–4206, [email protected].
Any interested person may file written
comments with the committee by forwarding
the statement to the Contact Persons listed on
this notice. The statement should include the
name, address, telephone number and when
applicable, the business or professional
affiliation of the interested person.
Any member of the public interested in
presenting oral comments to the committee
may notify the Contact Person listed on this
VerDate Sep<11>2014
19:13 Oct 25, 2024
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notice at least 10 days in advance of the
meeting. Interested individuals and
representatives of an organization may
submit a letter of intent, a brief description
of the organization represented and a short
description of the oral presentation. Only one
representative of an organization may be
allowed to present oral comments and
presentations may be limited to five minutes.
Both printed and electronic copies are
requested for the record. In addition, any
interested person may file written comments
with the committee by forwarding the
statement to the Contact Person listed on this
notice. The statement should include the
name, address, telephone number and when
applicable, the business or professional
affiliation of the interested person.
In the interest of security, NIH has
procedures at https://www.nih.gov/aboutnih/visitor-information/campus-accesssecurity for entrance into on-campus and offcampus facilities. All visitor vehicles,
including taxicabs, hotel, and airport shuttles
will be inspected before being allowed on
campus. Visitors attending a meeting on
campus or at an off-campus federal facility
will be asked to show one form of
identification (for example, a governmentissued photo ID, driver’s license, or passport)
and to state the purpose of their visit.
Information is also available on the
Institute’s/Center’s home page: https://
www.nichd.nih.gov/about/advisory/nabmrr,
where an agenda and any additional
information for the meeting will be posted
when available.
(Catalogue of Federal Domestic Assistance
Program Nos. 93.864, Population Research;
93.865, Research for Mothers and Children;
93.929, Center for Medical Rehabilitation
Research; 93.209, Contraception and
Infertility Loan Repayment Program, National
Institutes of Health, HHS)
Dated: October 22, 2024.
Lauren A. Fleck,
Program Analyst, Office of Federal Advisory
Committee Policy.
[FR Doc. 2024–24982 Filed 10–25–24; 8:45 am]
BILLING CODE 4140–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Substance Abuse and Mental Health
Services Administration
Notice of Meeting
Pursuant to Public Law 92–463,
notice is hereby given that the
Substance Abuse and Mental Health
Services Administration’s (SAMHSA)
Center for Substance Abuse Prevention’s
(CSAP) Drug Testing Advisory Board
(DTAB) will convene via web
conference on December 3, 2024, from
10 a.m. EST to 2:30 p.m. EST.
The board will meet in open session
December 3, 2024, from 10 a.m. EST to
2:30 p.m. EST to hear updates from the
Department of Transportation (DOT),
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the Department of Defense (DoD) and
the Nuclear Regulatory Commission
(NRC), and updates from HHS on the
Federal Workplace Drug Testing
Program and Mandatory Guidelines.
Additionally, the board will hear
presentations regarding a collaboration
between the Department of Defense and
the Division of Workplace Programs as
well as data presented for consideration
regarding evaluation of the cutoff for an
invalid pH result in urine.
Data provided by HHS-certified
laboratories indicates that invalid urine
pH results cycle with the seasonal
temperature fluctuations. Data will be
presented to facilitate and inform
decisions regarding a possible
adjustment in the cutoff for urine pH to
reduce this cyclical effect while
continuing to identify potential
tampering of specimens.
Meeting registration information can
be completed at https://
snacregister.samhsa.gov/. Web
conference and call information will be
sent after completing registration.
Meeting information and a roster of
DTAB members may be obtained by
accessing the SAMHSA Advisory
Committees website, https://
www.samhsa.gov/about-us/advisorycouncils/meetings, or by contacting the
Designated Federal Officer, Lisa Davis.
Committee Name: Substance Abuse
and Mental Health Services
Administration, Center for Substance
Abuse Prevention, Drug Testing
Advisory Board.
Dates/Time/Type: December 3, 2024,
from 10:00am EST to 2:30pm EST:
Open.
Place: Virtual.
To Submit Comments: Requests to
make public comment during the public
comment period of the December DTAB
meeting must be made in writing at least
7 days prior to the meeting to the
following email: DFWP@
samhsa.hhs.gov.
Contact: Lisa S. Davis, M.S, Social
Science Analyst, Center for Substance
Abuse Prevention, 5600 Fishers Lane,
Rockville, Maryland, 20857, Telephone:
(240) 276–1440, Email: Lisa.Davis@
samhsa.hhs.gov.
Anastasia Flanagan,
Public Health Advisor, Division of Workplace
Programs.
[FR Doc. 2024–24972 Filed 10–25–24; 8:45 am]
BILLING CODE 4162–20–P
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DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 81
[Docket No. USCG–2024–0907]
Certificate of Alternative Compliance
for the Delta Marine Industries
Shipyard Hull #107050
Coast Guard, DHS.
Notification of issuance of a
certificate of alternative compliance.
AGENCY:
ACTION:
The Coast Guard announces
that the Chief, Prevention Division,
Thirteenth District has issued a
certificate of alternative compliance
from the International Regulations for
Preventing Collisions at Sea, 1972 (72
COLREGS), for The Delta Marine
Industries Shipyard Hull #107050. We
are issuing this notice because its
publication is required by statute. Due
to the construction and placement of the
masthead light, Delta Marine Industries
Shipyard Hull #107050 cannot fully
comply with the light, shape, or sound
signal provisions of the 72 COLREGS
without interfering with the vessel’s
design and construction. This
notification of issuance of a certificate of
alternative compliance promotes the
Coast Guard’s marine safety mission.
DATES: The Certificate of Alternative
Compliance was issued on August 15,
2024.
SUMMARY:
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FOR FURTHER INFORMATION CONTACT:
For
information or questions about this
notice call or email Ms. Jill L. Lazo,
Thirteenth District, U.S. Coast Guard,
telephone (571) 607–1461, email
[email protected].
SUPPLEMENTARY INFORMATION: The
United States is signatory to the
International Maritime Organization’s
International Regulations for Preventing
Collisions at Sea, 1972 (72 COLREGS),
as amended. The special construction or
purpose of some vessels makes them
unable to comply with the light, shape,
or sound signal provisions of the 72
COLREGS. Under statutory law,
however, specified 72 COLREGS
provisions are not applicable to a vessel
of special construction or purpose if the
Coast Guard determines that the vessel
cannot fully comply with those
requirements without interfering with
special function of the vessel.1
The owner, builder, operator, or agent
of a special construction or purpose
vessel may apply to the Coast Guard
District Office in which the vessel is
1 33
U.S.C. 1605.
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19:13 Oct 25, 2024
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being built or operated for
determination that compliance with
alternate requirements is justified,2 and
the Chief of the Prevention Division
would then issue the applicant a
certificate of alternative compliance
(COAC) if he or she determines that the
vessel cannot fully comply with 72
COLREGS light, shape, and sound signal
provisions without interference with the
vessel’s special function.3 If the Coast
Guard issues a COAC, it must publish
notice of this action in the Federal
Register.4
The Chief, Thirteenth Coast Guard
District, certifies that Delta Marine
Industries Shipyard Hull #107050 is a
vessel of special construction or
purpose, and that, with respect to the
position of the masthead light, it is not
possible to comply fully with the
requirements of the provisions
enumerated in the 72 COLREGS,
without interfering with the normal
operation, construction, or design of the
vessel. The Chief, Thirteenth Coast
Guard District, Prevention Division
further finds and certifies that the
masthead light is in the closest possible
compliance with the applicable
provisions of the 72 COLREGS.5
This notice is issued under authority
of 33 U.S.C. 1605(c) and 33 CFR 81.18.
Dated: October 21, 2024.
D.A. Jensen,
Captain, U.S. Coast Guard, Chief, Prevention
Division, Thirteenth Coast Guard District.
[FR Doc. 2024–25025 Filed 10–25–24; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
[Docket No. USCG–2024–0883]
Information Collection Request to
Office of Management and Budget
OMB Control Number: 1625–0033
Coast Guard, DHS.
Sixty-day notice requesting
comments.
AGENCY:
ACTION:
In compliance with the
Paperwork Reduction Act of 1995, the
U.S. Coast Guard intends to submit an
Information Collection Request (ICR) to
the Office of Management and Budget
(OMB), Office of Information and
Regulatory Affairs (OIRA), requesting an
extension of its approval for the
following collection of information:
SUMMARY:
2 33
CFR 81.5.
CFR 81.9.
4 33 U.S.C. 1605(c) and 33 CFR 81.18.
5 33 U.S.C. 1605(a); 33 CFR 81.9.
3 33
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85551
1625–0033, Display of Fire Control
Plans for Vessel; without change. Our
ICR describes the information we seek
to collect from the public. Before
submitting this ICR to OIRA, the Coast
Guard is inviting comments as
described below.
DATES: Comments must reach the Coast
Guard on or before December 27, 2024.
ADDRESSES: You may submit comments
identified by Coast Guard docket
number [USCG–2024–0883] to the Coast
Guard using the Federal eRulemaking
Portal at https://www.regulations.gov.
See the ‘‘Public participation and
request for comments’’ portion of the
SUPPLEMENTARY INFORMATION section for
further instructions on submitting
comments.
A copy of the ICR is available through
the docket on the internet at https://
www.regulations.gov. Additionally,
copies are available from:
COMMANDANT (CG–6P), Attn:
Paperwork Reduction Act Manager, U.S.
Coast Guard, 2703 Martin Luther King
Jr. Ave. SE, Stop 7710, Washington, DC
20593–7710.
FOR FURTHER INFORMATION CONTACT: A.L.
Craig, Office of Privacy Management,
telephone 202–475–3528, fax 202–372–
8405, or email hqs-dg-m-cg-61-pii@
uscg.mil for questions on these
documents.
SUPPLEMENTARY INFORMATION:
Public Participation and Request for
Comments
This notice relies on the authority of
the Paperwork Reduction Act of 1995;
44 U.S.C. 3501 et seq., chapter 35, as
amended. An ICR is an application to
OIRA seeking the approval, extension,
or renewal of a Coast Guard collection
of information (Collection). The ICR
contains information describing the
Collection’s purpose, the Collection’s
likely burden on the affected public, an
explanation of the necessity of the
Collection, and other important
information describing the Collection.
There is one ICR for each Collection.
The Coast Guard invites comments on
whether this ICR should be granted
based on the Collection being necessary
for the proper performance of
Departmental functions. In particular,
the Coast Guard would appreciate
comments addressing: (1) the practical
utility of the Collection; (2) the accuracy
of the estimated burden of the
Collection; (3) ways to enhance the
quality, utility, and clarity of
information subject to the Collection;
and (4) ways to minimize the burden of
the Collection on respondents,
including the use of automated
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collection techniques or other forms of
information technology.
In response to your comments, we
may revise this ICR or decide not to seek
an extension of approval for the
Collection. We will consider all
comments and material received during
the comment period.
We encourage you to respond to this
request by submitting comments and
related materials. Comments must
contain the OMB Control Number of the
ICR and the docket number of this
request, USCG–2024–0883, and must be
received by December 27, 2024.
lotter on DSK11XQN23PROD with NOTICES1
Submitting Comments
We encourage you to submit
comments through the Federal
eRulemaking Portal at https://
www.regulations.gov. If your material
cannot be submitted using https://
www.regulations.gov, contact the person
in the FOR FURTHER INFORMATION
CONTACT section of this document for
alternate instructions. Documents
mentioned in this notice, and all public
comments, are in our online docket at
https://www.regulations.gov and can be
viewed by following that website’s
instructions. We review all comments
received, but we may choose not to post
off-topic, inappropriate, or duplicate
comments that we receive. Additionally,
if you go to the online docket and sign
up for email alerts, you will be notified
when comments are posted.
We accept anonymous comments.
Comments we post to https://
www.regulations.gov will include any
personal information you have
provided. For more about privacy and
submissions in response to this
document, see DHS’s eRulemaking
System of Records notice (85 FR 14226,
March 11, 2020).
Information Collection Request
Title: Display of Fire Control Plans for
Vessels.
OMB Control Number: 1625–0033.
Summary: This information collection
is for the posting or display of specific
plans on certain categories of
commercial vessels. The availability of
these plans aid firefighters and damage
control efforts in response to
emergencies.
Need: Under 46 U.S.C. 3305 and 3306,
the Coast Guard is responsible for
ensuring the safety of inspected vessels
and has promulgated regulations in 46
CFR parts 35, 78, 97, 109, 131, 169, and
196 to ensure that safety standards are
met.
Forms: None.
Respondents: Owners and operators
of vessels.
Frequency: On occasion.
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19:13 Oct 25, 2024
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Hour Burden Estimate: The estimated
burden has increased from 472 hours to
493 hours a year, due to an increase in
the estimated annual number of
respondents.
Authority: The Paperwork Reduction
Act of 1995; 44 U.S.C. chapter 35, as
amended.
Dated: October 22, 2024.
Kathleen Claffie,
Chief, Office of Privacy Management, U.S.
Coast Guard.
[FR Doc. 2024–25026 Filed 10–25–24; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[Docket No. FR–7091–N–07]
60-Day Notice of Proposed Information
Collection: Voucher Management
System (VMS) Form OMB Control No.:
2577–0282
Office of the Assistant
Secretary for Public and Indian Housing
(PIH), HUD.
ACTION: Notice.
AGENCY:
HUD is seeking approval from
the Office of Management and Budget
(OMB) for the information collection
described below. In accordance with the
Paperwork Reduction Act, HUD is
requesting comment from all interested
parties on the proposed collection of
information. The purpose of this notice
is to allow for 60 days of public
comment.
DATES: Comments Due December 27,
2024.
ADDRESSES: Interested persons are
invited to submit comments regarding
this proposal. Written comments and
recommendations for the proposed
information collection can be sent
within 60 days of publication of this
notice to www.regulations.gov.
Interested persons are also invited to
submit comments regarding this
proposal by name and/or OMB Control
Number and can be sent to: Colette
Pollard, Reports Management Officer,
REE, Department of Housing and Urban
Development, 451 7th Street SW, Room
8210, Washington, DC 20410–5000;
telephone (202) 402–3400, (this is not a
toll-free number) or email at
[email protected], for a copy of
the proposed forms or other available
information.
FOR FURTHER INFORMATION CONTACT:
Colette Pollard, Reports Management
Officer, REE, Department of Housing
and Urban Development, 451 7th Street
SW, Washington, DC 20410; email
SUMMARY:
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[email protected] or telephone
(202) 402–3400. This is not a toll-free
number. HUD welcomes and is prepared
to receive calls from individuals who
are deaf or hard of hearing, as well as
individuals with speech and
communication disabilities. To learn
more about how to make an accessible
telephone call, please visit https://
www.fcc.gov/consumers/guides/
telecommunications-relay-service-trs.
Copies of available documents
submitted to OMB may be obtained
from Ms. Pollard. SUPPLEMENTARY
INFORMATION: This notice informs the
public that HUD is seeking approval
from OMB for the information collection
described in Section A.
A. Overview of Information Collection
Title of Information Collection:
Voucher Management System (VMS).
OMB Approval Number: 2577–0282.
Type of Request: Extension to a
previously approved collection.
Form Number: HUD–52663, HUD–
52672, HUD–52673, HUD–52681, HUD–
52681–B.
The automated forms in collection
2577–0282 (Voucher for Payment of
Annual Contributions and Operating
Statement Housing Assistance Payments
Program Supplemental Reporting Form)
is entered by the PHA into the Voucher
Management System (VMS) on a
monthly basis during each calendar year
to track leasing and HAP expenses by
voucher category, as well as data
concerning fraud recovery, PHA-held
equity, etc. The automated form HUD–
52681–B is also utilized by the same
programs as the manual forms. This
request is just an extension of these
forms which are set to expire 03/31/
2025.
Description of the need for the
information and proposed use: The
Voucher Management System (VMS)
supports the information management
needs of the Housing Choice Voucher
(HCV) Program and management
functions performed by the Financial
Management Center (FMC) and the
Financial Management Division (FMD)
of the Office of Public and Indian
Housing and the Real Estate Assessment
Center (PIH–REAC). This system’s
primary purpose is to provide a central
system to monitor and manage the
Public Housing Agency (PHAs) use of
vouchers and expenditure of program
funds, and is the base for budget
formulation and budget
implementation. The VMS collects
PHAs’ actual cost data that enables HUD
to perform and control cash
management activities; the costs
reported are the base for quarterly HAP
and Fee obligations and advance
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disbursements in a timely manner, and
reconciliations for overages and
shortages on a quarterly basis.
Respondents: Public Housing
Authorities.
(HUD–52663, HUD–52672, HUD–52673,
HUD–52681).
Average Hours per Response: 2.
Total Estimated Burdens: 51,672.
Information collection
Number of
respondents
Frequency of
response
Responses
per annum
Burden hour
per response
Annual burden
hours
Hourly cost
per response
Annual cost
Total ........................................................
2,153
12
25,836
2
51,672
$35.67
$1,843,140.24
B. Solicitation of Public Comment
This notice is soliciting comments
from members of the public and affected
parties concerning the collection of
information described in Section A on
the following:
(1) Whether the proposed collection
of information is necessary for the
proper performance of the functions of
the agency, including whether the
information will have practical utility;
(2) The accuracy of the agency’s
estimate of the burden of the proposed
collection of information;
(3) Ways to enhance the quality,
utility, and clarity of the information to
be collected; and
(4) Ways to minimize the burden of
the collection of information on those
who are to respond; including through
the use of appropriate automated
collection techniques or other forms of
information technology, e.g., permitting
electronic submission of responses.
HUD encourages interested parties to
submit comment in response to these
questions.
C. Authority
Section 3507 of the Paperwork
Reduction Act of 1995, 44 U.S.C.
Chapter 35.
Lora Routt,
Director, Office of Policy, Programs and
Legislative Initiatives.
[FR Doc. 2024–24984 Filed 10–25–24; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[Docket No. FR–6497–N–01]
Notice of HUD-Held Non Vacant Loan
Sales (HNVLS 2025–1)
Office of the Assistant
Secretary for Housing Federal Housing
Commissioner, U.S. Department of
Housing and Urban Development
(HUD).
ACTION: Notice.
AGENCY:
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Estimated Number of Respondents:
2,153.
Estimated Number of Responses:
25,836.
Frequency of Response: monthly
(HUD–52681, HUD–52681–B)/annually
This notice announces HUD’s
intention to competitively offer
approximately 1,180 home equity
SUMMARY:
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19:13 Oct 25, 2024
Jkt 265001
conversion mortgages (HECM, or reverse
mortgage loans) secured by occupied
properties with a loan balance of
approximately $500 million. The sale
will consist of due and payable
Secretary-held reverse mortgage loans.
The mortgage loans consist of first liens
secured by real property that is
occupied, where the borrower and coborrowing spouse are deceased, and
heirs have not come forward in the time
elapsed. The Secretary will prioritize up
to 50 percent of the offered assets for
award to nonprofit organizations or
governmental entity bidders with a
documented housing mission. This
notice also generally describes the
bidding process for the sale and certain
entities who are ineligible to bid. This
is the first sale offering of its type and
will be held on December 11, 2024.
DATES: For this sale action, the Bidder
Information Package (BIP) will be made
available to qualified bidders on or
about November 12, 2024. Bids for the
HNVLS 2025–1 sale will be accepted on
the Bid Date of December 11, 2024. HUD
anticipates that award(s) will be made
on or about December 16, 2024 (the
Award Date).
ADDRESSES: To become an eligible
bidder and receive the BIP for the
December sale, prospective bidders
must complete, execute, and submit a
Confidentiality Agreement and
Qualification Statement acceptable to
HUD. The documents will be available
in preview form with free login on the
Transaction Specialist (TS), Falcon
Capital Advisors, website: http://
www.falconassetsales.com. This website
contains information and links to
register for the sale and electronically
complete and submit documents.
If you cannot submit electronically,
please submit executed documents via
mail or facsimile to Falcon Capital
Advisors: Falcon Capital Advisors, 427
N Lee Street, Alexandria, VA 22314,
Attention: Glenn Ervin, HUD HNVLS
Loan Sale Coordinator. eFax: 1–202–
393–4125.
FOR FURTHER INFORMATION CONTACT: John
Lucey, Director, Office of Asset Sales,
Room 9216, Department of Housing and
Urban Development, 451 Seventh Street
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Fmt 4703
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SW, Washington, DC 20410–8000;
telephone 202–708–2625, extension
3927 (this is not a toll-free number).
HUD welcomes and is prepared to
receive calls from individuals who are
deaf or hard of hearing, as well as
individuals with speech or
communication disabilities. To learn
more about how to make an accessible
telephone call, please visit https://
www.fcc.gov/consumers/guides/
telecommunications-relay-service-trs.
This
notice announces HUD’s intention to
sell in HNVLS 2025–1 due and payable
Secretary-held reverse mortgage loans.
HUD is offering 1,180 reverse mortgage
notes with a loan balance of
approximately $500 million. The
mortgage loans consist of first liens
secured by real property that is
occupied, where the borrower and coborrowing spouse are deceased, and
heirs have not come forward in the time
elapsed.
A listing of the mortgage loans will be
included in the due diligence materials
made available to eligible bidders. The
mortgage loans will be sold without
FHA insurance and with servicing
released. HUD will offer eligible bidders
an opportunity to bid competitively on
the mortgage loans.
SUPPLEMENTARY INFORMATION:
The Bidding Process
The BIP describes in detail the
procedure for bidding in HNVLS 2025–
1. The BIP also includes the applicable
standardized non-negotiable
Conveyance, Assignment and
Assumption Agreements for HNVLS
2025–1 (CAAs). The CAAs will contain
first look requirements and mission
outcome goals.
HUD will evaluate the bids submitted
and determine the successful bids, in
terms of the best value to HUD, in its
sole and absolute discretion. If a bidder
is successful, it will be required to
submit a deposit which will be
calculated based upon the total dollar
value of the bidder’s potential award.
Award will be contingent on receiving
the deposit in the timeframe outlined in
the deposit letter. The deposit amount
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will be applied towards the purchase
price at settlement.
This notice provides some of the basic
terms of sale. The CAAs will be released
in the BIP or BIP Supplement, as
applicable. These documents provide
comprehensive contractual terms and
conditions to which eligible bidders
will acknowledge and agree. To ensure
a competitive bidding process, the terms
of the bidding process and the CAAs are
not subject to negotiation.
Due Diligence Review
The BIP describes how eligible
bidders may access the due diligence
materials remotely via a high-speed
internet connection.
Mortgage Loan Sale Policy
HUD reserves the right to remove
mortgage loans from a sale at any time
prior to the Award Date and the
settlement date for the mortgage loans.
HUD also reserves the right to reject any
and all bids, in whole or in part, and
include any reverse mortgage loans in a
later sale. Deliveries of mortgage loans
will occur in conjunction with
settlement and servicing transfer no
later than 60 days after the Award Date.
The reverse mortgage loans offered for
sale were insured by and were assigned
to HUD pursuant to section 255 of the
National Housing Act, as amended. The
sale of the reverse mortgage loans is
pursuant to HUD’s authority in section
204(g) of the National Housing Act.
lotter on DSK11XQN23PROD with NOTICES1
Mortgage Loan Sale Procedure
HUD selected an open competitive
whole-loan sale as the method to sell
the reverse mortgage loans for this
specific sale transaction. For the HNVLS
2025–1 sale, HUD has determined that
this method of sale optimizes HUD’s
return on the sale of these reverse
mortgage loans, affords the greatest
opportunity for all eligible bidders to
bid on the reverse mortgage loans, and
provides the quickest and most efficient
vehicle for HUD to dispose of the due
and payable reverse mortgage loans.
Bidder Ineligibility
In order to bid in HNVLS 2025–1 as
an eligible bidder, a prospective bidder
must complete, execute, and submit a
Confidentiality Agreement, a
Qualification Statement (HUD–9611),
and an Addendum for Nonprofit and
Government Pools and Sub-pools
(HUD–9612), as applicable (collectively,
for these bidders, the Qualification
Statement (HUD–9611) and Addendum
for Nonprofit and Government Pools
and Sub-pools (HUD–9612), as
applicable, shall be defined as the
Qualification Statement) that is
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acceptable to HUD. Eligible bidders
seeking to be awarded loans on a
priority basis must submit the
Confidentiality Agreement,
Qualification Statement (HUD–9611),
and Addendum for Nonprofit and
Government Pools and Sub-pools
(HUD–9612), and Housing Mission
Supplemental Certification (collectively,
for these bidders, the Qualification
Statement (HUD–9611) and Addendum
for Nonprofit and Government Pools
and Sub-pools (HUD–9612), and
Housing Mission Supplemental
Certification shall be defined as the
Qualification Statement) that is
acceptable to HUD. In the Qualification
Statement, the prospective bidder must
provide certain representations and
warranties regarding the prospective
bidder, including (i) the prospective
bidder’s board of directors, (ii) the
prospective bidder’s direct parent, (iii)
the prospective bidder’s subsidiaries,
(iv) any related entity with which the
prospective bidder shares a common
officer, director, subcontractor or subcontractor who has access to
Confidential Information as defined in
the Confidentiality Agreement or is
involved in the formation of a bid
transaction (collectively the ‘‘Related
Entities’’), and (v) the prospective
bidder’s repurchase lenders. The
prospective bidder is ineligible to bid on
any of the reverse mortgage loans
included in HNVLS 2025–1 if the
prospective bidder, its Related Entities,
or its repurchase lenders, are any of the
following, unless other exceptions apply
as provided for in the Qualification
Statement.
1. An individual or entity that is
currently debarred, suspended, or
excluded from doing business with
HUD pursuant to the Governmentwide
Suspension and Debarment regulations
at 2 CFR parts 180 and 2424;
2. An individual or entity that is
currently suspended, debarred, or
otherwise restricted by any department
or agency of the federal government or
of a state government from doing
business with such department or
agency;
3. An individual or entity that is
currently debarred, suspended, or
excluded from doing mortgage related
business, including having a business
license suspended, surrendered or
revoked, by any federal, state, or local
government agency, division, or
department;
4. An entity that has had its right to
act as a Government National Mortgage
Association (‘‘Ginnie Mae’’) issuer
terminated and its interest in mortgages
backing Ginnie Mae mortgage-backed
securities extinguished by Ginnie Mae;
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5. An individual or entity that is in
violation of its neighborhood stabilizing
outcome obligations or post-sale
reporting requirements under a
Conveyance, Assignment and
Assumption Agreement executed for
any previous mortgage loan sale of
HUD;
6. An employee of HUD’s Office of
Housing, a member of such employee’s
household, or an entity owned or
controlled by any such employee or
member of such an employee’s
household with household to be
inclusive of the employee’s father,
mother, stepfather, stepmother, brother,
sister, stepbrother, stepsister, son,
daughter, stepson, stepdaughter,
grandparent, grandson, granddaughter,
father-in-law, mother-in-law, brother-inlaw, sister-in-law, son-in-law, daughterin-law, first cousin, the spouse of any of
the foregoing, and the employee’s
spouse;
7. A contractor, subcontractor, and/or
consultant or advisor (including any
agent, employee, partner, director, or
principal of any of the foregoing) who
performed services for or on behalf of
HUD in connection with the sale;
8. An individual or entity that
knowingly acquired or will acquire
prior to the sale date material nonpublic information, other than that
information which is made available to
Bidder by HUD pursuant to the terms of
this Qualification Statement, about
mortgage loans offered in the sale;
9. An individual or entity which
knowingly employs or uses the services
of an employee of HUD’s Office of
Housing (other than in such employee’s
official capacity); or
10. An individual or entity that
knowingly uses the services, directly or
indirectly, of any person or entity
ineligible under 1 through 10 to assist
in preparing any of its bids on the
mortgage loans.
The Qualification Statement has
additional representations and
warranties which the prospective bidder
must make, including but not limited to
the representation and warranty that the
prospective bidder or its Related
Entities are not and will not knowingly
use the services, directly or indirectly,
of any person or entity that is, any of the
following (and to the extent that any
such individual or entity would prevent
the prospective bidder from making the
following representations, such
individual or entity has been removed
from participation in all activities
related to this sale and has no ability to
influence or control individuals
involved in formation of a bid for this
sale):
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
(1) An entity or individual is
ineligible to bid on any included reverse
mortgage loan or on the pool containing
such reverse mortgage loan because it is
an entity or individual that:
(a) Serviced or held such reverse
mortgage loan at any time during the
six-month period prior to the bid, or
(b) Is any principal of any entity or
individual described in the preceding
sentence;
(c) Any employee or subcontractor of
such entity or individual during that
six-month period; or
(d) Any entity or individual that
employs or uses the services of any
other entity or individual described in
this paragraph in preparing its bid on
such reverse mortgage loan.
In addition, for those eligible bidders
seeking to be awarded mortgage loans
on a priority basis and signing the
Housing Mission Supplemental
Certification, each prospective bidder
must provide documentation and certify
that its charitable or government
purpose has a qualifying housing
mission and that its participation in the
sale is a furtherance of that housing
mission.
Freedom of Information Act Requests
HUD reserves the right, in its sole and
absolute discretion, to disclose
information regarding HNVLS 2025–1,
including, but not limited to, the
identity of any successful qualified
bidder and its bid price or bid
percentage for any pool of loans or
individual loan, upon the closing of the
sale of all the mortgage loans. Even if
HUD elects not to publicly disclose any
information relating to HNVLS 2025–1,
HUD will disclose any information that
HUD is obligated to disclose pursuant to
the Freedom of Information Act and all
regulations promulgated thereunder.
Scope of Notice
This notice applies to HNVLS 2025–
1 and does not establish HUD’s policy
for the sale of other mortgage loans.
Julia R. Gordon,
Assistant Secretary for Housing—FHA
Commissioner.
[FR Doc. 2024–24994 Filed 10–25–24; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[Docket No. FWS–HQ–IA–2024–0162;
FXIA16710900000–245–FF09A30000]
Emergency Exemption: Issuance of
Emergency Permit To Import
Endangered Species
Fish and Wildlife Service,
Interior.
ACTION: Notice of issuance of permit.
AGENCY:
We, the U.S. Fish and
Wildlife Service, have waived the 30day public notice period and have
issued an endangered species permit for
the import and release into the wild of
one loggerhead sea turtle (Caretta
caretta), which was rescued from the
wild in Canada, for the purpose of
enhancing the propagation or survival of
the species. This permit is for a single
import.
SUMMARY:
85555
You may obtain materials
pertaining to the permit application by
submitting a Freedom of Information
Act (FOIA) request to the Service’s
FOIA office at https://www.doi.gov/foia/
foia-request-form.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Brenda Tapia, by phone at 703–358–
2104 or via email at [email protected].
Individuals in the United States who are
deaf, blind, hard of hearing, or have a
speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
We, the
U.S. Fish and Wildlife Service (Service),
have issued an emergency permit to
conduct certain activities with an
endangered loggerhead sea turtle
(Caretta caretta), in response to a permit
application that we received under the
authority of section 10(a)(1)(A) of the
Endangered Species Act of 1973 (ESA;
16 U.S.C. 1531 et seq.)
We issued the requested permit
subject to certain conditions set forth in
the permit. For the application, we
found that (1) the application was filed
in good faith, (2) the granted permit
would not operate to the disadvantage
of the endangered species, and (3) the
granted permit would be consistent with
the purposes and policy set forth in
section 2 of the ESA.
SUPPLEMENTARY INFORMATION:
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PERMIT ISSUED UNDER EMERGENCY EXEMPTION
Permit No.
Applicant
PER11660838 ...................................................
SeaWorld California, San Diego, CA ...............
October 4, 2024.
SeaWorld California, of San Diego,
California, requested a permit to import
a female loggerhead sea turtle from the
Vancouver Aquarium in British
Columbia, Canada. The turtle was
rescued by the Stranding Network and
taken to the Vancouver Aquarium for
rehabilitation. SeaWorld has imported
the turtle and, after rehabilitation, will
release the turtle into the wild. The
Service determined that an emergency
affecting the viability of the turtle
existed, and that no reasonable
alternative was available to the
applicant.
On October 4, 2024, the Service
issued permit no. PER11660838 to
SeaWorld California to import a female
loggerhead sea turtle from the
Vancouver Aquarium in British
Columbia, Canada, and release the turtle
in the wild.
DEPARTMENT OF THE INTERIOR
Authority
[245A2100DD/AAKC001030/
A0A501010.999900]
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19:13 Oct 25, 2024
Jkt 265001
Permit issuance date
We issue this notice under the
authority of the Endangered Species Act
of 1973, as amended (ESA; 16 U.S.C.
1531 et seq.), and its implementing
regulations.
Brenda Tapia,
Supervisory Program Analyst/Data
Administrator, Branch of Permits, Division
of Management Authority.
[FR Doc. 2024–24965 Filed 10–25–24; 8:45 am]
BILLING CODE 4333–15–P
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Bureau of Indian Affairs
Receipt of Documented Petition for
Federal Acknowledgment as an
American Indian Tribe
Bureau of Indian Affairs,
Interior.
ACTION: Notice.
AGENCY:
The Department of the
Interior (Department) gives notice that
the group known as the Tripanick
Nansemond Family Indian Tribe has
filed a documented petition for Federal
SUMMARY:
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acknowledgment as an American Indian
Tribe with the Assistant Secretary—
Indian Affairs. The Department seeks
comment and evidence from the public
on the petition.
DATES: Comments and evidence must be
postmarked by February 25, 2025.
ADDRESSES: Copies of the narrative
portion of the documented petition, as
submitted by the petitioner (with any
redactions appropriate under 25 CFR
83.21(b)), and other information are
available at the Office of Federal
Acknowledgement’s (OFA) website:
www.bia.gov/as-ia/ofa. Submit any
comments or evidence to: Department of
the Interior, Office of the Assistant
Secretary—Indian Affairs, Attention:
Office of Federal Acknowledgment,
Mail Stop 4071 MIB, 1849 C Street NW,
Washington, DC 20240, or by email to:
[email protected].
FOR FURTHER INFORMATION CONTACT: Dr.
Wendi-Starr Brown, Acting Director,
Office of the Assistant Secretary—
Indian Affairs, Department of the
Interior, (202) 513–7650.
SUPPLEMENTARY INFORMATION: On July
31, 2015, the Department’s revisions to
25 CFR part 83 became final and
effective (80 FR 37861). A key goal of
the revisions was to improve
transparency through increased notice
of petitions and providing improved
public access to petitions. Today, the
Department informs the public that a
complete documented petition has been
submitted under the current regulations,
that portions of that petition are
publicly available on the website
identified above for easy access, and
that we are seeking public comment
early in the process on this petition.
Under 25 CFR 83.22(b)(1), OFA
publishes this notice that the following
group has filed a documented petition
for Federal acknowledgment as an
American Indian Tribe to the Assistant
Secretary—Indian Affairs: Tripanick
Nansemond Family Indian Tribe. The
contact information for the petitioner is
Mr. Robert Bass, 1142 11th Lane,
Burlington, Kansas 66839.
Also, under 25 CFR 83.22(b)(1), OFA
publishes on its website the following:
i. The narrative portion of the
documented petition, as submitted by
the petitioner (with any redactions
appropriate under 25 CFR 83.21(b));
ii. The name, location, and mailing
address of the petitioner and other
information to identify the entity;
iii. The date of receipt;
iv. The opportunity for individuals
and entities to submit comments and
evidence supporting or opposing the
petitioner’s request for acknowledgment
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19:13 Oct 25, 2024
Jkt 265001
within 120 days of the date of the
website posting; and
v. The opportunity for individuals
and entities to request to be kept
informed of general actions regarding a
specific petitioner.
The Department publishes this notice
and request for comment in the exercise
of authority delegated by the Secretary
of the Interior to the Assistant
Secretary—Indian Affairs by
Department Manual part 209, chapter 8.
Bryan Newland,
Assistant Secretary—Indian Affairs.
[FR Doc. 2024–24961 Filed 10–25–24; 8:45 am]
BILLING CODE 4337–15–P
DEPARTMENT OF THE INTERIOR
[256D0102DM/DS62400000/DLSN00000/
000000/DX62401]
data from the Federal Procurement Data
System (FPDS) and the System for
Award Management (SAM) and the
consolidated output file is posted for
public use.
The Inventory provides information
on service contract actions over $25,000
that the Department made in FY 2022.
The information is organized by
function to show how contracted
resources are distributed throughout the
Department. The Department’s analysis
of its Service Contract Inventory is
summarized in the FY 2022 Service
Contract Inventory Report. The 2022
Report was developed in accordance
with guidance issued on December 19,
2011, and November 5, 2010, by the
Office of Management and Budget’s
Office of Federal Procurement Policy.
Fiscal Year 2022 Service Contract
Inventory
Authority
The authority for this action is the
Consolidated Appropriations Act of
2010 (Pub. L. 111–117).
Office of Acquisition and
Property Management, Interior.
ACTION: Notice of public availability.
Megan Olsen,
Director, Office of Acquisition and Property
Management.
AGENCY:
The Department of the
Interior is publishing this notice to
advise the public of the availability of
the Fiscal Year (FY) 2022 Service
Contract Inventory, in accordance with
section 743 of division C of the
Consolidated Appropriations Act of
2010.
ADDRESSES:
Obtaining Documents:
The Office of Federal Procurement
Policy (OFPP) guidance is available
online.
The Department of the Interior has
posted its FY 2022 Service Contract
Inventory on the Office of Acquisition
and Property Management portion of the
Department of the Interior website.
FOR FURTHER INFORMATION CONTACT:
Valerie Green, Acquisition Analyst,
Policy Branch, Office of Acquisition and
Property Management (PAM),
Department of the Interior. Phone
number: 202–513–0797, Email: Valerie_
[email protected].
SUPPLEMENTARY INFORMATION:
SUMMARY:
Introduction
Section 743 of division C of the
Consolidated Appropriations Act of
2010 (Pub. L. 111–117) requires civilian
agencies to prepare an annual inventory
of their service contracts. The analyses
help inform agency managers whether
contractors are being used appropriately
or if rebalancing the workforce may be
required.
In addition to the agency analyses, the
process includes extracting contract
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[FR Doc. 2024–24859 Filed 10–25–24; 8:45 am]
BILLING CODE 4334–63–P
DEPARTMENT OF THE INTERIOR
National Indian Gaming
Commission Fee Rate and Fingerprint
Fees
National Indian Gaming
Commission, Interior.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the National Indian Gaming
Commission has adopted its annual fee
rates of 0.00% for tier 1 and 0.08%
(.0008) for tier 2, which maintain the
current fee rates. These rates shall apply
to all assessable gross revenues from
each gaming operation under the
jurisdiction of the Commission. If a tribe
has a certificate of self-regulation, the
fee rate on Class II revenues shall be
0.04% (.0004) which is one-half of the
annual fee rate. The annual fee rates are
effective November 1, 2024, and will
remain in effect until new rates are
adopted. The National Indian Gaming
Commission has also adopted its
fingerprint processing fee of $44 per
card which represents a decrease of $9
per card. The fingerprint processing fee
is effective November 1, 2024, and will
remain in effect until the Commission
adopts a new rate.
FOR FURTHER INFORMATION CONTACT:
Yvonne Lee, National Indian Gaming
Commission, 1849 C Street NW, Mail
SUMMARY:
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Stop #1621, Washington, DC 20240;
telephone (202) 632–7003; fax (202)
632–7066.
SUPPLEMENTARY INFORMATION: The
Indian Gaming Regulatory Act (IGRA)
established the National Indian Gaming
Commission, which is charged with
regulating gaming on Indian lands.
Commission regulations (25 CFR part
514) provide for a system of fee
assessment and payment that is selfadministered by gaming operations.
Pursuant to those regulations, the
Commission is required to adopt and
communicate assessment rates and the
gaming operations are required to apply
those rates to their revenues, compute
the fees to be paid, report the revenues,
and remit the fees to the Commission.
All gaming operations within the
jurisdiction of the Commission are
required to self-administer the
provisions of these regulations, and
report and pay any fees that are due to
the Commission. It is necessary for the
Commission to maintain the fee rate to
ensure that the agency has sufficient
funding to fully meet its statutory and
regulatory responsibilities. In addition,
it is critical for the Commission to
maintain constantly an adequate
transition carryover balance to cover
any cash flow variations.
Pursuant to 25 CFR part 514, the
Commission must also review annually
the costs involved in processing
fingerprint cards and set a fee based on
fees charged by the Federal Bureau of
Investigation and costs incurred by the
Commission. Commission costs include
Commission personnel, supplies,
equipment & infrastructure costs, and
postage to submit the results to the
requesting tribe. The decrease in FY25
fingerprint processing fee is attributable
largely to the completion of the
Agency’s hardware refresh of core
networking and server computing
devices in FY24 which has reduced the
support time for on-premises systems
and infrastructure supporting
fingerprint processing. In addition, the
successful establishment of the CJIS
Audit Unit (CAU) within the Division of
Technology has significantly decreased
the cross-divisional resources
previously required to ensure
compliance with the Federal Bureau of
Investigation Criminal Justice
Information Services (FBI CJIS)
requirements. FY25 fingerprint
processing fee’s decrease also reflects
the cost savings resulting from the
completion of one-time capital
investments associated with the
Washington, DC headquarters office
relocation in FY24. In FY25 the
Commission will also continue its
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19:13 Oct 25, 2024
Jkt 265001
commitment to take necessary measures
to comply with the FBI CJIS
requirements which ensure the NIGC
and participating tribes can continue to
use FBI criminal history report
information (CHRI) to assist in
determining a key employee or primary
management official’s eligibility for a
gaming license.
Dated: October 23, 2024.
Sharon M. Avery,
Acting Chair.
Dated: October 23, 2024.
Jean Hovland,
Vice Chair.
Committee on Rules of Practice and
Procedure; Meeting of the Judicial
Conference
Judicial Conference of the
United States.
AGENCY:
Committee on Rules of Practice
and Procedure; Notice of open meeting.
ACTION:
The Committee on Rules of
Practice and Procedure will hold a
meeting in a hybrid format with remote
attendance options on January 7, 2025
in San Diego, CA. The meeting is open
to the public for observation but not
participation. An agenda and supporting
materials will be posted at least 7 days
in advance of the meeting at: https://
www.uscourts.gov/rules-policies/
records-and-archives-rules-committees/
agenda-books.
SUMMARY:
January 7, 2025.
H.
Thomas Byron III, Esq., Chief Counsel,
Rules Committee Staff, Administrative
Office of the U.S. Courts, Thurgood
Marshall Federal Judiciary Building,
One Columbus Circle NE, Suite 7–300,
Washington, DC 20544, Phone (202)
502–1820, RulesCommittee_Secretary@
ao.uscourts.gov.
FOR FURTHER INFORMATION CONTACT:
(Authority: 28 U.S.C. 2073.)
Dated: October 23, 2024.
Shelly L. Cox,
Management Analyst, Rules Committee Staff.
[FR Doc. 2024–25005 Filed 10–25–24; 8:45 am]
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Agency Information Collection
Activities: Proposed New Information
Collection Activity; Comment Request,
Proposed Study Entitled ‘‘The Study of
Interpersonal Violence Among Young
Adults Pilot Project’’
The Department of Justice
(DOJ), Office of Justice Programs,
National Institute of Justice, is
submitting the following information
collection request to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995.
DATES: The Department of Justice
encourages public comment and will
accept input until December 27, 2024.
FOR FURTHER INFORMATION CONTACT: If
you have additional comments,
especially on the estimated public
burden or associated response time,
suggestions, or need a copy of the
proposed information collection
instrument with instructions or
additional information, please contact
Erica Howell, Social Science Research
Analyst, Office on Violence and
Victimization Prevention, by email at
[email protected] or telephone at
(202) 616–8663.
SUPPLEMENTARY INFORMATION: Written
comments and suggestions from the
public and affected agencies concerning
the proposed collection of information
are encouraged. Your comments should
address one or more of the following
four points:
—Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the National Institute of
Justice, including whether the
information will have practical utility.
—Evaluate the accuracy of the agency’s
estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used.
—Evaluate whether and, if so, how the
quality, utility, and clarity of the
information to be collected can be
enhanced.
—Minimize the burden of collecting
information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms
of information technology, e.g.,
SUMMARY:
JUDICIAL CONFERENCE OF THE
UNITED STATES
PO 00000
[OMB Number 1121–0NEW]
National Institute of Justice,
U.S. Department of Justice.
ACTION: 60-Day notice.
BILLING CODE 7565–01–P
BILLING CODE 2210–55–P
DEPARTMENT OF JUSTICE
AGENCY:
[FR Doc. 2024–24968 Filed 10–25–24; 8:45 am]
DATES:
85557
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
permitting electronic submission of
responses.
Overview of This Information
Collection
1. Type of Information Collection:
New survey.
2. The Title of the Form/Collection:
‘‘The Study of Interpersonal Violence
among Young Adults Pilot Project.’’
3. The agency form number, if any,
and the applicable component of the
Department sponsoring the collection:
The applicable component within the
U.S. Department of Justice is the
National Institute of Justice.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: In the fiscal year (FY) 2023, the
National Institute of Justice (NIJ)
awarded Westat, a professional research
services organization, along with their
partners at New York University and the
University of Cincinnati, to conduct
‘‘The Study of Interpersonal Violence
among Young Adults Pilot Project’’ (Jan.
1, 2024–December 31, 2025), which will
inform the implementation of a
longitudinal study expected to begin in
FY2026.
The longitudinal study titled
‘‘National Longitudinal Cohort Study of
Interpersonal Violence Among CollegeAged Women and Men,’’ also referred to
as the Long IVY study, is a critically
needed, nationally representative,
longitudinal panel survey of
interpersonal violence among young
adults (ages 18–24) who do and do not
attend college. It will examine
trajectories of risk and protective factors
probability sample of approximately
5,000 young adults, with a goal of
retaining 250–300 after a one-time data
collection in response to the recruitment
form. The form will be administered in
the spring/summer of the recruitment
year 2025, and respondents must have
either graduated high school or are no
longer be in high school. Respondents
must be 18 to be eligible for recruitment.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The pilot study’s estimated
range of burden for respondents is
expected to be between 8 and 14
minutes for completion. Based on
instrument testing results, an average of
12 minutes per respondent is expected
to be spent. The following factors were
considered when creating the burden
estimate: the estimated total number of
respondents. NIJ estimates that
approximately 168 respondents will
fully complete the questionnaire,
yielding a modified response rate of
55%.
6. An estimate of the total public
burden associated with the pilot data
collection: For the pilot study, the
estimated public burden associated with
this collection is 691 hours, which
includes the time it takes each of the
expected respondents to open all
mailing materials and complete the
questionnaire. It is estimated that each
of the 168 respondents will take 12
minutes, on average, to complete the
questionnaire. See the table below for
calculations.
Pilot study: 2025
Number
Burden in minutes
Total burden
Initial letter ......................................................
Reminder Postcard ........................................
Second Reminder ..........................................
Final reminder ................................................
Completed Survey ..........................................
5,000 ..........................
5,000 ..........................
4,902 ..........................
4,836 ..........................
168 .............................
2 .................................
0.5 ..............................
2 .................................
2 .................................
12 ...............................
10,000 ........................
10,000 ........................
9,803 ..........................
9,672 ..........................
2,016 ..........................
Total burden ............................................
....................................................................
Total Returns ..................................................
Response rate assumption ............................
Check RR calculation .....................................
....................................
....................................
60 ...............................
0.3 ..............................
0.30 ............................
Strata 1 ......................
200 .............................
164 .............................
140 .............................
60 ...............................
....................................
....................................
....................................
4 .................................
0.082 ..........................
0.09 ............................
Strata 2 ......................
50 ...............................
47.54 ..........................
45.9 ............................
4 .................................
....................................
41,492 ........................
691.5 ..........................
104 .............................
0.021 ..........................
0.02 ............................
Strata 3 ......................
4,750 ..........................
4,690.15 .....................
4,650.25 .....................
104 .............................
....................................
55%
....................................
....................................
....................................
3.4%
Initial letter & postcard ...................................
2nd reminder ..................................................
final reminder .................................................
completed survey ...........................................
Estimated Response rate based on eligible
households.
Overall Yield rate of all households ...............
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(at the individual, family, and
community levels, including exposure
to community violence) that predict
victimization and perpetration of
interpersonal violence and the recovery
of those victimized. Interpersonal
violence comprises (1) physical and
psychological intimate partner violence,
(2) nonconsensual sexual contact, and
(3) stalking by current and former
intimate partners and non-partners.
The longitudinal study design
includes recruiting 17,000 young adults
with a goal of retaining 10,000 in the
final sample after five annual data
collection waves (and interim micro
assessments) across six years. The first
survey will be administered in the fall
of the school year after the participant’s
high school class graduates, and the
final survey will be administered after
they turn 23.
At a stage of the lifespan when people
are most vulnerable to interpersonal
violence, this study will address gaps in
knowledge about the experiences of
young adults not engaged in postsecondary education and the differences
in experiences between groups. The
innovative emphasis on identifying risk
and protective factors over time will
provide new evidence about how best to
prevent interpersonal violence, for
whom, which subpopulations are most
in need of victimization services, and
what factors accelerate healing and
wellness for those who’ve been harmed.
The Study of Interpersonal Violence
among Young Adults Pilot Project (the
current study) will recruit a national
If additional information is required,
contact Darwin Arceo, Department
Clearance Officer, United States
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Department of Justice, Justice
Management Division, Policy and
Planning Staff, Two Constitution
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minutes.
hours.
168.
200.
50.
4,750.
Square, 145 N Street NE, Washington,
DC 20530.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Dated: October 23, 2024.
Darwin Arceo,
Department Clearance Officer For PRA, U.S.
Department of Justice.
[FR Doc. 2024–25007 Filed 10–25–24; 8:45 am]
BILLING CODE 4410–18–P
DEPARTMENT OF JUSTICE
[OMB Number 1105–0104]
Agency Information Collection
Activities; Proposed eCollection
eComments Requested; Reinstatement
With Change of a Previously Approved
Collection; Contract Guard Personal
Qualification Statement
U.S. Marshals Service,
Department of Justice.
ACTION: 30-Day notice.
AGENCY:
The U.S. Marshals Service,
Department of Justice (DOJ), will be
submitting the following information
collection request to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995.
DATES: Comments are encouraged and
will be accepted for 30 days until
November 27, 2024.
FOR FURTHER INFORMATION CONTACT: The
proposed information collection was
previously published in the Federal
Register on August 20, 2024 at 89 FR
67495, allowing a 60-day comment
period. If you have additional comments
especially on the estimated public
burden or associated response time,
suggestions, or need a copy of the
proposed information collection
instrument with instructions or
additional information, please contact
Assistant Chief Karl Slazer/Management
Support Division, U.S. Marshals Service
SUMMARY:
Headquarters, 1215 S Clark St., Ste.
10017, Arlington, VA 22202–4387, by
telephone at 202–360–7359 or by email
at [email protected].
SUPPLEMENTARY INFORMATION: Written
comments and suggestions from the
public and affected agencies concerning
the proposed collection of information
are encouraged. Your comments should
address one or more of the following
four points:
—Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the Bureau of Justice
Statistics, including whether the
information will have practical utility;
—Evaluate the accuracy of the agency’s
estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
—Evaluate whether and if so how the
quality, utility, and clarity of the
information to be collected can be
enhanced; and
—Minimize the burden of the collection
of information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms
of information technology, e.g.,
permitting electronic submission of
responses.
Abstract: This form will primarily be
used to collect applicant reference
information. Reference checking is an
objective evaluation of an applicant’s
past job performance based on
information collected from key
individuals (e.g., supervisors, peers,
subordinates) who have now and
worked with the applicant. Reference
checking is a necessary supplement to
the evaluation of resumes and other
descriptions of training and experience,
and allows the selecting official to hire
applicants with a strong history of
performance. The questions on this form
have been developed following the
OPM, MSPB, and DOJ ‘‘Best Practice’’
guidelines for reference checking.
Overview of this information
collection:
1. Type of Information Collection:
Reinstatement with change of a
previously approved collection.
2. The Title of the Form/Collection:
Contract Guard Personal Qualification
Statement.
3. The agency form number, if any,
and the applicable component of the
Department sponsoring the collection:
USM–234.
4. Affected public who will be asked
or required to respond, as well as the
obligation to respond:
• Affected Public: Contract Guard
(DSO, ASO, CDO, PSO, CSO, and SSO)
Job Applicants.
• The obligation to respond is
voluntary.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: An estimated 1000
respondents will utilize the form, and it
will take each respondent
approximately 45 minutes to complete
the form.
6. An estimate of the total annual
burden (in hours) associated with the
collection: The estimated annual public
burden associated with this collection is
750 hours, which is equal to 1000 (total
# of annual responses) * (45 mins).
7. An estimate of the total annual cost
burden associated with the collection, if
applicable:
TOTAL BURDEN HOURS
Number of
respondents
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Activity
Total annual
responses
Frequency
Time per
response
(minutes)
Total annual
burden
(hours)
Ex: Survey (individuals or households).
1,000
1/annually .........................................
1,000
45
750
Unduplicated Totals ...................
1,000
...........................................................
1,000
........................
750
If additional information is required
contact: Darwin Arceo, Department
Clearance Officer, United States
Department of Justice, Justice
Management Division, Policy and
Planning Staff, Two Constitution
Square, 145 N Street NE, 4W–218,
Washington, DC.
Dated: October 23, 2024.
Darwin Arceo,
Department Clearance Officer for PRA, U.S.
Department of Justice.
[FR Doc. 2024–24990 Filed 10–25–24; 8:45 am]
BILLING CODE 4410–04–P
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
DEPARTMENT OF JUSTICE
Notice of Lodging of Proposed
Consent Decree Under the
Comprehensive Environmental
Response, Compensation, and Liability
Act
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On October 17, 2024, the Department
of Justice lodged a proposed Consent
Decree with the United States District
Court for the Southern District of
Florida in the lawsuit entitled United
States v. Petroleum Products Corp., et
al., Civil Action No. 1:91–cv–02014–BB.
In the filed Amended Complaint, the
United States, on behalf of the U.S.
Environmental Protection Agency
(‘‘EPA’’), alleges that the Defendants are
liable under the Comprehensive
Environmental Response,
Compensation, and Liability Act, 42
U.S.C. 9606 and 9607(a), for the
response costs EPA incurred to respond
to the releases and/or threatened
releases of hazardous substances into
the environment at the Petroleum
Products Corporation Superfund Site
located generally at 3150 Pembroke
Road in Pembroke Park, Broward
County, Florida that the Settling
Defendants owned and operated. The
Consent Decree requires the Settling
Defendants to perform Remedial Action
for the Site, pay past response costs for
the Site and pay future costs related to
the work. The Estimate for the Remedial
Action is more than $57,000,000. The
Settling Defendants are responsible for
performing the Work, but the FDEP will
pay for at least $30 million of it through
a statutory trust fund and a petroleum
product cleanup program established in
1987.
The publication of this notice opens
a period for public comment on the
Consent Decree. Comments should be
addressed to the Assistant Attorney
General, Environment and Natural
Resources Division, and should refer to
United States v. Petroleum Products
Corp., et al., D.J. Ref. No. 90–11–3–585/
3. All comments must be submitted no
later than thirty (30) days after the
publication date of this notice.
Comments may be submitted either by
email or by mail:
To submit
comments:
Send them to:
By email .......
pubcomment-ees.enrd@
usdoj.gov.
Assistant Attorney General,
U.S. DOJ—ENRD, P.O.
Box 7611, Washington, DC
20044–7611.
By mail .........
Any comments submitted in writing
may be filed in whole or in part on the
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public court docket without notice to
the commenter.
During the public comment period,
the Consent may be examined and
downloaded at this Justice Department
website: https://www.justice.gov/enrd/
consent-decrees. If you require
assistance accessing the Consent Decree,
you may request assistance by email or
by mail to the addresses provided above
for submitting comments.
Scott Bauer,
Assistant Section Chief, Environmental
Enforcement Section, Environment and
Natural Resources Division.
[FR Doc. 2024–24969 Filed 10–25–24; 8:45 am]
BILLING CODE 4410–15–P
DEPARTMENT OF JUSTICE
Federal Bureau of Prisons
Record of Decision; Proposed
Development of a New Federal
Correctional Institution and Federal
Prison Camp—Letcher County,
Kentucky
I. Introduction
This Record of Decision (ROD)
pursuant to the National Environmental
Policy Act (NEPA) of 1969, as amended,
documents the decision regarding the
proposal by the United States (U.S.)
Department of Justice (DOJ), Federal
Bureau of Prisons (FBOP) to acquire
properties totaling approximately 500
acres in area in order to construct and
operate a new Federal Correctional
Institution (FCI) and Federal Prison
Camp (FPC) in Letcher County,
Kentucky. The ROD describes the
alternatives considered and the
rationale for selecting the chosen
alternative.
The purpose of this ROD is to publish
the Agency’s decision with respect to
the environmental review process. The
decision is based on information and
analysis contained in the Draft
Environmental Impact Statement (DEIS)
issued March 1, 2024, and the Final EIS
(FEIS) issued July 12, 2024, together
with various technical studies, other
EISs conducted since 2015, and
comments and input received from
federal and state agencies, elected
officials, organizations, and individuals.
II. Background
The mission of the FBOP is for
corrections professionals to foster a
humane and secure environment and
ensure public safety by preparing
individuals for successful re-entry into
society. Congress, in 2006, directed the
FBOP to initiate investigations leading
to development of a new federal
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correctional facility in Letcher County,
Kentucky (see H.R. Rep. No. 109–272
that accompanies Pub. L. 109–108). In
response, the FBOP has conducted a
wide range of technical investigations
and feasibility studies to comply with
Congress’ directive including
publication of a DEIS (2015), FEIS
(2015), Revised FEIS (2016), Draft
Supplemental Revised FEIS (2017),
Final Supplemental Revised FEIS (2017)
and Record of Decision (2018) with each
prepared in support of development of
a new high-security United States
Penitentiary (USP) and FPC in Letcher
County.
In July 2019, the Acting FBOP
Director Hugh J. Hurwitz withdrew the
2018 ROD based on new cost and
Adults in Custody (AIC) population
trend information that came to light,
which may have been relevant to the
environmental analysis for the Proposed
Action. The FBOP has continuously
evaluated its current and projected
future AIC populations and determined
that the need to house medium-security
AIC in the Mid-Atlantic Region
supersedes the need to house highsecurity AIC. Since the design,
construction, and operation of a highsecurity USP differs from a mediumsecurity FCI, the potential
environmental impacts of its
development and operation would also
be different. As a result of the 2018 ROD
being withdrawn, the FBOP undertook
new evaluations and analyses in
accordance with current Council on
Environmental Quality and NEPA
guidelines, DOJ procedures for
implementing NEPA, and other federal
regulations as part of preparation of a
new DEIS. The FBOP published a DEIS
on March 1, 2024, and a FEIS on July
12, 2024, to develop a new FCI in
Letcher County, Kentucky to meet its
immediate and long-term needs.
III. Purpose and Need for the Project
The purpose and need for developing
the proposed FCI and FPC was
determined by the growing number of
aged and obsolete federal correctional
facilities, which are no longer costeffective or sustainable to operate and
maintain. The FBOP is responsible for
all aspects of facility and infrastructure
operations, maintenance, repairs, and
renovations including interior and
exterior finishes; roofs and structural
systems; perimeter fences and other
security measures; mechanical,
electrical, plumbing, lighting, and
utility systems; communication
equipment, and fire protection and life
safety systems. The condition of
facilities, infrastructure, and equipment
is critical to effective correctional
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facility operation and security. This is
the case with the federal prison system
where facilities and infrastructure are in
continuous use and require frequent
maintenance ranging from routine
inspections and repairs to large-scale
upgrades, renovations, and
replacements. Of the FBOP’s many
institutions, 62 were developed between
1890 and 1991, 55 institutions were
developed between 1992 and 2007, and
five were developed since 2008.
The FBOP proposes to acquire
approximately 500 acres in Letcher
County to construct and operate a
modern new FCI, FPC, and ancillary
facilities to meet the need to house
medium- and minimum-security AIC in
the Mid-Atlantic Region. Ancillary
facilities would include a central utility
plant, garage/landscape building,
outside warehouse, staff training
building and outdoor firing range, water
storage tank, access drive, and internal
roadways and parking lots. The
proposed FCI would be designed to
house 1,152 medium-security AIC with
the FPC designed to house 256
minimum-security AIC for a total
population of 1,408 AIC.
IV. Alternatives Considered
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A. No Action Alternative
The No Action Alternative is defined
as a decision by the FBOP not to
proceed with the Proposed Action,
thereby precluding development of a
new FCI/FPC to house a portion of the
federal AIC population in the MidAtlantic Region and maintaining the
status quo.
Adopting the No Action Alternative
would avoid the potential short-term,
temporary impacts associated with FCI/
FPC construction, among them
increased noise levels, fugitive dust
emissions, soil erosion, fuel
consumption with the associated air
emissions, and traffic volumes.
Adopting the No Action Alternative
would also avoid the potential
permanent impacts to land use,
biological resources, utility services,
visual and aesthetic resources, and
traffic volumes associated with FCI/FPC
construction and operation.
Implementation of the No Action
Alternative, however, would result in
the loss of positive benefits including
contributing to achieving the mandates
of Congress; the need for modern,
secure, efficient and cost-effective
institutions; the societal benefits
derived from efficient operation of the
federal criminal justice system; and the
economic and employment
opportunities which would become
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available as a result of FCI/FPC
development.
The FBOP has a need for modern and
secure correctional facilities and
infrastructure nationwide. With
increasing numbers of federal
correctional facilities becoming
outdated, physically and operationally
obsolete, and costly to operate and
maintain, the FBOP is required to
continuously improve the system’s
infrastructure through repair and
renovation of existing facilities when
possible and construction of new
institutions when necessary. The No
Action Alternative does not meet the
purpose and need for the Proposed
Action and has been eliminated from
consideration.
B. Letcher County Alternatives
In 2006, Congress directed the FBOP
to initiate various investigations for
development of a new federal
correctional institution in Letcher
County, Kentucky. In conformance with
that directive, the FBOP has focused its
attention and resources upon the 339square-mile area comprising Letcher
County at the exclusion of other areas of
the Mid-Atlantic Region and the U.S. as
a whole.
Planning for a new federal
correctional facility began in earnest in
2008. At that time, FBOP officials began
familiarizing themselves with Letcher
County by gathering technical
information and engaging elected
officials, federal, state and local
governmental agencies, members of the
business community, leaders of
educational and health care institutions,
utility providers, and others
knowledgeable of local conditions
affecting development. With assistance
from community members, the process
of identifying prospective sites began
with a focus on physical conditions and
characteristics influencing development
in Letcher County along with the
availability of public services and
infrastructure. Candidate sites were
identified on the basis of initial
development requirements:
• Sufficient land area to
accommodate the institution and a
buffer zone between the facility and
neighboring properties.
• Relatively level building sites or
properties that could be altered to
accommodate development.
• Ability to avoid sensitive
environmental resources including
floodplains, wetlands, threatened and
endangered species habitats, and
cultural and historic resources.
• Avoidance of potential conflicts
with adjoining or nearby land uses.
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• Availability of utility and
transportation infrastructure.
• Willingness of owners to consider a
sale of their property.
Sites that satisfied these initial
requirements were evaluated further by
applying increasingly rigorous criteria
to ensure that all issues or potential
issues are adequately addressed. Sites
that appear suitable on the basis of the
initial evaluations were subjected to indepth analysis and documented in the
form of EISs and other technical studies.
1. Identification of Alternative Sites
After the FBOP’s site requirements
were shared with Letcher County
representatives, four candidate sites—
Meadow Branch, Payne Gap, Roxana,
and Van/Fields sites, were made
available for evaluation for possible
acquisition and development. All four
sites are located in proximity of the City
of Whitesburg (Letcher County seat).
The FBOP conducted a Site
Reconnaissance Study (2008) to
determine the suitability of each for
development. Based on the results of the
Site Reconnaissance Study, the FBOP
determined that the four sites should be
studied further in the form of a
Feasibility Study. Completed in 2011,
the Feasibility Study assessed cultural
resources, wetlands, geologic
conditions, and infrastructure
availability and provided in-depth
analyses of each site while identifying
constraints that could eliminate a site
from further consideration.
While conducting the Feasibility
Study, the offer to consider the Meadow
Branch site was withdrawn and the site
was dropped from consideration. For
the remaining sites, various technical
studies were conducted. However, as
the Feasibility Study neared
completion, the Van/Fields site owners
were no longer interested in selling the
property, necessitating its removal from
consideration. The remaining two sites,
Payne Gap and Roxana, were considered
viable alternatives and were the subject
of a DEIS published in February 2015
and subsequent EISs published between
July 2015 and September 2017.
2. Search for Other Alternative Sites
During the development of the current
EIS the FBOP conducted another search
in Letcher County for sites that would
be suitable for development based on
the siting criteria. The site search,
undertaken from June to November
2022, revealed small pockets of
relatively level topography scattered
throughout the county. Many of these
locations comprise previous surface
mines, which were reclaimed after the
mineral deposits were extracted and are
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being redeveloped for housing and
small-scale warehouse and light
industrial uses as well as golf courses
and other recreational uses. In addition
to areas where the surface extraction of
coal took place, large tracts of land in
Letcher County were subjected to
underground coal mining, which
depending upon the depth of the mines
and mining methods, rendered such
lands equal to or less suitable than the
Roxana and Payne Gap sites.
Many of the sites reviewed in 2022
were located within lower elevations
and adjoining or near streams and rivers
that are susceptible to flooding during
severe weather events. No properties
examined in 2022 were found
sufficiently level and unencumbered to
accommodate the proposed
development without significant
topographic alterations and the
associated environmental impacts.
In addition to a site’s physical
characteristics, the interest and
cooperation of property owners is
another key factor in determining a
site’s potential for FBOP use. During the
initial planning phase, the FBOP seeks
out owners willing to negotiate a sale of
their holdings thereby avoiding other
methods of property acquisition. In
2022, inquiries and outreach were made
to several property owners to ascertain
their willingness to discuss their land
holdings; however, none of the property
owners approached showed any interest
in participating in such a discussion. As
a result, the effort to identify other
alternative locations in Letcher County
for development of the proposed project
ended in favor of continuing to consider
the Payne Gap and Roxana sites as
alternatives.
To accommodate development
approximately 300 acres of the Payne
Gap Site would require extensive rock
and spoil excavation and fill material to
level and prepare the site for
development. While site preparation
would require the removal of mine
spoil, there are no slurry ponds or coal
mine waste facilities located on or near
the Payne Gap Site and no active mining
is occurring on site.
3. Alternative Location, Payne Gap Site
C. Preferred Alternative
Development of the proposed
medium-security FCI and minimumsecurity FPC at the Roxana Site is
considered the Preferred Alternative as
it best meets the project needs and, on
balance, would have fewer impacts to
the human environment. Threatened
and endangered species habitat was also
a factor in the identification of the
Preferred Alternative with development
at the Payne Gap Site potentially
impacting a significant amount of
summer roosting habitat versus the
amount that would be affected at the
Roxana Site. Development at the Payne
Gap Site would also have significant
impacts to wastewater and natural gas
infrastructure, while the Roxana Site
would have less than significant
impacts to utility infrastructure.
Based upon these and other potential
environmental impacts applicable to
This alternative involves acquisition
of approximately 753 acres known as
the Payne Gap Site and located 11 miles
east of Whitesburg. The site is situated
on a steeply sloping upland landform
above the Kentucky River at its
confluence with the Laurel Fork. U.S.
Route 119 is located along the north end
of the site and would be the means of
vehicular access. The site is covered by
secondary growth forests and portions
of the original topography have been
altered by past mining activities with
spoil piles, unpaved roads, and fill piles
covering the site. Mining permit
applications indicate both surface and
underground mining operations dating
to the 1950s have occurred within the
site. Summer roosting habitat and
winter hibernaculum for the endangered
northern long eared bat have also been
identified at the Payne Gap Site.
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4. Alternative Location, Roxanna Site
This alternative involves acquisition
of approximately 500 acres known as
the Roxana Site and located 10 miles
west of Whitesburg. Much of the site
consists of relatively steep terrain with
similarly steep terrain extending beyond
the site boundaries to the north and
south. However, portions of the original
topography have been altered by past
mining activities rendering the central
portion of the site relatively level. The
site is also covered by secondary growth
forests which have occurred since
surface mining ended. Mining permit
applications indicate mining operations
dating to the 1960s have occurred
within the site.
To accommodate development,
approximately 200 acres of the site
would require extensive excavation of
spoil material and lesser amounts of
structural fill and spoil fill. Preparation
of the site for construction activities
would also require dynamic
compaction, clearing and alteration of
previously mined areas, and forest
clearing. Excavations would include the
removal of mine spoil. No slurry ponds
or coal mine waste facilities are located
on or within two miles of the Roxana
Site and no active mining is occurring
on site.
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each site, including wetlands and
stream impacts and significantly greater
site preparation required for the Payne
Gap Site, development of the proposed
project at the Roxana Site has been
determined by the FBOP to be the
Preferred Alternative. The Preferred
Alternative meets the project objectives,
is technically feasible, would have
fewer natural resource and other
environmental impacts, and
incorporates measures to avoid or
minimize environmental impacts to the
extent practicable. Reinforcing the
Roxana Site as the Preferred Alternative
is the preference expressed by Letcher
County’s elected representatives,
community leaders, members of local
institutions and businesses to
developing the proposed correctional
facility at the Roxana Site.
V. Avoidance, Minimization, and
Mitigation Measures
Based on the findings represented by
the DEIS and FEIS (2024), the FBOP
shall implement the avoidance,
minimization, and mitigation measures
described below to lessen the potential
adverse environmental impacts
associated with the Preferred
Alternative. With regards to
socioeconomic considerations,
southeastern Kentucky in general, and
Letcher County in particular, has
experienced steady declines in
population, commercial activity, and
other social and economic indices.
Expanded employment and economic
opportunities arising from FCI/FPC
development are considered beneficial
to achieving the social and economic
goals of Letcher County and the
surrounding region. The Preferred
Alternative is also not expected to result
in adverse impacts to Environmental
Justice populations, therefore,
mitigation measures for social,
economic, and Environmental Justice
are not warranted.
1. Topography, Geology, Soils, and
Hydrology
(a) Earthwork and related ground
disturbance shall be minimized by
developing the FCI/FPC in a compact,
campus-style arrangement thereby
limiting the area subject to disturbance.
(b) To the degree feasible, site
preparation activities would only
disturb areas necessary for the current
phase of construction.
(c) Engineering studies of surface and
subsurface conditions shall be
conducted to ensure appropriate
standards and sound building practices
are specified prior to construction. Risks
associated with seismic activity and
measures to minimize such risks shall
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be addressed during design and
construction.
(d) A Soil Erosion and Sediment
Control Plan (E&S Control Plan) shall be
prepared describing measures for
controlling erosion and sedimentation
during construction. Attention would be
directed toward erosion potential and
other engineering characteristics of
rocks, spoil material, and soils to be
encountered during construction. The
E&S Control Plan shall be submitted to
the Kentucky Department of
Environmental Protection, Division of
Water for approval prior to
implementation.
(e) During construction, erosion
control measures would be inspected
and replaced or repaired as required.
Erosion control measures to be
maintained following construction shall
include lawns and landscaping,
discharge pipe aprons, pipe outlet
channels, and similar controls.
(f) To ensure safe and secure
operation of the FCI/FPC during a
severe weather event, the FBOP shall
prepare an Adverse Weather Plan and
Institution Evacuation Plan that will,
among other things, define the food and
other provisions, emergency equipment,
fuel, and similar necessities to be
stockpiled on-site at all times to
maintain uninterrupted operation and
safeguard AICs and FBOP employees
who would remain at their posts for the
duration of the severe weather event
and its aftermath.
2. Water Resources
(a) A Clean Water Act, Section 404
permit application shall be prepared to
document potential impacts and
mitigation measures for review and
approval by the U.S. Army Corps of
Engineers. It is anticipated that
mitigation shall consist of payment into
the in-lieu fee mitigation program
managed by the Kentucky Department
of Fish and Wildlife Resources.
(b) A Stormwater Pollution
Prevention Plan (SWPPP) shall be
prepared addressing temporary and
permanent surface water and
stormwater management controls. The
SWPPP shall be submitted to the
Kentucky Department of Environmental
Protection, Division of Water for review
and approval prior to implementation.
(c) In accordance with the SWPPP,
stormwater collection infrastructure
shall be installed to control runoff by
directing stormwaters into basins to
attenuate the intensity of the flow and
to allow suspended solids in the
stormwater to settle out prior to
discharge to receiving streams.
(d) A Groundwater Protection Plan
shall be prepared describing temporary
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and permanent groundwater protection
measures and submitted to the
Kentucky Department of Environmental
Protection, Watershed Management
Branch, Groundwater Section for review
and approval prior to implementation.
3. Biological Resources
(a) Impacts to common vegetation and
wildlife during construction shall be
minimized by limiting the area of
disturbance to the extent possible. Upon
completion of construction, disturbed
areas would be re-vegetated with native
plant species.
(b) Under the Conservation
Memoranda of Agreement with U.S.
Fish and Wildlife Service, the FBOP
shall contribute to the Imperiled Bat
Conservation Fund as compensatory
mitigation for potential adverse effects
on special status bat species.
(c) FBOP shall review, revise and
update as necessary, and resubmit its
Biological Assessment to reinitiate
formal consultations with the U.S.
Department of the Interior, Fish and
Wildlife Service (USFWS) under
Section 7 of the Endangered Species
Act. FBOP shall ensure that the FCI/FPC
project is implemented as documented
in the updated Biological Assessment
and subsequent updated Biological
Opinion (BO) to be issued by USFWS.
(d) Conservation measures
documented in the Biological
Assessment shall be incorporated in
project design and construction
including: avoiding tree removal during
June and July and blasting from
November 15 through March 31;
conduct construction activities from
April 15 through October 31 in suitable
Indiana bat and/or northern long-eared
bat habitat during daylight hours;
require vehicles and equipment to be
inspected to remove visible plant and
seed material prior to entering the
project area; and fence off potential bat
hibernacula and install warning signs
around the area to prevent disturbance.
4. Cultural Resources
(a) A minimum 100-foot buffer from
all development shall be maintained
around the Frazier Cemetery (Kentucky
Historical Society, Site 15Lr115).
(b) If improvements are necessary to
KY 160 and/or KY 588 which result in
Adverse Effects on National Registereligible resources, consultations shall be
undertaken with the Kentucky State
Historic Preservation Office, Native
American Tribes, the Advisory Council
on Historic Preservation, and other
appropriate organizations. Based on the
potential impacts and results of the
consultations, measures to mitigate for
Adverse Effects shall be determined,
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85563
agreed upon, and implemented as
appropriate.
5. Hazardous Materials
(a) Locations of petroleum extractionrelated releases at the compressor
station, the damaged aboveground
storage tank (AST), and the AST open
drain valve shall be tested to identify
contaminated soils with necessary
remediation conducted in compliance
with applicable regulations of the
Kentucky Department of Environmental
Protection, Hazardous Waste Branch.
(b) Contaminated soils shall be
disposed of only at permitted disposal
facilities.
(c) Remediation reports and records
shall be submitted to the Kentucky
Department of Environmental
Protection, Hazardous Waste Branch in
accordance with applicable regulations.
(d) Construction materials considered
hazardous shall be stored and handled
in accordance with applicable
environmental, public safety, and
occupational health regulations to
prevent polluting soil, surface waters, or
groundwater. Storage of hazardous
materials shall be minimized or avoided
where practicable.
(e) Staging areas shall be established
prior to construction for the temporary
storage and handling of hazardous
materials. Liquid storage areas shall be
provided with secondary containment
systems. Stored materials shall be
removed from designated areas by
authorized personnel only and recorded
by personnel overseeing construction.
(f) FCI/FPC operation shall adhere to
applicable regulations governing the
handling, storage, and disposal of
hazardous wastes.
(g) Biohazardous medical wastes shall
be stored, collected and disposed of in
accordance with institution policies and
procedures and applicable regulations.
6. Visual and Aesthetic Resources
(a) Development shall be directed
towards the central portion of the site in
a compact, campus-style arrangement
that limits visual and physical presence
from neighboring properties while
allowing for the majority of the site’s
forests, understory, and topography to
remain undisturbed.
(b) Design features that are sensitive
to the site’s visual environment shall be
employed including developing
structures that are primarily one and
two stories in height and unobtrusive to
the degree possible.
(c) Buffer areas consisting of forest
stands and other vegetation shall be
maintained between the facility and its
security perimeter and neighboring
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properties to maintain visual
compatibility.
(d) Outdoor lighting shall comply
with FBOP Technical Design Guidelines
(Section 26 25 00—Exterior Lighting)
including NFPA 70—National Electric
Code; NFPA 101—Life Safety Code;
IESNA—Lighting Handbook, Reference,
and Application; the American
Correctional Association; and the Buy
American Act.
(e) Measures to limit unwanted light
shall be specified, including use of full
cutoff luminaries for security, parking
lot, roadway, and pathway lighting
resulting in maximum downlighting and
minimal upward dispersal of light to the
sky.
(f) Low-reflective surface materials
shall be specified where practical to
minimize upward reflection of light.
(g) Access drive location and design
shall be given careful attention
including placement of directional
signage and lighting fixtures leading to
the FCI/FPC.
(h) Design, construction, and
maintenance of all facilities and
infrastructure shall adhere to a high
standard.
7. Community Facilities and Services
(a) Construction and operating
policies and procedures shall be
communicated to and coordinated with
the Letcher County Sheriff’s Office, the
Kentucky State Police, and local police
departments and fire protection
companies operating in Letcher County.
(b) Agreements shall be established
with local emergency ambulance
services in cases requiring an employee
or AIC to be transported to an area
medical facility.
(c) Agreements shall be established
with area medical facility(s) for
emergency care in cases involving
employees and AIC.
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8. Land Use
(a) Setbacks and buffer areas shall be
established to achieve land use
compatibility between the facility and
neighboring properties.
(b) The distance and mountainous
conditions separating Lilley Cornett
Woods from the project site and the
large undeveloped acreage surrounding
the FCI/FPC shall ensure adverse land
use impacts to Lilley Cornett Woods are
avoided.
9. Utilities
(a) Development of the on-site water
storage tank and distribution system
shall follow applicable regulations with
plans submitted to the Kentucky
Department of Environmental
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Protection, Division of Water for review
and approval prior to construction.
(b) Development of the on-site
wastewater collection system shall
follow applicable regulations with plans
submitted to the Kentucky Department
of Environmental Protection, Division of
Water for review and approval prior to
construction.
(c) Extension of electric power shall
follow applicable regulations while
avoiding service disruptions and
maintaining effective worker safety
practices and procedures.
(d) Permanent closure, abandonment,
and/or relocation of on-site oil/natural
gas wells and associated infrastructure
shall comply with applicable
regulations of the Kentucky Department
of Natural Resources, Division of Oil
and Gas.
(e) Construction wastes shall be stored
on-site and transported to facilities
permitted to accept such wastes for
recycling or disposal.
(f) Solid wastes generated during FCI/
FPC operation shall be stored in
enclosed dumpsters or roll off
containers in accordance with
institution policies and procedures until
collected and transported for recycling
or final disposal.
10. Transportation
(a) A Traffic Safety and Maintenance
Plan shall be developed prior to
construction. The plan shall identify
optimum vehicle routing during
construction including permissible
traffic movements along KY 588 and KY
160, vehicle height and weight
limitations, and the need for temporary
detours or lane closures to avoid
damaging roadways.
(b) Construction schedules and
activities shall be communicated and
coordinated with the appropriate
Commonwealth of Kentucky and
Letcher County law enforcement and
transportation agencies so traffic safety
is maintained and any disruptions to
normal traffic operations are minimized.
11. Air Quality
(a) Best management practices shall
be implemented during construction
including covering and/or periodically
wetting exposed soil, material
stockpiles, and other unpaved surfaces;
providing dust control measures during
weekends, after hours, and prior to daily
start-up of construction activities;
operating equipment in accordance with
manufacturer’s specifications; and
limiting unnecessary idling of dieselpowered engines among other measures.
(b) Design and construction shall
follow applicable regulations with
permit(s) obtained from the Kentucky
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Department for Environmental
Protection, Division for Air Quality for
air emission sources.
(c) Electric charging stations shall be
provided for dedicated on-site
government vehicles with additional
infrastructure installed for future
charging stations for employee and
visitor electric powered vehicles.
(d) Design and construction of
facilities shall apply the appropriate
codes and incorporate features to
minimize the potential for radon to
accumulate in concentrations exceeding
U.S. Environmental Protection Agency
action levels.
12. Noise
(a) Construction activities shall be
confined to normal working hours to the
extent feasible.
(b) Construction equipment shall be
equipped with appropriate noise
attenuation devices and be maintained
and operated in accordance with
manufacturers specifications.
(c) Material and equipment staging
areas and haul routes would be placed
away from property boundaries to
minimize potential for off-site noise
impacts.
13. Climate
(a) FBOP shall pursue the sustainable
green building certification program
Leadership in Energy and
Environmental Design including use of
low volatile organic compound (VOC)
materials, elimination of ozone
depleting gases, and other conservation
measures.
(b) FBOP shall consider Executive
Order 13693, Planning for Federal
Sustainability in the Next Decade,
Executive Order 14057, Catalyzing
Clean Energy Industries and Jobs
Through Federal Sustainability, Council
on Environmental Quality’s Final NEPA
Guidance on Consideration of the
Effects of Climate Change and
Greenhouse Gas Emissions and other
applicable executive orders and
regulations during FCI/FPC design and
construction.
VI. Decision
Based on consultations with federal,
Commonwealth of Kentucky, and local
regulatory agencies; consideration of
potential environmental consequences;
current operational, security, and
management needs for the Mid-Atlantic
Region; public comments on the 2024
DEIS and FEIS; and having been
apprised of the material and information
contained in previous technical studies,
the FBOP has decided to select
development of a new FCI and FPC at
the Roxana Site in Letcher County as the
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Preferred Alternative as summarized
above and described in detail within the
2024 FEIS. Development of the
proposed project at the Roxana Site in
Letcher County is contingent on the
availability of funding sufficient to
proceed.
VII. Rationale
The FBOP’s decision is based on the
following:
The condition of facilities,
infrastructure, and equipment is critical
to effective correctional facility
operation and security. As a result of
their continuous use, facilities,
infrastructure, and equipment require
frequent maintenance and repairs, largescale upgrades and renovations, and in
select cases, complete replacement.
With over 50 percent of all federal
correctional facilities developed prior to
1991, and many facing a substantial
backlog of Modernization and Repair
(M&R) work, the challenge confronting
the FBOP to continue achieving its
mission with aging and obsolete
institutions is formidable.
Coinciding with the need for modern
facilities and infrastructure, Congress
directed the FBOP to conduct
investigations leading to development of
a new federal correctional facility in
Letcher County, Kentucky. The decision
to develop a new FCI and FPC at the
Roxana Site in Letcher County is based
on the many detailed investigations
conducted by the FBOP and
demonstrates compliance with
Congress’ directive while best meeting
the FBOP’s goals and objectives.
Because implementation of this
alternative would have fewer adverse
impacts on the human and natural
environments, the FBOP considers it to
be the Preferred Alternative.
Construction of the proposed FCI/FPC
at the Roxana Site will result in shortterm, temporary impacts including
increased noise levels, fugitive dust
emissions, soil erosion, traffic volumes,
and fuel consumption with the
associated air emissions. Permanent and
significant impacts to topography,
geology and soils would also occur from
construction with permanent and less
than significant impacts anticipated to
land use, community facilities and
services, transportation and traffic,
visual and aesthetic resources, air
quality, cultural resources, noise, utility
services, water resources, biological
resources, and hazardous materials, as
defined by NEPA.
While construction and operation of
the proposed FCI/FPC at the Roxana
Site will cause unavoidable impacts,
activities involving construction and
operation shall comply with applicable
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federal statutes, implementing
regulations, Executive Orders, and other
consultation, review, and permit
requirements. Unavoidable adverse
impacts to natural and manmade
resources will be controlled, reduced, or
eliminated by the avoidance,
minimization, and mitigation measures
identified in Section V (Avoidance,
Minimization, and Mitigation Measures)
of this ROD.
The FBOP will implement a
Monitoring and Enforcement Program
(MEP) to ensure that the proposed
avoidance, minimization, and
mitigation measures documented within
this ROD are implemented. The MEP
will identify the timing, responsibility,
and method of implementation of the
proposed measures, as well as any
required monitoring and enforcement
activities. As part of the program, each
project contractor will be required to
implement the mitigation measures
arising from its project activities with
the FBOP or its authorized agencies
overseeing, inspecting and monitoring
the measures to ensure compliance. The
FBOP will be responsible for any
mitigation measures required as part of
FCI/FPC operation. The FBOP will
maintain the MEP throughout project
implementation and will include the
MEP in the project administrative
record. Any on-going obligations will be
the responsibility of the FBOP.
Development of the proposed FCI/
FPC at the Roxana Site will result in
beneficial impacts by adding a modern
new correctional facility to the federal
prison system. In doing so, the local and
regional economies will benefit from the
addition of 325 permanent workers and
new annual wages and salaries of $43
million along with $14 million in
annual expenditures for supplies,
equipment, utilities, and other goods
and services necessary for operation.
The estimated $57 million annual
operating budget is also expected to
indirectly support additional private
sector employment in Letcher County
and throughout southeastern Kentucky.
The region has experienced declining
populations and slow or no economic
growth which makes development of
the proposed FCI/FPC attractive and
consistent with the socioeconomic goals
and objectives expressed by Letcher
County leaders and representatives.
The FBOP will rely upon the Letcher
County Water and Sewer District for the
provision of water supply and
wastewater treatment services along
with other providers for electric power,
natural gas, telecommunications, and
solid waste collection services. Positive
economic benefits will also accrue to
those utility providers from suppling
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85565
such services. The necessity for utility
service upgrades, extensions and related
improvements will be communicated
and coordinated with all appropriate
agencies.
Prior to making this decision, the
FBOP carefully considered comments
received following the publication of
the 2024 DEIS and FEIS. The comments
and responses thereto are hereby
acknowledged and measures to avoid,
minimize, and mitigate potential
adverse impacts are documented within
Section V of this ROD. The FBOP has
also carefully considered potential
environmental justice impacts of the
Proposed Action as discussed in the
2024 FEIS, together with comments
concerning environmental justice
submitted during the DEIS and FEIS
process. As documented in the 2024
FEIS, the FBOP has determined that the
Proposed Action will not result in either
a disparate or significantly adverse
impact to low-income or minority
populations to which Executive Order
12898 is applicable.
VIII. Conclusion
After consulting with FBOP staff and
being appraised of material in the 2024
DEIS and FEIS and visiting Letcher
County in August 2024, it is the
decision of the undersigned that the
FBOP select the Roxana Site for land
acquisition and the development of a
FCI and FPC in Letcher County.
Colette S. Peters,
Director, Federal Bureau of Prisons.
[FR Doc. 2024–24948 Filed 10–25–24; 8:45 am]
BILLING CODE P
MERIT SYSTEMS PROTECTION
BOARD
Performance Review Board
Membership
AGENCY:
Merit Systems Protection
Board.
ACTION:
Notice.
The Merit Systems Protection
Board announces the appointment of
the members of its Senior Executive
Service Performance Review Board.
This notice supersedes all previous
notices regarding the Performance
Review Board membership.
DATES: These appointments are effective
October 28, 2024.
FOR FURTHER INFORMATION CONTACT:
Pervis Lee, Director of Human
Resources, Merit Systems Protection
Board, 1615 M Street NW, Washington,
DC 20419; telephone: (771) 210–1492; or
email: [email protected].
SUMMARY:
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The Merit
Systems Protection Board (MSPB) is
publishing the names of the current
members of its Performance Review
Board (PRB) as required by 5 U.S.C.
4314(c)(4) and 5 CFR 430.311. Laura M.
Albornoz, MSPB, serves as Chair of the
PRB. Susan M. Swafford, MSPB; Gina K.
Grippando, MSPB; and David S. Eddy
III, Federal Labor Relations Authority,
serve as members of the PRB.
SUPPLEMENTARY INFORMATION:
Gina K. Grippando,
Clerk of the Board.
[FR Doc. 2024–24936 Filed 10–25–24; 8:45 am]
BILLING CODE P
NUCLEAR REGULATORY
COMMISSION
[EA–23–140; NRC–2024–0162]
In the Matter of Glow Rhino LLC;
Confirmatory Order
Nuclear Regulatory
Commission.
ACTION: Order; issuance.
AGENCY:
The U.S. Nuclear Regulatory
Commission (NRC) issued a
Confirmatory Order to Glow Rhino, LLC
(Glow Rhino) to document
commitments made as part of a
settlement agreement between the NRC
and Glow Rhino following an
alternative dispute resolution mediation
session held on July 18, 2024. The
mediation addressed two apparent
violations involving the possession and
distribution of devices containing
radioactive materials without the
appropriate NRC licenses. Glow Rhino
has committed to corrective actions in
the following areas: return of
unapproved models in Glow Rhino
possession, establishing and
maintaining written documentation and
procedures, and training. The
Confirmatory Order became effective
upon issuance.
DATES: The Confirmatory Order was
issued on October 16, 2024.
ADDRESSES: Please refer to Docket ID
NRC–2024–0162 when contacting the
NRC about the availability of
information regarding this document.
You may obtain publicly available
information related to this document
using any of the following methods:
• Federal Rulemaking website: Go to
https://www.regulations.gov and search
for Docket ID NRC–2024–0162. Address
questions about Docket IDs in
Regulations.gov to Stacy Schumann;
telephone: 301–415–0624; email:
[email protected]. For technical
questions, contact the individual listed
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SUMMARY:
VerDate Sep<11>2014
19:13 Oct 25, 2024
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in the FOR FURTHER INFORMATION
CONTACT section of this document.
• NRC’s Agencywide Documents
Access and Management System
(ADAMS): You may obtain publicly
available documents online in the
ADAMS Public Document collection at
https://www.nrc.gov/reading-rm/
adams.html. To begin the search, select
‘‘Begin Web-based ADAMS Search.’’ For
problems with ADAMS, contact the
NRC’s Public Document Room (PDR)
reference staff at 1–800–397–4209, at
301–415–4737, or by email to
[email protected]. The
Confirmatory Order is available in
ADAMS under Accession No.
ML24250A125.
• NRC’s PDR: The PDR, where you
may examine and order copies of
publicly available documents, is open
by appointment. To make an
appointment to visit the PDR, please
send an email to [email protected]
or call 1–800–397–4209 or 301–415–
4737, between 8 a.m. and 4 p.m. eastern
time (ET), Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Leelavathi Sreenivas, Office of
Enforcement, U.S. Nuclear Regulatory
Commission, Washington, DC 20555–
0001; telephone: 301–287–9249; email:
[email protected].
SUPPLEMENTARY INFORMATION: The text of
the Order is attached.
Dated: October 21, 2024.
For the Nuclear Regulatory Commission.
David L. Pelton,
Director, Office of Enforcement.
Attachment—Glow Rhino, LLC—ADR
Confirmatory Order
United States of America
Nuclear Regulatory Commission
In the Matter of: Glow Rhino, LLC,
Dearborn, Michigan, EA–23—140
Confirmatory Order Effective Upon
Issuance
I
Glow Rhino, LLC. (Glow Rhino) is a
limited liability company and a
commercial seller of consumer products
that contain tritium it purchases and
receives from initial distributors that
have been licensed by NRC. This
Confirmatory Order (CO) is the result of
an agreement reached during an
Alternative Dispute Resolution (ADR)
mediation session conducted on July 18,
2024, in Rockville, Maryland, to address
two apparent violations.
II
On November 15, 2022, the NRC’s
Office of Investigations (OI) opened an
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investigation (OI Case No. 3–2023–003).
The purpose of the investigation was to
determine whether Glow Rhino was in
compliance with NRC’s regulatory
requirements related to Glow Rhino’s
possession and distribution of products
containing radioactive material.
Based on the conclusions of the
investigation, the NRC issued two
apparent violations that were
documented in an NRC letter, dated
April 11, 2024,
(Agencywide Documents Access and
Management System (ADAMS)
Accession No. ML24102A272). The NRC
letter identified two apparent violations
of Title 10 of the Code of Federal
Regulations (10 CFR) 30.3, ‘‘Activities
requiring license’’. The violations are
related to the possession and
distribution of products containing
radioactive material without the
appropriate licenses or authorizations
from the NRC.
10 CFR 30.3(a), ‘‘Activities requiring
license’’ states, in part, that no person
shall manufacture, produce, transfer,
receive, acquire, own, possess, or use
byproduct material except as authorized
in a specific or general license issued in
accordance with the regulations in this
chapter.
The investigation identified that
between approximately January 6, 2021,
to October 4, 2023, Glow Rhino
possessed a number of consumer
products that contained licensable
quantities of byproduct material
(tritium) that was not authorized by a
specific or general license. Specifically,
Glow Rhino possessed products
containing tritium that were not
authorized by a possession license and
were not exempt from the requirements
for a possession license. In addition, the
investigation identified that between
approximately January 6, 2021, to
October 4, 2023, Glow Rhino transferred
products containing byproduct material
to persons not possessing a license,
without having been evaluated by the
NRC and registered in the Sealed Source
and Device Registry (SSDR) or
authorized for distribution by a license
issued pursuant to 10 CFR 30.3(a). The
NRC has determined that certain
consumer product models possessed
and distributed by Glow Rhino did not
match the description and information
in the SSDR. The models identified in
the apparent violations were: Tritium
Pry Bar, Tritium Glow Fob, Tritium
Keybar, Ember Fob, Griffin Pocket Tool,
Spyderco Paramilitary 3, G10 Scales,
Tritium Benchmade Thumbstud—Glow
Rhino, Tritium Benchmade Bugout Axis
Lockbar, G10 Tritium Scales for the
Benchmade Bugout, Tritium
Benchmade Griptilian Axis Lockbar,
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lotter on DSK11XQN23PROD with NOTICES1
and Tritium Mini Benchmade Griptilian
Axis Lockbar. Subsequently, NRC
approved two of the models, authorizing
possession and distribution of those
models as of the approval date. On
March 1, 2023, NRC approved the
Tritium Pry Bar model included in the
apparent violation. On October 4, 2023,
NRC approved the Tritium Glow Fob
with the exoskeleton included in the
apparent violation.
When issuing the apparent violations,
the NRC provided Glow Rhino an
opportunity to respond in writing,
attend a pre-decisional enforcement
conference or participate in an ADR
mediation session to resolve these
concerns. In response, Glow Rhino
requested the use of the NRC’s ADR
process. On July 18, 2024, the NRC and
Glow Rhino conducted an ADR session
mediated by a professional mediator,
arranged through Cornell University’s
Scheinman Institute on Conflict
Resolution. The ADR process is one in
which a neutral mediator, with no
decision-making authority, assists the
parties in reaching an agreement to
resolve any differences regarding the
dispute. This Confirmatory Order is
issued pursuant to the agreement
reached during the ADR process.
III
NRC and Glow Rhino reached a
preliminary settlement agreement
during a full-day mediation session that
was conducted on July 18, 2024. The
elements of the agreement include the
following:
1. The Confirmatory Order will
acknowledge the following actions have
been completed:
Æ Glow Rhino ceased distribution, of
all the models in the apparent violation
(AV), except glow fob and pry bar, from
9/9/23 to present.
Æ Glow Rhino ceased distribution of
glow fob 9/21/22–10/4/23 and pry bar
10/13/22–3/1/23. Glow Rhino resumed
distribution after the models were
authorized by NRC.
Æ Glow Rhino recalled available
products back in from third-party
vendors.
2. NRC and Glow Rhino agree to
disagree on the issue of whether the
models referenced in NRC letter dated
4/11/24 letter are authorized or not.
3. Glow Rhino will provide access to
NRC for inspection to allow NRC
independent verification that
Confirmatory Order conditions have
been satisfied. The inspection will be an
announced inspection.
4. Within 90 days, Glow Rhino will
provide written confirmation to NRC
that it has returned all units for models
specifically listed in AV1 to the supplier
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(or another entity licensed to possess
tritium). The written confirmation will
include, for each model listed in AV1:
the Glow Rhino model number, the
number of units in Glow Rhino’s
possession, the number of units
transferred, the name and license
number of the entity it was transferred
to, and the date of transfer. Glow Rhino
will obtain written documentation of
transfer from the licensee(s) that they
transferred the material to. Glow Rhino
will provide a copy of that
documentation to NRC.
5. Glow Rhino will establish and
maintain a crosswalk.
Æ Within 45 days, Glow Rhino will
provide a list of all Glow Rhino models
still in Glow Rhino possession that
contain radioactive material. The list
will include the Glow Rhino model
number.
Æ Within 90 days, for each model in
the list, Glow Rhino will:
D (A) establish and maintain a written
crosswalk. The crosswalk will list all
models possessed by Glow Rhino. For
each model, the crosswalk will list: the
supplier’s name, the supplier exempt
license number, the supplier registered
model number, and written
confirmation from the supplier that the
model is an authorized model (i.e., has
been distributed under an exempt
distribution license and is registered in
accordance with 10 CFR 32.210). The
crosswalk will be updated to include
any changed or new models prior to
Glow Rhino distribution of those
models.
D or (B) For any model not included
on the crosswalk in (A), Glow Rhino
will provide written documentation that
Glow Rhino has returned all units of
that model to the supplier.
Æ Within 90 days, Glow Rhino will
provide to NRC,
D (A) the initial copy of the written
crosswalk of models in Glow Rhino
possession
D and (B) a copy of the written
documentation of returned models.
Æ Glow Rhino will maintain the
crosswalk in (A) for a minimum of 3
years.
Æ A copy of the crosswalk will be
maintained on site available for NRC
review. A copy will be provided to NRC
upon request.
6. Within 90 days, Glow Rhino will
establish and implement a written
procedure to verify that Glow Rhino
only possesses authorized models.
Æ The procedure will include
instructions for:
D the development and maintenance
of the crosswalk
D how the crosswalk is used to verify
only authorized models are ordered
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85567
D updating the crosswalk to include
any changed or new models prior to
Glow Rhino distribution of those
models.
Æ A copy of the procedure will be
maintained on site available for NRC
review. A copy will be provided to NRC
upon request.
7. Within 120 days, all Glow Rhino
individuals involved in the tritium
product verification and acquisition will
be trained in the applicable Glow Rhino
procedures/processes, as applicable for
their role.
Æ Training will include reading the
procedures established within this
Agreement in Principle.
Æ Training for management will also
include: reading the NRC letter dated 4/
11/24 and reading the NRC
Confirmatory Order.
Æ Glow Rhino will provide training to
new individuals involved in tritium
product verification and acquisition and
will do annual refresher training for a
minimum 3 years.
Æ Training will be documented, and
the documentation will include the
date, names, and a summary of content.
Æ A copy will be maintained on site
available for NRC review. A copy will
be provided to NRC upon request.
The NRC considers the actions
discussed above to be appropriately
prompt and comprehensive.
The NRC agrees to not issue a separate
Notice of Violation to Glow Rhino.
The NRC agrees to not impose a civil
penalty.
The NRC agrees not to pursue any
further enforcement action in
connection with the NRC’s April 11,
2024, letter to Glow Rhino (EA–23–140).
Unless otherwise specified, all dates
are from the date of issuance of the
Confirmatory Order.
Unless otherwise specified, all
documents required to be submitted to
the NRC will be sent to: Director, Office
of Enforcement, U.S. Nuclear Regulatory
Commission, One White Flint North,
11555 Rockville Pike, Rockville, MD
20852–2738, with a copy to the Director,
Materials Safety, Security, State, and
Tribal Programs, Two White Flint
North, 11545 Rockville Pike, Rockville,
MD 20852–2738.
This agreement is binding upon
successors and assigns of Glow Rhino.
In the event of the transfer of the
ownership of Glow Rhino to another
entity, the terms and conditions set
forth hereunder shall continue to apply
and accordingly survive any transfer of
ownership.
Based on the completed (and
planned) actions described above, and
the commitments described in Section V
below, the NRC agrees to not pursue any
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
further enforcement action based on the
apparent violations identified in NRC’s
April 11, 2024, letter (see Section II).
On October 08, 2024, Glow Rhino
consented to issuing this Confirmatory
Order with the commitments, as
described in Section V below. Glow
Rhino further agreed that this
Confirmatory Order is to be effective
upon issuance, and that the agreement
memorialized in this Confirmatory
Order settles the matter between the
parties, and Glow Rhino has waived its
right to a hearing.
IV
I find that the actions completed or
planned by Glow Rhino, as described in
Section III above, combined with the
commitments as set forth in Section V,
are acceptable and necessary, and
conclude that public health and safety
are reasonably assured with these
completed actions and commitments. In
view of the foregoing, I have determined
that public health and safety require
that Glow Rhino’s commitments be
confirmed by this Order. Based on the
above and Glow Rhino’s consent, this
Confirmatory Order is effective upon
issuance.
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V
Accordingly, pursuant to Sections 81,
161b, 161i, 161o, 182, and 186 of the
Atomic Energy Act of 1954, as amended,
and the Commission’s regulations in 10
CFR 2.202 and 10 CFR part 30, as
applicable, it is hereby ordered, effective
upon issuance, that:
1. NRC and Glow Rhino agree to
disagree on the issue of whether the
models referenced in NRC letter dated
April 11, 2024, are authorized or not.
However, Glow Rhino accepts the NRC
determination for the purposes of
restoring compliance and addressing
corrective actions.
2. The following actions have been
completed, based on the NRC
determination that the models in the
apparent violations in NRC letter dated
April 11, 2024, were not authorized:
a. Glow Rhino ceased distribution, of
all the models in the apparent violations
(AV), except glow fob and pry bar, from
September 9, 2023, to present. The
models identified in the AVs were:
Tritium Pry Bar, Tritium Glow Fob,
Tritium Keybar, Ember Fob, Griffin
Pocket Tool, Spyderco Paramilitary 3,
G10 Scales, Tritium Benchmade
Thumbstud—Glow Rhino, Tritium
Benchmade Bugout Axis Lockbar, G10
Tritium Scales for the Benchmade
Bugout, Tritium Benchmade Griptilian
Axis Lockbar, and Tritium Mini
Benchmade Griptilian Axis Lockbar.
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19:13 Oct 25, 2024
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b. Glow Rhino ceased distribution of
Tritium Glow Fob from September 21,
2022, to October 4, 2023, and Tritium
Pry Bar from October 13, 2022, to March
1, 2023. Glow Rhino resumed
distribution after the models were
authorized by NRC.
c. Glow Rhino recalled available
product back in from third-party
vendors.
3. Glow Rhino will provide access to
NRC for inspection to allow NRC
independent verification that
Confirmatory Order conditions have
been satisfied. The inspection will be an
announced inspection.
4. Within 90 days, Glow Rhino will
provide written confirmation to NRC
that it has returned all units for models
specifically listed in AV1 to the supplier
(or another entity licensed to possess
the radioactive material). The written
confirmation will include, for each
model listed in AV1: the Glow Rhino
model number, the number of units in
Glow Rhino’s possession, the number of
units transferred, the name and license#
of the entity it was transferred to, and
the date of transfer. The written
confirmation will also include written
documentation of receipt from the
licensee(s) that Glow Rhino transferred
the material to.
5. Glow Rhino will establish and
maintain a crosswalk.
a. Within 45 days, Glow Rhino will
provide in writing to NRC a list of all
Glow Rhino models still in Glow
Rhino’s possession that contain
radioactive material. The list will
include the Glow Rhino model number.
b. Within 90 days, for each model in
the list, Glow Rhino will:
(A) establish and maintain a written
crosswalk. The crosswalk will list all
models possessed by Glow Rhino. For
each model, the crosswalk will list: the
supplier’s name, the supplier exempt
license number, the supplier registered
model number, and written
confirmation from the supplier that the
model is an authorized model (i.e., it
has been distributed under an exempt
distribution license and is registered in
accordance with 10 CFR 32.210). The
crosswalk will be updated to include
any changed or new models prior to
Glow Rhino distribution of those
models, and
(B) For any model not included on the
crosswalk in (A), Glow Rhino will
provide written confirmation to NRC
that Glow Rhino has returned all units
of that model to the supplier. The
written confirmation will include, for
each model: the Glow Rhino model
number, the number of units in Glow
Rhino’s possession, the number of units
transferred, the name and license# of
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Sfmt 4703
the entity it was transferred to, and the
date of transfer. The written
confirmation will also include written
documentation of receipt from the
licensee(s) (or other entity licensed to
possess the radioactive material) to
which Glow Rhino transferred the
material.
c. Within 90 days, Glow Rhino will
provide to NRC,
(A) the initial copy of the written
crosswalk of models in Glow Rhino
possession and (B) a copy of the written
documentation of returned models.
d. Glow Rhino will maintain the
written crosswalk in (A) for a minimum
of 3 years.
e. A copy the crosswalk will be
maintained on site available for NRC
review. A copy will be provided to NRC
upon request.
6. Within 90 days, Glow Rhino will
establish and implement a written
procedure to verify that Glow Rhino
only possesses authorized models.
Authorized models are models that have
been authorized by NRC for distribution
under an exempt distribution license.
a. The procedure will include
instructions for:
1. the development and maintenance
of the crosswalk required by Condition
5,
2. how the crosswalk is used to verify
that only authorized models are ordered
3. and, updating the crosswalk to
include any changed or new models
prior to Glow Rhino’s distribution of
those models.
b. Glow Rhino will maintain and
implement the written procedure for a
minimum of 5 years.
c. A copy of the procedure will be
maintained on site available for NRC
review. A copy will be provided to NRC
upon request.
7. Within 120 days, all Glow Rhino
individuals involved in the tritium
product verification and acquisition will
be trained in the applicable Glow Rhino
procedures/processes, as applicable for
their role.
a. Training will include reading the
procedures established through this
Confirmatory Order.
b. Training for management will also
include: reading the NRC letter dated
April 11, 2024, and reading this
Confirmatory Order.
c. Glow Rhino will provide training to
new individuals involved in tritium
product verification and acquisition.
This training will be provided prior to
the new individual engaging in
activities involving tritium product
verification and acquisition.
d. Glow Rhino will do annual
refresher training for all individuals for
a minimum of 3 years.
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e. Training will be documented and
include date, names of the individuals
trained, name of the individual
conducting the training, and a summary
of the content.
f. Glow Rhino will maintain the
training documentation for a minimum
of 5 years.
g. A copy of training records will be
maintained on site available for NRC
review. A copy will be provided to NRC
upon request.
The NRC considers the actions
discussed above to be appropriately
prompt and comprehensive.
The NRC agrees to not issue a separate
Notice of Violation to Glow Rhino.
The NRC agrees to not impose a civil
penalty.
The NRC agrees not to pursue any
further enforcement action in
connection with the NRC’s April 11,
2024, letter to Glow Rhino (EA–23–140).
Unless otherwise specified, all
documents required to be submitted to
the NRC will be sent to: Director, Office
of Enforcement, U.S. Nuclear Regulatory
Commission, One White Flint North,
11555 Rockville Pike, Rockville, MD
20852–2738, with a copy to the Director,
Materials Safety, Security, State, and
Tribal Programs, Two White Flint
North, 11545 Rockville Pike, Rockville,
MD 20852–2738.
This agreement is binding upon
successors and assigns of Glow Rhino.
In the event of the transfer of the
ownership of Glow Rhino to another
entity, the terms and conditions set
forth hereunder shall continue to apply
and accordingly survive any transfer of
ownership.
The Director, Office of Enforcement,
may, in writing, relax, rescind, or
withdraw any of the above conditions
upon demonstration by Glow Rhino or
its successors of good cause.
VI
In accordance with 10 CFR 2.202 and
10 CFR 2.309, any person adversely
affected by this CO, other than Glow
Rhino, may request a hearing within 30
calendar days of the date of issuance of
this CO. Where good cause is shown,
consideration will be given to extending
the time to request a hearing. A request
for extension of time must be made in
writing to the Director, Office of
Enforcement, U.S. Nuclear Regulatory
Commission, Washington, DC 20555,
and include a statement of good cause
for the extension.
All documents filed in NRC
adjudicatory proceedings, including a
request for hearing and petition for
leave to intervene (petition), any motion
or other document filed in the
proceeding prior to the submission of a
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19:13 Oct 25, 2024
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petition, and documents filed by
interested governmental entities that
request to participate under 10 CFR
2.315(c), must be filed in accordance
with 10 CFR 2.302. The E-Filing process
requires participants to submit and
serve all adjudicatory documents over
the internet, or in some cases to mail
copies on electronic storage media,
unless an exemption permitting an
alternative filing method, as further
discussed, is granted. Detailed guidance
on making electronic submissions may
be found in the ‘‘Guidance for
Electronic Submissions to the NRC’’
(ADAMS Accession No. ML13031A056)
and on the NRC’s public website at
https://www.nrc.gov/site-help/esubmittals.html.
To comply with the procedural
requirements of E-Filing, at least 10
days prior to the filing deadline, the
participant should contact the Office of
the Secretary by email at
[email protected], or by telephone
at 301–415–1677, to (1) request a digital
identification (ID) certificate, which
allows the participant (or its counsel or
representative) to digitally sign
submissions and access the E-Filing
system for any proceeding in which it
is participating; and (2) advise the
Secretary that the participant will be
submitting a petition or other
adjudicatory document (even in
instances in which the participant, or its
counsel or representative, already holds
an NRC-issued digital ID certificate).
Based upon this information, the
Secretary will establish an electronic
docket for the hearing in this proceeding
if the Secretary has not already
established an electronic docket.
Information about applying for a
digital ID certificate is available on the
NRC’s public website at https://
www.nrc.gov/site-help/e-submittals/
getting-started.html. Once a participant
has obtained a digital ID certificate and
a docket has been created, the
participant can then submit
adjudicatory documents. Submissions
must be in Portable Document Format
(PDF). Additional guidance on PDF
submissions is available on the NRC’s
public website at https://www.nrc.gov/
site-help/electronic-sub-ref-mat.html. A
filing is considered complete at the time
the document is submitted through the
NRC’s E-Filing system. To be timely, an
electronic filing must be submitted to
the E-Filing system no later than 11:59
p.m. Eastern Time (ET) on the due date.
Upon receipt of a transmission, the EFiling system time-stamps the document
and sends the submitter an email notice
confirming receipt of the document. The
E-Filing system also distributes an email
notice that provides access to the
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85569
document to the NRC’s Office of the
General Counsel and any others who
have advised the Office of the Secretary
that they wish to participate in the
proceeding, so that the filer need not
serve the document on those
participants separately. Therefore,
applicants and other participants (or
their counsel or representative) must
apply for and receive a digital ID
certificate before adjudicatory
documents are filed so that they can
obtain access to the documents via the
E-Filing system.
A person filing electronically using
the NRC’s adjudicatory E-Filing system
may seek assistance by contacting the
NRC’s Electronic Filing Help Desk
through the ‘‘Contact Us’’ link located
on the NRC’s public website at https://
www.nrc.gov/site-help/esubmittals.html, by email to
[email protected], or by a tollfree call at 1–866–672–7640. The NRC
Electronic Filing Help Desk is available
between 9 a.m. and 6 p.m., ET, Monday
through Friday, excluding Federal
government holidays.
Participants who believe that they
have good cause for not submitting
documents electronically must file an
exemption request, in accordance with
10 CFR 2.302(g), with their initial paper
filing stating why there is good cause for
not filing electronically and requesting
authorization to continue to submit
documents in paper format. Such filings
must be submitted in accordance with
10 CFR 2.302(b)–(d). Participants filing
adjudicatory documents in this manner
are responsible for serving the
document on all other participants.
Participants granted an exemption
under 10 CFR 2.302(g)(2) must still meet
the electronic formatting requirement in
10 CFR 2.302(g)(1), unless the
participant also seeks and is granted an
exemption from 10 CFR 2.302(g)(1).
Documents submitted in adjudicatory
proceedings will appear in the NRC’s
electronic hearing docket which is
available to the public at https://
adams.nrc.gov/ehd, unless excluded
pursuant to an order of the Commission
or the presiding officer. If you do not
have an NRC-issued digital ID certificate
as described above, click ‘‘cancel’’ when
the link requests certificates and you
will be automatically directed to the
NRC’s electronic hearing dockets where
you will be able to access any publicly
available documents in a particular
hearing docket. Participants are
requested not to include personal
privacy information, such as social
security numbers, home addresses, or
personal phone numbers in their filings,
unless an NRC regulation or other law
requires submission of such
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
2024. There will be no in-person
gathering for this meeting.
DATES: The virtual meeting will be held
on November 21, 2024, beginning at
10:00 a.m. (ET).
ADDRESSES: The meeting will convene
virtually.
FOR FURTHER INFORMATION CONTACT: Ana
Paunoiu, 202–606–2858, or email pay
[email protected].
SUPPLEMENTARY INFORMATION: The
Federal Prevailing Rate Advisory
Committee is composed of a Chair, five
representatives from labor unions
holding exclusive bargaining rights for
Federal prevailing rate employees, and
five representatives from Federal
agencies. Entitlement to membership on
the Committee is provided for in 5
U.S.C. 5347.
The Committee’s primary
responsibility is to review the Prevailing
Rate System and other matters pertinent
to establishing prevailing rates under
subchapter IV, chapter 53, 5 U.S.C., as
amended, and from time to time advise
the Office of Personnel Management.
Annually, the Chair compiles a report
of pay issues discussed and concluded
recommendations. These reports are
available to the public. Reports for
calendar years 2008 to 2023 are posted
at http://www.opm.gov/fprac. Previous
reports are also available, upon written
request to the Committee.
The public is invited to submit
material in writing to the Chair on
Federal Wage System pay matters felt to
be deserving of the Committee’s
attention. Additional information on
these meetings may be obtained by
contacting the Committee at Office of
Personnel Management, Federal
Prevailing Rate Advisory Committee,
For the Nuclear Regulatory Commission.
Room 7H31, 1900 E Street NW,
David L. Pelton, Director
Washington, DC 20415, (202) 606–2858.
/RA/
This meeting is open to the public,
Office of Enforcement
with
an audio option for listening. This
Dated this 16th day of October 2024
notice sets forth the participation
[FR Doc. 2024–24829 Filed 10–25–24; 8:45 am]
guidelines for the meeting.
BILLING CODE 7590–01–P
Meeting Agenda. The committee
meets to discuss various agenda items
related to the determination of
OFFICE OF PERSONNEL
prevailing wage rates for the Federal
MANAGEMENT
Wage System. The committee’s agenda
is approved one week prior to the public
Federal Prevailing Rate Advisory
meeting and will be available upon
Committee Virtual Public Meeting
request at that time.
Public Participation: The November
AGENCY: Office of Personnel
21, 2024, meeting of the Federal
Management.
Prevailing Rate Advisory Committee is
ACTION: Notice.
open to the public through advance
SUMMARY: According to the provisions of registration. Public participation is
available for the meeting. All
section 10 of the Federal Advisory
individuals who plan to attend the
Committee Act, notice is hereby given
virtual public meeting to listen must
that a virtual meeting of the Federal
register by sending an email to
Prevailing Rate Advisory Committee
will be held on Thursday, November 21, [email protected] with the subject
lotter on DSK11XQN23PROD with NOTICES1
information. For example, in some
instances, individuals provide home
addresses in order to demonstrate
proximity to a facility or site. With
respect to copyrighted works, except for
limited excerpts that serve the purpose
of the adjudicatory filings and would
constitute a Fair Use application,
participants are requested not to include
copyrighted materials in their
submission.
The Commission will issue a notice or
order granting or denying a petition,
designating the issues for any hearing
that will be held, and designating the
Presiding Officer. A notice granting a
hearing will be published in the Federal
Register and served on the parties to the
hearing.
If a person (other than Glow Rhino)
requests a hearing, that person shall set
forth with particularity the manner in
which his interest is adversely affected
by this CO and shall address the criteria
set forth in 10 CFR 2.309(d) and (f). If
a hearing is requested by a person
whose interest is adversely affected, the
Commission will issue an order
designating the time and place of any
hearings. If a hearing is held, the issue
to be considered at such hearing shall be
whether this CO should be sustained.
In the absence of any request for
hearing, or written approval of an
extension of time in which to request a
hearing, the provisions specified in
Section V above shall be final 30 days
from the date of this CO without further
order or proceedings. If an extension of
time for requesting a hearing has been
approved, the provisions specified in
Section V shall be final when the
extension expires if a hearing request
has not been received.
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line ‘‘November 21, 2024’’ no later than
Tuesday, November 19, 2024.
The following information must be
provided when registering:
• Name.
• Agency and duty station.
• Email address.
• Your topic of interest.
Members of the press, in addition to
registering for this event, must also
RSVP to [email protected] by November
19, 2024.
A confirmation email will be sent
upon receipt of the registration. Audio
teleconference information for
participation will be sent to registrants
the morning of the virtual meeting.
Office of Personnel Management.
Kayyonne Marston,
Federal Register Liaison.
[FR Doc. 2024–25016 Filed 10–25–24; 8:45 am]
BILLING CODE 6325–39–P
POSTAL REGULATORY COMMISSION
[Docket Nos. MC2025–115 and K2025–113;
MC2025–117 and K2025–115; MC2025–118
and K2025–116; MC2025–119 and K2025–
117; MC2025–120 and K2025–118; MC2025–
121 and K2025–119; MC2025–122 and
K2025–120; MC2025–123 and K2025–121;
MC2025–124 and K2025–122]
New Postal Products
Postal Regulatory Commission.
Notice.
AGENCY:
ACTION:
The Commission is noticing a
recent Postal Service filing for the
Commission’s consideration concerning
a negotiated service agreement. This
notice informs the public of the filing,
invites public comment, and takes other
administrative steps.
DATES: Comments are due: October 29,
2024.
ADDRESSES: Submit comments
electronically via the Commission’s
Filing Online system at http://
www.prc.gov. Those who cannot submit
comments electronically should contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section by
telephone for advice on filing
alternatives.
FOR FURTHER INFORMATION CONTACT:
David A. Trissell, General Counsel, at
202–789–6820.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Table of Contents
I. Introduction
II. Public Proceeding(s)
III. Summary Proceeding(s)
I. Introduction
Pursuant to 39 CFR 3041.405, the
Commission gives notice that the Postal
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lotter on DSK11XQN23PROD with NOTICES1
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Service filed request(s) for the
Commission to consider matters related
to Competitive negotiated service
agreement(s). The request(s) may
propose the addition of a negotiated
service agreement from the Competitive
product list or the modification of an
existing product currently appearing on
the Competitive product list.
The public portions of the Postal
Service’s request(s) can be accessed via
the Commission’s website (http://
www.prc.gov). Non-public portions of
the Postal Service’s request(s), if any,
can be accessed through compliance
with the requirements of 39 CFR
3011.301.1
Section II identifies the docket
number(s) associated with each Postal
Service request, if any, that will be
reviewed in a public proceeding as
defined by 39 CFR 3010.101(p), the title
of each such request, the request’s
acceptance date, and the authority cited
by the Postal Service for each request.
For each such request, the Commission
appoints an officer of the Commission to
represent the interests of the general
public in the proceeding, pursuant to 39
U.S.C. 505 and 39 CFR 3000.114 (Public
Representative). Section II also
establishes comment deadline(s)
pertaining to each such request.
The Commission invites comments on
whether the Postal Service’s request(s)
identified in Section II, if any, are
consistent with the policies of title 39.
Applicable statutory and regulatory
requirements include 39 U.S.C. 3632, 39
U.S.C. 3633, 39 U.S.C. 3642, 39 CFR
part 3035, and 39 CFR part 3041.
Comment deadline(s) for each such
request, if any, appear in Section II.
Section III identifies the docket
number(s) associated with each Postal
Service request, if any, to add a
standardized distinct product to the
Competitive product list or to amend a
standardized distinct product, the title
of each such request, the request’s
acceptance date, and the authority cited
by the Postal Service for each request.
Standardized distinct products are
negotiated service agreements that are
variations of one or more Competitive
products, and for which financial
models, minimum rates, and
classification criteria have undergone
advance Commission review. See 39
CFR 3041.110(n); 39 CFR 3041.205(a).
Such requests are reviewed in summary
proceedings pursuant to 39 CFR
3041.325(c)(2) and 39 CFR
3041.505(f)(1). Pursuant to 39 CFR
1 See Docket No. RM2018–3, Order Adopting
Final Rules Relating to Non-Public Information,
June 27, 2018, Attachment A at 19–22 (Order No.
4679).
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
3041.405(c)–(d), the Commission does
not appoint a Public Representative or
request public comment in proceedings
to review such requests.
II. Public Proceeding(s)
1. Docket No(s).: MC2025–115 and
K2025–113; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 498 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 21, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Kenneth R. Moeller; Comments Due:
October 29, 2024.
2. Docket No(s).: MC2025–117 and
K2025–115; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 500 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 21, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Jennaca D. Upperman; Comments Due:
October 29, 2024.
3. Docket No(s).: MC2025–118 and
K2025–116; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 501 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 21, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Christopher C. Mohr; Comments Due:
October 29, 2024.
4. Docket No(s).: MC2025–119 and
K2025–117; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 502 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 21, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Gregory S. Stanton; Comments Due:
October 29, 2024.
5. Docket No(s).: MC2025–120 and
K2025–118; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 503 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 21, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Gregory S. Stanton; Comments Due:
October 29, 2024.
6. Docket No(s).: MC2025–121 and
K2025–119; Filing Title: USPS Request
to Add Priority Mail Express, Priority
PO 00000
Frm 00084
Fmt 4703
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85571
Mail & USPS Ground Advantage
Contract 504 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 21, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Almaroof Agoro; Comments Due:
October 29, 2024.
7. Docket No(s).: MC2025–122 and
K2025–120; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 505 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 21, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Almaroof Agoro; Comments Due:
October 29, 2024.
8. Docket No(s).: MC2025–123 and
K2025–121; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 506 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 21, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Madison Lichtenstein; Comments Due:
October 29, 2024.
9. Docket No(s).: MC2025–124 and
K2025–122; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 507 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 21, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Madison Lichtenstein; Comments Due:
October 29, 2024.
III. Summary Proceeding(s)
None. See Section II for public
proceedings.
This Notice will be published in the
Federal Register.
Erica A. Barker,
Secretary.
[FR Doc. 2024–24946 Filed 10–25–24; 8:45 am]
BILLING CODE 7710–FW–P
E:\FR\FM\28OCN1.SGM
28OCN1
85572
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
POSTAL REGULATORY COMMISSION
[Docket Nos. MC2025–125 and K2025–123;
MC2025–126 and K2025–124; MC2025–127
and K2025–125; MC2025–128 and K2025–
126; MC2025–129 and K2025–127; MC2025–
130 and K2025–128; MC2025–131 and
K2025–129; MC2025–132 and K2025–130;
MC2025–133 and K2025–131; MC2025–134
and K2025–132; MC2025–135 and K2025–
133; MC2025–136 and K2025–134; MC2025–
137 and K2025–135; MC2025–138 and
K2025–136; MC2025–139 and K2025–137;
MC2025–140 and K2025–138; MC2025–141
and K2025–139; MC2025–142 and K2025–
140]
New Postal Products
Postal Regulatory Commission.
Notice.
AGENCY:
ACTION:
The Commission is noticing a
recent Postal Service filing for the
Commission’s consideration concerning
a negotiated service agreement. This
notice informs the public of the filing,
invites public comment, and takes other
administrative steps.
DATES: Comments are due: October 30,
2024.
ADDRESSES: Submit comments
electronically via the Commission’s
Filing Online system at http://
www.prc.gov. Those who cannot submit
comments electronically should contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section by
telephone for advice on filing
alternatives.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
David A. Trissell, General Counsel, at
202–789–6820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Public Proceeding(s)
III. Summary Proceeding(s)
lotter on DSK11XQN23PROD with NOTICES1
I. Introduction
Pursuant to 39 CFR 3041.405, the
Commission gives notice that the Postal
Service filed request(s) for the
Commission to consider matters related
to Competitive negotiated service
agreement(s). The request(s) may
propose the addition of a negotiated
service agreement from the Competitive
product list or the modification of an
existing product currently appearing on
the Competitive product list.
The public portions of the Postal
Service’s request(s) can be accessed via
the Commission’s website (http://
www.prc.gov). Non-public portions of
the Postal Service’s request(s), if any,
can be accessed through compliance
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
with the requirements of 39 CFR
3011.301.1
Section II identifies the docket
number(s) associated with each Postal
Service request, if any, that will be
reviewed in a public proceeding as
defined by 39 CFR 3010.101(p), the title
of each such request, the request’s
acceptance date, and the authority cited
by the Postal Service for each request.
For each such request, the Commission
appoints an officer of the Commission to
represent the interests of the general
public in the proceeding, pursuant to 39
U.S.C. 505 and 39 CFR 3000.114 (Public
Representative). Section II also
establishes comment deadline(s)
pertaining to each such request.
The Commission invites comments on
whether the Postal Service’s request(s)
identified in Section II, if any, are
consistent with the policies of title 39.
Applicable statutory and regulatory
requirements include 39 U.S.C. 3632, 39
U.S.C. 3633, 39 U.S.C. 3642, 39 CFR
part 3035, and 39 CFR part 3041.
Comment deadline(s) for each such
request, if any, appear in Section II.
Section III identifies the docket
number(s) associated with each Postal
Service request, if any, to add a
standardized distinct product to the
Competitive product list or to amend a
standardized distinct product, the title
of each such request, the request’s
acceptance date, and the authority cited
by the Postal Service for each request.
Standardized distinct products are
negotiated service agreements that are
variations of one or more Competitive
products, and for which financial
models, minimum rates, and
classification criteria have undergone
advance Commission review. See 39
CFR 3041.110(n); 39 CFR 3041.205(a).
Such requests are reviewed in summary
proceedings pursuant to 39 CFR
3041.325(c)(2) and 39 CFR
3041.505(f)(1). Pursuant to 39 CFR
3041.405(c)–(d), the Commission does
not appoint a Public Representative or
request public comment in proceedings
to review such requests.
II. Public Proceeding(s)
1. Docket No(s).: MC2025–125 and
K2025–123; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 508 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
1 See Docket No. RM2018–3, Order Adopting
Final Rules Relating to Non-Public Information,
June 27, 2018, Attachment A at 19–22 (Order No.
4679).
PO 00000
Frm 00085
Fmt 4703
Sfmt 4703
CFR 3041.310; Public Representative:
Almaroof Agoro; Comments Due:
October 30, 2024.
2. Docket No(s).: MC2025–126 and
K2025–124; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 509 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Almaroof Agoro; Comments Due:
October 30, 2024.
3. Docket No(s).: MC2025–127 and
K2025–125; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 510 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Almaroof Agoro; Comments Due:
October 30, 2024.
4. Docket No(s).: MC2025–128 and
K2025–126; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 511 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Gregory S. Stanton; Comments Due:
October 30, 2024.
5. Docket No(s).: MC2025–129 and
K2025–127; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 512 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Gregory S. Stanton; Comments Due:
October 30, 2024.
6. Docket No(s).: MC2025–130 and
K2025–128; Filing Title: USPS Request
to Add Priority Mail & USPS Ground
Advantage Contract 403 to the
Competitive Product List and Notice of
Filing Materials Under Seal; Filing
Acceptance Date: October 22, 2024;
Filing Authority: 39 U.S.C. 3642, 39 CFR
3035.105, and 39 CFR 3041.310; Public
Representative: Kenneth R. Moeller;
Comments Due: October 30, 2024.
7. Docket No(s).: MC2025–131 and
K2025–129; Filing Title: USPS Request
to Add Priority Mail & USPS Ground
Advantage Contract 404 to the
Competitive Product List and Notice of
Filing Materials Under Seal; Filing
Acceptance Date: October 22, 2024;
E:\FR\FM\28OCN1.SGM
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Filing Authority: 39 U.S.C. 3642, 39 CFR
3035.105, and 39 CFR 3041.310; Public
Representative: Kenneth R. Moeller;
Comments Due: October 30, 2024.
8. Docket No(s).: MC2025–132 and
K2025–130; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 513 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Madison Lichtenstein; Comments Due:
October 30, 2024.
9. Docket No(s).: MC2025–133 and
K2025–131; Filing Title: USPS Request
to Add Priority Mail & USPS Ground
Advantage Contract 405 to the
Competitive Product List and Notice of
Filing Materials Under Seal; Filing
Acceptance Date: October 22, 2024;
Filing Authority: 39 U.S.C. 3642, 39 CFR
3035.105, and 39 CFR 3041.310; Public
Representative: Jennaca D. Upperman;
Comments Due: October 30, 2024.
10. Docket No(s).: MC2025–134 and
K2025–132; Filing Title: USPS Request
to Add Priority Mail & USPS Ground
Advantage Contract 406 to the
Competitive Product List and Notice of
Filing Materials Under Seal; Filing
Acceptance Date: October 22, 2024;
Filing Authority: 39 U.S.C. 3642, 39 CFR
3035.105, and 39 CFR 3041.310; Public
Representative: Jennaca D. Upperman;
Comments Due: October 30, 2024.
11. Docket No(s).: MC2025–135 and
K2025–133; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 514 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Madison Lichtenstein; Comments Due:
October 30, 2024.
12. Docket No(s).: MC2025–136 and
K2025–134; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 515 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Madison Lichtenstein; Comments Due:
October 30, 2024.
13. Docket No(s).: MC2025–137 and
K2025–135; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 516 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
VerDate Sep<11>2014
19:13 Oct 25, 2024
Jkt 265001
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Samuel Robinson; Comments Due:
October 30, 2024.
14. Docket No(s).: MC2025–138 and
K2025–136; Filing Title: USPS Request
to Add Priority Mail & USPS Ground
Advantage Contract 407 to the
Competitive Product List and Notice of
Filing Materials Under Seal; Filing
Acceptance Date: October 22, 2024;
Filing Authority: 39 U.S.C. 3642, 39 CFR
3035.105, and 39 CFR 3041.310; Public
Representative: Samuel Robinson;
Comments Due: October 30, 2024.
15. Docket No(s).: MC2025–139 and
K2025–137; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 517 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Samuel Robinson; Comments Due:
October 30, 2024.
16. Docket No(s).: MC2025–140 and
K2025–138; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 518 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Maxine Bradley; Comments Due:
October 30, 2024.
17. Docket No(s).: MC2025–141 and
K2025–139; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 519 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Maxine Bradley; Comments Due:
October 30, 2024.
18. Docket No(s).: MC2025–142 and
K2025–140; Filing Title: USPS Request
to Add Priority Mail Express, Priority
Mail & USPS Ground Advantage
Contract 520 to the Competitive Product
List and Notice of Filing Materials
Under Seal; Filing Acceptance Date:
October 22, 2024; Filing Authority: 39
U.S.C. 3642, 39 CFR 3035.105, and 39
CFR 3041.310; Public Representative:
Maxine Bradley; Comments Due:
October 30, 2024.
III. Summary Proceeding(s)
None. See Section II for public
proceedings.
PO 00000
Frm 00086
Fmt 4703
Sfmt 4703
85573
This notice will be published in the
Federal Register.
Erica A. Barker,
Secretary.
[FR Doc. 2024–25010 Filed 10–25–24; 8:45 am]
BILLING CODE 7710–FW–P
SECURITIES AND EXCHANGE
COMMISSION
Sunshine Act Meetings
2:00 p.m. on Thursday,
October 31, 2024.
PLACE: The meeting will be held via
remote means and/or at the
Commission’s headquarters, 100 F
Street NE, Washington, DC 20549.
STATUS: This meeting will be closed to
the public.
MATTERS TO BE CONSIDERED:
Commissioners, Counsel to the
Commissioners, the Secretary to the
Commission, and recording secretaries
will attend the closed meeting. Certain
staff members who have an interest in
the matters also may be present.
In the event that the time, date, or
location of this meeting changes, an
announcement of the change, along with
the new time, date, and/or place of the
meeting will be posted on the
Commission’s website at https://
www.sec.gov.
The General Counsel of the
Commission, or her designee, has
certified that, in her opinion, one or
more of the exemptions set forth in 5
U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B)
and (10) and 17 CFR 200.402(a)(3),
(a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and
(a)(10), permit consideration of the
scheduled matters at the closed meeting.
The subject matter of the closed
meeting will consist of the following
topics:
Institution and settlement of
injunctive actions;
Institution and settlement of
administrative proceedings;
Resolution of litigation claims; and
Other matters relating to examinations
and enforcement proceedings.
At times, changes in Commission
priorities require alterations in the
scheduling of meeting agenda items that
may consist of adjudicatory,
examination, litigation, or regulatory
matters.
CONTACT PERSON FOR MORE INFORMATION:
For further information, please contact
Vanessa A. Countryman from the Office
of the Secretary at (202) 551–5400.
Authority: 5 U.S.C. 552b.
TIME AND DATE:
E:\FR\FM\28OCN1.SGM
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Notices
Dated: October 24, 2024.
Vanessa A. Countryman,
Secretary.
to consider the proposed rule change.
Accordingly, the Commission, pursuant
to Section 19(b)(2) of the Act,5
designates December 9, 2024, as the date
by which the Commission shall either
approve or disapprove, or institute
proceedings to determine whether to
disapprove, the proposed rule change
(File No. SR–NYSE–2024–47).
[FR Doc. 2024–25077 Filed 10–24–24; 11:15 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–101402; File No. SR–NYSE–
2024–47]
Self-Regulatory Organizations; New
York Stock Exchange LLC; Notice of
Designation of a Longer Period for
Commission Action on a Proposed
Rule Change To Amend Section 102.01
of the NYSE Listed Company Manual
To Provide That the Distribution
Standard Therein Will Be Calculated on
a Worldwide Basis
lotter on DSK11XQN23PROD with NOTICES1
October 22, 2024.
On August 22, 2024, New York Stock
Exchange LLC (‘‘NYSE’’) filed with the
Securities and Exchange Commission
(‘‘Commission’’), pursuant to Section
19(b)(1) of the Securities Exchange Act
of 1934 (‘‘Act’’) 1 and Rule 19b–4
thereunder,2 a proposed rule change to
amend Section 102.01 of the NYSE
Listed Company Manual to provide that
the distribution standard therein will be
calculated on a worldwide basis. The
proposed rule change was published for
comment in the Federal Register on
September 10, 2024.3 The Commission
has received no comment letters on the
proposed rule change.
Section 19(b)(2) of the Act 4 provides
that within 45 days of the publication of
notice of the filing of a proposed rule
change, or within such longer period up
to 90 days as the Commission may
designate if it finds such longer period
to be appropriate and publishes its
reasons for so finding, or as to which the
self-regulatory organization consents,
the Commission will either approve the
proposed rule change, disapprove the
proposed rule change, or institute
proceedings to determine whether the
proposed rule change should be
disapproved. The 45th day after
publication of the notice for this
proposed rule change is October 25,
2024. The Commission is extending this
45-day time period.
The Commission finds it appropriate
to designate a longer period within
which to take action on the proposed
rule change, so that it has sufficient time
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 See Securities Exchange Act Release No. 100918
(September 4, 2024), 89 FR 73463 (September 10,
2024) (SR–NYSE–2024–47).
4 15 U.S.C. 78s(b)(2).
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.6
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024–24939 Filed 10–25–24; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–101406; File No. SR–
CboeBZX–2024–097]
Self-Regulatory Organizations; Cboe
BZX Exchange, Inc.; Notice of Filing
and Immediate Effectiveness of a
Proposed Rule Change To Amend
Company Listing Fees in BZX Rule
14.13
October 22, 2024.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on October
9, 2024, Cboe BZX Exchange, Inc.
(‘‘Exchange’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’) the proposed rule
change as described in Items I and II
below, which Items have been prepared
by the Exchange. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
Cboe BZX Exchange, Inc. (‘‘BZX’’ or
the ‘‘Exchange’’) is filing with the
Securities and Exchange Commission
(‘‘Commission’’ or ‘‘SEC’’) a proposed
rule change to amend the fees
applicable to securities listed on the
Exchange, which are set forth in BZX
Rule 14.13, Company Listing Fees. The
text of the proposed rule change is
provided in Exhibit 5.
The text of the proposed rule change
is also available on the Exchange’s
website (http://markets.cboe.com/us/
equities/regulation/rule_filings/BZX/),
at the Exchange’s Office of the
2 17
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5 15
U.S.C. 78s(b)(2).
CFR 200.30–3(a)(31).
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
6 17
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Secretary, and at the Commission’s
Public Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
Exchange included statements
concerning the purpose of and basis for
the proposed rule change and discussed
any comments it received on the
proposed rule change. The text of these
statements may be examined at the
places specified in Item IV below. The
Exchange has prepared summaries, set
forth in sections A, B, and C below, of
the most significant aspects of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
On January 1, 2019, the Exchange
adopted an entry fee for exchangetraded products (‘‘ETPs’’) 3 that are not
‘‘Generically-Listed ETPs’’.4 The entry
fee adopted in the Original Entry Fee
Filing imposed a maximum entry fee on
an issuer basis of $22,500 per calendar
year. Now, the Exchange proposes to
eliminate the yearly $22,500 maximum
entry fee (the ‘‘entry fee cap’’) applied
to issuers. The Exchange also proposes
to amend Rule 14.13 in order to adopt
a separate fee of $3,500 per ETP for
Companies 5 that make a change to a
product already approved for listing and
trading on the Exchange that requires a
proposed rule change pursuant to
Section 19(b) of the Exchange Act (an
‘‘Exchange Rule Filing Amendment’’).6
3 As defined in Rule 11.8(e)(1)(A), the term ‘‘ETP’’
means any security listed pursuant to Exchange
Rule 14.11.
4 ‘‘Generically-Listed ETPs’’ refers to all ETPs,
with the exception of Index Fund Shares, Portfolio
Depositary Receipts, Managed Fund Shares, Linked
Securities, Currency Trust Shares, and ExchangeTraded Fund Shares that are listed on the Exchange
pursuant to Rule 19b–4(e) under the Exchange Act
and for which a proposed rule change pursuant to
Section 19(b) of the Exchange Act is not required
to be filed with the Commission. See Exchange Rule
14.13(b)(1)(B)(v)(a). See Securities Exchange Act
No. 83597 (July 5, 2018) 83 FR 32164 (July 11, 2018)
(SR–CboeBZX–2018–046) (the ‘‘Original Entry Fee
Filing’’).
5 See Exchange Rule 14.1(a)(3).
6 The Exchange initially filed the proposed fee
change on September 12, 2024 (SR–CboeBZX–
2024–086). On September 19, 2024, the Exchange
withdrew that filing and submitted SR–CboeBZX–
2024–090. On September 30, 2024, the Exchange
withdrew that filing and submitted SR–CboeBZX–
2024–095. On October 9, 2024, the Exchange
withdrew that filing and submitted this proposal.
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Entry Fee Cap
Rule 14.13(b)(1)(B)(v) sets forth the
entry fees applicable to ETPs, which
charge an entry fee of $7,500 per ETP
that is not a Generically-Listed ETP.
Specifically, ETPs that are not
Generically-Listed ETPs require an
Exchange Rule Filing 7 to list and trade
the ETP on the Exchange, and thus
require significantly more time and
Exchange resources to bring to market
than Generically-Listed ETPs. Rule
14.13(b)(1)(B)(v)(a)(2) also provides that
each issuer will be subject to an
aggregate maximum entry fee of $22,500
per calendar year. Therefore, an issuer
is only required to pay an entry fee for
a maximum of three new ETPs that are
not Generically Listed ETPs per year.
Now, the Exchange proposes to
eliminate the yearly $22,500 entry fee
cap applied to ETP issuers. The
Exchange believes that eliminating the
entry fee cap would address the costs
associated with preparing more than
three Exchange Rule Filings for an
issuer on an annual basis.
The Exchange also proposes to
combine the text of existing Exchange
Rule 14.13(b)(1)(B)(v)(a)(1) and
Exchange Rule 14.13(b)(1)(B)(v)(a) and
to correspondingly delete the (1) from
the Rulebook.
lotter on DSK11XQN23PROD with NOTICES1
Exchange Rule Filing Amendment Fee
The Exchange also proposes to adopt
Rule 14.13(b)(4) which would provide
for an Exchange Rule Filing
Amendment fee of $3,500 per ETP. The
proposed Exchange Rule Filing
Amendment fee would apply to a
Company that makes a change to a
product already approved for listing and
trading on the Exchange that would
require the Exchange to prepare an
Exchange Rule Filing Amendment. In
general, any change that requires a new
or amended representation from the
initial Exchange Rule Filing would
require an Exchange Rule Filing
Amendment. Such a fee would be used
to address the costs associated with
preparing and submitting an Exchange
Rule Filing Amendment when
Companies make a change that would
require such an amendment. The
Exchange notes that Companies making
multiple changes that are addressed in
the same Exchange Rule Filing
Amendment would only be charged
$3,500 total and would not be charged
for each individual change in the
7 An initial Exchange Rule Filing refers to the
proposed rule change filed pursuant to Section
19(b) of the Exchange Act required to initially list
and trade an ETP on the Exchange. See Exchange
Rule 14.13(b)(1)(B)(v)(a).
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Exchange Rule Filing Amendment.8 The
Exchange will charge for each Exchange
Rule Filing Amendment unless it is in
furtherance of the same continuous
effort. Specifically, similar to existing
Rule 14.13(b)(1)(B)(v)(a)(1), proposed
Rule 14.13(b)(4) would provide that an
Exchange Rule Filing Amendment will
be considered in furtherance of the same
continuous effort if: the Exchange Rule
Filing Amendment is required for
ministerial purposes related to another
previously filed Exchange Rule Filing
Amendment,9 or if the Exchange Rule
Filing Amendment is withdrawn and
refiled within 30 calendar days.10
The Exchange proposes to implement
the proposed fees effective September
10, 2024.
2. Statutory Basis
The Exchange believes the proposed
rule change is consistent with the Act
and the rules and regulations
thereunder applicable to the Exchange
and, in particular, the requirements of
Section 6(b) of the Act.11 Additionally,
the Exchange believes the proposed rule
change is consistent with the Section
6(b)(5) 12 requirement that the rules of
an exchange not be designed to permit
unfair discrimination between
customers, issuers, brokers, or dealers as
well as Section 6(b)(4) 13 as it is
designed to provide for the equitable
allocation of reasonable dues, fees and
other charges among its Members and
other persons using its facilities.
The Exchange believes that proposed
Rules 14.13(b)(1)(B)(v)(a) and
8 An Exchange Rule Filing Amendment that
modified representations across multiple ETPs in
the same Exchange Rule Filing Amendment would
be charged the fee for each individual ETP.
9 Specifically, the Exchange would not assess an
additional fee to an ETP in the event that an
Exchange Rule Filing Amendment was submitted to
the Commission, rejected by the Commission, and
shortly thereafter resubmitted. Instances where
Exchange Rule Filing Amendments are either
rejected or withdrawn and refiled shortly thereafter
often involve minor or ministerial errors that are in
furtherance of the same continuous effort.
10 The proposed fee would not be applicable to
an amendment to an open Exchange Rule Filing
Amendment. For example, assume the Exchange
has already made an Exchange Rule Filing
Amendment to amend a representation in the initial
filing to list and trade the ETP. If another Exchange
Rule Filing Amendment (e.g., amendment no. 2 to
the previously filed Exchange Rule Filing
Amendment) is necessary, the Exchange would not
charge an additional Exchange Rule Filing
Amendment fee. As another example, if a partial
amendment no. 3 is needed to that Exchange Rule
Filing Amendment, the Exchange would not charge
an additional Exchange Rule Filing Amendment
Fee for that partial amendment. Stated differently,
the proposed fee would not be applicable to an
amendment to an open Exchange Rule Filing
Amendment.
11 15 U.S.C. 78f(b).
12 Id.
13 15 U.S.C. 78f(b)(4).
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85575
14.13(b)(4), which are both designed to
address the Exchange’s costs in
preparing and filing Exchange Rule
Filings and Exchange Rule Filing
Amendments, are reasonable, fair and
equitable, and not an unfairly
discriminatory allocation of fees and
other charges because they would apply
equally to all Companies. Specifically,
the Exchange’s proposal to eliminate the
entry fee cap for ETPs would only
impact Companies that require more
than three Exchange Rule Filings in a
given calendar year. As each Exchange
Rule Filing requires significant
Exchange resources on an individual
basis, and because there is no reduced
cost to the Exchange for preparing
multiple Exchange Rule Filings for a
single Company, the Exchange believes
it reasonable to address the Exchange’s
cost in preparing such Exchange Rule
Filings even if they exceed three in a
given year for a given Company. The
Exchange also believes its proposal to
adopt an Exchange Rule Filing
Amendment fee is reasonable given the
additional resources required by the
Exchange in connection with ETPs
requiring an Exchange Rule Filing
Amendment pursuant to Section 19(b),
specifically the significant additional
time and extensive legal and business
resources required by Exchange staff to
prepare and review such filings and to
communicate with issuers and the
Commission regarding such filings.
The Exchange believes the technical
change to combine Rule
14.13(b)(1)(B)(v)(a) and Rule
14.13(b)(1)(B)(v)(a)(1) is consistent with
Section 6(b)(1) 14 because it will allow
Members of the Exchange to more easily
interpret Exchange Rules.
Furthermore, the marketplace for
listings is extremely competitive and
there are several other national
securities exchanges that offer ETP
listings. Transfers between listing
venues occur frequently for numerous
reasons, including listing fees. The
proposed rule change reflects a
competitive pricing structure, which the
Exchange believes will enhance
competition both among ETP issuers
and listing venues, to the benefit of
investors.
Based on the foregoing, the Exchange
believes that the proposed rule changes
are consistent with the Act.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule changes will impose
any burden on competition not
necessary or appropriate in furtherance
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of the purposes of the Act. With respect
to the proposal to eliminate the entry fee
cap for ETPs and adopt a new fee for
each Exchange Rule Filing Amendment,
the Exchange does not believe that the
changes burden competition, but
instead, enhance competition, as they
are intended to address the costs
associated with preparing an Exchange
Rule Filing and Exchange Rule Filing
Amendment when Companies require
such filings. As such, the proposal is a
competitive proposal designed to
enhance pricing competition among
listing venues and implement pricing
for such rule filings that better reflects
expenses associated with listing ETPs
on the Exchange. The Exchange does
not believe the proposed amendment
would burden intramarket competition
as the proposed fee would be assessed
to all issuers uniformly that require
more than three Exchange Rule Filings
in a given year or an Exchange Rule
Filing Amendment.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
The Exchange neither solicited nor
received comments on the proposed
rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become
effective pursuant to Section 19(b)(3)(A)
of the Act 15 and paragraph (f) of Rule
19b–4 16 thereunder. At any time within
60 days of the filing of the proposed rule
change, the Commission summarily may
temporarily suspend such rule change if
it appears to the Commission that such
action is necessary or appropriate in the
public interest, for the protection of
investors, or otherwise in furtherance of
the purposes of the Act.
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IV. Solicitation of Comments
Interested persons are invited to
submit written data, views and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include file number SR–
CboeBZX–2024–097 on the subject line.
15 15
16 17
19:13 Oct 25, 2024
ACTION:
• Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street NE,
Washington, DC 20549–1090.
All submissions should refer to file
number SR–CboeBZX–2024–097. This
file number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
internet website (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for website viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE,
Washington, DC 20549, on official
business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also
will be available for inspection and
copying at the principal office of the
Exchange. Do not include personal
identifiable information in submissions;
you should submit only information
that you wish to make available
publicly. We may redact in part or
withhold entirely from publication
submitted material that is obscene or
subject to copyright protection. All
submissions should refer to file number
SR–CboeBZX–2024–097 and should be
submitted on or before November 18,
2024.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.17
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024–24940 Filed 10–25–24; 8:45 am]
BILLING CODE 8011–01–P
Notice.
This is a Notice of the
Presidential declaration of a major
disaster for Public Assistance Only for
the State of Nebraska (FEMA–4838–DR),
dated 10/21/2024.
Incident: Severe Storms, Straight-line
Winds, Tornadoes, and Flooding.
Incident Period: 07/31/2024.
DATES: Issued on 10/21/2024.
Physical Loan Application Deadline
Date: 12/20/2024.
Economic Injury (EIDL) Loan
Application Deadline Date: 07/21/2025.
ADDRESSES: Visit the MySBA Loan
Portal at https://lending.sba.gov to
apply for a disaster assistance loan.
FOR FURTHER INFORMATION CONTACT:
Alan Escobar, Office of Disaster
Recovery & Resilience, U.S. Small
Business Administration, 409 3rd Street
SW, Suite 6050, Washington, DC 20416,
(202) 205–6734.
SUPPLEMENTARY INFORMATION: Notice is
hereby given that as a result of the
President’s major disaster declaration on
10/21/2024, Private Non-Profit
organizations that provide essential
services of a governmental nature may
file disaster loan applications online
using the MySBA Loan Portal https://
lending.sba.gov or other locally
announced locations. Please contact the
SBA disaster assistance customer
service center by email at
[email protected] or by
phone at 1–800–659–2955 for further
assistance.
The following areas have been
determined to be adversely affected by
the disaster:
Primary Counties: Cass, Douglas,
Lancaster, Sarpy, Saunders.
The Interest Rates are:
SUMMARY:
Percent
For Physical Damage:
Non-Profit Organizations with
Credit Available Elsewhere ...
Non-Profit Organizations without Credit Available Elsewhere .....................................
For Economic Injury:
Non-Profit Organizations without Credit Available Elsewhere .....................................
3.250
3.250
3.250
SMALL BUSINESS ADMINISTRATION
[Disaster Declaration #20813 and #20814;
NEBRASKA Disaster Number NE–20009]
Presidential Declaration of a Major
Disaster for Public Assistance Only for
the State of Nebraska
U.S. Small Business
Administration.
AGENCY:
The number assigned to this disaster
for physical damage is 20813B and for
economic injury is 208140.
(Catalog of Federal Domestic Assistance
Number 59008)
Rafaela Monchek,
Deputy Associate Administrator, Office of
Disaster Recovery & Resilience.
[FR Doc. 2024–24973 Filed 10–25–24; 8:45 am]
U.S.C. 78s(b)(3)(A).
CFR 240.19b–4(f).
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17 17
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CFR 200.30–3(a)(12).
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SMALL BUSINESS ADMINISTRATION
[Disaster Declaration #20795 and #20796;
NORTH CAROLINA Disaster Number NC–
20011]
Presidential Declaration of a Major
Disaster for Public Assistance Only for
the State of North Carolina
This is a Notice of the
Presidential declaration of a major
disaster for Public Assistance Only for
the State of North Carolina (FEMA–
4837–DR), dated 10/19/2024.
Incident: Potential Tropical Cyclone
Eight.
Incident Period: 09/16/2024 through
09/20/2024.
DATES: Issued on 10/19/2024.
Physical Loan Application Deadline
Date: 12/18/2024.
Economic Injury (EIDL) Loan
Application Deadline Date: 07/21/2025.
ADDRESSES: Visit the MySBA Loan
Portal at https://lending.sba.gov to
apply for a disaster assistance loan.
FOR FURTHER INFORMATION CONTACT:
Vanessa Morgan, Office of Disaster
Recovery & Resilience, U.S. Small
Business Administration, 409 3rd Street
SW, Suite 6050, Washington, DC 20416,
(202) 205–6734.
SUPPLEMENTARY INFORMATION: Notice is
hereby given that as a result of the
President’s major disaster declaration on
10/19/2024, Private Non-Profit
organizations that provide essential
services of a governmental nature may
file disaster loan applications online
using the MySBA Loan Portal https://
lending.sba.gov or other locally
announced locations. Please contact the
SBA disaster assistance customer
service center by email at
[email protected] or by
phone at 1–800–659–2955 for further
assistance.
The following areas have been
determined to be adversely affected by
the disaster:
Primary Counties: Brunswick, Carteret,
New Hanover, Onslow.
The Interest Rates are:
SUMMARY:
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Percent
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19:13 Oct 25, 2024
Non-Profit Organizations without Credit Available Elsewhere .....................................
3.250
3.250
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DEPARTMENT OF STATE
[Public Notice: 12571]
3.250
The number assigned to this disaster
for physical damage is 207958 and for
economic injury is 207960.
(Catalog of Federal Domestic Assistance
Number 59008)
U.S. Small Business
Administration.
ACTION: Notice.
AGENCY:
For Physical Damage:
Non-Profit Organizations with
Credit Available Elsewhere ...
Non-Profit Organizations without Credit Available Elsewhere .....................................
For Economic Injury:
Percent
85577
Rafaela Monchek,
Deputy Associate Administrator, Office of
Disaster Recovery & Resilience.
[FR Doc. 2024–24931 Filed 10–25–24; 8:45 am]
BILLING CODE 8026–09–P
SMALL BUSINESS ADMINISTRATION
[Disaster Declaration #20459 and #20460;
SAN CARLOS APACHE TRIBE Disaster
Number AZ–20005]
Presidential Declaration Amendment of
a Major Disaster for the San Carlos
Apache Tribe
U.S. Small Business
Administration.
ACTION: Amendment 1.
AGENCY:
Notice of Determinations; Culturally
Significant Objects Being Imported for
Exhibition—Determinations: ‘‘Qi
Baishi: Inspiration in Ink’’ Exhibition
Notice is hereby given of the
following determinations: I hereby
determine that certain objects being
imported from abroad pursuant to an
agreement with their foreign owner or
custodian for temporary display in the
exhibition ‘‘Qi Baishi: Inspiration in
Ink’’ at the Asian Art Museum, San
Francisco, California; the Museum of
Fine Arts, Boston, in Boston,
Massachusetts; and at possible
additional exhibitions or venues yet to
be determined, are of cultural
significance, and, further, that their
temporary exhibition or display within
the United States as aforementioned is
in the national interest. I have ordered
that Public Notice of these
determinations be published in the
Federal Register.
SUMMARY:
This is an amendment of the
Presidential declaration of a major
disaster for the San Carlos Apache Tribe
(FEMA–4833–DR), dated 10/04/2024.
Incident: Watch Fire.
Incident Period: 07/10/2024 through
07/17/2024.
DATES: Issued on 10/21/2024.
Physical Loan Application Deadline
Date: 12/16/2024.
Economic Injury (EIDL) Loan
Application Deadline Date: 07/07/2025.
ADDRESSES: Visit the MySBA Loan
Portal at https://lending.sba.gov to
apply for a disaster assistance loan.
FOR FURTHER INFORMATION CONTACT:
Alan Escobar, Office of Disaster
Recovery & Resilience, U.S. Small
Business Administration, 409 3rd Street
SW, Suite 6050, Washington, DC 20416,
(202) 205–6734.
SUPPLEMENTARY INFORMATION: The notice
of the President’s major disaster
declaration for the San Carlos Apache
Tribe, dated 10/04/2024, is hereby
amended to extend the deadline for
filing applications for physical damages
as a result of this disaster to 12/16/2024.
All other information in the original
declaration remains unchanged.
FOR FURTHER INFORMATION CONTACT:
(Catalog of Federal Domestic Assistance
Number 59008)
[FR Doc. 2024–24944 Filed 10–25–24; 8:45 am]
SUMMARY:
Reed Liriano, Program Coordinator,
Office of the Legal Adviser, U.S.
Department of State (telephone: 202–
632–6471; email: section2459@
state.gov). The mailing address is U.S.
Department of State, L/PD, 2200 C Street
NW (SA–5), Suite 5H03, Washington,
DC 20522–0505.
The
foregoing determinations were made
pursuant to the authority vested in me
by the Act of October 19, 1965 (79 Stat.
985; 22 U.S.C. 2459), Executive Order
12047 of March 27, 1978, the Foreign
Affairs Reform and Restructuring Act of
1998 (112 Stat. 2681, et seq.; 22 U.S.C.
6501 note, et seq.), Delegation of
Authority No. 234 of October 1, 1999,
Delegation of Authority No. 236–3 of
August 28, 2000, and Delegation of
Authority No. 523 of December 22,
2021.
SUPPLEMENTARY INFORMATION:
Nicole L. Elkon,
Deputy Assistant Secretary for Professional
and Cultural Exchanges, Bureau of
Educational and Cultural Affairs, Department
of State.
BILLING CODE 4710–05–P
Rafaela Monchek,
Deputy Associate Administrator, Office of
Disaster Recovery & Resilience.
[FR Doc. 2024–24915 Filed 10–25–24; 8:45 am]
BILLING CODE 8026–09–P
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DEPARTMENT OF STATE
DEPARTMENT OF STATE
DEPARTMENT OF TRANSPORTATION
[Public Notice: 12569]
[Public Notice: 12570]
Notice of Determinations; Culturally
Significant Objects Being Imported for
Exhibition—Determinations:
‘‘Pirouette: Turning Points in Design’’
Exhibition
Notice of Determinations; Culturally
Significant Objects Being Imported for
Exhibition—Determinations: ‘‘Franz
Kafka’’ Exhibition
Federal Highway Administration
Notice is hereby given of the
following determinations: I hereby
determine that certain objects being
imported from abroad pursuant to
agreements with their foreign owners or
custodians for temporary display in the
exhibition ‘‘Franz Kafka’’ at The Morgan
Library & Museum, New York, New
York, and at possible additional
exhibitions or venues yet to be
determined, are of cultural significance,
and, further, that their temporary
exhibition or display within the United
States as aforementioned is in the
national interest. I have ordered that
Public Notice of these determinations be
published in the Federal Register.
SUMMARY:
Notice is hereby given of the
following determinations: I hereby
determine that certain objects being
imported from abroad pursuant to
agreements with their foreign owners or
custodians for temporary display in the
exhibition ‘‘Pirouette: Turning Points in
Design’’ at The Museum of Modern Art,
New York, New York, and at possible
additional exhibitions or venues yet to
be determined, are of cultural
significance, and, further, that their
temporary exhibition or display within
the United States as aforementioned is
in the national interest. I have ordered
that Public Notice of these
determinations be published in the
Federal Register.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Reed Liriano, Program Coordinator,
Office of the Legal Adviser, U.S.
Department of State (telephone: 202–
632–6471; email: section2459@
state.gov). The mailing address is U.S.
Department of State, L/PD, 2200 C Street
NW (SA–5), Suite 5H03, Washington,
DC 20522–0505.
The
foregoing determinations were made
pursuant to the authority vested in me
by the Act of October 19, 1965 (79 Stat.
985; 22 U.S.C. 2459), Executive Order
12047 of March 27, 1978, the Foreign
Affairs Reform and Restructuring Act of
1998 (112 Stat. 2681, et seq.; 22 U.S.C.
6501 note, et seq.), Delegation of
Authority No. 234 of October 1, 1999,
Delegation of Authority No. 236–3 of
August 28, 2000, and Delegation of
Authority No. 523 of December 22,
2021.
SUPPLEMENTARY INFORMATION:
Nicole L. Elkon,
Deputy Assistant Secretary for Professional
and Cultural Exchanges, Bureau of
Educational and Cultural Affairs, Department
of State.
FOR FURTHER INFORMATION CONTACT:
Reed Liriano, Program Coordinator,
Office of the Legal Adviser, U.S.
Department of State (telephone: 202–
632–6471; email: section2459@
state.gov). The mailing address is U.S.
Department of State, L/PD, 2200 C Street
NW (SA–5), Suite 5H03, Washington,
DC 20522–0505.
The
foregoing determinations were made
pursuant to the authority vested in me
by the Act of October 19, 1965 (79 Stat.
985; 22 U.S.C. 2459), Executive Order
12047 of March 27, 1978, the Foreign
Affairs Reform and Restructuring Act of
1998 (112 Stat. 2681, et seq.; 22 U.S.C.
6501 note, et seq.), Delegation of
Authority No. 234 of October 1, 1999,
Delegation of Authority No. 236–3 of
August 28, 2000, and Delegation of
Authority No. 523 of December 22,
2021.
SUPPLEMENTARY INFORMATION:
Nicole L. Elkon,
Deputy Assistant Secretary for Professional
and Cultural Exchanges, Bureau of
Educational and Cultural Affairs, Department
of State.
[FR Doc. 2024–24943 Filed 10–25–24; 8:45 am]
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[FHWA Docket No. FHWA–2024–0017]
Surface Transportation Project
Delivery Program; Arizona Department
of Transportation Draft FHWA Audit
Four Report
Federal Highway
Administration (FHWA), U.S.
Department of Transportation (DOT).
ACTION: Notice; request for comment.
AGENCY:
The Moving Ahead for
Progress in the 21st Century Act (MAP–
21) established the Surface
Transportation Project Delivery Program
that allows a State to assume FHWA’s
environmental responsibilities for
environmental review, consultation, and
compliance under the National
Environmental Policy Act (NEPA) for
Federal highway projects. When a State
assumes these Federal responsibilities,
the State becomes solely responsible
and liable for carrying out the
responsibilities it has assumed, in lieu
of FHWA. This program mandates
annual audits during each of the first 4
years of State participation to ensure
compliance with program requirements.
This is the fourth audit of the
responsibilities assigned to the Arizona
Department of Transportation (ADOT)
under the Surface Transportation
Project Delivery Program (NEPA
Assignment Program). This notice
announces and solicits comments on the
fourth audit report for ADOT.
DATES: Comments must be received on
or before November 27, 2024.
ADDRESSES: To ensure that you do not
duplicate your docket submissions,
please submit all comments by only one
of the following means:
• Federal eRulemaking Portal: Go to
www.regulations.gov and follow the
online instructions for submitting
comments.
• Mail: Docket Management Facility,
U.S. Department of Transportation, 1200
New Jersey Avenue SE, W12–140,
Washington, DC 20590.
• Hand Delivery: West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE, between 9:00
a.m. and 5:00 p.m., Monday through
Friday, except Federal holidays. The
telephone number is (202) 366–9329.
• Instructions: You must include the
agency name and docket number at the
beginning of your comments. All
comments received will be posted
without change to www.regulations.gov,
including any personal information
provided.
SUMMARY:
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FOR FURTHER INFORMATION CONTACT:
Owen Lindauer, Ph.D., RPA, Office of
Project Development and Environmental
Review, (202) 633–0356,
[email protected], Federal
Highway Administration, U.S.
Department of Transportation, 1200
New Jersey Avenue SE., Washington,
DC 20590, or Mr. Silvio J. Morales,
Office of the Chief Counsel, (202) 366–
1345, [email protected], Federal
Highway Administration, U.S.
Department of Transportation, 1200
New Jersey Avenue SE., Washington,
DC 20590. Office hours are from 8:00
a.m. to 4:30 p.m., EST, Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
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Electronic Access
An electronic copy of this notice may
be downloaded from the specific docket
page at www.regulations.gov.
Background
The Surface Transportation Project
Delivery Program, codified at 23 United
States Code (U.S.C.) 327, commonly
known as the NEPA Assignment
Program, allows a State to assume
FHWA’s environmental responsibilities
for review, consultation, and
compliance for Federal-aid highway
projects. When a State assumes these
Federal responsibilities, the State
becomes solely liable for carrying out
the responsibilities it has assumed, in
lieu of FHWA. The ADOT published its
application for NEPA assumption on
June 29, 2018, and solicited public
comment. After considering public
comments, ADOT submitted its
application to FHWA on November 16,
2018. The application served as the
basis for developing a memorandum of
understanding (MOU) that identifies the
responsibilities and obligations that
ADOT would assume. The FHWA
published a notice of the draft MOU in
the Federal Register on February 11,
2019, at 84 FR 3275, with a 30-day
comment period to solicit the views of
the public and Federal Agencies. After
the close of the comment period, FHWA
and ADOT considered comments and
proceeded to execute the MOU.
Effective April 16, 2019, ADOT assumed
FHWA’s responsibilities under NEPA,
and the responsibilities for other
Federal environmental laws described
in the MOU.
Section 327(g) of title 23, U.S.C.,
requires the Secretary to conduct annual
audits to ensure compliance with the
MOU during each of the first 4 years of
State participation and, after the fourth
year, monitor compliance. The FHWA
must make the results of each audit
available for public comment. The audit
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report reflects the findings at the time of
the review and does not capture specific
actions taken after the review. This
notice announces and solicits comments
on the fourth audit report for ADOT.
Authority: Section 1313 of Public Law
112–141; section 6005 of Public Law
109–59; 23 U.S.C. 327; 23 CFR 773.
Kristin R. White,
Acting Administrator, Federal Highway
Administration.
Surface Transportation Project Delivery
Program Draft FHWA Audit #4 of the
Arizona Department of Transportation
Executive Summary
This is Audit #4 of the Arizona Department
of Transportation’s (ADOT) assumption of
National Environmental Policy Act (NEPA)
responsibilities under the Surface
Transportation Project Delivery Program.
Under the authority of 23 U.S.C. 327, ADOT
and the Federal Highway Administration
(FHWA) executed a memorandum of
understanding (MOU) on April 16, 2019, to
define ADOT’s NEPA responsibilities and
liabilities for Federal-aid highway projects
and other related environmental reviews for
highway projects in Arizona. This MOU
covers environmental review responsibilities
for projects that require the preparation of
environmental assessments (EA),
environmental impact statements (EIS), and
unlisted (identified as individual by ADOT)
categorical exclusions (CE).
The FHWA conducted the fourth audit of
ADOT’s performance according to the terms
of the MOU from March 27 to March 31,
2023. Prior to the audit, the FHWA audit
team reviewed ADOT’s environmental
manuals and procedures, NEPA project files,
ADOT’s response to FHWA’s pre-audit
information request (PAIR), and ADOT’s
NEPA Assignment Self-Assessment Report.
During the fourth audit, the audit team
conducted interviews with staff from ADOT’s
Office of Environmental Planning (EP), Civil
Rights Office (CRO), Construction Districts,
Right-of-Way, Alternative Delivery Group,
and the Deputy Director, as well as the Salt
River Pima-Maricopa Indian Community
Tribal Historic Preservation Office (THPO),
the Arizona State Historic Preservation
Officer (SHPO), and the Arizona Attorney
General’s Office (AGO) and prepared
preliminary audit results. The audit team
presented these preliminary results to ADOT
EP leadership on March 30, 2023, and to
ADOT leadership on April 7, 2023.
The audit team found that ADOT has
carried out the responsibilities it assumed
consistent with the terms of the MOU and
ADOT’s application. The ADOT continues to
develop, revise, and implement procedures
and processes required to deliver its NEPA
Assignment Program. This report describes
several general observations and successful
practices, as well as identified noncompliance observations where ADOT must
implement corrective actions pursuant to
MOU Part 13.2.2. This report concludes with
the status of FHWA’s observations from the
third audit review. After the fourth year of
ADOT’s participation in the program, FHWA
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will continue to monitor ADOT’s compliance
with the terms of this MOU, in accordance
with 23 U.S.C. 327(h).
Background
The purpose of the audits performed under
the authority of 23 U.S.C. 327 is to assess a
State’s compliance with the provisions of the
MOU as well as all applicable Federal
statutes, regulations, policies, and guidance.
The FHWA’s review and oversight obligation
entails the need to collect information to
evaluate the success of the NEPA Assignment
Program; to evaluate a State’s progress
toward achieving its performance measures
as specified in the MOU; and to collect
information for the administration of the
NEPA Assignment Program. This report
summarizes the results of the fourth audit in
Arizona and ADOT’s progress towards
meeting the program review objectives
identified in the MOU.
Scope and Methodology
The overall scope of this audit review is
defined both in statute (23 U.S.C. 327) and
the MOU (Part 11). The definition of an audit
is one where an independent, unbiased body
makes an official and careful examination
and verification of accounts and records.
Auditors who have special training with
regard to accounts or financial records may
follow a prescribed process or methodology
in conducting an audit of those processes or
methods. The FHWA considers its review to
meet the definition of an audit because it is
an unbiased, independent, official, and
careful examination and verification of
records and information about ADOT’s
assumption of environmental
responsibilities.
The audit team consisted of NEPA subject
matter experts from FHWA Headquarters,
Resource Center, Office of the Chief Counsel,
and staff from FHWA’s Arizona Division.
This audit is an unbiased official action taken
by FHWA, which included an audit team of
diverse composition, and followed an
established process for developing the review
report and publishing it in the Federal
Register.
The audit team reviewed six NEPA
Assignment Program elements: program
management; documentation and records
management; quality assurance/quality
control (QA/QC); performance measures;
legal sufficiency; and training. The audit
team considered four additional focus areas
for this review: the procedures contained in
40 CFR 93 for project-level conformity; the
procedures for environmental justice
evaluations (Environmental Justice per
Executive Order (E.O.) 12898, Federal
Actions to Address Environmental Justice in
Minority Populations and Low-Income
Populations); the Section 106 consultation
procedures contained in the National
Historic Preservation Act of 1966, 36 CFR
800 et seq.; and ADOT’s environmental
commitment tracking and implementation
process. This report concludes with a status
update for FHWA’s observations from the
second and third audit reports.
The audit team conducted a careful
examination of ADOT policies, guidance, and
manuals pertaining to NEPA responsibilities,
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as well as a representative sample of the
ADOT project files. Other documents, such
as ADOT’s PAIR responses and ADOT’s SelfAssessment Report, also informed this
review. In addition, the audit team
interviewed ADOT, the Arizona AGO and
Tribal THPO staff, as well as the Arizona
SHPO in person and via videoconference.
The timeframe defined for this fourth audit
includes highway project environmental
approvals completed between January 1 and
December 31, 2022. During this timeframe,
ADOT completed NEPA approvals and
documented NEPA decision points for seven
projects. Due to the small sample size, the
audit team reviewed all seven projects. This
consisted of three EA re-evaluations, one EA
with a Finding of No Significant Impact, one
draft EA that completed the public hearing
and review process, and two unlisted CEs.
The FHWA also reviewed information
pertaining to project tracking and mitigation
commitment compliance for all projects that
have been processed by ADOT since the
initiation of the NEPA Assignment Program.
The PAIR submitted to ADOT contained 25
questions covering all 6 NEPA Assignment
Program elements. The audit team developed
specific follow-up questions for the
interviews with ADOT staff and others based
on ADOT responses to the PAIR. The audit
team conducted a total of 18 interviews.
Interview participants included staff from
ADOT, a Tribal THPO and the Arizona AGO,
as well as the Arizona SHPO.
The audit team compared ADOT manuals
and procedures to the information obtained
during interviews and project file reviews to
determine if ADOT’s performance of its MOU
responsibilities is in accordance with ADOT
procedures and Federal requirements. The
audit team documented individual
observations and successful practices during
the interviews and reviews and combined
these under the six NEPA Assignment
Program elements. The audit results are
described below by program element.
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Overall Audit Opinion
The audit team found that ADOT has
carried out the responsibilities it has
assumed consistent with the terms of the
MOU. The FHWA is notifying ADOT of three
non-compliance observations identified in
this audit that require ADOT to take
corrective action. The ADOT must address
these non-compliance observations per MOU
Part 13.2.2 and continue making progress on
non-compliance observations in the previous
audits as a section of the 327 MOU renewal
process. Future monitoring reviews will
continue to report on ADOT’s corrective
actions. By addressing the observations cited
in this report, ADOT will continue to ensure
a successful program.
Successful Practices and Observations
Successful practices are practices that the
team believes are positive and encourages
ADOT to consider continuing or expanding
the use of those practices in the future. While
not accounting for all the successful practices
used by ADOT in implementing the NEPA
Assignment Program, the audit team
identified four successful practices in this
report.
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Observations are items the audit team
would like to draw ADOT’s attention to,
which may improve processes, procedures,
and/or outcomes. The audit team identified
13 general observations in this report.
Non-compliance observations are instances
where the audit team finds the State is not
in compliance or is deficient with regard to
a Federal regulation, statute, guidance,
policy, State procedure, or the MOU. Noncompliance may also include instances
where the State has failed to secure or
maintain adequate personnel and/or financial
resources to carry out the responsibilities
they have assumed. The FHWA expects the
State to develop and implement corrective
actions to address all non-compliance
observations. The audit team identified three
non-compliance observations in this report.
Program Management
Successful Practice #1
The ADOT EP meets monthly with the
Arizona (AZ) Division. This has resulted in
improved communication and contributes to
the tracking and ultimate resolution of issues.
Successful Practice #2
The audit team acknowledges the efforts to
address lessons learned on alternative
delivery projects through the development of
NEPA and Public Private Partnership
Guidance. These include improving
communication with ADOT EP and
advancing environmental commitment
activities earlier for more successful projects.
Successful Practice #3
The ADOT has taken steps over the past
year to improve Tribal engagement. The
ADOT EP sent letters to Tribes introducing
the EP Tribal Liaison and offered to meet.
The ADOT created and filled a Native
Nations Ambassador for Infrastructure
position in the State Engineer’s Office to
improve communication with the Tribes and
be a point of contact for them regarding any
issues. And finally, ADOT EP developed the
first project-specific Tribal Environmental
Engagement Plan which outlines
communication protocols, outreach practices
and points of contact for a project that
crosses into Tribal land.
Observations
Non-compliance Observation #1:
Incomplete Reporting to the Federal
Infrastructure Permitting Dashboard
The ADOT is responsible for inputting
project information for assigned projects into
the Federal Infrastructure Permitting
Dashboard (Dashboard), per MOU Part 8.5.1.
During the time period covered by this audit,
the audit team reviewed the Dashboard and
found that it did not include all Federal
permit and authorization information for the
applicable projects assigned to ADOT. In
addition, the audit team found that not all
active projects were included, updates
appeared in draft form or were not published.
The audit team also found that milestone
dependencies, which are milestone dates on
the Permitting Dashboard that are contingent
on the completion of another milestone
found in the permitting timetable, were not
identified and there were misidentifications
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of Major Infrastructure Projects which no
longer applied due to the recission of E.O.
13807, Establishing Discipline and
Accountability in the Environmental Review
and Permitting Process for Infrastructure
Projects. Per the Office of the Secretary of
Transportation Dashboard reporting
standards, ADOT is required to identify all
Federal permits and authorizations that are
anticipated to be needed for the project to
complete construction, and to input target
and actual milestone completion dates for
those permits and authorizations. In
accordance with the Office of the Secretary
of Transportation Dashboard reporting
standards, ADOT must take corrective action
to address this issue.
Observation #1: Deficiencies and Gaps in
ADOT’s Manuals and Procedures
The audit team reviewed ADOT’s manuals
and procedures. Part 4.2.4 of the MOU
specifies that ADOT must implement
procedures to support appropriate
environmental analysis and decisionmaking
under NEPA and associated laws and
regulations. The audit team identified the
following deficiencies in ADOT’s manuals
and procedures which may result in
incomplete project documentation or
analysis and increase the risk for noncompliance:
• The EA/EIS Manual and the CE Manual
do not identify what the minimum
requirements or procedures are for public
involvement when there is a low-income or
minority population in the project area, or
when these populations have expressed an
interest in the project.
• The ADOT manuals and procedures do
not make a clear statement that the 23 U.S.C.
327 MOU disclosure language is required in
the consultation that is completed as part of
the NEPA process for Local Public Agency
(LPA)/Certified Acceptance Agency (CAA)
projects per MOU Parts 3.1.2 and 3.2.6.
• The ADOT EA/EIS Manual should be
updated to clearly indicate that a purpose
and need statement should not include
discussion of the build alternative nor use
the build alternative as justification for the
need to construct a transportation facility.
The FHWA recommends an update to the
ADOT EA/EIS Manual related to the public
involvement process for re-evaluations.
While public circulation is not required for
re-evaluations, FHWA recommends ADOT
institute a review process for ADOT to
determine if controversial or projects of
public concern require public outreach or at
a minimum, post the NEPA document for
public and stakeholder review.
Observation #2: Improvements to Tribal
Engagement Are Warranted
Interviews with ADOT staff, the SHPO and
a THPO identified the need for ADOT to
continue efforts to improve Tribal
consultation practices and relationships with
Tribes. The SHPO encourages ADOT to listen
to Tribes, consult earlier and improve trust
with Tribes, and identifies the need for more
training of ADOT staff. The THPO expressed
continued communication and transparency
issues with ADOT, such as that ADOT lacked
an understanding of what Tribal consultation
should consist of, frustration with continued
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violations of cultural commitments during
construction, and continued lack of trust.
The audit team acknowledges that ADOT
seems to be attempting to work on some of
these issues, but the actions are inconsistent.
The FHWA recommends:
• ADOT seek input from THPOs and AZ
SHPO on the specification developed to
address cultural resource commitment noncompliance by construction contractors and
advance the specification to implementation.
• ADOT improve transparency regarding
project information for projects in Tribal land
or of Tribal interest.
• ADOT build and maintain relationships
with the Tribes.
• ADOT fully implement the FHWA/
ADOT Tribal Consultation Letter Agreement
executed on August 5, 2022.
Observation #3: Incomplete Identification
and Reporting of Responsibilities Under the
327 MOU Assigned to Additional Divisions
Independent of ADOT EP
During Audit #3, the previous audit team
identified that ADOT divisions outside of EP
have NEPA responsibilities and these
divisions have not been identified or
addressed in the ADOT EP procedures; nor
were they included in the ADOT
documentation and reporting. Based on
interviews of ADOT staff, the PAIR responses
and review of ADOT’s manuals for this audit,
ADOT has not taken corrective actions to
develop or implement procedures to apply
the 327 MOU provisions to all divisions of
ADOT in accordance with MOU Part 1.1.2. In
addition, the audit team identified a lack of
training and awareness of NEPA assignment
and MOU responsibilities within the other
divisions, in particular at management levels.
The ADOT should identify methods to
ensure future compliance.
Non-Compliance Observation #2: Inadequate
or Incomplete Documentation and
Implementation of Environmental
Commitments
The ADOT is obligated to implement all
committed environmental impact mitigation
measures (23 CFR 771.109(b)(2)) for projects
funded with Federal-aid. Therefore, it is also
responsible for environmental commitment
tracking. The ADOT does not have a process
manual or consolidated report which
documents the tracking of all environmental
commitments made during the
environmental review process. Based on the
ADOT interviews, ADOT has taken steps to
establish some tracking mechanisms to cover
environmental commitments which are the
responsibility of ADOT EP or the contractors.
This includes official use of the
Environmental, Permits, Issues, and
Commitments (EPIC) Tracking sheet. The
ADOT Districts are inconsistent in how they
describe tracking commitments, and
reporting whether they prepare
documentation demonstrating
implementation of the remaining types of
environmental commitments. These gaps
include commitment tracking that are the
responsibility of other divisions of ADOT,
LPA/CAA, and those covered by a standard
specification. Project file reviews indicated
that environmental commitments were not
clearly stated or if they were identified in
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environmental documentation, ADOT’s
record keeping did not demonstrate how,
when, and who is responsible for
environmental commitment documentation.
The ADOT will need to take corrective
actions to address the lack of documentation,
implementation and tracking of
environmental commitments and mitigation
compliance.
Documentation and Records Management
Observations
Observation #4: Incomplete Project File
Submission Based on a FHWA Request for
Information and Standard Folder Structure
Issues
For this audit, FHWA requested all project
files pertaining to the NEPA approvals and
documented NEPA decision points
completed during the audit review period.
The audit review team received project file
information from ADOT, but this information
was found to be incomplete with attachments
or other supporting information missing. The
FHWA worked with ADOT Information
Technology (IT) Group to ensure that project
file issues were not due to technology
challenges resulting from the transfer of
electronic files between ADOT and FHWA.
While FHWA had fewer issues when
attempting to access the files ADOT provided
for the audit than in past years, the audit
team still found several inconsistences
between ADOT’s procedures for maintaining
project files and the project file
documentation provided to FHWA. Examples
of missing documentation included: public
involvement plan (PIP); public involvement
summary report; signed noise analysis form;
Section 404 and 408 documentation; Section
106 Closeout Memorandum; 327 air quality
EA/EIS checklist; authorization letters/NEPA
certification approval; Statewide
Transportation Improvement Program/
Transportation Improvement Program
verification; and email communication. In
addition, there were instances of missing or
incomplete QC reviews, and environmental
commitments resulting from technical
analysis or consultation that were not
included in the NEPA document. In these
instances, the determinations were not
adequately supported by the project file. The
audit review team could not reconcile
information about project file completeness
and QC provided through interviews with the
content of project files supplied by ADOT. It
may also be the case that there is a shortfall
in ADOT filing practices performed by an
individual developing a project file to ensure
a project file is complete. By this observation
the audit review team is making ADOT aware
that both by (1) implementing sound internal
controls related to project filing and records
retention, and (2) improving QCs, fewer
ADOT files would contain errors or
omissions once the reviews are complete.
Observation #5: Deficiencies in Section 4(f)
Analyses
The ADOT has a number of manuals and
procedures that describe the requirements for
Section 4(f) analyses, consultation, and
documentation. Based on those requirements,
the review team found some of the project
files to be deficient. Observations based on
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project file reviews included: (1) no Section
4(f) form or memorandum; (2) lack of
documented communication with the official
with jurisdiction; (3) no research
documentation to support the
determinations; (4) an empty Section 4(f) file
folder; (5) a Section 4(f) resource that was not
accounted for in the project documentation;
and (6) one instance where the consultation
letter did not determine whether the Section
4(f) archeological resource had value for
preservation in place. The FHWA
recommends that ADOT personnel who have
Section 4(f) training identified as a
requirement for their position take the
training within a year and that ADOT EP
updates the Section 4(f) manual to increase
reviews and oversight of decisions made.
Observation #6: Continuing Issues With Air
Quality Conformity Analysis
While ADOT has made progress regarding
the level of communication and coordination
with FHWA and EPA on project-level air
quality conformity analysis, the audit team
identified areas in need of improvement. Per
MOU Part 3.2.4, FHWA retained
responsibilities for conformity
determinations. This authority includes
whether a conformity determination remains
valid under 40 CFR 93.104(d). The ADOT
does not include FHWA in the
decisionmaking process when it determines
that project level conformity determinations
remain valid for re-evaluations, which
conflicts with FHWA authority under 40 CFR
93.104(d). In addition, no interagency
consultation is conducted by ADOT for those
decisions. Re-evaluations should be shared
with interagency consultation partners as
early as possible so their input can inform
the FHWA determination of whether a
conformity determination remains valid. The
FHWA also recommends that for interagency
consultation, when a consultation period
ends, ADOT summarizes who responded,
who did not, and what follow-up ADOT did
with those agencies that did not provide a
response. The ADOT should continue to
build on the progress made with the air
quality conformity process and maintain
communication amongst all the interagency
consultation partners.
Observation #7: Inconsistent Use and
Absence of the 327 MOU Disclosure
Statement
Part 3.1.3 of the MOU specifies that ADOT
shall include a disclosure statement to the
public, Tribes and agencies as part of agency
outreach and public involvement procedures.
The audit team project file reviews found the
absence of the statement in agency
correspondence and technical reports, and
public involvement materials, as well as the
wrong MOU reference when the statement
was present. The audit team found no
consistent process or procedure for inclusion
of the 327 MOU disclosure statement in the
current ADOT manuals or guidance as
required by MOU Part 3.1.3. The ADOT
should strive to achieve consistency in the
placement of disclosure statements in
documents. The audit team acknowledges
that the new ADOT PIP has updated
requirements and details to prevent instances
in future public involvement materials.
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Non-Compliance Observation #3:
Inconsistencies and Deficiencies in Analysis
of Environmental Impacts on Low-Income
and Minority Populations (Environmental
Justice Populations)
During Audit #3, the audit team identified
deficiencies in ADOT’s procedures and
analyses of environmental impacts on lowincome and minority populations. In
response, ADOT drafted new procedures, a
checklist and process flowcharts which were
provided to FHWA as part of the PAIR
response to this audit. In addition, FHWA
provided a National Highway Institute
Environmental Justice training course for
ADOT in December 2022. The audit team for
this audit identified inconsistencies in
ADOT’s new procedures, EA/EIS Manual, CE
Manual, PAIR response, and interview
responses regarding how ADOT completes
environmental justice analyses. The
procedural guidance is still not fully
compliant with the MOU and the U.S
Department of Transportation environmental
justice responsibilities because of incorrect
definitions of environmental justice
populations. The review team could not
assess compliance for several project files
because they lacked supporting
documentation for the identification,
presence/absence of the populations, and
meaningful public involvement. In addition,
ADOT EP’s coordination with the ADOT
CRO was inconsistent with the ADOT
procedures according to the interviews.
Information presented in the CE Manual and
ADOT’s PAIR response, indicates that the
CRO is to be consulted on all environmental
justice analyses. The ADOT must take
corrective action to ensure that
environmental justice analysis and
assessments comply with E.O. 12898, DOT
Order 5610.2C and FHWA policy and
guidance in advance of or as part of the 327
MOU renewal application. This can be done
by obtaining FHWA review of the updated
environmental procedures prior to ADOT
approval.
Observation #8: Deficiencies in ReEvaluation Analyses and Documentation
The ADOT has an EA/EIS Guidance
manual that contains EA re-evaluation
procedures. The manual states, ‘‘the reevaluation should consider the entire project
analyzed in the original NEPA document. All
environmental sections require re-evaluation
to review whether impacts have changed as
compared with the previous NEPA document
and whether any impact changes result in
new or significant impacts . . .
Documentation should be appropriate to the
project changes, environmental impacts from
the changes, potential for controversy, and
length of time since the last NEPA document
was completed.’’ Observations based on
project file reviews included (1) lack of
supporting documentation in the project files
for all analyses summarized in EA reevaluation errata that support the outcome of
the re-evaluation, and (2) two project files
with purpose and need statements that
changed from the original EA and did not
document whether that change affected the
validity of the re-evaluation conclusion.
Based on the required procedures, the review
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team found some of the project files to be
deficient.
Observation #9: Inappropriate Purpose and
Need Statement
The review team found that a draft EA
purpose and need statement contained a
discussion of the build alternative
throughout. The purpose and need statement
had a figure with the build alternative in it,
travel demand data that included the build
alternative, and the connectivity discussion
referenced the build alternative. The purpose
and need statement serves as the basis for the
alternatives analysis and should not discuss
alternatives. The alternatives analysis is the
section of the document to explain how the
considered range of alternatives meet the
purpose and need. In addition, the purpose
section of the draft EA used population and
employment growth as a justification but
presented no data.
Quality Assurance/Quality Control
Observations
Observation #10: QA/QC Procedures Lack
Assessment of Compliance
The ADOT has procedures in place for QA/
QC which are described in the ADOT QA/QC
Plan and the ADOT Project Development
Procedures. When implemented, ADOT
focuses on the completeness of the project
files, not the accuracy or technical merits of
the decisions documented by those files. The
ADOT does not appear to have an adequate
process to review and confirm compliance of
the decisionmaking according to its own
procedures and it is therefore unclear how
the project-level QC reviews inform the
program. These observations were also found
with Audits #1, #2, and #3, and no updates
were made to the ADOT QA/QC procedures
in response. The ADOT does not appear to
have a process in place for assessing the
effectiveness of its QA/QC procedures to
identify opportunities to improve the
processes and procedures in its program, in
ways that could help ensure improved
compliance with MOU requirements.
Performance Measures
Observations
Observation #11: Incomplete Development
and Implementation of Performance
Measures To Evaluate the Quality of ADOT’s
Program
The audit team reviewed ADOT’s
development and implementation of
performance measures to evaluate their
program as required in the MOU (Part
10.2.1). The ADOT’s QA/QC Plan, PAIR
response, and self-assessment report
identified several performance measures and
reported the data for the review period. The
ADOT’s reporting data primarily dealt with
increasing efficiencies and reducing project
delivery schedules rather than measuring the
quality of relationships with agencies and the
general public, and decisions made during
the NEPA process. The metrics ADOT has
developed are not being used to provide a
meaningful or comprehensive evaluation of
the overall program. This observation was
made in Audits #1, #2, and #3. The FHWA
recommends the creation of new
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performance measures in the 327 renewal
MOU that ADOT would use to evaluate and
improve their program.
Legal Sufficiency
During the audit period, ADOT had no
formal legal sufficiency reviews of assigned
environmental documents. This is based on
the information provided by ADOT and
interviews of the Assistant Attorneys General
(AAG) assigned to ADOT’s NEPA
Assignment Program. Currently, ADOT
retains the services of two AAGs for NEPA
Assignment reviews and related matters. The
assigned AAGs have received formal and
informal training in environmental law
matters and participated in a legal sufficiency
training conducted by FHWA Office of Chief
Counsel in May 2023. The ADOT and the
AGO also have the option to procure outside
counsel in accordance with 23 U.S.C.
327(a)(2)(G), but this was not necessary
during the audit period.
Successful Practice #4
Through the interviews, the audit team
learned ADOT seeks to involve lawyers early
in the environmental review phase, with
AAGs participating in project coordination
team meetings and reviews of early drafts of
environmental documents. The AAGs will
provide legal guidance at any time ADOT
requests it throughout the project
development process. For formal legal
sufficiency reviews, the process includes a
submittal package from ADOT’s NEPA
program manager containing a request for
legal sufficiency review. Various ADOT
manuals set forth legal sufficiency review
periods, which typically involve a 30-day
review period, and the AAGs coordinate with
ADOT to ensure timely completion of legal
sufficiency reviews. For this audit period, the
AAGs both cited an emphasis on
environmental justice compliance. In
addition, the AAGs regularly notify ADOT of
relevant changes in Federal law and guidance
applicable to the NEPA Assignment Program.
Observations
Observation #12: Assertion of AttorneyClient Privilege Limits NEPA Assignment
Program Assessment
Since FHWA began auditing ADOT in
2020, the AGO has regularly cited attorneyclient privilege when answering interview
questions posed by FHWA Office of Chief
Counsel (HCC) staff about the legal
sufficiency process it employs when
reviewing ADOT NEPA documents. The
ADOT’s position is unique as compared to its
peer NEPA Assignment States in the West.
The FHWA’s HCC interviewers have
consistently affirmed that they seek only to
understand the role of the AGO in
implementing ADOT’s NEPA Assignment
Program and do not seek privileged
communications or advice. Nevertheless, the
AGO has maintained that disclosing any
specific information about its role in advising
on legal issues would constitute a waiver of
attorney-client privilege under the State’s
open records act and could present legal risks
to their clients. As a result, FHWA interviews
of the AAG’s have produced a somewhat
informative, but limited and incomplete
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understanding of the AGO’s role in NEPA
Assignment matters in AZ.
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Training
Observation #13: Training Gaps
The audit team reviewed ADOT’s 2023
Training Plan, interview responses, and
ADOT’s PAIR responses pertaining to its
training program. The ADOT’s EP staff
training matrix indicates that many staff have
not taken the required training. In addition,
there is no data regarding training from the
other divisions within ADOT who have 327
MOU responsibilities. The ADOT made no
changes to the ADOT training plan in
response to FHWA’s previous training gap
observations.
Status of Previous General Observations and
Non-Compliance Observations From the
Audit #3 Report
This section describes the actions ADOT
has taken or is taking in response to
observations made during the third audit.
The ADOT was provided the third audit draft
report for review and provided comments to
FHWA on November 17, 2022.
Non-Compliance Observation #1: Incomplete
Reporting to the Federal Infrastructure
Permitting Dashboard
During Audit #3, the audit team identified
deficiencies in the information ADOT is
required to post on the Dashboard. The
ADOT did post some of the additional
projects and missing project information to
the Dashboard but not until the week before
audit week. The ADOT needs to establish a
consistent and ongoing process to maintain
the project information required to be
inputted into the Dashboard.
Observation #1: Deficiencies and Gaps in
ADOT’s Manuals and Procedures
During Audit #3, the audit team identified
deficiencies in ADOT’s manuals and
procedures which may result in incomplete
project documentation or analysis and
increase the risk for non-compliance. The
first was in the ADOT CE Checklist Manual
and the EA/EIS Manual, specifically the
process for re-evaluations for EAs and EISs
was not well-defined. The other was that
neither the ADOT EA/EIS Manual nor the
current 2017 ADOT PIP approved prior to
NEPA assignment contained procedures
detailing the criteria ADOT uses to make the
determination on when to hold public
hearings for EA-level projects and what
criteria will be used to make determinations
on whether to hold a public hearing when
one is requested, as specified in 23 CFR
771.111(h)(2)(iii). The ADOT EA/EIS Manual
was not updated to address this deficiency
and the updated PIP was not approved at the
time of the audit. The deficiencies identified
in Audit #3 were not addressed by ADOT,
and additional related issues were identified
by the audit team in Audit #4.
Observation #2: Improvements to Tribal
Engagement Are Warranted
The audit team observed in Audit #3 the
need for improved engagement with the
Tribes for ADOT to develop procedures that
identify its responsibilities to coordinate and
consult with Tribes in all phases of project
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development, and implementation of the
FHWA/ADOT Tribal Consultation Letter
Agreement executed on August 5, 2022. The
deficiencies identified in Audit #3 were not
completely addressed by ADOT, as the Letter
Agreement was not fully implemented, and
continued issues were identified by the audit
team in Audit #4. The ADOT staff
participated in the Section 106 and Tribal
Consultation Training given by the Advisory
Council on Historic Preservation and FHWA
staff on June 13 and June 14, 2023.
Non-Compliance Observation #2:
Responsibilities Under the 327 MOU
Assigned to Additional Divisions
Independent of ADOT EP
During Audit #3, the team identified ADOT
divisions outside of EP that have
responsibilities under NEPA Assignment.
These divisions have not been identified by
ADOT EP during the past review processes
or addressed in the ADOT EP procedures,
manuals, or plans. The ADOT was directed
to develop and implement procedures to
apply the 327 MOU provisions to all
divisions of ADOT who have responsibilities
under the 327 MOU. The current audit team
did not observe any progress on this
corrective action.
Non-Compliance Observation #3:
Deficiencies in Environmental Commitment
Tracking
During Audit #3, ADOT was unable to
provide FHWA with a process manual or
consolidated report documenting the tracking
of environmental commitments made during
the environmental review process. The
ADOT was unable to identify a meaningful
tracking and monitoring system for
environmental commitments and mitigation
compliance. Since the last audit, ADOT has
developed a spreadsheet for EP
responsibilities and has rolled out the EPIC
Tracking sheet process which covers the
Contractor responsibilities—non-standard
specification commitments only. There is
still no process manual or consolidated
reporting of all environmental commitments
required for each project.
Non-Compliance Observation #4: Incomplete
Project File Submission and Standard Folder
Structure Issues
As was observed in previous audits, during
Audit #3, the audit team found several
inconsistencies between ADOT’s procedures
for maintaining project files and the project
file documentation provided to FHWA. Since
that audit, ADOT’s IT Group worked with the
AZ Division to resolve the project file issue
on the technological side. The ADOT IT
Group determined that the electronic transfer
process is working and is therefore not the
cause of the incomplete project file
submissions.
Observation #3: Minor Edits Needed To
Resolve Deficiency in Section 4(f) Evaluation
of Archaeological Resources
During Audit #1 and #2, FHWA identified
inconsistencies with ADOT’s Section 4(f)
evaluation and documentation of
archaeological sites. In response to the Audit
#2 finding, ADOT updated their Section 106
Federal-aid Programmatic Agreement Manual
with new preservation in place language and
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in Audit #3 FHWA recommended edits to the
new language. The ADOT has made the
recommended edits.
Observation #5: Inconsistent Use and
Absence of the 327 MOU Disclosure
Statement
During Audit #3, the audit team project file
reviews found inconsistent use of the
disclosures statement on agency
correspondence and technical reports, as
well as absence of the statement in public
involvement materials. The audit team found
no consistent process or procedure for
inclusion of the 327 MOU disclosure
statement in the ADOT manuals and
guidance as required by MOU Part 3.1.3. The
ADOT has drafted a new PIP that contains
disclosure statement guidance, but no
updates were found in the ADOT EP
manuals.
Non-Compliance Observation #5:
Deficiencies in Analysis of Environmental
Impacts on Low-Income and Minority
Populations (Environmental Justice)
The Audit #3 team identified
inconsistencies in ADOT’s manuals, PAIR
response, and interview responses regarding
how ADOT completes environmental justice
analyses. The methodology described by
ADOT is not in compliance with FHWA
policy and guidance and the CE Manual
infers a default position that there will be no
disproportionately high and adverse impacts
on low-income or minority populations with
CE-level projects. The audit team observed
similar inconsistencies during the project file
reviews for this audit and identified the same
environmental justice analysis procedural
deficiencies in the project documentation, as
well as project files with little or no analysis
documentation. Since Audit #3, ADOT
participated in a FHWA-led pilot
environmental justice training and drafted
some new environmental justice guidance
materials.
Observation #6: QA/QC Procedures Lack
Assessment of Compliance and Observation
#8: QA/QC Procedures Do Not Inform the
Performance Measures
The audit team identified continuing
issues with ADOT’s QA/QC procedures,
including the fact that ADOT does not check
for compliance of the decisionmaking and it
is therefore unclear how the project-level QC
reviews inform the program. These
observations were also found with Audits #1,
#2, and #3. In addition, it is unclear how the
QA/QC procedures, such as the use of QC
checklists, are informing ADOT about the
technical adequacy of the environmental
analyses conducted for projects and thereby
inform the performance measures. No
updates to the ADOT QA/QC procedures
were made.
Observation #8: Incomplete Development
and Implementation of Performance
Measures
During Audit #2 and #3, the audit team
reviewed ADOT’s performance measures and
reporting data submitted for the review
period and concluded that ADOT had made
progress toward developing and
implementing its performance measures. For
Audit #4, FHWA continues to identify this
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program objective as an area of concern,
described in the observations above, and will
continue to evaluate this area in subsequent
audits.
Observation #9: Training Gaps
The audit team reviewed ADOT’s 2021
training plan and ADOT’s PAIR responses
pertaining to its training program. The
ADOT’s EP staff training matrix indicates
that while ADOT identifies the availability of
staff training, many staff have not taken
advantage of the opportunity for training,
including other ADOT divisions subject to
the 327 MOU provisions. The ADOT’s
training plan identifies that the training
interval for some topics, such as the NEPA
Assignment Program, is only once per staff
member regardless of the period of time since
the previous round of training. Staff may
benefit from regular ‘‘refresher’’ type training,
especially as regulatory requirements and
policy may change over time. No changes in
response to this observation were made to the
2023 training plan.
Finalizing This Report
The FHWA provided a draft of the audit
report to ADOT for a 14-day review and
comment period pursuant to Part 11.4.1 of
the MOU, as well as notification of the noncompliance observations. The ADOT
provided comments which the audit team
considered in finalizing this draft audit
report. The audit team acknowledges that
ADOT has begun to address some of the
observations identified in this report and
recognizes ADOT’s efforts toward improving
their program. This includes an action plan
defined by ADOT and the AZ Division Office
to address non-compliance observations
identified in the AZ Program reviews to date.
The FHWA is publishing this notice in the
Federal Register for a 30-day comment
period in accordance with 23 U.S.C. 327(g).
No later than 60 days after the close of the
comment period, FHWA will address all
comments submitted to finalize this draft
audit report pursuant to 23 U.S.C.
327(g)(2)(B). Subsequently, FHWA will
publish the final audit report in the Federal
Register.
[FR Doc. 2024–24981 Filed 10–25–24; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[FTA Docket No. FTA 2024–0014]
Agency Information Collection Activity
Under OMB Review: Survey of FTA
Stakeholders
Federal Transit Administration,
Department of Transportation (DOT).
ACTION: Notice of request for comments.
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AGENCY:
In compliance with the
Paperwork Reduction Act of 1995, this
notice announces that the Information
Collection Requirements (ICRs)
abstracted below have been forwarded
to the Office of Management and Budget
SUMMARY:
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(OMB) for review and comment. The
ICR describe the nature of the
information collection and their
expected burdens.
DATES: Comments must be submitted on
or before November 27, 2024.
ADDRESSES: Written comments and
recommendations for the proposed
information collection should be sent
within 30 days of publication of this
notice to https://www.reginfo.gov/
public/do/PRAMain. Find this
particular information collection by
selecting ‘‘Currently under Review—
Open for Public Comments’’ or by using
the search function.
Comments Are Invited On: Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the Department,
including whether the information will
have practical utility; the accuracy of
the Department’s estimate of the burden
of the proposed information collection;
ways to enhance the quality, utility, and
clarity of the information to be
collected; and ways to minimize the
burden of the collection of information
on respondents, including the use of
automated collection techniques or
other forms of information technology.
A comment to OMB is best assured of
having its full effect if OMB receives it
within 30 days of publication of this
notice in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Tia
Swain, Office of Administration,
Management Planning Division, 1200
New Jersey Avenue SE, Mail Stop TAD–
10, Washington, DC 20590 (202) 366–
0354 or [email protected].
SUPPLEMENTARY INFORMATION: The
Paperwork Reduction Act of 1995
(PRA), Public Law 104–13, Section 2,
109 Stat. 163 (1995) (codified as revised
at 44 U.S.C. 3501–3520), and its
implementing regulations, 5 CFR part
1320, require Federal agencies to issue
two notices seeking public comment on
information collection activities before
OMB may approve paperwork packages.
44 U.S.C. 3506, 3507; 5 CFR 1320.5,
1320.8(d)(1), 1320.12. On August 12,
2024, FTA published a 60-day notice
(89 FR 65707) in the Federal Register
soliciting comments on the ICR that the
agency was seeking OMB approval. FTA
received no comments after issuing this
60-day notice. Accordingly, DOT
announces that these information
collection activities have been reevaluated and certified under 5 CFR
1320.5(a) and forwarded to OMB for
review and approval pursuant to 5 CFR
1320.12(c).
Before OMB decides whether to
approve these proposed collections of
information, it must provide 30 days for
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public comment. 44 U.S.C. 3507(b); 5
CFR 1320.12(d). Federal law requires
OMB to approve or disapprove
paperwork packages between 30 and 60
days after the 30-day notice is
published. 44 U.S.C. 3507 (b)–(c); 5 CFR
1320.12(d); see also 60 FR 44978, 44983.
OMB believes that the 30-day notice
informs the regulated community to file
relevant comments and affords the
agency adequate time to digest public
comments before it renders a decision.
60 FR 44983. Therefore, respondents
should submit their respective
comments to OMB within 30 days of
publication to best ensure having their
full effect. 5 CFR 1320.12(c); see also 60
FR 44983.
The summaries below describe the
nature of the information collection
requirements (ICRs) and the expected
burden. The requirements are being
submitted for clearance by OMB as
required by the PRA.
Title: Survey of FTA Stakeholders.
OMB Control Number: 2132–0564.
Background: The Federal Transit
Administration (FTA) is requesting an
extension without change to the
customer service survey of its
stakeholders. FTA is required to identify
its stakeholders and address how the
agency will provide services in a
manner that seeks to streamline service
delivery and improve the experience of
its customers. FTA is seeking a threeyear approval of an existing information
collection that will allow FTA to collect
data from transit agencies, states, tribal
governments, and metropolitan
planning organizations. FTA will utilize
the survey to assess how its services are
perceived by its customers, learn about
opportunities for improvement and
establish goals to measure results. The
data captured from the survey will
provide this information and enable
FTA to make improvements where
necessary. The survey will be limited to
data collections that solicit voluntary
opinions and will not involve
information that is required by
regulations. Respondents are split into
two groups. Group A includes Chief
Executive Officers (CEOs) and other
executive leaders of transit agencies,
state DOTs, and other FTA stakeholders.
Group B includes unit supervisors and
professional staff such as engineers,
urban planners and budget analysts
from the same organizations. FTA will
utilize the survey to assess how its
services are perceived by its customers,
learn about opportunities for
improvement and establish goals to
measure results. The information
obtained from the survey will provide
insights into customer or stakeholder
perceptions, experiences and
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expectations; provide an early warning
of issues with service; or focus attention
on areas where communication, training
or changes in operations might improve
delivery of products or services.
Respondents: State Departments of
Transportation (DOTs), Metropolitan
Planning Organizations (MPOs), Transit
Authorities, States, and Local
Government Units, Indian Tribes.
Estimated Total Number of
Respondents: 8,177.
Estimated Total Number of
Responses: 8,177.
Estimated Total Annual Burden:
1,022.
Frequency: Biennial.
Kusum Dhyani,
Director, Office of Management Planning.
[FR Doc. 2024–25003 Filed 10–25–24; 8:45 am]
BILLING CODE 4910–57–P
DEPARTMENT OF TRANSPORTATION
Maritime Administration
[Docket No. MARAD–2024–0141]
Request for Comments on the Renewal
of a Previously Approved Collection:
Approval of Underwriters for Marine
Hull Insurance
Maritime Administration, DOT.
Notice.
AGENCY:
ACTION:
The Maritime Administration
(MARAD) invites public comments on
our intention to request the Office of
Management and Budget (OMB)
approval to renew an information
collection in accordance with the
Paperwork Reduction Act of 1995. The
proposed collection OMB 2133–0517
(Approval of Underwriters for Marine
Hull Insurance) is used to provide
approval of foreign underwriters on the
basis of an assessment of their financial
condition, the regulatory regime under
which they operate, and a statement
attesting to a lack of discrimination in
their country against U.S. hull insurers.
The regulations also require that
American underwriters be given an
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opportunity to compete for every
placement, thereby necessitating in
some cases certification that such
opportunity was offered. We are
required to publish this notice in the
Federal Register to obtain comments
from the public and affected agencies.
ADDRESSES: Written comments and
recommendations for the proposed
information collections should be sent
within 30 days of publication of this
notice to www.reginfo.gov/public/do/
PRAMain. Find this particular
information collection by selecting
‘‘Currently under 30-day Review—Open
for Public Comments’’ or by using the
search function.
FOR FURTHER INFORMATION CONTACT:
Cameryn Miller, (202) 366–0907, Office
of Marine Insurance, Maritime
Administration, U.S. Department of
Transportation, 1200 New Jersey Ave
SE, Washington, DC 20590, Email:
[email protected].
SUPPLEMENTARY INFORMATION:
Title: Approval of Underwriters for
Marine Hull Insurance.
OMB Control Number: 2133–0517.
Type of Request: Extension without
change of a currently approved
information collection.
Abstract: This collection of
information involves the approval of
marine hull underwriters to insure
MARAD program vessels. Applicants
will be required to submit financial data
upon which MARAD approval would be
based. This information is needed in
order that MARAD officials can evaluate
the underwriters and determine their
suitability for providing marine hull
insurance on MARAD vessels.
Respondents: Marine Insurance
Underwriters and Brokers.
Affected Public: Businesses or other
for profit.
Estimated Number of Respondents:
66.
Estimated Number of Responses: 66.
Estimated Hours per Response: .5–1
hour.
Annual Estimated Total Annual
Burden Hours: 49.
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85585
Frequency of Response: Once
Annually.
A 60-day Federal Register Notice
soliciting comments on this information
collection was published on August 8,
2024 (89 FR 65011).
(Authority: The Paperwork Reduction Act of
1995; 44 U.S.C. Chapter 35, as amended; and
49 CFR 1.49.)
By Order of the Maritime Administrator.
T. Mitchell Hudson, Jr.,
Secretary, Maritime Administration.
[FR Doc. 2024–24974 Filed 10–25–24; 8:45 am]
BILLING CODE 4910–81–P
DEPARTMENT OF THE TREASURY
United States Mint
2024 Pricing of Numismatic Gold,
Commemorative Gold, Platinum, and
Palladium Products Grid
United States Mint, Department
of the Treasury.
ACTION: Notice.
AGENCY:
The United States Mint announces
2024 revisions within the Numismatic
Gold, Commemorative Gold, Platinum,
and Palladium Products Grid to include
pricing for the Flowing Hair 24K gold
proof coin.
A draft of the grid with price range for
the Flowing Hair 24K One-Ounce Gold
Proof Coin appears in the table below.
The complete 2024 Pricing of
Numismatic Gold, Commemorative
Gold, Platinum, and Palladium Products
Grid will be available at https://
www.usmint.gov/content/dam/usmint/
shop/Pricing-Grid.pdf.
Pricing can vary weekly dependent
upon the London Bullion Market
Association gold, platinum, and
palladium prices weekly average. The
pricing for all United States Mint
numismatic gold, platinum, and
palladium products is evaluated every
Wednesday and modified as necessary.
BILLING CODE 4810–37–P
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FOR FURTHER INFORMATION CONTACT:
Directorate; United States Mint; 801 9th
Derrick Griffin; Sales and Marketing
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Street NW, Washington, DC 20220; or
call 202–354–7579.
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Authority: 31 U.S.C. 5111, 5112, &
9701.
Eric Anderson,
Executive Secretary, United States Mint.
[FR Doc. 2024–24989 Filed 10–25–24; 8:45 am]
BILLING CODE 4810–37–C
DEPARTMENT OF VETERANS
AFFAIRS
[OMB Control No. 2900–0903]
Agency Information Collection
Activity: Certification Regarding
Debarment, Suspension, Ineligibility
and Voluntary Exclusion, and Specially
Adaptive Housing Assistive
Technology Grants Criteria and
Responses
Veterans Benefits
Administration, Department of Veterans
Affairs.
ACTION: Notice.
AGENCY:
Veterans Benefits
Administration, Department of Veterans
Affairs (VA), is announcing an
opportunity for public comment on the
proposed collection of certain
information by the agency. Under the
Paperwork Reduction Act (PRA) of
1995, Federal agencies are required to
publish notice in the Federal Register
concerning each proposed collection of
information, including each proposed
extension of a currently approved
collection, and allow 60 days for public
comment in response to the notice.
DATES: Written comments and
recommendations on the proposed
collection of information should be
received on or before December 27,
2024.
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SUMMARY:
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Comments must be
submitted through www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Program-Specific information: Nancy
Kessinger, 202–632–8924,
[email protected].
VA PRA information: Maribel Aponte,
202–461–8900, vacopaperworkreduact@
va.gov.
SUPPLEMENTARY INFORMATION: Under the
PRA of 1995, Federal agencies must
obtain approval from the Office of
Management and Budget (OMB) for each
collection of information they conduct
or sponsor. This request for comment is
being made pursuant to section
3506(c)(2)(A) of the PRA.
With respect to the following
collection of information, VBA invites
comments on: (1) whether the proposed
collection of information is necessary
for the proper performance of VBA’s
functions, including whether the
information will have practical utility;
(2) the accuracy of VBA’s estimate of the
burden of the proposed collection of
information; (3) ways to enhance the
quality, utility, and clarity of the
information to be collected; and (4)
ways to minimize the burden of the
collection of information on
respondents, including through the use
of automated collection techniques or
the use of other forms of information
technology.
Title: Agency Information Collection
Activity under OMB Review: VA Form
26–0967, Certification Regarding
Debarment, Suspension, Ineligibility
and Voluntary Exclusion, and VA Form
26–0967a, Specially Adaptive Housing
Assistive Technology Grants Criteria
and Responses.
OMB Control Number: 2900–0903.
https://www.reginfo.gov/public/do/
ADDRESSES:
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PRASearch (Once at this link, you can
enter the OMB Control Number to find
the historical versions of this
Information Collection).
Type of Review: Extension without
change of a currently approved
collection.
Abstract: The proposed regulations
would require applicants to submit VA
Form 26–0967, Certification Regarding
Debarment, Suspension, Ineligibility
and Voluntary Exclusion. These
regulations would also require
applicants to provide statements
addressing six scoring criteria for grant
awards as part of their application. The
information will be used by Loan
Guaranty personnel in deciding whether
an applicant meets the requirements
and satisfies the scoring criteria for
award of an SAH Assistive Technology
grant under 38 U.S.C. 2108. An agency
may not conduct or sponsor, and a
person is not required to respond to a
collection of information unless it
displays a currently valid OMB control
number.
Affected Public: Individuals and
households.
Estimated Annual Burden: 40 hours.
Estimated Average Burden per
Respondent: 120 minutes.
Frequency of Response: One time.
Estimated Number of Respondents:
20.
Authority: 44 U.S.C. 3501 et seq.
Maribel Aponte,
VA PRA Clearance Officer, Office of
Enterprise and Integration/Data Governance
Analytics, Department of Veterans Affairs.
[FR Doc. 2024–24941 Filed 10–25–24; 8:45 am]
BILLING CODE 8320–01–P
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FEDERAL REGISTER
Vol. 89
Monday,
No. 208
October 28, 2024
Part II
Department of Transportation
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Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107, 171, 172, et al.
Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel
Transportation; Proposed Rule
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 107, 171, 172, 173, 174,
176, 177, 178, 179, and 180
[Docket No. PHMSA–2018–0080 (HM–265)]
RIN 2137–AF41
Hazardous Materials: Advancing
Safety of Highway, Rail, and Vessel
Transportation
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), Department of
Transportation.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
PHMSA proposes to revise
the Hazardous Materials Regulations to
adopt several modal-specific
amendments that would enhance the
safe transportation of hazardous
materials in commerce. PHMSA, in
consultation with the Federal Motor
Carrier Safety Administration, the
Federal Railroad Administration, and
the United States Coast Guard, proposes
amendments identified during
Departmental review and from industry
petitions for rulemaking.
DATES: Comments must be received by
January 27, 2025. To the extent possible,
PHMSA will consider late-filed
comments as a final rule is developed.
ADDRESSES: You may submit comments
identified by the Docket Number
PHMSA–2018–0080 (HM–265) by any of
the following methods:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 1–202–493–2251.
• Mail: Docket Management System;
U.S. Department of Transportation,
West Building, Ground Floor, Room
W12–140, Routing Symbol M–30, 1200
New Jersey Avenue SE, Washington, DC
20590.
• Hand Delivery: Docket Management
System; Room W12–140 on the ground
floor of the West Building, 1200 New
Jersey Avenue SE, Washington, DC
20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except federal
holidays.
Instructions: All submissions must
include the agency name and Docket
Number (PHMSA–2018–0080) or
Regulation Identifier Number (RIN)
(2137–AF41) for this rulemaking at the
beginning of the comment. To avoid
duplication, please use only one of
these four methods. All comments
received will be posted without change
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to the Federal Docket Management
System (FDMS) and will include any
personal information you provide.
Docket: For access to the dockets to
read background documents or
comments received, go to http://
www.regulations.gov or DOT’s Docket
Operations Office (see ADDRESSES).
Confidential Business Information:
Confidential Business Information (CBI)
is commercial or financial information
that is both customarily and actually
treated as private by its owner. Under
the Freedom of Information Act (FOIA)
(5 U.S.C. 552), CBI is exempt from
public disclosure. If your comments to
this NPRM contain commercial or
financial information that is customarily
treated as private, that you actually treat
as private, and that is relevant or
responsive to this NPRM, it is important
that you clearly designate the submitted
comments as CBI. Please mark each
page of your submission containing CBI
as ‘‘PROPIN.’’ Submissions containing
CBI should be sent to Eamonn Patrick,
Office of Hazardous Materials Safety,
Standards and Rulemaking Division,
Pipeline and Hazardous Materials Safety
Administration, U.S. Department of
Transportation, 1200 New Jersey Ave.
SE, Washington, DC 20590–0001. Any
commentary that PHMSA receives
which is not specifically designated as
CBI will be placed in the public docket
for this rulemaking.
Privacy Act: In accordance with 5
U.S.C. 553(c), DOT solicits comments
from the public to better inform its
rulemaking process. DOT posts these
comments, without edit, including any
personal information the commenter
provides, to http://www.regulations.gov,
as described in the system of records
notice (DOT/ALL–14 FDMS), which can
be reviewed at http://www.dot.gov/
privacy.
FOR FURTHER INFORMATION CONTACT:
Eamonn Patrick, Standards and
Rulemaking Division, 202–366–8553,
Pipeline and Hazardous Materials Safety
Administration, U.S. Department of
Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590–
0001.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. Railroad Safety Advisory Committee
B. AAR Authority To Approve the Design
of Tank Cars and Quality Assurance
Programs
1. Introduction
2. Tank Car Design Approval
3. Tank Car Facility Quality Assurance
Program
4. Tank Car Facility Definition
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5. Tank Car Facility and Design Certifying
Engineer Registration
6. AAR Specifications for Tank Cars
Incorporation by Reference
7. Tank Car Linings and Coatings
8. Editorial Revision to §§ 180.501 and
180.513
C. Cargo Tank Regulatory Amendments
D. Cargo Tank Marking for Petroleum
Distillate Fuels
E. P–1712
F. P–1724
G. P–1735
III. Overview
A. Rail
B. Highway
C. Vessel
D. Multi-Modal
IV. Section-by-Section Review
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority
B. Executive Order 12866, 14094, and DOT
Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act and Executive
Order 13272
F. Paperwork Reduction Act
G. Unfunded Mandates Reform Act of 1995
H. Draft Environmental Assessment
I. Privacy Act
J. Executive Order 13609 and International
Trade Analysis
K. National Technology Transfer and
Advancement Act
L. Executive Order 13211
M. Cybersecurity and Executive Order
14082
N. Severability
I. Executive Summary
The Pipeline and Hazardous Materials
Safety Administration (PHMSA)
proposes to amend the requirements for
the transportation of hazardous
materials set out in the Hazardous
Materials Regulations (HMR) (49 Code
of Federal Regulations (CFR) parts 171
to 180) and 49 CFR part 107. This
rulemaking aims to amend provisions
specific to the highway, rail, and vessel
transportation of hazardous materials.
In this notice of proposed rulemaking
(NPRM), PHMSA proposes to reform
modal specific requirements in the
HMR. PHMSA expects that the adoption
of these proposals will maintain or
enhance the safe transportation of
hazardous materials while increasing
the clarity of the HMR, and therefore
decreasing compliance burdens. The
proposed amendments also reflect
changing conditions and trends that
affect the safe transportation of
hazardous materials while still
maintaining or enhancing safety. The
following are some of the more
noteworthy subjects covered by
proposed revisions:
• Rail tank car use requirements as
recommended by the Rail Safety
Advisory Committee (RSAC);
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• Rail tank car and service equipment
design approval requirements;
• Highway cargo tank specifications
and requalification requirements; and
• Marking requirements for cargo
tanks that contain multiple petroleum
distillate fuels.
In this rulemaking, PHMSA solicits
comment from the public and regulated
community on these proposed
amendments, specifically pertaining to
the need for, benefits, and costs of the
proposed amendments; impact on
safety; public interest; and any other
relevant concerns. In its preliminary
regulatory impact analysis (PRIA),
PHMSA concluded that the aggregate
benefits of the proposed amendments
justify their aggregate costs. PHMSA
estimates annualized net benefits at a
two percent discount rate of
approximately $97.3 million per year.
Details on the estimated cost savings
and benefits of this rulemakings can be
found in the PRIA, which is available in
the public docket for this rulemaking.
II. Background
The Federal Hazardous Materials
Transportation Act (HMTA; 49 U.S.C.
5101 et seq.) at 49 U.S.C. 5103 gives the
Secretary general authority to issue
regulations for the safe transportation of
hazardous materials in commerce. The
Secretary delegates the above statutory
authorities to PHMSA at 49 CFR 1.97.
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A. Railroad Safety Advisory Committee
RSAC is a Federal Advisory
Committee established by the U.S.
Secretary of Transportation in
accordance with the Federal Advisory
Committee Act (5 U.S.C. App. 2) to
provide information, advice, and
recommendations to the Federal
Railroad Administration (FRA)
Administrator on matters relating to
railroad safety. In 1996, FRA established
RSAC to develop new regulatory
standards, through a collaborative
process, with all segments of the rail
community working together to fashion
mutually satisfactory solutions on safety
regulatory issues. PHMSA participates
in RSAC when issues related to
hazardous material transportation are
discussed, and participated in the
development of the proposed
recommendations in this rulemaking.
On November 5, 2015, the RSAC
accepted Task No. 15–04: ‘‘Hazardous
Materials Issues,’’ which assigned the
Hazardous Materials Issues Working
Group (HMIWG) to consider several
revisions to the HMR to enhance the
safety of hazardous materials
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transported by rail.1 Consensusapproved regulatory change proposals
were developed by the HMIWG and
forwarded to the RSAC for
consideration. On May 25, 2017, the
RSAC voted and approved HMIWG’s
consensus recommendations of changes
to the HMR (hereafter referred to as the
consensus recommendations) and
submitted the suggested revisions to
FRA. FRA subsequently recommended
that PHMSA initiate a rulemaking to
propose and adopt the consensus
recommendations. In this rulemaking,
PHMSA proposes to adopt the RSAC
consensus recommendations with some
modifications. Note that not all of the
consensus recommendations are
proposed as received. Rather, this
rulemaking includes some revisions to
the recommendations to better fit the
construction of the HMR; to provide
more appropriate amendatory
instruction to the Office of the Federal
Register; and to address some technical
issues discovered during detailed
review of the proposed regulatory text
that was provided in the
recommendation.
The consensus recommendations
propose to make amendments to update,
clarify, or remove existing requirements
that are outdated or unnecessary. They
propose the following changes, among
others: (1) require tank car facilities to
apply for and receive a DOT registration
letter from PHMSA assigning a
registration number prior to qualifying
tank cars for service; (2) incorporate by
reference updated versions of certain
industry standards, including the
Association of American Railroads
(AAR) Manual of Standards and
Recommended Practices Section C–III
Specifications for Tank Cars (M–1002);
and (3) revise the requirements for OneTime Movement Approvals (OTMAs).
These changes are discussed in greater
detail later in ‘‘Section IV. Section-bySection Review.’’
On August 27 and 28, 2013, FRA held
a public meeting 2 to invite stakeholders
and the public to participate in a
comprehensive review of part 174 of the
HMR, to improve the safety of railroad
transportation of hazardous materials.
Specifically, FRA sought comment on
identifying provisions of part 174—
Carriage by Rail—that are outdated,
unclear, no longer necessary, present an
undue economic burden on the
regulated community, are inconsistent
1 More information about the RSAC, including
HMIWG meeting minutes and other supporting
documents can be found at: https://rsac.fra.
dot.gov/.
2 Comments from various associations and
members of the public can be found at: https://
www.regulations.gov/docket?D=FRA-2013-0067.
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with other North American standards
and regulations (such as those issued by
the AAR and Transport Canada), do not
sufficiently address modern safety
concerns, or do not sufficiently address
technological advancements and
procedural changes in the railroad
operating environment. FRA included
specific requests for comment on the
public meeting agenda for a review of
definitions and abbreviations (§ 171.8);
notice to train crews (§ 174.24);
nonconforming or leaking packages
(§ 174.50); packagings, cargo tanks, and
multi-unit tank car tanks in Tank-onFlatcar (TOFC) and Container-on-Flatcar
(COFC) service (§§ 174.61 and 174.63),
tank car unloading (§ 174.67); switching
placarded railcars, transport vehicles,
freight containers and bulk packagings
(§ 174.83); position of railcars (§ 174.85);
as well as an open discussion on part
174. In its consensus recommendations,
the RSAC addressed many of the issues
identified and discussed during this
public meeting. See ‘‘Section IV.
Section-by-Section Review’’ for
discussion of specific proposed changes
because of the public meeting comments
and RSAC deliberations.
B. AAR Authority To Approve the
Design of Tank Cars and Quality
Assurance Programs
1. Introduction
The design, construction,
maintenance, and qualification of tank
cars used to transport hazardous
materials are complex regulatory topics.
Tank cars are the largest type of
hazardous materials packaging in use in
surface transportation, and the
consequence of failure during
transportation can be—and has been—
catastrophic. The HMR currently
delegate tank car and service equipment
design approval and tank car facility
Quality Assurance Program (QAP)
approval to the AAR Tank Car
Committee (TCC). The AAR TCC is a
body of representatives drawn from the
railroads, tank car shippers, and the
tank car manufacturing, maintenance,
and repair industry. The AAR TCC
approves tank car designs and manages
QAP approval, as well as develops its
own standards for the design and
operation of tank cars. PHMSA and FRA
provide regulatory oversight to the AAR
TCC approval process to ensure the
committee is operating within the
HMR’s purview. The process by which
the AAR TCC approves tank car and
service equipment designs, materials,
and construction, and conversion or
alteration, is not specified in § 179.3;
however, typically the committee votes
on the proposed designs, materials, and
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construction, and conversion or
alteration based on AAR TCC staff
review of design drawings and/or
service trial results. The approval of
QAPs is handled similarly via a vote of
the AAR TCC after the facility has been
audited by AAR Bureau of Explosives
auditors. Audit scheduling, procedure,
and recommendation for approval or
denial is conducted wholly at the
discretion of the AAR.
The HMR require each tank car
facility to maintain a QAP that meets
the requirements of § 179.7, with the
intent that a properly implemented QAP
will:
• Ensure the qualified tank car
conforms to the requirements of the
applicable specification and regulations;
• Identify any defects in the tank car
manufacturing, repair, inspection,
testing, and qualification or
maintenance program; and
• Prevent any non-conformity from
recurring.
Specifically, tank car facility QAPs
must—at a minimum—address the
elements in § 179.7(b)–(e), including
verification of construction materials,
monitoring and control of processes,
and qualification of personnel.
PHMSA and FRA initiated a review of
the current regulations in part 179—
Specifications for Tank Cars—that
require both tank car design and tank
car facility QAPs to be approved by the
AAR TCC. Additionally, PHMSA and
FRA recognize that the scope of the
definition of tank car facility has created
confusion among tank car shippers and
in the tank car manufacturing and
maintenance industry. In this
rulemaking, PHMSA proposes to revise
the definition of tank car facility to
reduce confusion and uncertainty in the
regulated community. In conjunction
with the other rail-specific changes
proposed in this rule, this change will
improve safety of rail transportation
through increased awareness of who
qualifies as a tank car facility and who
specifically must comply with the HMR
requirements for that facility (see
‘‘Section II.B.4 Tank Car Facility
Definition’’ for further discussion on
this issue).
PHMSA and FRA have determined
that the current system requiring AAR
approval for tank car facility QAPs and
tank car designs creates a regulatory
bottleneck without commensurate safety
benefits for the regulated industry. As
such, PHMSA proposes revisions to the
current system to relieve confusion and
increase the efficiency of the approval
process (see ‘‘Section II.B.2 Tank Car
Design Approval’’ and ‘‘Section II.B.3
Tank Car Facility Quality Assurance
Program’’ for further discussion of these
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issues). The proposed revisions are
intended to increase the efficiency of
the tank car design and QAP approval
process, without compromising safety,
by increasing governmental oversight of
regulated entities through a registration
program. The following is a brief
summary of proposed changes to the
approval processes and the definition of
tank car facility which PHMSA
discusses in greater detail later in this
section:
A. Remove the requirement for tank
car and service equipment designs to be
approved solely by the AAR TCC and
replace it with a requirement for tank
car designs to be approved by a tank car
Design Certifying Engineer (DCE)
registered with PHMSA. This proposed
requirement closely mirrors the process
for highway cargo tank design review
and approval.
B. Remove the requirement for tank
car facilities to have a QAP approved by
the AAR and replace it with a
requirement for tank car facilities to
register with PHMSA, maintain a QAP,
and certify that it meets the § 179.7
quality assurance program
requirements.
C. Revise the definition of tank car
facility to clarify that the definition
applies to facilities that qualify a tank
car for service, and to clarify what
activities require qualification of a tank
car.
D. Add a registration program for tank
car DCEs and tank car facilities.
E. Revise the incorporation by
reference (IBR) of specific chapters and
appendices of the 2014 edition of the
AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (i.e., AAR
Specifications for Tank Cars) to
correspond to the above proposals (i.e.,
removing the requirement to comply
with the specific sections of M–1002
that require AAR approval).
F. Revise the requirements for coating
and lining inspection of tank cars to
clarify what is expected.
G. Revise § 180.513—Repairs,
alterations, conversions, and
modifications—to clarify that tank car
facilities must include the tank car
owner’s qualification and maintenance
program into their QAP to correct an
incorrect reference to including the tank
car owner’s QAP. Generally, a tank car
owner is not subject to QAP
requirements.
2. Tank Car Design Approval
Federal hazardous material
transportation regulations have
delegated the authority to approve tank
car and service equipment designs to
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the AAR—and various predecessor
organizations—since at least 1927. As
provided in § 179.3, the AAR TCC has
authority to approve tank car designs,
materials and construction, conversion,
or alteration of tank car tanks under the
specifications of part 179. By way of
example, § 179.100–12(a) requires that
manway nozzles must be of approved
design of forged or rolled steel for steel
tanks. In this context, pursuant to the
definition in § 179.2, ‘‘approved’’ refers
to approval by the AAR TCC.
Although PHMSA has delegated the
authority to approve tank car designs,
the current state of the AAR’s
autonomous approval process presents
inefficiencies when insufficient
resources are available to process
approval applications, resulting in
unnecessary delays and increased costs
for the tank car design and
manufacturing community. As such,
PHMSA and FRA propose to remove the
requirement that tank car and service
equipment designs receive approval
solely through the AAR TCC before they
are used in hazardous materials
(hazmat) service. PHMSA and FRA
propose to replace AAR TCC design
approval with alternative approval by a
tank car DCE, similar to the design
approval structure for highway cargo
tanks. The proposed tank car DCE
requirement will include registration
with PHMSA, and registrations will be
subject to termination for cause, with
the intent to create a more transparent,
accountable tank car design approval
system without any impact on the safety
of such approved tank cars. ‘‘Design
certifying engineer’’ is a defined term in
the HMR in § 171.8, and currently only
applies to engineers who can determine
that a cargo tank design meets
applicable DOT specification standards.
PHMSA and FRA propose to revise the
definition of DCE to include persons
able to determine that a tank car meets
applicable DOT specification standards.
PHMSA and FRA propose that a tank
car DCE must:
• Have an engineering degree and at
least one year of work experience in
tank car structural or mechanical
design; or
• Be registered currently as a
professional engineer by an appropriate
authority of a state of the United States
or a province of Canada.
As proposed, a tank car DCE may not
use their experience in cargo tank
structural or mechanical design to meet
the experience requirement for tank car
design, and vice versa for a cargo tank
DCE. Based on our knowledge of the
cargo tank and tank car industries,
PHMSA believes it is unlikely that a
company would attempt to register a
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single engineer as both a tank car and
cargo tank DCE. In the event this does
occur, PHMSA would allow a single
engineer to be registered as both a tank
car and cargo tank DCE; however, they
will need to acquire separate
registrations: a cargo tank DCE
registration as specified in subpart F of
part 107, and a tank car DCE registration
as specified in the proposed new
subpart J of part 107. PHMSA has
determined that maintaining separate
registrations in the event that a single
person holds both will simplify
recordkeeping and enforcement by
preventing unintended administrative
hang-ups if one registration is allowed
to lapse or termination proceedings are
initiated. PHMSA requests comments on
this proposed registration process.
Currently, the tank car design
approval process is managed by the
AAR TCC (see § 179.3). PHMSA and
FRA attend AAR TCC meetings and
participate in AAR TCC working groups
on specific issues; however, the
agencies do not manage the day-to-day
operations of the AAR TCC. PHMSA
and FRA have no voting power in the
committee and little involvement in the
day-to-day process by which the AAR
TCC reviews and approves tank car
designs. PHMSA and FRA retain full
authority to set tank car safety standards
through the adoption of tank car design
specification requirements in part 179,
and tank car use requirements in part
173. To provide additional context,
there are approximately 130 instances in
part 179 where the HMR requires that a
tank car design feature (e.g., the manner
in which a tank car tank is attached to
the car structure) 3 or item of service
equipment (e.g., a valve) 4 be
‘‘approved.’’ This approval is issued by
the AAR TCC when the Committee
determines that tank car tank or
equipment is in compliance with the
requirements of the HMR.5 The AAR
TCC is the only entity granted the
authority to issue such approvals for
tank car tanks and service equipment in
the HMR.
PHMSA and FRA have determined
that—based on experience participating
in the current AAR TCC process—the
process for tank car design approval is
conducted in such a way that increases
costs and delays to the regulated
community, without a commensurate
increase in safety that would justify
these delays. The HMR create a singlesource, prescriptive system, because
only AAR TCC has the authority to
approve an application for a tank car
3 See
§ 179.10.
§ 179.200–16(b).
5 See § 179.3.
4 See
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design, material of construction,
conversion, or alteration under part 179
specifications. The HMR requirements
for the review of a tank car design are
well understood and include
compliance with part 179 and other
considerations that a tank car design
must take into account (e.g., lading
properties, material compatibility,
operating temperatures, etc.). There is
little doubt that there are many
engineers in the United States with tank
car structural or mechanical design
experience who could review and
certify that a tank car’s design meets the
HMR requirements. Replacing AAR TCC
approval with DCE approval as
proposed will create a system that
increases efficiency in the tank car
design approval market by expanding
the pool of authorized tank car design
approval sources without impacting the
safety of tank cars used to transport
hazardous materials. The proposed
system also includes documentation
requirements for DCEs that will
facilitate improved government
oversight of the design approval process
via periodic audits, and it would allow
DCE registrations to be terminated for
cause as further discussed below.
PHMSA and FRA expect that an
individual with an engineering degree
and tank car design experience or a
registered professional engineer—thus
meeting the § 171.8 definition of a tank
car DCE—will be able to review the
design of a tank car or service
equipment and determine whether the
design complies with the tank car
specification requirements. This
proposal will improve government
oversight of the tank car approval
process. Currently, PHMSA and FRA
have limited ability to take enforcement
action against the TCC for failures to
comply with the requirements of the
HMR. The current TCC design review
procedures have allowed non-compliant
tank cars to enter transportation, posing
risks to lives and the environment.
When non-compliant cars are
discovered in transportation, FRA takes
immediate action to protect rail workers
and the public. This can include issuing
a railworthiness directive to address the
non-compliance. Audits of the TCC tank
car design review process conducted by
the Department have revealed systemic
operational and processing issues
within the TCC—specifically—that the
TCC utilizes, approves, and certifies
Independent Third Party (ITP)
individuals for reviewing and verifying
that the application meets all AAR and
DOT design requirements. These audit
findings still have not been addressed to
date. Additionally, in the recent past,
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85593
the TCC elected not to review and
approve new designs for DOT–106 and
DOT–110 multi-unit tank car tanks
(commonly known as ‘‘ton tanks’’). The
TCC’s decision not to review and
approve DOT–106 and DOT–110
designs created significant disruption
for a packaging manufacturer and their
customers. As a result, PHMSA
expended resources to develop and
issue a Special Permit 6 to allow the
construction and use of these
packagings to avoid disruption to
commercial activities caused by the
TCC’s decision not to complete the role
assigned to them in § 179.3. PHMSA
and FRA are also concerned that the
current system allows TCC to regulate
entry to the market by controlling the
approval process. Major tank car and
service equipment (e.g., valve)
manufacturers are represented on the
TCC. This creates a potential conflict of
interest for the TCC when considering
approval applications from firms that
compete with companies its members
represent. PHMSA and FRA have
determined that due to unaddressed
issues in the AAR TCC approval
process, a recent history of a decision
not to perform the role assigned in the
HMR, and the potential for incumbent
tank car industrial concerns to impact
entry of competitors into the
marketplace, we can no longer justify
delegating authority for tank car design
approval to the AAR TCC.
PHMSA and FRA expect that costs for
reviewing and approving tank car
designs will decrease by removing the
single-source approval and the barriers
of entry to the business of tank car
design approval. The implementation of
the proposed tank car DCE program will
maintain at least an equivalent level of
safety of tank car design by ensuring
tank car DCEs maintain and adhere to a
detailed written procedure to evaluate
the compliance of a tank car design with
the HMR’s tank car specification and
usage requirements. PHMSA and FRA
will be able to exert substantially greater
oversight over tank car DCEs than the
AAR TCC, both through the
modification, suspension, and
termination procedures proposed in this
NPRM, as well as through the civil and
criminal penalty procedures applicable
to all persons who perform activities
subject to the HMR through 49 CFR
parts 107, 109, and 49 U.S.C. 5123–
5124.
PHMSA, in conjunction with our
highway modal partner FMCSA, has
experience overseeing a DCE program
for the design approval of bulk
6 https://www.phmsa.dot.gov/hazmat/documents/
offer/SP14437.pdf/offerserver/SP14437.
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hazardous materials packages intended
for highway transportation through the
existing cargo tank DCE program. This
experience makes us confident that
private sector engineers, operating
under governmental oversight through a
registration program, can safely and
effectively review a package (i.e., a tank)
design and ensure it complies in all
respects with the relevant design
requirements of the HMR. PHMSA and
FRA intend to maintain direct oversight
on the tank car design process through
regular audits of tank car DCEs and
reserve the right to terminate a tank car
DCE registration for cause. Causes for
registration termination include: (1)
because of a change in circumstances
the registration is no longer needed or
would no longer be granted if applied
for; (2) the application contained
inaccurate or incomplete information
and it would not have been granted had
accurate and complete information been
provided; (3) the application contained
deliberately inaccurate or incomplete
information; or (4) the registration
holder knowingly violated the terms of
the registration or an applicable
requirement of 49 CFR Chapter I in a
manner demonstrating lack of fitness to
conduct the activity for which the
registration is required. PHMSA
emphasizes that criteria (4) can be used
to bring enforcement action and
potential modification, suspension, or
termination proceedings against a tank
car DCE who fails to maintain and
follow an adequate written procedure
that is used to verify conformance with
the requirements of the HMR. See
‘‘Section IV. Section 107.911’’ for
additional information on the
termination of a tank car DCE
registration.
By clearly describing the processes
and procedures that the DCE must
follow to approve a tank car design,
PHMSA and FRA expect a high level of
safety for tank car designs will be
maintained. PHMSA proposes to require
the DCE to review the same information
and drawings currently required in the
AAR Form 4–2. This commonality with
existing design records is intended to
minimize disruption during the
transitional period and maximize tank
car and service equipment manufacturer
and DCE familiarity with the required
documentation. The requirements
proposed in §§ 179.3 and 179.5 are
intended to create an accountable,
auditable, criteria-based tank car design
approval system that is more
transparent to government oversight
than the current system. The proposed
requirements in §§ 179.3 and 179.5 are
primarily based on the requirement for
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a tank car DCE to develop, maintain,
and adhere to a written procedure
describing the process used to verify a
tank car or service equipment’s design
with the requirements of the HMR. This
detailed procedure must include
acceptance and rejection criteria for
each tank car or service equipment
design element approved by the DCE,
which demonstrate the tank car or
service equipment will meet the
requirements of part 179 and retain the
hazardous contents of the packaging in
all normal conditions of transportation
for the designed life of the packaging.
PHMSA and FRA investigators and
engineers will evaluate the detailed
procedures during periodic audits to
ensure the procedures adequately
maintain compliance with part 179, and
that the DCE is following the
procedures. These general procedural
requirements proposed in §§ 179.3 and
179.5 will allow tank car DCEs to
determine the most efficient workflow
for their business needs, while
providing a clear basis for evaluation of
a tank car DCE’s procedures. These
standards also provide a clear
framework for PHMSA and FRA to
conduct audits and determine whether
lapses in a tank car DCE’s performance
warrant the issuance of a Notice of
Probable Violation, or, in serious cases,
initiation of modification, suspension,
or termination proceedings.
The DCE registration program also
may facilitate greater technological
advancements in tank car and service
equipment designs by facilitating greater
access to tank car and service
equipment design certification services.
The proposed rule would enable other
entities to approve tank car designs,
potentially leading to more processing
of innovative designs that meet the
existing performance standards and
their subsequent use in the
transportation arena. In addition,
opening these services up to other
entities—rather than maintain the
design approval process solely with
AAR TCC—may increase competition
within the industry as additional DCEs
are registered and begin to provide tank
car design approvals. This competition
is expected to result in potential cost
reductions for the regulated community.
To adequately oversee tank car DCEs,
PHMSA and FRA propose to require
that each DCE register with PHMSA and
provide information on the types of
design reviews the DCE will conduct.
This will allow PHMSA and FRA to
audit DCEs to ensure they are properly
reviewing each tank car or service
equipment design and only issuing
approvals to those designs that meet the
requirements of part 179. Each DCE
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must develop procedures, including
acceptance and rejection criteria for the
approval process, which demonstrate
that the tank car or service equipment
will meet the requirements of part 179
and the design level of reliability and
safety for the hazardous materials
service for which the tank car is
intended. The registration requirement
is necessary to assist PHMSA and FRA
in performance of their oversight
responsibilities to ensure all tank car
DCEs are performing their design
reviews with appropriate rigor, and thus
that tank car designs are suitable for
hazmat transportation. See discussion in
section ‘‘Section II.B.5 Tank Car Facility
and Design Certifying Engineer
Registration’’ for additional details on
the proposed registration program.
Therefore, PHMSA proposes to
remove reference to AAR approval for
tank car designs wherever it appears in
the subchapter. A DCE registered with
PHMSA would fill the tank car design
approval role currently delegated to the
AAR. Authorizing qualified individuals,
registered with PHMSA, to review and
certify tank car designs under PHMSA
and FRA oversight will increase the
level of safety provided by the HMR
while increasing design review
efficiency for the tank car design and
manufacturing community. Finally,
PHMSA notes this would not exclude
the AAR staff or TCC members from
registering as DCEs to continue to
perform these approvals; however, it
removes exclusive delegation and opens
the market to all those who are
qualified. AAR TCC may continue to
provide approval services commercially,
provided they register with PHMSA and
follow the same requirements proposed
in this NPRM that other tank car DCEs
must follow.
3. Tank Car Facility Quality Assurance
Program
Tank car facilities, as defined in
§ 179.2, are required to have a QAP
that—among other items—has the
means to detect non-conformities in the
tank car manufacturing, repair,
inspection, testing, and qualification or
maintenance processes. Currently, each
tank car facility’s QAP must meet the
requirements of § 179.7, which requires
that the QAP be approved by the AAR.
In this rulemaking, PHMSA proposes to
remove the requirement that AAR
approve a tank car facility’s QAP. As a
substitute, we propose to replace this
requirement with a requirement that
tank car facilities must register with
PHMSA, certify that they maintain a
QAP that meets the requirements of
§ 179.7, and include an executive
summary of their QAP with their
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registration statement. As proposed, the
registration program will improve safety
through increased PHMSA and FRA
situational awareness of tank car facility
activities and provide mechanisms to
address non-compliance. PHMSA
proposes to allow modification,
suspension, or termination of a tank car
facility registration for the following
causes: (1) because of a change in
circumstances, that the registration is no
longer needed or would no longer be
granted if applied for; (2) the
application contained inaccurate or
incomplete information and it would
not have been granted had accurate and
complete information been provided; (3)
the application contained deliberately
inaccurate or incomplete information; or
(4) the registration holder knowingly
violated the terms of the registration or
an applicable requirement of 49 CFR
Chapter I in a manner demonstrating
lack of fitness to conduct the activity for
which the registration is required.
PHMSA emphasizes that criteria (4)
above can be used to bring enforcement
action and initiate modification,
suspension, and termination
proceedings against a tank car facility
that fails to adhere to their QAP. A tank
car facility’s failure to adhere to a QAP
could create unacceptable risks in the
rail system and may cause unsafe tank
cars to enter transportation.
The creation of the QAP requirement
for tank car facilities was initiated based
on a National Transportation Safety
Board (NTSB) safety recommendation
(R–88–63) 7 issued in response to a
September 8, 1987, incident involving
the release of butadiene from a tank car
in New Orleans, Louisiana. In 1993, the
Research and Special Programs
Administration (RSPA)—PHMSA’s
predecessor agency—proposed the
creation of the QAP requirement and
definition of tank car facility in an
NPRM (HM–201).8 The primary intent
of this requirement—as discussed in the
preamble of HM–201—is to ensure each
tank car manufacturing or repair facility
has procedures in place to detect any
nonconformity in the tank car
manufacturing, maintenance, or repair
process and has the means to prevent its
recurrence.
In 1995, RSPA created the definition
for the term ‘‘tank car facility’’ and a
requirement for each tank car facility to
maintain a QAP meeting the
requirements of § 179.7 in final rule
HM–175A and HM–201,9 and made
7 See NTSB Safety Recommendation R–88–063:
https://www.ntsb.gov/investigations/Accident
Reports/_layouts/ntsb.recsearch/Recommendation.
aspx?Rec=R-88-063.
8 58 FR 48485 (Sep. 16, 1993).
9 60 FR 49048 (Sep. 21, 1995).
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minor revisions to the requirements in
a 1996 HM–175A and HM–201
corrections final rule.10 The
requirements of § 179.7 have not been
modified substantively since.
PHMSA and FRA have found that the
requirement for only AAR to review and
approve each tank car facility’s QAP
creates an undue cost burden on the
facility and creates delays in approving
facility operation that hinder commerce.
Additionally, PHMSA and FRA’s
experience auditing tank car facilities
with QAPs approved by AAR TCC have
revealed significant compliance issues
with the current QAP approval process.
For example, PHMSA and FRA have
knowledge that on at least one
occasion—over the course of many
months—AAR did not take action on a
facility that failed AAR Bureau of
Explosives QAP audits. These negative
findings demonstrated the facility’s
failure to maintain an effective QAP
and, therefore, the company’s inability
to safely perform their tank car
qualification functions as required by
the HMR. Specifically, AAR did not take
action to remove the certification of a
tank car facility in Shoshone, Wyoming,
(Wasatch Railroad Contractors) that had
failed multiple QAP audits. This
inaction allowed the facility to continue
to operate without an effective QAP.
FRA and PHMSA raised concerns that
AAR has not adopted procedural
changes to prevent this type of failure
(e.g., by immediately addressing
findings) from recurring. Subsequently,
on April 22, 2021, two employees were
killed in an explosion while working
inside a tank car.11 FRA and PHMSA
believe corrective action by AAR and
the facility may have prevented such an
incident by not allowing continued
work on tank cars. In 2022, the owner
of Wasatch Railroad Contractors was
found guilty of five counts of wire fraud
and one count of knowing
endangerment for knowingly exposing
employees to asbestos and placing them
in imminent danger of death or serious
bodily injury.12
Additionally, as part of AAR TCC’s
current QAP approval process, AAR
requires that tank car facilities bear the
expense on an initial certification audit
and annual recertification audits
thereafter. The initial certification
process often takes several months, and
the tank car facility has no recourse
under the current HMR requirements
but to accept AAR’s timeline and fees.
10 61
FR 33250 (Jun. 26, 1996).
11 https://apnews.com/article/explosions-
business-1aa330c562c393a74421e4a90b9394db.
12 https://www.justice.gov/usao-wy/pr/wasatchrailroad-contractors-and-its-chief-executive-officersentenced-wire-fraud-and.
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85595
Additionally, the audit process does not
increase the level of safety
commensurate with the costs and delays
it imposes. FRA inspectors regularly
find violations of the HMR at facilities
that AAR authorizes to operate through
the current QAP approval process. FRA
issues findings, tickets, and notices of
probable violation to tank car facilities
when it discovers non-compliance.
When violations are systemic or
significant, FRA uses its railworthiness
authority to address similarly situated
cars or fleets of cars.
Therefore, PHMSA and FRA propose
to remove the requirement that tank car
facilities submit their QAPs for approval
to AAR and replace it with a
requirement that each tank car facility
register with PHMSA and certify that it
has created and is maintaining a QAP
that meets the requirements of § 179.7.
As part of the registration requirement,
PHMSA and FRA propose that the
registrant must submit an executive
summary of its QAP, demonstrating
compliance with the elements required
in § 179.7(b). Facilities may submit
certifications from outside
organizations, such as an external
auditor, to serve as the executive
summary or submit their own executive
summary documents. PHMSA will
administer the registration program for
facilities, and FRA—in conjunction with
PHMSA—will oversee tank car facility
QAPs through regular facility
compliance audits. PHMSA and FRA
have limited oversight and control over
the current AAR approval process for
tank car facility QAPs. However, the
observations that have been conducted,
coupled with our enforcement oversight
of the tank car fleet, provide PHMSA
and FRA with significant concerns that
the current system of AAR audits
provides limited safety benefits
compared to the burdens imposed.
PHMSA and FRA expect the registration
program combined with regular
compliance audits by government
personnel will maintain an equivalent
or greater level of safety to the current
requirements while reducing
administrative delays caused by the
AAR process. PHMSA and FRA
emphasize that adhering to a rigorous
QAP is critical for a tank car facility to
ensure that the tank cars qualified for
service at the facility meet the
requirements of the tank car’s
specification and regulations. See
‘‘Section II.B.5. Tank Car Facility and
Design Certifying Engineer Registration’’
for additional details on the proposed
registration program.
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PHMSA recognizes that this topic is
the subject of an open petition P–1770 13
submitted by AAR on October 21, 2022.
This petition requests the removal of the
AAR approval requirement for QAPs in
accordance with § 179.7. The AAR
petition requests that PHMSA replace
AAR approval of QAPs with a
requirement for tank car facilities to
comply with an industry standard
known as ‘‘AAR M–1003—Specification
for Quality Assurance.’’ As described
above, PHMSA believes that a
performance-based approach to QAPs—
along with registration with the
Department and self-certification—is the
best option. Our proposal allows for the
use of accepted industry standards for
quality assurance programs to meet the
proposed safety requirements, but does
not mandate one standard over another.
This allows tank car facilities to
implement the performance elements in
the most appropriate manner for their
operations. Therefore, in this NPRM,
PHMSA is not proposing to incorporate
by reference AAR M–1003 into § 179.7.
PHMSA will consider any comments on
this topic with respect to this NPRM as
it evaluates petition P–1770.
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4. Tank Car Facility Definition
PHMSA and FRA are aware that there
is uncertainty in the tank car
community related to the scope of the
definition of ‘‘tank car facility.’’ This
uncertainty impacts both tank car
shippers and tank car manufacturers
(including service equipment
manufacturers). On October 8, 2019,
PHMSA, in conjunction with FRA,
issued Letter of Interpretation Reference
No. 19–0117 14 addressing the definition
of ‘‘tank car facility.’’ PHMSA proposes
to revise the definition of ‘‘tank car
facility’’ consistent with Letter of
Interpretation Reference No. 19–0117 so
that the definition applies only to the
facility that qualifies the tank car for
service. That is, for example, an
equipment manufacturer of a pressure
valve used in the construction of a tank
car is not a tank car facility solely on the
basis of manufacturing a component
part of a specification tank car. The
determining factor on the applicability
of the ‘‘tank car facility’’ definition is
whether the facility qualifies a tank car
for service. The tank car facility that
qualifies the tank car for service is
responsible for ensuring the conformity
of the entire tank car, including service
equipment, with the approved
13 https://www.regulations.gov/document/
PHMSA-2022-0130-0001.
14 See Letter of Interpretation Reference No. 19–
0117: https://www.phmsa.dot.gov/regulations/
title49/interp/19-0117.
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specification. Additionally, PHMSA
proposes to revise the definition of
‘‘service equipment’’ in § 180.503 to
clarify what constitutes ‘‘service
equipment’’ consistent with our
expectations in revising the definition of
a tank car facility. Service equipment is
pressure or lading retaining equipment.
Examples include pressure relief
devices, valves, manway covers, devices
used for loading and unloading, interior
heating coils, and vents.
To address the community of tank car
shippers: PHMSA’s and FRA’s position,
as reflected in the proposed definition,
is that the removal of service equipment
from the tank car and replacement or reinstallation of the service equipment is
a qualification event and triggers the
need for a leakage pressure test (see
§ 180.509(j)) to verify the tank car is leak
tight at the connection. These functions
must be conducted by a tank car facility,
as defined in part 179, because the
service equipment requires a leakage
pressure test to ensure the connection to
the tank car is qualified for its intended
service. A leakage pressure test is a
qualification event and must be
performed by a tank car facility. Any
action that triggers a qualification event
requires a tank car facility to perform
the qualification prior to placing the
tank car into transportation. However, to
be clear, a facility that only operates
service equipment for loading and
unloading purposes is not a tank car
facility.
To address the community of tank car
component manufacturers, repair
facilities and manufacturers: PHMSA’s
and FRA’s position, as reflected in the
proposed definition, is that a facility
that only manufactures, maintains, or
repairs service equipment is not a tank
car facility. The facility that qualifies
the completed tank car for service after
installation of the service equipment is
the tank car facility. The facility that
qualifies the tank car for service is
responsible for ensuring the compliance
of the packaging with the requirements
of part 179, even those functions that
they did not directly perform (e.g.,
manufacturing a valve). The tank car
facility’s QAP must encompass all work
done on the tank car and its components
prior to qualification of the tank car.
Tank car facilities that meet the
proposed revised definition of tank car
facility in § 179.2 must have the
knowledge and skill to ensure
appropriate conformance with the
requirements of parts 179 and 180. As
qualification is the final step in the tank
car manufacturing or maintenance
process, only requiring the facilities that
qualify tank cars (i.e., facilities that have
the ‘‘last touch’’) to have a QAP reduces
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this requirement to a small subset of the
total number of facilities that perform
work related to tank cars, while still
maintaining the high level of safety
under the HMR. PHMSA and FRA
emphasize the scope of the definition of
‘‘qualification’’ remains unchanged.
Therefore, as proposed, tank car
shippers and component suppliers are
not subject to the administrative
burdens associated with the creation
and maintenance of QAPs, unless they
perform qualification activities (e.g.,
removal and replacement of a valve or
other service equipment on a tank car).
PHMSA and FRA emphasize that all
facilities that perform a function subject
to the HMR are responsible for
performing it correctly and in
conformance with all applicable
requirements, regardless of whether
they meet the definition of a ‘‘tank car
facility.’’
Tank car facilities are responsible for
ensuring all material installed onto the
tank car meets the requirements of the
specification and the regulations at the
time the tank car is qualified for service.
PHMSA and FRA understand that longstanding policy in the tank car industry
had required tank car component
manufacturers to maintain AARapproved QAPs. This policy was
confirmed in previously issued (and
since revoked) PHMSA Letters of
Interpretation Reference Nos. 15–0124
and 18–0029. While these letters are no
longer valid, and have not been valid
since 2019, at the time they were
written they aligned with generally
accepted industry practice and
addressed a safety issue created by
production of valves and other tank car
service equipment by unapproved subcontractors without adequate oversight.
As proposed in this NPRM, the facility
that qualifies the tank car for service is
responsible for ensuring the tank car
and all equipment necessary for the tank
car’s operation meets the applicable
requirements of the HMR and any other
applicable standards.
5. Tank Car Facility and Design
Certifying Engineer Registration
As previously discussed, PHMSA and
FRA propose to require that tank car
facilities and tank car DCEs register with
PHMSA prior to conducting regulated
activities. PHMSA and FRA expect that
a registration program for both tank car
facilities and tank car DCEs is a more
efficient alternative for the tank car
industry while providing at least an
equivalent level of safety. Direct
monitoring of registered tank car
facilities and tank car DCEs through site
visits and audits will maintain the
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existing safety standards established in
the HMR.
Therefore, PHMSA, in conjunction
with FRA, proposes to create subpart J
in part 107 for tank car facility and tank
car DCE registration. The creation of a
tank car facility registration program
was agreed to in the RSAC process;
however, PHMSA proposes to
implement the tank car facility
registration program in a format
different than what appears in the RSAC
consensus recommendations. In the
RSAC proposal, the tank car facility
registration was added to the existing
cargo tank facility registration subpart
(i.e., part 107, subpart F). After
reviewing the RSAC proposal, PHMSA
and FRA have determined that it would
be confusing to both the cargo tank and
tank car communities to attempt to
insert tank car-specific facility and DCE
registration language into part 107,
subpart F. PHMSA proposes to place the
tank car facility and tank car DCE
registration requirements in a new
subpart to reduce confusion and
highlight the tank car-specific nature of
these programs. However, some of the
proposed language is similar to the part
107, subpart F requirements for cargo
tanks and cargo tank motor vehicles.
For tank car facilities, PHMSA
proposes to require that each facility, i.e.
each separate physical location with a
unique street address, submit a separate
registration. This will allow PHMSA
and FRA to oversee each facility that
qualifies tank cars more effectively by
establishing the physical addresses and
activities of each facility. Each
registration statement must be signed by
a principal, officer, partner, or employee
of the facility responsible for
compliance with the applicable
requirements of the HMR, certifying
knowledge of those requirements. In
their registration statement, each tank
car facility must list the qualification
functions the tank car facility will
perform and identify the types of DOT
specification or special permit tank cars
they intend to qualify.
For DCEs, PHMSA proposes to require
each person, as defined in § 171.8, who
conducts review of a tank car or service
equipment design must register with
PHMSA. Each engineer employed to
conduct the design reviews must be
individually named in the registration
and will receive a unique, separate
identifier associated with the company’s
DCE registration. If an engineer is
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employed as a DCE to conduct design
reviews of tank cars or service
equipment and begins operating as a
DCE for another company, or as selfemployed, then the engineer must
inform PHMSA and will then receive a
new registration number.
PHMSA also proposes the ability to
modify, suspend, or terminate both tank
car facility and tank car DCE
registrations for cause in new § 107.911.
Further, procedures for a tank car
facility or DCE to follow to request
reconsideration and appeal a decision to
modify, suspend, or terminate a
registration are proposed in new
§§ 107.913 and 107.915, respectively.
Modification, suspension, and
termination determinations for tank car
facility and DCE registrations will be
made by the Associate Administrator for
Safety, FRA. Similarly, requests for
reconsideration must also be submitted
to the Associate Administrator for
Safety, FRA, and appeal of the
reconsideration decision to the FRA
Administrator.
6. AAR Specifications for Tank Cars
Incorporation by Reference
The AAR has developed a
comprehensive industry standard for
the construction and maintenance of
tank cars, the AAR Manual of Standards
and Recommended Practices, Section
C—III, Specifications for Tank Cars,
Specification, M–1002 (AAR
Specifications for Tank Cars). Currently,
§ 171.7 incorporates by reference the
December 2000 edition of the AAR
Specifications for Tank Cars throughout
parts 173 (Shippers-General
Requirements for Shipments and
Packagings), 179 (Specifications for
Tank Cars), and 180 (Continuing
Qualification and Maintenance of
Packagings). In many sections,
especially in part 179, the HMR only
references a specific section, such as an
appendix, of the document. To clarify
the IBR structure of M–1002, the RSAC
agreed to separately list the individual
chapters and appendices of the of AAR
Specifications for Tank Cars in the
HMR’s consolidated IBR section
(§ 171.7). This will clearly denote to the
reader the relevant chapter or appendix
of the document that applies in a
particular section of the HMR. This
change will also provide PHMSA and
FRA greater flexibility when
incorporating by reference future
editions of the standard. For example, if
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85597
PHMSA and FRA do not concur on the
content of a particular chapter or
appendix, it would not prevent other
chapters or appendices from being
incorporated by reference.
The RSAC also agreed to update the
standard from the December 2000
edition to the November 2014 edition.
The 2014 edition of the AAR
Specifications for Tank Cars also
addresses NTSB Safety
Recommendation R–12–007,15 issued
on March 2, 2012. R–12–007
recommends that PHMSA adopt AAR’s
revised design standards for center sill
and draft sill attachments. AAR
redesigned center and draft sill
attachments in response to NTSB Safety
Recommendation R–12–009.16 Chapter
6 of the 2014 edition of the AAR
Specifications for Tank Cars, which is
proposed for adoption into § 179.10,
includes the new sill attachment
standards for newly built tank cars.
Therefore, the proposed IBR update
helps PHMSA address NTSB Safety
Recommendation R–12–007.
This NPRM proposes to update the
IBR of the AAR Specifications for Tank
Cars to the 2014 edition and to
incorporate by reference separately each
relevant chapter and appendix, as
agreed to in the RSAC process. Due to
the proposed removal of AAR’s sole
process for review and approval of tank
car designs, certain appendices and
sections are no longer necessary to IBR.
Several appendices and sections that
require designs and QAPs to be sent to
AAR for approval would no longer be
relevant (see ‘‘Section II.B.2. Tank Car
Design Approval). Therefore, PHMSA
does not propose to IBR Appendix B,
Appendix L, and Appendix U of the
AAR Specifications for Tank Cars into
the HMR.
Additionally, PHMSA proposes to
update the edition of the AAR Manual
of Standards and Recommended
Practices, Section C—II Specifications
for Design, Fabrication and Construction
of Freight Cars, Chapter 5 to the 2011
edition from the 1988 edition, as agreed
in RSAC.
15 See NTSB Safety Recommendation R–12–007:
https://www.ntsb.gov/safety/safety-recs/_layouts/
ntsb.recsearch/Recommendation.aspx?Rec=R-12007.
16 See NTSB Safety Recommendation R–12–009:
https://www.ntsb.gov/safety/safety-recs/_layouts/
ntsb.recsearch/Recommendation.aspx?Rec=R-12009.
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PHMSA proposes to IBR the 2014
edition of the AAR Manual of Standards
and Recommended Practices, Section
C—III, Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars) Chapter 2,
section 2.2.1.2 into § 179.102–3. This
proposed amendment creates an HMR
requirement for shell and head material
Charpy impact testing at time of
manufacture for pressure tank cars that
transport poisonous-by-inhalation
material. Because this requirement has
been in place through AAR interchange
standards since 2005, PHMSA expects
there will be no additional burden
placed on tank car manufacturers. This
proposed IBR also addresses NTSB
Safety Recommendation R–19–001,
which requests that PHMSA promulgate
a final standard for pressure tank cars
used to transport poison inhalation
hazard/toxic inhalation hazard materials
that includes enhanced fracture
toughness requirements for tank heads
and shells.
PHMSA proposes to incorporate by
reference the 2014 edition of the AAR
Manual of Standards and Recommended
Practices, Section C—III, Specifications
for Tank Cars, Specification M–1002
(AAR Specifications for Tank Cars)
Chapter 3, into §§ 173.241, 173.242, and
173.247. Chapter 3 contains the
requirements for manufacturing AAR
specification tank cars. Sections
173.241, 173.242, and 173.247 are the
packaging sections that authorize the
use of AAR specification tank cars.
Currently, these sections reference
specific AAR specification tank cars, but
provide no information as to how these
cars are constructed, or what version of
the AAR Specifications for Tank Cars
they must meet. Incorporating by
reference only Chapter 3 into these
sections ensures that AAR specification
tank cars are manufactured to a standard
that PHMSA and FRA have reviewed
and determined is acceptable for
hazardous materials transportation. If
the specifications of the AAR tank cars
referenced in §§ 173.241, 173.242, and
173.247 are ever changed in a future
edition of the AAR Specifications for
Tank Cars, PHMSA and FRA will need
to review the revised specifications
before authorizing the tank cars for
hazardous material service.
Incorporation by reference of a specific
edition of the AAR Specifications for
Tank Cars in §§ 173.241, 173.242, and
173.247 ensures PHMSA will be able to
review any future changes to the
construction specification prior to
authorizing the new specification for
hazardous materials transportation.
Finally, PHMSA proposes to correct
an error in the HMR and RSAC’s
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proposed IBR text. Currently, the HMR
incorporates by reference the AAR
Manual of Standards and Recommended
Practices, Section C—III, Specifications
for Tank Cars, Specification M–1002
(AAR Specifications for Tank Cars),
Chapter 6, November 2014 in § 179.400–
6. This citation is incorrect; the correct
IBR document for design loads of outer
jackets is AAR Manual of Standards and
Recommended Practices, Section C—II
Specifications for Design, Fabrication
and Construction of Freight Cars,
Chapter 6. Therefore, PHMSA proposes
to IBR Section C—II, Chapter 6 into
§ 179.400–6.
7. Tank Car Linings and Coatings
The HMR prescribes requirements for
the inspection of tank car linings in
§ 180.509(i). On May 22, 2019, the
Railway Supply Institute (RSI)
requested a Letter of Interpretation on
the applicability of the inspection
requirements of § 180.509(i).
Specifically, RSI asked whether linings
and coatings solely used to protect
product purity (i.e., the lining or coating
plays no role in protecting the tank from
corrosion or reactivity) are subject to the
inspection requirements of § 180.509(i).
In Letter of Interpretation Reference
No. 19–0117,17 PHMSA and FRA
provided clarification on inspection
requirements for linings and coatings.
Specifically, the requirements of
§ 180.509(i) apply only to internal tank
car linings and coatings that are applied
to protect the tank from a material that
is corrosive or reactive to the tank. As
noted in the preamble of the final rule
HM–216B, 18 PHMSA and FRA are
aware of incidents where a material was
loaded into a tank car with a defective
or incompatible lining which caused a
reaction with the tank car. In these
instances, the tank lining owners
expected the lining was there to protect
product purity when in fact it served to
protect the tank. It is the responsibility
of the tank lining owner to determine
whether the internal lining or coating is
solely for product purity purposes.
To address confusion on the
applicability of tank car lining and
coating inspections, PHMSA proposes
an editorial revision of the requirements
of § 180.509(i)(1), adding the phrase
‘‘used to transport hazardous materials
corrosive or reactive to the tank’’ to the
second sentence of (i)(1). The proposed
revision clearly indicates that tank car
linings and coatings are only subject to
the inspection requirements of part 180
17 See Letter of Interpretation Reference No. 19–
0117: https://www.phmsa.dot.gov/regulations/
title49/interp/19-0117.
18 77 FR 37962 (Jun. 25, 2012).
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if they are used to protect the tank from
material corrosive or reactive to the
tank. PHMSA expects that this
clarification will improve compliance
with this inspection requirement and
therefore improve safety. PHMSA
requests comment on this proposal.
8. Editorial Revisions to §§ 180.501 and
180.513
Section 180.501 contains the general
requirements for the qualification and
maintenance of tank cars. In this NPRM,
PHMSA proposes to replace the phrase
‘‘owner’s qualification program’’ with
‘‘owner’s qualification and maintenance
program’’ to maintain alignment with
the scope of part 180, subpart F, and the
existing references to ‘‘qualification and
maintenance program’’ in §§ 179.7 and
180.513.
Section 180.513 provides the
requirements to repair, alter, convert,
and modify tank cars. PHMSA, in
conjunction with FRA, adopted this
section into the HMR in HM–216B.
Section 180.513(b) outlines
responsibilities of a tank car facility.
The last sentence in § 180.513(b)
contains wording that does not
communicate the requirement
accurately. Specifically, at the end of
paragraph (b), it currently states, ‘‘a tank
car facility must incorporate the owner’s
Quality Assurance Program into their
own Quality Assurance Program.’’ The
sentence contains an incorrect reference
to an equipment owner’s QAP. Tank car
owners are not subject to the part 179
QAP requirements unless they also
operate a tank car facility. The last
sentence should make a general
reference to a tank car owner’s
qualification and maintenance program
and not a QAP that is required of tank
car facilities. The requirement should
read, ‘‘a tank car facility must
incorporate the owner’s qualification
and maintenance program into their
own Quality Assurance Program.’’
Therefore, PHMSA proposes to replace
the first appearance of the phrase
‘‘Quality Assurance Program’’ in the last
sentence of § 180.513(b) with the phrase
‘‘qualification and maintenance
program.’’
C. Cargo Tank Regulatory Amendments
PHMSA, in conjunction with the
Federal Motor Carrier Safety
Administration (FMCSA), developed
proposed amendments specific to
enhancing safe highway transportation
of hazardous materials. A portion of the
proposed items were initially identified
during two technical information
sessions sponsored by National Tank
Truck Carriers, Inc. (NTTC) and Truck
Trailer Manufacturer’s Association
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(TTMA) in 2005. During these meetings,
PHMSA and FMCSA began developing
a list of issues, concerns, and requests
for clarifications to be considered in a
future rulemaking. Moreover, PHMSA
and FMCSA have identified numerous
advancements in industry practice, as
well as potential safety incidents, over
the course of the past 17 years. This
rulemaking aims to address the safety
concerns raised by industry
stakeholders.
Additionally, PHMSA and FMCSA
continue to review enforcement actions,
letters of interpretation, and information
received from cargo tank manufacturers
and testing facilities, in efforts to
identify appropriate revisions to the
HMR.
D. Cargo Tank Marking for Petroleum
Distillate Fuels
In an advance notice of proposed
rulemaking (ANPRM) HM–213E,19
PHMSA addressed United Nations
identification number (UN ID number)
marking of cargo tank motor vehicles
containing petroleum distillate fuels in
response to a Protecting our
Infrastructure of Pipelines and
Enhancing Safety Act of 2016 (PIPES
Act of 2016) Congressional mandate and
two petitions for rulemaking (P–1667 20
and P–1668 21). The PIPES Act of 2016
mandate stated that ‘‘[n]ot later than 90
days after the date of enactment of this
Act, the Secretary of Transportation
shall issue an [ANPRM] to take public
comment on the petition for rulemaking
85599
dated October 28, 2015, titled
‘Corrections to Title 49 CFR 172.336
Identification numbers; special
provisions’ (P–1667).’’
The central issue addressed in the
HM–213E ANPRM was whether a cargo
tank motor vehicle transporting
different types of petroleum distillate
fuels (e.g., gasoline, diesel fuel,
kerosene, and fuel oil) over the course
of multiple trips should be permitted to
display the UN ID number of the fuel
with the lowest flash point, even when
that fuel is not being transported (e.g.,
display ‘‘1203’’—the UN ID number for
gasoline—when the cargo tank contains
only diesel fuel).
As detailed in table 1, PHMSA
received 14 sets of comments to the
HM–213E ANPRM.
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TABLE 1—HM–213E COMMENTERS AND ASSOCIATED COMMENT DOCKET NUMBERS
Commenter
Docket ID number
American Trucking Association (ATA) ..................................................................................
Anonymous ............................................................................................................................
Commercial Vehicle Safety Alliance (CVSA) ........................................................................
Dangerous Goods Advisory Council (DGAC) .......................................................................
International Association of Fire Chiefs (IAFC) ....................................................................
International Association of Fire Fighters (IAFF) ..................................................................
Josh Torrez ...........................................................................................................................
Kansas Highway Patrol .........................................................................................................
NTTC .....................................................................................................................................
Patriot Tank Lines, Inc. .........................................................................................................
Petroleum Marketers Association of America (PMAA) .........................................................
Public Utilities Commission of Ohio ......................................................................................
Transportation Trades Department, American Federation of Labor and Congress of Industrial Organizations (AFL–CIO).
PHMSA–2016–0079–0012
PHMSA–2016–0079–0003
PHMSA–2016–0079–0009
PHMSA–2016–0079–0010
PHMSA–2016–0079–0008
PHMSA–2016–0079–0011
PHMSA–2016–0079–0002
PHMSA–2016–0079–0005
PHMSA–2016–0079–0006
PHMSA–2016–0079–0004
PHMSA–2016–0079–0013; PHMSA-2016-0079-0014
PHMSA–2016–0079–0007
PHMSA–2016–0079–0015
ATA, CVSA, DGAC, Kansas Highway
Patrol, Patriot Tank Lines, Inc., NTTC,
and PMAA support allowing cargo tank
motor vehicles that deliver multiple
types of petroleum distillate fuels to
display the UN ID number of the fuel
with the lowest flash point, even when
that fuel is not being transported. These
organizations note that materials with a
lower flash point generally have a
higher flammability hazard, and
therefore, conclude that marking the UN
ID number of a lower flash point
material would not increase risks in
transportation. Additionally, these
commenters note that the Emergency
Response Guidebook (ERG) emergency
response procedures are nearly identical
for UN1203 (gasoline) and UN1202/
NA1993 (diesel fuel, fuel oil), and
marking of a cargo tank with ‘‘1203’’
even when it only contains diesel fuel
has been a safe industry practice for
decades. PHMSA also notes that for
other petroleum distillate fuels—such as
19 81
FR 83190 (Nov. 21, 2016).
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UN1223 (kerosene)—the ERG also
directs the reader to the same response
procedures for UN1203 and UN1202/
NA1993. Lastly, the commenters note
that switching the UN ID number before
every trip to reflect the material
transported in the cargo tank at the time
would increase the time per trip and
costs for fuel distributors.
The IAFC, IAFF, Public Utilities
Commission of Ohio, and
Transportation Trades Department of
the AFL–CIO do not support allowing
cargo tank motor vehicles that deliver
multiple types of petroleum distillate
fuels to display the UN ID number of the
fuel with the lowest flash point, even
when that fuel is not being transported.
These commenters state that emergency
responders would treat an incident—
including clean-up and spill
mitigation—involving diesel fuel
differently from gasoline, and the use of
the gasoline ‘‘1203’’ marking in place of
the diesel fuel ‘‘1202’’ or ‘‘1993’’
increases confusion and decreases
response effectiveness. Specifically, first
responders may use the presence (or
lack) of a fire and communicated hazard
to determine the potential dangers of the
fuel in the immediate aftermath of an
accident. Because ‘‘1203’’ signifies a
material with a lower flashpoint than
‘‘1202’’ or ‘‘1993’’ is present on the
vehicle, the absence of a fire signifies
that there may not be a fire hazard.
However, when the higher flashpoint
material is present, but only the lower
flash point material is communicated on
the vehicle, the absence of a fire may
create a false sense of security for
emergency responders, as they would be
unaware that the fuel in the tank or
spilled on the ground had not yet
reached the higher flash temperature for
diesel fuel.
PHMSA conducted a thorough review
of the regulatory history related to the
UN ID number marking requirements for
petroleum distillate fuels in cargo tanks
20 See petition for rulemaking P–1667: https://
www.regulations.gov/document?D=PHMSA-20150219-0001.
21 See petition for rulemaking P–1668: https://
www.regulations.gov/document?D=PHMSA-20150251-0001.
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and concludes the origin of the
confusion on this issue dates to final
rule HM–118.22 In HM–118, RSPA
added new hazard marking sections
including § 172.332 for requirements on
the display of UN ID numbers, § 172.334
for the prohibited display of UN ID
numbers, and § 172.336 for special
provisions and exceptions of UN ID
numbers. In § 172.336, RSPA added two
exceptions for the marking of UN ID
numbers for a cargo tank transporting
liquid distillate fuels, which read as
follows:
(c) Identification numbers are not required
—
*
*
*
*
*
(4) For different liquid distillate fuels,
including gasoline, in a compartmented cargo
tank or tank car, if the identification number
is displayed for the distillate fuel having the
lowest flash point.
(5) For each of the different liquid distillate
fuels, including gasoline, transported in a
cargo tank, if the identification number
displayed is for the liquid distillate fuel
having the lowest flash point.
*
*
*
*
*
In the final rule preamble,23 RSPA
described the intent of the exception in
§ 172.336(c)(5) as:
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Paragraph (c)(5) provides for display of the
identification number of the liquid distillate
fuel having the lowest flash point of any
liquid distillate fuel carried in a cargo tank.
This provision will eliminate the need for
continuous changes in identification
numbers in many operations where gasoline
and fuel oil are transported in the same cargo
tank on different trips during the same day.
While RSPA stated that the intent of
this exception would address moving
gasoline and other petroleum distillate
fuels in the same cargo tank on different
trips on the same day, this was not
reflected in the regulatory text.
Although the time frame for use of this
exception was not explicitly written in
the regulatory text, the preamble
language makes it is clear that the
exception in § 172.336(c)(5) was not
limited to multi-compartmented tanks
carrying multiple petroleum distillate
fuels at the same time. Specifically, if
§ 172.336(c)(5) only applied to
compartmented cargo tanks that
transported multiple liquid distillate
fuels at the same time, § 172.336(c)(4)
would be duplicative. Therefore,
PHMSA concludes that RSPA intended
§ 172.336(c)(5) to authorize a cargo tank
to display the UN ID number of the
petroleum distillate fuel with the lowest
flash point transported in that cargo
tank on different trips within the same
day, and not based on each individual
trip.
Furthermore, RSPA’s intent of this
regulatory exception was reiterated in
1996 and 2000, with Letter of
Interpretation Reference Nos. 96–0079
and 00–0208. In these interpretation
letters, RSPA clearly stated that the
exception in § 172.336(c)(5) allowed
cargo tanks that previously transported
gasoline (UN1203) and were
subsequently transporting only diesel
fuel (NA1993/UN1202) to be marked
with ‘‘1203.’’
As discussed in the HM–213E
ANPRM, § 172.336(c)(5) was updated in
1987 and 2008 to address specific
concerns related to increased ethanol
content in certain fuels that required
different emergency response
procedures, but the basic structure of
the paragraph was not changed. Further,
in 2013, PHMSA published final rule
HM–219,24 which amended the HMR in
response to various petitions for
rulemaking. In HM–219, PHMSA
removed the reference to ‘‘gasohol’’ in
§ 172.336, as the Hazardous Materials
Table (HMT) entry for this material was
removed in 2008. In addition, PHMSA
replaced §§ 172.336(c)(1)–(6) with a
table to ‘‘more clearly indicate hazard
communication requirements.’’ In this
new table, PHMSA added paragraphs
(c)(1)–(3) and (c)(6) as individual entries
but combined the language in
paragraphs (c)(4) and (5) into a single
entry. The impact of combining the
provisions of paragraphs (c)(4) and (5)
was that the historical context for the
original meaning of paragraph (c)(5) was
lost. As this revision in HM–219 was an
attempt at clarification, it was not
PHMSA’s intent to change the
exceptions substantively for marking of
UN ID numbers on cargo tanks.
On June 26, 2015, PHMSA published
an additional Letter of Interpretation
Reference No. 14–0178.25 In the
incoming letter, the requester asserted
that § 172.336(c) stated clearly that if a
cargo tank is transporting multiple
liquid petroleum distillate fuels, it may
be marked with the UN ID number of
the fuel with the lowest flash point. The
requester asked if a cargo tank is
transporting only diesel fuel (NA1993),
is it authorized to continue displaying
the UN ID number for gasoline
(UN1203) even though gasoline was no
longer present. As the regulations no
longer clearly indicated that this
continued to be an acceptable practice,
in the response, PHMSA stated that a
FR 14702 (Mar. 7, 2013).
Letter of Interpretation Reference No. 14–
0178: https://www.phmsa.dot.gov/regulations/
title49/interp/14-0178.
24 78
25 See
22 45
FR 74640 (Nov. 10, 1980).
23 45 FR 74647 (Nov. 10, 1980).
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cargo tank transporting only diesel fuel
could not be marked with the UN ID
number for gasoline because the
gasoline was no longer present.
As previously discussed, in HM–219,
it was not PHMSA’s intent to remove
the longstanding exception that allowed
a cargo tank transporting more than one
petroleum distillate fuel in different
trips to display the UN ID number for
the petroleum distillate fuel with the
lowest flash point. Although, PHMSA
recognizes that there may be safety
concerns associated with this practice,
as noted by commenters to the HM–
213E ANPRM, PHMSA has not received
specific information describing
instances in which this marking
exception has increased risks in
transportation. Therefore, PHMSA
proposes to revise the § 172.336(c) table,
to authorize display of the UN ID
number of the petroleum distillate fuel
with the lowest flash point transported
in a cargo tank in different trips on the
previous or current business day. This
proposal aligns with the original intent
of § 172.336(c)(5), and addresses the
operational concerns identified by
commenters to the HM–213E ANPRM.
In addition, this proposal generally
aligns with the requirements of DOT–SP
21104,26 which was issued on
November 11, 2020, and further
modified on February 26, 2021. DOT–SP
21104 currently allows for the
transportation of gasoline, diesel fuel,
kerosene, and fuel oil in a cargo tank
motor vehicle marked with the UN ID
number ‘‘1203’’ as long as gasoline had
been transported in the cargo tank
during the previous or current business
day. PHMSA is unaware of any safety
issues associated with DOT–SP 21104.
Although ‘‘different trips on the same
day’’ was not defined in HM–118,
PHMSA proposes that this provision
apply when the petroleum distillate fuel
with the lowest flash point is
transported on the cargo tank motor
vehicle during the previous or current
business day. As previously mentioned,
this proposal aligns with the time frame
currently authorized in accordance with
DOT–SP 21104. As proposed, PHMSA
considers a ‘‘business day’’ to mean a
day that the operator of the cargo tank
motor vehicle is open and operating in
commerce. Therefore, if a cargo tank
carrying gasoline is unloaded and
subsequently filled with a fuel with a
higher flash point, ‘‘1203’’ may only
continue to be displayed on the cargo
tank for that day and the following day
that the operator is open and operating.
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26 See DOT–SP 21104: https://
www.phmsa.dot.gov/hazmat/documents/offer/
SP21104.pdf/2021014464/SP21104.
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To ensure compliance with this
requirement, PHMSA anticipates the
use of shipping paper records (see
§ 177.817(f)) to verify which petroleum
distillates were transported in the cargo
tank during the previous or current
business day. PHMSA requests
comment on the functionality of this
proposed exception for the previous or
current business day of petroleum
distillate fuels.
In this new entry in the § 172.336(c)
table, PHMSA also proposes to include
specific requirements when transporting
gasoline and alcohol fuel blends
consisting of more than 10% ethanol.
Specifically, due to different emergency
response procedures for liquid
petroleum distillate fuels containing
more than 10% ethanol and as currently
required in the fifth row in the
§ 172.336(c) table, PHMSA proposes
that if the cargo tank contains gasoline
and alcohol fuel blends consisting of
more than 10% ethanol, the UN ID
number ‘‘3475’’ or ‘‘1987,’’ as
appropriate, must be displayed.
Additionally, the UN ID numbers
‘‘3475’’ or ‘‘1987’’ may only be
displayed if a gasoline and alcohol fuel
blend consisting of more than 10%
ethanol is present in the cargo tank
during transportation. This means that
‘‘3475’’ or ‘‘1987’’ may not be displayed
even if it is the lowest flash point
petroleum distillate fuel and the cargo
tank transported the fuel in a different
trip on the previous or current business
day. Therefore, if the lowest flash point
liquid petroleum distillate fuel
transported in the cargo tank in different
trips on the previous or current business
day is a gasoline and alcohol fuel blend
consisting of more than 10% ethanol—
and this material is not present in the
cargo tank for that trip—the carrier must
display the UN ID number of either the
next lowest flash point liquid petroleum
distillate fuel carried in a different trip
on the previous or current business day
or the liquid petroleum distillate fuel
currently being transported in the cargo
tank.
Additionally, as an accompanying
amendment, PHMSA proposes to revise
the fifth row of the § 172.336 table to
specify that the exception provided in
that row only apply to compartmented
cargo tanks or compartmented tank cars.
This proposed change distinguishes a
compartmented cargo tank (or tank car)
transporting more than one petroleum
distillate fuel in the same trip (fifth row)
from a cargo tank transporting more
than one petroleum distillate fuel in
different trips on the current or previous
business day (sixth row). This clearly
distinguishes the marking exception
that applies to a compartmented tank
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that transport multiple fuels of differing
flashpoints at one time, and the
exception that applies to a cargo tank
(single or multi-compartment) that is
used to transport fuels of differing
flashing points during the course of
business on current or previous
business day.
PHMSA requests comments related to
specific, articulable safety or cost
concerns associated with this proposed
amendment. PHMSA notes that for
NA1993, UN1202, UN1203, UN1223,
and other petroleum distillate fuels, the
ERG directs the reader to the same guide
page for initial emergency response
measures, and PHMSA further requests
information from emergency responders
describing how emergency response
would differ for an accident involving a
cargo tank motor vehicle marked
‘‘1993,’’ ‘‘1202,’’ ‘‘1203,’’ ‘‘1223,’’ or
another UN ID number associated with
a petroleum distillate fuel. Finally,
PHMSA requests information on any
known incidents where emergency
response was impacted negatively due
to a cargo tank motor vehicle displaying
‘‘1203’’ when it was transporting a
petroleum distillate fuel with a higher
flash point.
E. P–1712
In petition for rulemaking P–1712,27
the Chlorine Institute (CI) requested
PHMSA delete § 173.315(i)(13) from the
HMR. This change would remove the
requirement to install Crosby pressure
relief devices (PRDs) on chlorine cargo
tanks, thus providing flexibility by
authorizing the use of alternative PRDs
meeting the requirements of
§ 173.315(i). The petition for rulemaking
also outlined the current use of the
Midland PRD on chlorine cargo tanks
under the authority of DOT–SPs 9694
and SP–10457. CI noted that the
Midland PRD meets the requirements in
§ 173.315(i) and is incorporated in CI’s
Pamphlet 49, ‘‘Recommendation
Practices for Handling Chlorine Bulk
Highway Transporters.’’ Furthermore, in
their petition for rulemaking, CI notes
that since the requirement was
established in § 173.315(i), Midland
Manufacturing entered the chlorine PRD
market. This expanded market was
reflected in CI Pamphlet 49, but it was
not reciprocated in the HMR, except by
special permit.
After reviewing this petition for
rulemaking, PHMSA proposes to allow
use of the Midland PRD under
§ 173.315(i) but does not propose to
delete the specific limitations on the
type of PRD authorized. PHMSA will
27 See petition for rulemaking P–1712: https://
www.regulations.gov/docket?D=PHMSA-2018-0022.
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continue to work with CI to develop
generally applicable specifications for
PRDs used on cargo tanks transporting
inhalation hazards. Therefore, for the
purpose of this rulemaking, PHMSA
only considered the inclusion of the
PRD specifications that are already
outlined in CI Pamphlet 49 and we do
not propose the deletion of
§ 173.315(i)(13) in its entirety. Instead,
PHMSA proposes to revise § 173.315(i)
to specify that the PRD on a chlorine
cargo tank must conform to one of the
drawings in CI Pamphlet 49, which
would allow for the use of the Midland
PRD in addition to the Crosby PRD.
PHMSA expects that this will provide
for additional regulatory flexibility in
selection of a PRD while maintaining
the current level of safety.
F. P–1724
In petition for rulemaking P–1724,28
the Greenbrier Companies requested
PHMSA revise § 179.100–12 to allow for
an alternative means of connecting the
manway protection housing to the tank
car. Currently, the HMR require the
protective housing that shields the
valves and fittings on top of pressure
cars to be bolted to the manway cover.
The petition for rulemaking asks that
the connection be alternatively made
between the protective housing and the
manway reinforcing pad. This
alternative allows the protective
housing to be bolted to a flange
connected to the manway reinforcing
pad with not less than twenty 3⁄4-inch
studs. After reviewing the petition for
rulemaking, PHMSA agrees there is
merit in making this proposed revision
as it will provide regulatory flexibility
without reducing the safety of attaching
the manway protection housing to a
tank car. This alternative method is
currently only authorized in DOT–SPs
14832 and 20607. Therefore, PHMSA
proposes to revise § 179.100–12 to
permit the use of an alternative means
of connecting the manway protection
housing to the tank car.
G. P–1735
In petition for rulemaking P–1735,29
TTMA requested PHMSA amend
§§ 173.33(d)(3) and 180.405(h)(3) to
remove requirements referring to the
venting capacity of the original
specification for the MC cargo tank
motor vehicles with upgraded pressure
relief valves.
After reviewing this petition for
rulemaking, PHMSA agrees with the
28 See petition for rulemaking P–1724: https://
www.regulations.gov/docket?D=PHMSA-2018-0111.
29 See petition for rulemaking P–1735: https://
www.regulations.gov/docket?D=PHMSA-2019-0132.
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position of the petitioner regarding the
error made in the preamble in final rule
HM–218H,30 but does not agree that a
regulatory change to §§ 173.33(d)(3) and
180.405(h)(3) is necessary. In final rule
HM–218H, PHMSA responded to a
number of appeals to the final rule. In
the preamble, PHMSA incorrectly stated
that the PRD set pressure must be to the
original specification when upgrading
or modifying the PRDs on a MC 300
series cargo tank motor vehicle. PHMSA
has previously and subsequently
addressed this issue via letters of
interpretation and clarified that the
upgraded or modified PRD on a MC 300
series cargo tank motor vehicle must
meet all requirements of § 178.345–10,
including set pressure (see Letters of
Interpretation Reference Nos. 16–0183
and 18–0118). As such, while PHMSA
agrees with the position of the
petitioner, PHMSA finds that no
amendments are necessary as the
petition for rulemaking was predicated
on the incorrect language included in
the preamble to HM–218H.
III. Overview
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A. Rail
PHMSA, in conjunction with FRA,
proposes numerous revisions to the
HMR related to transportation of
hazardous materials by rail. These
proposed revisions will provide greater
clarity for hazardous materials rail
carriage requirements and remove
regulatory barriers to efficient operation
without diminishing safety. PHMSA
proposes the following amendments:
Related to the proposed amendments
offered by RSAC (see ‘‘Section II.A.
RSAC’’ for additional discussion),
PHMSA proposes:
• In § 171.7, update the IBR of the
AAR Manual of Standards and
Recommended Practices, Section C—
Part III, Specifications for Tank Cars,
Specification M–1002, (AAR
Specifications for Tank Cars), to the
November 2014 edition from the 2000
edition;
• In § 171.7, separate the IBR of the
AAR Manual of Standards and
Recommended Practices, Section C—
Part III, Specifications for Tank Cars,
Specification M–1002 into its
component chapters and appendices,
except for Appendix B, Appendix L,
and Appendix U, as discussed in
‘‘Section II.B.6. AAR Specifications for
Tank Cars Incorporation by Reference’’;
• In § 171.7, update the edition of the
AAR Manual of Standards and
Recommended Practices, Section C—II
Specifications for Design, Fabrication
30 83
FR 28162 (Jun. 18, 2018).
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and Construction of Freight Cars,
Chapter 5 to the 2011 edition from the
1988 edition;
• In § 172.101, editorially revise the
description of Column 9A ‘‘Passenger
aircraft/rail’’ to clarify the meaning for
rail transportation;
• In § 172.820, add an exception for
route planning for circumstances where
no practicable alternative route exists;
• In § 173.31(d), add requirements for
tank car closure instructions;
• In § 173.31(g), clarify securement
requirements for tank car loading and
unloading;
• In § 174.9, revise the safety and
security inspection requirements;
• In § 174.14, add exceptions to the
requirement for tank car movements to
be expedited for certain unavoidable
delays;
• Remove and reserve § 174.16,
because the requirements for removal
and disposition of certain explosives are
obsolete;
• Remove and reserve § 174.20
because the reporting to the Bureau of
Explosives for local and carrier
restrictions is unnecessary;
• In § 174.24, clarify requirements for
providing shipping papers to an
authorized official;
• In § 174.50, revise the OTMA
requirements to align with current FRA
policy;
• In a new § 174.58, clarify the
meaning of ‘‘extent practicable’’ as used
in the § 171.8 definition of residue;
• In § 174.59, revise requirements for
replacing lost placards;
• In § 174.63, make editorial revisions
and expand the types of packages and
materials eligible for COFC and TOFC
service without an approval from FRA;
• In § 174.67, revise the transloading
requirements to create a performancebased system, rather than the current
prescriptive requirements;
• In Appendix B to part 179, revise
the torch and pool fire testing
provisions to improve industry
understanding of the requirements; and
• In § 180.503, revise the definitions
of tank car owner, coating/lining owner,
and service equipment owner to more
accurately reflect the complex business
arrangements commonly in use.
Related to AAR delegated authority
amendments (see ‘‘Section II.B. AAR
Authority to Approve the Design of
Tank Cars and Approve Quality
Assurance Programs’’ for additional
discussion), PHMSA proposes:
• In a new subpart J in part 107, add
tank car facility and tank car DCE
registration, with the ability to modify,
suspend, or terminate the registration
for cause;
• In §§ 107.1, 107.105, and 107.701,
revise procedural requirements to
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accommodate the proposed new subpart
J;
• In § 171.7, incorporate by reference
AAR Manual of Standards and
Recommended Practices, Section C—
Part III, Specifications for Tank Cars,
Specification M–1002 Chapter 3 into
§§ 173.241, 173.242, and 173.247;
• In § 171.8, revise the definition of
Design Certifying Engineer to create a
parallel definition for tank car DCEs;
• In § 179.2, revise the definitions for
approved and tank car facility and add
definitions for component and tank car;
• In § 179.2, add introductory text to
indicate that terms defined in § 180.503
also apply to part 179 to address
confusion with defined terms in these
related regulatory parts;
• In § 179.3, remove the requirement
for AAR TCC approval of tank car and
service equipment designs, and replace
it with approval by a DCE;
• In § 179.4, revise the process for
designing and seeking approval of a
design of a new tank car specification;
• In § 179.5, remove the tank car
certification of construction requirement
and replace it with a Design Approval
Certificate (DAC). PHMSA also proposes
to describe the information that must be
included in a DAC for both tank cars
and service equipment;
• In § 179.6, indicate that AAR
approval is no longer required for
repairs;
• In § 179.7, remove the requirement
for AAR approval of the QAP and make
revisions intended to clarify the intent
of the applicability of the QAP
requirement;
• In § 179.11, add a reference to AAR
Specifications for Tank Cars in
Appendix W, except section 1.2, for
welding requirements;
• In § 179.24, remove reference to
AAR Form 4–2 in conformance with the
replacement of the certificate of
construction with the DAC;
• Throughout the HMR, including
§§ 172.102, 173.31, and 173.314, and
parts 179–180, remove all references to
approval by AAR and replace with a
reference to an approval by a DCE;
• In part 179, indicate that
compliance with paragraph 1.2 of
Appendix W of the AAR Specifications
for Tank Cars is not required;
• In §§ 179.100–9, 179.200–10, and
179.220–10, remove the sentence
requiring that welding procedures,
welders, and fabricators be approved;
• In §§ 179.220–15 and 179.400–13,
remove the requirement for design
approval for tank cushioning systems;
• In § 179.400–6, correct an editorial
reference to the incorrect IBR material;
• In §§ 179.500–17 and 179.500–18,
revise recordkeeping requirements to
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remove obsolete references to the
Bureau of Explosives;
• In § 180.501, replace ‘‘owner’s
qualification program’’ with ‘‘owner’s
qualification and maintenance program’’
to maintain alignment with the scope of
part 180, subpart F, and the other
references to ‘‘qualification and
maintenance program’’ in §§ 179.7 and
180.513;
• In § 180.503, revise the definitions
for maintenance, modification,
qualification, and service equipment;
• In § 180.509(i), clarify the
inspection requirements for linings and
coatings;
• In § 180.513, revise the
responsibilities of tank car owners; and
• In § 180.517, revise the section to
reflect the removal of the certificate of
construction and its replacement with
the DAC.
Related to PHMSA initiated editorial
clarification, PHMSA proposes to:
• In § 174.81, revise explosive
segregation requirements to align with
current highway and vessel
requirements.
Related to NTSB Safety
Recommendation R–19–001, PHMSA
proposes to:
• In § 171.7, incorporate by reference
AAR Specifications for Tank Cars
Chapter 2, section 2.2.1.2 into
§ 179.102–3 to require Charpy impact
testing for shell and head material of
pressure tank cars used for poisonousby-inhalation material.
Related to NTSB Safety
Recommendation R–12–007, PHMSA
proposes to:
• In § 179.10, incorporate by
reference AAR Specifications for Tank
Cars Chapter 6, to require compliance
with AAR’s redesigned center and draft
sill attachment requirements.
B. Highway
PHMSA, in conjunction with FMCSA,
proposes numerous revisions to the
HMR related to transportation of
hazardous materials by highway (i.e.,
motor vehicle). PHMSA expects these
proposed revisions to enhance the safe
transportation of hazardous materials by
highway while providing greater clarity
and regulatory flexibility. In addition to
various other revisions to the HMR,
PHMSA proposes the following
amendments:
• In part 107, subpart F, revise the
registration requirements to allow for
electronic submission procedures;
• In part 107 subpart F, create cargo
tank facility modification, suspension,
and termination procedures;
reconsideration of modification,
suspension, and termination
procedures; and appeal of modification,
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suspension, and termination
procedures;
• In § 171.7, revise editorially the
ASTM D 1838–64 IBR document to
include reference to the 1968 reapproval
date;
• In § 171.7, update the Compressed
Gas Association (CGA) Technical
Bulletin P–26 (formerly TB–2) IBR
document to the 1997 edition;
• In § 171.7, replace current
incorporation by reference of CI
drawings with the entire CI Pamphlet
49, which would include the use of the
Midland Type PRD for chlorine cargo
tank in § 173.315;
• In the § 172.336(c) table, add a sixth
row to specify that a cargo tank may
display the UN ID number of the
petroleum distillate fuel with the lowest
flash point transported in different trips
on the previous or current business day,
except for gasoline and alcohol fuel
blends with more than 10% ethanol;
• In §§ 173.150(f)(3)(viii) and
177.837(c), require bonding and
grounding when preparing to transfer or
transferring a combustible liquid, or a
flammable liquid reclassified as a
combustible liquid, from a cargo tank
motor vehicle, in addition to the current
requirements for flammable liquids;
• In § 177.816(c) and (d), clarify the
use of tank vehicle endorsement or
hazardous materials endorsement
training to fulfill the hazardous
materials training requirements of
§§ 172.704 and 177.816;
• In § 177.835, clarify that a
multipurpose bulk truck may not be
used in combination with any cargo
tank that is required to be marked or
placarded under § 177.823;
• In § 177.840, clarify that the
requirements apply to external selfclosing stop valves in addition to the
current requirement of internal selfclosing stop valves;
• In § 178.320, revise definitions for
cargo tank, cargo tank motor vehicle,
and minimum thickness and add
definitions for: cargo tank motor vehicle
certification date, component, flexible
connector, lading retention system,
lining, name plate, original test date,
sacrificial device, shear section, and
specification plate;
• In § 178.337–1(d), allow the use of
other external coverings besides paint;
• In §§ 178.337–8, 178.338–11, and
178.345–11, specify that mechanical
means of remote closure for manual
operation must not be obstructed to
prevent access to or operation of remote
means of closure in an emergency;
• In §§ 178.337–10 and 178.338–10,
clarify that the exception in § 393.86 for
wheels back vehicles does not apply;
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• In §§ 178.337–17 and 178.338–18,
revise the specification plate attachment
requirement so that the specification
plate must be permanently attached to
the cargo tank or its integral supporting
structure, instead of the cargo tank
motor vehicle chassis rail;
• In §§ 178.337–18 and 178.338–19,
specify that when the cargo tank motor
vehicle is brought into full compliance,
the specification plate is marked with
the cargo tank motor vehicle
certification date;
• In § 178.338–19, revise the
certification language so that it more
closely mirrors certification language for
other DOT specification cargo tank
motor vehicles;
• In § 178.345–1, remove definitions
that are also defined in § 178.320;
• In § 178.345–14, clarify that when
there is no limit for the maximum
loading or unloading rate in gallons per
minute, the specification mark may be
marked ‘‘NONE’’ or ‘‘OPEN MH’’;
• In § 180.403, add definitions for
cargo tank maintenance, certification
plate, objectively reasonable and
articulable belief, and set pressure, and
revise the definition of repair;
• In a new paragraph in
§ 180.405(b)(3), provide instruction on
the replacement of cargo tank and cargo
motor vehicle specification plates;
• In a new § 180.407(a)(7), specify
that all equipment and instruments used
to test cargo tanks must be calibrated,
with appropriate documentation, in
accordance with the manufacturer’s
instructions;
• In a new § 180.407(a)(8), allow for
the use of video cameras or video optics
equipment for any inspection or test;
• In a new § 180.407(a)(9), require
that cargo tank motor vehicle pressure
tests conducted tested at a pressure
higher than 50 psi be done with the
hydrostatic method, except for DOT
Specification MC 338 cargo tanks used
to transport cryogenic liquid;
• In a new § 180.407(a)(10), require
that the Registered Inspector consult
with the owner or motor carrier, as
appropriate, to determine if materials
corrosive or reactive to the cargo tank or
its components were transported in the
cargo tank motor vehicle since the last
test or inspection, and ensure that the
proper tests and inspections, along with
suitable safeguards, are used;
• In a new § 180.407(a)(11), require
that all sources of spark, flame, or
glowing heat within the area in which
the tests and inspections are conducted
are extinguished, made inoperable, or
rendered explosion-proof prior to all
functions that are performed;
• In § 180.407(b), include ‘‘bulges’’ in
the list of conditions that may render a
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cargo tank unsafe for hazardous
materials service;
• In § 180.407(b)(5), replace
‘‘reasonable doubt’’ with ‘‘objectively
reasonable and articulable belief’’ to
create a more consistent standard
describing those circumstances in
which a cargo tank—or series of cargo
tanks—may be required to be tested and
inspected outside of the normal test and
inspection interval;
• In § 180.407(d)(2)(i), specify that the
tank shell and head must be evaluated
in accordance with § 180.411 and that
during inspection of the cargo tank shell
and heads, all pad attachments on either
the cargo tank shell or head shell shall
be inspected for method of attachments;
• In §§ 180.407(d)(2)(ix) and
(g)(1)(iii), add an exception that the
upper coupler must be removed if there
are obstructions immediately above the
cargo tank shell that prevent the upper
coupler from being directly inspected;
• In a new paragraph § 180.407(d)(7),
add inspection and maintenance
requirements for external ring stiffeners
installed on a cargo tank motor vehicle
constructed of metal other than mild
steel or high-strength low-alloy steel;
• In a new paragraph § 180.407(d)(8),
clarify inspection and verification
requirements for welded repairs;
• In § 180.407(f)(2), add
documentation requirements for linings
from the lining manufacturer or
installer;
• In § 180.407(f)(3), add a
requirement that when the degraded or
defective areas of the cargo tank lining
are repaired or if the lining is replaced,
it must comply with lining
manufacturer or installer procedures;
• In § 180.407(h)(4), specify that the
test pressure of the delivery hose
assembly must be at least 80 percent of
the Maximum Allowable Working
Pressure (MAWP) of the cargo tank;
• In § 180.407(i)(4)(v), specify that
thickness testing must be performed on
areas around shell reinforcements,
including evenly distributed areas
around all ring stiffeners and those areas
in the bottom half of the cargo tank;
• In § 180.407(i)(6)(i), specify that the
supplemental Certificate of Compliance
that includes the minimum thickness
issued by the DCE must be provided to
the CTMV owner;
• In a new § 180.409(a)(4), clarify that
the person performing or witnessing the
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inspections and tests must meet the
training requirements of part 172
subpart H;
• In the § 180.411(b) list, include
bulges as an additional condition
requiring evaluation;
• In new § 180.411(h), specify
conditions requiring removal from
service and methods in which a cargo
tank motor vehicle can be returned to
service;
• In new § 180.411(i), specify that
when required, emergency discharge
control systems on a DOT Specification
MC 330, MC 331, or a non-specification
cargo tank motor vehicle operating
under the provisions of § 173.315(k)
must be present and functioning before
passing any test or inspection; and
• In § 180.415(b), require that, unless
already marked, the cargo tank
registration number of the cargo tank
facility performing the test or inspection
must be marked on the cargo tank.
C. Vessel
PHMSA proposes several revisions to
the requirements for transporting
hazardous materials by vessel. These
proposals are intended to increase
transportation efficiency, increase
harmonization with the International
Maritime Dangerous Goods (IMDG)
Code, and editorially revise the HMR
while maintaining the high level of
safety of vessel transport. The following
proposals were developed in
conjunction with the United States
Coast Guard (USCG):
• In § 171.23(b)(5) and (b)(5)(iii),
revise requirements for communicating
the presence of hazardous substances by
clarifying that only non-bulk packages
are required to be marked with the
letters ‘‘RQ’’ (to signify a reportable
quantity), and the name of the
hazardous substance, consistent with
§ 172.324;
• In new § 172.504(b)(2), remove the
authorization to use the
‘‘DANGEROUS’’ placard for vessel
transportation to reduce confusion and
delays;
• In part 176, editorially revise the
office identifier of the Coast Guard
Commandant for Operating and
Environmental Standards to the
identifier for the Office of Design and
Engineering Standards;
• In § 176.84(a), clarify editorially
that hazardous materials transported in
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accordance with a limited quantity
exception are not subject to the stowage
codes assigned by Column (10B) of the
§ 172.101 Table; and
• In § 176.905, add an exception for
vehicles stored onshore incidental to
vessel transportation to align with
similar exceptions offered to highway
and rail transportation of vehicles.
D. Multi-Modal
PHMSA proposes several revisions
that affect multiple modes of
transportation. These proposals enhance
safe transportation of hazardous
materials and were developed in
conjunction with the FRA, FMCSA, and
USCG. Proposals include:
• In § 171.22(f)(4), clarify
requirements for providing hazardous
material shipping paper information
during inspections;
• In § 172.102, revise special
provision 13 to identify more clearly
that security plan requirements apply;
• In the § 172.336(c) table, more
clearly identify that the exception in the
fifth row of the table applies only to
compartmented cargo tanks or tank cars
carrying more than one petroleum
distillate fuel;
• In § 172.704(e)(1), provide an
exception (including an editorial
correction) for hazmat employees who
manufacture, repair, modify,
recondition, or test packagings, and who
do not perform any other function, from
security awareness training
requirements;
• In Appendix C to part 172, revise
the recommended placard holder
dimensions to be consistent with the
current placard size requirements, and
in § 172.516(d), clarify that the current
placard holder is an authorized placard
holder; and
• In § 173.159(e), clarify that wet
batteries must be loaded or braced to
secure the batteries against shifting
while in transportation and require that
the offeror ensure that persons loading
the batteries have knowledge of the
conditional provisions for exceptions
from the general requirements of the
HMR.
IV. Section-by-Section Review
The following table identifies the
sections and mode(s) of transportation
affected by the proposed changes in this
NPRM.
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TABLE 2—SECTIONS AFFECTED BY
THIS NPRM
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Section affected
§ 107.1 .......................
§ 107.105 ...................
§ 107.502 ...................
§ 107.503 ...................
§ 107.505 ...................
§ 107.506 ...................
§ 107.507 ...................
§ 107.701 ...................
§ 107.901 ...................
§ 107.903 ...................
§ 107.905 ...................
§ 107.907 ...................
§ 107.909 ...................
§ 107.911 ...................
§ 107.913 ...................
§ 107.915 ...................
§ 171.6 .......................
§ 171.7 .......................
§ 171.8 .......................
§ 171.22 .....................
§ 171.23 .....................
§ 172.101 ...................
§ 172.102 ...................
§ 172.303 ...................
§ 172.328 ...................
§ 172.336 ...................
§ 172.504 ...................
§ 172.516 ...................
§ 172.704 ...................
§ 172.820 ...................
Appendix C to Part
172.
§ 173.31 .....................
§ 173.150 ...................
§ 173.159 ...................
§ 173.241 ...................
§ 173.242 ...................
§ 173.247 ...................
§ 173.314 ...................
§ 173.315 ...................
§ 173.320 ...................
§ 174.9 .......................
§ 174.14 .....................
§ 174.16 .....................
§ 174.20 .....................
§ 174.24 .....................
§ 174.50 .....................
§ 174.58 .....................
§ 174.59 .....................
§ 174.63 .....................
§ 174.67 .....................
§ 174.81 .....................
§ 176.2 .......................
§ 176.84 .....................
§ 176.340 ...................
§ 176.905 ...................
§ 177.801 ...................
§ 177.804 ...................
§ 177.816 ...................
§ 177.835 ...................
§ 177.837 ...................
§ 177.840 ...................
§ 177.841 ...................
§ 178.320 ...................
§ 178.337–1 ...............
§ 178.337–2 ...............
§ 178.337–3 ...............
§ 178.337–8 ...............
§ 178.337–9 ...............
§ 178.337–10 .............
VerDate Sep<11>2014
TABLE 2—SECTIONS AFFECTED BY
THIS NPRM—Continued
Mode of
transportation
Rail.
Rail.
Highway.
Highway.
Highway.
Highway.
Highway.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Multi-modal.
Multi-modal.
Multi-modal.
Vessel.
Vessel.
Rail.
Multi-modal.
Multi-modal.
Highway.
Multi-modal.
Vessel.
Multi-modal.
Multi-modal.
Rail.
Multi-modal.
Rail.
Highway.
Multi-modal.
Rail.
Rail.
Rail.
Rail.
Highway.
Multi-modal.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Vessel.
Vessel.
Vessel.
Vessel.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
18:14 Oct 25, 2024
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Section affected
§ 178.337–17 .............
§ 178.337–18 .............
§ 178.338–3 ...............
§ 178.338–10 .............
§ 178.338–11 .............
§ 178.338–18 .............
§ 178.338–19 .............
§ 178.345–1 ...............
§ 178.345–3 ...............
§ 178.345–8 ...............
§ 178.345–11 .............
§ 178.345–13 .............
§ 178.345–14 .............
§ 178.345–15 .............
§ 178.348–1 ...............
§ 179.2 .......................
§ 179.3 .......................
§ 179.4 .......................
§ 179.5 .......................
§ 179.6 .......................
§ 179.7 .......................
§ 179.10 .....................
§ 179.11 .....................
§ 179.24 .....................
§ 179.100–9 ...............
§ 179.100–10 .............
§ 179.100–12 .............
§ 179.100–18 .............
§ 179.102–3 ...............
§ 179.103–5 ...............
§ 179.200–7 ...............
§ 179.200–10 .............
§ 179.200–11 .............
§ 179.200–17 .............
§ 179.200–22 .............
§ 179.220–10 .............
§ 179.220–11 .............
§ 179.220–15 .............
§ 179.220–18 .............
§ 179.300–9 ...............
§ 179.300–10 .............
§ 179.400–5 ...............
§ 179.400–6 ...............
§ 179.400–11 .............
§ 179.400–12 .............
§ 179.400–13 .............
§ 179.400–15 .............
§ 179.400–18 .............
§ 179.400–19 .............
§ 179.500–17 .............
§ 179.500–18 .............
Appendix B to Part
179.
§ 180.3 .......................
§ 180.403 ...................
§ 180.405 ...................
§ 180.407 ...................
§ 180.409 ...................
§ 180.411 ...................
§ 180.413 ...................
§ 180.415 ...................
§ 180.416 ...................
§ 180.501 ...................
§ 180.503 ...................
§ 180.509 ...................
§ 180.513 ...................
§ 180.517 ...................
Appendix D to Part
180.
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Frm 00017
Fmt 4701
Mode of
transportation
The following is a section-by-section
review of the proposed amendments:
Part 107
Section 107.1
Section 107.1 is the definition section
for Part 107—‘‘Hazardous Materials
Programs Procedures.’’ The definition of
‘‘registration’’ currently states that, ‘‘For
purposes of subparts A through E,
‘‘registration’’ does not include
registration under subpart F or G of this
part.’’ In this NPRM, we propose to add
a reference to the new subpart J for tank
car facility and tank car DCE registration
to the existing references to subpart F or
G. This will ensure that the registration
requirements of subpart J for tank car
facilities and DCEs are not confused or
conflated with other registration
requirements in Part 107. See also our
discussion in ‘‘Section II.B.5 Tank Car
Facility and Design Certifying Engineer
Registration’’ for additional information.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Section 107.105
Section 107.105 contains the general
information and supporting
documentation requirements for special
permit applications. Paragraph (a)(5)
requires that special permit applicants
who hold a registration under subparts
F or G of Part 107 must include their
registration number in their special
permit application. PHMSA proposes to
add a reference to the new subpart J to
paragraph (a)(5), to require that tank car
facilities or tank car DCEs who submit
a special permit application to PHMSA
include their registration number. This
will allow PHMSA to more easily crossreference tank car facility or DCE
registration records with the special
permit request. See also our discussion
in ‘‘Section II.B.5 Tank Car Facility and
Design Certifying Engineer Registration’’
for additional information.
Section 107.502
Multi-modal.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Highway.
Rail.
Rail.
Rail.
Rail.
Rail.
Rail.
Sfmt 4702
85605
Section 107.502 details general
registration requirements for persons
who are engaged in the manufacture,
assembly, inspection and testing,
certification, or repair of a cargo tank or
a cargo tank motor vehicle
manufactured in accordance with a DOT
specification or a special permit.
Paragraph (a)(3) specifies reference
citations to certain terms used in the
HMR. PHMSA proposes to add a
reference to the definition of
modification, which is currently found
in § 180.403. In addition—and as
detailed later in this rulemaking—
PHMSA proposes to add a definition of
component to § 178.320(a) and a
definition of maintenance to § 180.403,
and PHMSA proposes to reference these
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
terms in paragraph (a)(3). Additionally,
PHMSA proposes to add references to
these definitions as they are all related
to the cargo tank registration program
and the references will provide greater
understanding of the registration
requirements. See ‘‘Section IV. Sectionby-Section Review; Part 178; Section
178.320’’ and ‘‘Section IV. Section-bySection Review; Part 180; Section
180.403’’ for further discussion of the
proposed definitions.
PHMSA also proposes to add
paragraphs (a)(4) through (a)(9) to
specify definitions for fixed test and
inspection facility, FMCSA Agency
Decisionmaker, FMCSA Agency Official,
mobile tester, mobile testing and mobile
test and inspection unit. The definitions
of fixed test and inspection facility,
mobile tester, mobile testing, and mobile
test and inspection unit are proposed to
provide additional clarity and to help
distinguish between fixed facilities and
mobile testing units. As currently
required, the registration statement must
specify ‘‘whether the facility uses
mobile testing/inspection equipment’’
(see § 107.503(a)(3)). However, the HMR
does not include definitions to help
distinguish these types of operations.
Furthermore, the definitions for FMCSA
Agency Decisionmaker and FMCSA
Agency Official are being proposed as
they are referenced in new §§ 107.505,
107.506, and 107.507, and they align
with FMCSA’s organizational structure.
Paragraph (b) specifies that a person
who is employed as a Registered
Inspector or DCE is considered to be
registered if the person’s employer is
registered. PHMSA proposes minor
editorial changes to specify that the
‘‘inspector’’ is a ‘‘Registered Inspector’’
and capitalize the term ‘‘Design
Certifying Engineer.’’
Paragraph (d) specifies submission
information for registration statements.
PHMSA proposes to revise this
paragraph to include an electronic
method for submitting registration
statements. In addition, PHMSA
proposes to make editorial revisions of
an administrative nature to this
paragraph, including revising the
mailing address for FMCSA.
Paragraph (e) details the applicant’s
receipt of registration statement. The
first sentence specifies that a letter will
be sent to the registrant and will assign
the registrant with a registration
number. The second sentence specifies
that a separate registration number will
be assigned for each cargo tank
manufacturing, assembly, repair facility
or other place of business identified by
the registrant. PHMSA proposes to
revise the first sentence of paragraph (e)
to allow for the registrant letter to be
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sent electronically instead of only in a
hard copy. This will promote electronic
correspondence with FMCSA, which is
faster and more efficient for all parties.
PHMSA also proposes to move the
second sentence of paragraph (e) to a
new paragraph (f), but the regulatory
text within the second sentence will
remain unchanged. The proposed
change provides increased visibility and
emphasis that a separate registration
number will be assigned for each cargo
tank manufacturing, assembly, or repair
facility, or other place of business
identified by the registrant.
Section 107.503
This section specifies the
requirements pertaining to the
registration statement for persons who
are engaged in the manufacture,
assembly, inspection and testing,
certification, or repair of a cargo tank or
a cargo tank motor vehicle
manufactured in accordance with a DOT
specification or a special permit.
PHMSA proposes to revise paragraph
(a)(2) to include an email address for the
facility or place of business, if
applicable (i.e., if they have an email
address). This will promote electronic
correspondence with FMCSA which is
faster and more efficient for all parties.
PHMSA proposes to revise the
statement for compliance in paragraph
(a)(4) to ensure that the person
responsible for compliance certifies that
hazmat employees meet the minimum
qualification requirements set forth in
§ 171.8 for Registered Inspectors or
DCEs, and that they are appropriately
trained and knowledgeable of all the
functions they are registered to perform.
FMCSA notes that one of the top
violations of employers is a lack of
hazmat training of hazmat employees,
including Registered Inspectors or
DCEs. Therefore, the certification
statement is revised to include reference
to training to emphasize the
requirement.
In paragraph (c), PHMSA proposes to
remove the last sentence, as June 30,
1992, has passed and thus, this is an
outdated requirement.
Lastly, PHMSA proposes to add
paragraph (d) to require that each
person who performs the wet
fluorescent magnetic particle exam
submit a copy of their ASME Code
compliant training certificate. The
training is required in both Section V
(Non-Destructive Examinations) and
Section VIII, Division 1 of the ASME
Code. Requiring the certificate will
ensure that FMCSA can verify that each
person who performs the wet
fluorescent magnetic particle exam has
received the appropriate training.
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Section 107.505
This proposed new section provides
for the modification, suspension, or
termination of a cargo tank facility
registration. During 2019, FMCSA
investigations of cargo tank facilities
discovered 254 instances where the
facilities had not been in compliance
with the regulatory requirements, yet
the Department does not have a codified
process to modify, suspend, or
terminate registrations to address lack of
compliance. The proposal to allow the
modification, suspension or termination
of cargo tank facility registrations also
addresses NTSB Safety
Recommendation H–18–005,31 issued
on January 30, 2018. This recommends
that PHMSA revise the HMR to permit
the suspension or termination of
highway cargo tank registrations for
failing to meet the requirements of the
HMR. The safety recommendation was
made after a March 11, 2016, incident
where a cargo tank semitrailer separated
from its truck-tractor and struck a rock.
The impact with the rock breached the
front head of the cargo tank, causing the
lading to spill and a fire to occur.
Although the investigation determined
that the condition of the cargo tank was
acceptable and its performance was
consistent with its design, the
investigation also discovered safety
issues with inspection and testing of
DOT Specification MC330 and MC331
cargo tanks and certification and
training of cargo tank inspectors. The
NTSB concluded that DOT needs to be
able to suspend or terminate a cargo
tank registration to ensure that when
cargo tank facilities perform inadequate
inspections, their authorization to do so
can be terminated. Based on this safety
recommendation, and additional
recognition by FMCSA for the need of
the ability to modify, suspend, or
terminate a cargo tank registration,
PHMSA proposes to add § 107.505
(along with § 107.506 for
reconsideration and § 107.507 for
appeal) to provide this authority.
PHMSA proposes that this modification,
suspension, or termination process in
§ 107.505 be consistent with existing
FMCSA procedures for adjudicating
motor carrier violations.
As proposed in paragraph (a), reasons
for modification, suspension, or
termination include: (1) that because of
a change in circumstance, the
registration is no longer needed or
would not be granted if applied for; (2)
that the application contained
31 See NTSB Safety Recommendation H–18–005:
https://ntsb.gov/safety/safety-recs/_layouts/
ntsb.recsearch/Recommendation.aspx?Rec=H-18005.
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inaccurate or incomplete information
and it would not have been granted had
it included accurate and complete
information; (3) that the application
contained deliberately inaccurate or
incomplete information; or (4) that the
registration holder knowingly violated
the terms of the registration or an
applicable requirement of 49 CFR
Chapter I in a manner demonstrating
lack of fitness to conduct the activity for
which the registration is required. Upon
determination of this modification,
suspension, or termination, and as
proposed in paragraph (b), FMCSA will
notify the registrant in writing or by
electronic means of the proposed action
and allow opportunity to show cause as
to why the proposed action should not
be taken. The registrant will then have
30 days from service of the notice to file
a response to the notice. After
consideration of the response, or after
30 days if no response has been filed,
the FMCSA Agency Official will notify
the registrant of a final decision with a
brief statement of reasons and effective
date of the action.
However, as proposed in paragraph
(d), if a condition of imminent hazard
exists, the FMCSA Agency Official may
issue an immediately effective
emergency order to the registration
holder in accordance with § 109.17 of
this subchapter.
As proposed in paragraph (c), the
rules of practice for FMCSA proceedings
for service and computation of time in
§§ 386.6 and 386.8 of this title apply to
this section, except that electronic
service is permitted.
Section 107.506
This proposed new section provides
for reconsideration of a registration that
was modified, suspended, or terminated
in accordance with proposed § 107.505.
This proposed process is similar to
existing FMCSA procedures. As
proposed in paragraph (a), this request
would be: (1) in writing or by electronic
means and served within 20 days of
service of the original decision; (2) state
in detail any alleged errors of fact, law,
or procedure; (3) state corrective actions
taken, (4) enclose any additional
information needed to support the
request to reconsider; and (5) state in
detail the modification of the final
decision.
As proposed in paragraph (b), the
decision issued under § 107.505 of this
part remains effective pending a
decision on reconsideration. The
FMCSA Agency Official will consider
requests to stay the decision using the
criteria laid out in proposed
§ 107.507(b)(1)–(4). As proposed in
paragraph (c), the FMCSA Agency
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18:14 Oct 25, 2024
Jkt 265001
Official request may request additional
information or documents and, to
ensure that the deficiencies identified as
the basis for the action have been
corrected, may conduct additional
investigation. Furthermore, paragraph
(d) specifies that the FMCSA Agency
Official will grant or deny, in whole or
in part, the relief requested, and the
notification will be made in writing or
by electronic means. As proposed in
paragraph (e), the rules for FMCSA
proceedings for service and
computation of time in §§ 386.6 and
386.8 of this title apply to this section,
except that electronic service is
permitted.
Section 107.507
This proposed new section provides
for an appeal process for a cargo tank
facility that has had its registration
modified, suspended, or terminated by
the Department in accordance with
proposed § 107.505 and has been denied
reconsideration in accordance with
proposed § 107.506. This ensures that
the registrant has been provided due
process. As proposed, the appeal of the
FMCSA Agency Official’s decision is
adjudicated by the FMCSA Agency
Decisionmaker. Similar to §§ 107.505
and 107.506, the language in proposed
§ 107.507 is intended to reflect existing
FMCSA procedures.
As proposed in paragraph (a), the
appeal will be submitted to the FMCSA
Agency Decisionmaker and must: (1) be
in writing and served within 30 days of
receipt of the FMCSA Agency Official’s
decision on the FMCSA Agency
Decisionmaker at the mailing or email
address provided and on all parties to
the proceeding; (2) state in detail any
alleged errors of fact, law, or procedure;
(3) enclose any additional information
needed to support the appeal; and (4)
state in detail the modification of the
final decision sought. Furthermore, as
detailed in paragraph (b), the FMCSA
Agency Official’s action remains
effective pending a decision on appeal,
unless a stay is requested and the
FMCSA Agency Decisionmaker
determines:
(1) There is a substantial likelihood
that the requesting party will prevail on
the merits;
(2) The requesting party will suffer
irreparable injury absent the stay;
(3) The threatened injury outweighs
whatever damage the stay may cause the
opposing party; and
(4) The stay will not harm the public
interest.
As proposed in paragraph (c) the
FMCSA Agency Official, who bears the
burden of proof, will respond to the
appeal within 30 days of service of the
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Sfmt 4702
85607
appeal. Lastly, as proposed in paragraph
(d), the FMCSA Agency Decisionmaker
will grant or deny, in whole or in part,
the relief requested. This decision is the
final agency action.
As proposed, the rules for FMCSA
proceedings for service and
computation of time in §§ 386.6 and
386.8 of this title apply to this section,
except that electronic service is
permitted. This decision is the final
administrative action.
Section 107.701
Section 107.701 contains the
procedural requirements for the
submission of registrations. PHMSA
proposes to add an exception to
paragraph (c) for the new subpart J. This
exception will be applicable to tank car
facilities and tank car DCE registrations.
This aligns with the exception currently
provided in paragraph (c) for subpart F,
for cargo tank facilities and cargo tank
DCEs. It allows tank car facility and tank
car DCE registrations to be handled in
the separate procedural manner
outlined in the proposed subpart J, in
which the registrations will be
submitted to PHMSA, but subject to
termination by FRA. See also our
discussion in ‘‘Section II.B.5 Tank Car
Facility and Design Certifying Engineer
Registration’’ for additional information.
Part 107, Subpart J—‘‘REGISTRATION
OF TANK CAR FACILITIES AND
DESIGN CERTIFYING ENGINEERS’’
PHMSA proposes to create subpart J
in part 107 (§§ 107.901–107.915) for
tank car facility and tank car DCE
registrations. The subpart includes
definitions for terms used in the
subpart, instructions for applying for
registration for both tank car facilities
and DCEs, and means of appeal if a
registration is modified, suspended, or
terminated. See also ‘‘Section II.B.5.
Tank Car Facility and Design Certifying
Engineer Registration’’ for additional
details on the creation of this subpart.
Section 107.901
This proposed new section § 107.901
details the purpose and scope of new
part 107 subpart J. Part 107 subpart J
addresses the registration of tank car
facilities and DCEs. Paragraph (b) details
the threshold requirement that
applicants for registration must be
familiar with the HMR’s requirements
regarding specifications for tank cars
(part 179) and the qualification and
maintenance of tank cars (part 180,
subpart F).
Section 107.903
This proposed new section § 107.903
details terms used in part 107, subpart
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J and includes references to the location
of their definition. The terms that
PHMSA proposes to include in this
section are Design Certifying Engineer
(defined in § 171.8), Qualification
(defined in § 180.503), Tank car
(defined in § 179.2), Tank car facility
(defined in § 179.2), and Tank car tank
(defined in § 180.503). Additionally,
PHMSA proposes to define FRA
Associate Administrator for Safety and
FRA Administrator as used in this
subpart.
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Section 107.905
This proposed new § 107.905 details
the requirements for submitting a tank
car facility registration, including the
information required in the registration
statement and where to send the
information. This section requires all
tank car facilities to register with
PHMSA in order to legally qualify a
DOT specification or special permit tank
car.
In order to register with PHMSA, each
tank car facility is required to provide
a list of the qualification functions the
tank car facility will perform, and
identify the types of DOT specification
or special permit tank cars that they
intend to qualify. Paragraph (b) of this
section prohibits tank car facilities from
performing qualification functions that
have not been identified in the
registration. Each facility must also
submit an executive summary of its
current quality assurance program that
is sufficient to demonstrate compliance
with the requirements set out in § 179.7
in order to complete the registration
process. PHMSA anticipates that this
information will allow for effective
oversight of registered tank car facilities.
Section 107.907
This proposed new § 107.907 details
the requirements for submitting a tank
car DCE registration. This section
requires a DCE to be registered with
PHMSA in order to legally approve the
design of a DOT specification or DOT
special permit tank car, as well as
service equipment, and details the
required information in the registration
statement and where to send the
information. Each registrant is required
to provide a list of the specific design
approval functions that the DCE will
perform and identify the types of DOT
specification and special permit tank
cars and service equipment that the DCE
will review. Paragraph (b) of this section
prohibits design certifying engineers
from performing design approval
functions that have not been identified
in the registration application. The
registrant must also provide the name of
each DCE, and a description of each
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DCE’s experience that shows that they
meet the requirements set out in § 171.8.
PHMSA anticipates that this
information will allow for effective
oversight of registered tank car facilities.
Section 107.909
This proposed new § 107.909 details
the proposed administrative details of
the tank car facility and tank car DCE
registration, including renewal
requirements, requirements to update
PHMSA on changes in activity and
personnel, and record retention. As
proposed, DCE registrations must be
renewed every six years, and registrants
must keep PHMSA updated on changes
in company name, address, ownership,
personnel employed as tank car DCEs,
and design approval activities
performed by the registrant. PHMSA
will inform FRA of these changes.
PHMSA and FRA intend that this
communication will increase our level
of oversight on the activities of
engineers who review and approve tank
car and service equipment designs
compared the existing AAR TCC closed
system. Additionally, non-compliance
with these requirements may create the
basis for revocation of the registration.
This will allow PHMSA and FRA
greater enforcement ability than the
current system, which will lead to an
increased level of safety.
Section 107.911
This proposed new § 107.911 details
the reasons for which FRA may modify,
suspend, or terminate a tank car facility
or DCE registration. As proposed in
paragraph (a), reasons for modification,
suspension, or termination include: (1)
because of a change in circumstances,
the registration is no longer needed or
would no longer be granted if applied
for; (2) that the application contained
inaccurate or incomplete information
and it would not have been granted if
complete or accurate information was
provided; (3) that the application
contained deliberately inaccurate or
incomplete information; or (4) that the
registration holder knowingly violated
the terms of the registration or an
applicable requirement of 49 CFR
Chapter I in a manner demonstrating
lack of fitness to conduct the activity for
which the registration is required. Upon
determination of this modification,
suspension, or termination, and as
proposed in paragraph (b), FRA will
notify the registrant in writing or by
electronic means of the proposed action
and allow opportunity to show cause as
to why the proposed action should not
be taken. The registrant will then have
30 days to file a response to the notice.
After consideration of the response, or
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after 30 days have elapsed with no
response from the registrant, the
Associate Administrator for Safety, FRA
will notify the registrant of a final
decision with a brief statement of
reasons.
However, as proposed in paragraph
(c), if it is necessary to avoid a risk of
significant harm to persons or property,
then the Associate Administrator for
Safety, FRA may declare the proposed
corrective action immediately effective.
Section 107.913
This proposed new § 107.913 details
the proposed process for requesting
reconsideration of FRA’s decision to
modify, suspend, or terminate a tank car
facility or DCE registration. This
proposed process is similar to the
current special permit and approval
reconsideration procedures in
§§ 107.123 and 107.715, respectively. As
proposed in paragraph (a), this request
would be: (1) by electronic means and
filed within 20 days of receipt of the
decision; (2) state in detail any alleged
errors of fact and law; (3) enclose any
additional information needed to
support the request to reconsider; and
(4) state in detail the modification of the
final decision.
As proposed in paragraph (b), newly
submitted information will be
considered if the registration holder can
show that the information could have
not been submitted when the
application was processed.
Furthermore, paragraph (c) specifies
that the Associate Administrator for
Safety, FRA will grant or deny, in whole
or in part, the relief requested, and
allows the Associate Administrator for
Safety, FRA to notify the requesting
party of the decision in writing or by
electronic means.
Section 107.915
This proposed new § 107.915 details
the process for requesting an appeal of
FRA’s decision on reconsideration
regarding a modified, suspended, or
terminated tank car facility or DCE
registration. This will ensure that the
registrant has been provided due
process. The appeal of the Associate
Administrator for Safety, FRA’s decision
will be adjudicated by the FRA
Administrator. Similar to §§ 107.911
and 107.913, the language in § 107.915
mirrors the current appeal process for
DOT special permits and approvals in
§§ 107.125 and 107.717, respectively,
except that the appeal is directed to
FRA, rather than PHMSA.
As proposed in paragraph (a), the
appeal will be submitted to the FRA
Administrator and must: (1) be by
electronic means and filed within 30
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days of receipt of the Associate
Administrator for Safety, FRA’s
decision; (2) state in detail any alleged
errors of fact and law; (3) enclose any
additional information needed to
support the appeal; and (4) state in
detail the modification of the final
decision sought. Furthermore, as
detailed in paragraph (b), the FRA
Administrator may declare the
Associate Administrator for Safety,
FRA’s action remain effective pending a
decision on appeal, if it is necessary to
avoid a risk of significant harm to
persons or property. Lastly, as proposed
in paragraph (c), the FRA Administrator
will grant or deny, in whole or in part,
the relief requested. This decision is the
final administrative action.
Part 171
Section 171.6
Section 171.6 provides information on
the Office of Management and Budget
(OMB) control numbers assigned to
information collection in the HMR
under the Paperwork Reduction Act of
1995. The paragraph (b)(2) table lists all
of the HMR sections associated with
each OMB control number. As this
NPRM proposes to add new information
collection to the regulations, PHMSA
proposes to revise the table to include
the section references where this
information collection request is
specified. In addition, PHMSA proposes
minor editorial revisions for
grammatical consistency. For details on
the affected OMB control numbers, see
‘‘Section V.G. Paperwork Reduction
Act.’’
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Section 171.7
This section details the IBR
documents in the HMR. Paragraph (h)
details IBR documents of the American
Society of Testing and Materials
(ASTM). In paragraph (h)(39), PHMSA
proposes an editorial revision for
standard method ‘‘ASTM D 1838–64
Copper Strip Corrosion by Liquefied
Petroleum (LP) Gases, 1964’’ by adding
the date ‘‘Reapproved 1968.’’ The
current IBR document for the 1964
edition of ASTM 1838–64 has a
reapproved date of 1968, but it is not
specified in § 171.7. Therefore, PHMSA
proposes this editorial amendment to
add this date to provide regulatory
clarity without amending the actual IBR
standard. This standard is available for
purchase at the following online
location: https://webstore.ansi.org/.
Paragraph (k) details IBR documents
of the AAR. In paragraph (k), PHMSA
proposes to revise editorially the AAR
mailing address and website. As
discussed in ‘‘Section II.A. Railroad
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Safety Advisory Committee,’’ PHMSA
proposes to update the edition of and
revise how the AAR Manual of
Standards and Recommended Practices,
Section C—III, Specifications for Tank
Cars, Specification M–1002 (AAR
Specifications for Tank Cars) is
incorporated by reference in the HMR.
Specifically, PHMSA proposes to
update the 2014 edition of the AAR
Specifications for Tank Cars, divide it
into its component chapters and
appendices and incorporate by reference
each chapter and appendix in the
relevant section of the HMR, as agreed
to by the RSAC. This revision provides
more specificity on the relevant AAR
chapters and appendices that are
incorporated by reference throughout
the HMR, instead of generally indicating
the entire manual. Additionally,
PHMSA proposes to update the edition
of the AAR Manual of Standards and
Recommended Practices, Section C—II,
Specifications for Design, Fabrication
and Construction of Freight Cars,
Chapter 5 to the 2011 edition from the
1988 edition, as agreed by the RSAC.
This update also requires updating the
title of the standard from ‘‘AAR
Specifications for Design, Fabrication
and Construction of Freight Cars,’’ to
‘‘AAR Manual of Standards and
Recommended Practices, Section C—II
Specifications for Design, Fabrication
and Construction of Freight Cars’’ and
moving the IBR from § 171.7(k)(4) to
paragraph (k)(1) to align with the
numerical organization of this
paragraph. PHMSA also proposes to
incorporate by reference the updated
2016 edition of the AAR Manual of
Standards and Recommended Practices,
Section C, Car Construction
Fundamentals and Details, Standard S–
286, Free/Unrestricted Interchange for
286,000 lb Gross Rail Load Cars for rail
cars weighing up to 286,000 lbs., as
agreed in RSAC into § 179.13, and move
the current S–286 IBR reference to
§ 171.7(k)(20). These revisions are
intended to update the incorporated by
reference versions of these industry
standards to reflect the current state of
the art.
There are several sections and
appendices from the AAR Specifications
for Tank Cars that were recommended
by the RSAC but are not proposed. This
is because, based on the proposal to
remove AAR as the sole approval for
tank car designs, the incorporation by
reference of these sections and
appendices is not needed in the HMR at
this time. As such, PHMSA does not
propose to IBR Appendix B, Appendix
L, and Appendix U of the AAR
Specifications for Tank Cars into the
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85609
HMR. As a matter of amendatory
instructions, in § 171.7(k), PHMSA
proposes to reserve where the omitted
chapters and appendices would
traditionally be located for future
regulatory flexibility. See ‘‘Section
II.B.6. AAR Specifications for Tank Cars
Incorporation by Reference’’ for
additional details.
PHMSA also proposes to incorporate
by reference the following AAR
documents:
• AAR Manual of Standards and
Recommended Practices, Section C—II
Specifications for Design, Fabrication
and Construction of Freight Cars,
Chapter 6 into § 179.400–6;
• AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars) Chapter 2
in § 179.102–3;
• AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars) Chapter 3
into §§ 173.241, 173.242, and 173.247;
and
• AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars) Appendix
W into § 179.11.
Additional information on the
purpose and intent of these IBRs can be
found in their respective section-bysection discussions. These standards are
available for purchase at the following
online location: https://aarpublications.
com/msrp.html.
Paragraph (l) details IBR documents of
the CI. Currently, paragraphs (l)(3) and
(l)(4) include the IBR drawings for
authorized PRDs for cargo tanks
transporting chlorine. As discussed in
‘‘Section II.E. P–1712,’’ instead of
adding the third drawing found in CI
Pamphlet 49 to § 171.7, PHMSA
proposes to remove the references to the
PRD drawings and incorporate by
reference CI Pamphlet 49 in total. Thus,
PHMSA proposes to revise paragraph
(l)(3) to read ‘‘Pamphlet 49,
Recommended Practices for Handling
Chlorine Bulk Highway Transports,
Edition 10, December 2016, into
§ 173.315’’ and reserving paragraph
(l)(4). This standard is available for
purchase at the following online
location: https://www.chlorineinstitute.
org/products.
Paragraph (n) details IBR documents
of the CGA. In paragraph (n)(21),
PHMSA proposes to update ‘‘CGA
Technical Bulletin TB–2, Guidelines for
Inspection and Repair of MC–330 and
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MC–331 Cargo Tanks, 1980’’ to the 1997
edition, reaffirmed in 2015. The
Technical Bulletin is now titled ‘‘P–26:
Guidelines for Inspection and Repair of
MC–330 and MC–331 Anhydrous
Ammonia Cargo Tanks (formerly TB–
2).’’ PHMSA proposes to incorporate by
reference this newer version because it
directs readers to the correct, relevant
HMR citations and provides clearer
instruction on the guidelines provided
in the standard. For example, many of
the HMR references in the 1980 edition
(i.e., the current IBR) point to part 173;
however, the requirements are now
found in part 180. PHMSA has
reorganized the HMR and, thus, the
citations in the 1980 edition are
inaccurate, and updating to the 1997
edition will provide correct citations.
These standards are available for
purchase at the following online
location: https://www.cganet.com/
standards/.
Section 171.8
Section 171.8 defines terms in the
HMR. PHMSA proposes to amend the
following definitions:
• Cargo tank: PHMSA proposes
several minor editorial revisions to
paragraph (1), which currently defines
the materials a cargo tank is intended to
hold, the encompassing parts of a cargo
tank, and the HMR citations that detail
cargo tank specifications. PHMSA
proposed revisions include:
Æ Add ‘‘solids’’ and ‘‘semi-solids’’ to
the list of materials transported in cargo
tanks, consistent with the § 178.320(a)
definition of cargo tank;
Æ Consistent with the proposal to add
a definition for component, which
includes ‘‘fittings’’ as a type of
component, replace the term ‘‘fittings’’
with the term ‘‘components.’’ See
‘‘Section IV. Section-by-Section Review;
Part 178; Section 178.320’’;
Æ Alphabetize the list of parts of a
cargo tank encompassed in the
definition;
Æ Revise the phrase ‘‘the definition of
a tank’’ to read as ‘‘cargo tank
specifications’’ in the parenthetical
introductory language as this more
accurately describes the section
references list in paragraph (1);
Æ Add a reference to § 178.345–1, as
it is currently not included in the
citation list, but should be included, as
this section details cargo tank
specifications for DOT Specification
406, 407, and 412 cargo tanks.
• Design Certifying Engineer: PHMSA
proposes to make an editorial
amendment to the current cargo tank
DCE definition and add provisions to
account for a tank car DCE. To
accommodate the new criteria for a tank
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car DCE, PHMSA proposes to reorganize
the current cargo tank DCE requirements
from paragraphs (1)–(3) to paragraphs
(1)(i)–(iii). PHMSA also proposes an
editorial amendment in proposed
paragraph (1)(i) to clarify that the one
year of work experience requirement is
a minimum requirement. The definition
currently specifies a person must have
exactly one year of experience in cargo
tank structural or mechanical design
with an engineering degree; however, it
is not PHMSA’s intent to limit this to
only one year of experience. Instead, a
person with at least one year of work
experience in cargo tank structural or
mechanical design, in addition to an
engineering degree, meets the definition
of a DCE for cargo tanks.
Additionally, and as previously
discussed, PHMSA proposes to add
criteria for a tank car DCE. As such,
PHMSA proposes to revise the
introductory paragraph and add
paragraphs (2)(i) and (ii). The proposed
criteria in paragraphs (2)(i) and (ii)
mirror the current cargo tank DCE
criteria in paragraphs (1)(i) and (ii).
Specifically, as proposed, a Design
Certifying Engineer for a tank car is ‘‘a
person registered in accordance with
subpart . . . J of part 107 . . . who has
the knowledge and ability to perform
stress analysis of pressure vessels and
otherwise determine whether a . . .
tank car design and construction meets
the applicable DOT specification.’’ In
addition, a tank car DCE is a person who
either: ‘‘(i) has an engineering degree
and at least one year of work experience
in tank car structural or mechanical
design or (ii) is currently registered as
a professional engineer by an
appropriate authority of a State of the
United States or a province of Canada.’’
See ‘‘Section II.B.2. Tank Car Design
Approval’’ for additional information on
the proposed creation of tank car DCEs
and ‘‘Section II.B.5. Tank Car Facility
and Design Certifying Engineer
Registration’’ for additional details on
proposed registration requirements for
DCEs.
Section 171.22
Section 171.22 authorizes the use of
international dangerous goods
transportation standards in place of the
HMR, subject to the conditions and
restrictions of §§ 171.22 to 171.26,
including use of the International Civil
Aviation Organization’s (ICAO)
Technical Instructions for the Safe
Transport of Dangerous Goods by Air
(Technical Instructions), the IMDG
Code, Transport Canada’s
Transportation of Dangerous Goods
(TDG) Regulations, and the International
Atomic Energy Agency (IAEA)
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Regulations. PHMSA proposes to revise
paragraph (f)(4) to specify that in
addition to retaining a copy of the
shipping paper, a person who provides
for transportation or receives for
transportation a shipping paper must
make the shipping paper readily
accessible for inspection. PHMSA and
its modal partners have determined that
the current shipping paper accessibility
requirements in § 171.22(f)(4) create
unnecessary delays during routine
inspections because these forms are
often made available several hours or
days after the inspections are
conducted. Therefore, PHMSA proposes
to revise paragraph (f)(4) to indicate
more clearly the expectation that
shipping paper information must be
made readily accessible to inspectors or
other authorized individuals during
inspections. This change is intended to
increase safety by improving the ability
of inspectors to conduct their reviews of
hazardous materials shipments and
increase efficiency by facilitating a
quicker return to commerce for
hazardous materials delayed by
inspection. The intent of this revision is
to ensure timely provision of shipping
paper information for inspection of
shipments in transportation (e.g.,
container inspections in port areas).
Access to historic shipping paper
information after transportation has
ended is a separate scenario, and may
have other standards for reasonable
provision of shipping paper information
(e.g., close of business the following
business day for historic rail shipping
paper information). See ‘‘Section IV.
Section-by-Section Review; Part 174;
Section 174.24’’ for further discussion of
historic shipping paper availability in
rail transportation.
Section 171.23
Section 171.23 establishes HMR
requirements for specific materials and
packagings transported under the ICAO
Technical Instructions, IMDG Code,
Transport Canada’s TDG Regulations,
and the IAEA Regulations. PHMSA
proposes to revise the introductory text
of paragraph (b)(5) and paragraph
(b)(5)(iii) to clarify that the letters ‘‘RQ’’
and the name of the hazardous
substance must be marked only on nonbulk packages that contain reportable
quantities of a hazardous substance. The
HMR do not currently require this
marking on bulk packages because
§ 172.324, which requires the ‘‘RQ’’
marking, only applies to non-bulk
packages. However, PHMSA and USCG
understand that international shippers
occasionally misinterpret § 171.23(b) as
requiring this marking on bulk
packagings. This proposed revision is
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intended to decrease burdens on
shippers by clarifying which markings
are required and to avoid confusion in
port areas. Shippers may apply the
letters ‘‘RQ’’ and the name of the
hazardous substance on a bulk
packaging, but PHMSA and USCG
discourage this practice as it might be
unnecessarily confusing and
burdensome.
Part 172
Section 172.101
Section 172.101 lists the HMT and
provides explanatory text on the use of
the table. Paragraph (j) provides
explanatory text about Columns (9A)
and (9B) of the HMT, including an
indication that Column (9A) of the HMT
identifies the maximum quantity of
hazardous materials that may be offered
in one package when transported by
passenger-carrying aircraft or passengercarrying rail car. However, as defined in
§ 171.8, a rail car means a car designed
to carry freight or non-passenger
personnel by rail. Therefore, a
‘‘passenger-carrying rail car’’ is
inconsistent with the definition of a rail
car. PHMSA proposes to revise
editorially § 172.101(j) to indicate
instead that Column (9A) is for the
quantity limitation of passengercarrying aircraft and passenger-carrying
rail. This proposal decreases potential
regulatory confusion without impacting
safety. The proposed language was
approved by consensus vote at the May
25, 2017, RSAC meeting and offered to
PHMSA and FRA for consideration.
Section 172.102
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This section details the meaning and
requirements of the special provisions
listed in Column (7) of the HMT.
Special provision 13 is assigned to
‘‘UN1005, Ammonia, anhydrous, 2.2’’
and ‘‘UN3318, Ammonia solution,
relative density less than 0.880 at 15
degrees C in water, with more than 50
percent ammonia, 2.2.’’ PHMSA
proposes to clarify that these materials
are subject to security plan
requirements. In final rule HM–232F,32
PHMSA specified this stance:
While anhydrous ammonia is classed for
domestic transportation as a Division 2.2
material, it does pose a significant inhalation
hazard and, thus, should be subjected to
safety and security requirements that address
that hazard. [PHMSA] note[s] further that by
requiring security plans for materials that
meet the definition for a material poisonous
by inhalation, all materials that exhibit PIH
characteristics are covered even if they are
not specifically identified in column 3 of the
32 75
FR 10973 (Mar. 9, 2010).
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§ 172.101 table as Division 2.3 or 6.1
materials.
However, as currently written, it is
not clear that security plan requirements
apply to these shipments. Therefore, to
ensure safe transportation of these
hazardous materials, to facilitate
compliance with the HMR, and to
provide additional clarity, PHMSA
proposes to specify that security plan
requirements apply to materials
assigned to special provision 13. This
does not affect the classification of
UN1005 and UN3318, and they may
continue to be placarded with the
Division 2.2 placard for domestic
transportation. Additionally, this
proposed change does not mean that
persons who transport UN1005 or
UN3318 are subject to FMCSA safety
permit requirements; rather, the change
is an explicit reminder that security
plan requirements apply to this
material.
PHMSA also proposes to revise
special provision B45. This special
provision, which is currently assigned
to ‘‘UN1067, Dinitrogen tetroxide, 2.3
(5.1, 8),’’ requires that, ‘‘each tank must
have a reclosing combination pressure
relief device equipped with stainless
steel or platinum rupture discs
approved by the AAR Tank Car
Committee.’’ In conformance with other
proposals throughout this NPRM
regarding AAR TCC approval
requirements, PHMSA proposes to
replace the reference to AAR TCC
approval with a reference to a tank car
DCE approval.
Section 172.303
This section identifies that no person
may offer for transportation or transport
a package marked as a hazardous
material, unless the package contains
that hazardous material, its residue, or
it is excepted in accordance with
paragraph (b) of the section. PHMSA
proposes to add paragraph (b)(4) to
permit the continued display of the
‘‘BIOHAZARD’’, ‘‘HOT’’, or sour crude
oil markings when the hazardous
material is no longer present. Section
172.502(b)(2) currently authorizes this
continued display, as the section
specifies that the display of a
‘‘BIOHAZARD’’, ‘‘HOT’’, or sour crude
oil marking is not a prohibited placard.
However, because § 172.303 does not
include a matching provision to allow
for the continued display of the
‘‘BIOHAZARD’’, ‘‘HOT’’, or sour crude
oil markings, there may be potential
confusion. Therefore, to provide
regulatory clarity and to reinforce the
current authorization, PHMSA proposes
the editorial revision in § 172.303 to
mirror the allowance in § 172.502.
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Section 172.328
Section 172.328 details cargo tank
marking requirements. Paragraph (d)
requires that after October 3, 2005, each
on-vehicle manually activated remote
shutoff device for closure of the internal
self-closing stop valve must have
‘‘Emergency Shutoff’’ marked on the
cargo tank.
PHMSA proposes to add a paragraph
title of ‘‘Emergency shutoff marking’’ to
paragraph (d) to clarify that the
paragraph relates to emergency shutoff
markings. The Office of Federal Register
Document Drafting Handbook provides
instruction that when one section
paragraph has a heading, all of the other
paragraphs in the section should as
well. As the other paragraphs in
§ 172.328 have headings, this editorial
proposal ensures conformity with the
Office of Federal Register Drafting
Document Handbook.
PHMSA proposes to further revise
paragraph (d) editorially. First, PHMSA
proposes to remove the compliance date
of October 3, 2005, from paragraph (d).
As this date has passed, there is no need
for the compliance date to remain in the
paragraph. PHMSA also proposes to add
introductory language to this paragraph
to specify that the emergency shutoff
marking is only required for cargo tank
motor vehicles subject to emergency
remote shutoff device requirements
under the HMR. This is not intended to
add any new regulatory requirements;
instead, it is added to clarify editorially
the applicability of the paragraph.
Lastly, PHMSA proposes to require
that the emergency shutoff marking
requirement applies to both internal and
external self-closing stop valves, instead
of just internal self-closing stop valves.
This proposal addresses a potential
safety gap where an external self-closing
stop valve is on the cargo tank, but it is
not appropriately marked. Thus, both
internal and external self-closing stop
valves can be appropriately identified
and activated during a hazardous
material incident, which leads to an
increase in safety.
Section 172.336
Section 172.336 outlines special
provisions for the display of UN ID
numbers. PHMSA proposes to revise the
§ 172.336(c) table, which provides
scenarios where UN ID numbers are
either not required or an exception
applies. As discussed in ‘‘Section II.D.
Cargo Tank Marking for Petroleum
Distillate Fuels,’’ PHMSA proposes to
add a sixth row to the table to authorize
display of the UN ID number
representing the petroleum distillate
fuel with the lowest flash point that is
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transported in a cargo tank in different
trips on the previous or current business
day. However, due to different
emergency response procedures,
PHMSA also proposes that the
exception is not applicable when the
cargo tank transports gasoline and
alcohol fuel blends consisting of more
than 10% ethanol. This is consistent
with the current requirements in the
fifth row of the table. Specifically,
PHMSA proposes that in this
circumstance, the UN ID numbers
‘‘3475’’ or ‘‘1987’’ must also be
displayed, as appropriate, and the cargo
tank may only display ‘‘3475’’ or ‘‘1987’’
when the material is in the cargo tank.
Therefore, if the liquid petroleum
distillate fuel with the lowest flash
point transported in the cargo tank in
different trips on the previous or current
business day is a gasoline and alcohol
fuel blend consisting of more than 10%
ethanol, and it is not being transported
in the cargo tank, ‘‘3475’’ or ‘‘1987’’ may
not be displayed on the cargo tank. In
this scenario, the cargo tank should
display either the UN ID number of the
liquid petroleum distillate fuel with the
next lowest flash point transported in
different trips on the previous or current
business day or the liquid petroleum
distillate fuel that is being transported.
Lastly, PHMSA proposes to specify
that the exception in the fifth row only
applies to compartmented cargo tanks
and compartmented tank cars. This will
distinguish clearly the fifth and sixth
row exceptions. The fifth row authorizes
the display of the UN ID number of the
petroleum distillate fuel with the lowest
flash point when the cargo tank or tank
car contains more than one petroleum
distillate fuel. The fifth-row exception is
only possible when the cargo tank or the
tank car is compartmented (i.e., it has
multiple compartments each with a
different petroleum distillate fuel).
Therefore, PHMSA proposes to remove
the term ‘‘cargo tank’’ to indicate clearly
the exception only applies to
‘‘compartmented cargo tanks or
compartmented tank cars.’’
Section 172.504
Section 172.504 prescribes the general
requirements for placarding. Paragraph
(b) authorizes the use of the
‘‘DANGEROUS’’ placard when
transporting two or more categories of
hazardous materials that require a
different placard specified in table 2 of
§ 172.504(e). PHMSA proposes to
prohibit the use of the ‘‘DANGEROUS’’
placard to describe multiple categories
of hazardous materials being
transported by vessel. PHMSA and
USCG identified vessel operator
confusion with the display of the
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‘‘DANGEROUS’’ placard because the
‘‘DANGEROUS’’ placard is not
authorized in the IMDG Code. It is
advantageous to harmonize the HMR
with the IMDG Code to promote
efficient vessel transportation by
removing the authorization to use this
placard. Furthermore, the
‘‘DANGEROUS’’ placard may not
provide adequate information on the
hazardous materials inside the container
for emergency response onboard vessels.
PHMSA and USCG experience is that it
is also very rare for the ‘‘DANGEROUS’’
placard to be displayed on a freight
container for vessel transportation.
Therefore, PHMSA proposes to add this
limitation in a new paragraph (b)(2),
while also moving the existing usage
limitation for the ‘‘DANGEROUS’’
placard (over 2,205 lbs. aggregate gross
weight or more of one category of
material is loaded at one loading
facility) to a new paragraph (b)(1).
Please note that ‘‘DANGEROUS’’
placards may continue to be
appropriately used for highway or rail
transportation, when applicable, prior
to, or after, the portion of transportation
by vessel.
Section 172.704(e)(1) excepts a
hazmat employee from the paragraph
(a)(3) safety training when the hazmat
employee repairs, modifies,
reconditions, or tests packagings, as
qualified for use in the transportation of
hazardous materials, and who does not
perform any other function in the HMR.
PHMSA proposes to revise paragraph
(e)(1) to add an exception from the
security awareness training requirement
in paragraph (a)(4). Final rule HM–
126F,33 added training requirements to
the HMR, including the exception from
safety awareness training in paragraph
(e)(1). Security awareness training was
not included in the exception because
the requirement for security awareness
training was not added to the HMR until
RSPA published final rule HM–232.34 In
HM–232, RSPA provided the following
reasoning for the need of security
awareness training:
Section 172.516
Section 172.516 details the visibility
and display of placards, including
paragraph (d), which specifies that the
recommended placard holder
specifications are set forth in Appendix
C. PHMSA proposes to revise the size of
the recommended placard holder
dimensions in Appendix C to part 172.
As detailed in ‘‘Section IV. Section-bySection Review; Part 172; Appendix C
to Part 172,’’ the recommended placard
holder that is currently authorized in
the HMR may continue to be used, even
if the revised placard holder in
Appendix C to part 172 is adopted in a
final rule. However, to ensure that there
is no confusion with this allowance,
PHMSA proposes to revise § 172.516(d)
to add a reference to the placard holder
authorized in Appendix C prior to a
final rule effective date as an authorized
placard holder.
While HM–232 provides a need for
security awareness training, RSPA did
not comment on whether it intended to
exclude security awareness training
from the exception in paragraph (e)(1).
PHMSA affirms that security awareness
training is essential to ensure that
hazardous materials are transported in
commerce safely. However, upon
review, PHMSA acknowledges that the
burden of security awareness training
imposed on hazmat employees who
only manufacture, repair, modify,
recondition, or test packagings, and do
not perform any other function subject
to the HMR, may not present the same
security benefit as for those who
directly offer or transport hazardous
materials. PHMSA expects that the
packagings a hazmat employee
manufactures, repairs, modifies,
reconditions, or tests are empty and free
of hazardous materials, and we seek
comment on this expectation. As
described in HM–232, the creation of
security awareness training was related
to concerns about hazardous materials
transported in commerce being used as
weapons of mass destruction or
weapons of convenience. A hazmat
employee whose sole hazmat function is
qualifying a packaging would not
interact with a hazardous material that
could be used as a weapon; therefore,
PHMSA does not expect a reduction in
Section 172.704
Section 172.704 details HMR training
requirements. Paragraph (a)(2) includes
requirements for function-specific
training. PHMSA proposes to add
paragraph (a)(2)(iii) to reference
§ 177.816 for highway transportation
function-specific training. This new
paragraph will help to provide
regulatory clarity and ensure those
persons transporting hazardous
materials by highway meet the functionspecific training in § 177.816, without
adding any additional requirements.
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Because many hazardous materials
transported in commerce may potentially be
used as weapons of mass destruction or
weapons of convenience, it is critical to the
assurance of public safety that training for
persons who offer and transport hazardous
materials in commerce include a security
component.
33 20
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security by providing these employees
an exception from security awareness
training. Therefore, PHMSA proposes to
add the security awareness training of
paragraph (a)(4) to the paragraph (e)(1)
exception for persons performing only
repairs, modifications, reconditioning,
or testing of packagings and no other
functions subject to the HMR.
Additionally, PHMSA proposes to
expand the eligibility of hazmat
employees excepted from safety and
security training to include package
‘‘manufacturers.’’ In review of paragraph
(e)(1), it was determined that package
manufacturers were unintentionally
excluded from this exception and
including package manufacturers to this
exception ensures the paragraph
conforms to guidance previously issued
by PHMSA.35 Therefore, PHMSA
proposes to include package
‘‘manufacturers’’ among the list of
hazmat employees excepted from safety
and, as proposed, security awareness
training. Although these changes
broaden the population of persons
excepted from safety and security
awareness training, PHMSA expects the
safety and security of hazardous
materials transportation will be
maintained because of this training’s
primary focus on persons who offer or
transport hazardous materials.
Section 172.820
Section 172.820 outlines additional
security plan requirements for certain
hazardous materials transported by rail.
The requirements for a rail carrier to
identify and analyze practicable
alternative routes are specified in
paragraph (d). As currently written,
there is no instruction provided for a
situation where no alternative routes
exist. Therefore, PHMSA proposes to
revise paragraph (d) to provide an
exception from the requirement to
conduct an alternative route analysis,
when no practicable alternative routes
exist, including consideration of
interchange agreements. The rail carrier
must describe, in writing, the
remediation or mitigation measures to
be implemented, if any, on the primary
route in conformance with
§ 172.820(d)(1)(iii) and certify that an
alternative route does not exist for a
given primary route. For example, a
shortline railroad with only one
possible route to move material subject
to § 172.820 is not required to analyze
alternative routes owned by other
railroads. HMIWG discussed the
proposed paragraph (d)(3) at its August
35 See Letter of Interpretation Reference No. 05–
0064: https://www.phmsa.dot.gov/regulations/
title49/interp/05-0064.
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16–17, 2016, meeting. The proposed
language was approved by consensus
vote at the May 25, 2017, RSAC meeting
and offered to PHMSA and FRA for
consideration. PHMSA expects safety
will be maintained as a result of this
proposal, because it is not possible to
conduct an alternate route analysis
where no alternate route(s) exist. In this
NPRM, we propose a minor revision to
the proposed text of (d)(3) to indicate
that the exception applies to the
requirements of (d)(1) and (d)(2).
Appendix C to Part 172
Appendix C to part 172 specifies the
dimensions for a recommended placard
holder. PHMSA proposes to revise the
recommended placard holder drawing
from a one-side minimum dimension of
273 mm (10 3⁄4 inch) to 250 mm (9.84
inch). This revised dimension meets the
current minimum placard size in
§ 172.519(c). In final rule HM–218F,36
PHMSA made miscellaneous
amendments to update and clarify
certain regulatory requirements,
including amending the placard
dimensions in § 172.519(c) to harmonize
with international standards.
Specifically, HM–218F revised the
dimensions of a placard from at least
273 mm (10.8 inches) on each side to
the current dimension of at least 250
mm (9.84 inches) on each side.
However, when the revision was made
to § 172.519(c), an accompanying
revision to the recommended placard
holder dimensions in Appendix C to
part 172 was not made. This has
resulted in placard holders that may not
correctly fit placards thereby, creating
the potential for certain communication
elements of the placard to be obscured.
To prevent this potentially unsafe and
noncompliant situation, PHMSA
proposes to reduce the dimensions of
the recommended placard holder with
revised dimensions that are consistent
with the current minimum placard
dimension of 250 mm (9.84 inches) on
each side, because hazard
communication information may be
obscured. Appendix C provides only
recommended dimensions. A larger
version of a placard holder suitable for
larger placards may continue to be used
since the side dimensions for the
placards and placard holders are a
minimum specification.
Part 173
Section 173.31
Section 173.31 prescribes the
requirements for use of tank cars.
Paragraph (a)(2) specifies that tank cars
36 76
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and appurtenances may be used for the
transportation of any commodity for
which they are authorized and as
specified on the certificate of
construction. PHMSA proposes to revise
paragraph (a)(2) in conformance with
the proposal to replace AAR TCC
approval with tank car DCE approval.
Specifically, PHMSA proposes to
indicate that tank cars and
appurtenances may be used for the
transportation of the commodity
specified on the DAC, while also
providing a one-year transition period
during which certificates of
construction may still be issued.
Existing tank cars approved for use by
the AAR TCC may continue in use for
the rest of their authorized life pursuant
to their existing AAR Form 4–2
certificate of construction, subject to
periodic qualification as required by
part 180 subpart F. Additionally,
PHMSA proposes to replace the
reference to the AAR TCC approval with
approval by a tank car DCE, consistent
with the other proposed changes.
Section 173.31(d) outlines the
requirements for examination of a tank
car prior to shipping. Review of incident
data involving non-accident hazardous
materials releases from tank cars
indicates that most releases occur
because of improperly secured closures
on tank cars. Additionally, the majority
of those failures occur at the manway
cover due to a failure to secure the
manway in accordance with the
equipment owner and gasket
manufacturer closure instructions,
including the bolt securement
sequences, tools, and torque
specifications. Currently, there is no
requirement in the HMR that offerors of
tank cars containing hazardous
materials develop and implement
closure procedures that are consistent
with the industry standards and
Original Equipment Manufacturer
(OEM) recommendations. However, the
HMR does require manufacturers of
other packagings, namely those
specified in part 178, to forward closure
instructions to each person to which the
package is transferred, and that each
person who closes those packagings
must do so in accordance with the
manufacturer’s closure instructions.
Therefore, in the interest of improving
safety and consistency with
requirements for closures for part 178
packaging types, PHMSA proposes
several amendments to § 173.31(d). For
clarity, PHMSA proposes to amend the
format of paragraph (d) by revising the
paragraph title to read ‘‘pretransportation closure, securement, and
examination of tank cars’’ and providing
each paragraph a title. PHMSA proposes
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additional substantive amendments by
adding introductory text on the
expectations of offerors prior to
transportation, and by adding regulatory
text to require a closure and securement
procedure including a two-year periodic
review of the procedure. As proposed,
offerors must develop and maintain a
written procedure for closing and
securing all tank car openings. PHMSA
and FRA expect that offerors will use
available best practices and guidance
from packaging and component
manufactures in development of these
procedures. These proposed changes to
§ 173.31(d) are designed to ensure that
minimum standards for closures and
their securement on tank cars are
implemented to prevent releases of
hazardous material. Rail carriers, rail
hazmat shippers, equipment owners,
and manufacturers all have a vested
interest in ensuring tank cars are
routinely operated and closed in a
reliable and repeatable manner that is
consistent with industry standards and
OEM recommendations. PHMSA and
FRA expect that this regulatory change
will result in a net benefit to safety by
ensuring proper securement of tank car
closures, thus reducing the number of
hazardous material releases by rail.
Reduction in releases will have a
positive impact on the environment,
including potential reductions in
greenhouse gas emissions.
Section 173.31(g) outlines the
requirements for tank car loading and
unloading. The proposed changes to
§ 173.31(g) are intended to clarify the
requirements for tank car unloading by
adopting language from long-standing
PHMSA letters of interpretation.37
These letters of interpretation explain
that the intent of paragraph (g) is to
ensure the entry to a track where a tank
car is being loaded or unloaded is
secured. The proposed revisions to
§ 173.31(g) clarify that the mechanism
used to satisfy securement should be
under the direct control of the loading
or unloading operator and locked in
place so that it can only be removed by
the employee responsible for the
product transfer. The mechanism
should also be capable of stopping or
diverting incoming rail equipment to
prevent contact with the tank car being
offloaded (e.g., lined and locked switch
or derail). The example of bumper
blocks in the current requirements of
paragraph (g)(1) are proposed to be
37 See PHMSA Letters of Interpretation Gale to
Ross, May 31, 2006 (Reference No. 06–0058: https://
www.phmsa.dot.gov/regulations/title49/interp/060058) and Foster to Rodgers, October 11, 2018
(Reference No. 18–0032: https://
www.phmsa.dot.gov/regulations/title49/interp/180032).
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removed because, as discussed at
HMIWG meeting, the majority of
companies subject to this requirement
accomplish compliance with the use of
a derail or a switch. Additionally,
PHMSA and FRA have concerns that
some bumper blocks do not satisfy the
requirements of the paragraph. Bumper
blocks may continue to be used to meet
the requirements of paragraph (g)
provided they provide an equivalent
level of security to lining and locking
switches or using derails, but PHMSA
proposes not to specifically call out
bumper blocks as an option in
paragraph (g). Lastly, in new paragraphs
(g)(1)(i)(A)–(D), PHMSA proposes to
clarify the performance of track
securement operations in association
with loading or unloading of tank cars
to account for circumstances in which
the securement may be temporarily
removed for necessary intra-plant
repositioning of rail cars. The proposed
requirements in (g)(1)(i)(A)–(D) align
with current industry practice and are
intended to protect railroad personnel
and the tank car being loaded or
unloaded from interaction with other
rail cars undergoing switching in intraplant operations that would otherwise
be delayed or obstructed without the
possibility of temporarily removing
measures for securement of the track.
The final recommended language was
approved by consensus vote at the May
25, 2017, RSAC meeting and offered to
PHMSA and FRA for consideration.
Section 173.150
Section 173.150 details exceptions for
Class 3 (flammable and combustible
liquids) hazardous materials. Paragraph
(f)(3) provides an exception for
combustible liquids transported in bulk
packaging or combustible liquids
meeting the definition of a hazardous
substance, hazardous waste, or a marine
pollutant. In § 173.150(f)(3)(viii),
PHMSA proposes to add a reference to
§ 177.837(c). This is a conforming
amendment to the proposed
requirement in § 177.837(c) to require
bonding and grounding for the transfer
of lading for combustible liquids or
flammable liquids reclassified as
combustible liquids in cargo tanks.
PHMSA expects that for the safe
transportation of combustible liquids in
cargo tanks, bonding and grounding
requirements should apply when taking
the exception in § 173.150(f). See
‘‘Section IV. Section-by-Section Review;
Part 177; Section 177.837’’ for
additional discussion.
Section 173.159
Section 173.159 details packaging
requirements and exceptions for the
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transportation of wet batteries (i.e.,
electric storage batteries, commonly of
the rechargeable type, that contain a
liquid electrolyte component that is
corrosive). Paragraph (e) specifies that
the transportation of wet batteries by
highway and rail is excepted from the
requirements of HMR when transported
in accordance with conditions outlined
in this paragraph. Over the past 10
years, over 700 incidents involving the
transportation of wet batteries have been
reported due to improper preparation of
batteries for transportation. Not all of
the referenced incidents are associated
with the transportation of wet batteries
in accordance with paragraph (e), but
incidents involving the transportation of
wet batteries under other provisions are
still relevant to the transportation of wet
batteries under paragraph (e) because
they show what may occur when wet
batteries are not properly prepared for
transportation.
Many of these incidents involved a
release of corrosive battery fluid from
wet batteries because of load shifting or
falling over while in transportation.
Through inspections, PHMSA identified
that improper loading, securement, and
transportation of wet batteries likely
caused a number of these incidents.
Therefore, PHMSA proposes to add
more specificity in the provisions of
§ 173.159(e) to clarify the expectations
for load securement of the batteries
shipped under this provision and
ensure the safe transportation of wet
batteries. This increased clarification
will enhance the safety of transport of
wet batteries and reduce the number of
incidents resulting from improper load
securement and transportation. In
addition, PHMSA notes that it is the
responsibility of all persons conducting
transportation functions, including
loading and unloading, to ensure proper
compliance with § 173.159(e), and if
there is a violation, PHMSA, along with
any respective modal administration,
will attempt to identify and bring any
enforcement proceeding against the
person who did not comply with
§ 173.159(e).
Paragraph (e)(2) currently requires
that wet batteries be loaded or braced to
prevent damage and short circuits in
transit. This provision has been in the
HMR since its inception, as originally
codified in 1956.38 Although load
securement is not specifically
mentioned in paragraph (e)(2), securing
hazardous materials against shifting
under normal transportation conditions
is a basic hazardous materials
transportation safety requirement. For
transportation by highway and rail,
38 21
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packages containing hazardous
materials are required to be secured
against shifting while in transportation
in accordance with §§ 177.834 and
174.55, respectively. This requirement
protects hazardous materials, including
wet batteries, from falling over or
spilling under normal transportation
conditions, preventing damage and
short circuits during transportation.
After evaluation of the aforementioned
incidents involving wet batteries,
PHMSA proposes to amend the
language of § 173.159(e)(2) to include
securement of the batteries to enhance
the safe transportation of wet batteries
shipped under this exception.
Specifically, PHMSA proposes to clarify
that loading or bracing of wet batteries
includes securing wet batteries against
shifting while in transit. In addition,
and similar to §§ 177.834 and 174.55,
PHMSA proposes to indicate that
securement against shifting includes
relative motion between packages,
under conditions normally incident to
transportation. PHMSA expects this
language will help prevent damage to
batteries while in transportation and
possible release of their liquid contents.
While ‘‘method of securement’’ is not
defined in the HMR, PHMSA has issued
Letters of Interpretation regarding
securement methods. For example, in
Letter of Interpretation Ref. No. 19–
0039,39 PHMSA specifies that various
methods for securement include tiedowns, using dunnage or other cargo,
shoring bars, jack bars, or toe-boards.
Furthermore, Letter of Interpretation
Ref. No. 11–0198 40 includes banding in
this list. This is not an exclusive list;
instead, these demonstrate potential
methods for securement to prevent
shifting, including relative motion
between packages. In addition, the use
of one of these methods is only
satisfactory when there is securement
against shifting, including relative
motion, under conditions normally
incident to transportation. Lastly,
PHMSA notes that for highway
transportation, the Federal Motor
Carrier Safety Regulations (FMCSR; 49
CFR parts 350–399), specifically part
393 subpart I—Protection Against
Shifting and Falling Cargo—details
requirements for the prevention of loss
and shifting of load.
PHMSA also identified instances
where persons offer for transportation or
transport wet batteries as unregulated
shipments, even though they are still
39 See Letter of Interpretation Reference No. 19–
0039: https://www.phmsa.dot.gov/regulations/
title49/interp/19-0039.
40 See Letter of Interpretation Reference No. 11–
0198: https://www.phmsa.dot.gov/regulations/
title49/interp/11-0198.
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subject to the provisions of the HMR
under § 173.159(e). While these
shipments are not subject to many of the
HMR provisions, including § 172.704
training requirements, a person who is
complying with § 173.159(e) must still
know and understand the applicable
requirements in order to safely transport
wet batteries. This applies to both
shippers and carriers, including those
persons who load, unload, or transport
wet batteries in accordance with
§ 173.159(e). However, because persons
engaged in this operation have been
shown not to be aware of the specific
provisions, PHMSA proposes to revise
paragraph (e) to specify that ‘‘the offeror
must inform persons loading the
batteries and the operator of the vehicle
transporting batteries of the
requirements of this paragraph.’’
PHMSA expects that this will enhance
the safe transportation of wet batteries
under § 173.159(e) and add only
minimal burden because, as previously
mentioned, being aware of the
requirements of § 173.159(e) is
necessary for a person to properly apply
the exception. This proposed text
reinforces that a person must be aware
of the requirements to properly perform
said requirements. In order to
accommodate the proposed language,
we propose to redesignate the language
currently located in paragraph (e)(5),
requiring compliance with incident
reporting, to new paragraph (e)(6), and
moving the conjunction ‘‘and’’ to
connect (e)(5) and (e)(6).
Sections 173.241, 173.242, and 173.247
Sections 173.241, 173.242, and
173.247 are bulk packaging
authorization sections for low hazard,
medium hazard, and elevated
temperature liquid and solid materials,
respectively. Each section authorizes
AAR specification tank cars for the
transportation of hazardous materials.
Section 173.241 authorizes AAR Class
203W, 206W, and 211W tank cars,
§ 173.242 authorizes AAR Class 206W
tank cars, and § 173.247 authorizes AAR
Class 203W, 206W, and 211W tank cars.
However, the specifications for these
packages are not found in the HMR;
they are found in Chapter 3 of the AAR
Specifications for Tank Cars. In order to
ensure that no changes are made to the
construction specifications of these
hazmat packagings without PHMSA and
FRA review, PHMSA proposes to
incorporate by reference the 2014
edition of Chapter 3 of the AAR
Specifications for Tank Cars into each
section. AAR Class 203W, 206W and
211W tank cars currently in service may
remain in use, provided they continue
to meet the specification to which they
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were constructed. PHMSA proposes a
transition period of one year from the
effective date of the final rule for
compliance with the 2014 edition of the
AAR Specifications for Tank Cars for
new-build AAR specification 203W,
206W, and 211W tank cars.
Section 173.241
See ‘‘Section IV. Section-by-Section
Review; Part 173; Sections 173.241,
173.242, and 173.247’’ for details on the
revisions proposed to this section.
Section 173.242
See ‘‘Section IV. Section-by-Section
Review; Part 173; Sections 173.241,
173.242, and 173.247’’ for details on the
revisions proposed to this section.
Section 173.247
See ‘‘Section IV. Section-by-Section
Review; Part 173; Sections 173.241,
173.242, and 173.247’’ for details on the
revisions proposed to this section.
Section 173.314
Section 173.314 specifies packaging
for compressed gases transported by a
tank car or a multi-unit tank car.
Paragraph (b)(4) currently indicates that
the term ‘‘approved’’ for purposes of the
section means approval by the AAR
TCC. PHMSA proposes to remove and
reserve paragraph (b)(4). The language
in (b)(4) is an outdated holdover from an
earlier regulatory structure, since tank
car specification requirements are now
found in Part 179, rather than Part 173.
Therefore, we propose to remove and
reserve (b)(4), consistent with other
proposed changes.
Section 173.315
Section 173.315 describes the
requirements for the transportation of
compressed gases in cargo tanks and
portable tanks. Paragraph (h) specifies
gauging device requirements for cargo
tanks and portable tanks. PHMSA
proposes a minor editorial amendment
in paragraph (h) to reference paragraph
(e) for a tank filled by weight. This
proposed change helps to ensure
consistent application of the
requirement and provides additional
clarity which will enhance safety.
Paragraph (i) provides cargo tank and
portable tank requirements for pressure
relief devices, with paragraph (i)(13)
detailing the specifications for safety
relief valves on chlorine cargo tanks.
PHMSA proposes to revise
§ 173.315(i)(13) to replace the reference
to specific PRD drawings with a general
reference to CI Pamphlet 49 for
authorized safety relief valves. This
proposal allows the use of the Midland
PRD in addition to the Crosby PRD on
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cargo tanks transporting inhalation
hazards to provide additional regulatory
flexibility without reducing safety. See
‘‘Section II.E. P–1712’’ or ‘‘Section IV.
Section-by-Section Review; Part 171;
Section 171.7’’ for further discussion on
this proposed change.
Paragraph (j) details packaging
requirements for consumer storage
containers used for liquefied petroleum
gas. Paragraph (j)(1) provides
requirements for storage containers for
liquefied petroleum gas or propane
charged to five percent of their capacity
or less and intended for permanent
installation on consumer premises.
PHMSA proposes to remove the
reference to propane as an editorial
amendment. Propane is a type of
liquefied petroleum gas and therefore, a
specific reference to propane is
unnecessary and redundant.
Furthermore, as paragraphs (j)(2) and (3)
do not include a reference to propane
(only refers to liquefied petroleum gas)
a reader could mistakenly assume that
propane is not eligible for these storage
container requirement sections, which
is not the case since propane is a
liquefied petroleum gas. Therefore,
PHMSA expects this proposed
amendment will clarify the regulatory
applicability of paragraph (j).
Paragraph (m) details the general
requirements for cargo tanks used
exclusively in husbandry service that
are commonly known as nurse tanks.
On behalf of FMCSA, the Iowa State
University is conducting a multi-year
research project related to the
occurrence and potential methods of
reducing anhydrous ammonia (NH3)
nurse tank failures.41 The December
2013, final report of Phase II of the
project titled, ‘‘Testing and
Recommended Practices to Improve
Nurse Tank Safety,’’ recommended that
post-weld heat treatment (annealing)
should be performed on all new nurse
tanks as a part of the manufacturing
process to reduce the occurrence of
stress corrosion cracking failure.42
Consistent with this recommendation
and to ensure safe transportation of
hazardous materials in nurse tanks,
PHMSA proposes to add paragraph
(m)(1)(viii) requiring that all nurse tanks
manufactured 90 days after the effective
date of a final rule be stress relieved
through full post-weld heat treatment.
In addition, this proposal addresses, in
part, NTSB Safety Recommendation H–
04–023 that was issued as a result of an
incident involving the release of
41 https://www.fmcsa.dot.gov/regulations/
hazardous-materials/cargo-tank-safety.
42 The report is available at: https://rosap.ntl.
bts.gov/view/dot/163.
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anhydrous ammonia because of a failed
nurse tank.43 FMCSA notes that the two
major manufacturers of nurse tanks are
already performing full post-weld heat
treatment on their cargo tanks, thus this
new requirement will primarily provide
PHMSA oversight by including it as a
condition to allow the use of a non-DOT
specification cargo tank for
transportation of anhydrous ammonia.
This proposed requirement ensures that
this additional safety measure will be
implemented by both current and new
nurse tank manufacturers.
Paragraph (n)(1) details the required
emergency discharge control equipment
for cargo tank motor vehicles in
liquefied compressed gas service.
During FMCSA industry workshops,
stakeholders have noted that this table
is confusing. Therefore, PHMSA
proposes to reformat information in the
table in paragraph (n)(1) for ease of
understanding. This includes separating
out current regulatory requirements
unique to certain scenarios and adding
an additional column to specify
requirements when there are obstructed
view deliveries under § 177.840(p).
PHMSA does not intend to make any
substantive changes to existing
requirements in this table, however we
are adding information from
§ 177.840(p) into the table to increase
usability. PHMSA invites comments on
the usability of the reformatted table.
We believe reformatting the table will
reduce confusion, which will lead to
increased compliance and therefore an
improved level of safety.
the regulations, leading to greater
compliance and increasing safety.
Specifically, PHMSA proposes to
remove the phrase ‘‘atmospheric gases
and helium’’ in paragraphs (a) and (b).
Furthermore, PHMSA proposes to
consistently reference ‘‘cryogenic
liquids authorized to use this section by
Column 8(A) of the § 172.101 Hazardous
Materials Table of this subchapter’’ in
both paragraphs (a) and (b). This
proposed change also makes the section
more consistent with the HMR,
removing any ambiguity between
whether a material is an atmospheric
gas and if it is afforded an exception in
this section. PHMSA intends that this
proposed change be editorial and not
make any substantive revisions to the
current regulatory requirements. This
increased clarity will lead to less
confusion and thus, enhance safety. The
cryogenic liquids assigned ‘‘320’’ in
Column 8(A) of the § 172.101 Hazardous
Materials Table are the same as the
materials defined as ‘‘atmospheric
gases’’ in § 171.8, except that ‘‘320’’ is
also assigned to two ‘‘not otherwise
specified’’ (‘‘n.o.s’’) entries, UN3158 and
UN3311. PHMSA seeks comment on
this change, and whether there are
materials classified as ‘‘UN3158 Gas,
refrigerated liquid, n.o.s. 2.2’’ or
‘‘UN3311 Gas, refrigerated liquid,
oxidizing, n.o.s. 2.2 (5.1)’’ that are
composed of a gas or gas mixture other
than air, nitrogen, oxygen, argon,
krypton, neon, xenon, or helium.
Section 173.320
This section details exceptions for the
transportation of cryogenic liquids.
Subject to certain requirements,
paragraph (a) provides an exception
from the requirements of the HMR for
atmospheric gases and helium,
cryogenic liquid in Dewar flasks,
insulated cylinders, insulated portable
tanks, insulated cargo tanks, and
insulated tank cars, transported by
motor vehicle or railcar. Paragraph (b)
provides an additional exception for
certain atmospheric gases and helium.
PHMSA proposes to revise paragraph (a)
for ease of understanding, with no
substantive impact to the current
provisions of the paragraph. In addition
to editorial amendments, PHMSA
proposes to revise the packaging type of
an insulated cargo tank to a ‘‘cargo tank
motor vehicle,’’ as this is more
appropriate terminology describing the
completed transportation package. This
amendment will increase the clarity of
Section 174.9
Section 174.9 identifies inspection
requirements for rail cars at locations
where a hazardous material is accepted
for transportation or placed in a train.
Paragraph (a) includes specifics on
carrier inspection requirements.
PHMSA proposes an editorial
amendment in paragraph (a) to indicate
more clearly that the inspections
performed in § 174.9 are in conjunction
with those required in 49 CFR parts 215
and 232 for identification of defective
freight car components and brake
systems, respectively. Currently, the text
refers readers to parts 215 and 232 ‘‘of
this title.’’ PHMSA believes it will be
clearer to the reader if we replace ‘‘this
title’’ with ‘‘49 CFR’’ parts 215 and 232.
Furthermore, the current language in
§ 174.9 does not specifically address
situations where a train is seen
departing a location with readily
apparent improper hazard
communication, unapplied closures, or
leaking hazardous materials. In order to
address this situation, PHMSA proposes
to add paragraph (e) to specify that in
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the event of the observation of a train
with readily apparent improper hazard
communication, unapplied closures, or
leaking hazardous materials, it will be
presumed that the rail car was not
inspected properly by the carrier.
During the June 8–9, 2016, HMIWG
RSAC meeting, PHMSA noted that
hazard communication includes
communication such as placards,
markings, and stenciling. The final
recommended language was approved
by consensus vote at the May 25, 2017,
RSAC meeting and offered to PHMSA
and FRA for consideration. PHMSA
expects the addition of paragraph (e)
will increase compliance with the
HMR’s existing closure securement and
hazard communication requirements,
and therefore increase safety.
Section 174.14
Section 174.14 requires that
hazardous material shipments be
expedited to within 48 hours upon
acceptance at the originating location,
commonly known as the ‘‘48-hour rule.’’
The purpose of this requirement is to
ensure that rail cars carrying hazardous
materials are not held for long periods
of time, hazardous material
transportation is moving forward
continuously, and rail cars that are
being delayed are not being used for
storage purposes. Currently, § 174.14
does not allow any exceptions to the 48hour rule when the receiving facility is
not capable of receiving the shipment.
During the August 27–28, 2013, FRA
public meeting and the June 8–9, 2016,
HMIWG meeting, it was noted that FRA
uses enforcement discretion with regard
to the 48-hour rule in certain cases, such
as delays due to inadequate space in a
consignee facility or situations where
the shipment contains only the residue
of a hazardous material, to avoid
unnecessary shuttling of hazmat cars to
and from local railyards to comply with
the regulation.
In order to align the HMR with FRA’s
enforcement discretion practices,
PHMSA proposes new paragraphs (a)(1)
through (3) to add exceptions for
specific scenarios when circumstances
preclude delivery to the consignee
destination or when the shipment
contains only the residue of a hazardous
material. In addition, PHMSA proposes
to revise paragraph (a) to add a
recordkeeping requirement for the rail
carrier to document the reason for the
delay. This record can be in a paper or
electronic form. PHMSA and FRA note
that it is not the intention to require a
rail carrier to create a new
recordkeeping system if one meeting the
proposed requirements is already in
place. PHMSA and FRA also propose an
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editorial revision to remove ‘‘transfer
stations’’ from paragraph (a), as this is
an obsolete reference. The final
recommended language was approved
by consensus vote at the May 25, 2017,
RSAC meeting and offered to PHMSA
and FRA for consideration. PHMSA
expects the formalization of existing
FRA enforcement discretion related to
the 48-hour rule will maintain the
current level of safety of rail
transportation while affording rail
carriers greater flexibility within the
scope of the expedited movement.
Note that in the revised language of
§ 174.14 offered by the RSAC to PHMSA
and FRA for consideration, a fourth
exception was included that would have
created an exception to the 48-hour rule
for shipments delivered to the final
destination on a shipping paper. In
accordance with § 171.1(c)(4)(i)(B), rail
cars delivered to the final destination
marked on the shipping paper, but on
track that is not a ‘‘private track or
siding,’’ are still in transportation. The
RSAC language offered to PHMSA and
FRA for consideration in paragraph
(a)(4) would then except shipments
delivered to non-private track from
expedited movement, and they could
remain on the track, ‘‘in transportation,’’
indefinitely. It was not FRA or
PHMSA’s intent to authorize such
activity in the HMR. Therefore, the
RSAC-approved fourth option (i.e., a
paragraph (a)(4)) is not being proposed.
Shipments of hazardous material that
have been delivered to their final
destination on a private track or siding
are not ‘‘in transportation,’’ (see § 171.1)
and therefore are not subject to the 48hour rule.
Section 174.16
Section 174.16 specifies requirements
for delivery of certain hazardous
materials at agency stations. In current
operations, rail cars carrying hazardous
materials covered under § 174.16 no
longer deliver these types of materials to
agency stations, which no longer exist.
As was noted by AAR at the August 27–
28, 2013, FRA public meeting,
hazardous materials currently covered
under § 174.16 are unloaded at the rail
car facility where they are delivered. If
the hazardous material is not picked up
by the consignee or the shipment is
rejected, the delivering carrier obtains
disposition instructions from the offeror
of the shipment. To address the change
in rail carrier operations and in an effort
to remove language that is no longer
applicable to current operations,
PHMSA proposes to remove and reserve
this section. PHMSA notes that any
additional transportation of these
materials must comply with all
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applicable regulations. The decision to
remove and reserve this section was
approved by consensus vote at the May
25, 2017 RSAC meeting and offered to
PHMSA and FRA for consideration.
PHMSA expects that removing this
obsolete provision will increase the
clarity of the HMR for carriers dealing
with shipments rejected or not picked
up.
Section 174.20
Section 174.20 outlines the allowance
for a rail carrier to impose local or
carrier restrictions for hazardous
materials when acceptance,
transportation, or delivery is unusually
hazardous. At the August 27–28, 2013
FRA public meeting, AAR proposed that
paragraph (a) be deleted as it was
redundant and covered in the language
from paragraph (b). However, following
further review, AAR proposed at the
June 8–9, 2016 RSAC meeting that the
entire section be deleted as the
requirements should be left up to
individual carriers, and that reporting to
the AAR’s Bureau of Explosives is not
necessary. PHMSA agrees and proposes
to remove and reserve the section in its
entirety. The decision to remove and
reserve this section was approved by
consensus vote at the May 25, 2017,
RSAC meeting and offered to PHMSA
and FRA for consideration. PHMSA
expects removing this section will not
adversely impact safety because rail
carriers will still be able to make a
determination that local conditions
make the acceptance, transportation, or
delivery of hazardous materials
unusually hazardous.
Section 174.24
This section details requirements for
the acceptance of shipping papers by a
carrier and shipping paper retention
requirements. Paragraph (b) specifies
that a shipping paper must be made
available to an authorized official of a
Federal, State, or local government
agency at a reasonable time and
location. However, there is no further
specificity on what is meant by a
‘‘reasonable time.’’ In an effort to clarify
the requirements, PHMSA proposes to
revise paragraph (b) and indicate that
the shipping paper must be provided at
reasonable times and locations, ‘‘but no
later than the close of business the
following business day from the time of
the request in non-emergency
circumstances.’’ The proposed language
still mandates that the documentation
be made available to inspectors at a
‘‘reasonable time and location,’’ so
when the information is readily
available at the time that an inspector
requests it, PHMSA and FRA expect that
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it shall be provided at that time, as it has
been historically. For non-emergency
document requests that are for past
shipments (e.g., shipments made weeks/
months ago), or for all shipments made
by a particular shipper or in a particular
car, the RSAC reached consensus that a
reasonable deadline would be close of
business the following business day.
During the May 5 and June 8–9, 2016,
HMIWG meetings, there was in-depth
discussion to determine the most
appropriate timeframe that a carrier
would be able to provide the shipping
paper information in non-emergency
situations. One business day was
proposed as an alternate to a much
shorter time, such as 30 minutes. One
business day also addresses the needs of
railroads that only operate Monday
through Friday. As discussed, if a
request for a shipping paper is made on
Friday afternoon, the carrier has until
the close of business on Monday to
provide the shipping paper. PHMSA
considers close of business to be 5:00
p.m. local time for the office of the
authorized official of a Federal, State or
local government agency requesting the
shipping paper. PHMSA seeks public
comment if this is a reasonable meaning
of ‘‘close of business.’’ During HMIWG
meetings, it was noted that this
allowance is the longest acceptable
amount of time to provide a shipping
paper in a non-emergency situation, and
the information might be available
much sooner. Furthermore, it was
discussed that this allowance is for nonemergency situations, where an
emergency is defined as an event when
an emergency response telephone
number, as specified in § 172.604, is
contacted. The final recommended
language was approved by consensus
vote at the May 25, 2017, RSAC meeting
and offered to PHMSA and FRA for
consideration.
Additionally, in the first sentence of
paragraph (b), as approved by RSAC and
offered to PHMSA and FRA for
consideration, it was proposed to
replace ‘‘person’’ with ‘‘carrier.’’
PHMSA and FRA expect that such a
revision could create unnecessary
confusion in situations where a third
party has been contracted to take on
carrier functions (e.g., maintaining
shipping papers). Therefore, for clarity
and to maintain alignment with other
modal shipping paper retention
sections, PHMSA will maintain the
HMR’s current applicability of the
paragraph (b) retention requirements to
each ‘‘person’’ who receives a shipping
paper required by this section. PHMSA
expects the proposed revision to
§ 174.24 will improve safety oversight
by allowing authorized governmental
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representatives to access historical
shipping paper information in a timelier
manner during inspections and
investigations.
Please note that this standard for
reasonable time and place—close of
business the following business day—is
applicable specifically to review of
historic shipping paper information in
non-emergency rail transportation
scenarios after transportation has ended.
In particular, provision of shipping
papers during transportation (e.g.,
container inspections in port areas) is
one example of a scenario where the
following business day is generally too
long a time period to meet the needs of
inspectors and prevent unnecessary
delays. See ‘‘Section IV. Section-bySection Review; Part 171; Section
171.22’’ for further discussion of
shipping paper accessibility in port
areas.
Section 174.50
Section 174.50 prescribes
requirements for nonconforming or
leaking packages. This section specifies
that non-bulk packages may not be
forwarded unless they are repaired,
reconditioned, or overpacked in
appropriate salvage packaging. For bulk
packages, an OTMA is required to
authorize movement for a nonconforming or leaking package, unless
movement is necessary to reduce or
eliminate an immediate safety risk.
PHMSA proposes to revise § 174.50 in
order to identify more clearly the
applicability and the exceptions
regarding obtaining an OTMA from
FRA.
To evaluate the proposed revisions to
§ 174.50 and consider harmonization
and reciprocity with Transport Canada,
HMIWG established an OTMA Task
Force that included FRA, PHMSA, RSI,
AAR, CI, TFI, and the American
Petroleum Institute (API). In addition to
evaluating § 174.50, the OTMA Task
Force worked to develop the Hazardous
Material Guidance (HMG) Document
HMG–127 (Revision 5). Following
multiple meetings, the OTMA Task
Force voted to accept HMG–127 and the
proposed language in § 174.50. The
proposed text of HMG–127 (Revision 5)
is included in the docket for review
along with this NPRM.44 The proposed
regulatory text addresses administrative
topics, while HMG–127 specifies further
guidance on obtaining an OTMA. HMG–
127 discusses how to apply for an
OTMA, categories and conditions for
choosing the correct category of an
OTMA, when a root cause analysis is
44 See HMG–127: https://www.regulations.gov/
document/PHMSA-2018-0080-0001.
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required as a condition of an OTMA,
and what information should be
included in a root cause analysis. Note,
however, that HMIWG did not reach
consensus on proposed text in
§ 174.50(d)(2)(v) when it was put
forward to a vote. Recommended
language for this section was approved
by consensus vote at the May 25, 2017,
RSAC meeting and offered to PHMSA
and FRA for consideration. PHMSA
proposes the following revisions to
§ 174.50:
• Discuss in paragraph (a) the general
requirements for non-conforming and
leaking packages, including non-bulk
packages;
• List scenarios in paragraph (b)
where an OTMA issued by the Associate
Administrator for Safety, FRA is not
required to move a non-conforming or
leaking bulk package;
• Discuss in paragraph (c) the
approval process for an OTMA;
• List in paragraph (d) the marking,
notification, recordkeeping, routing, and
root cause analysis requirements for
OTMA grantees; and
• Clarify in paragraph (e) the
responsibility for compliance with
OTMA requirements and consequences
for non-compliance.
The exceptions proposed in paragraph
(b)(2) and (3) codify long-standing FRA
policy. Non-compliant rail cars that are
clean and contain no hazardous
materials residue, addressed in
paragraph (b)(2), do not pose a risk of
hazardous materials release. The intent
of the proposed exception in paragraph
(b)(2) is to expedite the movement of
these cars to a facility at which repairs
can be conducted. These are typically
DOT–111 tank cars that are not carrying
hazmat and have been cleaned.
Currently, FRA receives approximately
730 OTMAs per year for clean cars. The
exception proposed in paragraph (b)(3)
for rail cars discovered to be overloaded
by a minor amount is intended to
address known weigh-in-motion and
static scale error tolerances, and
additionally align with Transport
Canada standards. The exceptions
proposed in paragraphs (b)(1), for
movement necessary to reduce or
eliminate an immediate threat of harm
to human health or the environment,
and (b)(4), for rail cars moving in
accordance with a Transport Canada
temporary certificate, exist in the
currently effective 174.50, and we
propose to move them to paragraphs
(b)(1) and (b)(4), respectively, for clarity.
Additionally, throughout § 174.50,
PHMSA proposes to replace the
acronym ‘‘OTMA’’ with ‘‘One-Time
Movement Approval’’ to increase clarity
for readers of the HMR who are not
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familiar with the OTMA process. In
§ 174.50(d)(1), PHMSA proposes
editorial edits to the language approved
by RSAC and offered to PHMSA and
FRA for consideration to increase the
clarity of the marking requirement for
non-conforming rail cars. Specifically,
based on consultation with FRA,
PHMSA proposes to add the following
marking into the HMR; this marking is
currently a requirement in each OTMA
issued by FRA (except those overloaded
by weight).
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HOME SHOP FOR REPAIRS
DO NOT LOAD
or
MOVING FOR
DISMANTLING
DO NOT LOAD
In § 174.50(d)(2)(ii), PHMSA proposes
editorial edits to the language approved
by RSAC and offered to PHMSA and
FRA for consideration. This proposed
language shortens the sentences and
clarifies the notification requirements,
specifically that the approval grantee
must ensure the consignee or final
destination facility has been notified
and will accept the non-conforming
tank car. This ensures that the tank car
is only consigned to a location capable
of accepting the car, and unloading the
product, if necessary. If the maintenance
activities are to be conducted by a
mobile unit, they must occur at the
maintenance destination indicated in
the application.
In § 174.50(d)(4), PHMSA proposes
editorial revisions to the language
approved by RSAC and offered to
PHMSA and FRA for consideration.
These proposed edits include clarifying
instructions on routing rail cars moving
under OTMAs, specifically that the
OTMA grantee and railroad(s) involved
in the movement must select the most
appropriate route to the nearest cleaning
and/or repair facility capable of
performing the required cleaning and/or
repairs. This aligns with an existing
requirement in OTMAs issued by FRA.
Lastly, final rule HM–215O 45
harmonized the HMR with international
standards and codified recognition of
Temporary Certificates issued by
Transport Canada for cross-border
movements of non-conforming tank cars
to or from Canada. To ensure this
allowance remains, PHMSA proposes to
specify the authorization for the use of
Temporary Certificates in lieu of
OTMAs for cross-border movements to
or from Canada in § 174.50(b)(4).
PHMSA expects the revisions
proposed to § 174.50 to formalize and
45 85
FR 27810 (Mar. 11, 2020).
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clarify the OTMA process will increase
efficiency for rail car owners and
railroads, as well as FRA staff
processing OTMA requests. PHMSA
also expects that over time, lessons
learned from the root cause analysis that
FRA is authorized to require in OTMAs
will reduce the number of nonaccidental releases, creating safety and
environmental benefits.
Section 174.58
PHMSA proposes to add § 174.58 to
detail what ‘‘extent practicable’’ means
for rail transportation with respect to
the § 171.8 definition of residue. This
language was originally proposed as a
change to the definition of residue in
§ 171.8, as part of the recommend
language developed by RSAC Task 13–
02, approved by consensus vote at the
May 25, 2017, RSAC meeting, and
offered to PHMSA and FRA for
consideration. However, PHMSA
proposes to relocate the RSAC-approved
language from the definition of residue
in § 171.8 to § 174.58. If RSAC’s
proposed revision is made in § 171.8,
the changes made to the definition of
residue would have broader
implications than the intent of clarifying
its meaning for purposes of rail
transportation of hazardous material.
The intent of the proposed change
remains the same as the RSAC proposal;
to clarify that ‘‘extent practicable’’
means the material that remains in a
bulk package after it has been unloaded
using properly functioning service
equipment and plant process
equipment. Because part 174 is related
to rail transportation operations,
PHMSA proposes that this regulatory
language more appropriately fits in new
section § 174.58, instead of as part of the
definition of residue in § 171.8 which
has broader applicability. Note that in
accordance with the § 171.8 definition
of residue, a tank car must be unloaded
to the maximum ‘‘extent practicable’’ in
order to be transported with the residue
description. PHMSA welcomes
comment on the proposed
implementation of this language.
PHMSA expects this proposed revision
will provide further clarity on what is
considered residue for rail shipment of
hazardous material and increase safety
by ensuring bulk packages that actually
qualify for ‘‘residue’’ status are shipped
with that description.
Section 174.59
Section 174.59 details the
requirements for marking and
placarding rail cars carrying hazardous
materials. PHMSA proposes to revise
the requirements for replacing lost
placards and to provide context to the
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‘‘next inspection point.’’ Specifically,
PHMSA proposes the ‘‘next inspection
point’’ be revised to the ‘‘nearest
inspection point’’ and clarify that this
point is ‘‘in the direction of travel’’ and
‘‘where mechanical personnel
responsible for inspections related to 49
CFR parts 215 and 232 are on duty.’’ As
discussed during the May 5 and June 8–
9, 2016, HMIWG meetings, the intention
of this provision is that lost placards are
replaced as best and as soon as they can
at a location where personnel are
present and capable of performing
inspections. During HMIWG meetings, it
was also suggested that § 174.59 reflect
similar language from 49 CFR parts 215
and 232, specifically that placards are to
be ‘‘replaced at the next inspection
point, interchange, or rail yard in the
same direction as the train movement.’’
The proposed revision to § 174.59
aligns with 49 CFR parts 215 and 232,
by clarifying the ‘‘nearest inspection
point,’’ where the placards can be
replaced is in the direction of train
movement. The final recommended
language was approved by consensus
vote at the May 25, 2017, RSAC meeting
and offered to PHMSA and FRA for
consideration. PHMSA expects this
proposed revision will improve safety
by clarifying the intent of the provision
and ensuring the missing hazard
communication placards are replaced as
soon as possible.
Additionally, the recommended
RSAC language for § 174.59 removes
reference to ‘‘car certificates.’’ PHMSA
and FRA seek comment on the removal
of the reference to ‘‘car certificates’’ in
§ 174.59.
Section 174.63
This section outlines handling and
loading requirements for portable tanks,
intermodal (IM) portable tanks,
intermediate bulk containers (IBCs),
large packagings, cargo tanks, and multiunit tank car tanks transported by rail.
PHMSA proposes to make editorial
revisions to the title of § 174.63 to
specify the section applies to rail
transport in COFC or TOFC service.
Additionally, paragraph (b) specifies
requirements applicable to transport of
a bulk packaging inside a fully closed
transport vehicle or fully closed freight
container. PHMSA proposes to clarify
the current reference to IM 101 and IM
102 as types of portable tanks. This
proposed change is editorial in nature
and does not impose any new
requirements.
Paragraph (c) provides instruction,
specifically, six conditions, for an
alternate method of transportation to
paragraph (b) for bulk packaging using
COFC or TOFC service. PHMSA
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proposes to revise the condition in
paragraph (c)(1), which outlines
authorized packaging sections, by
adding packagings authorized in
§ 173.247 for elevated temperature
materials to the list of packaging
sections, as well as Division 2.2
materials not specifically listed in the
§ 173.315(a)(2) table that are packaged
as authorized in the table and § 173.315
conditions. This proposed amendment
will authorize these packagings to be
transported without requiring approval
from FRA. PHMSA expects that adding
existing safe, authorized packagings for
elevated temperature materials and nonflammable gases to the COFC or TOFC
authorization will not compromise
safety and will increase flexibility for
shippers of these materials.
PHMSA also proposes to amend
paragraph (c)(2) to indicate that a rail
car transporting a bulk package in COFC
or TOFC service must comply with
applicable regulatory requirements for
the type of rail car being used. The
current requirement instructs the
shipper that the ‘‘tank’’ and flatcar used
must comply with applicable
requirements of the HMR concerning its
specification, but use of the term ‘‘tank’’
obscures the intended general reference
to bulk packagings in § 174.63, and the
HMR contains no specifications for
flatcars. The proposed amendments will
instead refer generally to bulk
packagings that must adhere to
applicable specifications and to flatcars
that must comply with applicable rail
car regulatory requirements. This
amendment will provide greater clarity,
which will enhance the safety of
transporting these bulk packagings by
rail. The final recommended language
was approved by consensus vote at the
May 25, 2017, RSAC meeting and
offered to PHMSA and FRA for
consideration.
Section 174.67
Section 174.67 outlines the
requirements for transloading of tank
cars. HMIWG reviewed this section to
update, clarify, and remove regulations
where appropriate. The recommended
language was approved by consensus
vote during the May 25, 2017, RSAC
meeting and submitted to PHMSA and
FRA for consideration. However, since
the 2017 submission of the
recommended language and following
an in-depth review by PHMSA and
FRA, in this NPRM we propose
additional changes to the recommended
language. These changes are not
intended to revise the intent of HMIWG,
but to ensure that the section is easier
to read and consistent with the rest of
the HMR—such as removing and
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reserving certain paragraphs instead of
redesignating them—and to promote
clear understanding of the requirements
for safe transloading.
PHMSA proposes to modify the title
of the section from ‘‘unloading’’ to
‘‘transloading’’—as approved by
HMIWG—because this more accurately
reflects the operations covered by this
section. Transloading is a subset of
loading or unloading that includes both
loading tank cars from, and unloading
tank cars into, another packaging for
continued movement in transportation.
As approved by HMIWG, PHMSA
proposes to remove the introductory
sentence of this section because it is
unnecessary and inconsistent with other
sections in the HMR. The sentence
merely states, ‘‘for transloading
operations, the following rules must be
observed.’’ With the proposed retitling
of the section, it is now unnecessary.
Paragraph (a)(1) specifies
requirements for hazmat employees
performing unloading operations.
PHMSA proposes minor revisions to
paragraph (a)(1) to clarify that this
section applies specifically to
transloading, as opposed to all
unloading operations, as approved by
HMIWG. PHMSA notes here that tank
car loading and unloading is covered in
§ 173.31 (Use of Tank Cars) and, as
such, proposes to add reference to
§ 173.31(d) (examination before
shipping) and (g) (tank car loading and
unloading) to increase awareness of
relevant requirements for tank car
loading and unloading.
Paragraph (a)(2) specifies
requirements for securing a tank car
against motion. PHMSA proposes to
revise paragraph (a)(2) by removing the
current language and replacing it with a
reference to § 173.31(g), as the language
currently in paragraph (a)(2) is
unnecessarily duplicative of the
requirements in § 173.31(g).
Paragraphs (a)(3) and (4) specify
securement of access to the track and
required warning signage, respectively.
As recommended by HMIWG, PHMSA
proposes to remove and reserve
paragraphs (a)(3) and (4) because the
track securement language would now
become unnecessarily duplicative of the
proposed track securement language in
§ 173.31(g) (see discussion of proposed
amendments to § 173.31(g)).
Paragraph (a)(5) specifies the written
safety procedures that must be
maintained and available for
transloading operations, including
measures to account for the physical
and chemical properties of the lading
being transloaded. In paragraph (a)(5),
PHMSA proposes to include a statement
that the procedures must include
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measures to address the safe handling
and operation of the tank car and tank
car service equipment, as well as
account for physical and chemical
properties of the lading being
transloaded. HMIWG determined that
many of the prescriptive elements of
this section may be outdated or
inconsistent with current industry best
practices for certain materials,
operations, and modern tank car
designs. Thus, many of the prescriptive
elements of § 174.67 in the currently
effective paragraphs (b)–(g), (n), and (o)
were removed and it was the intent of
HMIWG that these prescriptive elements
would be substituted with new
performance-based language proposed
in paragraph (a)(5). However, upon
further review of the language approved
by the RSAC, PHMSA proposes a
modification to the recommended
language of (a)(5) to clarify our
expectations on what the transloading
procedures must cover. PHMSA and
FRA reviewed the prescriptive
instructions proposed for removal from
paragraphs (b)–(g), (n) and (o), and used
the subjects addressed by the
instructions to generate a list of
procedures the proposed paragraph
(a)(5) instructions must address.
PHMSA expects that the transloading
procedures required by paragraph (a)(5)
must address, at a minimum, the
following:
• Temperature monitoring and
pressure relief;
• Safe operation of the tank car for
product loading or unloading;
• Proper disposal of used seals and
other debris;
• Measures to avoid spillage of
contents outside the tank;
• Operation of tank car service
equipment;
• Proper removal of product plugs
that prevent adequate operation of the
service equipment; and
• Proper tool maintenance measures
including the types of tools to use,
calibration, cleanliness, and instructions
on tool use.
To clarify our intent, PHMSA
proposes to add this list of minimum
elements to the transloading procedure
requirement in paragraph (a)(5).
Additionally, PHMSA notes that the
current language of paragraph (a)(5)
does not include a specific instruction
that transloading facilities must follow
their written procedures. The removal of
the prescriptive instructions in this
section increases the importance of the
written procedures for safe transloading
operations; therefore, we propose to add
the phase ‘‘and adhere to’’ to the
requirement to maintain written
transloading procedures in order to
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ensure that these procedures are
actually implemented.
As agreed to by HMIWG, PHMSA
proposes to remove and reserve
paragraph (a)(6), which currently
specifies requirements to relieve
pressure in the tank car before removing
a manhole cover or outlet valve cap
from the tank car. As noted by HMIWG,
the current requirement is too
prescriptive, outdated, and not
necessarily consistent with current
industry best practices. Furthermore,
procedures to monitor the temperature
and to relieve pressure should be part of
the overall safety procedures and
measures referenced in the proposed
performance-based requirement of new
paragraph (a)(5); therefore, we are
removing the duplicative measures in
current paragraph (a)(6) and reserving
the paragraph.
The RSAC-approved regulatory text
for § 174.67 proposed to remove the
existing requirements in currently
effective paragraphs (b) through (g), to
re-designate the requirements in
paragraphs (h) through (l) into these
newly removed paragraphs, and also to
update the requirements in (h) through
(l) to address changes in tank car design
and operation. However, since the 2017
submission of the recommended actions
and following an in-depth review by
PHMSA and FRA, we have determined
that redesignating the existing
requirements would result in confusion;
therefore, in this NPRM we propose to
remove and reserve paragraphs (b)
through (g), and to make the RSACapproved revisions to the section while
maintaining the existing paragraph
structure. For example, rather than
proposing to revise the requirements for
securing unloading connections that are
currently found in paragraph (h) and
moving the requirements to paragraph
(b), we propose to revise the
requirements in paragraph (h) and leave
it in its current location in the section.
Otherwise, a current reference citation
to paragraph (h) in another section of
the HMR or existing guidance
documents would no longer make sense.
Below we discuss the revisions to each
of the remaining paragraphs of § 174.67.
PHMSA proposes to remove and
reserve paragraph (b), which includes
prescriptive language on the operation
of various types of manway designs. The
current language has become outdated
and does not encompass modern-day
manway cover designs or industry best
practices. Procedures for safely
operating various types of manway
designs must be included in the safety
procedures required by proposed
paragraph (a)(5) of this section, and
should be consistent with the design,
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OEM recommendations, and industry
best practices. Structurally, HMIWG
voted to replace this paragraph with the
requirements currently proposed in
paragraph (h) instead of removing and
reserving paragraph (b). For ease of
understanding and to ensure no other
regulatory citations or guidance
documents need to be updated, PHMSA
instead proposes to remove and reserve
paragraph (b).
Paragraph (c) contains prescriptive
procedures for operation of manhole
covers during unloading through the
bottom outlet valve. The current
language has become outdated and does
not encompass modern day manway
cover designs or industry best practices.
The transloading operator’s procedure
for safely operating the tank car for
product unloading must be adequately
addressed by the safety procedures
required by proposed paragraph (a)(5) of
this section. Structurally, HMIWG voted
to remove this paragraph and replace it
with the requirements currently
proposed in paragraph (j) rather than
removing and reserving paragraph (c).
However, for readability and so no other
regulatory citations or guidance
documents need to be updated, PHMSA
proposes to remove and reserve this
paragraph instead.
Paragraph (d) contains prescriptive
safety procedures for unloading of
product from a tank car. Paragraph (d)
may not be applicable to certain types
of transloading operations and may no
longer be consistent with current
industry best practices. As such,
PHMSA proposes to remove and reserve
the requirements. These procedures
should be adequately covered by the
safety procedures developed and
updated by the transloading operator to
comply with proposed paragraph (a)(5)
of this section. Structurally, HMIWG
proposed to remove this paragraph and
replace it with the requirements
currently proposed in paragraph (k)
instead of removing and reserving
paragraph (d). However, for readability
and so no other regulatory citations or
guidance documents need to be
updated, PHMSA proposes to remove
and reserve this paragraph instead.
Paragraph (e) currently states that
seals or other substances shall not be
thrown into the tank, and the contents
of the tank may not be spilled over the
car or tank. HMIWG determined the
requirement in this paragraph was
unnecessarily prescriptive, as the
procedures for properly removing and
disposing of seals and other substances
must be included in the safety
procedures required by proposed (a)(5)
of this section. Furthermore, the HMR
already prohibits residual hazardous
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material on the outside of the packaging.
Structurally, HMIWG proposed to
remove this paragraph and replace it
with the requirements currently
proposed in paragraph (l) instead of
removing and reserving paragraph (e).
However, to ensure ease of
understanding and so no other
regulatory citations or guidance
documents need to be updated, PHMSA
proposes to remove and reserve this
paragraph instead.
Paragraph (f) currently contains
prescriptive safety procedures for
operating a top-operated bottom outlet
valve. HMIWG determined that these
prescriptive safety procedures for valve
operation are outdated and do not
reflect current bottom outlet designs.
The requirements for bottom outlet
valve operation must be part of the
safety procedures as required by
proposed paragraph (a)(5) of this
section. Structurally, HMIWG agreed to
remove this paragraph and replace it
with the requirements currently
proposed in paragraph (m) instead of
removing and reserving paragraph (f).
However, to ensure ease of
understanding and so no other
regulatory citations or guidance
documents need to be updated, PHMSA
proposes to remove and reserve this
paragraph instead.
Paragraph (g) currently contains
prescriptive procedural requirements for
operation of equipment to remove
product plugs that prevent adequate
operation of the valves and equipment.
In 2017, HMIWG agreed to remove and
reserve this paragraph. For some
operations, the current procedures of
paragraph (g) may be outdated or
inconsistent with current industry best
practices. Instead, PHMSA and FRA
have determined such prescriptive
procedures must be included and
updated in the safety procedures
required by proposed paragraph (a)(5) of
this section. As such, PHMSA proposes
to remove and reserve this paragraph
(g).
Paragraph (h) currently details
securement requirements for
connections used for the transfer of
hazmat into—or out of—a tank car.
PHMSA proposes to amend paragraph
(h) by removing the word ‘‘unloading’’
from it, as agreed to by HMIWG.
However, as previously mentioned,
instead of moving this paragraph to
replace paragraph (b)—as agreed to by
HMIWG—PHMSA proposes to make
this change without moving the
paragraph. Finally, the language is
further modified for clarity by removing
the reference to ‘‘pipes on the dome’’
since connections could include more
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than just pipes (e.g., valves, hoses, or
reducers).
Currently, paragraph (i) provides
requirements for the facility operator
during unloading, paragraph (j) includes
certain exceptions for attendance, and
paragraph (k) specifies requirements
when an unloader is absent. In this
NPRM, PHMSA proposes minor
revisions to paragraphs (i)(2)(i), (j)(2), (k)
introductory text, (k)(4), and (k)(5).
These minor edits align these
paragraphs with the rest of the proposed
amendments in § 174.67 and were
agreed to by HMIWG.
Paragraph (l) currently prescribes the
actions that must be taken as soon as a
tank car is completely unloaded. As
agreed to by the HMWIG, PHMSA
proposes to remove the closure
securement language and replace it with
a reference to pre-transportation closure
securement regulations in § 173.31. This
is being proposed because we believe
this securement of closures and removal
of unloading connections language is
unnecessary and redundant of existing
requirements in § 173.31(d) associated
with pre-trip examination of the tank
car.
Paragraph (n) currently contains
prescriptive environmental remediation
procedures when oil or gas has been
spilled. As agreed to by HMIWG,
PHMSA proposes to remove and reserve
paragraph (n) because specific
instruction on the environmental
remediation or cleanup of a hazmat spill
is outside the scope of the HMR.
However, such procedures may be
included as part of the facility’s safety
procedures in order to meet other
applicable federal, state, or local
requirements.
Paragraph (o) currently includes
language requiring tools to be kept
clean. As recommended by HMIWG,
PHMSA proposes to remove and reserve
paragraph (o). Tool maintenance
measures including the types of tools to
use, calibration, cleanliness, and
instructions on use must be included in
the safety procedures required by
proposed paragraph (a)(5) of this
section. Therefore, we are removing the
redundant language covered by this
paragraph and reserving it.
Overall, PHMSA expects that the
proposed revisions to § 174.67 will
maintain safety by allowing
transloading to be conducted in
accordance with written safety
procedures and industry best practices
developed specifically for the tank car
designs involved and materials being
transferred, instead of prescriptive
standards.
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Section 174.81
Section 174.81 specifies segregation
requirements for the transportation of
hazardous materials by rail. Paragraph
(g) specifies the instructions for the
Class 1 (explosive) segregation table in
paragraph (f). In review of these
requirements, PHMSA notes that
paragraph (g)(3)(iv) has outdated
terminology. Currently, the paragraph
specifies requirements and limitations
for detonators and detonating primers.
However, the term ‘‘detonating primers’’
is no longer used in the HMR. Final rule
HM–189M 46 corrected editorial errors,
made minor regulatory changes, and
improved the clarity of certain
provisions to the HMR. One of these
revisions was updating the wording
‘‘detonating primers’’ to the more
accurate terminology of ‘‘detonating
assemblies and boosters with
detonators.’’ However, PHMSA
identified this editorial correction was
not made in § 174.81(g)(3)(iv).
Therefore, PHMSA proposes to revise
the terminology of ‘‘detonating primers’’
to ‘‘detonating assemblies and boosters
with detonators.’’ In review of
§ 174.81(g)(3)(iv), PHMSA also
determined the phrase ‘‘Division 1.4S
explosives’’ created unnecessary
confusion in the applicability of Note 4.
Detonators, detonating assemblies, and
boosters with detonators, whether
Division 1.1, 1.2, or 1.4, may not be
transported in the same rail car with
Division 1.1 and 1.2 material (except
other detonators, detonating assemblies,
and boosters with detonators). These
requirements align with current
standards for highway and vessel
explosive segregation. PHMSA expects
these editorial clarifications will
improve clarity of the HMR while not
creating any additional burdens for rail
transportation of explosives.
Part 176
Section 176.2
Section 176.2 defines terms for the
purposes of part 176. In conjunction
with the USCG, PHMSA proposes an
editorial revision to the definition of
Commandant (CG–522), USCG to reflect
organizational updates within the
USCG. The proposed revisions include
replacing the acronym ‘‘CG–522’’ with
the current acronym ‘‘CG–ENG,’’ which
stands for United States Coast Guard
Office of Design and Engineering
Standards; replacing the ‘‘Office of
Operating and Environmental
Standards’’ with the current name
‘‘Office of Design and Engineering
Standards’’; and replacing the outdated
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postal code ‘‘20593–0001’’ with the
current postal code of ‘‘20593–7509.’’
Section 176.84
Section 176.84 describes the
requirements to store, handle, and
segregate hazardous materials for cargo
and passenger vessels, with paragraph
(a) specifying the meaning of the
Column 10B of the § 172.101 HMT
stowage codes (e.g., ‘‘stow away from
hydrazine’’). Limited quantities are not
subject to the stowage code provisions
found in Column 10B of the HMT (see
§ 172.101(k)), however § 176.84(a) does
not restate that limited quantities are
not subject to the stowage code
provisions assigned by Column 10B of
the HMT.
The International Vessel Operators
Dangerous Goods Association (IVODGA)
submitted a comment 47 to the 2017
Regulatory Reform Notice, stating that
placing the limited quantity stowage
code exception only in § 172.101(k)
created confusion for shippers and
vessel operators. IVODGA requested
that PHMSA revise § 176.84 editorially
to reiterate that limited quantities are
not subject to the stowage codes
assigned by Column 10B of the
§ 172.101 HMT. PHMSA and the USCG
agree that § 176.84 should be revised
editorially to reiterate the limited
quantity exception to reduce confusion.
Therefore, PHMSA proposes to revise
§ 176.84(a) editorially by duplicating the
limited quantity exception language
from § 172.101(k). PHMSA expects this
revision will increase safety and
efficiency by reducing confusion for
shippers and carriers of limited quantity
materials.
Section 176.340
Section 176.340 describes
requirements for the vessel
transportation of combustible liquids in
portable tanks. Paragraph (c) specifies
portable tanks approved by the
Commandant (CG–MSO), USCG are
authorized for the transportation of
combustible liquids by vessel. PHMSA
proposes an editorial revision, to
replace the acronym ‘‘CG–MSO’’ with
that office’s current acronym ‘‘CG–
ENG.’’ This revision will provide clarity
and reduce confusion by aligning the
HMR with USCG’s current office
structure.
Section 176.905
Section 176.905 describes the
requirements for transporting vehicles
powered by an internal combustion
47 See IVODGA OST Regulatory Reform comment:
https://www.regulations.gov/document?D=DOTOST-2017-0069-2399.
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engine, fuel cell, batteries, or a
combination of these fuel sources by
vessel. Paragraph (i) specifies when a
vehicle complies with the requirements
of the paragraph, it is not subject to the
HMR. PHMSA proposes to add
paragraph (i)(7) to provide an exception
from the requirements of the HMR for
vehicles stored incidental to movement
on shore prior to or after vessel
transportation. This exception is
intended to mirror the HMR’s broad
exception for vehicles transported by
highway or rail in accordance with
§ 173.220(h)(1). PHMSA expects this
will have no impact on the safe
transportation of vehicles while
providing regulatory relief for vessel
transporters.
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Section 177.801
Section 177.801 specifies that a
forbidden material, or hazardous
material not prepared in accordance
with the HMR, is not authorized for
transportation by motor vehicle.
PHMSA proposes to expand the section
to include additional scenarios that are
unacceptable for transportation. These
are proposed for ease of regulatory
understanding and clarity and are not
new restrictions. To accomplish this,
the first half of the introductory
paragraph is proposed as a new
paragraph (a). Additionally, the second
half of the introductory paragraph is
moved to a new paragraph (b) and
revised to specify that a hazardous
material not classified, packaged,
marked, labeled, or placarded in
accordance with the requirements of the
HMR or by special permit may not be
accepted for transportation or
transported. These additional examples
will provide greater clarity of what
materials are not acceptable for
transportation under the HMR and will
increase safety.
Section 177.804
This section requires motor vehicle
carriers of hazardous materials comply
with the FMCSR and paragraph (a)
specifies motor carriers and other
persons subject to part 177 must also
comply with specific provisions of the
FMCSR. PHMSA has been made aware
there is potential confusion in a
scenario where a vehicle is subject to
the HMR, but the vehicle is not of
sufficient size to be subject to the
FMCSR. Therefore, to provide
regulatory clarity without reducing
safety, PHMSA proposes to amend
paragraph (a) to specify compliance
with the FMCSR is only applicable to
vehicles that are subject to the FMCSR.
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Section 177.816
Section 177.816 specifies the
requirements for highway transportation
driver training. Currently, paragraph (c)
specifies that §§ 177.816(a) and (b)
training requirements may be satisfied
with a tank vehicle or hazardous
materials endorsement. In collaboration
with FMCSA, PHMSA has become
aware that cargo tank motor carriers are
relying solely on the tank endorsement
or hazardous materials endorsement
provision in paragraph (c) to meet the
training requirements related to cargo
tank driving functions. FMCSA advises
that most states have a six- or seven-year
expiration on Commercial Driver’s
Licenses (CDLs), far beyond the threeyear refresher training required by
§§ 172.704 and 177.816(d). While
paragraph (c) allows for the tank
endorsement or hazardous materials
endorsement to meet training
requirements, the HMR does not allow
the period of renewal of a tank vehicle
or hazardous materials endorsement to
supersede the three-year HMR
requirement. Therefore, to assist in
understanding of the current regulatory
requirements and increase compliance,
PHMSA proposes to add qualifying
language to paragraph (c) to specify that
the tank vehicle or hazardous materials
endorsement may be used in place of
the training requirements if it
appropriately covers the requirements
in paragraph (a) and (b). Furthermore,
PHMSA proposes to add language to
paragraph (d) stating that the training
frequency must meet the requirements
of § 172.704(c), which is required at
minimum every three years. This
clarification will enhance safety by
ensuring everyone understands and
abides by the current requirement that
periods between training cannot exceed
three years and will help ensure all
operators are aware of the most current
issues and response plans.
Section 177.835
Section 177.835 specifies additional
requirements for the transportation of
Class 1 hazardous materials by motor
vehicle. Paragraph (d) provides
conditions and requirements for Class 1
materials to be transported in
multipurpose bulk trucks (MBTs).
PHMSA proposes to revise paragraph
(d) to specify an MBT may not be
transported with a cargo tank that is
required to be marked or placarded.
Final rule HM–233D 48 established
standards for the safe transportation of
certain bulk explosives. In HM–233D,
PHMSA added paragraph (d) to allow
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Class 1 (explosive) materials to be
transported with Division 5.1
(oxidizing), Class 8 (corrosive), and/or
combustible liquids in MBTs under
conditions set forth in IME Standard 23
and § 177.835(g). This regulatory
allowance was based on the adoption of
DOT–SP 11579. Following publication
of this final rule, FMCSA noted that
certain private motor carriers are
transporting explosive materials for
mining and quarrying in MBTs along
with a secondary cargo tank motor
vehicle transporting Division 1.5
hazardous materials (sometimes referred
to as a ‘‘pup’’ cargo tank motor vehicle).
However, it was not PHMSA’s intention
to authorize this configuration in HM–
233D, as it was not authorized in DOT–
SP 11579. As this is not indicated
clearly in § 177.835(d), PHMSA
proposes to specify an MBT may not be
transported with any cargo tank that is
required to be marked or placarded
under § 177.823. PHMSA expects this
proposed language to increase safety
and eliminate the inconsistency
between DOT–SP 11579 and the current
regulatory requirements. In addition,
this proposal is consistent with the
existing prohibition in § 177.835(c)(3)
that specifies Division 1.1 or 1.2
(explosive) materials may not be loaded
or carried on a combination of vehicles
when any vehicle in the combination is
a cargo tank that is required to be
marked or placarded under § 177.823.
Section 177.837
Section 177.837 specifies the
requirements for the transportation of
Class 3 (flammable liquids) hazardous
materials by motor vehicle. Paragraph
(c) specifies bonding and grounding
requirements before and during transfer
of lading to or from a cargo tank. This
requirement only applies to flammable
liquids; the HMR do not currently
require cargo tanks that are transferring
combustible liquids to be bonded and
grounded in accordance with the
requirements of this section. However,
combustible liquids and flammable
liquids that have been reclassified as
combustible liquids exhibit
characteristics similar to materials
classed as flammable liquids,
particularly regarding vapors. Both
combustible liquids and flammable
liquids that have been reclassified as
combustible liquids also have the
potential for initiation by the static
charge produced by product flow
through a piping system on a cargo tank
motor vehicle that is not bonded and
grounded.
PHMSA identified four recent
incidents involving combustible liquids
that may have been minimized by the
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proposed bonding and grounding
requirement prior to loading or
unloading. Below are summaries of
these incidents, which highlight the
potential severity of incidents, resulting
total damages, and release of hazardous
materials:
• August 5, 2015: A cargo tank was
loading diesel fuel at a fuel station when
a fire ignited under the hood of the
vehicle, resulting in $349,130 in total
damages. 4,500 gallons of diesel fuel
was released.
• August 4, 2016: An explosion
occurred at a shipper’s loading facility
while diesel fuel was being loaded into
a cargo tank motor vehicle. Total
damage costs amounted to almost $2
million and a release of 2,500 gallons.
• January 31, 2018: While a cargo
tank motor vehicle was being loaded,
Fuel Oil (No. 1, 2, 4, 5, or 6) was
released, followed by an explosion and
fire. The total damages were $1.3
million and 2,534 gallons were released.
• June 3, 2019: An explosion
occurred while aviation fuel was being
loaded into a cargo tank motor vehicle,
resulting in a release of 3,104 gallons of
hazardous material and approximately
$7.3 million in total damages. In
addition, this incident resulted in one
major injury and three minor injuries.
Based on these incidents and to
ensure the safe transportation of these
materials, PHMSA proposes to revise
paragraph (c) to specify that a
flammable liquid, a combustible liquid,
or a flammable liquid reclassified as
combustible liquid is subject to the
bonding and grounding requirements of
§ 177.837.
Section 177.840
This section details additional
requirements for Class 2 (gases)
hazardous materials transported by
highway. Paragraph (n) states that in the
event of an unintentional release of
liquefied compressed gas to the
environment, the internal self-closing
stop valve or other primary means of
closure must be shut. Paragraph (r)(2)
requires the qualified person monitoring
the unloading of a cargo tank motor
vehicle containing liquefied compressed
gas using a facility-provided hose be
within arm’s reach of the mechanical
means of closure for the internal selfclosing stop valve. Lastly, paragraph (t)
requires the qualified person monitoring
the unloading of a cargo tank motor
vehicle containing liquefied compressed
gas and being unloaded without
emergency discharge equipment be
within arm’s reach of the mechanical
means of closure for the internal selfclosing stop valve. All three of these
paragraphs only reference internal self-
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closing stop valves and do not include
a reference to external self-closing stop
valves. However, there are cargo tank
motor vehicles that transport liquefied
compressed gas that have external selfclosing stop valves. In total, FMCSA
estimates that there are approximately
122,014 cargo tank motor vehicles that
transport Division 2.2 (non-poisonous
nonflammable gas) hazardous materials,
which includes liquefied compressed
gases, that have internal and/or external
self-closing stop valves. Given the high
number of cargo tank motor vehicles
that may utilize external self-closing
stop valves, primarily in cryogenic
service, it is important to ensure that
requirements for access to the means of
closure for internal self-closing stop
valves also apply to external self-closing
stop valves. Therefore, PHMSA is
adding clarifying language that these
access requirements apply to both
internal and external means of closure.
PHMSA expects these additional
provisions will continue to ensure the
safe transportation of cargo tank motor
vehicles and proposes to revise these
paragraphs to require external selfclosing stop valves to comply with the
same requirements as internal selfclosing stop valves. In review of
historical rulemaking language, PHMSA
does not expect it was the explicit intent
to exclude external self-closing stop
valves from these requirements.
Lastly, in paragraph (t), PHMSA
proposes to remove the reference to
December 31, 1999, as it is obsolete, and
all chlorine cargo tank motor vehicles
are now subject to the additional
unloading requirements specified in this
paragraph. This editorial revision
increases regulatory clarity without
diminishing safety.
Section 177.841
This section provides additional
requirements when transporting
Division 6.1 and Division 2.3 hazardous
materials via motor vehicle. Paragraph
(e)(1) specifies when a package bears a
POISON or POISON INHALATION
HAZARD label or placard, it may not be
transported in the same motor vehicle
with foodstuffs, feed, or edible material
intended for consumption by humans or
animals unless the poisonous material is
packaged in a specific way. In the
interest of safety, PHMSA proposes to
revise paragraph (e)(1) to also include
packages bearing or required to bear a
POISON GAS label or placard in the list
of restricted hazardous materials with
foodstuffs, feed, or edible material.
Paragraph (e)(2) specifies a package
bearing or required to bear a POISON,
POISON GAS, or POISON
INHALATION HAZARD label is not
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authorized for transportation in the
driver’s compartment of a motor
vehicle. Due to new motor vehicle
designs, PHMSA proposes to revise this
paragraph to specify that this also
includes ‘‘enclosed van trucks with no
permanent barrier separating the driver
from the cargo component.’’ As the
intent of this paragraph is to ensure a
driver is not exposed to a poisonous
material while in transportation, this
revision ensures the continued safety of
drivers in transportation.
Part 178
Section 178.320
Section 178.320 specifies general
requirements for DOT specification
cargo tank motor vehicles and paragraph
(a) includes definitions that apply to
DOT specification cargo tank motor
vehicles.
PHMSA proposes to amend the
following definitions:
• Cargo tank: During review of
§ 178.320, PHMSA noted that cargo tank
was also defined in § 171.8, with minor
editorial differences. PHMSA proposes
to revise the § 171.8 definition of cargo
tank to align with the current definition
in § 178.320. See ‘‘Section IV. Sectionby-Section Review; Part 171; Section
171.8’’ for details on the proposed
changes to the § 171.8 definition of
cargo tank. Subsequently, instead of
also proposing to revise the definition in
this section to match, PHMSA proposes
to replace the definition of cargo tank
with a reference to the definition in
§ 171.8. This avoids unnecessary
duplication and ensures if a future
revision is necessary, it will only have
to be revised in a single location.
Furthermore, this still ensures that a
reader who looks to § 178.320 for the
definition of cargo tank is able to locate
the definition in § 171.8 easily.
• Cargo tank motor vehicle: The
definition of cargo tank motor vehicle is
currently defined in both §§ 171.8 and
178.320, with no differences between
the two. Similar to the proposal to the
definition of cargo tank in this section,
PHMSA proposes to replace the
§ 178.320 definition of cargo tank motor
vehicle with a reference to the definition
in § 171.8. This avoids any potential
future discrepancy between the same
definition in two sections of the HMR.
• Minimum thickness: PHMSA
proposes to add the word ‘‘in’’ to the
last sentence of this definition, as an
editorial amendment for correct
grammar.
PHMSA proposes to add the following
definitions:
• Cargo tank motor vehicle
certification date: Based on stakeholder
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feedback, PHMSA and FMCSA
understand there is some confusion on
the difference between the cargo tank
motor vehicle certification date and the
original test date. It is important to
understand the difference, as the HMR
require the cargo tank motor vehicle
certification date to be marked on the
specification plate, with the original test
date marked on the name plate. To
reduce any confusion, PHMSA proposes
to add a definition for cargo tank motor
vehicle certification date and original
test date. PHMSA proposes to define
cargo tank motor vehicle certification
date as the date the cargo tank motor
vehicle manufacturer certifies the
completed cargo tank motor vehicle
complies in all respects with the DOT
specification and the ASME Code, if
applicable. See below for a discussion
on the proposed definition of original
test date.
• Component: Section 178.320
currently defines an appurtenance as
‘‘any attachment to a cargo tank that has
no lading retention or containment
function and provides no structural
support to the cargo tank.’’ Because a
component may have some form of
lading retention function, either during
loading, unloading, in-transit, or a
combination thereof, it does not meet
the definition of an appurtenance.
Having no definition in § 178.320 can
cause confusion. Therefore, PHMSA
proposes to add a definition for
component to mean ‘‘any attachment to
the cargo tank or cargo tank motor
vehicle, including valves, piping,
fittings, ladders, clips, protection
devices, and hoses that contain lading
during loading, unloading or
transportation, or are required to be
pressure or leak-tested in accordance
with the requirements of part 180 of this
subchapter.’’
• Flexible connector: In
§ 180.407(d)(2)(ii) of this NPRM,
PHMSA proposes to specify that a
flexible connector is a part of the piping
system, but it is not currently defined in
the HMR. Therefore, PHMSA proposes
to add a definition for the term flexible
connector. The proposed definition is
similar to the definition in NFPA
Standard No. 58, and PHMSA proposes
a flexible connector to mean ‘‘a short
component of a piping system, not
exceeding 36 in. (.91 m) overall length,
fabricated of flexible material and
equipped with suitable connections on
both ends.’’ Furthermore, PHMSA
proposes this definition specifies that
‘‘liquefied petroleum gas resistant
rubber and fabric or metal, or a
combination thereof, or all metal may be
used.’’
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• Lading retention system: PHMSA
proposes to add a definition of lading
retention system as it is referenced
several places in the HMR but is not
currently defined. Having no definition
in the HMR can cause regulatory
confusion, so adding a definition will
decrease confusion and enhance safety.
PHMSA proposes that a lading retention
system means ‘‘the cargo tank wall and
any associated components or
equipment that, if damaged, could result
in the release of the contents of the
package.’’ This proposed definition
aligns with Letter of Interpretation Ref.
No. 03–0057.49 As specified in the
letter, PHMSA considers piping and
valves to be a part of the associated
components or equipment in the lading
retention system.
• Lining: There are a variety of linings
used in the cargo tank industry, such as
internal and external linings and
coatings, and while the term is used
throughout the HMR, it is not defined.
By adding a definition of lining to
§ 178.320, PHMSA expects this will
ensure effective communication within
the regulated community and will
prevent any future confusion, thus
enhancing safety. PHMSA proposes
lining to mean ‘‘an internal layer of
different material covering the inside
surface of the cargo tank.’’
• Name plate: The terms ‘‘ASME
plate,’’ ‘‘name plate,’’ and ‘‘specification
plate’’ are not used throughout the HMR
consistently. This has created a
considerable amount of confusion
among the regulated community. This
uncertainty is amplified when
considering the challenges associated
with mounting a used ASME Code cargo
tank to a new chassis. To address the
issue and alleviate industry frustration,
PHMSA proposes to establish a
definition for name plate (as well as a
definition for specification plate).
PHMSA proposes name plate to mean
‘‘a data plate permanently attached to
the cargo tank by the cargo tank
manufacturer for the purpose of
displaying the minimum information
required by the ASME Code, as
prescribed in §§ 178.337–17(b),
178.338–18(b), or 178.345–14(b) of this
part, as appropriate.’’ PHMSA and
FMCSA expect this definition aligns
with current industry practice and
stakeholder understanding. See below
for a discussion on the proposed
definition of specification plate.
• Original test date: As previously
discussed, there is confusion on what
constitutes the original test date marked
49 See Letter of Interpretation Reference No. 03–
0057: https://www.phmsa.dot.gov/regulations/
title49/interp/03-0057.
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85625
on the name plate and the cargo tank
motor vehicle certification date stamped
on the specification plate. Some in the
regulated community have indicated the
original test date is the date the cargo
tank was actually completed, while
others believe it is the cargo tank motor
vehicle certification date. However, if
the original test date is the date the
cargo tank motor vehicle is certified,
this does not take into account certain
circumstances during the manufacturing
process. For example, sometimes a cargo
tank motor vehicle is constructed in two
phases where the cargo tank is
manufactured but it is assembled and
mounted on a chassis at a later date
(thus becoming a cargo tank motor
vehicle). Alternatively, there are other
circumstances where a cargo tank is
assembled and mounted on a different
chassis, and it is necessary to know
when the original cargo tank was
manufactured. Therefore, as previously
discussed, to ensure consistent
understanding of the HMR, PHMSA
proposes to add definitions for cargo
tank motor vehicle certification date
and original test date. PHMSA proposes
that original test date mean ‘‘the date
the cargo tank manufacturer performed
the original pressure test in accordance
with part 178, to verify the structural
integrity of the cargo tank in accordance
with the requirements for new
construction prescribed in this part.’’
• Sacrificial device: PHMSA noted
that sacrificial device is currently
defined in § 178.345–1 (the section for
DOT Specification 406, 407, and 412
cargo tank motor vehicles definitions);
however, the definition also applies to
DOT Specification MC 331 cargo tank
motor vehicles. Therefore, PHMSA
proposes to move the definition for
sacrificial device from § 178.345–1(c) to
§ 178.320.
• Shear section: PHMSA noted that
shear section is currently defined in
§ 178.345–1 (the section for DOT
Specification 406, 407, and 412 cargo
tank motor vehicles definitions);
however, the definition also applies to
DOT Specification MC 331 and 338
cargo tank motor vehicles. Therefore,
PHMSA proposes to move the definition
for shear section from § 178.345–1(c) to
§ 178.320.
• Specification plate: As previously
mentioned, PHMSA proposes to add a
definition for specification plate to help
distinguish it from a name plate and
provide greater clarity. PHMSA and
FMCSA expect that this proposed
definition aligns with current industry
practice and stakeholder understanding.
PHMSA proposes that a specification
plate means ‘‘a data plate containing the
applicable markings provided in
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§§ 178.337–17(c), 178.338–18(c), or
178.345–14(c), as appropriate, and
permanently attached to the cargo tank
or cargo tank motor vehicle chassis by
the manufacturer. The markings on this
plate are certification by the
manufacturer that the cargo tank or the
cargo tank motor vehicle conforms in all
respects with the specification
requirements of this subchapter.’’
PHMSA requests comment on these
proposed definitions and how they
affect different functions. Specifically,
are all the possible alternatives included
in the proposed regulatory language?
Does any of the proposed regulatory
language obstruct current activities or
functions?
Section 178.337–1
This section sets forth the general
requirements for DOT Specification MC
331 cargo tank motor vehicles.
Paragraph (d) addresses the requirement
for reflective design of the cargo tank.
PHMSA proposes to remove the
requirement that specifies that the cargo
tank must be painted. This is consistent
with previously issued Letters of
Interpretation Reference Nos. 11–0067,
14–0180, 15–0242, and 19–0107. This
provides for additional regulatory
flexibility while still maintaining safe
transportation of hazardous materials.
Specifically, PHMSA proposes to
remove the requirement for the cargo
tank to be painted, which allows for the
use of a wrap, cover, or paint on
uninsulated cargo tanks to meet the
reflexivity performance standard.
Paragraph (g) provides definitions
specific to MC 331 cargo tank motor
vehicles. In review of this section, and
the cargo tank motor vehicle definitions
in § 178.320, PHMSA noted duplicative
definitions for internal self-closing stop
valves in §§ 178.320 and 178.337–1.
PHMSA proposes to remove the
definition of internal self-closing stop
valves in § 178.337–1 to avoid
unnecessary duplication and ensure that
if the definition needs to be revised in
the future, it only has to be revised in
one regulatory section.
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Section 178.337–2
This section details materials
authorized for DOT Specification MC
331 cargo tanks. Paragraph (b)(2)(i)
specifies the materials of construction
for chlorine cargo tanks manufactured
after January 1, 1975, must conform to
ASTM A 612 Grade B or A 516/A 516M,
Grade 65 or 70 (IBR, see § 171.7 of this
subchapter). However, PHMSA and
FMCSA noted that steel is no longer
defined as grade A or B. Therefore,
PHMSA proposes to remove the
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reference to Grade B steel appropriately
to remove any potential confusion.
Sections 178.337–3, 178.338–3, and
178.345–3
Sections 178.337–3, 178.338–3, and
178.345–3 detail structural integrity
requirements for DOT Specification MC
331; MC 338; and DOT Specification
406, 407, and 412 cargo tank motor
vehicles, respectively. Paragraph (g) in
§§ 178.337–3 and 178.338–3 and
paragraph (f) in § 178.345–3 specify the
design, construction, and installation of
an attachment, appurtenance, structural
support member, or accident protection
device.
In paragraph (g)(3) of §§ 178.337–3
and 178.338–3 and paragraph (f)(3) of
§ 178.345–3, PHMSA proposes to
specify the welding of any appurtenance
to the cargo tank wall applies to both
‘‘internal or external’’ appurtenances.
Consistent with long-standing letters of
interpretation previously issued by
PHMSA, this revision provides
regulatory clarity and ensures continued
safe manufacture of cargo tank motor
vehicles.50 In these long-standing letters
of interpretation, PHMSA notes that
internal appurtenances may not be
attached to the cargo tank wall without
mounting pads. An example of internal
appurtenances are baffles, which require
mounting pads to be attached to the
cargo tank wall.
PHMSA also proposes minor editorial
revisions to §§ 178.338–3(g)(3) as well
as § 178.345–3(f) and (f)(3) to ensure
consistency throughout the HMR, as
these paragraphs outline the same
requirements for different types of cargo
tank motor vehicles. In § 178.338–
3(g)(3), PHMSA proposes to add the
preposition ‘‘to’’ in the first sentence for
grammatical accuracy. In addition,
when comparing these paragraphs,
PHMSA identified that ‘‘accident
damage protection’’ was not specified in
the applicability of § 178.345–3(f) for
DOT 400 series cargo tanks, but it was
identified in § 178.337–3(g) for MC 331
cargo tanks and § 178.338–3(g) for MC
338 cargo tanks. As these paragraphs
have the same regulatory intent,
PHMSA proposes to add accident
damage protection to § 178.345–3(f).
PHMSA expects this proposal will
eliminate any potential confusion from
regulatory inconsistency, which will
increase safety. PHMSA also proposes to
revise the first reference of ‘‘shell or
50 See Letters of Interpretation Reference Nos. 07–
0169 and 14–0235. Letter of Interpretation
Reference No. 07–0169 is available at: https://
www.phmsa.dot.gov/regulations/title49/interp/070169. Letter of Interpretation Reference No. 14–
0235 is available at: https://www.phmsa.dot.gov/
regulations/title49/interp/14-0235.
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head’’ in § 178.345–3(f)(3) to read as
‘‘shell wall or head wall,’’ similar to
§§ 178.337–3(g)(3) and 178.338–3(g)(3).
Furthermore, §§ 178.337–3(g)(3)(iii),
178.338–3(g)(3)(iii), and 178.345–
3(f)(3)(iii) require that when welding
any appurtenance to the cargo tank wall
with a mounting pad, the pad must
extend at least two inches in each
direction from any point of an
appurtenance or structural support
member. The second sentences of these
sections also specify ‘‘[t]his dimension
may be measured from the center of the
attached structural member.’’ PHMSA
proposes to remove this sentence,
because it can lead to confusion while
only providing an option on how that
measurement can be made. The
circumstance for this option mostly
applies to only small attachments
where, because of either location or
function, it is easy to measure from the
center of the structural member.
PHMSA expects that because this
provision is only applicable in some,
but not all, circumstances, it creates
confusion in situations where the center
of the attached structural member
cannot be identified or the measurement
from the center does not make sense.
Therefore, to eliminate any potential
confusion, PHMSA proposes to remove
this sentence. Although PHMSA
proposes to remove the regulatory
instruction, the dimension may still be
measured from the center of the
attached structural member, if
applicable.
Finally, PHMSA is proposing an
editorial revision to these three sections
to remove the phase ‘‘or structural
support members.’’ Structural support
members are not required to be attached
to the tank shell with mounting pads
(see final rule HM–213) 51 therefore
PHMSA proposes to remove the phrase
to eliminate confusion over
requirements for use of mounting pads
with structural support members.
Section 178.337–3
See ‘‘Section IV. Section-by-Section
Review; Part 178; Sections 178.337–3,
178.338–3, and 178.345–3’’ for details
on the revisions proposed to this
section.
Sections 178.337–8, 178.338–11, and
178.345–11
Section 178.337–8 details
requirements for the openings, inlets,
and outlets of DOT Specification MC
331 cargo tank motor vehicles;
§ 178.338–11 details discharge control
devices for DOT Specification MC 338
cargo tank motor vehicles; and
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§ 178.345–11 details tank outlet
requirements for DOT Specification 406,
407, and 412 cargo tank motor vehicles.
PHMSA proposes to add paragraph
(a)(4)(vii) in § 178.337–8, paragraph
(c)(2)(iii) in § 178.338–11, and
paragraph (b)(1)(iv) in § 178.345–11 to
require if the cargo tank is equipped
with a mechanical means of remote
closure for manual operation, it must
not be obstructed by equipment or
appurtenances in a manner that
prevents access to or operation of the
remote means in an emergency. FMCSA
has encountered cargo tank motor
vehicles where the manual emergency
remote shut off device has been
obstructed by various equipment or
appurtenances that were added after the
date of manufacture. This is a safety
concern because obstructions to the
manual emergency remote shut off
device make the device harder to
activate in an emergency, which may
cause an incident to occur or worsen an
incident in progress. Therefore, to
address this safety concern, PHMSA
proposes to provide an indication in
new paragraphs §§ 178.337–8(a)(4)(vii),
178.338–11(c)(2)(iii), and 178.345–
11(b)(1)(iv) that if equipped with a
mechanical means of remote closure, it
must not be obstructed to prevent
operation or access in an emergency.
Section 178.337–8
See ‘‘Section IV. Section-by-Section
Review; Part 178; Sections 178.337–8,
178.338–11, and 178.345–11’’ for details
on the revision proposed to this section.
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Section 178.337–9
This section prescribes requirements
for PRDs, piping, valves, hoses, and
fittings for DOT Specification MC 331
cargo tanks. Paragraph (a)(3) requires
each valve used on a DOT Specification
MC 331 cargo tank motor vehicle be
designed, constructed, and marked for a
rated pressure not less than the design
pressure of the cargo tank. PHMSA
proposes to replace the term ‘‘valve’’
with ‘‘pressure relief device’’ as this
matches the title of paragraph (a) more
appropriately.
Paragraph (b) specifies piping, valves,
hoses, and fittings requirements for DOT
Specification MC 331 cargo tanks.
PHMSA proposes to revise the
paragraph (b) title from ‘‘Piping, valves,
hose, and fittings’’ to ‘‘Components and
other pressure parts.’’ This proposed
title aligns with the proposed § 178.320
definition of components and more
appropriately illustrates the
requirements of the paragraph. PHMSA
expects this proposed change will help
to reduce any regulatory confusion.
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PHMSA also found the HMR does not
assign responsibility to who must
ensure that all components meet
paragraph (b) requirements, causing
potential regulatory confusion. To
address this uncertainty, PHMSA
proposes to specify that the cargo tank
motor vehicle manufacturer is
responsible for ensuring that all
components comply with the
paragraphs that follow. This aligns with
other HMR requirements that require
the cargo tank motor vehicle
manufacturer to issue the certificate of
construction as well as the specification
plate and name plate. Therefore,
PHMSA expects this proposed
amendment to paragraph (b) will reduce
regulatory uncertainty and thus,
increases safety.
Paragraph (b)(1) specifies the burst
pressure requirements for all piping,
pipe fittings, hose, and other pressure
parts, except for pump seals and PRDs.
In order to be consistent with the ASME
Code, PHMSA proposes to replace the
phrase ‘‘design pressure’’ with the
phrase ‘‘MAWP,’’ the acronym for
maximum allowable working pressure
used in the ASME Code. This proposed
change eliminates an inconsistency
between the ASME Code and the HMR
and thus, increases safety. In addition,
PHMSA proposes to revise the reference
for chlorine service from paragraph
(b)(7) to paragraph (b)(8), as an editorial
amendment.
Paragraph (b)(6) requires cargo tank
manufacturers and fabricators to
demonstrate that all piping, valves, and
fittings installed on a cargo tank are free
from leaks by testing them at not less
than 80 percent of the design pressure
marked on the cargo tank. PHMSA
proposes to replace the term ‘‘cargo tank
manufacturers and fabricators’’ with
‘‘cargo tank motor vehicle
manufacturers’’ as this better aligns with
the responsibilities of manufacturers of
cargo tank motor vehicles. Additionally,
and similar to the proposed change in
paragraph (a)(3), PHMSA proposes to
revise the terminology to test at not less
than 80 percent of ‘‘design pressure’’ to
‘‘MAWP,’’ as this better aligns with
ASME requirements. Lastly, PHMSA
proposes to specify the test should be
conducted based off the ‘‘name plate
after the piping is installed on the cargo
tank motor vehicle’’ as opposed to
‘‘cargo tank’’ to provide further clarity
on this requirement. These proposed
changes provide regulatory clarity
without impacting safety.
Paragraph (b)(7) specifies
requirements for a hose assembler of
DOT Specification MC 331 cargo tanks.
PHMSA proposes to move the
requirements in paragraph (b)(7) to its
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own new paragraph (e) to provide
enhanced visibility, improve regulatory
compliance, and thus, improve safety.
Subsequently, PHMSA proposes to
reserve paragraph (b)(7). Furthermore,
in new paragraph (e), PHMSA proposes
to add a title of ‘‘hose assembler
requirements’’ to align with the rest of
§ 178.337–9 and the Office of Federal
Register Document Drafting Handbook,
which requires that when one section
paragraph has a heading, all of the other
paragraphs in the section should as
well. Lastly, as a clarifying statement,
PHMSA proposes to reference the
§ 180.416(f) written report requirement
for the hose assembler tests. PHMSA
expects that adding this reference will
improve compliance and therefore,
increase safe transportation of
hazardous materials.
Sections 178.337–10 and 178.338–10
These sections detail accident damage
protection requirements of DOT
Specification MC 331 and MC 338 cargo
tank motor vehicles. Paragraph (c)(1) of
both sections specify rear-end tank
protection device requirements. PHMSA
proposes to replace the words ‘‘valves,
piping, and fittings’’ with
‘‘components,’’ as this is consistent with
the new definition proposed in
§ 178.320.
Paragraph (c)(1) also specifies the rear
bumper dimensions must meet the
requirements of § 393.86. However,
FMCSA notes there is stakeholder
confusion on whether the referenced
dimensional requirements or the wheels
back vehicle exception in § 393.86
applies. The historical applicability and
intent of this paragraph is that the
referenced dimensional requirements in
§ 393.86 apply to accident damage
protection. Therefore, to remove any
potential confusion, and therefore,
increase safety, PHMSA proposes to add
a sentence specifying that the wheels
back exception provided in 49 CFR
393.86 does not apply.
Section 178.337–10
See ‘‘Section IV. Section-by-Section
Review; Part 178; Sections 178.337–10
and 178.338–10’’ for details on the
revisions proposed to this section.
Sections 178.337–17 and 178.338–18
Sections 178.337–17 and 178.338–18
detail marking requirements for DOT
Specification MC 331 and MC 338 cargo
tank motor vehicles, respectively.
Paragraph (a) details general
requirements for both the name plate
and the specification plate. In addition
to editorial revisions, PHMSA proposes
to specify that the responsibility of
applying the name plate and
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specification plate fall on the
manufacturer, as a clarifying statement.
While not explicitly stated, this codifies
current practice to remove any
ambiguity and ensure continued safe
hazardous materials transportation.
PHMSA notes this requirement means
that the requirements for the name
plate, when applicable, and
specification plate fall on the person
responsible for building the cargo tank,
cargo tank motor vehicle, or both.
PHMSA also proposes to remove the
compliance date of October 1, 2004, as
this date has passed, and all DOT
Specification MC 331 and MC 338 cargo
tank motor vehicles are subject to these
requirements.
Paragraph (a)(4) in both sections
indicates the specification plate may be
attached to the cargo tank motor vehicle
chassis rail and details methods on how
to do so. PHMSA proposes to revise
paragraph (a)(4) to specify the
specification plate must be attached to
the cargo tank or its integral supporting
structure, instead of the cargo tank
motor vehicle chassis rail. A DOT
Specification MC 331 or MC 338 cargo
tank potentially has a longer useable
lifespan than the life of the motor
vehicle chassis to which it is originally
attached. As such, it is possible for the
original specification plate to be
separated from the cargo tank if the
cargo tank is remounted to a different
chassis, which poses a safety risk to
knowing the specification of the cargo
tank. Therefore, to remove this possible
scenario, PHMSA proposes to require
the specification plate be mounted to
the cargo tank itself or an integral
supporting structure. Additionally,
PHMSA proposes minor editorial
amendments for sentence structure
clarity. These changes increase
regulatory consistency by aligning the
specification plate attachment language
with that of the DOT 400 series cargo
tank motor vehicle specification.
Section 178.337–17
See ‘‘Section IV. Section-by-Section
Review; Part 178; Sections 178.337–17
and 178.338–18’’ for details on the
revisions proposed to this section.
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Section 178.337–18
This section requires appropriate
documentation certifying that a
completed cargo tank motor vehicle
conforms to DOT Specification MC 331
cargo tank requirements and the ASME
Code. PHMSA proposes revisions that
better align this section with the
certification requirements (and
proposed changes) in §§ 178.338–19 and
178.345–15 to increase regulatory
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consistency and thus, compliance and
safety.
Paragraph (a) details requirements for
the cargo tank data report and a
certificate of construction. In the
introductory text to paragraph (a),
PHMSA proposes to specify the data
report is the ‘‘cargo tank’s ASME Form
U–1A data report as required by Section
VIII of the ASME Code’’ to align with
§§ 178.338–19(a)(1) and 178.345–
15(b)(2). Additionally, as an editorial
amendment, PHMSA proposes to clarify
the ‘‘certificate’’ is the ‘‘Certificate of
Compliance.’’ PHMSA proposes to make
similar editorial changes in paragraphs
(a)(1) and (3).
Moreover, PHMSA proposes to add
language to paragraph (a)(3) to specify
that when a cargo tank motor vehicle is
manufactured in two or more stages and
after the cargo tank motor vehicle is
brought into full compliance with the
applicable specification and ASME
Code, the final manufacturer must mark
the specification plate with the cargo
tank motor vehicle certificate date and
attach the specification plate to the
completed cargo tank in accordance
with § 178.338–18(a). PHMSA expects
this proposed language better aligns this
section with §§ 178.338–19 and
178.345–15 and current ASME Code
requirements.
Lastly, PHMSA proposes to make a
minor editorial amendment to
paragraph (a)(4) by removing the
indication that the cargo tank motor
vehicle must have the Registered
Inspector stamp, the specification plate,
and issue a Certificate of Compliance,
and instead specifying that the
Registered Inspector shall complete
these actions. This aligns the paragraph
better with §§ 178.338–19 and 178.345–
15.
Section 178.338–3
See ‘‘Section IV. Section-by-Section
Review; Part 178; Sections 178.337–3,
178.338–3, and 178.345–3’’ for details
on the revisions proposed to this
section.
Section 178.338–10
See ‘‘Section IV. Section-by-Section
Review; Part 178; Sections 178.337–10
and 178.338–10’’ for details on the
revisions proposed to this section.
Section 178.338–11
See ‘‘Section IV. Section-by-Section
Review; Part 178; Sections 178.337–8,
178.338–11, and 178.345–11’’ for details
on the revision proposed to this section.
Section 178.338–18
See ‘‘Section IV. Section-by-Section
Review; Part 178; Sections 178.337–17
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and 178.338–18’’ for details on the
revisions proposed to this section.
Section 178.338–19
This section details the requirements
for the certification of DOT
Specification MC 338 insulated cargo
tank motor vehicles. PHMSA proposes
revisions that better align this section
with the certification requirements (and
proposed changes) in §§ 178.337–18 and
178.345–15 to increase regulatory
clarity.
Paragraph (a) specifies documents
that must be furnished to the owner of
a cargo tank motor vehicle. PHMSA
proposes to move the current language
in paragraph (a)(1) to paragraph (a)
introductory text, with minor editorial
amendments. Subsequently, PHMSA
proposes to revise paragraph (a)(1) to
specify that the Certificate of
Compliance must be signed by an
official of the manufacturer responsible
for compliance and a DCE. As
mentioned, these changes better align
this section with §§ 178.337–18 and
178.345–15 to increase regulatory
consistency and clarity. There are no
proposed revisions to paragraph (a)(2),
but it appears in the regulatory text of
this NPRM for the Federal Register.
Paragraph (b) specifies requirements
when a cargo tank is manufactured in
two or more stages. PHMSA proposes to
redesignate paragraph (b) as paragraph
(a)(3) in addition to editorial
amendments to mirror § 178.337–18.
Additionally, PHMSA proposes to
specify that when the cargo tank motor
vehicle is brought into full compliance
with the applicable specification and
ASME Code, the final manufacturer
must mark the specification plate with
the cargo tank motor vehicle certificate
date and attach the specification plate to
the completed cargo tank in accordance
with § 178.338–18(a). PHMSA also
proposes to remove the language in this
paragraph related to what the
certification must include.
Paragraph (c) details requirements in
the event of a change in ownership.
Because PHMSA proposes to
redesignate paragraph (b) as paragraph
(a)(3), PHMSA proposes to redesignate
paragraph (c) as paragraph (b). Because
of this proposed redesignation, PHMSA
proposes to reserve paragraph (c).
Lastly, PHMSA proposes editorial
amendments in new paragraph (b) to
align with other cargo tank specification
certification sections.
Section 178.345–1
This section details the general
requirements for DOT Specification 406,
407, and 412 cargo tank motor vehicles.
Paragraph (c) includes definitions for
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these types of cargo tank motor vehicles.
However, there are several definitions in
§ 178.345–1 that are also found in
§ 178.320, some of which have different
wording. As this could cause confusion,
PHMSA proposes to remove all the
definitions which are already found in
§ 178.320. Reducing confusion in the
regulations helps to increase
compliance and thus, safety.
Additionally, and as discussed in
‘‘Section IV. Section-by-Section Review;
Part 178; Section 178.320,’’ PHMSA
proposes to move the definitions for
sacrificial device and shear section to
§ 178.320 as they apply to other types of
cargo tank motor vehicles in addition to
DOT Specification 406, 407, and 412
cargo tank motor vehicles.
Section 178.345–3
See ‘‘Section IV. Section-by-Section
Review; Part 178; Sections 178.337–3,
178.338–3, and 178.345–3’’ for details
on the revisions proposed to this
section.
Section 178.345–8
This section details accident damage
protection for DOT Specification 406,
407, and 412 cargo tank motor vehicles.
Paragraph (d) specifies rear-end tank
protection, with paragraph (d)(1)
describing design requirements for the
rear-end cargo tank protection device.
PHMSA proposes to split paragraph
(d)(1) into two paragraphs—paragraphs
(d)(1)(i) and (ii)—to better clarify
85629
deflection design requirements and
increase readability, which ultimately
increases safety. PHMSA proposes that
paragraph (d)(1)(i) contains the rear-end
cargo tank protection device design
requirements for cargo tanks where the
rear-end protection device is on the
same horizontal plane as the
component. PHMSA proposes that
paragraph (d)(1)(ii) contains design
requirements for a rear-end cargo tank
protection device when the component
is not on the same horizontal plane.
This proposed language is for
clarification. Figure 1 details the
difference between the vertical plane
and horizontal plane.
Figure 1: Section 178.345-8 Difference between Vertical Plane and Horizontal Plane
Vertical plane of the
outboard surface of the
rear-end protection
device
Rear-end
protection device
Horizontal plane of the
p1pmg
Paragraph (d)(2) indicates the
dimension requirements for the rear-end
cargo tank protection device. Paragraph
(d)(3) specifies additional design
requirements for the rear-end protection
device and its attachments on DOT
Specification 406, 407, and 412 cargo
tank motor vehicles. In paragraphs
(d)(2)(i)–(iii) and (3), PHMSA proposes
to spell out the dimensions instead of
using a numerical value, for
grammatical correctness.
During review of cargo tank motor
vehicle manufacturers and other
facilities that design and install rear-end
protection devices, FMCSA inspectors
identified that manufacturers who
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calculate and construct rear-end devices
were not properly calculating the 2 ‘‘g’’
impact, which is a result of potentially
confusing regulations in paragraph
(d)(3). As this results in non-compliant
rear-end protection devices that fail
under impact, PHMSA proposes to
revise paragraph (d)(3) to clarify this
requirement and ensure the continued
safe transportation of hazardous
materials. To achieve this clarity,
PHMSA proposes to revise the term
‘‘rated payload’’ to ‘‘gross vehicle
weight rating’’ and add a sentence to
specify ‘‘the structures supporting the
rear-end protection device, including
the frame and the attachments to the
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frame must be capable of withstanding
the 2 ‘g’ load.’’
Section 178.345–11
This section details requirements for
the openings, inlets, and outlets of DOT
Specification 406, 407, and 412 cargo
tank motor vehicles. Paragraph (b)
requires each cargo tank loading/
unloading outlet to be equipped with an
internal or external self-closing stop
valve. PHMSA proposes to revise
paragraph (b)(1)(ii) to specify that if the
actuating system fails, each loading/
unloading outlet must remain securely
closed and capable of retaining the
cargo tank’s lading. This provides
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additional clarification that failure is
another circumstance where the
loading/unloading outlet must remain
securely closed if the actuating system
fails. This increases safety because if the
actuating system fails, the outlet should
still be closed and capable of retaining
liquid to ensure continued safe
transportation of hazardous materials.
See ‘‘Section IV. Section-by-Section
Review; Part 178; Sections 178.337–8,
178.338–11, and 178.345–11’’ for details
on the proposal to add paragraph
(b)(1)(iv) to this section.
lotter on DSK11XQN23PROD with PROPOSALS2
Section 178.345–13
This section specifies the pressure
and leakage test requirements for DOT
Specification 406, 407, and 412 cargo
tank motor vehicles, with paragraph (a)
detailing that the pressure and leakage
tests must be in accordance with this
section and §§ 178.346–5, 178.347–5, or
178.348–5. PHMSA proposes to revise
the language in paragraph (a) to specify
that the pressure and leakage tests must
be performed by the cargo tank motor
vehicle manufacturer. This aligns with
current industry practice and provides a
clear distinction on the person with
responsibility to perform these tests,
which increases regulatory compliance
and safety.
PHMSA also proposes to add a
sentence to specify the leakage test shall
be performed after the piping is
installed on the cargo tank motor
vehicle. PHMSA and FMCSA expect
that this aligns with current industry
practice, while ensuring the continued
safe transport of the cargo tank motor
vehicle and reducing the likelihood of a
release of hazardous materials.
Section 178.345–14
This section specifies the marking
requirements for DOT Specification 406,
407, and 412 cargo tank motor vehicles.
Paragraph (a) provides general
certification requirements. PHMSA
proposes to add a clarifying statement to
paragraph (a) that if information is
required to be displayed on the name
plate, it does not need to be repeated on
the specification plate. This is
consistent with other DOT specification
requirements.
PHMSA also proposes certain
editorial amendments in this section.
Paragraph (b)(3) indicates that the tank
MAWP in psig must be marked on the
tank nameplate. In this paragraph,
PHMSA proposes to specify that by
‘‘tank,’’ the requirement applies to a
‘‘cargo tank.’’ Paragraph (c) provides
requirements for marking of the
specification plate, with paragraphs
(c)(6) and (7) requiring the marking of
the maximum loading and unloading
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rates, respectively. PHMSA proposes to
revise paragraph (c)(6) to allow for
‘‘NONE’’ and paragraph (c)(7) to allow
for ‘‘OPEN MH’’ or ‘‘NONE’’ as an
indication of no limit on the loading
and unloading rate, respectively.
Lastly, paragraph (d) includes the
requirements for a multi-cargo tank
motor vehicle. PHMSA proposes to
revise this paragraph to refer to the
definition of design type in § 178.320(b)
instead of the ‘‘same materials,
manufactured thickness, minimum
thickness, and to same specification.’’
This revision is intended to clarify the
intent of the exception from the
requirement to display multiple name
plates for compartmented cargo tanks
separated by voids. ‘‘Design type’’ is a
more efficient and simpler phrase to
communicate the intent of this
exception.
Section 178.345–15
This section details certification
requirements for DOT Specification 406,
407, and 412 cargo tank motor vehicles.
PHMSA proposes revisions that better
align this section with the certification
requirements (and proposed changes) in
§§ 178.337–18 and 178.338–19.
Paragraph (a) includes requirements
for certification documents. In
paragraph (a), PHMSA proposes to
expand the requirements. This includes
requiring that the cargo tank motor
vehicle manufacturer must supply, and
the owner must obtain, a cargo tank’s
ASME Form U–1A data report as
required by Section VIII of the ASME
Code and a Certificate of Compliance
stating that the completed cargo tank
motor vehicle conforms in all respects
to the DOT specification and the ASME
Code. As mentioned, this better aligns
paragraph (a) with other cargo tank
certification requirements in
§§ 178.337–18 and 178.338–19.
Paragraph (b)(1) details the signatory
requirements of the certificate. Similar
to proposed changes in paragraph (a),
PHMSA proposes to revise paragraph
(b)(1) to specify the certificate must be
a Certificate of Compliance signed by an
official of the cargo tank motor vehicle
manufacturer responsible for
compliance, and a DCE.
Lastly, paragraph (e) includes
requirements for specification shortages.
PHMSA proposes to revise paragraph (e)
editorially to better align this paragraph
with other cargo tank specification
certification requirements. The
substantive requirements for cargo tanks
manufactured in two or more stages are
not changed in this proposal.
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Section 178.348–1
This section specifies the general
requirements for DOT Specification 412
cargo tank motor vehicles. Paragraph (d)
requires a cargo tank with a MAWP
greater than fifteen psig must be of
circular cross-section. Paragraph (e)
specifies ASME construction
requirements depending on the MAWP
of the cargo tank. Cargo tank
manufacturers have expressed
confusion over the current regulatory
requirements in this section,
particularly when a DOT 412
specification cargo tank must be
certified to the ASME Code. Therefore,
to alleviate this confusion and increase
regulatory compliance, PHMSA
proposes to revise paragraph (d) to
specify when a cargo tank motor vehicle
has a MAWP greater than fifteen psig, it
must be constructed and certified in
accordance with Section VIII of the
ASME Code. Subsequently, PHMSA
proposes to revise paragraph (e) to
specify when a cargo tank motor vehicle
has a MAWP of fifteen psig or less, it
must be constructed in accordance with
Section VIII. PHMSA also proposes to
redesignate paragraphs (e)(2)(i)–(viii) as
paragraphs (e)(1)–(8) without making
any revisions, other than an editorial
revision in current paragraph (e)(2)(iii)
to spell out the numerical value of 15
psig. These proposed revisions are not
intended to amend the intent of the
section, but instead increase regulatory
clarity.
Part 179
Section 179.2
Section 179.2 is the definition section
for tank car specifications in part 179.
PHMSA proposes to add introductory
text to specify that terms defined in
§§ 171.8 and 180.503 for tank car
maintenance and qualification also
apply to part 179. This will help to
address any confusion with defined
terms in these related regulatory
sections.
In addition, PHMSA proposes to
amend the following definitions:
• Approved: In paragraph (a)(2),
PHMSA proposes to remove the
reference to the AAR Tank Car
Committee and replace it with a
reference to DCE approval. See ‘‘Section
II.B.2. Tank Car Design Approval’’ for
additional details.
• Tank car facility: PHMSA proposes
to amend this definition to express the
original intent that only facilities that
qualify tank cars for transportation meet
the definition. See ‘‘Section II.B.4. Tank
Car Facility Definition’’ for additional
details.
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PHMSA proposes to add the following
definitions:
• Component: PHMSA proposes to
add this definition in paragraph (a)(4) to
mean ‘‘service equipment, safety
systems, linings or coatings, other
elements specifically required by this
part and any elements used to achieve
a performance standard in this part.’’
This new definition is intended to align
with commonly understood industry
usage and will increase clarity in the
HMR.
• Tank car: This new definition is
proposed for the purposes of
construction, maintenance, and
qualification in parts 179 and 180. As
proposed, tank car means ‘‘a tank car
tank and all of its components.’’ This
definition aligns with commonly
understood industry usage and will
increase clarity in the HMR. To ensure
paragraph (a) remains alphabetical, this
new definition is proposed to replace
the currently reserved paragraph (a)(9).
lotter on DSK11XQN23PROD with PROPOSALS2
Section 179.3
Section 179.3 currently prescribes
requirements to submit tank car designs
to AAR for approval. PHMSA proposes
to rename and extensively revise this
section to remove the requirement for
AAR approval and replace it with a
requirement for design approval by a
registered tank car DCE. See ‘‘Section
II.B.2. Tank Car Design Approval’’ for
additional details. PHMSA proposes
that one Design Approval Certificate
issued for the tank car or service
equipment will cover all tank cars or
service equipment built to an approved
design, material and construction, or
modification, provided the tank cars or
service equipment are identical. When
ownership of a tank car is transferred,
the new owner must obtain the Design
Approval Certificate from the previous
owner or Design Certifying Engineer for
the tank car to remain in service.
Builders and shippers may apply for
special permits for unapproved tanks
and equipment, in accordance with the
special permit procedural requirements
in §§ 107.101–107.127.
Section 179.4
Section 179.4 currently prescribes
requirements for proposing a new tank
car specification to AAR. PHMSA
proposes to revise this section. The role
of the AAR TCC in the review of new
tank car specifications is proposed to be
replaced with review by a registered
tank car DCE. Proposals for new tank car
specifications must first be submitted
for review by a DCE. If the DCE
determines the new specification design
is suitable, then the designer of the new
specification design must then apply to
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PHMSA for a DOT–SP to construct and
use the tank cars or submit a petition for
rulemaking to add the new specification
to the HMR. See ‘‘Section II.B.2. Tank
Car Design Approval’’ for additional
details.
Section 179.5
Section 179.5 currently prescribes
requirements for the tank car Certificate
of Construction. PHMSA proposes to
change the name of the section from
‘‘Certificate of construction’’ to ‘‘Design
Approval Certificate’’ and extensively
revise this section to reflect the new
DAC requirements. PHMSA proposes
that the new DAC requirements
generally mirror the information and
drawings currently required to be
submitted to AAR on AAR Forms 4–2 or
4–5, for tank car tanks and service
equipment, respectively. PHMSA
proposes that the DCE must ensure all
required information is present on the
DAC, review the materials, certify
compliance with the HMR by signing
the certification statement, and submit
the DAC to the tank car owner.
While generally mirroring the
information required on the AAR Form
4–2 or 4–5, PHMSA proposes that
instead of requiring the initial
commodity (as currently required on
AAR Form 4–2 or 4–5), the DAC must
list all of the materials intended for
transportation in the tank car and
service equipment. This commodity
information is critical to determining
appropriate materials of construction
and fitting arrangements for the tank car
design, among other design
considerations. If a tank car user decides
to use the tank car or service equipment
to transport a commodity not listed on
the DAC, PHMSA proposes that the DCE
must modify the DAC to approve the
transportation of the new material
before the tank car or service equipment
may be used for the new commodity. As
proposed, the DCE must evaluate the
design of the tank car and service
equipment, including but not limited to
material compatibility, design pressure,
operating temperature, and service life
when determining whether the tank car
or service equipment is appropriate for
the new commodity.
See ‘‘Section II.B.2. Tank Car Design
Approval’’ for additional details on
these proposed changes.
Section 179.6
Section 179.6 prescribes requirements
for tank car repairs and alterations.
PHMSA proposes a minor revision to
this section. PHMSA proposes to no
longer require compliance with those
sections of AAR Specifications for Tank
Cars Appendix R that require AAR
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85631
approval for tank car repairs. Rather,
PHMSA proposes that for all tank car
repairs not specifically described in
Appendix R, DCE approval is required.
Section 179.7
Section 179.7 prescribes requirements
for a tank car facility QAP. PHMSA
proposes to no longer require tank car
facilities to seek AAR approval for
QAPs. PHMSA proposes that each tank
car facility must register with PHMSA
under proposed part 107 subpart J and
certify that it maintains QAP that meets
the requirements of parts 107 and 179.
PHMSA proposes several additional
revisions to the QAP requirements:
• Remove reference to ‘‘repair’’ in
paragraphs (a)(2), (b)(3), (b)(5), and (f)
because ‘‘repair’’ is already
encompassed in the § 180.503 definition
of maintenance.
• Remove ‘‘program’’ in paragraph
(a)(2), to clarify that the QAP must
identify non-conformities in the tank car
during manufacture, inspection, testing,
qualification, and maintenance of the
tank car.
• Add the phrase ‘‘qualification and
maintenance’’ in paragraph (b)(3) to
align the scope of the QAP with
qualification.
• Revise paragraph (b)(4) to require
that the tank car facility’s QAP covers
all materials and components that are
installed to create the tank car. The tank
car facility that qualifies the car is
responsible for all activities prior to
qualification.
• Add the word ‘‘applicable’’ to
paragraph (b)(8) to indicate there are
requirements in the AAR Specifications
for Tank Cars that are no longer
applicable to tank car facilities (e.g.,
approval requirements).
• Remove ‘‘AAR’’ from paragraph (d)
because PHMSA proposes to no longer
require AAR approval. See ‘‘Section
II.B.2. Tank Car Design Approval’’ for
additional details.
• Revise paragraph (f) to add a
requirement that a tank car facility must
maintain a valid tank car facility
registration in accordance with part 107,
subpart J.
See ‘‘Section II.B.3. Tank Car Facility
Quality Assurance Program’’ for further
details on the proposed changes to QAP
requirements.
Section 179.10
Section 179.10 discusses
requirements for tank mounting.
PHMSA proposes to require that tank
mounting arrangements meet the
requirements of AAR Specifications for
Tank Cars Chapter 6 in currently
reserved paragraph (b). This will
address NTSB Recommendation R–12–
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
007, which recommends that PHMSA
address deficiencies in tank car center
sill or draft attachment designs by
adopting AAR’s revised attachment
requirements. The 2014 edition of AAR
Specifications for Tanks Cars proposed
for incorporation contains the
recommended revised center sill and
draft attachment requirements, which
addresses separate NTSB
Recommendation R–12–009 issued to
AAR.
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Section 179.11
Section 179.11 prescribes the
requirements for tank car welding
procedures. Paragraph (a) currently
requires that welding procedures,
welders, and fabricators be approved by
AAR. PHMSA proposes to revise
paragraph (a) to require that welding
procedures, welders, and fabricators
must meet the requirements in AAR
Specifications for Tank Cars Appendix
W, except for compliance with
paragraph 1.2. Appendix W, which is
already incorporated by reference into
the welding-specific sections in part 179
(e.g., § 179.100–9). If this proposal were
adopted in a final rule, compliance with
paragraph 1.2 of Appendix W, which
requires AAR certification for the
facility at which the welding occurs,
would no longer be required. Facilities
that conduct fusion welding on tank
cars that meet the definition of ‘‘tank car
facility,’’ as proposed in this NPRM,
must register with PHMSA. See
‘‘Section II.B.4. Tank Car Facility
Definition’’ and ‘‘Section II.B.5. Tank
Car Facility and Design Certifying
Engineer Registration’’ for further
details.
Section 179.24
This section discusses requirements
for permanent identification plates
mounted on the inboard surfaces of the
body bolsters of a tank car. PHMSA
proposes to revise paragraph (a)(2), to
remove reference to the AAR form.
Additionally, PHMSA proposes to
remove and reserve paragraph (a)(3)(i),
which, requires stamping the AAR
Number on the identification plates.
PHMSA proposes these edits to conform
to the proposal to replace AAR TCC
approval with approval by a tank car
DCE. Specifically, PHMSA proposes to
remove reference to AAR Form 4–2 in
paragraphs (a)(2), (a)(2)(i), (a)(2)(iv),
(a)(2)(v), (a)(2)(viii), and (a)(3)(i), as
PHMSA proposes to replace the AAR
Form 4–2 requirement with a DAC.
Additionally, PHMSA proposes to
remove and reserve paragraph (a)(2)(iii)
to remove the requirement to stamp the
AAR approval number as this has no
equivalent in the DAC.
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Sections 179.100–9, 179.100–10,
179.100–18, 179.200–10, 179.200–11,
179.200–22, 179.220–10, 179.220–11,
179.300–9, 179.300–10, 179.400–11,
179.400–12, 179.400–15, and 179.400–
18
These sections deal with welding
requirements for tank cars and
incorporate by reference the AAR
Specifications for Tank Cars (M–1002)
Appendix W. In each section, PHMSA
proposes to add language indicating
compliance with paragraph 1.2 of
Appendix W is not required, because
that paragraph of Appendix W requires
AAR certification for the facility at
which welding occurs. Facilities that
conduct fusion welding on tank cars
that meet the definition of ‘‘tank car
facility,’’ as proposed in this NPRM,
must register with PHMSA. Tank car
facilities that qualify tank cars that have
undergone welding at another location
are responsible for ensuring that the
welding operations are conducted in
accordance with Appendix W. See
‘‘Section II.B.4. Tank Car Facility
Definition’’ and ‘‘Section II.B.5. Tank
Car Facility and Design Certifying
Engineer Registration’’ for further
details. Additionally, in §§ 179.100–9,
179.200–10, and 179.220–10, PHMSA
proposes to remove the sentence
requiring that welding procedures,
welders, and fabricators be approved.
Welding procedures, as well as welder
and fabricator qualification must be
addressed in a tank car facility’s quality
assurance program. See ‘‘Section II.B.3.
Tank Car Facility Quality Assurance
Program’’ for additional details.
Section 179.100–9
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.100–10
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.100–12
Section 179.100–12 outlines the use
of manway nozzles, covers, and
protective housing on rail cars.
Paragraph (c) details requirements for
bolting the protecting housing to the
manway cover. PHMSA proposes to
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revise § 179.100–12(c) to permit the use
of an alternative means of connecting
the manway protection housing to the
tank car. See ‘‘Section II.F. P–1724’’ for
further discussion on this proposed
change. PHMSA also proposes a minor
grammatical amendment to paragraph
(c) to spell out ‘‘seventy percent’’
instead of a numerical value.
Section 179.100–18
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.102–3
Section 179.102–3 prescribes
additional requirements for pressure
tank cars containing poisonous-byinhalation material. PHMSA proposes to
IBR the requirements of section 2.2.1.2
of Chapter 2 of the AAR Specifications
for Tank Cars, M–1002. Specifically,
PHMSA proposes to require tank cars
manufactured after the effective date of
an eventual final rule that transport
poisonous-by-inhalation hazardous
material have tank car heads and shells
that are Charpy impact tested in
accordance with the requirements of
section 2.2.1.2.
Please note that the exception in AAR
Specifications for Tank Cars Chapter 2
section 2.2.1.2 exempts shell and head
material intended for low temperature
service that is subject to longitudinal
Charpy impact testing at ¥50 °F from
the transverse Charpy impact test.
Therefore, steel used for the head and
shell of hydrogen chloride tank cars is
not subject to the transverse Charpy
impact test proposed here but remains
subject to the longitudinal Charpy
impact testing at ¥50 °F in accordance
with § 179.102–17.
This proposed change responds to
NTSB recommendation R–19–001,52
which recommended that PHMSA
implement enhanced fracture toughness
requirements for tank heads and shells
for tank cars transporting poisonous-byinhalation material. Although not
incorporated by reference in the HMR,
tank car manufacturers have been
subject to this test requirement since
2005 through AAR interchange
standards. Therefore, PHMSA expects
that this proposed amendment will not
place any additional burden on tank car
manufacturers while improving safety
52 See NTSB Safety Recommendation R–19–001:
https://www.ntsb.gov/safety/safety-recs/recletters/
R-19-001-005.pdf.
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by increasing clarity on steel toughness
requirements for PIH tank cars.
Section 179.103–5
Section 179.103–5 prescribes
requirements for bottom outlets for
DOT–114A tank cars. In accordance
with the proposal to remove all
reference to approval by the AAR,
PHMSA proposes to remove the phrase
‘‘approved by the AAR Committee on
Tank Cars’’ in paragraph (b)(1) for
permanent attachment of supplementary
exterior fittings. As proposed, a DCE
will fill the approval role previously
delegated to AAR. See ‘‘Section II.B.2.
Tank Car Design Authority’’ for
additional details.
Section 179.200–7
This section specifies authorized
materials of construction for nonpressure tank car tanks (Classes DOT–
111AW, 115AW, and 117AW).
Paragraph (b) specifies allowable steels
for the carbon steel plate. Currently,
ASTM A 537 steel is not authorized in
paragraph (b).53 However, ASTM A 537
steel has similar properties to ASTM A
516 steel, which is currently authorized
in paragraph (b). Furthermore, ASTM A
537 steel is currently authorized in
§ 179.100–7 for pressure tank cars.
PHMSA has also received a petition
requesting authorization to use ASTM A
537 steel in construction of nonpressure tank cars (P–1760; Baier
Rail).54 Lastly, PHMSA has issued DOT–
SP 20908 to allow for the use of ASTM
A 537 steel for non-pressure tank car
tanks.55 Therefore, PHMSA proposes to
add ASTM A 537 steel to the table in
paragraph (b). Please note, DOT–SP
20908 requires radiographic
examination for 1 out of every 50 nozzle
groove weld joints produced in
accordance with the special permit.
This condition is a requirement
associated with the 7.5-inch nozzle
extension authorized in the special
permit; therefore, we do not propose to
adopt this condition into the HMR for
tank cars and appurtenances
constructed solely from ASTM A 537
steel. PHMSA seeks comment on this
proposal.
Section 179.200–10
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See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.200–11
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.200–17
Section 179.220–18
Section 179.200–22
Section 179.300–9
Section 179.220–10
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.220–11
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.220–15
53 See
Letter of Interpretation Reference No. 19–
0076: https://www.phmsa.dot.gov/regulations/
title49/interp/19-0076.
54 See https://www.regulations.gov/document/
PHMSA-2021-0101-0001.
55 See DOT–SP 20908: https://
www.phmsa.dot.gov/approvals-and-permits/
hazmat/file-serve/offer/SP20908.pdf/offerserver/
SP20908.
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not currently issued for cushioning
devices. Therefore, PHMSA proposes
that a tank car manufacturer may certify
the cushioning device tested to meet the
performance standards of paragraph (b)
without requiring approval from the
DCE. Safety will be maintained by
continuing to require that all systems
used to meet the requirements of this
section must be tested by the
manufacturer to demonstrate their
ability to limit body forces to 400,000
pounds maximum at a ten miles per
hour impact. PHMSA also proposes a
minor editorial change to spell out ‘‘ten
miles per hour’’ instead of the
numerical value ‘‘10.’’
Section 179.200–17 prescribes
requirements for bottom outlets for
DOT–111 and DOT–117 non-pressure
tank cars. In accordance with the intent
to remove all references to approval by
the AAR TCC, PHMSA proposes to
remove the phrase ‘‘by the AAR
Committee on Tank Cars.’’ A DCE will
fill the approval role previously
delegated to AAR. See ‘‘Section II.B.2.
Tank Car Design Authority’’ for
additional details.
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.220–15 details
requirements for support systems for
DOT–115 tank cars. PHMSA proposes to
remove the phrase ‘‘of approved design’’
from paragraph (b) for cushioning
devices. It is PHMSA and FRA’s
understanding that AAR approvals are
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Section 179.220–18 prescribes
requirements for bottom outlets for
DOT–115 tank cars. In accordance with
the proposed removal of all reference to
approval by the AAR TCC, PHMSA
proposes to remove the phrase ‘‘by the
AAR Committee on Tank Cars.’’ A DCE
will fill the approval role previously
delegated to AAR. See ‘‘Section II.B.2.
Tank Car Design Authority’’ for
additional details.
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.300–10
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.400–5
Section 179.400–5 prescribes
requirements for weld-impact test
results. PHMSA proposes an editorial
correction to this section to insert the
required language to make the IBR of
Appendix W valid. It appears the
omission of IBR language was an
oversight, and PHMSA proposes to
correct it. Additionally, PHMSA
proposes to add language indicating that
compliance with paragraph 1.2 of
Appendix W is not required, because
that section requires AAR approval. See
‘‘Section II.B.6. AAR Specifications for
Tank Cars Incorporation by Reference’’
for additional details.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
Section 179.400–6
Section 179.400–6 prescribes bursting
and buckling pressure requirements for
the outer jacket of a cryogenic liquid
tank car. PHMSA proposes to fix an
editorial error and IBR Chapter Six of
AAR Manual of Standards and
Recommended Practices, Section C–II
Specifications for Design, Fabrication
and Construction of Freight Cars, rather
than Chapter Six of AAR Manual of
Standards and Recommended Practices,
Section C–III, Specifications for Tank
Cars, Specification M–1002. Section 6.2
does not exist in C–III, while section 6.2
is the relevant section in C–II; PHMSA
has identified that this error dates back
to the creation of § 179.400–6 in final
rule HM–115.56 PHMSA expects that
this editorial change will increase
clarity without creating any additional
burden on DOT–113 manufacturers.
Section 179.400–11
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.400–12
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
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Section 179.400–13
Section 179.400–13 details
requirements for support systems for
cryogenic liquid tank cars. PHMSA
proposes to remove the phrase ‘‘of
approved design’’ from paragraph (b) for
cushioning devices. It is PHMSA and
FRA’s understanding that approvals are
not currently issued for cushioning
devices. Therefore, PHMSA proposes a
tank car manufacturer may certify the
cushioning device tested to meet the
performance standards of paragraph (b)
without requiring approval from the
DCE. Safety will be maintained by
continuing to require that all systems
used to meet the requirements of this
section must be tested by the
manufacturer to demonstrate their
ability to limit body forces to 400,000
pounds maximum at a ten miles per
hour impact. In addition, PHMSA
proposes a minor editorial amendment
56 48
FR 27674 (Jun. 16, 1983).
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to spell out ‘‘ten miles per hour’’ as
opposed to the numerical value.
Section 179.400–15
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.400–18
See ‘‘Section IV. Section-by-Section
Review; Part 179; Sections 179.100–9,
178.100–10, 179.100–18, 179.200–10,
179.200–11, 179.200–22, 179.220–10,
179.220–11, 179.300–9, 179.300–10,
179.400–11, 179.400–12, 179.400–15,
and 179.400–18’’ for details on the
revisions proposed to this section.
Section 179.400–19
Section 179.400–19 prescribes
requirements for valves of cryogenic
liquid tank cars. PHMSA proposes to
remove the separate approval
requirement for valve packing in
paragraph (a)(2). The DCE will evaluate
valve packing material in the valve
approval process.
Section 179.500–17
Section 179.500–17 prescribes
marking requirements for DOT 107A
seamless steel tank cars. PHMSA
proposes to remove the reference to the
AAR Bureau of Explosives as it is
obsolete because they no longer perform
this function.
Section 179.500–18
Section 179.500–18 discusses
recordkeeping for DOT 107A seamless
steel tank cars. PHMSA proposes several
revisions to remove obsolete references
to approvals issued by AAR’s Bureau of
Explosives from paragraphs (a) and
(b)(6) and update the section to
reference the DCE in paragraph (c). The
reference to AAR Bureau of Explosives
is obsolete because they no longer
perform this function, and PHMSA
proposes to require DCE approval of
tank car designs, rather than approval
by AAR TCC.
Appendix B to Part 179
Appendix B to part 179 specifies
procedures for conducting simulated
pool and torch-fire testing of thermal
protection systems, as required by
§ 179.18(c). Review of test results
submitted to the Department show there
are some inconsistencies in the
application of the test due to the lack of
certain parameters for clarity in the
procedures in Appendix B. PHMSA
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proposes the following revisions to
ensure consistent and repeatable
application of the tests, which will
ultimately enhance safety. These
proposed revisions received a consensus
vote during the May 25, 2017, RSAC
meeting and were offered to PHMSA
and FRA for consideration.
Paragraph 1: PHMSA proposes to add
additional text to clarify that the sample
of thermal resistance material used shall
be identical (within measurement error)
for each test performed under Appendix
B in terms of thickness, and
thermodynamic and physical properties.
Paragraph 2(a)(1): PHMSA proposes
to revise this paragraph to specify the
location and frequency of measurements
of flame temperature throughout the
duration of the test, and that calibration
tests must be performed with the steel
plate in position.
Paragraph 2(a)(2): PHMSA proposes
an editorial change to add metric units
to the plate dimensions, which is
consistent with dimensions in this
paragraph.
Paragraph 2(b)(6): PHMSA proposes
to revise this paragraph to add language
indicating the consecutive tests must be
conducted separately and at different
times.
Paragraph 3(a)(1): PHMSA proposes
to revise this paragraph to indicate the
location and frequency of measurements
of flame temperature throughout the
duration of the test, and that calibration
tests must be performed with the steel
plate in position. PHMSA proposes that
the temperature and torch velocity must
be measured at a distance of not more
than 15 cm (6 in) from the test sample
surface, along the axis of the fire.
Paragraph 3(a)(2): PHMSA proposes
an editorial change to add metric units
to the plate dimensions, consistent with
dimensions in this paragraph.
Paragraph 3(b)(6): PHMSA proposes
to revise this paragraph to add language
indicating that the consecutive tests
must be conducted separately and at
different times.
Part 180
Section 180.3
Section 180.3 details general
requirements for the continuing
qualification of packagings. Paragraph
(b)(3) specifies that test dates displayed
in association with certain markings
may not be marked unless they are
appropriate. PHMSA proposes to add
DOT–SP markings to the list of
markings in paragraph (b)(3). This
proposal provides clarity, as these
markings are currently authorized but
not listed in this paragraph.
PHMSA also proposes to add
paragraphs (c) and (d) to specify
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additional provisions that are not
authorized under this section. Paragraph
(c) indicates that a person may not mark
that a package has passed a test or
inspection if it has not actually passed
that test or inspection. Paragraph (d)
specifies that no person shall falsify a
document or marking indicating that a
packaging has passed a test or
inspection. Both of these paragraphs
provide additional clarity and ensure
increased safety; they do not add any
new restrictions, as these actions were
not and are not authorized prior to
publication of this rulemaking.
Section 180.403
This section provides definitions for
the qualification and maintenance of
cargo tanks. PHMSA proposes to revise
the following § 180.403 definitions:
• Repair: PHMSA proposes to utilize
the existing definition of rebarrelling to
better define the term repair. As defined
in § 180.403, rebarrelling means
‘‘replacing more than 50 percent of the
combined shell and head material of a
cargo tank.’’ Alternatively, in the event
that less than 50 percent of the
combined shell and head material is
replaced, the process is considered a
repair. Therefore, to remove any
ambiguity, PHMSA proposes to revise
repair to include that it means the
replacement of 50 percent or less of the
combined shell and head material of a
cargo tank. Finally, PHMSA proposes a
minor editorial revision to move the
word ‘‘and’’ to connect the second and
third exclusion clauses. This proposed
edit corrects a minor drafting error.
The following definitions are
proposed to be added to § 180.403:
• Certification Plate: As previously
discussed, there has been considerable
confusion regarding the use of ‘‘name
plate’’ or ‘‘specification plate.’’ This
uncertainty is amplified when
considering the challenges associated
with mounting a used ASME Code cargo
tank to a new chassis. PHMSA is
proposing the addition of definitions for
‘‘Name Plate’’ and ‘‘Specification Plate’’
into § 178.320; however, these terms do
not apply to a data plate attached to a
cargo tank that is still in use but is no
longer authorized for construction (as
identified by § 180.405(c)). The correct
term for a data plate attached to this
type of tank is ‘‘certification plate.’’
Therefore, PHMSA proposes to define
‘‘certification plate’’ to mean a data
plate containing the applicable
markings provided in the original
specifications for cargo tanks no longer
authorized for construction (as
identified in § 180.405(c)), and
permanently attached to the cargo tank
or integral supporting structure by the
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manufacturer. The markings on this
plate are certification by the
manufacturer that the cargo tank or the
cargo tank motor vehicle has been
designed, constructed, and tested in
accordance with the applicable
specification.
• Maintenance: PHMSA proposes to
add this definition for ease of
understanding and reading as the term
‘‘maintenance’’ is used throughout part
180, subpart E but it is not currently
defined and PHMSA expects this
proposed definition will increase clarity
without reducing safety. PHMSA
proposes that Maintenance means ‘‘the
replacement of components that do not
involve welding on a cargo tank wall, on
specification cargo tanks or cargo tank
motor vehicles.’’ This aligns with the
current definition of repair and
rebarelling as both of these functions
involve welding, while as proposed,
maintenance means replacement of
components that does not involve
welding.
• Objectively reasonable and
articulable belief: PHMSA proposes to
add a definition for the phrase
‘‘Objectively reasonable and articulable
belief.’’ This means ‘‘a belief based on
particularized and identifiable facts that
provide an objective basis to believe or
suspect that a cargo tank or series of
cargo tanks may be in an unsafe
operating condition.’’ This phrase will
be added as a standard in
§ 180.407(b)(5), as a condition that
requires test and inspection of a cargo
tank, replacing ‘‘probable cause.’’ This
phrase and definition align with
existing language for tank cars in part
180 subpart F. The intent of this
revision is to clarify the standard by
which a FMCSA investigator or other
representative of the Department may
require a cargo tank to be inspected and
tested prior to further transportation.
• Set pressure: PHMSA and FMCSA
identified potential confusion because
the terms ‘‘set pressure’’ and ‘‘set to
discharge pressure’’ are used in various
places in the HMR without a
corresponding definition in § 180.403.
In order to increase regulatory clarity
and avoid this confusion, PHMSA
proposes to define set pressure to mean
the pressure of the PRD or pressure
relief system at which it starts to open,
allowing discharge. This aligns with the
definition of set pressure in § 178.345–
10(d) of the HMR.
Section 180.405
This section details requirements for
the qualification of cargo tanks.
Paragraph (b) outlines authorized cargo
tank specifications and provides
requirements for how to recertify cargo
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tanks that are no longer authorized to be
manufactured (e.g., MC 306, MC 307 or
MC 312 specification cargo tanks).
However, the HMR does not specify
how to replace a specification plate
when it is missing. PHMSA has received
comments from industry and
enforcement communities who have
struggled in addressing this situation
because of its absence from the HMR.
Therefore, PHMSA proposes to provide
standards for the replacement of DOT
specification certification plates with
requirements for different scenarios in
new paragraph (b)(3), along with a
documentation requirement to provide
traceability. These proposed scenarios
reduce regulatory uncertainty while
ensuring that cargo tanks can safely
transport hazardous materials.
Paragraph (c)(2) details requirements
for modification of PRDs and outlets.
PHMSA proposes an editorial
amendment to paragraph (c)(2) by
specifying that the paragraph applies to
‘‘cargo tank motor vehicles,’’ as opposed
to just ‘‘cargo tanks’’ for regulatory
consistency. Additionally, PHMSA
proposes to remove paragraphs (c)(2)(i)–
(vii) and instead in paragraph (c)(2),
reference §§ 173.33(d) and 180.405(h),
as these regulations are duplicative. By
removing duplicative regulations,
PHMSA eliminates any potential
inconsistency between the same
requirements. These proposed revisions
are not intended to change the current
regulatory requirements.
PHMSA also proposes to add
paragraph (c)(3) to specify that ‘‘a cargo
tank motor vehicle manufactured and
certified prior to the dates listed in table
1 and table 2 of [§ 180.405] may be
mounted on a different truck chassis
provided the mounting and certification
is done in accordance with this
subchapter.’’ This new proposed
paragraph provides regulatory clarity
and allows for flexibility in mounting a
cargo tank that is no longer authorized
to be manufactured onto a new chassis,
enhancing the safe transportation of
hazardous materials in cargo tanks.
Paragraph (h)(3) specifies
requirements for modifying reclosing
PRDs to more current cargo tank
specifications. PHMSA proposes to
amend this paragraph editorially by
adding a reference to § 173.33(d) and
indicating that this requirement applies
to a ‘‘cargo tank motor vehicle,’’ instead
of just a ‘‘cargo tank.’’
Paragraph (j) indicates requirements
for withdrawal of a specification cargo
tank certification. PHMSA proposes to
revise this paragraph to indicate when
the specification plate is removed,
obliterated, or securely covered, it must
withstand conditions normally incident
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to transportation. FMCSA has
encountered cargo tank motor vehicles
where adhesive tape or other nondurable method has been used to cover
the specification plate but the covering
has worn off or been removed; thus, the
cargo tank may indicate that it meets a
specification when it is no longer in
compliance. This proposal is intended
for clarification purposes and thus, will
enhance safety, as the specification
plate should not currently be displayed
if the cargo tank does not meet the
appropriate specification referenced.
PHMSA also proposes minimal editorial
amendments to this paragraph to align
with the rest of the HMR. Specifically,
PHMSA proposes to replace ‘‘cargo
tank’’ with ‘‘cargo tank motor vehicle,’’
‘‘certificate’’ with ‘‘Certificate of
Compliance,’’ and re-order the
references to §§ 180.407 and 180.413 so
that § 180.407 appears first.
Lastly, PHMSA proposes to add
paragraph (p) to specify that at the next
external visual inspection after the
effective date of this final rule,
Registered Inspectors must inspect the
mechanical means of remote closure to
ensure that access or means of manual
operation is unobstructed from
operation. This proposal mirrors the
language proposed in §§ 178.337–8,
178.338–11, and 178.345–11. FMCSA
has encountered cargo tank motor
vehicles where the mechanical means of
remote shut off device has been
obstructed by various appurtenances
and equipment that were added after the
date of manufacture. As obstructions to
the manual remote emergency shut off
device may result in an incident,
PHMSA proposes to add this paragraph
in order to address this safety concern.
Section 180.407
This section contains requirements for
properly conducting tests and
inspections on cargo tank motor
vehicles. Since 2003 (when PHMSA last
published a cargo tank-specific
rulemaking) PHMSA has issued more
than 50 letters of interpretation related
to § 180.407. In addition, FMCSA issued
over 550 violations related to this
section in 2019 alone. In listening
sessions, enforcement actions, and
questions raised during FMCSA/NTTC
Cargo Tank Workshops, the cargo tank
regulated community has expressed
concerns regarding the implementation
of this section. PHMSA and FMCSA
acknowledge that the requirements of
§ 180.407, as currently written, generate
confusion and create compliance issues
in the cargo tank regulated community.
To address this confusion and increase
understanding of, and compliance with,
cargo tank testing and inspection
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requirements, PHMSA proposes to
amend certain paragraphs, as described
below. Ultimately, PHMSA expects that
by reducing confusion and providing
increased clarity, these proposed
amendments will increase safety. Please
note that paragraphs not discussed
below but contained in the proposed
regulatory text, do not contain proposed
changes, but rather are included in the
proposed regulatory text for the
convenience of the Federal Register.
Paragraph (a)(1)
This paragraph currently specifies a
cargo tank constructed in accordance
with a DOT specification, for which a
test or inspection has become due, may
not be filled and offered for
transportation or transported until the
test or inspection has been successfully
completed. PHMSA proposes several
revisions to provide more regulatory
clarity, which ensures further
compliance with the HMR.
PHMSA proposes to specify this
paragraph applies to a ‘‘cargo tank
motor vehicle’’ instead of a ‘‘cargo tank’’
as this is more technically correct and
aligns with other proposals.
PHMSA also proposes to indicate this
paragraph also applies to cargo tank
motor vehicles that may not be a DOT
specification but may be otherwise
subject to this section. This increases
safety by ensuring that a cargo tank
transporting hazardous materials is not
filled and offered if the part 180 subpart
E test or inspection date has passed,
regardless if it is a specification cargo
tank. For example, § 180.407(h) details
requirements for certain nonspecification cargo tank leakage test
requirements. This proposal ensures
these non-specification cargo tank motor
vehicles may not be filled and offered
for transportation if the leakage test date
has passed and the cargo tank motor
vehicle has not been retested.
Lastly, PHMSA proposes to indicate
more clearly that a cargo tank motor
vehicle filled prior to the test or
inspection due date may still be offered
for transportation or transported after
the test or inspection due date has
passed, as also indicated in
§ 173.33(a)(3). This is currently
authorized in the HMR and this
proposal reinforces that allowance.
Furthermore, while § 173.33(a)(3) refers
to § 180.407(a)(1), there is no reciprocal
reference to § 177.33(a)(3) in
§ 180.407(a)(1). Therefore, PHMSA
proposes to reinforce the allowance for
a cargo tank to be offered for
transportation after the inspection or
test date has passed, as long as the cargo
tank was filled prior to the inspection or
test expiration, and add a reference to
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§ 173.33(a)(3) to complete the crossreference. As this is currently
authorized, this proposed revision
provides clarity without reducing safety.
Paragraph (a)(2)
This paragraph specifies that, except
during a pressure test, a cargo tank may
not be subjected to a pressure greater
than its design pressure or MAWP.
PHMSA proposes an editorial
amendment to specify that the MAWP
referenced in this requirement is the one
marked on the name plate or
specification plate. These editorial
revisions will enhance clarity, and
PHMSA does not expect they will
reduce safety.
Paragraph (a)(5)
This paragraph requires a cargo tank
to be marked in accordance with
§ 180.415 when it has passed a test or
inspection. PHMSA proposes an
editorial amendment to change ‘‘cargo
tank’’ to the more appropriate ‘‘cargo
tank motor vehicle.’’
Paragraph (a)(6)
This paragraph contains requirements
for a cargo tank that has failed a
prescribed test or inspection. PHMSA
proposes to specify that the paragraph
applies to a ‘‘cargo tank motor vehicle’’
instead of a ‘‘cargo tank’’ as an editorial
amendment.
While paragraph (a)(6) only applies to
a cargo tank that has failed a prescribed
test or inspection, there is a potential
regulatory gap for a cargo tank that was
improperly tested. It is possible that an
improperly tested cargo tank motor
vehicle may have failed the prescribed
test or inspection if it had been properly
conducted. To address this safety gap,
PHMSA proposes to require that
paragraph (a)(6) also applies to a cargo
tank motor vehicle that ‘‘has not been
properly inspected.’’ Therefore, if it has
been improperly inspected, the cargo
tank motor vehicle can be retested or
taken out of hazardous materials
service.
Paragraph (a)(6)(ii)
This paragraph specifies when
meeting the criteria in paragraph (a)(6)
(e.g., a cargo tank has failed a prescribed
test or inspection), a cargo tank must be
removed from hazardous materials
service and the specification plate must
be removed or covered in a secure
manner. PHMSA proposes to revise this
paragraph to specify when the
specification plate is covered, it must be
covered in a manner that can, at a
minimum, withstand conditions
normally incident to transportation. As
noted in ‘‘Section IV. Section-by-Section
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Review; Part 180; Section 180.405,’’
FMCSA has encountered cargo tank
motor vehicles where adhesive tape or
another non-durable method was used
to cover the specification plate, but the
covering had worn off or been removed.
Therefore, the specification plate
indicates the cargo tank motor vehicle
meets a specification when it is actually
no longer in compliance. This proposal
aims to reduce the likelihood of this
occurring and increase safety. Note that
this is a clarifying amendment and even
though not in the regulations, it is
currently good practice to cover the
specification plate in such a way that
ensures any covering can withstand
conditions normally incident to
transportation.
Paragraph (a)(7)
PHMSA proposes to add this
paragraph to specify all equipment and
instruments used in part 180 subpart E
tests and inspections must be calibrated
and maintained according to the
manufacturer’s instructions. FMCSA has
found numerous instances of poorly
maintained or uncalibrated equipment
being used to qualify cargo tank motor
vehicles. This change aims to eliminate
any errors in testing caused by poorly
maintained equipment and ultimately,
increase safety. Additionally, to ensure
compliance with this requirement,
PHMSA proposes to require the facility
to maintain records of the calibration
and to retain a copy of the two most
recent calibrations, which must be made
available to a representative of the
Department upon request.
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Paragraph (a)(8)
PHMSA proposes to add paragraph
(a)(8) to allow for the use of video
cameras or fiber optic equipment during
any test or inspection, provided that all
of the required areas and elements that
need to be tested or inspected can be
viewed and evaluated in accordance
with part 180 subpart E. This provides
flexibility in performance of tests and of
inspections, while maintaining an
equivalent level of safety. Records of the
test and inspections must be recorded,
as currently required in § 180.417, but
there is no requirement to maintain the
video camera recordings.
Paragraph (a)(9)
PHMSA proposes to add this
paragraph to require the use of the
hydrostatic test method for the pressure
test whenever the test pressure exceeds
50 psig, except for DOT Specification
MC 338 cargo tank motor vehicles in
cryogenic service. Essentially, this new
paragraph restricts the use of pneumatic
testing whenever the test pressure
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exceeds 50 psig. There is a significant
reduction in the potential for serious
injury or death when comparing the
pneumatic test to the hydrostatic test at
high pressures, due to the
incompressible properties of water.
Therefore, this proposal ensures that a
hydrostatic test is used to test cargo
tanks at high pressures to address the
high potential safety concern from use
of pneumatic testing. In addition, this
new paragraph mirrors the limitation for
testing of small gas cylinders
pneumatically.
PHMSA also proposes to specify that
‘‘in all pressure and leakage tests,
suitable safeguards must be provided to
protect personnel should a system
failure occur.’’ This proposed
requirement aims to minimize the risks
and reduce the impact of incidents,
including the sudden release of
compressed air or liquid, and flying
debris, associated with performance of
pressure tests.
Paragraph (a)(10)
PHMSA proposes to add this
paragraph to require that the Registered
Inspector must consult with the owner
or motor carrier, as appropriate, to
determine if materials corrosive or
reactive to the cargo tank or components
were transported in the cargo tank
motor vehicle prior to or since the last
test or inspection was performed. The
Registered Inspector shall indicate this
information on the § 180.415 report and
use the information to determine the
proper tests and inspections to be
conducted on the cargo tank motor
vehicle. Cargo tank motor vehicles that
have transported material corrosive to
the tank are subject to a thickness test,
and more frequent internal visual
inspections to ensure the lading has not
reduced the thickness of the tank below
the minimum required thickness.
Registered Inspectors often comment to
FMCSA that they have no way of
determining what the cargo tank motor
vehicle has transported since the last
inspection, and therefore, this proposed
requirement aims to remedy the
concerns raised by Registered
Inspectors. This also ensures the proper
tests and inspections are conducted on
the cargo tank motor vehicle based on
the hazardous materials that were
transported in the cargo tank, which
increases the future safe transportation
of the cargo tank motor vehicle.
Paragraph (a)(11)
This new proposed paragraph
requires all sources of spark, flame, or
glowing heat within the area of
enclosure where the tests and
inspections are conducted (including
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85637
any heating system drawing air
therefrom) are extinguished, made
inoperable, or rendered explosion-proof
by a suitable method prior to any tests
or inspections subject to this subpart.
PHMSA and FMCSA expect that this
proposal will reduce the potential for
any incidents involving spark, flame, or
glowing heat. PHMSA and FMCSA
expect that this new paragraph reduces
the potential for any incidents involving
sparks, flames, or glowing heat while
conducting cargo tank tests and
inspections and therefore, increases
safety.
Paragraph (b)(1)
This paragraph details certain tank
defects that require a cargo tank to be
tested and inspected without regard to
any other test or inspection
requirements. PHMSA proposes to
revise this paragraph by adding
‘‘bulges’’ to the list of tank defects. If the
cargo tank shows evidence of bulges, it
demonstrates a potential failure in the
structural integrity of the cargo tank.
Therefore, to ensure continued safe
transportation of hazardous materials in
cargo tanks, PHMSA proposes to add
this additional tank defect to the list
that requires test and inspection. In
addition, PHMSA proposes editorial
amendments to this paragraph including
adding a reference to the definition of
minimum thickness in § 178.320, and
other grammatical edits for increased
readability.
Paragraph (b)(3)
This paragraph specifies a cargo tank
that has been out of hazardous materials
transportation service for a period of
one year or more must be pressure
tested in accordance with § 180.407(g),
prior to returning to service. PHMSA
proposes minor editorial edits to this
paragraph, including specifying that this
paragraph applies to a ‘‘cargo tank
motor vehicle’’ instead of ‘‘cargo tank’’,
specify ‘‘one year’’ as a numerical value
for grammatical purposes, and that the
pressure test is required prior to further
use ‘‘in hazardous materials
transportation.’’ These editorial
amendments help to increase regulatory
consistency and clarity, thus ensuring
safe transportation.
Paragraph (b)(5)
This paragraph currently states that a
specification cargo tank must be tested
and inspected if the Department so
requires based on the existence of
probable cause that the cargo tank is in
an unsafe operating condition. The term
‘‘probable cause’’ normally refers to
criminal matters and not necessarily an
appropriate standard to apply to
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scenarios requiring test and inspection
of cargo tanks. Therefore, PHMSA
proposes to replace ‘‘probable cause’’
with ‘‘objectively reasonable and
articulable belief.’’ This standard is
currently in use in part 180 subpart F
for tank cars, and PHMSA believes it is
also the proper standard for cargo tanks
in part 180 subpart E.
PHMSA takes the position that if an
investigator inspects a cargo tank motor
vehicle and determines it is in need of
inspection or re-inspection because
evidence has been discovered that the
original tests were not performed in
accordance with the regulations—or
because of defects in the cargo tank
motor vehicle itself—that these facts are
sufficiently considered an ‘‘objectively
reasonable and articulable belief.’’
Therefore, PHMSA proposes to revise
this paragraph to replace ‘‘probable
cause’’ with ‘‘objectively reasonable and
articulable belief.’’ This amendment
will provide clarity on when an
investigator can require testing and
inspection (or reinspection), thus
ensuring cargo tanks are safe for
transport.
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Paragraph (c)
This paragraph specifies each
specification cargo tank must be tested
and inspected in accordance with the
table listed under paragraph (c). PHMSA
proposes the following editorial
amendments for clarity:
• Specify the most recent inspection
is one ‘‘completed in accordance with
the requirements in part 180;’’
• Spell out ‘‘cargo tank motor
vehicle’’ instead of the abbreviation
‘‘CTMV;’’
• Clarify that the inspector in
question must be a Registered Inspector;
and
• Clarify that this paragraph should
apply to a ‘‘cargo tank motor vehicle
subject to this subpart’’ instead of a
‘‘specification cargo tank.’’
These proposed amendments ensure
regulatory consistency, thus enhancing
safety.
Paragraph (d)(1)
This paragraph applies to the external
visual inspection of cargo tank motor
vehicles, and states that where
insulation precludes a complete
external visual inspection as required by
§§ 180.407(d)(2) through (d)(6), the
cargo tank must also be given an
internal visual inspection in accordance
with § 180.407(e). PHMSA proposes to
add ‘‘coverings such as wrappings and
coatings’’ as materials that can preclude
a complete external visual inspection to
paragraph (d)(1). This is consistent with
Letters of Interpretation Reference Nos.
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14–0110, 15–0221, 15–0226, 16–0049,
20–0013, and 20–0038 and this proposal
will provide regulatory clarity without
reducing safety.
Paragraph (d)(2)(i)
This paragraph specifies the tank
shell and heads must be inspected
during the external visual inspection.
PHMSA proposes to require that
‘‘during the inspection of the cargo tank
shell and heads, all pad attachments on
either the cargo tank shell or head shall
be inspected for method of attachment
or other conditions that may render the
appurtenance as unsafe.’’ This proposed
requirement ensures that the pad
attachments are properly functioning,
which increases the safe transportation
of hazardous materials in cargo tanks.
Additionally, PHMSA proposes to
specify that the tank shell and heads
must be ‘‘evaluated in accordance with
§ 180.411.’’ This proposed editorial
amendment provides additional
regulatory clarity to cross-reference the
current evaluation requirements and
therefore, increase compliance.
Paragraph (d)(2)(ii)
Paragraph (d)(2)(ii) specifies external
visual inspection requirements for
piping, valves, and gaskets. PHMSA
proposes to specify that this paragraph
applies to the piping system, which
includes flexible connectors in addition
to the currently identified piping, valves
and gaskets. This proposal provides
regulatory clarity as it expands the
specificity of what constitutes the
piping system and therefore, increases
regulatory compliance and thus, safety.
Paragraph (d)(2)(iv)
This paragraph specifies inspection
requirements for emergency devices and
valves during the external visual
inspection. PHMSA proposes to indicate
editorially that remote closure devices
include ‘‘all emergency discharge
control systems and delivery hoses
required by § 173.315(n).’’ This proposal
is intended to provide clarity compared
to the existing regulatory language and
is not intended to subject new devices
and valves to this requirement.
Therefore, this proposal provides
additional regulatory clarity to
ultimately increase regulatory
compliance and safety.
PHMSA also proposes instead of
specifying all emergency devices and
valves must be ‘‘free from’’ corrosion,
distortion, erosion, and any external
damage that will prevent safe operation,
that they have to be ‘‘inspected for’’ this
type of damage. This editorial proposal
reinforces that in order to ensure the
emergency discharge devices and valves
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do not have any corrosion, distortion,
erosion, and/or any external damage
that will prevent operation. The
emergency discharge devices and valves
must be inspected as part of the external
visual inspection at the interval
prescribed in § 180.407(c). While not
currently specified in paragraph
(d)(2)(iv), inspection of emergency
discharge devices and valves is
referenced in § 180.417. Therefore, to
remove any potential confusion or
regulatory inconsistency, PHMSA
proposes to add inspection to paragraph
(d)(2)(iv). Ultimately, PHMSA expects
this clarity will increase safety of cargo
tank motor vehicle hazardous materials
transportation.
PHMSA further proposes two
editorial amendments to the currently
effective requirement that ‘‘remote
closure devices and self-closing stop
valves be functioned to demonstrate
proper operation.’’ Specifically, PHMSA
proposes to revise the requirement from
‘‘remote closure devices’’ to ‘‘all
emergency closure devices’’ consistent
with proper terminology throughout the
rest of the paragraph. In addition, for
grammatical correctness, PHMSA
proposes to rewrite the requirement to
indicate the equipment must be
‘‘operated to demonstrate proper
functioning’’ instead of ‘‘functioned to
demonstrate proper operations.’’
Therefore, this sentence is proposed to
read, ‘‘All emergency closure devices
and self-closing stop valves must be
operated to demonstrate proper
functioning.’’
Lastly, this paragraph does not
indicate a required distance for testing
remote shutoff devices. PHMSA
proposes to specify ‘‘the distance for
testing non-mechanical remote shutoff
devices must be in accordance with the
original device manufacturer’s
specification.’’ This ensures the nonmechanical remote shutoff device
operates safely, as it was originally
manufactured to function, and follows
optimum testing parameters, which
increases safety of cargo tank motor
vehicles.
Paragraph (d)(2)(viii)
This paragraph requires all major
appurtenances and structural
attachments and those elements of the
upper coupler assembly that can be
inspected without dismantling the
upper coupler, must be inspected for
any corrosion or damage that may
prevent safe operation during the
external visual inspection. Section
178.320 defines an appurtenance as any
attachment to a cargo tank that has no
lading retention or containment
function and provides no structural
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support to the cargo tank. However, the
HMR does not define ‘‘major
appurtenances’’ and therefore, the
‘‘major’’ qualifier is ambiguous.
Therefore, to eliminate the ambiguity
and for consistency with the definition
of an appurtenance, PHMSA proposes
to remove the term ‘‘major.’’ PHMSA
expects this regulatory clarity will
improve compliance and ultimately,
safety.
In addition, the issue of whether the
king pin should be checked as part of
the external visual inspection, and, if so,
what criteria should be used, was raised
at one of the previously referenced cargo
tank technical information sessions.
Participants at the session
recommended that language be added to
state clearly that the king pin is part of
the upper coupler assembly. Therefore,
as PHMSA expects this increases
regulatory compliance and safety,
PHMSA proposes to add a clarifier that
the upper coupler includes the king pin,
while subsequently removing the term
‘‘fifth wheel.’’
Paragraphs (d)(2)(ix) and (g)(1)(iii)
These paragraphs provide inspection
requirements of areas covered by the
upper coupler assembly. Paragraph
(d)(2)(ix) requires this inspection occurs
during the external visual inspection for
cargo tanks carrying lading corrosive to
the cargo tank and paragraph (g)(1)(iii)
requires that this inspection occurs
during the pressure test for cargo tanks
that do not transport lading corrosive to
the cargo tank. PHMSA proposes similar
amendments in both paragraphs.
First, PHMSA proposes editorial
amendments by specifying these
paragraphs apply to ‘‘cargo tank motor
vehicles’’ as opposed to ‘‘cargo tanks,’’
consistent with other proposals. In
addition, and consistent with proposed
amendments in paragraph (d)(2)(viii),
PHMSA proposes to remove the
references to ‘‘fifth wheel,’’ as it is no
longer necessary. See ‘‘Section IV.
Section-by-Section Review; Part 180;
Section 180.407; Paragraphs (d)(2)(viii)’’
for further discussion on this proposal.
Additionally, in paragraph (d)(2)(ix),
PHMSA proposes to revise ‘‘two-year
period’’ as a numerical value for
grammatical consistency.
Furthermore, PHMSA proposes to
specify the upper coupler assembly can
be removed from the cargo tank for
inspection under certain conditions. On
some cargo tank motor vehicles, there is
sufficient area above the upper coupler
and below the bottom of the cargo tank
to inspect the bottom of the cargo tank
without removing the upper coupler.
PHMSA proposes to allow for the
inspection of the tank above the upper
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85639
coupler where there is sufficient area
above the upper coupler and below the
bottom of the cargo tank to inspect the
tank surface when conducting the
inspection by directly viewing the cargo
tank. The ability for direct viewing
means the area can be inspected without
the use of an aid, such as mirrors,
cameras, or fiber optics. This proposal is
consistent with letters of interpretation
issued by PHMSA.57 Furthermore, this
allowance means that the upper coupler
can remain attached, which reduces the
potential for improper reattachment,
while maintaining the safety standard
for inspection (complete visual
inspection of the cargo tank shell).
Finally, to reinforce current FMCSR
requirements, PHMSA proposes to
specify that when the upper coupler
assembly is removed from the cargo
tank motor vehicle, it must be
reattached in accordance with the
manufacturer’s instructions and 49 CFR
393.70, the Federal Motor Carrier Safety
Regulation section that covers couplers.
This proposal reinforces current
requirements to ensure the upper
coupler assembly is replaced safely and
correctly.
prevent safe operation. PHMSA
proposes no other revisions than the
editorial amendment described above.
PHMSA proposes that new paragraph
(d)(3)(ii) contains the last two sentences
of current paragraph (d)(3). Currently,
these last two sentences require that all
reclosing pressure relief valves that
carry lading corrosive to the cargo tank
be removed for inspection and testing.
Furthermore, the requirement to remove
and test reclosing pressure relief valves
must be done in accordance with
§ 180.407(j). In addition to the editorial
amendment described above, PHMSA
proposes to consolidate these two
sentences into one sentence as the
introductory language in the second
sentence is duplicative. This
consolidation aims at reducing any
ambiguity and streamlining the
requirement to increase compliance.
PHMSA proposes to specify the
paragraph applies to ‘‘cargo tank motor
vehicles’’ instead of just ‘‘cargo tanks,’’
consistent with other proposed
amendments. Lastly, PHMSA proposes
to qualify editorially that by ‘‘testing’’
the requirement is for ‘‘bench testing’’ to
reduce any potential confusion.
Paragraph (d)(2)(ix)
See ‘‘Section IV. Section-by-Section
Review; Part 180; Section 180.407;
Paragraphs (d)(2)(ix) and (g)(1)(iii)’’ for
a discussion on the proposed changes in
this paragraph.
Paragraphs (d)(3)
See ‘‘Section IV. Section-by-Section
Review; Part 180; Section 180.407;
Paragraphs (d)(3), (d)(3)(i) and (d)(3)(ii)’’
for a discussion on the proposed
changes in this paragraph.
Paragraphs (d)(3), (d)(3)(i), and (d)(3)(ii)
Paragraph (d)(3) specifies the
inspection requirements for reclosing
pressure relief valves. PHMSA proposes
to split the current requirements into
two new paragraphs to distinguish the
requirements more clearly and increase
compliance. Subsequently, PHMSA
proposes to add introductory language
to paragraph (d)(3) to specify the
requirements of paragraph (d)(3)(i) and
(ii) apply to reclosing pressure relief
devices. Additionally, PHMSA proposes
to amend all references in new
paragraphs (d)(3)(i) and (ii) to ‘‘pressure
relief valves’’ as ‘‘pressure relief
devices’’ for consistency with the rest of
the HMR.
PHMSA proposes that paragraph
(d)(3)(i) contains the first sentence of
current paragraph (d)(3). Currently, this
requires that all reclosing pressure relief
valves be externally inspected for
corrosion and damage, which might
Paragraphs (d)(3)(i)
See ‘‘Section IV. Section-by-Section
Review; Part 180; Section 180.407;
Paragraphs (d)(3), (d)(3)(i) and (d)(3)(ii)’’
for a discussion on the proposed
changes in this paragraph.
57 See Letters of Interpretation Reference Nos. 02–
0290 and 11–0059. See Letter of Interpretation
Reference No. 02–0290: https://
www.phmsa.dot.gov/regulations/title49/interp/020290. See Letter of Interpretation Reference No. 11–
0059: https://www.phmsa.dot.gov/regulations/
title49/interp/11-0059.
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Paragraphs (d)(3)(ii)
See ‘‘Section IV. Section-by-Section
Review; Part 180; Section 180.407;
Paragraphs (d)(3), (d)(3)(i) and (d)(3)(ii)’’
for a discussion on the proposed
changes in this paragraph.
Paragraph (d)(4)
This paragraph requires ring stiffeners
or other appurtenances must be
thickness tested at least once every two
years. PHMSA proposes editorial
revisions, including removing the term
‘‘other’’ in reference to appurtenances,
specifying the paragraph applies to
‘‘cargo tank motor vehicles’’ instead of
‘‘cargo tanks,’’ and minor grammatical
revisions to align this paragraph with
other proposals.
Paragraph (d)(7)
Paragraph (d)(7) requires that an
inspector must record the results of an
external visual examination. PHMSA
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proposes to move the current
requirements of paragraph (d)(7) to a
new paragraph (d)(9). In its place,
PHMSA proposes that paragraph (d)(7)
requires external ring stiffeners to be
inspected for corrosion, pitting, abraded
areas, or damage, and repaired as
appropriate during external visual
inspection. Ring stiffeners are installed
on cargo tank motor vehicles to provide
structural support, however, the HMR
do not currently require that they are
inspected and repaired as appropriate. If
the external ring stiffeners fail because
they were not inspected and repaired
appropriately, the cargo tank motor
vehicles would be left vulnerable to an
incident, therefore, PHMSA proposes
this new requirement to eliminate a
potential safety gap.
Paragraph (d)(8)
PHMSA proposes this new paragraph
to require Registered Inspectors to
inspect weld repairs for leakage and
weld defects. Furthermore, PHMSA
proposes that the Registered Inspector
verify the weld repair was done in
accordance with § 180.413. FMCSA
determined an incident resulting in
death and injuries occurred because the
welded repairs were not conducted in
accordance with the HMR and the repair
facility did not hold the appropriate
certificates. To avoid this type of
incident in the future and ensure the
continued safe transportation of
hazardous materials in specification
cargo tank motor vehicles, PHMSA
proposes to add this verification
requirement to reduce improper
welding operations.
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Paragraph (d)(9)
Based on proposed amendments in
paragraphs (d)(7) and (8), PHMSA
proposes to move the current
requirements of paragraph (d)(7) to new
paragraph (d)(9). As previously
discussed, current paragraph (d)(7)
requires that the inspector must record
the results of the external visual
examination as specified in
§ 180.417(b). PHMSA does not propose
any additional amendments to this
paragraph.
Paragraph (f)
This paragraph provides requirements
for lining inspections. The introductory
sentence to this paragraph specifies the
integrity of the lining on all lined cargo
tanks must be verified at least once each
year as outlined in paragraph (f).
PHMSA identified that this paragraph
may be interpreted as contradicting the
periodic test and inspection table found
under § 180.407(c), which specifies that
all lined cargo tanks transporting lading
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corrosive to the tank, must undergo a
lining inspection every year. To reduce
this confusion, PHMSA proposes to
revise this paragraph to specify only
cargo tank motor vehicles that are
required to be lined are required to
undergo an annual lining inspection as
specified in the rest of paragraph (f).
Paragraph (f)(2)
This paragraph states that linings not
made of rubber must be tested using
equipment and procedures prescribed
by the lining manufacturer or lining
installer. PHMSA proposes to revise
paragraph (f)(2) to specify ‘‘[f]or linings
made of materials other than rubber
(elastomeric material), the owner of the
cargo tank motor vehicle must obtain
documentation from the lining
manufacturer or installer that specifies
the proper procedures for lining and
inspection. This documentation must be
provided to the Registered Inspector
before inspection.’’ PHMSA expects this
requirement will ensure the lining is
being properly inspected. Currently, a
cargo tank motor vehicle owner is
responsible for information regarding
the cargo tank motor vehicle, including
information on the lining. Additionally,
the cargo tank motor vehicle owner
should have this information, because,
in some cases, the cargo tank motor
vehicle is lined upon purchasing, and
thus, the information is provided during
the course of ownership. However,
because it is currently not specified in
the HMR, manufacturers may not have
this information readily available for
Registered Inspectors during
inspections. Therefore, this proposed
requirement ensures the availability of
this documentation to Registered
Inspectors to make certain the lining is
properly inspected, which increases
safety.
Paragraph (f)(3)
Paragraph (f)(3) details requirements
for degraded or defective areas of the
cargo tank liner. As an editorial
amendment, PHMSA proposes to revise
‘‘liner’’ as ‘‘lining’’ as this is more
appropriate terminology, consistent
with the rest of § 180.407.
Additionally, PHMSA proposes to
add a sentence at the end of the
paragraph to require that if ‘‘degraded or
defective areas of the cargo tank lining
are repaired or if the lining is replaced,
it must comply with the lining
manufacturer’s or installer’s procedures,
subject to the lining requirements of the
HMR.’’ This aligns with the proposed
requirement in paragraph (f)(2) to
require that the cargo tank motor vehicle
owner provide a Registered Inspector
with documentation from the lining
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owner for inspection and testing. See
‘‘Section IV. Section-by-Section Review;
Part 180; Section 180.407; Paragraph
(f)(2).’’ If the lining is repaired or
replaced without being in compliance
with the lining manufacturer or
installer’s procedures, it may affect the
structural integrity of the cargo tank.
Therefore, this proposed requirement is
in the interest of safety and aligns with
general industry practice.
Paragraph (g)(1)(ii)
This paragraph details pressure test
procedures for self-closing pressure
relief valves. PHMSA proposes editorial
amendments to this paragraph. These
amendments include updating
terminology to align more appropriately
with other references in the HMR,
revising ‘‘pressure relief valves’’ to
‘‘pressure relief devices,’’ and specifying
the self-closing PRDs must be removed
from the cargo tank motor vehicle
(instead of cargo tank).
Paragraph (g)(1)(iii)
See ‘‘Section IV. Section-by-Section
Review; Part 180; Section 180.407;
Paragraph (d)(2)(ix) and (g)(1)(iii)’’ for a
discussion on the proposed changes in
this paragraph.
Paragraph (g)(1)(viii)
This paragraph details requirements
for pressure testing of cargo tanks by the
hydrostatic test method. PHMSA
proposes editorial corrections to this
paragraph. PHMSA believes that the
terms ‘‘including its domes’’ and ‘‘to not
less than the pressure’’ do not
contribute to the clarity of the
paragraph. Therefore, PHMSA proposes
to remove the language from the
paragraph to ensure increased clarity,
compliance, and ultimately increase
safety. Additionally, PHMSA proposes
to spell out numerically ‘‘10 minutes’’
for grammatical accuracy consistent
with other proposals.
Paragraph (g)(3)
This paragraph details requirements
for the internal inspection by wet
fluorescent magnetic particle method for
MC 330 and MC 331 cargo tanks.
PHMSA proposes to update the IBR of
CGA Technical Bulletin TB–2 to CGA
Technical Bulletin P–26 (formerly TB–
2) in § 171.7. See ‘‘Section IV. Sectionby-Section Review; Part 171; Section
171.7’’ for a discussion on the proposed
change to this IBR. As this IBR is
referenced in paragraph (g)(3), PHMSA
proposes to update the reference to
specify the new name of the CGA
Technical Bulletin.
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Paragraph (g)(6)
Paragraph (g)(6) specifies the
acceptance criteria that must be met
before a cargo tank can be returned to
service. PHMSA proposes to remove the
terms ‘‘pneumatic inspection pressure’’
and ‘‘excessive permanent expansion.’’
The ‘‘pneumatic inspection pressure’’
term is outdated and ‘‘excessive
permanent expansion’’ is duplicative
because it is covered by the acceptance
criteria of ‘‘shows distortion’’ in the
paragraph. Lastly, PHMSA proposes to
specify this paragraph applies to ‘‘cargo
tank motor vehicles’’ as opposed to just
‘‘cargo tanks.’’ These proposals increase
regulatory clarity and therefore, increase
the safe transportation of hazardous
materials.
Paragraph (h)(1)
Paragraph (h)(1) specifies leakage test
requirements. In paragraph (h)(1),
PHMSA proposes to make several
editorial amendments. PHMSA
proposes to replace the requirement that
the leakage test must include ‘‘testing
product piping’’ to instead require that
the leakage test include ‘‘all components
of the cargo tank wall, and the piping
system.’’ Furthermore, PHMSA
proposes to revise ‘‘accessories’’ and
‘‘venting devices’’ to read as ‘‘pressure
relief devices.’’ Lastly, PHMSA proposes
to spell out ‘‘percent’’ instead of using
the percent sign (%). These changes are
intended to align with more current
terminology and not revise the intent of
these requirements. Therefore, PHMSA
expects this proposed change makes the
regulations clearer, which ultimately
increases safety.
Paragraph (h)(1)(i)
This paragraph provides an alternate
leakage test pressure for a cargo tank
with an MAWP of 690 kPA (100 psig)
or more. PHMSA proposes a minor
editorial revision specifying this
paragraph applies to a ‘‘cargo tank
motor vehicle’’ instead of a ‘‘cargo
tank,’’ which aligns with other proposed
changes.
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Paragraph (h)(1)(ii)
Paragraph (h)(1)(ii) provides an
alternate leakage test pressure for an MC
330 or MC 331 cargo tank in dedicated
liquefied petroleum gas service.
Consistent with paragraph (h)(1)(iii),
PHMSA proposes to include nonspecification cargo tank motor vehicle
authorized under § 173.315(k) in this
paragraph. In addition, PHMSA
proposes an editorial amendment to
correct the spelling of ‘‘liquified’’ to
‘‘liquefied.’’
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Paragraph (h)(1)(iii)
This paragraph authorizes a leakage
test pressure exception for an MC 330 or
MC 331 cargo tank, and a nonspecification cargo tank authorized
under § 173.315(k) equipped with a
meter. PHMSA proposes a minor
editorial revision consistent with other
proposals to specify this paragraph
applies to ‘‘cargo tank motor vehicles’’
instead of ‘‘cargo tanks.’’
Paragraph (h)(1)(iv)
This paragraph provides an alternate
leakage test pressure for an MC 330 or
MC 331 cargo tank in dedicated service
for anhydrous ammonia. PHMSA
proposes minor editorial revisions to
specify this paragraph applies to
‘‘specification MC 330 or MC 331 cargo
tank motor vehicles.’’
Paragraph (h)(2)
Paragraph (h)(2) details leak test
authorizations for cargo tanks used to
transport petroleum distillate fuels that
are equipped with vapor collection
equipment. PHMSA proposes a minor
editorial amendment to specify this
paragraph applies to ‘‘cargo tank motor
vehicles’’ instead of ‘‘cargo tanks’’
consistent with correct terminology and
other proposals.
Paragraph (h)(3)
This paragraph requires that if a cargo
tank fails to retain leakage test pressure,
it may not be returned to service as a
specification cargo tank, except under
conditions specified in § 180.411(d).
PHMSA proposes editorial amendments
to indicate that this paragraph applies to
‘‘cargo tank motor vehicles’’ instead of
‘‘cargo tanks.’’ Furthermore, PHMSA
proposes to include leaks as another
reason why the cargo tank may not be
returned to service. A cargo tank motor
vehicle that is leaking would not pass a
leakage test if one was conducted and
thus, should be subject to this paragraph
and subject to repair immediately.
Therefore, a leakage test would not have
to be performed on the leaking cargo
tank motor vehicle before the cargo tank
motor vehicle is subject to repair. The
intent of this revision is to support the
safe transportation of hazardous
materials in cargo tank motor vehicles
by allowing leaking tanks to be repaired
more efficiently. Lastly, PHMSA
proposes to remove the specific
reference to § 180.411(d) as how a cargo
tank motor vehicle is returned to
service. Section 180.411(d) requires all
sources of leakage must be repaired.
Instead of requiring the reader to turn to
another section with minimal
instruction, PHMSA proposes to add
plain language to indicate the cargo tank
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motor vehicle must be repaired as
required by this subpart before returning
to service. PHMSA expects that this
provides regulatory clarity and
therefore, aids in increased safety.
Paragraph (h)(4)
This paragraph specifies the
inspection requirements for delivery
hose assembly and piping systems of
specification MC 330 and MC 331 cargo
tank motor vehicles and nonspecification cargo tank motor vehicles
authorized under § 173.315(k). PHMSA
proposes editorial amendments in this
paragraph. First, PHMSA proposes to
remove the July 1, 2000, reference as
this date has passed and is no longer
needed. PHMSA also proposes to
specify this paragraph applies to
Registered Inspectors ‘‘conducting a
leakage test’’ to reinforce the general
applicability of paragraph (h). Lastly,
PHMSA proposes to revise all references
of ‘‘cargo tanks’’ to ‘‘cargo tank motor
vehicles,’’ consistent with other
proposals. These proposed editorial
amendments help to increase regulatory
clarity and ultimately, increase safety.
On August 1, 2012, in response to
various incidents and NTSB Safety
Recommendations H–12–1 through H–
12–6, FMCSA issued a notice 58
regarding hoses used for the transfer of
Anhydrous Ammonia and Liquefied
Petroleum Gas from cargo tank motor
vehicles to storage tanks, and vice versa.
This notice reinforced the potential
hazards and importance of safety
requirements for these hoses, which are
subject to emergency discharge control
requirements in § 173.315(n). Therefore,
to reinforce the need to have these hoses
tested and inspected, PHMSA proposes
to specify the applicability of the
requirements for delivery hose assembly
and piping systems in this paragraph
includes any delivery hose assembly
used to meet § 173.315(n). PHMSA
expects that codifying this information
in the HMR will increase compliance
and therefore, increase safety.
PHMSA also proposes to add a
sentence to indicate ‘‘the test pressure of
the delivery hose assembly must be at
least 80 percent of the MAWP of the
cargo tank.’’ This provides regulatory
clarity to increase safety and is not
intended to revise current inspection
requirements.
Lastly, in review of this paragraph,
PHMSA and FMCSA identified that the
sentence ‘‘[d]elivery hose assemblies not
58 See the August 1, 2012, notice at: https://
www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/
Important%20Notice%20Regarding
%20Anhydrous%20Ammonia%20and%20
Liquefied%20Petroleum%20Gas%20Hoses_
508CLN.pdf.
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permanently attached to the cargo tank
motor vehicle may be inspected
separately from the cargo tank motor
vehicle’’ may potentially be confusing
language. As currently required in
§ 180.416(e), a delivery hose assembly
that is not permanently attached to a
cargo tank is required to be annually
tested in accordance with
§ 180.407(h)(4). However, because
§ 180.407(h)(4) only uses the term
‘‘inspection’’ without the term ‘‘testing,’’
there is potential ambiguity on how a
person tests a delivery hose assembly
that is not permanently attached to a
cargo tank. To remove this ambiguity,
PHMSA proposes to revise ‘‘separately
from the cargo tank motor vehicle’’ to
‘‘and tested while not attached to the
cargo tank motor vehicle.’’ By reducing
any potential ambiguity, PHMSA
expects this will increase compliance
and ultimately, safety.
Paragraph (i)(4)(v)
This paragraph requires thickness
testing be performed on the areas
around shell reinforcements. PHMSA
proposes to add emphasis that the areas
around shell reinforcements include the
areas ‘‘around all ring stiffeners and the
areas in the bottom half of the cargo
tank.’’ PHMSA expects this proposed
language will aid in regulatory
understanding to ultimately increase
safety, without altering the intent of this
section.
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Paragraph (i)(6)
Paragraph (i)(6)(ii) requires that the
cargo tank motor vehicle nameplate
must reflect revised service limits as one
of the conditions to continue using a
cargo tank that no longer conforms to
the minimum thickness prescribed in
the original design of a cargo tank motor
vehicle.
PHMSA proposes to clarify that the
cargo tank DCE must supply the part
178 supplemental Certificate of
Compliance (currently required by
§ 180.407(i)(6)(i)) that includes the
revised minimum thickness to the cargo
tank motor vehicle owner. This proposal
establishes an additional record beyond
the name plate or specification to assist
with traceability of the cargo tank motor
vehicle. In addition, this ensures these
revised service limits can be identified
if there is degradation of the name plate
or specification, which will increase
future safe transportation and
maintenance of the cargo tank motor
vehicle. Additionally, PHMSA is
proposing an editorial revision to
include marking the ‘‘certification
plate’’ for older 300-series CTMVs.
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Section 180.409
This section details minimum
qualifications for inspectors and testers.
Paragraph (a) includes introductory
language for this section. PHMSA
proposes minor editorial revisions to
paragraph (a) for ease of reading. This
includes removing ‘‘except as otherwise
provided in this section’’ and replacing
the § 180.407(e) reference with a general
reference to this subpart. PHMSA
expects that by increasing the
readability, it increases compliance and
therefore, safety.
Additionally, PHMSA proposes to
add paragraph (a)(4) to reinforce that a
registered inspector must meet the
training requirements of part 172
subpart H. The second highest number
of FMCSA enforcement violations each
year occur from Registered Inspectors
not having met the general hazmat
employee training requirements.
Therefore, in an effort to improve
compliance and reinforce the current
HMR requirements, PHMSA proposes to
add paragraph (a)(4) to state that
Registered Inspectors must meet the
training requirements in part 172
subpart H.
Section 180.411
Section 180.411 details the acceptable
results of the test and inspections of
cargo tank motor vehicles required by
the HMR. Paragraph (b) provides
introductory language and requires use
of CGA C–6 for evaluation procedures of
dents, cuts, digs, and gouges. Paragraph
(b)(1) provides acceptable results for
dents. In review of the HMR, PHMSA
noted in addition to dents, cuts, digs,
and gouges, CGA C–6 also includes
evaluation procedures for bulges.
Similar to dents, bulges are a feature of
a cargo tank that should be evaluated to
ensure the cargo tank motor vehicle
operates properly. Therefore, to increase
safety and align with CGA C–6, PHMSA
proposes to add bulges in the list of
defects in the introductory title to
paragraph (b) and in paragraph (b)(1).
Paragraph (g) specifies that any tank
that fails to meet pressure test
requirements must be properly repaired.
As a minor editorial amendment, in the
introductory text, PHMSA proposes to
add the word ‘‘cargo’’ to clarify the
testing is for the ‘‘cargo tank.’’
Lastly, PHMSA proposes to add
paragraph (h) to specify when a cargo
tank motor vehicle must be removed
from service and how that removal must
be communicated to the cargo tank
motor vehicle owner. This proposed
language specifies that if a Registered
Inspector determines the cargo tank
motor vehicle does not meet the
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applicable design specification, it may
not be represented as a DOT
specification cargo tank motor vehicle.
Furthermore, the cargo tank motor
vehicle must be removed from service
until it is in compliance with the
specification requirements and has been
successfully tested and inspected as
required by § 180.407(c). This aligns
with current regulatory requirements,
but provides additional clarity,
specifically for scenarios where a nonconforming cargo tank motor vehicle
may not be marked as a DOT
specification cargo tank until it has been
repaired and can pass the appropriate
§ 180.407(c) test and inspections.
Therefore, PHMSA expects this
proposal to increase safety and ensure
cargo tank motor vehicles are removed
from hazardous materials service when
they do not conform to the HMR.
Section 180.413
Section 180.413 specifies
requirements for the repair,
modification, stretching, rebarrelling, or
mounting of specification cargo tanks.
Paragraph (b)(6) requires that MC 330
and MC 331 cargo tanks must be
repaired in accordance with CGA
Technical Bulletin TB–2 and the
National Board Inspection Code.
PHMSA proposes to update the IBR of
CGA Technical Bulletin TB–2 to CGA
Technical Bulletin P26 (formerly TB–2)
in § 171.8. See ‘‘Section IV. Section-bySection Review; Part 171; Section
171.7’’ for a discussion on the proposed
change to this IBR. Therefore, PHMSA
proposes to revise the name of the CGA
Technical Bulletin in this paragraph.
Section 180.415
This section includes requirements
for test and inspection markings for
cargo tanks and cargo tank motor
vehicles. Paragraph (b) details cargo
tank marking requirements after
completion of a test or inspection.
PHMSA proposes to require that after a
test or inspection, the cargo tank facility
mark their cargo tank registration
number on the cargo tank. As proposed,
this marking must be placed
immediately adjacent to other required
markings and does not need to be
replicated if the registration number is
already marked on the cargo tank.
FMCSA identified some cargo tanks that
display current test or inspection
markings but found safety concerns
with the cargo tank. However, without
the cargo tank registration number
marked on the cargo tank, it is difficult
to trace those safety concerns back to
the testing and inspection facility who
repaired, tested, or inspected the cargo
tank. PHMSA and FMCSA expect that
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having the cargo tank facility’s
registration number marked on the cargo
tank will also aid in correcting
noncompliance and increase the safety
of cargo tank motor vehicles being
operated on the highway.
Section 180.416
This section specifies inspection and
maintenance requirements of discharge
systems for cargo tanks transporting
liquefied compressed gases. Paragraph
(a) details the applicability of § 180.416.
PHMSA proposes to revise editorially
‘‘nonspecification cargo tanks’’ to ‘‘nonspecification cargo tank motor
vehicles,’’ which aligns with other
references to these cargo tank motor
vehicles in the HMR.
Paragraph (b) details hose
identification requirements. PHMSA
proposes to remove the compliance date
of July 1, 2000, as this date has passed,
and all hoses are now subject to this
requirement. This editorial revision
helps to provide regulatory clarity and
increase safety.
Paragraph (c) states the operator of a
cargo tank motor vehicle must visually
check that portion of the hose assembly
that has been deployed during
unloading. PHMSA proposes to specify
that the rejection criteria in § 180.416(g)
should be used when an operator
visually checks the portion of the
delivery hose assembly that was
deployed during the unloading process.
While not currently specified in
paragraph (c), the rejection criteria in
§ 180.416(g) applies to hose assemblies;
therefore, this proposal provides clarity
and aids in additional regulatory
compliance. Ultimately, PHMSA
expects this proposal will increase
safety.
Paragraph (f) specifies requirements
for new or repaired delivery hose
assemblies and PHMSA proposes minor
editorial amendments, with paragraph
(f)(3) specifying record requirements
following the test and inspection.
PHMSA proposes to revise the
introductory text of paragraph (f) to
specify the requirements apply to a
‘‘cargo tank motor vehicle’’ instead of a
‘‘cargo tank.’’ PHMSA also proposes to
remove the compliance date of July 1,
2000, in paragraph (f)(3), as this date has
passed. Both of these proposed editorial
amendments align with other proposals
and provide regulatory clarity, which is
anticipated to increase safety.
Section 180.501
Section 180.501 contains the general
requirements for continued use of tank
cars. In this NPRM, PHMSA proposes to
replace the phrase ‘‘owner’s
qualification program’’ with ‘‘owner’s
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qualification and maintenance program’’
similar to other references to the
owner’s qualification and maintenance
program in §§ 179.7, 180.503, and
180.513. The intent of this change is to
maintain consistency and clarity within
the HMR, and to ensure there is no
confusion over the scope of part 180,
subpart F, titled ‘‘Qualification and
Maintenance of Tank Cars.’’
Section 180.503
Section 180.503 contains definitions
relevant to the qualification and
maintenance of tank cars. PHMSA
proposes to revise the definitions of
coating/lining owner, service equipment
owner and tank car owner, to convey
more clearly and accurately the
intended application of these
definitions in part 180 subpart F. These
definitions are revised as ‘‘the person
responsible for the development or
approval, and execution of the
qualification and maintenance program’’
for the coating/lining, service
equipment, or tank car owner, as
appropriate. This change identifies the
responsible parties more accurately
throughout subpart F, particularly by
removing confusion about financial
responsibility that can arise with
complex multi-dimensional business
arrangements, agreements, contracts,
and organization. This proposed change
was approved by HMIWG during the
January 10–11, 2017 meeting. The
proposed language was approved by
consensus vote at the May 25, 2017,
RSAC meeting and offered to PHMSA
and FRA for consideration.
PHMSA also proposes to amend the
following definitions:
• Maintenance: PHMSA proposes to
remove ‘‘upkeep, or preservation’’ from
the definition of maintenance and
replace it with ‘‘performance of
functions.’’ PHMSA and FRA consider
‘‘upkeep’’ and ‘‘preservation’’ too vague
to be useful, especially for service
equipment. Maintenance of service
equipment that triggers qualification is
an activity that meets the conditions
requiring a leakage pressure test in
accordance with § 180.509(j) (e.g.,
breaking the seal between the service
equipment and the tank car tank).
Actions on service equipment that don’t
require the service equipment to be
removed from the tank do not meet the
definition of maintenance and don’t
trigger qualification, unless the owner’s
qualification and maintenance program
specifically requires qualification after
certain activities. See ‘‘Section II.B.4.
Tank Car Facility Definition’’ for
additional information. Lastly, PHMSA
proposes to revise ‘‘proper’’ to
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85643
‘‘appropriate’’ as an editorial
amendment.
• Modification: PHMSA proposes to
replace ‘‘certificate of construction’’
with ‘‘design approval certificate’’ for
tank cars constructed after the effective
date of a final rule. Tank cars
constructed under AAR-approved
certificates of construction must receive
DCE approval for any modification. See
‘‘Section II.B.2. Tank Car Design
Approval’’ for additional information.
• Qualification: PHMSA proposes to
replace the phrase ‘‘applicable
requirements of the AAR Specifications
for Tank Cars (IBR, see § 171.7 of this
subchapter)’’ with ‘‘approved design.’’
This amendment conforms to PHMSA’s
proposal to remove AAR approval
requirements.
• Service equipment: PHMSA
proposes to revise this definition to
align with the current industry standard
and is intended to provide more clarity
than the current definition. Service
equipment is pressure or lading
retaining equipment and therefore
performs a critical safety function. See
‘‘Section II.B.4. Tank Car Facility
Definition’’ for additional information
related to entities who operate and
qualify service equipment. PHMSA and
FRA emphasize that service equipment
must continue to be included in the
tank car owner’s qualification and
maintenance plan.
Section 180.509
Section 180.509 details requirements
for inspection and testing of
specification tank cars. Paragraph (i)(1)
requires inspections of tank car internal
linings and coatings used to transport a
material that is corrosive or reactive to
the tank car. PHMSA proposes to revise
paragraph (i)(1) to indicate more clearly
that the inspection requirements only
apply to those linings and coatings used
to protect the tank from corrosion or
reactivity.
Paragraph (k)(2) contains qualification
requirements for service equipment.
PHMSA proposes to remove the phrase
‘‘[e]ach tank car facility must qualify’’
from § 180.509(k) because PHMSA does
not require tank car facilities to qualify
service equipment. Additionally,
PHMSA proposes to replace ‘‘qualified
in accordance with’’ with ‘‘must
conform to’’ as an amendment to better
align the paragraph with the definition
of ‘‘tank car facility’’ being proposed in
this rulemaking. See ‘‘Section II.B.4.
Tank Car Facility Definition’’ for
additional information.
Section 180.513
This section includes requirements
for repairs, alterations, conversions, and
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modifications of tank cars, with
paragraph (b) specifying the
responsibilities of a tank car facility.
PHMSA proposes to revise paragraph (b)
editorially to replace ‘‘Quality
Assurance Program’’ with ‘‘qualification
and maintenance program.’’ This
proposal clarifies the tank car owner’s
responsibility to provide tank car
facilities with qualification and
maintenance information. See ‘‘Section
II.B.8. Editorial Revision to §§ 180.501
and 180.513’’ for additional
information.
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Section 180.517
Section 180.517 contains reporting
and record retention requirements for
tank car qualification. PHMSA proposes
to remove reference to the ‘‘certification
of construction’’ and replace it with the
proposed ‘‘Design Approval Certificate’’
for tank cars constructed after the
effective date of a final rule. See
‘‘Section IV. Section-by-Section Review;
Part 179; Section 179.5’’ for more
information. Tank cars constructed with
AAR-approved certificates of
construction will remain subject to the
same recordkeeping requirements for
the rest of their service lives. In
paragraph (a), PHMSA also proposes to
replace references to the builder of the
car with references to the tank car
facility, replace references to the
certificate of construction with
references to qualification reports, and
add a reference to paragraph
179.7(b)(12). The revisions to paragraph
(a) are intended to accommodate the
proposed replacement of AAR TCC
approval with tank car DCE approval of
tank car and service equipment designs.
We propose to replace the phrase
‘‘related papers’’ with ‘‘related
qualification reports,’’ to clarify that we
expect tank car owners to retain the
reports issued by tank car facilities at
the time of manufacture and
maintenance qualification.
Additionally, PHMSA proposes to add a
requirement to record the tank car
facilities’ registration number on the
inspection and test report in new
paragraph (b)(9).
Appendix D to Part 180
This appendix discusses materials
considered corrosive to the tank or
service equipment. PHMSA proposes to
remove reference to the AAR TCC from
the second paragraph, in conformance
with the proposal to replace AAR TCC
approval with tank car DCE approval.
Therefore, PHMSA proposes to state
that the list in Appendix D may be
modified based on an analysis of the test
results by the car owner or the
Department of Transportation.
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V. Regulatory Analyses and Notices
A. Statutory/Legal Authority
This NPRM is published under the
authority of Federal Hazardous
Materials Transportation Act (HMTA;
49 U.S.C. 5101–5127). Section 5103(b)
of the HMTA authorizes the Secretary of
Transportation to ‘‘prescribe regulations
for the safe transportation, including
security, of hazardous materials in
intrastate, interstate, and foreign
commerce.’’ The Secretary has delegated
the authority granted in the HMTA to
the PHMSA Administrator at 49 CFR
1.97(b).
B. Executive Order 12866, 14094, and
DOT Regulatory Policies and Procedures
Executive Order 12866 (‘‘Regulatory
Planning and Review’’) 59 as amended
by Executive Order 14094
(‘‘Modernizing Regulatory Review’’),60
requires that agencies ‘‘should assess all
costs and benefits of available regulatory
alternatives, including the alternative of
not regulating.’’ Agencies should
consider quantifiable measures and
qualitative measures of costs and
benefits that are difficult to quantify.
Further, Executive Order 12866 requires
that ‘‘agencies should select those
[regulatory] approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety, and other advantages;
distributive impacts; and equity), unless
a statute requires another regulatory
approach.’’ Similarly, DOT Order
2100.6A (‘‘Rulemaking and Guidance
Procedures’’) requires that regulations
issued by PHMSA, and other DOT
Operating Administrations should
consider an assessment of the potential
benefits, costs, and other important
impacts of the proposed action and
should quantify (to the extent
practicable) the benefits, costs, and any
significant distributional impacts,
including any environmental impacts.
Executive Order 12866 and DOT
Order 2100.6A require that PHMSA
submit ‘‘significant regulatory actions’’
to the Office of Management and Budget
(OMB) for review. This rulemaking is
not considered a significant regulatory
action under section 3(f) of Executive
Order 12866 (as amended) and,
therefore, was not formally reviewed by
OMB. A PRIA with estimates of the
costs and benefits of the rulemaking is
available in the docket.
PHMSA solicits comment on this
analysis. Overall, the issues discussed
in this rulemaking promote the
continued safe transportation of
59 58
60 88
PO 00000
FR 51735 (Oct. 4, 1993).
FR 21879 (Apr. 11, 2023).
Frm 00056
Fmt 4701
Sfmt 4702
hazardous materials while producing a
net cost savings. Cost savings are
derived from certain modal specific
provisions, including expanding
allowance of UN ID number marking on
cargo tank motor vehicles that transport
different petroleum distillate fuels
within the same day and reduction in
the number of anticipated OTMAs for
rail tank cars.
Based on the discussions of benefits
and costs provided above, PHMSA
estimates annualized net benefits at a
two percent discount rate of
approximately $97.3 million per year.
Details on the estimated costs, cost
savings, and benefits of this rulemakings
can be found in the PRIA, which is
available in the public docket.
C. Executive Order 13132
PHMSA analyzed this rulemaking in
accordance with the principles and
criteria in Executive Order 13132
(‘‘Federalism’’) 61 and the Presidential
Memorandum (‘‘Preemption’’) that was
published in the Federal Register on
May 22, 2009.62 Executive Order 13132
requires agencies to assure meaningful
and timely input by state and local
officials in the development of
regulatory policies that may have
‘‘substantial direct effects on the states,
on the relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.’’
This rulemaking may preempt state,
local, and Native American tribe
requirements, but does not propose any
regulation that has substantial direct
effects on the states, the relationship
between the national government and
the states, or the distribution of power
and responsibilities among the various
levels of government.
The Federal Hazmat Law contains an
express preemption provision, 49 U.S.C.
5125 (b), that preempts state, local, and
tribal requirements on certain covered
subjects, unless the non-federal
requirements are ‘‘substantively the
same’’ as the federal requirements,
including:
(1) Designation, description, and
classification of hazardous materials;
(2) Packing, repacking, handling,
labeling, marking, and placarding of
hazardous materials;
(3) Preparation, execution, and use of
shipping documents related to
hazardous materials and requirements
related to the number, contents, and
placement of those documents;
61 64
62 74
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FR 24693 (May 22, 2009).
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(4) Written notification, recording,
and reporting of the unintentional
release in transportation of hazardous
material; and
(5) Design, manufacture, fabrication,
marking, maintenance, recondition,
repair, or testing of a packaging or
container represented, marked, certified,
or sold as qualified for use in
transporting hazardous material.
This rule addresses subject items (3)
and (5) above, which are covered
subjects, and, therefore, non-federal
requirements that fail to meet the
‘‘substantively the same’’ standard are
vulnerable to preemption under the
Federal Hazmat Law. Moreover, PHMSA
will continue to make preemption
determinations applicable to specific
non-federal requirements on a case-bycase basis, using the obstacle, dual
compliance, and covered subjects tests
provided in Federal Hazmat Law.
This rule also incorporates certain
FRA requirements under the former
Federal Railroad Safety Act of 1970, as
repealed, revised, reenacted, and
recodified (FRSA; 49 U.S.C. 20106), and
the former Safety Appliance Acts, as
repealed, revised, reenacted, and
recodified (SAA; 49 U.S.C. 20301–
20302, 20306) that may potentially
preempt certain state requirements.
Such FRSA and SAA requirements
would apply to transportation by rail.
D. Executive Order 13175
PHMSA analyzed this rulemaking in
accordance with the principles and
criteria contained in Executive Order
13175 (‘‘Consultation and Coordination
with Indian Tribal Governments’’) 63
and DOT Order 5301.1 (‘‘Department of
Transportation Policies, Programs, and
Procedures Affecting American Indians,
Alaska Natives, and Tribes’’). Executive
Order 13175 and DOT Order 5301.1
requires DOT Operating
Administrations to assure meaningful
and timely input from Native American
tribal government representatives in the
development of rules that significantly
or uniquely affect tribal communities by
imposing ‘‘substantial direct compliance
costs’’ or ‘‘substantial direct effects’’ on
such communities or the relationship
and distribution of power between the
federal government and Native
American tribes. Because this
rulemaking does not have Native
American tribal implications, and does
not impose substantial direct
compliance costs, the funding and
consultation requirements of Executive
Order 13175 do not apply. However,
PHMSA solicits comments from Native
American tribal governments and
63 65
FR 67249 (Nov. 6, 2000).
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18:14 Oct 25, 2024
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communities on potential impacts of
this proposed rulemaking.
E. Regulatory Flexibility Act and
Executive Order 13272
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires agencies to
consider whether a rulemaking would
have a ‘‘significant economic impact on
a substantial number of small entities’’
to include small businesses, not-forprofit organizations that are
independently owned and operated and
are not dominant in their fields, and
governmental jurisdictions with
populations under 50,000. The
Regulatory Flexibility Act directs
agencies to establish exceptions and
differing compliance standards for small
businesses, where possible to do so and
still meet the objectives of applicable
regulatory statutes. Executive Order
13272 (‘‘Proper Consideration of Small
Entities in Agency Rulemaking’’) 64
requires agencies to establish
procedures and policies to promote
compliance with the Regulatory
Flexibility Act and to ‘‘thoroughly
review draft rules to assess and take
appropriate account of the potential
impact’’ of the rules on small
businesses, governmental jurisdictions,
and small organizations. The DOT posts
its implementing guidance on a
dedicated web page.65
This rulemaking has been developed
in accordance with Executive Order
13272 and DOT’s procedures and
policies to promote compliance with the
Regulatory Flexibility Act to ensure that
potential impacts of draft rules on small
entities are properly considered.
PHMSA has developed an initial
regulatory flexibility analysis (IRFA),
which is included in the docket. As
detailed in the IRFA, the impact of this
rulemaking on small business is not
expected to be significant. The proposed
changes are generally intended to
provide regulatory flexibility and cost
savings to industry members, while
increasing safety. However, PHMSA
solicits comment on the anticipated
economic impacts to small entities and
the IRFA.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), no
person is required to respond to any
information collection unless it has
been approved by OMB and displays a
valid OMB control number. Pursuant to
44 U.S.C 3506(c)(2)(B) and 5 CFR
64 67
FR 53461 (Aug. 16, 2002).
‘‘Rulemaking Requirements Related to
Small Entities,’’ https://www.transportation.gov/
regulations/rulemaking-requirements-concerningsmall-entities (last visited Jun. 17, 2021).
65 DOT,
PO 00000
Frm 00057
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85645
1320.8(d), PHMSA must provide
interested members of the public and
affected agencies an opportunity to
comment on information collection and
recordkeeping requests.
PHMSA has analyzed this NPRM in
accordance with the Paperwork
Reduction Act. PHMSA proposes to
revise the approved information
collections under the following OMB
Control Numbers: OMB Control No.
2137–0014, ‘‘Cargo Tank Specification
Requirements;’’ OMB Control No. 2137–
0559, ‘‘Rail Carrier and Tank Car Tanks
Requirements, Rail Tank Car Tanks—
Transportation of Hazardous Materials
by Rail;’’ and OMB Control No. 2137–
0612 ‘‘Hazardous Materials Security
Plans.’’
OMB Control No. 2137–0014, ‘‘Cargo
Tank Specification Requirements’’
PHMSA estimates that this
rulemaking will result in an increase in
burden due to the proposed
requirements in § 180.407(f)(2) for a
cargo tank owner to provide paperwork
to the Registered Inspector prior to
lining inspection and § 180.415(b) for an
inspector or tester to mark the cargo
tank with their registration number. A
total overview of the proposed changes
in this OMB Control Number are
detailed in the table below.
For the proposed requirement in
§ 180.407(f)(2) for a cargo tank owner to
provide paperwork to the Registered
Inspector for lining inspection, PHMSA
estimates 1,333 cargo tank owners will
provide paperwork for approximately 60
cargo tanks per year. It is estimated to
take five minutes per response, for a
total of 6,665 annual burden hours.
PHMSA does not estimate that there are
any out-of-pocket expenses.
The new proposed requirement in
§ 180.415(b) for a cargo tank inspector to
mark the cargo tank with their
registration number is expected to
increase information collection burden.
PHMSA estimates 3,400 cargo tank
inspectors will mark each cargo tank
approximately 61 times per year. The
marking is anticipated to take five
minutes per inspection, resulting in a
total of 17,283 annual burden hours.
PHMSA does not estimate any out-ofpocket expenses. PHMSA notes that
after the first year of this requirement,
there will be a significant reduction in
this burden as the registration number
does not need to be remarked on the
cargo tank if it is being tested and
inspected at the same location.
Therefore, PHMSA plans to update this
burden one year after the effective date
of this rulemaking.
Lastly, PHMSA acknowledges that
there are proposed amendments that
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impact the burden but are not included
in this estimate. PHMSA does not
estimate a significant change in the
current burden due to the proposed
changes to cargo tank registration
including requiring an email address on
the registration statement, providing for
online submission, and expanding the
types of certificates that must be
Information collection details
provided in an application.
Additionally, PHMSA does not expect
that there will be more than ten
respondents who will submit a written
response, request for reconsideration, or
request appeal following the
modification, suspension, or
termination of their cargo tank
registration. PHMSA and FMCSA also
Increase in
number of
respondents
Obtain and Provide Paperwork for Lining
Inspection—§ 180.407(f)(2) ..................
Registration Number on Cargo Tank—
§ 180.415(b) ..........................................
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Annual Increase in Number of
Respondents: 4,733.
Annual Increase in Number of
Responses: 287,380.
Annual Increase in Burden Hours:
23,948.
Annual Increase in Burden Costs: $0.
OMB Control No. 2137–0559, ‘‘Rail
Carrier and Tank Car Tanks
Requirements, Rail Tank Car Tanks—
Transportation of Hazardous Materials
by Rail’’
PHMSA estimates that this
rulemaking will result in an increase in
burden due to various tank car proposed
changes, including: new tank car facility
and DCE registration, including
reporting and recordkeeping
requirements; development of
procedures for closing and securing all
openings on tank cars; record
requirements for a tank car being held
more than 48 hours; OTMA
recordkeeping requirements; DCE
written procedures to verify compliance
of tank cars; and requirement for the
DCE to provide a DAC to the tank car
or service equipment owner. However,
this rulemaking will also lead to a
decrease in burden, particularly in the
removal of AAR reporting to Bureau of
Explosives under § 174.20 and
reduction in the number of OTMA
applications under § 174.50. A total
overview of the proposed changes in
this OMB Control Number are detailed
in the below table.
PHMSA estimates that 280 tank car
facilities will register for the proposed
new tank car facility registration
requirements in § 107.905. Each
registration is anticipated to take two
hours, for a total of 560 annual burden
hours. PHMSA does not estimate that
there are any out-of-pocket expenses
associated with this information
collection.
PHMSA estimates that 25 DCEs will
register under the proposed new
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Response per
respondent
Increase in
number of
responses
Minutes per
response
Increase in
annual burden
hours
Increase in
annual burden
costs
1,333
60
79,980
5
6,665
$0
3,400
61
207,400
5
17,283
0
requirement in § 107.907 for DCE
registration. Each registration is
anticipated to take two hours to
complete, for a total of 50 annual
burden hours. PHMSA does not
estimate any out-of-pocket expenses
associated with this information
collection.
For both tank car facility and DCE
registration, PHMSA does estimate that
this number will significantly reduce
after the first year of initial tank car
facility and DCE registration. However,
after the first initial registration period,
PHMSA estimates there will be a burden
associated with registration renewal and
updating the requirements in
§§ 107.909(c) and 107.909(d). As tank
car facility and DCE registration are new
requirements, PHMSA does not estimate
the renewal and updating requirements
in the first year. However, PHMSA
plans to estimate that to renew or
update a tank car facility or DCE
registration, it will take approximately
30 minutes to complete. One year after
the effective date of this rulemaking,
PHMSA will update the burden for
initial registration and renewal and
updating a registration.
PHMSA also estimates an increase in
burden based on tank car facility and
DCE registration recordkeeping
proposed requirements in § 107.909(e).
PHMSA estimates that most of the
requests for a registration copy will
occur during FRA inspections, which
occur approximately 45 times per year.
It is anticipated that it will take five
minutes to produce the paperwork,
resulting in total of approximately four
annual burdens hours. PHMSA does not
estimate any out-of-pocket expenses.
Additionally, PHMSA proposes
requirements for the modification,
suspension, and termination of tank
cargo facility and DCE registrations,
including provisions for registrants to
submit a written response, request for
PO 00000
expect that there will not be more than
ten respondents per year who will
replace a missing specification plate and
prepare and maintain paperwork, as
proposed in new § 180.503(b)(3).
Therefore, PHMSA is not including a
new information collection for this
requirement.
Frm 00058
Fmt 4701
Sfmt 4702
reconsideration, and appeal of the
decision. However, PHMSA has not
estimated this burden, as PHMSA
estimates that there will be less than ten
registrants per year who may choose to
respond, request reconsideration, or
appeal their modification, suspension,
and termination of their registration.
PHMSA proposes to revise the
approval process in § 173.31(a)(2) from
AAR approval to DCE approval.
Accordingly, PHMSA will revise the
name of the information collection from
‘‘AAR Approval Required when a Tank
Car is Proposed for Commodity Service
other than Specified on a Certificate of
Construction’’ to ‘‘DCE Approval when
a Tank Car Carries a Commodity other
than Specified on a Certificate of
Construction or DAC.’’ However,
PHMSA does not expect a change in the
burden associated with this collection
because the required information for the
change request does not change; only
the approval entity is proposed to be
changed.
PHMSA proposes to revise
§ 173.31(d)(1) to require written
procedures for closure and securement
of all openings on a tank car prior to
shipment. PHMSA estimates that there
are 4,619 tank car offerors who will be
subject to this requirement. PHMSA
estimates that 95 percent of these
offerors already have some form of
procedures and thus the burden to
review and update these procedures is
limited to 16 hours resulting in a total
of 70,209 annual burden hours. The
other five percent of offerors will need
to create new procedures, which is
estimated to take 40 hours to develop,
resulting in a total of 9,238 annual
burden hours. Therefore, PHMSA
estimates that there will be an increase
of 79,447 total burden hours for this
new requirement. PHMSA does not
estimate any out-of-pocket expenses.
Following the initial year of this
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rulemaking, PHMSA estimates that the
burdens associated with developing
these procedures will be significantly
reduced, as only new tank car offerors
will be subject to this requirement.
Additionally, after the first year,
PHMSA estimates that there will be a
new burden for existing offerors to
update their written procedures.
PHMSA estimates that five percent of
tank car offerors will take eight hours to
update the procedures on an annual
basis. PHMSA plans to add this burden
after the rulemaking has been effective
for one year.
PHMSA proposes a new requirement
in § 174.14(a) to create a record when a
tank car is being held beyond 48 hours.
PHMSA estimates that there are 100
railroads who create this record 100
times per year. Each record takes
approximately five seconds, resulting in
a total of 14 annual burden hours.
PHMSA does not estimate any out-ofpocket expenses.
PHMSA proposes to remove
§ 174.20(b), which requires reporting to
the AAR Bureau of Explosives regarding
any restrictions over any portion of its
lines. PHMSA currently accounts for 34
offerors submitting 1.5 reports a year.
Each report takes 20 minutes resulting
in a reduction of 17 hours of annual
burden.
PHMSA proposes to revise § 174.50
for OTMA requirements, including
adding exceptions from needing an
OTMA. Because of these reductions,
PHMSA estimates a reduction of
approximately three OTMA per year for
each applicant for a total reduction of
575 OTMAs per year. As each
application takes approximately 24
minutes to complete an OTMA, this
revision results in an estimated
reduction of 202 annual burden hours.
PHMSA does not estimate any out-ofpocket expenses.
In § 174.50(d), PHMSA proposes to
specify recordkeeping requirements for
OTMAs. PHMSA estimates that these
recordkeeping requests, which will
mostly be through enforcement requests,
occur 56 times per year. It takes
approximately five minutes to produce
the OTMA documentation, for a total of
five annual burden hours. PHMSA does
not estimate any out-of-pocket expenses.
PHMSA proposes a new requirement
in § 179.3(b) for a DCE to develop
Change in
number of
respondents
Information collection request
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Tank Car Facility Registration—§ 107.905 ..........................
DCE Registration—§ 107.907 ..............................................
Tank Car Facility & DCE Registration Record Retention—
§ 107.909(e) ......................................................................
Tank Car Tank Car Facility & DCE Registration—Renew
or Update Registration—§ 107.909(e) ..............................
DCE Approval when a Tank Car Carries a Commodity
other than Specified on a Certificate of Construction or
DAC—§ 173.31(a)(2) ........................................................
Procedures for Closing and Securing All Openings on a
Tank Car—§ 173.31(d)(1)—NEW .....................................
Procedures for Closing and Securing All Openings on a
Tank Car—§ 173.31(d)(1)—UPDATES ............................
Record Required for Car Being Held—§ 174.14(a) .............
Reporting to the Bureau of Explosives Regarding any Restrictions Over Any Portion of its Lines—§ 174.20(b) ......
OTMA Application—§ 174.50(c) ...........................................
OTMA Documentation—§ 174.50(d) ....................................
DCE Written Procedure to Verify Compliance—§ 179.3(b)
DCE Providing DAC Requirements—§§ 179.3(d), 179.5 ....
Annual Increase in Number of
Respondents: 5,318.
Annual Increase in Number of
Responses: 15,005.
Annual Increase in Burden Hours:
83,634.
Annual Increase in Burden Costs: $0.
OMB Control No. 2137–0612,
‘‘Hazardous Materials Security Plans’’
PHMSA estimates this rulemaking
will result in a change in the current
estimated burden based on the new
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Change in
total
burden
hours
Change in
annual
burden
costs
Responses
per
respondent
Change in
number of
responses
280
25
1
1
280
25
2 hours
2 hours
560
50
$0
0
45
1
45
5 minutes
4
0
0
0
0
30 minutes
0
0
0
48
0
10 minutes
0
0
4,619
1
4,619
16 hours
70,280
0
231
100
1
100
231
10,000
40 hours
5 seconds
9,240
14
....................
0
¥34
¥54
56
25
25
1.5
9
1
1
14
¥51
¥575
56
25
350
20 minutes
24 minutes
5 minutes
8 hours
10 hours
¥17
¥202
5
200
3,500
0
0
0
0
0
exception from alternate route analysis.
Specifically, PHMSA proposes to add
§ 172.820(d)(3) to provide an exception
where no alternate route exists. PHMSA
estimates that approximately 10 percent
of Class II and III railroad routes will no
longer have to develop alternate route
analysis. This leads to a reduction of
1,400 total burden hours for both Class
II and III railroads. However,
§ 172.820(d)(3) requires that to take the
alternate route analysis exception, the
railroad must develop remediation or
PO 00000
written procedures to verify compliance
with tank car design. PHMSA estimates
that it takes eight hours for each of the
25 DCEs to develop written procedures,
resulting in a total of 200 annual burden
hours. PHMSA does not estimate any
out-of-pocket expenses. Furthermore, as
this is a one-time requirement, PHMSA
plans to reduce this information
collection one year after the effective
date of this rulemaking.
Lastly, PHMSA proposes a
recordkeeping requirement in
§§ 179.3(d) and 179.5 that the DCE
provide a copy of the DAC to the tank
car or service equipment owner
following approval. PHMSA estimates
that the 25 DCEs will review and
approve approximately 14 tank cars or
service equipment designs per year,
resulting in a total of 350 DACs
produced. PHMSA estimates it will take
10 hours to develop the DAC resulting
in 3,500 annual burden hours. PHMSA
estimates that there are no out-of-pocket
expenses for development of the DAC.
The following table outlines the total
change in information collection
burden:
Fmt 4701
Sfmt 4702
Time per
response
mitigation measures and certify that no
alternative route exists. Therefore,
PHMSA estimates that there will be 132
railroads (32 Class II and 100 Class III
railroads), with 47 routes where no
alternate route exists. PHMSA estimates
it will take 30 minutes to develop the
written measures and certification and
this new requirement will result in a
total of 24 annual burden hours.
Because there is no change in the
number of Class II and III railroads who
are subject to alternate route analysis
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requirements, there is an increase in
respondents and responses, but there is
an overall decrease in burden hours and
Information collection details—alternate
route analysis—§ 172.820(d)
salary costs. The below table details the
estimated change in burden associated
Change in
number of
railroads
Class II Railroads .....................................
Class III Railroads ....................................
Where No Practicable Route Exists ........
0
0
132
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Annual Increase in Number of
Respondents: 132.
Annual Increase in Number of
Responses: 32.
Annual Decrease in Burden Hours:
1,376.
Annual Decrease in Burden Costs: $0.
PHMSA requests comments on any
information collection and
recordkeeping burden associated with
the proposed changes under this
rulemaking. Address written comments
to the DOT Dockets Operations Office as
identified in the ADDRESSES section of
this rulemaking. Comments regarding
information collection burdens must be
received prior to the close of the
comment period identified in the DATES
section of this rulemaking. Requests for
a copy of this information collection
should be directed to Steven Andrews
or Glenn Foster, 202–366–8553,
[email protected], Standards and
Rulemaking Division (PHH–10),
Pipeline and Hazardous Materials Safety
Administration, 1200 New Jersey
Avenue SE, Washington, DC 20590–
0001. If these proposed requirements are
adopted in a final rule, PHMSA will
submit the revised information
collection and recordkeeping
requirements to OMB for approval.
G. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA; 2 U.S.C. 1501 et seq.)
requires agencies to assess the effects of
federal regulatory action on state, local,
or tribal governments, and the private
sector. For any NPRM or final rule that
includes a federal mandate that may
result in the expenditure by state, local,
and tribal governments, or by the
private sector of $100 million or more
in 1996 dollars in any given year, an
agency must prepare, amongst other
things, a written statement that
qualitatively and quantitatively assesses
the costs and benefits of the federal
mandate.
This proposed rulemaking does not
impose unfunded mandates under
URMA. As explained in the PRIA, it is
not expected to result in costs of $100
million or more in 1996 dollars on
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Change in
number of
routes per
railroad
Change in
number of
routes
¥0.3
¥0.05
0.35
H. Draft Environmental Assessment
The National Environmental Policy
Act of 1969 (NEPA; 42 U.S.C. 4321 et
seq), requires that federal agencies
analyze proposed actions to determine
whether the action will have a
significant impact on the human
environment. When the effects of a
proposed action are unknown, CEQ
implementing regulations (40 CFR
1500–1508) require federal agencies to
conduct an environmental review and
prepare an environmental assessment to
consider (1) the need for the proposed
action, (2) alternatives to the action, (3)
probable environmental impacts of the
action and alternatives, and (4) the
agencies and persons consulted during
the consideration process. DOT Order
5610.1C (‘‘Procedures for Considering
Environmental Impacts’’) establishes
DOT procedures for evaluation of
environmental impacts under NEPA and
its implementing regulations.
1. Need for the Action
This NPRM would amend the HMR to
revise provisions specific to the
highway, rail, and vessel transportation
of hazardous materials. This proposed
action is necessary to increase
regulatory clarity and consistency,
update requirements to reflect changing
conditions and trends, and improve the
safe transportation of hazardous
materials.
2. Alternatives
In proposing this rulemaking, PHMSA
considered the following alternatives:
No Action Alternative
If PHMSA were to select the No
Action Alternative, current regulations
would remain in place and no new
provisions would be amended or added.
Proposed Action Alternative
The proposed alternative for this
NPRM includes adoption of RSAC
Frm 00060
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Burden hours
per route
¥10
¥5
47
either state, local, or tribal governments,
in the aggregate, or to the private sector
in any one year, and is the least
burdensome alternative that achieves
the objective of the rule.
PO 00000
with this new exception. PHMSA does
not estimate any out-of-pocket expenses.
120
40
0.5
Change in
total burden
hours
Change in
total burden
cost
¥1,200
¥200
24
$0
0
0
proposals for rail transportation,
revision to the approval process for tank
car designs and QAPs, miscellaneous
amendments to highway cargo tank
specification and requalification
requirements, and an amendment to
cargo tank marking requirements for the
transportation of petroleum distillate
fuels that will be discussed in further
detail below.
This alternative is the current
proposal as it appears in this NPRM,
applying to the transportation of
hazardous materials by highway, rail,
and vessel. The proposed amendments
included in this alternative are more
fully described in the preamble and
regulatory text sections of this NPRM.
3. Reasonably Foreseeable
Environmental Impacts of the
Alternatives
No Action Alternative
The No Action Alternative would not
adopt enhanced and clarified regulatory
requirements expected to maintain or
increase the high level of safety in
transportation of hazardous materials
provided by the HMR. For example,
creation of reliable and repeatable
closure instructions for tank cars in
§ 173.31 is intended to decrease the
number of leaking or improperly closed
tank cars entering transportation, which
will decrease the quantity of hazardous
materials released into the environment.
Not adopting the proposed
environmental and safety requirements
in the NPRM under the No Action
Alternative would result in a lost
opportunity for reducing safety-related
incidents.
If PHMSA were to select the No
Action Alternative, the HMR would
remain unchanged, and no new
provisions would be amended or added.
Additionally, any economic benefits
and additional regulatory clarity gained
through these amendments would not
be realized.
Proposed Alternative
The changes under the Proposed
Action Alternative will maintain or
increase the high safety standards
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currently achieved under the HMR. The
following details significant proposed
amendments and their impact:
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1. Adoption of Rail Safety Advisory
Committee (RSAC) Proposals for Rail
Transportation
Adoption of RSAC proposals includes
updating the IBR edition of the AAR
Specifications for Tank Cars to the 2014
edition from the 2000 edition; creating
closure instruction requirements for
tank car offerors; codifying longstanding FRA guidance on OTMAs; and
revising tank car use requirements
found in part 174 to reflect the current
industry best practices in tank car
loading and unloading.
The RSAC proposals are designed to
improve regulatory clarity, and therefore
encourage compliance with the
requirements of the HMR. Creation of
closure instruction requirements for
tanks cars will decrease the number of
non-compliant tank cars offered for
transportation and the number of nonaccidental releases of hazardous
materials. Based on a review of nonaccident release data, PHMSA and FRA
estimate that the implementation of the
closure instruction requirement could
reduce the number of non-accidental
releases by 15 percent, primarily by
reducing releases associated with
improperly closed hinged-and-bolted
manways. Codifying FRA’s One Time
Movement Approval procedures in the
HMR will have no impact on releases of
hazardous materials to the environment,
because these procedures are already in
place as FRA policy. Revisions to part
174, including clarification of the
applicability of the term ‘‘residue’’ for
tank cars in § 174.58, authorizing
additional types of packages for COFC/
TOFC service without FRA approval in
§ 174.63, and revising transloading
requirements in § 174.67 are intended to
remove unnecessarily prescriptive and
outmoded requirements and replace
them with performance based standards
that maintain the current level of safety.
PHMSA and FRA do not anticipate any
increase in the release of hazardous
materials or other negative
environmental impacts from these
changes. Increased compliance with the
HMR’s requirements for hazardous
materials containment in particular
through proper closure instructions and
transloading procedures, decreases the
release of hazardous materials to the
environment and improve the ability of
emergency responders to appropriately
respond to accidents and incidents
involving hazardous materials in
transportation.
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Greenhouse gas emissions would
remain the same under this proposed
amendment.
Based on this analysis adopting RSAC
proposals will have a positive impact on
human health and the environment.
2. Revision to the Approval Process for
Tank Car Designs and Quality
Assurance Programs (QAPs)
PHMSA proposes changes to remove
the role of the AAR TCC in tank car
design approval, to be replaced with
design review by a DCE. This process
will mirror the current procedure for
cargo tank motor vehicles. PHMSA
additionally proposes to remove the role
of the AAR TCC from the approval
process of a tank car facility’s QAP, to
be replaced with a registration
requirement for tank car facilities and
increased governmental oversight.
Finally, PHMSA proposes to revise the
definition of tank car facility to narrow
the scope of the definition to only cover
facilities that qualify tank cars for
service.
PHMSA and FRA anticipate that the
proposal to replace the role of the AAR
TCC with tank car DCEs, registered with
PHMSA and subject to PHMSA and
FRA oversight will ensure at least an
equivalent level of safety oversight due
to improved visibility into the design
approval process. PHMSA and FRA
have limited oversight and control over
the current AAR TCC tank car design
approval and QAP approval process.
The procedures proposed for the design
review in Part 179 are intended to create
an accountable, auditable, criteria-based
tank car design approval system.
Similarly, the tank car facility
registration program is designed to
create increased visibility of tank car
facilities with increased government
oversight through the registration
program, including possible suspension
or termination of a registration.
Therefore, there will be no change to the
suitability of tank car designs, or to the
construction, maintenance, and
qualification of tank cars conducted by
tank car facilities.
PHMSA does not anticipate any
impact to greenhouse gas emissions
under this proposed amendment.
3. Miscellaneous Amendments to
Highway Cargo Tank Specification and
Requalification Requirements
PHMSA proposes to amend a variety
of highway cargo tank specification and
requalification requirements. While a
majority of the intended provisions are
for editorial and regulatory clarity, they
also include the following substantive
revisions:
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• Updating the IBR edition of CGA
P–26 (formerly TB–2) to the 1997
edition;
• Allowing for the use of a Midland
PRD for chlorine gases in cargo tanks
and portable tanks;
• Requiring post-weld heat treatment
on newly manufactured nurse tanks;
• Requiring combustible liquids and
flammable liquids reclassified as
combustible liquids to be bonded and
grounded prior to and during transfer of
lading;
• Allowing the DOT Specification
331 and 338 cargo tank motor vehicle
specification plate to be applied to the
vehicle instead of the rail chassis;
• Ensuring the mechanical means of
remote closure on a cargo tank motor
vehicle is not obstructed;
• Requiring that all equipment and
instruments be calibrated;
• Allowing the use of video camera or
fiber optics equipment for any visual
test or inspection;
• Requiring inspection of all pad
attachments;
• Limiting the need to remove the
upper coupler during inspection; and
• Requiring the cargo tank facility
registration number to be marked on the
cargo tank following inspection.
These highway amendments are
designed to improve regulatory clarity,
and therefore encourage compliance
with the requirements of the HMR. The
HMR’s cargo tank construction,
maintenance, and qualification
regulations have not kept up with
technological changes, e.g., the
availability of small, high quality video
cameras capable of producing images of
the interior of a cargo tank shell
equivalent to human vision. Revising
and updating these cargo tank
requirements will improve construction,
maintenance, and qualification practices
for cargo tanks used to transport
hazardous materials. These revisions are
intended to decrease the release of
hazardous materials to the environment
during transportation.
Greenhouse gas emissions would
remain the same under this proposed
amendment.
4. Cargo Tank Marking Requirements for
Petroleum Distillate Fuels
PHMSA proposes to revise the
marking requirements for cargo tanks
transporting multiple petroleum
distillate fuels in the current or previous
business day (defined as a day that the
operator of the cargo tank motor vehicle
is open and operating in commerce).
The proposal authorizes a carrier to
display the marking of the UN ID
number for the petroleum distillate fuel
with the lowest flashpoint transported
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in that cargo tank during the current or
previous business day. For example, a
cargo tank used to transport gasoline on
Day 1, and diesel fuel only on Day 2,
may display ‘‘1203’’ on Day 2, because
gasoline has a lower flash point than
diesel fuel.
PHMSA’s analysis of this proposed
amendment indicates that for NA1993,
UN1202, UN1203, UN1223, and other
petroleum distillate fuels, the ERG
directs the reader to the same guide
page for initial emergency response
measures, and PHMSA further requests
information from emergency responders
describing how emergency response
would differ for an accident involving a
cargo tank motor vehicle marked
‘‘1993,’’ ‘‘1202,’’ ‘‘1203,’’ ‘‘1223,’’ or
another UN ID number associated with
a petroleum distillate fuel. PHMSA
requests information on any known
incidents where emergency response
was impacted negatively due to a cargo
tank motor vehicle displaying ‘‘1203’’
when it was transporting a petroleum
distillate fuel with a higher flash point.
The substantial time saved during fuel
deliveries due to the removal of the
requirement to change the ID number
displayed inside the placard may
provide environmental benefits,
including a reduction in greenhouse
gases due to a reduction in time cargo
tank motors vehicles spend idling while
the driver changes the ID number
displayed in the placard. PHMSA seeks
comment on this, and any other
environmental impacts associated with
this amendment.
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4. Agencies and Persons Consulted
During the Consideration Process
PHMSA has coordinated with the
FAA, FMCSA, FRA, and the USCG, in
the development of this proposed
rulemaking. The NPRM has also been
made available to other federal agencies
within the interagency review process
contemplated under Executive Order
12866. PHMSA solicits, and will
consider, comments on the NPRM’s
potential impacts on safety and the
environment submitted by members of
the public, state and local governments,
tribal communities, and industry.
5. Executive Order 12898
Executive Orders 12898 (‘‘Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations’’),66 13985
(‘‘Advancing Racial Equity and Support
for Underserved Communities Through
the Federal Government’’),67 13990
(‘‘Protecting Public Health and the
66 59
67 86
FR 7629 (Feb. 16, 1994).
FR 7009 (Jan. 25, 2021).
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Environment and Restoring Science To
Tackle the Climate Crisis’’),68 14008
(‘‘Tackling the Climate Crisis at Home
and Abroad’’),69 and DOT Order
5610.2C (‘‘Department of Transportation
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations’’) require DOT
agencies to achieve environmental
justice as part of their mission by
identifying and addressing, as
appropriate, disproportionately high
and adverse human health or
environmental effects, including
interrelated social and economic effects
of their programs, policies, and
activities on minority populations, lowincome populations, and disadvantaged
communities.
PHMSA has evaluated this proposed
rulemaking under the above Executive
Orders and DOT Order 5610.2C and
expects it would not cause
disproportionately high and adverse
human health and environmental effects
on minority, low-income, underserved,
and other disadvantaged populations
and communities. The rulemaking is
facially neutral and national in scope; it
is neither directed toward a particular
population, region, or community, nor
is it expected to adversely impact any
particular population, region, or
community. And because PHMSA
expects the rulemaking would not
adversely affect the safe transportation
of hazardous materials generally,
PHMSA does not expect the proposed
revisions would entail
disproportionately high adverse risks for
minority populations, low-income
populations, or other underserved and
other disadvantaged communities.
The proposed rulemaking could
reduce risks to minority populations,
low-income populations, or other
underserved and other disadvantaged
communities. Insofar as the proposed
HMR amendments could avoid the
release of hazardous materials, the
proposed rule could reduce risks to
populations and communities—
including any minority, low-income,
underserved and other disadvantaged
populations and communities—in the
vicinity of interim storage sites and
transportation arteries and hubs.
Additionally, as explained in the above
discussion of NEPA, PHMSA anticipates
that its proposed HMR amendments will
yield modest GHG emissions
reductions, thereby reducing the risks
posed by anthropogenic climate change
to minority, low-income, underserved,
and other disadvantaged populations
and communities.
68 86
69 86
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PO 00000
FR 7037 (Jan. 25, 2021).
FR 7619 (Feb. 1, 2021).
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PHMSA solicits comment on potential
impacts to minority, low-income,
underserved, and other disadvantaged
populations and communities of the
proposed rulemaking.
6. Proposed Finding of No Significant
Impact
PHMSA anticipates the adoption of
the Proposed Action Alternative’s
regulatory amendments will maintain
the HMR’s current high level of safety
for shipments of hazardous materials
transported by highway, rail, and vessel,
and as such proposes the HMR
amendments in the NPRM would have
no significant impact on the human
environment. The environmental review
outlines the Proposed Action
Alternative will avoid adverse safety,
environmental justice, and greenhouse
gas (GHG) emissions impacts of the
proposed action. Furthermore, based on
the environmental analysis of
provisions described above, PHMSA
proposes to find the codification and
implementation of this rulemaking
would not result in a significant impact
to the human environment.
PHMSA welcomes any views, data, or
information related to safety or
environmental impacts that may result
from the NPRM’s proposed
requirements, the No Action
Alternative, and other viable
alternatives and their environmental
impacts.
I. Privacy Act
In accordance with 5 U.S.C. 553(c),
DOT solicits comments from the public
to better inform its rulemaking process.
DOT posts these comments, without
edit, including any personal information
the commenter provides, to
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
http://www.dot.gov/privacy. DOT’s
complete Privacy Act Statement in the
Federal Register published on April 11,
2000,70 or on DOT’s website at http://
www.dot.gov/privacy.
J. Executive Order 13609 and
International Trade Analysis
Executive Order 13609 (‘‘Promoting
International Regulatory
Cooperation’’) 71 requires that agencies
must consider whether the impacts
associated with significant variations
between domestic and international
regulatory approaches are unnecessary
or may impair the ability of American
business to export and compete
internationally. In meeting shared
70 65
71 77
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FR 19475 (Apr. 11, 2000).
FR 26413 (May 4, 2012).
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challenges involving health, safety,
labor, security, environmental, and
other issues, international regulatory
cooperation can identify approaches
that are at least as protective as those
that are or would be adopted in the
absence of such cooperation.
International regulatory cooperation can
also reduce, eliminate, or prevent
unnecessary differences in regulatory
requirements.
Similarly, the Trade Agreements Act
of 1979 (Pub. L. 96–39), as amended by
the Uruguay Round Agreements Act
(Pub. L. 103–465), prohibits federal
agencies from establishing any
standards or engaging in related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. Pursuant to the Trade
Agreements Act, the establishment of
standards is not considered an
unnecessary obstacle to the foreign
commerce of the United States, so long
as the standards have a legitimate
domestic objective, such as providing
for safety, and do not operate to exclude
imports that meet this objective. The
statute also requires consideration of
international standards and, where
appropriate, that they be the basis for
U.S. standards.
PHMSA participates in the
establishment of international standards
in order to protect the safety of the
American public. PHMSA has assessed
the effects of this rulemaking to ensure
that it does not cause unnecessary
obstacles to foreign trade. While the
rulemaking would clarify and elaborate
on existing PHMSA regulations,
PHMSA expects the rulemaking will
result in cost savings and greater
regulatory flexibility for entities engaged
in international commerce. Accordingly,
this rulemaking is consistent with
Executive Order 13609 and PHMSA’s
obligations under the Trade Agreement
Act, as amended.
K. National Technology Transfer and
Advancement Act
The National Technology Transfer
and Advancement Act of 1995 (15
U.S.C. 272 note) directs federal agencies
to use voluntary consensus standards in
their regulatory activities unless doing
so would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specification
of materials, test methods, or
performance requirements) that are
developed or adopted by voluntary
consensus standard bodies. This
rulemaking involves multiple voluntary
consensus standards that are discussed
at length in the discussion on § 171.7.
See ‘‘Section IV. Section-by-Section
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Review; Part 171; Section 171.7’’ for
further details.
L. Executive Order 13211
Executive Order 13211 (‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’) 72 requires federal
agencies to prepare a Statement of
Energy Effects for any ‘‘significant
energy action.’’ Executive Order 13211
defines a ‘‘significant energy action’’ as
any action by an agency (normally
published in the Federal Register) that
promulgates, or is expected to lead to
the promulgation of, a final rule or
regulation that (1)(i) is a significant
regulatory action under Executive Order
12866 or any successor order and (ii) is
likely to have a significant adverse effect
on the supply, distribution, or use of
energy (including a shortfall in supply,
price increases, and increased use of
foreign supplies); or (2) is designated by
the Administrator of the Office of
Information and Regulatory Affairs
(OIRA) as a significant energy action.
Although this proposed rule is a
significant regulatory action under
Executive Order 12866, this action is
not likely to have a significant adverse
effect on the supply, distribution, or use
of energy in the United States. For
additional discussion of the anticipated
economic impact of this rulemaking,
please review the PRIA in the
rulemaking docket.
M. Cybersecurity and Executive Order
14082
Executive Order 14082 (‘‘Improving
the Nation’s Cybersecurity’’) 73
expressed the Administration policy
that ‘‘the prevention, detection,
assessment, and remediation of cyber
incidents is a top priority and essential
to national and economic security.’’
Executive Order 14082 directed the
Federal Government to improve its
efforts to identify, deter, and respond to
‘‘persistent and increasingly
sophisticated malicious cyber
campaigns.’’ Consistent with Executive
Order 14082, TSA in October 2022
issued a Security Directive to reduce the
risk that cybersecurity threats pose to
critical railroad operations and facilities
through implementation of layered
cybersecurity measures that provide
defense-in-depth.74
PHMSA has considered the effects of
the NPRM and has preliminarily
determined that its proposed regulatory
amendments would not materially affect
72 66
FR 28355 (May 22, 2001).
FR 26633 (May 17, 2021).
74 TSA, Security Directive No. 1580/82–2022–01,
‘‘Rail Cybersecurity Mitigation Actions and
Testing’’ (Oct. 24, 2022).
73 86
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the cybersecurity risk profile for rail
transportation of hazardous materials.
PHMSA seeks comment on any other
potential cybersecurity impacts of the
proposed amendments.
N. Severability
The purpose of this proposed rule is
to operate holistically in addressing
different issues related to safety and
environmental hazards associated with
the transportation of hazardous
materials. However, PHMSA recognizes
that certain provisions focus on unique
topics. Therefore, PHMSA preliminarily
finds that the various provisions of this
proposed rule are severable and able to
function independently if severed from
each other; thus, in the event a court
were to invalidate one or more of this
proposed rule’s unique provisions, the
remaining provisions should stand and
continue in effect. PHMSA seeks
comment on which portions of this rule
should or should not be severable.
List of Subjects
49 CFR Part 107
Administrative practice and
procedure, Hazardous materials
transportation, Penalties, Reporting and
recordkeeping requirements.
49 CFR Part 171
Exports, Hazardous materials
transportation, Hazardous waste,
Imports, Incorporation by reference,
Reporting, and recordkeeping
requirements.
49 CFR Part 172
Education, Hazardous materials
transportation, Hazardous waste,
Labeling, Markings, Packaging and
containers, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation,
Incorporation by reference, Packaging
and containers, Radioactive materials,
Reporting and recordkeeping
requirements, Uranium.
49 CFR Part 174
Hazardous materials transportation,
Radioactive materials, Railroad safety.
49 CFR Part 176
Hazardous materials transportation,
Incorporation by reference, Maritime
carriers, Radioactive materials,
Reporting and recordkeeping
requirements.
49 CFR Part 177
Hazardous materials transportation,
Incorporation by reference, Motor
carriers, Radioactive materials,
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Reporting and recordkeeping
requirements.
49 CFR Part 178
Hazardous materials transportation,
Incorporation by reference, Motor
vehicle safety, Packaging and
containers, Reporting and recordkeeping
requirements.
49 CFR Part 179
Hazardous materials transportation,
Incorporation by reference, Railroad
safety, Reporting and recordkeeping
requirements.
49 CFR Part 180
Hazardous materials transportation,
Incorporation by reference, Motor
carriers, Motor vehicle safety, Packaging
and containers, Railroad safety,
Reporting and recordkeeping
requirements.
In consideration of the foregoing,
PHMSA proposes to amend 49 CFR
chapter I as follows:
PART 107—HAZARDOUS MATERIALS
PROGRAM PROCEDURES
1. The authority citation for part 107
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128, 44701;
Pub. L. 101–410 Section 4; Pub. L. 104–121
Sections 212–213; Pub. L. 104–134 Section
31001; Pub. L. 114–74 Section 701 (28 U.S.C.
2461 note); 49 CFR 1.81 and 1.97; 33 U.S.C.
1321.
2. In § 107.1, revise the definition of
‘‘registration’’ to read as follows:
■
§ 107.1
Definitions.
*
*
*
*
*
Registration means a written
acknowledgment from the Associate
Administrator that a registrant is
authorized to perform a function for
which registration is required under
subchapter C of this chapter (e.g.,
registration in accordance with 49 CFR
178.503 regarding marking of
packagings). For purposes of subparts A
through E, ‘‘registration’’ does not
include registration under subpart F, G,
or J of this part.
*
*
*
*
*
■ 3. In 107.105, revise paragraph (a)(5)
to read as follows:
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§ 107.105
Application for special permit.
(a) * * *
(5) For persons required to be
registered in accordance with Subpart F,
G, or J of this part, in addition to the
information listed in paragraph (a)(2) of
this section, the application must
provide the registration number or the
name of the company to which the
registration number is assigned if
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different from the applicant. For persons
not required to be registered in
accordance with Subpart F, G, or J of
this part, in addition to the information
listed in paragraph (a)(2) of this section,
the application must provide a
statement indicating that registration is
not required.
*
*
*
*
*
■ 4. In § 107.502:
■ a. Revise paragraphs (a)(3), (b), (d),
and (e); and
■ b. Add paragraphs (a)(4) through (9)
and (f).
The revisions and additions read as
follows:
§ 107.502 General registration
requirements.
(a) * * *
(3) The terms cargo tank wall,
component, and manufacturer are
defined in § 178.320(a) of this chapter.
The terms maintenance, modification,
and repair are defined in § 180.403 of
this chapter.
(4) Fixed test and inspection facility
means a single, permanent, and specific
geographical location with a physical
address where cargo tanks or cargo tank
motor vehicles are housed, stored, and
maintained for repair or tests and
inspections, in accordance with subpart
E of part 180 of this chapter.
(5) FMCSA Agency Decisionmaker
means Assistant Administrator, Federal
Motor Carrier Safety Administration, or
another FMCSA official authorized to
make a final agency decision as
specified in this subchapter.
(6) FMCSA Agency Official means the
official(s) authorized by FMCSA order
of delegation to take the actions
specified in this subchapter.
(7) Mobile tester means a person
qualified in accordance with § 180.409
of this chapter to perform repair or test
and inspection at a location other than
a fixed test and inspection facility.
(8) Mobile testing means the conduct
of repairs or tests and inspections by a
mobile tester in accordance with
subpart E of part 180 of this chapter for
the continuing qualification,
maintenance, or periodic testing of
cargo tanks or cargo tank motor vehicles
at a location other than at a fixed test
and inspection facility.
(9) Mobile test and inspection unit
means a motor vehicle used by a mobile
tester to perform mobile testing.
(b) No person may engage in the
manufacture, assembly, certification,
inspection, or repair of a cargo tank or
cargo tank motor vehicle manufactured
under the terms of a DOT specification
under subchapter C of this chapter or a
special permit issued under this part
unless the person is registered with the
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Department in accordance with the
provisions of this subpart. A person
employed as a Registered Inspector or
Design Certifying Engineer is considered
to be registered if the person’s employer
is registered. The requirements of this
paragraph (b) do not apply to a person
engaged in the repair of a DOT
specification cargo tank used in the
transportation of hazardous materials in
the United States in accordance with
§ 180.413(a)(1)(iii) of this chapter.
*
*
*
*
*
(d) Persons registering with the
Department may submit their
registration statement and all of the
information required by this subpart, in
English, electronically at https://
portal.fmcsa.dot.gov/UrsRegistration
Wizard/, or in hard copy form to:
FMCSA Hazardous Materials Division—
MC–ECH, 1200 New Jersey Ave.,
Washington, DC 20590–0001.
(e) Upon determination that a
registration statement contains all the
information required by this subpart,
the Department will send the registrant
a letter or provide electronic
confirmation verifying receipt of the
registration application and assigning a
registration number to that person.
(f) A separate registration number will
be assigned for each cargo tank
manufacturing, assembly, repair facility,
or other place of business identified by
the registrant.
■ 5. In § 107.503:
■ a. Revise paragraphs (a)(2), (a)(4), and
(c); and
■ b. Add paragraph (d).
The revisions and addition read as
follows:
§ 107.503
Registration statement.
(a) * * *
(2) Street address, mailing address,
telephone number, and email address, if
available, for each facility or place of
business;
*
*
*
*
*
(4) A statement signed by the person
responsible for compliance with the
applicable requirements of this chapter,
certifying knowledge of those
requirements and that each employee
who is a hazmat employee, including a
Registered Inspector or Design
Certifying Engineer, meets the minimum
qualification requirements set forth in
§ 171.8 of this chapter, has been trained
in accordance with § 172.704, and is
knowledgeable and trained in the
functions the employee performs. The
following language may be used:
I certify that all hazmat employees,
including Registered Inspectors and
Design Certifying Engineers, performing
any function have met the minimum
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qualification requirements set forth in
49 CFR 171.8 and/or 180.403 and the
training requirements of 49 CFR
172.704; that all persons are
knowledgeable and trained in the
functions they perform; that I am the
person responsible for ensuring
compliance with the applicable
requirements of this chapter; that I
maintain all required documentation to
verify compliance; and that I have
knowledge of the requirements
applicable to the functions to be
performed.
*
*
*
*
*
(c) In addition to the information
required under paragraph (a) of this
section, each person who repairs a cargo
tank or cargo tank motor vehicle must
submit a copy of the repair facility’s
current National Board Certificate of
Authorization for the use of the ‘‘R’’
stamp or ASME Certificate of
Authorization for the use of the ASME
‘‘U’’ stamp.
(d) In addition to the information
required under paragraph (a) of this
section, each person who performs the
wet fluorescent magnetic particle exam
must submit a copy of the ASME Code
training certificate.
■ 6. Add § 107.505 to read as follows:
FMCSA Agency Official within 30 days
of service of notice of the proposed
action.
(2) After considering the holder’s
written response, or after 30 days have
passed without response since service of
the notice, the FMCSA Agency Official
notifies the holder in writing or by
electronic means of the decision with a
brief statement of reasons and the
effective date of the action.
(c) The rules for service and
computation of time in §§ 386.6 and
386.8 of this title shall apply to this
section, except that electronic service is
permitted.
(d) If FMCSA determines that a
violation of a provision of the federal
hazardous material transportation law,
or a regulation or order prescribed
under that law, or an unsafe condition
or practice, constitutes or is causing an
imminent hazard, as defined in § 109.1
of this subchapter, FMCSA may issue an
immediately effective emergency order
to the registration holder in accordance
with § 109.17 of this subchapter.
Petitions for review of the emergency
order shall be governed by § 109.19 of
this subchapter.
■ 7. Add § 107.506 to read as follows:
§ 107.505 Modification, suspension or
termination of registration.
(a) A registration holder may request
that the FMCSA Agency Official
reconsider a decision under § 107.505 of
this part. The request for
reconsideration must:
(1) Be in writing or by electronic
means and served within twenty days of
service of the decision;
(2) State in detail any alleged errors of
fact, law, or procedure;
(3) Explain any corrective actions
taken;
(4) Enclose any additional
information needed to support the
request to reconsider; and
(5) State in detail the modification of
the final decision sought.
(b) A decision issued under § 107.505
of this part remains effective pending a
decision on reconsideration. The
FMCSA Agency Official will consider
requests to stay the decision using the
criteria set forth in § 107.507(b)(1)–(4) of
this part.
(c) The FMCSA Agency Official may
request additional information or
documents and, to ensure that the
deficiencies identified as the basis for
the action have been corrected, may
conduct additional investigation. If the
registration holder does not provide the
information requested, the FMCSA
Agency Official may deny the petition
for reconsideration. The FMCSA Agency
Official considers all information and
(a) The FMCSA Agency Official may
modify, suspend, or terminate a
registration, as appropriate, on finding
that:
(1) Because of a change in
circumstances, the registration requires
modification, is no longer needed, or
would no longer be granted if applied
for;
(2) The application contained
inaccurate or incomplete information,
and the registration would not have
been granted had the application been
accurate and complete;
(3) The application contained
deliberately inaccurate or incomplete
information; or
(4) The holder knowingly has violated
the terms of the registration or an
applicable requirement of this chapter
in a manner demonstrating lack of
fitness to conduct the activity for which
registration is required.
(b) Except as provided in paragraph
(c) of this section, before a registration
is modified, suspended, or terminated,
the FMCSA Agency Official notifies the
holder in writing or by electronic means
of the proposed action and the reasons
for it, and provides an opportunity to
show cause why the proposed action
should not be taken.
(1) The holder may file a response in
writing or by electronic means with the
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§ 107.506
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85653
documentation submitted on
reconsideration.
(d) The FMCSA Agency Official
grants or denies, in whole or in part, the
relief requested and informs the
requesting person in writing or by
electronic means of the decision.
(e) The rules for service and
computation of time in §§ 386.6 and
386.8 of this title shall apply to this
section, except that electronic service is
permitted.
■ 8. Add § 107.507 to read as follows:
§ 107.507
Appeal.
(a) A person who requested
reconsideration under § 107.506 and is
denied the relief requested may appeal
to the FMCSA Agency Decisionmaker.
The appeal must be in writing and
served on the Agency Decisionmaker,
ATTN: Adjudications Counsel, Federal
Motor Carrier Safety Administration,
1200 New Jersey Avenue SE
Washington, DC 20590–0001, or by
submitting the documents electronically
to [email protected]. The
appeal must also be served on all parties
to the proceeding. The appeal must:
(1) Be served within 30 days of
service of the FMCSA Agency Official’s
decision on reconsideration;
(2) State in detail any alleged errors of
fact, law, or procedure;
(3) Enclose any additional
information needed to support the
appeal; and
(4) State in detail the modification of
the final decision sought.
(b) The FMCSA Agency Official’s
action remains effective pending a
decision on appeal. Requests for a stay
of the FMCSA Agency Official’s action
will be considered using the following
criteria:
(1) There is a substantial likelihood
that the requesting party will prevail on
the merits;
(2) The requesting party will suffer
irreparable injury absent the stay;
(3) The threatened injury outweighs
whatever damage the stay may cause the
opposing party; and
(4) The stay will not harm the public
interest.
(c) The FMCSA Agency Official files
a response to the appeal no later than 30
days following service of the appeal.
The FMCSA Agency Official addresses
each assignment of error by producing
evidence or legal argument that
supports the Agency Official’s
determination on that issue. The Agency
Official’s determination may be
supported by circumstantial or direct
evidence and the reasonable inferences
drawn therefrom. The burden of proof
shall be on the FMCSA Agency Official.
(d) The FMCSA Agency
Decisionmaker may ask the parties to
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submit additional information. If the
registration holder does not provide the
information requested, the Agency
Decisionmaker may dismiss the petition
for review. The FMCSA Agency
Decisionmaker grants or denies, in
whole or in part, the relief requested
and informs the appellant in writing of
the decision on appeal. The FMCSA
Agency Decisionmaker decision on the
appeal is the final agency action.
(e) The rules for service, filing of
documents, and computation of time in
§§ 386.6, 386.7, and 386.8 of this title
shall apply to this section, except that
electronic service is permitted.
■ 9. In § 107.701, revise paragraph (c) to
read as follows:
§ 107.701
Purpose and scope.
*
*
*
*
*
(c) Registration under subpart F, G, or
J of this part is not subject to the
procedures of this subpart.
■ 10. In part 107, subpart J is added to
read as follows:
Subpart J—Registration of Tank Car
Facilities and Design Certifying
Engineers
§ 107.901 Purpose and Scope.
§ 107.903 Definitions.
§ 107.905 Tank car facility registration.
§ 107.907 Tank car design certifying
engineer registration.
§ 107.909 Period of registration, updates,
and record retention.
§ 107.911 Modification, suspension, or
termination of registration.
§ 107.913 Reconsideration.
§ 107.915 Appeal.
§ 107.901
Purpose and scope.
(a) This subpart establishes a
registration procedure for tank car
facilities and tank car Design Certifying
Engineers.
(b) Persons who apply for registration
in accordance with this subpart must be
familiar with the requirements set forth
in part 179 and part 180, subpart F of
this chapter.
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§ 107.903
Definitions.
The following definitions apply for
the purpose of this subpart:
Associate Administrator for Safety,
FRA means the Federal Railroad
Administration, Associate
Administrator for Safety.
Design Certifying Engineer is defined
in § 171.8 of this chapter.
FRA Administrator means the
Administrator of the Federal Railroad
Administration.
Qualification is defined in § 180.503
of this chapter.
Tank car is defined in § 179.2 of this
chapter.
Tank car facility is defined in § 179.2
of this chapter.
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Tank car tank is defined in § 180.503
of this chapter.
§ 107.905
Tank car facility registration.
(a) No person may engage in the
qualification of a tank car manufactured
and maintained under the terms of a
DOT specification under subchapter C
of this chapter or a special permit issued
under this part unless the person is
registered with the Department in
accordance with the provisions of this
subpart.
(b) A person who performs functions
subject to the provisions of this subpart
may perform only those functions that
have been identified to the Department
in accordance with the procedures of
this subpart.
(c) Persons registering a tank car
facility may submit their registration
statements and all the information
required by this subpart, in English,
electronically at www.phmsa.dot.gov or
in hard copy form to: Associate
Administrator of Hazardous Materials
Safety (Attention: General Approvals
and Permits, PHH–13) Pipeline and
Hazardous Materials Safety
Administration, U.S. Department of
Transportation, East Building, 1200
New Jersey Avenue SE, Washington, DC
20590–0001.
(d) Each person must submit a
separate registration statement and each
tank car facility will be assigned a
unique registration number.
(e) Upon determination that a tank car
facility registration statement contains
all the information required by this
subpart, the Department will send the
registrant a letter or provide electronic
confirmation verifying receipt of the
registration application and assigning a
registration number to that facility.
(f) Each tank car facility registration
statement must contain the following
information:
(1) Name of business;
(2) Street address, mailing address,
telephone number, and email address, if
available, for the facility or place of
business;
(3) A statement indicating whether
the facility uses mobile testing/
inspection equipment to perform
manufacturing, maintenance, or
qualification at a location other than the
address listed in paragraph (f)(2) of this
section;
(4) A statement signed by the
principal, officer, partner, or employee
of the facility responsible for
compliance with the applicable
requirements of this chapter, certifying
knowledge of those requirements and
that each employee who is a hazmat
employee has been trained in
accordance with § 172.704 of this
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chapter and is knowledgeable and
trained in the functions the employee
performs, and that the facility’s quality
assurance program complies with the
requirements of § 179.7 of this chapter.
The following statement may be used:
I certify that this facility operates in
conformance with minimum
requirements set forth in this chapter;
that all persons are knowledgeable and
trained in the functions they perform;
that I am the person responsible for
ensuring compliance with the
applicable requirements of this chapter;
that I maintain all required
documentation to verify compliance;
that I have knowledge of the
requirements applicable to the functions
to be performed; and that this tank car
facility’s quality assurance program is in
compliance with the requirements of 49
CFR 179.7.
(5) A description of the specific
qualification functions to be performed
on tank cars. For example:
(i) External visual inspection;
(ii) Leakproofness testing; or
(iii) Ultrasonic examination.
(6) A description of any other tank
car-related functions performed at the
facility. For example:
(i) Manufacture; or
(ii) Maintenance.
(7) An identification of the types of
DOT specification and special permit
tank cars that the registrant intends to
qualify and manufacture or maintain, if
applicable;
(8) Each tank car facility must submit
an executive summary of the facility’s
current quality assurance program,
sufficient to demonstrate compliance
with the required elements of § 179.7(b)
of this chapter; and
(9) If the registrant is not a resident of
the United States, the name and address
of a permanent resident of the United
States designated in accordance with
§ 105.40 of this subchapter to serve as
agent for service of process.
§ 107.907 Tank car Design Certifying
Engineer registration.
(a) No person may approve the design
of a tank car or service equipment
manufactured in accordance with
subchapter C of this chapter or a special
permit issued under this part unless the
person is registered with the
Department in accordance with the
provisions of this subpart.
(b) A person who performs functions
subject to the provisions of this subpart
may perform only those functions that
have been identified to the Department
in accordance with the procedures of
this subpart.
(c) Persons registering a tank car
Design Certifying Engineer may submit
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their registration statements and all the
information required by this subpart, in
English, electronically at
www.phmsa.dot.gov or in hard copy
form to: Associate Administrator of
Hazardous Materials Safety (Attention:
General Approvals and Permits, PHH–
13), Pipeline and Hazardous Materials
Safety Administration, U.S. Department
of Transportation, East Building, 1200
New Jersey Avenue SE Washington, DC
20590–0001.
(d) Each registration statement must
be in English and contain the following
information:
(1) Name of business;
(2) Street address, mailing address,
telephone number, and email address, if
available, for each person or place of
business;
(3) A statement signed by the person
responsible for compliance with the
applicable requirements of this chapter,
certifying knowledge of those
requirements and that each employee
who is a hazmat employee, including a
Design Certifying Engineer, meets the
minimum qualification requirements set
forth in § 171.8 of this chapter; has been
trained in accordance with § 172.704 of
this chapter; and is knowledgeable and
trained in the functions the employee
performs. The following statement may
be used:
I certify that all hazmat employees
performing any hazardous materials
transportation function have met the
training requirements of 49 CFR
172.704; that any Design Certifying
Engineer hazmat employees have met
the minimum qualification
requirements set forth in 49 CFR 171.8
for Design Certifying Engineers; that all
persons are knowledgeable and trained
in the hazardous materials
transportation functions they perform;
that I am the person responsible for
ensuring compliance with the
applicable requirements of this chapter;
that I maintain all required
documentation to verify compliance;
and that I have knowledge of the
requirements applicable to the
hazardous materials transportation
functions to be performed.
(4) A description of the specific
functions to be performed, e.g.:
(i) New tank car design;
(ii) Tank car modification;
(iii) New service equipment design;
and
(iv) Service equipment modification.
(5) An identification of the types of
DOT specification and special permit
tank cars and service equipment whose
designs the registrant intends to review;
(6) The names and a description of the
experience meeting the definition in
§ 171.8 of this chapter for each
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individual engineer employed as a
Design Certifying Engineer; and
(7) If the registrant is not a resident of
the United States, the name and address
of a permanent resident of the United
States designated in accordance with
§ 105.40 of this subchapter to serve as
an agent for service of process.
(e) Upon determination that a
registration statement contains all of the
information required by this subpart,
the Department will send the registrant
a letter or provide electronic
confirmation verifying receipt of the
registration application and assigning a
registration number to that person. A
separate registration number will be
assigned to each individual employed as
a Design Certifying Engineer and
identified in the registration statement
by the registrant.
§ 107.909 Period of registration, updates,
and record retention.
(a) The period of registration for both
tank car facilities and tank car Design
Certifying Engineers will be for a
maximum of six years from the date of
the original registration and for six-year
renewal periods thereafter.
(b) Any correspondence with the
Department must contain the
registrant’s name and registration
number.
(c) A registration must be renewed
prior to expiration of the period of
registration to ensure continued
authorization to perform authorized
duties by submitting an up-to-date
registration statement containing the
information prescribed by §§ 107.905 or
107.907 of this subpart. Any person
initially registered under the provisions
of §§ 107.905 or 107.907 of this subpart
and who is in good standing is eligible
for renewal.
(d) A registrant shall provide
notification to PHMSA within 30 days
of any of the following occurrences:
(1) Any change in the registration
information submitted under §§ 107.905
or 107.907 of this subpart, (e.g., change
of company name, address, ownership,
or names and description of the
experience meeting the definition in
§ 171.8 of this chapter for each
individual engineer employed as a
Design Certifying Engineer);
(2) Replacement of the person
responsible for compliance with the
requirements in §§ 107.905(f)(4) or
107.907(d)(3) of this subpart. If this
occurs, the registrant shall resubmit the
required certification;
(3) A change in function, such as from
maintenance to manufacture, an
addition of a function, or a change to the
types of qualifications or certifications
of tank cars conducted by the facility; or
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(4) The facility or Design Certifying
Engineer no longer performs any
functions requiring a registration under
this subpart.
(e) Each registrant shall maintain a
current copy of the registration
information submitted to the
Department and a current copy of the
registration number received from the
Department at the location identified in
§§ 107.905(f)(2) or 107.907(d)(2) of this
subpart during such time the person is
registered with the Department and for
two (2) years thereafter.
§ 107.911 Modification, Suspension, or
Termination of Registration.
(a) The Associate Administrator for
Safety, FRA may modify, suspend, or
terminate a tank car facility or tank car
Design Certifying Engineer registration,
as appropriate, on finding that:
(1) Because of a change in
circumstances, the registration is no
longer needed or would no longer be
granted if applied for;
(2) The application contained
inaccurate or incomplete information,
and the registration would not have
been granted had the application been
accurate and complete;
(3) The application contained
deliberately inaccurate or incomplete
information; or
(4) The holder knowingly has violated
the terms of the registration or an
applicable requirement of this chapter
in a manner demonstrating lack of
fitness to conduct the activity for which
registration is required.
(b) Except as provided in paragraph
(c) of this section, before a registration
is modified, suspended, or terminated,
the Associate Administrator for Safety,
FRA notifies the holder of the proposed
action and the reasons for it, and
provides an opportunity to show cause
why the proposed action should not be
taken.
(1) The holder may file a response
with the Associate Administrator for
Safety, FRA within 30 days of receipt of
notice of the proposed action in
accordance with the procedures of 49
CFR 209.9 via [email protected].
(2) After considering the holder’s
response, or after 30 days have passed
without response since receipt of the
notice, the Associate Administrator for
Safety, FRA notifies the holder of the
final decision with a brief statement of
reasons.
(c) The Associate Administrator for
Safety, FRA, if necessary to avoid a risk
of significant harm to persons or
property, may, in the notification,
declare the proposed action
immediately effective.
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Reconsideration.
(a) A registration holder may request
that the Associate Administrator for
Safety, FRA reconsider a decision under
§ 107.911 of this subpart. The request
must:
(1) Be filed in accordance with the
procedures of 49 CFR 209.9 with
[email protected] within twenty days
of receipt of the decision;
(2) State in detail any alleged errors of
fact and law;
(3) Enclose any additional
information needed to support the
request to reconsider; and
(4) State in detail the modification of
the final decision sought.
(b) The Associate Administrator for
Safety, FRA considers newly submitted
information on a showing that the
information could not reasonably have
been submitted during application
processing.
(c) The Associate Administrator for
Safety, FRA grants or denies, in whole
or in part, the relief requested and
§ 107.915
Appeal.
(a) A person who requested
reconsideration under § 107.913 of this
subpart and is denied the relief
requested may appeal to the FRA
Administrator. The appeal must:
(1) Be filed in accordance with the
procedures of 49 CFR 209.9 with
[email protected] within 30 days of
receipt of the Associate Administrator
for Safety, FRA’s decision on
reconsideration;
(2) State in detail any alleged errors of
fact and law;
(3) Enclose any additional
information needed to support the
appeal; and
(4) State in detail the modification of
the final decision sought.
(b) The FRA Administrator, if
necessary to avoid a risk of significant
harm to persons or property, may
declare that the Associate Administrator
for Safety, FRA’s action remain effective
pending a decision on appeal.
(c) The FRA Administrator grants or
denies, in whole or in part, the relief
requested and informs the appellant of
the decision on appeal. The FRA
Administrator’s decision on the appeal
is the final administrative action.
PART 171—GENERAL INFORMATION,
REGULATIONS, AND DEFINITIONS
11. The authority citation for part 171
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128, 44701;
Pub. L. 101–410 section 4; Pub. L. 104–134,
section 31001; Pub. L. 114–74 section 701 (28
U.S.C. 2461 note); 49 CFR 1.81 and 1.97.
12. In § 171.6, revise the table in
paragraph (b)(2) to read as follows:
■
§ 171.6 Control numbers under the
Paperwork Reduction Act.
*
*
*
(b) * * *
(2) * * *
*
*
Current OMB
control number
Title
Title 49 CFR part or section where identified and described
2137–0014 ..............
Cargo Tank Specification Requirements
2137–0018 ..............
Inspection and Testing of Portable
Tanks and Intermediate Bulk Containers.
Testing, Inspection, and Marking Requirements for Cylinders.
§§ 107.503, 107.504, 107.505, 107.506, 107.507, 178.320, 178.337, 178.338,
178.345, 180.405, 180.407, 180.409, 180.413, 180.415, 180.417.
§§ 173.24, 173.32, 178.3, 178.255, 178.273, 178.274, 178.703, 178.801,
180.352, 180.605.
2137–0022 ..............
2137–0034 ..............
2137–0039 ..............
2137–0051 ..............
lotter on DSK11XQN23PROD with PROPOSALS2
informs the requesting person of the
decision.
Hazardous Materials Shipping Papers
and Emergency Response Information.
Hazardous Materials Incidents Reports
Rulemaking and Special Permit Petitions.
2137–0510 ..............
RAM Transportation Requirements .......
2137–0542 ..............
2137–0557 ..............
Flammable Cryogenic Liquids ...............
Approvals for Hazardous Materials .......
2137–0559 ..............
Rail Carrier and Tank Car Tanks Requirements, Rail Tank Car Tanks—
Transportation of Hazardous Materials by Rail.
2137–0572 ..............
Testing Requirements
Packages.
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§§ 173.5b, 173.302a, 173.303, 173.304, 173.309, 178.2, 178.3, 178.35, 178.44,
178.45, 178.46, 178.57, 178.59, 178.60, 178.61, 178.68, 180.205, 180.207,
180.209, 180.211, 180.213, 180.215, 180.217, Appendix C to part 180.
§§ 172.200, 172.201, 172.202, 172.203, 172.204, 172.505, 172.600, 172.602,
172.604, 172.606, 173.6, 173.7, 173.22, 173.56, 174.24, 174.26, 174.114,
175.30, 175.31, 175.33, 176.24, 176.27, 176.30, 176.36, 176.89, 177.817.
§§ 171.15, 171.16, 171.21.
§§ 105.30, 105.40, 106.95, 106.110, 107.105, 107.107, 107.109, 107.113,
107.117, 107.121, 107.123, 107.125, 107.205, 107.211, 107.215, 107.217,
107.219, 107.221, 107.223.
Part 173, subpart I, §§ 173.22, 173.411, 173.415, 173.416, 173.417, 173.457,
173.471, 173.472, 173.473, 173.476.
§§ 173.318, 177.816, 177.840, 180.405.
§§ 107.402, 107.403, 107.405, 107.705, 107.713, 107.715, 107.717, 107.803,
107.805, 107.807, 110.30, 172.101, 172.102, Special Provisions 19, 26, 53,
55, 60, 105, 118, 121, 125, 129, 131, 133, 136, B45, B55, B61, B69, B77,
B81, N10, N72, 173.2a, 173.4, 173.7, 173.21, 173.22, 173.24, 173.31,
173.38, 173.51, 173.56, 173.58, 173.59, 173.124, 173.128, 173.159,
173.166, 173.171, 173.214, 173.222, 173.224, 173.225, 173.245, 173.301,
173.305, 173.306, 173.314, 173.315, 173.316, 173.318, 173.334, 173.340,
173.411, 173.433, 173.457, 173.471, 173.472, 173.476, 174.50, 174.63,
175.8, 175.85, 175.701, 175.703, 176.168, 176.340, 176.704, 178.3, 178.35,
178.47, 178.53, 178.273, 178.274, 178.503, 178.509, 178.605, 178.606,
178.608, 178.801, 178.813, 180.213.
§§ 107.905, 107.907, 107.909, 107.911, 107.913, 107.915, 172.102, Special
provisions: B45, B46, B55, B61, B69, B77, B78, B81; 173.10, 173.31,
174.14, 174.50, 174.63, 174.104, 174.114, 174.204, 179.3, 179.4, 179.5,
179.6, 179.7, 179.11, 179.18, 179.22, 179.100–9, 179.100–12, 179.100–13,
179.100–16, 179.100–17, 179.102–4, 179.102–17, 179.103–1, 179.103–2,
179.103–3, 179.103–5, 179.200–10, 179.200–14, 179.200–15, 179.200–16,
179.200–17, 179.200–19, 179.201–3, 179.201–8, 179.201–9, 179.220–4,
179.220–7, 179.220–8, 179.220–13, 179.220–15, 179.220–17, 179.220–18,
179.220–20, 179.220–22, 179.300–3, 179.300–7, 179.300–9, 179.300–12,
179.300–13, 179.300–15, 179.300–20, 179.400–3, 179.400–4, 179.400–11,
179.400–13, 179.400–16, 179.400–17, 179.400–19, 179.400–20, 179.500–5,
179.500–8, 179.500–12, 179.500–18, 180.505, 180.509, 180.515, 180.517.
§§ 173.168, 178.2, 178.601, Appendix C to part 178, Appendix D to part 178.
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Current OMB
control number
Title
2137–0582 ..............
2137–0586 ..............
Container Certification Statement .........
Hazardous Materials Public Sector
Training and Planning Grants.
Response Plans for Shipments of Oil ...
Cargo Tank Motor Vehicles in Liquefied
Compressed Gas Service.
Hazardous Materials Security Plans .....
Subsidiary Hazard Class and Number/
Type of Packagings.
Inspection and Testing of Meter Provers.
Requirements for United Nations (UN)
Cylinders.
Flammable Hazardous Materials by
Rail Transportation.
2137–0591 ..............
2137–0595 ..............
2137–0612 ..............
2137–0613 ..............
2137–0620 ..............
2137–0621 ..............
2137–0628 ..............
13. In § 171.7:
a. Revise paragraphs (h)(39), (k), and
(l)(3);
■ b. Remove and reserve paragraph
(l)(4); and
■ c. Revise paragraph (n)(21).
The revisions read as follows:
■
■
§ 171.7
Reference material.
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*
*
*
*
*
(h) * * *
(39) ASTM D 1838–64 Copper Strip
Corrosion by Liquefied Petroleum (LP)
Gases, 1964 (Reapproved 1968), into
§ 173.315.
*
*
*
*
*
(k) Association of American
Railroads, American Railroads Building,
Suite 1000, 425 Third Street SW,
Washington, DC 20024; telephone 877–
999–8824, http://www.aarpublications.
com/
(1) AAR Manual of Standards and
Recommended Practices, Section C—II
Specifications for Design, Fabrication,
and Construction of Freight Cars,
Chapter 5, Paragraph 5.1, Workmanship,
April 2011, into § 179.16.
(2) AAR Manual of Standards and
Recommended Practices, Section C—II
Specifications for Design, Fabrication,
and Construction of Freight Cars,
Chapter 6, June 2015, into § 179.400–6.
(3) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars), Chapter 1,
November 2014, into § 180.517.
(4) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars), Chapter 2,
November 2014, into § 179.102–3.
(5) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars), Chapter 3,
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Title 49 CFR part or section where identified and described
§§ 176.27, 176.172.
Part 110.
Part 130.
§§ 173.315, 178.337–8, 178.337–9, 180.405, 180.416.
Part 172, subpart I, §§ 172.800, 172.802, 172.804.
§§ 172.202, 172.203.
Part 173, subpart A, § 173.5a.
§§ 173.301, 173.304, 173.304b, 178.69, 178.70, 178.74, 178.75, 180.207,
180.209, 180.212, 180.215, 180.217.
§§ 130.120, 171.16, 173.41, 173.145, 173.150, 174.310, 174.312.
November 2014, into §§ 173.241,
173.242, 173.247.
(6) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars), Chapter 5,
November 2014, into § 179.16.
(7) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars), Chapter 6,
November 2014, into § 179.10.
(8) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars), Appendix
A, November 2014, into §§ 173.314;
179.15; 179.300–15; 179.300–17;
179.400–20.
(9) [Reserved]
(10) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars), Appendix
C, November 2014, into §§ 179.22;
179.220–26; 179.400–25.
(11) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars), Appendix
D, November 2014, into § 180.509.
(12) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars), Appendix
E, November 2014, into §§ 173.31;
179.20; 179.100–12; 179.100–14;
179.101–1; 179.103–5; 179.200–9;
179.200–13; 179.200–17; 179.220–14;
179.220–18.
(13) [Reserved]
(14) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
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Specification M–1002 (AAR
Specifications for Tank Cars), Appendix
M, November 2014, into §§ 179.200–7;
179.201–6; 179.220–6; 179.220–7;
179.400–5; 179.400–8.
(15) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars), Appendix
R, November 2014, except paragraphs
1.1, 1.2, 3.2, 3.3, 3.4, 5.5 into § 179.6.
(16) [Reserved]
(17) [Reserved]
(18) AAR Manual of Standards and
Recommended Practices, Section C—III,
Specifications for Tank Cars,
Specification M–1002 (AAR
Specifications for Tank Cars), Appendix
W, November 2014, except paragraph
1.2 into §§ 179.11; 179.100–9; 179.100–
10; 179.100–13; 179.100–18; 179.102–1;
179.102–4; 179.102–17; 179.200–10;
179.200–11; 179.200–22; 179.220–10;
179.220–11; 179.300–9; 179.300–10;
179.400–5; 179.400–11; 179.400–12;
179.400–15; 179.400–18.
(19) AAR Manual of Standards and
Recommended Practices, Section I,
Specially Equipped Freight Car and
Intermodal Equipment, 1988, into
§§ 174.55; 174.63.
(20) AAR Standard 286; AAR Manual
of Standards and Recommended
Practices, Section C, Car Construction
Fundamentals and Details, Standard S–
286, Free/Unrestricted Interchange for
286,000 lb. Gross Rail Load Cars
(Adopted 2002; Revised: 2003, 2005,
2006, 2016), into § 179.13.
*
*
*
*
*
(l) * * *
(3) Pamphlet 49, Recommended
Practices for Handling Chlorine Bulk
Highway Transports, Edition 10,
December 2016, into § 173.315.
(4) [Reserved]
*
*
*
*
*
(n) * * *
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(21) CGA Technical Bulletin P–26,
Guidelines for Inspection and Repair of
MC–330 and MC–331 Anhydrous
Ammonia Cargo Tanks (formerly TB–2),
1997, into §§ 180.407; 180.413.
*
*
*
*
*
■ 14. In § 171.8, revise the definitions of
‘‘cargo tank’’ and ‘‘design certifying
engineer’’ to read as follows:
§ 171.8
Definitions and abbreviations.
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Cargo tank means a bulk packaging
that:
(1) Is a tank intended primarily for the
carriage of liquids, gases, solids, or
semi-solids and includes
appurtenances, closures, components,
and reinforcements (for cargo tank
specifications, see 49 CFR 178.320,
178.337–1, or 178.338–1, 178.345–1, as
applicable);
(2) Is permanently attached to or
forms a part of a motor vehicle, or is not
permanently attached to a motor vehicle
but which, by reason of its size,
construction or attachment to a motor
vehicle is loaded or unloaded without
being removed from the motor vehicle;
and
(3) Is not fabricated under a
specification for cylinders, intermediate
bulk containers, multi-unit tank car
tanks, portable tanks, or tank cars.
*
*
*
*
*
Design Certifying Engineer means a
person registered with the Department,
in accordance with subparts F or J of
part 107 of this chapter, who has the
knowledge and ability to perform stress
analysis of pressure vessels and
otherwise determine whether a cargo
tank or tank car design and construction
meets the applicable DOT specification.
A Design Certifying Engineer meets the
knowledge and ability requirements by
meeting any one of the following
requirements:
(1) For cargo tanks:
(i) Has an engineering degree and at
least one year of work experience in
cargo tank structural or mechanical
design;
(ii) Is currently registered as a
professional engineer by appropriate
authority of a state of the United States
or a province of Canada; or
(iii) Has at least three years’
experience in performing the duties of
a Design Certifying Engineer prior to
September 1, 1991.
(2) For tank cars:
(i) Has an engineering degree and at
least one year of work experience in
tank car structural or mechanical
design; or
(ii) Is currently registered as a
professional engineer by an appropriate
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authority of a state of the United States
or a province of Canada.
*
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*
*
■ 15. In § 171.22, revise paragraph (f)(4)
to read as follows:
§ 171.22 Authorization and conditions for
the use of international standards and
regulations.
*
*
*
*
*
(f) * * *
(4) Each person who provides for
transportation or receives for
transportation (see §§ 174.24, 175.30,
176.24, and 177.817 of this subchapter)
a shipping paper must retain a copy of
the shipping paper or an electronic
image thereof that is accessible at or
through its principal place of business
in accordance with § 172.201(e) of this
subchapter. The shipping paper shall be
made readily accessible for inspection
to an authorized official of a federal,
state, or local government agency.
*
*
*
*
*
■ 16. In § 171.23, revise paragraphs
(b)(5) introductory text and (b)(5)(iii) to
read as follows:
§ 171.23 Requirements for specific
materials and packagings transported
under the ICAO Technical Instructions,
IMDG Code, Transport Canada TDG
Regulations, or the IAEA Regulations.
*
*
*
*
*
(b) * * *
(5) Hazardous substances. A material
meeting the definition of a hazardous
substance, as defined in § 171.8, must
conform to the shipping paper
requirements in § 172.203(c) of this
subchapter. Non-bulk packages must be
marked in accordance with the
requirements in § 172.324 of this
subchapter:
*
*
*
*
*
(iii) The letters ‘‘RQ’’ must be entered
on the shipping paper either before or
after the basic description and marked
on a non-bulk package in association
with the proper shipping name for each
hazardous substance listed.
*
*
*
*
*
PART 172—HAZARDOUS MATERIALS
TABLE, SPECIAL PROVISIONS,
HAZARDOUS MATERIALS
COMMUNICATIONS, EMERGENCY
RESPONSE INFORMATION, TRAINING
REQUIREMENTS, AND SECURITY
PLANS
17. The authority citation for part 172
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128, 44701; 49
CFR 1.81, 1.96 and 1.97.
18. In § 172.101, revise paragraph (j)
introductory text to read as follows:
■
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§ 172.101 Purpose and use of the
hazardous materials table.
*
*
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*
(j) Column 9: Quantity limitations.
Columns 9A and 9B specify the
maximum quantities that may be offered
for transportation in one package by
passenger-carrying aircraft or passengercarrying rail (Column 9A) or by cargo
aircraft only (Column 9B), subject to the
following:
*
*
*
*
*
■ 19. In § 172.102, revise paragraph
(c)(1), special provision 13 and
paragraph (c)(3), special provision B45
to read as follows:
§ 172.102
Special provisions.
*
*
*
*
*
(c) * * *
(1) * * *
13 The words ‘‘Inhalation Hazard’’
shall be entered on each shipping paper
in association with the shipping
description, shall be marked on each
non-bulk package in association with
the proper shipping name and
identification number, and shall be
marked on two opposing sides of each
bulk package. The size of a marking on
a bulk package must conform to
§ 172.302(b) of this subchapter. In
addition, security plan requirements in
part 172, subpart I, apply. The
requirements of §§ 172.203(m) and
172.505 of this subchapter do not apply.
*
*
*
*
*
(3) * * *
B45 Each tank must have a reclosing
combination pressure relief device,
equipped with stainless steel or
platinum rupture discs, approved by a
tank car Design Certifying Engineer.
*
*
*
*
*
■ 20. In § 172.303, add paragraph (b)(4)
to read as follows:
§ 172.303
Prohibited marking.
*
*
*
*
*
(b) * * *
(4) The display of a BIOHAZARD
marking, a ‘‘HOT’’ marking, or a sour
crude oil hazard marking in accordance
with §§ 172.323(c), 172.325(c), or
172.327(a), of this part, respectively.
■ 21. In § 172.328, revise paragraph (d)
to read as follows:
§ 172.328
Cargo tanks.
*
*
*
*
*
(d) Emergency shutoff marking. For
all cargo tank motor vehicles subject to
emergency remote shutoff device
requirements in accordance with this
subchapter, each on-vehicle manuallyactivated remote shutoff device for
closure of the internal or external selfclosing stop valve must be identified by
marking ‘‘Emergency Shutoff’’ in letters
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at least 0.75 inches in height, in a color
that contrasts with its background, and
located in an area immediately adjacent
to the means of closure.
*
*
*
*
*
■ 22. In § 172.336, revise the table in
paragraph (c) to read as follows:
§ 172.336 Identification numbers; special
provisions.
*
*
*
(c) * * *
*
*
Packaging:
When:
Then the alternative marking requirement is:
On the ends of portable tanks, cargo
tanks, or tank cars.
The identification numbers on the sides of the tank are
displayed in the same sequence as the compartments containing the materials they identify.
On cargo tanks ...........................................
They have more than one compartment
and hazardous materials with different
identification numbers are being transported therein.
They contain only gasoline .......................
On cargo tanks ...........................................
They contain only fuel oil ..........................
On one end of nurse tanks if that end con- They meet the provisions of § 173.315(m)
tains valves, fittings, regulators or
of this subchapter.
gauges when those appurtenances prevent the markings and placard from
being properly placed and visible.
On each compartment of compartmented
The cargo tank or tank car contains more
cargo tanks or compartmented tank cars.
than one petroleum distillate fuel.
On cargo tanks (including compartmented
cargo tanks).
They transport more than one petroleum
distillate fuel in different trips on the
previous or current business day.
*
*
*
*
*
23. In § 172.504, revise paragraph (b)
to read as follows:
■
§ 172.504 General placarding
requirements.
*
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(b) DANGEROUS placard. A freight
container, unit load device, transport
vehicle, or rail car that contains nonbulk packages with two or more
categories of hazardous materials that
require different placards specified in
table 2 of paragraph (e) of this section
may be placarded with a DANGEROUS
placard instead of the separate
placarding specified for each of the
materials in table 2 of paragraph (e) of
this section. However, the DANGEROUS
placard may not be used under the
following conditions:
(1) When 1,000 kg (2,205 pounds)
aggregate gross weight or more of one
category of material is loaded therein at
one loading facility on a freight
container, unit load device, transport
vehicle, or rail car, the placard specified
in table 2 of paragraph (e) of this section
for that category must be applied; or
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The tank is marked ‘‘Gasoline’’ on each side and rear
in letters no less than 50 mm (2 inches) high or is
placarded in accordance with § 172.542(c).
The cargo tank is marked ‘‘Fuel Oil’’ on each side and
rear in letters no less than 50 mm (2 inches) high, or
is placarded in accordance with § 172.544(c).
N/A.
The identification number for the liquid petroleum distillate fuel having the lowest flash point in any one
compartment is displayed. However, if a cargo tank
or tank car compartment contains gasoline and alcohol fuel blends consisting of more than 10% ethanol
the identification number ‘‘3475’’ or ‘‘1987,’’ as appropriate, must also be displayed for that compartment.
The identification number for the liquid petroleum distillate fuel having the lowest flash point transported in
that previous or current business day is displayed. If
the cargo tank contains gasoline and alcohol fuel
blends consisting of more than 10% ethanol, the
identification number ‘‘3475’’ or ‘‘1987,’’ as appropriate, must also be displayed, and the identification
numbers ‘‘3475’’ or ‘‘1987,’’ may only be displayed if
the material is present in the cargo tank during transportation.
(2) When a hazardous material is
transported by vessel.
*
*
*
*
*
■ 24. In § 172.516, revise paragraph (d)
to read as follows:
§ 172.516 Visibility and display of
placards.
*
*
*
*
*
(d) Recommended specifications for a
placard holder are set forth in Appendix
C of this part. Except for a placard
holder similar to that contained in
Appendix C to this part or contained in
Appendix C to this part prior to
[EFFECTIVE DATE OF THE FINAL
RULE], the means used to attach a
placard may not obscure any part of its
surface other than the borders.
*
*
*
*
*
■ 25. In § 172.704:
■ a. Add paragraph (a)(2)(iii); and
■ b. Revise paragraph (e)(1). The
revision and addition read as follows:
§ 172.704
Training requirements.
(a) * * *
(2) * * *
(iii) For hazardous materials
employees transporting hazardous
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materials by highway, function specific
training must include the training
requirements of § 177.816, as applicable.
*
*
*
*
*
(e) * * *
(1) A hazmat employee who
manufactures, repairs, modifies,
reconditions, or tests packagings, as
qualified for use in the transportation of
hazardous materials, and who does not
perform any other function subject to
the requirements of this subchapter, is
not subject to the training requirements
of paragraphs (a)(3) and (a)(4) of this
section.
*
*
*
*
*
■ 26. In § 172.820, add paragraph (d)(3)
to read as follows:
§ 172.820 Additional planning
requirements for transportation by rail.
*
*
*
*
*
(d) * * *
(3) If the rail carrier determines that
no practicable alternative route exists,
including consideration of interchange
agreements, the requirements of
paragraphs (d)(1) and (d)(2) do not
apply. The rail carrier must describe, in
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writing, the remediation or mitigation
measures to be implemented, if any, on
the primary route in conformance with
§ 172.820(d)(1)(iii) and certify that an
alternative route does not exist for a
given primary route.
*
*
*
*
*
■ 27. Revise appendix C to part 172 to
read as follows:
Appendix C to Part 172—Dimensional
Specifications for Recommended
Placard Holder
Legend
in.
--
4.8
114
6.3
318
9.5
112
12.7
3.14
19
1112
38
1518
41
1718
48
2118
54
2318
60
4
102
9718
250
11518
295
Nate: Round to
3'16
114'" on all
nearest mm.
PART 173—SHIPPERS—GENERAL
REQUIREMENTS FOR SHIPMENTS
AND PACKAGINGS
28. The authority citation for part 173
continues to read as follows:
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■
Authority: 49 U.S.C. 5101–5128, 44701; 49
CFR 1.81, 1.96 and 1.97.
29. In § 173.31, revise paragraphs
(a)(2), (d) and (g)(1) to read as follows:
■
§ 173.31
Use of tank cars.
(a) * * *
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(2) Tank cars and appurtenances may
be used for the transportation of any
commodity for which they are
authorized in this part and specified on
the Design Approval Certificate or for
tank cars constructed prior to [DATE
ONE YEAR FROM EFFECTIVE DATE],
the certificate of construction (AAR
Form 4–2 or by addendum on Form R–
1). See § 179.5 of this subchapter.
Transfer of a tank car from one specified
service on its certificate of construction
or Design Approval Certificate to
another may be made only by the owner
PO 00000
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or with the owner’s authorization. A
tank car proposed for a commodity
service other than specified on its
certificate of construction or Design
Approval Certificate must be approved
for such service by a Design Certifying
Engineer.
*
*
*
*
*
(d) Pre-transportation closure,
securement, and examination of tank
cars. Prior to transportation, each
person who offers a tank car carrying
hazardous material must ensure the tank
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car is closed, secured, and inspected in
accordance with this section.
(1) Securement of closures on tank
cars. The offeror must have and follow
a written procedure for closing and
securing all openings on a tank car prior
to shipment. The person responsible for
developing or updating the procedure
must consider available best practices
and guidance from each packaging and
component supplier, such as service
equipment manufacturer, gasket
manufacturer, tank car owner, or other
product-specific closure manufacturer.
The procedure must be periodically
reviewed and updated to reflect changes
or modifications that impact the
securement of closures, but not later
than every two years.
(2) Pre-trip Inspection. No person may
offer for transportation a tank car
containing a hazardous material or a
residue of a hazardous material unless
that person determines that the tank car
is in proper condition and safe for
transportation. As a minimum, each
person offering a tank car for
transportation must perform an external
visual inspection that includes:
(i) Except where insulation or a
thermal protection system precludes an
inspection, the tank shell and heads for
abrasion, corrosion, cracks, dents,
distortions, defects in welds, or any
other condition that makes the tank car
unsafe for transportation;
(ii) The piping, valves, fittings, and
gaskets for corrosion, damage, or any
other condition that makes the tank car
unsafe for transportation;
(iii) For missing or loose bolts, nuts,
or elements that make the tank car
unsafe for transportation;
(iv) All closures on tank cars and
determine that the closures and all
fastenings securing them are properly
tightened in place by the use of a bar,
wrench, or other suitable tool;
(v) Protective housings for proper
securement;
(vi) The pressure relief device,
including a careful inspection of the
rupture disc in non-reclosing pressure
relief devices, for corrosion or damage
that may alter the intended operation of
the device. The rupture disc is not
required to be removed prior to visual
inspection if the tank car contains the
residue, as defined in § 171.8 of this
subchapter, of a Class 8, PG II or PG III
material with no subsidiary hazard or
the residue of a Class 9 elevated
temperature material;
(vii) Each tell-tale indicator after
filling and prior to transportation to
ensure the integrity of the rupture disc;
(viii) The external thermal protection
system, tank-head puncture resistance
system, coupler vertical restraint
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system, and bottom discontinuity
protection for conditions that make the
tank car unsafe for transportation;
(ix) The required markings on the
tank car for legibility; and
(x) The periodic inspection date
markings to ensure that the inspection
and test intervals are within the
prescribed intervals.
(3) Design of Closures. Closures on
tank cars are required, in accordance
with this subchapter, to be designed and
closed so that under conditions
normally incident to transportation,
including the effects of temperature and
vibration, there will be no identifiable
release of a hazardous material to the
environment. In any action brought to
enforce this section, the lack of
securement of any closure to a tool-tight
condition, detected at any point, will
establish a rebuttable presumption that
a proper inspection was not performed
by the offeror of the car. That
presumption may be rebutted by any
evidence indicating that the lack of
securement resulted from a specific
cause not within the control of the
offeror.
*
*
*
*
*
(g) * * *
(1) Except as provided in (g)(1)(i),
each hazmat employee who is
responsible for loading or unloading a
tank car must ensure the track is secure
to prevent access by other rail
equipment, including motorized service
vehicles. The mechanism used to satisfy
this requirement must be under direct
control of the hazmat employee
responsible for the loading or unloading
operation and must be locked so that
only the employee responsible for the
product transfer operation may remove
it. The means of protection under this
section must be capable of stopping or
diverting rail equipment to prevent
contact with the tank car or equipment
that is part of the transfer operation.
This requirement must be satisfied by
lining each switch providing access to
the loading/unloading area away from
the unloading operation and securing
each switch with an effective locking
device; using a derail when locked in a
derailing position with an effective
locking device on the track providing
direct access to the tank car that is being
loaded or unloaded; by using other
means that provide an equivalent level
of security; or, a combination of the
above.
(i) Equipment may be used to
reposition rolling equipment on this
track after the protection has been
removed under the following
conditions:
(A) The equipment is operated by an
authorized employee under the
PO 00000
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85661
direction of the hazmat employee who
is responsible for loading or unloading
the tank car;
(B) The hazmat employee who is
responsible for loading or unloading the
tank car on the affected track has been
notified;
(C) The rolling equipment must not
couple into the tank car being loaded/
unloaded; and
(D) The protection must be restored
immediately after the repositioning has
been completed.
(ii) [Reserved]
*
*
*
*
*
■ 30. In § 173.150, revise paragraph
(f)(3)(viii) to read as follows:
§ 173.150 Exceptions for Class 3
(flammable and combustible liquids).
*
*
*
*
*
(f) * * *
(3) * * *
(viii) The requirements of §§ 173.1,
173.21, 173.24, 173.24a, 173.24b, 174.1,
177.804, 177.817, 177.834(j), 177.837(c)
and 177.837(d) of this subchapter;
*
*
*
*
*
■ 31. In § 173.159, revise paragraphs
(e)(2), (e)(4), and (e)(5), and add
paragraph (e)(6) to read as follows:
§ 173.159
Batteries, wet.
*
*
*
*
*
(e) * * *
(2) The batteries must be loaded or
braced so as to prevent damage and
short circuits while in transit, in a
manner that secures the batteries against
shifting, including relative motion
between packages, under conditions
normally incident to transportation;
*
*
*
*
*
(4) Except for the purpose of
consolidating shipments of batteries for
recycling, the transport vehicle may not
carry material shipped by any person
other than the shipper of the batteries;
(5) The offeror must inform persons
loading the batteries and the operator of
the vehicle transporting batteries of the
requirements of this paragraph; and
(6) Shipments made under this
paragraph are subject to the incident
reporting requirements in § 171.15.
*
*
*
*
*
■ 32. In § 173.241, revise paragraph (a)
introductory text to read as follows:
§ 173.241 Bulk packagings for certain low
hazard liquid and solid materials.
*
*
*
*
*
(a) Rail cars: Class DOT 103, 104, 105,
109, 111, 112, 114, 115, 117, or 120 tank
car tanks; and Class 106 or 110 multiunit tank car tanks. AAR Class 203W,
206W, and 211W tank car tanks are also
authorized. AAR Class 203W, 206W,
and 211W tank car tanks built after
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
[DATE ONE YEAR FROM EFFECTIVE
DATE] must be as prescribed in AAR
Specifications for Tank Cars Chapter 3
(IBR, see § 171.7 of this subchapter).
Additional operational requirements
apply to high-hazard flammable trains
(see § 171.8 of this subchapter) as
prescribed in § 174.310 of this
subchapter. Except as otherwise
provided in this section, DOT
Specification 111 tank cars and DOT
Specification 111 tank cars built to the
CPC–1232 industry standard are no
longer authorized to transport Class 3
(flammable) liquids in Packing Group
III, unless retrofitted to the DOT
Specification 117R retrofit standards or
the DOT Specification 117P
performance standards provided in part
179, subpart D of this subchapter.
*
*
*
*
*
■ 33. In § 173.242, revise paragraph (a)
introductory text to read as follows:
§ 173.242 Bulk packagings for certain
medium hazard liquids and solids,
including solids with dual hazards.
*
*
*
*
*
(a) Rail cars: Class DOT 103, 104, 105,
109, 111, 112, 114, 115, 117, or 120 tank
car tanks and Class 106 or 110 multiunit tank car tanks. AAR Class 206W
tank car tanks are also authorized. AAR
Class 206W tank car tanks built after
[DATE ONE YEAR FROM EFFECTIVE
DATE] must be as prescribed in AAR
Specifications for Tank Cars Chapter 3
(IBR, see § 171.7 of this subchapter).
Additional operational requirements
apply to high-hazard flammable trains
(see § 171.8 of this subchapter) as
prescribed in § 174.310 of this
subchapter. Except as otherwise
provided in this section, DOT
Specification 111 tank cars and DOT
Specification 111 tank cars built to the
CPC–1232 industry standard are no
longer authorized to transport unrefined
petroleum products, ethanol, and other
§ 173.315(n)(1)(*)
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*
(iii) ........................
Class 3 (flammable) liquids in Packing
Group II or III, unless retrofitted to the
DOT Specification 117R retrofit
standards, or the DOT Specification
117P performance standards provided
in part 179, subpart D of this
subchapter.
*
*
*
*
*
■ 34. In § 173.247, revise paragraph (a)
introductory text to read as follows:
§ 173.247 Bulk packaging for certain
elevated temperature materials.
*
*
*
*
*
(a) Rail cars: Class DOT 103, 104, 105,
109, 111, 112, 114, 115, or 120 tank car
tanks; Class DOT 106, 110 multi-unit
tank car tanks; AAR Class 203W, 206W,
211W tank car tanks; and non-DOT
specification tank car tanks equivalent
in structural design and accident
damage resistance to specification
packagings. AAR Class 203W, 206W,
and 211W tank car tanks constructed
after [DATE ONE YEAR FROM
EFFECTIVE DATE] must be as
prescribed in AAR Specifications for
Tank Cars Chapter 3 (IBR, see § 171.7 of
this subchapter).
*
*
*
*
*
§ 173.314
§ 173.315 Compressed gases in cargo
tanks and portable tanks.
*
*
*
*
*
(h) Each cargo tank and portable tank,
except a tank filled by weight (see
Hazardous material
*
Anhydrous ammonia either
Division 2.2 or 2.3.
Anhydrous Ammonia, either
Division 2.2 or 2.3.
*
Anhydrous Ammonia, either
Division 2.2 or 2.3.
Anhydrous Ammonia, either
Division 2.2 or 2.3.
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[Amended]
35. In § 173.314, remove and reserve
paragraph (b)(4).
■ 36. In § 173.315:
■ a. Revise the first sentence of
paragraph (h) introductory text,
paragraphs (i)(13), (j)(1) introductory
text, (m)(1)(vi), (m)(1)(vii);
■ b. Add paragraph (m)(1)(viii); and
■ c. Revise the table in paragraph (n)(1).
The revisions and addition read as
follows:
■
PO 00000
paragraph (e) of this section), must be
equipped with one or more of the
gauging devices described in the
following table which indicate
accurately the maximum permitted
liquid level (for purposes of the
following table, a column entry with
‘‘do’’ indicates ‘‘same as above’’). * * *
*
*
*
*
*
(i) * * *
(13) A pressure relief device on a
chlorine cargo tank must conform to one
of the drawings in The Chlorine
Institute, Inc. Pamphlet 49,
‘‘Recommended Practices for Handling
Chlorine Bulk Highway Transports’’
(IBR, see § 171.7 of this subchapter).
(j) * * *
(1) Storage containers for liquefied
petroleum gas charged to five percent of
their capacity or less and intended for
permanent installation on consumer
premises may be shipped by private
motor carrier under the following
conditions:
*
*
*
*
*
(m) * * *
(1) * * *
(vi) Is securely mounted on a farm
wagon or meets paragraph (m)(3) of this
section;
(vii) Is in conformance with the
requirements of part 172 of this
subchapter except that shipping papers
are not required; and it need not be
marked or placarded on one end if that
end contains valves, fittings, regulators,
or gauges when those appurtenances
prevent the markings and placard from
being properly placed and visible; and
(viii) For tanks manufactured after
[DATE 90 DAYS FROM EFFECTIVE
DATE], the cargo tank must be subjected
to full post weld heat treatment.
*
*
*
*
*
(n) * * *
(1) * * *
Delivery service
Required emergency
discharge control capability
*
Other than metered delivery
service.
Metered delivery service,
13,247 L (3,500 water gallons) or less.
Metered delivery service,
over 13,247 L (3,500
water gallons).
Both metered delivery service and other than metered delivery service, over
13,247 L (3,500 water gallons).
*
*
Paragraph (n)(2) of this section.
Paragraph (n)(3) of this section.
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Paragraph (n)(3) of this section; and
Paragraph (n)(2) of this section, provided the system
operates for both metered
and other than metered
delivery service; or (n)(2)
and (n)(3).
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under § 177.840(p) of this
subchapter
*
Paragraph (n)(2) or (n)(4) of
this section.
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
§ 173.315(n)(1)(*)
Hazardous material
Delivery service
Required emergency
discharge control capability
(iv) ........................
Division 2.2 with a subsidiary
hazard.
Division 2.2 with a subsidiary
hazard.
Other than metered delivery
service.
Metered delivery service,
13,247 L (3,500 water gallons) or less.
Metered delivery service,
over 13,247 L (3,500
water gallons).
Other than metered delivery
service.
Metered delivery service,
13,247 L (3,500 water gallons) or less.
Metered delivery service,
over 13,247 L (3,500
water gallons).
Paragraph (n)(2) of this section.
Paragraph (n)(3) of this section.
Division 2.2 with a subsidiary
hazard.
(v) .........................
Division 2.1 ...........................
Division 2.1 ...........................
Division 2.1 ...........................
*
*
*
*
*
37. In § 173.320, revise paragraphs (a)
introductory text and (b) introductory
text to read as follows:
■
§ 173.320
Cryogenic liquids; exceptions.
(a) Cryogenic liquids authorized to
use this section by Column 8(A) of the
§ 172.101 Hazardous Materials Table of
this subchapter, which are transported
in Dewar flasks, insulated cylinders,
insulated portable tanks, insulated cargo
tank motor vehicles, and insulated tank
cars that have been designed and
constructed so that the pressure in such
packagings will not exceed 25.3 psig
under ambient temperature conditions
during transportation, are not subject to
the requirements of this subchapter
when transported by motor vehicle or
railcar except for:
*
*
*
*
*
(b) The requirements of this
subchapter do not apply to cryogenic
liquids authorized to use this section by
Column 8(A) of the § 172.101 Hazardous
Materials Table of this subchapter:
*
*
*
*
*
PART 174—CARRIAGE BY RAIL
38. The authority citation for part 174
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128; 33 U.S.C.
1321; 49 CFR 1.81 and 1.97.
39. In § 174.9, revise paragraph (a) and
add paragraph (e) to read as follows:
■
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§ 174.9 Safety and security inspection and
acceptance.
(a) At each location where a
hazardous material is accepted for
transportation or placed in a train, the
carrier must inspect each rail car
containing the hazardous material, at
ground level, for required markings,
labels, placards, securement of closures,
and leakage. These inspections may be
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Paragraph (n)(3) of this section; and
Paragraph (n)(3) of this section;
Movements to be expedited.
(a) A carrier must forward each
shipment of hazardous materials
promptly and within 48 hours
(Saturdays, Sundays, and holidays
excluded), after acceptance at the
originating point or receipt at any yard
or interchange point. Exceptions from
the requirement to forward a shipment
within 48 hours are as follows and the
carrier must keep a record of the delay
of a shipment in accordance with one of
these exceptions:
(1) When only biweekly or weekly
service is performed, a shipment of
hazardous materials must be forwarded
on the first available train;
(2) Where circumstances preclude
delivery to the consignee destination
listed on the shipping paper (e.g.,
excessive railcar congestion on private
track), railcars may be temporarily held
until alternative disposition is obtained,
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Obstructed view deliveries
under § 177.840(p) of this
subchapter
Paragraph (n)(2) or (n)(4) of
this section.
Paragraph (n)(2) of this section.
Paragraph (n)(3) of this section.
performed in conjunction with
inspections required under 49 CFR parts
215 and 232.
*
*
*
*
*
(e) In an action brought to enforce this
section, a train found departing a
location where the hazardous material is
accepted for transportation or placed in
a train with improper hazard
communication, unapplied closures, or
leaking hazardous material, which is
readily apparent from the ground level,
will establish a rebuttable presumption
that a proper inspection was not
performed by the carrier. The
presumption may be rebutted by any
evidence indicating that the improper
hazard communication, unapplied
closures, or leaking hazardous material
resulted from a specific cause not
identifiable by the carrier during the
inspection.
■ 40. In § 174.14, revise paragraph (a) to
read as follows:
§ 174.14
85663
Paragraph (n)(2) or (n)(4) of
this section.
or the circumstances precluding
delivery are resolved; or
(3) Where the shipment contains only
the residue of a hazardous material.
*
*
*
*
*
§ § 174.16 and 174.20
Reserve]
[Remove and
41. Remove and reserve §§ 174.16 and
174.20.
■ 42. In § 174.24, revise paragraph (b) to
read as follows:
■
§ 174.24
Shipping papers.
*
*
*
*
*
(b) Each person receiving a shipping
paper required by this section must
retain a copy or an electronic image
thereof, that is accessible at or through
its principal place of business and must
make the shipping paper available,
upon request, to an authorized official
of a Federal, State, or local government
agency at reasonable times and
locations. In non-emergency
circumstances, the shipping paper must
be made available no later than close of
business the following business day
from the time of the request. For a
hazardous waste, each shipping paper
copy must be retained for three years
after the material is accepted by the
initial carrier. For all other hazardous
materials, each shipping paper copy
must be retained for one year after the
material is accepted by the initial
carrier. Each shipping paper copy must
include the date of acceptance by the
initial carrier. The date on the shipping
paper may be the date a shipper notifies
the rail carrier that a shipment is ready
for transportation, as indicated on the
waybill or bill of lading, as an
alternative to the date the shipment is
picked up, or accepted, by the carrier.
■ 43. Revise § 174.50 to read as follows:
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§ 174.50 Nonconforming or leaking
packages.
(a) Applicability. (1) Except as
otherwise provided in paragraph (b) of
this section, a rail car in hazardous
material service that is not able to retain
its contents in accordance with § 173.24
of this subchapter or a DOT
specification tank car that does not
conform to this subchapter may not be
moved in transportation unless
approved for movement by the
Associate Administrator for Safety,
Federal Railroad Administration.
(2) A leaking non-bulk package may
not be forwarded until repaired,
reconditioned, or overpacked in
accordance with § 173.3 of this
subchapter.
(b) Exceptions. (1) A leaking bulk
package containing hazardous material
may be moved without repair or
approval only so far as necessary to
reduce or eliminate an immediate threat
of harm to human health or the
environment when it is determined its
movement would provide greater safety
than allowing the bulk package to
remain in place. In the case of a liquid
leak, the company in possession of the
bulk package must take measures to
prevent the spread of the liquid.
(2) A non-conforming rail car that
does not contain any hazardous material
may be moved without repair or
approval, provided the non-conforming
condition does not affect the structural
integrity of the rail car.
(3) A rail car containing a hazardous
material that is found during the course
of transportation to be overloaded by
weight by 3,000 pounds or less of the
maximum gross weight on rail (MGWR)
when weighed on a weigh-in-motion
scale, or a rail car containing a
hazardous material that is found to be
overloaded by weight by 1,000 pounds
or less of the rail car’s MGWR when
weighed on a static scale. These
tolerances apply to a rail car that the
railroad operator discovers to be loaded
above the rail car’s MGWR during the
course of transportation. This does not
authorize the original offeror to
knowingly offer a rail car for
transportation when the pretransportation calculations or scale
weight exceed the MGWR of the rail car.
(4) For cross-border movements to or
from Canada, a rail car in hazardous
material service that is not able to retain
its contents in accordance with § 173.24
of this subchapter or a DOT
specification tank car moved in
accordance with the TDG Regulations
(see § 171.12), or a Temporary
Certificate issued by the Competent
Authority of Canada, as applicable.
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(c) Approval Process. To apply for a
One-Time Movement Approval, follow
the guidance in FRA’s guide for
requesting a One-Time Movement
Approval (HMG–127) and the
requirements set forth in this section, as
applicable.
(d) General One-Time Movement
Approval Requirements. These general
requirements apply to the grantee of an
approval for a non-conforming rail car
for transportation under the terms of a
One-Time Movement Approval issued
by FRA in accordance with this section.
(1) Marking. Prior to moving a nonconforming rail car, regardless of the
lading, the rail car must have the
following or similar wording applied to
both sides of the rail car in a stencil,
decal, or tag that is readily visible. This
requirement does not apply to tank cars
moved under a One-Time Movement
Approval issued for rail cars that are
overloaded by weight. The stencil,
decal, or tag required by this paragraph
must not be removed until appropriate
repairs are made to the rail car. Rail cars
with defective service equipment must
also tag the specific equipment (e.g.,
valve or fitting) with the following
wording or alternative wording that
conveys a similar message.
HOME SHOP FOR REPAIRS
DO NOT LOAD
or
MOVING FOR
DISMANTLING
DO NOT LOAD
(2) Notification. Each approval
grantee must:
(i) Notify the owner of the rail car that
it is being moved under the terms of a
One-Time Movement Approval;
(ii) Ensure the consignee or final
destination facility has been notified
and will accept the non-conforming rail
car and be willing and capable of
unloading the lading, if necessary, to
perform the required maintenance. For
tank cars, a tank car facility, either fixed
or mobile, must perform the required
maintenance at the destination
indicated in the application;
(iii) Ensure that the cleaning facility is
capable of cleaning the rail car if the
non-conforming rail car contains a
hazardous material and requires
movement to a cleaning facility prior to
movement for repair;
(iv) Ensure that each rail carrier that
will handle the defective rail car in
transportation has been notified and
will accept the non-conforming rail car
for transportation; and
(v) Ensure that shipping
documentation transmitted to the initial
rail carrier involved in the movement of
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the non-conforming shipment identifies
that the rail car is moving under a OneTime Movement Approval.
(3) Recordkeeping. The approval
grantee is required to maintain a copy
or an electronic image of the One-Time
Movement Approval and must make the
information available upon request to
FRA personnel. The One-Time
Movement Approval must be retained
for one year from the date of issuance
of the approval.
(4) Routing. The approval grantee and
the rail carrier(s) involved in the
movement of the non-conforming rail
car must consider the nature of the nonconformance and select the most
appropriate route to the nearest cleaning
facility and rail car repair facility
capable of performing the required
cleaning and/or repairs.
(5) Root Cause Analysis. A
recommended format for a root cause
analysis report is provided as an
Appendix in the FRA guidance on
applying for a One-Time Movement
Approval.
(i) If FRA requires a root cause
analysis for a non-conforming rail car,
the grantee is responsible for notifying
the rail car owner of the requirement
and coordinating with the rail car owner
to determine disposition of the rail car.
(ii) If FRA requires a root cause
analysis for an overloaded rail car, the
grantee is responsible for notifying the
facility that loaded and offered the rail
car of the requirement to provide FRA
with a root cause analysis.
(e) Compliance Responsibility. (1) The
person who offers the rail car into
transportation and the grantee of the
One-Time Movement Approval are
responsible for ensuring compliance
with all applicable requirements
specified in this section and the OneTime Movement Approval.
(2) FRA may issue written notification
to any entity found to be non-compliant
with the requirements of this section or
the conditions of the One-Time
Movement Approval. This written
notification may require the entity to
submit all future One-Time Movement
Approval requests as a Category 1 OneTime Movement Approval regardless of
the identified non-conforming condition
with the rail car. This limitation will
apply to the particular entity until
otherwise notified in writing by the
FRA.
■ 44. Add § 174.58 to read as follows:
§ 174.58
Residue shipment.
As referenced in the § 171.8 definition
of residue, the phrase ‘‘extent
practicable’’ means an unloading facility
has unloaded a bulk package using
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properly functioning service equipment
and plant process equipment.
■ 45. Revise § 174.59 to read as follows:
§ 174.59
cars.
Marking and placarding of rail
No person may transport a rail car
carrying hazardous materials unless it is
marked and placarded as required by
this subchapter. Required placards lost
in transit must be replaced at the nearest
inspection point in the direction of
travel where mechanical personnel
responsible for inspections related to 49
CFR parts 215 and 232 are on duty, and
non-compliant placards must be
removed at the next terminal in the
direction of travel where the train is
classified. For Canadian shipments,
required placards lost in transit must be
replaced either by those required by part
172 of this subchapter or by those
authorized under § 171.12.
■ 46. In § 174.63, revise the section
heading, and paragraphs (b), (c)(1), and
(c)(2) to read as follows:
§ 174.63 Requirements for rail transport of
Portable tanks, IM portable tanks, IBCs,
Large Packagings, cargo tanks, and multiunit tank car tanks in TOFC/COFC Service.
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*
*
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(b) A bulk packaging containing a
hazardous material (including IM 101
and IM 102 portable tanks when
appropriate according to dimensions
and weight distribution) may be
transported inside a fully closed
transport vehicle or fully closed freight
container provided it is properly
secured with a restraint system that will
prevent it from changing position,
sliding into other packages, or
contacting the side or end walls
(including doors) under conditions
normally incident to transportation.
(c) * * *
(1)(i) The bulk packaging contains a
material packaged in accordance with
§§ 173.240, 173.241, 173.242, 173.243,
or 173.247; or
(ii) The bulk packaging contains a
Division 2.2 material not specifically
provided for in the § 173.315(a)(2) table
and packaged in accordance with
§ 173.315;
(2) The bulk packaging must comply
with the applicable requirements of the
HMR concerning its specification, if
applicable for the material it contains,
and the rail car must comply with the
applicable regulatory requirements for
the type of rail car being used.
*
*
*
*
*
■ 47. Revise § 174.67 to read as follows:
§ 174.67
Tank car transloading.
(a) General requirements. (1)
Transloading operations must be
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performed by hazmat employees who
are properly trained in the loading and
unloading of hazardous materials and
are made responsible for compliance
with this section and §§ 173.31(d) and
(g) of this subchapter.
(2) When placed for transloading and
before unsecuring any closure, a tank
car must be protected against motion or
coupling in accordance with § 173.31(g).
(3) [Reserved]
(4) [Reserved]
(5) The transloading facility operator
must maintain and adhere to written
safety procedures—such as those it may
already be required to maintain
pursuant to the Department of Labor’s
Occupational Safety and Health
Administration requirements in 29 CFR
1910.119 and 1910.120—in a location
where they are immediately available to
hazmat employees responsible for the
transloading operation. The procedures
must include measures to address the
safe handling and operation of the tank
car and tank car service equipment, as
well as account for physical and
chemical properties of the lading being
transloaded. At a minimum, the
transloading procedures required by this
paragraph must include provisions that
address the following:
(i) Temperature monitoring and
pressure relief;
(ii) Safe operation of the tank car for
product loading or unloading;
(iii) Proper disposal of used seals and
other debris;
(iv) Measures to avoid spillage of
contents outside the tank;
(v) Operation of tank car service
equipment;
(vi) Proper removal of product plugs
that prevent adequate operation of the
valves and equipment; and
(vii) Proper tool maintenance
measures including the types of tools to
use, calibration, cleanliness, and
instructions on use.
(6) [Reserved]
(b) [Reserved]
(c) [Reserved]
(d) [Reserved]
(e) [Reserved]
(f) [Reserved]
(g) [Reserved]
(h) Connections for transloading
equipment must be securely attached
before any valves are opened.
(i) Throughout the entire period of
transloading and while a tank car has
transloading equipment attached, the
facility operator must assure that the
tank car is:
(1) Attended by a designated hazmat
employee who is physically present and
who has an unobstructed view of the
transloading operation; or
(2) Monitored by a signaling system
(e.g., video system, sensing equipment,
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85665
or mechanical equipment) that is
observed by a designated hazmat
employee located either in the
immediate area of the tank car or at a
remote location within the facility, such
as a control room. The signaling system
must—
(i) Provide a level of surveillance
equivalent to that provided in paragraph
(i)(1) of this section; and
(ii) Provide immediate notification to
a designated hazmat employee of any
system malfunction or other emergency
so that, if warranted, responsive actions
may be initiated immediately.
(j) Attendance is not required when
piping is attached to a top outlet of a
tank car, equipped with a protective
housing required under § 179.100–12 of
this subchapter, for transfer of lading
under the following conditions:
(1) All valves are tightly closed.
(2) The piping is not connected to
hose or other product transfer
equipment and is fitted with a cap or
plug of appropriate material and
construction.
(3) The piping extends no more than
15.24 centimeters (6 inches) from the
outer edge of the protective housing.
(k) In the absence of the transloader,
a tank car may stand with transloading
connections attached when no product
is being transferred under the following
conditions:
(1) The facility operator must
designate a hazmat employee
responsible for on-site monitoring of the
transfer facility. The designated hazmat
employee must be made familiar with
the nature and properties of the product
contained in the tank car; procedures to
be followed in the event of an
emergency; and, in the event of an
emergency, have the ability and
authority to take responsible actions.
(2) When a signaling system is used
in accordance with paragraph (i) of this
section, the system must be capable of
alerting the designated hazmat
employee in the event of an emergency
and providing immediate notification of
any monitoring system malfunction. If
the monitoring system does not have
self-monitoring capability, the
designated hazmat employee must
check the monitoring system hourly for
proper operation.
(3) The tank car and facility shutoff
valves must be secured in the closed
position.
(4) Brakes must be set, and wheels
locked, in accordance with § 173.31(g)
of this subchapter.
(5) Access to the track must be
secured in accordance with § 173.31(g)
of this subchapter.
(l) Once the transloading operation is
complete, all tank car valves and
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closures must be secured in accordance
with § 173.31(d) of this subchapter. The
tank car then must be inspected by a
designated hazmat employee in
accordance with § 173.31(d) of this
subchapter before it is released to the
rail carrier for continued movement.
(m) Railroad defect cards may not be
removed.
(n) [Reserved]
(o) [Reserved]
■ 48. In § 174.81, revise paragraph
(g)(3)(iv) to read as follows:
§ 176.340
tanks.
Combustible liquids in portable
*
§ 174.81 Segregation of hazardous
materials.
*
*
*
*
*
(g) * * *
(3) * * *
(iv) ‘‘4’’ means detonators, detonating
assemblies, and boosters with
detonators may not be loaded in the
same car with Division 1.1 and 1.2
(explosive) materials (except other
detonators, detonating assemblies, and
boosters with detonators).
*
*
*
*
*
*
*
*
*
(c) Portable tanks approved by the
Commandant (CG–ENG), USCG.
■ 53. In § 176.905, add paragraph (i)(7)
to read as follows:
§ 176.905
Stowage of vehicles.
*
*
*
*
*
(i) * * *
(7) The vehicle is stored incident to
movement on shore within a single port
area, including contiguous harbors.
*
*
*
*
*
PART 176—CARRIAGE BY VESSEL
PART 177—CARRIAGE BY PUBLIC
HIGHWAY
■
49. The authority citation for part 176
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128; 49 CFR
1.81 and 1.97.
Authority: 49 U.S.C. 5101–5128; sec. 112
of Pub. L. 103–311, 108 Stat. 1673, 1676
(1994); sec. 32509 of Pub. L. 112–141, 126
Stat. 405, 805 (2012); 49 CFR 1.81 and 1.97.
50. In § 176.2, revise the definition for
‘‘Commandant’’ to read as follows:
■
§ 176.2
*
*
*
*
Commandant (CG–ENG), USCG
means the Chief, Office of Design and
Engineering Standards, United States
Coast Guard, Washington, DC 20593–
7509.
*
*
*
*
*
■ 51. In § 176.84, revise paragraph (a) to
read as follows:
§ 176.84 Other requirements for stowage,
cargo handling, and segregation for cargo
vessels and passenger vessels.
(a) General. When Column 10B of the
§ 172.101 Table refers to a numbered or
alpha-numeric stowage provision for
water shipments, the meaning and
requirements of that provision are set
forth in this section. Terms in quotation
marks are defined in § 176.83. Other
terms used in the table in this section—
such as ‘‘acids,’’ ‘‘chlorates,’’ and
‘‘permanganates’’—indicate different
chemical groups referred to here as
segregation groups. Materials falling
within a segregation group are
considered to have certain similar
chemical properties and, although not
exhaustive in nature, the materials
belonging to each group include those
substances identified in section 3.1.4 of
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54. The authority citation for part 177
continues to read as follows:
55. Revise § 177.801 to read as
follows:
■
Definitions.
*
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the IMDG Code (IBR, see § 171.7 of this
subchapter), as set forth in § 176.83(m).
Hazardous materials offered for
transportation as limited quantities are
not subject to the stowage codes
assigned by Column 10B of the
§ 172.101 Table (see § 172.101(k)).
*
*
*
*
*
■ 52. In § 176.340, revise paragraph (c)
to read as follows:
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§ 177.801 Unacceptable hazardous
materials shipments.
(a) No person may accept for
transportation or transport by motor
vehicle a forbidden material (see
§ 173.21).
(b) No person may accept for
transportation or transport a hazardous
material that is not classified, packaged,
marked, labeled, or placarded, as
applicable, in accordance with the
requirements of this subchapter or by
special permit.
■ 56. In § 177.804, revise paragraph (a)
to read as follows:
§ 177.804 Compliance with Federal Motor
Carrier Safety Regulations.
(a) General. Motor carriers and other
persons subject to this part must comply
with 49 CFR part 383 and 49 CFR parts
390 through 397 (excluding §§ 397.3
and 397.9) when operating vehicles
subject to those regulations.
*
*
*
*
*
■ 57. In § 177.816, revise paragraphs (c)
and (d) to read as follows:
§ 177.816
*
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Driver Training.
*
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*
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(c) The training required by
paragraphs (a) and (b) of this section
may be satisfied by compliance with the
current requirements for a Commercial
Driver’s License (CDL) with a tank
vehicle or hazardous materials
endorsement if it appropriately covers
the requirements in paragraph (a) and
(b) of this section.
(d) Training required by paragraphs
(a) and (b) of this section must conform
to the requirements of § 172.704(c) and
(d) of this subchapter with respect to
frequency and recordkeeping.
■ 58. In § 177.835, revise paragraph (d)
to read as follows:
§ 177.835
Class 1 (explosive) materials.
*
*
*
*
*
(d) Multipurpose bulk trucks. When
§ 172.101 of this subchapter specifies
that Class 1 (explosive) materials may be
transported in accordance with § 173.66
of this subchapter (per special provision
148 in § 172.102(c)(1)), these materials
may be transported on the same vehicle
with Division 5.1 (oxidizing) materials,
or Class 8 (corrosive) materials, and/or
Combustible Liquid, n.o.s., NA1993,
only under the conditions and
requirements set forth in IME Standard
23 (IBR, see § 171.7 of this subchapter)
and paragraph (g) of this section. A
multipurpose bulk truck may not be
transported with any cargo tank that is
required to be marked or placarded
under § 177.823. In addition, the
segregation requirements in § 177.848
do not apply.
*
*
*
*
*
■ 59. In § 177.837, revise paragraph (c)
introductory text to read as follows:
§ 177.837 Class 3 (flammable liquid)
materials.
*
*
*
*
*
(c) Bonding and grounding cargo
tanks before and during transfer of
lading. A cargo tank motor vehicle that
is preparing to transfer or is transferring
any flammable liquid, combustible
liquid, or a flammable liquid
reclassified as a combustible liquid
must be bonded and grounded as
follows:
*
*
*
*
*
■ 60. In § 177.840, revise paragraphs (n),
(r)(2), and (t) to read as follows:
§ 177.840
Class 2 (gases) materials.
*
*
*
*
*
(n) Emergency shut down. If there is
an unintentional release of product to
the environment during unloading of a
liquefied compressed gas, the qualified
person unloading the cargo tank motor
vehicle must promptly shut the internal
or external self-closing stop valve or
other primary means of closure, and
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shut down all motive and auxiliary
power equipment.
*
*
*
*
*
(r) * * *
(2) The qualified person monitoring
unloading must remain within arm’s
reach of the mechanical means of
closure for the internal or external selfclosing stop valve when the self-closing
stop valve is open except for short
periods when it is necessary to activate
controls or monitor the receiving
container. For chlorine cargo tank motor
vehicles, the qualified person must
remain within arm’s reach of a means to
stop the flow of product except for short
periods when it is necessary to activate
controls or monitor the receiving
container.
*
*
*
*
*
(t) Unloading without appropriate
emergency discharge control equipment.
Until a cargo tank motor vehicle is
equipped with emergency discharge
control equipment in conformance with
§§ 173.315(n)(2) and 180.405(m)(1) of
this subchapter, the qualified person
attending the unloading operation must
remain within arm’s reach of a means to
close the internal or external self-closing
stop valve when the self-closing stop
valve is open except during short
periods when the qualified person must
activate controls or monitor the
receiving container. For chlorine cargo
tank motor vehicles, the qualified
person must remain within arm’s reach
of a means to stop the flow of product
except for short periods when it is
necessary to activate controls or monitor
the receiving container.
*
*
*
*
*
■ 61. In § 177.841, revise paragraphs
(e)(1) introductory text and (e)(2) to read
as follows:
§ 177.841 Division 6.1 (poisonous)
materials and Division 2.3 (poisonous gas)
materials.
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(e) * * *
(1) Except as provided in paragraph
(e)(3) of this section, bearing or required
to bear a POISON, POISON GAS, or
POISON INHALATION HAZARD label
or placard in the same motor vehicle
with material that is marked as or
known to be foodstuffs, feed, or edible
material intended for consumption by
humans or animals unless the
poisonous material is packaged in
accordance with this subchapter and is:
*
*
*
*
*
(2) Bearing or required to bear a
POISON, POISON GAS, or POISON
INHALATION HAZARD label in the
driver’s compartment (including a
sleeper berth) of a motor vehicle,
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including enclosed van trucks with no
permanent barrier separating the driver
from the cargo compartment; or
*
*
*
*
*
PART 178—SPECIFICATIONS FOR
PACKAGINGS
62. The authority citation for part 178
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128; 49 CFR
1.81 and 1.97.
63. In § 178.320, paragraph (a);
a. Revise definitions of ‘‘cargo tank’’,
‘‘cargo tank motor vehicle’’, and
‘‘minimum thickness’’; and
■ b. In alphabetical order, add
definitions for ‘‘cargo tank motor
vehicle certification date’’,
‘‘component’’, ‘‘flexible connector’’,
‘‘lading retention system’’, ‘‘lining’’,
‘‘name plate’’, ‘‘original test date’’,
‘‘sacrificial device’’, ‘‘shear section’’,
and ‘‘specification plate’’.
The revisions and additions read as
follows:
■
■
§ 178.320 General requirements applicable
to all DOT Specification cargo tank motor
vehicles.
(a) * * *
*
*
*
*
Cargo tank: See § 171.8 of this
subchapter for the definition.
Cargo tank motor vehicle: See § 171.8
of this subchapter for the definition.
*
*
*
*
*
Cargo tank motor vehicle certification
date means the date stamped on the
cargo tank motor vehicle specification
plate, and represents the date the cargo
tank motor vehicle manufacturer
certifies that the cargo tank motor
vehicle conforms in all respects with the
specification requirements (including,
but not limited to: rear-end protection
devices, overturn protection devices, all
other accident damage protection, and
attachment to the vehicle), and the
ASME Code, if applicable.
*
*
*
*
*
Component means any attachment to
the cargo tank or cargo tank motor
vehicle, including valves, piping,
fittings, and hoses, that contain lading
during loading, unloading, or
transportation, or are required to be
pressure- or leak-tested in accordance
with the requirements of part 180 of this
subchapter.
*
*
*
*
*
Flexible connector means a short
component of a piping system, not
exceeding 36 inches (.91 m) overall
length, fabricated of flexible material,
and equipped with suitable connections
on both ends. Liquefied petroleum gas
resistant rubber and fabric or metal, or
*
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a combination thereof, or all metal may
be used.
*
*
*
*
*
Lading retention system means the
cargo tank wall and any associated
components or equipment that, if
damaged, could result in the release of
the contents of the package.
Lining means an internal layer of
different material covering the inside
surface of the cargo tank.
*
*
*
*
*
Minimum thickness means the
minimum required shell and head (and
baffle and bulkhead when used as tank
reinforcement) thickness needed to meet
the specification. The minimum
thickness is the greatest of the following
values: (1)(i) For MC 330, MC 331, and
MC 338 cargo tanks, the specified
minimum thickness found in the
applicable specification(s); or
(ii) For DOT 406, DOT 407 and DOT
412 cargo tanks, the specified minimum
thickness found in Tables I and II of the
applicable specification(s); or
(iii) For MC 300, MC 301, MC 302,
MC 303, MC 304, MC 305, MC 306, MC
307, MC 310, MC 311, and MC 312
cargo tanks, the in-service minimum
thickness prescribed in Tables I and II
of § 180.407(i)(5) of this subchapter, for
the minimum thickness specified by
Tables I and II of the applicable
specification(s); or
(2) The thickness necessary to meet
with the structural integrity and
accident damage requirements of the
applicable specification(s); or
(3) The thickness as computed per the
ASME Code requirements (if
applicable).
*
*
*
*
*
Name plate means a data plate
permanently attached to the cargo tank
by the cargo tank manufacturer for the
purpose of displaying the minimum
information required by the ASME Code
prescribed in §§ 178.337–17(b),
178.338–18(b), or 178.345–14(b) of this
part, as appropriate.
*
*
*
*
*
Original test date means the date
when the cargo tank manufacturer
performed the pressure test, as required
in part 178 of this subchapter, to verify
the structural integrity of the cargo tank
in accordance with the requirements for
new construction prescribed in this
part.
*
*
*
*
*
Sacrificial device means an element,
such as a shear section, designed to fail
under a load in order to prevent damage
to any lading retention part or device.
The device must break under strain at
no more than 70 percent of the strength
of the weakest piping element between
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the cargo tank and the sacrificial device.
Operation of the sacrificial device must
leave the remaining piping and its
attachment to the cargo tank intact and
capable of retaining lading.
*
*
*
*
*
Shear section means a sacrificial
device fabricated in such a manner as to
abruptly reduce the wall thickness of
the adjacent piping or valve material by
at least 30 percent.
*
*
*
*
*
Specification plate means a data plate
containing the applicable markings
prescribed in §§ 178.337–17(c),
178.338–18(c), or 178.345–14(c) of this
part, as appropriate, and permanently
attached to the cargo tank or the cargo
tank motor vehicle chassis by the
manufacturer. The markings on this
plate are certification by the
manufacturer that the cargo tank or the
cargo tank motor vehicle conforms in all
respects with the specification
requirements of this subchapter.
*
*
*
*
*
■ 64. In § 178.337–1:
■ a. Revise paragraph (d); and
■ b. Remove the definition of ‘‘internal
self-closing stop valve’’ in paragraph (g).
The revision reads as follows:
§ 178.337–1
General Requirements.
*
*
*
*
*
(d) Reflective design. Every
uninsulated cargo tank permanently
attached to a cargo tank motor vehicle
shall, unless covered with a jacket made
of aluminum, stainless steel, or other
bright non-tarnishing metal, be white,
aluminum, or a similar reflecting color
on the upper two-thirds of area of the
cargo tank.
*
*
*
*
*
■ 65. In § 178.337–2, revise paragraph
(b)(2)(i) to read as follows:
§ 178.337–2
Material.
*
*
*
*
(b) * * *
(2) * * *
(i) Material shall conform to ASTM A
612 or ASTM A 516/A 516M (IBR, see
§ 171.7 of this subchapter), Grade 65 or
70;
*
*
*
*
*
■ 66. In § 178.337–3, revise paragraphs
(g)(3) introductory text and (g)(3)(iii) to
read as follows:
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§ 178.337–3
Structural integrity.
*
*
*
*
*
(g) * * *
(3) Except as prescribed in paragraphs
(g)(1) and (g)(2) of this section, the
welding of any appurtenance to the
cargo tank wall, internal or external,
must be made by attachment of a
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mounting pad so that there will be no
adverse effect upon the lading retention
integrity of the cargo tank if any force
less than that prescribed in paragraph
(b)(1) of this section is applied from any
direction. The thickness of the
mounting pad may not be less than that
of the shell wall or head wall to which
it is attached, and not more than 1.5
times the shell or head thickness.
However, a pad with a minimum
thickness of 0.25 inch may be used
when the shell or head thickness is over
0.25 inch. If weep holes or tell-tale holes
are used, the pad must be drilled or
punched at the lowest point before it is
welded to the tank. Each pad must—
*
*
*
*
*
(iii) Extend at least two inches in each
direction from any point of attachment
of an appurtenance.
*
*
*
*
*
■ 67. In § 178.337–8, add paragraph
(a)(4)(vii) to read as follows:
§ 178.337–8
Openings, inlets, and outlets.
(a) * * *
(4) * * *
(vii) Mechanical means of remote
closure for manual operation must not
be obstructed by equipment or
appurtenances in a manner that
prevents access to or operation of the
remote means in an emergency.
*
*
*
*
*
■ 68. In § 178.337–9:
■ a. Revise paragraphs (a)(3), (b)
introductory text, (b)(1), and (b)(6);
■ b. Remove and reserve paragraph
(b)(7); and
■ c. Add paragraph (e).
The revisions and addition read as
follows:
§ 178.337–9 Pressure relief devices,
piping, valves, hoses, and fittings.
(a) * * *
(3) Each pressure relief device must
be designed, constructed, and marked
for a rated pressure not less than the
cargo tank design pressure at the
temperature expected to be
encountered.
(b) Components and other pressure
parts. The cargo tank motor vehicle
manufacturer must ensure that all
components meet the following
requirements:
(1) The burst pressure of all piping,
pipe fittings, hose, and other pressure
parts, except for pump seals and
pressure relief devices, must be at least
four times the MAWP of the cargo tank.
Additionally, the burst pressure may not
be less than four times any higher
pressure to which each pipe, pipe
fitting, hose, or other pressure part may
be subjected to in service. For chlorine
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service, see paragraph (b)(8) of this
section.
*
*
*
*
*
(6) Cargo tank motor vehicle
manufacturers must demonstrate that all
piping, valves, and fittings on a cargo
tank are free from leaks. To meet this
requirement, the piping, valves, and
fittings must be tested after installation
at not less than 80 percent of the MAWP
marked on the name plate after the
piping is installed on the cargo tank
motor vehicle.
(7) [Reserved].
*
*
*
*
*
(e) Hose assembler requirements. A
hose assembler must:
(1) Permanently mark each hose
assembly with a unique identification
number.
(2) Demonstrate that each hose
assembly is free from leaks by
performing the tests and inspections
and issuing a written report as required
by § 180.416(f) of this subchapter.
(3) Mark each hose assembly with the
month and year of its original pressure
test.
■ 69. In § 178.337–10, revise paragraph
(c)(1) to read as follows:
§ 178.337–10
Accident damage protection.
*
*
*
*
*
(c) * * *
(1) Consist of at least one rear bumper
designed to protect the cargo tank and
all components located at the rear of the
cargo tank from damage that could
result in loss of lading in the event of
a rear-end collision. The bumper design
must transmit the force of the collision
directly to the chassis of the vehicle.
The rear bumper and its attachments to
the chassis must be designed to
withstand a load equal to twice the
weight of the loaded cargo tank motor
vehicle and attachments, using a safety
factor of four based on the tensile
strength of the materials used, with such
load being applied horizontally and
parallel to the major axis of the cargo
tank. The rear bumper dimensions must
also meet the requirements of § 393.86
of this title. The exception in § 393.86
for wheels back vehicles does not apply;
or
*
*
*
*
*
■ 70. In § 178.337–17, revise paragraphs
(a) introductory text and (a)(4) to read as
follows:
§ 178.337–17
Marking.
(a) General. The manufacturer shall
permanently attach to each cargo tank a
corrosion-resistant metal name plate
(ASME Plate), if applicable, and a
specification plate permanently
attached by brazing, welding, or other
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suitable means on the left side of the
vehicle near the front, in a place
accessible for inspection. If the
specification plate is attached directly to
the cargo tank wall by welding, it must
be welded to the tank before the cargo
tank is postweld heat treated.
*
*
*
*
*
(4) The specification plate must be
permanently attached to the cargo tank
or its integral supporting structure by
brazing, welding, or other suitable
means on the left side of the vehicle
near the front head, in a place accessible
for inspection. If the specification plate
is attached to an integral supporting
structure, then the cargo tank serial
number assigned by the cargo tank
manufacturer must be included on the
plate.
*
*
*
*
*
■ 71. Revise § 178.337–18, revise
paragraphs (a) introductory text, (a)(1),
(a)(3), and (a)(4) to read as follows:
lotter on DSK11XQN23PROD with PROPOSALS2
§ 178.337–18
Certification.
(a) At or before the time of delivery,
the cargo tank motor vehicle
manufacturer must supply and the
owner must obtain, a cargo tank’s ASME
Form U–1A data report as required by
Section VIII of the ASME Code (IBR, see
§ 171.7 of this subchapter), and a
Certificate of Compliance stating that
the completed cargo tank motor vehicle
conforms in all respects to Specification
MC 331 and the ASME Code. The
registration numbers of the
manufacturer, the Design Certifying
Engineer, and the Registered Inspector,
as appropriate, must appear on the
Certificates of Compliance (see subpart
F, part 107 in subchapter A of this
chapter).
(1) For each design type, the
Certificate of Compliance must be
signed by an official of the manufacturer
responsible for compliance and a Design
Certifying Engineer; and
*
*
*
*
*
(3) When a cargo tank motor vehicle
is manufactured in two or more stages,
each manufacturer who performs a
manufacturing operation on the
incomplete cargo tank motor vehicle or
portion thereof must provide to the
succeeding manufacturer, at or before
the time of delivery, a certificate that
states the function performed by the
manufacturer, including any certificates
received from previous manufacturers,
Registered Inspectors, and Design
Certifying Engineers. When the cargo
tank motor vehicle is brought into full
compliance with the applicable DOT
specification and the ASME Code, the
final manufacturer must mark the
specification plate with the cargo tank
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motor vehicle certification date and
attach the specification plate to the
completed cargo tank motor vehicle in
accordance with § 178.337–17(a) of this
part.
(4) Specification shortages. When a
cargo tank motor vehicle is
manufactured in two or more stages, the
manufacturer of the cargo tank must
attach the name plate and specification
plate as required by § 178.337–17(a) and
(b) without the original date of
certification stamped on the
specification plate. Prior manufacturers
must list the specification requirements
that are not completed on the Certificate
of Compliance. When the cargo tank
motor vehicle is brought into full
compliance with the applicable
specification, the Registered Inspector
shall stamp the date of certification on
the specification plate and issue a
Certificate of Compliance to the owner
of the cargo tank motor vehicle. The
Certificate of Compliance must list the
actions taken to bring the cargo tank
motor vehicle into full compliance. In
addition, the certificate must include
the date of certification and the person
(manufacturer, carrier or repair
organization) accomplishing
compliance.
*
*
*
*
*
■ 72. In § 178.338–3, revise paragraphs
(g)(3) introductory text and (g)(3)(iii) to
read as follows:
§ 178.338–3
Structural integrity.
*
*
*
*
*
(g) * * *
(3) Except as prescribed in paragraphs
(g)(1) and (g)(2) of this section, the
welding of any appurtenance to the
cargo tank wall, internal or external,
must be made by attachment of a
mounting pad so that there will be no
adverse effect upon the lading retention
integrity of the cargo tank if any force
less than that prescribed in paragraph
(b)(1) of this section is applied from any
direction. The thickness of the
mounting pad may not be less than that
of the shell wall or head wall to which
it is attached, and not more than 1.5
times the shell or head thickness.
However, a pad with a minimum
thickness of 0.187 inch may be used
when the shell or head thickness is over
0.187 inch. If weep holes or tell-tale
holes are used, the pad must be drilled
or punched at the lowest point before it
is welded to the tank. Each pad must:
*
*
*
*
*
(iii) Extend at least two inches in each
direction from any point of attachment
of an appurtenance.
*
*
*
*
*
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85669
73. In § 178.338–10, revise paragraph
(c)(1) to read as follows:
■
§ 178.338–10
Accident damage protection.
*
*
*
*
*
(c) * * *
(1) Consist of at least one rear bumper
designed to protect the cargo tank and
all components located at the rear of the
cargo tank from damage that could
result in loss of lading in the event of
a rear-end collision. The bumper design
must transmit the force of the collision
directly to the chassis of the vehicle.
The rear bumper and its attachments to
the chassis must be designed to
withstand a load equal to twice the
weight of the loaded cargo tank motor
vehicle and attachments, using a safety
factor of four based on the tensile
strength of the materials used, with such
load being applied horizontally and
parallel to the major axis of the cargo
tank. The rear bumper dimensions must
also meet the requirements of § 393.86
of this title. The exception in § 393.86
for wheels back vehicles does not apply;
or
*
*
*
*
*
■ 74. In § 178.338–11, add paragraph
(c)(2)(iii) to read as follows:
§ 178.338–11
Discharge control devices.
*
*
*
*
*
(c) * * *
(2) * * *
(iii) Mechanical means of remote
closure for manual operation must not
be obstructed by equipment or
appurtenances in a manner that
prevents access to or operation of the
remote means in an emergency.
■
75. In § 178.338–18, revise paragraphs
(a) introductory text and (a)(4) to read as
follows:
§ 178.338–18
Marking.
(a) General. The manufacturer shall
permanently attach to each cargo tank a
corrosion-resistant metal name plate
(ASME Plate), if applicable, and a
specification plate permanently
attached by brazing, welding, or other
suitable means on the left side of the
vehicle near the front, in a place
accessible for inspection. If the
specification plate is attached directly to
the cargo tank wall by welding, it must
be welded to the tank before the cargo
tank is postweld heat treated.
*
*
*
*
*
(4) The specification plate must be
permanently attached to the cargo tank
or its integral supporting structure, by
brazing, welding, or other suitable
means on the left side of the vehicle
near the front head, in a place accessible
for inspection. If the specification plate
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is attached to an integral supporting
structure, then the cargo tank serial
number assigned by the cargo tank
manufacturer must be included on the
plate.
*
*
*
*
*
■ 76. Revise § 178.338–19 to read as
follows:
lotter on DSK11XQN23PROD with PROPOSALS2
§ 178.338–19
Certification.
(a) At or before the time of delivery,
the cargo tank motor vehicle
manufacturer must supply and the
owner must obtain, a cargo tank’s ASME
Form U–1A data report as required by
Section VIII of the ASME Code (IBR, see
§ 171.7 of this subchapter), and a
Certificate of Compliance stating that
the completed cargo tank motor vehicle
conforms in all respects to Specification
MC 338 and the ASME Code. The
registration numbers of the
manufacturer, the Design Certifying
Engineer, and the Registered Inspector,
as appropriate, must appear on the
Certificates of Compliance (see subpart
F, part 107 in subchapter B of this
chapter).
(1) For each design type, the
Certificate of Compliance must be
signed by an official of the manufacturer
responsible for compliance and a Design
Certifying Engineer; and
(2) A photograph, pencil rub, or other
facsimile of the plates required by
paragraphs (a) and (b) of § 178.338–18.
(3) When a cargo tank motor vehicle
is manufactured in two or more stages,
each manufacturer who performs a
manufacturing operation on the
incomplete cargo tank motor vehicle or
portion thereof must provide to the
succeeding manufacturer, at or before
the time of delivery, a certificate that
states the function performed by that
manufacturer, including any certificates
received from previous manufacturers,
Registered Inspectors, and Design
Certifying Engineers. When the cargo
tank motor vehicle is brought into full
compliance with the applicable DOT
specification and the ASME Code, the
final manufacturer must mark the
specification plate with the cargo tank
motor vehicle certification date and
attach the specification plate to the
completed cargo tank motor vehicle in
accordance with § 178.338–18(a) of this
part.
(b) The owner shall retain the data
report, certificates, and related papers
throughout his ownership of the cargo
tank motor vehicle and for at least one
year thereafter; and in the event of
change of ownership, retention by the
prior owner of non-fading
photographically reproduced copies
will be deemed to satisfy this
requirement. Each motor carrier using
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the cargo tank motor vehicle, if not the
owner thereof, shall obtain a copy of the
data report and the Certificate(s) of
Compliance, and retain them during the
time the carrier uses the cargo tank
motor vehicle and for at least one year
thereafter.
(c) [Reserved]
■ 77. In § 178.345–1, revise paragraph
(c) to read as follows:
§ 178.345–1
General requirements.
*
*
*
*
*
(c) Definitions. See § 178.320(a) for
the definition of certain terms used in
§§ 178.345, 178.346, 178.347, and
178.348.
*
*
*
*
*
■ 78. In § 178.345–3, revise paragraphs
(f) introductory text, (f)(3) introductory
text, and (f)(3)(iii) to read as follows:
§ 178.345–3
Structural integrity.
*
*
*
*
*
(f) The design, construction, and
installation of an attachment,
appurtenance to a cargo tank, structural
support member between the cargo tank
and the vehicle of suspension
component, or accident protection
device must conform to the following
requirements:
*
*
*
*
*
(3) Except as prescribed in paragraphs
(f)(1) and (f)(2) of this section, the
welding of any appurtenance to the
cargo tank wall, internal or external,
must be made by attachment of a
mounting pad so that there will be no
adverse effect upon the lading retention
integrity of the cargo tank if any force
less than that prescribed in paragraph
(b)(1) of this section is applied from any
direction. The thickness of the
mounting pad may not be less than that
of the shell wall or head wall to which
it is attached, and not more than 1.5
times the shell or head thickness.
However, a pad with a minimum
thickness of 0.187 inch may be used
when the shell or head thickness is over
0.187 inch. If weep holes or tell-tale
holes are used, the pad must be drilled
or punched at the lowest point before it
is welded to the tank. Each pad must:
*
*
*
*
*
(iii) Extend at least two inches in each
direction from any point of attachment
of an appurtenance.
*
*
*
*
*
■ 79. In § 178.345–8, revise paragraph
(d) to read as follows:
§ 178.345–8
Accident damage protection.
*
*
*
*
*
(d) Rear-end tank protection. Each
cargo tank motor vehicle must be
provided with a rear-end tank
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protection device to protect the cargo
tank and piping in the event of a rearend collision and reduce the likelihood
of damage that could result in the loss
of lading. Nothing in this paragraph
relieves the manufacturer of
responsibility for complying with the
requirements of § 393.86 of this title
and, if applicable, paragraph (b) of this
section. The rear-end tank protection
device must conform to the following
requirements:
(1) For cargo tanks constructed with
any component at the rear of the cargo
tank motor vehicle:
(i) For any component on the same
horizontal plane as the rear-end
protection device, the device must be
designed so that it can deflect at least
six inches horizontally forward from the
device’s inboard surface without
contacting the component;
(ii) For any component not on the
same horizontal plane as the rear-end
cargo tank protection device, the device
must be designed so that it can deflect
at least six inches horizontally forward
from the device’s outboard surface or
with a vertical plane passing through
the device’s outboard surface without
contacting the component.
(2) The dimensions of the rear-end
cargo tank protection device shall
conform to the following:
(i) The bottom surface of the rear-end
protection device must be at least four
inches below the lower surface of any
part at the rear of the cargo tank motor
vehicle that contains lading during
transit and not more than 60 inches
from the ground when the vehicle is
empty.
(ii) The maximum width of a notch,
indentation, or separation between
sections of a rear-end cargo tank
protection device may not exceed 24
inches. A notched, indented, or
separated rear-end protection device
may be used only when the piping at
the rear of the cargo tank is equipped
with a sacrificial device outboard of a
shut-off valve.
(iii) The widest part of the motor
vehicle at the rear may not extend more
than 18 inches beyond the outermost
ends of the device or (if separated)
devices on either side of the vehicle.
(3) The structure of the rear-end
protection device and its attachment to
the cargo tank motor vehicle must be
designed to satisfy the conditions
specified in paragraph (d)(1) of this
section when subjected to an impact of
the cargo tank motor vehicle at the gross
vehicle weight rating at a deceleration of
two ‘‘g.’’ Such impact must be
considered as being uniformly applied
in the horizontal plane at an angle of 10
degrees or less to the longitudinal axis
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of the vehicle. The structures supporting
the rear-end protection device,
including the frame and the attachments
to the frame must also be capable of
withstanding the two ‘‘g’’ load.
*
*
*
*
*
■ 80. In § 178.345–11:
■ a. Revise paragraph (b)(1)(ii); and
■ b. Add paragraph (b)(1)(iv).
The revision and addition read as
follows:
§ 178.345–11
Tank outlets.
*
*
*
*
*
(b) * * *
(1) * * *
(ii) If the actuating system is
accidentally damaged, sheared off
during transportation, or fails, each
loading/unloading outlet must remain
securely closed and capable of retaining
lading.
*
*
*
*
*
(iv) Mechanical means of remote
closure for manual operation must not
be obstructed by equipment or
appurtenances in a manner that
prevents access to or operation of the
remote means in an emergency.
*
*
*
*
*
■ 81. In § 178.345–13, revise paragraph
(a) to read as follows:
§ 178.345–13
Pressure and leakage tests.
(a) Cargo tank motor vehicle
manufacturers must perform a pressure
and leakage test in accordance with this
section and §§ 178.346–5, 178.347–5, or
178.348–5. The leakage test shall be
performed after the piping is installed
on the cargo tank motor vehicle.
*
*
*
*
*
■ 82. In § 178.345–14, revise paragraphs
(a), (b)(3), (c)(6), (c)(7), and (d) to read
as follows:
lotter on DSK11XQN23PROD with PROPOSALS2
§ 178.345–14
Marking.
(a) General. The manufacturer shall
certify that each cargo tank motor
vehicle has been designed, constructed,
and tested in accordance with the
applicable Specification DOT 406, DOT
407 or DOT 412 (§§ 178.345, 178.346,
178.347, 178.348) cargo tank
requirements and, when applicable,
with Section VIII of the ASME Code
(IBR, see § 171.7 of this subchapter). The
certification shall be accomplished by
marking the cargo tank as prescribed in
paragraphs (b) and (c) of this section,
and by preparing the certificate
prescribed in § 178.345–15. Metal plates
prescribed by paragraphs (b), (c), (d),
and (e) of this section must be
permanently attached to the cargo tank
or its integral supporting structure by
brazing, welding, or other suitable
means. These plates must be affixed on
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the left side of the vehicle near the front
of the cargo tank (or the front most cargo
tank of a multi-cargo tank motor
vehicle), in a place readily accessible for
inspection. The plates must be
permanently and plainly marked in
English by stamping, embossing, or
other means in characters at least 3/16
inch high. If the information required by
this section is displayed on a name
plate, the information need not be
repeated on the specification plate. The
information required by paragraphs (b)
and (c) of this section may be combined
on one plate.
(b) * * *
(3) Cargo tank MAWP in psig.
*
*
*
*
*
(c) * * *
(6) Maximum loading rate in gallons
per minute (Max. Load rate, GPM).
‘‘NONE’’ may be used to indicate no
limit.
(7) Maximum unloading rate in
gallons per minute (Max. Unload rate).
‘‘OPEN MH’’ or ‘‘NONE’’ may be used
to indicate no limit.
*
*
*
*
*
(d) Multi-cargo tank motor vehicle.
For a multi-cargo tank motor vehicle
having all its cargo tanks not separated
by any void, the information required by
paragraphs (b) and (c) of this section
may be combined on one specification
plate. When separated by a void, each
cargo tank must have an individual
name plate as required in paragraph (b)
of this section, unless all cargo tanks are
made by the same manufacturer using
the same design type, as defined in
§ 178.320. The cargo tank motor vehicle
may have a combined name plate and
specification plate. When only one plate
is used, the plate must be visible and
not covered by insulation. The required
information must be listed on the plate
from front to rear in the order of the
corresponding cargo tank location.
*
*
*
*
*
■ 83. In § 178.345–15, revise paragraphs
(a), (b)(1), and (e) to read as follows:
§ 178.345–15
Certification.
(a) At or before the time of delivery,
the cargo tank motor vehicle
manufacturer must supply and the
owner must obtain, a cargo tank’s ASME
Form U–1A data report as required by
Section VIII of the ASME Code (IBR, see
§ 171.7 of this subchapter), and a
Certificate of Compliance stating that
the completed cargo tank motor vehicle
conforms in all respects to the DOT
specification and the ASME Code. The
registration numbers of the
manufacturer, the Design Certifying
Engineer, and the Registered Inspector,
as appropriate, must appear on the
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85671
certificates (see subpart F, part 107 in
subchapter A of this chapter).
(b) * * *
(1) For each design type, the
Certificate of Compliance must be
signed by an official of the manufacturer
responsible for compliance and a Design
Certifying Engineer; and
*
*
*
*
*
(e) Specification shortages. When a
cargo tank motor vehicle is
manufactured in two or more stages, the
manufacturer of the cargo tank must
attach the name plate and specification
plate as required by §§ 178.345–14(b)
and (c) without the original date of
certification stamped on the
specification plate. Prior manufacturers
must list the specification requirements
that are not completed on the Certificate
of Compliance. When the cargo tank
motor vehicle is brought into full
compliance with the applicable
specification, the Registered Inspector
shall stamp the date of certification on
the specification plate and issue a
Certificate of Compliance to the owner
of the cargo tank motor vehicle. The
Certificate of Compliance must list the
actions taken to bring the cargo tank
motor vehicle into compliance. In
addition, the certificate must include
the date of compliance and person
(manufacturer, carrier, or repair
organization) accomplishing
compliance.
■ 84. In § 178.348–1, revise paragraphs
(d) and (e) to read as follows:
§ 178.348–1
*
General requirements.
*
*
*
*
(d) A cargo tank motor vehicle built
to this specification with a MAWP
greater than 15 psig must be constructed
and certified in accordance with Section
VIII of the ASME Code (IBR, see § 171.7
of this subchapter).
(e) A cargo tank motor vehicle built to
this specification with a MAWP of 15
psig or less must be constructed in
accordance with Section VIII of the
ASME Code except as modified herein:
(1) The recordkeeping requirements
contained in Section VIII of the ASME
Code do not apply. Parts UG–90 through
94 in Section VIII do not apply.
Inspection and certification must be
made by an inspector registered in
accordance with subpart F of part 107.
(2) Loadings must be as prescribed in
§ 178.345–3 of this part.
(3) The knuckle radius of flanged
heads must be at least three times the
material thickness, and in no case less
than 0.5 inch. Stuffed (inserted) heads
may be attached to the shell by a fillet
weld. The knuckle radius and dish
radius versus diameter limitations of
UG–32 do not apply for cargo tank
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motor vehicles with a MAWP of 15 psig
or less. Shell sections of cargo tanks
designed with a non-circular cross
section need not be given a preliminary
curvature, as prescribed in UG–79(b).
(4) Marking, certification, data
reports, and name plates must be as
prescribed in §§ 178.345–14 and
178.345–15.
(5) Manhole closure assemblies must
conform to § 178.345–5.
(6) Pressure relief devices must be as
prescribed in § 178.348–4.
(7) The hydrostatic or pneumatic test
must be as prescribed in § 178.348–5.
(8) The following paragraphs in parts
UG and UW in Section VIII of the ASME
Code do not apply: UG–11, UG–12, UG–
22(g), UG–32(e), UG–34, UG–35, UG–44,
UG–76, UG–77, UG–80, UG–81, UG–96,
UG–97, UW–13(b)(2), UW–13.1(f), and
the dimensional requirements found in
Figure UW–13.1.
PART 179—SPECIFICATIONS FOR
TANK CARS
85. The authority citation for part 179
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128; 49 CFR
1.81 and 1.97.
86. In § 179.2:
a. Revise paragraphs (a) introductory
text, and (a)(2);
■ b. Add paragraphs (a)(4) and (a)(9);
and
■ c. Revise paragraph (a)(10).
The revisions and addition read as
follows:
■
■
lotter on DSK11XQN23PROD with PROPOSALS2
§ 179.2
Definitions and abbreviations.
(a) In addition to the definitions in
§§ 171.8 and 180.503 of this subchapter,
the following definitions apply to part
179:
*
*
*
*
*
(2) Approved means approval by a
Design Certifying Engineer registered in
accordance with part 107, subpart J.
*
*
*
*
*
(4) Component means service
equipment, safety systems, linings or
coatings, other elements specifically
required by this part, and any elements
used to achieve a performance standard
in this part.
*
*
*
*
*
(9) Tank car means a tank car tank
and all of its components.
(10) Tank car facility means an entity
that qualifies a tank car to ensure its
conformance to part 179 or part 180 of
this subchapter. A tank car facility must
register with PHMSA in accordance
with part 107, subpart J, of this chapter.
*
*
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*
*
■ 87. Revise § 179.3 to read as follows:
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§ 179.3
Design Approval.
(a) General. A Design Certifying
Engineer registered in accordance with
part 107, subpart J, must approve the
following as conforming with the
specifications in this part:
(1) Tank car designs, materials and
construction, and modifications; and
(2) Service equipment designs,
materials and construction, and
modifications.
(b) Procedure. The Design Certifying
Engineer must develop, maintain, and
adhere to a written procedure that
describes the process used to verify
conformance with this subchapter. This
procedure must be provided to a
representative of the Department upon
request. The procedure must include
acceptance and rejection criteria for
each element approved by the Design
Certifying Engineer.
(c) Approval. When the Design
Certifying Engineer determines such
tank cars or service equipment are in
compliance with the requirements of
this subchapter, the Design Certifying
Engineer will approve the design,
material and construction, or
modification.
(d) Documentation. Upon approval of
the design, material and construction, or
modification, the Design Certifying
Engineer shall generate and provide to
the tank car or service equipment owner
a Design Approval Certificate (see
§ 179.5). A Design Approval Certificate
certifies that the tank car or service
equipment fully conforms to all
requirements of the specification.
(1) A Design Approval Certificate
covers all tank cars or service
equipment built to an approved design,
material and construction, or
modification, provided the tank cars or
service equipment are identical.
(2) When ownership of a tank car is
transferred, the new owner must obtain
the Design Approval Certificate from the
previous owner or Design Certifying
Engineer for the tank car to remain in
service.
■ 88. Revise § 179.4 to read as follows:
§ 179.4
cars.
Changes in specifications for tank
(a) Proposed changes in or additions
to specifications for tanks must be
submitted to a Design Certifying
Engineer for review. Construction
should not be started until the
specification has been approved and a
special permit has been issued. When
proposing a new specification, the
applicant shall furnish information to
the Design Certifying Engineer to justify
a new specification. This data should
include the properties of the lading and
the method of loading and unloading.
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(b) The Design Certifying Engineer
will review the proposed specifications
at its earliest convenience and report its
recommendations on the approval or
disapproval of the specification to the
designer of the new tank car
specification. The recommendation will
be considered by the Department in
determining appropriate action.
■ 89. Revise § 179.5 to read as follows:
§ 179.5
Design Approval Certificate.
(a) General. Before a tank car is placed
in service, the Design Certifying
Engineer shall provide a Design
Approval Certificate to the tank car or
service equipment owner certifying that
the tank or service equipment fully
conforms to all requirements of the
specification.
(b) Tank car information. The Design
Approval Certificate for tank cars must
include the following information, as
applicable:
(1) Name, registration number, phone
number, and mailing address of Design
Certifying Engineer;
(2) Approval date;
(3) Tank specification;
(4) Tank car specification;
(5) Reporting marks and numbers;
(6) Commodity;
(7) Commodity density (lbs. per
Gallon);
(8) Full water capacity (Gallons);
(9) Outage (Gallons);
(10) Tank head;
(i) Material type and grade heads;
(ii) Head material normalized
(Indicate Yes/No);
(iii) Tank head spliced (Indicate Yes/
No);
(iv) Head Charpy test value;
(v) Material thickness heads (Inches);
and
(vi) Head radius, main (Inches if not
2:1).
(11) Tank shell;
(i) Material type and grade shell;
(ii) Tank shell material normalized
(Indicate Yes/No);
(iii) Shell Charpy test value;
(iv) Material thickness shell (Inches);
(v) Inside diameter—center (Inches);
and
(vi) Inside diameter—end rings
(Inches).
(12) Coating/lining type and
thickness;
(13) Tank test pressure (PSI);
(14) Insulation material;
(i) Insulation type;
(ii) Insulation thickness (Inches); and
(iii) Thermal conductivity (BTU—in/
hr.—ft sq.—degree F).
(15) Thermal protection;
(i) Thermal protection material type;
(ii) Thermal protection material
thickness (Inches);
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(iii) Thermal protection material
conductivity (BTU—in/hr.—ft sq.—
degree F);
(iv) Jacket thickness; and
(v) Meets § 179.18 thermal protection
standard (Indicate Yes/No).
(16) Safety relief devices;
(i) Type of safety relief device;
(ii) Number of safety relief devices;
(iii) Pressure relief device start-todischarge (PSI);
(iv) Pressure relief device flow
capacity (CFM Required); and
(v) Pressure relief device flow
capacity (CFM Actual).
(17) Protective systems;
(i) Meets bottom fitting protection
standard (Indicate Yes/No);
(ii) Meets top fittings protection
standard (Indicate Yes/No); and
(iii) Meets tank head puncture
resistance standard (Indicate Yes/No);
(A) Head shield thickness (Inches);
and
(B) Head shield material type.
(18) Underframe or stub sill type; and
(19) Weight;
(i) Center of gravity loaded (Inches);
(ii) Estimated light weight (lbs.);
(iii) Rail load limit (lbs.); and
(iv) Truck capacity (Tons).
(20) Signed Certification Statement. A
certification shall not be considered
valid without a signature and certifying
statement by a registered Design
Certifying Engineer. The following
statement may be used for tank car
certifications:
‘‘I,______ [insert Design Certifying
Engineer name], have reviewed the
above design(s) for a DOT______[insert
DOT specification] tank car(s) and
certify compliance in all respects with
the specification requirements found in
49 CFR part 179.
________[Design Certifying Engineer
Signature]’’
(c) Tank Car Drawings. The Design
Approval Certificate must include the
following detailed design drawings for
tank cars:
(1) General arrangement;
(2) Tank arrangement;
(3) Reinforced openings, including
calculations;
(4) Anchorage, including calculations;
(5) Fittings arrangement;
(6) Manway assembly;
(7) Manway cover;
(8) Protective housing;
(9) Venting, loading, and discharge
valves;
(10) Pressure relief devices;
(11) Heater systems;
(12) Gauging devices;
(13) Bottom outlet valve;
(14) Design calculations;
(15) Gasket drawing; and
(16) Tank qualification drawing.
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(d) Service Equipment Information.
The Design Approval Certificate must
include the following information for
service equipment, as applicable:
(1) Description of device;
(i) Manufacturer;
(ii) Model; and
(iii) Design revision date.
(2) Approval date;
(3) Commodity;
(4) Construction;
(i) Material of construction;
(ii) Construction method; and
(iii) Seal material.
(5) Design operating temperature;
(6) Operating pressure range at design
temperature (PSI); and
(7) Signed Certification Statement. A
certification shall not be considered
valid without a signature and certifying
statement by a registered Design
Certifying Engineer. The following
statement may be used for service
equipment certifications:
‘‘I,______[insert Design Certifying
Engineer name], have reviewed the
above design for______[insert service
equipment make and model] and it
complies in all respects with the
requirements found in 49 CFR part 179.
________[Design Certifying Engineer
Signature]’’
(e) Service Equipment Drawings. The
Design Approval Certificate must
include the following detailed design
drawings for service equipment:
(1) Dimensional drawing;
(2) Securement drawing; and
(3) Design calculations.
(f) Service Equipment Validation. The
Design Approval Certificate must
include the following service equipment
validation reports:
(1) Life cycle testing results;
(2) Failure modes and effects analysis;
and
(3) Other applicable laboratory testing
results.
■ 90. Revise § 179.6 to read as follows:
§ 179.6
Repairs and alterations.
For procedures to make repairs or
alterations, see Appendix R of the AAR
Specifications for Tank Cars (IBR, see
§ 171.7 of this subchapter). Compliance
with paragraphs 1.1; 1.2; 3.2; 3.3; 3.4;
and 5.5 is not required. For all repairs
not specifically described in Appendix
R of the AAR Specifications for Tank
Cars, approval by a Design Certifying
Engineer is required.
■ 91. In § 179.7, revise paragraph (a)
introductory text, (a)(2), (b) introductory
text, (b)(3) through (5), (b)(8), (d) and (f)
to read as follows:
§ 179.7
Quality assurance program.
(a) A tank car facility must register
with PHMSA in accordance with part
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85673
107, subpart J, of this chapter. At a
minimum, each tank car facility shall
have a quality assurance program that—
*
*
*
*
*
(2) Has the means to detect any
nonconformity in the manufacturing,
inspection, testing, qualification, or
maintenance of the tank car; and
*
*
*
*
*
(b) At a minimum, the quality
assurance program must have the
following elements:
*
*
*
*
*
(3) Procedures to ensure that the latest
applicable drawings, design
calculations, specifications, and
instructions are used in manufacture,
inspection, testing, qualification and
maintenance.
(4) Procedures to ensure that all
materials and components used in the
fabrication and construction of a tank
car are properly identified and
documented, and meet applicable
design requirements.
(5) A description of the
manufacturing, inspection, testing, and
qualification and maintenance program,
including the acceptance criteria, so that
an inspector can identify the
characteristics of the tank car and the
elements to inspect, examine, and test at
each point.
*
*
*
*
*
(8) Provisions indicating that the
applicable requirements of the AAR
Specifications for Tank Cars (IBR, see
§ 171.7 of this subchapter), apply.
*
*
*
*
*
(d) Each tank car facility shall provide
written procedures to its employees to
ensure that the work on the tank car
conforms to the specification, approval,
and owner’s acceptance criteria.
*
*
*
*
*
(f) No tank car facility may
manufacture, inspect, test, qualify, or
maintain tank cars subject to
requirements of this subchapter, unless
it is operating in conformance with a
quality assurance program and written
procedures required by paragraphs (a)
and (b) of this section, and maintains a
valid tank car facility registration in
accordance with part 107, subpart J, of
this chapter.
■ 92. In § 179.10, add paragraph (b) to
read as follows:
§ 179.10
Tank mounting.
*
*
*
*
*
(b) Tank mounting arrangements must
meet the requirements of AAR
Specifications for Tank Cars Chapter 6
(IBR, see § 171.7 of this subchapter).
■ 93. In § 179.11, revise paragraph (a) to
read as follows:
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§ 179.11
Welding certification.
§ 179.100–9
§ 179.24
§ 179.100–10
Stamping.
(a) * * *
(2) Each plate must be stamped,
embossed, or otherwise marked by an
equally durable method in letters 3/16inch high with the following
information (parenthetical abbreviations
may be used):
(i) Tank Manufacturer (Tank MFG):
Full name of the car builder.
(ii) Tank Manufacturer’s Serial
Number (SERIAL NO): For the specific
car.
(iii) [Reserved]
(iv) Tank Specification
(SPECIFICATION).
(v) Tank Shell Material/Head Material
(SHELL MATL/HEAD MATL): ASTM or
AAR specification of the material used
in the construction of the tank shell and
heads. For Class DOT–113W, DOT–
115W, AAR–204W, and AAR–206W, the
materials used in the construction of the
outer tank shell and heads must be
listed. Only list the alloy (e.g., 5154) for
aluminum tanks and the type (e.g., 304L
or 316L) for stainless steel tanks.
(vi) Insulation Material (INSULATION
MATL): Generic names of the first and
second layer of any thermal protection/
insulation material applied.
(vii) Insulation Thickness
(INSULATION THICKNESS): In inches.
(viii) Underframe/Stub Sill Type (UF/
SS DESIGN)
(ix) Date of Manufacture (DATE OF
MFR): The month and year of tank
manufacture. If the underframe has a
different built date than the tank, show
both dates.
*
*
*
*
*
■ 95. In § 179.100–9, revise paragraph
(a) to read as follows:
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Welding.
(a) All joints shall be fusion-welded in
compliance with the requirements of
AAR Specifications for Tank Cars,
Appendix W (compliance with
paragraph 1.2 is not required) (IBR, see
§ 171.7 of this subchapter).
*
*
*
*
*
■ 96. In § 179.100–10, revise paragraph
(a) to read as follows:
(a) Welding procedures, welders, and
fabricators must meet the requirements
in AAR Specifications for Tank Cars
Appendix W (compliance with
paragraph 1.2 is not required) (IBR, see
§ 171.7 of this subchapter).
*
*
*
*
*
■ 94. In § 179.24:
■ a. Revise paragraph (a)(2); and
■ b. Remove and reserve paragraph
(a)(3)(i).
The revision reads as follows:
Postweld heat treatment.
(a) After welding is complete, steel
tanks and all attachments welded
thereto must be postweld heat treated as
a unit in compliance with the
requirements of AAR Specifications for
Tank Cars, Appendix W (compliance
with paragraph 1.2 is not required) (IBR,
see § 171.7 of this subchapter).
*
*
*
*
*
■ 97. In § 179.100–12, revise paragraph
(c) to read as follows:
§ 179.100–12 Manway nozzle, cover and
protective housing.
*
(c) Caulking of welded joints to stop
leaks developed during the foregoing
test is prohibited. Repairs in welded
joints shall be made as prescribed in
AAR Specifications for Tank Cars,
Appendix W (compliance with
paragraph 1.2 is not required) (IBR, see
§ 171.7 of this subchapter).
*
*
*
*
*
■ 99. In § 179.102–3, add paragraph (c)
to read as follows:
§ 179.102–3
inhalation.
Materials poisonous by
*
*
*
*
*
(c) For tank cars manufactured after
[DATE OF EFFECTIVE DATE], tank car
heads and shells must be Charpy impact
tested in accordance with AAR
Specifications for Tank Cars, Chapter 2,
section 2.2.1.2 (IBR, see § 171.7 of this
subchapter) and meet the requirements
of section 2.2.1.2.
■ 100. In § 179.103–5, revise paragraph
(b)(1) to read as follows:
§ 179.103–5
Bottom outlets.
*
*
*
*
(c) Except as provided in § 179.103,
protective housing of cast, forged, or
fabricated approved materials must be
bolted to manway cover with not less
than 20, 3⁄4-inch studs. Alternatively,
the protective housing may be bolted to
a flange connected to the manway
reinforcing pad with not less than 20,
3⁄4-inch studs. The shearing value of the
bolts attaching protective housing to
manway cover must not exceed 70
percent of the shearing value of bolts
attaching manway cover to manway
nozzle. Housing must have steel
sidewalls not less than 3⁄4 inch in
thickness and must be equipped with a
metal cover not less than 1⁄4 inch in
thickness that can be securely closed.
Housing cover must have suitable stop
to prevent cover striking loading and
unloading connections, and be hinged
on one side only with approved riveted
pin or rod with nuts and cotters.
Openings in wall of housing must be
equipped with screw plugs or other
closures.
■ 98. In § 179.100–18, revise paragraph
(c) to read as follows:
*
*
*
*
(b) * * *
(1) The extreme projection of the
bottom outlet equipment may not be
more than allowed by Appendix E of the
AAR Specifications for Tank Cars (IBR,
see § 171.7 of this subchapter). All
bottom outlet reducers and closures and
their attachments shall be secured to the
car by at least 3⁄8-inch chain, or its
equivalent, except that bottom outlet
closure plugs may be attached by 1⁄4inch chain. When the bottom outlet
closure is of the combination cap and
valve type, the pipe connection to the
valve shall be closed by a plug, cap, or
approved quick coupling device. The
bottom outlet equipment should include
only the valve, reducers, and closures
that are necessary for the attachment of
unloading fixtures. The permanent
attachment of supplementary exterior
fittings must be approved.
*
*
*
*
*
■ 101. In § 179.200–7, amend the table
in paragraph (b) by adding an entry for
‘‘ASTM A 537’’ to read as follows:
§ 179.100–18
*
*
*
*
Tests of tanks.
*
*
*
§ 179.200–7
Materials.
*
*
(b) * * *
*
Minimum
tensile
strength
(p.s.i.)
welded
condition 1
Specifications
ASTM A 537, Class 1 ........................................................................................................................................
*
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2 inches
(percent) weld
metal
(longitudinal)
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*
102. In § 179.200–10, revise paragraph
(a) to read as follows:
■
§ 179.200–10
Welding.
(a) All joints shall be fusion-welded in
compliance with the requirements of
AAR Specifications for Tank Cars,
Appendix W (compliance with
paragraph 1.2 is not required) (IBR, see
§ 171.7 of this subchapter).
*
*
*
*
*
■ 103. Revise § 179.200–11 to read as
follows:
§ 179.200–11
Postweld heat treatment.
When specified in § 179.201–1, after
welding is complete, postweld heat
treatment must be in compliance with
the requirements of AAR Specifications
for Tank Cars, Appendix W (compliance
with paragraph 1.2 is not required) (IBR,
see § 171.7 of this subchapter).
■ 104. In § 179.200–17, revise paragraph
(a)(1) to read as follows:
§ 179.200–17
Bottom outlets.
(a) * * *
(1) The extreme projection of the
bottom outlet equipment may not be
more than that allowed by Appendix E
of the AAR Specifications for Tank Cars
(IBR, see § 171.7 of this subchapter). All
bottom outlet reducers and closures and
their attachments shall be secured to the
car by at least 3⁄8-inch chain, or its
equivalent, except that the bottom outlet
closure plugs may be attached by 1⁄4inch chain. When the bottom outlet
closure is of the combination cap and
valve type, the pipe connection to the
valve shall be closed by a plug, cap, or
approved quick coupling device. The
bottom outlet equipment should include
only the valve, reducers, and closures
that are necessary for the attachment of
unloading fixtures. The permanent
attachment of supplementary exterior
fittings shall be approved.
*
*
*
*
*
■ 105. In § 179.200–22, revise paragraph
(d) to read as follows:
§ 179.200–22
Test of tanks.
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*
*
*
*
(d) Caulking of welded joints to stop
leaks developed during the foregoing
tests is prohibited. Repairs in welded
joints shall be made as prescribed in
AAR Specifications for Tank Cars,
Appendix W (compliance with
paragraph 1.2 is not required) (IBR, see
§ 171.7 of this subchapter).
■ 106. In § 179.220–10, revise paragraph
(a) to read as follows:
§ 179.220–10
Welding.
(a) All joints must be fusion welded
in compliance with AAR Specifications
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for Tank Cars, Appendix W (compliance
with paragraph 1.2 is not required) (IBR,
see § 171.7 of this subchapter).
*
*
*
*
*
■ 107. In § 179.220–11, revise paragraph
(b) to read as follows:
§ 179.220–11
Postweld heat treatment.
*
*
*
*
*
(b) Postweld heat treatment of the
cylindrical portions of the outer shell to
which the anchorage or draft sills are
attached must comply with AAR
Specifications for Tank Cars, Appendix
W (compliance with paragraph 1.2 is
not required) (IBR, see § 171.7 of this
subchapter).
*
*
*
*
*
■ 108. In § 179.220–15, revise paragraph
(b) to read as follows:
§ 179.220–15
container.
Support system for inner
*
*
*
*
*
(b) The longitudinal acceleration may
be reduced to 3G where a cushioning
device, which has been tested to
demonstrate its ability to limit body
forces to 400,000 pounds maximum at a
10 miles per hour impact, is used
between the coupler and the tank
structure. The support system must be
of approved design and the inner
container must be thermally isolated
from the outer shell to the best practical
extent. The inner container and outer
shell must be permanently bonded to
each other electrically either by the
support system used, piping, or a
separate electrical connection of
approved design.
■ 109. In § 179.220–18, revise paragraph
(a)(1) to read as follows:
§ 179.220–18
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Welding.
(a) Longitudinal joints must be fusion
welded. Head-to-shell joints must be
forge welded on class DOT–106A tanks
and fusion welded on class DOT–110A
tanks. Welding procedures, welders,
and fabricators must be in accordance
with the requirements of AAR
Specifications for Tank Cars, Appendix
W (compliance with paragraph 1.2 is
not required) (IBR, see § 171.7 of this
subchapter).
*
*
*
*
*
■ 111. Revise § 179.300–10 to read as
follows:
§ 179.300–10
Postweld heat treatment.
After welding is complete, steel tanks
and all attachments welded thereto,
must be postweld heat treated as a unit
in compliance with the requirements of
AAR Specifications for Tank Cars,
Appendix W (compliance with
paragraph 1.2 is not required) (IBR, see
§ 171.7 of this subchapter).
■ 112. In § 179.400–5, revise paragraph
(d) to read as follows:
§ 179.400–5
Materials.
*
*
*
*
*
(d) Impact test values must be equal
to or greater than those specified in
AAR Specifications for Tank Cars,
Appendix W (compliance with
paragraph 1.2 is not required) (IBR, see
§ 171.7 of this subchapter). The report of
impact tests must include the test values
and lateral expansion data.
■ 113. In § 179.400–6, revise paragraph
(b) to read as follows:
§ 179.400–6
pressure.
Bursting and buckling
*
Bottom outlets.
(a) * * *
(1) The extreme projection of the
bottom outlet equipment may not be
more than that allowed by Appendix E
of the AAR Specifications for Tank Cars
(IBR, see § 171.7 of this subchapter). All
bottom outlet reducers and closures and
their attachments shall be secured to car
by at least 3⁄8-inch chain, or its
equivalent, except that bottom outlet
closure plugs may be attached by 1⁄4inch chain. When the bottom outlet
closure is of the combination cap and
valve type, the pipe connection to the
valve shall be closed by a plug or cap.
The bottom outlet equipment should
include only the valve, reducers, and
closures that are necessary for the
attachment of unloading fixtures. The
permanent attachment of supplementary
exterior fittings shall be approved.
*
*
*
*
*
■ 110. In § 179.300–9, revise paragraph
(a) to read as follows:
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85675
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*
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*
(b) The outer jacket of the required
evacuated insulation system must be
designed in accordance with § 179.400–
8(d) and in addition must comply with
the design loads specified in Section
C—II, Chapter 6 of the AAR
Specifications for Freight Cars (IBR, see
§ 171.7 of this subchapter). The designs
and calculations must provide for the
loadings transferred to the outer jacket
through the support system.
■ 114. In § 179.400–11, revise paragraph
(c) to read as follows:
§ 179.400–11
*
Welding.
*
*
*
*
(c) Each joint must be welded in
accordance with the requirements of
AAR Specifications for Tank Cars,
Appendix W (compliance with
paragraph 1.2 is not required) (IBR, see
§ 171.7 of this subchapter).
*
*
*
*
*
■ 115. In § 179.400–12, revise paragraph
(b) introductory text to read as follows:
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Postweld heat treatment.
*
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*
*
(b) The cylindrical portion of the
outer jacket, with the exception of the
circumferential closing seams, must be
postweld heat treated as prescribed in
AAR Specifications for Tank Cars,
Appendix W (compliance with
paragraph 1.2 is not required) (IBR, see
§ 171.7 of this subchapter). Any item to
be welded to this portion of the outer
jacket must be attached before postweld
heat treatment. Welds securing the
following need not be postweld heat
treated when it is not practical due to
final assembly procedures:
*
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*
*
*
■ 116. In § 179.400–13, revise paragraph
(b) to read as follows:
§ 179.400–13
tank.
Support system for inner
*
*
*
*
(b) The support system must be
designed to support, without yielding,
impact loads producing accelerations of
the following magnitudes and directions
when the inner tank is fully loaded and
the car is equipped with a conventional
draft gear:
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*
119. In § 179.400–19, revise paragraph
(a)(2) to read as follows:
■
*
§ 179.400–19
Valves and gages.
(a) * * *
(2) Packing, if used, must be
satisfactory for use in contact with the
lading and of materials that will
effectively seal the valve stem without
causing difficulty of operation.
*
*
*
*
*
■ 120. In § 179.500–17, revise paragraph
(a)(4) to read as follows:
§ 179.500–17
Marking.
(a) * * *
(4) Name, mark (other than
trademark), or initials of company or
person for whose use the tank is being
made.
*
*
*
*
*
■ 121. In § 179.500–18:
■ a. Revise paragraphs (a) and (b)(6);
and
■ b. In the form in paragraph (c), revise
the sentence under the heading ‘‘Steel
Tanks’’.
The revisions read as follows:
§ 179.500–18
Inspection and reports.
(a) Before a tank car is placed in
Longitudinal .........................
7‘‘g’’
service, the party assembling the
Transverse ............................
3‘‘g’’
Vertical .................................
3‘‘g’’ completed car shall furnish to the car
owner a report in proper form certifying
The longitudinal acceleration may be
that tanks and their equipment comply
reduced to 3‘‘g’’ where a cushioning
with all the requirements of this
device, which has been tested to
specification and including information
demonstrate its ability to limit body
as to serial numbers, dates of tests, and
forces to 400,000 pounds maximum at
ownership marks on tanks mounted on
10 miles per hour, is used between the
car structure.
coupler and the tank structure.
(b) * * *
(6) Inspector shall stamp his official
*
*
*
*
*
mark on each accepted tank
■ 117. Revise § 179.400–15 to read as
immediately below serial number, and
follows:
make certified report (see paragraph (c)
§ 179.400–15 Radioscopy.
of this section) to builder, company, or
Each longitudinal and circumferential person for whose use tanks are being
joint of the inner tank, and each
made, and to builder of car structure on
longitudinal and circumferential double which tanks are to be mounted.
welded butt joint of the outer jacket,
(c) * * *
must be examined along its entire length
Steel
Tanks
in accordance with the requirements of
AAR Specifications for Tank Cars,
It is hereby certified that drawings
Appendix W (compliance with
were approved for these tanks by a
paragraph 1.2 is not required) (IBR, see
Design Certifying Engineer under date
§ 171.7 of this subchapter).
of ____. * * *
■ 118. In § 179.400–18, revise paragraph
*
*
*
*
*
(b) to read as follows:
■ 122. In Appendix B to part 179, revise
paragraphs 1., 2.a.(1), 2.a.(2), 2.b.(6),
§ 179.400–18 Test of inner tank.
3.a.(1), 3.a.(2), and 3.b.(6) to read as
*
*
*
*
*
follows:
(b) Caulking of welded joints to stop
Appendix B to Part 179—Procedures
leaks developed during the test is
for Simulated Pool and Torch-Fire
prohibited. Repairs to welded joints
Testing
must be made as prescribed in AAR
Specifications for Tank Cars, Appendix
1. This test procedure is designed to
W (compliance with paragraph 1.2 is
measure the thermal effects of new or untried
not required) (IBR, see § 171.7 of this
thermal protection systems, and to test for
subchapter).
system survivability when exposed to a 100-
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minute pool fire and a 30-minute torch fire.
Each sample of the thermal resistance
material used in the individual tests,
performed under the requirement of this
Appendix to test the performance of the
thermal protection system, shall be identical
(within errors of measurement) in thickness
dimensions, and thermodynamic and
physical properties, including mass density.
2. * * *
a. * * *
(1) The source of the simulated pool fire
must be hydrocarbon fuel with a flame
temperature of 871 °C plus or minus 55.6 °C
(1600 °F plus-or-minus 100 °F), measured
throughout the duration of the test at a
distance of not more than 15 cm (6 inches)
from the test sample surface along the axis
of the fire. Calibration tests must be
performed with the steel plate in position.
(2) A square bare plate with thermal
properties equivalent to the material of
construction of the tank car must be used.
The plate dimensions must be not less than
30.5 cm by 30.5 cm (one foot by one foot) by
nominal 1.6 cm (0.625 inch) thick. The bare
plate must be instrumented with not less
than nine thermocouples to record the
thermal response of the bare plate. The
thermocouples must be attached to the
surface not exposed to the simulated pool
fire, and must be divided into nine equal
squares with a thermocouple placed in the
center of each square.
*
*
*
*
*
b. * * *
(6) A minimum of three consecutive
successful simulation fire tests, separate and
conducted at different times, must be
performed for each thermal protection
system.
*
*
*
*
*
3. * * *
a. * * *
(1) The source of the simulated torch must
be a hydrocarbon fuel with a flame
temperature of 1,204 °C plus-or-minus 55.6
°C (2,200 °F plus or minus 100 °F), measured
throughout the duration of the test at a
distance of not more than 15 cm (6 inches)
from the test sample surface, along the axis
of the fire. Furthermore, torch velocities must
be 64.4 km/h ±16 km/h (40 mph ±10 mph)
throughout the duration of the test at a
distance of not more than 15 cm (6 inches)
from the test sample surface along the axis
of the fire. Calibration tests must be
performed with the steel plate in position.
(2) A square bare plate with thermal
properties equivalent to the material of
construction of the tank car must be used.
The plate dimensions must be at least 122 cm
by 122 cm (four feet by four feet) by nominal
1.6 cm (0.625 inch) thick. The bare plate
must be instrumented with not less than nine
thermocouples to record the thermal
response of the plate. The thermocouples
must be attached to the surface not exposed
to the simulated torch, and must be divided
into nine equal squares with a thermocouple
placed in the center of each square.
*
*
*
*
*
b. * * *
(6) A minimum of two consecutive
successful torch-simulation tests, separate
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
and conducted at different times, must be
performed for each thermal protection
system.
PART 180—CONTINUING
QUALIFICATION AND MAINTENANCE
OF PACKAGINGS
123. The authority citation for part
180 continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128; 49 CFR
1.81 and 1.97.
124. In § 180.3:
a. Revise paragraph (b)(3); and
b. Add paragraphs (c) and (d).
The revision and additions read as
follows:
■
■
■
§ 180.3
General requirements.
*
*
*
*
*
(b) * * *
(3) Test dates displayed in association
with specification, registration,
approval, exemption, or special permit
markings indicating conformance to a
test or retest requirement of this
subchapter, an approval issued
thereunder, or a special permit issued
under subchapter A of this chapter;
*
*
*
*
*
(c) No person shall mark or issue a
report indicating that a packaging has
passed a test or inspection under this
subpart, unless the packaging has
actually been tested or inspected as
required by this subpart.
(d) No person shall falsify a document
or marking indicating a packaging as
having passed a test or inspection under
this subpart.
■ 125. In § 180.403:
■ a. Add definitions for ‘‘certification
plate’’, ‘‘maintenance’’, ‘‘objectively
reasonable and articulable belief’’, and
‘‘set pressure’’ in alphabetical order; and
■ b. Revise the definition of ‘‘repair’’.
The revision and additions read as
follows:
§ 180.403
Definitions.
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*
*
*
*
*
Certification plate means a data plate
containing the applicable markings
provided in the original specifications
for cargo tanks no longer authorized for
construction (as identified in
§ 180.405(c)), and permanently attached
to the cargo tank or integral supporting
structure by the manufacturer. The
markings on this plate are the
certification by the manufacturer that
the cargo tank or the cargo tank motor
vehicle has been designed, constructed,
and tested in accordance with the
applicable specification.
*
*
*
*
*
Maintenance means replacement of
components other than welding on the
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cargo tank wall, on specification cargo
tanks or cargo tank motor vehicles.
*
*
*
*
*
Objectively reasonable and articulable
belief means a belief based on
particularized and identifiable facts that
provide an objective basis to believe or
suspect that a cargo tank or series of
cargo tanks may be in an unsafe
operating condition.
*
*
*
*
*
Repair means any welding on a cargo
tank wall, including replacing 50
percent or less of the combined shell
and head material of a cargo tank, done
to return a cargo tank or a cargo tank
motor vehicle to its original design and
construction specification, or to a
condition prescribed for a later
equivalent specification in effect at the
time of the repair. Excluded from this
category are the following:
(1) A change to motor vehicle
equipment such as lights, truck or
tractor power train components, steering
and brake systems, and suspension
parts, and changes to appurtenances,
such as fender attachments, lighting
brackets, and ladder brackets;
(2) Replacement of components such
as valves, vents, and fittings with a
component of a similar design and of
the same size; and
(3) Replacement of an appurtenance
by welding to a mounting pad.
*
*
*
*
*
Set pressure means the pressure of the
pressure relief device or system at
which it starts to open, allowing
discharge.
*
*
*
*
*
■ 126. In § 180.405:
■ a. Add paragraphs (b)(3);
■ b. Revise paragraphs (c)(2);
■ c. Add paragraphs (c)(3) and (4);
■ d. Revise paragraphs (h)(3), and (j);
and
■ e. Add paragraph (p).
The revisions and additions read as
follows:
§ 180.405
Qualification of cargo tanks.
*
*
*
*
*
(b) * * *
(3) Replacement of missing
specification plates. (i) The replacement
of cargo tank and cargo tank motor
vehicle specification plates required by
this subchapter may be performed by
the original manufacturer, or by a
Registered Inspector who has been given
necessary information by the original
cargo tank or cargo tank motor vehicle
manufacturer, provided the cargo tank
motor vehicle owner has the paperwork
documenting the traceability of the
specification of the cargo tank or cargo
tank motor vehicle.
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85677
(ii) If the original manufacturer has
been purchased by another entity, and
that entity has sufficient paperwork
documenting the manufacture of that
cargo tank or cargo tank motor vehicle,
the entity may apply a replacement
specification plate or provide
instructions to a Registered Inspector to
apply the replacement specification
plate.
(iii) If the original manufacturer is no
longer in business, or the paperwork
documenting the traceability of the
specification of the cargo tank or cargo
tank motor vehicle is not available, the
cargo tank or cargo tank motor vehicle
is no longer an authorized specification
packaging for hazardous materials
transportation. See § 180.405(j).
(iv) The cargo tank motor vehicle
owner shall retain, and make available
to a representative of the Department
upon request, all documentation
proving the traceability of the cargo tank
manufacturer or cargo tank motor
vehicle manufacturer, as applicable,
until the cargo tank or cargo tank motor
vehicle is permanently rendered no
longer capable of retaining lading, and
for one year thereafter.
(c) * * *
(2) A cargo tank motor vehicle of a
specification listed in paragraph (c)(1) of
this section may have its pressure relief
devices and outlets modified in
accordance with paragraph (h) of this
section and § 173.33(d) of this
subchapter.
(3) A cargo tank motor vehicle
manufactured and certified prior to the
dates listed in table 1 or table 2 of this
section may be mounted on a different
truck chassis provided the mounting
and certification is performed in
accordance with this subchapter.
*
*
*
*
*
(h) * * *
(3) As provided in paragraph (c)(2) of
this section, and in § 173.33(d) of this
subchapter, the owner of a cargo tank
motor vehicle may elect to modify
reclosing pressure relief devices to more
current cargo tank specifications.
However, replacement devices
constructed to the requirements of
§ 178.345–10 of this subchapter must
provide the minimum venting capacity
required by the original specification to
which the cargo tank was designed and
constructed.
*
*
*
*
*
(j) Withdrawal of certification. A
specification cargo tank that for any
reason no longer meets the applicable
specification may not be used to
transport hazardous materials unless the
cargo tank is repaired and retested in
accordance with §§ 180.407 and 180.413
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
prior to being returned to hazardous
materials service. If the cargo tank motor
vehicle is not in conformance with the
applicable specification requirements,
the specification plate must be removed,
obliterated, or securely covered. The
method of covering must withstand
conditions normally incident to
transportation. The details of the
conditions necessitating withdrawal of
the certification must be recorded and
signed on the Certificate of Compliance
for that cargo tank. The vehicle owner
shall retain the Certificate of
Compliance for at least one year after
withdrawal of the certification.
*
*
*
*
*
(p) Visual Inspection of Remote
Device. At the next external visual
inspection after [DATE OF EFFECTIVE
DATE], each specification cargo tank
motor vehicle equipped with a
mechanical means of remote closure
shall be inspected to ensure that access
or means of manual operation is not
obstructed by equipment or
appurtenances. The remote closure
device may not be in the driver’s cab
and must be as far forward on the cargo
tank as practicable. Any manually
operated remote closure device not in
compliance with this paragraph must be
repaired prior to passing the external
visual inspection.
■ 127. In § 180.407, revise paragraphs
(a), (b)(1), (b)(3), (b)(5), (c) introductory
text, (d), (f) introductory text, (f)(2),
(f)(3), (g)(1)(ii), (g)(1)(iii), (g)(1)(viii),
(g)(3), (g)(6), (h), (i)(4)(v), (i)(6)(i) and
(i)(6)(ii) to read as follows:
lotter on DSK11XQN23PROD with PROPOSALS2
§ 180.407 Requirements for test and
inspection of specification cargo tanks.
(a) General. (1) A cargo tank motor
vehicle constructed in accordance with
a DOT specification or otherwise
required by this subchapter to comply
with this subpart, for which a test or
inspection specified in this section has
become due, may not be filled and
offered for transportation or transported
until the test or inspection has been
successfully completed. This paragraph
does not apply to any cargo tank filled
prior to the test or inspection due date
and offered for transportation or
transported after the test or inspection
due date (see § 173.33(a)(3) of this
subchapter).
(2) Except during a pressure test, a
cargo tank may not be subjected to a
pressure greater than the design
pressure or MAWP marked on the name
plate or certification plate.
(3) A person witnessing or performing
a test or inspection specified in this
section must meet the minimum
qualifications prescribed in § 180.409.
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(4) Each cargo tank must be evaluated
in accordance with the acceptable
results of tests and inspections
prescribed in § 180.411.
(5) Each cargo tank motor vehicle that
has successfully passed a test or
inspection specified in this section must
be marked in accordance with
§ 180.415.
(6) A cargo tank motor vehicle that
has not been properly inspected or fails
a prescribed test or inspection must:
(i) Be repaired and retested in
accordance with § 180.413; or
(ii) Be removed from hazardous
materials service and the specification
plate removed, obliterated, or covered in
a secure manner. The method of
covering must at a minimum withstand
conditions normally incident to
transportation.
(7) All equipment and instruments
required to be used to perform a
function under part 180 subpart E must
be calibrated in accordance with the
manufacturer’s instructions. The facility
must retain records documenting the
type of calibration, date calibrated, and
who performed the calibration. The
facility must retain a copy of
documentation of the two most recent
calibrations, which must be made
available to a representative of the
Department upon request.
(8) The use of video cameras or fiber
optics equipment is authorized for any
test or inspection, or portion thereof,
provided all the required areas and
elements can be viewed and evaluated
according to this part 180 subpart E. The
use of such equipment shall be
documented on the report required by
§ 180.417.
(9) For any test or inspection that
requires a cargo tank motor vehicle to be
tested at a pressure greater than 50 psig,
the hydrostatic method shall be used,
except for MC 338 cargo tanks used to
transport cryogenic liquids. In all
pressure and leakage tests, suitable
safeguards must be provided to protect
personnel should a system failure occur.
(10) The Registered Inspector shall
consult with the owner or motor carrier,
as appropriate, to determine if materials
corrosive or reactive to the cargo tank or
its components were transported in the
cargo tank motor vehicle since the last
test or inspection was performed. The
Registered Inspector shall indicate
whether the cargo tank motor vehicle
transported a material corrosive or
reactive to the cargo tank or its
components on the § 180.415 report,
and use this information to determine
the proper tests and inspections to be
conducted on the cargo tank motor
vehicle.
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(11) For all tests or inspections subject
to this subpart, all sources of spark,
flame, or glowing heat within the area
of enclosure (including any heating
system drawing air therefrom) are
extinguished, made inoperable, or
rendered explosion-proof by a suitable
method prior to the tests or inspections
being performed.
(b) * * *
(1) The cargo tank shows evidence of
dents, cuts, gouges, bulges, corroded or
abraded areas, leakage, or any other
condition that might render it unsafe for
hazardous materials service. At a
minimum, any area of a cargo tank
showing evidence of dents, cuts, digs,
gouges, bulges, or corroded or abraded
areas must be thickness tested in
accordance with the procedures set
forth in paragraphs (i)(2), (i)(3), (i)(5),
(i)(6), (i)(9), and (i)(10) of this section;
and evaluated in accordance with the
criteria prescribed and minimum
thickness definition in §§ 178.320 and
180.411 of this subchapter, respectively.
Any signs of leakage must be repaired.
All repairs must be performed in
accordance with § 180.413. The
suitability of any repair affecting the
structural integrity of the cargo tank
must be determined either by the testing
required in the applicable
manufacturing specification or in
paragraph (g)(1)(iv) of this section.
*
*
*
*
*
(3) The cargo tank motor vehicle has
been out of hazardous materials
transportation service for a period of
one year or more. For each cargo tank
motor vehicle that has been out of
hazardous materials transportation
service for a period of one year or more,
a pressure test in accordance with
§ 180.407(g) must be conducted prior to
further use in hazardous materials
transportation.
*
*
*
*
*
(5) The Department so requires based
on the objectively reasonable and
articulable belief that the cargo tank is
in an unsafe operating condition.
(c) Periodic test and inspection. Each
cargo tank motor vehicle subject to this
subpart must be tested and inspected as
specified in the following table by a
Registered Inspector meeting the
qualifications in § 180.409. The retest
date shall be determined from the
specified interval identified in the
following table from the most recent
inspection completed in accordance
with the requirements in part 180 or the
cargo tank motor vehicle certification
date.
*
*
*
*
*
(d) External visual inspection and
testing. The following applies to the
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external visual inspection and testing of
cargo tanks:
(1) Where insulation, or coverings
such as wrappings and coatings,
precludes a complete external visual
inspection as required by paragraphs
(d)(2) through (d)(6) of this section, the
cargo tank also must be given an
internal visual inspection in accordance
with paragraph (e) of this section. If
external visual inspection is precluded
because any part of the cargo tank wall
is externally lined, coated, or designed
to prevent an external visual inspection,
those areas of the cargo tank must be
internally inspected. If internal visual
inspection is precluded because the
cargo tank is lined, coated, or designed
so as to prevent access for internal
inspection, the tank must be
hydrostatically or pneumatically tested
in accordance with paragraph (g)(1)(iv)
of this section. Those items able to be
externally inspected must be externally
inspected and noted in the inspection
report.
(2) The external visual inspection and
testing must include as a minimum the
following:
(i) The tank shell and heads must be
inspected for corroded or abraded areas,
dents, distortions, and defects in welds,
and evaluated in accordance with
§ 180.411. During the inspection of the
cargo tank shell and heads, all pad
attachments on either the cargo tank
shell or head shall be inspected for
method of attachments and any other
conditions that might render the
appurtenance as unsafe;
(ii) The piping system, which
includes piping, flexible connectors,
valves, and gaskets, must be carefully
inspected for corroded areas, defects in
welds, and other conditions, including
leakage, that might render the tank
unsafe for transportation service;
(iii) All devices for tightening
manhole covers must be operative and
there must be no evidence of leakage at
manhole covers or gaskets;
(iv) All emergency devices and valves,
including self-closing stop valves,
excess flow valves, and remote closure
devices, including all emergency
discharge control systems and delivery
hoses required by § 173.315(n), must be
inspected for corrosion, distortion,
erosion, and any external damage that
will prevent safe operation. All
emergency closure devices and selfclosing stop valves must be operated to
demonstrate proper functioning. The
distance for testing non-mechanical
remote shutoff devices must be in
accordance with the original device
manufacturer’s specification;
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(v) Missing bolts, nuts and fusible
links or elements must be replaced, and
loose bolts and nuts must be tightened;
(vi) All markings on the cargo tank
required by parts 172, 178, and 180 of
this subchapter must be legible;
(vii) [Reserved]
(viii) All appurtenances and structural
attachments on the cargo tank
including, but not limited to,
suspension system attachments,
connecting structures, and those
elements of the upper coupler
(including the king pin) assembly that
can be inspected without dismantling
the upper coupler assembly must be
inspected for any corrosion or damage
that might prevent safe operation;
(ix) For cargo tank motor vehicles
transporting lading corrosive to the
cargo tank, areas covered by the upper
coupler assembly must be inspected at
least once in each two-year period for
corroded and abraded areas, dents,
distortions, defects in welds, and any
other condition that might render the
tank unsafe for transportation service.
The upper coupler assembly must be
removed from the cargo tank for this
inspection except when the upper
coupler allows for a complete
inspection of the area of the cargo tank
that is directly above the upper coupler,
and the inspection is conducted by
directly viewing the cargo tank. Directly
viewing means the area is inspected
without the use of an aid, such as
mirrors, cameras, or fiber optics. If the
upper coupler is removed from the
cargo tank motor vehicle, it must be
reattached in accordance with the
manufacturer’s instructions and
§ 393.70.
(3) For reclosing pressure relief
devices, the following applies:
(i) All reclosing pressure relief
devices must be externally inspected for
any corrosion or damage that might
prevent safe operation.
(ii) All reclosing pressure relief
devices on cargo tank motor vehicles
carrying lading corrosive to the pressure
relief device must be removed from the
cargo tank motor vehicle for inspection
and bench testing in accordance with
paragraph (j) of this section.
(4) Ring stiffeners or appurtenances,
installed on cargo tank motor vehicles
constructed of mild steel or highstrength, low-alloy steel, that create air
cavities adjacent to the tank shell that
do not allow for external visual
inspection must be thickness tested in
accordance with paragraphs (i)(2) and
(i)(3) of this section, at least once every
two years. At least four symmetrically
distributed readings must be taken to
establish an average thickness for the
ring stiffener or appurtenance. If any
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85679
thickness reading is less than the
average thickness by more than 10
percent, thickness testing in accordance
with paragraphs (i)(2) and (i)(3) of this
section must be conducted from the
inside of the cargo tank on the area of
the tank wall covered by the ring
stiffener or appurtenance.
(5) Corroded or abraded areas of the
cargo tank wall must be thickness tested
in accordance with the procedures set
forth in paragraphs (i)(2), (i)(3), (i)(5),
(i)(6), (i)(9), and (i)(10) of this section.
(6) The gaskets on any full opening
rear head must be:
(i) Visually inspected for cracks or
splits caused by weather or wear; and
(ii) Replaced if cuts or cracks that are
likely to cause leakage, or are of a depth
1⁄2 inch or more, are found.
(7) External ring stiffeners installed on
cargo tank motor vehicles must be
inspected for corrosion, pitting, abraded
areas, or damage, and repaired as
appropriate.
(8) Welded repairs on the cargo tank
wall must be inspected for leakage and
weld defects. The Registered Inspector
must verify that the welded repair was
done in accordance with § 180.413.
(9) The inspector must record the
results of the external visual
examination as specified in
§ 180.417(b).
*
*
*
*
*
(f) Lining inspection. When lining is
required by this subchapter, the
integrity of the cargo tank lining must be
verified at least once each year as
follows:
*
*
*
*
*
(2) For linings made of materials other
than rubber (elastomeric material), the
owner of the cargo tank motor vehicle
must obtain documentation from the
lining manufacturer or installer that
specifies the proper procedure for the
lining inspection. This documentation
must be provided to the Registered
Inspector before inspection.
(3) Degraded or defective areas of the
cargo tank lining must be removed and
the cargo tank wall below the defect
must be inspected. Corroded areas of the
tank wall must be thickness tested in
accordance with paragraphs (i)(2), (i)(3),
(i)(5), (i)(6), (i)(9), and (i)(10) of this
section. If the degraded or defective
areas of the cargo tank lining are
repaired or if the lining is replaced, it
must comply with lining manufacturer
or installer procedures, subject to the
lining requirements of this subchapter.
*
*
*
*
*
(g) * * *
(1) * * *
(ii) All self-closing pressure relief
devices, including emergency relief
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devices and normal vent devices, must
be removed from the cargo tank motor
vehicle for inspection and bench testing
in accordance with paragraph (j) of this
section.
(iii) Except for cargo tank motor
vehicles carrying lading corrosive to the
cargo tank, areas covered by the upper
coupler assembly must be inspected for
corroded and abraded areas, dents,
distortions, defects in welds, and any
other condition that might render the
tank unsafe for transportation service.
The upper coupler assembly must be
removed from the cargo tank for this
inspection except when the upper
coupler allows for a complete
inspection of the area of the cargo tank
that is directly above the upper coupler,
and the inspection is conducted by
directly viewing the cargo tank. Directly
viewing means the area is inspected
without the use of an aid, such as
mirrors, cameras, or fiber optics. If the
upper coupler is removed from the
cargo tank, it must be reattached in
accordance with the manufacturer’s
instructions and § 393.70.
*
*
*
*
*
(viii) Hydrostatic test method. Each
cargo tank must be filled with water or
other liquid having similar viscosity, at
a temperature not exceeding 100 °F. The
cargo tank must then be pressurized as
specified in paragraph (g)(1)(iv) of this
section. The cargo tank, including its
closures, must hold the prescribed test
pressure for at least 10 minutes during
which time it shall be inspected for
leakage, bulging or any other defect.
*
*
*
*
*
(3) Each MC 330 and MC 331 cargo
tank constructed of quenched and
tempered steel in accordance with Part
UHT in Section VIII of the ASME Code
(IBR, see § 171.7 of this subchapter), or
constructed of other than quenched and
tempered steel but without postweld
heat treatment, and used for the
transportation of anhydrous ammonia or
any other hazardous materials that may
cause corrosion stress cracking, must be
internally inspected by the wet
fluorescent magnetic particle method
immediately prior to and in conjunction
with the performance of the pressure
test prescribed in this section. Each MC
330 and MC 331 cargo tank constructed
of quenched and tempered steel in
accordance with Part UHT in Section
VIII of the ASME Code and used for the
transportation of liquefied petroleum
gas must be internally inspected by the
wet fluorescent magnetic particle
method immediately prior to and in
conjunction with the performance of the
pressure test prescribed in this section.
The wet fluorescent magnetic particle
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inspection must be in accordance with
Section V of the ASME Code and CGA
Technical Bulletin P–26 (formerly TB–
2) (IBR, see § 171.7 of this subchapter).
This paragraph does not apply to cargo
tanks that do not have manholes. (See
§ 180.417(c) for reporting requirements.)
*
*
*
*
*
(6) Acceptance criteria. A cargo tank
motor vehicle that leaks, fails to retain
test pressure, shows distortion, or
displays other evidence of weakness
that might render the cargo tank motor
vehicle unsafe for transportation service
may not be returned to service, except
as follows: A cargo tank motor vehicle
with a heating system that does not hold
pressure may remain in service as an
unheated cargo tank motor vehicle if:
*
*
*
*
*
(h) Leakage test. The following
requirements apply to cargo tanks
requiring a leakage test:
(1) Each cargo tank must be tested for
leaks in accordance with paragraph (c)
of this section. The leakage test must
include all components of the cargo
tank wall, and the piping system with
all valves and pressure relief devices in
place and operative, except that any
pressure relief devices set to discharge
at less than the leakage test pressure
must be removed or rendered
inoperative during the test. All internal
or external self-closing stop valves must
be tested for leak tightness. Each cargo
tank of a multi-cargo tank motor vehicle
must be tested with adjacent cargo tanks
empty and at atmospheric pressure. Test
pressure must be maintained for at least
five minutes. Cargo tanks in liquefied
compressed gas service must be
externally inspected for leaks during the
leakage test. Suitable safeguards must be
provided to protect personnel should a
failure occur. Cargo tanks may be
leakage tested with hazardous materials
contained in the cargo tank during the
test. Leakage test pressure must be no
less than 80 percent of MAWP marked
on the specification plate except as
follows:
(i) A cargo tank motor vehicle with an
MAWP of 690 kPa (100 psig) or more
may be leakage tested at its maximum
normal operating pressure provided it is
in dedicated service or services.
(ii) A specification MC 330 or MC 331
cargo tank motor vehicle or a nonspecification cargo tank motor vehicle
authorized under § 173.315(k) of this
subchapter in dedicated liquefied
petroleum gas service may be leakage
tested at not less than 414 kPa (60 psig).
(iii) An operator of a specification MC
330 or MC 331 cargo tank motor vehicle,
or a non-specification cargo tank
authorized under § 173.315(k) of this
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subchapter, equipped with a meter may
check leak tightness of the internal selfclosing stop valve by conducting a
meter creep test. (See Appendix B to
this part.).
(iv) A specification MC 330 or MC 331
cargo tank motor vehicle in dedicated
service for anhydrous ammonia may be
leakage tested at not less than 414 kPa
(60 psig).
(v) A non-specification cargo tank
required by § 173.8(d) of this subchapter
to be leakage tested must be leakage
tested at not less than 16.6 kPa (2.4
psig), or as specified in paragraph (h)(2)
of this section.
(2) Cargo tank motor vehicles used to
transport petroleum distillate fuels that
are equipped with vapor collection
equipment may be leak tested in
accordance with the Environmental
Protection Agency’s ‘‘Method 27—
Determination of Vapor Tightness of
Gasoline Delivery Tank Using PressureVacuum Test,’’ as set forth in Appendix
A to 40 CFR part 60. Test methods and
procedures, and maximum allowable
pressure and vacuum changes, are in 40
CFR 63.425(e). The hydrostatic test
alternative, using liquid in
Environmental Protection Agency’s
‘‘Method 27—Determination of Vapor
Tightness of Gasoline Delivery Tank
Using Pressure-Vacuum Test,’’ may not
be used to satisfy the leak testing
requirements of this paragraph. The test
must be conducted using air.
(3) A cargo tank motor vehicle that
has leaks or fails to retain leakage test
pressure may not be returned to service
until repaired as required by this
subpart.
(4) Registered Inspectors conducting a
leakage test on specification MC 330
and MC 331 cargo tank motor vehicles,
and non-specification cargo tank motor
vehicles authorized under § 173.315(k)
of this subchapter, must visually inspect
the delivery hose assembly and piping
system, including any delivery hose
assembly used to meet § 173.315(n),
while the assembly is under leakage test
pressure utilizing the rejection criteria
listed in § 180.416(g). The test pressure
of the delivery hose assembly must be
at least 80 percent of the MAWP of the
cargo tank. Delivery hose assemblies not
permanently attached to the cargo tank
motor vehicle may be inspected and
tested while not attached to the cargo
tank motor vehicle. In addition to a
written record of the inspection
prepared in accordance with
§ 180.417(b), the Registered Inspector
conducting the test must note the hose
identification number, the date of the
test, and the condition of the hose
assembly and piping system tested.
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(5) The inspector must record the
results of the leakage test as specified in
§ 180.417(b).
(i) * * *
(4) * * *
(v) Areas around shell reinforcements
including around all ring stiffeners and
those areas in the bottom half of the
cargo tank;
*
*
*
*
*
(6) * * *
(i) A Design Certifying Engineer must
certify that the cargo tank design and
thickness are appropriate for the
reduced loading conditions by issuance
of a revised manufacturer’s certificate.
The DCE must provide this revised
certificate to the cargo tank motor
vehicle owner, and
(ii) The cargo tank motor vehicle’s
name plate or certification plate must
reflect the revised service limits.
*
*
*
*
*
■ 128. In § 180.409:
■ a. Revise paragraph (a) introductory
text; and
■ b. Add paragraph (a)(4).
The revision and addition read as
follows:
§ 180.409 Minimum qualifications for
inspectors and testers.
(a) A person performing or witnessing
the inspections and tests specified in
this subpart must—
*
*
*
*
*
(4) Meet the training requirements of
part 172 subpart H.
*
*
*
*
*
■ 129. In § 180.411:
■ a. Revise paragraphs (b) introductory
text, (b)(1), and (g) introductory text;
and
■ b. Add paragraph (h).
The revisions and addition read as
follows:
§ 180.411 Acceptable results of tests and
inspections.
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*
*
*
*
*
(b) Dents, cuts, digs, bulges, and
gouges. For evaluation procedures, see
CGA C–6 (IBR, see § 171.7 of this
subchapter).
(1) For dents or bulges at welds or that
include a weld, the maximum allowable
depth is 1⁄2 inch. For dents or bulges
away from welds, the maximum
allowable depth is 1⁄10 of the greatest
dimension of the dent, but in no case
may the depth exceed one inch.
*
*
*
*
*
(g) Pressure test. Any cargo tank that
fails to meet the acceptance criteria
found in the individual specification
that applies must be properly repaired.
(h) Conditions requiring removal from
service. (1) If the Registered Inspector
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determines that a cargo tank motor
vehicle, for any reason, does not meet
the applicable design specification, the
qualification requirements of § 180.405,
or fails any test or inspection required
by this subpart, it may not be
represented as a DOT specification
cargo tank motor vehicle.
(2) The cargo tank motor vehicle shall
not be used in specification service until
it is in compliance with the
specification requirements and has been
successfully tested and inspected as
required by § 180.407(c) of this subpart.
■ 130. In § 180.413, revise paragraph
(b)(6) to read as follows:
§ 180.413 Repair, modification, stretching,
rebarrelling, or mounting of specification
cargo tanks.
*
*
*
*
*
(b) * * *
(6) MC 330 and MC 331 cargo tanks
must be repaired in accordance with the
repair procedures described in CGA
Technical Bulletin P–26 (formerly TB–
2) (IBR, see § 171.7 of this subchapter)
and the National Board Inspection Code
(IBR, see § 171.7 of this subchapter).
Each cargo tank having cracks or other
defects requiring welded repairs must
meet all inspection, test, and heat
treatment requirements in § 178.337–16
of this subchapter in effect at the time
of the repair, except that postweld heat
treatment after minor weld repairs is not
required. When a repair is made of
defects revealed by the wet fluorescent
magnetic particle inspection, including
those repaired by grinding, the affected
area of the cargo tank must again be
examined by the wet fluorescent
magnetic particle method after
hydrostatic testing to assure that all
defects have been removed.
*
*
*
*
*
■ 131. In § 180.415, revise paragraph (b)
introductory text to read as follows:
§ 180.415
Test and inspection markings.
*
*
*
*
*
(b) Each cargo tank must be durably
and legibly marked, in English, with the
date (month and year), the type of test
or inspection performed, and if not
already marked on the cargo tank, the
registration number, as required by part
107, subpart F, of this chapter, of the
person performing the test or
inspection, subject to the following
provisions:
*
*
*
*
*
■ 132. In § 180.416, revise paragraphs
(a), (b), (c), (f) introductory text, and
(f)(3) to read as follows:
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85681
§ 180.416 Discharge system inspection
and maintenance program for cargo tanks
transporting liquefied compressed gases.
(a) Applicability. This section is
applicable to an operator using
specification MC 330, MC 331, and nonspecification cargo tank motor vehicles
authorized under § 173.315(k) of this
subchapter for transportation of
liquefied compressed gases other than
carbon dioxide. Paragraphs (b), (c),
(d)(1), (d)(5), (e), (f), and (g)(1) of this
section, applicable to delivery hose
assemblies, apply only to hose
assemblies installed or carried on the
cargo tank.
(b) Hose identification. The operator
must assure that each delivery hose
assembly is permanently marked with a
unique identification number and
maximum working pressure.
(c) Post-delivery hose check. After
each unloading, the operator must
visually check that portion of the
delivery hose assembly deployed during
the unloading using the rejection
criteria identified in paragraph (g) of
this section.
*
*
*
*
*
(f) New or repaired delivery hose
assemblies. Each operator of a cargo
tank motor vehicle must ensure each
new and repaired delivery hose
assembly is tested at a minimum of 120
percent of the hose maximum working
pressure.
*
*
*
*
*
(3) The operator must complete a
record documenting the test and
inspection, including the date, the
signature of the inspector, the hose
owner, the hose identification number,
the date of original delivery hose
assembly and test, notes of any defects
observed and repairs made, and an
indication that the delivery hose
assembly passed or failed the tests and
inspections. A copy of each test and
inspection record must be retained by
the operator at its principal place of
business or where the vehicle is housed
or maintained until the next test of the
same type is successfully completed.
*
*
*
*
*
■ 133. In § 180.501, revise paragraph (b)
to read as follows:
§ 180.501
Applicability
*
*
*
*
*
(b) This subpart also establishes the
minimum acceptable framework for an
owner’s qualification and maintenance
program for tank cars and components.
Owners should follow this subpart in
developing their written procedures
(work instructions), as required under
§ 179.7(d), for use by tank car facility
employees. The owner’s qualification
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and maintenance program for each tank
car, or a fleet of tank cars, must identify
where to inspect, how to inspect, and
the acceptance criteria. Alternative
inspection and test procedures or
intervals based on a damage-tolerance
analysis or service reliability assessment
must be approved by the Associate
Administrator for Railroad Safety in
accordance with § 180.509(l). Tank car
facilities must incorporate the owner’s
qualification and maintenance program
in their quality assurance program, as
required under § 179.7(a)(2), (b)(3),
(b)(5), and (d).
*
*
*
*
*
■ 134. In § 180.503, revise the
definitions of ‘‘coating/lining owner’’,
‘‘maintenance’’, ‘‘modification’’, the first
sentence of ‘‘qualification’’, ‘‘service
equipment’’, ‘‘service equipment
owner’’, and ‘‘tank car owner’’ to read
as follows:
§ 180.503
Definitions.
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*
*
*
*
*
Coating/lining owner means the
person responsible for the development
or approval, and execution of the
qualification and maintenance program
for the coating/lining.
*
*
*
*
*
Maintenance means performance of
functions including repairs, necessary
and appropriate to ensure an inoperation tank car’s specification until
its next qualification.
Modification means any change to a
tank car that affects the Design Approval
Certificate prescribed in § 179.5 or the
certificate of construction for tank cars
manufactured prior to [DATE ONE
YEAR FROM EFFECTIVE DATE],
including an alteration prescribed in
§ 179.6, or conversion.
*
*
*
*
*
Qualification, as relevant to a tank
car, means the car and its components
conforms to the specification to which
it was designed, manufactured, or
modified to the requirements of this
subpart, to the approved design, and to
the owner’s acceptance criteria. * * *
*
*
*
*
*
Service equipment means pressure or
lading retaining equipment including
but not limited to:
(1) Pressure relief devices;
(2) Valves;
(3) Closures;
(4) Fittings;
(5) Manway covers;
(6) Fill-hole covers;
(7) Vents;
(8) Sampling equipment;
(9) Vacuum relief equipment;
(10) Devices used for measuring the
amount of lading and/or lading
temperature;
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(11) Devices used for flow restriction;
(12) Interior heating systems; or
(13) Other devices used for loading
and unloading (e.g., siphon pipe).
Service equipment owner means the
person responsible for the development
or approval, and execution of the
qualification and maintenance program
for the service equipment.
Tank car owner means the person
responsible for the development or
approval, and execution of the
qualification and maintenance program
for the tank car.
*
*
*
*
*
■ 135. In § 180.509, revise paragraphs
(i)(1) and (k)(2) to read as follows:
§ 180.509 Requirements for inspection and
test of specification tank cars.
*
*
*
*
*
(i) * * *
(1) At a minimum, the owner of an
internal coating or lining applied to
protect a tank used to transport a
material that is corrosive or reactive to
the tank must ensure an inspection
adequate enough to detect defects or
other conditions that could reduce the
design level of reliability and safety of
the tank is performed. In addition, the
owner of a coating or lining of tank cars
used to transport hazardous materials
corrosive or reactive to the tank must
ensure the lining complies with
§§ 173.24(b)(2) and (b)(3) of this
subchapter.
*
*
*
*
*
(k) * * *
(2) Service equipment, including
reclosing pressure relief devices and
interior heater systems, must conform to
the applicable provisions of Appendix D
of the AAR Specifications for Tank Cars
(IBR, see § 171.7 of this subchapter).
*
*
*
*
*
■ 136. In § 180.513, revise paragraph (b)
to read as follows:
§ 180.513 Repairs, alterations,
conversions, and modifications.
*
*
*
*
*
(b) Responsibilities of Tank Car
Facility. A tank car facility must obtain
the permission of the equipment owner
before performing work affecting
alteration, conversion, repair, or
qualification of the owner’s equipment.
For the purposes of qualification and
maintenance, the tank car facility must
use the written instructions furnished
by the owner and have written
confirmation from the owner allowing
the use of written instructions furnished
by the owner; or have written
confirmation from the owner allowing
the use of written instructions furnished
by another. A tank car facility must not
use, copy, distribute, forward, or
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Fmt 4701
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provide to another person the owner’s
confidential and proprietary written
instructions, procedures, manuals, and
records without the owner’s permission.
A tank car facility must report all work
performed to the owner. The tank car
facility must also report observed
damage, deterioration, failed
components, or non-compliant parts to
the owner. A tank car facility must
incorporate the owner’s qualification
and maintenance program into their
own Quality Assurance Program.
*
*
*
*
*
■ 137. In § 180.517:
■ a. Revise paragraphs (a) and (b)(8);
and
■ b. Add paragraph (b)(9).
The revisions and addition read as
follows:
§ 180.517 Reporting and record retention
requirements.
(a) Certification and representation.
Each owner of a specification tank car
must retain the Design Approval
Certificate or the certificate of
construction (AAR Form 4–2) for a
specification tank car manufactured
prior to [DATE ONE YEAR FROM
EFFECTIVE DATE] and related
qualification reports certifying that the
manufacture or maintenance of the
specification tank car identified in the
documents is in accordance with the
applicable specification. The
qualification reports generated by the
tank car facility and the marking of the
tank car with the tank specification is
the representation that all of the
appropriate inspections and tests were
successfully performed to qualify the
tank for use in accordance with the
current Design Approval Certificate or
certificate of construction (AAR Form
4–2), as appropriate. These documents
must be maintained for the life of the
tank car. Each owner of a specification
tank car must retain the documents
throughout the period of ownership of
the specification tank car and for one
year thereafter. Upon a change of
ownership, the Design Approval
Certificate or certificate of construction
(AAR Form 4–2), as applicable, and all
applicable documents as prescribed in
Section 1.3.15 of the AAR Specifications
for Tank Cars (IBR, see § 171.7 of this
subchapter) must be provided to the
new tank car owner. A tank car facility
performing work on the car may retain
copies of relevant records in accordance
with § 179.7(b)(12).
(b) * * *
(8) The unique code (station stencil)
identifying the facility; and
(9) Tank car facility registration
number(s) (see § 107.905 of this
chapter).
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
138. In Appendix D to part 180, revise
the second paragraph to read as follows:
■
Appendix D to Part 180—Hazardous
Materials Corrosive to Tanks or Service
Equipment
*
*
*
*
*
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While every effort was made to identify
materials deemed corrosive to the tank or
service equipment, owners and operators are
cautioned that this list may not be inclusive.
Tank car owners and operators are reminded
VerDate Sep<11>2014
18:14 Oct 25, 2024
Jkt 265001
of their duty to ensure that no in-service tank
will deteriorate below the specified
minimum thickness requirements in this
subchapter. See § 180.509(f)(3). In addition,
FRA states a tank car owner must designate
an internal coating or lining appropriately
based on its knowledge of the chemical and
not rely simply on this list. Regarding future
thickness tests, this list may also be modified
based on an analysis of the test results by the
car owner or the Department of
Transportation.
*
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*
*
Frm 00095
*
Fmt 4701
Issued in Washington, DC on October 4,
2024, under authority delegated in 49 CFR
part 1.97.
William S. Schoonover,
Associate Administrator for Hazardous
Materials Safety, Pipeline and Hazardous
Materials Safety Administration.
[FR Doc. 2024–23421 Filed 10–25–24; 8:45 am]
BILLING CODE 4910–60–P
*
Sfmt 9990
85683
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FEDERAL REGISTER
Vol. 89
Monday,
No. 208
October 28, 2024
Part III
Department of Commerce
lotter on DSK11XQN23PROD with PROPOSALS3
National Oceanic and Atmospheric Administration
50 CFR Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine
Mammals Incidental to the Port of Alaska Modernization Program Phase
2B: Cargo Terminals Replacement Project in Anchorage, Alaska; Proposed
Rule
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85686
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
the comment period, may not be
considered by NMFS. All comments
National Oceanic and Atmospheric
received are a part of the public record
Administration
and will generally be posted for public
viewing on https://www.regulations.gov
50 CFR Part 217
without change. All personal identifying
information (e.g., name, address, etc.),
[Docket No. 241018–0276]
confidential business information, or
RIN 0648–BM30
otherwise sensitive information
submitted voluntarily by the sender will
Takes of Marine Mammals Incidental to be publicly accessible. NMFS will
Specified Activities; Taking Marine
accept anonymous comments (enter ‘‘N/
Mammals Incidental to the Port of
A’’ in the required fields if you wish to
Alaska Modernization Program Phase
remain anonymous).
2B: Cargo Terminals Replacement
Electronic copies of the application
Project in Anchorage, Alaska
and supporting documents, as well as a
list of the references cited in this
AGENCY: National Marine Fisheries
document, may be obtained online at:
Service (NMFS), National Oceanic and
https://www.fisheries.noaa.gov/action/
Atmospheric Administration (NOAA),
incidental-take-authorization-portCommerce.
alaskas-construction-activities-portACTION: Proposed rule; request for
alaska-modernization. In case of
comments.
problems accessing these documents,
SUMMARY: NMFS received a request from please call the contact listed below.
the Don Young Port of Alaska (POA) for FOR FURTHER INFORMATION CONTACT: Cara
authorization to take marine mammals
Hotchkin, Office of Protected Resources,
incidental to the Cargo Terminals
NMFS, (301) 427–8401.
Replacement Project at the existing port SUPPLEMENTARY INFORMATION:
facility in Anchorage, Alaska over the
Purpose of Regulatory Action
course of 5 construction seasons (2026
through 2030). Pursuant to the Marine
These proposed regulations,
Mammal Protection Act (MMPA), NMFS promulgated under the authority of the
is proposing regulations setting forth
MMPA (16 U.S.C. 1361 et seq.), would
permissible methods of taking, other
provide a framework for authorizing the
means of effecting the least practicable
take of marine mammals incidental to
adverse impact on such marine mammal construction activities associated with
stocks (i.e., mitigation measures), and
the POA’s Modernization Program,
requirements pertaining to monitoring
including impact and vibratory pile
and reporting such takes and requests
driving.
comments on the proposed regulations.
NMFS received an application from
NMFS will consider public comments
the POA requesting 5-year regulations
prior to making any final decision on
and a letter of authorization issued
the promulgation of the requested
thereunder to take individuals of seven
MMPA regulations, and NMFS’s
species, comprising nine stocks of
responses to public comments will be
marine mammals by Level A harassment
summarized in the final notification of
and Level B harassment incidental to
our decision.
the POA’s activities. No serious injury
DATES: Comments and information must or mortality is anticipated or proposed
be received no later than November 27,
for authorization. Please see Background
2024.
below for definitions of harassment.
ADDRESSES: A plain language summary
Legal Authority for the Proposed Action
of this proposed rule is available at
Section 101(a)(5)(A) of the MMPA (16
https://www.regulations.gov/docket/
U.S.C. 1371(a)(5)(A)) directs the
NOAA-NMFS-2024-0030. You may
Secretary of Commerce to allow, upon
submit comments on this document,
identified by NOAA–NMFS–2024–0030, request, the incidental, but not
intentional taking of small numbers of
by the following method:
marine mammals by U.S. citizens who
• Electronic Submission: Submit all
engage in a specified activity (other than
electronic public comments via the
commercial fishing) within a specified
Federal e-Rulemaking Portal. Visit
geographical region for up to 5 years if,
https://www.regulations.gov and type
NOAA–NMFS–2024–0030 in the Search after notice and public comment, the
agency makes certain findings and
box. Click on the ‘‘Comment’’ icon,
promulgates regulations that set forth
complete the required fields, and enter
permissible methods of taking pursuant
or attach your comments.
to that activity and other means of
Instructions: Comments sent by any
effecting the ‘‘least practicable adverse
other method, to any other address or
impact’’ on the affected species or
individual, or received after the end of
lotter on DSK11XQN23PROD with PROPOSALS3
DEPARTMENT OF COMMERCE
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stocks and their habitat (see the
discussion below in the Proposed
Mitigation section), as well as
monitoring and reporting requirements.
Section 101(a)(5)(A) of the MMPA and
the implementing regulations at 50 CFR
part 216, subpart I provide the legal
basis for issuing this proposed rule
containing 5-year regulations and for
any subsequent Letters of Authorization
(LOAs).
Summary of Major Provisions Within
the Proposed Rule
Following is a summary of the major
provisions of this proposed rule
regarding POA’s activities. These
measures include:
• Prescribing permissible methods of
taking of small numbers of marine
mammals by Level A harassment and/or
Level B harassment incidental to the
Cargo Terminals Replacement Project;
• Required monitoring of the
construction areas to detect the presence
of marine mammals before beginning
construction activities;
• Establishment of shutdown zones
equivalent to the estimated Level B
harassment zone for beluga whales;
• Establishment of shutdown zones
equivalent to or greater than the
estimated Level A harassment zones for
other species;
• Bubble curtains required for all
impact and vibratory driving of
permanent (72-inch (in) (1.83 meter
(m))) piles in more than 3 m of water
depth in all months and for vibratory
driving of all temporary (24-in (0.61 m)
or 36-in (0.91 m)) and permanent (72-in)
piles between August and October;
• Soft start for impact pile driving to
allow marine mammals the opportunity
to leave the area prior to beginning
impact pile driving at full power; and
• Submittal of monitoring reports
including a summary of marine
mammal species and behavioral
observations, construction shutdowns or
delays, and construction work
completed.
Through adaptive management, the
proposed regulations would allow
NMFS Office of Protected Resources to
modify (e.g., remove, revise, or add to)
the existing mitigation, monitoring, or
reporting measures summarized above
and required by the LOA.
Background
The MMPA prohibits the ‘‘take’’ of
marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
(D) of the MMPA (16 U.S.C. 1361 et
seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon
request, the incidental, but not
intentional, taking of small numbers of
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region if certain findings
are made and either regulations are
promulgated or an incidental
harassment authorization is issued.
Authorization for incidental takings
shall be granted if NMFS finds that the
taking will have a negligible impact on
the species or stock(s) and will not have
an unmitigable adverse impact on the
availability of the species or stock(s) for
taking for subsistence uses (where
relevant). If such findings are made,
NMFS must prescribe the permissible
methods of taking and other ‘‘means of
effecting the least practicable adverse
impact’’ on the affected species or
stocks and their habitat, paying
particular attention to rookeries, mating
grounds, and areas of similar
significance, and on the availability of
the species or stocks for taking for
certain subsistence uses (referred to in
shorthand as ‘‘mitigation’’); and
requirements pertaining to the
monitoring and reporting of the takings
are set forth. The definitions of all
applicable MMPA statutory terms cited
above are included in the relevant
sections below.
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National Environmental Policy Act
To comply with the National
Environmental Policy Act of 1969
(NEPA; 42 U.S.C. 4321 et seq.) and
NOAA Administrative Order (NAO)
216–6A, NMFS must evaluate our
proposed action’s (i.e., promulgation of
regulations and subsequent issuance of
a LOA thereunder) and alternatives to
that action’s potential impacts on the
human environment.
Accordingly, NMFS has prepared an
Environmental Assessment (EA) to
evaluate the environmental impacts
associated with the issuance of the
proposed regulations and LOA. NMFS’
EA is available at https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-portalaskas-construction-activities-portalaska-modernization. We will review
all comments submitted in response to
this notice prior to concluding our
NEPA process or making a final
decision on this request.
Summary of Request
On January 3, 2023, NMFS received a
request from the POA for regulations
and a subsequent LOA to take marine
mammals incidental to construction
activities related to the POA
Modernization Program (PAMP) Phase
2B: Cargo Terminals Replacement (CTR)
at the POA in Anchorage, Alaska. NMFS
provided comments on the application
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on March 3, 2023, April 20, 2023, and
May 18, 2023. After POA submitted a
revised application on October 13, 2023,
and responded to additional questions
sent on December 20, 2023, we
determined the application was
adequate and complete on February 12,
2024.
On March 4, 2024, we published a
notice of receipt (NOR) of application in
the Federal Register (89 FR 15548),
requesting comments and information
during a 30-day public comment period
related to the POA’s request. We
received one comment letter from the
Center for Biological Diversity. NMFS
has reviewed all submitted material and
taken the information into consideration
during the drafting of this proposed
rule.
The POA’s request is for take of seven
species of marine mammals by Level B
harassment and for a subset of these
species, Level A harassment. Neither
POA nor NMFS expect serious injury or
mortality to result from the specified
activities. If promulgated, the
regulations would be effective for the
first 5 construction seasons (2026–
2030).
NMFS previously issued IHAs to the
POA for similar work (85 FR 19294,
April 6, 2020; 86 FR 50057, September
7, 2021; 89 FR 2832, January 14, 2024).
The POA complied with all the
requirements (e.g., mitigation,
monitoring, and reporting) of the
previous IHAs and information
regarding their monitoring results may
be found in the Effects of the Specified
Activity on Marine Mammals and their
Habitat and Estimated Take of Marine
Mammals sections of this proposed rule
and online at https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-constructionactivities.
Description of the Specified Activities
Overview
The POA, located on Knik Arm in
upper Cook Inlet, provides critical
infrastructure for the citizens of
Anchorage and a majority of the citizens
of Alaska. The POA was constructed
primarily in the 1960s and is currently
in poor condition and substantially past
its initial design life. The existing cargo
terminals T1, T2, and T3 are
deteriorating and in poor structural
condition and present safety and
security concerns for human health and
the economic stability of the state of
Alaska. The PAMP is designed to
replace the existing facilities with new
infrastructure incorporating modern
seismic codes over a 75-year design life.
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85687
PAMP Phase 2B includes the demolition
and replacement of terminals T1 and T2
and the partial demolition of T3. This
phase is expected to take approximately
6 years of in-water work to complete. If
promulgated, the regulations would be
effective for the first 5 construction
seasons (2026–2030).
In-water pile installation will include
both temporary (24-in (0.61 m) or 36-in
(0.91 m)) and permanent (72-in (1.83
m)) steel pipe piles by impact and
vibratory hammers. Removal of
temporary piles (24- or 35-in) and
existing structures (16-in (0.41 m) to 42in (1.07 m) steel pipe piles) would be
primarily by cutting; dead-pull and
vibratory extraction methods may also
be used. Existing piles may also be left
standing in their current positions. Inwater work associated with the project
would include installation of
approximately 275 permanent piles and
450 temporary piles and vibratory
extraction of approximately 46
temporary piles over the 5-year period.
Dates and Duration
The POA anticipates that in-water
construction activities associated with
this proposed rule would begin on April
1, 2026 and extend through November
30, 2030. In-water pile installation and
removal associated with the CTR project
is anticipated to take place over
approximately 689 hours on
approximately 337 nonconsecutive days
between the months of April and
November over the 5 year period (see
table 1 for estimated production rates
and durations). While the exact
sequence of demolition and
construction is uncertain, an estimated
schedule is shown in table 2. This
schedule is based on best available
information and is not intended to be a
limitation on the number of pile
installation or removal hours that may
occur in any given month.
The POA has presented the schedule
shown in table 2 using the best available
information derived from what is
known of the existing Cargo Terminals
site and the POA’s experience with
similar construction and demolition
projects. A typical construction season
at the POA extends from approximately
mid-April to mid-October (6 months)
and may include November. Exact dates
of ice-out in the spring and formation of
new ice in the fall vary from year to year
and cannot be predicted with accuracy.
In-water pile installation and removal
cannot occur during the winter months
when ice is present because of the
hazards associated with moving ice
floes that change directions four times a
day, preventing the use of tugs, barges,
workboats, and other vessels. Ice
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movement also prevents accurate
placement of piles.
While the POA plans to conduct as
much work as possible between April
and July, when there is lower Cook Inlet
beluga whale (CIBW; Delphinapterus
leucas) abundance (see the Description
of Marine Mammals in the Area of
Specified Activities section for details
on CIBW presence at the POA), frontloading of work is dependent on
construction sequencing. Construction
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sequencing requires that temporary
piles are installed as a template, then
larger permanent piles are installed, and
then the temporary piles are removed.
This required sequence plays out many
times, in this order, during the open
water construction season. It is not
possible to install all of the larger
permanent piles during the early season
and install temporary piles later in the
season; the larger and smaller piles must
be alternated. Exact project sequencing
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and installation and extraction methods
are at the discretion of the construction
crew. Construction dates may change
because of unexpected project delays,
ongoing construction activities in other
areas of the POA, timing of ice-out and
spring breakup, and other factors.
Therefore, the estimated schedule (table
2) reflects a realistic scenario for the
proposed project, but conditions on the
ground may result in slight changes to
this estimated schedule.
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...............................................................
Total ...............................................
1,036
565
161
310
771
450
46
275
Estimated number
of piles in the
water 1
................
................
86
................
..............................
Average
impact
duration
per pile
(minutes)
30
45
10
Average
vibratory
duration per pile
(minutes)
....................
....................
....................
5,743
Estimated
impact
strikes per
pile
700 hours
225 hours
35 hours
440 hours
Total duration of
removal or installation in water
(hours)
....................
2–4
2–4
0.5–3
Average
production
rate, piles
per day
(range)
337 days.
144.
15.
159.
Estimated
number of
days over 5
years
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............
............
4.3
4.3
24- or 36-in Temporary Pile Installation .............................
24- or 36-in Temporary Pile Removal ................................
72-in Permanent Pile Installation 4 ......................................
Year 5 total hours ...............................................................
12.9
............
............
12.9
12.9
............
............
12.9
5.7
............
............
5.7
12.9
............
............
12.9
15.8
............
............
15.8
Imp
8.3
6.0
0.8
1.5
7.8
5.5
0.8
1.5
15.9
13.0
2.3
0.7
7.3
5.0
0.8
1.5
8.6
6.0
0.8
1.8
Vib
-f--
Imp
Vip
8.6
6.0
0.8
1.8
7.3
5.0
0.8
1.5
15.9
13.0
2.3
0.7
7.8
5.5
0.8
1.5
12.9
............
............
12.9
8.3
6.0
1.5
1.5
Year 5—2030
12.9
............
............
12.9
Year 4—2029
5.7
............
............
5.7
Year 3—2028
12.9
............
............
12.9
Year 2—2027
15.8
............
............
15.8
12.9
............
............
12.9
12.9
............
............
12.9
4.3
............
............
4.3
12.9
............
............
12.9
15.8
............
............
15.8
Imp
Jul
8.3
6.0
1.5
1.5
8.3
6.0
0.8
1.5
15.8
13.0
2.3
0.5
7.3
5.0
0.8
1.5
8.6
6.0
0.8
1.8
Vib
11.5
............
............
11.5
12.9
............
............
12.9
4.3
............
............
4.3
12.9
............
............
12.9
12.9
............
............
12.9
Imp
Aug
8.1
6.0
0.8
1.3
7.8
5.5
0.8
1.5
15.0
13.0
1.5
0.5
7.3
5.0
0.8
1.5
8.3
6.0
0.8
1.5
Vib
Imp
Sep
11.5
............
............
11.5
11.5
............
............
11.5
4.3
............
............
4.3
11.5
............
............
11.5
12.9
............
............
12.9
Duration (hours of activity by month and year)
Year 1—2026
Jun
7.6
5.5
0.8
1.3
7.6
5.5
0.8
1.3
15.0
13.0
1.5
0.5
7.1
5.0
0.8
1.3
8.3
6.0
0.8
1.5
Vib
estimates assume a single hammer active at any time and therefore likely overestimates of actual time needed due to simultaneous pile installation and removal;
2 Impact pile installation;
3.8
2.5
0.8
0.5
4.1
2.5
0.8
0.8
7.9
6.5
0.8
0.7
4.6
3.0
0.8
0.8
4.1
2.5
0.8
0.8
Vib 3
May
-f--
1 Duration
7.2
Year 4 total hours ........................................................
5.7
Year 3 total hours ........................................................
............
............
7.2
............
............
5.7
24- or 36-in Temporary Pile Installation .............................
24- or 36-in Temporary Pile Removal ................................
72-in Permanent Pile Installation 4 ......................................
24- or 36-in Temporary Pile Installation .............................
24- or 36-in Temporary Pile Removal ................................
72-in Permanent Pile Installation 4 ......................................
7.2
Year 2 total hours ........................................................
............
............
7.2
7.2
Year 1 total hours ........................................................
24- or 36-in Temporary Pile Installation .............................
24- or 36-in Temporary Pile Removal ................................
72-in Permanent Pile Installation 4 ......................................
............
............
7.2
Imp 2
Apr
24- or 36-in Temporary Pile Installation .............................
24- or 36-in Temporary Pile Removal ................................
72-in Permanent Pile Installation 4 ......................................
Activity
11.5
............
............
11.5
11.5
............
............
11.5
4.3
............
............
4.3
11.5
............
............
11.5
12.9
............
............
12.9
Imp
Oct
TABLE 2—ESTIMATED TIMING AND DURATION (IN HOURS PER MONTH) OF PILE INSTALLATION AND REMOVAL ACTIVITIES 1
7.6
5.5
0.8
1.3
4.6
2.5
0.8
1.3
7.8
6.5
0.8
0.5
4.6
2.5
0.8
1.3
5.3
3.0
0.8
1.5
Vib
4.3
............
............
4.3
5.7
............
............
5.7
4.3
............
............
4.3
5.7
............
............
5.7
5.7
............
............
5.7
Imp
3.4
2
0.8
0.7
Vib
3.8
2.5
0.8
0.5
2.7
2
............
0.7
3.3
2
0.8
0.5
2.7
2
............
0.7
Nov
Note: cm = centimeter(s); 1—Piles installed above the mean lower low water line are considered ‘‘in the dry’’ (i.e., not in-water). It is anticipated that the permanent and temporary piles in the three bents nearest the
shore for all five trestles would be installed in the dry at low tide levels. An additional bent would be installed in the dry for the northernmost trestle of T1 and for the three trestles of T2. These piles are not considered
to have the potential for impact to marine mammals and are thus excluded from the following analyses.
24- or 36-in (61- or 91-cm) Steel pipe
24- or 36-in (61- or 91-cm) Steel pipe
72-in (182-cm) Steel pipe .....................
Pile size and type
Temporary pile installation ....................
Temporary pile removal ........................
Permanent pile installation ....................
Activity type
Total
estimated
number of
piles
TABLE 1—PILE INSTALLATION AND REMOVAL METHODS, ESTIMATED AMOUNTS, AND ESTIMATED DURATIONS FOR YEARS 1–5
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
85689
pile installation or extraction;
4 To account for piles driven in water less than 3m deep, NMFS has estimated approximately 0.5 unattenuated 72-in piles will be driven (approximately 43 minutes of impact driving and 5 minutes of vibratory driving)
each month. Numbers may not add exactly due to rounding.
3 Vibratory
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85690
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Specific Geographic Region
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The specific geographic region for this
action encompasses the land occupied
by the POA, as well as the shoreline and
waters extending from the POA across
Knik Arm, northeast towards Wasilla,
and southwest towards Fire Island and
the Little Susitna River delta (figure 1).
Northern Cook Inlet bifurcates into
Knik Arm to the north and Turnagain
Arm to the east. Knik Arm is generally
considered to begin at Point Woronzof,
7.4 km southwest of the POA. From
Point Woronzof, Knik Arm extends
about 48 km in a north-northeasterly
direction to the mouths of the
Matanuska and Knik rivers. At Cairn
Point, just northeast of the POA, Knik
Arm narrows to about 2.4 km before
widening to as much as 8 km at the tidal
flats northwest of Eagle Bay at the
mouth of Eagle River.
Knik Arm comprises narrow channels
flanked by large tidal flats composed of
sand, mud, or gravel, depending upon
location. Approximately 60 percent of
Knik Arm is exposed at Mean Lower
Low Water (MLLW). The intertidal
(tidally influenced) areas of Knik Arm
are mudflats, both vegetated and
unvegetated, which consist primarily of
fine, silt-sized glacial flour. Freshwater
sources often are glacially born waters,
which carry high suspended sediment
loads as well as a variety of metals such
as zinc, barium, mercury, and cadmium.
Surface waters in Cook Inlet typically
carry high silt and sediment loads,
particularly during summer, making
Knik Arm an extremely silty, turbid
waterbody with low visibility through
the water column. The Matanuska and
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Knik Rivers contribute the majority of
freshwater and suspended sediment into
Knik Arm during summer. Smaller
rivers and creeks also enter along the
sides of Knik Arm (U.S. Department of
Transportation and Port of Anchorage,
2008). During winter, sea, beach, and
river ice are dominant physical forces
within Cook Inlet and Knik Arm. In
upper Cook Inlet, sea ice generally
forms in October to November and
continues to develop through February
or March (Moore et al., 2000).
Tides in Cook Inlet are semidiurnal,
with two unequal high and low tides
per tidal day (tidal day = 24 hours, 50
minutes). Due to Knik Arm’s
predominantly shallow depths and
narrow widths, tides near Anchorage are
greater than those in the main body of
Cook Inlet. The tides at the POA have
a mean range of about 8 m, and the
maximum water level has been
measured at more than 12.5 m at the
Anchorage station (NMFS, 2015).
Currents throughout Cook Inlet are
strong and tidally periodic, with average
velocities ranging from 3 to 6 knots (5.6
to 11.1 kilometers (km)/hour (h))
(Sharma and Burrell, 1970). Maximum
current speeds in Knik Arm, observed
during spring ebb tide, exceed 7 knots
(13 km/h). These tides result in strong
currents in alternating directions
through Knik Arm and a well-mixed
water column. The navigation harbor at
the POA is a dredged basin in the
natural tidal flat. Sediment loads in
upper Cook Inlet can be high; spring
thaws occur, and accompanying river
discharges introduce considerable
amounts of sediment into the system
(Ebersole and Raad, 2004). Natural
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85691
sedimentation processes act to
continuously infill the dredged basin
each spring and summer.
The Municipality of Anchorage is
located in the lower reaches of Knik
Arm of upper Cook Inlet (see figure 2–
1 in the POA’s application). The POA
sits on the industrial waterfront of
Anchorage, just south of Cairn Point and
north of Ship Creek (lat. 61°15′ N, long.
149°52′ W; Seward Meridian) (figure 1).
The POA’s boundaries currently occupy
an area of approximately 0.52 km2
(figure 2). Other commercial and
industrial activities related to secured
maritime operations are located near the
POA on Alaska Railroad Corporation
property immediately south of the POA,
on approximately 0.45 km2 at a similar
elevation. The POA is located north of
Ship Creek, an area that experiences
concentrated marine mammal activity
during seasonal runs of several salmon
species. Ship Creek serves as an
important recreational fishing resource
and is stocked twice each summer. Ship
Creek flows into Knik Arm through the
Municipality of Anchorage industrial
area. Joint Base Elmendorf-Richardson
(JBER) is located east of the POA,
approximately 30.5 m higher in
elevation. The U.S. Army Defense Fuel
Support Point-Anchorage site is located
east of the POA, south of JBER, and
north of Alaska Railroad Corporation
property. The perpendicular distance to
the west bank directly across Knik Arm
from the POA is approximately 4.2 km.
The distance from the POA (east side)
to nearby Port MacKenzie (west side) is
approximately 4.9 km.
BILLING CODE 3510–22–P
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-•.• -~-•-CaigoT8f1rim•hi
t::!=:t~~~: -.
r
J)
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Figure 1 - Overview of POA Location in Knik Arm
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
85693
Port of Alaska Modernization
Program Phasei;;
-
Pllase1
Phase2A
Phase 2B
-
Phases 3. 4. & 5
BILLING CODE 3510–22–C
Detailed Description of the Specified
Activities
As discussed previously, marine-side
infrastructure and facilities at the POA
are in need of replacement because they
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are substantially past their design life
and in poor and deteriorating structural
condition. Those facilities include three
general cargo terminals, two petroleum
terminals, a dry barge landing, and an
upland sheet-pile-supported storage and
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work area. To address deficiencies, the
POA is modernizing its marine
terminals through the PAMP to enable
safe, reliable, and cost-effective Port
operations. The PAMP will support
infrastructure resilience in the event of
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Figure 2 - Overview of Cargo Terminals Location at POA
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a catastrophic natural disaster over a 75year design life.
The PAMP is critical to maintaining
food and fuel security for the state. At
the completion of the PAMP, the POA
will have modern, safe, resilient, and
efficient facilities through which more
than 90 percent of Alaskans will
continue to obtain food, supplies, tools,
vehicles, and fuel. The PAMP is divided
into five separate phases; these phases
are designed to include projects that
have independent utility yet streamline
agency permitting. The projects
associated with the PAMP include:
• Phase 1: Petroleum and Cement
Terminal (PCT Phase 1 and 2) and
South Floating Dock (SFD) replacement;
• Phase 2A: North Extension
Stabilization Phase 1 (NES1);
• Phase 2B: CTR;
• Phase 3: Petroleum, Oil and
Lubricants Terminal 2 Replacement;
• Phase 4: North Extension
Stabilization part 2; and
• Phase 5: Demolition of Terminal 3.
Phase 1 of the PAMP was completed
in 2022. NMFS issued IHAs for take
incidental to the now completed PCT
(Phase 1 and Phase 2; 85 FR 19294,
April 6, 2020) and SFD projects (86 FR
50057, September 7, 2021). Phase 2A of
the PAMP began in 2023; an IHA was
issued for phase one of the NES project
(89 FR 2832, January 14, 2024) and inwater construction associated with this
project is planned for 2024. The project
discussed herein, CTR, is Phase 2B of
the PAMP and is proposed to begin
onshore preparation in 2025 and inwater construction work in 2026.
The purpose of the CTR project is to
replace the existing general cargo docks.
It would address deteriorating
conditions of the existing cargo
facilities; improve operational safety
and efficiency; accommodate modern
(existing and future) shipping
operations; and improve the resiliency
of the POA to extreme seismic events,
all while sustaining ongoing cargo
operations. This project is urgently
needed due to severe corrosion of the
foundation piles and deteriorating
structural conditions at Terminals 1, 2,
and 3. The existing terminals are more
than 50 years old and suffer from severe
damage to the foundation piles caused
by corrosion and seismic forces. The
piles have exceeded their useful service
life, and multiple engineering
investigations have highlighted the
probability of wharf and trestle structure
failure during a future major seismic
event. The remaining service life of the
cargo terminals is unknown. These
facilities must be replaced with new
resilient terminals for the Port to
continue to meet its critical role serving
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Alaska’s general cargo needs as well as
supporting national defense and
military readiness capabilities.
The geographical isolation of Alaska
and the POA’s role as the containerized
logistic hub and distribution center for
much of the state make the cargo
terminals a critical lifeline for the
southcentral region and Alaska. There
are no other ports with the cargo
capacity, proximity to Alaska’s
population centers, and intermodal
transportation capabilities that can
support the logistic missions sustained
by the POA, including commerce,
national defense, and earthquake
resiliency/disaster response and
recovery.
CTR Project Activities
The CTR project includes
construction of new terminals T1 and
T2, which include planned wharves and
access trestles. The two new terminals
would be located 140 feet (ft) (42.7
meters (m)) seaward of the existing T1,
T2, and T3. It is anticipated that this
more seaward location of the new
terminals will reduce sedimentation,
improve room for handling of berthing
ships, and allow construction of the
new terminals while the existing
terminals remain in use. CTR also
includes demolition of the existing
Petroleum, Oil, and Lubricants Terminal
1 (POL1) and general cargo terminals
(T1, T2, and T3).
The southernmost end of the new T1
and T2 would be approximately 1.4 km
(0.9 mile (mi)) north of Ship Creek.
Construction of the Project will include
completion of the following
components:
• Component 1. Onshore ground
improvement shoreline stabilization
(2025)
• Component 2. Shoreline expansion
and protection (2026)
• Component 3. General cargo
terminals (new Terminals 1 and 2)
construction (2026–2031)
• Component 4. Demolition of
existing terminals (POL1 and general
cargo terminals (existing Terminals 1, 2,
and 3)) (2026–2031)
• Component 5. Onshore utilities and
storm drain outfall replacement (2030–
2031)
Of these activities, only Components
3 and 4 include construction work that
would occur in the water, and therefore,
these would be the only components of
the project expected to potentially
impact marine mammals.
Landside Activities
Landside activities include work
which takes place ‘‘in the dry,’’ either
above the high tide line or in the
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intertidal zone but de-watered. These
activities include shoreline stabilization
and protection as well as placement of
onshore utilities and decking
components.
Ground Improvement Shoreline
Stabilization—A ground improvement
technique, such as deep soil mixing
(DSM), or a similar technique would be
used to stabilize the shoreline. DSM and
similar techniques mechanically mix
weak soils with a cement binder causing
the soils to behave more like soft rock.
This process is used to create
foundations for buildings and roads and
is used in earthquake-prone areas to
prevent soil liquefaction. Soil
improvements at trestle abutments, and
potentially between the abutments, will
mitigate the potential for seismicinduced slope failure that could result
in catastrophic structural failure.
The first stage of construction would
include installation of soil
improvements in the five locations
where the access trestles meet the beach
to provide geotechnical stability to the
embankment. Centered at each of the
five trestle abutments, the ground
improvement technique would create
approximately 200- by 96-ft (61- by 29m) blocks of treated soil extending from
the surface to the top of the clay layer
approximately 85-ft (25.9-m) deep (see
figure 1–2 of the POA’s application).
The size of the block is designed to
create enough contact area with the clay
layer to restrain and significantly reduce
the overall ground movements of the
liquefiable soils surrounding the trestle
abutment. If deemed necessary for
geotechnical stability, ground
improvements would extend along the
embankment in areas between the
abutments.
During construction, a temporary soil
work pad would be constructed at each
of the five trestles to provide a level
temporary work surface. The ground
improvement panels/columns would
extend approximately 100 feet (ft) (30.5m) seaward and shoreward of the crest
of the slope and approximately 30 ft (9m) to either side of the trestle structure.
Temporary armoring will protect the
work pad from water forces while in
use. After completion of the ground
improvement work, the temporary
construction work pads will be removed
and the foreshore graded and armored.
Shoreline Expansion and Protection—
The existing shoreline behind the
existing Terminals 1, 2, and 3 is
irregular, with two areas where the
shoreline is located about 100 ft (30-m)
to the east of the typical shoreline (see
figure 1–3 of the POA’s application).
These areas would be excavated to
remove deposited silts before the areas
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are then filled with more dense, stable
materials such as clean gravel and rock.
The filled area would provide a
consistent shoreline and additional
container storage area.
Excavation for the CTR project would
be limited to removal of materials that
are above the high-water line or below
the high-water line in a dewatered state.
Sea-based dredging of materials under
water will not take place as part of this
project.
After ground improvement work and
shoreline expansion have been
completed, the slope along the shore
would be secured with armor stone
placed over the clean gravel and rock
fill. Placement of armor rock requires
good visibility of the shore as each rock
is placed carefully to interlock with
surrounding armor rock. It is therefore
anticipated that placement of most
armor rock, filter rock, and granular fill
will occur in the dry at low tide levels;
however, some placement of armor rock,
filter rock, and granular fill may occur
in shallow water (i.e., less than 3 m
deep). After placement of armor rock,
the top of the fill will be paved to match
the existing backland pavements.
Onshore utilities and storm drain
outfall replacement—The replacement
of onshore utilities will involve
construction on land and replacement of
utilities above the high tide line, on
land. Similarly, the storm drain outfall
replacement will involve construction
on land and replacement of four outfall
pipes above the high tide line. No inwater work is proposed as a part of this
component.
Ground improvement shoreline
stabilization, shoreline expansion and
protection, and onshore utilities and
storm drain outfall replacement
activities would take place on land or in
the dry. While a minimal amount of fill
and armor rock placement may occur in
water, this activity would not be
expected to impact marine mammals.
Therefore, take of marine mammals
related to these activities is not
anticipated or proposed to be
authorized, and it will not be
considered further in this proposed
rulemaking.
In-Water Construction
New terminals T1 and T2 would be
constructed as seismically resilient
adjoining terminals on a continuous
berthline with mooring features and
appurtenances as required to support
safe ship mooring for lift-on/lift-off and
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roll-on/roll-off related cargo handling
operations. The new T1 wharf would be
870 ft x 120 ft (265- x 37-m) with two
36-ft-wide (11-m) trestles of varying
length. The new T2 wharf would be 932
ft x 120 ft (284- x 37-m) with two 259ft- long x 54-ft-wide (79- x 16.5-m)
trestles and one 259-ft-long x 76-ft-wide
(79- x 23-m) trestle. Both T1 and T2
would be constructed using 48- and 72in-diameter (121- and 183-centimeter
(cm), respectively) steel piles. The 48in-diameter piles will be installed in the
dry.
Both new terminals would be
designed to accommodate lift-on/lift-off
container operations serviced by railmounted ship-to-shore cranes.
Structural, in-deck, and surface features
to support operational interface for three
100-gauge rail mounted gantry cranes,
and associated appurtenances along
with an on-terminal combination
stevedore-operations building, would be
included on the wharf. Additionally, T2
would be designed to support roll-on/
roll-off container operations and other
multi-purpose cargo functions. The
reinforced concrete deck structure for
both new terminals and all new access
trestles would be designed to 1,000
pound per square foot load capacity.
Construction would also include
installation of power, lighting,
communications, and signal
infrastructure to terminal and onshore
electrically powered features; potable
water service including ship’s water;
and fire-flow water for terminal-related
operations. The on-terminal stevedoreoperations building would also be
constructed with a connection to the
onshore, existing public utility
infrastructure.
In addition to these permanent
structures, temporary work including
temporary pile installation and removal
would be required to support
construction. Temporary piles would
likely be 36-in-diameter (91-cm) steel;
however, 24-in (61-cm) steel piles may
be used in place of some of the larger
temporary piles. Various work boats and
barges would be utilized and would be
moored at or in the immediate vicinity
of the project, but these vessels are not
expected to increase overall noise levels
at the POA above existing operational
levels. No thrusters or other dynamic
positioning methods will be used during
pile driving activities.
Construction of each terminal would
require installation and removal of
temporary steel pipe piles, including
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85695
template piles, and installation of
permanent steel pipe piles. Pile
installation would occur in water
depths that range from a few feet or dry
(dewatered) conditions nearest the shore
to approximately 20 meters (70 ft) at the
outer face of the wharves, depending on
tidal stage; the mean diurnal tide range
at the POA is approximately 8.0 meters
(26 ft; NOAA 2015).
Concurrent Activities—In-water
construction activities would occur at
multiple locations across the project site
simultaneously; the POA anticipates
that two ‘‘spreads’’ (a construction crew
with crane and pile driving hammer)
would be on site and working
throughout the construction season,
with a third ‘‘spread’’ present on some
days. Of the two regular spreads, one
would be designated for permanent (72in) piles and one for temporary (24-in or
36-in) piles. Each spread would operate
a single hammer at a time (impact or
vibratory), with no more than two
vibratory hammers simultaneously
active in-water at any given time. It is
not expected that three piles would be
driven concurrently, and this scenario is
not addressed further in this analysis.
The only combinations of vibratory
hammers that could be used
simultaneously would be for installation
of an attenuated (through use of a
bubble curtain; see Proposed Mitigation
later in this notice) 72-in pile and an
attenuated temporary pile, an attenuated
72-in pile and an unattenuated
temporary pile, or two temporary piles.
There would be no simultaneous
driving of unattenuated 72-in piles in
water. Simultaneous use of two
hammers would increase production
rates.
Duration of active hammer use is
anticipated to be brief each day (see
table 1), and it is, therefore, anticipated
that overlap in use of hammers would
be uncommon. Pile installation and
removal would occur intermittently
over the work period, for durations of
minutes to hours at a time. Use of two
simultaneous hammers would serve to
reduce the overall duration of in-water
pile installation and removal during
each construction season. One
construction crane would likely be
based on a floating work barge, and one
would likely be based on land or on an
access trestle. Table 3 provides a
summary of concurrent pile driving
scenarios.
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TABLE 3—POTENTIAL CONCURRENT DRIVING SCENARIOS THAT COULD OCCUR DURING CTR CONSTRUCTION
Equipment type and quantity
Pile type and size
Construction months
Vibratory × 2 ....................................
Vibratory, Impact ..............................
2 x 36-in steel pipe 1 .............................................................................
2 x 72-in steel pipe 2 OR 1 x 72-in steel pipe 2 (impact) and
1 x 36-in steel pipe (vibratory)
April–July.
April–November.
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1 POA may elect to use either 36-in or 24-in temporary piles; as 36-in piles are more likely and estimated to have larger ensonified areas, we
have used these piles in our analyses of concurrent activities;
2 All 72-in piles driven concurrently will be attenuated.
Pile Installation and Removal—
Vibratory and impact hammers would
be used for the installation of 72-in
(182-cm) permanent piles. Vibratory
hammers would be used for installation
and removal of 24- (61-cm) and or 36in (91-cm) temporary piles; however, if
obstructions are encountered during
installation, impact driving may be
necessary. Installation and removal of
piles in the dry would be maximized as
much as feasible, depending on
construction sequencing and tide
heights. However, the exact number of
piles that may be installed and removed
in the dry is unknown (see table 1 for
estimates and numbers of piles analyzed
for in-water construction activities).
Impact and vibratory pile driving
activities conducted in the dry are not
expected to impact marine mammals
and therefore, are not discussed further
in this rule.
Pile Cutting—A majority of in-water
temporary piles (approximately 90
percent) would be cut off at the mudline
and remain in place, removed via direct
pulling, or would remain in place intact
(without cutting). Temporary piles that
conflict with construction or operations
or that can be removed in the dry would
be removed. Leaving piles in place
below the mudline supports stability of
the soil. Also, many of the existing T1
and T2 piles are corroded and may
break during removal, with the lower
part remaining in place. The existing
structure is closer to shore than new
construction, and many piles can be cut
or removed in the dry when their
location is dewatered.
The number of piles that would be cut
or remain in place would be maximized
as feasible; however, the exact number
of piles that may be cut or can remain
in place is unknown (see table 1 for best
estimates of piles to be removed). While
the exact method of pile cutting is at the
discretion of the construction
contractor, any methodology considered
for cutting and removing the piles
would account for worker safety,
constructability, and minimization of
potential acoustic impacts that the
operation may have on marine
mammals. Potential methods of
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underwater cutting include ultrathermic
cutting, pile clippers or wire-saws.
Underwater ultrathermic cutting is
performed by commercial divers using
hand-held equipment to cut or melt
through ferrous and non-ferrous metals.
These systems operate through a torchlike process, initiated by applying a
melting amperage to a steel tube packed
with alloy steel rods, sometimes mixed
with aluminum rods to increase the heat
output. In the hands of skilled
commercial divers, underwater
ultrathermic cutting is reputed to be
relatively fast and efficient, cutting
through approximately 2 to 4 inches (5
to 10 cm) per minute, depending upon
the number of divers deployed. This
efficacy may be constrained by the
requirement to secure the severed piles
from falling into the inlet to prevent an
extreme hazard to the diver cutting the
piles. Tidally driven currents in Cook
Inlet may limit dive times to
approximately 2 to 3 hours per highand low-tide event, depending upon the
tide cycle and the ability of divers to
efficiently perform the cutting task
while holding position during high
current periods. This activity is not
considered to produce sound.
Pile clipping and underwater sawing
generate noise that is typically nonimpulsive, low-level, and short duration
(typically less than 15 seconds per pile)
(NAVFAC SW, 2020). Potential pile
cutting methodologies are not
anticipated to result in incidental take
of marine mammals because they are
either above water, do not last for
sufficient duration to present the
reasonable potential for disruption of
behavioral patterns, do not produce
sound levels likely to result in marine
mammal harassment, or some
combination of the above. Impacts on
marine mammals from pile cutting are
therefore considered de minimis and
NMFS is not proposing to authorize
incidental take from this activity.
Demolition of Existing Terminals—
Once the new T1, T2, and petroleum
products transfer system are complete
and operational, any remaining existing
T1, T2, and POL1 platforms, wharves,
and trestles would be dismantled (see
figure 1–5 of the POA’s application).
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Existing and most temporary piles
would be cut and removed, removed via
vibratory extraction or direct pull, or left
in place. The selection of construction
equipment by the contractor, including
cranes and barges, would determine the
plans and sequencing for demolition.
Portions of the existing terminals may
be used for construction phasing and as
support platforms for ongoing new
construction, as feasible.
T3 may be partially demolished
during Phase 2B construction of T1 and
T2, especially where the existing
infrastructure may interfere with new
construction. Elements of T3 that
remain after Phase 2B is complete
would remain in place until Phase 5,
when they would be removed at that
time.
Demolition would take place above
the water, and demolished decking,
pipes, and other superstructure
materials would be contained before
they fall into the water following best
management practices. Demolished
materials would be removed by barge or
truck. Because work would take place
out of water with best management
practices in place to limit any release of
material into Cook Inlet, in addition to
cutting off or leaving existing piles in
place, impacts on marine mammals
from demolition of the existing
terminals are considered de minimis
and NMFS is not proposing to authorize
incidental take from this activity.
Proposed mitigation, monitoring, and
reporting measures are described in
detail later in this document (please see
Proposed Mitigation and Proposed
Monitoring and Reporting).
Description of Marine Mammals in the
Specified Geographical Region
There are seven species, comprising 9
stocks, of marine mammals that may be
found in upper Cook Inlet during the
proposed construction and demolition
activities. Sections 3 and 4 of the POA’s
application and request for regulations
summarize available information
regarding status and trends, distribution
and habitat preferences, and behavior
and life history of the potentially
affected species. NMFS fully considered
all of this information, and we refer the
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reader to these descriptions, instead of
reprinting the information. Additional
information regarding population trends
and threats may be found in NMFS’
Stock Assessment Reports (SARs;
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-stock-assessments)
and more general information about
these species (e.g., physical and
behavioral descriptions) may be found
on NMFS’ website (https://
www.fisheries.noaa.gov/find-species).
Table 4 lists all species or stocks for
which take is likely and proposed to be
authorized for the specified activities
and summarizes information related to
the population or stock, including
regulatory status under the MMPA and
Endangered Species Act (ESA) and
potential biological removal (PBR),
where known. PBR is defined by the
MMPA as ‘‘the maximum number of
animals, not including natural
mortalities, that may be removed from a
marine mammal stock while allowing
that stock to reach or maintain its
optimum sustainable population’’ (16
U.S.C. 1362(20)). While no serious
injury or mortality is anticipated or
proposed to be authorized here, PBR
and annual serious injury and mortality
from anthropogenic sources are
included here as gross indicators of the
status of the species or stocks and other
threats.
Marine mammal abundance estimates
presented in this document represent
the total number of individuals that
make up a given stock or the total
number estimated within a particular
study or survey area. NMFS’ stock
abundance estimates for most species
represent the total estimate of
individuals within the geographic area,
if known, that comprises that stock. For
some species, this geographic area may
extend beyond U.S. waters. All managed
stocks in this region are assessed in
NMFS’ U.S. Alaska and Pacific SARs
(e.g., Carretta, et al., 2023; Young et al.,
2023, 2024). Values presented in table 4
are the most recent available at the time
of publication (including from the draft
2023 SARs) and are available online at:
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-stock-assessmentreports. The most recent abundance
estimate for CIBWs is available from
Goetz et al. (2023) and available online
at https://www.fisheries.noaa.gov/
feature-story/new-abundance-estimateendangered-cook-inlet-beluga-whales.
TABLE 4—SPECIES LIKELY IMPACTED BY THE SPECIFIED ACTIVITIES
Common name
Scientific name
ESA/
MMPA
status;
strategic
(Y/N) 1
MMPA stock
Stock abundance
Nbest, (CV, Nmin, most
recent
abundance survey) 2
Annual
M/SI 3
PBR
I
I
Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)
Family Eschrichtiidae:
Gray whale ......................
Eschrichtius robustus .............
Eastern N Pacific ...................
-/-; N
26,960 (0.05, 25,849,
2016).
801
131
Family Balaenopteridae
(rorquals):
Humpback whale .............
Megaptera novaeangliae ........
Hawaii .....................................
-, -, N
127
27.09
Mexico-North Pacific ..............
T, D, Y
11,278 (0.56, 7,265,
2020).
N/A (N/A, N/A, 2006) ....
UND 5
0.57
Order Cetartiodactyla—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Delphinidae:
Killer whale ......................
Family Monodontidae:
Beluga whale ...................
Family Phocoenidae (porpoises):
Harbor porpoise ...............
Orcinus orca ...........................
Eastern North Pacific Alaska
Resident.
Eastern North Pacific Gulf of
Alaska, Aleutian Islands
and Bering Sea Transient.
-/-; N
19
1.3
-/-; N
1,920 (N/A, 1,920,
2019).
587 (N/A, 587, 2012) ....
5.9
0.8
Delphinapterus leucas ............
Cook Inlet ...............................
E/D; Y
331 (0.076, 290, 2022) 4
0.53
0
Phocoena phocoena ..............
Gulf of Alaska .........................
-/-; Y
31,046 (0.214, N/A,
1998).
UND 5
72
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Order Carnivora—Superfamily Pinnipedia
Family Otariidae (eared seals
and sea lions):
Steller sea lion .................
Eumetopias jubatus ................
Western ..................................
E/D; Y
49,837 (N/A, 49,837
2022).
299
267
Family Phocidae (earless
seals):
Harbor seal ......................
Phoca vitulina .........................
Cook Inlet/Shelikof Strait ........
-/-; N
28,411 (N/A, 26,907,
2018).
807
107
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-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable (N.A.).
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 fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
4 This abundance estimate is from Goetz et al. (2023); which was published after the most recent CIBW SAR (Young et al., 2023).
5 UND means undetermined.
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As indicated above, all seven species
(nine managed stocks) in table 4
temporally and spatially co-occur with
the activity to the degree that take is
reasonably likely to occur. Minke
whales (Balaenoptera acutorostrata) and
Dall’s porpoises (Phocoenoides dalli)
also occur in Cook Inlet; however, the
spatial occurrence of these species is
such that take is not likely to occur, and
they are not discussed further beyond
the explanation provided here. Data
from the Alaska Marine Mammal
Stranding Network database (NMFS,
unpublished data) provide additional
support for these determinations. From
2011 to 2020, only one minke whale and
one Dall’s porpoise were documented as
stranded in the portion of Cook Inlet
north of Point Possession. Both were
dead upon discovery; it is unknown if
they were alive upon their entry into
upper Cook Inlet or drifted into the area
with the tides. With very few
exceptions, minke whales and Dall’s
porpoises do not occur in upper Cook
Inlet, and therefore, take of these species
is considered unlikely.
In addition to what is included in
sections 3 and 4 of the POA’s
application (https://www.fisheries.
noaa.gov/action/incidental-takeauthorization-port-alaskas-constructionactivities-port-alaska-modernization),
the SARs (https://www.fisheries.
noaa.gov/national/marine-mammalprotection/marine-mammal-stockassessments), and NMFS’ website, we
provide further detail below informing
the baseline for species likely to be
found in the project area (e.g.,
information regarding current UMEs
and known important habitat areas,
such as Biologically Important Areas
(BIAs; https://oceannoise.noaa.gov/
biologically-important-areas) (Van Parijs
et al., 2015)).
Gray Whale
Gray whales are infrequent visitors to
Cook Inlet but can be seasonally present
during spring and fall in the lower inlet
(Bureau of Ocean Energy Management
(BOEM), 2021). Migrating gray whales
pass through the lower inlet during their
spring and fall migrations to and from
their primary summer feeding areas in
the Bering, Chukchi, and Beaufort seas
(Swartz, 2018; Silber et al., 2021;
BOEM, 2021). There are no BIAs for
gray whales in Cook Inlet.
Gray whales are rarely documented in
upper Cook Inlet and in the project area.
Gray whales were not documented
during POA construction or scientific
monitoring from 2005 to 2011 or during
2016 (Prevel-Ramos et al., 2006;
Markowitz and McGuire, 2007; Cornick
and Saxon-Kendall, 2008, 2009; Cornick
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et al., 2010, 2011; Integrated Concepts
and Research Corporation (ICRC), 2009,
2010, 2011, 2012; Cornick and Pinney,
2011; Cornick and Seagars, 2016);
however, one gray whale was observed
near Port MacKenzie during 2020 PCT
construction (61 North (61N)
Environmental, 2021) and a second
whale was observed off of Ship Creek
during 2021 PCT construction
monitoring (61N Environmental, 2022a,
Easley-Appleyard and Leonard, 2022).
The whale observed in 2020 is believed
to be the same whale that later stranded
in the Twentymile River, at the eastern
end of Turnagain Arm, approximately
80 km southeast of Knik Arm. There
was no indication that work at the PCT
had any effect on the animal, which was
reported to be in ‘‘fair to poor’’
condition during evaluation (see https://
www.fisheries.noaa.gov/feature-story/
alaska-gray-whale-ume-updatetwentymile-river-whale-likely-onetwelve-dead-gray-whales for more
information). No gray whales were
observed during POA’s transitional
dredging or SFD construction
monitoring from May to August, 2022
(61N Environmental, 2022b, 2022c).
Under the MMPA, a UME is defined
as ‘‘a stranding that is unexpected;
involves a significant die-off of any
marine mammal population; and
demands immediate response’’ (16
U.S.C. 1421h(6)). A recently closed
UME for gray whales along the West
Coast and in Alaska occurred from
December 17, 2018 through November
9, 2023. During that time, 146 gray
whales stranded off the coast of Alaska.
The investigative team concluded that
the preliminary cause of the UME was
localized ecosystem changes in the
whale’s Subarctic and Arctic feeding
areas that led to changes in food,
malnutrition, decreased birth rates, and
increased mortality (see https://
www.fisheries.noaa.gov/national/
marine-life-distress/2019-2023-graywhale-unusual-mortality-event-alongwest-coast-and for more information).
Given the changing environment in the
polar regions due to climate change,
there is potential for changes to gray
whale behavior and distribution in the
near future.
Humpback Whale
The 2022 Alaska and Pacific SARs
described a revised stock structure for
humpback whales, which modifies the
previous stocks designated under the
MMPA to align more closely with the
ESA-designated distinct population
segments (DPSs) (Carretta et al., 2023;
Young et al., 2023). Specifically, the
three previous North Pacific humpback
whale stocks (Central and Western
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North Pacific stocks and a CA/OR/WA
stock) were replaced by five stocks,
largely corresponding with the ESAdesignated DPSs. These include
Western North Pacific and Hawaii
stocks and a Central America/Southern
Mexico-CA/OR/WA stock (which
corresponds with the Central America
DPS). The remaining two stocks,
corresponding with the Mexico DPS, are
the Mainland Mexico-CA/OR/WA and
Mexico-North Pacific stocks (Carretta et
al., 2023; Young et al., 2023). The
former stock is expected to occur along
the west coast from California to
southern British Columbia, while the
latter stock may occur across the Pacific,
from northern British Columbia through
the Gulf of Alaska and Aleutian Islands/
Bering Sea region to Russia.
The Hawaii stock consists of one
demographically independent
population (DIP) (Hawaii—Southeast
Alaska/Northern British Columbia DIP)
and the Hawaii—North Pacific unit,
which may or may not be composed of
multiple DIPs (Wade et al., 2021). The
DIP and unit are managed as a single
stock at this time, due to the lack of data
available to separately assess them and
lack of compelling conservation benefit
to managing them separately (NMFS,
2019, 2022b, 2023). The DIP is
delineated based on two strong lines of
evidence: genetics and movement data
(Wade et al., 2021). Whales in the
Hawaii—Southeast Alaska/Northern
British Columbia DIP winter off Hawaii
and largely summer in Southeast Alaska
and Northern British Columbia (Wade et
al., 2021). The group of whales that
migrate from Russia, western Alaska
(Bering Sea and Aleutian Islands), and
central Alaska (Gulf of Alaska excluding
Southeast Alaska) to Hawaii have been
delineated as the Hawaii-North Pacific
unit (Wade et al., 2021). There are a
small number of whales that migrate
between Hawaii and southern British
Columbia/Washington, but current data
and analyses do not provide a clear
understanding of which unit these
whales belong to (Wade et al., 2021;
Carretta et al., 2023; Young et al., 2023).
The Mexico-North Pacific stock is
likely composed of multiple DIPs, based
on movement data (Martien et al., 2021;
Wade, 2021; Wade et al., 2021).
However, because currently available
data and analyses are not sufficient to
delineate or assess DIPs within the unit,
it was designated as a single stock
(NMFS, 2019, 2022c, 2023). Whales in
this stock winter off Mexico and the
Revillagigedo Archipelago and summer
primarily in Alaska waters (Martien et
al., 2021; Carretta et al., 2023; Young et
al., 2023).
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The most comprehensive photoidentification data available suggest that
approximately 89 percent of all
humpback whales in the Gulf of Alaska
are members of the Hawaii stock, 11
percent are from the Mexico-North
Pacific stock, and less than 1 percent are
from the Western North Pacific stock
(Wade, 2021). Members of different
stocks are known to intermix in feeding
grounds.
On October 9, 2019, NMFS proposed
to designate critical habitat for the
Western North Pacific, Mexico, and
Central America DPSs of humpback
whales (84 FR 54354). NMFS issued a
final rule on April 21, 2021 to designate
critical habitat for ESA-listed humpback
whales pursuant to section 4 of the ESA
(86 FR 21082). There is no designated
critical habitat for humpback whales in
or near the Project area (86 FR 21082,
April 21, 2021), nor does the project
overlap with any known BIAs.
Humpback whales are encountered
regularly in lower Cook Inlet and
occasionally in mid-Cook Inlet;
however, sightings are rare in upper
Cook Inlet (e.g., Witteveen et al., 2011).
During aerial surveys conducted in
summers between 2005 and 2012,
Shelden et al. (2013) reported dozens of
sightings in lower Cook Inlet, a handful
of sightings in the vicinity of Anchor
Point and in lower Cook Inlet, and no
sightings north of 60° N latitude. NMFS
changed to a biennial survey schedule
starting in 2014 after analysis showed
there would be little reduction in the
ability to detect a trend given the
current growth rate of the population
(Hobbs, 2013). No survey took place in
2020. Instead, consecutive surveys took
place in 2021 and 2022 (Shelden et al.,
2022). During the 2014–2022 aerial
surveys, sightings of humpback whales
were recorded in lower Cook Inlet and
mid-Cook Inlet, but none were observed
in upper Cook Inlet (Shelden et al.,
2015b, 2017, 2019, 2022). Vessel-based
observers participating in the Apache
Corporation’s 2014 survey operations
recorded three humpback whale
sightings near Moose Point in upper
Cook Inlet and two sightings near
Anchor Point, while aerial and landbased observers recorded no humpback
whale sightings, including in the upper
inlet (Lomac-MacNair et al., 2014).
Observers monitoring waters between
Point Campbell and Fire Island during
summer and fall 2011 and spring and
summer 2012 recorded no humpback
whale sightings (Brueggeman et al.,
2013). Monitoring of Turnagain Arm
during ice-free months between 2006
and 2014 yielded one humpback whale
sighting (McGuire, unpublished data,
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cited in LGL Alaska Research
Associates, Inc., and DOWL, 2015).
There have been few sightings of
humpback whales in the vicinity of the
proposed project area. Humpback
whales were not documented during
POA construction or scientific
monitoring from 2005 to 2011, in 2016,
or during 2020 (Prevel-Ramos et al.,
2006; Markowitz and McGuire, 2007;
Cornick and Saxon-Kendall, 2008, 2009;
Cornick et al., 2010, 2011; ICRC, 2009,
2010, 2011, 2012; Cornick and Pinney,
2011; Cornick and Seagars, 2016; 61N
Environmental, 2021). Observers
monitoring the Ship Creek Small Boat
Launch from August 23 to September
11, 2017 recorded two sightings, each of
a single humpback whale, which was
presumed to be the same individual
(POA, 2017). One other humpback
whale sighting has been recorded for the
immediate vicinity of the project area.
This event involved a stranded whale
that was sighted near a number of
locations in upper Cook Inlet before
washing ashore at Kincaid Park in 2017;
it is unclear as to whether the
humpback whale was alive or deceased
upon entering Cook Inlet waters.
Another juvenile humpback stranded in
Turnagain Arm in April 2019 near mile
86 of the Seward Highway. One
additional humpback whale was
observed in July during 2022
transitional dredging monitoring (61N
Environmental, 2022c). No humpback
whales were observed during the 2020
to 2021 PCT construction monitoring,
the NMFS marine mammal monitoring,
or the 2022 SFD construction
monitoring from April to June (61N
Environmental, 2021, 2022a, 2022b,
2022c; Easley-Appleyard and Leonard,
2022).
Killer Whale
Killer whales are rare in Cook Inlet,
and there are no known BIAs for this
species in Cook Inlet. Most sightings of
killer whales in the area are in lower
Cook Inlet (Shelden et al., 2013). The
infrequent sightings of killer whales that
are reported in upper Cook Inlet tend to
occur when their primary prey
(anadromous fish for resident killer
whales and beluga whales for transient
killer whales) are also in the area
(Shelden et al., 2003). During CIBW
aerial surveys between 1993 and 2012,
killer whales were sighted in lower
Cook Inlet 17 times, with a total of 70
animals (Shelden et al., 2013); no killer
whales were observed in upper Cook
Inlet during this time. Surveys over 20
years by Shelden et al. (2003)
documented an increase in CIBW
sightings and strandings in upper Cook
Inlet beginning in the early 1990s.
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85699
Several of these sightings and strandings
reported evidence of killer whale
predation on CIBWs. The pod sizes of
killer whales preying on CIBWs ranged
from one to six individuals (Shelden et
al., 2003). Passive acoustic monitoring
efforts throughout Cook Inlet
documented killer whales at the Beluga
River, Kenai River, and Homer Spit,
although they were not encountered
within Knik Arm (Castellote et al.,
2016). These detections were likely
resident killer whales. Transient killer
whales likely have not been acoustically
detected due to their propensity to move
quietly through waters to track prey
(Small, 2010; Lammers et al., 2013).
Few killer whales, if any, are expected
to approach or be in the vicinity of the
proposed project area. No killer whales
were spotted in the vicinity of the POA
during surveys by Funk et al. (2005),
Ireland et al. (2005), or Brueggeman et
al. (2007, 2008a, 2008b). Killer whales
have also not been documented during
any POA construction or scientific
monitoring from 2005 to 2011, in 2016,
or in 2020 (Prevel-Ramos et al., 2006;
Markowitz and McGuire, 2007; Cornick
and Saxon-Kendall, 2008; ICRC, 2009,
2010, 2011, 2012; Cornick et al., 2010,
2011; Cornick and Pinney, 2011;
Cornick and Seagars, 2016; 61N
Environmental, 2021). Two killer
whales, one male and one juvenile of
unknown sex, were sighted offshore of
Point Woronzof in September 2021
during PCT Phase 2 construction
monitoring (61N Environmental, 2022a).
The pair of killer whales moved up Knik
Arm, reversed direction near Cairn
Point, and moved southwest out of Knik
Arm toward the open water of Upper
Cook Inlet. No killer whales were
sighted during the 2021 NMFS marine
mammal monitoring or the 2022
transitional dredging and SFD
construction monitoring that occurred
between May and June 2022 (61N
Environmental, 2022b, 2022c; EasleyAppleyard and Leonard, 2022).
Beluga Whale
Five stocks of beluga whales are
recognized in Alaska: the Beaufort Sea
stock, eastern Chukchi Sea stock,
eastern Bering Sea stock, Bristol Bay
stock, and Cook Inlet stock (Young et
al., 2023). The Cook Inlet stock is
geographically and genetically isolated
from the other stocks (O’Corry-Crowe et
al., 1997; Laidre et al., 2000) and resides
year-round in Cook Inlet (Laidre et al.,
2000; Castellote et al., 2020). Only the
CIBW stock inhabits the proposed
project area. CIBWs were designated as
a DPS and listed as endangered under
the ESA in October 2008 (73 FR 62919,
October 10, 2008).
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On June 15, 2023, NMFS released an
updated abundance estimate for CIBWs
(Goetz et al., 2023) that incorporates
aerial survey data from June 2021 and
2022, which represents an update from
the most recent SAR (Young et al., 2023)
and suggest that the CIBW population is
stable or may be slightly increasing. The
methodology in the 2023 report is the
same as that used for NMFS’s SARs
(Young et al. 2023) and incorporates the
same time-series of data from previous
years. The only change was the
inclusion of more recent data from 2021
and 2022 surveys; the 2021 data
collection efforts were delayed from
2020 due to COVID–19. Goetz et al.
(2023) estimated that the population
size is currently between 290 and 386,
with a median best estimate of 331. We
have determined that Goetz et al. (2023)
represents the most recent and best
available science.
Goetz et al. (2023) also present an
analysis of population trends for the
most recent 10-year period (2012–2022).
The addition of data from the 2021 and
2022 survey years in the analysis
resulted in a 65.1 percent probability
that the CIBW population is now
increasing at 0.9 percent per year (95
percent prediction interval of ¥3 to 5.7
percent). This increase drops slightly to
0.2 percent per year (95 percent
prediction interval of ¥1.8 to 2.6
percent) with a 60 percent probability
that the CIBW population is increasing
more than 1 percent per year when data
from 2021, which had limited survey
coverage due to poor weather, are
excluded from the analysis. Median
group size estimates in 2021 and 2022
were 34 and 15, respectively (Goetz et
al., 2023). NMFS has determined that
the carrying capacity of Cook Inlet is
1,300 CIBWs (65 FR 34590, May 31,
2000) based on historical CIBW
abundance estimated by Calkins (1989).
Additional information may be found in
NMFS’ 2023 report on the abundance
and trend of CIBWs in Cook Inlet in
June 2021 and June 2022, available
online at https://www.fisheries.
noaa.gov/resource/document/
abundance-and-trend-belugasdelphinapterus-leucas-cook-inletalaska-june-2021-and.
Live stranding events of CIBWs have
been regularly observed in upper Cook
Inlet. This can occur when an
individual or group of individuals
strands as the tide recedes. Most live
strandings have occurred in Knik Arm
and Turnagain Arm, which are shallow
and have large tidal ranges, strong
currents, and extensive mudflats. Most
whales involved in a live stranding
event survive, although some associated
deaths may not be observed if the
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whales die later from live-strandingrelated injuries (Vos and Shelden, 2005;
Burek-Huntington et al., 2015). Between
2014 and 2018, there were reports of
approximately 79 CIBWs involved in 3
known live stranding events plus 1
suspected live stranding event with two
associated deaths reported (NMFS,
2016b; NMFS, unpublished data; Muto
et al., 2020). In 2014, necropsy results
from two whales found in Turnagain
Arm suggested that a live stranding
event contributed to their deaths as both
had aspirated mud and water. No live
stranding events were reported prior to
the discovery of these dead whales
suggesting that not all live stranding
events are observed.
Another source of CIBW mortality in
Cook Inlet is predation by transient-type
(mammal-eating) killer whales (NMFS,
2016b; Shelden et al., 2003). No humancaused mortality or serious injury of
CIBWs through interactions with
commercial, recreational, and
subsistence fisheries or because of other
human-caused events (e.g.,
entanglement in marine debris, ship
strikes) has been recently documented,
and subsistence harvesting of CIBWs
has not occurred since 2008 (NMFS,
2008b).
Recovery Plan. The Final Recovery
Plan for CIBW was published in the
Federal Register on January 5, 2017 (82
FR 1325), available online at https://
www.fisheries.noaa.gov/resource/
document/recovery-plan-cook-inletbeluga-whale-delphinapterus-leucas.
In its Recovery Plan (82 FR 1325,
January 5, 2017), NMFS identified
several potential threats to CIBWs,
including: (1) high concern: catastrophic
events (e.g., natural disasters, spills,
mass strandings), cumulative effects of
multiple stressors, and noise; (2)
medium concern: disease agents (e.g.,
pathogens, parasites, and harmful algal
blooms), habitat loss or degradation,
reduction in prey, and prohibited take
(e.g., entanglements, strikes, poaching or
intentional harassment, and close
approaches by private vessels); and (3)
low concern: pollution, predation, and
subsistence harvest. The recovery plan
did not treat climate change as a distinct
threat but rather as a consideration in
the threats of high and medium concern.
Other potential threats most likely to
result in direct human-caused mortality
or serious injury of this stock include
vessel strikes.
Critical Habitat. On April 11, 2011,
NMFS designated two areas of critical
habitat for CIBW (76 FR 20179). The
designation includes 7,800 km2 of
marine and estuarine habitat within
Cook Inlet, encompassing
approximately 1,909 km2 in Area 1 and
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5,891 km2 in Area 2 (see figure 1 in 76
FR 20179). Area 1 of the CIBW critical
habitat encompasses all marine waters
of Cook Inlet north of a line connecting
Point Possession (lat. 61.04° N, long.
150.37° W) and the mouth of Three Mile
Creek (lat. 61.08.55° N, long. 151.04.40°
W), including waters of the Susitna,
Little Susitna, and Chickaloon Rivers
below mean higher high water. From
spring through fall, Area 1 critical
habitat has the highest concentration of
CIBWs due to its important foraging and
calving habitat. Area 2 critical habitat
has a lower concentration of CIBWs in
spring and summer but is used by
CIBWs in fall and winter. Critical
habitat does not include two areas of
military usage: the Eagle River Flats
Range on Fort Richardson and military
lands of JBER between Mean Higher
High Water and MHW. Additionally, the
POA, adjacent navigation channel, and
turning basin (approximately 6.84 km2)
were excluded from the critical habitat
designation due to national security
reasons (76 FR 20180, April 11, 2011).
The POA exclusion area is within Area
1, however, marine mammal monitoring
results from the POA suggest that this
exclusion area is not a particularly
important feeding or calving area.
CIBWs have been occasionally
documented to forage around Ship
Creek (south of the POA) but are
typically transiting through the area to
other, potentially richer, foraging areas
to the north (e.g., Six Mile Creek, Eagle
River, Eklutna River) (e.g., 61N
Environmental, 2021, 2022a, 2022b,
2022c, Easley-Appleyard and Leonard,
2022). These locations contain
predictable salmon runs, an important
food source for CIBWs, and the timing
of these runs has been correlated with
CIBW movements into the upper
reaches of Knik Arm (Ezer et al., 2013).
More information on CIBW critical
habitat can be found at https://
www.fisheries.noaa.gov/action/criticalhabitat-cook-inlet-beluga-whale.
The designation identified the
following Primary Constituent Elements
(PCE), essential features important to
the conservation of the CIBW:
(1) Intertidal and subtidal waters of
Cook Inlet with depths of less than 9 m
(MLLW) and within 8 km of high- and
medium-flow anadromous fish streams;
(2) Primary prey species, including
four of the five species of Pacific salmon
(chum (Oncorhynchus keta), sockeye
(Oncorhynchus nerka), Chinook
(Oncorhynchus tshawytscha), and coho
(Oncorhynchus kisutch)), Pacific
eulachon (Thaleichthys pacificus),
Pacific cod (Gadus macrocephalus),
walleye pollock (Gadus
chalcogrammus), saffron cod (Eleginus
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gracilis), and yellowfin sole (Limanda
aspera);
(3) The absence of toxins or other
agents of a type or amount harmful to
CIBWs;
(4) Unrestricted passage within or
between the critical habitat areas; and
(5) The absence of in-water noise at
levels resulting in the abandonment of
habitat by CIBWs.
The area around the POA, while
exempted from the Critical Habitat
designation due to national security
issues, does contain the requisite
bathymetric features in the first PCE, as
well as the presence of primary prey
species. However, given the
industrialized nature of the POA and
the historical use of the site from the
early 1900s, the other physical features
are more difficult to confirm. Sediment
contamination was examined during a
2008 U.S. Army Corps of Engineers
dredging project near the Port, and
contaminant levels of volatile and semivolatile organic compounds, total
recoverable petroleum hydrocarbons,
PCBs, pesticides, cadmium, mercury,
selenium, silver, arsenic, barium,
chromium, and lead were found to be
suitable for in-water discharge (USACE
2008). Ambient and background noise
levels at the POA have been measured
and are addressed quantitatively later in
this document; briefly, noise levels are
elevated due to both anthropogenic
activities (i.e., commercial shipping,
dredging, and construction) and normal
environmental factors (e.g., high current
velocity, ice movement, seismic
activity). While neither contaminants
nor noise have been shown to approach
the ‘‘harmful’’ and ‘‘habitat
abandonment’’ thresholds described in
the PCEs, the concentration of both
stressors is highest closer to the POA
facilities, within the exemption area,
ultimately degrading the habitat at POA
relative to the surrounding areas. In
total, the exempted area surrounding the
POA represents approximately 0.35
percent of the designated Critical
Habitat Area 1.
Biologically Important Areas. Wild et
al. (2023) delineated portions of Cook
Inlet, including near the proposed
project area, as a BIA for the small and
resident population of CIBWs based on
scoring methods outlined by Harrison et
al. (2023) (see https://oceannoise.
noaa.gov/biologically-important-areas
for more information). The BIA is used
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year-round by CIBWs for feeding and
breeding, and there are limits on food
supply such as salmon runs and
seasonal movement of other fish species
(Wild et al., 2023). The boundary of the
CIBW BIA is consistent with NMFS’
critical habitat designation and does not
include the aforementioned exclusion
areas (e.g., the POA and surrounding
waters) (Wild et al., 2023).
Foraging Ecology. CIBWs feed on a
wide variety of prey species,
particularly those that are seasonally
abundant. From late spring through
summer, most CIBW stomachs sampled
contained salmon, which corresponded
to the timing of fish runs in the area.
Anadromous smolt and adult fish
aggregate at river mouths and adjacent
intertidal mudflats (Calkins, 1989). All
five Pacific salmon species (i.e.,
Chinook, pink (Oncorhynchus
gorbuscha), coho, sockeye, and chum)
spawn in rivers throughout Cook Inlet
(Moulton, 1997; Moore et al., 2000).
Overall, Pacific salmon represent the
highest percent frequency of occurrence
of prey species in CIBW stomachs. This
suggests that their spring feeding in
upper Cook Inlet, principally on fat-rich
fish, such as salmon and eulachon, is
important to the energetics of these
animals (NMFS, 2016b).
The nutritional quality of Chinook
salmon in particular is unparalleled,
with an energy content four times
greater than that of a Coho salmon. It is
suggested the decline of the Chinook
salmon population has left a nutritional
void in the diet of the CIBWs that no
other prey species can fill in terms of
quality or quantity (Norman et al., 2020,
2022).
In fall, as anadromous fish runs begin
to decline, CIBWs consume fish species
(cod and bottom fish) found in
nearshore bays and estuaries. Stomach
samples from CIBWs are not available
for winter (December through March),
although dive data from CIBWs tagged
with satellite transmitters suggest that
they feed in deeper waters during
winter (Hobbs et al., 2005), possibly on
such prey species as flatfish, cod,
sculpin, and pollock.
Fish runs in the Anchorage and
Matanuska-Susitna area include
Chinook (May–August), sockeye (June–
September), coho (July–September), pin
(July–August), and chum (July–
September) salmon, as well as dolly
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varden, rainbow and lake trout,
northern pike, burbot, grayling, smelt,
and whitefish. In proximity to the POA,
anadromous fish runs occur at Ship
Creek, which is heavily used by
recreational anglers. On June 26, 2024,
the Alaska Department of Fish and
Game (ADF&G) issued an emergency
closure of recreational fishing on Ship
Creek until July 13, 2024, and limited
Chinook catching to catch-and-release
for the remainder of the season due to
low returns of Chinook in the creek.
ADF&G anticipates a poor return of this
species throughout Knik Arm for 2024,
in keeping with a trend of declining
Chinook Runs throughout Cook Inlet
since 2008 (ADF&G 2019). The Gulf of
Alaska Chinook salmon is currently
under review for listing under the ESA
(89 FR 45815, May 24, 2024).
Distribution in Cook Inlet. The CIBW
stock remains within Cook Inlet
throughout the year, showing only small
seasonal shifts in distribution (Goetz et
al., 2012a; Lammers et al., 2013;
Castallotte et al., 2015; Shelden et al.,
2015a, 2018; Lowery et al., 2019).
During spring and summer, CIBWs
generally aggregate near the warmer
waters of river mouths where prey
availability is high and predator
occurrence is low (Moore et al., 2000;
Shelden and Wade, 2019; McGuire et
al., 2020). In particular, CIBW groups
are seen in the Susitna River Delta
approximately 36 km (23 mi) to the west
of the POA across the mouth of Knik
arm in Upper Cook Inlet, the Beluga
River (approximately 55 km (34 mi)
west) and along the shore to the Little
Susitna River (21 km (13 mi) west),
within all of Knik Arm, and along the
shores of Chickaloon Bay to the south of
Anchorage, across Turnagain Arm
(figure 3). Small groups were recorded
farther south in Kachemak Bay, Redoubt
Bay (Big River), and Trading Bay
(McArthur River) prior to 1996 but
rarely thereafter. Since the mid-1990s,
most CIBWs (96 to 100 percent)
aggregate in shallow areas near river
mouths in upper Cook Inlet, and they
are only occasionally sighted in the
central or southern portions of Cook
Inlet during summer (Hobbs et al.,
2008). Almost the entire population can
be found in northern Cook Inlet from
late spring through the summer and into
the fall (Muto et al., 2020).
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Data from tagged whales (14 tags
deployed July 2000 through March
2003) show that CIBWs use upper Cook
Inlet intensively between summer and
late autumn (Hobbs et al., 2005). CIBWs
tagged with satellite transmitters
continue to use Knik Arm, Turnagain
Arm, and Chickaloon Bay as late as
October, but some range into lower
Cook Inlet to Chinitna Bay, Tuxedni
Bay, and Trading Bay (McArthur River)
in fall (Hobbs et al., 2005, 2012). From
September through November, CIBWs
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move between Knik Arm, Turnagain
Arm, and Chickaloon Bay (Hobbs et al.,
2005; Goetz et al., 2012b). By December,
CIBWs are distributed throughout the
upper to mid-inlet. From January into
March, they move as far south as Kalgin
Island and slightly beyond in central
offshore waters. CIBWs make occasional
excursions into Knik Arm and
Turnagain Arm in February and March
in spite of ice cover (Hobbs et al., 2005).
Although tagged CIBWs move widely
around Cook Inlet throughout the year,
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there is no indication of seasonal
migration in and out of Cook Inlet
(Hobbs et al., 2005). Data from NMFS
aerial surveys, opportunistic sighting
reports, and corrected satellite-tagged
CIBWs confirm that they are more
widely dispersed throughout Cook Inlet
during winter (November–April), with
animals found between Kalgin Island
and Point Possession. Generally fewer
observations of CIBWs are reported from
the Anchorage and Knik Arm area from
November through April as documented
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in the designation of Critical Habitat (76
FR 20179, April 11, 2011; Rugh et al.,
2000, 2004).
The NMFS Marine Mammal Lab has
conducted long-term passive acoustic
monitoring demonstrating seasonal
shifts in CIBW concentrations
throughout Cook Inlet. Castellote et al.
(2015) conducted long-term acoustic
monitoring at 13 locations throughout
Cook Inlet between 2008 and 2015:
North Eagle Bay, Eagle River Mouth,
South Eagle Bay, Six Mile, Point
MacKenzie, Cairn Point, Fire Island,
Little Susitna, Beluga River, Trading
Bay, Kenai River, Tuxedni Bay, and
Homer Spit; the former 6 stations being
located within Knik Arm. In general, the
observed seasonal distribution is in
accordance with descriptions based on
aerial surveys and satellite telemetry:
CIBW detections are higher in the upper
inlet during summer, peaking at Little
Susitna, Beluga River, and Eagle Bay,
followed by fewer detections at those
locations during winter. Higher
detections in winter at Trading Bay,
Kenai River, and Tuxedni Bay suggest a
broader CIBW distribution in the lower
inlet during winter, particularly in
Tuxedni Bay in the months of
September through March (Castellote et
al., 2015, 2018, 2024; Castellote et al.
2024).
Goetz et al. (2012b) modeled habitat
preferences using NMFS’ 1994–2008
June abundance survey data. In large
areas, such as the Susitna Delta (Beluga
to Little Susitna Rivers) and Knik Arm,
there was a high probability that CIBWs
were in larger groups. CIBW presence
and acoustic foraging behavior also
increased closer to rivers with Chinook
salmon runs, such as the Susitna River
(e.g., Castellote et al., 2021). Movement
has been correlated with the peak
discharge of seven major rivers
emptying into Cook Inlet. Boat-based
surveys from 2005 to the present
(McGuire and Stephens, 2017) and
results from passive acoustic monitoring
across the entire inlet (Castellote et al.,
2015) also support seasonal patterns
observed with other methods. Based on
long-term passive acoustic monitoring,
seasonally, foraging behavior was more
prevalent during summer, particularly
at upper inlet rivers, than during winter.
Foraging index was highest at Little
Susitna, with a peak in July-August and
a secondary peak in May, followed by
Beluga River and then Eagle Bay;
monthly variation in the foraging index
indicates CIBWs shift their foraging
behavior among these three locations
from April through September.
CIBWs are believed to mostly calve in
the summer and concurrently breed
between late spring and early summer
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(NMFS, 2016b), primarily in upper Cook
Inlet. McGuire et al. (2020) documented
three suspected calving events between
July and September with no neonates
observed during surveys conducted
from April to June. The first neonates
encountered during each field season
from 2005 through 2015 were always
seen in the Susitna River Delta in July.
Important calving grounds are thought
to be located near the river mouths of
upper Cook Inlet—both potential births
documented in July were at the Susitna
River Delta; the third was in Turnagain
Arm in September (McGuire et al.,
2020). The photographic identification
team’s documentation of the dates of the
first neonate of each year indicate that
calving begins in mid-late July/early
August, generally coinciding with the
observed timing of annual maximum
group size. Probable mating behavior of
CIBWs was observed during all months
of the aerial surveys (McGuire et al.,
2020). Young CIBWs are nursed for 2
years and may continue to associate
with their mothers for a considerable
time thereafter (Colbeck et al., 2013).
Demographic rates were modeled for
this population, indicating that low
survival of non-breeding (i.e., subadult,
male, and non-breeding adult female)
CIBWs and general low reproductive
rates are likely contributing to the nonrecovery of the population (Himes Boor
et al., 2022).
Presence in Project Area. Knik Arm is
one of three areas in upper Cook Inlet
where CIBWs are concentrated during
spring, summer, and early fall. Most
CIBWs observed in or near the POA are
transiting between upper Knik Arm and
other portions of Cook Inlet, and the
POA itself is not considered highquality foraging habitat. CIBWs tend to
follow their anadromous prey and travel
in and out of Knik Arm with the tides.
The predictive habitat model derived by
Goetz et al. (2012a) indicated that the
highest predicted densities of CIBWs are
in Knik Arm near the mouth of the
Susitna River and in Chickaloon Bay.
The model suggests that the density of
CIBWs ranges from 0 to 1.12 whales per
km2 in Cook Inlet but is lower at the
mouth of Knik Arm, near the POA,
ranging between approximately 0.013
and 0.062 whales per km2. The
distribution presented by Goetz et al.
(2012a) is generally consistent with
CIBW distribution documented in upper
Cook Inlet throughout ice-free months
(NMFS, 2016b).
Several marine mammal monitoring
programs and studies have been
conducted at or near the POA during the
last 17 years. These studies offer some
of the best available information on the
presence of CIBWs in the proposed
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project area. Studies that occurred prior
to 2020 are summarized in Section 4.5.5
of the POA’s application. More recent
programs, which most accurately
portray current information regarding
CIBW presence in the proposed project
area, are summarized here.
PCT Construction Monitoring (2020–
2021). A marine mammal monitoring
program was implemented during
construction of the PCT in 2020 (Phase
1) and 2021 (Phase 2), as required by the
NMFS IHAs (85 FR 19294, April 6,
2020). PCT Phase 1 construction
included impact installation of 48-in
(122-cm) attenuated piles; impact
installation of 36-in (91-cm) and 48-in
(122-cm) unattenuated piles; vibratory
installation of 24-in (61-cm), 36-in (91cm), and 48-in (122 cm) attenuated and
unattenuated piles; and vibratory
installation of an unattenuated 72-in
(183-cm) casing for a confined bubble
curtain across 95 days. PCT Phase 2
construction included vibratory
installation of 36-in (91-cm) attenuated
piles and impact and vibratory
installation of 144-in (366-cm)
attenuated breasting and mooring
dolphins across 38 days. Marine
mammal monitoring in 2020 occurred
during 128 non-consecutive days with a
total of 1,238.7 hours of monitoring
from April 27 to November 24, 2020
(61N Environmental, 2021). Marine
mammal monitoring in 2021 occurred
during 74 non-consecutive days with a
total of 734.9 hours of monitoring from
April 26 to June 24 and September 7 to
29, 2021 (61N Environmental, 2022a). A
total of 1,504 individual CIBWs across
377 groups were sighted during PCT
construction monitoring. Sixty-five and
67 percent of CIBW observations
occurred on non-pile driving days or
before pile driving occurred on a given
day during PCT Phase 1 and PCT Phase
2 construction, respectively.
The monitoring effort and data
collection were conducted before,
during, and after pile driving activities
from four locations as stipulated by the
PCT IHAs (85 FR 19294, April 6, 2020):
(1) the Anchorage Public Boat Dock by
Ship Creek, (2) the Anchorage
Downtown Viewpoint near Point
Woronzof, (3) the PCT construction site,
and (4) the North End (North Extension)
at the north end of the POA, near Cairn
Point. Marine mammal sighting data
from April to September both before,
during, and after pile driving indicate
that CIBWs swam near the POA and
lingered there for periods of time
ranging from a few minutes to a few
hours. CIBWs were most often seen
traveling at a slow or moderate pace,
either from the north near Cairn Point
or from the south or milling at the
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mouth of Ship Creek. Groups of CIBWs
were also observed swimming north and
south in front of the PCT construction
and did not appear to exhibit avoidance
behaviors either before, during, or after
pile driving activities (61N
Environmental, 2021, 2022a). CIBW
sightings in June were concentrated on
the west side of Knik Arm from the
Little Susitna River Delta to Port
MacKenzie. From July through
September, CIBWs were most often seen
milling and traveling on the east side of
Knik Arm from Point Woronzof to Cairn
Point (61N Environmental, 2021,
2022a).
SFD Construction Monitoring and
Transitional Dredging (2022). In 2022, a
marine mammal monitoring program
almost identical to that used during PCT
construction was implemented during
construction of the SFD, as required by
the NMFS IHA (86 FR 50057, September
7, 2021). SFD construction included the
vibratory installation of ten 36-in (91cm) attenuated plumb piles and two
unattenuated battered piles (61N
Environmental, 2022b). Marine mammal
monitoring was conducted during 13
non-consecutive days with a total of
108.2 hours of monitoring observation
from May 20 through June 11, 2022
(61N Environmental, 2022b). Forty-one
individual CIBWs across 9 groups were
sighted (61N Environmental, 2022b).
One group was observed on a day with
no pile-driving, three groups were seen
on days before pile driving activities
started, and five groups were seen
during vibratory pile driving activities
(61N Environmental, 2022b).
During SFD construction, the position
of the Ship Creek monitoring station
was adjusted to allow monitoring of a
portion of the shoreline north of Cairn
Point that could not be seen by the
station at the northern end of the POA
(61N Environmental, 2022b). Eleven
protected species observers (PSOs)
worked from four monitoring stations
located along a 9-km (6-mi) stretch of
coastline surrounding the POA. The
monitoring effort and data collection
were conducted at the following four
locations: (1) Point Woronzof
approximately 6.5 km (4 mi) southwest
of the SFD, (2) the promontory near the
boat launch at Ship Creek, (3) the SFD
project site, and (4) the northern end of
the POA (61N Environmental, 2022b).
Ninety groups comprised of 529
CIBWs were also sighted during the
transitional dredging monitoring that
occurred from May 3 to 15, 2022 and
June 27 to August 24, 2022 (61N
Environmental, 2022b). Of the nine
groups of CIBWs sighted during SFD
construction, traveling was recorded as
the primary behavior for each group
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(61N Environmental, 2022b). CIBWs
traveled and milled between the SFD
construction area, Ship Creek, and areas
to the south of the POA for more than
an hour at a time, delaying some
construction activities.
Harbor Porpoise
Harbor porpoises occur throughout
Cook Inlet with passive acoustic
detections being more prevalent in
lower Cook Inlet. Although harbor
porpoises have been frequently
observed during aerial surveys in Cook
Inlet (Shelden et al., 2014), most
sightings are of single animals and are
concentrated at Chinitna and Tuxedni
bays on the west side of lower Cook
Inlet (Rugh et al., 2005). The occurrence
of larger numbers of porpoise in the
lower Cook Inlet may be driven by
greater availability of preferred prey and
possibly less competition with CIBWs as
CIBWs move into upper inlet waters to
forage on Pacific salmon during the
summer months (Shelden et al., 2014).
There are no known BIAs for harbor
porpoise in Cook Inlet.
An increase in harbor porpoise
sightings in upper Cook Inlet has been
observed over recent decades (e.g., 61N
Environmental, 2021, 2022a; Shelden et
al., 2014). Small numbers of harbor
porpoises have been consistently
reported in upper Cook Inlet between
April and October (Prevel-Ramos et al.,
2008). The overall increase in the
number of harbor porpoise sightings in
upper Cook Inlet is unknown, although
it may be an artifact from increased
studies and marine mammal monitoring
programs in upper Cook Inlet. It is also
possible that the apparent contraction in
the CIBW’s range has opened up
previously occupied CIBW range to
harbor porpoises (Shelden et al., 2014).
Harbor porpoises have been observed
within Knik Arm during monitoring
efforts from 2005 to 2016. Between
April 27 and November 24, 2020, 18
harbor porpoises were observed near the
POA during the PCT Phase 1
construction monitoring (61N
Environmental, 2021). Twenty-seven
harbor porpoises were observed near the
POA during the PCT Phase 2
construction monitoring conducted
between April 26 and September 29,
2021 (61N Environmental, 2022a).
During NMFS marine mammal
monitoring conducted in 2021, one
harbor porpoise was observed in August
and six harbor porpoises were observed
in October (Easley-Appleyard and
Leonard, 2022). During 2022, five harbor
porpoises were sighted during
transitional dredging monitoring (61N
Environmental, 2022c). No harbor
porpoises were sighted at the POA
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during the 2022 SFD construction
monitoring that occurred between May
and June 2022 (61N Environmental,
2022b).
Steller Sea Lion
Two DPSs of Steller sea lion occur in
Alaska: the western DPS and the eastern
DPS. The western DPS includes animals
that occur west of Cape Suckling,
Alaska and therefore, includes
individuals within the Project area. The
western DPS was listed under the ESA
as threatened in 1990 (55 FR 49204,
November 26, 1990), and its continued
population decline resulted in a change
in listing status to endangered in 1997
(62 FR 24345, May 5, 1997). Since 2000,
studies indicate that the population east
of Samalga Pass (i.e., east of the
Aleutian Islands) has increased and is
potentially stable (Young et al., 2023).
NMFS designated critical habitat for
Steller sea lions on August 27, 1993 (58
FR 45269). The critical habitat
designation for the Western DPS of was
determined to include a 37-km (20nautical mile) buffer around all major
haul-outs and rookeries, and associated
terrestrial, atmospheric, and aquatic
zones, plus three large offshore foraging
areas, none of which occurs in the
project area. There are no known BIAs
for Steller sea lions in Cook Inlet.
Within Cook Inlet, Steller sea lions
primarily inhabit lower Cook Inlet.
However, they occasionally venture to
upper Cook Inlet and Knik Arm and
may be attracted to salmon runs in the
region. Steller sea lions have not been
documented in upper Cook Inlet during
CIBW aerial surveys conducted
annually in June from 1994 through
2012 and in 2014 (Shelden et al., 2013,
2015b, 2017; Shelden and Wade, 2019);
however, there has been an increase in
individual Steller sea lion sightings near
the POA in recent years.
Steller sea lions were observed near
the POA in 2009, 2016, and 2019
through 2022 (ICRC, 2009; Cornick and
Seagars, 2016; POA, 2019; 61N
Environmental, 2021, 2022a, 2022b,
2022c). In 2009, there were three Steller
sea lion sightings that were believed to
be the same individual (ICRC, 2009). In
2016, Steller sea lions were observed on
2 separate days. On May 2, 2016, one
individual was sighted, while on May
25, 2016, there were five Steller Sea lion
sightings within a 50-minute period,
and these sightings occurred in areas
relatively close to one another (Cornick
and Seagars, 2016). Given the proximity
in time and space, it is believed these
five sightings were of the same
individual sea lion. In 2019, one Steller
sea lion was observed in June at the
POA during transitional dredging (POA,
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2019). There were six sightings of
individual Steller sea lions near the
POA during PCT Phase 1 construction
monitoring (61N Environmental, 2021).
At least two of these sightings may have
been re-sights on the same individual.
An additional seven unidentified
pinnipeds were observed that could
have been Steller sea lions or harbor
seals (61N Environmental, 2021). In
2021, there were a total of eight
sightings of individual Steller sea lions
observed near the POA during PCT
Phase 2 construction monitoring (61N
Environmental, 2022a). During NMFS
marine mammal monitoring, one Steller
sea lion was observed in August 2021 in
the middle of the inlet (EasleyAppleyard and Leonard, 2022). In 2022,
there were three Steller sea lion
sightings during the transitional
dredging monitoring and three during
SFD construction monitoring (61N
Environmental, 2022b, 2022c). All
sightings occurred during summer,
when the sea lions were likely attracted
to ongoing salmon runs. Sea lion
observations near the POA may be
increasing due to more consistent
observation effort or due to increased
presence; observations continue to be
occasional.
Harbor Seal
Harbor seals inhabit the coastal and
estuarine waters of Cook Inlet and are
observed in both upper and lower Cook
Inlet throughout most of the year
(Boveng et al., 2012; Shelden et al.,
2013), though there are no known BIAs
for this species in this area. Recent
research on satellite-tagged harbor seals
observed several movement patterns
within Cook Inlet (Boveng et al., 2012),
including a strong seasonal pattern of
more coastal and restricted spatial use
during the spring and summer
(breeding, pupping, molting) and more
wide-ranging movements within and
outside of Cook Inlet during the winter
months, with some seals ranging as far
as Shumagin Islands. During summer
months, movements and distribution
were mostly confined to the west side
of Cook Inlet and Kachemak Bay, and
seals captured in lower Cook Inlet
generally exhibited site fidelity by
remaining south of the Forelands in
lower Cook Inlet after release (Boveng et
al., 2012). In the fall, a portion of the
harbor seals appeared to move out of
Cook Inlet and into Shelikof Strait,
northern Kodiak Island, and coastal
habitats of the Alaska Peninsula. The
western coast of Cook Inlet had higher
usage by harbor seals than eastern coast
habitats, and seals captured in lower
Cook Inlet generally exhibited site
fidelity by remaining south of the
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Forelands in lower Cook Inlet after
release (south of Nikiski; Boveng et al.,
2012).
The presence of harbor seals in upper
Cook Inlet is seasonal. Harbor seals are
commonly observed along the Susitna
River and other tributaries within upper
Cook Inlet during eulachon and salmon
migrations (NMFS, 2003). The major
haulout sites for harbor seals are in
lower Cook Inlet; however, there are a
few haulout sites in upper Cook Inlet,
including near the Little and Big Susitna
rivers, Beluga River, Theodore River,
and Ivan River (Barbara Mahoney,
personal communication, November 16,
2020; Montgomery et al., 2007). During
CIBW aerial surveys of upper Cook Inlet
from 1993 to 2012, harbor seals were
observed 24 to 96 km south-southwest
of Anchorage at the Chickaloon, Little
Susitna, Susitna, Ivan, McArthur, and
Beluga rivers (Shelden et al., 2013).
Harbor seals have been observed in Knik
Arm and in the vicinity of the POA
(Shelden et al., 2013), but they are not
known to haul out within the proposed
project area.
Harbor seals were observed during
construction monitoring at the POA
from 2005 through 2011 and in 2016, in
groups of one to seven individuals
(Prevel-Ramos et al., 2006; Markowitz
and McGuire, 2007; Cornick and SaxonKendall, 2008, 2009; Cornick et al.,
2010, 2011; Cornick and Seagars, 2016).
Harbor seals were also observed near the
POA during construction monitoring for
PCT Phase 1 in 2020 and PCT Phase 2
in 2021, NMFS marine mammal
monitoring in 2021, and transitional
dredging monitoring and SFD
construction monitoring in 2022 (61N
Environmental, 2021, 2022a, 2022b,
2022c, Easley-Appleyard and Leonard,
2022). During the 2020 PCT Phase 1 and
2021 PCT Phase 2 construction
monitoring, harbor seals were regularly
observed in the vicinity of the POA with
frequent observations near the mouth of
Ship Creek, located approximately 1,500
m southeast of the CTR location. Harbor
seals were observed almost daily during
2020 PCT Phase 1 construction, with 54
individuals documented in July, 66
documented in August, and 44 sighted
in September (61N Environmental,
2021). During the 2021 PCT Phase 2
construction, harbor seals were
observed with the highest numbers of
sightings in June (87 individuals) and in
September (124 individuals) (61 N
Environmental, 2022a). Over the 13
days of SFD construction monitoring in
May and June 2022, 27 harbor seals
were observed (61N Environmental,
2022b). Seventy-two groups of 75 total
harbor seals (3 groups of 2 individuals)
were observed during transitional
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dredging monitoring in 2022 (61N
Environmental, 2022c). Sighting rates of
harbor seals have been highly variable
and may have increased since 2005. It
is unknown whether any potential
increase was due to local population
increases or habituation to ongoing
construction activities. It is possible that
increased sighting rates are correlated
with more intensive monitoring efforts
in 2020 and 2021, when the POA used
11 PSOs spread among four monitoring
stations.
Marine Mammal Hearing
Hearing is the most important sensory
modality for marine mammals
underwater, and exposure to
anthropogenic sound can have
deleterious effects. To appropriately
assess the potential effects of exposure
to sound, it is necessary to understand
the frequency ranges marine mammals
are able to hear. Not all marine mammal
species have equal hearing capabilities
(e.g., Richardson et al., 1995; Wartzok
and Ketten, 1999; Au and Hastings,
2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine
mammals be divided into hearing
groups based on directly measured
(behavioral or auditory evoked potential
techniques) or estimated hearing ranges
(behavioral response data, anatomical
modeling, etc.). Note that no direct
measurements of hearing ability have
been successfully completed for
mysticetes (i.e., low-frequency
cetaceans). Subsequently, NMFS (2018,
2024) described generalized hearing
ranges for these marine mammal hearing
groups. Generalized hearing ranges were
chosen based on the approximately 65
decibel (dB) threshold from the
normalized composite audiograms, with
the exception for lower limits for lowfrequency cetaceans where the lower
bound was deemed to be biologically
implausible and the lower bound from
Southall et al. (2007) retained.
On May 3, 2024, NMFS published and
solicited public comment on its draft
Updated Technical Guidance (89 FR
36762), which includes updated hearing
ranges and names for the marine
mammal hearing groups and is intended
to replace the 2018 Technical Guidance
once finalized. The public comment
period ended on June 17th, 2024.
Because NMFS may finalize the
Guidance prior to taking a final agency
action on this proposed rulemaking, we
considered both the 2018 and 2024
Technical Guidance in our effects and
estimated take analysis below. Marine
mammal hearing groups and their
associated hearing ranges from NMFS
(2018) and NMFS (2024) are provided in
tables 5 and 6. In the draft Updated
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Technical Guidance, mid-frequency
cetaceans have been re-classified as
high-frequency cetaceans, and high-
frequency cetaceans have been updated
to very-high-frequency (VHF) cetaceans.
Additionally, the draft Updated
Technical Guidance includes in-air data
for phocid (PA) and otariid (OA)
pinnipeds.
TABLE 5—MARINE MAMMAL HEARING GROUPS
[NMFS, 2018]
Generalized
hearing range *
Hearing group
Low-frequency (LF) cetaceans (baleen whales) .....................................................................................................................
Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ...........................................
High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, Cephalorhynchid, Lagenorhynchus cruciger & L.
australis).
Phocid pinnipeds (PW) (underwater) (true seals) ...................................................................................................................
Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ..............................................................................................
7 Hz to 35 kHz.
150 Hz to 160 kHz.
275 Hz to 160 kHz.
50 Hz to 86 kHz.
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).
TABLE 6—MARINE MAMMAL HEARING GROUPS
[NMFS 2024]
Generalized
hearing range *
Hearing group
Underwater:
Low-frequency (LF) cetaceans (baleen whales) ..............................................................................................................
High-frequency (HF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ..................................
Very High-frequency (VHF) cetaceans (true porpoises, Kogia, river dolphins, Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) (true seals) ............................................................................................................
Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) .......................................................................................
In-air:
Phocid pinnipeds (PA) (true seals) ..................................................................................................................................
Otariid pinnipeds (OA) (sea lions and fur seals) ..............................................................................................................
7 Hz to 36 kHz.
150 Hz to 160 kHz.
200 Hz to 165 kHz.
40 Hz to 90 kHz.
60 Hz to 68 kHz.
42 Hz to 52 kHz.
90 Hz to 40 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 may not be as broad. Generalized hearing range chosen based on ∼65 dB threshold from composite audiogram, previous analysis in NMFS 2018, and/or data from Southall et al. 2007; Southall et al. 2019. Additionally, animals are able to detect very loud sounds above
and below that ‘‘generalized’’ hearing range
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For more detail concerning these
groups and associated frequency ranges,
please see NMFS (2018, 2024) for a
review of available information.
Potential Effects of the Specified
Activity on Marine Mammals and Their
Habitat
This section provides a discussion of
the ways in which components of the
specified activity may impact marine
mammals and their habitat. The
Estimated Take of Marine Mammals
section later in this document includes
a quantitative analysis of the number of
individuals that are expected to be taken
by this activity. The Negligible Impact
Analysis and Determination section
considers the content of this section, the
Estimated Take of Marine Mammals
section, and the Proposed Mitigation
section, to draw conclusions regarding
the likely impacts of these activities on
the reproductive success or survivorship
of individuals and whether those
impacts are reasonably likely to,
adversely affect the species or stock
through effects on annual rates of
recruitment or survival.
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Acoustic effects on marine mammals
during the specified activities are
expected to potentially occur from
vibratory pile installation and removal
and impact pile installation. The effects
of underwater noise from the POA’s
proposed activities have the potential to
result in Level B harassment of marine
mammals in the project area and, for
some species as a result of certain
activities, Level A harassment.
Background on Sound
This section contains a brief technical
background on sound, on the
characteristics of certain sound types
and on metrics used relevant to the
specified activity and to a discussion of
the potential effects of the specified
activities on marine mammals found
later in this document. For general
information on sound and its interaction
with the marine environment, please
see: Erbe and Thomas (2022); Au and
Hastings (2008); Richardson et al.
(1995); Urick (1983); as well as the
Discovery of Sound in the Sea website
at https://dosits.org/.
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Sound is a vibration that travels as an
acoustic wave through a medium such
as a gas, liquid or solid. Sound waves
alternately compress and decompress
the medium as the wave travels. In
water, sound waves radiate in a manner
similar to ripples on the surface of a
pond and may be either directed in a
beam (narrow beam or directional
sources) or sound may radiate in all
directions (omnidirectional sources), as
is the case for sound produced by the
construction activities considered here.
The compressions and decompressions
associated with sound waves are
detected as changes in pressure by
marine mammals and human-made
sound receptors such as hydrophones.
Sound travels more efficiently in
water than almost any other form of
energy, making the use of sound as a
primary sensory modality ideal for
inhabitants of the aquatic environment.
In seawater, sound travels at roughly
1,500 meters per second (m/s). In air,
sound waves travel much more slowly
at about 340 m/s. However, the speed of
sound in water can vary by a small
amount based on characteristics of the
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transmission medium such as
temperature and salinity.
The basic characteristics of a sound
wave are frequency, wavelength,
velocity, and amplitude. Frequency is
the number of pressure waves that pass
by a reference point per unit of time and
is measured in hertz (Hz) or cycles per
second. Wavelength is the distance
between two peaks or corresponding
points of a sound wave (length of one
cycle). Higher frequency sounds have
shorter wavelengths than lower
frequency sounds, and typically
attenuate (decrease) more rapidly with
distance. The amplitude of a sound
pressure wave is related to the
subjective ‘‘loudness’’ of a sound and is
typically expressed in dB, which are a
relative unit of measurement that is
used to express the ratio of one value of
a power or pressure to another. A sound
pressure level (SPL) in dB is described
as the ratio between a measured
pressure and a reference pressure, and
is a logarithmic unit that accounts for
large variations in amplitude; therefore,
a relatively small change in dB
corresponds to large changes in sound
pressure. For example, a 10-dB increase
is a ten-fold increase in acoustic power.
A 20-dB increase is then a 100-fold
increase in power and a 30-dB increase
is a 1,000-fold increase in power.
However, a ten-fold increase in acoustic
power does not mean that the sound is
perceived as being 10 times louder due
to the anatomy of mammalian ears. A
10-dB increase in sound is perceived as
a doubling of loudness to the human
ear, and marine mammal studies of
loudness perception are ongoing
(Houser et al. 2017).
The dB is a relative unit comparing
two pressures; therefore, a reference
pressure must always be indicated. For
underwater sound, this is 1 microPascal
(mPa). For in-air sound, the reference
pressure is 20 microPascal (mPa). The
amplitude of a sound can be presented
in various ways; however, NMFS
typically considers three metrics: sound
exposure level (SEL), root-mean-square
(RMS) SPL, and peak SPL (defined
below). The source level represents the
SPL referenced at a standard distance
from the source, typically 1 m
(Richardson et al., 1995; American
National Standards Institute (ANSI,
2013), while the received level is the
SPL at the receiver’s position. For pile
driving activities, the SPL is typically
referenced at 10 m.
SEL (represented as dB referenced to
1 micropascal squared second (re 1
mPa2-s)) represents the total energy in a
stated frequency band over a stated time
interval or event, and considers both
intensity and duration of exposure. The
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per-pulse SEL (e.g., single strike or
single shot SEL) is calculated over the
time window containing the entire
pulse (i.e., 100 percent of the acoustic
energy). SEL can also be a cumulative
metric; it can be accumulated over a
single pulse (for pile driving this is the
same as single-strike SEL, above; SELss),
or calculated over periods containing
multiple pulses (SELcum). Cumulative
SEL (SELcum) represents the total energy
accumulated by a receiver over a
defined time window or during an
event. The SEL metric is useful because
it allows sound exposures of different
durations to be related to one another in
terms of total acoustic energy. The
duration of a sound event and the
number of pulses, however, should be
specified as there is no accepted
standard duration over which the
summation of energy is measured.
RMS SPL is equal to 10 times the
logarithm (base 10) of the ratio of the
mean-square sound pressure to the
specified reference value, and given in
units of dB (International Organization
for Standardization (ISO), 2017). RMS is
calculated by squaring all of the sound
amplitudes, averaging the squares, and
then taking the square root of the
average (Urick, 1983). RMS accounts for
both positive and negative values;
squaring the pressures makes all values
positive so that they may be accounted
for in the summation of pressure levels
(Hastings and Popper, 2005). This
measurement is often used in the
context of discussing behavioral effects,
in part because behavioral effects,
which often result from auditory cues,
may be better expressed through
averaged units than by peak SPL. For
impulsive sounds, RMS is calculated by
the portion of the waveform containing
90 percent of the sound energy from the
impulsive event (Madsen, 2005).
Peak SPL (also referred to as zero-topeak sound pressure or 0-pk) is the
maximum instantaneous sound pressure
measurable in the water, which can
arise from a positive or negative sound
pressure, during a specified time, for a
specific frequency range at a specified
distance from the source, and is
represented in the same units as the
RMS sound pressure (ISO, 2017). Along
with SEL, this metric is used in
evaluating the potential for permanent
threshold shift (PTS) and temporary
threshold shift (TTS) associated with
impulsive sound sources.
Sounds are also characterized by their
temporal components. Continuous
sounds are those whose sound pressure
level remains above that of the ambient
or background sound with negligibly
small fluctuations in level (ANSI, 2005)
while intermittent sounds are defined as
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sounds with interrupted levels of low or
no sound (National Institute for
Occupational Safety and Health
(NIOSH), 1998). A key distinction
between continuous and intermittent
sound sources is that intermittent
sounds have a more regular
(predictable) pattern of bursts of sounds
and silent periods (i.e., duty cycle),
which continuous sounds do not.
Sounds may be either impulsive or
non-impulsive (defined below). The
distinction between these two sound
types is important because they have
differing potential to cause physical
effects, particularly with regard to noiseinduced hearing loss (e.g., Ward, 1997
in Southall et al., 2007). Please see
NMFS (2018) and Southall et al. (2007,
2019) for an in-depth discussion of
these concepts.
Impulsive sound sources (e.g.,
explosions, gunshots, sonic booms,
seismic airgun shots, impact pile
driving) produce signals that are brief
(typically considered to be less than 1
second), broadband, atonal transients
(ANSI, 1986, 2005; NIOSH, 1998) and
occur either as isolated events or
repeated in some succession. Impulsive
sounds are all characterized by a
relatively rapid rise from ambient
pressure to a maximal pressure value
followed by a rapid decay period that
may include a period of diminishing,
oscillating maximal and minimal
pressures, and generally have an
increased capacity to induce physical
injury as compared with sounds that
lack these features. Impulsive sounds
are intermittent in nature. The duration
of such sounds, as received at a
distance, can be greatly extended in a
highly reverberant environment.
Non-impulsive sounds can be tonal,
narrowband, or broadband, brief or
prolonged, and may be either
continuous or non-continuous (i.e.,
intermittent) (ANSI, 1995; NIOSH,
1998). Some of these non-impulsive
sounds can be transient signals of short
duration but without the essential
properties of impulses (e.g., rapid rise
time). Examples of non-impulsive
sounds include those produced by
vessels, aircraft, machinery operations
such as drilling or dredging, vibratory
pile driving, and active sonar systems.
Even in the absence of sound from the
specified activity, the underwater
environment is characterized by sounds
from both natural and anthropogenic
sound sources. Ambient sound is
defined as a composite of naturallyoccurring (i.e., non-anthropogenic)
sound from many sources both near and
far (ANSI, 1995). Background sound is
similar but includes all sounds,
including anthropogenic sounds minus
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the sound produced by the proposed
activities (NMFS, 2012, 2016a). The
sound level of a region is defined by the
total acoustical energy being generated
by known and unknown sources. These
sources may include physical (e.g.,
wind and waves, earthquakes, ice,
atmospheric sound), biological (e.g.,
sounds produced by marine mammals,
fish, and invertebrates), and
anthropogenic (e.g., vessels, dredging,
construction) sound. A number of
sources contribute to background and
ambient sound, including wind and
waves, which are a main source of
naturally occurring ambient sound for
frequencies between 200 Hz and 50
kilohertz (kHz) (Mitson, 1995). In
general, background and ambient sound
levels tend to increase with increasing
wind speed and wave height.
Precipitation can become an important
component of total sound at frequencies
above 500 Hz, and possibly down to 100
Hz during quiet times. Marine mammals
can contribute significantly to
background and ambient sound levels,
as can some fish and snapping shrimp.
The frequency band for biological
contributions is from approximately 12
Hz to over 100 kHz. Sources of
background sound related to human
activity include transportation (surface
vessels), dredging and construction, oil
and gas drilling and production,
geophysical surveys, sonar, and
explosions. Vessel noise typically
dominates the total background sound
for frequencies between 20 and 300 Hz.
In general, the frequencies of many
anthropogenic sounds, particularly
those produced by construction
activities, are below 1 kHz (Richardson
et al., 1995). When sounds at
frequencies greater than 1 kHz are
produced, they generally attenuate
relatively rapidly (Richardson et al.,
1995), particularly above 20 kHz due to
propagation losses and absorption
(Urick, 1983).
Transmission loss (TL) defines the
degree to which underwater sound has
spread in space and lost energy after
having moved through the environment
and reached a receiver. It is defined by
the ISO as the reduction in a specified
level between two specified points that
are within an underwater acoustic field
(ISO, 2017). Careful consideration of
transmission loss and appropriate
propagation modeling is a crucial step
in determining the impacts of
underwater sound, as it helps to define
the ranges (isopleths) to which impacts
are expected and depends significantly
on local environmental parameters such
as seabed type, water depth
(bathymetry), and the local speed of
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sound. Geometric spreading laws are
powerful tools which provide a simple
means of estimating TL, based on the
shape of the sound wave front in the
water column. For a sound source that
is equally loud in all directions and in
deep water, the sound field takes the
form of a sphere, as the sound extends
in every direction uniformly. In this
case, the intensity of the sound is spread
across the surface of the sphere, and
thus we can relate intensity loss to the
square of the range (as area = 4*pi*r2).
This can be expressed logarithmically,
where TL = 20*Log10(range). This
situation is known as spherical
spreading. In shallow water, the sea
surface and seafloor will bound the
shape of the sound wave, leading to a
more cylindrical shape, as the top and
bottom of the sphere is truncated by the
largely reflective boundaries. This
situation is termed cylindrical
spreading, and is given by TL =
10*Log10(range) (Urick, 1983). An
intermediate scenario may be defined by
the equation TL = 15*Log10(range), and
is referred to as practical spreading.
Though these geometric spreading
scenarios do not capture many often
important details (scattering, absorption,
etc.), they offer a reasonable and simple
approximation of how sound decreases
in intensity as it is transmitted. In the
absence of measured data indicating the
level of transmission loss at a given site
for a specific activity, NMFS
recommends practical spreading (i.e.,
TL = 15*Log10(range)) to model acoustic
propagation for construction activities
in most nearshore environments.
The sum of the various natural and
anthropogenic sound sources at any
given location and time depends not
only on the source levels, but also on
the propagation of sound through the
environment. Sound propagation is
dependent on the spatially and
temporally varying properties of the
water column and sea floor, and is
frequency-dependent. As a result of the
dependence on a large number of
varying factors, background and
ambient sound levels can be expected to
vary widely over both coarse and fine
spatial and temporal scales. Sound
levels at a given frequency and location
can vary by 10 to 20 dB from day to day
(Richardson et al., 1995). The result is
that, depending on the source type and
its intensity, sound from the specified
activity may be a negligible addition to
the local environment or could form a
distinctive signal that may affect marine
mammals.
Background underwater noise levels
in the CTR Project area are both variable
and relatively high, primarily because of
extreme tidal activity, elevated sediment
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loads in the water column, periodic
high winds, the seasonal presence of
ice, and anthropogenic activities.
Sources of anthropogenic noise in the
CTR Project area consist of dredging
operations, boats, ships, oil and gas
operations, construction noise, and
aircraft overflights from JBER and Ted
Stevens International Airport, all of
which contribute to high underwater
noise levels in upper Cook Inlet (e.g.,
Blackwell and Greene, 2002; (Knik Arm
Bridge and Toll Authority (KABATA),
2011; Castellote et al., 2018).
Background sound levels were
measured at the POA during the PAMP
2016 Test Pile Program (TPP) in the
absence of pile driving at two locations
during a 3-day break in pile installation.
Median background noise levels,
measured at a location just offshore of
the POA SFD and at a second location
about 1 km offshore, were 117 and 122.2
dB RMS, respectively (Austin et al.,
2016). NMFS considers the median
sound levels to be most appropriate
when considering background noise
levels for purposes of evaluating the
potential impacts of the proposed
project on marine mammals (NMFS,
2012). By using the median value,
which is the 50th percentile of the
measurements, for background noise
levels, one will be able to eliminate the
few transient loud identifiable events
that do not represent the true ambient
condition of the area. This is relevant
because during 2 of the 4 days (50
percent) when background
measurement data were being collected,
the USACE was dredging Terminal 3
(located just north of the AmbientOffshore hydrophone) for 24 hours per
day with two 1-hour breaks for crew
change. On the last 2 days of data
collection, no dredging occurred.
Therefore, the median provides a better
representation of background noise
levels when the CTR project would be
occurring. During the measurements,
some typical sound signals were noted,
such as noise from current flow and the
passage of vessels.
With regard to spatial considerations
of the measurements, the offshore
location is most applicable to assessing
background sound during the CTR
project (NMFS, 2012). The median
background noise level measured at the
offshore hydrophone was 122.2 dB
RMS. The measurement location closer
to the POA was quieter, with a median
of 117 dB; however, that hydrophone
was placed very close to a dock. During
PCT acoustic monitoring, noise levels in
Knik Arm absent pile driving were also
collected (Illingworth & Rodkin (I&R),
2021a, 2022b)); however, the PCT IHAs
did not require background noise
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measurements to be collected in
adherence with NMFS (2012)
methodological recommendations.
Despite this, the noise levels measured
during the PCT project were not
significantly different from 122.2 dB
(I&R, 2021a, 2022b). If additional
background data are collected in the
future in this region, NMFS may reevaluate the data to appropriately
characterize background sound levels in
Knik Arm.
Description of Sound Sources for the
Specified Activities
In-water construction activities
associated with the project that have the
potential to incidentally take marine
mammals through exposure to sound
would include impact pile installation
and vibratory pile installation and
removal. Impact hammers typically
operate by repeatedly dropping and/or
pushing a heavy piston onto a pile to
drive the pile into the substrate. Sound
generated by impact hammers is
impulsive, characterized by rapid rise
times and high peak levels, a potentially
injurious combination (Hastings and
Popper, 2005). Vibratory hammers
install piles by vibrating them and
allowing the weight of the hammer to
push them into the sediment. Vibratory
hammers typically produce less sound
(i.e., lower levels) than impact
hammers. Peak SPLs may be 180 dB or
greater but are generally 10 to 20 dB
lower than SPLs generated during
impact pile driving of the same-sized
pile (Oestman et al., 2009; California
Department of Transportation
(CALTRANS), 2015, 2020). Sounds
produced by vibratory hammers are
non-impulsive; the rise time is slower,
reducing the probability and severity of
injury, and the sound energy is
distributed over a greater amount of
time (Nedwell and Edwards, 2002;
Carlson et al., 2005).
The likely or possible impacts of the
POA’s proposed activities on marine
mammals could involve both nonacoustic and acoustic stressors.
Potential non-acoustic stressors could
result from the physical presence of the
equipment and personnel; however,
given there are no known pinniped
haul-out sites in the vicinity of the CTR
project site, visual and other nonacoustic stressors would be limited, and
any impacts to marine mammals are
expected to primarily be acoustic in
nature.
Acoustic Impacts
The introduction of anthropogenic
noise into the aquatic environment from
pile driving is the primary means by
which marine mammals may be
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harassed from the POA’s specified
activity. In general, animals exposed to
natural or anthropogenic sound may
experience physical and psychological
effects, ranging in magnitude from none
to severe (Southall et al., 2007, 2019).
Exposure to pile driving noise has the
potential to result in auditory threshold
shifts and behavioral reactions (e.g.,
avoidance, temporary cessation of
foraging and vocalizing, changes in dive
behavior). Exposure to anthropogenic
noise can also lead to non-observable
physiological responses, such as an
increase in stress hormones. Additional
noise in a marine mammal’s habitat can
mask acoustic cues used by marine
mammals to carry out daily functions,
such as communication and predator
and prey detection. The effects of pile
driving noise on marine mammals are
dependent on several factors, including,
but not limited to, sound type (e.g.,
impulsive vs. non-impulsive), the
species, age and sex class (e.g., adult
male vs. mom with calf), duration of
exposure, the distance between the pile
and the animal, received levels,
behavior at time of exposure, and
previous history with exposure
(Wartzok et al., 2004; Southall et al.,
2007). Here, we discuss physical
auditory effects (threshold shifts)
followed by behavioral effects and
potential impacts on habitat.
NMFS defines a noise-induced
threshold shift (TS) as a change, usually
an increase, in the threshold of
audibility at a specified frequency or
portion of an individual’s hearing range
above a previously established reference
level (NMFS, 2018). The amount of
threshold shift is customarily expressed
in dB. A TS can be permanent or
temporary. As described in NMFS
(2018, 2024) there are numerous factors
to consider when examining the
consequence of TS, including, but not
limited to, the signal temporal pattern
(e.g., impulsive or non-impulsive),
likelihood an individual would be
exposed for a long enough duration or
to a high enough level to induce a TS,
the magnitude of the TS, time to
recovery (seconds to minutes or hours to
days), the frequency range of the
exposure (i.e., spectral content), the
hearing frequency range of the exposed
species relative to the signal’s frequency
spectrum (i.e., how animal uses sound
within the frequency band of the signal;
e.g., Kastelein et al., 2014), and the
overlap between the animal and the
source (e.g., spatial, temporal, and
spectral).
Auditory Injury and Permanent
Threshold Shift (PTS). NMFS defines
auditory injury as ‘‘damage to the inner
ear that can result in destruction of
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tissue . . . which may or may not result
in PTS’’ (NMFS, 2024). NMFS defines
PTS as a permanent, irreversible
increase in the threshold of audibility at
a specified frequency or portion of an
individual’s hearing range above a
previously established reference level
(NMFS, 2024). PTS does not generally
affect more than a limited frequency
range, and an animal that has incurred
PTS has incurred some level of hearing
loss at the relevant frequencies;
typically, animals with PTS are not
functionally deaf (Au and Hastings,
2008; Finneran, 2016). Available data
from humans and other terrestrial
mammals indicate that a 40–dB
threshold shift approximates PTS onset
(see Ward et al., 1958, 1959, 1960;
Kryter et al., 1966; Miller, 1974; Ahroon
et al., 1996; Henderson et al., 2008). PTS
levels for marine mammals are
estimates, as with the exception of a
single study unintentionally inducing
PTS in a harbor seal (Kastak et al.,
2008), there are no empirical data
measuring PTS in marine mammals
largely due to the fact that, for various
ethical reasons, experiments involving
anthropogenic noise exposure at levels
inducing PTS are not typically pursued
or authorized (NMFS, 2018).
Temporary Threshold Shift (TTS). A
temporary, reversible increase in the
threshold of audibility at a specified
frequency or portion of an individual’s
hearing range above a previously
established reference level (NMFS,
2018). Based on data from marine
mammal TTS measurements (see
Southall et al., 2007, 2019), a TTS of 6
dB is considered the minimum
threshold shift clearly larger than any
day-to-day or session-to-session
variation in a subject’s normal hearing
ability (Finneran et al., 2000, 2002;
Schlundt et al., 2000). As described in
Finneran (2015), marine mammal
studies have shown the amount of TTS
increases with SELcum in an accelerating
fashion: at low exposures with lower
SELcum, the amount of TTS is typically
small and the growth curves have
shallow slopes. At exposures with
higher SELcum, the growth curves
become steeper and approach linear
relationships with the noise SEL.
Depending on the degree (elevation of
threshold in dB), duration (i.e., recovery
time), and frequency range of TTS, and
the context in which it is experienced,
TTS can have effects on marine
mammals ranging from discountable to
serious (similar to those discussed in
auditory masking, below). For example,
a marine mammal may be able to readily
compensate for a brief, relatively small
amount of TTS in a non-critical
frequency range that takes place during
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a time when the animal is traveling
through the open ocean, where ambient
noise is lower and there are not as many
competing sounds present.
Alternatively, a larger amount and
longer duration of TTS sustained during
time when communication is critical for
successful mother/calf interactions
could have more serious impacts. We
note that reduced hearing sensitivity as
a simple function of aging has been
observed in marine mammals, as well as
humans and other taxa (Southall et al.,
2007), so we can infer that strategies
exist for coping with this condition to
some degree, though likely not without
cost.
Many studies have examined noiseinduced hearing loss in marine
mammals (see Finneran (2015) and
Southall et al. (2019) for summaries).
TTS is the mildest form of hearing
impairment that can occur during
exposure to sound (Kryter, 2013). While
experiencing TTS, the hearing threshold
rises, and a sound must be at a higher
level in order to be heard. In terrestrial
and marine mammals, TTS can last from
minutes or hours to days (in cases of
strong TTS). In many cases, hearing
sensitivity recovers rapidly after
exposure to the sound ends. For
cetaceans, published data on the onset
of TTS are limited to captive bottlenose
dolphin (Tursiops truncatus), beluga
whale, harbor porpoise, and Yangtze
finless porpoise (Neophocoena
asiaeorientalis) (Southall et al., 2019).
For pinnipeds in water, measurements
of TTS are limited to harbor seals,
elephant seals (Mirounga angustirostris),
bearded seals (Erignathus barbatus) and
California sea lions (Zalophus
californianus) (Kastak et al., 1999, 2007;
Kastelein et al., 2019b, 2019c, 2021,
2022a, 2022b; Reichmuth et al., 2019;
Sills et al., 2020). TTS was not observed
in spotted (Phoca largha) and ringed
(Pusa hispida) seals exposed to single
airgun impulse sounds at levels
matching previous predictions of TTS
onset (Reichmuth et al., 2016). These
studies examine hearing thresholds
measured in marine mammals before
and after exposure to intense or longduration sound exposures. The
difference between the pre-exposure
and post-exposure thresholds can be
used to determine the amount of
threshold shift at various post-exposure
times.
The amount and onset of TTS
depends on the exposure frequency.
Sounds at low frequencies, well below
the region of best sensitivity for a
species or hearing group, are less
hazardous than those at higher
frequencies, near the region of best
sensitivity (Finneran and Schlundt,
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2013). At low frequencies, onset-TTS
exposure levels are higher compared to
those in the region of best sensitivity
(i.e., a low frequency noise would need
to be louder to cause TTS onset when
TTS exposure level is higher), as shown
for harbor porpoises and harbor seals
(Kastelein et al., 2019a, 2019c). Note
that in general, harbor seals and harbor
porpoises have a lower TTS onset than
other measured pinniped or cetacean
species (Finneran, 2015). In addition,
TTS can accumulate across multiple
exposures, but the resulting TTS will be
less than the TTS from a single,
continuous exposure with the same SEL
(Mooney et al., 2009; Finneran et al.,
2010; Kastelein et al., 2014, 2015). This
means that TTS predictions based on
the total, cumulative SEL will
overestimate the amount of TTS from
intermittent exposures, such as sonars
and impulsive sources. Nachtigall et al.
(2018) describe measurements of
hearing sensitivity of multiple
odontocete species (bottlenose dolphin,
harbor porpoise, beluga, and false killer
whale (Pseudorca crassidens)) when a
relatively loud sound was preceded by
a warning sound. These captive animals
were shown to reduce hearing
sensitivity when warned of an
impending intense sound. Based on
these experimental observations of
captive animals, the authors suggest that
wild animals may dampen their hearing
during prolonged exposures or if
conditioned to anticipate intense
sounds. Another study showed that
echolocating animals (including
odontocetes) might have anatomical
specializations that might allow for
conditioned hearing reduction and
filtering of low-frequency ambient
noise, including increased stiffness and
control of middle ear structures and
placement of inner ear structures
(Ketten et al., 2021). Data available on
noise-induced hearing loss for
mysticetes are currently lacking (NMFS,
2018). Additionally, the existing marine
mammal TTS data come from a limited
number of individuals within these
species.
Relationships between TTS and PTS
thresholds have not been studied in
marine mammals, and there is no PTS
data for cetaceans. However, such
relationships are assumed to be similar
to those in humans and other terrestrial
mammals. PTS typically occurs at
exposure levels at least several dB above
that inducing mild TTS (e.g., a 40-dB
threshold shift approximates PTS onset
(Kryter et al., 1966; Miller, 1974), while
a 6-dB threshold shift approximates TTS
onset (Southall et al., 2007, 2019). Based
on data from terrestrial mammals, a
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precautionary assumption is that the
PTS thresholds for impulsive sounds
(such as impact pile driving pulses as
received close to the source) are at least
6 dB higher than the TTS threshold on
a peak-pressure basis, and PTS
cumulative sound exposure level
thresholds are 15 to 20 dB higher than
TTS cumulative sound exposure level
thresholds (Southall et al., 2007, 2019).
Given the higher level of sound or
longer exposure duration necessary to
cause PTS as compared with TTS, it is
considerably less likely that PTS could
occur.
Behavioral Harassment. Exposure to
noise also has the potential to
behaviorally disturb marine mammals to
a level that rises to the definition of
harassment under the MMPA. Generally
speaking, NMFS considers a behavioral
disturbance that rises to the level of
harassment under the MMPA a nonminor response—in other words, not
every response qualifies as behavioral
disturbance, and for responses that do,
those of a higher level, or accrued across
a longer duration, have the potential to
affect foraging, reproduction, or
survival. Behavioral disturbance may
include a variety of effects, including
subtle changes in behavior (e.g., minor
or brief avoidance of an area or changes
in vocalizations), more conspicuous
changes in similar behavioral activities,
and more sustained and/or potentially
severe reactions, such as displacement
from or abandonment of high-quality
habitat. Behavioral responses may
include changing durations of surfacing
and dives; changing direction and/or
speed; reducing/increasing vocal
activities; changing/cessation of certain
behavioral activities (such as socializing
or feeding); eliciting a visible startle
response or aggressive behavior (such as
tail/fin slapping or jaw clapping);
avoidance of areas where sound sources
are located. Pinnipeds may increase
their haul out time, possibly to avoid inwater disturbance (Thorson and Reyff,
2006).
Behavioral responses to sound are
highly variable and context-specific and
any reactions depend on numerous
intrinsic and extrinsic factors (e.g.,
species, state of maturity, experience,
current activity, reproductive state,
auditory sensitivity, time of day), as
well as the interplay between factors
(e.g., Richardson et al., 1995; Wartzok et
al., 2004; Southall et al., 2007, 2019;
Weilgart, 2007; Archer et al., 2010, Erbe
et al., 2019). Behavioral reactions can
vary not only among individuals but
also within an individual, depending on
previous experience with a sound
source, context, and numerous other
factors (Ellison et al., 2012), and can
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vary depending on characteristics
associated with the sound source (e.g.,
whether it is moving or stationary,
number of sources, distance from the
source). In general, pinnipeds seem
more tolerant of, or at least habituate
more quickly to, potentially disturbing
underwater sound than do cetaceans
and generally seem to be less responsive
to exposure to industrial sound than
most cetaceans. Please see appendices B
and C of Southall et al. (2007) and
Gomez et al. (2016) for reviews of
studies involving marine mammal
behavioral responses to sound.
Habituation can occur when an
animal’s response to a stimulus wanes
with repeated exposure, usually in the
absence of unpleasant associated events
(Wartzok et al., 2004). Animals are most
likely to habituate to sounds that are
predictable and unvarying. It is
important to note that habituation is
appropriately considered as a
‘‘progressive reduction in response to
stimuli that are perceived as neither
aversive nor beneficial,’’ rather than as,
more generally, moderation in response
to human disturbance (Bejder et al.,
2009). The opposite process is
sensitization, when an unpleasant
experience leads to subsequent
responses, often in the form of
avoidance, at a lower level of exposure.
As noted above, behavioral state may
affect the type of response. For example,
animals that are resting may show
greater behavioral change in response to
disturbing sound levels than animals
that are highly motivated to remain in
an area for feeding (Richardson et al.,
1995; Wartzok et al., 2004; National
Research Council (NRC), 2005).
Controlled experiments with captive
marine mammals have showed
pronounced behavioral reactions,
including avoidance of loud sound
sources (Ridgway et al., 1997; Finneran
et al., 2003). Observed responses of wild
marine mammals to loud pulsed sound
sources (e.g., seismic airguns) have been
varied but often consist of avoidance
behavior or other behavioral changes
(Richardson et al., 1995; Morton and
Symonds, 2002; Nowacek et al., 2007).
Available studies show wide variation
in response to underwater sound;
therefore, it is difficult to predict
specifically how any given sound in a
particular instance might affect marine
mammals perceiving the signal (e.g.,
Erbe et al., 2019). If a marine mammal
does react briefly to an underwater
sound by changing its behavior or
moving a small distance, the impacts of
the change are unlikely to be significant
to the individual, let alone the stock or
population. However, if a sound source
displaces marine mammals from an
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important feeding or breeding area for a
prolonged period, impacts on
individuals and populations could be
significant (e.g., Lusseau and Bejder,
2007; Weilgart, 2007; NRC, 2005).
However, there are broad categories of
potential response, which we describe
in greater detail here, that include
alteration of dive behavior, alteration of
foraging behavior, effects to breathing,
interference with or alteration of
vocalization, avoidance, and flight.
Changes in dive behavior can vary
widely and may consist of increased or
decreased dive times and surface
intervals as well as changes in the rates
of ascent and descent during a dive (e.g.,
Frankel and Clark, 2000; Costa et al.,
2003; Ng and Leung, 2003; Nowacek et
al., 2004; Goldbogen et al., 2013a,
2013b, Blair et al., 2016). Variations in
dive behavior may reflect interruptions
in biologically significant activities (e.g.,
foraging) or they may be of little
biological significance. The impact of an
alteration to dive behavior resulting
from an acoustic exposure depends on
what the animal is doing at the time of
the exposure and the type and
magnitude of the response.
Disruption of feeding behavior can be
difficult to correlate with anthropogenic
sound exposure, so it is usually inferred
by observed displacement from known
foraging areas, the appearance of
secondary indicators (e.g., bubble nets
or sediment plumes) or changes in dive
behavior. However, acoustic and
movement bio-logging tools have been
used in some cases, to infer responses
of feeding to anthropogenic noise. For
example, Blair et al. (2016) reported
significant effects on humpback whale
foraging behavior in Stellwagen Bank in
response to ship noise including slower
descent rates, and fewer side-rolling
events per dive with increasing ship
nose. In addition, Wisniewska et al.
(2018) reported that tagged harbor
porpoises demonstrated fewer prey
capture attempts when encountering
occasional high-noise levels resulting
from vessel noise as well as more
vigorous fluking, interrupted foraging,
and cessation of echolocation signals
observed in response to some high-noise
vessel passes.
In response to playbacks of vibratory
pile driving sounds, captive bottlenose
dolphins showed changes in target
detection and number of clicks used for
a trained echolocation task (Branstetter
et al. 2018). Similarly, harbor porpoises
trained to collect fish during playback of
impact pile driving sounds also showed
potential changes in behavior and task
success, though individual differences
were prevalent (Kastelein et al. 2019d).
As for other types of behavioral
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response, the frequency, duration, and
temporal pattern of signal presentation,
as well as differences in species
sensitivity, are likely contributing
factors to differences in response in any
given circumstance (e.g., Croll et al.,
2001; Nowacek et al., 2004; Madsen et
al., 2006; Yazvenko et al., 2007). A
determination of whether foraging
disruptions incur fitness consequences
would require information on or
estimates of the energetic requirements
of the affected individuals and the
relationships among prey availability,
foraging effort and success, and the life
history stage(s) of the animal.
Variations in respiration naturally
vary with different behaviors and
alterations to breathing rate as a
function of acoustic exposure can be
expected to co-occur with other
behavioral reactions, such as a flight
response or an alteration in diving.
However, respiration rates in and of
themselves may be representative of
annoyance or an acute stress response.
Various studies have shown that
respiration rates may either be
unaffected or could increase, depending
on the species and signal characteristics,
again highlighting the importance in
understanding species differences in the
tolerance of underwater noise when
determining the potential for impacts
resulting from anthropogenic sound
exposure (e.g., Kastelein et al., 2001,
2005, 2006; Gailey et al., 2007). For
example, harbor porpoise’ respiration
rate increased in response to pile
driving sounds at and above a received
broadband SPL of 136 dB (zero-peak
SPL: 151 dB re 1 mPa; SEL of a single
strike: 127 dB re 1 mPa2-s) (Kastelein et
al., 2013).
Avoidance is the displacement of an
individual from an area or migration
path as a result of the presence of a
sound or other stressors, and is one of
the most obvious manifestations of
disturbance in marine mammals
(Richardson et al., 1995). For example,
gray whales are known to change
direction—deflecting from customary
migratory paths—in order to avoid noise
from seismic surveys (Malme et al.,
1984). In response to construction noise
from offshore wind farms, harbor
porpoises and harbor seals have
demonstrated avoidance on the scale of
hours to weeks (Brandt et al., 2018;
Russell et al., 2016). Avoidance may be
short-term, with animals returning to
the area once the noise has ceased (e.g.,
Bowles et al., 1994; Goold, 1996; Stone
et al., 2000; Morton and Symonds, 2002;
Gailey et al., 2007). Longer-term
displacement is possible, however,
which may lead to changes in
abundance or distribution patterns of
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the affected species in the affected
region if habituation to the presence of
the sound does not occur (e.g.,
Blackwell et al., 2004; Bejder et al.,
2006; Teilmann et al., 2006).
A flight response is a dramatic change
in normal movement to a directed and
rapid movement away from the
perceived location of a sound source.
The flight response differs from other
avoidance responses in the intensity of
the response (e.g., directed movement,
rate of travel). Relatively little
information on flight responses of
marine mammals to anthropogenic
signals exist, although observations of
flight responses to the presence of
predators have occurred (Connor and
Heithaus, 1996; Bowers et al., 2018).
The result of a flight response could
range from brief, temporary exertion and
displacement from the area where the
signal provokes flight to, in extreme
cases, marine mammal strandings
(England et al., 2001). However, it
should be noted that response to a
perceived predator does not necessarily
invoke flight (Ford and Reeves, 2008),
and whether individuals are solitary or
in groups may influence the response.
Behavioral disturbance can also
impact marine mammals in more subtle
ways. Increased vigilance may result in
costs related to diversion of focus and
attention (i.e., when a response consists
of increased vigilance, it may come at
the cost of decreased attention to other
critical behaviors such as foraging or
resting). These effects have generally not
been demonstrated for marine
mammals, but studies involving fishes
and terrestrial animals have shown that
increased vigilance may substantially
reduce feeding rates (e.g., Beauchamp
and Livoreil, 1997; Fritz et al., 2002;
Purser and Radford, 2011). In addition,
chronic disturbance can cause
population declines through reduction
of fitness (e.g., decline in body
condition) and subsequent reduction in
reproductive success, survival, or both
(e.g., Harrington and Veitch, 1992; Daan
et al., 1996; Bradshaw et al., 1998).
However, Ridgway et al. (2006) reported
that increased vigilance in bottlenose
dolphins exposed to sound over a 5-day
period did not cause any sleep
deprivation or stress effects.
Many animals perform vital functions,
such as feeding, resting, traveling, and
socializing, on a diel cycle (24-hour
cycle). Disruption of such functions
resulting from reactions to stressors
such as sound exposure are more likely
to be significant if they last more than
one diel cycle or recur on subsequent
days (Southall et al., 2007).
Consequently, a behavioral response
lasting less than 1 day and not recurring
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on subsequent days is not considered
particularly severe unless it could
directly affect reproduction or survival
(Southall et al., 2007). Note that there is
a difference between multi-day
substantive (i.e., meaningful) behavioral
reactions and multi-day anthropogenic
activities. For example, just because an
activity lasts for multiple days does not
necessarily mean that individual
animals are either exposed to activityrelated stressors for multiple days or,
further, exposed in a manner resulting
in sustained multi-day substantive
behavioral responses.
Behavioral Reactions Observed at the
POA. Specific to recent construction at
the POA, behavioral reactions to pile
driving have not been reported in nonCIBW species. During POA’s PCT
construction, 81 harbor seals were
observed within estimated Level B
harassment zones associated with
vibratory and impact installation and
removal of 36-in (61-cm) and 144-in
(366-cm) piles, and 5 harbor seals were
observed within estimated Level A
harassment zones during the installation
of 144-in (366-cm) piles. No observable
behavioral reactions were observed in
any of these seals (61N Environmental,
2021, 2022a). One harbor porpoise was
observed within the estimated Level B
harassment zone during vibratory
driving of a 36-in (61-cm) pile in May
2021. The animal was traveling at a
moderate pace. No observable reactions
to pile driving were noted by the PSOs.
Another harbor porpoise near the border
of (and may have been within) the
estimated Level B harassment zone
during the impact installation of 36-in
(61-cm) piles in June 2021, but PSOs did
not record any behavioral responses of
this individual to the pile driving
activities. Similarly 13 harbor seals
observed within estimated Level B
harassment zones associated with pile
driving 36-in (61-cm) piles during
POA’s SFD construction did not exhibit
observable behavioral reactions (61N
Environmental, 2022b).
Specific to CIBWs, several years of
marine mammal monitoring data
demonstrate behavioral responses to
pile driving at the POA. Previous pile
driving activities at the POA include the
installation and removal of sheet piles,
the vibratory and impact installation of
24-in (61-cm), 36-in (91-cm), 48-in (122cm), and 144-in (366-cm) pipe piles, and
the vibratory installation of 72-in (182cm) air bubble casings.
Kendall and Cornick (2015) provide a
comprehensive overview of 4 years of
scientific marine mammal monitoring
conducted before (2005–2006) and
during the POA’s MTRP (2008–2009).
These were observations made by
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biologists at Alaska Pacific University,
funded by the POA and other groups but
independent of the POA’s required
monitoring for pile driving activities
(i.e., not construction based PSOs). The
authors investigated CIBW behavior
before and during pile driving activity at
the POA. Sighting rates, mean sighting
duration, behavior, mean group size,
group composition, and group formation
were compared between the two
periods. A total of about 2,329 hours of
sampling effort was completed across
349 days from 2005 to 2009. Overall,
687 whales in 177 groups were
documented during the 69 days that
whales were sighted. A total of 353 and
1,663 hours of pile driving took place in
2008 and 2009, respectively. There was
no relationship between monthly CIBW
sighting rates and monthly pile driving
rates (r = 0.19, p = 0.37). Sighting rates
before (n = 12; 0.06 ± 0.01) and during
(n = 13; 0.01 ± 0.03) pile driving were
not significantly different. However,
sighting duration of CIBWs decreased
significantly during pile driving (39 ± 6
min before and 18 ± 3 min during).
There were also significant differences
in behavior before versus during pile
driving. CIBWs primarily traveled
through the study area both before and
during pile driving; however, traveling
increased relative to other behaviors
during pile driving. Documentation of
milling was observed on 21 occasions
during pile driving. Mean group size
decreased during pile driving; however,
this difference was not statistically
significant. In addition, group
composition was significantly different
before and during pile driving, with
more white (i.e., likely older) animals
being present during pile driving
(Kendall and Cornick, 2015). CIBWs
were primarily observed densely packed
before and during pile driving; however,
the number of densely packed groups
increased by approximately 67 percent
during pile driving. There were also
significant increases in the number of
dispersed groups (approximately 81
percent) and lone white whales
(approximately 60 percent) present
during pile driving than before pile
driving (Kendall and Cornick, 2015).
During PCT and SFD construction
monitoring, behaviors of CIBWs groups
were compared by month and by
construction activity (61N
Environmental, 2021, 2022a, 2022b).
Little variability was evident in the
behaviors recorded from month to
month or among sightings that
coincided with in-water pile installation
and removal and those that did not (61N
Environmental, 2021, 2022a). Definitive
behavioral reactions to in-water pile
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driving or avoidance behaviors were not
documented; however, potential
reactions (where a group reversed its
trajectory shortly after the start of inwater pile driving occurred; a group
reversed its trajectory as it got closer to
the sound source during active in-water
pile driving; or upon an initial sighting,
a group was already moving away from
in-water pile driving, raising the
possibility that it had been moving
towards, but was only sighted after they
turned away) and instances where
CIBWs moved toward active in-water
pile driving were recorded. During these
instances, impact driving appeared to
cause potential behavioral reactions
more readily than vibratory hammering
(61N Environmental, 2021, 2022a,
2022b). One minor difference
documented during PCT construction
was a slightly higher incidence of
milling behavior and diving during the
periods of no pile driving and slightly
higher rates of traveling behavior during
periods when potential CIBW
behavioral reactions to pile driving, as
described above, were recorded (61N
Environmental, 2021, 2022a). Note,
narratives of each CIBW reaction can be
found in the appendices of the POA’s
final monitoring reports (61N
Environmental, 2021, 2022a, 2022b).
Acoustically, Saxon-Kendall et al.
(2013) recorded echolocation clicks
(which can be indicative of feeding
behavior) during the MTR Project at the
POA both while pile driving was
occurring and when it was not. This
indicates that while feeding is not a
predominant behavior that PSOs
visually observed in CIBWs sighted near
the POA (61N Environmental, 2021,
2022a, 2022b, 2022c; Easley-Appleyard
and Leonard, 2022) CIBWs can and still
exhibit feeding behaviors during pile
driving activities. In addition, Castellote
et al. (2020) found low echolocation
detection rates in lower Knik Arm (i.e.,
Six Mile, Port MacKenzie, and Cairn
Point) and suggested that CIBWs moved
through that area relatively quickly
when entering or exiting the Arm. No
whistles or noisy vocalizations were
recorded during the MTRP construction
activities; however, it is possible that
persistent noise associated with
construction activity at the MTR project
masked beluga vocalizations and or that
CIBWs did not use these communicative
signals when they were near the MTR
Project (Saxon-Kendall et al., 2013).
Recently, McHuron et al. (2023)
developed a model to predict general
patterns related to the movement and
foraging decisions of pregnant CIBWs in
Cook Inlet. They found that the effects
of disturbance from human activities,
such as pile driving activities occurring
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at the POA assuming no mitigation
measures, are inextricably linked with
prey availability. If prey are abundant
during the summer and early fall and
prey during winter is above some
critical threshold, pregnant CIBWs can
likely cope with intermittent
disruptions, such as those produced by
pile driving at the POA (McHuron et al.,
2023). However, they stress that more
information needs to be acquired
regarding CIBW prey and CIBW body
condition, specifically in their critical
habitat, to better understand possible
behavioral responses to disturbance.
Stress responses. An animal’s
perception of a threat may be sufficient
to trigger stress responses consisting of
some combination of behavioral
responses, autonomic nervous system
responses, neuroendocrine responses, or
immune responses (e.g., Selye, 1950;
Moberg, 2000). In many cases, an
animal’s first and sometimes most
economical (in terms of energetic costs)
response is behavioral avoidance of the
potential stressor. Autonomic nervous
system responses to stress typically
involve changes in heart rate, blood
pressure, and gastrointestinal activity.
These responses have a relatively short
duration and may or may not have a
significant long-term effect on an
animal’s fitness.
Neuroendocrine stress responses often
involve the hypothalamus-pituitaryadrenal system. Virtually all
neuroendocrine functions that are
affected by stress—including immune
competence, reproduction, metabolism,
and behavior—are regulated by pituitary
hormones. Stress-induced changes in
the secretion of pituitary hormones have
been implicated in failed reproduction,
altered metabolism, reduced immune
competence, and behavioral disturbance
(e.g., Moberg, 1987; Blecha, 2000).
Increases in the circulation of
glucocorticoids are also equated with
stress (Romano et al., 2004).
The primary distinction between
stress (which is adaptive and does not
normally place an animal at risk) and
‘‘distress’’ is the cost of the response.
During a stress response, an animal uses
glycogen stores that can be quickly
replenished once the stress is alleviated.
In such circumstances, the cost of the
stress response would not pose serious
fitness consequences. However, when
an animal does not have sufficient
energy reserves to satisfy the energetic
costs of a stress response, energy
resources must be diverted from other
functions. This state of distress will last
until the animal replenishes its
energetic reserves sufficient to restore
normal function.
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Relationships between these
physiological mechanisms, animal
behavior, and the costs of stress
responses are well-studied through
controlled experiments and for both
laboratory and free-ranging animals
(e.g., Holberton et al., 1996; Hood et al.,
1998; Jessop et al., 2003; Krausman et
al., 2004; Lankford et al., 2005). Stress
responses due to exposure to
anthropogenic sounds or other stressors
and their effects on marine mammals
have also been reviewed (Fair and
Becker, 2000; Romano et al., 2002b)
and, more rarely, studied in wild
populations (e.g., Romano et al., 2002a).
For example, Rolland et al. (2012) found
that noise reduction from reduced ship
traffic in the Bay of Fundy was
associated with decreased stress in
North Atlantic right whales. In addition,
Lemos et al. (2022) observed a
correlation between higher levels of
fecal glucocorticoid metabolite
concentrations (indicative of a stress
response) and vessel traffic in gray
whales. These and other studies lead to
a reasonable expectation that some
marine mammals will experience
physiological stress responses upon
exposure to acoustic stressors and that
it is possible that some of these would
be classified as ‘‘distress.’’ In addition,
any animal experiencing TTS would
likely also experience stress responses
(NRC, 2005), however distress is an
unlikely result of this project based on
observations of marine mammals during
previous, similar construction projects.
Norman (2011) reviewed
environmental and anthropogenic
stressors for CIBWs. Lyamin et al. (2011)
determined that the heart rate of a
beluga whale increases in response to
noise, depending on the frequency and
intensity. Acceleration of heart rate in
the beluga whale is the first component
of the ‘‘acoustic startle response.’’
Romano et al. (2004) demonstrated that
captive beluga whales exposed to highlevel impulsive sounds (i.e., seismic
airgun and/or single pure tones up to
201 dB RMS) resembling sonar pings
showed increased stress hormone levels
of norepinephrine, epinephrine, and
dopamine when TTS was reached.
Thomas et al. (1990) exposed beluga
whales to playbacks of an oil-drilling
platform in operation (‘‘Sedco 708,’’ 40
Hz–20 kHz; source level 153 dB).
Ambient SPL at ambient conditions in
the pool before playbacks was 106 dB
and 134 to 137 dB RMS during
playbacks at the monitoring hydrophone
across the pool. All cell and platelet
counts and 21 different blood
chemicals, including epinephrine and
norepinephrine, were within normal
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limits throughout baseline and playback
periods, and stress response hormone
levels did not increase immediately
after playbacks. The difference between
the Romano et al. (2004) and Thomas et
al. (1990) studies could be the
differences in the type of sound (seismic
airgun and/or tone versus oil drilling),
the intensity and duration of the sound,
the individual’s response, and the
surrounding circumstances of the
individual’s environment. The
construction sounds in the Thomas et
al. (1990) study would be more similar
to those of pile installation than those
in the study investigating stress
response to water guns and pure tones.
Therefore, no more than short-term,
low-level hormonal stress responses, if
any, of beluga whales or other marine
mammals are expected as a result of
exposure to in-water pile installation
and removal during the CTR project.
Auditory Masking. Since many marine
mammals rely on sound to find prey,
moderate social interactions, and
facilitate mating (Tyack, 2008), noise
from anthropogenic sound sources can
interfere with these functions but only
if the noise spectrum overlaps with the
hearing sensitivity of the receiving
marine mammal (Southall et al., 2007;
Clark et al., 2009; Hatch et al., 2012).
Chronic exposure to excessive, though
not high-intensity, noise could cause
masking at particular frequencies for
marine mammals that utilize sound for
vital biological functions (Clark et al.,
2009). Acoustic masking is when other
noises such as from human sources
interfere with an animal’s ability to
detect, recognize, or discriminate
between acoustic signals of interest (e.g.,
those used for intraspecific
communication and social interactions,
prey detection, predator avoidance,
navigation) (Richardson et al., 1995;
Erbe et al., 2016). Therefore, under
certain circumstances, marine mammals
whose acoustical sensors or
environment are being severely masked
could also be impaired from maximizing
their performance fitness in survival
and reproduction. The ability of a noise
source to mask biologically important
sounds depends on the characteristics of
both the noise source and the signal of
interest (e.g., signal-to-noise ratio,
temporal variability, direction), in
relation to each other and to an animal’s
hearing abilities (e.g., sensitivity,
frequency range, critical ratios,
frequency discrimination, directional
discrimination, age or TTS hearing loss),
and existing ambient noise and
propagation conditions (Hotchkin and
Parks, 2013).
Marine mammals vocalize for
different purposes and across multiple
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modes, such as whistling, echolocation
click production, calling, and singing.
Changes in vocalization behavior in
response to anthropogenic noise can
occur for any of these modes and may
result from a need to compete with an
increase in background noise or may
reflect increased vigilance or a startle
response. For example, in the presence
of potentially masking signals,
humpback whales and killer whales
have been observed to increase the
length of their songs (Miller et al., 2000;
Fristrup et al., 2003) or vocalizations
(Foote et al., 2004), respectively, while
North Atlantic right whales (Eubalaena
glacialis) have been observed to shift the
frequency content of their calls upward
while reducing the rate of calling in
areas of increased anthropogenic noise
(Parks et al., 2007). Fin whales have also
been documented lowering the
bandwidth, peak frequency, and center
frequency of their vocalizations under
increased levels of background noise
from large vessels (Castellote et al.
2012). Other alterations to
communication signals have also been
observed. For example, gray whales, in
response to playback experiments
exposing them to vessel noise, have
been observed increasing their
vocalization rate and producing louder
signals at times of increased outboard
engine noise (Dahlheim and Castellote,
2016). Alternatively, animals may cease
sound production during production of
aversive signals (Bowles et al., 1994).
Under certain circumstances, marine
mammals experiencing significant
masking could also be impaired from
maximizing their performance fitness in
survival and reproduction. Therefore,
when the coincident (masking) sound is
human-made, it may be considered
harassment when disrupting or altering
critical behaviors. It is important to
distinguish TTS and PTS, which persist
after the sound exposure, from masking,
which occurs during the sound
exposure. Because masking (without
resulting in TS) is not associated with
abnormal physiological function, it is
not considered a physiological effect but
rather, a potential behavioral effect
(though not necessarily one that would
be associated with harassment).
The frequency range of the potentially
masking sound is important in
determining any potential behavioral
impacts. For example, low-frequency
signals may have less effect on highfrequency echolocation sounds
produced by odontocetes but are more
likely to affect detection of mysticete
communication calls and other
potentially important natural sounds
such as those produced by surf and
some prey species. The masking of
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communication signals by
anthropogenic noise may be considered
as a reduction in the communication
space of animals (e.g., Clark et al., 2009)
and may result in energetic or other
costs as animals change their
vocalization behavior (e.g., Miller et al.,
2000; Foote et al., 2004; Parks et al.,
2007; Di Iorio and Clark, 2010; Holt et
al., 2009). Masking can be reduced in
situations where the signal and noise
come from different directions
(Richardson et al., 1995), through
amplitude modulation of the signal, or
through other compensatory behaviors
(Hotchkin and Parks, 2013). Masking
can be tested directly in captive species
(e.g., Erbe, 2008), but in wild
populations, it must be either modeled
or inferred from evidence of masking
compensation. There are few studies
addressing real-world masking sounds
likely to be experienced by marine
mammals in the wild (e.g., Branstetter et
al., 2013).
Marine mammals at or near the
proposed CTR project site may be
exposed to anthropogenic noise, which
may be a source of masking.
Vocalization changes may result from a
need to compete with an increase in
background noise and include
increasing the source level, modifying
the frequency, increasing the call
repetition rate of vocalizations, or
ceasing to vocalize in the presence of
increased noise (Hotchkin and Parks,
2013). For example, in response to loud
noise, beluga whales may shift the
frequency of their echolocation clicks
and communication signals, reduce
their overall calling rates, and or
increase the emission of certain call
signals to prevent masking by
anthropogenic noise (Lessage et al.,
1999; Tyack, 2000; Eickmeier and
Vallarta, 2022).
Masking occurs in the frequency band
or bands that animals utilize and is
more likely to occur in the presence of
broadband, relatively continuous noise
sources such as vibratory pile driving.
Energy distribution of pile driving
covers a broad frequency spectrum, and
sound from pile driving would be
within the audible range of pinnipeds
and cetaceans present in the proposed
action area. While some construction
during the POA’s activities may mask
some acoustic signals that are relevant
to the daily behavior of marine
mammals, the short-term duration and
limited areas affected make it very
unlikely that the fitness of individual
marine mammals would be impacted.
Airborne Acoustic Effects. Pinnipeds
that occur near the project site could be
exposed to airborne sounds associated
with construction activities that have
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the potential to cause behavioral
harassment, depending on their distance
from these activities. Airborne noise
would primarily be an issue for
pinnipeds that are swimming or hauled
out near the project site within the range
of noise levels elevated above airborne
acoustic harassment criteria. Although
pinnipeds are known to haul-out
regularly on man-made objects, we
believe that incidents of take resulting
solely from airborne sound are unlikely
given there are no known pinniped
haulout or pupping sites within the
vicinity of the proposed project area; the
nearest known pinniped haulout is
located a minimum of 24 km southsouthwest of Anchorage for harbor seals.
Cetaceans are not expected to be
exposed to airborne sounds that would
result in harassment as defined under
the MMPA.
We recognize that pinnipeds in the
water could be exposed to airborne
sound that may result in behavioral
harassment when looking with their
heads above water. Most likely, airborne
sound would cause behavioral
responses similar to those discussed
above in relation to underwater sound.
For instance, anthropogenic sound
could cause hauled-out pinnipeds to
exhibit changes in their normal
behavior, such as reduction in
vocalizations or cause them to
temporarily abandon the area and move
further from the source. However, these
animals would previously have been
‘taken’ because of exposure to
underwater sound above the behavioral
harassment thresholds, which are in all
cases larger than those associated with
airborne sound. Thus, the behavioral
harassment of these animals is already
accounted for in these estimates of
potential take. Therefore, we do not
believe that authorization of incidental
take resulting from airborne sound for
pinnipeds is warranted, and airborne
sound is not discussed further here.
Potential Effects on Marine Mammal
Habitat
The proposed project would occur
mostly within the same footprint as
existing marine infrastructure; the new
T1 and T2 would extend approximately
140 ft (47-m) seaward of the existing
terminals. The nearshore and intertidal
habitat where the proposed project will
occur is an area of relatively high
marine vessel traffic. Temporary,
intermittent habitat alteration may
result from increased noise levels
during the proposed construction
activities. Noise from impact and
vibratory pile driving may extend across
Knik Arm, and affect areas outside of
the area around POA excluded from
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designated CIBW Critical Habitat.
However, increased noise levels will
only be present during construction
activities and will cease when pile
driving ends. Pile driving is not
expected on all days during the
construction season (April–November)
and is not expected at all during the
months of December–March. Noise
exposure is, therefore, expected to be
temporary and intermittent with long
periods of typical background noise
levels on a daily and seasonal scale.
Effects to CIBW critical habitat are,
therefore, considered to be nonsignificant. Effects on prey species will
be limited in time and space. The longterm impact on marine mammal habitat
associated with CTR would be a small
permanent decrease in low-quality
potential habitat because of the
expanded footprint of the new cargo
terminals T1 and T2. Installation and
removal of in-water piles would be
temporary and intermittent, and the
increased footprint of the facilities
would destroy only a small amount of
low-quality habitat, which currently
experiences high levels of
anthropogenic activity.
Water quality—Temporary and
localized reduction in water quality
would occur as a result of in-water
construction activities. Most of this
effect would occur during the
installation and removal of piles when
bottom sediments are disturbed. The
installation and removal of piles would
disturb bottom sediments and may
cause a temporary increase in
suspended sediment in the project area.
During pile removal, sediment attached
to the pile moves vertically through the
water column until gravitational forces
cause it to slough off under its own
weight. The small resulting sediment
plume is expected to settle out of the
water column within a few hours.
Studies of the effects of turbid water on
fish (marine mammal prey) suggest that
concentrations of suspended sediment
can reach thousands of milligrams per
liter before an acute toxic reaction is
expected (Burton, 1993).
Effects to turbidity and sedimentation
are expected to be short-term, minor,
and localized. Since the currents are so
strong in the area, following the
completion of sediment-disturbing
activities, suspended sediments in the
water column should dissipate and
quickly return to background levels in
all construction scenarios. Turbidity
within the water column has the
potential to reduce the level of oxygen
in the water and irritate the gills of prey
fish species in the proposed project
area. However, turbidity plumes
associated with the project would be
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temporary and localized, and fish in the
proposed project area would be able to
move away from and avoid the areas
where plumes may occur. Thus, it is
expected that the impacts on prey fish
species from turbidity and therefore, on
marine mammals, would be minimal
and temporary. In general, the area
likely impacted by the proposed
construction activities is relatively small
compared to the available marine
mammal habitat in Knik Arm, and does
not include any areas of particular
importance.
Potential Effects on Prey. Sound may
affect marine mammals through impacts
on the abundance, behavior, or
distribution of prey species (e.g.,
crustaceans, cephalopods, fishes,
zooplankton). Marine mammal prey
varies by species, season, and location
and, for some, is not well documented.
Studies regarding the effects of noise on
known marine mammal prey are
described here.
Fishes utilize the soundscape and
components of sound in their
environment to perform important
functions such as foraging, predator
avoidance, mating, and spawning (e.g.,
Zelick et al., 1999; Fay, 2009).
Depending on their hearing anatomy
and peripheral sensory structures,
which vary among species, fishes hear
sounds using pressure and particle
motion sensitivity capabilities and
detect the motion of surrounding water
(Fay et al., 2008). The potential effects
of noise on fishes depends on the
overlapping frequency range, distance
from the sound source, water depth of
exposure, and species-specific hearing
sensitivity, anatomy, and physiology.
Key impacts to fishes may include
behavioral responses, hearing damage,
barotrauma (pressure-related injuries),
and mortality.
Fish react to sounds that are
especially high amplitude and/or
intermittent at low frequencies. Short
duration, sharp sounds can cause overt
or subtle changes in fish behavior and
local distribution. The reaction of fish to
noise depends on the physiological state
of the fish, past exposures, motivation
(e.g., feeding, spawning, migration), and
other environmental factors. Hastings
and Popper (2005) identified several
studies that suggest fish may relocate to
avoid certain areas of sound energy.
Additional studies have documented
effects of pile driving on fishes (e.g.
Scholik and Yan, 2001, 2002; Popper
and Hastings, 2009). Several studies
have demonstrated that impulsive
sounds might affect the distribution and
behavior of some fishes, potentially
impacting foraging opportunities or
increasing energetic costs (e.g., Fewtrell
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and McCauley, 2012; Pearson et al.,
1992; Skalski et al., 1992; Santulli et al.,
1999; Paxton et al., 2017). However,
some studies have shown no or slight
reaction to impulse sounds (e.g., Pen˜a et
al., 2013; Wardle et al., 2001; Jorgenson
and Gyselman, 2009; Cott et al., 2012).
More commonly, though, the impacts of
noise on fishes are temporary.
During the POA’s MTRP, the effects of
impact and vibratory installation of 30in (76-cm) steel sheet piles at the POA
on 133 caged juvenile coho salmon in
Knik Arm were studied (Hart Crowser
Incorporated et al., 2009; Houghton et
al., 2010). Acute or delayed mortalities
or behavioral abnormalities were not
observed in any of the coho salmon.
Furthermore, results indicated that the
pile driving had no adverse effect on
feeding ability or the ability of the fish
to respond normally to threatening
stimuli (Hart Crowser Incorporated et
al., 2009; Houghton et al., 2010).
SPLs of sufficient strength have been
known to cause injury to fishes and fish
mortality (summarized in Popper et al.,
2014). However, in most fish species,
hair cells in the ear continuously
regenerate and loss of auditory function
likely is restored when damaged cells
are replaced with new cells. Halvorsen
et al. (2012b) showed that a TTS of 4 to
6 dB was recoverable within 24 hours
for one species. Impacts would be most
severe when the individual fish is close
to the source and when the duration of
exposure is long. Injury caused by
barotrauma can range from slight to
severe, can cause death, and is most
likely for fish with swim bladders.
Barotrauma injuries have been
documented during controlled exposure
to impact pile driving (Halvorsen et al.,
2012a; Casper et al., 2013, 2017).
Fish populations in the proposed
project area that serve as marine
mammal prey could be temporarily
affected by noise from pile installation
and removal. The frequency range in
which fishes generally perceive
underwater sounds is 50 to 2,000 Hz,
with peak sensitivities below 800 Hz
(Popper and Hastings, 2009). Fish
behavior or distribution may change,
especially with strong and/or
intermittent sounds that could harm
fishes. High underwater SPLs have been
documented to alter behavior, cause
hearing loss, and injure or kill
individual fish by causing serious
internal injury (Hastings and Popper,
2005).
Essential Fish Habitat (EFH) has been
designated in the estuarine and marine
waters in the vicinity of the proposed
project area for all five species of
salmon (i.e., chum salmon, pink salmon,
coho salmon, sockeye salmon, and
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Chinook salmon; North Pacific Fishery
Management Council (NPFMC), 2020,
2021), which are common prey of
marine mammals, as well as for other
species. (NPFMC, 2020). However, there
are no designated habitat areas of
particular concern in the vicinity of the
Port, and therefore, adverse effects on
EFH in this area are not expected.
The greatest potential impact to fishes
during construction would occur during
impact pile installation. Impact piling
would occur over 1 to 3 hours on any
given day across the construction
season, with significant breaks between
piles due to repositioning of the crane,
installation and removal of temporary
piles, and other construction
sequencing. Additionally, impact
driving of 72-in permanent piles would
be mitigated with the use of a bubble
curtain (see Proposed Mitigation section
for full details) in all months of
construction for piles driven in water
greater than 3-m deep. Unattenuated
impact driving in shallow water would
be minimized as much as feasible by
timing installation to occur during
periods of low tide, when the pilings are
out of water (‘‘in the dry’’). In-water
construction activities would only occur
during daylight hours, allowing fish to
forage and transit the project area in the
evening. Vibratory pile driving would
possibly elicit behavioral reactions from
fishes, such as temporary avoidance of
the area, but is unlikely to cause injuries
to fishes or have persistent effects on
local fish populations. Construction also
would have minimal permanent and
temporary impacts on benthic
invertebrate species, a marine mammal
prey source. In addition, it should be
noted that the area in question is lowquality habitat since it is already highly
developed and experiences a high level
of anthropogenic noise from normal
operations and other vessel traffic at the
POA. In general, any negative impacts
on marine mammal prey species are
expected to be minor and temporary.
In-Water Construction Effects on
Potential Foraging Habitat
The CTR project area is not
considered to be high-quality habitat for
marine mammals or marine mammal
prey, such as fish, and it is anticipated
that the long-term impact on marine
mammals associated with CTR would be
a small permanent decrease in lowquality potential habitat because of the
expanded footprint of the new cargo
terminals T1 and T2. The CTR project
is not expected to result in any habitat
related effects that could cause
significant negative consequences for
individual marine mammals or their
populations since installation and
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removal of in-water piles would be
temporary and intermittent and the
increased footprint of the facilities
would destroy only a small amount of
low-quality habitat, which currently
experiences high levels of
anthropogenic activity. Therefore,
impacts of the project are not likely to
have adverse effects on marine mammal
foraging habitat in the proposed project
area.
Estimated Take of Marine Mammals
This section provides an estimate of
the number of incidental takes proposed
for authorization through promulgation
of regulations and issuance of a LOA,
which will inform NMFS’ consideration
of ‘‘small numbers,’’ the negligible
impact determinations, and impacts on
subsistence uses.
Harassment is the only type of take
expected to result from these activities.
Except with respect to certain activities
not pertinent here, section 3(18) of the
MMPA defines ‘‘harassment’’ as any act
of pursuit, torment, or annoyance,
which (i) has the potential to injure a
marine mammal or marine mammal
stock in the wild (Level A harassment);
or (ii) has the potential to disturb a
marine mammal or marine mammal
stock in the wild by causing disruption
of behavioral patterns, including, but
not limited to, migration, breathing,
nursing, breeding, feeding, or sheltering
(Level B harassment).
Authorized takes would primarily be
by Level B harassment, as use of the
acoustic sources (i.e., vibratory and
impact pile driving) has the potential to
result in disruption of behavioral
patterns for individual marine
mammals. There is also some potential
for auditory injury (Level A harassment)
to result, primarily for high frequency
cetaceans and phocids because
predicted auditory injury zones are
larger than for mid-frequency cetaceans
and otariids. Auditory injury is unlikely
to occur for mysticetes, mid-frequency
cetaceans, and otariids due to measures
described in the Proposed Mitigation
section. The proposed mitigation and
monitoring measures are expected to
minimize the severity of the taking to
the extent practicable. As described
previously, no serious injury or
mortality is anticipated or proposed to
be authorized for this activity. Below,
we describe how the proposed take
numbers are estimated.
For acoustic impacts, generally
speaking, we estimate take by
considering: (1) acoustic thresholds
above which NMFS believes the best
available science indicates marine
mammals will be behaviorally harassed
or incur some degree of permanent
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hearing impairment; (2) the area or
volume of water that will be ensonified
above these levels in a day; (3) the
density or occurrence of marine
mammals within these ensonified areas;
and, (4) the number of days of activities.
We note that while these factors can
contribute to a basic calculation to
provide an initial prediction of potential
takes, additional information that can
qualitatively inform take estimates is
also sometimes available (e.g., previous
monitoring results or average group
size). Below, we describe the factors
considered here in more detail and
present the proposed take estimates.
Acoustic Thresholds
NMFS recommends the use of
acoustic thresholds that identify the
received level of underwater sound
above which exposed marine mammals
would be reasonably likely to be
behaviorally harassed (equated to Level
B harassment) or to incur PTS of some
degree (equated to Level A harassment).
Level B Harassment—Though
significantly driven by received level,
the onset of behavioral disturbance from
anthropogenic noise exposure is also
informed to varying degrees by other
factors related to the source or exposure
context (e.g., frequency, predictability,
duty cycle, duration of the exposure,
signal-to-noise ratio, distance to the
source), the environment (e.g.,
bathymetry, other noises in the area,
predators in the area), and the receiving
animals (hearing, motivation,
experience, demography, life stage,
depth) and can be difficult to predict
(e.g., Southall et al., 2007, 2021; Ellison
et al., 2012). Based on the best scientific
information available and the practical
need to use a threshold based on a
metric that is both predictable and
measurable for most activities, NMFS
typically uses a generalized acoustic
threshold based on received level to
estimate the onset of behavioral
harassment. NMFS generally predicts
that marine mammals are likely to be
behaviorally harassed in a manner
considered to be Level B harassment
when exposed to underwater
anthropogenic noise above root-meansquared pressure received levels (RMS
SPL) of 120 dB re 1 mPa for continuous
(e.g., vibratory pile driving, drilling) and
above RMS SPL 160 dB re 1 mPa for nonexplosive impulsive (e.g., seismic
airguns) or intermittent (e.g., scientific
sonar) sources. Generally speaking,
Level B harassment estimates based on
these behavioral harassment thresholds
are expected to include any likely takes
by TTS as, in most cases, the likelihood
of TTS occurs at distances from the
source less than those at which
behavioral harassment is likely. TTS of
a sufficient degree can manifest as
behavioral harassment, as reduced
hearing sensitivity and the potential
reduced opportunities to detect
important signals (conspecific
communication, predators, prey) may
result in changes in behavior patterns
that would not otherwise occur.
The POA’s proposed activity includes
the use of continuous (vibratory pile
85717
driving) and intermittent (impact pile
driving) noise sources, and therefore,
the RMS SPL thresholds of 120 and 160
dB re 1 mPa are applicable.
Level A harassment. NMFS’ Technical
Guidance for Assessing the Effects of
Anthropogenic Sound on Marine
Mammal Hearing (Version 2.0; NMFS,
2018) and the draft Updated Technical
Guidance (NMFS, 2024) identify dual
criteria to assess auditory injury (Level
A harassment) to five different marine
mammal groups (based on hearing
sensitivity) as a result of exposure to
noise from two different types of
sources (impulsive or non-impulsive).
This proposed rule estimates Level A
harassment using the existing Technical
Guidance (NMFS, 2018) as well as the
draft Updated Technical Guidance
(NMFS, 2024) because at the time of the
final agency decision on this request for
incidental take, it’s possible NMFS may
have made a final agency decision on
the draft Guidance.
These thresholds are provided in the
tables below. The references, analysis,
and methodology used in the
development of the thresholds are
described in NMFS’ 2018 Technical
Guidance and NMFS’ 2024 draft
Updated Technical Guidance, both of
which may be accessed at: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-acoustic-technical-guidance.
The POA’s proposed activity includes
the use of impulsive (impact pile
driving) and non-impulsive (vibratory
driving) sources.
TABLE 7—NMFS’ 2018 THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT (PTS)
PTS onset acoustic thresholds *
(received level)
Hearing group
Impulsive
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Low-Frequency (LF) Cetaceans ......................................
Mid-Frequency (MF) Cetaceans ......................................
High-Frequency (HF) Cetaceans .....................................
Phocid Pinnipeds (PW)(Underwater) ...............................
Otariid Pinnipeds (OW)(Underwater) ...............................
Cell
Cell
Cell
Cell
Cell
1:
3:
5:
7:
9:
Lpk,flat:
Lpk,flat:
Lpk,flat:
Lpk,flat:
Lpk,flat:
219
230
202
218
232
dB;
dB;
dB;
dB;
dB;
Non-impulsive
LE,LF,24h: 183 dB .........................
LE,MF,24h: 185 dB ........................
LE,HF,24h: 155 dB ........................
LE,PW,24h: 185 dB .......................
LE,OW,24h: 203 dB .......................
Cell
Cell
Cell
Cell
Cell
2: LE,LF,24h: 199 dB.
4: LE,MF,24h: 198 dB.
6: LE,HF,24h: 173 dB.
8: LE,PW,24h: 201 dB.
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-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should
also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s.
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 NMFS’ 2018 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.
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TABLE 8—NMFS’ 2024 THRESHOLDS IDENTIFYING THE ONSET OF AUDITORY INJURY (AUD INJ)
AUD INJ acoustic thresholds *
(received level)
Hearing group
Impulsive
Non-impulsive
Underwater:
Low-Frequency (LF) Cetaceans ...............................
High-Frequency (HF) Cetaceans .............................
Very High-Frequency (VHF) Cetaceans ..................
Phocid Pinnipeds (PW) (Underwater) ......................
Otariid Pinnipeds (OW) (Underwater) ......................
Cell
Cell
Cell
Cell
Cell
LE,p,LF,24h: 183 dB ..................
LE,p,HF,24h: 193 dB .................
LE,p,VHF,24h: 159 dB ...............
LE,p,PW,24h: 183 dB ................
LE,p,OW,24h: 185 dB ................
Cell 2: LE,p,LF,24h: 197 dB.
Cell 4: LE,p,HF,24h: 201 dB.
Cell 6: LE,p,VHF,24h: 181 dB.
Cell 8: LE,p,PW,24h: 195 dB.
Cell 10: LE,p,OW,24h: 199
dB.
In-air:
Phocid Pinnipeds (PA) (In-Air) .................................
Otariid Pinnipeds (OA) (In-Air) .................................
Cell 11: Lp,0-pk.flat: 162 dB; LE,p,PA,24h: 140 dB ...............
Cell 13: Lp,0-pk,flat: 177 dB; LE,p,OA,24h: 163 dB ...............
Cell 12: LE,p,PA,24h: 154 dB.
Cell 14: LE,p,OA,24h: 177 dB.
1:
3:
5:
7:
9:
Lp,0-pk,flat:
Lp,0-pk,flat:
Lp,0-pk,flat:
Lp,0-pk.flat:
Lp,0-pk,flat:
222
230
202
223
230
dB;
dB;
dB;
dB;
dB;
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating AUD INJ onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds
should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s.
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 NMFS’ 2018 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.
lotter on DSK11XQN23PROD with PROPOSALS3
Ensonified Area
Here, we describe operational and
environmental parameters of the activity
that are used in estimating the area
ensonified above the acoustic
thresholds, including source levels and
transmission loss coefficient.
The sound field in the project area is
the existing background noise plus
additional construction noise from the
proposed project. Marine mammals are
expected to be affected via sound
generated by the primary components of
the project (i.e., impact pile removal and
vibratory pile installation and removal).
Calculation of the area ensonified by the
proposed action is dependent on the
background sound levels at the project
site, the source levels of the proposed
activities, and the estimated
transmission loss coefficients for the
proposed activities at the site. These
factors are addressed in order, below.
Background Sound Levels at the Port
of Alaska—As noted in the Potential
Effects of Specified Activities on Marine
Mammals and Their Habitat section of
this proposed rule, the POA is an
industrial facility in a location with
high levels of commercial vessel traffic,
port operations (including dredging),
and extreme tidal flow. Previous
measurements of background noise at
the POA have recorded a background
SPL of 122.2 dB RMS (Austin et al.,
2016). NMFS concurs that this SPL
reasonably represents background noise
near the proposed project area, and
therefore, we have used 122.2 dB RMS
as the threshold for Level B harassment
(instead of 120 dB RMS).
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Sound Source Levels of Proposed
Activities—The intensity of pile driving
sounds is greatly influenced by factors
such as the type of piles (material and
diameter), hammer type, and the
physical environment (e.g., sediment
type) in which the activity takes place.
In order to calculate the distances to the
Level A harassment and the Level B
harassment sound thresholds for the
methods and piles being used in this
project, we used acoustic monitoring
data from sound source verification
studies (both at the POA and elsewhere)
to develop proxy source levels for the
various pile types, sizes and methods
(tables 9 and 10).
The POA collected sound
measurements during pile installation
and removal for 3 seasons (Austin et al.
2016; Illingworth & Rodkin [I&R] 2021a,
2021b); a summary of these data and
findings can be found in appendix A of
the POA’s application.
Vibratory Driving—NMFS concurs
that the source levels proposed by the
POA for vibratory installation and
removal of all pile types are appropriate
to use for calculating harassment
isopleths for the POA’s proposed CTR
activities (tables 9 and 10). The
proposed sound levels for vibratory
removal are based on an analysis done
for the POA’s NES1 IHA (89 FR 2832,
January 14, 2024) and are partially
based on sound source verification data
measured at the POA during the PCT
project (Illingworth and Rodkin, 2021a).
Interestingly, the analyzed RMS SPL for
the unattenuated vibratory removal of
24-in (61-cm) piles was much louder
than the unattenuated vibratory removal
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of 36-in piles (91-cm), and even louder
than the unattenuated vibratory
installation of 24-in piles. Illingworth
and Rodkin (2023) suggest that at least
for data recorded at the POA, the higher
24-in (61-cm) removal levels are likely
due to the piles being removed at rates
of 1,600 to 1,700 revolutions per minute
(rpm), while 36-in (91-cm) piles, which
are significantly heavier than 24-in (61cm) piles), were removed at a rate of
1,900 rpm. The slower rates combined
with the lighter piles would cause the
hammer to easily ‘‘jerk’’ or excite the 24in (61-cm) piles as they were extracted,
resulting in a louder rattling sound and
louder sound levels. This did not occur
for the 36-in (91-cm) piles, which were
considerably heavier due to increased
diameter, longer length, and greater
thickness.
The TPP found that for vibratory
installation of 48-in piles, an air bubble
curtain provided about a 9-dB reduction
at 10 meters. An 8-dB reduction at
close-in positions was estimated for
vibratory pile driving that occurred
during the PCT project in 2021 (I&R
2021b). The PCT 2020 measurements
indicated 2 to 8 dB reduction for the 48in piles at 10 meters, but no apparent
broadband reduction was found in the
far-field at about 2,800 meters (I&R
2021a). Far-field sound levels were
characterized by very low frequency
sound at or below 100 Hz, causing
broadband measurements to remain
above the ambient RMS level at
approximately 2.8km from the source.
However, levels at frequencies above
100 Hz were effectively reduced by the
bubble curtain system. Because CIBW
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are most sensitive to frequencies over
100 Hz, NMFS considers the use of
bubble curtains during vibratory driving
to be an effective and important
mitigation measure for CIBW.
Based on the aforementioned
measurements conducted at POA, for
vibratory driving during the CTR
Project, it is assumed that a welldesigned and robust bubble curtain
system will achieve a mean reduction of
7 dB at the source and will also reduce
sound levels at frequencies over 100 Hz
at longer ranges. The POA proposes to
use a bubble curtain when water depth
is greater than 3 meters during vibratory
installation of all permanent (72-in)
piles and during vibratory driving of
temporary (24-in or 36-in) piles during
the months of August through October
when CIBWs are most likely to be
present.
Impact Driving—NMFS concurs that
the source levels proposed by the POA
for impact installation of all pile types
are appropriate to use for calculating
harassment isopleths for the POA’s
proposed CTR activities (tables 9 and
10). Impact driving of temporary piles
(24-in and 36-in piles) is not currently
proposed; however, in the unlikely
event that vibratory driving is
insufficient to stabilize a temporary pile,
impact driving may be necessary. Sound
source verification studies at the POA
during the PCT project did not measure
unattenuated impact driving of 24-in or
36-in piles; therefore, proxy sound
levels from Navy (2015) are proposed.
The TPP measured reductions of 9 to
12 dB for a 48-in pile installed with an
impact hammer using a confined air
bubble curtain. The PCT 2020
measurements (I&R 2021a) found
reductions of about 10 dB when
comparing the attenuated conditions
that occurred with that project to
unattenuated conditions for the TPP.
The TPP did not report the reduction in
sound levels in the acoustic far field;
however, the computed distances to 125
dB RMS isopleths were essentially
reduced by half with the bubble curtain
(from 1,291 to 698 meters).
It is currently unclear whether the
POA’s proposed bubble curtain system
for the CTR project will be confined or
unconfined; confined systems are
typically more effective, especially in
sites like Knik Arm, with high current
velocity. Therefore, for impact pile
installation for the CTR Project, it is
assumed that a well-designed and
robust bubble curtain system will
achieve a mean reduction of 7 dB from
the source. The POA proposes to use a
bubble curtain system on all permanent
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piles in all months, which will be
installed with both vibratory and impact
hammers. The bubble curtain by
necessity will be installed around each
permanent pile as it is moved into
position, and therefore, the bubble
curtain will be available as a mitigation
measure to reduce sound levels
throughout each driving event for
permanent 72-in piles when water
depth is greater than 3 meters. To
account for piles driven in water less
than 3m deep, NMFS has estimated
approximately 0.5 unattenuated 72-in
piles will be driven (approximately 43
minutes of impact driving and 5
minutes of vibratory driving) each
month.
Concurrent activities—The POA
proposes to concurrently operate up to
two hammers to install or extract piles
at different parts of the project site, in
order to reduce the need for pile driving
during months of high beluga presence.
When two noise sources have
overlapping sound fields, the sources
are considered additive and combined
using the rules of dB addition. For
addition of two simultaneous sources,
the difference between the two sound
source levels is calculated, and if that
difference is between 0 and 1 dB, 3 dB
are added to the higher sound source
levels; if the difference is between 2 and
3 dB, 2 dB are added to the highest
sound source levels; if the difference is
between 4 and 9 dB, 1 dB is added to
the highest sound source levels; and
with differences of 10 or more dB, there
is no addition. For two simultaneous
sources of different type (i.e., impact
and vibratory driving), there is no sound
source addition.
Possible concurrent scenarios are
shown in table 3; the predicted source
values and transmission loss
coefficients for these combinations are
shown in table 11.
Transmission Loss. For all piles
driven with an active bubble curtain
(‘‘attenuated’’ impact and vibratory
driving), and for unattenuated impact
installation, the POA proposed to use 15
as the TL coefficient, meaning they
assume practical spreading loss (i.e., the
POA assumes TL = 15*Log10(range));
NMFS concurs with this value and has
assumed practical spreading loss for all
(attenuated impact and vibratory)
driving and unattenuated impact
driving.
The TL coefficient that the POA
proposed for unattenuated vibratory
installation and removal of piles is 16.5
(i.e., TL = 16.5*Log10(range)). This value
is an average of measurements obtained
from two 48-in (122-cm) piles installed
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via an unattenuated vibratory hammer
in 2016 (Austin et al., 2016). To assess
the appropriateness of this TL
coefficient to be used for the proposed
project, NMFS examined and analyzed
additional TL measurements recorded at
the POA. This includes a TL coefficient
of 22 (deep hydrophone measurement)
from the 2004 unattenuated vibratory
installation of one 36-in (91-cm) pile at
Port MacKenzie, across Knik Arm from
the POA (Blackwell, 2004), as well as TL
coefficients ranging from 10.3 to 18.2
from the unattenuated vibratory removal
of 24-in (61 cm) and 36-in (91-cm) piles
and the unattenuated vibratory
installation of one 48-in (122-cm) pile at
the POA in 2021 (I&R 2021, 2023). To
account for statistical interdependence
due to temporal correlations and
equipment issues across projects, values
were averaged first within each
individual project, and then across
projects. The mean and median value of
the measured TL coefficients for
unattenuated vibratory piles in Knik
Arm by project are equal to 18.9 and
16.5, respectively. NMFS proposes to
use the project median TL coefficient of
16.5 during unattenuated vibratory
installation and removal of all piles
during the CTR project. This value is
representative of all unattenuated
vibratory measurements in the Knik
Arm, i.e., including data from POA and
Port MacKenzie. Further, 16.5 is the
mean of the 2016 measurements, which
were made closer to the CTR proposed
project area than other measurements
and were composed of measurements
from multiple directions (both north
and south/southwest).
In certain scenarios, the POA may
perform concurrent vibratory driving of
two piles. The POA proposed, and
NMFS concurs, that in the event that
both piles are unattenuated, the TL
coefficient would be 16.5; if both piles
are attenuated, the TL coefficient would
be 15. In the event that one pile is
attenuated and one is unattenuated, the
POA proposed a TL coefficient of 15.75
to be used in the acoustic modeling.
NMFS evaluated the contributions of
one attenuated and one unattenuated
vibratory-driven pile to the sound field
(assuming a 7-dB reduction in source
level due to the bubble curtain for the
attenuated source), and determined that
the unattenuated source would likely
dominate the received sound field.
Therefore, the POA’s proposed TL
coefficient is conservative, and NMFS
concurs with this value.
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TABLE 9—SUMMARY OF UNATTENUATED IN-WATER PILE DRIVING PROXY LEVELS
[at 10 m]
Vibratory hammer
Method and pile type
24-in
24-in
36-in
36-in
72-in
steel
steel
steel
steel
steel
TL
coefficient
dB rms
installation .............
removal .................
installation .............
removal .................
...............................
161
169
166
159
171
Data source for source levels
16.5
U.S. Navy 2015.
NMFS average 2023; see 89 FR 2832.
U.S. Navy 2015.
NMFS average 2023; see 89 FR 2832.
I&R 2003, unpublished data for Castrol Oil berthing dolphin in Richmond, CA.
Impact hammer
dB rms
24-in steel ...............................
36-in steel ...............................
72-in steel ...............................
193
193
203
dB SEL
TL
coefficient
dB peak
181
184
191
210
211
217
Data source for source levels
15.0
U.S. Navy 2015.
U.S. Navy 2015.
I&R model. Estimate based on interpolation of data for
piles 24 to 144 inches in diameter.
TABLE 10—SUMMARY OF ATTENUATED IN-WATER PILE DRIVING PROXY LEVELS
[at 10 m]
Vibratory hammer
Method and pile type
24-in
24-in
36-in
36-in
72-in
steel
steel
steel
steel
steel
TL
coefficient
dB rms
installation .............
removal .................
installation .............
removal .................
...............................
158.5
157
160.5
154
164
Reference for proxy levels
15.0
I&R 2021a (measured).
I&R 2021a (measured).
I&R 2021a, 2021b (measured).
I&R 2021a (measured).
Assumed 7–dB reduction supported by I&R 2021a.
Impact hammer
dB rms
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24-in steel ...............................
36-in steel ...............................
72-in steel ...............................
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186
196
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dB SEL
dB peak
174
177
184
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204
210
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TL
coefficient
Reference for proxy levels
15.0
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Assumed 7–dB reduction supported by I&R 2021a.
Assumed 7–dB reduction supported by I&R 2021a.
Assumed 7–dB reduction supported by Caltrans Compendium (2020).
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Vibratory/Vibratory ........
Concurrent Driving (2 sources) .......................................
19:55 Oct 25, 2024
36-in and 72-in ...........
36-in and 72-in ...........
36-in and 36-in ...........
Pile type/size 2
Attenuated/Attenuated ..............
Attenuated/Unattenuated ..........
Unattenuated/Unattenuated ......
Attenuated/Attenuated ..............
Unattenuated/Attenuated ..........
Attenuated/Attenuated ..............
Unattenuated/Attenuated ..........
Attenuated or
unattenuated
....................
....................
....................
....................
....................
—/184
—/184
dB SEL
dB peak
....................
....................
....................
....................
....................
—/210
—/210
Proxy source value
163.5
169
171
166
169
160.5/196
166/196
dB RMS
15
15.75
16.5
15
15.75
15/15
16.5/15
TL
coefficient
8
8
8
7
7
8
7
# Piles per
day 3
1 Concurrent vibratory and impact driving source values and TL coefficients are the same as for the piles driven individually (shown in tables 7 and 8), with no adjustments for concurrent driving. The Level A harassment isopleths would be determined by the calculated impact pile driving isopleths, and Level B harassment isopleth would be generated by vibratory pile driving.
2 POA may elect to use either 36-in or 24-in temporary piles; as 36-in piles are more likely and estimated to have larger ensonified areas, we have used these piles in our analyses of concurrent activities.
3 Piles per day were calculated as the maximum daily number of each type of pile (24-in and 36-in = 4 piles per hammer per day; 72-in piles = 3 piles per day) with complete overlap for 45 minutes of driving with
the largest possible combined source value, a scenario that would over-estimate duration of noise production given the estimated time required to drive 72-in piles with a vibratory hammer (10 minutes).
Vibratory/Impact 1 .........
Method
TABLE 11—SOURCE VALUES FOR POTENTIAL CONCURRENT DRIVING SCENARIOS 1
Activity
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Estimated Harassment Isopleths. All
estimated Level B harassment isopleths
are reported in tables 15 and 16. At
POA, Level B harassment isopleths from
the proposed project will be limited in
some cases to less than the estimated
value by the coastline along Knik Arm
along and across from the project site.
The maximum predicted isopleth
distance for a single pile is 9,069 m
during vibratory installation of
unattenuated 72-in (182-cm) steel pipe
piles. For concurrent driving the
maximum isopleth distance is 9,363 m
during vibratory driving of two
unattenuated 24- or 36-in piles or
during vibratory driving of one
attenuated (24-, 36-, or 72-in) and one
degree, which may result in an
overestimate of potential take by Level
A harassment. However, this optional
tool offers the best way to estimate
isopleth distances when more
sophisticated modeling methods are not
available or practical. For stationary
sources, such as pile driving, the
optional User Spreadsheet tool predicts
the distance at which, if a marine
mammal remained at that distance for
the duration of the activity, it would be
expected to incur auditory injury.
Inputs used in the optional User
Spreadsheet tool and the resulting
estimated isopleths are reported in
tables 12 through 14, below.
unattenuated (24- or 36-in) pile (tables
15 and 16).
The ensonified area associated with
Level A harassment is more technically
challenging to predict due to the need
to account for a duration component.
Therefore, NMFS developed an optional
User Spreadsheet tool to accompany the
Technical Guidance that can be used to
relatively simply predict an isopleth
distance for use in conjunction with
marine mammal density or occurrence
to help predict potential takes. We note
that because of some of the assumptions
included in the methods underlying this
optional tool, we anticipate that the
resulting isopleth estimates are typically
going to be overestimates of some
TABLE 12—NMFS USER SPREADSHEET INPUTS FOR 72-IN PERMANENT PILES
Impact pile driving
Attenuated
Spreadsheet tab used ....................................................................
Source Level ...................................................................................
Transmission Loss Coefficient .......................................................
I
Vibratory pile driving
Unattenuated 1
Attenuated
(E.1) Impact pile driving
184 dB SEL .......
15 .......................
I
Unattenuated 1
I
(A.1) Non-Impul, Stat, Cont.
191 dB SEL .......
15 .......................
164 dB RMS ......
15 .......................
I
171 dB RMS
16.5
Weighting Factor Adjustment (kHz) ...............................................
2
2.5
Time to install single pile (minutes) ................................................
Number of strikes per pile ..............................................................
—
5,743
10
—
Piles per day ...................................................................................
1—3 ...................
I 1 .........................
Distance of sound pressure level measurement (m) .....................
3
10
1 To
account for piles driven in water less than 3m deep, NMFS has estimated approximately 0.5 unattenuated 72-in piles will be driven (approximately 43 minutes of impact driving and 5 minutes of vibratory driving) each month.
TABLE 13—NMFS USER SPREADSHEET INPUTS FOR TEMPORARY (24- OR 36-in) PILES
Vibratory pile driving
24-in (61-cm) steel pipe
Installation
Atten.
I
Unatten.
I
I
36-in (91-cm) steel pipe
Removal
Atten.
I
Spreadsheet Tab Used .....................................
Source Level (dB RMS) ....................................
Transmission Loss Coefficient ..........................
Installation
Unatten.
Atten.
I
Unatten.
I
I
Removal
Atten.
I
Unatten.
(A.1) Non-Impul, Stat, Cont.
158.5
15
161
16.5
I
I
157
15
169
16.5
I
Weighting Factor Adjustment (kHz) ..................
160.5
15
166
16.5
I
I
154
15
I
2.5
Time to install or remove single pile (minutes)
30
45
I
30
Number of strikes per pile .................................
—
Piles per day .....................................................
Distance of sound pressure level measurement (m) ........................................................
4
45
I
10
Impact Pile Driving
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Attenuated
I
Unattenuated
Spreadsheet Tab Used .....................................
Source Level (dB RMS) ....................................
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Attenuated
I
Unattenuated
I
184 dB SEL
(E.1) Impact pile driving
174 dB SEL
I
181 dB SEL
Transmission Loss Coefficient ..........................
Weighting Factor Adjustment (kHz) ..................
Time to install or remove single pile (minutes)
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36-in (91-cm) steel pipe
177 dB SEL
15
2
—
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TABLE 13—NMFS USER SPREADSHEET INPUTS FOR TEMPORARY (24- OR 36-in) PILES—Continued
Vibratory pile driving
24-in (61-cm) steel pipe
Installation
Atten.
I
Unatten.
I
I
36-in (91-cm) steel pipe
Removal
Atten.
Installation
Unatten.
I
Number of strikes per pile .................................
Piles per day .....................................................
Distance of sound pressure level measurement (m) ........................................................
Atten.
I
Unatten.
I
I
Removal
Atten.
I
Unatten.
1,000
1
10
TABLE 14—NMFS USER SPREADSHEET INPUTS FOR CONCURRENT VIBRATORY DRIVING
24- or 36-in AND 24-in or 36-in
Attenuated/
attenuated
I
Attenuated/
unattenuated
Spreadsheet Tab Used ....................................................
Source Level (dB RMS) ...................................................
Transmission Loss Coefficient .........................................
I
24- or 36-in AND 72-in
Unattenuated/
unattenuated
Attenuated/
attenuated
I
Unattenuated/
attenuated
(A.1) Non-Impul, Stat, Cont.
163.5
15
170
15.75
I
172
16.5
I
Weighting Factor Adjustment (kHz) .................................
Time to install or remove a single pile (minutes) ............
Number of strikes per pile ...............................................
166
15
170
15.75
I
2.5
45
—
Piles per day ....................................................................
8
7
Distance of sound pressure level measurement (m) ......
10
TABLE 15—CALCULATED DISTANCE OF LEVEL A (BASED ON NMFS’ 2018 TECHNICAL GUIDANCE) AND LEVEL B
HARASSMENT ISOPLETHS BY PILE TYPE AND PILE DRIVING METHOD
Level A harassment distance (m)
Activity
Pile type/size
Attenuated or unattenuated
LF
Impact ...................................
24-in (61-cm) ..............
36-in (91-cm) ..............
72-in (182-cm) ............
Vibratory Installation .............
24-in (61-cm) ..............
36-in (91-cm) ..............
72-in (182-cm) ............
Vibratory Removal ................
24-in (61-cm) ..............
36-in (91-cm) ..............
Concurrent Vibratory .............
36-in AND 36-in ..........
36-in AND 72-in ..........
lotter on DSK11XQN23PROD with PROPOSALS3
Concurrent Vibratory/Impact
36-in AND 72-in ..........
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated (1 pile per day) ...
Attenuated (2 piles per day)
Attenuated (3 piles per day)
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated ............................
Attenuated/Attenuated ..........
Attenuated/Unattenuated ......
Unattenuated/Unattenuated ..
Attenuated/Attenuated ..........
Unattenuated/Attenuated ......
Attenuated/Attenuated (1 pile
per day).
Attenuated/Attenuated (2
piles per day).
Attenuated/Attenuated (3
piles per day).
Unattenuated/Attenuated (1
pile per day).
Unattenuated/Unattenuated
(2 piles per day).
Unattenuated/Attenuated (3
piles per day).
MF
HF
PW
OW
Level B
harassment
distance
(m) all
hearing
groups 1
735
251
1,165
398
10,936
3,734
5,928
7,767
11
8
22
11
19
7
42
16
11
5
33
81
98
45
75
3,734
27
9
42
15
389
133
211
277
2
1
3
1
3
1
4.6
1.7
2
1
2.9
8.0
11
3.9
7.4
133
876
299
1,387
474
13,026
4,448
7,061
9,252
16
11
31
15
27
11
60
23
15
8
49
118
139
66
108
4,448
394
135
624
213
5,853
1,999
3,173
4,157
7
5
14
7
12
5
27
11
7
3
20
51
62
27
47
1,999
29
10
46
16
427
146
231
303
1
1
2
1
2
1
2.4
1
1
1
1.4
4.0
5.5
1.9
3.7
146
1,585
541
1,585
541
7,356
2,512
........................
........................
2,247
2,630
4,514
3,575
9,069
6,119
6,861
2,583
1,699
1,318
5,667
9,363
9,069
8,318
9,363
3,575
5,928
211
7,061
3,173
231
........................
7,767
277
9,252
4,157
303
........................
3,734
133
4,448
1,999
146
4,514
5,928
211
7,061
3,173
231
........................
7,767
277
9,252
4,157
303
........................
1 Distances to thresholds are as modeled; however, interaction with shorelines would truncate zones. See figures 6–1 thorough 6–10 in the POA’s application for
further details.
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85724
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
TABLE 16—CALCULATED DISTANCE AND AREAS OF LEVEL A (BASED ON NMFS’ PROPOSED 2024 UPDATE TO THE 2018
TECHNICAL GUIDANCE) AND LEVEL B HARASSMENT ISOPLETHS BY PILE TYPE AND PILE DRIVING METHOD
Level A harassment distance (m)
Activity
Pile type/size
Attenuated or unattenuated
LF
Impact ...................................
24-in (61-cm) ..............
36-in (91-cm) ..............
72-in (182-cm) ............
Vibratory Installation .............
24-in (61-cm) ..............
36-in (91-cm) ..............
72-in (182-cm) ............
Vibratory Removal ................
24-in (61-cm) ..............
36-in (91-cm) ..............
Concurrent Vibratory/Vibratory.
36-in AND 36-in ..........
36-in AND 72-in ..........
Concurrent Vibratory/Impact
36-in AND 72-in ..........
1 Distances
VHF
PW
OW
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated (1 pile per day) ...
Attenuated (2 piles per day)
Attenuated (3 piles per day)
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated ............................
Unattenuated ........................
Attenuated ............................
Attenuated/Attenuated ..........
732
250
1,160
397
10,896
3,720
5,906
7,739
14.1
10
28.4
13.6
24.6
9.2
55.2
10.4
13.7
6.6
44.7
94
32
148
51
1,390
474.7
753.5
987.4
5.9
3.8
11.9
5.2
10.3
3.5
23.1
4
5.7
2.5
17.2
1,133
387
1,796
613
16,861
5,757
9,139
11,976
11.8
8.1
23.6
11.1
20.5
7.5
45.9
8.5
11.4
5.4
36.5
651
222
1,031
352
9,679
3,305
5,246
6,875
17.8
12.8
35.7
17.5
31
11.9
69.5
13.4
17.2
8.4
57.5
243
83
385
132
3,608
1,232
1,956
2,563
6.6
4.3
13.3
5.9
11.5
4
25.8
4.5
6.4
2.8
19.4
1,585
541
1,585
541
7,356
2,512
Attenuated/Unattenuated ......
Unattenuated/Unattenuated ..
Attenuated/Attenuated ..........
Unattenuated/Attenuated ......
Attenuated/Attenuated (1 pile
per day).
Attenuated/Attenuated (2
piles per day).
Attenuated/Attenuated (3
piles per day).
Unattenuated/Attenuated (1
pile per day).
Unattenuated/Attenuated (2
piles per day).
Unattenuated/Attenuated (3
piles per day).
107.6
127.7
60
98.9
3,720
43.3
53.5
23.1
39.8
474.7
88.8
106.3
49
81.6
5,757
136.9
160.7
77.3
125.8
3,305
48.5
59.7
26
44.6
1,232
9,363
9,069
8,318
9,363
3,575
5,906
753.5
9,139
5,246
1,956
7,739
987.4
11,976
6,875
2,563
3,720
474.7
5,757
3,305
1,232
5,906
753.5
9,139
5,246
1,956
7,739
987.4
11,976
6,875
2,563
2,247
2,630
4,514
3,575
9,069
6,119
6,861
2,583
1,699
1,318
5,667
4,514
to thresholds are as modeled; however, interaction with shorelines would truncate zones. See figures 6–1 thorough 6–10 in the POA’s application for further details.
Marine Mammal Occurrence
lotter on DSK11XQN23PROD with PROPOSALS3
HF
Level B
harassment
distance (m)
all hearing
groups 1
In this section, we provide
information about the occurrence of
marine mammals, including density or
other relevant information, which will
inform the take calculations. Available
information regarding marine mammal
occurrence and abundance in the
vicinity of the POA includes monitoring
data from the PCT and SFD projects.
These programs produced a unique and
comprehensive data set of marine
mammal sightings and for CIBWs,
locations and movements near the POA
(61N Environmental, 2021, 2022a,
2022b; Easley-Appleyard and Leonard,
2022). This is the most current data set
available for Knik Arm. During the PCT
and SFD projects, the POA’s marine
mammal monitoring programs included
11 PSOs working from four elevated,
specially designed monitoring stations
located along a 9-km stretch of coastline
surrounding the POA. The number of
days data was collected varied among
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20:47 Oct 25, 2024
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years and projects, with 128 days during
PCT Phase 1 in 2020, 74 days during
PCT Phase 2 in 2021, and 13 days
during SFD in 2022 (see table 6–15 in
the POA’s application for additional
information regarding CIBW monitoring
data). PSOs during these projects used
25-power ‘‘big-eye’’ and hand-held
binoculars to detect and identify marine
mammals and theodolites to track
movements of CIBW groups over time
and collect location data while they
remained in view.
These POA monitoring programs were
supplemented in 2021 with a NMFSfunded visual marine mammal
monitoring project that collected data
during non-pile driving days during
PCT Phase 2 (Easley-Appleyard and
Leonard, 2022). NMFS replicated the
POA monitoring efforts, as feasible,
including use of 2 of the POA’s
monitoring platforms, equipment (Big
Eye binoculars, theodolite, 7x50 reticle
binoculars), data collection software,
monitoring and data collection protocol,
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and observers; however, the NMFSfunded program utilized only 4 PSOs
and 2 observation stations along with
shorter (4- to 8-hour) observation
periods compared to PCT or SFD data
collection, which included 11 PSOs, 4
observation stations, and most
observation days lasting close to 10
hours. Despite the differences in effort,
the NMFS dataset fills in gaps during
the 2021 season and is thus valuable in
this analysis. NMFS’ PSOs monitored
for 231.6 hours on 47 non-consecutive
days in July, August, September, and
October.
Density data are not available for any
of the relevant species in this area;
therefore, we have used reasonable
yearly, monthly, or hourly occurrence
estimates based on the previous POA
monitoring datasets for all species.
Table 17 shows the estimated
occurrence rates for non-CIBW species
at the POA; descriptions are provided in
the text below.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
85725
TABLE 17—ESTIMATED OCCURRENCE FOR NON-CIBW SPECIES AT THE POA
Timeframe
Gray whale .....................................
Humpback whale ............................
Killer whale .....................................
Steller sea lion ................................
Harbor porpoise ..............................
Harbor seal .....................................
Yearly .............................................
Hourly .............................................
Gray Whale
Sightings of gray whales in the
proposed project area are rare. Few, if
any, gray whales are expected to
approach the proposed project area.
However, based on three separate
sightings of single gray whales near the
POA in 2020 and 2021 (61N
Environmental, 2021, 2022a; EasleyAppleyard and Leonard, 2022), the POA
anticipates that up to six individuals
could occur within estimated
harassment zones each year during CTR
project activities.
Humpback Whale
Sightings of humpback whales in the
proposed project area are rare, and few,
if any, humpback whales are expected
to approach the proposed project area.
However, there have been a few
observations of humpback whales near
the POA. Based on the two sightings in
2017 of what was likely a single
individual at the Anchorage Public Boat
Dock at Ship Creek (ABR, Inc., 2017)
south of the Project area, the POA
requested authorization of six takes of
humpback whales per year of the CTR
project. However, given the maximum
number of humpback whales observed
within a single construction season was
two (in 2017), NMFS instead anticipates
that only up to four humpback whales
could be exposed to project-related
underwater noise per year during the
CTR project.
Killer Whale
lotter on DSK11XQN23PROD with PROPOSALS3
Estimated
occurrence
rates
Species
Few, if any, killer whales are expected
to approach the CTR project area. No
killer whales were sighted during
previous monitoring programs for POA
construction projects, including the
2016 TPP, 2020 PCT, and 2022 SFD
projects (Prevel-Ramos et al., 2006;
Markowitz and McGuire, 2007; Cornick
and Saxon-Kendall, 2008, 2009; Cornick
et al., 2010, 2011; ICRC, 2009, 2010,
2011, 2012; Cornick and Pinney, 2011;
Cornick and Seagars, 2016; 61N
Environmental, 2021, 2022b), except
during PCT construction in 2021, when
two killer whales were sighted (61N
Environmental, 2022a). Previous
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19:55 Oct 25, 2024
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6/year .............................................
4/year .............................................
6/year .............................................
9/year .............................................
0.15/hour ........................................
1/hour .............................................
sightings of transient killer whales have
documented pod sizes in upper Cook
Inlet between one and six individuals
(Shelden et al., 2003). While unlikely, it
is possible that killer whales could
approach the POA from the northern
portion of Knik Arm, and immediately
enter into a Level A harassment zone
before PSOs are able to shut down pile
driving activities. The POA estimates,
and NMFS concurs, that one pod
(assumed to be six individuals) could be
taken by Level A harassment over the 5
years of the CTR project. NMFS also
concurs that no more than one pod
(assumed to be six individuals) could
occur within the Level B harassment
zones during CTR project activities per
year.
Harbor Porpoise
Monitoring data recorded from 2005
through 2022 were used to evaluate
hourly sighting rates for harbor
porpoises in the proposed CTR area (see
table 4–3 in the POA’s application).
During most years of monitoring, no
harbor porpoises were observed.
However, there has been an increase in
harbor porpoise sightings in upper Cook
Inlet in recent decades (e.g., 61N
Environmental, 2021, 2022a; Shelden et
al., 2014). The highest sighting rate for
any recorded year during in-water pile
installation and removal was an average
of 0.037 harbor porpoises per hour
during PCT construction in 2021, when
observations occurred across most
months. Given the uncertainty around
harbor porpoise occurrence at the POA
and potential that occurrence is
increasing, the POA calculated
requested takes using a sighting rate of
0.5 harbor porpoises per hour. For the
recent NES1 project (88 FR 76576,
November 6, 2023), NMFS estimated
that a more realistic sighting rate would
be closer to approximately 0.07 harbor
porpoises per hour (the 2021 rate of
0.037 harbor porpoises per hour
doubled). However, the sizes of the
ensonified areas for the NES1 project are
much smaller than those predicted for
the proposed CTR project. Based on the
larger ensonified areas, which more
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Estimated
annual
occurrence
Sfmt 4702
6
4
6
9
1,314
8,760
Estimated
5-year
occurrence
30
20
30
45
6,570
43,800
closely resemble the observable area
from the PCT project, the cryptic nature
of the species, and the potential for
increased occurrence of harbor porpoise
in and around upper Cook Inlet, NMFS
estimates that approximately 0.15
harbor porpoises per hour (four times
the maximum observed 2021 rate of
0.037 per hour) may be observed near
the proposed CTR area during the 5
years covered under this proposed
rulemaking.
Steller Sea Lion
Steller sea lions are anticipated to
occur in low numbers within the
proposed CTR project area as
summarized in the Description of
Marine Mammals in the Area of
Specified Activities section. Similar to
the approach used above for harbor
porpoises, the POA used previously
recorded sighting rates of Steller sea
lions near the POA to estimate
requested take for this species. During
SFD construction in May and June of
2022, the hourly sighting rate for Steller
sea lions was 0.028. The hourly sighting
rate for Steller sea lions in 2021, the
most recent year with observations
across most months, was approximately
0.01. The highest number of Steller sea
lions that have been observed during the
2020–2022 monitoring efforts at the
POA was nine individuals (eight during
PCT Phase 1 monitoring and one during
NMFS’ 2021 monitoring).
Recent counts of sightings of Steller
sea lions around the POA may include
multiple re-sights of single individuals.
For instance, in 2016, Steller sea lions
were observed on 2 separate days. On
May 2, 2016, one individual was
sighted, while on May 25, 2016, there
were five Steller sea lion sightings
within a 50-minute period, and these
sightings occurred in areas relatively
close to one another (Cornick and
Seagars, 2016). Given the proximity in
time and space, it is believed these five
sightings were of the same individual
sea lion. The POA is concerned that
multiple re-sights of a single individual
within a day may overestimate the true
number of individuals exposed to sound
E:\FR\FM\28OCP3.SGM
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85726
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
levels at or above harassment thresholds
over the course of the proposed project.
Therefore, given the uncertainty around
Steller sea lion occurrence at the POA
and potential that occurrence is
increasing, the POA estimated that
approximately 0.14 Steller sea lions per
hour (the May and June 2022 rate of
0.028 Steller sea lions per hour
multiplied by a factor of 5) may be
observed near the proposed CTR project
areas per hour of hammer use. However,
the highest number of Steller sea lion
sightings during the 2020–2022
monitoring efforts at the POA was nine
(eight during PCT Phase 1 monitoring
and one during NMFS’ 2021
monitoring).
Given the POA’s estimate assumes a
higher Steller sea lion sighting rate
(0.14) than has been observed at the
POA and results in an estimate that is
more than double the maximum number
of Steller sea lions observed in a year,
NMFS believes that the sighting rate
proposed by the POA overestimates
potential exposures of this species.
Based on the ensonified areas, which
closely resemble the observable area
from the PCT project, the potential for
re-sightings of individual animals, and
the uncertainty around increased
occurrence of Steller sea lions in and
around upper Cook Inlet, NMFS instead
proposes that nine Steller sea lions (the
maximum number observed in a single
year between 2020 and 2022 during
projects with similar sized harassment
isopleths) may be taken each year
during the 5 years covered under this
proposed rulemaking, up to a total of 45
individuals over the course of the
project.
curious about onshore activities and
may approach closely. The mouth of
Ship Creek, where harbor seals linger, is
about 1,500 m from the southern end of
the CTR.
The POA evaluated marine mammal
monitoring data to calculate hourly
sighting rates for harbor seals in the CTR
project area (see table 4–1 in the POA’s
application). Of the 524 harbor seal
sightings in 2020 and 2021, 93.7 percent
of the sightings were of single
individuals; only 5.7 percent of
sightings were of two individual harbor
seals, and only 0.6 percent of sightings
reported three harbor seals. Sighting
rates of harbor seals were highly
variable and appeared to have increased
during monitoring between 2005 and
2022. It is unknown whether any
potential increase was due to local
population increases or habituation to
ongoing construction activities. The
highest individual hourly sighting rate
recorded for a previous year was used
to quantify take of harbor seals for inwater pile installation and removal
associated with CTR. This occurred in
2021 during PCT Phase 2 construction,
when harbor seals were observed from
May through September. A total of 220
harbor seal sightings were observed over
734.9 hours of monitoring, at an average
rate of 0.30 harbor seal sightings per
hour. The maximum monthly sighting
rate occurred in September 2020 and
was 0.51 harbor seal sightings per hour.
Based on these data, the POA estimated,
and NMFS concurs, that approximately
one harbor seal (the maximum monthly
sighting rate (0.51) rounded up) may be
observed near the CTR project per hour
of hammer use.
Harbor Seal
Beluga Whale
No known harbor seal haulout or
pupping sites occur in the vicinity of
the POA. In addition, harbor seals are
not known to reside in the proposed
CTR project area, but they are seen
regularly near the mouth of Ship Creek
when salmon are running, from July
through September. With the exception
of newborn pups, all ages and sexes of
harbor seals could occur in the CTR
project area. Harbor seals often appear
CIBWs are regular and frequent
visitors to Knik Arm, sometimes passing
by the POA multiple times a day, as
documented by the previous PAMP
monitoring projects (61N
Environmental, 2021, 2022a, 2022b).
Distances from CIBW sightings to the
CTR project site from the POA and
NMFS-funded monitoring programs
ranged from less than 10 m up to nearly
15 km. The robust marine mammal
monitoring programs in place at the
POA from 2020 through 2022 located,
identified, and tracked CIBWs at greater
distances from the proposed project site
than previous monitoring programs (i.e.,
Kendall and Cornick, 2015) and has
contributed to a better understanding of
CIBW movements in upper Cook Inlet
(e.g., Easley-Appleyard and Leonard,
2022).
For the NES1 project, NMFS and the
POA collaboratively developed a new
sighting rate methodology that
incorporates a spatial component for
CIBW observations, which allows for
more accurate estimation of potential
take of CIBWs (89 FR 2832, January 14,
2024). We have used this same
methodology in the analysis of
estimated CIBW incidental take during
the CTR project. A detailed description
of the differences from the sighting-rate
methods used in the PCT and SFD
projects can be found in the notice of
proposed IHA for the NES1 project (88
FR 76576, November 6, 2023).
During the POA’s and NMFS’ marine
mammal monitoring programs for the
PCT and SFD projects (table 18), PSOs
had an increased ability to detect,
identify, and track CIBWs groups at
greater distances from the project work
site when compared with previous years
because of the POA’s expanded
monitoring program as described above.
This meant that observations of CIBWs
in the 2020–2022 dataset (table 18)
include sightings of individuals at
distances far outside some of the
ensonified areas estimated for the CTR
project and at ranges close to the extent
of the larger ensonified areas (tables 15
and 16). Therefore, it would not be
appropriate to group all CIBW
observations from these datasets into a
single sighting rate as was done for the
PCT and SFD projects. Rather, we
propose that CIBW observations should
be considered in relation to their
distance to the CTR project site when
determining appropriate sighting rates
to use when estimating take for this
project. This would help to ensure that
the sighting rates used to estimate take
are representative of CIBW presence in
the proposed ensonified areas.
lotter on DSK11XQN23PROD with PROPOSALS3
TABLE 18—MARINE MAMMAL MONITORING DATA USED FOR CIBW SIGHTING RATE CALCULATIONS
2020
2021
2021
2022
...............
...............
...............
...............
1 This
Number of
CIBW group
fixes
Monitoring type and
data source
Year
PCT:
PCT:
PCT:
SFD:
POA Construction Monitoring 61N Environmental, 2021 ......................
NMFS Monitoring Easley-Appleyard and Leonard, 2022 ......................
POA Construction Monitoring 61N Environmental, 2021, 2022a ..........
POA Construction Monitoring 61N Environmental, 2022b ....................
2,653
694
1,339
151
Number of
CIBW groups
245
1 109
132
9
Number of
CIBWs
987
575
517
41
number differs slightly from Table 6–8 in the POA’s application due to our removal of a few duplicate data points in the NMFS data set.
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
To incorporate a spatial component
into the sighting rate methodology, the
POA calculated each CIBW group’s
closest point of approach (CPOA)
relative to the CTR proposed project
site. The 2020–2022 marine mammal
monitoring programs (table 18) enabled
the collection, in many cases, of
multiple locations of CIBW groups as
they transited through Knik Arm, which
allowed for track lines to be interpolated
for many groups. The POA used these
track lines, or single recorded locations
in instances where only one sighting
location was available, to calculate each
group’s CPOA. CPOAs were calculated
in ArcGIS software using the
Geographic Positioning System (GPS)
coordinates provided for documented
sightings of each group (for details on
data collection methods, see 61N
Environmental, 2021, 2022a, 2022b;
Easley-Appleyard and Leonard, 2022)
and the CTR location midpoint,
centered on the proposed project site. A
CIBW group was defined as a sighting
of one or more CIBWs as determined
during data collection. The most distant
CPOA location to CTR was 11,138 m
and the closest CPOA location was 6 m.
The cumulative density distribution
of CPOA values represents the
percentage of CIBW observations that
were within various distances to the
CTR action site (figure 4). This
distribution shows how CIBW
observations differed with distances to
the CTR site and was used to infer
appropriate distances within which to
estimate spatially-derived CIBW
sighting rates (figure 4). The POA
implemented a piecewise regression
85727
model that detected breakpoints (i.e.,
points within the CPOA data at which
statistical properties of the sequence of
observational distances changed) in the
cumulative density distribution of the
CPOA locations, which they proposed
to represent spatially-based sighting rate
bins for use in calculating CIBW
sighting rates. The POA used the
‘‘Segmented’’ package (Muggeo, 2020) in
the R Statistical Software Package (R
Core Team, 2022) to determine
statistically significant breakpoints in
the linear distances of the CIBW data
using this regression method (see
section 6.5.5.3 of the POA’s application
for more details regarding this statistical
analysis). This analysis identified
breakpoints in the CPOA locations at
195.7, 2,337.0, 3,154.7, and 6,973.9 m
(figure 4).
.e~nw~.·~~~r,..~n•.
....
.. . .
·•.~
.·.ffl>OO.·
.'l®C••
·Q,sti:tncet4<:trrrmr
Piecewise regression is a common tool
for modeling ecological thresholds
(Lopez et al., 2020; Whitehead et al.,
2016; Atwood et al., 2016). In a similar
scenario to the one outlined above,
Mayette et al. (2022) used piecewise
regression methods to model the
distances between two individual
CIBWs in a group in a nearshore and a
far shore environment. For the POA’s
analysis, the breakpoints (i.e., 195.7,
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2,337.0, 3,154.7, and 6,973.9 m) detect
a change in the frequency of CIBW
groups sighted and the slope of the line
between two points indicates the
magnitude of change. A greater positive
slope indicates a greater accumulation
of sightings over the linear distance (xaxis) between the defining breakpoints,
whereas a more level slope (i.e., closer
to zero) indicates a lower accumulation
of sightings over that linear distance (x-
PO 00000
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axis) between those defining
breakpoints (figure 4; see table 6–16 in
the POA’s application for the slope
estimates for the empirical cumulative
distribution function).
The breakpoints identified by the
piecewise regression analysis are in
agreement with what is known about
CIBW behavior in Knik Arm based on
recent monitoring efforts (61N
Environmental, 2021, 2022a, 2022b;
E:\FR\FM\28OCP3.SGM
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EP28OC24.005
lotter on DSK11XQN23PROD with PROPOSALS3
Figure 4 -- Percent of CIBW CPOA Observations in Relation to Distance from the CTR
Project Site and Associated Breakpoints Determined by Piecewise Linear Regression
85728
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
Easley-Appleyard and Leonard, 2022).
Observation location data collected
during POA monitoring programs
indicate that CIBWs were consistently
found in higher numbers in the
nearshore areas, along both shorelines,
and were found in lower numbers in the
center of the Arm. Tracklines of CIBW
group movements collected from 2020
to 2022 show that CIBWs displayed a
variety of movement patterns that
included swimming close to shore past
the POA on the east side of Knik Arm
(defined by breakpoint 1 at 195.7 m),
with fewer CIBWs swimming in the
center of Knik Arm (breakpoints 1 to 2,
at 195.7 to 2,337 m). CIBWs commonly
swam past the POA close to shore on
the west side of Knik Arm, with no
CIBWs able to swim farther from the
POA in that area than the far shore
(breakpoints 2 to 3, at 2,337 to 3,154.7
m). Behaviors and locations beyond
breakpoint 4 (6,973.9 m) include
swimming past the mouth of Knik Arm
between the Susitna River area and
Turnagain Arm; milling at the mouth of
Knik Arm but not entering the Arm; and
milling to the northwest of the POA
without exiting Knik Arm. The
shallowness of slope 5, at distances
greater than 6,973.9 m, could be due to
detection falloff from a proximity
(distance) bias, which would occur
when PSOs are less likely to detect
CIBW groups that are farther away than
groups that are closer.
The POA, in collaboration with
NMFS, used the distances detected by
the breakpoint analysis to define five
sighting rate distance bins for CIBWs in
the NES1 project area. Each breakpoint
(196, 2,337, 3,155, and 6,974 m, and the
complete data set of observations
[>6,974 m]) was rounded up to the
nearest meter and considered the
outermost limit of each sighting rate bin,
resulting in five identified bins (table
19). All CIBW observations less than
each bin’s breakpoint distance were
used to calculated that bin’s respective
monthly sighting rates (e.g., all sightings
from 0 to 196 m are included in the
sighting rates calculated for bin number
1, all sightings from 0 to 2,337 m are
included in the sighting rates calculated
for bin number 2, and so on). CTR
construction is anticipated to take place
in the months of April through
November over the 5-year timeframe of
the proposed rulemaking; therefore,
monthly sighting rates were only
derived for these months (table 19).
TABLE 19—CIBW MONTHLY SIGHTING RATES FOR DIFFERENT SPATIALLY-BASED BIN SIZES
Distance
(m)
Bin number
1
2
3
4
5
........................................................................
........................................................................
........................................................................
........................................................................
........................................................................
196
2,338
3,155
6,974
>6,974
CIBW/Hour 1
April
0.05
0.34
0.36
0.67
0.71
May
June
0.06
0.16
0.22
0.33
0.39
July
0.10
0.15
0.21
0.29
0.30
0.04
0.09
0.09
0.13
0.13
August
September
0.82
1.55
2.02
2.24
2.29
October
0.59
1.42
1.89
2.18
2.23
November
0.51
1.09
1.98
2.42
2.56
0.10
0.65
0.72
0.73
0.73
1 Observation hours have been totaled from the PCT 2020 and 2021 programs, the NMFS 2021 data collection effort, and the SFD 2022 program (61N Environmental 2021, 2022a, 2022b; Easley-Appleyard and Leonard, 2022).
Take Estimation
In this section, we describe how the
information provided above is
synthesized to produce a quantitative
estimate of the take that is reasonably
likely to occur and proposed for
authorization.
To quantitatively assess exposure of
marine mammals to noise from pile
driving activities, we used the
occurrence estimate (number/unit of
time; tables 17 and 19) and the
estimated work hours per year (table 20)
to determine the number of animals
potentially exposed to an activity.
Because the size of the Level A
harassment zones may exceed the
shutdown zones (see the Proposed
Mitigation section) and the limits of
PSO visibility during impact driving
activities, the number of takes by Level
A harassment was estimated based on
the proportion of work hours allocated
to impact pile driving (table 20) for all
species except killer whales, which
have smaller predicted Level A
harassment zones, and CIBWs, which
have larger proposed shutdown zones,
described in further detail below.
TABLE 20—ESTIMATED PREDICTED NUMBER OF HOURS OF IMPACT AND VIBRATORY HAMMER USE FOR EACH
CONSTRUCTION YEAR
Impact
duration
(hrs)
Year
lotter on DSK11XQN23PROD with PROPOSALS3
1
2
3
4
5
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
The equation used to calculate
estimated take by Level A harassment
for species with yearly occurrence
estimates is:
Level A harassment estimate =
occurrence × proportion of impact
hammer use
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98.90
87.43
38.70
87.43
81.70
where occurrence per year is taken from
table 17, and proportion of impact
hammer use per year from table 20. For
species with hourly occurrence
estimates, the equation is:
Level A harassment estimate = (hourly
occurrence × total duration in
hours) × proportion of impact
hammer use
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Vibratory
duration
(hrs)
55.00
47.92
96.50
50.42
55.50
Total
duration
(hrs)
153.90
135.35
135.20
137.85
137.20
Proportion of
impact
hammer
use
0.64
0.65
0.29
0.63
0.60
Estimates of take by Level A and
Level B harassment for all species are
based on the best available data. NMFS
proposes to authorize total takes for
each species by Level A and Level B
harassment over the 5-year period of the
proposed ITR as calculated and shown
in the relevant tables, with annual take
by Level A and Level B harassment for
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each species not to exceed the
maximum annual values shown in
tables 21, 22, and 24.
TABLE 21—ESTIMATED TAKE BY LEVEL A HARASSMENT IN EACH OF THE 5 YEARS AND IN TOTAL FOR NON-CIBW MARINE
MAMMAL SPECIES IN THE PROPOSED CTR PROJECT AREA 1
Potential level A harassment by year
Species
1
Gray whale .......................................................................
Humpback whale .............................................................
2
4
3
3
4
3
Killer whale .......................................................................
4
2
1
5
4
3
Total
4
2
18
12
6
Harbor porpoise ...............................................................
Steller sea lion .................................................................
Harbor seal ......................................................................
15
6
98
13
6
88
6
6
3
39
13
6
87
12
5
82
59
26
394
1 Annual take may not be distributed exactly as shown; NMFS proposes to authorize total take over the 5 year construction period, with annual
take by Level A harassment for each species not to exceed the maximum annual value shown in years 1–5.
Proposed estimates of take by Level B
harassment for non-CIBW species were
calculated as the difference between the
estimated Level A harassment exposures
and total estimated yearly occurrence
(either the estimated yearly occurrence
from table 17 or calculated as the hourly
occurrence from table 17 multiplied by
the total yearly duration in table 20) for
each stock.
TABLE 22—ESTIMATED TAKE BY LEVEL B HARASSMENT IN EACH OF THE 5 YEARS AND IN TOTAL FOR NON-CIBW MARINE
MAMMAL SPECIES IN THE PROPOSED CTR PROJECT AREA 1
Potential level B harassment by year
Stock
1
Gray whale .......................................................................
Humpback whale .............................................................
Killer whale .......................................................................
Harbor porpoise ...............................................................
Steller sea lion .................................................................
Harbor seal ......................................................................
2
2
1
6
8
3
55
3
2
1
6
7
3
47
4
4
3
6
14
6
96
5
2
1
6
8
3
51
Total
2
2
6
8
4
55
12
8
30
45
20
304
1 Annual take may not be distributed exactly as shown; NMFS proposes to authorize total take over the 5 year construction period, not to exceed the sum of the maximum annual values shown in years 1–5 in Tables 21 and 22.
Beluga Whale
lotter on DSK11XQN23PROD with PROPOSALS3
Potential exposures above harassment
thresholds of CIBWs, which we equate
with takes, were calculated by
multiplying the total number of
vibratory installation or removal hours
per month for each sized/shaped pile
based on the anticipated construction
schedule (table 2) with the
corresponding sighting rate month and
sighting rate distance bin (table 19). For
example, the Level B harassment
isopleth distance for the vibratory
installation of 36-in (91-cm) piles is
4,514 m, which falls within bin number
4 (table 19). Therefore, take for this
activity is calculated by multiplying the
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total number of hours estimated each
month to install 36-in piles via a
vibratory hammer by the monthly CIBW
sighting rates calculated for bin number
4 (table 19). The resulting estimated
CIBW exposures were totaled for all
activities in each month (table 23).
In their calculation of CIBW take, the
POA assumed that only 36-in template
piles would be installed (rather than 24in) and removed during the project. If
24-in piles are used for temporary
stability template piles, it would be
assumed that the potential impacts of
this alternate construction scenario and
method on marine mammals are
fungible (i.e., that potential impacts of
installation and removal of 24-in steel
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pipe piles would be similar to the
potential impacts of installation and
removal of 36-in steel pipe piles). While
removal of 24-in piles may be louder
than removal of 36-in piles (tables 9 and
10), installation would be significantly
quieter. Given the number of piles to be
installed and extracted using vibratory
methods, overall impacts from 36-in
piles are expected to be greater than
those from 24-in piles. Using the
monthly activity estimates in hours
(table 2) and monthly calculated
sighting rates (CIBWs/hour) for the
spatially derived distance bins (table
23), we estimated take by Level B
harassment for each of the 5 years of the
CTR project (table 24).
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
TABLE 23—ALLOCATION OF EACH LEVEL B HARASSMENT ISOPLETH TO A SIGHTING RATE BIN AND CIBW MONTHLY
SIGHTING RATES FOR DIFFERENT PILE SIZES AND HAMMER TYPES
Level B
isopleth
distance
(m)
Activity
Belugas/Hour
Sighting rate
bin number
and distance
Apr
May
Jun
Jul
Aug 1
Sep 1
Oct 1
Nov
Unattenuated Values (without the use of a bubble curtain)
36-in Vibratory Removal 1 2 ..........................................
36-in Vibratory Installation 1 2 .......................................
72-in Vibratory Installation 3 ..........................................
Concurrent 36-in AND 36-in Vibratory Installation .......
Concurrent 36-in AND 36-in OR 72-in Vibratory Installation 4.
36-in Impact Installation 1 2 ...........................................
72-in Impact Installation 3 .............................................
1,699
4,514
9,069
9,069
9,363
2 (2,338 m) ....
4 (6,974 m) ....
5 (>6,974) .......
0.34
0.67
0.71
0.16
0.33
0.39
0.15
0.29
0.30
0.09
0.13
0.13
1.55
2.24
2.29
1.42
2.18
2.23
1.09
2.42
2.56
0.65
0.73
0.73
1,585
7,356
2 (2,338 m) ....
5 (>6,974) .......
0.34
0.71
0.16
0.39
0.15
0.30
0.09
0.13
1.55
2.29
1.42
2.23
1.09
2.56
0.65
0.73
Attenuated Values (with the use of a bubble curtain)
36-in Vibratory Removal 2 .............................................
36-in Vibratory Installation 2 ..........................................
72-in Vibratory Installation 3 ..........................................
Concurrent 36-in AND 36-in Vibratory Installation .......
Concurrent 36-in AND 72-in Vibratory Installation .......
36-in Impact Installation 1 2 ...........................................
72-in Impact Installation ...............................................
1,318
3,575
6,119
5,667
8,318
541
2,512
2 (2,338) .........
4 (6,974 m) ....
0.34
0.67
0.16
0.33
0.15
0.29
0.09
0.13
1.55
2.24
1.42
2.18
1.09
2.42
0.65
0.73
5 (>6,974) .......
2 (2,338) .........
3 (3,155 m) ....
0.71
0.34
0.36
0.39
0.16
0.22
0.30
0.15
0.21
0.13
0.09
0.09
2.29
1.55
2.02
2.23
1.42
1.89
2.56
1.09
1.98
0.73
0.65
0.72
lotter on DSK11XQN23PROD with PROPOSALS3
1 Unattenuated vibratory and impact driving of temporary and permanent piles during the months of August through October would be limited to the minimum possible number of piles that must be driven in-water in depths <3 m.
2 Unattenuated and attenuated vibratory installation of 36-in temporary piles both result in bin 4; vibratory removal of this pile type results in bin 2 in both attenuated
and unattenuated conditions. Unattenuated and attenuated impact pile driving of 36-in piles results in bin 2 in both conditions.
3 Unattenuated vibratory and impact installation of permanent (72-in) piles will be minimized to the extent possible by driving as many piles as possible in the dry for
all months of the construction seasons. To account for piles driven in water less than 3 m deep, NMFS has estimated approximately 0.5 unattenuated 72-in piles will
be driven (approximately 43 minutes of impact driving and 5 minutes of vibratory driving) each month. Impact driving (attenuated and unattenuated) results in Bin 2;
vibratory driving (attenuated and unattenuated) results in Bin 5.
4 Both concurrent driving of 2 temporary piles (1 attenuated, 1 unattenuated) and 1 temporary (unattenuated) and 1 permanent (attenuated) piles result in a Level B
harassment isopleth of 9,363 m.
For the PCT (85 FR 19294, April 6,
2020), SFD (86 FR 50057, September 7,
2021), and NES1 (89 FR 2832, January
14, 2024) projects, NMFS accounted for
the implementation of mitigation
measures (e.g., shutdown procedures
implemented when CIBWs entered or
approached the estimated Level B
harassment zone) by applying an
adjustment factor to CIBW take
estimates. This was based on the
assumption that some Level B
harassment takes would likely be
avoided based on required shutdowns
for CIBWs at the Level B harassment
zone isopleths (see the Proposed
Mitigation section for more
information). For the PCT project,
NMFS compared the number of
observations of CIBW within estimated
harassment zones at the POA to the
number of authorized takes for previous
projects from 2008 to 2017 and found
the percentage ranged from 12 to 59
percent with an average of 36 percent
(85 FR 19294, April 6, 2020). NMFS
then applied the highest percentage of
previous potentially realized takes (i.e.,
number of CIBWs observed within
estimated Level B harassment zones; 59
percent during the 2009–2010 season) to
ensure potential takes of CIBWs were
fully evaluated. In doing so, NMFS
assumed that approximately 59 percent
of the takes calculated could be realized
during PCT and SFD construction (85
FR 19294, April 6, 2020; 86 FR 50057,
September 7, 2021) and that 41 percent
of the calculated CIBW Level B
harassment takes would be avoided by
successful implementation of required
mitigation measures.
The POA calculated the adjustment
for successful implementation of
mitigation measures for CTR using the
percentage of realized takes for the PCT
project (see table 6–20 in the POA’s
application). The data from PCT Phase
1 and PCT Phase 2 most accurately
reflect the current marine mammal
monitoring program, the current
program’s effectiveness, and CIBW
occurrence in the proposed project area.
Between the two phases of the PCT
project, 90 total Level B harassment
takes were authorized and 53 were
potentially realized, equating to an
overall percentage of 59 percent. The
SFD Project, during which only 7
percent of authorized take was
potentially realized, represents
installation of only 12 piles during a
limited time period and does not
represent the much higher number of
piles and longer construction timeframe
anticipated for CTR.
NMFS proposes that the 59-percent
adjustment accurately accounts for the
efficacy of the POA’s marine mammal
monitoring program and required
shutdown protocols, based on past
performance. NMFS, therefore, assumes
that approximately 59 percent of the
takes calculated for CTR may actually be
realized (table 24). Take by Level A
harassment is not anticipated or
proposed to be authorized for CIBWs
because the POA will be required to
shut down activities when CIBWs
approach and or enter the Level B
harassment zone, which in all cases is
larger than the estimated Level A
harassment zones (see the Proposed
Mitigation section for more
information).
TABLE 24—CALCULATED LEVEL B HARASSMENT TAKES OF CIBWS BY MONTH, YEAR, AND ACTIVITY 1
Apr
May
Jun
Jul
Aug 2
Sep 2
Oct 2
Nov
Year 1 1
36″ vibratory installation 3 ..................................................................
36″ vibratory removal 3 ......................................................................
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0.12
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0.11
0.78
0.07
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0.82
1.47
0.49
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
TABLE 24—CALCULATED LEVEL B HARASSMENT TAKES OF CIBWS BY MONTH, YEAR, AND ACTIVITY 1—Continued
Apr
72″
72″
72″
72″
May
Jun
Jul
Aug 2
Sep 2
Oct 2
Nov
vibratory installation (attenuated) ...............................................
vibratory installation (unattenuated) 4 .........................................
impact installation (attenuated) ..................................................
impact installation (unattenuated) 4 ............................................
0.50
0.06
2.35
0.49
0.59
0.03
3.36
0.27
0.51
0.03
3.19
0.21
0.23
0.01
1.40
0.09
3.17
0.19
24.67
1.60
3.09
0.19
23.08
1.56
3.43
0.21
24.18
1.79
0.06
0.06
3.62
0.51
Year 1 total ................................................................................
With 59% Correction Factor 5 ....................................................
................
................
................
................
................
................
................
................
................
................
................
................
................
................
151
90
Year 2 1
36″
36″
72″
72″
72″
72″
vibratory installation 3 ..................................................................
vibratory removal 3 ......................................................................
vibratory installation (attenuated) ...............................................
vibratory installation (unattenuated) 4 .........................................
impact installation (attenuated) ..................................................
impact installation (unattenuated) 4 ............................................
2.01
0.26
0.50
0.06
2.35
0.49
1.67
0.12
0.47
0.03
2.72
0.27
1.47
0.11
0.42
0.03
2.58
0.21
0.65
0.07
0.18
0.01
1.14
0.09
11.20
1.16
3.17
0.19
24.67
1.60
10.91
1.06
2.73
0.19
20.36
1.56
6.05
0.82
3.03
0.21
21.34
1.79
1.47
0.00
0.43
0.06
3.62
0.51
Year 2 total ................................................................................
With 59% Correction Factor 5 ....................................................
................
................
................
................
................
................
................
................
................
................
................
................
................
................
137
81
Year 3 1
36″
36″
72″
72″
72″
72″
vibratory installation 3 ..................................................................
vibratory removal 3 ......................................................................
vibratory installation (attenuated) ...............................................
vibratory installation (unattenuated) 4 .........................................
impact installation (attenuated) ..................................................
impact installation (unattenuated) 4 ............................................
4.36
0.26
0.39
0.06
1.83
0.49
4.35
0.37
0.20
0.03
1.12
0.27
3.82
0.34
0.17
0.03
1.07
0.21
1.68
0.21
0.05
0.01
0.34
0.09
29.13
2.33
0.93
0.19
7.28
1.60
28.38
2.12
0.91
0.19
6.81
1.56
15.73
0.82
1.01
0.21
7.13
1.79
1.47
0.49
0.31
0.06
2.59
0.51
Year 3 total ................................................................................
With 59% Correction Factor 5 ....................................................
................
................
................
................
................
................
................
................
................
................
................
................
................
................
136
81
Year 4 1
36″
36″
72″
72″
72″
72″
vibratory installation 3 ..................................................................
vibratory removal 3 ......................................................................
vibratory installation (attenuated) ...............................................
vibratory installation (unattenuated) 4 .........................................
impact installation (attenuated) ..................................................
impact installation (unattenuated) 4 ............................................
4.36
0.26
0.39
0.06
1.83
0.49
4.35
0.37
0.20
0.03
1.12
0.27
3.82
0.34
0.17
0.03
1.07
0.21
1.68
0.21
0.05
0.01
0.34
0.09
29.13
2.33
0.93
0.19
7.28
1.60
28.38
2.12
0.91
0.19
6.81
1.56
15.73
0.82
1.01
0.21
7.13
1.79
1.47
0.49
0.31
0.06
2.59
0.51
Year 4 total ................................................................................
With 59% Correction Factor 5 ....................................................
................
................
................
................
................
................
................
................
................
................
................
................
................
................
138
82
1.76
0.11
0.42
0.03
2.58
0.21
................
................
0.78
0.07
0.18
0.01
1.14
0.09
................
................
13.44
1.16
2.80
0.19
21.77
1.60
................
................
12.00
1.06
2.73
0.19
20.36
1.56
................
................
13.31
0.82
3.03
0.21
21.34
1.79
................
................
1.84
0.49
0.31
0.06
2.59
0.51
143
85
................
................
................
................
................
................
................
................
................
................
705
419
Year 5 1
36″
36″
72″
72″
72″
72″
vibratory installation 3 ..................................................................
vibratory removal 3 ......................................................................
vibratory installation (attenuated) ...............................................
vibratory installation (unattenuated) 4 .........................................
impact installation (attenuated) ..................................................
impact installation (unattenuated) 4 ............................................
Year 5 total ................................................................................
With 59% Correction Factor 5 ....................................................
1.68
0.26
0.28
0.06
1.31
0.49
................
................
Project Total Estimated Exposures ...........................................
With 59% Correction Factor 5 ....................................................
................
................
2.01
0.12
0.47
0.03
2.72
0.27
................
................
Years 1–5 Total
................
................
lotter on DSK11XQN23PROD with PROPOSALS3
1 Concurrent driving scenarios that would improve the production efficiency in the months of April through July have been conservatively excluded from this analysis.
2 Unattenuated vibratory driving of temporary and permanent piles during the months of August through October would be limited to the minimum possible number
of piles that must be driven in-water in depths <3m.
3 Attenuated and unattenuated bins for this activity are the same.
4 Unattenuated vibratory and impact installation of permanent (72-in) piles will be minimized to the extent possible by driving as many piles as possible in the dry for
all months of the construction seasons. This calculation assumes 0.5 72-in piles per month may be driven in water depths <3m and thus be unattenuated.
5 Corrected exposure estimates have been rounded up for each year (e.g., Year 1 = 0.59 * 151 = 89.1, which has been rounded up to 90).
In summary, the maximum annual
amount of Level A harassment and
Level B harassment proposed to be
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authorized for each marine mammal
stock is presented in table 25.
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TABLE 25—NUMBER OF PROPOSED TAKES AS A PERCENTAGE OF STOCK ABUNDANCE, BY STOCK AND HARASSMENT TYPE
FOR THE MAXIMUM ANNUAL ESTIMATED TAKES OF THE PROJECT
Proposed take
Species
Stock
Level A
Level B
Total
Gray whale ..............................................
Humpback whale 1 ..................................
4
3
2
1
6
4
Beluga whale ..........................................
Killer whale 1 ...........................................
0
6
90
6
90
12
Harbor porpoise ......................................
Steller sea lion ........................................
Harbor seal .............................................
16
6
99
8
3
55
24
9
154
Eastern North Pacific ..............................
Hawai1i ....................................................
Mexico-North Pacific ...............................
Cook Inlet 3 .............................................
Eastern North Pacific Alaska Resident ..
Eastern North Pacific Gulf of Alaska,
Aleutian Islands and Bering Sea Transient.
Gulf of Alaska .........................................
Western ..................................................
Cook Inlet/Shelikof Strait ........................
Percent of
stock
0.02
0.04
2 UNK
27.2
0.6
2.04
0.08
0.015
0.54
1 NMFS
conservatively assumes that all takes occur to each stock
does not have an official abundance estimate for this stock and the minimum population estimate is considered to be unknown (Young
et al., 2023). See Small Numbers for additional discussion.
3 This abundance estimate is from Goetz et al. (2023); which was published after the most recent CIBW SAR (Young et al., 2023).
2 NMFS
lotter on DSK11XQN23PROD with PROPOSALS3
Proposed Mitigation
In order to promulgate a rulemaking
under section 101(a)(5)(A) of the
MMPA, NMFS must set forth the
permissible methods of taking pursuant
to the activity and other means of
effecting the least practicable adverse
impact on the species or stock and its
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance and on the
availability of the species or stock for
taking for certain subsistence uses (latter
not applicable for this action). NMFS
regulations require applicants for
incidental take authorizations to include
information about the availability and
feasibility (economic and technological)
of equipment, methods, and manner of
conducting the activity or other means
of effecting the least practicable adverse
impact upon the affected species or
stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or
may not be appropriate to ensure the
least practicable adverse impact on
species or stocks and their habitat, as
well as subsistence uses where
applicable, NMFS considers two
primary factors:
(1) The manner in which, and the
degree to which, the successful
implementation of the measure(s) is
expected to reduce impacts to marine
mammals, marine mammal species or
stocks, and their habitat. This considers
the nature of the potential adverse
impact being mitigated (likelihood,
scope, range). It further considers the
likelihood that the measure will be
effective if implemented (probability of
accomplishing the mitigating result if
implemented as planned), the
likelihood of effective implementation
VerDate Sep<11>2014
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(probability implemented as planned),
and;
(2) The practicability of the measures
for applicant implementation, which
may consider factors such as cost and
impact on operations.
The POA presented mitigation
measures in section 11 of their
application that were modeled after the
requirements included in the IHAs
issued for Phase 1 and Phase 2 PCT
construction (85 FR 19294, April 6,
2020) and for SFD construction (86 FR
50057, September 7, 2021), which were
designed to minimize the total number,
intensity, and duration of harassment
events for CIBWs and other marine
mammal species during those projects
(61N Environmental, 2021, 2022a,
2022b). NMFS concurs that these
proposed measures reduce the potential
for CIBWs and other marine mammals
to be adversely impacted by the
proposed activity.
Noise Mitigation for Pile Installation
and Removal—The POA has previously
utilized and assessed the effectiveness
of bubble curtains for noise mitigation at
the project site (Austin et al. 2016;
Illingworth and Rodkin, LLC (I&R)
2021a, 2021b, 2023). In all previous
years of the PAMP, bubble curtains were
not used on piles installed or removed
in shallow water less than 3 meters deep
or piles installed or removed ‘‘in the
dry’’ (e.g., at times when the tide is low
and the pile’s location is dewatered)
because low water levels prevent proper
deployment and function of a bubble
curtain system. When a pile was
installed or removed in the dry, it was
assumed that no exposure to received
sound levels equated with potential
incidental harassment occurred and,
therefore, that no take of marine
mammals occurred. The same
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assumptions and approach to mitigation
associated with use of a bubble curtain
have been used in the analyses for this
project.
NMFS is proposing that the POA must
employ the following mitigation
measures:
• Ensure that construction
supervisors and crews, the monitoring
team and relevant POA staff are trained
prior to the start of all pile driving, so
that responsibilities, communication
procedures, monitoring protocols, and
operational procedures are clearly
understood. New personnel joining
during the project must be trained prior
to commencing work;
• Employ PSOs and establish
monitoring locations as described in the
POA’s Marine Mammal Monitoring and
Mitigation Plan (see appendix B of the
POA’s application). The POA must
monitor the project area to the
maximum extent possible based on the
required number of PSOs, required
monitoring locations, and
environmental conditions;
• Monitoring must take place from 30
minutes prior to initiation of pile
driving (i.e., pre-clearance monitoring)
through 30 minutes post-completion of
pile driving;
• Pre-start clearance monitoring must
be conducted during periods of
visibility sufficient for the lead PSO to
determine that the shutdown zones
indicated in table 26 are clear of marine
mammals. Pile driving may commence
following 30 minutes of observation
when the determination is made that the
shutdown zones are clear of marine
mammals or when the mitigation
measures proposed specifically for
CIBWs (below) are satisfied;
• If work ceases for more than 30
minutes, PSOs must observe a 30minute pre-start clearance period (i.e.,
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would occur upon sighting of a marine
mammal entering or within the defined
area. The shutdown zones (table 26)
were calculated based on the minimum
100-m shutdown zone proposed by the
POA for all pile installation and
vibratory extraction activities, as well as
the calculated Level A (non-CIBW
species) and Level B (CIBWs)
harassment isopleths shown in table 16.
In most cases, the shutdown zones
the shutdown zones must be observed
for 30 minutes and confirmed clear of
marine mammals) prior to reinitiating
pile driving. A determination that the
shutdown zone is clear must be made
during a period of good visibility.
• For all construction activities,
shutdown zones must be established
following table 26. The purpose of a
shutdown zone is generally to define an
area within which shutdown of activity
exceed the calculated Level A isopleths;
exceptions occur during impact pile
driving, when the calculated Level A
harassment isopleths exceed practicable
shutdown zones for non-CIBW species,
and during concurrent vibratory driving
(the largest Level A isopleth is 161 m
during this activity). For CIBWs, the
shutdown zones exceed the calculated
Level B harassment isopleths in all
scenarios.
TABLE 26—PROPOSED SHUTDOWN ZONES DURING SPECIFIED ACTIVITIES
Shutdown zone (m)
Activity
Attenuated or
unattenuated
Pile type/size
Vibratory Installation .........
Vibratory Removal ............
Impact Installation—1 pile
per day.
Impact Installation—1 pile
per day.
Non-CIBW
MF 1
cetaceans
LF
cetaceans
24-in
36-in
72-in
72-in
24-in
36-in
72-in
24-in
36-in
24-in
36-in
............................
............................
............................
............................
............................
............................
............................
............................
............................
............................
............................
Unattenuated ....................
100
100
24-in
36-in
24-in
36-in
............................
............................
............................
............................
Unattenuated ....................
500
500
Attenuated ........................
100
72-in ............................
Unattenuated ....................
500
36-in ............................
AND ............................
36-in ............................
36-in ............................
AND ............................
72-in ............................
Concurrent Vibratory/Impact.
36-in ............................
AND ............................
72-in ............................
2,250
4,520
HF 1
cetaceans
PW
OW
100
100
100
1,600
500
100
100
100
550
100
100
100
500
7,360
500
100
100
100
100
100
500
100
100
.
9,100
2,630
3,580
6,120
5,970
1,700
2,100
1,320
Attenuated ........................
Unattenuated ....................
Attenuated ........................
Attenuated ........................
Impact Installation—2 piles
per day.
Impact Installation—3 piles
per day.
Concurrent—2 Vibratory
sources.
CIBWs
2,520
Attenuated/Attenuated ......
Attenuated/Unattenuated ..
Unattenuated/
Unattenuated.
Attenuated/Attenuated ......
Unattenuated/Attenuated ..
100
Attenuated/Attenuated (1
pile per day).
Attenuated/Attenuated (2
piles per day).
Attenuated/Attenuated (3
piles per day).
Unattenuated/Attenuated
(1 pile per day).
Unattenuated/Attenuated
(2 piles per day).
Unattenuated/Attenuated
(3 piles per day).
500
100
5,670
9,370
9,070
8,320
9,370
500
3,580
4,520
lotter on DSK11XQN23PROD with PROPOSALS3
Notes: cm = centimeter(s), m = meter(s); POA may elect to use either 36-in or 24-in temporary piles; as 36-in piles are more likely and estimated to have larger
ensonified areas, we have used these piles in our analyses of concurrent activities.
1 In the Updated Technical Guidance (NMFS, 2024), the MF Cetacean hearing group has been re-named the HF Cetacean group; HF Cetaceans from the 2018
Technical Guidance have been re-named VHF Cetaceans.
• Marine mammals observed
anywhere within visual range of the
PSO must be tracked relative to
construction activities. If a marine
mammal is observed entering or within
the shutdown zones indicated in table
26, pile driving must be delayed or
halted. If pile driving is delayed or
halted due to the presence of a marine
VerDate Sep<11>2014
19:55 Oct 25, 2024
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mammal, the activity may not
commence or resume until either the
animal has voluntarily exited and been
visually confirmed beyond the
shutdown zone (table 26), or 15 minutes
(non-CIBWs) or 30 minutes (CIBWs)
have passed without re-detection of the
animal;
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• The POA must use bubble curtains
for all piles during both vibratory and
impact pile driving in water depths
greater than 3 m during the months of
August through October. No bubble
curtain is required for vibratory pile
driving of temporary (24-in or 36-in)
piles in the months of April–July (see
discussion below). Bubble curtains must
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be used for all permanent (72-in) piles
during both vibratory and impact pile
driving in waters deeper than 3 m in the
months of April–November. The bubble
curtain must be operated as necessary to
achieve optimal performance. At a
minimum, the bubble curtain must
distribute air bubbles around 100
percent of the piling circumference for
the full depth of the water column; the
lowest bubble ring must be in contact
with the substrate for the full
circumference of the ring; and air flow
to the bubblers must be balanced around
the circumference of the pile.
• The POA must use soft start
techniques when impact pile driving.
Soft start requires contractors to provide
an initial set of three strikes at reduced
energy, followed by a 30-second waiting
period, then two subsequent reduced
energy strike sets. A soft start must be
implemented at the start of each day’s
impact pile driving and at any time
following cessation of impact pile
driving for a period of 30 minutes or
longer. PSOs shall begin observing for
marine mammals 30 minutes before
‘‘soft start’’ or in-water pile installation
or removal begins;
• Pile driving activity must be halted
upon observation of either a species for
which incidental take is not authorized
or a species for which incidental take
has been authorized but the authorized
number of takes has been met, entering
or within the harassment zone; and
• The POA must avoid direct
physical interaction with marine
mammals during non-pile-driving
construction activities, including barge
positioning and pile cutting. If a marine
mammal comes within 10 m of such
activity, operations shall cease. Should
a marine mammal come within 10 m of
a vessel in transit, the boat operator will
reduce vessel speed to the minimum
level required to maintain steerage and
safe working conditions. If human safety
is at risk, based on the best judgment of
the vessel captain or project engineer,
the in-water activity is allowed to
continue until it is safe to stop.
The following additional mitigation
measures are proposed by NMFS for
CIBWs:
• Prior to the onset of pile driving,
should a CIBW be observed approaching
the estimated shutdown zone (table 26)
(i.e. the CIBWs Level B harassment zone
column in tables 15 and 16), pile
driving must not commence until the
whale(s) moves at least 100 m past the
estimated shutdown zone and on a path
away from the zone, or the whale has
not been re-sighted within 30 minutes;
• If pile installation or removal has
commenced and a CIBW(s) is observed
within or likely to enter the shutdown
VerDate Sep<11>2014
19:55 Oct 25, 2024
Jkt 262001
zone, pile installation or removal must
shut down and not re-commence until
the whale has traveled at least 100 m
beyond the shutdown zone and is on a
path away from such zone or until no
CIBW has been observed in the
shutdown zone for 30 minutes; and
• If during installation and removal of
piles, PSOs can no longer effectively
monitor the entirety of the CIBW
shutdown zone due to environmental
conditions (e.g., fog, rain, wind), pile
driving may continue only until the
current segment of the pile is driven; no
additional sections of pile or additional
piles may be driven until conditions
improve such that the shutdown zone
can be effectively monitored. If the
shutdown zone cannot be monitored for
more than 15 minutes, the entire
shutdown zone will be cleared again for
30 minutes prior to pile driving.
In addition to these mitigation
measures being proposed by NMFS,
NMFS requested that the POA restrict
all pile driving and removal work to
April to July, when CIBWs are typically
found in lower numbers. However, the
POA stated that given the scale of the
project, construction sequencing
requirements, critical nature of the CTR
infrastructure and overall PAMP, and
vulnerability of the existing cargo
terminals to seismic events, it cannot
commit to restricting pile driving and
removal to April to July. Instead, the
POA would complete as much work as
is practicable in April to July to reduce
the amount of pile driving and removal
activities in August through November.
The POA is aware that August through
October are months with high CIBW
abundance and plans to complete inwater work as early in the construction
season as possible. The POA also
recognizes that more work shutdowns
for CIBW are likely to take place in high
abundance months, which provides
incentive to complete work earlier in
the season.
Due to the deterioration of the current
facilities and complexity of the PAMP,
it is important that the POA attempt to
complete the CTR project as currently
proposed (6 years in total), which
requires the POA to make full use of the
available annual construction window
(August through October/November).
Potential consequences of pausing the
construction season (e.g., stopping work
from August through October) include
de-rating of the structural capacity of
the existing cargo terminals, a shutdown
of dock operations due to deteriorated
conditions, or an actual collapse of one
or more dock structures. The potential
for collapse increases with schedule
delays due to both worsening
deterioration and the higher probability
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Sfmt 4702
of a significant seismic event occurring
before T1 and T2 replacement.
For previous IHAs issued to the POA
(PCT: 85 FR 19294, April 6, 2020; SFD:
86 FR 50057, September 7, 2021), the
use of a bubble curtain to reduce noise
has been required as a mitigation
measure for certain pile driving
scenarios. The POA has concerns about
effectiveness of bubble curtains in the
far-field during vibratory pile driving
(see Appendix A of the POA’s
application for further details). NMFS
disagrees with the POA’s assertion of
effectiveness but acknowledges the use
of bubble curtains on all piles has the
potential to drive the in-water
construction schedule further into the
late summer months, which are known
for higher CIBW abundance in the
project area, thus lengthening the
duration of potential interactions
between CIBW and in-water work.
Therefore, NMFS is concerned that use
of a bubble curtain for all piles in all
months may ultimately result in
increased impacts to CIBW. Given the
extensive proposed visual monitoring
and mitigation measures in place, and
in order to facilitate increased
production when CIBW abundance at
POA is expected to be lowest, NMFS
concurs that the POA’s proposal to use
vibratory hammers to install and extract
temporary piles with no bubble curtain
during the months of April through July
affects the least practicable adverse
impact on marine mammals. A bubble
curtain would be required during all
installation of permanent piles in all
months, and for vibratory driving of
temporary piles in August through
October.
NMFS considered additional
mitigation and monitoring requirements
for the CTR project, including soundsource verification measurements and
passive acoustic monitoring of marine
mammals near the POA. Sound source
verification is time-intensive and
expensive, and the POA has previously
collected data on most of the pile types
proposed for the CTR project
(Illingworth and Rodkin, 2021a, b).
Following discussion with the POA,
NMFS determined that conducting
additional sound source verification
measurements would not be practicable
or provide support for additional
mitigation value due to schedule
concerns and the volume of data already
collected and, therefore, this measure
was eliminated from the suite of
proposed mitigation requirements.
However, depending on future project
conditions, the POA may choose to
conduct sound source verification
measurements and work with NMFS to
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lotter on DSK11XQN23PROD with PROPOSALS3
revise the estimated harassment zones
as indicated by the data collected.
With respect to passive acoustic
monitoring, available technologies to
detect marine mammals in near realtime require a surface buoy for the
device, and mooring locations would be
limited by ongoing port operations,
construction activities, and dredging.
The high noise environment at the POA
(from both anthropogenic and natural
sources) would add additional
limitations to the detection range of
such devices. Therefore, NMFS believes
that the POA’s extensive and successful
visual monitoring program represents
the best possible method of minimizing
effects to marine mammals, including
CIBWs to pile driving noise, and that
passive acoustic monitoring would not
provide additional benefits to marine
mammals in this case.
Based on our evaluation of the
applicant’s proposed measures, as well
as other measures considered by NMFS,
NMFS has preliminarily determined
that the proposed mitigation measures
provide the means of affecting the least
practicable impact on the affected
species or stocks and their habitat,
paying particular attention to rookeries,
mating grounds, and areas of similar
significance.
Proposed Monitoring and Reporting
In order to promulgate a rulemaking
for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must set
forth requirements pertaining to the
monitoring and reporting of such taking.
The MMPA implementing regulations at
50 CFR 216.104(a)(13) indicate that
requests for authorizations must include
the suggested means of accomplishing
the necessary monitoring and reporting
that will result in increased knowledge
of the species and of the level of taking
or impacts on populations of marine
mammals that are expected to be
present in the specified geographical
region. Effective reporting is critical
both to compliance as well as ensuring
that the most value is obtained from the
required monitoring.
Monitoring and reporting
requirements prescribed by NMFS
should contribute to improved
understanding of one or more of the
following:
• Occurrence of marine mammal
species or stocks in the area in which
take is anticipated (e.g., presence,
abundance, distribution, density);
• Nature, scope, or context of likely
marine mammal exposure to potential
stressors/impacts (individual or
cumulative, acute or chronic), through
better understanding of: (1) action or
environment (e.g., source
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19:55 Oct 25, 2024
Jkt 262001
characterization, propagation, ambient
noise); (2) affected species (e.g., life
history, dive patterns); (3) co-occurrence
of marine mammal species with the
activity; or (4) biological or behavioral
context of exposure (e.g., age, calving or
feeding areas);
• Individual marine mammal
responses (behavioral or physiological)
to acoustic stressors (acute, chronic, or
cumulative), other stressors, or
cumulative impacts from multiple
stressors;
• How anticipated responses to
stressors impact either: (1) long-term
fitness and survival of individual
marine mammals; or (2) populations,
species, or stocks;
• Effects on marine mammal habitat
(e.g., marine mammal prey species,
acoustic habitat, or other important
physical components of marine
mammal habitat); and,
• Mitigation and monitoring
effectiveness.
The POA’s draft Marine Mammal
Monitoring and Mitigation Plan is
Appendix B of the LOA application, and
is available on regulations.gov and at
https://www.fisheries.noaa.gov/action/
incidental-take-authorization-portalaskas-construction-activities-portalaska-modernization. The POA
proposes to implement a marine
mammal monitoring and mitigation
strategy intended to avoid and minimize
impacts to marine mammals. Marine
mammal monitoring would be
conducted at all times when in-water
pile installation and removal is taking
place. Prior to the beginning of
construction, POA would submit a
revised Marine Mammal Mitigation and
Monitoring Plan containing additional
details of monitoring locations and
methodology for NMFS concurrence.
The marine mammal monitoring and
mitigation program that is planned for
CTR construction would be modeled
after the successful monitoring and
mitigation programs outlined in the
IHAs for Phase 1 and Phase 2 PCT
construction (85 FR 19294, April 6,
2020) and the IHAs for SFD (86 FR
50057, September 7, 2021) and NES1
(89 FR 2832, January 14, 2024)
construction. These monitoring
programs have provided the best
available data on CIBW and other
marine mammal presence at the POA
and continue to be used successfully as
of July 2024 at the NES1 project.
Visual Monitoring
Monitoring must be conducted by
qualified, NMFS-approved PSOs, in
accordance with the following:
• PSOs must be independent of the
activity contractor (e.g., employed by a
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subcontractor) and have no other
assigned tasks during monitoring
periods. At least one PSO at each
monitoring station must have prior
experience performing the duties of a
PSO during construction activity
pursuant to a NMFS-issued ITA or
Letter of Concurrence. Other PSOs may
substitute other relevant experience
(including relevant Alaska Native
traditional knowledge), education
(degree in biological science or related
field), or training for prior experience
performing the duties of a PSO. PSOs
must be approved by NMFS prior to
beginning any activity subject to this
ITA;
• The POA must employ PSO stations
at a minimum of four locations from
which PSOs can effectively monitor the
shutdown zones (table 24). PSO stations
must be positioned at the best practical
vantage points that are determined to be
safe. Likely locations include the
Anchorage Downtown Viewpoint near
Point Woronzof, the Anchorage Public
Boat Dock at Ship Creek, the CTR
Project site, and the North End of POA
property (see figure 13–1 in the POA’s
application for potential locations of
PSO stations). Areas near Cairn Point or
Port MacKenzie have safety, security,
and logistical issues, which would need
to be considered. Cairn Point proper is
located on military land and has bear
presence, and restricted access does not
allow for the location of an observation
station at this site. Tidelands along
Cairn Point are accessible only during
low tide conditions and have inherent
safety concerns of being trapped by
rising tides. Port MacKenzie is a secure
port that is relatively remote, creating
safety, logistical, and physical staffing
limitations due to lack of nearby lodging
and other facilities. The roadway travel
time between port sites is approximately
2–3 hours. An additional possible
monitoring location is proposed north of
the proposed project site, pending
selection of the Construction Contractor
and more detailed discussions before
the start of construction. Temporary
staffing of a northerly monitoring station
during peak marine mammal presence
time periods and/or when shutdown
zones are large would be considered by
the POA, NMFS, and the construction
contractor based on evaluation of CIBW
occurrence reported in the required
weekly monitoring reports. At least one
PSO station must be able to fully
observe the non-CIBW shutdown zones;
multiple PSO stations will be necessary
to fully observe the CIBW shutdown
zones (table 24);
• PSO stations must be elevated
platforms constructed on top of
shipping containers or a similar base
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that is at least 8′6″ high (i.e., the
standard height of a shipping container)
that can support at least three PSOs and
their equipment. The platforms must be
stable enough to support use of a
theodolite and must be located to
optimize the PSO’s ability to observe
marine mammals and the harassment
zones;
• Each PSO station must have at least
two PSOs on watch at any given time;
one PSO must be observing and one
PSO would be recording data (and
observing when there are no data to
record). Teams of three PSOs would
include one PSO who would be
observing, and one PSO who would be
recording data (and observing when
there are no data to record). The third
PSO may help to observe, record data,
or rest. In addition, if POA is
conducting in-water work on other
projects that includes PSOs, the CTR
PSOs must be in real-time contact with
those PSOs, and both sets of PSOs must
share all information regarding marine
mammal sightings with each other;
• A designated lead PSO must always
be on site. The lead observer must have
prior experience performing the duties
of a PSO during in-water construction
activities pursuant to a NMFS-issued
ITA or Letter of Concurrence. Each PSO
station must also have a designated
Station Lead PSO specific to that station
and shift. These Station Lead PSOs must
have prior experience working as a PSO
during in-water construction activities;
• PSOs would use a combination of
equipment to perform marine mammal
observations and to verify the required
monitoring distance from the project
site, which may include 7 by 50
binoculars, 20x/40x tripod mounted
binoculars, 25 by 150 ‘‘big eye’’ tripod
mounted binoculars, and theodolites;
• PSOs must record all observations
of marine mammals, regardless of
distance from the pile being driven.
PSOs shall document any behavioral
reactions in concert with distance from
piles being driven or removed;
PSOs must have the following
additional qualifications:
• Ability to conduct field
observations and collect data according
to assigned protocols;
• Experience or training in the field
identification of marine mammals,
including the identification of
behaviors;
• Sufficient training, orientation, or
experience with the construction
operation to provide for personal safety
during observations;
• Writing skills sufficient to record
required information including but not
limited to the number and species of
marine mammals observed; dates and
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times when in-water construction
activities were conducted; dates, times,
and reason for implementation of
mitigation (or why mitigation was not
implemented when required); and
marine mammal behavior; and
• Ability to communicate orally, by
radio or in person, with project
personnel to provide real-time
information on marine mammals
observed in the area as necessary.
Reporting
NMFS would require the POA to
submit interim weekly monitoring
reports within 14 calendar days after the
conclusion of each calendar week (that
include raw electronic data sheets)
during the CTR construction seasons,
including for weeks during which no inwater work occurred (an email
notification for weeks with no in-water
work would be sufficient). These reports
must include a summary of marine
mammal species observed and
behavioral observations, mitigation
actions implemented, construction
delays, and construction work
completed. They also must include an
assessment of the amount of
construction remaining to be completed
(i.e., the number of estimated hours of
work remaining), in addition to the
number of CIBWs observed within
estimated harassment zones to date for
the current construction year.
NMFS would also require the POA to
submit annual reports after the end of
each construction season and a
comprehensive final report following
the conclusion of year 5 construction
activities. Draft annual marine mammal
monitoring reports must be submitted to
NMFS within 90 days after the
completion of each construction season
or 60 days prior to a requested date of
issuance of any future incidental take
authorization for projects at the same
location, whichever comes first. Annual
reports must detail the monitoring
protocol and summarize the data
recorded during monitoring, and
associated PSO data sheets in electronic
tabular format. Specifically, the reports
must include:
• Dates and times (begin and end) of
all marine mammal monitoring;
• Construction activities occurring
during each daily observation period,
including the number and type of piles
driven or removed and by what method
(i.e., impact or vibratory, the total
equipment duration for vibratory
installation and removal, and the total
number of strikes for each pile during
impact driving);
• PSO locations during marine
mammal monitoring;
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• Environmental conditions during
monitoring periods (at beginning and
end of PSO shift and whenever
conditions change significantly),
including Beaufort sea state and any
other relevant weather conditions
including cloud cover, fog, sun glare,
and overall visibility to the horizon, and
estimated observable distance;
• Upon observation of a marine
mammal, the following information:
name of PSO who sighted the animal(s)
and PSO location and activity at time of
sighting; time of sighting; identification
of the animal(s) (e.g., genus/species,
lowest possible taxonomic level, or
unidentified), PSO confidence in
identification, and the composition of
the group if there is a mix of species;
distance and bearing of each marine
mammal observed relative to the pile
being driven for each sighting (if pile
driving was occurring at time of
sighting); estimated number of animals
(minimum, maximum, and best
estimate); estimated number of animals
by cohort (adults, juveniles, neonates,
group composition, sex class, etc.);
animal’s closest point of approach and
estimated time spent within the
harassment zone; group spread and
formation (for CIBWs only; see ethogram
in Appendix B of the POA’s
application); description of any marine
mammal behavioral observations (e.g.,
observed behaviors such as feeding or
traveling), including an assessment of
behavioral responses that may have
resulted from the activity (e.g., no
response or changes in behavioral state
such as ceasing feeding, changing
direction, flushing, or breaching);
• Number of marine mammals
detected within the harassment zones,
by species;
• Detailed information about any
implementation of mitigation action
(e.g., shutdowns and delays), a
description of specific actions that
ensued, and resulting changes in
behavior of the animal(s), if any;
If no comments are received from
NMFS within 30 days, the draft annual
or comprehensive reports would
constitute the final reports. If comments
are received, a final report addressing
NMFS comments must be submitted
within 30 days after receipt of
comments.
Reporting Injured or Dead Marine
Mammals
In the event that personnel involved
in the construction activities discover
an injured or dead marine mammal, the
POA must immediately cease the
specified activities and report the
incident to the Office of Protected
Resources, NMFS
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([email protected],
[email protected]) and to the
Alaska Regional Stranding Coordinator
as soon as feasible. If the death or injury
was clearly caused by the specified
activity, the POA must immediately
cease the specified activities until
NMFS is able to review the
circumstances of the incident and
determine what, if any, additional
measures are appropriate to ensure
compliance with the terms of the IHA.
The POA must not resume their
activities until notified by NMFS. The
report must include the following
information:
• Time, date, and location (latitude
and longitude) of the first discovery
(and updated location information if
known and applicable);
• Species identification (if known) or
description of the animal(s) involved;
• Condition of the animal(s)
(including carcass condition if the
animal is dead);
• Observed behaviors of the
animal(s), if alive;
• If available, photographs or video
footage of the animal(s); and
• General circumstances under which
the animal was discovered.
Adaptive Management
These proposed regulations governing
the take of marine mammals incidental
to POA’s CTR construction activities
contain an adaptive management
component. Our understanding of the
effects of pile driving and other coastal
construction activities (e.g., acoustic
stressors) on marine mammals
continues to evolve, which makes the
inclusion of an adaptive management
component both valuable and necessary
within the context of 5-year regulations.
The monitoring and reporting
requirements are associated with
information that helps us to better
understand the impacts of the project’s
activities on marine mammals and
informs our consideration of whether
any changes to mitigation and
monitoring are appropriate. The use of
adaptive management allows NMFS to
consider new information from different
sources to determine (with input from
the POA regarding practicability) if such
modifications will have a reasonable
likelihood of more effectively
accomplishing the goals of the
measures.
The following are some of the
possible sources of applicable data to be
considered through the adaptive
management process: (1) results from
monitoring reports, including the
weekly, situational, and annual reports
required; (2) results from research on
marine mammals, noise impacts, or
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other related topics; and (3) any
information which reveals that marine
mammals may have been taken in a
manner, extent, or number not
authorized by these regulations or LOAs
issued pursuant to these regulations.
Adaptive management decisions may be
made at any time, as new information
warrants it.
Negligible Impact Analysis and
Determination
NMFS has defined negligible impact
as an impact resulting from the
specified activity that cannot be
reasonably expected to, and is not
reasonably likely to, adversely affect the
species or stock through effects on
annual rates of recruitment or survival
(50 CFR 216.103). A negligible impact
finding is based on the lack of likely
adverse effects on annual rates of
recruitment or survival (i.e., populationlevel effects). An estimate of the number
of takes alone is not enough information
on which to base an impact
determination. In addition to
considering estimates of the number of
marine mammals that might be ‘‘taken’’
through harassment, NMFS considers
other factors, such as the likely nature
of any impacts or responses (e.g.,
intensity, duration), the context of any
impacts or responses (e.g., critical
reproductive time or location, foraging
impacts affecting energetics), as well as
effects on habitat, and the likely
effectiveness of the mitigation. We also
assess the number, intensity, and
context of estimated takes by evaluating
this information relative to population
status. Consistent with the 1989
preamble for NMFS’ implementing
regulations (54 FR 40338, September 29,
1989), the impacts from other past and
ongoing anthropogenic activities are
incorporated into this analysis via their
impacts on the baseline (e.g., as
reflected in the regulatory status of the
species, population size and growth rate
where known, ongoing sources of
human-caused mortality, or ambient
noise levels).
To avoid repetition, this introductory
discussion of our analysis applies to all
the species listed in table 25 except
CIBWs given that many of the
anticipated effects of this project on
different marine mammal stocks are
expected to be relatively similar in
nature. For CIBWs, there are meaningful
differences in anticipated individual
responses to activities, impact of
expected take on the population, or
impacts on habitat; therefore, we
provide a separate detailed analysis for
CIBWs following the analysis for other
species for which we propose to
authorize incidental take.
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NMFS has identified key factors
which may be employed to assess the
level of analysis necessary to conclude
whether potential impacts associated
with a specified activity should be
considered negligible. These include,
but are not limited to, the type and
magnitude of taking, the amount and
importance of the available habitat for
the species or stock that is affected, the
duration of the anticipated effect to the
species or stock, and the status of the
species or stock. The potential effects of
the specified activities on gray whales,
humpback whales, killer whales, harbor
porpoises, Steller sea lions, and harbor
seals are discussed below. Some of these
factors also apply to CIBWs; however, a
more detailed analysis for CIBWs is
provided in a separate subsection
below.
Species Other than CIBW. Pile driving
associated with the project, as outlined
previously, has the potential to disturb
or displace marine mammals.
Specifically, the specified activities may
result in take, in the form of Level B
harassment and, for some species, Level
A harassment, from underwater sounds
generated by pile driving. Potential
takes could occur if marine mammals
are present in zones ensonified above
the thresholds for Level B harassment or
Level A harassment, identified above,
while activities are underway.
The POA’s proposed activities and
associated impacts would occur within
a limited, confined area of the stocks’
range (other than CIBW). The work
would occur in the vicinity of the CTR
site, and sound from the proposed
activities would be blocked by the
coastline along Knik Arm along the
eastern boundaries of the site and for
those harassment isopleths that extend
more than 3,000 m, directly across the
Arm along the western shoreline (see
figures 6–10 and 6–11 in the POA’s
application)). The intensity and
duration of take by Level A and Level
B harassment would be minimized
through use of mitigation measures
described herein. Further, the number of
takes proposed to be authorized is small
when compared to stock abundance (see
table 25). In addition, NMFS does not
anticipate that serious injury or
mortality will occur as a result of the
POA’s planned activity given the nature
of the activity, even in the absence of
required mitigation.
Exposures to elevated sound levels
produced during pile driving may cause
behavioral disturbance of some
individuals. Behavioral responses of
marine mammals to pile driving at the
proposed project site are expected to be
mild, short term, and temporary. Effects
on individuals that are taken by Level
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B harassment, as enumerated in the
Estimated Take section, on the basis of
reports in the literature as well as
monitoring from other similar activities
at the POA and elsewhere, will likely be
limited to reactions such as increased
swimming speeds, increased surfacing
time, or decreased foraging if such
activity were occurring (e.g., Ridgway et
al., 1997; Nowacek et al., 2007; Thorson
and Reyff, 2006; Kendall and Cornick,
2015; Goldbogen et al., 2013b; Blair et
al., 2016; Wisniewska et al., 2018;
Piwetz et al., 2021). Marine mammals
within the Level B harassment zones
may not show any visual cues they are
disturbed by activities or they could
become alert, avoid the area, leave the
area, or display other mild responses
that are not visually observable such as
exhibiting increased stress levels (e.g.,
Rolland et al. 2012; Lusseau, 2005;
Bejder et al., 2006; Rako et al., 2013;
Pirotta et al., 2015b; Pe´rez-Jorge et al.,
2016). They may also exhibit increased
vocalization rates, louder vocalizations,
alterations in the spectral features of
vocalizations, or a cessation of
communication signals (Hotchkin and
Parks 2013). However, as described in
the Potential Effects of Specified
Activities on Marine Mammals and
Their Habitat section of this proposed
rule, marine mammals, except CIBWs,
observed within Level A and Level B
harassment zones related to recent POA
construction activities have not shown
any acute, visually observable reactions
to pile driving activities that have
occurred during the PCT and SFD
projects (61N Environmental, 2021,
2022a, 2022b).
Some of the species present in the
region will only be present temporarily
based on seasonal patterns or during
transit between other habitats. These
temporarily present species will be
exposed to even smaller periods of
noise-generating activity, further
decreasing the impacts. Most likely,
individual animals will simply move
away from the sound source and be
temporarily displaced from the area.
Takes may also occur during important
feeding times. The project area though
represents a small portion of available
foraging habitat and impacts on marine
mammal feeding for all species is
expected to be minimal.
The activities analyzed here are
similar to numerous other construction
activities conducted in Southern Alaska
(e.g., 86 FR 43190, August 6, 2021; 87
FR 15387, March 18, 2022), including
the PCT and SFD projects within Upper
Knik Arm (85 FR 19294, April 6, 2020;
86 FR 50057, September 7, 2021,
respectively) which have taken place
with no known long-term adverse
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consequences from behavioral
harassment. Any potential reactions and
behavioral changes are expected to
subside quickly when the exposures
cease, and therefore, no long-term
adverse consequences are expected (e.g.,
Graham et al., 2017). While there are no
long-term peer-reviewed studies of
marine mammal habitat use at the POA,
studies from other areas indicate that
most marine mammals would be
expected to have responses on the order
of hours to days. For example, harbor
porpoises returned to a construction
area between pile-driving events within
several days during the construction of
offshore wind turbines near Denmark
(Carstensen et al., 2006). The intensity
of Level B harassment events would be
minimized through use of mitigation
measures described herein, which were
not quantitatively factored into the take
estimates. The POA would use PSOs
stationed strategically to increase
detectability of marine mammals during
in-water construction activities,
enabling a high rate of success in
implementation of shutdowns to avoid
or minimize injury for most species.
Further, given the absence of any major
rookeries and haulouts within the
estimated harassment zones, we assume
that potential takes by Level B
harassment would have an
inconsequential short-term effect on
individuals and would not result in
population-level impacts.
As stated in the mitigation section,
the POA will implement shutdown
zones (table 26) that equal or exceed the
Level A harassment isopleths (table 16)
for most vibratory pile driving and
maximize practicability for shutdowns
during impact pile driving. Take by
Level A harassment is proposed for
authorization for some species (gray
whales, humpback whales, killer
whales, harbor seals, Steller sea lions,
and harbor porpoises) to account for the
large Level A harassment zones from
impact driving and the potential that an
animal could enter and remain
unobserved within the estimated Level
A harassment zone for a duration long
enough to incur auditory injury. Any
take by Level A harassment is expected
to arise from, at most, a small degree of
auditory injury because animals would
need to be exposed to higher levels and/
or longer duration than are expected to
occur here in order to incur any more
than a small degree of auditory injury.
Due to the levels and durations of
likely exposure, animals that experience
auditory injury will likely only receive
slight injury (i.e., minor degradation of
hearing capabilities within regions of
hearing that align most completely with
the frequency range of the energy
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produced by POA’s proposed in-water
construction activities (i.e., the lowfrequency region below 2 kHz)), not
severe hearing impairment or
impairment in the ranges of greatest
hearing sensitivity. If hearing
impairment does occur, it is most likely
that the affected animal will lose a few
dBs in its hearing sensitivity, which, in
most cases, is not likely to meaningfully
affect its ability to forage and
communicate with conspecifics. There
are no data to suggest that a single
instance in which an animal incurs
auditory injury (or TTS) would result in
impacts to reproduction or survival. If
auditory injury were to occur, it would
be minor and unlikely to affect more
than a few individuals. Additionally,
and as noted previously, some subset of
the individuals that are behaviorally
harassed could also simultaneously
incur some small degree of TTS for a
short duration of time. Because of the
small degree anticipated, though, any
auditory injury or TTS potentially
incurred here is not expected to
adversely impact individual fitness, let
alone annual rates of recruitment or
survival for the affected species or
stocks.
Repeated, sequential exposure to pile
driving noise over a long duration could
result in more severe impacts to
individuals that could affect a
population (via sustained or repeated
disruption of important behaviors such
as feeding, resting, traveling, and
socializing; Southall et al., 2007).
Alternatively, marine mammals exposed
to repetitious construction sounds may
become habituated, desensitized, or
tolerant after initial exposure to these
sounds (reviewed by Richardson et al.,
1995; Southall et al., 2007). However,
given the relatively low abundance of
marine mammals other than CIBWs in
Knik Arm compared to the stock sizes
(table 25), population-level impacts are
not anticipated. The absence of any
pinniped haulouts or other known nonCIBW home-ranges in the proposed
action area further decreases the
likelihood of population-level impacts.
The CTR project is also not expected
to have significant adverse effects on
any marine mammal habitat. The project
activities would occur mostly within the
same footprint as existing marine
infrastructure; the new T1 and T2
would extend approximately 140 ft (47m) seaward of the existing terminals.
The long-term impact on marine
mammals associated with CTR would be
a small permanent decrease in lowquality potential habitat because of the
expanded footprint of the new cargo
terminals T1 and T2. Installation and
removal of in-water piles would be
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temporary and intermittent, and the
increased footprint of the facilities
would destroy only a small amount of
low-quality habitat, which currently
experiences high levels of
anthropogenic activity. Impacts to the
immediate substrate are anticipated, but
these would be limited to minor,
temporary suspension of sediments,
which could impact water quality and
visibility for a short amount of time but
which would not be expected to have
any effects on individual marine
mammals. Further, there are no known
BIAs near the project zone, except for
CIBWs, that will be impacted by the
POA’s planned activities.
Impacts to marine mammal prey
species are also expected to be minor
and temporary and to have, at most,
short-term effects on foraging of
individual marine mammals and likely
no effect on the populations of marine
mammals as a whole. Overall, the area
impacted by the CTR project is very
small compared to the available
surrounding habitat and does not
include habitat of particular importance.
The most likely impact to prey would be
temporary behavioral avoidance of the
immediate area. During construction
activities, it is expected that some fish
and marine mammals would
temporarily leave the area of
disturbance, thus impacting marine
mammals’ foraging opportunities in a
limited portion of their foraging range.
But, because of the relatively small area
of the habitat that may be affected and
lack of any habitat of particular
importance, the impacts to marine
mammal habitat are not expected to
cause significant or long-term negative
consequences.
In summary, the following factors
primarily support our preliminary
negligible impact determinations for the
affected stocks of gray whales,
humpback whales, killer whales, harbor
porpoises, Steller sea lions, and harbor
seals:
• No takes by mortality or serious
injury are anticipated or proposed for
authorization;
• Any acoustic impacts to marine
mammal habitat from pile driving are
expected to be temporary and minimal;
• Take would not occur in places
and/or times where take would be more
likely to accrue to impacts on
reproduction or survival, such as within
ESA-designated or proposed critical
habitat, BIAs, or other habitats critical to
recruitment or survival (e.g., rookery);
• The project area represents a very
small portion of the available foraging
area for all potentially impacted marine
mammal species and does not contain
any habitat of particular importance;
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• Take will only occur within upper
Cook Inlet—a limited, confined area of
any given stock’s home range;
• Monitoring reports from similar
work in Knik Arm have documented
little to no observable effect on
individuals of the same species
impacted by the specified activities;
• The required mitigation measures
(i.e., soft starts, pre-clearance
monitoring, shutdown zones, bubble
curtains) are expected to be effective in
reducing the effects of the specified
activity by minimizing the numbers of
marine mammals exposed to injurious
levels of sound and by ensuring that any
take by Level A harassment is, at most,
a small degree of AUD INJ and of a
lower degree that would not impact the
fitness of any animals; and
• The intensity of anticipated takes
by Level B harassment is low for all
stocks consisting of, at worst, temporary
modifications in behavior, and would
not be of a duration or intensity
expected to result in impacts on
reproduction or survival.
Cook Inlet Beluga Whales. For CIBWs,
we further discuss our negligible impact
findings in the context of potential
impacts to this endangered stock based
on our evaluation of the take proposed
for authorization (table 25).
As described in the Recovery Plan for
the CIBW (NMFS, 2016b), NMFS
determined the following physical or
biological features are essential to the
conservation of this species: (1)
Intertidal and subtidal waters of Cook
Inlet with depths less than 9 m mean
lower low water and within 8 km of
high and medium flow anadromous fish
streams; (2) Primary prey species
consisting of four species of Pacific
salmon (Chinook, sockeye, chum, and
coho), Pacific eulachon, Pacific cod,
walleye pollock, saffron cod, and
yellowfin sole, (3) Waters free of toxins
or other agents of a type and amount
harmful to CIBWs, (4) Unrestricted
passage within or between the critical
habitat areas, and (5) Waters with inwater noise below levels resulting in the
abandonment of critical habitat areas by
CIBWs. The CTR project will not impact
essential features 1–3 listed above. All
construction will be done in a manner
implementing best management
practices to preserve water quality, and
no work will occur around creek
mouths or river systems leading to prey
abundance reductions. In addition, no
physical structures will restrict passage;
however, impacts to the acoustic habitat
are relevant and discussed here.
Monitoring data from the POA suggest
pile driving does not discourage CIBWs
from entering Knik Arm and traveling to
critical foraging grounds such as those
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around Eagle Bay (e.g., 61N
Environmental, 2021, 2022a, 2022b;
Easley-Appleyard and Leonard, 2022).
As described in greater detail in the
Potential Effects of Specified Activities
on Marine Mammals and Their Habitat
section of this notice, sighting rates
were not different in the presence or
absence of pile driving (Kendall and
Cornick, 2015). In addition, large
numbers of CIBWs have continued to
forage in portions of Knik Arm and pass
through the area near the POA during
pile driving projects over the past two
decades (Funk et al., 2005; PrevelRamos et al., 2006; Markowitz and
McGuire, 2007; Cornick and SaxonKendall, 2008, 2009; ICRC, 2009, 2010,
2011, 2012; Cornick et al., 2010, 2011;
Cornick and Pinney, 2011; Cornick and
Seagars, 2016; POA, 2019), including
during the recent PCT and SFD
construction projects (61N
Environmental, 2021, 2022a, 2022b;
Easley-Appleyard and Leonard, 2022).
These findings are not surprising as
food is a strong motivation for marine
mammals, and preying on seasonal
anadromous fish runs in Eagle and Knik
Rivers necessitates CIBWs passing the
POA. As described in Forney et al.
(2017), animals typically favor
particular areas because of their
importance for survival (e.g., feeding or
breeding) and leaving may have
significant costs to fitness (reduced
foraging success, increased predation
risk, increased exposure to other
anthropogenic threats). Consequently,
animals may be highly motivated to
maintain foraging behavior in historical
foraging areas despite negative impacts
(e.g., Rolland et al., 2012).
Previous monitoring data indicates
CIBWs may be responding to pile
driving noise but not through
abandonment of primary foraging areas
north of the port. Instead, they may
travel faster past the POA, more quietly,
and in smaller, tighter groups (Kendall
and Cornick, 2015; 61N Environmental,
2021, 2022a, 2022b). CIBW presence at
the POA has been extensively
monitored during pile driving projects
over the last several years, with data
gathered during active driving activities
and during periods of no construction
noise. CIBWs are regularly observed at
the POA even during active pile driving
as discussed below.
During PCT and SFD construction
monitoring, little variability was evident
in the behaviors recorded from month to
month or between sightings that
coincided with in-water pile installation
and removal and those that did not (61N
Environmental, 2021, 2022a, 2022b;
Easley-Appleyard and Leonard, 2022).
Of the 386 CIBWs groups sighted during
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PCT and SFD construction monitoring,
10 groups were observed during or
within minutes of in-water impact pile
installation and 56 groups were
observed during or within minutes of
vibratory pile installation or removal
(61N Environmental, 2021, 2022a,
2022b). In general, CIBWs were more
likely to display no reaction or to
continue to move towards the PCT or
SFD during pile installation and
removal. In the situations during which
CIBWs showed a possible reaction (6
groups during impact driving and 13
groups during vibratory driving), CIBWs
were observed either moving away
immediately after the pile driving
activities started or were observed
increasing their rate of travel.
NMFS funded a visual marine
mammal monitoring project in 2021
(described in the Potential Effects of
Specified Activities on Marine
Mammals and Their Habitat) to
supplement sighting data collected by
the POA monitoring program during
non-pile driving days in order to further
evaluate the impacts of anthropogenic
activities on CIBWs (Easley-Appleyard
and Leonard, 2022). Preliminary results
suggest that group size ranged from 1 to
34 whales, with an average of 3 to 5.6,
depending on the month. September
had the highest sighting rate with 4.08
whales per hour, followed by October
and August (3.46 and 3.41,
respectively). Traveling was recorded as
the primary behavior for 80 percent of
the group sightings and milling was the
secondary behavior most often recorded.
Sighting duration varied from a single
surfacing lasting less than 1 minute to
380 minutes. Preliminary findings
suggest these results are consistent with
the results from the POA’s PCT and SFD
monitoring efforts. For example, group
sizes ranged from 2.38 to 4.32
depending on the month and the highest
sighting rate was observed in September
(1.75). In addition, traveling was the
predominant behavior observed for all
months and categories of construction
activity (i.e., no pile driving, before pile
driving, during pile driving, between
pile driving, or after pile driving), being
recorded as the primary behavior for 86
percent of all sightings, and either the
primary or secondary behavior for 95
percent of sightings.
Easley-Appleyard and Leonard (2022)
also asked PSOs to complete a
questionnaire post-monitoring that
provided NMFS with qualitative data
regarding CIBW behavior during
observations. Specifically during pile
driving events, the PSOs noted that
CIBW behaviors varied; however,
multiple PSOs noted seeing behavioral
changes specifically during impact pile
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driving and not during vibratory pile
driving. CIBWs were observed
sometimes changing direction, turning
around, or changing speed during
impact pile driving, whereas there were
numerous instances where CIBWs were
seen traveling directly towards the POA
during vibratory pile driving before
entering the Level B harassment zone
(61N Environmental, 2021, 2022a,
2022b). The PSOs also reported that it
seemed more likely for CIBWs to show
more cryptic behavior during active
impact and vibratory pile driving (e.g.,
surfacing infrequently and without clear
direction), though this seemed to vary
across months (Easley-Appleyard and
Leonard, 2022).
We anticipate that disturbance to
CIBWs will manifest in the same
manner when they are exposed to noise
during the CTR project: whales would
move quickly and silently through the
area in more cohesive groups. Exposure
to elevated noise levels during transit
past the POA is not expected to have
adverse effects on reproduction or
survival as the whales continue to
access critical foraging grounds north of
the POA. Potential behavioral reactions
that have been observed, including
changes in group distribution and
speed, may help to mitigate the
potential for any contraction of
communication space for a group.
CIBWs are not expected to abandon
entering or exiting Knik Arm as this is
not evident based on monitoring data
from the past two decades of work at
POA (e.g., Funk et al., 2005; PrevelRamos et al., 2006; Markowitz and
McGuire, 2007; Cornick and SaxonKendall, 2008, 2009; ICRC, 2009, 2010,
2011, 2012; Cornick et al., 2010, 2011;
Cornick and Pinney, 2011; Cornick and
Seagars, 2016; POA, 2019; Kendall and
Cornick, 2015; 61N Environmental,
2021, 2022a, 2022b; Easley-Appleyard
and Leonard, 2022). Finally, as
described previously, both telemetry
(tagging) and acoustic data suggest
CIBWs likely stay in upper Knik Arm
(i.e., north of the CTR project site) for
several days or weeks before exiting
Knik Arm. Specifically, a CIBW
instrumented with a satellite link time/
depth recorder entered Knik Arm on
August 18, 1999 and remained in Eagle
Bay until September 12, 1999 (Ferrero et
al., 2000). Further, a recent detailed reanalysis of the satellite telemetry data
confirms how several tagged whales
exhibited this same movement pattern:
whales entered Knik Arm and remained
there for several days before exiting
through lower Knik Arm (Shelden et al.,
2018). This longer-term use of upper
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Knik Arm will avoid repetitive
exposures from pile driving noise.
It is possible that exposure to pile
driving at the POA could result in
CIBWs avoiding Knik Arm and thereby
not accessing the productive foraging
grounds north of POA such as Eagle
River flats thus, impacting essential
feature number five of the designated
Critical Habitat. The data previously
presented demonstrate CIBWs are not
abandoning the area (i.e., continue to
access the waters of northern Knik Arm
during construction activities).
Additionally, results of an expert
elicitation (EE) at a 2016 workshop,
which predicted the impacts of noise on
CIBW survival and reproduction given
lost foraging opportunities, helped to
inform our assessment of impacts on
this stock. The 2016 EE workshop used
conceptual models of an interim
population consequences of disturbance
(PCoD) for marine mammals (NRC,
2005; New et al., 2014; Tollit et al.,
2016) to help in understanding how
noise-related stressors might affect vital
rates (survival, birth rate and growth) for
CIBW (King et al., 2015). NMFS (2016b)
suggests that the main direct effects of
noise on CIBW are likely to be through
masking of vocalizations used for
communication and prey location and
habitat degradation. The 2016 workshop
on CIBWs was specifically designed to
provide regulators with a tool to help
understand whether chronic and acute
anthropogenic noise from various
sources and projects are likely to be
limiting recovery of the CIBW
population. The full report can be found
at https://www.smruconsulting.com/
publications/with a summary of the
expert elicitation portion of the
workshop below.
For each of the noise effect
mechanisms chosen for EE, the experts
provided a set of parameters and values
that determined the forms of a
relationship between the number of
‘‘days of disturbance’’ (defined as any
day on which an animal loses the ability
to forage for at least one tidal cycle (i.e.,
it forgoes 50–100 percent of its energy
intake on that day)) a female CIBW
experiences in a particular period and
the effect of that disturbance on her
energy reserves. Examples included the
number of disturbed days during the
months of April, May, and June that
would be predicted to reduce the energy
reserves of a pregnant CIBW to such a
level that she is certain to terminate the
pregnancy or abandon the calf soon after
birth; the number of disturbed days of
from April to September required to
reduce the energy reserves of a lactating
CIBW to a level where she is certain to
abandon her calf; and the threshold
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disturbed days where a female fails to
gain sufficient energy by the end of
summer to maintain themselves and
their calves during the subsequent
winter.
Overall, median values ranged from
16 to 69 days of disturbance depending
on the question. However, a ‘‘day of
disturbance’’ considered in the context
of the report is notably more severe than
the Level B harassment expected to
result from these activities, which as
described is expected to be comprised
predominantly of temporary
modifications in the behavior of
individual CIBWs (e.g., faster swim
speeds, more cohesive group structure,
decreased sighting durations, cessation
of vocalizations) based on the large body
of observational data available from
previous monitoring efforts at the Port.
Also, NMFS proposes to authorize an
annual maximum of 90 instances of
takes, with the instances representing
disturbance events within a day. This
means that either 90 different individual
CIBWs are disturbed on no more than 1
day each per year or some lesser number
of individuals may be disturbed on
more than 1 day but with the product
of individuals and days not exceeding
90. Given the overall estimated take, it
is unlikely that any one CIBW will be
disturbed on more than a few days.
Further, the mitigation measures NMFS
has proposed for the CTR project are
designed to avoid the potential that any
animal will lose the ability to forage for
one or more tidal cycles should they be
foraging in the proposed action area,
which is not known to be a particularly
important feeding area for CIBWs.
While Level B harassment (behavioral
disturbance) is proposed to be
authorized, the POA’s mitigation
measures will limit the severity of the
effects of that Level B harassment to
behavioral changes such as increased
swim speeds, tighter group formations,
and cessation of vocalizations, not the
loss of foraging capabilities. Regardless,
this elicitation recognized that pregnant
or lactating females and calves are
inherently more at risk than other
animals, such as males. Given that
individuals in potentially vulnerable
life stages, such as pregnancy, cannot be
identified by visual observers, pile
driving would be shut down for all
CIBWs to be protective of potentially
vulnerable individuals, and to avoid
more severe behavioral reactions.
NMFS proposes required mitigation
measures to minimize exposure to
CIBWs, specifically, shutting down pile
driving should a CIBW approach or
enter the Level B harassment zone.
These measures are designed to reduce
the intensity and duration of potential
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harassment CIBWs experience during
the POA’s construction activities.
Additionally, the proposed mitigation
measures would help to ensure CIBWs
will not experience degradation of
acoustic habitat approaching the
threshold set in the Critical Habitat
designation (i.e., in-water noise at levels
resulting in the abandonment of habitat
by CIBWs). The location of the PSOs
would allow for detection of CIBWs and
behavioral observations prior to CIBWs
entering the Level B harassment zone.
Additionally, NMFS proposes to
require use of a bubble curtain for all
permanent piles in waters deeper than
3 m in all months and for all piles
(permanent or temporary) installed or
extracted in waters deeper than 3 m
during the months of August–October
when CIBWs are present in higher
numbers in Knik Arm. This measure is
designed to reduce the amount of noise
exposure at frequencies to which CIBWs
are more sensitive (<100 Hz) during
vibratory pile driving and to reduce
overall sound levels during impact
driving. During impact driving, the POA
must implement soft starts, which
ideally allows animals to leave a
disturbed area before the full-power
driving commences (Tougaard et al.,
2012). Although NMFS does not
anticipate CIBWs will abandon entering
Knik Arm in the presence of pile
driving, PSOs will be integral to
identifying if CIBWs are potentially
altering pathways they would otherwise
take in the absence of pile driving.
Finally, take by mortality, serious
injury, or Level A harassment of CIBWs
is not anticipated or proposed to be
authorized.
In summary, the following factors
primarily support our preliminary
determination that the impacts resulting
from this activity are not expected to
adversely affect the CIBWs through
effects on annual rates of recruitment or
survival:
• No mortality, serious injury, or
Level A harassment is anticipated or
proposed to be authorized;
• Any acoustic impacts to marine
mammal habitat from pile driving are
expected to be temporary and minimal;
• The required mitigation measures
(i.e., soft starts, pre-clearance
monitoring, shutdown zones, bubble
curtains) are expected to be effective in
reducing the effects of the specified
activity by ensuring that no CIBWs are
exposed to noise at injurious levels (i.e.,
Level A harassment);
• The intensity of anticipated takes
by Level B harassment is low, consisting
of, at worst, temporary modifications in
behavior, and would not be of a
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85741
duration or intensity expected to result
in impacts on reproduction or survival.
• The area of exposure would be
limited to habitat primarily used as a
travel corridor. Data demonstrates Level
B harassment of CIBWs typically
manifests as increased swim speeds past
the POA, tighter group formations, and
cessation of vocalizations, rather than
through habitat abandonment;
• No critical foraging grounds (e.g.,
Eagle Bay, Eagle River, Susitna Delta)
would be affected by pile driving; and
• While animals could be harassed
more than once, exposures are not likely
to exceed more than a few per year for
any given individual and are not
expected to occur on sequential days;
thereby decreasing the potential severity
and interaction between harassment
events for affected individuals.
Based on the analysis contained
herein of the likely effects of the
specified activity on marine mammals
and their habitat and taking into
consideration the implementation of the
required monitoring and mitigation
measures, NMFS preliminarily finds
that the proposed marine mammal take
from the specified activity will have a
negligible impact on all affected marine
mammal species or stocks.
Small Numbers
As noted previously, only incidental
take of small numbers of marine
mammals may be authorized under
sections 101(a)(5)(A) and (D) of the
MMPA for specified activities other
than military readiness activities. The
MMPA does not define small numbers
and so, in practice, where estimated
numbers are available, NMFS compares
the maximum estimated number of
individuals annually taken to the most
appropriate estimation of abundance of
the relevant species or stock in our
determination of whether an
authorization is limited to small
numbers of marine mammals. When the
predicted maximum annual number of
individuals to be taken is fewer than
one-third of the species or stock
abundance, the take is considered to be
of small numbers. Additionally, other
qualitative factors may be considered in
the analysis, such as the temporal or
spatial scale of the activities.
For all stocks, except for the MexicoNorth Pacific stock of humpback whales
whose abundance estimate is unknown,
the proposed number of takes is less
than one-third of the best available
population abundance estimate (i.e.,
less than 1 percent for 6 stocks; less
than 2 percent for 1 stock; and less than
27.2 percent for CIBWs; see table 25).
The maximum annual number of
animals proposed for authorization to be
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taken from these stocks would be
considered small relative to the relevant
stock’s abundances even if each
estimated take occurred to a new
individual. The number of takes
authorized likely represents smaller
numbers of individual harbor seals and
Steller sea lions. Harbor seals tend to
concentrate near Ship Creek and have
small home ranges. It is possible that a
single individual harbor seal may linger
near the POA, especially near Ship
Creek and be counted multiple times
each day as it moves around and
resurfaces in different locations.
Previous Steller sea lion sightings
identified that if a Steller sea lion is
within Knik Arm, it is likely lingering
to forage on salmon or eulachon runs
and may be present for several days.
Therefore, the number of takes
authorized likely represents repeat
exposures to the same animals in certain
circumstances. For all species, PSOs
would count individuals as separate
unless they can be individually
identified.
Abundance estimates for the MexicoNorth Pacific stock of humpback whales
are based upon data collected more than
8 years ago, and therefore, current
estimates are considered unknown
(Young et al., 2023). The most recent
minimum population estimates (NMIN)
for this population include an estimate
of 2,241 individuals between 2003 and
2006 (Martinez-Aguilar, 2011) and 766
individuals between 2004 and 2006
(Wade, 2021). NMFS’ Guidelines for
Assessing Marine Mammal Stocks
suggest that the NMIN estimate of the
stock should be adjusted to account for
potential abundance changes that may
have occurred since the last survey and
provide reasonable assurance that the
stock size is at least as large as the
estimate (NMFS, 2023). The abundance
trend for this stock is unclear; therefore,
there is no basis for adjusting these
estimates (Young et al., 2023).
Assuming the population has been
stable, the maximum annual 4 takes of
this stock proposed for authorization
represents small numbers of this stock
(0.18 percent of the stock assuming a
NMIN of 2,241 individuals and 0.52
percent of the stock assuming an NMIN
of 766 individuals).
Based on the analysis contained
herein of the proposed activity
(including the proposed mitigation and
monitoring measures) and the estimated
take of marine mammals, NMFS
preliminarily finds that small numbers
of marine mammals would be taken
relative to the population size of the
affected species or stocks.
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Unmitigable Adverse Impact Analysis
and Determination
In order to promulgate regulations,
NMFS must find that the takings
authorized will not have an
‘‘unmitigable adverse impact’’ on the
subsistence uses of the affected marine
mammal species or stocks by Alaskan
Natives. NMFS has defined
‘‘unmitigable adverse impact’’ in 50 CFR
216.103 as an impact resulting from the
specified activity: (1) That is likely to
reduce the availability of the species to
a level insufficient for a harvest to meet
subsistence needs by: (i) Causing the
marine mammals to abandon or avoid
hunting areas; (ii) Directly displacing
subsistence users; or (iii) Placing
physical barriers between the marine
mammals and the subsistence hunters;
and (2) That cannot be sufficiently
mitigated by other measures to increase
the availability of marine mammals to
allow subsistence needs to be met.
While no significant subsistence
activity currently occurs within or near
the POA, Alaska Natives have
traditionally harvested subsistence
resources, including marine mammals,
in upper Cook Inlet for millennia.
CIBWs are more than a food source; they
are important to the cultural and
spiritual practices of Cook Inlet Native
communities (NMFS, 2008b). Dena’ina
Athabascans, currently living in the
communities of Eklutna, Knik, Tyonek,
and elsewhere, occupied settlements in
Cook Inlet for the last 1,500 years and
have been the primary traditional users
of this area into the present.
NMFS estimated that 65 CIBWs per
year (range 21–123) were killed between
1994 and 1998, including those
successfully harvested and those struck
and lost. NMFS concluded that this
number was high enough to account for
the estimated 14 percent annual decline
in population during this time (Hobbs et
al., 2008); however, given the difficulty
of estimating the number of whales
struck and lost during the hunts, actual
mortality may have been higher. During
this same period, population abundance
surveys indicated a population decline
of 47 percent, although the reason for
this decline should not be associated
solely with subsistence hunting and
likely began well before 1994 (Rugh et
al., 2000).
In 1999, a moratorium was enacted
(Pub. L. 106–31) prohibiting the
subsistence harvest of CIBWs except
through a cooperative agreement
between NMFS and the affected Alaska
Native organizations. NMFS began
working cooperatively with the Cook
Inlet Marine Mammal Council (CIMMC),
a group of tribes that traditionally
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hunted CIBWs, to establish sustainable
harvests. CIMMC voluntarily curtailed
its harvests in 1999. In 2000, NMFS
designated the Cook Inlet stock of
beluga whales as depleted under the
MMPA (65 FR 34590, May 31, 2000).
NMFS and CIMMC signed CoManagement of the Cook Inlet Stock of
Beluga Whales agreements in 2000,
2001, 2002, 2003, 2005, and 2006. CIBW
harvests between 1999 and 2006
resulted in the strike and harvest of five
whales, including one whale each in
2001, 2002, and 2003, and two whales
in 2005 (NMFS, 2008b). No hunt
occurred in 2004 due to higher-thannormal mortality of CIBWs in 2003, and
the Native Village of Tyonek agreed to
not hunt in 2007. Since 2008, NMFS has
examined how many CIBWs could be
harvested during 5-year intervals based
on estimates of population size and
growth rate and determined that no
harvests would occur between 2008 and
2012 and between 2013 and 2017
(NMFS, 2008b). The CIMMC was
disbanded by unanimous vote of the
CIMMC member Tribes’ representatives
in June 2012, and a replacement group
of Tribal members has not been formed
to date. There has been no subsistence
harvest of CIBWs since 2005 (NMFS,
2022d).
Subsistence harvest of other marine
mammals in upper Cook Inlet is limited
to harbor seals. Steller sea lions are rare
in upper Cook Inlet; therefore,
subsistence use of this species is not
common. However, Steller sea lions are
taken for subsistence use in lower Cook
Inlet. Residents of the Native Village of
Tyonek are the primary subsistence
users in the upper Cook Inlet area.
While harbor seals are hunted for
subsistence purposes, harvests of this
species for traditional and subsistence
uses by Native peoples have been low
in upper Cook Inlet (e.g., 33 harbor seals
were harvested in Tyonek between 1983
and 2013; see table 8–1 in the POA’s
application), although these data are not
currently being collected and
summarized. As the POA’s proposed
project activities will take place within
the immediate vicinity of the POA, no
activities will occur in or near Tyonek’s
identified traditional subsistence
hunting areas. As the harvest of marine
mammals in upper Cook Inlet is
historically a small portion of the total
subsistence harvest and the number of
marine mammals using upper Cook
Inlet is proportionately small, the
number of marine mammals harvested
in upper Cook Inlet is expected to
remain low.
The potential impacts from
harassment on stocks that are harvested
in Cook Inlet would be limited to minor
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behavioral changes (e.g., increased swim
speeds, changes in dive time, temporary
avoidance near the POA) within the
vicinity of the POA. Some PTS may
occur; however, the shift is likely to be
slight due to the implementation of
mitigation measures (e.g., shutdown
zones, pre-clearance monitoring, bubble
curtains, soft starts) and the shift would
be limited to lower pile driving
frequencies which are on the lower end
of phocid and otariid hearing ranges. In
summary, any impacts to harbor seals
would be limited to those seals within
Knik Arm (outside of any hunting area)
and the very few takes of Steller sea
lions in Knik Arm would be far removed
in time and space from any hunting in
lower Cook Inlet.
The POA will communicate with
representative Alaska Native
subsistence users and Tribal members to
identify and explain the measures that
have been taken or will be taken to
minimize any adverse effects of CTR on
the availability of marine mammals for
subsistence uses. In addition, the POA
will adhere to the following
communication procedures regarding
marine mammal subsistence use within
the Project area:
(1) Send letters to the Kenaitze,
Tyonek, Knik, Eklutna, Ninilchik,
Salamatof, and Chickaloon Tribes
informing them of the proposed project
(i.e., timing, location, and features).
Include a map of the proposed project
area; identify potential impacts to
marine mammals and mitigation efforts,
if needed, to avoid or minimize impacts;
and inquire about possible marine
mammal subsistence concerns they
have.
(2) Follow up with a phone call to the
environmental departments of the seven
Tribal entities to ensure that they
received the letter, understand the
proposed project, and have a chance to
ask questions. Inquire about any
concerns they might have about
potential impacts to subsistence hunting
of marine mammals.
(3) Document all communication
between the POA and Tribes.
(4) If any Tribes express concerns
regarding proposed project impacts to
subsistence hunting of marine
mammals, propose a Plan of
Cooperation between the POA and the
concerned Tribe(s).
The proposed project features and
activities, in combination with a
number of actions to be taken by the
POA during project implementation,
should avoid or mitigate any potential
adverse effects on the availability of
marine mammals for subsistence uses.
Furthermore, although construction will
occur within the traditional area for
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hunting marine mammals, the proposed
project area is not currently used for
subsistence activities. In-water pile
installation and removal will follow
mitigation procedures to minimize
effects on the behavior of marine
mammals and impacts will be
temporary.
For the NES1 project, the POA
expressed that, if desired, regional
subsistence representatives may support
project marine mammal biologists
during the monitoring program by
assisting with collection of marine
mammal observations and may request
copies of marine mammal monitoring
reports. The POA proposes the same
option for the CTR project.
Based on the description of the
specified activity, the measures
described to minimize adverse effects
on the availability of marine mammals
for subsistence purposes, and the
proposed mitigation and monitoring
measures, NMFS has preliminarily
determined that there will not be an
unmitigable adverse impact on
subsistence uses from the POA’s
proposed activities.
Endangered Species Act
Section 7(a)(2) of the Endangered
Species Act of 1973 (ESA; 16 U.S.C.
1531 et seq.) requires that each Federal
agency insure that any action it
authorizes, funds, or carries out is not
likely to jeopardize the continued
existence of any endangered or
threatened species or result in the
destruction or adverse modification of
designated critical habitat. To ensure
ESA compliance for the promulgation of
regulations, NMFS consults internally
whenever we propose to authorize take
for endangered or threatened species, in
this case with the NMFS Alaska
Regional Office.
NMFS Office of Protected Resources
(OPR) is proposing to authorize take of
Mexico-North Pacific humpback whales
(including individuals from the Mexico
DPS), CIBWs, and western DPS Steller
sea lions, which are listed under the
ESA. NMFS OPR has requested
initiation of section 7 consultation on
the promulgation of regulations and
issuance of a subsequent LOA. NMFS
will conclude the ESA consultation
prior to reaching a determination
regarding the proposed issuance of the
authorization.
Proposed Promulgation
As a result of these preliminary
determinations, NMFS proposes to
promulgate regulations that allow for
the authorization of take, by Level A
harassment and Level B harassment,
incidental to construction activities
PO 00000
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associated with the Cargo Terminals
Replacement Project at the Don Young
Port of Alaska in Anchorage, Alaska for
a 5-year period from March 1, 2026,
through February 28, 2031, provided the
previously mentioned mitigation,
monitoring, and reporting requirements
are incorporated.
Request for Information
NMFS requests interested persons to
submit comments, information, and
suggestions concerning the POA’s
request and the proposed regulations
(see ADDRESSES). All comments will be
reviewed and evaluated as we prepare a
final rule and make final determinations
on whether to issue the requested
authorization. This proposed rule and
referenced documents provide all
environmental information relating to
our proposed action for public review.
Classification
The Office of Management and Budget
has determined that this proposed rule
is not significant for purposes of
Executive Order 12866.
Pursuant to section 605(b) of the
Regulatory Flexibility Act (RFA) (5
U.S.C. 601 et seq.), the Chief Counsel for
Regulation of the Department of
Commerce has certified to the Chief
Counsel for Advocacy of the Small
Business Administration that this
proposed rule, if adopted, would not
have a significant economic impact on
a substantial number of small entities.
The POA is an enterprise activity of the
Municipality of Anchorage, Alaska,
meaning that it is a department of the
Municipality which generates adequate
revenue to support its operational costs
and annual payments to the
Municipality. The POA is the sole entity
that would be subject to the
requirements in these proposed
regulations, and the POA is not a small
governmental jurisdiction, small
organization, or small business, as
defined by the RFA, because it is a
department of the local government.
Because of this certification, a
regulatory flexibility analysis is not
required and none has been prepared.
This proposed rule contains a
collection-of-information requirement
subject to the provisions of the
Paperwork Reduction Act (PRA).
Notwithstanding any other provision of
law, no person is required to respond to
nor shall a person be subject to a
penalty for failure to comply with a
collection of information subject to the
requirements of the PRA unless that
collection of information displays a
currently valid OMB control number.
These requirements have been approved
by OMB under control number 0648–
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Replacement Project under the Port of
Alaska Modernization Program at the
Don Young Port of Alaska in Anchorage,
Alaska.
0151 and include applications for
regulations, subsequent LOAs, and
reports.
List of Subjects in 50 CFR Part 217
§ 217.12
Acoustics, Administrative practice
and procedure, Construction,
Endangered and threatened species,
Marine mammals, Mitigation and
monitoring requirements, Reporting
requirements, Wildlife.
§ 217.13
Dated: October 18, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble,
NMFS proposes to amend 50 CFR part
217 to read as follows:
PART 217—REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
Authority: 16 U.S.C. 1361 et seq.
2. Add subpart B, consisting of
§§ 217.11 through 217.19, to read as
follows:
■
Subpart B—Taking Marine Mammals
Incidental to the Port of Alaska
Modernization Program Phase 2B: Cargo
Terminals Replacement Project in
Anchorage, Alaska
Sec.
217.11 Specified activity and specified
geographical region.
217.12 Effective dates.
217.13 Permissible methods of taking.
217.14 Prohibitions.
217.15 Mitigation requirements.
217.16 Requirements for monitoring and
reporting.
217.17 Letters of Authorization.
217.18 Modifications of Letters of
Authorization.
217.19 [Reserved]
Subpart B—Taking Marine Mammals
Incidental to the Port of Alaska
Modernization Program Phase 2B:
Cargo Terminals Replacement Project
in Anchorage, Alaska
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§ 217.11 Specified activity and specified
geographical region.
(a) The incidental taking of marine
mammals by the Port of Alaska (POA)
may be authorized in a Letter of
Authorization (LOA) only if it occurs at
or around the Port of Alaska, including
waters of Knik Arm and Upper Cook
Inlet near Anchorage, Alaska incidental
to the specified activities outlined in
paragraph (b) of this section.
(b) The specified activities are
construction and demolition activities
associated with the Cargo Terminals
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Permissible methods of taking.
Under a LOA issued pursuant to
§ 216.106 of this chapter and § 217.17,
the POA and those persons it authorizes
or funds to conduct activities on its
behalf may incidentally, but not
intentionally, take marine mammals
within the specified geographical region
by harassment associated with the
specified activities provided they are in
compliance with all terms, conditions,
and requirements of the regulations in
this subpart and the applicable LOA.
§ 217.14
1. The authority citation for part 217
continues to read as follows:
■
VerDate Sep<11>2014
Effective dates.
Regulations in this subpart are
effective from March 1, 2026, until
February 28, 2031.
Prohibitions.
(a) Except for the takings permitted in
§ 217.13 and authorized by a LOA
issued under § 216.106 of this chapter
and § 217.17, it is unlawful for any
person to do any of the following in
connection with the specified activities:
(1) Violate or fail to comply with the
terms, conditions, and requirements of
this subpart or a LOA issued under this
subpart;
(2) Take any marine mammal not
specified in such LOA;
(3) Take any marine mammal
specified in such LOA in any manner
other than specified;
(4) Take a marine mammal specified
in such LOA if NMFS determines such
taking results in more than a negligible
impact on the species or stocks of such
marine mammal; or
(5) Take a marine mammal specified
in such LOA after NMFS determines
such taking results in an unmitigable
adverse impact on the species or stock
of such marine mammal for taking for
subsistence uses.
(b) [Reserved]
§ 217.15
Mitigation requirements.
(a) When conducting the specified
activities identified in § 217.11(b), POA
must implement the mitigation
measures contained in this section and
any LOA issued under §§ 216.106 of this
chapter and 217.17. These mitigation
measures include, but are not limited to:
(1) A copy of any issued LOA must be
in the possession of the POA, its
designees, and work crew personnel
operating under the authority of the
issued LOA.
(2) The POA must ensure that
construction supervisors and crews, the
monitoring team and relevant POA staff
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are trained prior to the start of all pile
driving so that responsibilities,
communication procedures, monitoring
protocols, and operational procedures
are clearly understood. New personnel
joining during the project must be
trained prior to commencing work.
(3) The POA must employ Protected
Species Observers (PSOs) and establish
monitoring locations pursuant to
§ 217.16 and as described in a NMFSapproved Marine Mammal Monitoring
and Mitigation Plan.
(i) For all pile driving activities, landbased PSOs must be stationed at the best
vantage points practicable to monitor for
marine mammals and implement
shutdown/delay procedures. A
minimum of 4 locations must be used to
monitor the designated harassment
zones to the maximum extent possible
based on daily visibility conditions.
Additional PSOs must be added if
warranted by site conditions and/or the
level of marine mammal activity in the
area. PSOs must be able implement
shutdown or delay procedures when
applicable through communication with
the equipment operator.
(ii) If during pile driving activities,
PSOs can no longer effectively monitor
the entirety of the Cook Inlet beluga
whale (CIBW) shutdown zone due to
environmental conditions (e.g., fog, rain,
wind), pile driving may continue only
until the current segment of the pile is
driven; no additional sections of pile or
additional piles may be driven until
conditions improve such that the
shutdown zone can be effectively
monitored. If the shutdown zone cannot
be monitored for more than 15 minutes,
the entire zone must be cleared again for
30 minutes prior to reinitiating pile
driving.
(4) Pre-start Clearance Monitoring
must take place from 30 minutes prior
to initiation of pile driving activity (i.e.,
pre-start clearance monitoring) through
30 minutes post-completion of pile
driving activity.
(i) Pre-start clearance monitoring must
be conducted during periods of
visibility sufficient for the Lead PSO to
determine that the shutdown zones are
clear of marine mammals.
(ii) Pile driving may commence if,
following 30 minutes of observation, it
is determined by the Lead PSO that the
shutdown zones are clear of marine
mammals and for CIBW, any observed
whale(s) is at least 100 meters past the
shutdown zone and on a path away
from the zone or the whale has not been
re-sighted for 30 minutes.
(5) For all pile driving activity, the
POA must implement shutdown zones
with radial distances as identified in a
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LOA issued under § 216.106 of this
chapter and § 217.17.
(i) If a marine mammal is observed
entering or within the shutdown zone,
all pile driving activities, including soft
starts, at that location must be halted. If
pile driving is halted or delayed due to
the presence of a marine mammal, the
activity may not commence or resume
until either the animal has voluntarily
left and is been visually confirmed
beyond the shutdown zone or 15
minutes (non-CIBWs) or 30 minutes
(CIBWs) have passed without redetection of the animal. Specific to
CIBW, if a CIBW(s) is observed within
or on a path towards the shutdown
zone, pile driving activities, including
soft starts, must shut down and not recommence until the whale has traveled
at least 100 m beyond the shutdown
zone and is on a path away from such
zone or until no CIBW has been
observed in the shutdown zone for 30
minutes.
(ii) In the event of a delay or
shutdown of activity resulting from
marine mammals in the shutdown zone,
animal behavior must be monitored and
documented.
(iii) If work ceases for more than 30
minutes, the shutdown zones must be
cleared again for 30 minutes prior to
reinitiating pile driving. A
determination that the shutdown zone is
clear must be made during a period of
good visibility.
(iv) If a shutdown procedure should
be initiated but human safety is at risk,
as determined by the best professional
judgment of the vessel operator or
project engineer, the in-water activity,
including pile driving, is allowed to
continue until the risk to human safety
has dissipated. In this scenario, pile
driving may continue only until the
current segment of the pile is driven; no
additional sections of pile or additional
piles may be driven until the Lead PSO
has determined that the shutdown zones
are clear of marine mammals and for
Cook Inlet beluga whales (CIBW), any
observed whale(s) is at least 100 meters
past the shutdown zone and on a path
away from the zone.
(v) For in-water construction activities
other than pile driving (e.g., barge
positioning; use of barge-mounted
excavators; dredging), if a marine
mammal comes within 10 m, POA must
cease operations and reduce vessel
speed to the minimum level required to
maintain steerage and safe working
conditions. If human safety is at risk, as
determined by the best professional
judgment of the vessel operator or
project engineer, the in-water activity is
allowed to continue until the risk to
human safety has dissipated.
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(6) The POA must use soft start
techniques when impact pile driving.
Soft start requires contractors to conduct
three sets of strikes (three strikes per set)
at reduced hammer energy with a 30second waiting period between each set.
A soft start must be implemented at the
start of each day’s impact pile driving
and at any time following cessation of
impact pile driving for a period of 30
minutes or longer.
(7) The POA must use bubble curtains
for all temporary (36- or 24-in diameter)
piles during both vibratory and impact
pile driving in water depths greater than
3 meters (9.8 ft) between August 1 and
October 31. Bubble curtains must be
used for all permanent piles (72-in
diameter) during both vibratory and
impact pile driving in waters deeper
than 3 meters (9.8 feet). The bubble
curtain must be operated to achieve
optimal performance. At a minimum,
the bubble curtain must:
(i) The bubble curtain must distribute
air bubbles around 100 percent of the
piling perimeter for the full depth of the
water column.
(ii) The lowest bubble ring must be in
contact with the mudline and/or rock
bottom for the full circumference of the
ring, and the weights attached to the
bottom ring shall ensure 100 percent
mudline and/or rock bottom contact. No
parts of the ring or other objects shall
prevent full mudline and/or rock bottom
contact.
(iii) Air flow to the bubblers must be
balanced around the circumference of
the pile.
(8) Pile driving activity must be halted
upon observation of a species entering
or within the harassment zone for either
a species for which incidental take is
not authorized or a species for which
incidental take has been authorized but
the authorized number of takes has been
met.
(b) [Reserved]
§ 217.16 Requirements for monitoring and
reporting.
(a) The POA must submit a Marine
Mammal Monitoring and Mitigation
Plan to NMFS for approval at least 90
days before the start of construction and
abide by the Plan, if approved.
(b) Monitoring must be conducted by
qualified, NMFS-approved PSOs, in
accordance with the following
conditions:
(1) PSOs must be independent of the
activity contractor (e.g., employed by a
subcontractor) and have no other
assigned tasks during monitoring duties.
(2) PSOs must be approved by NMFS
prior to beginning work on the specified
activities.
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85745
(3) PSOs must be trained in marine
mammal identification and behavior.
(i) A designated Project Lead PSO
must always be on site. The Project Lead
PSO must have prior experience
performing the duties of a PSO during
in-water construction activities
pursuant to a NMFS-issued ITA or
Letter of Concurrence.
(ii) Each PSO station must also have
a designated Station Lead PSO specific
to that station and shift. These Station
Lead PSOs must have prior experience
working as a PSO during in-water
construction activities;
(iii) Other PSOs may substitute other
relevant experience (including relevant
Alaska Native traditional knowledge),
education (degree in biological science
or related field), or training for prior
experience performing the duties of a
PSO during construction activity
pursuant to a NMFS-issued incidental
take authorization.
(4) PSO stations must be elevated
platforms constructed on top of
shipping containers or a similar base
that is at least 8′6″ high (i.e., the
standard height of a shipping container)
that can support at least three PSOs and
their equipment. The platforms must be
stable enough to support use of a
theodolite and must be located to
optimize the PSO’s ability to observe
marine mammals and the shutdown
zones. Each PSO station must have at
least two PSOs on watch at any given
time, including the Station Lead PSO.
(5) If the POA is conducting in-water
work for other projects that includes
PSOs, the PSOs for the Cargo Terminals
Replacement Project must be in realtime contact with those PSOs, and both
sets of PSOs must share all information
regarding marine mammal sightings
with each other.
(c) The POA must submit weekly
monitoring reports within 14 days after
the conclusion of each calendar week
during each Cargo Terminals
Replacement Project construction
season. These reports must include a
summary of marine mammal species
and behavioral observations,
construction shutdowns or delays, and
construction work completed during the
reporting period. The weekly reports
also must include an assessment of the
amount of construction remaining to be
completed (i.e., the number of estimated
hours of work remaining), in addition to
the number of beluga whales observed
within estimated harassment zones to
date.
(d) The POA must submit a draft
annual summary monitoring report on
all monitoring conducted during each
construction season which includes
final electronic data sheets within 90
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calendar days after the completion of
each construction season or 60 days
prior to a requested date of issuance of
any future incidental take authorization
for projects at the same location,
whichever comes first. A draft
comprehensive 5-year summary report
must also be submitted to NMFS within
90 days of the end of year 5 of the
project. The reports must detail the
monitoring protocol and summarize the
data recorded during monitoring. If no
comments are received from NMFS
within 30 days of receipt of the draft
report, the report may be considered
final. If comments are received, a final
report addressing NMFS comments
must be submitted within 30 days after
receipt of comments. At a minimum, the
reports must contain:
(1) Dates and times (begin and end) of
all marine mammal monitoring;
(2) Construction activities occurring
during each daily observation period,
including how many and what type of
piles were driven or removed, by what
method (i.e., impact or vibratory), the
total duration of driving time for each
pile (vibratory driving), and number of
strikes for each pile (impact driving);
(3) Environmental conditions during
monitoring periods (at beginning and
end of PSO shift and whenever
conditions change significantly),
Beaufort sea state, and any other
relevant weather conditions including
cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated
observable distance (if less than the
harassment zone distance);
(4) Upon observation of a marine
mammal, the following information
should be collected:
(i) Name of the PSO who sighted the
animal, observer location, and activity
at time of sighting:
(ii) Time of sighting;
(iii) Identification of the animal (e.g.,
genus/species, lowest possible
taxonomic level, or unidentified), PSO
confidence in identification, and the
composition of the group if there is a
mix of species;
(iv) Distances and bearings of each
marine mammal observed in relation to
the pile being driven for each sighting
(if pile driving was occurring at time of
sighting);
(v) Estimated number of animals
(min/max/best);
(vi) Estimated number of animals by
cohort (adults, juveniles, neonates,
group composition, etc.);
(vii) Animal’s closest point of
approach and estimated time spent
within the harassment zone;
(viii) Description of any marine
mammal behavioral observations (e.g.,
observed behaviors such as feeding or
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19:55 Oct 25, 2024
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traveling), including an assessment of
behavioral responses to the activity (e.g.,
no response or changes in behavioral
state such as ceasing feeding, changing
direction, flushing, or breaching);
(ix) Detailed information about any
implementation of any mitigation (e.g.,
shutdowns and delays), a description of
specific actions that ensued, and
resulting changes in the behavior of the
animal, if any; and
(x) All PSO datasheets and raw
sightings data in electronic spreadsheet
format.
(e) In the event that personnel
involved in the construction activities
discover an injured or dead marine
mammal, the POA must report the
incident to NMFS Office of Protected
Resources (OPR) and to the Alaska
Regional Stranding Coordinator no later
than 24 hours after the initial
observation. If the death or injury was
caused by the specified activity, the
POA must immediately cease the
specified activities until NMFS OPR is
able to review the circumstances of the
incident. The POA must not resume
their activities until notified by NMFS.
The report must include the following
information:
(1) Time, date, and location (latitude/
longitude) of the first discovery (and
updated location information if known
and applicable);
(2) Species identification (if known)
or description of the animal(s) involved;
(3) Condition of the animal(s)
(including carcass condition if the
animal is dead);
(4) Observed behaviors of the
animal(s), if alive;
(5) If available, photographs or video
footage of the animal(s); and
(6) General circumstances under
which the animal was discovered.
§ 217.17
Letters of Authorization.
(a) To incidentally take marine
mammals pursuant to these regulations,
the POA must apply for and obtain an
LOA.
(b) An LOA, unless suspended or
revoked, may be effective for a period of
time not to exceed the effective dates of
this subpart.
(c) If an LOA expires prior to the end
of the effective dates of this subpart, the
POA may apply for and obtain a
renewal of the LOA.
(d) In the event of projected changes
to the activity or to mitigation and
monitoring measures required by an
LOA, the POA must apply for and
obtain a modification of the LOA as
described in § 217.18.
(e) The LOA must set forth the
following information:
(1) Permissible methods of incidental
taking;
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(2) Means of effecting the least
practicable adverse impact (i.e.,
mitigation) on the species, its habitat,
and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and
reporting.
(f) Issuance of the LOA must be based
on a determination that the level of
taking will be consistent with the
findings made for the total taking
allowable under this subpart.
(g) Notice of issuance or denial of an
LOA must be published in the Federal
Register within 30 days of a
determination.
§ 217.18 Modifications of Letters of
Authorization.
(a) A LOA issued under §§ 216.106 of
this chapter and 217.17 for the specified
activities may be modified upon request
by the POA, provided that:
(1) The specified activity and
mitigation, monitoring, and reporting
measures, as well as the anticipated
impacts, are the same as those described
and analyzed for this subpart; and
(2) NMFS determines that the
mitigation, monitoring, and reporting
measures required by the previous LOA
were implemented.
(b) For LOA modification by the POA
that includes changes to the specified
activity or the mitigation, monitoring, or
reporting measures that do not change
the findings made for the regulations in
this subpart or result in no more than a
minor change in the total estimated
number of takes (or distribution by
species or years), NMFS may publish a
notice of proposed LOA in the Federal
Register, including the associated
analysis of the change and solicit public
comment before issuing the LOA.
(c) A LOA issued under § 216.106 of
this chapter and § 217.17 for the
specified activity may be modified by
NMFS under the following
circumstances:
(1) NMFS may modify the existing
mitigation, monitoring, or reporting
measures, after consulting with the POA
regarding the practicability of the
modifications, if doing so creates a
reasonable likelihood of more
effectively accomplishing the goals of
the mitigation and monitoring measures;
(i) Possible sources of data that could
contribute to the decision to modify the
mitigation, monitoring, or reporting
measures in an LOA include, but are not
limited to:
(A) Results from the POA’s
monitoring;
(B) Results from other marine
mammal and/or sound research or
studies; and
(C) Any information that reveals
marine mammals may have been taken
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in a manner, extent or number not
authorized by this subpart or
subsequent LOAs; and
(ii) If, through adaptive management,
the modifications to the mitigation,
monitoring, or reporting measures are
substantial, NMFS shall publish a notice
of proposed LOA in the Federal
Register and solicit public comment;
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(2) If NMFS determines that an
emergency exists that poses a significant
risk to the well-being of the species or
stocks of marine mammals specified in
a LOA issued pursuant to § 216.106 of
this chapter and § 217.17, a LOA may be
modified without prior notice or
opportunity for public comment.
Notification will be published in the
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Federal Register within 30 days of the
action.
§ 217.19
[Reserved]
[FR Doc. 2024–24580 Filed 10–25–24; 8:45 am]
BILLING CODE 3510–22–P
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FEDERAL REGISTER
Vol. 89
Monday,
No. 208
October 28, 2024
Part IV
Department of the Treasury
Internal Revenue Service
26 CFR Part 54
Department of Labor
Employee Benefits Security Administration
29 CFR Part 2590
Department of Health and Human Services
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45 CFR Part 147
Enhancing Coverage of Preventive Services Under the Affordable Care
Act; Proposed Rule
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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 54
[REG–110878–24]
RIN 1545–BR35
DEPARTMENT OF LABOR
Employee Benefits Security
Administration
29 CFR Part 2590
RIN 1210–AC25
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
45 CFR Part 147
[CMS 9887–P]
RIN 0938–AV57
Enhancing Coverage of Preventive
Services Under the Affordable Care
Act
Internal Revenue Service,
Department of the Treasury; Employee
Benefits Security Administration,
Department of Labor; Centers for
Medicare & Medicaid Services,
Department of Health and Human
Services.
ACTION: Proposed rule.
AGENCY:
This document sets forth
proposed rules that would amend the
regulations regarding coverage of certain
preventive services under the Public
Health Service Act. Specifically, this
document proposes rules that would
provide that medical management
techniques used by non-grandfathered
group health plans and health insurance
issuers offering non-grandfathered
group or individual health insurance
coverage with respect to such
preventive services would not be
considered reasonable unless the plan
or issuer provides an easily accessible,
transparent, and sufficiently expedient
exceptions process that would allow an
individual to receive coverage without
cost sharing for the preventive service
that is medically necessary with respect
to the individual, as determined by the
individual’s attending provider, even if
such service is not generally covered
under the plan or coverage. These
proposed rules also contain separate
requirements that would apply to
coverage of contraceptive items that are
preventive services under the Public
Health Service Act. Specifically, these
proposed rules would require plans and
issuers to cover certain recommended
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over-the-counter contraceptive items
without requiring a prescription and
without imposing cost-sharing
requirements. In addition, the proposed
rules would require plans and issuers to
cover certain recommended
contraceptive items that are drugs and
drug-led combination products without
imposing cost-sharing requirements,
unless a therapeutic equivalent of the
drug or drug-led combination product is
covered without cost sharing. Finally,
this document proposes to require a
disclosure pertaining to coverage and
cost-sharing requirements for over-thecounter contraceptive items in plans’
and issuers’ Transparency in Coverage
internet-based self-service tools or, if
requested by the individual, on paper.
These proposed rules would not modify
Federal conscience protections related
to contraceptive coverage for employers,
plans and issuers.
DATES: To be assured consideration,
comments must be received at one of
the addresses provided below by
December 27, 2024.
ADDRESSES: Written comments may be
submitted to the address specified
below. Any comment that is submitted
will be shared with the Department of
the Treasury, Internal Revenue Service,
and the Department of Health and
Human Services (HHS). Commenters
should not submit duplicates.
Comments will be made available to
the public. Warning: Do not include any
personally identifiable information
(such as name, address, or other contact
information) or confidential business
information that you do not want
publicly disclosed. All comments are
posted on the internet exactly as
received and can be retrieved by most
internet search engines. No deletions,
modifications, or redactions will be
made to the comments received, as they
are public records. Comments may be
submitted anonymously.
In commenting, please refer to file
code 1210–AC25.
Comments must be submitted in one
of the following two ways (please
choose only one of the ways listed):
1. Electronically. You may submit
electronic comments on this regulation
to https://www.regulations.gov. Follow
the ‘‘Submit a comment’’ instructions.
2. By mail. You may mail written
comments to the following address
ONLY: Office of Health Plan Standards
and Compliance Assistance, Employee
Benefits Security Administration, Room
N–5653, U.S. Department of Labor,
Washington, DC 20210, Attention:
1210–AC25.
Always allow sufficient time for
mailed comments to be received before
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the close of the comment period.
Because of staff and resource
limitations, the Departments cannot
accept comments by facsimile (FAX)
transmission.
Inspection of Public Comments: All
comments received before the close of
the comment period are available for
viewing by the public, including any
personally identifiable or confidential
business information that is included in
a comment. The comments are posted
on the following website as soon as
possible after they have been received:
https://www.regulations.gov. Follow the
search instructions on that website to
view public comments.
Plain Language Summary: In
accordance with 5 U.S.C. 553(b)(4), a
summary of these proposed rules of not
more than 100 words in length, in plain
language, may be found at https://
www.regulations.gov/.
FOR FURTHER INFORMATION CONTACT:
Regan Rusher, Internal Revenue Service,
Department of the Treasury, at (202)
317–5500. Matthew Meidell, Employee
Benefits Security Administration,
Department of Labor, at (202) 693–8335.
Rebecca Miller, Employee Benefits
Security Administration, Department of
Labor, at (202) 693–8335. Geraldine
Doetzer, Centers for Medicare &
Medicaid Services, Department of
Health and Human Services at (667)
290–8855. Kendra May, Centers for
Medicare & Medicaid Services,
Department of Health and Human
Services at (301) 448–3996.
Customer Service Information:
Individuals interested in obtaining
information from the Department of
Labor (DOL) concerning employmentbased health coverage laws may call the
Employee Benefits Security
Administration (EBSA) Toll-Free
Hotline at 1–866–444–EBSA (3272) or
visit the DOL’s website (www.dol.gov/
ebsa). In addition, information from
HHS on private health insurance
coverage and on non-Federal
governmental plans can be found on the
Centers for Medicare & Medicaid
Services (CMS) website (www.cms.gov/
cciio), and information on health care
reform can be found at
www.HealthCare.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. Coverage of Preventive Services
Under the Affordable Care Act and
Implementing Regulations
The Patient Protection and Affordable
Care Act (Pub. L. 111–148) was enacted
on March 23, 2010. The Health Care and
Education Reconciliation Act of 2010
(Pub. L. 111–152) was enacted on March
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30, 2010. These statutes are collectively
known as the Affordable Care Act
(ACA). The ACA reorganized, amended,
and added to the provisions of part A of
title XXVII of the Public Health Service
Act (PHS Act) relating to group health
plans and health insurance issuers in
the group and individual markets. The
ACA added section 715(a)(1) to the
Employee Retirement Income Security
Act of 1974 (ERISA) 1 and section
9815(a)(1) to the Internal Revenue Code
(Code) 2 to incorporate the provisions of
part A of title XXVII of the PHS Act into
ERISA and the Code, and to make them
applicable to group health plans and
health insurance issuers providing
health insurance coverage in connection
with group health plans.
Section 2713 of the PHS Act,3 as
added by section 1001 of the ACA and
incorporated into ERISA and the Code,
and its implementing regulations
require that non-grandfathered group
health plans and health insurance
issuers offering non-grandfathered
group or individual health insurance
coverage (plans and issuers) provide
coverage without imposing any costsharing requirements for the following
items and services: 4
• Evidence-based items or services
that have in effect a rating of ‘‘A’’ or ‘‘B’’
in the current recommendations of the
United States Preventive Services Task
Force (USPSTF) with respect to the
individual involved, except for the
recommendations of the USPSTF
regarding breast cancer screening,
mammography, and prevention issued
in or around November 2009; 5 6
• Immunizations for routine use in
children, adolescents, and adults that
have in effect a recommendation from
the Advisory Committee on
1 29
U.S.C. 1185d.
U.S.C. 9815.
3 42 U.S.C. 300gg–13.
4 The items and services described in these
recommendations and guidelines are referred to in
this preamble as ‘‘recommended preventive
services.’’
5 The USPSTF published updated breast cancer
screening recommendations in April 2024.
However, section 223 of title II of Division D of the
Further Consolidated Appropriations Act, 2024
(Pub. L. 118–47) requires that for purposes of PHS
Act section 2713, USPSTF recommendations
relating to breast cancer screening, mammography,
and prevention issued before 2009 remain in effect
until January 1, 2026.
6 On September 19, 2024, the Departments filed
a petition for a writ of certiorari requesting U.S.
Supreme Court review of the decision of the U.S.
Court of Appeals for the Fifth Circuit in Braidwood
Management v. Becerra, which found in part that
the actions taken by the Departments under section
2713(a) of the PHS Act to require coverage of
certain preventive services recommended by the
USPSTF are unconstitutional and unenforceable by
the Departments as to the named plaintiffs. See 104
F.4th 930 (5th Cir. 2024), petition for cert. filed
(U.S. Sept. 19, 2024) (No. 24–316).
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Immunization Practices (ACIP) of the
Centers for Disease Control and
Prevention (CDC) with respect to the
individual involved; 7
• With respect to infants, children,
and adolescents, evidence-informed
preventive care and screenings provided
for in comprehensive guidelines
supported by the Health Resources and
Services Administration (HRSA); and
• With respect to women,8 such
additional preventive care and
screenings not described in the USPSTF
recommendations in PHS Act section
2713(a)(1), as provided for in
comprehensive guidelines supported by
HRSA.9
On August 1, 2011, HRSA established
the HRSA-supported Women’s
Preventive Services Guidelines (HRSAsupported Guidelines) based on
recommendations from a Department of
Health and Human Services’ (HHS)
commissioned study by the Institute of
Medicine.10 Among other recommended
7 In addition, under section 3203 of the
Coronavirus Aid, Relief, and Economic Security Act
(CARES Act), enacted on March 27, 2020 (Pub. L.
116–136), plans and issuers must cover, without
cost-sharing requirements, any qualifying
coronavirus preventive service pursuant to section
2713(a) of the PHS Act and its implementing
regulations (or any successor regulations). The term
‘‘qualifying coronavirus preventive service’’ means
an item, service, or immunization that is intended
to prevent or mitigate coronavirus disease 2019
(COVID–19) and that is (1) an evidence-based item
or service that has in effect a rating of ‘‘A’’ or ‘‘B’’
in the current USPSTF recommendations; or (2) an
immunization that has in effect a recommendation
from ACIP with respect to the individual involved.
See FAQs about Families First Coronavirus
Response Act, Coronavirus Aid, Relief, and
Economic Security Act, and Health Insurance
Portability and Accountability Act Implementation
Part 58, Q4 (Mar. 29, 2023), available at https://
www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/
our-activities/resource-center/faqs/aca-part-58.pdf
and https://www.cms.gov/cciio/resources/factsheets-and-faqs/downloads/faqs-part-58.pdf.
8 Consistent with the terminology in the statute,
for purposes of coverage of contraceptive items,
these proposed rules use the term ‘‘women’’ to refer
to all individuals potentially capable of becoming
pregnant. Plans and issuers are required to cover
contraceptive services for all such individuals
consistent with the requirements in 26 CFR
54.9815–2713, 29 CFR 2590.715–2713, and 45 CFR
147.130. See FAQs about Affordable Care Act
Implementation Part XXVI, Q5 (May 11, 2015),
available at https://www.dol.gov/sites/dolgov/files/
ebsa/about-ebsa/our-activities/resource-center/faqs/
aca-part-xxvi.pdf and https://www.cms.gov/CCIIO/
Resources/Fact-Sheets-and-FAQs/Downloads/aca_
implementation_faqs26.pdf.
9 For accommodations and exemptions with
respect to coverage of recommended contraceptive
services, see 26 CFR 54.9815–2713A, 29 CFR
2590.715–2713A, and 45 CFR 147.131 through
147.133.
10 See HRSA (2011), ‘‘Women’s Preventive
Services: Required Health Plan Coverage,’’ available
at: https://web.archive.org/web/20130526033922/
https:/www.hrsa.gov/womensguidelines/index.html;
see also Institute of Medicine, ‘‘Clinical Preventive
Services for Women: Closing the Gaps’’ (2011),
available at https://nap.nationalacademies.org/
read/13181/chapter/7.
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items and services, the 2011 HRSAsupported Guidelines addressed
contraceptive methods and counseling
as a type of preventive service and
included all Food and Drug
Administration (FDA)-approved
‘‘contraceptive methods, sterilization
procedures, and patient education and
counseling for all women with
reproductive capacity.’’ 11 The HRSAsupported Guidelines’ recommendation
on contraception has been updated
several times, including in 2016,12 and
most recently in 2021.13 The 2011
HRSA-supported Guidelines included
for each type of preventive service a
column labeled ‘‘Frequency,’’ which for
contraceptive methods and counseling,
stated, ‘‘as prescribed.’’ The
‘‘Frequency’’ column does not appear in
the 2016, 2019, or 2021 updated HRSAsupported Guidelines for any preventive
service, and the updated HRSAsupported Guidelines do not contain
language that specifies frequency in
accordance with a prescription for
contraceptive methods (or
contraceptives) by a health care
provider Plans and issuers are required
to provide coverage of women’s
preventive services, including
contraceptive items and services,
without cost sharing, consistent with
the 2021 HRSA-supported Guidelines,
for plan years and policy years
beginning on or after December 30,
2022.14 The 2021 HRSA-supported
Guidelines refer, under the header
11 The references in this preamble to
‘‘contraception,’’ ‘‘contraceptive,’’ ‘‘contraceptive
coverage,’’ ‘‘contraceptive services,’’ ‘‘contraceptive
product,’’ or ‘‘contraceptive item’’ generally include
all contraceptives, sterilization, and related patient
education and counseling recommended by the
currently applicable HRSA-supported Guidelines,
unless otherwise indicated.
12 The HRSA-supported Guidelines, as amended
in December 2016, refer, under the header
‘‘Contraception,’’ to: ‘‘the full range of femalecontrolled U.S. Food and Drug Administrationapproved contraceptive methods, effective family
planning practices, and sterilization procedures,’’
‘‘contraceptive counseling, initiation of
contraceptive use, and follow-up care (e.g.,
management, and evaluation as well as changes to
and removal or discontinuation of the contraceptive
method),’’ and ‘‘instruction in fertility awarenessbased methods, including the lactation amenorrhea
method.’’ See https://www.hrsa.gov/womensguidelines-2016/index.html.
13 See HRSA, ‘‘Women’s Preventive Services
Guidelines: Current Guidelines,’’ available at
https://www.hrsa.gov/womens-guidelines.
14 The Departments’ regulations under section
2713 of the PHS Act at 26 CFR 54.9815–2713T, 29
CFR 2590.715–2713, and 45 CFR 147.130 require
that plans and issuers provide coverage of
recommended preventive services generally for
plan years (in the individual market, policy years)
that begin on or after September 23, 2010, or, if
later, for plan years (in the individual market,
policy years) that begin on or after the date that is
one year after the date the recommendation or
guideline is issued.
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‘‘Contraception,’’ to ‘‘the full range of
contraceptives and contraceptive care to
prevent unintended pregnancies and
improve birth outcomes.’’ The term
‘‘contraceptive methods’’ was replaced
in 2021 by ‘‘contraceptives.’’ 15 With the
removal of the phrase ‘‘femalecontrolled,’’ as HRSA explained,16 male
condoms are included in the 2021
HRSA-supported Guidelines, which also
include ‘‘screening, education,
counseling, and provision of
contraceptives (including in the
immediate postpartum period)’’
including ‘‘follow-up care (e.g.,
management, evaluation and changes,
including the removal, continuation,
and discontinuation of
contraceptives).’’ 17 The 2021 HRSAsupported Guidelines recommend ‘‘the
full range of U.S. Food and Drug
Administration (FDA)-approved,
-granted, or -cleared contraceptives,
effective family planning practices, and
sterilization procedures be available as
part of contraceptive care.’’ 18
The Departments of the Treasury,
Labor, and HHS (the Departments)
previously issued rulemaking to
implement the preventive services
requirements of section 2713 of the PHS
Act, using their authority under section
9833 of the Code, section 734 of ERISA,
and section 2792 of the PHS Act.19 On
July 19, 2010, the Departments issued
interim final rules (July 2010 interim
final rules) at 26 CFR 54.9815–2713T,
29 CFR 2590.715–2713, and 45 CFR
147.130, which require that plans and
issuers provide coverage of
recommended preventive services
generally for plan years or policy years
that begin on or after September 23,
2010; or, if later, for plan years or policy
years that begin on or after the date that
is one year after the recommendation or
guideline is issued.20 Among other
provisions, the July 2010 interim final
rules allow plans and issuers to rely on
the relevant clinical evidence base to
impose reasonable medical management
techniques to determine the frequency,
method, treatment, or setting for
coverage of a recommended preventive
health item or service, to the extent not
specified in the applicable
15 See
86 FR 59741, 59742 (Oct. 28, 2021).
stated that this change was made to
allow women to purchase male condoms for
pregnancy prevention. See id.
17 See HRSA, Women’s Preventive Services
Guidelines, available at https://www.hrsa.gov/
womens-guidelines/index.html (version last
reviewed March 2024, accessed September 25,
2024).
18 Id.
19 26 U.S.C. 9833, 29 U.S.C. 1191c, and 42 U.S.C.
300gg–92.
20 75 FR 41726 (July 19, 2010).
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recommendation or guideline.21
Additionally, if a plan or issuer has a
provider in its network that can provide
a recommended preventive service, the
July 2010 interim final rules specify that
the plan or issuer is not required to
provide coverage or waive cost sharing
for the item or service when delivered
by an out-of-network provider.22
However, if a plan or issuer does not
have in its network a provider who can
provide a recommended preventive
service (or the plan or coverage does not
have a network), the plan or issuer must
cover the item or service when
performed by an out-of-network
provider, and may not impose any costsharing requirements with respect to the
item or service. The Departments
finalized these rules on July 14, 2015.23
The Departments have also previously
issued rules that provide exemptions
from the contraceptive coverage
requirement for entities and individuals
with moral or religious objections to
contraceptive coverage, and
accommodations through which
objecting entities are not required to
contract, arrange, pay, or provide a
referral for contraceptive coverage,
while at the same time ensuring that
participants, beneficiaries, and enrollees
enrolled in coverage sponsored or
arranged by an objecting entity could
separately obtain contraceptive services
at no additional cost.24 Most recently,
on February 2, 2023, the Departments
issued proposed rules (2023 proposed
rules) to rescind the moral exemption to
the contraceptive coverage requirement
and to establish a new ‘‘individual
contraceptive arrangement,’’ an
independent pathway that individuals
enrolled in plans or coverage sponsored,
arranged, or provided by objecting
21 26 CFR 54.9815–2713T(a)(4); 29 CFR 2590.715–
2713(a)(4); and 45 CFR 147.130(a)(4).
22 26 CFR 54.9815–2713T(a)(3); 29 CFR 2590.715–
2713(a)(3); and 45 CFR 147.130(a)(3).
23 80 FR 41318 (July 14, 2015).
24 These proposed rules would not modify
Federal conscience protections related to
contraceptive coverage for employers, plans and
issuers. The rules related to optional
accommodations for certain eligible entities (26
CFR 54.9815–2713A, 29 CFR 2510.3–16 and
2590.715–2713A, and 45 CFR 147.131) and
religious (45 CFR 147.132) and moral (45 CFR
147.133) exemptions in connection with the
coverage of certain recommended preventive
services—as well as the conscience protections that
apply to certain health care providers, patients, and
other participants (45 CFR part 88)—are outside the
scope of these proposed rules. For a detailed
overview of the regulatory and judicial history of
Departmental rules specifically related to optional
accommodations and religious and moral
exemptions from the contraceptive coverage
requirement, see 88 FR 7236, 7237–40 (Feb. 2,
2023). For additional information on the
Department of Health and Human Services’ final
rule on enforcement of religious freedom and
conscience laws, see 89 FR 2078 (Jan. 11, 2024).
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entities could use to obtain
contraceptive services at no cost directly
from a provider or facility that furnishes
contraceptive services.25
B. Guidance Related to the Coverage of
Recommended Preventive Services
Since publishing the July 2010
interim final rules, the Departments
have issued extensive guidance related
to the requirement to cover
recommended preventive services,
including contraceptive services,
without cost sharing under section 2713
of the PHS Act and its implementing
regulations. These guidance documents
respond to questions from interested
parties regarding the requirement to
provide coverage for recommended
preventive services without cost
sharing.26 Cumulatively, this body of
guidance interprets key elements of the
preventive health services
recommendations and guidelines and
coverage requirements, including with
respect to the allowed use of reasonable
medical management techniques.27
These guidance documents include:
25 88
FR 7236.
FAQs about Affordable Care Act
Implementation Part XII (Feb. 20, 2013), available
at https://www.dol.gov/sites/dolgov/files/EBSA/
about-ebsa/our-activities/resource-center/faqs/acapart-xii.pdf and www.cms.gov/CCIIO/Resources/
Fact-Sheets-and-FAQs/aca_implementation_
faqs12.html; FAQs about Affordable Care Act
Implementation Part XXVI (May 11, 2015),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-xxvi.pdf and https://www.cms.gov/
CCIIO/Resources/Fact-Sheets-and-FAQs/
Downloads/aca_implementation_faqs26.pdf; FAQs
about Affordable Care Act Implementation Part 31,
Mental Health Parity Implementation, and Women’s
Health and Cancer Rights Act Implementation
(April 20, 2016), available at https://www.dol.gov/
sites/dolgov/files/EBSA/about-ebsa/our-activities/
resource-center/faqs/aca-part-31.pdf and https://
www.cms.gov/cciio/resources/fact-sheets-and-faqs/
downloads/faqs-31_final-4-20-16.pdf; FAQs about
Affordable Care Act Implementation Part 51,
Families First Coronavirus Response Act, and
Coronavirus Aid, Relief, and Economic Security Act
Implementation (Jan. 10, 2022), available at https://
www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/
our-activities/resource-center/faqs/aca-part-51.pdf
and https://www.hhs.gov/guidance/sites/default/
files/hhs-guidance-documents/FAQs-Part-51.pdf;
FAQs about Affordable Care Act Implementation
Part 54 (July 28, 2022), available at https://
www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/
our-activities/resource-center/faqs/aca-part-54.pdf
and https://www.cms.gov/files/document/faqs-part54.pdf.; and FAQs about Affordable Care Act
Implementation Part 64 (Jan. 22, 2024) available at
https://www.dol.gov/agencies/ebsa/about-ebsa/ouractivities/resource-center/faqs/aca-part-64 and
https://www.cms.gov/files/document/faqs-part64.pdf.
27 As noted in section I.A of the preamble to these
proposed rules, under 26 CFR 54.9815–2713T(a)(4),
29 CFR 2590.715–2713(a)(4), and 45 CFR
147.130(a)(4), plans and issuers may use
‘‘reasonable medical management techniques’’ to
determine the frequency, method, treatment, or
setting for a recommended preventive service, to
the extent this information is not specified in a
26 See
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• Frequently Asked Questions on
February 20, 2013 (FAQs Part XII),
which, among other things, clarified the
scope of reasonable medical
management with respect to
recommended preventive services,
including contraceptive items and
services. The FAQs specified that plans
and issuers must cover ‘‘the full range
of FDA-approved contraceptive
methods’’ and must design reasonable
medical management techniques to
include accommodations for the specific
medical needs of an individual. FAQs
Part XII, Q14 noted that plans may, for
example, cover a generic drug without
cost sharing and impose cost sharing for
equivalent branded drugs. If, however, a
generic version is not available, or
would not be medically appropriate for
the patient (as determined by the
attending provider, in consultation with
the patient), then a plan or issuer must
have a mechanism to provide coverage
for the brand name drug without any
cost sharing.28 FAQs Part XII also
interpreted the statutory and regulatory
requirements to cover recommended
preventive services without cost sharing
to mean that recommended preventive
services (including contraceptive
products) that are generally available
without a prescription must be covered
without cost sharing only when
prescribed by a health care provider.29
• Frequently Asked Questions on
May 11, 2015 (FAQs Part XXVI), which
clarified that plans and issuers must
cover, without cost sharing, at least one
form of contraception in each method 30
recommendation or guideline. Plans and issuers
may rely on established techniques and the relevant
clinical evidence base to determine the frequency,
method, treatment, or setting for coverage of a
recommended preventive health item or service
where cost sharing must be waived. Whether a
medical management technique is reasonable
depends on all the relevant facts and circumstances.
See FAQs Part 54, Q8 (July 28, 2022), available at
https://www.dol.gov/sites/dolgov/files/EBSA/aboutebsa/our-activities/resource-center/faqs/aca-part54.pdf and https://www.cms.gov/files/document/
faqs-part-54.pdf.
28 See FAQs Part XII, Q14 (Feb. 20, 2013),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-xii.pdf and https://www.cms.gov/
cciio/resources/fact-sheets-and-faqs/aca_
implementation_faqs12.
29 See id. at Q4 and Q15. As noted elsewhere in
this section I.B, the language ‘‘as prescribed’’
appeared in the HRSA-supported Guidelines until
2016.
30 As noted in FDA’s Birth Control Guide (Chart),
published in May 2024, available at https://
www.fda.gov/media/150299/download, the FDA
approves, clears, and grants marketing
authorization for individual contraceptive products,
not ‘‘methods.’’ However, for purposes of this chart,
which includes birth control options broader than
products, the term ‘‘methods’’ is used. Similarly,
FAQs Part XXVI used the term ‘‘methods’’
consistent with the then-current FDA Birth Control
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that is identified by the FDA in its Birth
Control Guide.31 FAQs Part XXVI
further clarified the scope of reasonable
medical management techniques by
specifying that if multiple services and
FDA-approved items within a
contraceptive category are medically
appropriate for an individual, the plan
or issuer may use reasonable medical
management techniques to determine
which specific products to cover
without cost sharing with respect to that
individual and, subject to the relevant
facts and circumstances, generally may
impose cost sharing (including full cost
sharing) on some items and services to
encourage an individual to use other
specific items and services within the
chosen contraceptive category.32
However, if the individual’s attending
provider 33 recommends a particular
31 FAQs Part XXVI referenced the then-current
2015 FDA Birth Control Guide, which identified 18
contraceptive methods for women, but noted that
the ‘‘FDA Birth Control Guide additionally lists
sterilization surgery for men and male condoms, but
the HRSA Guidelines exclude services relating to a
man’s reproductive capacity.’’ See FAQs Part XXVI,
fn. 12, available at https://www.dol.gov/sites/
dolgov/files/ebsa/about-ebsa/our-activities/
resource-center/faqs/aca-part-xxvi.pdf and https://
www.cms.gov/CCIIO/Resources/Fact-Sheets-andFAQs/Downloads/aca_implementation_faqs26.pdf.
The 2021 HRSA-supported Guidelines incorporated
by reference a subsequent update of the FDA Birth
Control Guide (as published on December 22, 2021),
and now describes the full range of contraceptives
to include: ‘‘(1) sterilization surgery for women, (2)
implantable rods, (3) copper intrauterine devices,
(4) intrauterine devices with progestin (all
durations and doses), (5) injectable contraceptives,
(6) oral contraceptives (combined pill), 7) oral
contraceptives (progestin only), (8) oral
contraceptives (extended or continuous use), (9) the
contraceptive patch, (10) vaginal contraceptive
rings, (11) diaphragms, (12) contraceptive sponges,
(13) cervical caps, (14) condoms, (15) spermicides,
(16) emergency contraception (levonorgestrel), and
(17) emergency contraception (ulipristal acetate),
and any additional contraceptives approved,
granted, or cleared by the FDA.’’ See FAQs Part 64
(Jan. 22, 2024), available at https://www.dol.gov/
sites/dolgov/files/ebsa/about-ebsa/our-activities/
resource-center/faqs/aca-part-64.pdf and https://
www.cms.gov/files/document/faqs-part-64.pdf. The
2021 HRSA-supported Guidelines also state:
‘‘Additionally, instruction in fertility awarenessbased methods, including the lactation amenorrhea
method, although less effective, should be provided
for women desiring an alternative method.’’
32 See FAQs Part XXVI, Q3 (May 11, 2015),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-xxvi.pdf and https://www.cms.gov/
CCIIO/Resources/Fact-Sheets-and-FAQs/
Downloads/aca_implementation_faqs26.pdf. For
example, a plan could use cost sharing to encourage
use of one of several FDA-approved intrauterine
devices (IUDs) with progestin by imposing cost
sharing on the more costly IUD with progestin
while waiving cost sharing for a less costly IUD
with progestin.
33 See id. at Q1, fn. 13 (‘‘An attending provider
means an individual who is licensed under
applicable State law, who is acting within the scope
of the provider’s license, and who is directly
responsible for providing care to the patient relating
to the recommended preventive services. Therefore,
a plan, issuer, hospital, or managed care
organization is not an attending provider.’’)
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service or FDA-approved, -cleared, or
-granted item based on a determination
of medical necessity with respect to that
individual, the plan or issuer must defer
to the determination of the attending
provider with respect to the individual
involved, and cover that item or service
without cost sharing.34 Additionally,
FAQs Part XXVI specified that to the
extent a plan or issuer uses reasonable
medical management techniques within
a specified method of contraception, the
plan or issuer must have an easily
accessible, transparent, and sufficiently
expedient exceptions process that is not
unduly burdensome on the individual
or a provider (or other individual acting
as a patient’s authorized representative)
to ensure coverage without cost sharing
of any service or FDA-approved item
within the specified method of
contraception that has been
recommended by the individual’s
attending provider based on a
determination of medical necessity.35
• Frequently Asked Questions on
April 20, 2016 (FAQs Part 31), which
further clarified the requirements on
plans and issuers with respect to the
development and implementation of an
exceptions process, including that plans
and issuers that meet all other
requirements are permitted to develop
and utilize a standard exceptions
process form (such as the Medicare Part
D Coverage Determination Request
Form) and instructions as part of the
exceptions process.36
• Frequently Asked Questions on July
19, 2021 (FAQs Part 47), which
followed USPSTF’s release on June 11,
2019 of a recommendation with an ‘‘A’’
rating that clinicians offer preexposure
prophylaxis (PrEP) with ‘‘effective
antiretroviral therapy to persons who
are at high risk of human
immunodeficiency virus (HIV)
acquisition.’’ 37 FAQs Part 47 clarified
34 See
id. at introduction and Q3.
at Q2.
36 FAQs Part 31, Q2 (April 20, 2016), available at
https://www.dol.gov/sites/dolgov/files/EBSA/aboutebsa/our-activities/resource-center/faqs/aca-part31.pdf and https://www.cms.gov/CCIIO/Resources/
Fact-Sheets-and-FAQs/Downloads/FAQs-31_Final4-20-16.pdf.
37 FAQs about Affordable Care Act
Implementation Part 47 (July 19, 2021), available at
https://www.dol.gov/sites/dolgov/files/EBSA/aboutebsa/our-activities/resource-center/faqs/aca-part47.pdf and https://www.cms.gov/cciio/resources/
fact-sheets-and-faqs/downloads/faqs-part-47.pdf.
Note that USPSTF subsequently updated the
recommendation referenced in FAQs Part 47. See
USPSTF, Prevention of Acquisition of HIV:
Preexposure Prophylaxis, updated August 22, 2023,
available at https://
www.uspreventiveservicestaskforce.org/uspstf/
recommendation/prevention-of-humanimmunodeficiency-virus-hiv-infection-preexposure-prophylaxis.
35 Id.
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that plans and issuers are required to
cover, without cost sharing, all items
and services that USPSTF recommends
should be received prior to being
prescribed PrEP and for ongoing followup and monitoring. These items and
services include specific baseline and
monitoring services, such as laboratory
testing and adherence counseling. The
FAQs also clarified that plans and
issuers utilizing reasonable medical
management must have an easily
accessible, transparent, and sufficiently
expedient exceptions process that is not
unduly burdensome on the individual
or a provider (or other individual acting
as an authorized representative).
• Frequently Asked Questions on
January 10, 2022 (FAQs Part 51), which
acknowledged complaints received
about compliance with the
contraceptive coverage requirement and
clarified currently applicable guidance.
Specifically, FAQs Part 51, Q9 was
issued in response to complaints and
public reports of potential violations of
the contraceptive coverage requirement,
including that plans and issuers and
pharmacy benefit managers (PBMs)
were not adhering to requirements for
utilizing reasonable medical
management techniques. The FAQs also
highlighted several examples of such
potential violations, including denying
coverage for all or particular brand
name contraceptives, even after the
individual’s attending provider
determines and communicates to the
plan or issuer that a particular service
or FDA-approved, -cleared, or -granted
contraceptive product is medically
necessary with respect to that
individual; requiring individuals to fail
first using numerous other services or
FDA-approved, -cleared, or -granted
contraceptive products within the same
method of contraception before the plan
or issuer will approve coverage for a
service or FDA-approved, -cleared, or
-granted contraceptive product that is
medically appropriate for the
individual, as determined by the
individual’s attending health care
provider; requiring individuals to fail
first using numerous other services or
FDA-approved, -cleared, or -granted
contraceptive products in other
contraceptive methods before the plan
or issuer will approve coverage for a
service or FDA-approved, -cleared, or
-granted contraceptive product that is
medically appropriate for the
individual, as determined by the
individual’s attending health care
provider; and failing to provide an
acceptable exceptions process (for
example, by requiring individuals to
appeal an adverse benefit determination
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using the plan’s or issuer’s internal
claims and appeals process, rather than
providing an exceptions process that is
easily accessible, transparent,
sufficiently expedient, and not unduly
burdensome).38
• Frequently Asked Questions on July
28, 2022 (FAQs Part 54), which further
clarified the contraceptive coverage
requirement and currently applicable
guidance. These FAQs clarified that
plans and issuers must cover, without
imposing cost-sharing requirements,
items and services that are integral to a
recommended contraceptive service.39
The FAQs also stated that plans and
issuers must cover any FDA-approved,
-cleared, or -granted contraceptive
products and services that an individual
and their attending provider have
determined to be medically appropriate
for the individual, regardless of whether
those products or services are
specifically identified in the categories
listed in the HRSA-supported
Guidelines.40 For contraceptive services
or FDA-approved, -cleared, or -granted
contraceptive products not included in
a category described in the HRSAsupported Guidelines, the FAQs stated
that plans and issuers may use
reasonable medical management
techniques to determine which specific
products to cover without cost sharing
only if multiple, substantially similar
services or products that are not
included in a category described in the
HRSA-supported Guidelines are
medically appropriate for the
individual. The FAQs further stated that
if the individual’s attending provider
recommends a particular service or
FDA-approved, -cleared, or -granted
product not included in a category
described in the HRSA-supported
Guidelines based on a determination of
medical necessity with respect to that
individual, the plan or issuer must
cover that service or product without
cost sharing. The plan or issuer must
defer to the determination of the
attending provider and must make
available an easily accessible,
transparent, and sufficiently expedient
exceptions process that is not unduly
burdensome so the individual or their
provider (or other individual acting as
the individual’s authorized
38 FAQs Part 51, Q9 (Jan. 10, 2022), available at
https://www.dol.gov/sites/dolgov/files/ebsa/aboutebsa/our-activities/resource-center/faqs/aca-part51.pdf and https://www.cms.gov/CCIIO/Resources/
Fact-Sheets-and-FAQs/Downloads/FAQs-Part51.pdf.
39 FAQs Part 54, Q1 (July 28, 2022), available at
https://www.dol.gov/sites/dolgov/files/EBSA/aboutebsa/our-activities/resource-center/faqs/aca-part54.pdf and https://www.cms.gov/files/document/
faqs-part-54.pdf.
40 Id. at Q2.
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representative) can obtain coverage for
the medically necessary service or
product for the individual without cost
sharing as required under PHS Act
section 2713 and its implementing
regulations and guidance.41 The FAQs
also encouraged plans and issuers to
cover over-the-counter (OTC) emergency
contraceptive products with no cost
sharing when they are purchased by
consumers without a prescription.42
FAQs Part 54, Q8 further acknowledged
that the Departments continued to
receive complaints and reports that
participants, beneficiaries, and enrollees
were being denied contraceptive
coverage, in some cases due to the
application of medical management
techniques that were not reasonable
based on all of the relevant facts and
circumstances. In addition to
summarizing ongoing complaints
similar to those highlighted in FAQs
Part 51, Q9, the Departments also noted
that they were aware of complaints that
plans and issuers or PBMs were
imposing age limits on contraceptive
coverage rather than providing these
benefits to all individuals with
reproductive capacity. FAQs Part 54,
Q13 also described actions within the
scope of the authority of the
Departments of Labor and HHS to
enforce the requirements of PHS Act
section 2713.43
• Frequently Asked Questions on
January 22, 2024 (FAQs Part 64), which
provided further clarifications regarding
contraceptive coverage requirements,
including providing guidance regarding
a therapeutic equivalence approach. The
FAQs explained that plans and issuers
could adopt a therapeutic equivalence
approach (in combination with an easily
accessible, transparent, and sufficiently
expedient exceptions process that is not
unduly burdensome) to ensure the
plan’s or issuer’s medical management
techniques for contraceptive drugs and
drug-led devices 44 that are required to
41 Id.
at Q3.
at Q5.
43 See FAQs Part 54, Q5, Q8, and Q13 (July 28,
2022), available at https://www.dol.gov/sites/
dolgov/files/EBSA/about-ebsa/our-activities/
resource-center/faqs/aca-part-54.pdf and https://
www.cms.gov/files/document/faqs-part-54.pdf.
44 In FAQs Part 64, the term ‘‘drug-led device’’
referred to a combination product, as defined under
21 CFR 3.2(e), that is comprised of a drug and a
device, and for which the drug component provides
the primary mode of action. The primary mode of
action of a combination product is the single mode
of action (that is, the action provided by the drug,
device, or biological product) that provides the
most important therapeutic action of the
combination product. See 21 U.S.C. 353(g)(1)(C)
and 21 CFR 3.2(m). As further discussed in section
II.A.2 of the preamble to these proposed rules, the
Departments propose a substantially similar
definition of the term ‘‘drug-led combination
42 Id.
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be covered under PHS Act section 2713
are reasonable.45 Specifically, with
respect to FDA-approved contraceptive
drugs and drug-led devices, if a plan or
issuer utilizes medical management
techniques within a specified category
described in the HRSA-supported
Guidelines (or group of substantially
similar products that are not included in
a specified category), the Departments
will generally consider such medical
management techniques to be
reasonable if the plan or issuer covers
all FDA-approved contraceptive drugs
and drug-led devices in that category (or
group of substantially similar products)
without cost sharing, other than those
for which there is at least one
therapeutic equivalent drug or drug-led
device that the plan or issuer covers
without cost sharing.
C. Executive Orders on the Affordable
Care Act and Reproductive Health
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On January 28, 2021, President Biden
issued Executive Order 14009,
‘‘Strengthening Medicaid and the
Affordable Care Act’’ (E.O. 14009).46
Section 3 of E.O. 14009 directs the
Secretaries of the Departments (the
Secretaries) to review all existing
regulations, guidance documents, and
policies to determine whether such
actions are inconsistent with protecting
and strengthening Medicaid and the
ACA and making high-quality health
care accessible and affordable for every
American.
On April 5, 2022, President Biden
issued Executive Order 14070,
‘‘Continuing To Strengthen Americans’
Access to Affordable, Quality Health
Coverage’’ (E.O. 14070).47 Section 2 of
E.O. 14070 reaffirms the goals and
policy of E.O. 14009 and further directs
agencies with responsibilities related to
Americans’ access to health coverage to
consider and pursue agency actions that
improve the comprehensiveness of
coverage and protect consumers from
low-quality coverage.
Following the U.S. Supreme Court
decision in Dobbs v. Jackson Women’s
Health Organization (Dobbs),48
President Biden issued Executive Order
14076, ‘‘Protecting Access to
Reproductive Healthcare Services’’ (E.O.
14076) on July 8, 2022. Section 3 of E.O.
product’’ in these proposed rules to refer to the
same products for which the term ‘‘drug-led
device’’ was used in FAQs Part 64.
45 FAQs Part 64 (Jan. 22, 2024), available at
https://www.dol.gov/sites/dolgov/files/ebsa/aboutebsa/our-activities/resource-center/faqs/aca-part64.pdf and https://www.cms.gov/files/document/
faqs-part-64.pdf.
46 86 FR 7793.
47 87 FR 20689.
48 597 U.S. 215 (2022).
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14076 requires the Secretary of HHS to
identify potential actions to ‘‘protect
and expand access to the full range of
reproductive healthcare services,
including actions to enhance family
planning services such as access to
emergency contraception’’ and identify
‘‘ways to increase outreach and
education about access to reproductive
healthcare services, including by
launching a public awareness initiative
to provide timely and accurate
information about such access, which
shall . . . include promoting awareness
of and access to the full range of
contraceptive services.’’ 49
On June 23, 2023, President Biden
issued Executive Order 14101,
‘‘Strengthening Access to Affordable,
High-Quality Contraception and Family
Planning Services’’ (E.O. 14101).50
Section 2 of E.O. 14101 directs the
Secretaries to consider issuing guidance
‘‘to further improve Americans’ ability
to access contraception, without out-ofpocket expenses, under the Affordable
Care Act’’ and to consider additional
actions ‘‘to promote increased access to
affordable over-the-counter
contraception, including emergency
contraception.’’ 51
D. FDA Approval of Daily Over-theCounter Oral Contraceptive
On July 13, 2023, the FDA announced
that it had approved a progestin-only
birth control pill as the first daily oral
contraceptive for use in the United
States available without a
prescription.52 53 Interested parties,
including health care provider
associations, have supported the
availability of a daily OTC oral
contraceptive for its potential to
improve access to affordable
contraception, thereby improving
management of family planning and
reducing unintended pregnancies.54
49 87
50 88
FR 42053.
FR 41815.
51 Id.
52 FDA (July 13, 2023). ‘‘FDA Approves First
Nonprescription Daily Oral Contraceptive,’’
available at https://www.fda.gov/news-events/pressannouncements/fda-approves-first-nonprescriptiondaily-oral-contraceptive.
53 Progestin-only oral contraceptives are a
product that is already available in a prescription
form and are a category of contraceptives listed in
the FDA Birth Control Guide, as referenced in the
HRSA-supported Guidelines.
54 See American Medical Association (2023).
‘‘AMA Applauds FDA Approval of OTC Birth
Control,’’ available at https://www.ama-assn.org/
press-center/press-releases/ama-applauds-fdaapproval-otc-birth-control; The American College of
Obstetricians and Gynecologists (2023). ‘‘ACOG
Praises FDA Approval of Over-the-Counter Access
to Birth Control Pill,’’ available at https://
www.acog.org/news/news-releases/2023/07/acogpraises-fda-approval-of-over-the-counter-access-tobirth-control-pill.
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Studies have shown that challenges
with access and costs are among the
most common reasons cited by women
for not using contraception or having
gaps in contraceptive use.55 One large,
nationally representative study found 29
percent of women reported
encountering barriers to obtaining or
filling an initial prescription or refills of
oral contraceptive pills, specifically
citing insurance coverage, getting an
appointment, not having a regular
provider, and difficulty accessing a
pharmacy.56 Accordingly, the
availability of a daily OTC oral
contraceptive could improve access to
contraception if the product is
affordable, including if it is covered by
insurance without cost sharing, and as
a result, could reduce the number of
unintended pregnancies.57 Beginning in
March 2024, an OTC oral contraceptive
has become widely available for sale
online and in stores under the brand
name Opill®, with a manufacturer’s
55 See Key, K., Wollum, A., Asetoyer, C.,
Cervantes, M., Lindsey, A., Rivera, R., Robinson
Flint, J., Zuniga, C., Sanchez, J., and Baum, S.
(2023). ‘‘Challenges accessing contraceptive care
and interest in over-the-counter oral contraceptive
pill use among Black, Indigenous, and people of
color: An online cross-sectional survey,’’
Contraception, available at https://doi.org/10.1016/
j.contraception.2023.109950; Thompson, E. L.,
Galvin, A. M., Garg, A., Diener, A., Deckard, A.,
Griner, S. B., and Kline, N. S. (2023). ‘‘A
socioecological perspective to contraceptive access
for women experiencing homelessness in the
United States,’’ Contraception, available at https://
doi.org/10.1016/j.contraception.2023.109991;
Bessett, D., Prager, J., Havard, J., Murphy, D. J.,
Age´nor, M., and Foster, A. M. (2015). ‘‘Barriers to
contraceptive access after health care reform:
Experiences of young adults in Massachusetts,’’
Women’s Health Issues, available at https://doi.org/
10.1016/j.whi.2014.11.002; and Johnson, E. R.
(2022). ‘‘Health care access and contraceptive use
among adult women in the United States in 2017,’’
Contraception, available at https://doi.org/10.1016/
j.contraception.2022.02.008.
56 Grindlay, K., Grossman, D. (2016).
‘‘Prescription Birth Control Access Among U.S.
Women At Risk of Unintended Pregnancy,’’ Journal
of Women’s Health, available at https://
www.liebertpub.com/doi/10.1089/jwh.2015.5312.
57 A recent study found that over 12 million adult
women and nearly two million young women aged
15–17 would likely be interested in using an OTC
oral contraceptive if it were free to them, but the
numbers declined to 7.1 million adult women and
760,000 young women if the out-of-pocket cost of
the contraceptive was $15. The same study
indicated that the levels of interest would translate
to an estimated eight percent decrease in
unintended pregnancies (approximately 320,000
fewer) in one year among adult women when cost
sharing was $0, and an estimated five percent
decrease (approximately 199,000 fewer unintended
pregnancies) if there were a monthly out-of-pocket
cost of $15. See Wollum, A., Trussell, J., Grossman,
D., and Grindlay, K. (2020). ‘‘Modeling the Impacts
of Price of an Over-the-Counter Progestin-Only Pill
on Use and Unintended Pregnancy among U.S.
Women,’’ Women’s Health Issues, available at
https://www.sciencedirect.com/science/article/pii/
S1049386720300037/pdfft?md5=
903aee27ef3468f62abaf9091e0a957c&pid=1-s2.0S1049386720300037-main.pdf.
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suggested retail price ranging from
$19.99 for a 1-month supply to $89.99
for a 6-month supply.58
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E. OTC Preventive Products Request for
Information
As discussed in sections I.A and I.C
of this preamble, the Biden-Harris
Administration has prioritized access to
comprehensive, high-quality
contraception and family planning
services as critical components of
women’s reproductive health and
overall public health. In response to
E.O. 14009, E.O. 14070, E.O.14076, and
E.O. 14101, and following the FDA
approval of an OTC oral contraceptive,
as discussed in section I.D of this
preamble, the Departments issued a
‘‘Request for Information; Coverage of
Over-the-Counter Preventive Services’’
on October 4, 2023 (OTC Preventive
Products RFI).59 The Departments
issued the OTC Preventive Products RFI
to gather public feedback regarding the
potential benefits and costs of requiring
plans and issuers to cover OTC
preventive products 60 without cost
sharing and without a prescription;
learn of any potential challenges
associated with providing such
coverage; understand whether and how
providing such coverage would benefit
consumers; and assess any potential
burden that plans and issuers would
face if required to provide such
coverage.
The Departments received 376 unique
comments in response to the OTC
Preventive Products RFI, including
comments from individuals; plans and
issuers; PBMs; State government
agencies; and advocacy organizations
representing consumers, health care
providers, group health plans, hospitals,
and durable medical equipment
suppliers. The Departments reviewed
comments received in response to the
OTC Preventive Products RFI as part of
the development of these proposed
rules. However, these proposed rules do
not address all the issues on which
information was requested.
Many commenters stated that
requiring plans and issuers to cover all
recommended preventive services
would promote health equity and
improve health outcomes by reducing
costs and administrative barriers to
58 Lupkin, S., NPR (March 18, 2024). ‘‘First overthe-counter birth control pill now for sale online,’’
available at https://npr.org/sections/health-shots/
2024/03/04/1235404522/opill-over-counter-birthcontrol-pill-contraceptive-shop.
59 88 FR 68519 (Oct. 4, 2023).
60 For consistency with the OTC Preventive
Products RFI, this preamble uses the term ‘‘OTC
preventive products’’ to refer to recommended
preventive services that may be made available to
an individual without a prescription.
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accessing preventive health care. Many
commenters highlighted that
prescription and cost-sharing
requirements represent a particular
barrier for people with lower incomes
and Black, Indigenous, and People of
Color (BIPOC) communities, and that
requiring coverage of OTC preventive
products without cost sharing and
without a prescription would
significantly lower these barriers,
thereby increasing access to OTC
preventive products in a manner that
would be especially beneficial to lowerincome and underserved populations.
Many commenters highlighted the
particular benefit to women of requiring
plans and issuers to cover OTC
contraceptive items without requiring a
prescription and without cost-sharing
requirements. Several commenters
pointed out that neither section 2713 of
the PHS Act nor its implementing
regulations impose a specific
prescription requirement on
recommended contraceptive items.
These commenters also highlighted
HRSA’s removal of ‘‘as prescribed’’
language which appeared in the 2011
HRSA-supported Guidelines but does
not appear in the 2016 or any
subsequent version of the HRSAsupported Guidelines.61 In the view of
these commenters, the existing
prescription requirement is therefore
based only on agency guidance that is
within the authority of the Departments
to revise.62
Another commenter noted that, in the
United States, approximately one-third
of childbearing-aged women and those
capable of becoming pregnant
experience difficulties obtaining
hormonal contraception, and that
coverage of OTC oral contraception
without a prescription and without cost
sharing would improve access to
reproductive care for this group. Several
commenters highlighted the burdens of
a prescription requirement on people
seeking contraception, including
requesting time off from work,
unnecessary visits to the doctor,
appointment wait times, and finding
childcare, while a few other
commenters specifically emphasized the
importance of waiving cost sharing to
make OTC contraceptive services truly
accessible. One commenter noted that
access to affordable contraception was
particularly important within the
61 See section I.A of this preamble for a
discussion of the ‘‘as prescribed’’ language.
62 See, e.g., FAQs Part XII, Q4 (Feb. 20, 2013),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-xii.pdf and www.cms.gov/CCIIO/
Resources/Fact-Sheets-and-FAQs/aca_
implementation_faqs12.html.
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context of widespread Medicaid
coverage losses following the
termination on March 31, 2023 of the
continuous enrollment condition
previously associated with the COVID–
19 public health emergency (PHE).63
Many other commenters supported
requiring coverage of OTC contraceptive
services in order to ensure that women
can access effective, affordable means of
preventing unintended pregnancies in
the wake of the Dobbs decision.
In addition to comments highlighting
the benefits to women of removing
prescription and cost-sharing
requirements for coverage of OTC
contraceptive items, several commenters
noted that consumers would benefit
from increased access to other specific
OTC preventive products if plans and
issuers were required to cover those
other products without a prescription
and without cost sharing. For example,
several commenters stated that coverage
based on prescription requirements
limits access to OTC tobacco cessation
products. One of these commenters
emphasized that prescription
requirements are a particular barrier
with respect to tobacco cessation
because of the nature of nicotine
addiction, which typically requires
multiple quit attempts. In that
commenter’s view, removing costsharing and prescription requirements
would allow people to access evidencebased treatment when they are
motivated to make a quit attempt,
without having to wait for a medical
appointment. Conversely, another
commenter who acknowledged that
removing cost sharing on OTC tobacco
cessation products could have a positive
effect on access to these products,
particularly for people with low
incomes, also emphasized the role of
clinicians in screening for and
diagnosing tobacco use disorder and
recommending or prescribing effective
treatments. This commenter encouraged
the Departments to make an effort to
preserve the clinician-patient
relationship with respect to tobacco
cessation products to ensure that
patients are properly connected to care,
including biomedical and psychiatric
services that may be comorbid with
tobacco use disorder.
Another commenter noted that a
woman who is not pregnant or planning
63 See Center for Medicare and Medicaid Services
(CMS), Center for Consumer Information and
Insurance Oversight, Temporary Special Enrollment
Period (SEP) for Consumers Losing Medicaid or the
Children’s Health Insurance Program (CHIP)
Coverage Due to Unwinding of the Medicaid
Continuous Enrollment Condition—Frequently
Asked Questions (FAQ) (Jan. 27, 2023), available at
https://www.cms.gov/technical-assistanceresources/temp-sep-unwinding-faq.pdf.
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to become pregnant may not be under
the care of a prescribing health care
provider but could still benefit from the
USPSTF recommendation that women
who could become pregnant should
consume a daily folic acid supplement.
A few commenters described the
disparate occurrence of spina bifida in
newborns born to Spanish-speaking
people, which commenters believe
could be reduced if plans and issuers
were required to cover OTC folic acid
without cost sharing or prescription
requirements.
However, several commenters
identified operational barriers to
widespread implementation of a
requirement to cover all recommended
OTC preventive products without cost
sharing or a prescription. A few
commenters noted potential strains on
pharmacies, retailers, and the existing
health care delivery system; fraud and
abuse threats; and potential cost
increases for plan sponsors and plan
participants. For example, one
commenter cited the administrative and
cost burdens that pharmacies and
retailers could incur if they were
required to cover the upfront costs of
OTC preventive products and pursue
post-claim reimbursements. In that
commenter’s view, requiring plans and
issuers to provide coverage of OTC
preventive products without cost
sharing could also facilitate fraudulent
behavior, including sale to unauthorized
persons or re-sale outside of the health
care market, that could in turn create a
shadow market based on overuse and
misuse. This commenter highlighted the
existing significant clinical and
administrative burdens that already
strain pharmacist and retailer resources
(ranging from filling and dispensing
medications to providing
immunizations, patient counseling, and
information about insurance eligibility
and coverage), and expressed concern
that the responsibility for educating
consumers about potential access to and
appropriateness of OTC contraceptives
would fall to pharmacists and retailers
at the point of sale. Another commenter
noted that requiring coverage of OTC
preventive products such as
contraceptives, OTC naloxone, and
smoking cessation products without
cost sharing or a prescription would
increase access to such products but
advised that such requirements would
increase administrative burden on
pharmacists by increasing workload and
costs and decreasing reimbursement for
vital patient counseling and additional
services. One commenter indicated that
using a credit card (rather than a debit
card or paper reimbursement system)
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would facilitate coverage of OTC
preventive products, but also noted that
the use of a credit card without a fixed
spending limit would be more likely to
lead to fraud and would necessitate
implementing systems for freezing or
repaying cards in the case of misuse.
Another commenter indicated general
support for access to recommended
preventive products without cost
sharing but stated that prescription
requirements were necessary for many
products to ensure that individual
patients receive appropriate care. In that
commenter’s view, the cost associated
with applying a market-wide OTC
preventive products coverage
requirement would disrupt and likely
outweigh any benefits of changing longestablished coverage patterns. This
commenter recommended that the
Departments consider establishing a
standing order for Opill® only, in order
to conduct a targeted roll-out of a
potential broader OTC preventive
products coverage requirement without
overburdening the health care system by
attempting to implement the changes for
all OTC preventive products at once.
The same commenter, however, warned
against requiring coverage of OTC
products that do not have meaningful
market competition, such as Opill®, to
avoid inadvertently driving up retail
prices. Another commenter shared
similar concerns regarding the potential
for generating demand for preventive
items and services that would
ultimately be unused. A few
commenters noted the particular cost
and negative environmental impact that
could be realized if OTC breastfeeding
supplies with no cost sharing led to
overconsumption of such products. One
commenter urged the Departments to
avoid rushing to require coverage of all
OTC preventive products in order to
provide sufficient advanced notice to
allow plan sponsors to address
operational and implementation issues.
While several commenters expressed
concern that current prescription
requirements restrict access to
breastfeeding services and supplies,
many commenters stated that removing
the prescription requirement for
breastfeeding services and supplies
could have a detrimental effect on
breastfeeding parents and newborns.
These commenters stated that
consumers currently benefit from the
expertise provided by lactation
consultants and other specially trained
staff at durable medical equipment
suppliers contracted with plans and
issuers to provide breast pumps. These
commenters also expressed the view
that removing the prescription
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requirement would make it more likely
that a consumer would be forced to
select breastfeeding supplies in a retail
environment with fewer breast pump
options and less privacy and support.
In the OTC Preventive Products RFI,
the Departments also requested
feedback from interested parties based
on their experiences with the
requirement to cover OTC COVID–19
diagnostic tests during the COVID–19
PHE.64 During the COVID–19 PHE,
plans and issuers were required to cover
OTC COVID–19 diagnostic tests without
a prescription from a health care
provider and without imposing any
cost-sharing requirements, prior
authorization, or other medical
management requirements. However,
the Departments permitted plans and
issuers that met certain safe harbor
requirements to implement cost and
quantity limits to contain costs and
combat potential fraud and abuse with
respect to coverage of OTC COVID–19
diagnostic tests. A few commenters
encouraged the Departments to use
experiences with coverage of OTC
COVID–19 diagnostic tests as a roadmap
for future coverage of other
recommended preventive services.
However, another commenter cautioned
the Departments against regulating the
routine use of recommended preventive
services by applying requirements used
during an unprecedented public health
emergency, in order to avoid issues the
commenter reported taking place during
the COVID–19 PHE, such as
overconsumption of COVID–19
diagnostic tests, price gouging of
products by manufacturers, and limited
opportunities for health plans to contain
waste and abuse. Another commenter
acknowledged that coverage
requirements for OTC COVID–19
diagnostic tests improved patient access
to the tests by removing the barriers
related to out-of-pocket costs and
obtaining prescriptions but described a
number of other issues associated with
the testing coverage requirement.
According to this commenter,
implementation challenges included
below-cost reimbursement, inconsistent
requirements across plans and
providers, and lack of reimbursement
for pharmacies. In particular, this
commenter noted that the average cost
to a retail pharmacy provider to
dispense a drug—separate from the cost
of acquiring the medication itself—is
$12.40, and that any future OTC
coverage requirements should reimburse
pharmacies for both the acquisition and
dispensing of products. Another
commenter, citing the speed with which
64 See
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the OTC COVID–19 diagnostic testing
program was implemented, urged the
Departments to proceed deliberately
with the implementation of any broader
OTC preventive products coverage
requirements. According to this
commenter, the rapid implementation of
the testing coverage requirements
during the PHE contributed to consumer
confusion and led to many thousands of
consumers failing to seek
reimbursement for tests that were
eligible to be covered.
F. Transparency in Coverage Under the
ACA and Implementing Regulations
Section 2715A of the PHS Act 65
provides that non-grandfathered group
health plans and health insurance
issuers offering non-grandfathered
group or individual health insurance
coverage must comply with section
1311(e)(3) of the ACA,66 which
addresses transparency in health
coverage and imposes certain reporting
and disclosure requirements for health
plans that are seeking certification as
qualified health plans (QHPs) to be
offered on an American Health Benefits
Exchange (generally referred to as an
Exchange or Marketplace) (as defined by
section 1311(b)(1) of the ACA). A plan
or issuer of coverage that is not offered
through an Exchange and that is subject
to section 2715A of the PHS Act is
required to submit the required
information to the Secretary of HHS and
the relevant State’s insurance
commissioner, and to make that
information available to the public.
Section 1311(e)(3)(C) of the ACA
requires plans, as a requirement of
certification as a QHP, to permit
individuals to learn about the amount of
cost sharing (including deductibles,
copayments, and coinsurance) that the
individual would be responsible for
paying with respect to the furnishing of
a specific item or service by an innetwork provider in a timely manner
upon the request of the individual.
Section 1311(e)(3)(C) of the ACA
specifies that, at a minimum, such
information must be made available to
the individual through an internet
website and through other means for
individuals without access to the
internet.
On March 27, 2012, HHS issued the
‘‘Patient Protection and Affordable Care
Act; Establishment of Exchanges and
Qualified Health Plans; Exchange
Standards for Employers’’ final rule
(Exchange Establishment final rule) that
implemented sections 1311(e)(3)(A)
through (C) of the ACA at 45 CFR
65 42
66 42
U.S.C. 300gg–15a.
U.S.C. 18031(e)(3).
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155.1040(a) through (c) and 156.220.67
The Exchange Establishment final rule
created standards for QHP issuers to
submit specific information related to
transparency in coverage.
On November 12, 2020, the
Departments issued ‘‘Transparency in
Coverage’’ final rules (Transparency in
Coverage final rules) implementing
transparency reporting requirements for
non-grandfathered group health plans
and health insurance issuers offering
non-grandfathered group and individual
health insurance coverage.68
Implementing section 1311(e)(3)(C) of
the ACA and section 2715A of the PHS
Act, these rules require plans and
issuers to disclose cost-sharing
information for all covered items and
services available to a participant,
beneficiary, or enrollee through an
internet-based self-service tool via the
plan’s or issuer’s member portal or, if
requested by the individual, on paper.69
The requirement to disclose cost-sharing
information for all covered items and
services includes covered contraceptive
items or services.
The Transparency in Coverage final
rules enumerate seven cost-related
elements that plans and issuers must
disclose in response to a search query
by a participant, beneficiary, or enrollee
for a covered item or service furnished
by a provider or providers. The selfservice tool must provide an estimate of
the participant’s, beneficiary’s, or
enrollee’s cost-sharing liability for the
covered item or service, which is
calculated based on the following
elements: (a) accumulated amounts with
respect to any deductibles or maximum
out-of-pocket limits; and either (b) the
in-network rate, comprising a negotiated
rate or underlying fee schedule rate as
applicable to the payment model; or (c)
an out-of-network allowed amount or
any other rate that provides a more
accurate estimate of an amount a plan
or issuer will pay for the requested
covered item or service from an out-ofnetwork provider. Self-service tool
results must also reflect a list of the
items and services included in a
bundled payment arrangement, if
applicable; notification that coverage of
a specific item or service is subject to a
prerequisite, as applicable; and certain
67 77
FR 18310 (Mar. 27, 2012).
FR 72158 (Nov. 12, 2020).
69 The Consolidated Appropriations Act, 2021
imposed a largely duplicative requirement and
added a requirement that the information also be
provided by telephone, upon request. See also
FAQs Part 49, Q3 (Aug. 20, 2021), available at
https://www.dol.gov/sites/dolgov/files/EBSA/aboutebsa/our-activities/resource-center/faqs/aca-part49.pdf and https://www.cms.gov/CCIIO/Resources/
Fact-Sheets-and-FAQs/Downloads/FAQs-Part49.pdf.
68 85
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disclaimers in plain language describing
the limitations of the estimate or other
qualifications regarding the cost-sharing
information disclosed.
With respect to requests for costsharing information for items or services
that are recommended preventive
services under section 2713 of the PHS
Act, if the plan or issuer cannot
determine whether the request is for
preventive or non-preventive purposes,
the plan or issuer must display the costsharing liability that applies for nonpreventive purposes along with a
statement that the item or service may
not be subject to cost sharing if it is
billed as a preventive service.
Displaying a non-zero cost-sharing
liability in these circumstances helps
protect against unexpected medical bills
by ensuring participants, beneficiaries,
and enrollees are aware of their
potential cost-sharing liability while the
statement ensures that consumers are
made aware they can access
recommended preventive services
without cost sharing. Alternatively, the
Transparency in Coverage final rules
permit a plan or issuer to allow a
participant, beneficiary, or enrollee to
request cost-sharing information for the
specific preventive or non-preventive
item or service by including terms such
as ‘‘preventive,’’ ‘‘non-preventive,’’ or
‘‘diagnostic’’ as a means to request the
most accurate cost-sharing information.
Plans and issuers must ensure users
can search for cost-sharing information
for a covered item or service by a
specific in-network provider or by all
in-network providers using either a
descriptive term or a billing code. For
covered items or services furnished by
out-of-network providers, users can
search for an out-of-network allowed
amount, percentage of billed charges, or
other rate that provides a reasonably
accurate estimate of the amount a plan
or issuer will pay for a covered item or
service provided by out-of-network
providers. Users must also be able to
input other factors utilized by the plan
or issuer that are relevant for
determining the applicable cost-sharing
information or out-of-network allowed
amount, such as location of service,
facility name, or dosage and permit
refining and reordering of search results.
II. Overview of the Proposed Rules
A. Coverage of Recommended
Preventive Services
1. Reasonable Medical Management of
Recommended Preventive Services:
Exceptions Process
The Departments’ regulations
implementing section 2713 of the PHS
Act aim to strike a balance between
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ensuring participants, beneficiaries, and
enrollees do not face undue barriers to
accessing their coverage of
recommended preventive services as
required by law and allowing plans and
issuers to contain costs, promote
efficient delivery of care, and minimize
risks of fraud, waste, and abuse. To this
end, current regulations permit plans
and issuers to use reasonable medical
management techniques to determine
the frequency, method, treatment, or
setting for coverage of a recommended
preventive service, to the extent not
specified in the applicable
recommendation or guideline.70 The
Departments have previously explained,
in the context of certain recommended
preventive services, that they generally
do not consider medical management
techniques with respect to
recommended preventive services to be
reasonable absent the availability of an
exceptions process.71
As noted in previously issued
guidance and described in section I.B of
this preamble, the Departments
continue to receive complaints of
potential violations related to the
application of medical management
techniques that are not reasonable,
including failing to provide an
exceptions process that meets the
standards set forth in guidance.72
Further, the U.S. House of
Representatives’ Committee on
Oversight and Reform (Oversight
Committee) published a report in
October 2022 documenting the findings
of its investigation into contraceptive
coverage for individuals enrolled in
private health coverage. The Oversight
Committee found that insurers and
PBMs surveyed denied an average of at
least 40 percent of exception requests
related to contraceptive coverage, with
one PBM denying more than 80 percent
of requests in a year.73 To reinforce the
70 26 CFR 54.9815–2713(a)(4); 29 CFR 2590.715–
2713(a)(4); and 45 CFR 147.130(a)(4).
71 See FAQs Part XXVI, Q2 (May 11, 2015),
available at https://www.dol.gov/sites/dolgov/files/
ebsa/about-ebsa/our-activities/resource-center/faqs/
aca-part-xxvi.pdf and https://www.cms.gov/CCIIO/
Resources/Fact-Sheets-and-FAQs/Downloads/aca_
implementation_faqs26.pdf; FAQs Part 64, Q4 (Jan.
22, 2024), available at https://www.dol.gov/sites/
dolgov/files/ebsa/about-ebsa/our-activities/
resource-center/faqs/aca-part-64.pdf and https://
www.cms.gov/files/document/faqs-part-64.pdf.
72 See, e.g., FAQs Part 51, Q9 (Jan. 10, 2022),
available at https://www.dol.gov/sites/dolgov/files/
ebsa/about-ebsa/our-activities/resource-center/faqs/
aca-part-51.pdf and https://www.cms.gov/CCIIO/
Resources/Fact-Sheets-and-FAQs/Downloads/
FAQs-Part-51.pdf; FAQs Part 54, Q8 (July 28, 2022),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-54.pdf and https://www.cms.gov/files/
document/faqs-part-54.pdf.
73 U.S. House of Representatives Committee on
Oversight and Reform, (Oct. 25, 2022). ‘‘Barriers to
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requirement that medical management
techniques must be reasonable, the
Departments propose to codify that
plans and issuers that utilize reasonable
medical management techniques with
respect to recommended preventive
services would be required to
accommodate any individual for whom
a particular item or service would not be
medically appropriate, as determined by
the individual’s attending provider, by
having a mechanism for covering or
waiving the otherwise applicable cost
sharing for the medically necessary item
or service. Specifically, under these
proposed rules, consistent with
previous guidance,74 if utilizing
reasonable medical management
techniques, a plan or issuer would be
required to have an easily accessible,
transparent, and sufficiently expedient
exceptions process that is not unduly
burdensome on the individual or a
provider (or other person acting as the
individual’s authorized representative)
under which the plan or issuer covers
without cost sharing the recommended
preventive service according to the
frequency, method, treatment, or setting
determined to be medically necessary
with respect to the individual, as
determined by the individual’s
attending provider. The exceptions
process would ensure that an individual
can access medically necessary
recommended preventive services
without cost sharing and would prevent
medical management from functioning
Birth Control: An Analysis of Contraceptive
Coverage and Costs for Patients with Private
Insurance,’’ available at https://
oversightdemocrats.house.gov/sites/evo-subsites/
democrats-oversight.house.gov/files/2022-1025.COR%20PBM-Insurer%20Report.pdf.
74 See FAQs Part XXVI, Q3 (May 11, 2015),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-xxvi.pdf and https://www.cms.gov/
CCIIO/Resources/Fact-Sheets-and-FAQs/
Downloads/aca_implementation_faqs26.pdf; FAQs
Part 31, Q2 (Apr. 20, 2016), available at https://
www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/
our-activities/resource-center/faqs/aca-part-31.pdf
and https://www.cms.gov/cciio/resources/factsheets-and-faqs/downloads/faqs-31_final-4-2016.pdf. See also FAQs Part XII, Q14 (Feb. 20, 2013),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-xii.pdf and www.cms.gov/CCIIO/
Resources/Fact-Sheets-and-FAQs/aca_
implementation_faqs12.html; FAQs Part 51, Q8–9
(Jan. 10, 2022), available at https://www.dol.gov/
sites/dolgov/files/ebsa/about-ebsa/our-activities/
resource-center/faqs/aca-part-51.pdf and https://
www.hhs.gov/guidance/sites/default/files/hhsguidance-documents/FAQs-Part-51.pdf; FAQs Part
54, Q9, (July 28, 2022), available at https://
www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/
our-activities/resource-center/faqs/aca-part-54.pdf
and https://www.cms.gov/files/document/faqs-part54.pdf; FAQs Part 64 (Jan. 22, 2024) available at
https://www.dol.gov/agencies/ebsa/about-ebsa/ouractivities/resource-center/faqs/aca-part-64 and
https://www.cms.gov/files/document/faqs-part64.pdf.
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as an unreasonable barrier to coverage
under section 2713 of the PHS Act. The
Departments are authorized to issue this
proposal, implementing section 2713 of
the PHS Act, by section 9833 of the
Code, section 734 of ERISA, and section
2792 of the PHS Act. Nothing in this
proposal, if finalized, would require an
entity to provide coverage or payments
for a contraceptive for which they have
an exemption under 26 CFR 54.9815–
2713A, 29 CFR 2590.715–2713A, and 45
CFR 147.131 through 45 CFR 147.133.
While prior guidance has generally
focused on the use of an exceptions
process in the context of coverage of
contraceptive services, it has not been
limited to that context. For example, the
Departments’ guidance with respect to
coverage of PrEP to prevent HIV
acquisition has similarly stated that
where a plan or issuer uses reasonable
medical management techniques—such
as covering a generic version of PrEP
without cost sharing and imposing cost
sharing on an equivalent branded
version—a plan or issuer must have an
easily accessible, transparent, and
sufficiently expedient exceptions
process that is not unduly burdensome
on the individual or a provider (or other
individual acting as an authorized
representative) that waives otherwise
applicable cost sharing for the particular
PrEP medication (generic or branded)
for any individual for whom the plan’s
or issuer’s preferred medication ‘‘would
be medically inappropriate, as
determined by the individual’s health
care provider.’’ 75
Therefore, the Departments propose to
reorganize and amend 26 CFR 54.9815–
2713(a)(4), 29 CFR 2590.715–2713(a)(4),
and 45 CFR 147.130(a)(4) by adding a
new paragraph (a)(4)(i) to include
existing language with minor technical
edits for clarity and to add a new
paragraph (a)(4)(ii) to specify that, in
order for a plan’s or issuer’s medical
management techniques with respect to
a recommended preventive service to be
considered reasonable, the plan or
issuer would be required to have an
75 See FAQs Part 47, introduction to Q3 (July 19,
2021), available at https://www.dol.gov/sites/
dolgov/files/EBSA/about-ebsa/our-activities/
resource-center/faqs/aca-part-47.pdf and https://
www.cms.gov/cciio/resources/fact-sheets-and-faqs/
downloads/faqs-part-47.pdf (‘‘[T]he Departments
have clarified in previous guidance that plans and
issuers must accommodate any individual for
whom a particular medication (generic or brand
name) would be medically inappropriate, as
determined by the individual’s health care
provider, by having a mechanism for waiving the
otherwise applicable cost sharing for the brand or
non-preferred brand version. If utilizing reasonable
medical management techniques, plans and issuers
must have an easily accessible, transparent, and
sufficiently expedient exceptions process that is not
unduly burdensome.’’)
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easily accessible, transparent, and
sufficiently expedient exceptions
process that is not unduly burdensome
on a participant, beneficiary, or enrollee
or attending provider 76 (or other person
acting as the individual’s authorized
representative). Under this proposal, an
exceptions process would be required to
ensure that an individual can receive
coverage, without cost-sharing
requirements, for a recommended
preventive service according to the
frequency, method, treatment, or setting
that is medically necessary with respect
to the individual, as determined by the
individual’s attending provider. For
example, a plan or issuer may typically
provide coverage without cost sharing
for only a generic version of a
recommended preventive service; an
individual who experiences side effects
from the covered generic version and
whose attending provider has
determined that the brand-name version
of the recommended preventive services
is medically necessary for the
individual would be able to use the
exceptions process to obtain the brandname version without cost sharing, even
though the plan or issuer typically does
not provide coverage for the brand-name
version (or provides coverage with cost
sharing) This proposed change is
necessary to effectuate the statutory
requirement under PHS Act section
2713 that plans and issuers provide
coverage of recommended preventive
services without cost sharing, because
without such an exceptions process, a
plan’s or issuer’s medical management
techniques could have the effect of
preventing an individual from receiving
coverage without cost sharing of
medically necessary recommended
preventive services.
Under this proposal and consistent
with previous guidance, a plan or issuer
would be required to defer to the
determination of an individual’s
attending provider regarding medical
necessity with respect to the individual.
Previously issued guidance has used the
76 For purposes of these proposed rules,
consistent with previous guidance described in
section I.B of this preamble, an attending provider
would mean an individual who is licensed under
applicable State law, who is acting within the scope
of the provider’s license, and who is directly
responsible for providing care to the patient relating
to the recommended preventive services. Therefore,
a plan, issuer, hospital, or managed care
organization would not be an attending provider.
The reference to an ‘‘attending provider’’ (rather
than simply a ‘‘provider,’’ as referenced in
previously issued guidance) is based on the
Departments’ understanding that an attending
provider is likely to act as an individual’s
authorized representative when pursuing an
exceptions process, and for consistency with the
requirement that an attending provider determine
medical necessity. See also, fn. 33.
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terms ‘‘medically necessary’’ and
‘‘medically appropriate’’
interchangeably when referring to the
appropriate standard for this clinical
determination. However, in these
proposed rules, the Departments
propose to use the phrase ‘‘medically
necessary’’ to establish uniform
terminology and avoid confusion from
the use of different terms.77 The
Departments have determined that a
standard based on ‘‘medical necessity’’
would more accurately comport with
the goal of allowing plans and issuers to
use reasonable medical management
techniques to control costs, while
ensuring every participant, beneficiary,
and enrollee receives coverage without
cost sharing for a form of a
recommended preventive service that is
suitable for the individual.
These proposed rules use the term
‘‘medically appropriate’’ to refer to a
range of potential options that are
generally acceptable to address a
condition or achieve a preventive health
goal. However, a preventive service that
is medically appropriate for most
individuals (to whom the
recommendation or guidelines applies)
may not be medically appropriate to
address a condition or achieve a
preventive health goal in the context of
other health factors specific to a certain
individual. In these cases, another form
of the preventive service would be
medically necessary for that individual.
In making a determination of whether a
service is medically necessary, a
provider might consider factors such as
severity of side effects, differences in
permanence and reversibility of a
recommended preventive service, and
ability to adhere to the appropriate use
of the recommended preventive service,
as determined by the attending
provider. Under these proposed rules, if
the recommended preventive service
covered by the plan or issuer is not
medically appropriate for the
individual, as determined by the
individual’s attending provider, the
plan or issuer would be required,
through the exceptions process, to cover
without cost sharing an alternative
recommended preventive service that
the individual’s attending provider
determines is medically necessary for
that individual.78
77 The Departments proposal to use the term and
standard of ‘‘medically necessary’’ with respect to
the exceptions process in these proposed rules
should not be interpreted as changing the standard
or meaning of the Departments’ previously
published guidance with respect to the coverage of
preventive services.
78 Similarly, if the plan or issuer uses reasonable
medical management techniques to limit the
frequency or setting under which a recommended
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For example, if a plan typically covers
a generic tobacco cessation product
(Gum A) without cost sharing, but an
individual is allergic to an inactive
ingredient in Gum A and the
individual’s attending provider
determines that Gum B is medically
necessary for the individual to achieve
the preventive health benefits of the
recommended preventive service
without adverse side effects, then the
plan or issuer would be required to
provide coverage of Gum B without cost
sharing through the exceptions process.
However, if Gum A is medically
appropriate for the individual, the plan
would not be required to provide
coverage of Gum B without cost sharing
through the exceptions process solely
on the basis that Gum B is also
medically appropriate for the
individual.
The Departments request comment on
the terminology used in the context of
the exceptions process. The
Departments also request comment
generally on any operational or
technical barriers to implementing the
proposed requirement that plans and
issuers defer to the attending provider’s
determination of medical necessity
using an exceptions process for
recommended preventive services
separate from the required internal
claims and appeals process,79 and what
additional guidance or requirements
would support implementation of this
requirement (for example, with respect
to documentation of the determination
or communication with the individual
or their attending provider or other
representative regarding a request for a
coverage exception).
Consistent with prior guidance, the
Departments would determine whether
a plan’s or issuer’s exceptions process is
easily accessible, transparent,
sufficiently expedient, and not unduly
burdensome based on all relevant facts
and circumstances, including whether
and how a plan or issuer provides
notice of the availability of an
exceptions process and what steps an
individual or their provider or other
authorized representative is required to
preventive service is covered without cost sharing
and the individual’s attending provider makes a
determination that a different frequency or setting
is medically necessary for a participant, beneficiary,
or enrollee, under these proposed rules, the plan or
issuer would be required to provide coverage
without cost sharing for the recommended
preventive service according to the frequency or
setting the individual’s attending provider
determines to be medically necessary with respect
to the individual.
79 See section 2719 of the PHS Act (42 U.S.C.
300gg–19); 26 CFR 54.9815–2719; 29 CFR
2590.715–2719; and 45 CFR 147.136.
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initiate and complete in order to seek an
exception.80
For this purpose, the Departments
would consider an exceptions process to
be easily accessible if plan
documentation includes relevant
information regarding the exceptions
process under the plan or coverage,
including how to access the exceptions
process without initiating an appeal
pursuant to the plan’s or issuer’s
internal claims and appeals procedures,
the types of reasonable information the
plan or issuer requires as part of a
request for an exception, and contact
information for a representative of the
plan or issuer who can answer questions
related to the exceptions process. The
Departments would also encourage
plans and issuers to make this
information available in a format and
manner that is readily accessible, such
as electronically (on a website, for
example) and on paper. The
Departments request comment on how
plans and issuers could ensure that this
information is readily available and
accessible, such as any specific formats,
mechanisms, or other best practices that
could promote access to information
about the exceptions process.
The Departments would consider an
exceptions process to be transparent if,
at a minimum, the information relevant
to the exceptions process (including, if
used, a standard exceptions process
form with instructions) is included and
prominently displayed in plan
documents (including in, or along with,
the summary plan description for plans
subject to ERISA), and in any other plan
materials, including on the plan’s or
issuer’s website, that describe the terms
of the plan’s or issuer’s coverage of
preventive services. The Departments
request comment on the extent to which
plans and issuers currently make such
information available and accessible
and to whom (for example, to
prospective and current participants,
beneficiaries, and enrollees and their
providers), whether any additional
individuals or groups should have
access to this information if this
proposal is finalized, and whether the
Departments should finalize more
specific standards regarding
transparency or accessibility of
information about the exceptions
process in regulation.
The Departments would consider an
exceptions process to be sufficiently
expedient if it makes a determination of
a claim according to a timeframe and in
80 FAQs Part 54, Q9 (July 28, 2022), available at
https://www.dol.gov/sites/dolgov/files/EBSA/aboutebsa/our-activities/resource-center/faqs/aca-part54.pdf and https://www.cms.gov/files/document/
faqs-part-54.pdf.
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a manner that takes into account the
nature of the claim (for example, preservice or post-service) and the medical
exigencies involved for a claim
involving urgent care. The Departments
request comment on appropriate
additional standards for an exceptions
process to be considered sufficiently
expedient under these proposed rules.
Specifically, the Departments request
comment on whether the regulations
should contain specific timeframes, and
if so, what timeframes would be
appropriate, as well as whether the
regulations should specify the manner
in which plans and issuers should issue
a determination (for example, on paper,
electronically, or both).
For example, as the Departments
specifically noted in prior guidance, it
would be unduly burdensome on
participants, beneficiaries, and enrollees
for a plan or issuer to deny coverage
without cost sharing and require an
individual or their authorized
representative to file an appeal under
the plan’s or issuer’s process for
appealing adverse benefit
determinations in order to obtain an
exception to the standard contraceptive
coverage policy.81 Under 26 CFR
54.9815–2719, 29 CFR 2560.503–1, 29
CFR 2590.715–2719, and 45 CFR
147.136, plans and issuers must render
a determination on an internal appeal in
no more than 15 calendar days (in the
case of a pre-service claim) or no more
than 30 calendar days (in the case of a
post-service claim). Because most
claims for recommended preventive
services likely would not meet the
definition of a ‘‘claim involving urgent
care,’’ 82 the expedited timelines that
81 FAQs Part 54, Q10 (July 28, 2022), available at
https://www.dol.gov/sites/dolgov/files/EBSA/aboutebsa/our-activities/resource-center/faqs/aca-part54.pdf and https://www.cms.gov/files/document/
faqs-part-54.pdf. An adverse benefit determination
means an adverse benefit determination as defined
in 29 CFR 2560.503–1, as well as any rescission of
coverage, as described in 45 CFR 147.128 (whether
or not, in connection with the rescission, there is
an adverse effect on any particular benefit at that
time). See 26 CFR 54.9815–2719, 29 CFR 2560.503–
1, 29 CFR 2590.715–2719, and 45 CFR 147.136 for
regulations related to internal claims and appeals
processes.
82 A ‘‘claim involving urgent care,’’ defined at 29
CFR 2560.503–1(m)(1) and adopted at 26 CFR
54.9815–2719(b)(2)(ii)(B), 29 CFR 2590.715–
2719(b)(2)(ii)(B), and 45 CFR 147.136(b)(2)(ii)(B), is
‘‘any claim for medical care or treatment with
respect to which the application of the time periods
for making non-urgent care determinations—(A)
Could seriously jeopardize the life or health of the
claimant or the ability of the claimant to regain
maximum function, or, (B) In the opinion of a
physician with knowledge of the claimant’s medical
condition, would subject the claimant to severe
pain that cannot be adequately managed without
the care or treatment that is the subject of the
claim.’’ Plans and issuers generally must render
determinations regarding claims involving urgent
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85761
apply to an appeal of a claim involving
urgent care likely would not apply to a
claim for a recommended preventive
service. In the absence of a separate
exceptions process, an individual could
therefore be required to pursue a
standard internal appeals process to
seek coverage of a recommended
preventive service, which could result
in a coverage delay of up to 30 calendar
days for a post-service claim or 15
calendar days for a pre-service claim.
Such a delay, when combined with the
ability of plans and issuers to use
medical management techniques to
limit coverage of recommended
preventive services outside of an
exceptions process, is not aligned with
the statutory requirement to provide
coverage without cost sharing for all
required preventive services, because
many individuals would be compelled
to pay out-of-pocket for the
recommended preventive service
determined by their attending provider
to be medically necessary or accept the
form of the recommended preventive
service covered by the plan or issuer as
a result of medical management
techniques, even if it may cause adverse
effects that an alternate form of the
recommended preventive service would
not cause.
Therefore, a plan or issuer would not
have an easily accessible, transparent,
and sufficiently expedient exceptions
process that is not unduly burdensome
on the individual (or provider or other
person acting as the individual’s
authorized representative) under these
proposed rules if the plan or issuer
requires participants, beneficiaries, or
enrollees to appeal an adverse benefit
determination using the plan’s or
issuer’s internal claims and appeals
process as the means to obtain an
exception. The Departments request
comment on whether plans and issuers
should be permitted to require an
individual or their authorized
representative to use the existing
process for urgent care claims under 26
CFR 54.9815–2719(b)(2)(ii)(B), 29 CFR
2560.503–1(b)(2)(ii)(B), and 45 CFR
147.136(b)(2)(ii)(B) (regardless of
whether the recommended preventive
service meets the definition of a ‘‘claim
involving urgent care’’) to obtain an
exception to the standard preventive
services coverage policy. The
Departments also request comment on
whether a health plan that is subject to
the essential health benefit (EHB)
prescription drug exception process
care as soon as possible, accounting for medical
exigencies, and not later than 72 hours after receipt
of the claim by the plan.
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standards at 45 CFR 156.122(c) 83
should be permitted to require an
individual or their authorized
representative to use the existing
standard or expedited prescription drug
exception request process when seeking
an exception for a recommended
preventive service that is a prescription
drug, or all recommended preventive
services.
The Departments previously noted
that plans and issuers may develop a
standard exceptions process form with
instructions as part of ensuring that the
plan’s or issuer’s exceptions process is
easily accessible, transparent,
sufficiently expedient, and not unduly
burdensome on the individual or
provider (or other individual acting as a
patient’s authorized representative).84 A
standardized form that is not
unnecessarily long and that has clear
instructions could reduce burden on
individuals or their authorized
representative. The proposed
amendments at 26 CFR 54.9815–
2713(a)(4)(ii), 29 CFR 2590.715–
2713(a)(4)(ii), and 45 CFR
147.130(a)(4)(ii) would not require that
plans and issuers develop and utilize a
standard exceptions process form.
However, the Departments continue to
encourage plans and issuers to make
any such standard exceptions process
form, whether developed by a plan or
issuer, or the Medicare Part D Coverage
Determination form, readily available,
both in paper and electronically (such
as on a website). The Departments
request comment on whether the
Medicare Part D Coverage
Determination form, or another existing
format, would be an appropriate model
for plans and issuers implementing a
standardized exceptions process under
these proposed rules. Alternatively, the
Departments request comment on
whether it would be beneficial to
interested parties if the Departments
developed and made available a new
standard form for an exceptions process,
what information should be included in
any such form, and whether use of such
a standardized form should be required
83 Separately from requirements related to
appeals of adverse benefit determinations, HHS
regulations at 45 CFR 156.122(c) state that a health
plan does not provide essential health benefits
(EHBs) unless it provides a standard and expedited
exceptions process for prescription drugs through
which an enrollee, the enrollee’s designee, or the
enrollee’s prescribing physician (or other
prescriber) can receive a coverage determination
within 72 hours (for a standard exception) or no
later than 24 hours (for an expedited exception, in
the case of exigent circumstances).
84 FAQs Part 54, Q9 (July 28, 2022), available at
https://www.dol.gov/sites/dolgov/files/EBSA/aboutebsa/our-activities/resource-center/faqs/aca-part54.pdf and https://www.cms.gov/files/document/
faqs-part-54.pdf.
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or optional. The Departments anticipate
that most, if not all, plans and issuers
have an existing exceptions process for
recommended preventive services, or a
process for other services that can be
adapted to meet these requirements for
recommended preventive services at
minimal cost. The Departments request
comment on this assumption and on all
other aspects of this proposal.
2. Coverage of Contraceptive Items
Section 2713(a)(4) of the PHS Act was
enacted to ensure that plans and issuers
cover women’s preventive health needs.
Contraceptive coverage is an essential
component of women’s health care, as
recognized by its inclusion in the
HRSA-supported Guidelines, in part
because contraception is effective at
reducing unintended pregnancies and
associated negative maternal-infant
outcomes.85 Unintended pregnancies,
which account for approximately 42
percent of pregnancies annually in the
United States, are a major public health
concern.86 87 Coverage requirements that
promote equitable access to medically
appropriate contraceptive items and
services are an essential component of
high-quality reproductive health care
with wide-ranging social and economic
benefits.88 Research shows that many
women are not using their contraceptive
85 Nelson, H., Darney, B., Ahrens, K., Burgess, A.,
Jungbauer, R., Cantor, A., Atchison, C., Eden, K.,
Goueth, R., Fu, R. (2002). ‘‘Associations of
Unintended Pregnancy With Maternal and Infant
Health Outcomes: A Systematic Review and Metaanalysis,’’ JAMA, available at https://
jamanetwork.com/journals/jama/fullarticle/
2797874.
86 See CDC, ‘‘Reproductive Health, Unintended
Pregnancy,’’ available at https://www.cdc.gov/
reproductive-health/hcp/unintended-pregnancy/
index.html.
87 See Bradford, K., Costanza, K., Fouladi, F., Hill,
T., Nguyen, K., and Speer, K., NCSL (2023).
‘‘Supporting Moms’ Health in the Postpartum
Period,’’ available at https://www.ncsl.org/health/
supporting-moms-health-in-the-postpartum-period;
Nelson, et al., supra fn. 75; Cruz-Bendezu´, A.,
Lovell, G. Roche, B., Perkins, M., Blake-Lamb, T.,
Taveras, E., and Simione M. (2020). ‘‘Psychosocial
status and prenatal care of unintended pregnancies
among low-income women,’’ BMC Pregnancy and
Childbirth, available at https://
bmcpregnancychildbirth.biomedcentral.com/
articles/10.1186/s12884-020-03302-2; Blake, S.,
Kiely, Gard, C., El-Mohandes, A., El-Khorazaty,
M.N. (2007). ‘‘Pregnancy Intentions and Happiness
Among Pregnant Black Women at High Risk for
Adverse Infant Health Outcomes,’’ American
Journal of Public Health, available at https://
doi.org/10.1363/3919407; Finer, L., and Zolna, M.
(2014). ‘‘Shifts in intended and unintended
pregnancies in the United States, 2001–2008,’’
American Journal of Public Health, available at
https://pubmed.ncbi.nlm.nih.gov/24354819.
88 Id., see also Sonfield, A., Hasstedt, K.,
Kavanaugh, M., and Anderson, R., (2013). ‘‘The
Social and Economic Benefits of Women’s Ability
to Determine Whether and When to Have
Children,’’ Guttmacher Institute, available at
https://www.guttmacher.org/sites/default/files/
report_pdf/social-economic-benefits.pdf.
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of choice, for reasons that include
concerns about side effects, cost, lack of
availability, or inability to get a provider
appointment.89 Coverage that allows
individuals to identify and obtain a
medically necessary contraceptive
(accounting for variables such as
hormonal properties, side effects, and
delivery mechanisms, among other
factors) without cost sharing could
improve quality of life, reduce behaviors
such as discontinuing contraception,
and result in more effective use of
contraception to prevent unintended
pregnancy.90 As noted in the preamble
to the 2023 proposed rules, increased
contraceptive coverage can improve
access to care, and therefore also help to
address racial inequities in reproductive
health care that contribute to lifelong
disproportionate health outcomes for
women in underserved communities,
including disparate maternal health
outcomes.91
Additionally, there has been
significant activity related to coverage of
contraceptive services and several new
developments, including legal
developments, that have affected
women’s needs regarding access to
affordable contraception since the
publication of the July 2010 interim
final rules. The Departments continue to
receive complaints and are aware of
other reports documenting plans’ and
issuers’ failure to provide coverage of
the full range of contraceptive services.
Coverage issues leading to lack of access
to contraception were also substantiated
in comments received in response to the
OTC Preventive Products RFI. Other
developments have included the Dobbs
decision and subsequent State-level
restrictions on access to abortion and
emergency contraception, which have
made it more challenging for women in
some States to obtain contraception and
quality family planning care, including
because health care providers have been
forced to close or chosen to relocate to
89 Frederiksen, B., Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-theunited-states-a-closer-look-at-experiencespreferences-and-coverage-findings.
90 Steinberg, J., Marthey, D., Xie, L., Boudreaux,
M. (2021). ‘‘Contraceptive method type and
satisfaction, confidence in use, and switching
intentions,’’ Contraception, available at https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC8286312.
91 See 88 FR 7236, 7241 (Feb. 2, 2023), citing
Sutton, M. Y., Anachebe, N. F., and Skanes H.
(2021). ‘‘Racial and Ethnic Disparities in
Reproductive Health Services and Outcomes,
2020,’’ Obstetrics and Gynecology, available at
https://doi.org/10.1097/AOG.0000000000004224;
White House Blueprint for Addressing the Maternal
Health Crisis (2022), available at https://
www.whitehouse.gov/wp-content/uploads/2022/06/
Maternal-Health-Blueprint.pdf.
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a different State; 92 Executive Orders
related to reproductive health care; and
FDA approval of the first daily OTC oral
contraceptive. As a result, the
Departments have determined that it is
necessary to propose amendments to the
regulations governing how plans and
issuers cover contraception and, as
discussed in section II.B of this
preamble, how they communicate
information about this coverage to
participants, beneficiaries, and
enrollees.
The Departments are interested in
minimizing barriers to coverage and
expanding the scope of coverage
without cost sharing for all
recommended preventive services, in
alignment with section 2713 of the PHS
Act. The Departments also recognize
that the proposals described in this
section II.A.2 of this preamble, if
finalized, could require significant
changes to current plan and issuer
operations. Therefore, the Departments
propose an incremental approach in this
rulemaking with respect to the types of
recommended services addressed that is
focused initially on expanding coverage
of contraception. This incremental
approach would facilitate
implementation for plans, issuers, and
other interested parties and allow the
Departments to gather additional
feedback on challenges and benefits of
adopting these proposed policies before
considering whether and how to
propose similar requirements with
respect to other recommended
preventive services. Focusing first on
contraceptive items is appropriate due
to ongoing and widely reported
concerns regarding challenges faced by
consumers in accessing contraceptive
items and services without cost sharing,
as well as recent developments affecting
access to reproductive health care.93
92 See, e.g., Murphy, C., Shin, P., Jacobs, F., and
Johnson, K. (2024). ‘‘In States with Abortion Bans,
Community Health Center Patients Face Challenges
Getting Reproductive Health Care,’’ Commonwealth
Fund, available at https://
www.commonwealthfund.org/blog/2024/statesabortion-bans-community-health-center-patientsface-challenges-getting; Harper, C., Brown, K., and
Arora, K. (2024). ‘‘Contraceptive Access in the US
Post-Dobbs,’’ JAMA Internal Medicine, available at
https://jamanetwork.com/journals/jamainternal
medicine/fullarticle/2823682; Qato, D., Myerson, R.,
Shooshtari, A., Guadamuz, J., Alexander, G.C.,
(2024). ‘‘Use of Oral and Emergency Contraceptives
After the US Supreme Court’s Dobbs Decision,’’
available at https://jamanetwork.com/journals/
jamanetworkopen/fullarticle/2820370.
93 See, e.g., Adler, A., Biggs, A.M., Kaller, S.,
Schroeder, R., Ralph, L. (2023). ‘‘Changes in the
Frequency and Type of Barriers to Reproductive
Health Care from 2017 to 2021,’’ JAMA Network
Open, available at https://www.ncbi.nlm.nih.gov/
pmc/articles/PMC10087056; Qato, D., Myerson, R.,
Shooshtari, A., Guadamuz, J., Alexander, G.C.,
(2024). ‘‘Use of Oral and Emergency Contraceptives
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As described in FAQs Part 51, Q9,
FAQs Part 54, Q8, and sections I.B and
II.A.2 of this preamble, the Departments
continue to receive complaints and are
aware of other credible reports that
some plans and issuers frequently
restrict access to contraceptive items
and services that should be covered
without cost sharing. For instance, in
addition to widespread denials of
exceptions process requests as described
in section II.A.1 of this preamble, the
October 2022 Oversight Committee
report identified at least 34 different
contraceptive items that were
commonly excluded from coverage or
for which cost-sharing requirements
often were applied.94 Additionally, a
recent investigation by the Vermont
Department of Financial Regulation, the
agency responsible for regulating issuers
in that State, found that three issuers in
Vermont violated State and Federal law
by failing to provide coverage of
contraceptive services without cost
sharing. The investigation found that
between 2017 and 2021, the issuers
inappropriately charged patients $1.5
million for contraceptive items and
services that should have been provided
free of any out-of-pocket costs, resulting
in a finding that 9,000 people were
entitled to receive restitution for cost
sharing that was incorrectly applied for
contraceptive services.95 The
investigation prompted a Congressional
request to the Government
Accountability Office for an
investigation into plan and issuer
compliance with ACA requirements to
cover contraceptive items without cost
After the US Supreme Court’s Dobbs Decision,’’
available at https://jamanetwork.com/journals/
jamanetworkopen/fullarticle/2820370; Harper, C.,
Brown, K., and Arora, K. (2024). ‘‘Contraceptive
Access in the US Post-Dobbs,’’ JAMA Internal
Medicine, available at https://jamanetwork.com/
journals/jamainternalmedicine/fullarticle/2823682;
Kavanaugh, M. and Friedrich-Karnik, A. (2024).
‘‘Has the Fall of Roe changed contraceptive access
and use? New research from four US states offers
critical insights,’’ Health Affairs Scholar, available
at https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC10986283; and American Academy of
Pediatrics, (updated July 2023) ‘‘The Importance of
Access to Contraception—Barriers to accessing
contraception’’, available at https://www.aap.org/
en/patient-care/adolescent-sexual-health/equitableaccess-to-sexual-and-reproductive-health-care-forall-youth/the-importance-of-access-tocontraception.
94 U.S. House of Representatives Committee on
Oversight and Reform, ‘‘Barriers to Birth Control:
An Analysis of Contraceptive Coverage and Costs
for Patients with Private Insurance’’ (Oct. 25, 2022),
available at https://oversightdemocrats.house.gov/
sites/evo-subsites/democrats-oversight.house.gov/
files/2022-10-25.COR%20PBMInsurer%20Report.pdf.
95 State of Vermont Department of Financial
Regulation (Nov. 13, 2023). ‘‘Contraceptive Services
Claims Restitution Information,’’ available at
https://dfr.vermont.gov/contraceptive-servicesclaims-restitution-information.
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sharing.96 In addition, the Centers for
Medicare & Medicaid Services, as part
of targeted market conduct
examinations conducted on behalf of
HHS, has identified multiple violations
of the requirements of section 2713(a)(1)
of the PHS Act and implementing
regulations related to contraceptive
coverage and continues to investigate
additional complaints alleging
violations.97 Additional reports of
noncompliance documented by
members of Congress, advocacy
organizations, and media reports were
cited by the Secretaries in their June 27,
2022 letter to group health plan
sponsors and issuers.98 Given these
reported instances of continued
obstacles for women in accessing
contraception, and within the context of
several States’ efforts to restrict access to
reproductive health care following the
Dobbs decision, the Departments have
determined it is appropriate for these
proposed rules to begin with addressing
barriers to contraceptive services.
Furthermore, focusing on
contraception is consistent with recent
Executive Orders. As described in
section I.C of this preamble, President
Biden issued E.O. 14101, which
directed the Secretaries to consider
actions that would, to the greatest extent
permitted by law, ensure coverage of
comprehensive contraceptive care,
including all contraceptives approved,
cleared, or granted by the FDA, without
cost sharing for participants,
beneficiaries, and enrollees; and
streamline the process for patients and
health care providers to request
coverage, without cost sharing, of
medically necessary contraception.
Further, section 2(b) of E.O. 14101
instructed the Secretaries to consider
actions that would promote increased
access to affordable OTC
96 Sen. Bernie Sanders (June 17, 2024). Letter to
Hon. Gene Dodaro, Comptroller General of the
United States, available at https://
www.documentcloud.org/documents/2476479061724-gao-aca-contraception-coverage-letter.
97 CMS, ‘‘Compliance and Enforcement, Federal
Market Conduct Examination Final Reports,’’
available at https://www.cms.gov/marketplace/
private-health-insurance/consumer-protectionsenforcement.
98 See, e.g., Secretaries Becerra, Yellen, and Walsh
(June 27, 2022). Letter on the ACA contraceptive
coverage requirement, available at https://
www.dol.gov/sites/dolgov/files/ebsa/laws-andregulations/laws/affordable-care-act/for-employersand-advisers/letter-from-secretaries-becerra-yellenand-walsh-on-the-aca-contraceptive-coveragerequirement.pdf (highlighting reports of
noncompliance documented by Members of the
U.S. House of Representatives (in 2021 and 2022)
and the U.S. Senate (in 2021 and 2022), the
National Women’s Law Center, other nonprofit
organizations, and media reports).
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contraception.99 Consistent with E.O.
14101, and in consideration of the
availability of OTC oral contraceptives,
these proposed rules would promote
coverage and streamline access to all
medically necessary contraception,
including the newly FDA-approved
OTC daily oral contraceptive, by
removing prescription and cost barriers
for consumers.
The Departments acknowledge the
possibility that increasing coverage
without cost sharing for recommended
preventive services, as discussed in this
section II.A.2 of this preamble, could
lead to greater demand for those
services and potentially higher prices
charged by providers. These increased
costs could result in higher costs to
consumers, both in the form of higher
premiums for people with insurance
and in the form of higher out-of-pocket
costs for people who do not use
insurance coverage to obtain OTC
contraceptive products. The potential
increases in cost further justify the
incremental approach taken in these
proposed rules. In addition, comments
in response to the OTC Preventive
Products RFI suggested that requiring
coverage of all OTC preventive products
may be challenging for some types of
preventive care. For these reasons, the
Departments propose to amend the
preventive services regulations with
respect to only contraceptive items 100 at
this time by inserting a new paragraph
(a)(6) at 26 CFR 54.9815–2713, 29 CFR
2590.715–2713, and 45 CFR 147.130.
The Departments’ issuance of these
proposals implementing section 2713 of
the PHS Act is authorized by section
9833 of the Code, section 734 of ERISA,
and section 2792 of the PHS Act.
First, the Departments propose to
define the terms ‘‘drug-led combination
product’’ 101 in proposed new paragraph
(a)(6)(i)(A) and ‘‘therapeutic equivalent’’
in proposed new paragraph (a)(6)(i)(B)
for purposes of the proposed new
paragraph (a)(6). Second, the
Departments propose in proposed new
paragraph (a)(6)(ii) to require that plans
and issuers cover, without requiring a
99 88
FR 41815 at 41816 (June 23, 2023).
section II.A.2 of the preamble to these
proposed rules for comment solicitation regarding
whether to expand the proposed coverage
requirements to other recommended preventive
services.
101 The Departments are proposing to define the
term ‘‘drug-led combination products’’ in these
proposed rules instead of the term ‘‘drug-led
devices’’ used in FAQs Part 64 to align these
proposed rules with existing definitions at 21 CFR
3.2(e). The change in terminology should not be
interpreted to suggest that the terms are
interchangeable, as the term ‘‘drug-led combination
products’’ encompasses ‘‘drug-led devices’’ as well
as other drug-led combination products for which
the FDA evaluates therapeutic equivalence.
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100 See
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prescription and without imposing costsharing requirements, recommended
contraceptive items that are available
OTC and for which the applicable
recommendation or guideline does not
require a prescription. Third, the
Departments propose in proposed new
paragraph (a)(6)(iii) that, in order for
medical management techniques to be
considered reasonable, plans and
issuers would be required to utilize a
therapeutic equivalence approach for
recommended contraceptive drugs and
drug-led combination products.
The Departments request comment on
whether to finalize these policies only
with respect to contraception as
proposed, or to instead finalize these
policies with respect to all preventive
services, or with respect to a larger
subset of preventive services. In
particular, the Departments request
comment on issues related to coverage
of additional specific OTC preventive
products without a prescription (for
example, tobacco cessation items) in
addition to OTC contraceptive items, or
all OTC preventive products without a
prescription. The Departments also
request comment on the experiences
(particularly with respect to
administrative challenges, consumer
experiences, and costs) of any plans and
issuers that currently provide coverage
for any OTC preventive products
without requiring a prescription, and
how those experiences could inform the
implementation of these proposed rules,
if finalized. The Departments further
request comment on whether and to
what extent these proposals could affect
the ability of plans and issuers to
negotiate or otherwise limit costs for
contraceptive items, including OTC
contraceptive items and contraceptive
drugs and drug-led combination
products, and what additional
rulemaking or guidance would be
necessary to ensure that plans and
issuers retain the ability to do so.
Along with the incremental approach
proposed in this rulemaking focused on
contraception, the Departments
anticipate issuing another notice of
proposed rulemaking in the near future
to address additional issues related to
coverage of preventive services more
generally.
a. Coverage of OTC Contraceptive Items
Without Cost Sharing
As discussed in section I.B of this
preamble, the Departments’ previously
issued guidance provides that
preventive health care items generally
available OTC to patients (such as folic
acid and certain contraceptive products,
including contraceptive sponges,
spermicides, and emergency
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contraception (levonorgestrel)) must be
covered without cost sharing under
section 2713 of the PHS Act only when
prescribed by a health care provider.102
This approach reflected the traditional
role of health coverage in providing
benefits for health care items and
services for which there is provider
involvement. However, the FDA’s
approval of a daily OTC oral
contraceptive without a prescription, in
combination with the reasons outlined
earlier in this preamble, have prompted
the Departments to revisit this
approach. As commenters to the OTC
Preventive Products RFI noted, neither
section 2713 of the PHS Act and its
implementing regulations nor the
current HRSA-supported Guidelines
require a prescription as a condition of
coverage without cost sharing for
recommended preventive services that
are available OTC, except to the extent
a particular recommendation or
guideline requires that an individual is
prescribed an item or service. Therefore,
with respect to contraceptive items that
can be lawfully obtained 103 by a
participant, beneficiary, or enrollee
without a prescription and for which
the applicable recommendation or
guideline does not require a
prescription, the Departments propose
in new paragraph (a)(6)(ii) that a plan or
issuer would not be considered to
comply with 26 CFR 54.9815–
2713(a)(1), 29 CFR 2590.715–2713(a)(1),
and 45 CFR 147.130(a)(1), unless the
plan or issuer provides coverage for the
contraceptive item without requiring a
prescription and without imposing any
cost-sharing requirements. As noted by
many commenters to the OTC
Preventive Products RFI, out-of-pocket
costs and prescription requirements
make it more difficult for women to
access contraception, including
contraceptive items that are available
without a prescription, such as oral
contraceptives recently approved by the
FDA for OTC sale. The Departments
agree with commenters that these
102 See FAQs Part XII, Q4 and Q15 (Feb. 20,
2013), available at https://www.dol.gov/sites/
dolgov/files/EBSA/about-ebsa/our-activities/
resource-center/faqs/aca-part-xii.pdf and
www.cms.gov/CCIIO/Resources/Fact-Sheets-andFAQs/aca_implementation_faqs12.html; FAQs Part
54, Q5–6 (July 28, 2022), available at https://
www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/
our-activities/resource-center/faqs/aca-part-54.pdf
and https://www.cms.gov/files/document/faqs-part54.pdf.
103 The Departments intend for this proposal to
apply only to contraceptive items that are legally
sold without a prescription. Nothing in this
proposal would require a plan or issuer to provide
coverage without cost sharing for a contraceptive
item for which the FDA requires a prescription, if
a participant, beneficiary, or enrollee acquires the
item without a prescription.
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obstacles present greater challenges to
women in underserved communities,
including those with lower incomes and
who are members of underserved racial
and ethnic groups, reinforcing structural
barriers to health care and contributing
to reproductive health disparities.
Although some plans and issuers have
voluntarily, or as required by State
law,104 provided coverage of OTC
contraceptive items without a
prescription and without cost-sharing
requirements or with limits on cost
sharing, the Departments understand
that many women lack such coverage. In
response to a specific question regarding
how commonly plans and issuers
provide coverage for OTC preventive
products without requiring a
prescription, many commenters asserted
that most plans and issuers cover OTC
preventive products only when they are
prescribed. The Departments have
determined, therefore, that requiring
(rather than encouraging) coverage of
OTC contraceptive items without cost
sharing and without a prescription, as
proposed in these rules, is critical to
ensuring that coverage requirements
provide women with access to
contraceptives as required under section
2713 of the PHS Act and the applicable
HRSA-supported Guidelines, and to
realizing the goal of promoting access to
reproductive health care.
Under this proposal, the requirement
to cover OTC contraceptive items would
be subject to the specific coverage
requirements applicable to all
recommended preventive services in 26
CFR 54.9815–2713, 29 CFR 2590.715–
2713, and 45 CFR 147.130. However, the
Departments recognize that the
provision and coverage of OTC
contraceptive items present unique
issues that plans and issuers may not
encounter when covering other
recommended services. Therefore, the
following sections of this preamble
discuss how plans and issuers would be
expected to comply with certain
104 CA, CO, MD, NM, NJ, NY, and WA require
some coverage of OTC contraceptive items. See KFF
(Updated March 2024). ‘‘State Private Insurance
Coverage Requirements for OTC Contraception
Without a Prescription,’’ available at https://
www.kff.org/other/state-indicator/state-privateinsurance-coverage-requirements-for-otccontraception-without-a-prescription. See, e.g., Cal.
Health & Saf. Code section 1367.25(b)(1)(A) (barring
prescription requirements for OTC FDA-approved
contraceptive drugs, devices, and products and
requiring point-of-sale coverage of OTC
contraception at in-network pharmacies); Md. Code,
Ins. section 15–826.1 (requiring coverage without a
prescription for all FDA-approved contraceptive
drugs available OTC and limiting cost-sharing for
OTC contraceptive drugs to the amount that would
apply to the same drug dispensed under a
prescription).
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existing requirements with respect to
coverage of OTC contraceptive items.105
(1) In-Network and Out-of-Network
Coverage of OTC Contraceptive Items
Under section 2713 of the PHS Act
and its implementing regulations at 26
CFR 54.9815–2713(a)(3)(i) and (ii), 29
CFR 2590.715–2713(a)(3)(i) and (ii), and
45 CFR 147.130(a)(3)(i) and (ii), a plan
or issuer is not required to provide
coverage for recommended preventive
services delivered by an out-of-network
provider if the plan or issuer has a
network of providers. Similarly, nothing
precludes a plan or issuer that has a
network of providers from imposing
cost-sharing requirements on
recommended preventive services
delivered by an out-of-network
provider. However, if a plan or issuer
does not have a provider in its network
who can provide a recommended
preventive service, the plan or issuer
must cover the recommended
preventive service, without cost sharing,
when furnished by an out-of-network
provider.106 Nothing under section 2713
of the PHS Act nor its implementing
regulations requires a plan or issuer to
establish a provider network.
The Departments are not proposing to
amend these requirements with respect
to OTC contraceptive items. Therefore,
a plan or issuer that has a network of
providers that can provide OTC
contraceptive items would not be
required to provide coverage, or waive
cost sharing, for OTC contraceptive
items that are provided by an out-ofnetwork provider. For example, if a plan
or issuer has a network of pharmacies
(including mail-order pharmacies) that
can provide OTC contraceptive items
without a prescription, the plan or
issuer would not be required to provide
coverage (nor waive cost sharing) if a
participant, beneficiary, or enrollee
obtains a covered OTC contraceptive
item at an out-of-network pharmacy or
other retailer.107
The Departments understand, based
on responses to the OTC Preventive
Products RFI and communications with
plans and issuers regarding coverage of
105 The requirements regarding office visits would
not be relevant with respect to coverage of OTC
contraceptive items, and the requirements regarding
timing do not raise unique issues with respect to
OTC contraceptive items.
106 See FAQs Part XXII, Q3 (Feb. 20, 2013),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-xii.pdf and https://www.cms.gov/
cciio/resources/fact-sheets-and-faqs/aca_
implementation_faqs12.
107 Nothing in the statute or preventive services
regulations prevents a plan or issuer from providing
coverage without cost sharing for out-of-network
recommended preventive services, and the
Departments encourage plans and issuers to do so.
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85765
OTC COVID–19 diagnostic tests during
and after the COVID–19 PHE, that
network contracts between plans and
issuers and pharmacies that are located
in a retail store typically include only
the pharmacies as the in-network
providers. The retail stores at which the
pharmacies are located are treated as
separate entities. In these cases, the
pharmacy point of sale would be
considered an in-network provider at
which an OTC contraceptive would be
covered without cost sharing, but a nonpharmacy point of sale (for example, a
cash register, self-check-out, or vending
machine in the front of a retail store,
unaffiliated with the pharmacy
department) would not be considered an
in-network provider. Although
participants, beneficiaries, and enrollees
would typically be able to purchase
OTC contraceptives from the front of the
retail store, these proposed rules would
not require a plan or issuer with a
network of pharmacies to also cover
without cost sharing OTC contraceptive
items that are purchased at a retail store
that is co-located with an in-network
pharmacy. If the plan or issuer has a
network of pharmacies that provide
coverage for OTC contraceptive items
without cost sharing, that plan or issuer
would be considered to have a network
of providers to provide benefits for OTC
contraceptive items and therefore would
not be required to cover OTC
contraceptive items purchased at a retail
store that is not part of its network. For
example, emergency contraception
could be available in multiple locations
in the same retail store: behind the
pharmacy counter through an innetwork pharmacy where a consumer
typically provides health coverage
information to allow the pharmacy to
process a claim for coverage; and ‘‘off
the shelf’’ in a non-pharmacy section of
the same store. This could result in a
participant, beneficiary, or enrollee
being able to access an OTC
contraceptive item at an in-network
pharmacy without paying any out-ofpocket costs at the pharmacy counter
point of sale, while being liable for the
full cost of the identical OTC
contraceptive item if it was purchased at
a non-pharmacy point of sale. The
Departments request comment on the
potential impact on consumers,
pharmacies, and retail stores with this
proposed approach.
The Departments would expect that
in-network coverage for OTC
contraceptive items and services would
be provided in a manner that is
comparable to coverage for other
recommended preventive services. For
example, the Departments would expect
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that a plan or issuer that does not
preference the use of a mail-order
pharmacy for coverage of prescriptiononly recommended preventive services
would not preference the use of a mailorder pharmacy for coverage of OTC
contraceptives. As another example, a
plan or issuer should not impose
shipping costs on an OTC contraceptive
item that is furnished via mail order if
the plan or issuer would not impose
shipping costs on a comparable
prescription product. Likewise, to the
extent that a plan or issuer generally
covers a recommended preventive
service that requires a prescription
without cost sharing at the in-network
pharmacy point of sale, without
requiring consumers to pursue postpurchase reimbursement, the
Departments would expect that the plan
or issuer would generally cover OTC
contraceptive items at the in-network
pharmacy point of sale in the same
manner. Plans and issuers that require
participants, beneficiaries, or enrollees
to present information, such as an
insurance card, to allow an in-network
pharmacy to process a claim for a
prescription-only recommended
preventive service may require similar
information to process a claim for an
OTC contraceptive item. The
Departments request comment on the
appropriate approach for coverage in a
scenario in which a plan’s or issuer’s
preferred OTC contraceptive item is out
of stock at an in-network pharmacy,
while a non-preferred version is
available. Specifically, the Departments
request comment on whether plans or
issuers should be required to cover the
non-preferred version without costsharing requirements at the in-network
pharmacy, without requiring the
consumer to pursue an exceptions
process when a preferred version is
unavailable at an in-network pharmacy.
The Departments also request comment
on whether and how plans and issuers
should document the unavailability of a
preferred OTC contraceptive for
coverage purposes.
As noted earlier, plans and issuers are
not required to establish a provider
network in order to provide coverage of
recommended preventive services and
would not be required to contract with
providers for the purpose of providing
in-network coverage of OTC
contraceptive items if these proposed
rules are finalized. Under 26 CFR
54.9815–2713(a)(3)(ii), 29 CFR
2590.715–2713(a)(3)(ii), and 45 CFR
147.130(a)(3)(ii), a plan or issuer that
lacks an in-network provider who can
provide an OTC contraceptive item
would be obligated to cover the OTC
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contraceptive item when provided by an
out-of-network provider without
imposing cost sharing.
In the absence of a provider network,
the Departments encourage plans and
issuers to establish processes to ensure
that participants, beneficiaries, and
enrollees can obtain OTC contraceptive
items from out-of-network providers
without incurring out-of-pocket costs
and without encountering significant
barriers to access.108 The Departments
are not proposing to specify in these
proposed rules how a plan or issuer
would do so, but would encourage plans
and issuers to establish a robust
approach with multiple entry points to
ensure that participants, beneficiaries,
and enrollees can access out-of-network
OTC contraceptive items with no out-ofpocket costs and without friction at the
point of sale. The Departments request
comment on what additional standards
or guidance would be helpful to ensure
that participants, beneficiaries, and
enrollees can use their health coverage
to access OTC contraceptive items from
out-of-network providers without cost
sharing, while allowing plans and
issuers flexibility to effectively
implement the requirement to cover
OTC contraceptive items, if finalized.
If these requirements are finalized,
plans and issuers should ensure that
processes that require participants,
beneficiaries, or enrollees to pay out-ofpocket for OTC contraceptive items and
pursue reimbursement do not present
unreasonable barriers to accessing OTC
contraceptive items provided by either
an in-network or out-of-network
provider. A traditional post-purchase
reimbursement process might require
consumers to bear the upfront cost of an
OTC contraceptive item as well as the
administrative burden of requesting
reimbursement, providing
documentation either on paper or
electronically, and absorbing the
financial impact of a delayed
reimbursement while a reimbursement
request is being reviewed and processed
108 The
Departments note that plans and issuers
would not be required to reimburse the cost of OTC
contraceptive items that have already been
reimbursed by an account-based plan, such as a
health flexible spending arrangement (FSA) or
health reimbursement arrangement (HRA). As of
January 2020, section 3702 of the CARES Act
amended the definition of qualifying medical
expenses so that the expenses for certain OTC
medications purchased without a prescription are
eligible for reimbursement under certain
arrangements, such as health savings accounts
(HSAs), HRAs, and health FSAs. An individual
generally may not submit claims to multiple
sources of coverage to be reimbursed more than
once for the same medical expense. Therefore, the
cost (or the portion of the cost) of OTC
contraception that has already been paid or
reimbursed by a plan or issuer cannot also be
reimbursed by an HSA, HRA, or health FSA.
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by the plan or issuer. For example,
while it would be reasonable for a plan
or issuer to require a form and receipt
or other proof of purchase, postpurchase reimbursement programs that
require an individual to submit multiple
documents or involve numerous steps
that unduly delay an individual’s
reimbursement for an OTC
contraceptive item would not be
reasonable under these proposed rules.
Further, the Departments would
strongly encourage plans and issuers to
consider implementing additional
methods for providing coverage of OTC
contraceptive items without cost
sharing, in addition to or in lieu of a
traditional post-purchase
reimbursement process. For example,
plans and issuers could consider
providing access to pre-paid accounts
that are programmed to cover upfront
costs associated with OTC contraceptive
items at the point of sale, either by
issuing physical debit or credit cards or
providing access to a linked smartphone
application or QR code to participants,
beneficiaries, or enrollees, provided
funds were sufficient to cover costs
associated with OTC contraceptive
items, the mechanism for delivery was
programmed with sufficient guardrails
to prevent funds from being applied to
items that were not covered, and the
method of access was otherwise
implemented consistent with applicable
law. Subject to the requirements for
utilizing reasonable medical
management techniques 109 and
consistent with previously issued
guidance 110 (including providing access
to an easily accessible, transparent, and
sufficiently expedient exceptions
process that is not unduly burdensome
on the individual, a provider, or other
authorized representative),111 plans and
issuers would be able to utilize
reasonable medical management
techniques to contain costs and promote
efficient delivery of care, and could
consider how to do so within the
109 26 CFR 54.9815–2713(a)(4), 29 CFR 2590.715–
2713(a)(4), and 45 CFR 147.130(a)(4).
110 See, e.g., FAQs Part XII, Q14 (Feb. 20, 2013),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-xii.pdf and www.cms.gov/CCIIO/
Resources/Fact-Sheets-and-FAQs/aca_
implementation_faqs12.html; FAQs Part XXVI (May
11, 2015), available at https://www.dol.gov/sites/
dolgov/files/EBSA/about-ebsa/our-activities/
resource-center/faqs/aca-part-xxvi.pdf and https://
www.cms.gov/CCIIO/Resources/Fact-Sheets-andFAQs/Downloads/aca_implementation_faqs26.pdf.
111 See section II.A of the preamble to these
proposed rules for a description of existing
guidance regarding the use of an exceptions process
and the proposal in these proposed rules to require
plans and issuers to provide an exceptions process
when utilizing reasonable medical management for
recommended preventive services.
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context of such an approach for out-ofnetwork coverage of OTC contraceptive
items. For example, a plan or issuer
would be able to program a debit or
credit card or linked account to limit
reimbursement to a set amount within a
specified period of time, provided such
limitations do not unreasonably limit
coverage of covered OTC contraceptive
items.
The Departments are aware that some
OTC contraceptive items, such as
software applications granted marketing
authorization by the FDA for use as
contraception, are typically not
furnished by in-network providers (for
example, because consumers purchase
them directly from a manufacturer or
vendor website). As with other
recommended preventive services for
which a plan or issuer does not have an
in-network provider who can provide
the item or service, the plan or issuer
would be required to cover the item or
service when delivered by an out-ofnetwork provider and could not impose
cost sharing with respect to the item or
service. The Departments request
comment on whether additional
guidance is necessary to ensure that
individuals would be able to use their
health coverage to obtain OTC
contraceptive items that are typically
obtained outside of the traditional
system of network providers with zero
cost sharing and without unnecessarily
burdensome reimbursement
requirements, while permitting plans
and issuers to utilize reasonable medical
management techniques.
The Departments request comment on
how plans and issuers would likely
operationalize out-of-network coverage
and whether the Departments should
adopt specific standards for out-ofnetwork coverage with respect to OTC
contraceptive items. In addition,
participants, beneficiaries, and enrollees
would benefit if plans and issuers
provide access to a broad network of
providers with the capacity to provide
the full range of OTC contraceptive
items, and the Departments request
comment on how to support and
incentivize plans and issuers to develop
such networks.
(2) Reasonable Medical Management
Techniques for OTC Contraceptive
Services
As discussed in section II.A.1 of this
preamble, to the extent not specified in
the applicable recommendation or
guideline, plans and issuers may rely on
the relevant clinical evidence base and
established reasonable medical
management techniques to determine
the frequency, method, treatment, or
setting for coverage of a recommended
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preventive health service.112 In prior
guidance, the Departments have stated
that if a plan or issuer utilizes medical
management techniques within a
specified category of contraception (or,
with respect to contraceptive categories
not specifically described in the HRSAsupported Guidelines, a group of
substantially similar services or
products), the use of those techniques
will not be considered reasonable unless
the plan or issuer has an easily
accessible, transparent, and sufficiently
expedient exceptions process that is not
unduly burdensome on the individual
or their attending provider (or other
individual acting as the individual’s
authorized representative) allowing
such individual to obtain coverage for a
service or FDA-approved, -cleared, or
-granted product determined to be
medically necessary, as determined by
the individual’s attending provider.113
The Departments are not proposing
amendments to the medical
management provisions specific to OTC
contraceptive items. Therefore, these
standards, as well as the new standards
proposed in these rules,114 would apply
to a plan’s or issuer’s use of medical
management techniques with respect to
OTC contraceptive items in the same
manner and to the same extent as they
would apply to other recommended
preventive services.
The Departments recognize that plans
and issuers may encounter unique
issues related to medical management if
the Departments finalize the proposed
requirements to cover OTC
contraceptive items. In the OTC
Preventive Products RFI, the
Departments requested comment on
what types of reasonable medical
management techniques plans and
issuers would consider implementing if
recommended OTC preventive products
were required to be covered without
cost sharing. In response, some
commenters suggested plans and issuers
could limit the number of products an
individual could obtain during a given
period as a guardrail for OTC
contraceptive services. One commenter
stated that quantity limits would help
prevent inequitable distribution and
112 26
CFR 54.9815–2713(a)(4); 29 CFR 2590.715–
2713(a)(4); and 45 CFR 147.130(a)(4).
113 See FAQs Part 54, Q3 (July 28, 2022),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-54.pdf.
114 See sections II.A.1 (for discussion of proposal
to amend the general requirements related to
reasonable medical management) and II.A.2.b (for
discussion of proposed amendment regarding
reasonable medical management for contraceptive
drugs and drug-led combination products,
including OTC contraceptive items) of the preamble
to these proposed rules.
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85767
stockpiling for resale of OTC
contraceptive services. Another
commenter urged the Departments to
allow plans and issuers to limit the
initial purchase of OTC contraceptive
services until there is more
understanding of the cost implications
and distribution channels for OTC
preventive services. Other commenters
discouraged the use of quantity limits as
a medical management technique out of
concern that such limits would
discourage continuation of use, by
creating new access barriers for
individuals that already face challenges
engaging with the health care system, in
particular individuals that are members
of underserved communities. In
addition, a commenter expressed
concern about the difficulty in
predicting the need for emergency
contraception.
Some commenters advocated for 12month quantity limits for monthly OTC
contraceptive services in order to
balance the health equity concerns of
individuals with the implementation
challenges that may arise for retailers
and plans and issuers transitioning to
covering OTC contraceptive services
without a prescription and without cost
sharing. Some commenters noted that
there is already ample precedent for
requiring coverage of extended supplies
of contraceptives, with at least 25 States
and the District of Columbia requiring
Medicaid and private payers to cover
the dispensing of an extended (usually
12-month) supply of prescription
contraceptives.115 One commenter to
the OTC Preventive Products RFI stated
that purchasing contraceptive items in
larger dispensing quantities may create
opportunities for plans and issuers to
negotiate pricing discounts that will
decrease per-unit costs for plans and
issuers as well as suppliers and
distributors. The Departments note that
when the OTC oral contraceptive
became available in March 2024 for sale
online and in stores under the brand
name Opill®, the manufacturer’s
suggested retail price for a 6-month
supply was cheaper (per-month) than
115 In States that have implemented a 12-month
prescription limitation, plans and issuers are
required to cover without cost sharing a supply of
up to 12 months when indicated by the prescribing
provider. See Power to Decide (August 2023),
‘‘Coverage for an Extended Supply of
Contraception,’’ available at https://
powertodecide.org/sites/default/files/2023-08/
Extended%20Supply%20of%20Contraception.pdf.
Since the comment submission period for the OTC
Preventive Products RFI closed, additional States
have enacted coverage requirements related to
extended contraceptive supplies. See NCSL, ‘‘State
Contraception Policies,’’ available at https://
www.ncsl.org/health/state-contraception-policies.
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the manufacturer’s suggested retail price
for a 1-month supply.116
Literature on contraception shows
that dispensing a multi-month supply of
prescription oral contraceptive pills at
one time during the plan year is
generally associated with increased
continuation of contraception use,
decreased occurrence of unintended
pregnancy, and greater cost savings, but
also more pill waste, compared to
dispensing a single month’s
supply.117 118 Research also shows that
advance provision of emergency
contraception significantly increases its
use without adversely affecting the use
of routine contraception,119 which
suggests that it may be beneficial for
women to receive more than one unit of
emergency contraception at a time, in
order to realize the benefits of advance
provision for future use. Limitations on
the supply of OTC contraception
dispensed at one time should take into
account the clinical evidence base
regarding benefits to consumers,
including as described in this section
II.a.2.
Given the evidence regarding benefits
to consumers of a multi-month supply
of prescription oral contraceptive pills,
the Departments would generally not
consider coverage limitations that only
allow for a 1-month supply of an OTC
oral contraception per instance of
dispensing to be reasonable or
consistent with the requirement to cover
recommended preventive services under
116 Lupkin, S., NPR (March 18, 2024). ‘‘First overthe-counter birth control pill now for sale online,’’
available at https://npr.org/sections/health-shots/
2024/03/04/1235404522/opill-over-counter-birthcontrol-pill-contraceptive-shop.
117 See Steenland, M., Rodriguez, M.,
Marchbanks, P., and Curtis, K. (2013). ‘‘How does
the number of oral contraceptive pill packs
dispensed or prescribed affect continuation and
other measures of consistent and correct use? A
systematic review,’’ Contraception, available at
https://www.sciencedirect.com/science/article/pii/
S0010782412007317?via%3Dihub.
118 See Judge-Golden, C. P., Smith, K. J., Mor, M.
K., and Borrero, S. (2019). ‘‘Financial Implications
of 12-Month Dispensing of Oral Contraceptive Pills
in the Veterans Affairs Health Care System,’’ JAMA
Internal Medicine, available at https://doi.org/
10.1001/jamainternmed2019.1678 (study of the
Veterans Affairs health care system finding that a
12-month supply better supports continuous usage
of contraceptive items than a 3-month supply and
decreases the risk of unwanted pregnancies, and
concluding that a 12-month dispensing option
would likely result in a $2 million dollar annual
cost-savings for the Veterans Affairs health care
system).
119 See Kripke, C. (2000). ‘‘Advance Provision for
Emergency Oral Contraception,’’ American Family
Physician, available at https://www.aafp.org/pubs/
afp/issues/2007/0901/p654.html; Jackson R.A.,
Bimla Schwarz, E., Freedman L, Darney P. (2003).
‘‘Advance supply of emergency contraception:
effect on use and usual contraception—a
randomized trial,’’ Obstetrics and Gynecology,
available at https://pubmed.ncbi.nlm.nih.gov/
12850599.
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26 CFR 54.9815–2713(a)(4), 29 CFR
2590.715–2713(a)(4), and 45 CFR
147.130(a)(4) if there is no clinical basis
for limiting the quantity to be dispensed
at one time. The Departments seek
comment, with respect to all forms of
OTC contraceptives, on whether other
quantity limits (such as a 6-month limit
on OTC oral contraception or a 3-unit
limit on OTC emergency contraception
per instance of dispensing) should be
considered reasonable or unreasonable,
and what additional facts and
circumstances should be considered
when determining the reasonableness of
a particular quantity limit with respect
to OTC contraception, such as initial
success with a shorter supply of OTC
contraception. The Departments also
request comment on the circumstances
under which participants, beneficiaries,
and enrollees who receive an initial
extended quantity of OTC contraception
could access a different form of
contraception without incurring cost
sharing before finishing the initial
extended quantity (for example, before a
6-month supply is exhausted).
Some commenters to the OTC
Preventive Products RFI suggested
individuals should be required to
submit evidence to a plan or issuer that
a particular form of prescription birth
control is inappropriate before receiving
coverage for an OTC contraceptive
service. The Departments previously
issued guidance that it is not a
reasonable medical management
technique to require individuals to fail
first using numerous other services or
FDA-approved, -cleared, or -granted
contraceptive products before the plan
or issuer will approve coverage for the
service or FDA-approved, -cleared, or
-granted contraceptive product that is
medically necessary for the individual,
as determined by the individual’s
attending provider.120 Within the
context of medical management of OTC
contraceptive items, the Departments
would not consider it reasonable either
to impose a prescription requirement for
OTC contraception as a form of medical
management, including requiring an
individual to fail first using a
prescription-only contraceptive item
before providing coverage of an OTC
contraceptive item without cost sharing,
or to require an individual to fail first
with numerous prescription or OTC
contraceptive items before the plan or
issuer will approve coverage for a
120 See FAQs Part 54, Q8 (July 28, 2022),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-54.pdf and https://www.cms.gov/files/
document/faqs-part-54.pdf.
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medically necessary OTC contraceptive
item.
Other commenters suggested that a
plan or issuer could consider
implementing age-based limitations or
gender-based requirements instead of
offering benefits to all individuals with
reproductive capacity. The Departments
would not consider age- and genderbased medical management with respect
to OTC contraceptive services to be
reasonable unless the medical
management technique relies on a
clinical rationale for limiting access to
individuals of a certain age or gender
and is consistent with FDA approvals of
any particular OTC contraceptive
product. The Departments have stated
in previous guidance that imposing an
age limit on contraceptive coverage
instead of providing these benefits to all
women would not be considered a
reasonable medical management
technique.121
A commenter suggested that
implementing prior authorization
requirements with respect to certain
OTC items would not be an
unreasonable medical management
technique. However, such medical
management techniques create barriers
for consumers accessing contraceptive
services with a prescription 122 and
would create similar barriers for
consumers accessing contraceptives
services without a prescription, with the
added challenge that consumers seeking
to obtain OTC contraceptive items are
likely navigating such requirements
without the assistance of a provider.
Such requirements could be used as a
means of circumventing the requirement
to provide coverage of contraception
without cost sharing and without a
prescription. Therefore, under these
proposed rules, coverage requirements
that, in practice, operate as substitutes
for a prescription coverage requirement
by requiring the involvement of a
provider (such as prior authorization
processes that require provider
involvement or other clinical expertise
or a requirement that individuals
receive counseling from a pharmacist
prior to accessing an OTC contraceptive
item) would not be considered
reasonable medical management
techniques with respect to OTC
contraceptive items.
121 Id.
122 See U.S. House of Representatives Committee
on Oversight and Reform (Oct. 25, 2022). ‘‘Barriers
to Birth Control: An Analysis of Contraceptive
Coverage and Costs for Patients with Private
Insurance,’’ available at https://oversightdemocrats.
house.gov/sites/evo-subsites/democratsoversight.house.gov/files/2022-10-25.COR%20PBMInsurer%20Report.pdf.
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Under these proposed rules, plans
and issuers generally could adopt
medical management techniques with
respect to OTC contraceptive items that
are not described as unreasonable in
this preamble as long as they are
otherwise consistent with proposed 26
CFR 54.9815–2713(a)(4), 29 CFR
2590.715–2713(a)(4), and 45 CFR
147.130(a)(4) and existing guidance and
the plan or issuer makes available an
exceptions process as described in these
proposed rules. The Departments
request comment on what other medical
management techniques plans and
issuers would consider applying to OTC
contraceptive items, including whether
such techniques should be considered
reasonable or unreasonable. The
Departments request comment on the
proposed interpretation of reasonable
medical management requirements with
respect to OTC contraceptive items,
including whether any final regulations
should specify or use examples to
illustrate in the regulatory text the
Departments’ interpretation of
reasonable medical management for
OTC contraceptive items.
(3) Other Considerations
The Departments acknowledge the
concerns raised by commenters to the
OTC Preventive Products RFI, such as
risks to patient privacy, of
overconsumption, and of fraud, waste,
or abuse, that some commenters believe
could be exacerbated with increased
coverage with no cost sharing of OTC
contraceptive items. These concerns
could be heightened with respect to
OTC items and services that do not
require the input of a provider in the
form of a prescription and may be
further increased within the context of
out-of-network providers with whom
plans and issuers do not have
contractual relationships. For example,
plans and issuers may wish to ensure
that individuals are obtaining OTC
contraceptive items to prevent
pregnancy rather than solely to address
another underlying condition (such as
to treat anemia or manage premenstrual
symptoms) or to ensure that an
individual is obtaining condoms for the
use of a woman covered under the plan,
rather than for use by another
individual. Several commenters to the
OTC Preventive Products RFI
highlighted concerns that coverage of
OTC preventive products without cost
sharing could incentivize
overconsumption or waste of such
products. Additionally, OTC
contraceptive items may present
particular challenges with respect to
patient privacy, given the deeply
personal nature of reproductive health
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care and the dynamic nature of State
laws governing access to reproductive
health care.
The Departments anticipate that plans
and issuers with a network of providers
would mitigate these risks by using
existing claims processing systems with
respect to in-network coverage, but
acknowledge that coverage through
pathways other than an in-network
pharmacy may present privacy
challenges (for example, because nonprovider retailers are not required to
implement the same privacy and
security safeguards as they are with
respect to back-pharmacy transactions).
The Departments request comment on
how best to encourage plans and issuers
to develop mechanisms that promote
access to OTC contraceptive items in
accordance with these proposed
regulations, if finalized, while
protecting patient privacy and allowing
plans and issuers to identify and
address risks including waste, fraud,
and abuse.
The Departments further request
comment on how the proposed
exceptions process requirement should
apply with respect to OTC
contraceptives items, for which no
provider involvement is generally
required. The proposed exceptions
process requirement described in
section II.A.1 of this preamble refers to
the determination of an individual’s
attending provider. Thus, the
Departments request comment on what
information individuals should be
required to provide to seek an exception
to access coverage for an OTC
contraceptive item that is not typically
covered, including how plans and
issuers could determine whether an
OTC contraceptive item is medically
necessary, and whether any additional
changes are necessary for an exceptions
process when used to seek coverage,
without cost sharing, for an OTC
contraceptive item.
The Departments also request
comment on whether it would be
beneficial to define a new term to refer
to contraception that would be subject
to the proposed amendments to 26 CFR
54.9815–2713(a)(6), 29 CFR 2590.715–
2713(a)(6), and 45 CFR 147.130(a)(6);
and if so, request feedback on the
appropriate term and scope of the
definition. For example, the
Departments request comment on
whether to define ‘‘contraceptive item,’’
‘‘contraceptive product,’’ or
‘‘contraceptive items and services’’
within the context of these proposed
rules; and whether the term would refer
to all contraceptive items and services
recommended under the HRSAsupported Guidelines, all contraceptive
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85769
items and services recommended under
26 CFR 54.9815–2713(a)(1), 29 CFR
2590.715–2713(a)(1), and 45 CFR
147.130(a)(1); or another subset of
recommended preventive services.
b. Therapeutic Equivalence Approach to
Reasonable Medical Management for
Contraceptive Drugs and Drug-Led
Combination Products
As discussed in section II.A.2 of this
preamble, despite repeated clarification
in guidance, the Departments have
continued to receive complaints and
reports that participants, beneficiaries,
and enrollees are being denied coverage
for contraceptives that their attending
providers have prescribed, in some
cases due to the application of medical
management techniques that are not
reasonable based on all the relevant
facts and circumstances.123 The
Departments are also aware of
investigations and other credible reports
that have documented plans and issuers
using potentially unreasonable medical
management techniques.124 In response
to these reports, the Departments issued
FAQs Part 64 on January 22, 2024,
which set forth a therapeutic
equivalence approach that plans and
issuers can, but are not required to, use
(in combination with an easily
accessible, transparent, and sufficiently
expedient exceptions process) to
comply with PHS Act section 2713 and
its implementing regulations with
respect to FDA-approved contraceptive
drugs and drug-led devices, as an
alternative to standards that had been
set forth in previous guidance and
described in section II.A.1 of this
preamble.125 The Departments have
determined that it is necessary to
require the therapeutic equivalence
approach to ensure coverage of the full
range of FDA-approved contraceptive
items that are drugs and drug-led
combination products. The proposed
therapeutic equivalence approach
would serve as a guardrail against the
widespread use of narrow drug
formularies, which the Departments
123 See also FAQs Part 54, Q8 (July 28, 2022),
available at https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/
faqs/aca-part-54.pdf and https://www.cms.gov/files/
document/faqs-part-54.pdf.
124 See U.S. House of Representatives Committee
on Oversight and Reform (Oct. 25, 2022). ‘‘Barriers
to Birth Control: An Analysis of Contraceptive
Coverage and Costs for Patients with Private
Insurance,’’ available at https://
oversightdemocrats.house.gov/sites/evo-subsites/
democrats-oversight.house.gov/files/2022-1025.COR%20PBM-Insurer%20Report.pdf.
125 FAQs Part 64 (Jan. 22, 2024), available at
https://www.dol.gov/agencies/ebsa/about-ebsa/ouractivities/resource-center/faqs/aca-part-64 and
https://www.cms.gov/files/document/faqs-part64.pdf.
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understand plans and issuers use to
limit costs, but can have the effect of
limiting access to medically appropriate
contraceptive drugs and drug-led
combination products.126 This proposed
regulation would limit the use of such
techniques with respect to
recommended contraceptive drugs and
drug-led combination products.
Therefore, the Departments propose to
amend 26 CFR 54.9815–2713, 29 CFR
2590.715–2713, and 45 CFR 147.130 to
add a new paragraph (a)(6)(iii) that
would specify that a plan’s or issuer’s
medical management techniques are not
considered to be reasonable unless the
plan or issuer provides coverage for
recommended preventive services that
are contraceptive drugs and drug-led
combination products, other than those
items for which there is at least one
therapeutic equivalent drug or drug-led
combination product, as applicable, for
which the plan or issuer provides
coverage without imposing any costsharing requirements, consistent with
the therapeutic equivalence approach
described in FAQs Part 64. The
Departments also propose to define
‘‘therapeutic equivalent’’ for purposes of
this proposed provision as having the
meaning given the term ‘‘therapeutic
equivalents’’ in 21 CFR 314.3(b), which
defines ‘‘therapeutic equivalents’’ as
‘‘approved drug products that are
pharmaceutical equivalents for which
bioequivalence has been demonstrated,
and that can be expected to have the
same clinical effect and safety profile
when administered to patients under
the conditions specified in the
labeling.’’
Under this proposal, consistent with
FAQs Part 64, a therapeutic equivalent
drug or drug-led combination product
would be one that is designated with a
code with the first letter ‘‘A’’ in the
FDA’s Approved Drug Products with
Therapeutic Equivalence Evaluations
(Orange Book).127 If the Orange Book
does not identify a therapeutic
equivalent for a given drug or drug-led
combination product, that drug or drugled combination product would have no
126 See Dieguez, G., Sawhney, T., and
Mirchandani, H., Milliman (2016). ‘‘Evolution of
the Use of Restrictions in Commercial
Formularies,’’ available at https://
www.milliman.com/-/media/milliman/
importedfiles/uploadedfiles/insight/2016/evolutionrestrictions-commercial-formularies.ashx; Rucker,
J., Benfield, M., Jenkins, N., Enright, D., Henderson,
R., Chambers, J. (2023). ‘‘Commercial Coverage of
Specialty Drugs, 2017–2021’’ Health Affairs
Scholar, available at https://academic.oup.com/
healthaffairsscholar/article/1/2/qxad030/7236995.
127 FAQs Part 64, Q2 (Jan. 22, 2024), available at
https://www.dol.gov/agencies/ebsa/about-ebsa/ouractivities/resource-center/faqs/aca-part-64 and
https://www.cms.gov/files/document/faqs-part64.pdf.
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therapeutic equivalent for purposes of
these proposed rules, and a plan or
issuer would not be permitted to use
medical management techniques to
deny coverage of (or impose cost sharing
on) that drug or drug-led combination
product. For example, assume that there
are six oral contraceptives (Pill A, Pill
B, Pill W, Pill X, Pill Y, and Pill Z) listed
in the Orange Book that are within the
HRSA-supported Guidelines category of
contraceptives known as ‘‘oral
contraceptives (combined pill).’’ If the
Orange Book does not identify a
therapeutic equivalent for either Pill A
or Pill B, but identifies the latter four
(Pill W, Pill X, Pill Y, and Pill Z) as
therapeutic equivalents of each other,
then under these proposed rules, the
plan would be required to cover without
cost sharing Pill A and Pill B, for which
there are no therapeutic equivalents.
The plan could utilize reasonable
medical management techniques that
result in it covering only one of Pill W,
Pill X, Pill Y, or Pill Z without cost
sharing because all four are
therapeutically equivalent to each other
(provided the plan has an exceptions
process that ensures an individual can
receive coverage, without cost sharing,
for any of Pill W, Pill X, Pill Y, or Pill
Z, in the circumstances discussed in
more detail in section II.A.1 of this
preamble).
In the Orange Book, the FDA
evaluates only multisource prescription
drug products for therapeutic
equivalence.128 Therefore, the FDA does
not evaluate therapeutic equivalence for
OTC drugs or OTC drug-led
combination products and the Orange
Book does not categorize such products
as a ‘‘therapeutic equivalent’’ of any
other drug or drug-led combination
product. As described in section II.A.2,
the Departments are proposing to
require plans and issuers to provide
coverage of OTC contraceptives without
cost sharing and without requiring a
prescription. If both the therapeutic
equivalence proposal described in this
preamble section and the OTC
contraceptive coverage proposal are
finalized, plans and issuers would be
required to cover all OTC contraceptive
items that are drugs and drug-led
combination products without cost
sharing. The Departments request
comment on the potential impacts to
interested parties, including
participants, beneficiaries, and enrollees
and plans and issuers, if both proposals
are finalized. The Departments further
request comment on whether an
128 FDA, ‘‘Orange Book Preface,’’ available at
https://www.fda.gov/drugs/development-approvalprocess-drugs/orange-book-preface.
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alternative approach to therapeutic
equivalence would be appropriate for
OTC contraceptive drugs and drug-led
combination products. If so, the
Departments request comment on what
medical management techniques would
be appropriate and reasonable while
balancing the goals of increasing
consumer access to OTC contraceptive
drugs and drug-led combination
products and containing costs. For
example, the Departments seek
comment on whether plans and issuers
should be permitted to provide coverage
without cost-sharing or prescription
requirements of a preferred generic
version of an OTC contraceptive, while
only covering the brand version without
cost-sharing or prescription
requirements subject to an exceptions
process.
In addition to satisfying the
therapeutic equivalence approach, the
Departments would not consider a
plan’s or issuer’s medical management
techniques with respect to
recommended contraceptive services to
be reasonable unless the plan or issuer
meets existing standards under
applicable regulations and guidance, to
the extent not superseded by the other
proposals in these proposed rules. For
example, as described in FAQs Part 54,
Q8, a plan’s or issuer’s medical
management techniques would
generally be considered reasonable only
if the plan or issuer utilizes reasonable
medical management techniques within
a specified category described in the
HRSA-supported Guidelines (or group
of substantially similar products that are
not included in a specified
category).129 130 Therefore, if a plan or
129 FAQs Part 54, Q8 (July 28, 2022), available at
https://www.dol.gov/sites/dolgov/files/EBSA/aboutebsa/our-activities/resource-center/faqs/aca-part54.pdf and https://www.cms.gov/files/document/
faqs-part-54.pdf.
130 The Departments acknowledge that the
proposed therapeutic equivalence standard would
require plans and issuers to cover more
contraceptive drugs and drug-led combination
products than under FAQs Part XXVI, Q2, which
specified that a plan or issuer must cover at least
one form of contraception in each method that is
identified by the FDA. The Departments have
determined that this approach is necessary to
ensure coverage of the full range FDA-approved
contraceptive drugs and drug-led combination
products, as required under section 2713 of the PHS
Act, while still permitting plans and issuers to
contain costs by not requiring plans and issuers to
cover items for which there is at least one
therapeutic equivalent drug or drug-led
combination product, as applicable, for which the
plan or issuer provides coverage without imposing
any cost-sharing requirements. The FDA defines
‘‘therapeutic equivalents’’ at 21 CFR 314.3(b) as
approved drug products that are pharmaceutical
equivalents (meaning, in general, that they contain
identical amounts of the identical active drug
ingredient in the identical dosage form and route
of administration) and bioequivalents (meaning, in
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issuer provided coverage consistent
with the proposed therapeutic
equivalence approach, but used medical
management techniques to deny
coverage or impose cost sharing for all
contraceptives in another category (or
other groups of substantially similar
products), such as the category for
sterilization surgery for women, the
plan’s or issuer’s medical management
techniques would not be considered to
be reasonable. Similarly, consistent with
FAQs Part 54, Q8, the Departments
would not consider a plan’s or issuer’s
medical management techniques to be
reasonable if the plan or issuer requires
an individual to fail first using
numerous contraceptives within a
category prior to providing coverage
consistent with the proposed
therapeutic equivalence approach.
In addition, consistent with FAQs
Part 64, the Departments would not
consider the use of medical
management techniques to be
reasonable where a plan or issuer
provides coverage consistent with the
proposed therapeutic equivalence
approach but fails to provide an
exceptions process that meets the
standards proposed in these rules.
Requiring plans and issuers that utilize
reasonable medical management to both
apply the therapeutic equivalence
approach and provide an exceptions
process would be particularly important
in instances where the plan’s or issuer’s
preferred method is not medically
appropriate for an individual. Consider
an example in which there are three
products within the HRSA-supported
Guidelines category of ‘‘the
contraceptive patch’’ (Patch A, Patch B,
and Patch C) and the Orange Book
identifies all three products as
therapeutic equivalents to each other.
Under the proposed therapeutic
equivalence approach, a plan or issuer
would be permitted to utilize reasonable
general, that the rate and extent of the active
ingredient at the site of action are the same), and
that can be expected to have the same clinical effect
and safety profile when administered to patients
under the conditions specified in the labeling. The
contraceptives described in the HRSA-supported
Guidelines do not refer to therapeutic equivalence,
and as a result, there may be multiple drugs or
drug-led combination products within a category
that are not therapeutically equivalent to each
other. For example, within the ‘‘oral contraceptives
(combined pill)’’ category identified in the HRSAsupported Guidelines, there could exist multiple
products that are oral contraceptive combined pills
but are not therapeutically equivalent because, for
example, they contain different amounts of the
same active ingredients. Under this proposal, a plan
or issuer would be required to cover, without cost
sharing, at least one oral contraceptive combined
pill that has a therapeutic equivalent, as well as
each non-therapeutic equivalent oral contraceptive
combined pill, rather than at least one form of an
oral contraceptive combined pill in the category.
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medical management techniques that
result in it generally covering only one
of Patch A, Patch B, or Patch C without
cost sharing because all are
therapeutically equivalent to each other.
However, without an exceptions
process, a person who, for example, has
an allergy to a non-therapeutic
ingredient in Patch A such as a dye or
an adhesive could not access an
alternative such as Patch B or Patch C
that is determined to be medically
necessary by the individual’s attending
provider, and as a result, would be
denied the coverage required under PHS
Act section 2713.
The Departments propose to define
‘‘drug-led combination product’’ at 26
CFR 54.9815–2713(a)(6)(i)(A), 29 CFR
2590.715–2713(a)(6)(i)(A), and 45 CFR
147.130(a)(6)(i)(A) as ‘‘a combination
product, as defined under 21 CFR 3.2(e),
that comprises a drug and a device, and
for which the drug component provides
the primary mode of action.’’ The term
‘‘combination products’’ refers to the
existing FDA definition of ‘‘combination
product’’ at 21 CFR 3.2(e), and would
apply only to drug-led combination
products within the context of the
proposed therapeutic equivalence
approach discussed in this section
II.A.2.b of this preamble. While this
proposal would not prevent plans and
issuers from applying a therapeutic
equivalence approach to other
recommended preventive services, the
Departments request comment on
whether plans and issuers utilizing
reasonable medical management of
recommended preventive services other
than contraceptive drugs and drug-led
combination products should be
required to apply the therapeutic
equivalence approach as described in
these proposed rules.
B. Communicating OTC Contraceptive
Coverage Requirements
Because plans and issuers have not
traditionally provided coverage for
health items that can be purchased
directly by a consumer without a
prescription, participants, beneficiaries,
and enrollees may not be aware that
their health plan or coverage would
cover OTC contraceptive items without
cost sharing and without a prescription
if these proposed rules are finalized.
The Departments expect that without
sufficient communication about this
new coverage requirement from plans
and issuers, consumers’ lack of
awareness may lead to minimal use of
this benefit. Therefore, these proposed
rules propose new requirements under
26 CFR 54.9815–2715A2, 29 CFR
2590.715–2715A2, and 45 CFR 147.211
that would ensure participants,
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beneficiaries, and enrollees are
informed of this new coverage.
Section 2715A of the PHS Act
provides that non-grandfathered group
health plans and health insurance
issuers offering non-grandfathered
group or individual health insurance
coverage must comply with section
1311(e)(3) of the ACA. Through section
1311(e)(3)(C) of the ACA, section 2715A
of the PHS Act requires plans and
issuers to permit individuals to learn
the amount of cost sharing (including
deductibles, copayments, and
coinsurance) associated with a specific
item or service furnished by an innetwork provider upon the individual’s
request.
Under the Departments’ rulemaking
authority in section 9833 of the Code,
section 734 of ERISA, and 2792 of the
PHS Act to implement section 2715A of
the PHS Act, the Departments propose
to require that plans and issuers permit
individuals to learn the amount of cost
sharing associated with OTC
contraceptive items covered by their
plan or coverage without a prescription.
Specifically, the Departments propose to
amend 26 CFR 54.9815–2715A2, 29 CFR
2590.715–2715A2, and 45 CFR 147.211
to add a new paragraph (b)(1)(vi) that
would require plans and issuers to
provide information to participants,
beneficiaries, and enrollees explaining
that OTC contraceptive items are
covered without cost sharing and
without a prescription consistent with
these proposed rules when participants,
beneficiaries, and enrollees request costsharing information for any covered
contraceptive item or service. By
promoting awareness of coverage of
OTC contraceptive items without costsharing or prescription requirements,
these proposals serve as important
companions to proposed 26 CFR
54.9815–2713(a)(6), 29 CFR 2590.715–
2713(a)(6), and 45 CFR 147.130(a)(6),
described in section II.A.2.a of this
preamble.
In accordance with PHS Act section
2715A and ACA section 1311(e)(3)(C),
under current 26 CFR 54.9815–
2715A2(b), 29 CFR 2590.715–
2715A2(b), and 45 CFR 147.211(b),
plans and issuers must disclose an
estimate of the participant’s,
beneficiary’s, or enrollee’s cost-sharing
liability for all covered items or services
furnished by a provider or providers,
through the Transparency in Coverage
internet-based self-service tool or, if
requested by the individual, paper.
Under current rules, if a participant,
beneficiary, or enrollee uses the selfservice tool to look up contraceptive
items or services with respect to an innetwork pharmacy (or to look up the
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out-of-network cost sharing for these
items or services for a plan or issuer that
does not have a provider in its network
that can provide the preventive item),
the self-service tool would display the
non-zero dollar cost-sharing liability for
the individual that is associated with
being billed as non-preventive (if
applicable), along with a statement that
the contraceptive item or service may
not be subject to cost sharing if it is
billed as preventive. For contraceptive
items that are only covered by the plan
or coverage for preventive purposes
(including because they are only
indicated for preventive purposes),
current rules require the self-service tool
to reflect a zero-dollar cost-sharing
liability. The Departments note also that
some contraceptive items may be
covered for non-preventive purposes
(either with or without a prescription),
and in this case the self-service tool
would reflect the non-zero dollar costsharing liability. The Departments also
note that under current rules, plans and
issuers are not required to disclose any
cost-sharing information through the
self-service tool for non-covered items
and services, including with respect to
contraceptive items and services.
Nothing in these proposed rules alters
these disclosure requirements.
As discussed in section II.A.2 of this
preamble, the Departments are
proposing to require plans and issuers
to cover OTC contraceptive items
without a prescription and without
imposing cost-sharing requirements. To
ensure individuals are aware that OTC
contraceptive items are covered
consistent with these proposed rules,
plans and issuers would be required to
inform individuals of this benefit under
the plan or coverage. Participants,
beneficiaries, and enrollees should have
access to more robust information to
ensure they understand their plan’s or
issuer’s policies regarding coverage of
OTC contraceptive items without a
prescription and without cost sharing,
and in the Departments’ view, the selfservice tool would offer an effective
means of communicating such
information. Therefore, the Departments
propose to require plans and issuers to
make an additional cost-sharing
information disclosure to participants,
beneficiaries, and enrollees in new
proposed 26 CFR 54.9815–
2715A2(b)(1)(vi), 29 CFR 2590.715–
2715A2(b)(1)(vi), and 45 CFR
147.211(b)(1)(vi). Specifically, if a
participant, beneficiary, or enrollee
requests cost-sharing information for
any covered contraceptive item or
service through a self-service tool, the
proposed rules would require the
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response through the self-service tool or,
if requested, on paper to include with
the information a statement explaining
that OTC contraceptive items are
covered without cost sharing and
without a prescription. This statement
would be required to include a phone
number and internet link that a
participant, beneficiary, or enrollee
could use to learn more information
about the plan’s or policy’s
contraception coverage. This could be a
link to an existing web page and a
general customer service line that the
plan or issuer already maintains.
The requirement to provide this
information would be triggered by a
search in the self-service tool for any
covered contraceptive items or services,
including items or services that are not
drugs or drug-led combination products
or are not available without a
prescription, so that any user seeking
options to prevent pregnancy would be
made aware that OTC contraceptive
items are covered without cost sharing.
Under this proposed requirement, the
disclosure would be required regardless
of whether the user is searching for costsharing information for contraceptive
items and services from an in-network
or out-of-network provider, or if the
plan or coverage maintains no network
of providers. As such, plans and issuers,
including those without a network of
providers, would be required to disclose
that they will cover OTC contraceptive
items without cost sharing or a
prescription in accordance with
proposed 26 CFR 54.9815–2713(a)(6), 29
CFR 2590.715–2713(a)(6), and 45 CFR
147.130(a)(3)(ii). The Departments note
that because the self-service tool
requirements apply to covered items
and services, the disclosure
requirements proposed in this section
would not apply to plans and issuers
that do not cover contraceptive items or
services based on an objection under 45
CFR 147.132 or 147.133.131 The
Departments request comment on
whether and how these proposed
requirements should apply to entities
that have an objection to only some
contraceptive items and services.
The Departments also request
comment on whether plans and issuers
should have the option to include in the
statement either a phone number or an
internet link—rather than both—to
where a participant, beneficiary, or
enrollee can learn more about the plan’s
or policy’s contraception coverage. The
Departments are interested in better
understanding the benefits and burdens
associated with each approach.
The Departments also request
comment on whether plans and issuers
should be required to include in this
statement the general names or types of
OTC contraceptive items that are
covered without a prescription and
without cost sharing (for example,
‘‘daily oral contraceptive,’’ ‘‘Plan B
(levonorgestrel),’’ or ‘‘condoms’’). Under
this approach, users would not need to
call the provided phone number or
navigate to the linked web page and
could simply copy and paste the
provided product names into the selfservice tool’s search field to find local
pharmacies where they can access the
product without a prescription and
without cost sharing. In particular, the
Departments request comment on the
burdens on plans and issuers to provide
a list that may need to be updated in the
self-service tool’s statement as
circumstances change (such as if
additional OTC contraceptive items
come to market or new therapeutic
equivalents become available) or that
could require multiple alternative
disclosures for a plan or issuer that has
coverage options across geographic
regions based on availability in the
specific market. In addition, the
Departments request comment on
potential benefits to consumers of
listing in the tool itself the OTC
contraceptive items covered without a
prescription and without cost sharing,
rather than having to gather this
information by clicking an internet link
or calling a customer service line.
The Departments also request
comment on whether plans and issuers
should be required to include in the
statement information on coverage of
therapeutic equivalents or the
exceptions process under these
proposed rules and, if so, how
disclosures should be presented to
ensure the additional information is
meaningful and actionable for
consumers.132 For example, the
Departments request comment on
whether the statement should indicate
that an exceptions process is available
so individuals can receive coverage for
any recommended preventive service,
including an OTC contraceptive item,
that is medically necessary for the
individual; and, if so, how to present
this information in a way that would be
meaningful and actionable for
consumers. Similarly, the Departments
request comment on whether the
131 The Departments issued proposed rules to
rescind the moral exemption to the contraceptive
coverage requirement under 45 CFR 147.133. 88 FR
7236 (Feb. 2, 2023).
132 See sections II.A.1 and II.A.2.b of the preamble
to these proposed rules, respectively, for a
discussion of the exceptions process and
therapeutic equivalence approach proposals.
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statement should disclose that plans
and issuers must cover all FDAapproved contraceptive drugs and drugled combination products without cost
sharing, other than those for which
there is at least one therapeutic
equivalent drug or drug-led combination
product that the plan or issuer covers
without cost sharing; and, if so, how to
present this information in a way that
would be meaningful and actionable for
consumers.
The Departments also request
comment regarding the challenges of
implementing and maintaining such
statements, information about their
potential effectiveness in improving
access to OTC contraceptive items, and
other information that could help
inform potential future disclosures
related to other recommended
preventive services. The Departments
also request comment on whether
additional self-service tool requirements
need to be specified to ensure plans and
issuers fully inform participants,
beneficiaries, and enrollees of the
availability of covered OTC
contraceptive items without cost
sharing.
Lastly, the Departments believe that
broadly disseminating information on
the availability and coverage of OTC
contraceptive items without cost sharing
to eligible individuals and members of
the public would increase access to this
benefit, if finalized as proposed, and
would allow individuals to select the
plan that best meets their needs.
Therefore, the Departments request
comment on how plans and issuers
could efficiently and effectively provide
such information to eligible individuals,
participants, beneficiaries, enrollees,
and members of the public, including
the relative benefits and burdens of
doing so. For example, the Departments
are interested in whether it would be
feasible for plans and issuers to provide
general coverage and cost-sharing
information on a public website.
Similarly, the Departments are
interested in whether plans and issuers
should be required to provide more
tailored cost and benefit information to
participants, beneficiaries, or enrollees
when they provide other relevant plan
documents, such as Summaries of
Benefits and Coverage (SBCs) or drug
formularies. The Departments also
request comment on how plans and
issuers can make information available
to participants, beneficiaries, and
enrollees about the specific steps they
would need to take to access OTC
contraceptive items without cost
sharing, particularly when plans and
issuers do not have network providers
available that can provide access to such
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items. Lastly, the Departments request
comment on additional ways to
communicate this information
effectively to individuals in vulnerable
and underserved communities.
C. Applicability
The proposed amendments to 26 CFR
54.9815–2713(a)(4), 29 CFR 2590.715–
2713(a)(4), and 45 CFR 147.130(a)(4)
regarding an exceptions process would
apply on the effective date of the final
rules. The Departments assume that
most plans and issuers generally already
have in place an exceptions process for
recommended preventive services to
align with previously issued guidance,
although the Departments acknowledge
in section IV.B.2.d of this preamble that
some plans and issuers could incur
costs to develop or update an exceptions
process to comply with these proposed
rules, if finalized. While prior guidance
has generally focused on the use of an
exceptions process in the context of
contraceptive coverage and coverage of
PrEP to prevent HIV, the Departments
expect that plans and issuers could
adapt existing exceptions processes to
accommodate additional recommended
preventive services as necessary to
comply with the proposed amendments
by the effective date of the final rules.
The Departments propose delayed
applicability dates for the proposed
amendments to the preventive services
regulations that are specific to
contraceptive items. Specifically, the
Departments propose that the proposed
provisions of 26 CFR 54.9815–
2713(a)(6), 29 CFR 2590.715–2713(a)(6),
and 45 CFR 147.130(a)(6) would apply
for plan years (in the individual market,
policy years) beginning on or after
January 1, 2026. These proposed rules,
if finalized, would mandate the use of
the currently optional therapeutic
equivalence approach described in
FAQs Part 64, where applicable, and
newly require the coverage of OTC
contraceptive items without a
prescription. In the Departments’ view,
the proposed applicability dates
appropriately balance the need for
improved access to coverage of
recommended preventive services with
the time necessary for plans and issuers
to make the systems and operational
changes to implement these proposals.
Until any final rules are issued and
applicable, the Departments would
continue to consider plans and issuers
that provide coverage consistent with
the therapeutic equivalence approach
and have an easily accessible,
transparent, and sufficiently expedient
exceptions process that is not unduly
burdensome as outlined in FAQs Part 64
to be in compliance with section 2713
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of the PHS Act and its implementing
regulations with respect to coverage of
recommended contraceptives that are
drugs and drug-led devices.
To align with applicability dates for
the proposed requirements for OTC
contraceptive items and therapeutic
equivalents, the proposed requirements
in 26 CFR 54.9815–2715A2, 29 CFR
2590.715–2715A2 and 45 CFR 147.211
that would direct plans and issuers to
disclose information related to
contraceptive coverage in the selfservice tool would be applicable to
plans and issuers for plan years (or in
the individual market, policy years)
beginning on or after January 1, 2026.
The Departments request comment on
the proposed applicability dates. With
respect to the proposed delayed
applicability dates, the Departments
request comment on whether an earlier
applicability date (such as the effective
date of any final rules) would be
feasible.
III. Severability
In the event that any provision of
these proposed rules, if finalized, is
held to be invalid or unenforceable by
its terms, or as applied to any person or
circumstance, the Departments intend
that these rules shall be construed so as
to continue to give maximum effect to
these rules as permitted by law, unless
the holding shall be one of utter
invalidity or unenforceability. In the
event a provision is found to be utterly
invalid or unenforceable, the provision
shall be severable from these proposed
rules as finalized, as well as the final
rules they amend and shall not affect
the remainder thereof or the application
of the provision to persons not similarly
situated or to dissimilar circumstances.
In these rules, the Departments are
proposing several amendments to
reduce barriers to coverage and promote
access to recommended preventive
services, including OTC contraceptive
items. The Departments’ authority
under section 9833 of the Code, section
734 of ERISA, sections 2713, 2715A,
and 2792 of the PHS Act, and sections
1311(e)(3)(C) and 1321 of the ACA to
propose these amendments is wellestablished in law and long-standing
practice and should be upheld in any
legal challenge. However, in the event
that any portion of the final rules related
to any of the proposals in these rules, if
finalized, is declared invalid, the
Departments intend that the other
provisions would be severable, except
as described in this section of the
preamble. For example, if a court were
to find unlawful (1) the requirement that
plans and issuers utilizing medical
management techniques provide an
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exceptions process in order for such
techniques to be considered reasonable;
(2) the requirement to provide coverage
for OTC contraceptive items without
requiring a prescription or imposing
cost sharing; or (3) the therapeutic
equivalence approach to reasonable
medical management for contraceptive
items that are drugs and drug-led
combination products, the Departments
intend the remaining provisions of the
rules to stand. Additionally, the
Departments intend for the proposed
amendments to the preventive services
regulations to remain in place in the
event that a court were to find unlawful
any portion of the rules, if finalized,
with respect to the proposals related to
disclosing information related to
contraceptive coverage through the selfservice tool. However, the Departments
do not intend for the disclosure through
the self-service tool to remain in place
in the event that a court were to find
unlawful the requirement to provide
coverage for OTC contraceptive items
without requiring a prescription or
imposing cost sharing, as the disclosure
requirements would not provide
meaningful information to consumers in
the absence of these underlying
coverage requirements.
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IV. Regulatory Impact Analysis
A. Summary—Departments of Health
and Human Services and Labor 133
These proposed rules would make
several changes to the requirements for
non-grandfathered group health plans
and health insurance issuers offering
non-grandfathered group or individual
health insurance coverage to provide
coverage of certain recommended
preventive services without cost sharing
under section 2713 of the PHS Act and
its implementing regulations. First,
these proposed rules would provide that
medical management techniques used
by plans and issuers with respect to
recommended preventive services,
including contraceptive items, would
not be considered reasonable unless the
plan or issuer provides an easily
accessible, transparent, and sufficiently
expedient exceptions process that
allows an individual to receive coverage
without cost-sharing requirements for a
recommended preventive service
according to the frequency, method,
treatment, or setting that is medically
necessary with respect to the individual,
as determined by the individual’s
attending provider. These proposed
rules also would require plans and
issuers to cover recommended OTC
133 In sections IV.A, IV.B, and IV.C of this
preamble, ‘‘the Departments’’ refers to the
Departments of HHS and Labor.
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contraceptive items without a
prescription and without imposing costsharing requirements. These proposed
rules would further require plans and
issuers to cover all recommended
contraceptive items that are drugs and
drug-led combination products without
imposing cost-sharing requirements,
unless a therapeutic equivalent of the
drug or drug-led combination product is
covered without cost sharing. Lastly,
these proposed rules would amend the
Transparency in Coverage final rules
implementing section 2715A of the PHS
Act and section 1311(e)(3) of the ACA
by requiring plans and issuers to
provide information related to
contraceptive coverage and cost-sharing
requirements, including a statement
explaining the coverage of OTC
contraceptive items without cost
sharing, in their Transparency in
Coverage internet-based self-service tool
or, if requested by the individual, on
paper.
The Departments have examined the
impacts of these proposed rules as
required by Executive Order 12866 on
Regulatory Planning and Review
(September 30, 1993),134 Executive
Order 13563 on Improving Regulation
and Regulatory Review (January 18,
2011),135 Executive Order 14094 on
Modernizing Regulatory Review (April
6, 2023),136 the Regulatory Flexibility
Act (RFA) (September 19, 1980, Pub. L.
96–354), section 1102(b) of the Social
Security Act, section 202 of the
Unfunded Mandates Reform Act of 1995
(March 22, 1995, Pub. L. 104–4), and
Executive Order 13132 on Federalism
(August 4, 1999).137
B. Executive Orders 12866, 13563, and
14094—Departments of Health and
Human Services and Labor
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 14094
(Modernizing Regulatory Review)
amends section 3(f) of Executive Order
12866 (Regulatory Planning and
Review). The amended section 3(f) of
Executive Order 12866 defines a
134 Executive Order 12866 of September 30, 1993,
58 FR 51735 (October 4, 1993).
135 Executive Order 13563 of January 18, 2011, 76
FR 3821 (January 21, 2011).
136 Executive Order 14094 of April 6, 2023, 88 FR
21879 (April 11, 2023).
137 Executive Order 13132 of August 4, 1999, 64
FR 43255 (August 10, 1999).
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‘‘significant regulatory action’’ as an
action that is likely to result in a rule:
(1) having an annual effect on the
economy of $200 million or more in any
1 year (adjusted every 3 years by the
Administrator of the Office of
Information and Regulatory Affairs
(OIRA) in the Office of Management and
Budget (OMB) for changes in gross
domestic product), or adversely
affecting in a material way the economy,
a sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
Territorial, or Tribal governments or
communities; (2) creating a serious
inconsistency or otherwise interfering
with an action taken or planned by
another agency; (3) materially altering
the budgetary impacts of entitlement
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raising legal or policy
issues for which centralized review
would meaningfully further the
President’s priorities or the principles
set forth in Executive Order 12866, as
specifically authorized in a timely
manner by the Administrator of OIRA in
each case.138
A regulatory impact analysis (RIA)
must be prepared for rules deemed
significant under section 3(f). Based on
the Departments’ estimates, OMB’s
OIRA has determined this rulemaking is
significant under section 3(f)(1) as
measured by the $200 million or more
in any 1 year threshold. Therefore, OMB
has reviewed these proposed rules, and
the Departments have provided the
following assessment of their impact.
1. Need for Regulatory Action
As discussed in section II of this
preamble, ongoing complaints and
reports of noncompliance with section
2713 of the PHS Act and its
implementing regulations indicate that
participants, beneficiaries, and enrollees
face barriers when attempting to use
their coverage to access recommended
preventive services without cost
sharing. As a result of these concerns
and other significant activity related to
preventive services, the Departments are
proposing to amend the regulations
governing coverage of recommended
preventive services in order to ensure
that participants, beneficiaries, and
enrollees would be able to access the
full range of recommended preventive
services to which they are entitled, with
particular focus on strengthening
coverage requirements with respect to
recommended contraceptive items for
women, as summarized in section IV.A
138 Executive Order 14094 of April 6, 2023, 88 FR
21879 at 21879 (April 11, 2023).
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of this preamble. The Departments
consider these provisions to be timely
and necessary given the ongoing
documented challenges faced by
consumers in accessing recommended
preventive services, as discussed further
in section IV.B.2.a of this preamble.
2. Summary of Impacts
In accordance with Executive Order
12866 and OMB Circular A–4, table 1
depicts an accounting statement
summarizing the Departments’
assessment of the benefits, costs, and
85775
transfers associated with these
regulatory actions. The Departments are
unable to quantify all benefits, costs,
and transfers associated with these
proposed rules, but have sought, where
possible, to describe these nonquantified impacts.
TABLE 1—ACCOUNTING TABLE
Benefits
Non-Quantified:
• Potential reduction in unintended pregnancies and improved health outcomes for covered individuals.
• Increased convenience and decreased costs for covered individuals who no longer need to obtain a prescription to obtain recommended OTC contraceptive
items without cost sharing.
• Decreased costs to plans and issuers due to improved health outcomes associated with increased coverage of recommended preventive services without cost
sharing and avoided unintended pregnancies.
• Potential benefits associated with increased awareness of coverage of OTC contraceptive items without a prescription and without cost sharing.
Costs
Estimate
Year dollar
Annualized Monetized ($/year) ...............................................................
$9.9 million ....................................
2024
Discount
rate
2 percent ...........
Period covered
2026–2035
Quantified:
• Costs to issuers and TPAs, on behalf of self-insured group health plans, associated with the disclosure of coverage and cost-sharing requirements for OTC
contraceptive items, including one-time costs of approximately $35.1 million for integrating the contraception statement language into the existing Transparency in Coverage internet-based self-service tool and creating or updating a webpage to provide information about coverage benefits, and annual costs of
approximately $6.1 million for programming updates, webpage maintenance, training customer service representatives, and responding to calls to provide assistance; these costs would ultimately be incurred by plans and issuers.139
Non-Quantified:
• Increased costs to plans and issuers due to changes in utilization of recommended preventive services.
• Potential administrative costs to plans and issuers associated with the establishment of or use of an existing exceptions process that allows an individual to
receive coverage without cost-sharing requirements for a medically necessary recommended preventive service.
• Cost to pharmacies, plans, and issuers to update billing processes and systems for covered OTC products.
Transfers
Estimate
Year dollar
Annualized Monetized (Excluding Federal Budgetary) ($/year) .............
Annualized Monetized Federal Budgetary ($/year) ................................
$468.6 million ................................
$300.1 million ................................
2024
2024
Discount
rate
2 percent ...........
2 percent ...........
Period covered
2026–2035
2026–2035
Quantified:
• Transfers totaling approximately $768.7 million per year from plans and issuers to covered individuals caused by reduced out-of-pocket costs for contraceptive
items, which plans and issuers would recoup in the form of higher premiums.
Æ The increase in premiums could increase the cost of employer-sponsored insurance and reduce the share of total employee compensation subject to taxation, reducing Federal tax revenue by approximately $217 million per year.
Æ Net Federal spending on premium tax credits for Exchange plans could increase by approximately $83.1 million per year.
Æ Premiums paid (directly or indirectly, through declines in after-tax wages) by covered individuals could increase by approximately $468.6 million per year.
Non-Quantified:
• Transfers from plans and issuers to covered individuals caused by reduced out-of-pocket costs for other recommended preventive services for which coverage without cost sharing would be accessible through an exceptions process, which plans and issuers would recoup in the form of higher premiums. This
could result in an increase in premiums paid by covered individuals and an increase in net Federal spending on premium tax credits for Exchange plans.
• Potential transfers from plans and issuers to firms in the medicine and medical device supply chain due to decreased bargaining leverage on prices for contraceptive items.
Nine in ten women report using
contraception at some point in their
lifetime.140 Estimates from the CDC
indicate that 65.3 percent of women
ages 15–49 used some form of
contraception between 2017 and 2019,
including permanent or one or more
forms of reversible contraception listed
in the FDA’s Birth Control Guide.141
The majority of women used reversible
contraception such as oral contraceptive
pills (14 percent), long-acting reversible
contraceptives (LARCs) such as
intrauterine device (IUDs) (10.4
percent), or the male condom (8.4
percent). The most common form of
contraception is female sterilization
(18.1 percent), a nonreversible
method.142
The 2022 KFF Women’s Health
Survey (of U.S. women ages 18–49)
139 The Departments expect self-insured group
health plans to rely on TPAs to implement the
proposed requirements and compensate them
accordingly and thereby bear any implementation
costs.
140 Frederiksen, B., Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-theunited-states-a-closer-look-at-experiencespreferences-and-coverage-findings/.
141 Daniels, K. and Abma, J.C., CDC (2020).
‘‘Current Contraceptive Status Among Women Aged
15–49: United States, 2017–2019,’’ NCHS Data Brief
No. 388, available at https://www.cdc.gov/nchs/
products/databriefs/db388.htm.
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found that nearly two-thirds of survey
respondents who were not currently
trying to get pregnant reported avoiding
a pregnancy in the next month as being
‘‘very important.’’ 143 The same survey
found that among women who use
contraception, 61 percent use it only to
prevent pregnancy, 24 percent use it
both to prevent pregnancy and for some
other reason, and 15 percent use it
solely for a reason not related to
142 Id.
143 Frederiksen, B., Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-theunited-states-a-closer-look-at-experiencespreferences-and-coverage-findings/.
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preventing pregnancy (for example,
managing a medical condition or
preventing a sexually transmitted
infection).144 Individuals’ contraceptive
needs, including because of side effects,
can vary depending on their health
history, medical needs, allergies, and
other factors. A recent study that
reviewed two decades of literature on
contraception found that hormonal
contraceptives can impact medical
conditions associated with hormonal
fluctuations, including acne,
endometriosis, and premenstrual
dysphoric disorder.145 This and other
studies detail that combined hormonal
contraceptives and progestin-only pills
often have different side effects for
women with varying backgrounds or
medical conditions.146 Studies
emphasize that it is difficult to predict
how individuals will react to oral
contraceptives, with one noting that
‘‘certain side effects . . . may be
considered beneficial by some people
but unacceptable by others,’’ and that
‘‘different formulations have different
side effect profiles, so patients may need
to try another formulation if an
undesirable side effect occurs.’’ 147
Studies point to the fact that optimal
contraception selection depends on a
person’s health needs and personal
factors and preferences.148
A growing body of research finds
there is a mismatch between preferred
and commonly used contraception
methods.149 These studies find that
LARCs and hormonal methods generally
have higher rates of satisfaction than
condoms, withdrawal, and no method of
contraception. Nearly 25 percent of all
people, and nearly 30 percent of people
earning under 200 percent of the
Federal Poverty Line, are not using their
preferred method. People report using
less preferred methods due to issues
with side effects, cost and affordability,
inadequate counseling, and other access
barriers such as facilities not offering
the preferred method.150 The mismatch
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144 Id.
145 Teal, S. and Edelman, A. (2021).
‘‘Contraception Selection, Effectiveness, and
Adverse Effects: A Review,’’ JAMA, available at
https://pubmed.ncbi.nlm.nih.gov/34962522.
146 Britton, L.E., Alspaugh, A., Greene, M.Z., and
McLemore, M.R. (2020). ‘‘An Evidence-Based
Update on Contraception,’’ American Journal of
Nursing, available at https://www.ncbi.nlm.nih.gov/
pmc/articles/PMC7533104.
147 Id.
148 Id.
149 Burke, K. and Potter, J. (2023). ‘‘Meeting
Preferences for Specific Contraceptive Methods: An
Overdue Indicator,’’ Studies in Family Planning,
available at https://onlinelibrary.wiley.com/doi/
full/10.1111/sifp.12218.
150 Frederiksen, B., Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
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between preferred and used method was
found to be less common among those
with higher incomes, those with
insurance coverage, and those that have
a usual source of care.151 The literature
also finds that unsatisfied preferences
were associated with discontinuation of
contraception method and subsequently
higher rates of pregnancy, indicating
that reducing barriers that contribute to
this satisfaction mismatch has the
potential to reduce unwanted
pregnancies, especially among
underserved communities such as
women of color and low-income
communities.152
The 2022 KFF Women’s Health
Survey found that 77 percent of
respondents (and 79 percent of
respondents with private health
insurance coverage) favored making oral
contraceptive pills available OTC
without a prescription if research
showed they are safe and effective, and
39 percent of respondents indicated
they would be likely to use oral
contraceptive pills available OTC
without a prescription.153 The survey
further found that 29 percent of
respondents currently using oral
contraceptive pills would be ‘‘very
likely’’ to use OTC oral contraceptive
pills that do not require a prescription,
as would 19 percent of respondents
currently using other contraceptive
methods and 15 percent of respondents
currently not using any contraceptive
method.154 These figures indicate that
take-up of OTC contraceptive items
available without a prescription and
without cost sharing might be fairly
high. When asked why they would be
likely to use OTC oral contraceptive
pills, most respondents reported that it
is because they are more convenient (59
percent) or faster (15 percent), while 8
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-theunited-states-a-closer-look-at-experiencespreferences-and-coverage-findings and Burke, K.
and Potter, J. (2023). ‘‘Meeting Preferences for
Specific Contraceptive Methods: An Overdue
Indicator,’’ Studies in Family Planning, available at
https://onlinelibrary.wiley.com/doi/full/10.1111/
sifp.12218.
151 Burke, K. and Potter, J. (2023). ‘‘Meeting
Preferences for Specific Contraceptive Methods: An
Overdue Indicator,’’ Studies in Family Planning,
available at https://onlinelibrary.wiley.com/doi/
full/10.1111/sifp.12218.
152 Id.
153 This figure was the same (39 percent) among
the subset of respondents with private health
insurance coverage. See Long, M., Frederiksen, B.,
Ranji, U., Diep, K., and Salganicoff, A., KFF (2022).
‘‘Interest in Using Over-the-Counter Oral
Contraceptive Pills: Findings from the 2022 KFF
Women’s Health Survey,’’ available at https://
www.kff.org/womens-health-policy/issue-brief/
interest-using-over-the-counter-oral-contraceptivepills-findings-2022-kff-womens-health-survey.
154 Id.
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percent reported that they do not want
a physical or pelvic exam, 7 percent
reported that OTC oral contraceptive
pills are more confidential, 6 percent
reported that they think it would save
money, and 3 percent reported that they
do not want to have to use health
insurance.155 Coverage of OTC
contraceptive items without cost sharing
or a prescription requirement would be
particularly beneficial for certain
contraceptive users considering that 33
percent of hormonal contraceptive users
indicated that they missed taking their
birth control on time because they were
not able to get their next supply on
time 156 and 36 percent of oral
contraceptive users have missed taking
it on time for the same reason.157
More generally, as discussed in
section II of this preamble, cost sharing
reduces the use of preventive care, and
some individuals may forego a
preventive service entirely rather than
being forced to choose between a form
of care that their provider has
determined would not be medically
appropriate for them or to pay out-ofpocket for the care they need.
b. Number of Affected Entities
This section addresses entities that
would be directly affected by these
proposed rules. These proposed rules
would apply to non-grandfathered
group health plans and health insurance
issuers offering non-grandfathered
group or individual health insurance
coverage.158 For the purposes of this
RIA, the term covered plans refers to
these plan and coverage types. Health
insurance company refers to a single
entity that offers health insurance
coverage in one or multiple States,
which might own or be affiliated with
one or multiple entities that are
separately required to be licensed to
engage in the business of insurance in
each such State. Health insurance issuer
or issuer means an insurance company,
insurance service, or insurance
organization (including a health
maintenance organization (HMO)) that
is required to be licensed to engage in
155 Id.
156 Frederiksen, B., Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-theunited-states-a-closer-look-at-experiencespreferences-and-coverage-findings.
157 Long, M., Diep, K., Sobel, L. and Salganicoff,
A., KFF (2023). ‘‘Over-the-Counter Oral
Contraceptive Pills,’’ available at https://
www.kff.org/womens-health-policy/issue-brief/overthe-counter-oral-contraceptive-pills.
158 As noted in section I.A, these proposed rules
would not modify Federal conscience protections
related to contraceptive coverage for employers,
plans and issuers. See fn. 24.
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the business of insurance in a State and
that is subject to State law that regulates
insurance.
The Departments estimate that there
are 499,299 ERISA-covered self-insured,
non-grandfathered group health
plans 159 and 1,844,520 ERISA-covered
fully-insured, non-grandfathered group
health plans.160 The Departments
further estimate that there are 76,345
non-grandfathered non-Federal
governmental plans sponsored by State
and local governmental entities.161
Issuers and third-party administrators
(TPAs) provide key support for plan
compliance with laws and regulations.
Plans often have TPAs provide expertise
in plan design, establish networks, and
administer claims. For medications,
issuers and TPAs often provide these
services via contracted or affiliated
PBMs.
The Departments assume that issuers
and TPAs would be the organizations
performing the work of redesigning
159 The Departments estimate that there are
594,404 ERISA-covered self-insured group health
plans based on data from the 2022 Medical
Expenditure Panel Survey Insurance Component
(MEPS–IC) and the 2020 County Business Patterns
from the Census Bureau. The 2020 KFF Employer
Health Benefits Survey reported that in 2020, 16
percent of firms offering health benefits offered at
least one grandfathered health plan (see KFF, 2020
Kaiser Employer Health Benefits Survey, available
at https://files.kff.org/attachment/Report-EmployerHealth-Benefits-2020-Annual-Survey.pdf). Thus, the
Departments have calculated the number of selfinsured, non-grandfathered plans in the following
manner: 594,404 ERISA-covered self-insured group
health plans × (100 percent minus 16 percent) =
499,299.
160 The Departments estimate that there are
2,195,857 ERISA-covered fully-insured group
health plans based on data from the 2022 Medical
Expenditure Panel Survey Insurance Component
(MEPS–IC) and the 2020 County Business Patterns
from the Census Bureau. The 2020 KFF Employer
Health Benefits Survey reported that in 2020, 16
percent of firms offering health benefits offered at
least one grandfathered health plan (see KFF, 2020
Kaiser Employer Health Benefits Survey, available
at https://files.kff.org/attachment/Report-EmployerHealth-Benefits-2020-Annual-Survey.pdf). Thus, the
Departments have calculated the number of fullyinsured, non-grandfathered plans in the following
manner: 2,195,857 ERISA-covered fully-insured
group health plans × (100 percent minus 16
percent) = 1,844,520.
161 According to data from the 2022 Census of
Governments, there are 90,887 State and local
governmental entities (see U.S. Census Bureau,
2022 Census of Governments, available at https://
www.census.gov/data/tables/2022/econ/gus/2022governments.html). The Departments assume that
each State and local governmental entity sponsors
one health plan on average. Therefore, the
Departments estimate that there are 90,887 nonFederal governmental health plans. The 2020 KFF
Employer Health Benefits Survey reported that 16
percent of employers offer at least one
grandfathered plan (see KFF, 2020 Kaiser Employer
Health Benefits Survey, available at https://
files.kff.org/attachment/Report-Employer-HealthBenefits-2020-Annual-Survey.pdf). The
Departments therefore estimate there are
approximately 76,345 non-grandfathered nonFederal governmental plans.
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prescription drug formularies,
negotiating new or amended network
arrangements with pharmacies, and
developing any necessary amendments
and changes to billing systems and
procedures.
The Departments estimate that these
proposed rules would affect 479 health
insurance companies nationwide that
provide coverage in the group and
individual health insurance markets,
with 1,467 issuers (health insurance
company/State combinations).162
These proposed rules would also
affect pharmacies, given the coverage
requirements for OTC contraceptives
proposed in these proposed rules.
According to the Census Bureau’s
Statistics of U.S. Businesses, there are
19,234 firms in the pharmacies and drug
stores sector in the U.S. as of 2017.163
Because these proposed rules have the
potential to impact the gross premiums
of covered plans—either directly as paid
by plan participants and enrollees and/
or indirectly by their employers in lieu
of salary or other benefits—all
participants, beneficiaries, and enrollees
in affected plans may potentially be
affected by these proposed rules,
regardless of their use of contraceptive
items. For purposes of this RIA, covered
individuals refers to participants,
beneficiaries, and enrollees in covered
plans that are subject to the proposed
rules.
There are an estimated 181.4 million
individuals in plans that would be
affected by these proposed rules.164
162 The Departments’ estimate of the number of
health insurance companies and the number of
issuers (issuer/State combinations) is based on
medical loss ratio reports submitted by issuers for
the 2022 reporting year (see Centers for Medicare
& Medicaid Services, ‘‘Medical Loss Ratio Data and
System Resources (2022),’’ available at https://
www.cms.gov/CCIIO/Resources/Data-Resources/
mlr).
163 U.S. Census Bureau (2017). 2017 SUSB
Annual Data Tables by Establishment Industry
(Data by Enterprise Receipts Size), available at
https://www.census.gov/data/tables/2017/econ/
susb/2017-susb-annual.html.
164 The calculation (approximately 181,412,000
individuals) is based on reports of private insurance
coverage in the 2023 Current Population Survey
Annual Social and Economic Supplement (CPS–
ASEC). Private coverage in that survey includes
employment-based (including non-government,
non-Federal government, and Federal government
employment), directly purchased (Exchange and
non-Exchange), and TRICARE coverage. To arrive at
the number of covered individuals (which excludes
TRICARE enrollees), the Departments remove from
the count respondent households for which the
respondent is a member of the military. It also
removes respondents who are over 65 or who report
government insurance (such as Medicare, Medicaid,
or VA) in addition to private insurance. The
Departments view this calculation as an upper
bound because the data are not sufficient to identify
and exclude enrollees in grandfathered plans or
individuals in non-ACA compliant individually
purchased plans. The Departments do not have an
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85777
Within this total, there are an estimated
21 million covered individuals enrolled
in coverage provided through an
Exchange (with approximately 16
million policyholders).165 This separate
tally of Exchange enrollees is used as an
input to the estimation of the net
Federal spending impact of these
proposed rules in the transfers section
IV.B.2.e of this preamble.
Among individuals in covered plans,
the Departments estimate that 51.71
million individuals (28.5 percent) are
women of reproductive age (15–49).166
The Departments calculate, based on
data from the 2017–2019 National
Survey of Family Growth (NSFG),167
that 29.4 percent of women of
reproductive age who have private
health insurance are using contraceptive
items that are (only now, in the case of
oral contraceptive pills) available OTC
(oral contraception pills, condoms, and/
or emergency contraception) in a given
enrollment month. This estimate is
somewhat higher than the 2020 estimate
by the National Center for Health
Statistics (approximately 22.4 percent),
given that the Departments’ analysis
restricts its calculations to women who
estimate of the relevant number of enrollees in
either of these plan types; the latest available data
on percentage of enrollees in grandfathered plans is
from the 2020 KFF Employer Health Benefits
Survey. See KFF, 2020 Kaiser Employer Health
Benefits Survey, available at https://files.kff.org/
attachment/Report-Employer-Health-Benefits-2020Annual-Survey.pdf, reporting that 14 percent of
individuals were enrolled in grandfathered plans.
However, the number has been declining since
2011, falling from 56 percent in 2011. See KFF,
2018 Kaiser Employer Health Benefits Survey,
Figure 13.3, available at https://files.kff.org/
attachment/Report-Employer-Health-BenefitsAnnual-Survey-2018). In the absence of more recent
data, the Departments cannot rule out that the rate
has continued to fall.
165 See CMS, ‘‘Open Enrollment Period Report:
Final National Snapshot,’’ available at https://
www.cms.gov/newsroom/fact-sheets/marketplace2024-open-enrollment-period-report-final-nationalsnapshot (reporting 21,310,538 Exchange enrollees).
The estimated conversion between total enrollees
and policyholders—15 enrollees per 11
policyholders—is based on medical loss ratio
reports submitted by issuers for the 2021 reporting
year, in which the number of policyholders in
individual health insurance coverage offered in the
individual market was approximately 11 million,
and the number of enrollees was approximately
15,000,000. See CMS (2022), ‘‘Medical Loss Ratio
Data and System Resources,’’ https://www.cms.gov/
CCIIO/Resources/Data-Resources/mlr.
166 The calculation is based on the reports of
private insurance coverage in the 2023 CPS–ASEC.
The calculation specifically includes all individuals
who report their sex as female and are of age 15 to
49 years. Private insurance coverage includes those
covered by directly purchased (Exchange and nonExchange) and employment-based health insurance.
Those in the armed services are excluded from the
calculation.
167 See CDC, ‘‘2017–2019 NSFG: Public-Use Data
Files, Codebooks, and Documentation,’’ available at
https://www.cdc.gov/nchs/nsfg/nsfg_2017_2019_
puf.htm.
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report enrollment in private health
insurance coverage.168 Thus, the
Departments estimate that 15.2 million
individuals (8.4 percent of all
individuals in covered plans) are
women of reproductive age using these
forms of contraceptives.169 The
Departments request comment on this
analysis.
Table 2 summarizes the number of
entities that would be affected by these
proposed rules.
TABLE 2—NUMBER OF AFFECTED ENTITIES
Affected entity
Number of entities
ERISA-covered non-grandfathered group health plans ................................................................................................................
ERISA-covered self-insured, non-grandfathered group health plans ....................................................................................
ERISA-covered fully-insured, non-grandfathered group health plans ...................................................................................
Non-grandfathered non-Federal governmental plans ...................................................................................................................
Issuers (health insurance company/State combinations) ..............................................................................................................
Pharmacies and drug stores .........................................................................................................................................................
Covered individuals .......................................................................................................................................................................
c. Benefits
This analysis provides a qualitative
discussion of the benefits associated
with these proposed rules, as the
Departments do not have the data
necessary to quantify these benefits. The
Departments request comment and data
on how to quantify these benefits.
(1) Enhanced Coverage of a Wider Range
of Preventive Services Without Cost
Sharing for Eligible Individuals Leading
to a Potential Reduction in Unintended
Pregnancies and Improved Health
Outcomes for Individuals
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The potential for these proposed rules
to facilitate greater coverage of a wider
range of preventive services without
cost sharing for eligible individuals
could lead to important benefits to
health and satisfaction (for example, in
the form of better matches between
chosen contraceptive items and
individuals’ medical needs and
preferences). There is clear evidence
that many contraceptive users are not
using their preferred form of
contraception because of concerns about
side effects, cost, or availability, for
example.170 Greater flexibility in
contraceptive choice could directly
improve quality of life, including by
minimizing side effects and facilitating
covered individuals in optimizing
contraceptive use according to their
168 See CDC, ‘‘Current Contraceptive Status
Among Women Aged 15–49: United States, 2017–
2019,’’ available at https://www.cdc.gov/nchs/data/
databriefs/db388-H.pdf (estimating that
approximately 65 percent of women ages 15–49
were currently using contraception. By method,
these included female sterilization (18.1 percent),
oral contraceptive pills (14.0 percent), LARCs (10.4
percent), male condoms (8.4 percent), male
sterilization (5.6 percent), Depo-Provera,
contraceptive ring, or patch (3.1 percent), and 5.7
percent across all other methods (includes
diaphragm, withdrawal, periodic abstinence with
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2,343,819
499,299
1,844,520
76,345
1,467
19,234
181,412,000
unique needs and preferences.
Improved satisfaction with one’s
contraceptive method, including by
reducing unwanted side effects, would
be an important benefit of these
proposed rules. Given the many
variations of contraceptive drugs or
drug-led combination products, each
with different hormonal properties,
dosage levels, physical properties,
delivery mechanisms, side effects, and
benefits, there is significant need for
individual tailoring and choice. Better
aligning contraceptive use with a
method or product with preferred health
outcomes could be a source of major
health improvements for covered
individuals, as discussed further in this
section. The ability to select among
more contraceptive options at zero cost
may facilitate such alignment, helping
more women find a contraceptive that
works best for their medical needs.
Increased coverage of medically
necessary preventive services without
cost-sharing requirements through the
use of an exceptions process would
have a similar effect of expanding
covered individuals’ ability to access
and use appropriate recommended
preventive services by eliminating a
financial barrier to receiving medically
necessary care.
The Departments recognize the
potential for a reduction in unintended
pregnancies and improved health
outcomes as a result of these proposed
rules. First, a reduction in unintended
pregnancies and improved health
outcomes could result from increases in
the share of covered women who use
contraception.171 Second, these
proposed rules could induce some
contraceptive switching among covered
women already using reversible
contraception that could create a closer
match between the contraceptive
method or product with the best
medical outcomes for the individual
and the method or product they
currently use. In such cases, individuals
able to switch to a method or product
with the best medical outcome for them
may more reliably adhere to the relevant
usage recommendations.172
Any benefit of reducing unintended
or unplanned pregnancies would scale
in proportion to the extent of new (or
more reliable) use of contraception. The
Departments do not have the data
necessary to precisely estimate the
extent of such an expansion in
contraception use along both the
extensive (new use) and intensive (more
reliable use) margins, but anticipate
relatively small effects on the number of
women newly using any contraceptives
as a result of the proposed rules, as
discussed later in this section.
safe period assessed via calendar rhythm,
temperature, or cervical mucus test)).
169 Approximately 181.4 million individuals in
covered plans, times 28.5 percent who are women
of reproductive age, times 29.4 percent of these who
are assumed to use recommended OTC
contraceptives, per the NSFG analysis (see https://
www.cdc.gov/nchs/nsfg/nsfg_2017_2019_puf.htm).
170 Frederiksen, B., Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-the-
united-states-a-closer-look-at-experiencespreferences-and-coverage-findings.
171 See CDC, ‘‘Reproductive Health, Unintended
Pregnancy,’’ available at https://www.cdc.gov/
reproductive-health/hcp/unintended-pregnancy/
index.html (finding that 41.6 percent of pregnancies
were unintended).
172 Fiffick, A.N., Iyer, T.K., Cochran, T., and
Batur, P. (2023). ‘‘Update on Current Contraceptive
Options: A Case-based Discussion of Efficacy,
Eligibility, and Use.’’ Cleveland Clinic Journal of
Medicine, available at: https://www.ccjm.org/
content/ccjom/90/3/181.full.pdf.
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Studies have consistently shown that
approximately 70 percent of privately
insured women who use contraception
have the cost of their method covered in
full by private health insurance.173
These studies include evidence on the
share of privately-insured women who
do not pay cost sharing for oral
contraceptives after passage of the
ACA.174 That these proposed rules
would apply to a population of
privately-insured women who already
have coverage of certain contraceptives
without cost sharing suggests the
possibility of a small net effect on any
contraception use for covered
individuals. For example, in the 2022
KFF Women’s Health Survey, only 4
percent of respondents reported cost as
a reason for not using birth control, and
this figure included individuals who
did not have health insurance.175
Nonetheless, it is plausible that by
providing coverage without cost sharing
for a wider variety of contraceptive
items, these proposed rules could
induce new take-up among covered
individuals who were previously
dissuaded from contraceptive use
because of cost and accessibility
considerations related to their preferred
method, as discussed in section IV.B.2.a
of this RIA. Further, medication
adherence and consistent use of
contraception could be improved if
more covered individuals have coverage
of their preferred method without cost
sharing. In the 2022 KFF Women’s
Health Survey, among female
contraceptive users ages 18–49 who
were not using their preferred
contraceptive method, 12 percent of
survey respondents indicated that the
primary reason for not doing so was
because they could not afford it.176 A
third of women report not using
contraception due to concerns over side
effects,177 the burden of which could be
173 Frederiksen, B., Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-theunited-states-a-closer-look-at-experiencespreferences-and-coverage-findings/#ContraceptiveCoverage.
174 Sonfield, A., Tapales, A., Jones, R.K., and
Finer, L.B. (2015). ‘‘Impact of the Federal
Contraceptive Coverage Guarantee on Out-of-Pocket
Payments for Contraceptives: 2014 Update,’’
Contraception, available at https://pubmed.ncbi.
nlm.nih.gov/25288034/.
175 Frederiksen, B., Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-theunited-states-a-closer-look-at-experiencespreferences-and-coverage-findings.
176 Id.
177 Id. (‘‘Among reproductive age females who are
able to conceive and are not pregnant or trying to
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lessened by expanding the selection of
covered contraceptive product choice
available without cost sharing. Such
considerations could be important given
that women using contraception—
especially women with low incomes
and women using less effective
contraceptive methods—often report a
mismatch between their most preferred
contraceptive method and the method
they usually use.178
Historically, more comprehensive
coverage of contraceptive services has
been shown to improve the consistent
use of the most effective short-acting
methods of contraception, and the
removal of cost sharing also increases
the use of more effective LARC
methods.179 One study found that
following the implementation of the
ACA contraceptive coverage
requirement, the discontinuation of use
of oral contraceptive pills fell and
nonadherence to brand-name oral
contraceptive pills also declined.180
Therefore, beyond the direct benefits
of improved satisfaction with
contraceptive method—due to, for
example, reductions in side effects—
remedying the misalignment between
contraceptive preference and
contraceptive use could lead to fewer
unplanned pregnancies because of
lower rates of discontinuation.181
While the Departments do not
anticipate that the proposed
requirement in these proposed rules to
cover OTC contraception without cost
sharing would substantially affect the
overall rate of birth control use, to the
extent that access to and use of OTC and
become pregnant who are not using contraception,
four in ten say it is because they did not want to
use birth control (42 [percent]). One in three
females who are not currently using contraception
report concern about side effects (32 [percent]), and
one in five (22 [percent]) say they don’t really mind
if they become pregnant.’’)
178 He, K., Dalton, V.K., Zochowski, M.K., and
Hall, K.S. (2017). ‘‘Women’s Contraceptive
Preference-Use Mismatch,’’ Journal of Women’s
Health, available at https://pubmed.ncbi.nlm
.nih.gov/27710196 and Burke, K. and Potter, J.
(2023). ‘‘Meeting Preferences for Specific
Contraceptive Methods: An Overdue Indicator,’’
Studies in Family Planning, available at https://
pubmed.ncbi.nlm.nih.gov/36705876.
179 Behn, M., Pace L.E., and Leighton, K. (2019).
‘‘The Trump Administration’s Final Regulations
Limit Insurance Coverage of Contraception,’’
Women’s Health Issues, available at https://
www.whijournal.com/article/S1049-3867(18)307515/fulltext.
180 Pace, L., Dusetzina, S., and Keating, N. (2016).
‘‘Early Impact of the Affordable Care Act on Oral
Contraceptive Cost Sharing, Discontinuation, and
Nonadherence,’’ Health Affairs, available at https://
www.healthaffairs.org/doi/10.1377/hlthaff.2015.
1624.
181 Burke, K. and Potter, J. (2023). ‘‘Meeting
Preferences for Specific Contraceptive Methods: An
Overdue Indicator,’’ Studies in Family Planning,
available at https://pubmed.ncbi.nlm.nih.gov/
36705876.
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other contraceptive items, without cost
sharing, is increased, it is expected to
provide better matching of preferred
contraceptive items and thus may
ultimately improve health outcomes.
The Departments also anticipate that
improved health outcomes would result
from enhanced coverage of a wider
range of recommended preventive
services without cost sharing through
the use of an exceptions process for
recommended preventive services
offered by plans and issuers. Covered
individuals would have coverage of
medically necessary preventive services
because of this provision, whereas
under current regulations they might be
more likely to pay for such services outof-pocket or forgo such services.
The Departments request comment on
this analysis.
(2) Increased Convenience and
Decreased Costs for Covered Individuals
Who No Longer Need a Prescription To
Obtain Recommended OTC
Contraceptive Items
The Departments anticipate that some
covered individuals would benefit from
the provision of these proposed rules
that would require plans to cover
recommended OTC contraceptive items
without a prescription and without cost
sharing because these individuals
would face reduced transportation costs,
childcare costs, and/or time costs that
would otherwise be incurred due to
scheduling, travelling to, and attending
health care provider visits in order to
obtain prescriptions for contraceptives.
Some covered individuals would also
benefit from this provision if they
cannot secure timely access to
appointments to obtain a prescription,
particularly if the individuals are in
areas with primary care shortages. Outof-pocket visit costs, if any, would also
be avoided. Any such effects would be
proportional to the number of covered
individuals forgoing such provider
visits as a result of this proposed
provision, and therefore dependent on
both the share of contraceptive users
who switch methods from a prescription
contraceptive to an OTC product and on
the subset of these switchers who forgo
provider visits that would otherwise
have been needed for a contraceptive
prescription.
As discussed further in section
IV.B.2.f of this preamble, the
Departments do not anticipate a
significant share of covered individuals
to both switch methods from
prescription contraceptives to OTC
contraceptives and make fewer
preventive health care visits. The
Departments assume that even among
covered women who would avail
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(1) Increased Costs to Plans and Issuers
Due to a Change in Utilization of
Preventive Services, and Decreased
Costs Due to Improved Health Outcomes
and Avoided Unintended Pregnancies
Previous analysis by the Office of the
Assistant Secretary for Planning and
Evaluation (ASPE), which evaluated the
impacts of the ACA’s original
contraceptive coverage requirements,
found no likely net impact on gross
costs of expanding utilization for
contraception: ‘‘While the costs of
contraceptives for individual women
can be substantial and can influence
choice of contraceptive methods,
available data indicate that providing
contraceptive coverage as part of a
health insurance benefit does not add to
the cost of providing insurance
coverage.’’ 183 This conclusion was
reached based on a review of the
literature and of case studies on how
expanding access to reproductive care
affected insurance costs and gross
premiums. For example, in 1999,
Congress required the health plans in
the Federal Employees Health Benefits
(FEHB) program to cover the full range
of FDA-approved contraceptive
methods. ASPE concluded: ‘‘When
medical costs associated with
unintended pregnancies are taken into
account, including costs of prenatal
care, pregnancy complications, and
deliveries, the net effect on premiums is
close to zero.’’ 184 This conclusion
echoes the conclusion of earlier
studies.185 The Departments are aware
that the health insurance market has
evolved since the publication of this
study but are of the view that the
general results of this analysis are still
relevant today.
The Departments assume that, unlike
the initial introduction of contraceptive
coverage requirements under the ACA,
these proposed rules would have small
impacts on the fraction of covered
women using contraception, as
approximately 70 percent of this
population of covered women that uses
contraception already has coverage for
contraception through private insurance
without cost sharing.
Nonetheless, in line with the findings
of ASPE and others, the Departments
assume that any increase in
contraception utilization, however
small, induced by these proposed rules
would not increase net insurer claims
costs and thus not increase gross
premiums. This effect is separate from
the transfers created by shifting the out-
182 Swan, L.E.T. (2021). ‘‘The Impact of US Policy
on Contraceptive Access: A Policy Analysis,’’
Reproductive Health, available at https://
reproductive-health-journal.biomedcentral.com/
articles/10.1186/s12978-021-01289-3 and Planned
Parenthood Federation of America (2014). ‘‘New
Study on Birth Control Use Shows That, When
Fully Implemented, the Affordable Care Act Could
Dramatically Reduce Unintended Pregnancy in the
U.S.,’’ available at https://
www.plannedparenthood.org/about-us/newsroom/
press-releases/new-study-birth-control-use-showswhen-fully-implemented-affordable-care-act-coulddramatically.
183 Bertko, J., Glied, S., Miller, E., Simmons, A.,
and Wilson, L., ASPE (2012). ‘‘The Cost of Covering
Contraceptives through Health Insurance,’’
available at https://aspe.hhs.gov/reports/costcovering-contraceptives-through-health-insurance.
184 Id.
185 Trussell, J., Leveque, J.A., Koenig, J.D.,
London, R., Borden, S., Henneberry, J., LaGuardia,
K., Stewart, F., Wilson, G., Wysocki, S., and Strauss,
M. (1995). ‘‘The Economic Value of Contraception:
A Comparison of 15 Methods,’’ American Journal of
Public Health, available at http://
ajph.aphapublications.org/doi/pdf/10.2105/
AJPH.85.4.494.
themselves of the new OTC benefit in
these proposed rules, nearly all would
continue to utilize preventive care
visits. Therefore, while the benefits of
reduced burdens associated with
reduced health care visits could be
significant for any individuals who see
providers less frequently as a result of
this proposed provision, the
Departments do not anticipate such
averted benefits (or costs) would accrue
to a significant fraction of covered
individuals. The Departments request
comment on this analysis.
(3) Potential Benefits of Increased
Transparency by Expanding Awareness
of Coverage of OTC Contraceptive Items
Without a Prescription and Without
Cost Sharing
Studies have found that increased
transparency about contraceptive care
options and service costs are essential
for improving contraceptive access by
increasing public awareness and
understanding about current health care
policy and opportunities, and when
women are fully informed about
available contraceptive methods and
find them affordable, they are more
likely to use them consistently.182
Overall, making information about
OTC contraceptive coverage without a
prescription and without cost sharing
available to participants, beneficiaries,
and enrollees can result in better health
outcomes, as discussed in more detail in
this section IV.B.2.c of this preamble.
The Departments request comment on
this analysis.
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d. Costs
This section provides a qualitative
and quantitative discussion of the costs
associated with these proposed rules.
The Department request comment and
data on how to better quantify these
costs.
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of-pocket cost burden from the covered
individual to the plan, which are
accounted for separately. The
Departments request comment on this
analysis.
The Departments also anticipate that
the establishment or use of an existing
exceptions process by plans and issuers
that would allow covered individuals to
access coverage of certain recommended
preventive services without cost sharing
would also lead to a decrease in out-ofpocket costs for these preventive
services and a corresponding increase in
utilization or switching from other
preventive services. The Departments
expect that this change would increase
net claims costs initially and potentially
over time. Plans and issuers could
experience claims cost savings that at
least partially offset these new costs,
due to improved health outcomes
associated with increased utilization of
certain recommended preventive
services.
The Departments request comment
and data on how the costs to plans and
issuers would change due to a change in
utilization of preventive services
associated with these proposed rules.
(2) Costs to Pharmacies and Plans and
Issuers To Update Billing Processes and
Systems for Covered OTC Products
The Departments anticipate that
pharmacies, as well as plans and
issuers, would incur some upfront and
annual operational and administrative
costs in order to comply with the
coverage requirements for OTC
contraceptives in these proposed rules,
but do not have information necessary
to estimate such costs.
For pharmacies, the Departments
anticipate costs would include updating
real-time claims adjudication systems
and processes for their point-of-sale
systems. The Departments are aware
that there are uncertainties regarding
how pharmacies could adapt existing
systems, including the requirements in
some point-of-sale systems to fill in a
‘‘prescriber NPI,’’ which would not exist
in its usual form for OTC products. The
Departments are aware of at least one
large pharmacy chain that has already
implemented insurance coverage for an
OTC oral contraceptive pill at the
pharmacy counter by setting up codes
for insurance reimbursement with realtime claim adjudication. The
Departments lack information regarding
how widespread such existing
capabilities are among pharmacies and
thus the costs of transitioning systems
and processes that do not yet have these
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capabilities.186 The Departments request
comment on the potential changes that
pharmacies would have to make to their
systems and processes and the
corresponding burden and costs.
The Departments anticipate that plans
and issuers would incur costs associated
with updating IT systems and processes
to process claims. Plans and issuers
would also have to develop, if they have
not already, processes aimed at
preventing fraud, waste, and abuse for
OTC products, which could include
processes to monitor utilization. Plans
and issuers routinely do such
monitoring for prescription products in
order to, for example, enforce
reasonable quantity limits. The
Departments request comment on the
costs and any associated burden that
would be borne by plans and issuers to
update their systems and processes.
The Departments do not anticipate
significant costs associated with
formulary redesign to accommodate
OTC products, as formularies are
regularly updated even in the absence of
any relevant policy changes and plans
and issuers are already required to cover
OTC products without cost sharing
when the patient has a prescription. For
the same reason, the Departments do not
anticipate significant costs associated
with formulary redesign to comply with
the provision of the proposed rules
requiring coverage of every
recommended contraceptive drug and
drug-led combination product without
cost sharing unless a therapeutic
equivalent is covered without cost
sharing.
The Departments also anticipate some
costs to pharmacies, as well as plans
and issuers, associated with negotiating
new contract terms for OTC coverage.
Despite the costs to pharmacies
identified in this section, the
Departments anticipate that pharmacies
would see increased revenues from sales
of covered OTC contraceptives, and that
associated profit increases (if they
occur) might offset these costs from the
pharmacies’ perspective.
The Departments request comment on
the potential costs (and revenues) to
186 One analogous example of widespread
implementation of over-the-counter insurance
coverage is the recent COVID–19 pandemic when
COVID tests were available over-the-counter at no
cost sharing. See Huber, K., T. Roades, A. Higgins,
M. Aspinall, C. Silcox, and M. McClellan, Duke
University Margolis Center for Health Policy,
(2022). ‘‘Over the Counter COVID–19 Testing:
Insurance Coverage Strategies to Support Equitable
Access,’’ available at https://healthpolicy.duke.edu/
sites/default/files/2022-05/Margolis%20OTC%20
Testing.pdf. It remains unclear how these
preparations might affect the cost of
implementation of these proposed rules, but it is
likely that this prior work may—to some extent—
mitigate costs.
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pharmacies and costs to plans and
issuers associated With the changes in
these proposed rules.
(3) Potential Administrative Costs to
Plans and Issuers Associated With the
Establishment or Use of an Existing
Exceptions Process
Plans and issuers could incur
administrative costs associated with the
establishment or use of an existing
exceptions process that allows an
individual to receive coverage without
cost-sharing requirements for a
medically necessary recommended
preventive service. The Departments
assume that most plans and issuers have
an exceptions process in place that they
would be able to adapt for the provision
in these proposed rules. However, those
that do not would incur costs to develop
one. The Departments do not have
information about the percentage of
plans and issuers that currently have an
exceptions process in place that could
be adapted for the provision in these
proposed rules or the upfront and
recurring costs that plans and issuers
would incur to establish one. The
Departments request comment on the
potential costs to plans and issuers
associated with this provision.
(4) Costs to Issuers and TPAs (on Behalf
of Self-Insured Group Health Plans)
Associated With the Disclosure of
Coverage and Cost-Sharing
Requirements for OTC Contraceptive
Items
As detailed in section IV.D of this
preamble, issuers and TPAs,187 on
behalf of self-insured group health
plans, would incur costs associated with
the disclosure of coverage and costsharing requirements for OTC
contraceptive items. Specifically,
issuers and TPAs would incur one-time
costs of $35,089,261 to integrate the
contraception statement language into
the existing Transparency in Coverage
internet-based self-service tool,188 and
to create or update a web page to
187 The
Departments assume that fully-insured
group health plans would depend on health
insurance issuers and self-insured group health
plans would rely on TPAs to implement the
proposed requirements. The Departments expect
self-insured group health plans would compensate
TPAs accordingly and thereby bear any
implementation costs.
188 The Departments expect that while
participants, beneficiaries, and enrollees will
continue to request cost-sharing information on
paper in certain circumstances, the proposed
additional disclosure would impose negligible
additional burden on plans and issuers as the
disclosure will likely be no more than one or two
sentences and would only be required when a
participant, beneficiary, or enrollee requests costsharing information for a subset of covered items
and services, covered contraceptive items and
services.
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provide information about coverage of
contraceptive items and services.
Additionally, issuers and TPAs would
incur annual costs of $6,091,096 for
programming updates, web page
maintenance, training customer service
representatives, and responding to calls
to provide assistance. These costs would
ultimately be incurred by plans and
issuers and, in turn, by covered
individuals through a minimal impact
on premiums. The Departments request
comment on the costs to issuers and
TPAs associated with this provision.
e. Transfers
Eliminating cost sharing for some
contraceptive items has the potential to
affect transfers associated with
contraceptive items and insurance
coverage. Specifically, the Departments
expect these proposed rules would
result in transfers from plans and
issuers to covered individuals resulting
from reduced out-of-pocket costs for
contraceptive items, which are
estimated to be mostly paid by covered
individuals experiencing higher
premiums, with a smaller portion paid
by the Federal government through
premium tax credit (PTC) spending. The
Departments also expect these proposed
rules would result in transfers from
plans and issuers (and potentially
premium-payers and the Federal
government) to pharmacies, drug
wholesalers, and drug manufacturers
resulting from anticipated shifts in
formulary design and utilization
management that could affect plan-paid
prices for some contraceptive items.
Lastly, the Departments expect these
proposed rules would result in transfers
associated with the use of an exceptions
process for covered individuals to
access coverage without cost sharing of
certain recommended preventive
services but are unable to quantify the
magnitudes of these transfers due to a
lack of data, as discussed later in this
section.
(1a) Transfers From Plans and Issuers to
Covered Individuals Resulting From
Reduced Out-of-Pocket Costs for
Contraceptive Items
The Departments expect that the
proposed elimination of cost sharing for
a wider variety of contraceptive items
would lead to transfers from plans and
issuers to covered individuals due to
reduced out-of-pocket spending on
contraceptive services. (Analysis of who
ultimately pays these transfers is
presented in the next sub-section.)
These transfers would accrue to covered
individuals who are women of
reproductive age, who use a
contraceptive method, who—in the
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absence of the proposed changes—
would otherwise pay some non-zero
cost-sharing amount for contraceptives,
and whose out-of-pocket costs would be
reduced by these proposed rules. As per
the calculation in section IV.B.2.b of
this preamble, approximately 15.2
million individuals (8.4 percent of
individuals in covered plans) are
women of reproductive age using those
noted forms of contraceptives. The 2022
KFF Women’s Health Survey showed
that among privately-insured women
using contraception, 70 percent reported
that insurance covered their
contraceptive method with no cost
sharing, and 16 percent reported that
insurance paid some but not all of the
cost.189 The remaining 13 percent of
respondents paid out-of-pocket despite
being insured, believed contraception
not to be covered by insurance, or
replied in some other way.190
In terms of consumer response, lack of
knowledge about plan benefits and
features as well as preference for noncovered contraceptive items (for
example, a branded drug in the presence
of a generic drug with no cost sharing)
may explain some of the incomplete
take-up of zero cost-sharing options
under the status quo, and such frictions
and preferences might persist to some
degree under the proposed rules.
Therefore, the Departments assume
that—as under the status quo—some
covered women would continue to pay
out-of-pocket for contraceptives,
including by not using insurance when
insurance could cover some or all of the
out-of-pocket costs. The Departments
operationalize this assumption by
assuming that the 16 percent of women
who currently use insurance but face
non-zero cost sharing due to partial
insurance coverage would instead face
zero cost sharing under these proposed
rules, while the 13 percent 191 of
contraceptive users who are insured but
do not use insurance coverage for their
contraceptive items would continue to
189 Frederiksen, B, Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-theunited-states-a-closer-look-at-experiencespreferences-and-coverage-findings/.
190 The Departments note that studies of out-ofpocket spending for contraception based on
examination of health care claims cannot speak to
the issue of an insured woman not making use of
insurance for a contraceptive purchase—a case that
would not generate an insurance claim.
191 This is the sum of the 6 percent of users whose
plan does not cover contraception, the 4 percent of
users who reported ‘‘Other,’’ and the 3 percent of
users who had coverage but did not use it. The
Departments note that these proposed rules could
induce this final category of users to switch to a
covered OTC method, but the Departments do not
assume this is the case.
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not use insurance coverage.192 The
Departments estimate that among the
subset of covered individuals for whom
contraceptives are covered with nonzero cost sharing (16 percent of
contraceptive users and therefore
estimated to be approximately 1.3
percent of the total covered
population) 193 these proposed rules
would decrease average cost sharing by
a maximum of $316 per year.194
Therefore, the Departments estimate a
total transfer of approximately $768.7
million per year to contraceptive users
in the form of reduced out-of-pocket
payments.195
(1b) Transfers From Covered Individuals
and From the Federal Government to
Plans and Issuers in the Form of Higher
Premiums (Analysis of Who Pays for the
Transfers Estimated Above)
The Departments assume these
proposed provisions would cause plans
and issuers to increase premiums to
approximately offset the new net costs
incurred by lower cost sharing. In other
words, the Departments assume the cost
of decreased cost sharing would be
passed on to premium payers. From a
total decline in out-of-pocket payments
of $768.7 million per year, the
Departments estimate that these
proposed rules would increase annual
gross premiums by about $4.24 per
covered individual or less than 0.1
192 Frederiksen, B, Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ Fig. 14, available at
https://www.kff.org/report-section/contraception-inthe-united-states-a-closer-look-at-experiencespreferences-and-coverage-findings.
193 8.4 percent of covered individuals are women
of reproductive age who are currently using
contraception, and 16 percent of these women face
some out-of-pocket costs for contraception = 1.3
percent.
194 The Departments calculate the typical
monthly out-of-pocket costs for those individuals
who use insurance but pay a non-zero amount by
estimating a weighted average of out-of-pocket
amounts as reported in the KFF survey: 24 percent
reporting $50 or more, 13 precent reporting $25–
$49, 19 percent reporting $15–$24, 26 percent
reporting $5–$14, and 6 percent reporting $1–$4,
and 12 percent reporting ‘‘Don’t know.’’ Taking
midpoints of these ranges, assuming a $50 monthly
payment for the top category, and excluding
individuals who report ‘‘don’t know’’ yields $26.29
per month (=((.24*50)+(.13*37)+
(0.19*19.5)+(.26*9.5)+(.06*2.5))/(1¥.12)) or
$315.50 annually. The Departments assume that the
estimated 16 percent of covered women with partial
coverage would face zero cost sharing under these
proposed rules, while the remaining 14 percent of
covered women, who currently do not report using
insurance for contraceptives, would not experience
a significant decline in out-of-pocket costs.
195 Approximately 1.3 percent of the covered
population (approximately 181.4 million
individuals) times a $316 reduction in out-of-pocket
costs = $768.7 million.
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percent.196 Premium payers include
employer plan participants—both
directly through employee contributions
to premiums and indirectly by
reductions in salary compensation or
other benefits—and individuals
purchasing plans outside of the
employment context (on or off an
Exchange). Because these proposed
provisions would increase the cost of
employer-sponsored insurance and
reduce the share of total compensation
subject to taxation, the Departments
estimate these changes would reduce
Federal tax revenue by $217 million
annually. Because these proposed
provisions are expected to increase
gross premiums for individual health
insurance coverage purchased on the
Exchanges, the Departments estimate
and anticipate an $83.1 million annual
increase in net Federal premium tax
credit (PTC) spending.197 The annual
Federal budgetary transfers would
therefore amount to an estimated $300.1
million ($217 million reduction in
Federal tax revenue plus $83.1 million
increase in net Federal PTC spending).
196 Approximately $768.7 million in new plan
costs divided across 181.4 million covered
individuals = $4.24 in annual premiums. Of the
181.4 million covered individuals, the CMS 2023
Open Enrollment Report indicates there are 16.4
million consumers enrolled in health insurance
plans purchased through an Exchange and that the
average annual premium for single coverage for
Exchange coverage is $7,260 ($605 per individual
per month). The Departments assume that the
average annual premium for off-Exchange single
coverage would be comparable to this figure. 2023
KFF data indicate that the average annual premium
for (single) group comprehensive insurance is
$8,435. The Departments assume that the average
annual premium for (single) non-Federal
government plan coverage would be comparable to
this figure. Based on these figures and assumptions,
the weighted average annual premium would be
expected to increase by about 0.05 percent. See
CMS, ‘‘Health Insurance Marketplaces 2023 Open
Enrollment Report,’’ available at https://
www.cms.gov/files/document/health-insuranceexchanges-2023-open-enrollment-report-final.pdf
and KFF, ‘‘2023 Employer Health Benefits Survey,’’
available at https://www.kff.org/health-costs/report/
2023-employer-health-benefits-survey.
197 The Departments have estimated this net
Federal spending transfer effect by assuming that
the expected $4.24 increase in annual gross
premiums will apply to the second-lowest-cost
silver plans in each market, and that each dollar of
increased silver plan premiums generates exactly a
dollar of additional net Federal PTC spending for
individuals receiving PTCs. A $4.24 increase in per
capita annual gross premiums, times 21,310,538
Exchange annual enrollees (as reported above),
times 92 percent of enrollees receiving PTCs, equals
approximately $83.1 million. This estimate does not
account for the expiration of the enhanced PTC
subsidies at the end of 2025, which would likely
reduce the level of Exchange enrollment (or at least
reduce enrollment growth), reduce the share of
enrollees receiving PTCs, and therefore reduce net
Federal PTC spending. Source of fraction receiving
PTCs: Effectuated Enrollment: Early 2024 Snapshot
and Full Year 2023 Average, available at https://
www.cms.gov/files/document/early-2024-and-fullyear-2023-effectuated-enrollment-report.pdf.
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The remainder of the estimated $768.7
million in annual transfers, or
approximately $468.6 million ($768.7
million minus $300.1 million), is
expected to be paid by covered
participants and enrollees (directly or
indirectly, as discussed earlier in this
section) through increased premiums
paid to plans and issuers and
subsequent reductions to employees’
taxable wages. However, the
Departments acknowledge that
employers could also offset plan or
coverage cost increases through
increased prices for consumers, reduced
production costs (for example, layoffs,
other reductions to labor costs, or other
production cost reductions), or lower
profits, for example. The Departments
request comment on and evidence
regarding the extent to which new net
costs incurred by lower cost sharing for
contraceptive items would be passed
along to covered individuals through
increases in premiums.
(2) Transfers Associated With the Use of
an Exceptions Process
The Departments anticipate that the
increased access to coverage without
cost sharing of other recommended
preventive services through the use of
an exceptions process would generate
transfers caused by reduced out-ofpocket costs for other recommended
preventive services for which coverage
without cost sharing would be
accessible through an exceptions
process.
More specifically, the Departments
anticipate that the increased access to
coverage without cost sharing of other
preventive services through the use of
an exceptions process would generate
transfers; on an intermediate basis, they
would flow from plans and issuers to
covered individuals, but these transfers
are expected to be ultimately paid by a
combination of other covered
individuals, experiencing higher
premiums, and by the Federal
government in the form of higher net
Federal PTC spending for Exchange
plans caused by higher premiums
(approximately equal in size to the total
reduction in out-of-pocket costs for
other preventive services for which
coverage without cost sharing would be
accessible through the use of an
exceptions process).
It is uncertain how plan and issuer
expenditure would change due to use of
an exceptions process to allow covered
individuals to access coverage of
recommended preventive services
without cost sharing. The Departments
do not have data that would allow for
a quantification of these effects. The
Departments request comment on the
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transfers associated with the exceptions
process and their likely magnitudes.
(3) Potential Transfers From Plans and
Issuers to Pharmacies, Drug
Wholesalers, and Drug Manufacturers
Resulting From Anticipated Shifts in
Formulary Design That Could Affect
Plan-Paid Prices for Some Contraceptive
Items
These proposed rules would require
plans and issuers to cover a wider range
of recommended contraceptive items
without cost sharing. This is likely to
affect the relative price negotiating
power between entities in the drug
supply chain (manufacturers,
wholesalers, and pharmacies) and plans
and issuers, including their affiliated or
subcontracted PBMs. This could lead to
higher negotiated prices to plans,
issuers, and their PBMs. If so, it would
increase total plan costs for
recommended contraceptive items and
would ultimately cause increases in
plan premiums.
Plans and issuers place downward
pressure on negotiated prices for drugs
and devices and limit spending in
several ways: 198 through the threat of
exclusion of a product from a drug
formulary; through the threat of setting
high consumer cost sharing that would
steer covered individuals away from
high cost or ineffective products; and
through the threat of erecting non-price
barriers to access, such as prior
authorization, step-therapy, or
requirements for a provider-requested
exception to access a product.199 Plans
and issuers also place downward
pressure on negotiated prices for drugs
and devices and limit spending by
contracting with providers whose
prescribing patterns align with the costcontrol goals of the plans and issuers.
Because drug and device suppliers
desire favorable coverage and favorable
provider prescribing behavior in order
to attract higher volumes of covered
individuals to use their products, these
tools place powerful downward
pressures on negotiated (net-of-rebate)
prices paid by plans. Research has
shown that when plans and issuers are
unable to use cost sharing, they rely on
198 For a useful overview of the management tools
employed by managed care organizations, see Glied,
S., National Bureau of Economic Research (1999),
‘‘Managed Care,’’ available at https://
papers.ssrn.com/sol3/papers.cfm?abstract_
id=202746.
199 Lakdawalla, D. and Yin, W., National Bureau
of Economic Research (2009). ‘‘Insurer Bargaining
and Negotiated Drug Prices in Medicare Part D,’’
available at https://www.nber.org/papers/w15330;
Lakdawalla, D.N. (2018). ‘‘Economics of the
Pharmaceutical Industry,’’ Journal of Economic
Literature, available at https://www.aeaweb.org/
articles?id=10.1257/jel.20161327.
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85783
non-price barriers to access, such as
prior authorization and step therapy, to
steer consumers across medication
options, and ultimately constrain
overall plan costs.200
The provisions of these proposed
rules would clarify the use of reasonable
medical management that plans and
issuers can use with respect to covering
recommended preventive services,
including contraceptive items, without
cost sharing under the ACA. This
clarification could impact their
bargaining power against drug
suppliers, removing some sources of
downward pressure on prices. The
Departments do not have sufficient data
to estimate the magnitude of these
effects. The Departments anticipate that
they are unlikely to be significant for
contraceptive products for which there
are available therapeutic equivalents.
For such products, competition across
two or more therapeutic equivalents is
a key constraint on prices even in the
absence of cost sharing and other plan
and issuer tools. The Departments
anticipate that price effects could be
larger for products for which there is no
therapeutic equivalent. The
Departments request comment and data
regarding these potential transfers.
f. Uncertainty
As noted throughout this RIA, due to
a lack of data and information, there are
several areas of uncertainty regarding
the potential impacts of these proposed
rules. The Departments are unable to
forecast with high confidence how the
provisions of these proposed rules
would affect the choice of contraceptive
method or product among covered
women or how many covered women
would continue to use contraceptives
with non-zero cost sharing. Further, the
Departments are unable to forecast with
high confidence whether or the extent to
which the pharmaceutical and medical
device supply chain entities (including
manufacturers, wholesalers, and
pharmacies) might respond in pricing
negotiations with PBMs and issuers to
both the new patterns of consumer takeup of contraceptive items—as the set of
options without cost sharing would
expand under these proposed rules—
and to the provisions of these proposed
200 See Geruso, M., Layton, T., and Prinz, D.
(2019). ‘‘Screening in Contract Design: Evidence
from the ACA Health Insurance Exchanges,’’
American Economic Journal: Economic Policy,
available at https://www.aeaweb.org/articles/pdf/
doi/10.1257/pol.20170014 (finding that when plans
are limited in their ability to expose their enrollees
to cost-sharing, as with cost-sharing-reduction
enrollees in Exchange plans, plans may respond by
relying more heavily on non-price barriers to
access, such as step-therapy and prior
authorization).
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rules that would clarify plans’ and
issuers’ ability to use reasonable
medical management. As a result, there
is some uncertainty about the potential
impact on premiums.
The Departments expect that the
administrative and operational costs
associated with these proposed rules
would primarily fall on plans, issuers,
and pharmacies. As discussed in section
IV.B.2.d of this preamble and discussed
in comments in response to the OTC
Preventive Products RFI, these entities
would incur costs associated with
updating IT systems and processes to
accommodate insurance coverage of
OTC contraceptives. Commenters noted
that various systems would likely need
to be updated or created, such as to
accommodate new information
requirements for claims, but provided
no further information related to any
associated burdens or costs. Therefore,
the Departments lack information on the
scope and size of such activities and
costs.
The Departments are uncertain about
the number of women who would
switch contraceptive methods to OTC
contraceptives as a result of these
proposed rules. Since the first FDAapproved daily OTC oral contraceptive
pill was approved in July 2023 and
became widely available for purchase
(including by being carried by major
pharmacy chains and online retailers)
beginning in March 2024, it is too soon
to predict with confidence the extent of
switching to an OTC contraceptive from
other prescription products.
A reasonable analog to daily OTC oral
contraception is the increased use of
emergency contraception since its
approval for OTC use in the early 2000s.
The FDA approved nonprescription
availability of emergency contraception
(Plan B) for women 18 years or older in
August 2006.201 This was expanded to
women 17 years and older in 2009 and
without age restrictions in 2013. The
Guttmacher Institute reports that
between 2008 and 2015, the use of
emergency contraceptive pills increased
significantly across nearly all social and
demographic groups.202 For example,
the report shows that use among 25–29year-olds more than doubled during this
time, increasing from 16 percent of
women ever having used emergency
contraception to 36 percent. While these
201 FDA, Center for Drug Evaluation and
Research, ‘‘Plan B One-Step Information,’’ available
at https://www.fda.gov/drugs/postmarket-drugsafety-information-patients-and-providers/plan-bone-step-15-mg-levonorgestrel-information.
202 Guttmacher Institute (2021). ‘‘Use of
Emergency Contraception in the United States,’’
available at https://www.guttmacher.org/fact-sheet/
use-emergency-contraception-united-states.
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data do not allow us to forecast
switching from prescription to OTC
birth control, they do suggest that takeup of OTC contraceptive items may
increase.
There is also insufficient data to
forecast the extent to which take-up of
OTC oral contraception would result in
fewer visits to health care providers and
the scope for potential negative health
consequences due to this reduction in
contact with health care providers.
Research finds that fewer primary care
visits may lead to less interaction with
preventive care services such as
mammograms, vaccinations, and
colonoscopies, and may result in more
emergency room visits and
hospitalizations, all of which could lead
to greater health care expenditures in
the future.203 However, the same work
finds that the likelihood of preventive
services uptake does not increase with
respect to the number of visits,
suggesting that while increased
engagement with primary care improves
compliance with these preventive
interventions, the benefits of visits may
diminish in value past a certain
frequency.204 Applied to this uncertain
setting, this body of research suggests a
possibility that covering recommended
OTC contraceptive items without cost
sharing and without a prescription
could be associated with negative health
consequences if it leads to a reduction
in provider visits that specifically
reduces interaction with preventive
services. However, there is no evidence
to suggest that such a policy to increase
coverage of recommended OTC
contraceptive items would affect the
strong incentives for women to continue
to seek preventive care, via a provider
visit, outside of their need to obtain a
prescription for contraception. Among
these incentives, the ACA requires plans
and issuers to cover, without cost
203 Rose, A.J., Timble, J.W., Setoldji, C., Friedberg,
M.W., Malsberger, R., and Kahn, K.L. (2019).
‘‘Primary Care Visit Regularity and Patient
Outcomes: an Observational Study,’’ Journal of
General Internal Medicine, available at https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC6318173
and Hostetter, J., Schwarz, N., Klug, M., Wynne, J.,
and Basson, M.D. (2020), ‘‘Primary Care Visits
Increase Utilization of Evidence-Based Preventative
Health Measures,’’ BMC Family Practice, available
at https://bmcprimcare.biomedcentral.com/articles/
10.1186/s12875-020-01216-8.
204 Gao, J., Moran, E., Grimm, R., Toporek, A.,
Ruser, C. (2022). ‘‘The Effect of Primary Care Visits
on Total Patient Care Cost: Evidence from the
Veterans Health Administration,’’ Journal of
Primary Care Community Health, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC9793026 (examining the correlation between
additional in-person primary care visits and total
health care costs among Veterans Health
Administration patients and finding that the first
visit was associated with the largest savings, with
diminishing returns for subsequent visits).
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sharing, an annual well-woman visit as
well as other recommended preventive
services.
Further, there is significant
uncertainty about the potential changes
in take-up of OTC contraceptives that
would be caused by these proposed
rules and the impact of any such change
on the frequency of provider visits. In a
survey about hypothetical use that
predated the introduction of an FDAapproved daily OTC oral contraceptive
pill, many female respondents indicated
they would be likely to switch to an
OTC contraceptive if it was available to
them.205 Women may be motivated to
make such a switch by the potential
reduction in required provider visits to
maintain a prescription. The costs of
seeing a provider include costs such as
transportation and childcare during the
appointment time, or the opportunity
costs of time associated with the visit.
If these proposed rules reduce the
frequency or likelihood of health care
provider visits among women, the
revenue of providers who otherwise
would have performed and billed for
services would be impacted,
representing a cost of at least $100 per
visit, on average.206
Nonetheless, practical considerations
surrounding OTC contraceptive items
may limit the number of covered
individuals who take up this option in
practice. First, contraceptives have
numerous side effects, which vary by
person and product.207 Women are
likely to have a preference for a given
contraceptive they have already become
accustomed to; in this case, they may
perceive switching as involving some
risk of generating a worse match.208 A
205 Frederiksen, B., Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-theunited-states-a-closer-look-at-experiencespreferences-and-coverage-findings (finding that 60
percent of reproductive age females who have used
birth control pills in the past 12 months said they
would be likely or very likely to use over-thecounter birth control pills).
206 In 2016, the average cost per visit to a primary
care physician was $106 compared to $103 for an
office visit to a NP or PA. See Hargraves, J., Frost
A. (2018). ‘‘HCCI Brief: Trends in Primary Care
Visits,’’ available at https://healthcostinstitute.org/
hcci-originals-dropdown/all-hcci-reports/trends-inprimary-care-visits.
207 Frederiksen, B., Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-theunited-states-a-closer-look-at-experiencespreferences-and-coverage-findings.
208 Switching oral contraceptives can increase the
chance of pregnancy and can often cause side
effects. See Lesnewski, R., Prine, L., and Ginzburg,
R. (2011). ‘‘Preventing Gaps When Switching
Contraceptives,’’ American Family Physician
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commenter to the OTC Preventive
Products RFI noted these considerations
in explaining why the extent of
switching to OTC products would likely
be moderate.
One way to understand how
important such factors may be is to
examine the experience with
pharmacist-prescribed contraceptives.
As of 2023, 28 states and the District of
Columbia allowed pharmacists to
provide contraceptives, 21 of which do
not require any physician follow-up.209
However, less than 10 percent of women
currently opt to take advantage of
pharmacist provision.210 Some women
may be unaware of this option, while
others might find that the added
convenience may not be enough to
offset a significant preference towards
consulting with a physician and
obtaining a prescription for
contraception. There are several
considerations that may explain this
preference: first, most women (73
percent) see a family or internal
medicine doctor as their usual source of
care.211 Thus, it is likely that many
women are prescribed birth control
through their primary care physician
(PCP), and that these visits are likely to
continue on a semi-regular basis
regardless of how birth control is
obtained.212 Next, practitioners are able
to renew birth control pills over the
phone or via telemedicine applications,
eliminating the net potential benefit of
reducing follow-up visits by switching
Journal, available at https://www.aafp.org/pubs/
afp/issues/2011/0301/p567.html and Burgess, L.
(2023). ‘‘How to Switch Birth Control Pills
Properly,’’ Medical News Today, available at
https://www.medicalnewstoday.com/articles/
322356.
209 Guttmacher Institute (2023). ‘‘PharmacistPrescribed Contraceptives,’’ available at https://
www.guttmacher.org/state-policy/explore/
pharmacist-prescribed-contraceptives.
210 The 2022 KFF Women’s Health Survey finds
that 8 percent of women ages 18–49 get their birth
control from places other than the doctor’s office,
a clinic, or online, where ‘‘other’’ includes
pharmacies. When asked about where women
would prefer to get their birth control, only 12
percent said ‘‘other’’. See Frederiksen, B., Ranji, U.,
Long, M., Diep, K., and Salganicoff, A., KFF (2022).
‘‘Contraception in the United States: A Closer Look
at Experiences, Preferences, and Coverage,’’
available at https://www.kff.org/report-section/
contraception-in-the-united-states-a-closer-look-atexperiences-preferences-and-coverage-findings.
211 Long, M., Frederickson, B., Ranji, U., and
Salganicoff A., KFF (2020). ‘‘Women’s Health Care
Utilization and Costs: Findings from the 2020 KFF
Women’s Health Survey,’’ available at https://
www.kff.org/womens-health-policy/issue-brief/
womens-health-care-utilization-and-costs-findingsfrom-the-2020-kff-womens-health-survey/.
212 Frederiksen, B., Ranji, U., Long, M., Diep, K.,
and Salganicoff, A., KFF (2022). ‘‘Contraception in
the United States: A Closer Look at Experiences,
Preferences, and Coverage,’’ available at https://
www.kff.org/report-section/contraception-in-theunited-states-a-closer-look-at-experiencespreferences-and-coverage-findings.
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to an OTC pill. Finally, some women
currently procure contraception from a
clinical visit that does not include a
significant medical exam, thus lowering
the health benefit of such a provider
interaction (other than its prescribing
function)—in contrast to other visit
types with PCPs. Therefore, despite the
potential time and money savings of
forgone visits that would be enabled by
wider OTC contraceptive coverage
without cost sharing, this evidence
suggests these factors may not
significantly impact the use of
recommended preventive services.
Informed by the existing research
discussed in this section, the
Departments anticipate approximately
no impact of the proposed rules on the
frequency of recommended preventive
services visits with PCPs, nurse
practitioners, or physician assistants,
and thus approximately no impact on
health outcomes of covered women
through this channel. Similarly, the
Departments anticipate approximately
no impact of the proposed rules on
revenues of these health care providers.
The Departments note that although the
option of switching to OTC
contraception may not provide
significant value to all contraceptive
users, the option may provide
particularly high value for the subset of
covered women in contraception
deserts. The Departments request
comment on this analysis.
Finally, the Departments acknowledge
the potential for long-term economic
effects of increased coverage of certain
recommended preventive services.
Research suggests that access to
contraception can increase educational
attainment and labor force participation,
for example, with follow-on potential to
improve career outcomes and lifetime
earnings.213 It is also possible that
overall health outcomes might improve
because of increased coverage of certain
recommended preventive services,
which, in turn, could reduce health care
expenditures and therefore premiums in
the future. Further long-term economic
effects could be seen by entities and
individuals directly or indirectly (public
health insurance programs, uninsured
or self-pay individuals, and suppliers in
the pharmaceutical industry, for
example) affected by these proposed
rules, to the extent that prices for
different recommended preventive
services change as a result of these
proposed rules. However, due to a lack
213 See, e.g., Bernstein, A. and Jones, K.M. (2019).
‘‘The Economic Effects of Contraceptive Access: A
Review of the Evidence,’’ Institute for Women’s
Policy Research, available at https://iwpr.org/wpcontent/uploads/2020/07/B381_ContraceptionAccess_Final.pdf.
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of data and clear understanding of how
preventive services utilization will
evolve given these proposed rules, the
Departments are unable to develop
monetized estimates of these potential
benefits, costs, and transfers.
Due to the lack of data, the
Departments are unable to develop
monetized estimates of the benefits to
covered individuals anticipated to arise
from these proposed rules, including a
potential reduction in unintended
pregnancies and improved health
outcomes for individuals and greater
flexibility in utilizing a wider range of
recommended preventive services
without cost sharing for eligible
individuals.
g. Regulatory Review Cost Estimation
Due to the uncertainty involved with
quantifying the number of entities that
will review these proposed rules, the
Departments assume that the total
number of unique entities that may
review these proposed rules will equal
the number of health insurance
companies (479) plus the number of
TPAs (205) (on behalf of self-insured
group health plans) plus the States,
Territories, and Washington DC (56)
plus the number of unique commenters
(364) to the OTC Preventive Products
RFI.214 That sum yields 1,104 unique
entities. The Departments acknowledge
that this assumption may understate or
overstate the number of reviewers and
therefore the costs of reviewing these
proposed rules. The Departments
request comment on the approach in
estimating the number of entities which
will review these proposed rules.
Using the median wage information
from the BLS for business operations
specialist (13–1199) to account for labor
costs (including a 100 percent increase
to account for the cost of fringe benefits
and other indirect costs), the
Departments estimate that the cost of
reviewing this rule is $76.52 per hour,
including overhead and fringe
benefits.215 Assuming an average
reading speed of 200 words per minute,
the Departments estimate that it would
take approximately 3.25 hours for the
staff to review these proposed rules. For
each entity that reviews the rule, the
estimated cost is $248.69 (3.25 hours ×
$76.52). Therefore, the Departments
estimate that the total cost of reviewing
this regulation is approximately
$274,554 ($248.69 × 1,104).
214 See
88 FR 68519 (Oct. 4, 2023).
‘‘May 2023 National Occupational
Employment and Wage Estimates, United States,’’
available at https://www.bls.gov/oes/current/oes_
nat.htm.
215 BLS,
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C. Regulatory Alternatives—
Departments of Health and Human
Services and Labor
In developing these proposed rules,
the Departments considered various
alternative approaches.
The Departments considered
proposing to require plans and issuers
to cover all recommended preventive
services, with no cost sharing and
without applying reasonable medical
management techniques. However, as
discussed in section II.A of this
preamble, the Departments have
determined that allowing plans and
issuers to utilize reasonable medical
management techniques, when paired
with requirements to provide an
exceptions process, as proposed in these
rules, strikes an appropriate balance
between the statutory requirement that
plans and issuers cover recommended
preventive services at no cost and the
importance of allowing plans and
issuers to impose reasonable limitations
in order to contain costs (including
costs that would be passed on to
consumers in the form of increased
premiums) and promote efficient
delivery of care. The provision of an
easily accessible, transparent, and
sufficiently expedient exceptions
process that is not unduly burdensome
on the individual or a provider (or other
person acting as the individual’s
authorized representative) would ensure
that covered individuals can access
coverage of medically necessary
recommended preventive services
without cost sharing even if such
services are typically not covered or are
otherwise subject to reasonable medical
management techniques.
With respect to the proposal to
require plans and issuers utilizing
reasonable medical management
techniques to provide an easily
accessible, transparent, and sufficiently
expedient exceptions process that is not
unduly burdensome, the Departments
considered limiting this proposal to
contraceptive items only or to a subset
of recommended preventive services
rather than to all preventive services.
However, the Departments concluded
that an exceptions process should be
required for all recommended
preventive services in order to fully
implement the requirements under
section 2713 of the PHS Act to ensure
that plans and issuers provide coverage
of recommended preventive services
without cost-sharing requirements,
consistent with prior guidance. Without
such a process, individuals could be
forced to pay out-of-pocket or forego the
medically necessary form of a
recommended preventive service if it
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differs from the form covered by their
plan or issuer. While prior guidance has
generally focused on the use of an
exceptions process in the context of
contraceptive coverage, it has not been
exclusively limited to that context, nor
are the Departments aware of any legal
or policy reason for limiting
applicability of an exceptions process to
one or a subset of recommended
preventive services. Therefore, the
Departments determined it was
appropriate to propose that a plan or
issuer would be required to provide an
exceptions process with respect to any
recommended preventive service for
which it utilizes medical management
techniques in order for such techniques
to be considered reasonable.
The Departments considered whether
to propose to require plans and issuers
to provide coverage without cost sharing
of all or a subset of recommended OTC
preventive products. The Departments
similarly considered whether to propose
that the therapeutic equivalence
approach be applicable to all or some
broader subset of recommended
preventive services that are drugs and
drug-led combination products, rather
than only to contraceptive drugs and
drug-led combination products.
However, the Departments decided to
take an incremental approach,
beginning first with recommended
contraceptive items. As discussed in
section II.A.2 of this preamble, section
2713 of the PHS Act and its
implementing regulations do not
exclude from their coverage requirement
coverage of OTC recommended
preventive services. However, in
consideration of comments in response
to the OTC Preventive Products RFI
cautioning against swift implementation
of a coverage requirement for all OTC
preventive products, the Departments
determined it would be advisable to
propose an initial implementation of
such a requirement, applicable only to
recommended OTC contraceptive items.
Similarly, the Departments are of the
view that it is advisable to initially
propose to require the use of a
therapeutic equivalence approach for
the same set of recommended
preventive services—that is, to
contraceptive drugs and drug-led
combination products—as in prior
guidance. This incremental approach to
coverage, with respect to recommended
OTC contraceptive items and
therapeutic equivalence, would provide
plans and issuers, providers, retailers,
and other interested parties with the
opportunity to gather implementation
data before the Departments determine
whether additional guidance or
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rulemaking is appropriate. Further, for
the reasons outlined in sections I and
II.A of this preamble, it is particularly
necessary to support access to
contraceptive items at this time.
With respect to the Departments’
effort to ensure individuals are made
aware that OTC contraceptive items are
covered without cost sharing and
without a prescription, the Departments
also considered proposing to require
plans and issuers to create a publicfacing web page with comprehensive
information about their contraceptive
coverage policy, including related to
therapeutic equivalents, exceptions
processes, network information, and
OTC coverage. However, the
Departments understand that at least
some group health plans do not
maintain a website for employee health
benefit plans, and the Departments
believe more information is needed to
assess whether it would be feasible for
plans and issuers to provide information
about contraceptive coverage on a
public website in cases where they do
not maintain such a website, such as by
entering into a written agreement under
which a plan’s health insurance issuer
or TPA, as applicable, posts the
information on its public website where
information is normally made available
to participants, beneficiaries, and
enrollees, on the plan’s behalf. The
Departments also considered proposing
to require the statement to include more
information about coverage of
therapeutic equivalents and requested
comment on this approach, given the
Departments’ desire to maximize the
statement’s effectiveness by keeping it
brief, and that therapeutic equivalent
coverage policies will not differ between
plans and thus a plan-specific
disclosure may be less essential.
The Departments also considered
proposing to require that information
about coverage of OTC contraceptive
items without cost sharing and without
a prescription be included on SBCs.
However, due to the space limitations,
the Departments are concerned that the
SBC would not provide a sufficiently
robust disclosure. The Departments
decided to seek comment on the SBC’s
utility for informing participants,
beneficiaries, and enrollees of coverage
of OTC contraceptive items without cost
sharing and without a prescription.
D. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA), the Departments are
required to provide 60-day notice in the
Federal Register and solicit public
comment before a collection of
information requirement is submitted to
OMB for review and approval. To fairly
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evaluate whether an information
collection should be approved by OMB,
section 3506(c)(2)(A) of the PRA
requires that the Departments solicit
comment on the following issues:
• The need for the information
collection and its usefulness in carrying
out the proper functions of an agency.
• The accuracy of the Departments’
estimate of the information collection
burden.
• The quality, utility, and clarity of
the information to be collected.
• Recommendations to minimize the
information collection burden on the
affected public, including automated
collection techniques.
As part of the continuing effort to
reduce paperwork and respondent
burden, the Departments conduct a
preclearance consultation program to
provide the general public and Federal
agencies with an opportunity to
comment on proposed and continuing
collections of information in accordance
with the PRA. This helps to ensure that
the public understands the
Departments’ collection instructions,
respondents can provide the requested
data in the desired format, reporting
burden (time and financial resources) is
minimized, collection instruments are
clearly understood, and the
Departments can properly assess the
impact of collection requirements on
respondents. Under the PRA, an agency
may not conduct or sponsor, and an
individual is not required to respond to,
a collection of information unless it
displays a valid OMB control number.
The Departments have submitted a
copy of these proposed rules to OMB in
accordance with 44 U.S.C. 3507(d) for
review of the proposed (revised)
information collections described in this
section. The Departments request public
comment on these information
collections. Commenters may submit
85787
their comments on the Departments’
PRA analysis in the same way they send
comments in response to this NPRM as
a whole (for example, through the
https://www.regulations.gov website),
including as part of a comment
responding to the broader NPRM. To
obtain copies of the supporting
statements and any related forms for the
proposed collections, please visit
https://www.reginfo.gov.
1. Wage Estimates
The Departments generally used data
from the Contract Awarded Labor
Category (CALC) database tool 216 to
derive average labor costs for estimating
the burden and equivalent costs
associated with the information
collection requirements (ICRs). Table 3
presents the estimated mean hourly
wages, which include both base pay and
benefits, used in the burden and
equivalent cost estimates.
TABLE 3—HOURLY WAGES USED IN BURDEN AND EQUIVALENT COST ESTIMATES
Mean hourly wage
($/hour)
CALC occupation title
Project Manager/Team Lead .......................................................................................................................................................
Sr. Developer/Lead ......................................................................................................................................................................
Designer .......................................................................................................................................................................................
Training Specialist .......................................................................................................................................................................
Customer Service Representative ...............................................................................................................................................
Web Database/Application Developer IV ....................................................................................................................................
The Departments propose in new 26
CFR 54.9815–2715A2(b)(1)(vi), 29 CFR
2590.715–2715A2(b)(1)(vi), and 45 CFR
147.211(b)(1)(vi) that if a participant,
beneficiary, or enrollee requests costsharing information for any covered
contraceptive item or service using a
plan’s or issuer’s internet-based selfservice tool or requests such
information be provided on paper, a
plan or issuer would be required to
provide a statement explaining the
availability of OTC contraceptive items
without a prescription and without cost
sharing, along with a phone number and
internet link to where a participant,
beneficiary, or enrollee can learn more
information about the plan’s or policy’s
contraception coverage. The
Departments propose to require plans
and issuers to incorporate this
disclosure into their existing self-service
tool for plan years (in the individual
market, policy years) beginning on or
after January 1, 2026.
The Departments assume that fullyinsured group health plans would
depend on health insurance issuers and
self-insured group health plans would
rely on TPAs to implement the
proposed requirements. Based on recent
data, the Departments estimate that
approximately 1,467 issuers 217 and 205
TPAs 218 would implement the
proposed requirements on behalf of
plans and issuers.
The Departments assume that issuers
and TPAs have already built self-service
tools (first applicable for plan years (or
policy years) beginning on or after
January 1, 2023) and would only be
required to modify their existing tools to
incorporate the proposed new
contraceptive statement. This statement
would explain that OTC contraceptive
items are covered without a prescription
and without cost sharing and would
provide a customer service phone
number and internet link for a
participant, beneficiary, or enrollee that
wishes to speak with a customer service
representative or gain additional
information about the plan’s or policy’s
contraception coverage. The
216 The CALC tool was built to assist acquisition
professionals with market research and price
analysis for labor categories on multiple U.S.
General Services Administration (GSA) & Veterans
Administration (VA) contracts. The Departments
chose to use wages derived from the CALC database
because, even though the Bureau of Labor Statistics
(BLS) data set is valuable to economists,
researchers, and others that would be interested in
larger, more macro-trends in parts of the economy,
the CALC data set is meant to help market research
based on existing government contracts in
determining how much a project/product will cost
based on the required skill sets needed. The CALC
data set factors the fully burdened hourly rates
(base pay + benefits) into the wages whereas BLS
does not. CALC occupations and wages provide the
Departments with data that aligns more with, and
provides more detail related to, the occupations
required for the implementation of the requirements
in these proposed rules. CALC information and
wage rates are available at https://buy.gsa.gov/
pricing/.
217 The Departments’ estimate of the number of
health insurance companies and the number of
issuers (issuer/State combinations) is based on
medical loss ratio reports submitted by issuers for
the 2022 reporting year. See CMS (2022), ‘‘Medical
Loss Ratio Data and System Resources,’’ available
at https://www.cms.gov/CCIIO/Resources/DataResources/mlr.
218 Non-issuer TPAs estimate is based on data
derived from the 2016 benefit year reinsurance
program contributions.
2. ICR Regarding Requirements for
Contraceptive Disclosure to
Participants, Beneficiaries, or Enrollees
on the Internet-Based Self-Service Tool
(26 CFR 54.9815–2715A2, 29 CFR
2590.715–2715A2, and 45 CFR 147.211)
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$146.15
197.27
107.10
99.95
45.83
170.35
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introduction of the new contraception
statement would impose the following
additional burden on issuers and
TPAs: 219 (1) first-year one-time
development costs needed to integrate
the contraception statement language
into the existing self-service tool. This
would involve design changes to the
existing web user interface to enable
identification of services that would
trigger the static statement to the
consumer. Additionally, the statement
would be required to include a link to
information about the participant’s,
beneficiary’s, or enrollee’s contraception
coverage benefits. Issuers and TPAs
would incur one-time costs to create or
update a web page to provide this
information; (2) annual costs of
programming updates, web page
maintenance, and maintaining the list of
contraceptive items and services
required to be coded to trigger the
statement; (3) annual costs associated
with training customer service
representatives to assist consumers with
inquiries related to the new
contraceptive statement, and (4) annual
costs for customer service
representatives to respond to calls.
The Departments estimate that for
each issuer or TPA, on average, it would
take a Project Manager/Team Lead 40
hours (at $146.15 per hour), a Senior
Developer/lead 20 hours (at $197.27 per
hour), a Designer 25 hours at ($107.10
per hour), and a Web Database/
Application Developer IV 50 hours (at
$170.35 per hour) to integrate the
contraception statement language into
the existing self-service tool, make
design changes, and create or update a
web page to provide further details
regarding the plan’s or policy’s
contraceptive coverage. The
Departments estimate the total hour
burden per issuer or TPA would be
approximately 135 hours, with an
equivalent cost of approximately
$20,986 per issuer or TPA. For all 1,672
issuers and TPAs, the total first-year
one-time total hour burden is estimated
to be 225,720 hours, with an equivalent
total cost of approximately $35,089,261
as shown in table 4.
TABLE 4—TOTAL FIRST YEAR ESTIMATED ONE-TIME COST AND HOUR BURDEN TO INCORPORATE THE NEW CONTRACEPTIVE STATEMENT IN THE INTERNET-BASED SELF-SERVICE TOOL, MAKE DESIGN CHANGES, AND DEVELOP OR UPDATE
A WEB PAGE TO PROVIDE FURTHER DETAILS REGARDING THE PLAN’S OR POLICY’S CONTRACEPTION COVERAGE FOR
ALL HEALTH INSURANCE ISSUERS AND TPAS
Number of respondents
Number of responses
Burden hours per respondent
Total burden hours
Total cost
1,672
1,672
135
225,720
$35,089,261
In addition to the one-time cost and
hour burden estimated above, issuers
and TPAs would incur ongoing annual
costs for website maintenance,
programming updates, and updates to
the list of contraceptive items and
services required to be coded to trigger
the statement. The Departments
estimate that for each issuer and TPA,
it would take a Web Database/
Application Developer IV 5 hours (at
$170.35 per hour) to complete this task.
For all 1,672 issuers and TPAs, the total
annual maintenance burden related to
the new contraceptive statement would
be 8,360 hours with an equivalent total
cost of approximately $1,424,126 as
shown in table 5.
TABLE 5—ESTIMATED ANNUAL COST AND HOUR BURDEN FOR MAINTENANCE OF INTERNET-BASED SELF-SERVICE TOOL
RELATED TO THE NEW CONTRACEPTIVE STATEMENT FOR ALL ISSUERS AND TPAS
Number of respondents
Number of responses
Burden hours per respondent
Total burden hours
Total cost
1,672
1,672
5
8,360
$1,424,126
Issuers and TPAs would also incur an
ongoing annual burden and cost
associated with customer service
representative training related to the
new contraceptive statement. The
Departments assume that the
introduction of the new contraception
statement would not necessitate hiring
additional full-time customer service
representatives. Instead, the
Departments expect issuers and TPAs
would utilize their existing customer
service representatives for this task.
Therefore, the Departments estimate
that for each issuer and TPA, one
Training Specialist would spend 5
hours at a cost of $99.95 per hour to
train 5 customer service representatives
on how to respond to participants,
beneficiaries, and enrollees if they call
in because of the new contraception
statement, who would also require 5
hours to complete the training at a cost
of $45.83 per hour. For all 1,672 issuers
and TPAs, the total annual training hour
burden would be 50,160 hours, with an
equivalent total annual cost of
approximately $2,751,276 as shown in
table 6.
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TABLE 6—ESTIMATED ANNUAL COST AND HOUR BURDEN FOR ALL ISSUERS AND TPAS TO TRAIN CUSTOMER SERVICE
REPRESENTATIVES TO PROVIDE ASSISTANCE TO CONSUMERS RELATED TO NEW CONTRACEPTIVE STATEMENT IN THE
INTERNET-BASED SELF-SERVICE TOOL
Number of respondents
Number of responses
Burden hours per respondent
Total burden hours
Total cost
1,672
1,672
30
50,160
$2,751,276
219 Note that the Departments expect self-insured
group health plans would rely on TPAs to
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compensate them accordingly and thereby bear any
implementation costs.
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After the training, customer service
representatives would be expected to
respond to the potential increase in calls
resulting from the new contraception
statement. The Departments estimate
that for each issuer and TPA, it would
take 5 customer service representatives
5 hours (at $45.83 per hour) to complete
this task. For all 1,672 issuers and TPAs,
the total annual cost of responding to
these calls would be 41,800 hours, with
an equivalent total cost of
approximately $1,915,694 as shown in
table 7.
TABLE 7—ESTIMATED ANNUAL COST AND HOUR BURDEN FOR ALL ISSUERS AND TPAS TO RESPOND TO CALLS
REGARDING THE NEW CONTRACEPTIVE STATEMENT ON THE INTERNET-BASED SELF-SERVICE TOOL
Number of respondents
Number of responses
Burden hours per respondent
Total burden hours
Total cost
1,672
1,672
25
41,800
$1,915,694
Taking into account their segment of
jurisdiction over issuers and TPAs, HHS
would assume 50 percent of the total
burden, while the Departments of Labor
and the Treasury would each assume 25
percent. Tables 8 to 10 display the share
of each Department’s total burden hours
to implement the new contraceptive
statement.
TABLE 8—ESTIMATED HHS SHARE OF TOTAL BURDEN HOURS FOR IMPLEMENTING THE NEW CONTRACEPTIVE STATEMENT
Number of
respondents
Year
Year 1
Year 2
Year 3
3-Year
..........................................................................................................
..........................................................................................................
..........................................................................................................
Average ............................................................................................
Number of
responses
836
836
836
836
Burden hours per
respondent
836
836
836
836
135
60
60
85
Total burden
hours
112,860
50,160
50,160
71,060
TABLE 9—ESTIMATED DEPARTMENT OF LABOR’S SHARE OF TOTAL BURDEN HOURS FOR IMPLEMENTING THE NEW
CONTRACEPTIVE STATEMENT
Number of
respondents
Year
Year 1
Year 2
Year 3
3-Year
..........................................................................................................
..........................................................................................................
..........................................................................................................
Average ............................................................................................
Number of
responses
418
418
418
418
Burden hours per
respondent
418
418
418
418
135
60
60
85
Total burden
hours
56,430
25,080
25,080
35,530
TABLE 10—ESTIMATED DEPARTMENT OF THE TREASURY’S SHARE OF TOTAL BURDEN HOURS FOR IMPLEMENTING THE
NEW CONTRACEPTIVE STATEMENT
Number of
respondents
Year
Year 1
Year 2
Year 3
3-Year
..........................................................................................................
..........................................................................................................
..........................................................................................................
Average ............................................................................................
The burden related to the
Transparency in Coverage disclosure of
certain cost-sharing information for
HHS is currently approved under OMB
control number 0938–1429 (CMS–
10715, Transparency in Coverage).220
HHS will revise this information
collection request to account for the
Number of
responses
418
418
418
418
Burden hours per
respondent
418
418
418
418
additional burden associated with the
contraceptive disclosure. This
information collection request was
approved as a host for common forms.
The burden related to the Transparency
in Coverage disclosure of certain costsharing information for DOL and
Treasury was submitted to OMB for
135
60
60
85
Total burden
hours
56,430
25,080
25,080
35,530
each respective Department under
0938–1429 as Request for Common
Form (RCF) submissions. Upon OMB
approval of the RCF submissions, DOL
and Treasury will update and submit
their information collection requests.
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TABLE 11—SUMMARY OF PROPOSED ANNUAL RECORDKEEPING AND REPORTING REQUIREMENTS
Regulation section
45 CFR 47.211 ..................................
26 CFR 54.9815–2715A2 .................
OMB control No.
Respondents
0938–1429
0938–1429
Burden per
response
(hours)
Responses
836
418
836
418
I
85
85
Total annual
burden
(hours)
I
71,060
35,530
Hourly labor
cost of
reporting
I
220 Available at https://www.reginfo.gov/public/
do/PRAViewICR?ref_nbr=202410-0938-006.
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$119
119
Total cost
I
$8,721,124
4,360,562
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TABLE 11—SUMMARY OF PROPOSED ANNUAL RECORDKEEPING AND REPORTING REQUIREMENTS—Continued
Regulation section
OMB control No.
29 CFR 2590.715–2715A2 ...............
0938–1429
Total ...........................................
..............................
The Departments seek comment on
the assumptions made and the burden
estimates discussed in this section.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act
(RFA) 221 requires agencies to analyze
options for regulatory relief of small
entities and to prepare an initial
regulatory flexibility analysis to
describe the impact of a proposed rule
on small entities, unless the head of the
agency can certify that the rule will not
have a significant economic impact on
a substantial number of small entities.
The RFA generally defines a ‘‘small
entity’’ as (1) a proprietary firm meeting
the size standards of the Small Business
Administration (SBA), (2) a not-forprofit organization that is not dominant
in its field, or (3) a small government
jurisdiction with a population of less
than 50,000. States and individuals are
not included in the definition of ‘‘small
entity.’’ The data and conclusions
presented in this section amount to the
Departments’ initial regulatory
flexibility analysis under the RFA.
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1. Need for Regulatory Action,
Objectives, and Legal Basis
As discussed in section II of this
preamble, ongoing complaints and
reports of noncompliance with section
2713 of the PHS Act and its
implementing regulations indicate that
consumers face barriers when
attempting to use their health plan or
coverage to access recommended
preventive services without cost
sharing. As a result of these concerns
and other significant activity related to
preventive services, the Departments are
proposing to amend the regulations
governing coverage of recommended
preventive services in order to ensure
that participants, beneficiaries, and
enrollees can access the full range of
recommended preventive services to
which they are entitled, with particular
focus on strengthening coverage
requirements with respect to
recommended contraceptive items for
women, as summarized in section IV.A
of this preamble. The Departments
consider these provisions to be timely
and necessary given the documented
221 5
U.S.C. 601, et seq.
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Respondents
418
I
1,672
Burden per
response
(hours)
Responses
418
I
1,672
85
I
........................
challenges faced by consumers in
accessing recommended preventive
services, as discussed in section IV.B.2.a
of this preamble.
2. Number of Affected Small Entities
and Compliance Requirements and
Costs
The provisions in these proposed
rules would affect small entities
including health insurance issuers,
ERISA-covered non-grandfathered group
health plans, non-grandfathered nonFederal governmental plans, and
pharmacies.
The Departments anticipate that
health insurance issuers, many of which
are part of larger health insurance
companies or holding groups, would
incur costs associated with the
provisions in these proposed rules, as
described in section IV.B.2.d of this
preamble. Health insurance companies
are generally classified under the North
American Industry Classification
System (NAICS) code 524114 (Direct
Health and Medical Insurance Carriers).
According to SBA size standards,222
entities with average annual receipts of
$47 million or less are considered small
entities for this NAICS code. The
Departments expect that few, if any,
insurance companies underwriting
health insurance policies fall below
these size thresholds. Based on data
from medical loss ratio annual report
submissions for the 2022 reporting year,
approximately 87 out of 487 health
insurance companies nationwide had
total premium revenue of $47 million or
less.223 This estimate may overstate the
actual number of small health insurance
companies that may be affected, since
over 76 percent of these small
companies belong to larger holding
groups, and many, if not all, of these
small companies are likely to have nonhealth lines of business that will result
in their revenues exceeding $47 million.
222 Small Business Administration (2023). ‘‘Table
of Size Standards (last updated March 2023),’’
available at https://www.sba.gov/document/
support--table-size-standards.
223 Based on internal calculations. See CMS,
Medical Loss Ratio Data and System Resources,
available at https://www.cms.gov/CCIIO/Resources/
Data-Resources/mlr.html.
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Total annual
burden
(hours)
Hourly labor
cost of
reporting
35,530
I
142,120
Total cost
119
I
........................
4,360,562
I
17,442,248
Plans and plan sponsors would incur
some costs associated with meeting the
requirements of these proposed rules,
whether directly or indirectly through
compensation paid to a TPA. However,
the Departments anticipate that most of
these costs would ultimately be passed
on to plan participants, as discussed in
section IV.B.2.e of this preamble. As
noted in section IV.B.2.b of this
preamble, the Departments estimate that
there are 499,299 ERISA-covered selfinsured, non-grandfathered group health
plans 224 and 1,844,520 ERISA-covered
fully-insured, non-grandfathered group
health plans.225 The Departments
further estimate that there are 76,345
non-grandfathered non-Federal
governmental plans sponsored by State
and local governmental entities.226
224 The Departments estimate that there are
594,404 ERISA-covered self-insured group health
plans based on data from the 2022 Medical
Expenditure Panel Survey Insurance Component
(MEPS–IC) and the 2020 County Business Patterns
from the Census Bureau. The 2020 KFF Employer
Health Benefits Survey reported that in 2020, 16
percent of firms offering health benefits offered at
least one grandfathered health plan (see KFF, 2020
Kaiser Employer Health Benefits Survey, available
at https://files.kff.org/attachment/Report-EmployerHealth-Benefits-2020-Annual-Survey.pdf). Thus, the
Departments have calculated the number of selfinsured, non-grandfathered plans in the following
manner: 594,404 ERISA-covered self-insured group
health plans × (100 percent minus 16 percent) =
499,299.
225 The Departments estimate that there are
2,195,857 ERISA-covered fully-insured group
health plans based on data from the 2022 Medical
Expenditure Panel Survey Insurance Component
(MEPS–IC) and the 2020 County Business Patterns
from the Census Bureau. The 2020 KFF Employer
Health Benefits Survey reported that in 2020, 16
percent of firms offering health benefits offered at
least one grandfathered health plan (see KFF, 2020
Kaiser Employer Health Benefits Survey, available
at https://files.kff.org/attachment/Report-EmployerHealth-Benefits-2020-Annual-Survey.pdf). Thus, the
Departments have calculated the number of fullyinsured, non-grandfathered plans in the following
manner: 2,195,857 ERISA-covered fully-insured
group health plans × (100 percent minus 16
percent) =1,844,520.
226 According to data from the 2022 Census of
Governments, there are 90,887 State and local
governmental entities (see U.S. Census Bureau,
2022 Census of Governments, available at https://
www.census.gov/data/tables/2022/econ/gus/2022governments.html). The Departments assume that
each State and local governmental entity sponsors
one health plan on average. Therefore, the
Departments estimate that there are 90,887 nonFederal governmental health plans. The 2020 KFF
Employer Health Benefits Survey reported that 16
percent of employers offer at least one
grandfathered plan (see KFF, 2020 Kaiser Employer
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Due to limited data, the Departments
are unable to quantify the percentages of
these plans whose sponsors might be
considered small entities under the RFA
but anticipate that most could be.227
The Departments request comment and
data on the number of plan sponsors
that might be small entities, as well as
the potential economic impacts of these
proposed rules on plan sponsors.
The Departments anticipate that
pharmacies would incur costs to update
billing processes and systems for
covered OTC contraceptive items, as
discussed in section IV.B.2.d of this
preamble. Pharmacies are classified
under NAICS code 456110 (Pharmacies
and Drug Retailers) with a size standard
of $37.5 million or less. According to
the Census Bureau’s Statistics of U.S.
Businesses, there are 19,234 firms in the
pharmacies and drug stores sector in the
U.S. as of 2017.228 Based on these firms’
receipts in 2017 (adjusted for inflation
between 2017 and 2023), 18,879, or 98.2
percent, of these firms, accounting for
22.0 percent of receipts in the sector,
operate below the SBA size standard
and are therefore considered small
entities.229 The Departments request
comment on this analysis.
3. Duplication, Overlap, and Conflict
With Other Rules and Regulations
The Departments do not anticipate
that these proposed rules would cause
any duplication, overlap, or conflict
with other rules and regulations.
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4. Significant Alternatives
The Departments considered various
alternatives to the provisions proposed
in these proposed rules in section IV.C.
In light of this discussion of regulatory
alternatives, the Departments are of the
view that there are no significant
alternatives that would both achieve the
Health Benefits Survey, available at https://
files.kff.org/attachment/Report-Employer-HealthBenefits-2020-Annual-Survey.pdf). The
Departments therefore estimate there are
approximately 76,345 non-grandfathered nonFederal governmental plans.
227 Based on data from the 2022 MEPS–IC, the
2020 County Business Patterns from the Census
Bureau, and the 2020 Kaiser Employer Health
Benefits Survey, the Departments estimate that
approximately 2,189,444 ERISA-covered nongrandfathered group health plans have less than 100
participants, or approximately 93 percent of the
total number of ERISA-covered non-grandfathered
group health plans.
228 U.S. Census Bureau (2017). 2017 SUSB
Annual Data Tables by Establishment Industry
(Data by Enterprise Receipts Size), available at
https://www.census.gov/data/tables/2017/econ/
susb/2017-susb-annual.html.
229 Adjusted for inflation between 2017 and 2023
using the consumer price index for all urban
consumers (CPI–U). See U.S. Bureau of Labor
Statistics (2024), Consumer Price Index, available at
https://www.bls.gov/cpi/tables/supplemental-files/
(Historical CPI–U, August 2024).
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policy objectives and goals of these
proposed rules and be less burdensome
to small entities.
F. Special Analyses—Department of the
Treasury
Pursuant to the Memorandum of
Agreement, Review of Treasury
Regulations under Executive Order
12866 (June 9, 2023), tax regulatory
actions issued by the IRS are not subject
to the requirements of section 6 of
Executive Order 12866, as amended.
Therefore, a regulatory impact
assessment is not required. Pursuant to
section 7805(f) of the Code, these
regulations have been submitted to the
Chief Counsel for Advocacy of the Small
Business Administration for comment
on their impact on small business.
G. Unfunded Mandates Reform Act
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
requires that agencies assess anticipated
costs and benefits before issuing a
proposed rule that includes any Federal
mandate that may result in expenditures
in any one year by State, local, or Tribal
governments, in the aggregate, or by the
private sector, of $100 million in 1995
dollars, updated annually for inflation.
That threshold is approximately $183
million in 2024. These proposed rules
would not impose a mandate that will
result in the expenditure by State, local,
and Tribal governments, in the
aggregate, or by the private sector, of
more than $183 million in any one year.
As discussed in section IV.B.2.e of this
preamble, the Departments expect that
most, if not all, of the transfer effects
would be incurred by covered
individuals (directly or indirectly) and
the Federal government. The
Departments also anticipate that the
total costs to plans, issuers, and
pharmacies identified in section
IV.B.2.d of this preamble would be
below the threshold. The Departments
therefore anticipate that State, local, and
Tribal governments, in the aggregate, or
the private sector would not experience
an increase in expenditure that meets
this threshold.
H. Federalism
Executive Order 13132 outlines
fundamental principles of federalism. It
requires adherence to specific criteria by
Federal agencies in formulating and
implementing policies that have
‘‘substantial direct effects’’ on the
States, the relationship between the
National Government and States, or on
the distribution of power and
responsibilities among the various
levels of government. Federal agencies
promulgating regulations that have
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85791
these federalism implications must
consult with State and local officials
and describe the extent of their
consultation and the nature of the
concerns of State and local officials in
the preamble to the proposed rules.
In the Departments’ view, these
proposed rules have federalism
implications because they may have
direct effects on the States, the
relationship between the Federal
government and the States, or on the
distribution of power and
responsibilities among various levels of
government. However, the federalism
implications are substantially mitigated
because, with respect to health
insurance issuers, 45 States are either
enforcing the requirements related to
coverage of specified preventive
services (including contraception)
without cost sharing pursuant to State
law or otherwise are working
collaboratively with HHS to ensure that
issuers meet these standards. In five
States, HHS ensures that issuers comply
with these requirements. In addition,
seven States have passed laws requiring
State-regulated health plans to cover,
without cost sharing, certain OTC
contraceptive items without a
prescription.230 Therefore, these
proposed rules would not be likely to
require substantial additional oversight
of States by HHS.
In general, through section 514,
ERISA supersedes State laws to the
extent that they relate to any covered
employee benefit plan, and preserves
State laws that regulate insurance,
banking, or securities. While ERISA
prohibits States from regulating a plan
as an insurance or investment company
or bank, the preemption provisions of
section 731 of ERISA and section 2724
of the PHS Act (implemented in 29 CFR
2590.731(a) and 45 CFR 146.143(a))
apply so that the ACA’s preventive
service requirements are not to be
‘‘construed to supersede any provision
of State law which establishes,
implements, or continues in effect any
standard or requirement solely relating
to health insurance issuers in
connection with’’ group or individual
health insurance coverage ‘‘except to the
extent that such standard or
requirement prevents the application
of’’ a Federal requirement. The
conference report accompanying the
Health Insurance Portability and
Accountability Act of 1996 (HIPAA)
230 CA, CO, MD, NJ, NM, NY, WA. KFF, (March
2024). ‘‘State Private Insurance Coverage
Requirements for OTC Contraception Without a
Prescription,’’ available at https://www.kff.org/
other/state-indicator/state-private-insurancecoverage-requirements-for-otc-contraceptionwithout-a-prescription.
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indicates that this is intended to be the
‘‘narrowest’’ preemption of State
laws.231
States may continue to apply State
law requirements except to the extent
that such requirements prevent the
application of the preventive services
requirements in section 2713 of the PHS
Act.232 State insurance laws that are
more stringent than the Federal
requirements are unlikely to prevent the
application of the preventive services
requirements and be preempted.
Accordingly, States have significant
latitude to impose requirements on
health insurance issuers that are more
restrictive than the Federal law.
The Departments request comment on
the potential impacts on States (if any)
associated with these proposed rules.
Throughout the process of developing
these proposed rules, to the extent
feasible within the specific preemption
provisions of HIPAA as it applies to the
preventive services requirements, the
Departments have attempted to balance
the States’ interests in regulating health
insurance issuers, and Congress’ intent
to provide uniform minimum
protections to consumers in every State.
By doing so, it is the Departments’ view
that they have complied with the
requirements of Executive Order 13132.
Statutory Authority
lotter on DSK11XQN23PROD with PROPOSALS4
The Department of the Treasury
regulations are proposed to be adopted
pursuant to the authority contained in
sections 7805 and 9833 of the Code.
The Department of Labor regulations
are proposed to be adopted pursuant to
the authority contained in 29 U.S.C.
1002, 1135, 1182, 1185d, 1191a, 1191b,
and 1191c; Secretary of Labor’s Order 1–
2011, 77 FR 1088 (Jan. 9, 2012).
The Department of Health and Human
Services regulations are proposed to be
adopted pursuant to the authority
contained in sections 2701 through
2763, 2791, 2792, and 2794 of the PHS
Act (42 U.S.C. 300gg–63, 300gg–91,
300gg–92 and 300gg–94), as amended;
sections 1311 and 1321 of PPACA (42
U.S.C. 13031 and 18041).
231 See Conf. Rep. No. 104–736, pg. 205, reprinted
in 1996 U.S. Code Cong. & Admin. News 2018,
available at https://www.congress.gov/
congressional-report/104th-congress/house-report/
736/1.
232 See ERISA section 731 and PHS Act section
2724(a); 29 CFR 2590.731(a) and 45 CFR 146.143(a)
and 148.210. See also FAQs Part 54, Q11 and Q12
(July 28, 2022), available at https://www.dol.gov/
sites/dolgov/files/EBSA/about-ebsa/our-activities/
resource-center/faqs/aca-part-54.pdf and https://
www.cms.gov/files/document/faqs-part-54.pdf.
VerDate Sep<11>2014
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Jkt 265001
List of Subjects
26 CFR Part 54
Excise taxes, Health care, Health
insurance, Pensions, Reporting and
recordkeeping requirements.
29 CFR Part 2590
Continuation coverage, Disclosure,
Employee benefit plans, Group health
plans, Health care, Health insurance,
Medical child support, Reporting and
recordkeeping requirements.
45 CFR Part 147
Health care, Health insurance,
Reporting and recordkeeping
requirements, and State regulation of
health insurance.
Douglas W. O’Donnell,
Deputy Commissioner, Internal Revenue
Service.
Lisa M. Gomez,
Assistant Secretary, Employee Benefits
Security Administration, Department of
Labor.
Xavier Becerra,
Secretary, Department of Health and Human
Services.
DEPARTMENT OF THE TREASURY
Internal Revenue Service
Proposed Amendments to the
Regulations
Accordingly, the Treasury Department
and IRS propose to amend 26 CFR part
54 as follows:
PART 54—PENSION EXCISE TAXES
Paragraph 1.The authority citation for
part 54 continues to read in part as
follows:
■
Authority: 26 U.S.C. 7805 * * *
*
*
*
*
*
Par. 2. Section 54.9815–2713 is
amended by revising paragraph (a)(4),
adding paragraph (a)(6), and revising
paragraph (d) to read as follows:
■
§ 54.9815–2713 Coverage of preventive
health services.
(a) * * *
(4) Reasonable medical management.
(i) Nothing prevents a plan or issuer
from using reasonable medical
management techniques to determine
the frequency, method, treatment, or
setting for an item or service described
in paragraph (a)(1) of this section to the
extent not specified in the relevant
recommendation or guideline. To the
extent not specified in a
recommendation or guideline described
in paragraph (a)(1) of this section, a plan
or issuer may rely on the relevant
clinical evidence base and established
reasonable medical management
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techniques to determine the frequency,
method, treatment, or setting for
coverage of a recommended preventive
health service.
(ii) For a medical management
technique to be considered reasonable
under paragraph (a)(4)(i) of this section,
a plan or issuer must have an easily
accessible, transparent, and sufficiently
expedient exceptions process that is not
unduly burdensome on a participant,
beneficiary, or attending provider (or
other person acting as the individual’s
authorized representative) that ensures
the individual can receive coverage,
without cost-sharing requirements, for
the item or service specified in a
recommendation or guideline described
in paragraph (a)(1) of this section,
according to the frequency, method,
treatment, or setting, that is medically
necessary with respect to the individual,
as determined by the individual’s
attending provider.
*
*
*
*
*
(6) Contraceptive items—(i)
Definitions. For purposes of this
paragraph (a)(6)—
(A) Drug-led combination product
means a combination product, as
defined under 21 CFR 3.2(e), that
comprises a drug and a device, and for
which the drug component provides the
primary mode of action.
(B) Therapeutic equivalent has the
meaning given the term therapeutic
equivalents in 21 CFR 314.3(b).
(ii) Over-the-counter contraception.
Subject to § 54.9815–2713A and 45 CFR
147.132 and 147.133, a plan or issuer is
not considered to comply with
paragraph (a)(1) of this section with
respect to a contraceptive item that can
be lawfully obtained by a participant or
beneficiary without a prescription and
for which the applicable
recommendation or guideline does not
require a prescription, unless the plan
or issuer provides coverage for the
contraceptive item without requiring a
prescription and without imposing any
cost-sharing requirements in accordance
with paragraph (a)(1) of this section.
(iii) Therapeutic equivalents. For
purposes of paragraph (a)(4) of this
section, a plan’s or issuer’s medical
management techniques are not
considered to be reasonable unless the
plan or issuer provides coverage,
without imposing any cost-sharing
requirements, for all contraceptive items
recommended under paragraph (a)(1) of
this section that are drugs or drug-led
combination products, other than those
items for which there is at least one
therapeutic equivalent drug or drug-led
combination product, as applicable, for
which the plan or issuer provides
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coverage without imposing any costsharing requirements.
*
*
*
*
*
(d) Applicability date. The provisions
of this section apply for plan years
beginning on or after September 23,
2010. Notwithstanding the previous
sentence, the provisions of paragraph
(a)(4)(ii) of this section apply beginning
on [EFFECTIVE DATE OF FINAL RULE]
and the provisions of paragraph (a)(6) of
this section apply for plan years
beginning on or after January 1, 2026.
See § 54.9815–1251 for determining the
application of this section to
grandfathered health plans (providing
that these rules regarding coverage of
preventive health services do not apply
to grandfathered health plans).
■ Par. 3. Section 54.9815–2715A2 is
amended by:
■ a. Redesignating paragraphs (b)(1)(vi)
and (vii) as paragraphs (b)(1)(vii) and
(viii);
■ b. Adding new paragraph (b)(1)(vi);
and
■ c. Revising paragraph (c)(1).
The addition and revision read as
follows:
§ 54.9815–2715A2 Transparency in
coverage—required disclosures to
participants and beneficiaries.
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*
*
*
*
*
(b) * * *
(1) * * *
(vi) If a participant or beneficiary
requests cost-sharing information for
any covered contraceptive item or
service, a statement explaining that
over-the-counter contraceptive items are
covered without a prescription and
without cost sharing in accordance with
§ 54.9815–2713(a)(6), along with a
phone number and internet link to
where a participant or beneficiary can
learn more information about the plan
or policy’s contraception coverage.
*
*
*
*
*
(c) * * *
(1) The provisions of this section
apply for plan years beginning on or
after January 1, 2023, with respect to the
500 items and services to be posted on
a publicly available website, and with
respect to all covered items and
services, for plan years beginning on or
after January 1, 2024. Notwithstanding
the previous sentence, the provisions of
paragraph (b)(1)(vi) of this section apply
for plan years beginning on or after
January 1, 2026.
*
*
*
*
*
DEPARTMENT OF LABOR
Employee Benefits Security
Administration
For the reasons stated in the
preamble, the Department of Labor
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Jkt 265001
proposes to amend 29 CFR part 2590 as
set forth below:
PART 2590—RULES AND
REGULATIONS FOR GROUP HEALTH
PLANS
1. The authority citation for part 2590
continues to read as follows:
■
Authority: 29 U.S.C. 1027, 1059, 1135,
1161–1168, 1169, 1181–1183, 1181 note,
1185, 1185a–n, 1191, 1191a, 1191b, and
1191c; sec. 101(g), Pub. L.104–191, 110 Stat.
1936; sec. 401(b), Pub. L. 105–200, 112 Stat.
645 (42 U.S.C. 651 note); sec. 512(d), Pub. L.
110–343, 122 Stat. 3881; sec. 1001, 1201, and
1562(e), Pub. L. 111–148, 124 Stat. 119, as
amended by Pub. L. 111–152, 124 Stat. 1029;
Division M, Pub. L. 113–235, 128 Stat. 2130;
Pub. L. 116–260 134 Stat. 1182; Secretary of
Labor’s Order 1–2011, 77 FR 1088 (Jan. 9,
2012).
2. Section 2590.715–2713 is amended
by revising paragraph (a)(4), adding
paragraph (a)(6), and revising paragraph
(d) to read as follows:
■
§ 2590.715–2713
health services.
Coverage of preventive
(a) * * *
(4) Reasonable medical management.
(i) Nothing prevents a plan or issuer
from using reasonable medical
management techniques to determine
the frequency, method, treatment, or
setting for an item or service described
in paragraph (a)(1) of this section to the
extent not specified in the relevant
recommendation or guideline. To the
extent not specified in a
recommendation or guideline described
in paragraph (a)(1) of this section, a plan
or issuer may rely on the relevant
clinical evidence base and established
reasonable medical management
techniques to determine the frequency,
method, treatment, or setting for
coverage of a recommended preventive
health service.
(ii) For a medical management
technique to be considered reasonable
under paragraph (a)(4)(i) of this section,
a plan or issuer must have an easily
accessible, transparent, and sufficiently
expedient exceptions process that is not
unduly burdensome on a participant,
beneficiary, or attending provider (or
other person acting as the individual’s
authorized representative) that ensures
the individual can receive coverage,
without cost-sharing requirements, for
the item or service specified in a
recommendation or guideline described
in paragraph (a)(1) of this section,
according to the frequency, method,
treatment, or setting, that is medically
necessary with respect to the individual,
as determined by the individual’s
attending provider.
*
*
*
*
*
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85793
(6) Contraceptive items—(i)
Definitions. For purposes of this
paragraph (a)(6)—
(A) Drug-led combination product
means a combination product, as
defined under 21 CFR 3.2(e), that
comprises a drug and a device, and for
which the drug component provides the
primary mode of action.
(B) Therapeutic equivalent has the
meaning given the term therapeutic
equivalents in 21 CFR 314.3(b).
(ii) Over-the-counter contraception.
Subject to § 2590.715–2713A and 45
CFR 147.132 and 147.133, a plan or
issuer is not considered to comply with
paragraph (a)(1) of this section with
respect to a contraceptive item that can
be lawfully obtained by a participant or
beneficiary without a prescription and
for which the applicable
recommendation or guideline does not
require a prescription, unless the plan
or issuer provides coverage for the
contraceptive item without requiring a
prescription and without imposing any
cost-sharing requirements in accordance
with paragraph (a)(1) of this section.
(iii) Therapeutic equivalents. For
purposes of paragraph (a)(4) of this
section, a plan’s or issuer’s medical
management techniques are not
considered to be reasonable unless the
plan or issuer provides coverage,
without imposing any cost-sharing
requirements, for all contraceptive items
recommended under paragraph (a)(1) of
this section that are drugs or drug-led
combination products, other than those
items for which there is at least one
therapeutic equivalent drug or drug-led
combination product, as applicable, for
which the plan or issuer provides
coverage without imposing any costsharing requirements.
*
*
*
*
*
(d) Applicability date. The provisions
of this section apply for plan years
beginning on or after September 23,
2010. Notwithstanding the previous
sentence, the provisions of paragraph
(a)(4)(ii) of this section apply beginning
on [EFFECTIVE DATE OF FINAL RULE]
and the provisions of paragraph (a)(6) of
this section apply for plan years
beginning on or after January 1, 2026.
See § 2590.715–1251 for determining
the application of this section to
grandfathered health plans (providing
that these rules regarding coverage of
preventive health services do not apply
to grandfathered health plans).
*
*
*
*
*
■ 3. Section 2590.715–2715A2 is
amended by—
■ a. Redesignating paragraphs (b)(1)(vi)
and (vii) as paragraphs (b)(1)(vii) and
(viii);
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b. Adding new paragraph (b)(1)(vi);
and
■ c. Revising paragraph (c)(1).
The addition and revision read as
follows:
■
§ 2590.715–2715A2 Transparency in
coverage—required disclosures to
participants and beneficiaries.
*
*
*
*
*
(b) * * *
(1) * * *
(vi) If a participant or beneficiary
requests cost-sharing information for
any covered contraceptive item or
service, a statement explaining that
over-the-counter contraceptive items are
covered without a prescription and
without cost sharing in accordance with
§ 2590.715–2713(a)(6), along with a
phone number and internet link to
where a participant or beneficiary can
learn more information about the plan
or policy’s contraception coverage.
*
*
*
*
*
(c) * * *
(1) The provisions of this section
apply for plan years beginning on or
after January 1, 2023, with respect to the
500 items and services to be posted on
a publicly available website, and with
respect to all covered items and
services, for plan years beginning on or
after January 1, 2024. Notwithstanding
the previous sentence, the provisions of
paragraph (b)(1)(vi) of this section apply
for plan years beginning on or after
January 1, 2026.
*
*
*
*
*
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
For the reasons stated in the
preamble, the Department of Health and
Human Services proposes to amend 45
CFR part 147 as set forth below:
PART 147—HEALTH INSURANCE
REFORM REQUIREMENTS FOR THE
GROUP AND INDIVIDUAL HEALTH
INSURANCE MARKETS
1. The authority citation for part 147
continues to read as follows:
■
Authority: 42 U.S.C. 300gg through 300gg–
63, 300gg–91, 300gg–92, and 300gg–111
through 300gg–139, as amended, and section
3203, Pub. L. 116–136, 134 Stat. 281.
2. Section 147.130 is amended by
revising paragraph (a)(4), adding
paragraph (a)(6), and revising paragraph
(d) to read as follows:
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■
§ 147.130
services.
Coverage of preventive health
(a) * * *
(4) Reasonable medical management.
(i) Nothing prevents a plan or issuer
from using reasonable medical
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management techniques to determine
the frequency, method, treatment, or
setting for an item or service described
in paragraph (a)(1) of this section to the
extent not specified in the relevant
recommendation or guideline. To the
extent not specified in a
recommendation or guideline described
in paragraph (a)(1) of this section, a plan
or issuer may rely on the relevant
clinical evidence base and established
reasonable medical management
techniques to determine the frequency,
method, treatment, or setting for
coverage of a recommended preventive
health service.
(ii) For a medical management
technique to be considered reasonable
under paragraph (a)(4)(i) of this section,
a plan or issuer must have an easily
accessible, transparent, and sufficiently
expedient exceptions process that is not
unduly burdensome on a participant,
beneficiary, enrollee, or attending
provider (or other person acting as the
individual’s authorized representative)
that ensures the individual can receive
coverage, without cost-sharing
requirements, for the item or service
specified in a recommendation or
guideline described in paragraph (a)(1)
of this section, according to the
frequency, method, treatment, or setting,
that is medically necessary with respect
to the individual, as determined by the
individual’s attending provider.
*
*
*
*
*
(6) Contraceptive items—(i)
Definitions. For purposes of this
paragraph (a)(6)—
(A) Drug-led combination product
means a combination product, as
defined under 21 CFR 3.2(e), that
comprises a drug and a device, and for
which the drug component provides the
primary mode of action.
(B) Therapeutic equivalent has the
meaning given the term therapeutic
equivalents in 21 CFR 314.3(b).
(ii) Over-the-counter contraception.
Subject to §§ 147.131, 147.132, and
147.133, a plan or issuer is not
considered to comply with paragraph
(a)(1) of this section with respect to a
contraceptive item that can be lawfully
obtained by a participant, beneficiary, or
enrollee without a prescription and for
which the applicable recommendation
or guideline does not require a
prescription, unless the plan or issuer
provides coverage for the contraceptive
item without requiring a prescription
and without imposing any cost-sharing
requirements in accordance with
paragraph (a)(1) of this section.
(iii) Therapeutic equivalents. For
purposes of paragraph (a)(4) of this
section, a plan’s or issuer’s medical
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management techniques are not
considered to be reasonable unless the
plan or issuer provides coverage,
without imposing any cost-sharing
requirements, for all contraceptive items
recommended under paragraph (a)(1) of
this section that are drugs or drug-led
combination products, other than those
items for which there is at least one
therapeutic equivalent drug or drug-led
combination product, as applicable, for
which the plan or issuer provides
coverage without imposing any costsharing requirements.
*
*
*
*
*
(d) Applicability date. The provisions
of this section apply for plan years (in
the individual market, for policy years)
beginning on or after September 23,
2010. Notwithstanding the previous
sentence, the provisions of paragraph
(a)(4)(ii) of this section apply beginning
on [EFFECTIVE DATE OF FINAL RULE]
and the provisions of paragraph (a)(6) of
this section apply for plan years (in the
individual market, for policy years),
beginning on or after January 1, 2026.
See § 147.140 of this part for
determining the application of this
section to grandfathered health plans
(providing that these rules regarding
coverage of preventive health services
do not apply to grandfathered health
plans).
*
*
*
*
*
■ 3. Section 147.211 is amended by—
■ a. Redesignating paragraphs (b)(1)(vi)
and (vii) as paragraphs (b)(1)(vii) and
(viii);
■ b. Adding new paragraph (b)(1)(vi);
and
■ c. Revising paragraph (c)(1).
The addition and revision read as
follows:
§ 147.211 Transparency in coverage—
required disclosures to participants,
beneficiaries, or enrollees.
*
*
*
*
*
(b) * * *
(1) * * *
(vi) If a participant, beneficiary, or
enrollee requests cost-sharing
information for any covered
contraceptive item or service, a
statement explaining that over-thecounter contraceptive items are covered
without a prescription and without cost
sharing in accordance with
§ 147.130(a)(6), along with a phone
number and internet link to where a
participant, beneficiary, or enrollee can
learn more information about the plan
or policy’s contraception coverage.
*
*
*
*
*
(c) * * *
(1) The provisions of this section
apply for plan years (in the individual
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market, for policy years) beginning on or
after January 1, 2023, with respect to the
500 items and services to be posted on
a publicly available website, and with
respect to all covered items and
services, for plan years (in the
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individual market, for policy years)
beginning on or after January 1, 2024.
Notwithstanding the previous sentence,
the provisions of paragraph (b)(1)(vi) of
this section apply for plan years (in the
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individual market, for policy years)
beginning on or after January 1, 2026.
*
*
*
*
*
[FR Doc. 2024–24675 Filed 10–23–24; 4:15 pm]
BILLING CODE 4150–29–P; 4830–01–P; 4120–01–P
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FEDERAL REGISTER
Vol. 89
Monday,
No. 208
October 28, 2024
Part V
Department of the Treasury
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Internal Revenue Service
26 CFR Part 1
Advanced Manufacturing Production Credit; Final Rule
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85798
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 10010]
RIN 1545–BQ85
Advanced Manufacturing Production
Credit
Internal Revenue Service (IRS),
Treasury.
ACTION: Final rule.
AGENCY:
This document sets forth final
regulations regarding the advanced
manufacturing production credit
established by the Inflation Reduction
Act of 2022 to incentivize the
production of eligible components
within the United States. Eligible
components include certain solar energy
components, wind energy components,
inverters, qualifying battery
components, and applicable critical
minerals. These final regulations also
address specific recordkeeping and
reporting requirements. These final
regulations affect eligible taxpayers who
produce and sell eligible components
and intend to claim the benefit of an
advanced manufacturing production
credit, including by making elective
payment or credit transfer elections.
DATES:
Effective date: These regulations are
effective December 27, 2024.
Applicability date: For date of
applicability, see §§ 1.45X–1(j), 1.45X–
2(f), 1.45X–3(g), and 1.45X–4(d).
FOR FURTHER INFORMATION CONTACT:
Mindy Chou, John Deininger, Derek
Gimbel, or Alexander Scott at (202)
317–6853 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Authority
This document contains final
regulations (final regulations) that
amend the Income Tax Regulations (26
CFR part 1) to implement the statutory
provisions of section 45X of the Internal
Revenue Code (Code). The final
regulations are issued by the Secretary
of the Treasury or her delegate
(Secretary) under the authority granted
under sections 45X(a)(3)(B)(i) and (ii),
1502, 6001, 6417(h), 6418(h), and
7805(a) of the Code.
Section 45X(a)(3)(B)(i) of the Code
provides a specific delegation of
authority to the Secretary to prescribe
the form and manner for a taxpayer to
make an election such that ‘‘a sale of
components by such taxpayer to a
related person shall be deemed to have
been made to an unrelated person.’’
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Section 45X(a)(3)(B)(ii) provides a
specific delegation of authority to the
Secretary, ‘‘[a]s a condition of, and prior
to, any election described in [section
45X(a)(3)(B)(i)],’’ to ‘‘require such
information or registration as the
Secretary deems necessary for purposes
of preventing duplication, fraud, or any
improper or excessive amount
determined under [section 45X(a)(1)].’’
Section 1502 of the Code requires the
Secretary to ‘‘prescribe such regulations
as he may deem necessary in order that
the tax liability of any affiliated group
of corporations making a consolidated
return and of each corporation in the
group, both during and after the period
of affiliation, may be returned,
determined, computed, assessed,
collected, and adjusted, in such manner
as clearly to reflect the income-tax
liability and the various factors
necessary for the determination of such
liability, and in order to prevent
avoidance of such tax liability.’’ Section
1502 of the Code also provides that the
Secretary ‘‘may prescribe rules that are
different from the provisions of chapter
1 that would apply if such corporations
filed separate returns.’’
Section 6001 of the Code provides an
express delegation of authority to the
Secretary, stating that, ‘‘[e]very person
liable for any tax imposed by this title,
or for the collection thereof, shall keep
such records, render such statements,
make such returns, and comply with
such rules and regulations as the
Secretary may from time to time
prescribe. Whenever in the judgment of
the Secretary it is necessary, [s]he may
require any person, by notice served
upon such person or by regulations, to
make such returns, render such
statements, or keep such records, as the
Secretary deems sufficient to show
whether or not such person is liable for
tax under this title.’’
Sections 6417(h) and 6418(h) of the
Code direct the Secretary to issue such
regulations or other guidance as may be
necessary to carry out the purposes of
each section, respectively.
Finally, section 7805(a) of the Code
authorizes the Secretary ‘‘to prescribe
all needful rules and regulations for the
enforcement of [the Code], including all
rules and regulations as may be
necessary by reason of any alteration of
law in relation to internal revenue.’’
Background
I. Overview of Section 45X
Section 45X was added to the Code by
section 13502(a) of Public Law 117–169,
136 Stat. 1818 (August 16, 2022),
commonly known as the Inflation
Reduction Act of 2022 (IRA). In general,
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for purposes of the general business
credit under section 38 of the Code,
section 45X provides for the advanced
manufacturing production credit
(section 45X credit) with respect to
eligible components produced by the
taxpayer and sold during the taxable
year to an unrelated person. Section 45X
applies to eligible components
produced and sold after December 31,
2022.
Under section 45X(a)(1), the total
section 45X credit amount for the
taxable year equals the sum of the credit
amounts determined under section
45X(b) with respect to each eligible
component (as defined in section
45X(c)(1)). Under section 45X(a)(2), any
eligible component produced and sold
by the taxpayer is taken into account
only if the production and sale is in a
trade or business of the taxpayer.
Section 45X(a)(3) generally provides
rules regarding the sale of eligible
components to an unrelated person.
However, section 45X(a)(3)(B) provides
a special rule whereby if a taxpayer
makes an election in the form and
manner prescribed by the Secretary, a
sale of eligible components by the
taxpayer to a related person will be
treated as if made to an unrelated
person, referred to in these final
regulations as the related person
election (Related Person Election). As a
condition of, and prior to, a taxpayer
making the Related Person Election, the
Secretary may require such information
or registration as the Secretary deems
necessary for purposes of preventing
duplication, fraud, or any improper or
excessive credit amount.
II. Credit Amounts for Eligible
Components
Section 45X(b)(1) generally provides
the credit amount determined with
respect to any eligible component,
including any other eligible component
it incorporates, subject to the credit
phase out rules provided at section
45X(b)(3). Section 45X(b)(1)(A) through
(M) and section 45X(b)(2) set forth the
credit amounts for each type of eligible
component. The credit amounts are
generally subject to phase out rules
under section 45X(b)(3), but the phase
out rules do not apply to any applicable
critical mineral. For any eligible
component (except applicable critical
minerals) sold after December 31, 2029,
the credit amount for such component
equals the product of the amount
determined under section 45X(b)(1) for
such component multiplied by the
applicable phase out percentage under
section 45X(b)(3)(B)(i) through (iv). In
the case of an eligible component sold
during calendar year 2030, 2031, and
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2032, the phase out percentages are 75
percent, 50 percent, and 25 percent,
respectively. For any eligible
component sold after December 31,
2032, the phase out percentage is zero
percent, and no section 45X credit is
allowed other than for applicable
critical minerals.
Section 45X(b)(4) provides capacity
limitations used to compute the credit
amount for battery cells under section
45X(b)(1)(K)(ii) and battery modules
under section 45(b)(1)(L)(ii). Section
45X(b)(4)(A) provides that the capacity
determined with respect to a battery cell
or battery module must not exceed a
capacity-to-power-ratio of 100:1. Section
45X(b)(4)(B) defines ‘‘capacity-to-powerratio’’ as the ratio of the capacity of a
battery cell or battery module to the
maximum discharge amount of such cell
or module.
III. Eligible Components
Section 45X(c)(1)(A) defines an
eligible component to mean any solar
energy component, any wind energy
component, any inverter described in
section 45X(c)(2)(B) through (G), any
qualifying battery component, and any
applicable critical mineral. Section
45X(c)(1)(B) clarifies that eligible
components do not include any
property that is produced at a facility if
the basis of any property that is part of
such facility is taken into account for
purposes of the qualifying advanced
energy project credit allowed under
section 48C after August 16, 2022 (the
date of enactment of the IRA).
Section 45X(c)(2)(A) generally defines
an inverter as an end product that is
suitable to convert direct current (DC)
electricity from one or more solar
modules or certified distributed wind
energy systems into alternating current
(AC) electricity. Section 45X(c)(2)(B)
through (G) defines the following
different types of eligible inverters:
central inverter, commercial inverter,
distributed wind inverter,
microinverter, residential inverter, and
utility inverter.
Section 45X(c)(3)(A) defines a solar
energy component as a solar module,
photovoltaic cell, photovoltaic wafer,
solar grade polysilicon, torque tube,
structural fastener, or polymeric
backsheet. Section 45X(c)(3)(B) defines
these different types of eligible solar
energy components as well as a solar
tracker.
Section 45X(c)(4)(A) defines a wind
energy component as blades, nacelles,
towers, offshore wind foundations, and
related offshore wind vessels. Section
45X(c)(4)(B) defines these different
types of eligible wind energy
components.
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Section 45X(c)(5)(A) defines a
qualifying battery component as
electrode active materials, battery cells,
and battery modules. Section
45X(c)(5)(B) defines these different
types of qualifying battery components.
Section 45X(c)(6) defines applicable
critical minerals. The following
minerals are eligible for the section 45X
credit if converted or purified to
specified purities or forms: aluminum,
antimony, arsenic, barite, beryllium,
bismuth, cerium, cesium, chromium,
cobalt, dysprosium, erbium, europium,
fluorspar, gadolinium, gallium,
germanium, graphite, hafnium,
holmium, indium, iridium, lanthanum,
lithium, lutetium, magnesium,
manganese, neodymium, nickel,
niobium, palladium, platinum,
praseodymium, rhodium, rubidium,
ruthenium, samarium, scandium,
tantalum, tellurium, terbium, thulium,
tin, titanium, tungsten, vanadium,
ytterbium, yttrium, zinc, and zirconium.
IV. Special Rules
Section 45X(d)(1) provides that
persons are related to each other for
purposes of the section 45X credit if
they would be treated as a single
employer under section 52(b) of the
Code and § 1.52–1(b). Section 52(b) and
§ 1.52–1(b) generally provide that trades
or businesses that are partnerships,
trusts, estates, corporations, or sole
proprietorships under common control
are members of a controlled group and
are treated as a single employer. Section
52(b) requires the regulations under
section 52(b) to be based on principles
similar to the principles that apply
under section 52(a), which generally
provide that corporations that are
members of a controlled group of
corporations are treated as a single
employer. Section 52(a) provides that a
controlled group of corporations is
defined with reference to section
1563(a) of the Code. Section 52(b) and
§ 1.52–1 provide rules based on
principles similar to those under section
52(a), but with certain modifications to
account for different types of ownership
interests.
Section 45X(d)(2) provides that sales
of eligible components are taken into
account under section 45X only for
eligible components that are produced
within the United States (including
continental shelf areas described in
section 638(1) of the Code), or a U.S.
territory (including continental shelf
areas described in section 638(2)).1
1 The preamble to these section 45X final
regulations refers to U.S. territory to mean a
possession as defined in section 638(2).
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Section 45X(d)(3) directs the
Secretary to promulgate regulations
adopting rules similar to the rules of
section 52(d) to apportion credit
amounts between estates or trusts and
their beneficiaries on the basis of the
income of the estates or trusts allocable
to each, and to pass-thru any
apportioned credit amounts to the
beneficiaries.
Section 45X(d)(4) provides that a
person is treated as having sold an
eligible component to an unrelated
person if such component is integrated,
incorporated, or assembled into another
eligible component that is sold to an
unrelated person.
V. Prior Guidance
On October 24, 2022, the Department
of the Treasury (Treasury Department)
and the IRS published Notice 2022–47,
2022–43 IRB 312, requesting comments
on issues arising under section 45X that
may require guidance. On December 15,
2023, after full consideration of all the
stakeholder input received in response
to Notice 2022–47, the Treasury
Department and the IRS published a
notice of proposed rulemaking and a
notice of public hearing (REG–107423–
23) in the Federal Register (88 FR
86844) to provide guidance on the
advanced manufacturing production
credit under section 45X (Proposed
Regulations). While the Proposed
Regulations are summarized in the
Summary of Contents and Explanation
of Revisions portion of this preamble,
the provisions of the Proposed
Regulations are explained in greater
detail in the preamble to the Proposed
Regulations.
On March 6, 2023, the Treasury
Department and the IRS published
Notice 2023–18, 2023–10 IRB 508,
establishing the qualifying advanced
energy project allocation program
(section 48C(e) program). On June 20,
2023, the Treasury Department and the
IRS published Notice 2023–44, 2023–25
IRB 924, providing additional guidance
on the section 48C(e) program,
including rules for the interaction
between sections 45X and 48C. The
rules regarding the interaction between
sections 45X and 48C provided in
Notices 2023–18 and 2023–44 were
addressed in the Proposed Regulations
and have been incorporated into these
final regulations. Section 5.05(2) of
Notice 2023–18 and section 3 of Notice
2023–44 are superseded by these final
regulations.
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Summary of Comments and
Explanation of Revisions
I. Overview
This Summary of Comments and
Explanation of Revisions summarizes
the Proposed Regulations, all
substantive comments submitted in
response to the Proposed Regulations,
and revisions adopted by these final
regulations. The Treasury Department
and the IRS received 193 written
comments in response to the Proposed
Regulations. The comments are
available for public inspection at
https://www.regulations.gov or upon
request. A public hearing was held in
person and telephonically on February
22, 2024. After full consideration of the
comments and testimony, these final
regulations adopt the Proposed
Regulations with modifications in
response to the comments and
testimony as described in this Summary
of Comments and Explanation of
Revisions.
Comments merely summarizing the
statute or the Proposed Regulations,
recommending statutory revisions to
section 45X or other statutes, and
addressing issues that are outside the
scope of this rulemaking (such as
revising other Federal regulations and
recommending changes to IRS forms)
are generally not addressed in this
Summary of Comments and Explanation
of Revisions or adopted in these final
regulations. Some commenters
requested additional time to submit
comments. The Proposed Regulations
required all comments to be received by
February 13, 2024; however, comments
received later but before these final
regulations were substantially
developed were carefully considered in
drafting these final regulations. The
final regulations retain the same basic
structure as the Proposed Regulations
with certain revisions.
II. General Rules Applicable to the
Advanced Manufacturing Production
Credit
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A. In general
Proposed § 1.45X–1 would have
provided general rules regarding the
section 45X credit including generally
applicable definitions, rules regarding
the computation of the credit amount,
the definition of ‘‘produced by the
taxpayer,’’ the requirement to produce
eligible components in the United
States, the production and sale in a
trade or business requirement, the sale
of integrated components, the
interaction between sections 45X and
48C, and an anti-abuse rule.
Commenters addressed certain aspects
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of these proposed rules, as described in
Part II. of this Summary of Comments
and Explanation of Revisions. These
final regulations generally adopt
proposed § 1.45X–1, with the
modifications described in this Part II.
of the Summary of Comments and
Explanations of Revisions.
B. Definition of Produced by the
Taxpayer
1. In General
Section 45X(a)(1) allows a section 45X
credit with respect to each eligible
component which is produced by the
taxpayer and sold to an unrelated
person during the taxable year.
Proposed § 1.45X–1(c)(1) would have
defined ‘‘produced by the taxpayer’’ to
mean a process conducted by the
taxpayer that substantially transforms
constituent elements, materials, or
subcomponents into a complete and
distinct eligible component that is
functionally different from that which
would result from mere assembly or
superficial modification of the elements,
materials, or subcomponents. Proposed
§ 1.45X–1(c)(1)(i) would have provided
that ‘‘produced by the taxpayer’’ does
not include partial transformation that
does not result in substantial
transformation of constituent elements,
materials, and subcomponents into a
complete and distinct eligible
component as described in proposed
§ 1.45X–1(c)(1). Proposed § 1.45X–
1(c)(1)(ii) would have provided that
‘‘produced by the taxpayer’’ does not
include minor assembly of two or more
constituent elements, materials, or
subcomponents, or superficial
modification of the final eligible
component, if the taxpayer does not also
engage in the process resulting in a
substantial transformation described in
proposed § 1.45X–1(c)(1). Proposed
§ 1.45X–1(c)(1)(iii) would have provided
examples illustrating the definition of
‘‘produced by the taxpayer.’’
Several commenters requested that
the final regulations specifically state
that taxpayers may produce eligible
components using recycled materials.
While the preamble to the Proposed
Regulations stated that primary and
secondary production are included in
the definition of ‘‘produced by the
taxpayer,’’ that issue was not addressed
in the text of the Proposed Regulations.
The preamble to the Proposed
Regulations further stated that primary
production involves producing an
eligible component using non-recycled
materials while secondary production
involves producing an eligible
component using recycled materials.
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The Treasury Department and the IRS
agree with the request to clarify the
general rule that production includes
primary and secondary production, and
these final regulations revise proposed
§ 1.45X–1(c)(1) and (2) to add secondary
production to the definition of produced
by the taxpayer.
A few commenters stated the
definition of ‘‘produced by the
taxpayer’’ should be defined
consistently with section 263A of the
Code to the extent possible and
expressed concern that using different
definitions will cause ‘‘increased
technical uncertainty, additional
compliance burden, especially for small
business taxpayers, and unnecessary
litigation and controversy.’’ Another
commenter stated that the Proposed
Regulations introduced new definitions,
such as ‘‘substantial transformation’’ as
production qualifiers, ‘‘raising concerns
about its apparent conflict with the
enacted statutes.’’
The term ‘‘produced by the taxpayer’’
is not defined in section 45X, nor is
there any indication in section 45X
suggesting that Congress intended the
use of any existing statutory definition,
such as the standard in section 263A.
Section 45X provides a credit based on
the production of numerous eligible
components and a variety of production
processes are utilized by manufacturers
in the production of these eligible
components.
Given the variety of production
processes and the highly technical
nature of production, the Treasury
Department and the IRS, in close
coordination with the Department of
Energy, proposed a definition that
would apply broadly to eligible
components. In addition, the proposed
definition of ‘‘produced by the
taxpayer’’ focused on requiring
production of a complete and distinct
eligible component and, accordingly,
introduces a substantial transformation
requirement to distinguish production
from partial transformation, mere
assembly, and superficial modification.
The proposed definition of ‘‘produced
by the taxpayer’’ along with the
amendment clarifying that production
includes secondary production is the
appropriate standard to implement the
section 45X credit. The definition
provides the necessary flexibility to
account for the highly technical nature
of the production processes associated
with eligible components. This standard
also ensures that the section 45X credit
is claimed by the taxpayer responsible
for the key production activity and that
such activity occurs in the United States
or a United States territory. In contrast
to section 45X, section 263A is designed
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to ensure that taxpayers capture the
direct and indirect costs associated with
producing inventoriable goods for
capitalization purposes. Moreover, in
section 263A, the definition of
production applies to a broad range of
produced items, whereas the definition
in section 45X applies to a limited
number of statutorily enumerated
eligible components. For these reasons,
the Treasury Department and the IRS
have concluded that the definition of
‘‘produced by the taxpayer’’ in the
Proposed Regulations with the
clarifying amendment addressing
secondary production appropriately
implements section 45X(a)(1)(A), and
thus decline to accept the commenter’s
recommendation to define ‘‘produced
by the taxpayer’’ for purposes of section
45X consistent with the similar term
under section 263A.
Several commenters requested that
the final regulations provide more
specific guidance for certain eligible
components to illustrate whether certain
activities or processes result in
substantial transformation versus partial
transformation, mere assembly, or
superficial modification. One
commenter, for example, requested that
the final rules confirm that the term
‘‘produced’’ in the phrase ‘‘produced by
the taxpayer’’ is applied within the
context of the standard production
process of each eligible component,
such that the standard production
process for each eligible component is
deemed to be ‘‘substantial
transformation’’ that meets the
requirements of proposed § 1.45X–
1(c)(1). The commenter provided an
example of the production of a solar
module, which ‘‘involves the final
assembly of the other solar components,
many of which separately qualify for
their own section 45X credit, into the
overall module.’’ The Treasury
Department and the IRS recognize that
certain eligible components, such as
solar modules and battery modules
using battery cells, are produced
primarily by assembling other
components. In these limited cases, the
substantial transformation requirement
is met by the taxpayer that assembles
the constituent components to produce
the solar module or battery module
using battery cells. Because assembly is
the activity that primarily produces
these eligible components, the assembly
necessary to achieve production of a
solar module or battery module using
battery cells should not generally be
viewed as disqualifying ‘‘minor
assembly.’’ The Treasury Department
and the IRS also recognize that certain
eligible components, such as nacelles,
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that have undergone substantial
transformation to be considered
‘‘produced by the taxpayer’’ may be
produced and sold to a third party in a
manner in which only minor assembly
remains left to complete. In these cases,
provided all other requirements of
section 45X are met, the party that
produces and sells the eligible
components in such manner is not
precluded from claiming the section
45X credit. The third party that
completes the eligible component by
performing minor assembly is not
entitled to the section 45X credit
because that third party is not
considered to produce the eligible
component. For these reasons, and for
clarity and consistency, the final
regulations replace each instance of
‘‘mere assembly’’ in the Proposed
Regulations, with ‘‘minor assembly.’’
A commenter suggested adding an
additional example to proposed
§ 1.45X–1(c)(1)(iii) to clarify whether
the integration of electrical
subcomponents and software necessary
to enable the functionality of an inverter
is disqualifying minor assembly, and
another commenter requested
clarification on whether the coating of a
battery separator is ‘‘superficial
modification’’ or ‘‘substantial
transformation.’’ A few commenters also
requested that the final rules further
clarify ‘‘substantial transformation’’ to
ensure manufacturers claiming section
45X credits are actually producing an
eligible component in the United States
and suggested using examples to
differentiate between substantial and
partial transformation for specific
components, such as inverters for solar
energy.
As previously discussed, section 45X
provides a credit based on the
production of numerous eligible
components and a variety of production
processes are utilized by manufacturers
in the production of these eligible
components. Thus, listing specific
production processes for each eligible
component is not practicable and could
also imply that other variations of
production processes do not qualify as
production. The Treasury Department
and the IRS have determined that the
inquiry into whether production
activities or processes result in
substantial transformation for a specific
eligible component is highly fact
dependent and conclude that the
examples in proposed § 1.45X–
1(c)(1)(iii), which are included in the
final regulations, provide sufficient
guidance to determine what types of
activities or production steps do not
qualify as substantial transformation.
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2. Special Rule for Production of Certain
Eligible Components
Proposed § 1.45X–1(c)(2) would have
provided that for solar grade
polysilicon, electrode active materials,
and applicable critical minerals,
produced by the taxpayer means
processing, conversion, refinement, or
purification of source materials, such as
brines, ores, or waste streams, to derive
a distinct eligible component. Several
commenters requested that in addition
to processing, conversion, refinement,
and purification, the final regulations
clarify that the production process
includes extraction, while others
requested maintaining the position in
the Proposed Regulations to exclude
costs of extraction. The Treasury
Department and the IRS decline to
amend the final regulations to expressly
include the term ‘‘extraction,’’ as the
action of extraction alone does not
produce an eligible component. For the
discussion and analysis of whether
extraction costs are includible as
production costs in the production of
electrode active materials or applicable
critical minerals, see Part IV.E.1.e. of
this Summary of Comments and
Explanation of Revisions.
Another commenter asked whether
recycling aluminum transformer wire
(cleaning, melting, and bailing it) to
send to an aluminum smelter
constitutes ‘‘secondary aluminum
production.’’ The Treasury Department
and the IRS note that under both
proposed § 1.45X–1(c)(2) and § 1.45X–
1(c)(2) of these final regulations,
substantial transformation for an
applicable critical mineral requires that
the applicable critical mineral be
‘‘processed, converted, refined, or
purified to derive a distinct eligible
component.’’ Because a taxpayer in
these circumstances would not derive a
distinct eligible component, this would
not be an eligible component produced
by the taxpayer within the meaning of
section 45X(a)(1)(A).
These final regulations make a
clarifying revision to the definition of
produced by the taxpayer under
proposed § 1.45X–1(c)(2) so that it
references substantial transformation.
While no comments were received on
this issue, this revision is needed to
appropriately align the definition of
‘‘produced by the taxpayer’’ in § 1.45X–
1(c)(2) with the requirements to qualify
as an eligible taxpayer in § 1.45X–
1(c)(3).
3. Eligible Taxpayer
a. In General
Proposed § 1.45X–1(c)(3)(i) would
have provided that the taxpayer
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claiming a section 45X credit with
respect to an eligible component must
be the person that performs the actual
production activities that bring about a
substantial transformation resulting in
the eligible component and that sells
such eligible component to an unrelated
person.
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b. Contract Manufacturing Arrangement
Proposed § 1.45X–1(c)(3)(ii)(A) would
have provided that, if the production of
an eligible component is performed in
whole or in part subject to a contract
that is a contract manufacturing
arrangement, then the party to such
contract that may claim the section 45X
credit with respect to such eligible
component, provided all other
requirements in section 45X are met, is
the taxpayer that performs the actual
production activities that bring about a
substantial transformation resulting in
the eligible component. The preamble to
the Proposed Regulations stated that
this proposed rule was intended to
provide an administrable rule that
provides clarity and certainty in
determining which taxpayer may claim
the section 45X credit in a contract
manufacturing arrangement.
c. Contract Manufacturing Defined
Proposed § 1.45X–1(c)(3)(ii)(B) would
have defined the term ‘‘contract
manufacturing arrangement’’ to mean
any agreement providing for the
production of an eligible component if
the agreement is entered into before the
production of the eligible component to
be delivered under the contract is
completed. Proposed § 1.45X–
1(c)(3)(ii)(B) would have further
provided that a routine purchase order
for off-the-shelf property is not treated
as a contract manufacturing
arrangement. Proposed § 1.45X–
1(c)(3)(ii)(B) also would have provided
that an agreement will be treated as a
routine purchase order for off-the-shelf
property if the contractor is required to
make no more than de minimis
modifications to the property to tailor it
to the customer’s specific needs, or if at
the time the agreement is entered into,
the contractor knows or has reason to
know that the contractor can satisfy the
agreement out of existing stocks or
normal production of finished goods.
This definition of the term ‘‘routine
purchase order’’ is based on the
definition found in § 1.263A–
2(a)(1)(ii)(B)(2)(ii). The Treasury
Department and the IRS requested
comments in the preamble to the
Proposed Regulations on whether this
definition should be further clarified or
modified. Comments on the definition
of manufacturing arrangements are
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discussed in Part II.B.3.d. of this
Summary of Comments and Explanation
of Revisions.
d. Special Rule for Contract
Manufacturing Arrangements
Proposed § 1.45X–1(c)(3)(iii) would
have explained the special rule allowing
parties to a contract manufacturing
arrangement to agree on which party to
the contract will claim the section 45X
credit for eligible components produced
subject to such contract. Proposed
§ 1.45X–1(c)(3)(iv) would have
explained the certification requirements
for the special rule. Several commenters
expressed support for the contract
manufacturing rules, but one
commenter expressed concern about the
treatment of contract manufacturing
arrangements in effect prior to the
applicability date of the Proposed
Regulations. This commenter
recommended that the final regulations
adopt a safe harbor rule that would
function as an exception to the general
rule and provide that when one party is
contractually entitled to purchase all or
substantially all (for example, at least 90
percent) of the output of the fabricator’s
production of a given component for the
taxable year, the purchaser would be
treated as the producer for purposes of
section 45X. The Treasury Department
and the IRS decline to adopt the
commenter’s request to add a safe
harbor for contract manufacturing
arrangements in place before the
applicability date of the Proposed
Regulations, but note that a taxpayer
may still have the option of applying the
special rule in § 1.45X–1(c)(3)(iii) of
these final regulations for contract
manufacturing arrangements entered
into before the applicability date,
provided all requirements of the special
rule are met.
The preamble to the Proposed
Regulations stated that the Treasury
Department and the IRS intend for the
production cost incurred rules in
proposed § 1.45X–3(e)(2) to apply to a
credit claimant in a contract
manufacturing arrangement. The
Treasury Department and the IRS
requested comments on whether the
proposed rules need further clarification
or modification as applied to contract
manufacturing arrangements. One
commenter requested allowing
taxpayers that extract and recycle raw
materials and taxpayers that process
such materials and incorporate them
into applicable critical minerals to
apply the contract manufacturing
arrangement provisions, in the event
that costs of extraction and direct and
indirect material costs are not includible
in the eligible production costs of
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producing an applicable critical
mineral. The Treasury Department and
the IRS think that the clarification
requested by this commenter is no
longer necessary because these final
regulations permit the inclusion of
extraction and certain material costs in
the cost of producing an applicable
critical mineral if certain requirements
are met. See Parts IV.E.1.e. and V.C. of
this Summary of Comments and
Explanation of Revisions for further
discussion.
Proposed § 1.45X–1(c)(3)(v) would
have provided examples illustrating the
application of the special rule. One
commenter requested that proposed
§ 1.45X–1(c)(3)(v)(C) (Example 3)
specifically state that the domestic
production requirement requires that
each wind tower section must be
produced in the United States. Proposed
§ 1.45X–(1)(c)(3)(v)(C) (Example 3)
states that a taxpayer could claim a
credit for a tower for which it had three
different producers each produce one
section, provided that the parties all
agree that the taxpayer is the sole party
that can claim the credit and ‘‘all other
requirements of section 45X are met.’’
The Treasury Department and the IRS
have determined that the domestic
production requirement is already
included by this language and thus,
additional clarification is not necessary.
Another commenter questioned
whether, in proposed § 1.45X–
1(c)(3)(v)(C) (Example 3), V must sell
the completed wind tower to Z for the
special rule in proposed § 1.45X–
1(c)(3)(iii) to apply. In the example, V
enters into a contract manufacturing
arrangement with W, X, and Y to make
the wind tower, which V sells to Z. All
parties to the contract manufacturing
arrangement and Z are unrelated. The
commenter stated that if V, W, X, and
Y sign a certification statement and Y
claims the section 45X credit, Y could
claim the section 45X credit in 2025
because that is when it sold the eligible
component to V. Contrary to the
commenter’s conclusion with respect to
Y’s ability to claim a section 45X credit
in 2025, Y is not eligible for the section
45X credit until the eligible component,
which is the wind tower comprised of
all three wind tower sections, is
produced and then sold to an unrelated
person (in this case Z). Under the
contract manufacturing arrangement, W,
X, and Y are collectively viewed as
producing the entire eligible component
(wind tower) because all three sections
together result in a single eligible
component. Along with the production
of the entire wind tower, V has to sell
the completed wind tower to an
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unrelated person before the designated
party is eligible for a section 45X credit.
A commenter suggested revisions to
the proposed rules to allow an
allocation of any portion of the credit to
parties who extract the mineral and
perform initial refining processes, rather
than allowing a credit to the taxpayer
that purifies the critical mineral to the
statutory minimum. Section 45X(c)(6)
defines a list of applicable critical
minerals with specific minimum purity
levels which must be met for the
taxpayer to have produced an eligible
component. The Treasury Department
and the IRS do not have the authority
to modify these statutory requirements.
However, the Treasury Department and
the IRS seek to clarify that a taxpayer
who performs extracting and refining
activities may benefit from the contract
manufacturing provisions described in
this section. The final regulations
accordingly add § 1.45X–1(c)(3)(v)(D)
(Example 4) to demonstrate how the
contract manufacturing provisions may
apply in the situation described by the
commenter.
4. Timing of Production and Sale
Proposed § 1.45X–1(c)(4)(i) would
have provided that production of
eligible components for which a
taxpayer is claiming a section 45X credit
may begin before December 31, 2022,
but production of eligible components
must be completed, and the eligible
components must be sold, after
December 31, 2022. Proposed § 1.45X–
1(c)(4)(ii) would have provided an
example illustrating the timing of the
production and sale rule in proposed
§ 1.45X–1(c)(4)(i).
Some commenters requested further
clarity on when production and sale of
an eligible component may take place.
One commenter requested that the final
rules provide that a specific minimum
percentage of production of an eligible
component must occur after 2022 and
that no sale of the eligible component be
reported by the taxpayer before 2023.
The Treasury Department and the IRS
decline to adopt these percentage test
suggestions because Congress clearly
recognized that some production could
occur prior to 2023 but did not specify
an exact amount of production that
must occur in taxable years either before
or after 2023. Moreover, if a sale
occurred before 2023, which requires a
facts and circumstances analysis based
in part on contractual terms, the
component sold is not eligible for the
section 45X credit. Accordingly, the
final regulations adopt proposed
§ 1.45X–1(c)(4)(i) and the example in
proposed § 1.45X–1(c)(4)(ii) without
modification.
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Another commenter stated that the
Proposed Regulations do not specify
whether production activities that
qualify for the section 45X credit have
to occur after the effective date of the
rule or whether the activities can be
retroactive. The commenter suggests the
final rule specify the applicable period
for the production activities and provide
a reasonable transition rule for
taxpayers who produce eligible
components before the effective date of
the final regulations. The Treasury
Department and the IRS have
determined that the Proposed
Regulations and these final regulations
are clear as to the timing of production
and sale requirements under section
45X. For clarification, and as described
earlier, section 13502(c) of the IRA
provides that section 45X applies to
components produced and sold after
December 31, 2022. The preamble to the
Proposed Regulations clarified
application of the section 45X effective
date, stating that each of proposed
§§ 1.45X–1 through 1.45X–4 would have
applied to eligible components for
which production is ‘‘completed’’ and
sales occur after December 31, 2022, and
during taxable years ending on or after
the date of publication of these final
regulations. Proposed § 1.45X–1(c)(4)(i)
would have provided that production of
eligible components may begin before
December 31, 2022, and only required
production of eligible components be
completed, and sales must occur, after
December 31, 2022. Proposed § 1.45X–
1(c)(4)(ii) would have provided an
example illustrating proposed § 1.45X–
1(c)(4)(i). These final regulations adopt
these proposed rules. The Treasury
Department and the IRS do not have
statutory authority to provide for a
section 45X credit in a situation in
which production was completed on or
before December 31, 2022.
C. Produced in the United States
Consistent with section 45X(d)(2),
proposed § 1.45X–1(d)(1) would have
provided that sales are taken into
account for purposes of the section 45X
credit only for eligible components that
are produced within the United States,
as defined in section 638(1) of the Code,
or a United States territory. Proposed
§ 1.45X–1(d)(2) would have clarified
that constituent elements, materials, and
subcomponents used in the production
of eligible components are not subject to
the domestic production requirement
provided in proposed § 1.45X–1(d)(1).
Thus, while the eligible component
must be produced domestically, its
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constituent elements, materials, and
subcomponents need not be.2
Some commenters agreed with this
approach in the Proposed Regulations.
According to these commenters, the
Proposed Regulations appropriately
allowed the credit for eligible
components produced in the United
States provided that the activities
necessary to transform them into
eligible components are conducted in
the United States. Furthermore, these
commenters expressed concern that a
contrary rule ignores the reality that
some constituent elements, materials,
and subcomponents cannot be sourced
in the United States and would
discourage investment in production
activities that rely on foreign-sourced
constituent elements, materials, and
subcomponents. However, other
commenters disagreed with the
proposed approach, suggesting that
allowing eligible components to be
produced using foreign subcomponents
is inconsistent with the section 45X
credit’s objective of incentivizing
domestic production of eligible
components.
The Treasury Department and the IRS
note that, while section 45X specifically
requires domestic production of an
eligible component for credit eligibility,
it is silent regarding the location of
production or sourcing of constituent
elements, materials, and
subcomponents. Accordingly, imposing
a domestic production requirement for
constituent elements, materials, and
subcomponents is not supported by the
statutory language of section 45X. For
these reasons, the Treasury Department
and the IRS decline to adopt these
suggestions and adopt the proposed rule
without change.
Beyond agreement or disagreement
with this proposed rule, some
commenters inquired about its scope.
One commenter asked whether the
domestic production rule applicable to
eligible components also applies to
eligible components that are both an
eligible component and a ‘‘constituent
element, material or subcomponent’’ of
another eligible component. Another
commenter asked whether raw materials
and intermediate products used to
produce eligible components are
included in the definition of
‘‘constituent elements, materials or
subcomponents.’’
2 See Joint Committee on Taxation, General
Explanation of Tax Legislation Enacted in the 117th
Congress, JCS–1–23 (December 21, 2023) at 267
(‘‘The credit only applies to sales where the eligible
components are produced within the United States
or U.S. territories. This requirement is not intended
to apply to subcomponents or materials used to
produce eligible components.’’).
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The Treasury Department and the IRS
confirm that all three of these categories
of items are included in the definition
of ‘‘constituent elements, materials, and
subcomponents.’’ An eligible
component that is a ‘‘constituent
element, material or subcomponent’’ of
another eligible component is not
subject to the domestic production rule,
and thus, an eligible component may
incorporate another eligible component
that is also a foreign-sourced
‘‘constituent element, material or
subcomponent’’ and still be eligible for
a section 45X credit. In addition, raw
materials and intermediate products
generally qualify as constituent
elements, materials, or subcomponents.
A commenter also requested
confirmation in the final regulations
that there is no requirement that eligible
components be used in the United
States for section 45X credit eligibility.
Consistent with section 45X(d)(2),
proposed § 1.45X–1(d)(1) would have
provided that sales are taken into
account for purposes of the section 45X
credit only for eligible components that
are produced within the United States
(or a United States territory). Thus, the
Proposed Regulations specify only the
location of production of the eligible
component, and not the location of the
sale or the use of such eligible
component. Accordingly, the Treasury
Department and the IRS conclude that
the additional confirmation requested
by the commenter is unnecessary, as
there would be no statutory basis for
requiring domestic sale or use.
D. Production and Sale in a Trade or
Business
Proposed § 1.45X–1(e) would have
stated that an eligible component must
be produced and sold in a trade or
business of the taxpayer, with the term
‘‘trade or business’’ defined as a trade or
business within the meaning of section
162 of the Code.
A commenter requested that proposed
§ 1.45X–1(e) expressly include eligible
components that are produced and then
used to replace defective units pursuant
to a contractual obligation entered into
at the time of the original sale. The
commenter stated that these warranty
transactions do not appear to violate any
of the anti-abuse provisions at proposed
§ 1.45X–1(i). If an eligible component is
produced and sold to an unrelated
person in the normal course of a trade
or business, and the eligible component
is then replaced with a new eligible
component produced by the same
taxpayer, there is no new sale to an
unrelated person for the replacement
eligible component, but the replacement
eligible component relates back to the
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original sales transaction. The precise
issue is whether section 45X should be
read to effectively incentivize the
production of two eligible components
where each is related to a single sales
transaction. The Treasury Department
and the IRS decline to adopt this
suggestion because only one credit may
be claimed with respect to the sale of an
eligible component.
E. Sale of Integrated Components
1. In General
Section 45X(d)(4) provides that, for
purposes of section 45X, a person is
treated as having sold an eligible
component to an unrelated person if
such component is integrated,
incorporated, or assembled into another
eligible component which is sold to an
unrelated person. Proposed § 1.45X–
1(f)(1) was intended to be consistent
with section 45X(d)(4), and thus would
have provided that a taxpayer is treated
as having produced and sold an eligible
component to an unrelated person if
such component is integrated,
incorporated, or assembled into another
eligible component that is then sold to
an unrelated person.
Although no comments were received
regarding this general rule in the
Proposed Regulations, the Treasury
Department and the IRS want to clarify
that section 45X(d)(4) provides only for
deemed sale treatment and not deemed
production. A taxpayer must produce
(rather than merely purchase or acquire)
an eligible component that is integrated,
incorporated, or assembled into another
eligible component that is then sold to
an unrelated person in order for the
deemed sale rule to apply. Thus, these
final regulations clarify that a taxpayer
is ‘‘treated as having sold’’ an eligible
component to an unrelated person if the
taxpayer produced such component and
the component is integrated,
incorporated, or assembled into another
eligible component that is then sold to
an unrelated person, rather than
‘‘treated as having produced and sold’’
an eligible component that the taxpayer
did not itself produce that is then
integrated, incorporated, or assembled
into another eligible component and
then sold to an unrelated person.
Proposed § 1.45X–1(f)(1) is clarified
accordingly in these final regulations.
2. Application of Section 45X(d)(4) to
Produced Products
Proposed § 1.45X–1(f)(2)(i) would
have clarified that a taxpayer may claim
a section 45X credit for each eligible
component that the taxpayer produces
and sells to an unrelated person,
including any eligible component the
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taxpayer produces that was used as an
element, material, or subcomponent and
integrated, incorporated, or assembled
into another complete and distinct
eligible component or another complete
and distinct product (that is not itself an
eligible component) that the taxpayer
also produces and sells to an unrelated
person. Proposed § 1.45X–1(f)(2)(ii)
would have provided an example of the
credit eligibility of a sale of a product
with incorporated eligible components
to a related person.
Commenters expressed agreement
with proposed § 1.45X–1(f)(2)(i). One
commenter stated that the clarification
in § 1.45X–1(f)(2)(i) avoids the need for
some vertically integrated producers of
eligible components that incorporate the
eligible components into another
product that is not an eligible
component to artificially restructure in
order to create an intercompany sale.
Another commenter requested a flexible
interpretation of section 45X(d)(4) that
would apply the section 45X credit as
an additive credit across the supply
chain to the final assembler. The
commenter stated such an interpretation
is consistent with the language in
section 45X(b)(1), which provides that
the section 45X credit amount is
determined with respect to any eligible
component, including any eligible
component it incorporates. For example,
in the commenter’s view, a taxpayer that
produces a structural fastener would be
eligible to receive a credit for its
production of an eligible component as
would the integrator, incorporator,
assembler of the structural fastener into
another eligible component. Although
the Treasury Department and the IRS
agree that section 45X(b)(1) provides
that the credit amount is determined
with respect to any eligible component
produced by the taxpayer, including any
eligible component the taxpayer
incorporates that was also produced by
the taxpayer, the Treasury Department
and the IRS disagree with the
implication that the calculation of the
section 45X credit should be additive
based on the number of eligible
components used to produce an item in
a case in which each eligible component
is not produced by the taxpayer. Only
the producer of an eligible component
would be eligible for a section 45X
credit. Proposed § 1.45X–1(f)(1) and (2)
are finalized with no modifications
because the Treasury Department and
the IRS conclude the rules provide
clarity as currently written.
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F. Interaction Between Sections 45X and
48C
1. In General
Consistent with section 45X(c)(1)(B),
proposed § 1.45X–1(g)(1) would have
provided that, for purposes of section
45X, an eligible component must be
produced at a section 45X facility and
does not include any property
(produced property) that is produced at
a facility if the basis of any property that
is part of the production unit that
produces the produced property is
eligible property that is included in a
section 48C facility and is taken into
account for purposes of a credit allowed
under section 48C (section 48C credit)
after August 16, 2022.
Proposed § 1.45X–1(g)(2)(i) would
have provided that a section 45X facility
includes all tangible property that
comprises an independently functioning
production unit that produces one or
more eligible components. Proposed
§ 1.45X–1(g)(2)(ii) would have provided
that a production unit is comprised of
the tangible property that substantially
transforms material inputs to complete
the production process of an eligible
component.
Proposed § 1.45X–1(g)(3)(i) would
have provided that a section 48C facility
includes all eligible property included
in a qualifying advanced energy project
for which a taxpayer receives an
allocation of section 48C credits and
claims such credits after August 16,
2022. Proposed § 1.45X–1(g)(3)(ii)
would have defined eligible property
that is included in a section 48C facility.
With respect to the proposed rules on
the interaction between sections 45X
and 48C various comments were
received. A commenter requested that
the final rules not apply section
45X(c)(1)(B) to disallow the section 45X
credit in the event that the taxpayer
claiming the section 45X credit
incorporates into its eligible component
a subcomponent that was produced by
a section 48C facility, as long as that
same taxpayer was not eligible for the
section 48C credit with respect to the
section 48C facility that produced the
subcomponent. Revisions were made to
these final regulations to clarify that the
only equipment, or other tangible
property, that must be included in the
section 45X facility is the equipment
used by the taxpayer that is necessary to
be considered the producer of the
potential eligible component. As further
explained later, if production of a
subcomponent (or like property) is not
a requirement to be considered the
producer under section 45X, then the
equipment that is part of that section
48C facility used to produce the
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subcomponent is not part of the section
45X facility. As a result, it is possible
that the same taxpayer could receive a
section 48C credit on equipment used to
produce a subcomponent (or like
property), and a section 45X credit on
the production of an eligible
component.
One commenter requested an example
to help determine whether an eligible
component produced at a facility
located ‘‘adjacent’’ to a section 48C
facility that received a section 48C
credit impacts eligibility for the section
45X credit. The physical proximity of a
section 45X facility to a section 48C
facility does not determine whether a
product may be an eligible component
and revisions to these final regulations
were made to clarify that point.
Another commenter requested more
clarity to determine whether a facility
that shares upstream raw materials and
processes as a section 48C facility is still
eligible for a section 45X credit and
requested examples of upstream supply
chains and processes that are eligible
and ineligible for both sections 48C and
45X. Several commenters requested
additional clarity regarding the meaning
and extent of the term ‘‘production
unit.’’
Based on the comments and further
consideration of the Proposed
Regulations, revisions were made in
these final regulations to simplify the
rules and examples in proposed
§ 1.45X–1(g)(1) through (4). Specifically,
these final regulations make clear that
the general rule is that property that
would otherwise qualify as an eligible
component (otherwise qualified
property) is only an eligible component
if the property is produced at a section
45X facility and no part of that section
45X facility is also a section 48C facility.
These final regulations also revise the
definition of section 45X facility,
clarifying that a section 45X facility is
the independently functioning tangible
property used by the taxpayer that is
necessary to be considered the producer
of the otherwise qualified property
within the meaning of § 1.45X–1(c)(1) or
(2), as applicable. The Proposed
Regulations would have relied on the
concept of a ‘‘production unit’’ to define
the scope of a section 45X facility, but
there was overlap between the term
production unit as proposed and the
definition of a section 45X facility. After
careful consideration, the Treasury
Department and the IRS determined that
the proposed term ‘‘production unit’’
introduced unnecessary complexity,
particularly in light of the revisions to
the definition of section 45X facility in
these final regulations. Accordingly,
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these final regulations do not use the
term production unit.
The definition of section 45X facility
in these final regulations includes
independently functioning tangible
property that is used and that is
necessary for the otherwise qualified
property to be considered produced by
the taxpayer within the meaning of
§ 1.45X–1(c)(1) or (2), as applicable.
Accordingly, tangible property used to
produce a subcomponent or other
property which is later integrated,
incorporated, or assembled into a
distinct and final eligible component is
not part of the section 45X facility. This
rule, however, does not apply if the
other property is of a type that the
taxpayer must produce for the resulting
eligible component to be considered
produced by the taxpayer. This analysis
can depend on the definition of the
eligible component being ultimately
produced. For example, section
45X(c)(3)(B)(ii)(I)(bb) requires a single
manufacturer to produce a photovoltaic
wafer through formation of an ingot
from polysilicon and subsequent slicing.
Thus, the section 45X facility with
respect to the photovoltaic wafers
would include any equipment that is
tangible property that is used to produce
the ingot and any equipment that is
tangible property that is used to perform
the subsequent slicing. In contrast,
equipment used to produce front glass
of a solar module under section
45X(c)(3)(B)(v) could be excluded from
a section 45X facility because it is not
necessary to use the front glass
equipment to be considered the
producer of the solar module for section
45X. This rule may benefit a taxpayer
that produces a subcomponent or other
property of an eligible component using
equipment that is also eligible property
for purposes of the section 48C credit,
but uses other equipment not related to
the section 48C credit to produce the
eligible component.
Lastly, these final regulations add a
specific rule for contract manufacturing
arrangements in § 1.45X–1(g)(2)(ii) to
address any uncertainty with respect to
how to determine a section 45X facility
in that situation. This rule clarifies that
the tangible property used to produce
the otherwise qualified property
(regardless of who claims the credit)
must be considered.
4. Examples of Sections 45X and 48C
Interaction
Proposed § 1.45X–1(g)(4)(i) through
(v) would have provided examples to
illustrate the application of these rules.
A few commenters requested that,
contrary to proposed § 1.45X–1(g)(4)(ii)
(Example 2), ingot and wafer production
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should be treated as two separate
manufacturing activities so that an ingot
facility is eligible for the section 48C
credit while a wafer facility is eligible
for the section 45X credit. As required
by section 45X(c)(3)(B)(ii)(I)(bb),
however, a photovoltaic wafer must be
produced by a single manufacturer
either by forming an ingot from molten
polysilicon (for example, Czochralski
method) and then subsequently slicing
it into wafers, or by forming molten or
evaporated solar grade polysilicon or
deposition into a sheet or layer (that is,
thin-film deposition). As the statute
requires production of a photovoltaic
wafer by a single manufacturer that both
forms an ingot and slices it into wafers,
it is not appropriate to treat ingot and
wafer production as two separate
manufacturing activities. Rather, as both
activities are necessary, it follows that
the tangible property used to complete
each activity must be within a single
section 45X facility with respect to the
eligible component produced. No
comments were received on the other
examples in proposed § 1.45X–1(g)(4)(i)
through (v). However, all of the
examples in proposed § 1.45X–1(g)(4)(i)
through (v) were modified consistent
with the revisions in § 1.45X–1(g)(1)
through (3).
A few commenters suggested that
parties in a contract manufacturing
arrangement under proposed § 1.45X–
1(c)(3)(iii) could circumvent the
prohibition under section 45X(c)(1)(B)
that disallows a section 45X credit for
items produced at a section 48C facility.
More specifically, commenters
suggested that a taxpayer could enter
into a contract manufacturing
arrangement under proposed § 1.45X–
1(c)(3)(iii) to produce photovoltaic
wafers that are then used to
manufacture photovoltaic cells. If the
taxpayer itself integrated, incorporated,
or assembled the photovoltaic cells into
solar modules, the taxpayer might claim
a section 45X credit for all three
products upon their sale, even though
the photovoltaic wafers were
manufactured by the contract
manufacturer at a section 48C facility
while the photovoltaic cells were
manufactured at a section 45X facility,
if the taxpayer was unaware that the
contract manufacturer manufactured the
photovoltaic wafers at a section 48C
facility. The Proposed Regulations did
not allow this, and the final regulations
would continue to disallow a section
45X credit for the photovoltaic wafers in
this scenario. To the extent that the
photovoltaic wafers were produced at a
section 48C facility, the photovoltaic
wafers would not qualify as an eligible
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component to any party to the contract
manufacturing arrangement. As
described earlier, these final regulations
add a rule in § 1.45X–1(g)(2)(ii) to
clarify the rules in a contract
manufacturing arrangement situation,
and the examples in § 1.45X–1(g)(4)
have also been modified.
G. Anti-Abuse Rule
As explained in the preamble to the
Proposed Regulations, proposed
§ 1.45X–1(i)(1) would have provided a
general anti-abuse rule that would make
the section 45X credit unavailable in
extraordinary circumstances in which,
based on a consideration of all the facts
and circumstances, the primary purpose
of the production and sale of an eligible
component is to obtain the benefit of the
section 45X credit in a manner that is
wasteful, such as discarding, disposing
of, or destroying the eligible component
without putting it to a productive use.
Proposed § 1.45X–1(i)(1) would have
provided that the rules of section 45X
and the section 45X regulations must be
applied in a manner consistent with the
purposes of section 45X and the section
45X regulations (and the regulations in
this chapter under sections 6417 and
6418 related to the section 45X credit).
A purpose of section 45X and the
section 45X regulations (and the
regulations in this chapter under
sections 6417 and 6418 related to the
section 45X credit) is to provide
taxpayers an incentive to produce
eligible components in a manner that
contributes to the development of
secure and resilient supply chains.
Accordingly, the section 45X credit is
not allowable if the primary purpose of
the production and sale of an eligible
component is to obtain the benefit of the
section 45X credit in a manner that is
wasteful, such as discarding, disposing
of, or destroying the eligible component
without putting it to a productive use.
A determination of whether the
production and sale of an eligible
component is inconsistent with the
purposes of section 45X and the section
45X regulations (and the regulations in
this chapter under sections 6417 and
6418 related to the section 45X credit)
is based on all facts and circumstances.
Proposed § 1.45X–1(i)(2) would have
provided an example illustrating this
anti-abuse rule.
One commenter suggested that, in
applying the anti-abuse rule, the
taxpayer claiming a section 45X credit
should not be held responsible for the
activities of the customer after a sale has
occurred (unless the customer is a
related entity); the determination of
whether a component is defective
should be made at the factory gate; and
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‘‘productive use’’ should include the
sale of an eligible component to an
entity engaged in the business of
directly (such as a utility) or indirectly
(such as a project developer) deploying
the batteries. Proposed § 1.45X–1(i)(1)
provides that a determination of
whether the production and sale of an
eligible component is inconsistent with
the purposes of section 45X and the
section 45X regulations (and the
regulations under sections 6417 and
6418 related to the section 45X credit)
is based on all the facts and
circumstances. Under a facts and
circumstances analysis, no single factor
is determinative, and the considerations
listed by the commenter would have to
be evaluated in the context of all other
facts and circumstances. The Treasury
Department and the IRS thus decline to
list specific parameters that
automatically result in a finding of a
favorable or unfavorable primary
purpose.
Another commenter suggested adding
additional examples to proposed
§ 1.45X–1(i) to make clear that the
section 45X credit is never allowable
with respect to any cost the primary
purpose of which is to increase the
amount of the section 45X credit. While
both examples offered by the
commenter involve possible abuses, the
anti-abuse rule is intended to cover a
broad range of abuses. Proposed
§ 1.45X–1(i) would have provided that a
determination of whether the
production and sale of an eligible
component is inconsistent with the
purposes of section 45X and the section
45X regulations is based on all facts and
circumstances, and no single factor is
determinative. Accordingly, the
Treasury Department and the IRS
decline to adopt the commenter’s
suggestion.
III. Sale to Unrelated Person
A. In General
Proposed § 1.45X–2(a) would have
stated that the amount of the section
45X credit for any taxable year is equal
to the sum of the credit amounts
determined under section 45X(b) (and
described in proposed §§ 1.45X–3 and
1.45X–4) with respect to each eligible
component that is produced by the
taxpayer and, during the taxable year,
sold by the taxpayer to an unrelated
person. Applicable Federal income tax
principles apply to determine whether a
transaction is in substance a sale (or the
provision of a service, or some other
disposition). Proposed § 1.45X–2(a) also
would have cross-referenced proposed
§ 1.45X–1(d) and (e) for additional
requirements relating to sales. Section
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45X(d)(1) provides that persons are
treated as related to each other if such
persons would be treated as a single
employer under the regulations
prescribed under section 52(b).
Proposed § 1.45X–2(b) would have
provided definitions of the terms
‘‘person,’’ ‘‘related person,’’ and
‘‘unrelated person’’ for purposes of the
section 45X credit.
A few commenters requested
additional clarity in the final rules on
how a sale is defined and when a sale
is determined for the purpose of section
45X. One commenter recommended that
a sale be defined for 45X as the point
when a taxpayer signs a binding
contractual agreement with a buyer in
the taxpayer’s trade or business for the
purchase of an eligible component.
Section 45X provides special rules
addressing sales of eligible components
to related persons that may be treated as
sales to unrelated persons, and a general
rule that an eligible component
produced and sold by the taxpayer is
only taken into account if such
production and sale is in a trade or
business of the taxpayer, but otherwise
does not provide any specific rules
regarding whether and when a sale have
occurred. Proposed § 1.45X–2(a) would
have provided that applicable Federal
income tax principles apply to
determine whether a transaction is in
substance a sale (or the provision of a
service, or some other disposition), and
those same principles apply in
determining when a transaction is a
sale. More specific rules on the
determination of whether and when a
sale occurs is beyond the scope of these
final regulations. Accordingly, the
Treasury Department and the IRS
maintain the standard in proposed
§ 1.45X–2(a) and finalize the proposed
rule without modification.
Another commenter requested further
clarification on the sale of eligible
components in two scenarios. In the
first scenario, Company A is a U.S.
based company producing eligible
components that it sells to Company B,
which is not directly using the eligible
components but resells to Company C to
use in a manufacturing process or
otherwise in its trade or business. For
this first scenario, the commenter
requested clarification on whether
Company A is eligible to claim the
section 45X credit for the domestic
production and sale of the eligible
components. In the second scenario, the
commenter assumed the same facts as in
the first scenario, but Company B or
Company C is using Company A’s
eligible component outside the United
Sates. In this second scenario, the
commenter requested clarification on
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whether Company A remains eligible to
claim the section 45X credit for the
domestic production and sale of the
eligible components.
In both scenarios under the Proposed
Regulations, Company A is eligible to
claim the section 45X credit for the
domestic production and sale of the
eligible components if the production
and sale is in a trade or business of
Company A, regardless of whether the
first purchaser is using the eligible
component in its trade or business or
sells to a subsequent purchaser for use
in the subsequent purchaser’s trade or
business, and regardless of whether the
purchaser or subsequent purchaser uses
the eligible component in the United
States. Because the Proposed
Regulations clearly provide this result,
no further revision is necessary in these
final regulations.
B. Special Rules for Sales to a Related
Person
Consistent with section 45X(a)(3)(A),
proposed § 1.45X–2(c)(1) would have
provided a special rule that, for
purposes of section 45X(a), a taxpayer is
treated as selling an eligible component
to an unrelated person if such
component is sold to such person by a
person who is related to the taxpayer.
Proposed § 1.45X–2(c)(2) would have
provided an example to illustrate this
special rule.
Given the importance of whether
parties are related persons or unrelated
persons, a commenter proposed a
particular fact pattern and requested
clarification on who the purchaser is
and whether they were related or
unrelated to the producer and seller. In
general, section 45X(d)(1) and proposed
§ 1.45X–2(b)(2) provides that persons
are treated as related to each other if
such persons would be treated as a
single employer under the regulations
prescribed under section 52(b). A
request for application of the section
52(b) regulations by the Treasury
Department and the IRS to a particular
fact pattern requiring a facts and
circumstances analysis is outside the
scope of these final regulations.
Another commenter requested that
the final rules clarify whether a Related
Person Election is necessary when
eligible components are sold by the
producer to an unrelated person, who
subsequently sells them to a person
related to the producer of such eligible
components. The commenter proposes
amending proposed § 1.45X–2(c) to
clarify that direct or indirect sales to a
related person qualify if the producer
knows or has reason to know the
unrelated person is intending to sell the
same eligible components to a person
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85807
related to the producer. To provide
assurance to commenter, a Related
Person Election is not necessary in this
situation because the first sale was to an
unrelated party, but the Treasury
Department and the IRS have
determined that the rules as set out by
proposed § 1.45X–2(c) do not require
further clarification on this point. In
addition, if there are circumstances in
which purported sales are made to
unrelated persons to circumvent the
requirements of section 45X, proposed
§ 1.45X–2(a) provides that applicable
Federal income tax principles apply to
determine whether a transaction will be
respected as a sale.
C. Related Person Election
1. Availability of Election—In General
Proposed § 1.45X–2(d)(1)(i) would
have provided that a taxpayer may make
a Related Person Election under section
45X(a)(3)(B) to treat a sale of eligible
components by such taxpayer to a
related person as if made to an
unrelated person. As a condition of, and
prior to, a taxpayer making a Related
Person Election, the Secretary may
require such information or registration
as the Secretary deems necessary for
purposes of preventing duplication,
fraud, or any improper or excessive
credit amount determined under section
45X(a)(1). Proposed § 1.45X–2(d)(1)(ii)
would have provided the rules
regarding the Related Person Election
for members of a consolidated group (as
defined in § 1.1502–1(h)).
One commenter requested that
taxpayers be allowed to exercise the
Related Person Election in situations
where it is difficult for the taxpayer to
determine whether two entities are
related under the section 52(b)
regulations. Allowing the exercise of the
Related Person Election as commenter
requested would conflict with the
language in section 45X(d)(1), which
requires the parties be treated as a single
employer under the section 52(b)
regulations, not just that it be difficult
to determine the status. Therefore, these
final regulations do not adopt the
commenter’s request.
2. Anti-Abuse Rule
Proposed § 1.45X–2(d)(4) would have
provided an anti-abuse rule for the
Related Person Election consistent with
section 45X(a)(3)(B)(ii) for preventing
duplication, fraud, or any improper or
excessive amount of the section 45X
credit. Proposed § 1.45X–2(d)(4)(i)
would have provided that a Related
Person Election may not be made if the
taxpayer fails to provide the information
required by proposed § 1.45X–2(d)(2)
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with respect to the relevant eligible
components, the taxpayer provides
information that shows such
components were put to an improper
use as defined in proposed § 1.45X–
2(d)(4)(ii) or were defective as defined
in proposed § 1.45X–2(d)(4)(iii), or such
components were actually put to an
improper use or were defective.
Proposed § 1.45X–2(d)(4)(ii) would
have provided that an eligible
component is put to an improper use if
it is so used by the related person to
which the eligible component is sold.
The term improper use would mean a
use that is wasteful, such as discarding,
disposing of, or destroying the eligible
component without putting it to a
productive use. The Treasury
Department and the IRS requested
comments in the preamble to the
Proposed Regulations on the definition
of the term improper use and whether
any clarifications to its scope are
necessary.
Proposed § 1.45X–2(d)(4)(iii) would
have provided that a defective
component means a component that
does not meet the requirements of
section 45X and the section 45X
regulations. The Treasury Department
and the IRS requested comments in the
preamble to the Proposed Regulations
on the definition of defective
components and whether clarifications
to its scope are necessary.
In response to the Treasury
Department and the IRS’s request for
comments, one commenter requested
additional guidance regarding when an
eligible component can be deemed
defective under section 45X. The
commenter recommended clarification
that an eligible component can be
deemed defective and therefore
ineligible for a tax credit under section
45X ‘‘up until the point of sale of the
eligible component to an unrelated
party.’’ However, in circumstances
where a taxpayer has made a valid
Related Person Election, a sale of
eligible components to a related person
is treated as if made to an unrelated
person, thus making a sale to an
unrelated person not relevant for section
45X credit determination purposes. The
preamble to the Proposed Regulations
stated that the Treasury Department and
the IRS are concerned that the Related
Person Election may be used by
taxpayers to claim a credit for eligible
components that are defective, not
capable of being used for its intended
purpose, do not meet the requirements
for the section 45X credit, and therefore
are not eligible for the section 45X
credit. The Treasury Department and
the IRS agree that if an eligible
component is not defective at the time
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of sale, defects arising after the point of
sale may occur in the ordinary course of
a business and do not generally raise the
improper claim concerns regarding
defective components described in the
Preamble to the Proposed Regulations.
Accordingly, the final rules modify
proposed § 1.45X–2(d)(4)(iii) to clarify
that components with respect to which
defects arise after the deemed sale are
not considered defective components
for purposes of the anti-abuse rule.
Another commenter suggested that
the definitions of improper use and
defective components should provide
an exception for a defective component
that can be sold or given to a related or
unrelated person conducting legitimate
recycling operations and allowing
defective components to earn a section
45X credit provided they are properly
recycled in the United States. The
Treasury Department and the IRS
decline to adopt this request because
section 45X does not authorize allowing
a section 45X credit for a defective
component that does not meet the
definition of an eligible component and
is not capable of being used for its
intended purpose without further
substantial modification.
D. Sales of Integrated Components to a
Related Person
1. In General
Section 45X(d)(4) provides that for
purposes of section 45X, a person is
treated as having sold an eligible
component to an unrelated person if
such component is integrated,
incorporated, or assembled into another
eligible component that is sold to an
unrelated person. See Part II.E. of this
Summary of Comments and Explanation
of Revisions for rules applicable to
eligible components that are integrated,
incorporated, or assembled into other
eligible components and sold to an
unrelated person.
Proposed § 1.45X–2(e)(1) would have
provided that, for purposes of section
45X and the section 45X regulations
(and the regulations in this chapter
under sections 6417 and 6418 related to
the section 45X credit), a taxpayer that
produces and sells an eligible
component to a related person who then
integrates, incorporates, or assembles
the taxpayer’s eligible component into
another complete and distinct eligible
component that is subsequently sold to
an unrelated person may claim a section
45X credit in the taxable year of the sale
to the unrelated person.
Proposed § 1.45X–2(e)(2) would have
provided examples to illustrate the
treatment of sales of multiple
incorporated eligible components to
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related and unrelated persons. One
commenter questioned the practical
application of the requirements in
proposed § 1.45X–2(e)(2)(i) (Example 1)
and expressed concern that although
Company X and Y are related, the
proposed rule would require a
significant amount of coordination of
information. This coordination would
be necessary for the credit to be claimed
in the proper tax year in which the
ultimate product (photovoltaic cells
produced by Y using photovoltaic
wafers produced by X and purchased by
Y) was sold to Company Z. Proposed
§ 1.45X–2(e)(2)(i) (Example 1) illustrates
the rule in section 45X(d)(4) requiring
an ultimate actual sale to an unrelated
person of an eligible component.
Because section 45X(d)(4) expressly
conditions the deemed sale on an actual
subsequent sale to an unrelated person
by the related person, the Treasury
Department and the IRS do not have the
authority to change this statutorily
imposed conditional timing requirement
despite any practical difficulties
taxpayers may experience in obtaining
such information. Taxpayers may,
however, make a Related Person
Election as illustrated in the example in
§ 1.45X–2(e)(3)(ii) and claim the section
45X credit upon the sale to the related
person. This would obviate the need for
such taxpayer to know when the related
person actually makes the subsequent
sale to an unrelated person. For these
reasons, the final regulations adopt
proposed § 1.45X–2(e)(2)(i) (Example 1)
without modification.
2. Special Rules Applicable to Related
Person Election
Proposed § 1.45X–2(e)(3) would have
provided that if a taxpayer makes a
valid Related Person Election under
section 45X(a)(3)(B)(i) and proposed
§ 1.45X–2(d)(1), and the taxpayer
produces and then sells an eligible
component to a related person, who
then integrates, incorporates, or
assembles the taxpayer’s eligible
component into another complete and
distinct eligible component that is
subsequently sold to an unrelated
person, the taxpayer’s sale of the eligible
component to the related person is
treated (solely for purposes of the
section 45X credit and the section 45X
regulations, and the regulations in this
chapter under sections 6417 and 6418
related to the section 45X credit) as if
made to an unrelated person in the
taxable year in which the sale to the
related person occurs. One commenter
expressed support for this proposed
rule, as it applies thoughtfully to
vertically integrated electric vehicle
manufacturers engaging in sales of
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multiple integrated eligible components
to related and unrelated persons (with a
Related Person Election). No other
comments were received on this special
rule, so it is adopted in these final
regulations without revision.
IV. Eligible Components
A. In General
Proposed § 1.45X–3(a) would have
defined the term ‘‘eligible component’’
as any solar energy component, any
wind energy component, any inverter,
any qualifying battery component, and
any applicable critical mineral, as each
is respectively defined in the Proposed
Regulations. For solar energy
components, wind energy components,
inverters, and qualifying battery
components, proposed § 1.45X–3(b)
through (e) would have provided
definitions, rules for determining the
credit amount, and documentation
requirements. Proposed § 1.45X–3(f)
would also have provided rules for
applying the phase out of the section
45X credit. Proposed § 1.45X–4 would
have provided such information for
applicable critical minerals (other than
rules for applying the phase out, which
does not apply to applicable critical
minerals).
Commenters addressed certain
aspects of these proposed rules, as
described in this Part IV. of the
Summary of Comments and Explanation
of Revisions. These final regulations
generally adopt the rules as proposed in
§ 1.45X–3, with the modifications
described in this Part IV. of the
Summary of Comments and Explanation
of Revisions.
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B. Solar Energy Components—in
General
Consistent with section 45X(c)(3),
proposed § 1.45X–3(b) would have
provided that solar energy component
means a solar module, photovoltaic cell,
photovoltaic wafer, solar grade
polysilicon, torque tube, structural
fastener, or polymeric backsheet.
Several commenters requested that the
final regulations add other non-listed
solar energy components (or
alternatively, to provide a safe harbor) to
allow for section 45X credit eligibility.
Examples of other non-listed solar
energy components commenters raised
include the encapsulant used to protect
the photovoltaic cells and hold the
entire system together; charge transport
materials used in photovoltaic cells;
photovoltaic wire; solar mirror facets;
and solar thermal receivers. A
commenter also suggested adopting a
functionally interdependent and
integral part test analogous to section 48
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of the Code to include additional solar
energy components.
Section 45X(c)(3) expressly identifies
the qualifying solar energy components
that are eligible for the section 45X
credit. The Treasury Department and
the IRS do not have the authority to add
to the set of solar energy components
that are identified by statute, for
example, by applying a functional
interdependence or integral part test.
For this reason, the Treasury
Department and the IRS decline to
adopt the commenters’ requests in these
final regulations.
1. Photovoltaic Cell
Proposed § 1.45X–3(b)(1)(ii) would
have provided that the credit amount for
a photovoltaic cell is equal to the
product of 4 cents multiplied by the
capacity of such photovoltaic cell. The
proposed rule provided that the
capacity of each photovoltaic cell is
expressed on a direct current watt basis
and capacity is the nameplate capacity
in direct current watts using Standard
Test Conditions (STC), as defined by the
International Electrotechnical
Commission (IEC). The proposed rule
further provided that in the case of a
tandem technology produced in serial
fashion, such as a monolithic
multijunction cell composed of two or
more sub-cells, capacity must be
measured at the point of sale at the end
of the single cell production unit; and,
in the case of a four-terminal tandem
technology produced by mechanically
stacking two distinct cells or
interconnected layers, capacity must be
measured for each cell at each point of
sale.
A few commenters expressed concern
that the proposed rule treats twoterminal and four-terminal tandem
technologies differently, and that by
labeling a monolithic two-terminal
configuration as composed of sub-cells,
the proposed rule would require this
technology to be measured as a single
cell rather than two distinct tandem
cells. In contrast, proposed § 1.45X–
3(b)(1)(ii) provides that mechanically
stacked four-terminal tandem
technology consists of ‘‘two distinct
cells.’’ In the commenters’ view, the
proposed rule would allow fourterminal cells to be measured before
they are combined, while two-terminal
cells would be measured after they are
combined, resulting in higher capacity
for four-terminal cells and increased
credit amounts for four-terminal cells. A
commenter also suggested that proposed
§ 1.45X–3(b)(1)(ii) is currently
problematic for future tandem
technology cell production and, perhaps
unintentionally, directs the
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development of certain tandem
technologies.
The Treasury Department and the IRS
agree with the commenters’ concerns
regarding disparate treatment between
four-terminal and two-terminal cells
and capacity and credit amounts.
Accordingly, these final regulations
revise proposed § 1.45X–3(b)(1)(ii) to
add additional text at the end as
follows: ‘‘Where that cell is sold to a
customer who will use it as the bottom
cell in a tandem module, its capacity
should be measured with the customer’s
intended top cell placed between the
bottom cell and the one-sun light
source.’’
2. Photovoltaic Wafer
Consistent with section
45X(c)(3)(B)(ii), proposed § 1.45X–
3(b)(2)(i) would have defined a
photovoltaic wafer to mean a thin slice,
sheet, or layer of semiconductor
material of at least 240 square
centimeters that comprises the substrate
or absorber layer of one or more
photovoltaic cells. A photovoltaic wafer
must be produced by a single
manufacturer by forming an ingot from
molten polysilicon (for example,
Czochralski method) and then
subsequently slicing it into wafers,
forming molten or evaporated
polysilicon into a sheet or layer, or
depositing a thin-film semiconductor
photon absorber into a sheet or layer
(that is, thin-film deposition).
Some commenters suggested revisions
to the definition of a photovoltaic wafer
to include non-traditional methods of
producing wafers. For example, a
commenter requested expanding the
definition to include wafers produced
by any of the emerging ‘kerfless’ or
‘direct’ wafer technologies, as well as
the polysilicon used by these
technologies. The Treasury Department
and the IRS have determined that direct
wafer technologies fall within the
statutory definition of photovoltaic
wafers, if they are produced directly
from evaporated solar grade polysilicon
but disagree that any further
clarification is needed in these final
regulations.
A commenter requested that the final
regulations clarify that ingots must be
produced within the United States for
solar wafers to be eligible for the section
45X credit. As required by section
45X(c)(3)(B)(ii)(I)(bb), to qualify for a
section 45X credit, a photovoltaic wafer
must be produced by a single
manufacturer either by forming an ingot
and then subsequently slicing it into
wafers, or by forming molten or
evaporated solar grade polysilicon or
deposition into a sheet or layer. Thus,
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to qualify for a section 45X credit, both
the ingot and the wafer must be
produced domestically in accordance
with section 45X(d)(2). Proposed
§ 1.45X–1(d)(2) would have clarified
that constituent elements, materials, and
subcomponents used in the production
of eligible components are not subject to
the domestic production requirement
provided in proposed § 1.45X–1(d)(1).
Because the ingot production is part of
the wafer production, ingots are not
constituent elements, materials, or
subcomponents. The Treasury
Department and the IRS have
determined it is unnecessary to specify
that the ingot must be domestically
produced as section 45X and proposed
§ 1.45X–3(b)(2)(i) require the wafer to be
domestically produced, which includes
production of the ingot. See also Part
II.F.2. of this Summary of Comments
and Explanation of Revisions for a
discussion of proposed § 1.45X–
1(g)(4)(ii) (Example 2) concerning the
production of ingots and wafers.
3. Polymeric Backsheet
Consistent with section
45X(c)(3)(B)(iii), proposed § 1.45X–
3(b)(3) would have defined polymeric
backsheet to mean a sheet on the back
of a solar module that acts as an electric
insulator and protects the inner
components of such module from the
surrounding environment.
Certain commenters recommended
that the term be considered to include
a product that qualifies solely based on
the property’s functionality and not the
property’s composition, in order for
backsheets made of glass to be eligible
components. One commenter stated that
its product is used in solar panels and
therefore its request is consistent with
Congressional intent of expediting the
transition to clean energy, the
underlying intent of section 45X to
create parity among technologies, and
incentivizing the creation of a U.S.based supply chain for current and
future solar technologies. The
commenter thought that other energy
components were defined based on their
function, not their ‘‘composition’’ (for
example, inverter, photovoltaic cell, and
solar module) and believes that glass
performs the same function as a
backsheet made of plastic. The
commenter suggested that clarity on
whether a backsheet made of glass is
part of the definition of ‘‘polymeric
backsheet’’ is important because it will
help with decisions on pursuing a
section 48C credit and for avoiding
penalties under section 6694 of the
Code (preparer penalty) or section 6662
of the Code (substantial
understatement). Another commenter
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recommended adding back glass as a
solar energy component because it is
better for the environment in that a
domestic facility that uses recycled glass
from retired solar modules is ‘‘cleaner’’
than an overseas facility.
In considering these comments, the
Treasury Department and the IRS
determined that the best reading of the
statute is that the term ‘‘polymeric
backsheet’’ is limited to backsheets
made of polymeric materials that also
meet the functional definition provided
in section 45X(c)(3)(B)(iii). This
excludes most glass backsheets because
they are typically not composed of a
polymer, but of soda-lime glass. The
final regulations add the word
‘‘polymeric’’ into the definition as a
clarification. In reaching this
determination, the Treasury Department
and the IRS considered that when
drafting the statute, Congress
affirmatively included ‘‘polymeric’’ in
the term and this inclusion should be
given effect. Thus, the final regulations
clarify that the definition is limited to
a sheet on the back of solar modules
composed, at least in part, of a polymer,
that acts as an electric insulator and
protects the inner components of such
module from the surrounding
environment.
4. Solar Grade Polysilicon
Consistent with section
45X(c)(3)(B)(iv), proposed § 1.45X–
3(b)(4) would have defined solar grade
polysilicon to mean silicon that is
suitable for use in photovoltaic
manufacturing and purified to a
minimum purity of 99.999999 percent
silicon by mass. A commenter requested
that the final rules state that the
production of the silicon gas that is used
for direct wafer production may receive
the section 45X credit for polysilicon for
the mass of silicon in the gas. The
Treasury Department and the IRS have
determined, in close consultation with
the Department of Energy, that gas used
for direct wafer production includes
molecules of silicon contained within
another substance. Accordingly, such
gas is not a complete and distinct
eligible component within the meaning
of proposed § 1.45X–1(c)(1)(i). For this
reason, the Treasury Department and
the IRS decline to adopt this request in
these final regulations.
A few commenters requested
guidance on how the purity level for
solar grade polysilicon should be
determined. One commenter requested
that the final rules clarify that only
impurities that are ‘‘material to the
industry’’ should be counted in
determining whether the minimum
purity level is met. Because these final
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regulations add the purity standard in
SEMI Specification PV17–1012 Category
1 to proposed § 1.45X–3(b)(4), which
distinguishes between material and
immaterial impurities, the Treasury
Department and the IRS decline to
adopt the commenter’s suggestion of
clarifying that the statutory purity level
refers only to impurity levels that are
‘‘material to the industry.’’
A commenter recommended adopting
the standards for polysilicon feedstock
in SEMI Specification PV17–1012. The
Treasury Department and the IRS, in
close consultation with the Department
of Energy, have determined that SEMI
Specification PV17–1012 Category 1
meets the purity standard of 99.999999
percent, while Categories 2 through 5 do
not. The Treasury Department and the
IRS thus agree with this request but only
for Category 1, and these final
regulations accordingly revise proposed
§ 1.45X–3(b)(4) to add the purity
standard in SEMI Specification PV17–
1012 Category 1.
5. Solar Module
Proposed § 1.45X–3(b)(5)(ii) would
have stated that the credit amount for a
solar module is equal to the product of
7 cents multiplied by the capacity of
such module. The proposed rule also
provided that the capacity of each solar
module is expressed on a direct current
watt basis, and that capacity is the
nameplate capacity in direct current
watts using STC, as defined by the IEC.
A commenter requested producers be
required to use ‘‘flash’’ values to
determine the value of the tax credit for
modules. The preamble to the Proposed
Regulations explained that nameplate
capacity is an appropriate, accurate, and
consistent standard for the measurement
of solar module capacity that can be
used to measure the capacity of other
eligible components. Using an industry
standard such as nameplate capacity
that is widely applicable to various
eligible components provides greater
taxpayer certainty, reduces taxpayer
compliance burdens, and aids IRS
administration. For these reasons, the
Treasury Department and the IRS have
determined that the best application of
the statute is to require the use of
nameplate capacity to measure the
capacity of a solar module. The
Treasury Department and the IRS
therefore decline to adopt this
suggestion to permit the use of ‘‘flash’’
value capacity measurements in these
final regulations.
6. Solar Tracker
Consistent with section
45X(c)(3)(B)(vi), proposed § 1.45X–
3(b)(6) would have provided that a solar
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tracker means a mechanical system that
moves solar modules according to the
position of the sun and to increase
energy output. Section 45X(c)(3)(B)(vii)
provides that torque tubes (as defined in
proposed § 1.45X–3(b)(7)) or structural
fasteners (as defined in proposed
§ 1.45X–3(b)(8)) are solar tracker
components that are eligible
components for purposes of the section
45X credit.
Commenters requested that the
definition of a solar tracker (not an
eligible component) in section
45X(c)(3)(B)(vi) be modified to allow
solar thermal collectors, heliostats, and
fixed tilt systems (additional items) to
be solar tracker components as defined
in section 45X(c)(3)(B)(vii). A solar
tracker is defined in 45X(c)(3)(B)(vi) as
a ‘‘mechanical system that moves solar
modules according to the position of the
sun to increase energy output.’’ To be a
solar tracker, a device must be a
mechanical system that moves a solar
module. The Treasury Department and
the IRS do not have authority to expand
the definition of solar tracker to include
additional items such as the ones
suggested that increase energy output
without moving solar modules.
Moreover, modification of the definition
of a solar tracker in the manner the
commenter requested would not result
in such additional items qualifying as
eligible components because a solar
tracker is not a solar energy component
that is an eligible component under
section 45X(c)(1)(A)(i). Section
45X(c)(3)(B)(vii) provides that torque
tubes and structural fasteners are the
only two solar tracker components that
may qualify as eligible components. The
Treasury Department and the IRS do not
have authority to expand the categories
of eligible solar tracker components. For
these reasons, the Treasury Department
and the IRS decline to adopt this request
in the final regulations.
7. Torque Tube
Consistent with section
45X(c)(3)(B)(vii)(I), proposed § 1.45X–
3(b)(7)(i) would have provided that
torque tube means a structural steel
support element (including longitudinal
purlins) that: (i) is part of a solar tracker;
(ii) is of any cross-sectional shape; (iii)
may be assembled from individually
manufactured segments; (iv) spans
longitudinally between foundation
posts; (v) supports solar panels and is
connected to a mounting attachment for
solar panels (with or without separate
module interface rails); and (vi) is
rotated by means of a drive system.
Commenters suggested various
statutory revisions to the definition of
torque tube in section
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45X(c)(3)(B)(vii)(I). A commenter
recommended replacing the definition
with a more generalized term such as
‘‘Tracker Structural Frame’’ to allow for
other common solar collector
morphologies. Another commenter
requested removing or revising section
45X(c)(3)(B)(vii)(I)(dd) to include single
foundation mounted structures or
ground-mounted carousel structures.
One commenter proposed clarifying that
aluminum bearings, steel damper arms,
steel saddle brackets, and steel bottom
brackets are included in the definition
of torque tubes or structural fasteners.
Alternatively, the commenter suggested
providing either: (i) a non-exclusive list
of items that are included in the
definition of torque tube or structural
fasteners, or (ii) a test similar to the
functionally interdependent or integral
part tests under proposed § 1.48–
9(f)(2)(ii) and (f)(3) to determine when a
component is included in the definition
of a torque tube or structural fastener.
Because section 45X(c)(3)(B)(vii)(I)
specifically defines torque tube for
purposes of section 45X, the Treasury
Department and the IRS do not have the
authority to expand the definition of
torque tubes and solar tracker
components in the final regulations to
include additional solar energy
components. As previously discussed,
the Treasury Department and the IRS
also lack authority to incorporate a
functional interdependence or integral
part tests that would allow other
components not specified in the statute
to qualify for the section 45X credit. For
these reasons, the Treasury Department
and the IRS decline to adopt these
comments in the final regulations.
8. Structural Fastener
Consistent with section
45X(c)(3)(B)(vii)(II), proposed § 1.45X–
3(b)(8)(i) would have defined a
structural fastener to mean a component
that is used: (i) to connect the
mechanical and drive system
components of a solar tracker to the
foundation of such solar tracker; (ii) to
connect torque tubes to drive
assemblies; or (iii) to connect segments
of torque tubes to one another.
Several commenters requested
revisions to the definition of structural
fastener in proposed § 1.45X–3(b)(8)(i).
For example, commenters requested that
the definition of structural fastener be
extended ‘‘beyond steel and iron torque
tubes to specifically allow for
innovations made from other materials,’’
such as durable plastic; that solar frames
made from greenhouse gas reducing
steel and roll-form fabricated frames (as
opposed to the current industry
standard, imported extruded aluminum
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85811
frames) qualify as structural fasteners,
solar modules, or torque tubes; and that
the definition of structural fasteners be
expanded to include those that secure
the photovoltaic module to the torque
tube or module interface rails. The
Treasury Department and the IRS do not
have the authority to expand the
definition of structural fasteners and
solar tracker components in the final
regulations to include additional solar
energy components. However, the
Treasury Department and the IRS note
that a component that is used for any of
the functions described in section
45X(c)(3)(B)(vii)(II) would be considered
a structural fastener for purposes of
section 45X. The Treasury Department
and the IRS think that proposed
§ 1.45X–3(b)(8)(i) and the statutory
definition of a structural fastener is
sufficiently clear to address the
requested clarifications. Proposed
§ 1.45X–3(b)(8)(i) is therefore adopted in
these final regulations without revision.
Proposed § 1.45X–3(b)(8)(iii) would
have required that, for substantiation
purposes, a taxpayer must document
that a structural fastener is used in a
manner described in proposed § 1.45X–
3(b)(8)(i)(A), (B), or (C), with a bill of
sale or other similar documentation that
explicitly describes such use. One
commenter specifically supported the
substantiation requirement for structural
fasteners in proposed § 1.45X–
3(b)(8)(iii). Another commenter
requested the final rules require
taxpayers to substantiate that the
structural fasteners for which they are
claiming the section 45X credit include
only the manufactured component (bolt
or rivet) itself. The Treasury Department
and the IRS have determined there is no
need for further clarification of the
substantiation requirement for structural
fasteners in addition to the specific
requirements relating to use in proposed
§ 1.45X–3(b)(8)(iii) and the general
substantiation requirements in section
6001 of the Code. For this reason, the
Treasury Department and the IRS
decline to adopt this comment in the
final regulations.
C. Wind Energy Components
1. In General
Consistent with section 45X(c)(4),
proposed § 1.45X–3(c) would have
provided that a wind energy component
means a blade, nacelle, tower, offshore
wind foundation, or related offshore
wind vessel. Commenters generally
requested expanding proposed § 1.45X–
3(c) to include other non-listed wind
energy components such as structural
fasteners. Section 45X(c)(4) specifically
provides a list of qualifying wind energy
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eligible components. The Treasury
Department and the IRS do not have the
authority to expand the statutorily
enumerated list of wind energy
components eligible for a section 45X
credit. For this reason, the Treasury
Department and the IRS decline to
adopt the commenters request in these
final regulations.
2. Nacelle
Consistent with section
45X(c)(4)(B)(iii), proposed § 1.45–
3(c)(3)(i) would have defined a nacelle
to mean the assembly of the drivetrain
and other tower-top components of a
wind turbine (with the exception of the
blades and the hub) within their cover
housing.
A commenter stated that guidance
should distinguish between
manufacturing of eligible wind energy
components (for example, in a
manufacturing facility) from the
installation of wind energy components
at the relevant project site, as the latter
does not constitute manufacturing or
production of eligible components. The
Treasury Department and the IRS have
determined that the definition of
‘‘produced by the taxpayer’’ provided in
proposed § 1.45X–1(c)(1) is sufficient to
clarify that production of an eligible
component requires substantially
transforming constituent elements,
materials, or subcomponents into a
complete and distinct eligible
component that is functionally different
from that which would result from
disqualifying minor assembly or
superficial modification of the elements,
materials or subcomponents.
Another commenter requested that
the final regulations recognize that,
where a new drivetrain and associated
equipment (the pitch bearing, pitch
system, main shaft, main bearing,
gearbox, flex coupling, and slip ring) are
produced for use in repowering of
existing wind turbines and installed
into an existing nacelle cover housing
with certain other used equipment
(including yaw bearing and baseplate),
the nacelle is eligible for the section 45X
credit. Under this commenter’s
approach, the drivetrain of the nacelle
must be new to be eligible for the
section 45X credit. Another commenter
also suggests inclusion of a ‘‘reasonable
computation’’ of the section 45X credit
for repowered eligible components.
The Treasury Department and the IRS
note that repowering is a form of onsite
re-manufacturing that is typically
accomplished through a hybrid of
primary and secondary production that
utilizes a mix of existing and new
components. To produce a nacelle
within the definition of proposed
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§ 1.45X–3(c)(3)(i), the taxpayer would
need to meet the requirements of the
definition of ‘‘produced by the
taxpayer’’ provided in proposed
§ 1.45X–1(c)(1), including by
substantially transforming the
combination of existing and new
subcomponents into a new nacelle that
is distinct from the original nacelle. In
some circumstances, nacelle repowering
may constitute production of an eligible
component. For example, a taxpayer
that manufactures and installs a new
drivetrain and associated
subcomponents within housing atop a
wind tower will be considered to have
substantially transformed the
combination of new and existing
subcomponents, so that taxpayer will
have produced an eligible nacelle. In
contrast, a taxpayer that merely replaces
the controller in a nacelle with a new
one will not have substantially
transformed the combination of new
and existing subcomponents, so that
taxpayer will not have produced an
eligible nacelle. Routine maintenance or
part replacement would fall under the
definition of disqualifying minor
assembly or ‘‘superficial modification.’’
3. Related Offshore Wind Vessel
Consistent with section
45X(c)(4)(B)(iv), proposed
§ 1.45X–3(c)(4)(i) would have defined
related offshore wind vessel to mean
any vessel that is purpose-built or
retrofitted for purposes of the
development, transport, installation,
operation, or maintenance of offshore
wind energy components. Proposed
§ 1.45X–3(c)(4)(i) would have clarified
that a vessel is purpose-built for
development, transport, installation,
operation, or maintenance of offshore
wind energy components if it is built to
be capable of performing such functions
and it is of a type that is commonly used
in the offshore wind industry. Proposed
§ 1.45X–3(c)(4)(i) would have further
clarified that a vessel is retrofitted for
development, transport, installation,
operation, or maintenance of offshore
wind energy components if such vessel
was incapable of performing such
functions prior to being retrofitted, the
retrofit causes the vessel to be capable
of performing such functions, and the
retrofitted vessel is of a type that is
commonly used in the offshore wind
industry.
Under proposed § 1.45X–3(c)(4)(ii),
consistent with section 45X(b)(1)(F)(i),
the credit amount for a related offshore
wind vessel would have been equal to
10 percent of the sales price of the
vessel. Under the Proposed Regulations
the sales price of the vessel does not
include the price of maintenance,
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services, or other similar items that may
be sold with the vessel. For a related
offshore wind vessel with respect to
which a Related Person Election under
section 45X(a)(3)(B)(i) has been made,
the election would not cause the sale
price of such vessel to be treated as
having been determined with respect to
a transaction between uncontrolled
taxpayers for purposes of section 482 of
the Code and the regulations
thereunder.
One commenter requested
clarification on the valuation of
retrofitted offshore wind vessels and
requested guidance on whether the
section 45X credit applies to the cost of
the retrofit itself, the value-add of the
retrofit, the cost of the final sale of a
retrofitted vessel, or some other amount.
The Treasury Department and the IRS
confirm that the credit amount specified
in section 45X(b)(1)(F)(i)—ten percent of
the sales price of such vessel—
specifically applies to any related
offshore wind vessel which is purposebuilt or retrofitted as provided in
section 45X(c)(4)(B)(iv).
A commenter stated that the
definition of an offshore wind vessel is
too narrow and that more standard
vessel types (for example, tugboats and
barges) that are capable of doing
offshore wind work should also be
eligible for the section 45X credit if they
are being constructed or retrofitted for
the purpose of offshore wind work. The
Treasury Department and the IRS note
that section 45X(c)(4)(B)(iv) and
proposed § 1.45X–3(c)(4)(i) would have
defined a related offshore wind vessel to
mean ‘‘any vessel’’ that is purpose-built
or retrofitted for purposes of the
development, transport, installation,
operation, or maintenance of offshore
wind energy components. Proposed
§ 1.45X–3(c)(4)(i) would have clarified
that a vessel is purpose-built for
development, transport, installation,
operation, or maintenance of offshore
wind energy components if it is built to
be capable of performing such functions
and it is of a type that is commonly used
in the offshore wind industry. Proposed
§ 1.45X–3(c)(4)(i) would have further
clarified that a vessel is retrofitted for
development, transport, installation,
operation, or maintenance of offshore
wind energy components if such vessel
was incapable of performing such
functions prior to being retrofitted, the
retrofit causes the vessel to be capable
of performing such functions, and the
retrofitted vessel is of a type that is
commonly used in the offshore wind
industry. Thus, if a vessel meets the
definition of a related offshore wind
vessel in proposed § 1.45X–3(c)(4)(i),
there are no limitations as to the type of
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vessel that may be an eligible
component.
The commenter’s requested
clarification would require an
application of the standard in proposed
§ 1.45X–3(c)(4)(i) to specific cases for
which a categorical determination of
eligibility for additional vessel types
would not be appropriate in these final
regulations because such a
determination would depend on the
specific facts of each case.
Although no comments were received
on proposed § 1.45X–3(c)(4)(i), the
Treasury Department and the IRS revise
proposed § 1.45X–3(c)(4)(i) in these
final regulations to clarify that Federal
income tax principles apply in
determining the accuracy of the sales
price used to calculate the section 45X
credit. This revision provides greater
certainty as to what principles apply for
purposes of the section 45X credit and
is in addition to the specific exclusions
from a vessel’s sales price in proposed
§ 1.45X–3(c)(4)(i), which included
maintenance, services, or other similar
items that may be sold with the vessel.
4. Total Rated Capacity of the
Completed Wind Turbine
Proposed § 1.45X–3(c)(6) would have
provided that, for purposes of proposed
§ 1.45X–3(c), the total rated capacity of
the completed wind turbine means, for
the completed wind turbine for which a
blade, nacelle, offshore wind
foundation, or tower was manufactured
and sold, the nameplate capacity at the
time of sale as certified to the relevant
national or international standards, such
as IEC 61400, or American National
Standards Institute (ANSI)/American
Clean Power Association (ACP) 101–1–
2021, the Small Wind Turbine Standard
(Standard). Under proposed
§ 1.45X–3(c)(6), certification of the
turbine to such Standards must be
documented by a certificate issued by
an accredited certification body and the
total rated capacity of a wind turbine
must be expressed in watts.
One commenter expressed support for
the proposal requiring that qualifying
wind turbine components must be made
and sold for use on certified wind
turbines. Another commenter
recommended including both American
Wind Energy Association (AWEA) 9.1–
2009 and ANSI/ACP 101–1–2021 as
acceptable wind turbine certification
standards. The commenter explained
that ANSI/ACP 101–1–2021 is a revision
of the AWEA standard (the original
small wind certification standard, and
all currently certified small wind
systems are certified to this standard)
that streamlines the certification
process, but there is no requirement that
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turbines with the original certification
must recertify to the new ANSI/ACP
standard. Thus, the commenter states
that including both standards in the
final rules will allow currently certified
turbines made in the United States to
earn section 45X credits as well as new
turbines currently in the certification
process following the newer standard.
The Treasury Department and the IRS
agree with this request and these final
regulations revise proposed § 1.45X–
3(c)(6) to add both AWEA 9.1–2009 and
ANSI/ACP 101–1–2021 as acceptable
wind turbine certification standards.
A commenter sought clarification as
to whether a wind tower producer may
rely on a certification of the total rated
capacity of the turbine obtained from
the original equipment manufacturer
(OEM) that produces the completed
wind turbine in which the wind tower
is incorporated, provided the certificate
was issued by an accredited certification
body. The commenter noted that
requiring wind tower producers to
independently verify the capacity of the
completed turbine would cause ‘‘undue
expense and delay.’’ To provide
assurance to the commenter, a wind
tower producer may rely on an OEM’s
certification of the total rated capacity of
the completed wind turbine in which
the tower was incorporated, but the
Treasury Department and the IRS have
determined that the rules as set out by
proposed § 1.45X–3(c)(6) and (7) do not
require further clarification on this
point.
D. Inverters
1. In General
Consistent with section 45X(c)(2),
proposed § 1.45X–3(d) would define an
inverter as an end product that is
suitable to convert direct current (DC)
electricity from one or more solar
modules or certified distributed wind
energy systems into alternating current
(AC) electricity. Proposed § 1.45X–3(d)
would have further provided that an
end product is suitable to convert DC
electricity from one or more solar
modules or certified distributed wind
energy systems into AC electricity if, in
the form sold by the manufacturer, it is
able to connect with such modules or
systems and convert DC electricity to
AC electricity from such connected
source. For purposes of section 45X, the
term inverter includes a central inverter,
commercial inverter, distributed wind
inverter, microinverter, or residential
inverter. Proposed § 1.45X–3(d) would
have clarified the definition of each of
these types of inverters, including the
required rated outputs.
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The preamble to the Proposed
Regulations stated that section 45X(c)(2)
requires certain types of inverters be
‘‘suitable to’’ or ‘‘suitable for’’ a
statutorily required use or application to
be considered an eligible component.
Proposed § 1.45X–3(d) would also have
provided the calculation of the credit
amount for each type of inverter. In
general, the credit amount for each type
of inverter would be equal to the
product of the inverter’s total rated
capacity and the amount prescribed in
section 45X(b)(2)(B) for such inverter.
One commenter requested the final
rules provide a credit for utility-scale
power converters and that a ‘‘utilityscale power converter’’ be defined in a
manner consistent with section 2.1.9 of
Underwriters Laboratories Standard
1741 (2002). Specifically, the
commenter requested modifying the
final rules to provide a credit for
products that only convert direct
current to direct current or alternating
current to direct current. Because
section 45X(c)(2)(A) specifically defines
the term inverter to mean ‘‘an end
product which is suitable to convert
direct current electricity . . . into
alternating current electricity,’’ the
Treasury Department and the IRS do not
have the authority to expand the
definition of inverter in the final
regulations to include these additional
products. For this reason, the Treasury
Department and the IRS decline to
adopt this comment in the final
regulations.
Another commenter requested that,
for each type of inverter provided for
under section 45X(c)(2), the rated
output of alternating current power be
defined as ‘‘the maximum continuous
grid-tied power rating the inverter is
capable of handling.’’ The commenter
asserts that the suggested change will
‘‘ensure consistent interpretation across
technologies despite consumer-driven
decisions impacting output.’’ Section
45X(c)(2) uses the term ‘‘rated output’’
to define, in part, a commercial inverter,
distributed wind inverter,
microinverter, residential inverter, or
utility inverter. The Treasury
Department and the IRS decline to
adopt this comment in the final
regulations because the term rated
output is in the statutory definition for
these inverters.
Several commenters requested that
the final rules provide a section 45X
credit for inverters that convert direct
current from sources other than solar
modules or certified distributed wind
energy systems as long as these inverters
meet the technical requirements of an
inverter defined under section
45X(c)(2). Section 45X(c)(2)(A)
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specifically defines the term inverter to
mean ‘‘an end product which is suitable
to convert direct current electricity from
one or more solar modules or certified
distributed wind energy systems into
alternating current electricity.’’ Other
types of inverters such as bidirectional
electric vehicle inverters or utility and
commercial inverters that are in practice
used with battery modules can meet the
existing suitability standard within the
definition without additional
clarification required. For this reason,
the Treasury Department and the IRS
decline to adopt this comment in the
final regulations.
2. Central Inverter
Consistent with section 45X(c)(2)(B),
proposed § 1.45X–3(d)(2)(i) would have
defined a central inverter as an inverter
that is suitable for large utility-scale
systems and has a capacity that is
greater than 1,000 kilowatts, expressed
on an alternating current watt basis.
Proposed § 1.45X–3(d)(2)(i) would have
further clarified that an inverter is
suitable for large utility-scale systems if,
in the form sold by the manufacturer, it
is capable of serving as a component in
a large utility-scale system and meets
the core engineering specifications for
such application. Proposed § 1.45X–
3(d)(2)(ii) would have provided a credit
equal to the product of 0.25 cents
multiplied by the total rated capacity of
the central inverter where the total rated
capacity is expressed on an alternating
current watt basis.
One commenter requested the credit
amount available for a central inverter
be changed to match the credit available
for utility inverters because utility
inverters are eligible for a credit that is
six times higher than central inverters.
Because section 45X(b)(2)(B) provides
the credit amounts available for central
inverters and utility inverters, the
Treasury Department and the IRS do not
have the authority to make the
requested change. For this reason, the
Treasury Department and the IRS
decline to adopt this comment in the
final regulations.
3. Commercial Inverter
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a. Definition
Consistent with section 45X(c)(2)(C),
proposed § 1.45X–3(d)(3)(i) would have
provided that a commercial inverter
means an inverter that is suitable for
commercial or utility-scale applications,
has a rated output of 208, 480, 600 or
800 volt three-phase power, and has a
capacity expressed on an alternating
current watt basis that is not less than
20 kilowatts and not greater than 125
kilowatts.
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One commenter requested the
definition of a commercial inverter be
changed to provide a credit for inverters
with a rated output greater than 800 volt
three-phase power. Section
45X(c)(2)(C)(ii) defines a commercial
inverter, in part, as having ‘‘a rated
output of 208, 480, 600, or 800 volt
three-phase power.’’ The Treasury
Department and the IRS do not have the
authority to expand the definition of a
commercial inverter in the final
regulations to those with a rated output
greater than 800 volt three-phase power.
For this reason, the Treasury
Department and the IRS decline to
adopt this comment in the final
regulations.
A few commenters requested that the
final rules modify the definition of a
commercial inverter to include a DC
optimized commercial inverter system,
and that, when DC optimizers are paired
with a commercial inverter, the credit
amount available for commercial
inverters should be determined in a
manner similar to the credit
computation for direct current
optimized inverter systems (DC
optimized inverter systems, as the term
would have been defined in Proposed
§ 1.45X–3(d)(5)(iii)(B) and discussed in
Part IV.D.3.a. of this Summary of
Comments and Explanation of
Revisions). Generally, these commenters
requested that, with the modified
definition of commercial inverter, the
available credit be computed as a
product of $0.02 multiplied by the
lesser of the sum of the alternating
current capacity of each DC optimizer
when paired with the inverter in the DC
optimized inverter system or the
alternating current capacity of the
inverter in the DC optimized inverter
system. No language in the statutory text
or proposed rules prohibits the use of
direct current optimizers with
commercial inverters. Thus, it is
unnecessary to modify the final rules to
state that DC optimizers may be used
with a commercial inverter.
Section 45X(b)(1)(I) provides that the
amount of the section 45X credit for an
inverter is equal to the applicable
amount with respect to each type of
inverter multiplied by the capacity of
such inverter (expressed on a per
alternating current watt basis). The
Treasury Department and the IRS do not
have the authority to change the method
for computing the credit for commercial
inverters. In contrast, language that
appears only in the definition of
‘‘microinverter’’ in section 45X(c)(2)(E)
(‘suitable to connect to one solar
module’) does require clarification
about how to apply the definition to DC
optimized systems and multi-module
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microinverters. Because this language
does not appear in the definition of
‘‘commercial inverter’’ in section
45X(c)(2)(C), there is no analogous need
to clarify the application of the
definition or credit calculation. For this
reason, the Treasury Department and
the IRS decline to adopt these requests
pertaining to commercial inverters in
the final regulations.
b. Credit Amount
Proposed § 1.45X–3(d)(3)(iii) would
have provided a credit equal to the
product of 2 cents multiplied by the
total rated capacity of the commercial
inverter where the total rated capacity is
expressed on an alternating current watt
basis.
Commenters requested that DC
optimizers be allowed to be paired with
commercial or utility scale system
configurations, like microinverters. This
comment is not adopted for the reasons
provided in Part IV.D.3.a. of this
Summary of Comments and Explanation
of Revisions.
4. Microinverters
a. Definition
Consistent with section 45X(c)(2)(E),
proposed § 1.45X–3(d)(5)(i) would have
defined a microinverter as an inverter
that is suitable to connect with one solar
module; has a rated output of 120 or 240
volt single-phase power, or 208 or 480
volt three-phase power; and has a
capacity, expressed on an AC watt basis,
that is not greater than 650 watts. One
commenter requested the final rules
change the maximum capacity limit for
the microinverter from 650 watts to 700
watts to accommodate future
technological advancements. Because
section 45X(c)(2)(E)(iii) provides the
maximum capacity of a microinverter,
the Treasury Department and the IRS do
not have the authority to make the
requested change. For this reason, the
Treasury Department and the IRS
decline to adopt this comment in the
final regulations.
b. Suitable To Connect to One Solar
Module—in General
Proposed § 1.45X–3(d)(5)(iii)(A)
would have clarified that an inverter is
suitable to connect to one solar module
if, in the form sold by the manufacturer,
it is capable of connecting to one or
more solar modules and regulating the
DC electricity from each module
independently before that electricity is
converted into alternating current
electricity.
Proposed § 1.45X–3(d)(5)(iii)(B)
would have clarified that a DC
optimized inverter system may qualify
as a microinverter. Proposed § 1.45X–
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3(d)(5)(iii)(B) would have defined a DC
optimized inverter system to mean an
inverter that is comprised of an inverter
connected to multiple DC optimizers
that are each designed to connect to one
solar module. Proposed § 1.45X–
3(d)(5)(iii)(B) would have provided that
a DC optimized inverter system is
suitable to connect with one solar
module if, in the form sold by the
manufacturer, it is capable of
connecting to one or more solar
modules and regulating the DC
electricity from each module
independently before that electricity is
converted into alternating current
electricity. Proposed § 1.45X–
3(d)(5)(iv)(B) would have provided that
a DC optimized inverter system qualifies
as a microinverter if each DC optimizer
paired with the inverter in a DC
optimized inverter system meets the
requirements of section 45X(c)(2)(E) and
a taxpayer must produce and sell the
inverter and the DC optimizers in the
DC optimized inverter system together
as a combined end product.
Several commenters agreed with the
proposed rule permitting DC optimizers
paired with an inverter to qualify as
microinverters and receive the
corresponding credit amount. One
commenter suggested revising the
definition of a DC optimized inverter
systems to more clearly define the
qualifying system components of a DC
optimized inverter system. This
commenter proposed that qualifying
system components include items that
control the DC output of one or more
solar modules and are integral to the
function of the inverter and modules.
The Treasury Department and the IRS,
in consultation with the Department of
Energy, conclude that the additional
confirmation the commenter is
requesting is not necessary as it would
not provide additional clarity. For this
reason, the Treasury Department and
the IRS decline to adopt this suggestion
in the final regulations.
Several commenters requested that
the final rules remove the requirement
that a taxpayer produce and sell both
the inverter and the DC optimizers in
the DC optimized inverter system as a
combined end product. One commenter
expressed the view that the requirement
distorts the market, provides an unfair
advantage to companies that already
manufacture both items, and requires
companies to seek out partnerships
solely for the purpose of obtaining the
section 45X credit. Other commenters
that manufacture both products state
that the proposed requirement is
inconsistent with standard industry
practices where a manufacturer sells the
items separately. In contrast, one
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commenter supported the ‘‘combined
end product’’ requirement and
suggested it also be applied to multimodule inverters to prevent multiple
entities from claiming section 45X
credits for the same system. Section
45X(c)(2)(A) defines an inverter as an
end product that is suitable to convert
DC electricity from one or more solar
modules or certified distributed wind
energy systems into AC electricity. For
each type of inverter listed under
section 45X(c)(2), section 45X(b)(1)(I)
provides the applicable credit is
determined as an amount equal to the
product of each inverter’s applicable
amount multiplied by the capacity of
such inverter. The section 45X credit is
separately computed for each inverter.
The Treasury Department and the IRS
do not have the authority to allow a
credit solely for a DC optimizer, because
it does not convert DC electricity into
AC electricity as the definition of
inverter in section 45X(c)(2) requires.
The Treasury Department and the IRS
also do not have the authority to change
the number of inverter units used to
compute the available credit amount.
For these reasons, the Treasury
Department and the IRS decline to
adopt these comments in these final
regulations. However, while proposed
§ 1.45X–3(d)(5)(iv)(B) requires that the
inverter and DC optimizer in the DC
optimized inverter system must be
produced and sold as a combined end
product, the Treasury Department and
the IRS clarify that the inverter and the
DC optimizer do not need to be
physically packaged together at sale,
and the inverter and DC optimizer do
not need to be fully interconnected and
assembled at the time of sale.
Proposed § 1.45X–3(d)(5) would have
clarified that a multi-module inverter
may also qualify as a microinverter.
Proposed § 1.45X–3(d)(5)(iii)(C) would
have defined a multi-module inverter to
mean an inverter that is comprised of an
inverter with independent connections
and DC optimizing components for two
or more modules. Proposed § 1.45X–
3(d)(5)(iii)(C) would have further
provided that a multi-module
microinverter is suitable to connect with
one solar module if it is capable of
connecting to one or more solar
modules and regulating the DC
electricity from each module
independently before that electricity is
converted into alternating current
electricity. Proposed § 1.45X–
3(d)(5)(iv)(C) would have provided that
multimodule inverter qualifies as a
microinverter if it meets the
requirements of section 45X(c)(2)(E).
One commenter suggested revising
the definition of a multi-module
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inverter to more clearly define the
qualifying system components of a
multi-module inverter. The commenter
suggested that qualifying system
components should be those items that
control the DC output of one or more
solar modules and are integral to the
function of the inverter and modules.
The same commenter also suggested
revising the definition of a multimodule inverter to clarify that for a
multi-module inverter to qualify as a
microinverter, a taxpayer must produce
and sell the inverter and the DC
optimizers together as a combined end
product. A different commenter agreed
with this suggestion.
A few commenters suggested revising
the definition of a multi-module
inverter to provide that a multi-module
inverter includes a DC optimized
inverter system such that each DC
optimizer may connect with more than
one solar module and the credit amount
in such a system is computed similarly
to a DC optimized inverter system,
except that the DC optimizers are not
required to be sold with the inverter as
a ‘‘combined end product.’’ Other
commenters disagreed with this
suggestion and support the proposed
rule that would not have allowed solar
modules to share a connection to a
multi-module inverter.
The reasons provided for retaining the
rule for DC optimized inverter systems
also apply to adopting the requirement
for multi-module inverters. The
Treasury Department and the IRS think
that requiring taxpayers to produce and
sell the inverter and the DC optimizers
together as a combined end product will
create parity with DC optimized inverter
systems and avoid potential abuse. For
these reasons, the Treasury Department
and the IRS adopt these comments in
the final regulations.
c. Credit Amount
Proposed § 1.45X–3(d)(5)(iv)(A)
would have provided that generally, the
credit amount for a microinverter is
equal to the product of 11 cents
multiplied by the total rated capacity of
the microinverter where the total rated
capacity is expressed on an alternating
current watt basis.
Proposed § 1.45X–3(d)(5)(iv)(B) would
have clarified how to determine the
credit amount for a DC optimized
inverter system that qualifies as a
microinverter. Proposed § 1.45X–
3(d)(5)(iv)(B) would have provided that
the credit amount for a DC optimized
inverter system that qualifies as a
microinverter is equal to the product of
11 cents multiplied by the lesser of the
sum of the alternating current capacity
of each DC optimizer when paired with
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the inverter in the DC optimized
inverter system or the alternating
current capacity of the inverter in the
DC optimized inverter system where
capacity is measured in watts of
alternating current converted from DC
electricity by the inverter in a DC
optimized inverter system.
One commenter requested that the
alternating current capacity of each DC
optimizer when paired with the inverter
in the DC optimized inverter system be
calculated as the product of the
optimizer’s rated input power capacity,
the optimizer’s DC-to-DC conversion
efficiency percentage, and the inverter’s
DC-to-AC conversion efficiency
percentage. Section 45X(b)(1)(I)
provides the applicable credit is
determined as an amount equal to the
product of each inverter’s applicable
amount multiplied by the capacity of
such inverter (expressed on a per
alternating current watt basis). The
requirement that capacity is ‘‘expressed
on an alternating current watt basis’’
already factors in any DC-to-DC
conversion efficiency upstream of the
DC-to-AC conversion, and the inverter’s
DC-to-AC conversion efficiency
percentage is accounted for by the use
of ‘‘capacity of such inverter’’
(expressed on a per alternating current
watt basis). Therefore, these
requirements are duplicative of rules
contained in the statutory text. For this
reason, the Treasury Department and
the IRS decline to adopt this suggestion
in the final regulations.
5. Utility Inverter
Consistent with section 45X(c)(2)(G),
proposed § 1.45X–3(d)(7)(i) would have
defined a utility inverter as an inverter
that is suitable for commercial or utilityscale systems, has a rated output of not
less than 600 volt three-phase power,
and has a capacity expressed on an
alternating current watt basis that is
greater than 125 kilowatts and not
greater than 1000 kilowatts.
One commenter requested reducing
the required rated output from ‘‘not less
than 600 volt three-phase power’’ to
‘‘not less than 480 volt three-phase
power.’’ Section 45X(c)(2)(G)(ii) defines
a utility inverter, in part, as having ‘‘a
rated output of not less than 600 volt
three-phase power.’’ The Treasury
Department and the IRS decline to
adopt the commenter’s request because
defining a utility inverter to include
those with a rated output of not less
than 480 volt three-phase power would
be inconsistent with the statute.
E. Qualifying Battery Components
Proposed § 1.45X–3(e)(1) would
define a qualifying battery component
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as electrode active materials, battery
cells, or battery modules.
1. Electrode Active Materials
a. In General
Proposed § 1.45X–3(e)(2)(i)(A) would
have defined electrode active materials
to include cathode electrode materials,
anode electrode materials, and
electrochemically active materials that
contribute to the electrochemical
processes necessary for energy storage.
In general, electrode active materials are
materials that are capable of being used
within a battery for energy storage.
Proposed § 1.45X–3(e)(2)(i)(A) would
also have provided that the following
materials in a battery or vehicle would
not qualify for the section 45X credit as
an electrode active material: battery
management systems, terminal
assemblies, cell containments, gas
release valves, module containments,
module connectors, compression plates,
straps, pack terminals, bus bars, thermal
management systems, and pack jackets.
Proposed § 1.45X–3(e)(2)(v) would have
clarified that a taxpayer may claim only
one section 45X credit with respect to
a material that qualifies as both an
electrode active material and an
applicable critical mineral.
Some commenters recommended
altering the definition of electrode
active materials as defined in section
45X(c)(5)(B)(i) and in proposed § 1.45X–
3(e)(2)(i)(A). The Treasury Department
and the IRS do not have the authority
to alter the definition of electrode active
materials as provided by the statute. For
this reason, the Treasury Department
and the IRS decline to adopt these
recommendations in the final
regulations.
One commenter raised a concern that
certain definitions in the Proposed
Regulations applicable to electrode
active materials would inadvertently
exclude separators from being treated as
an eligible component because those
definitions do not include language
specific to the separator production
process. As proposed § 1.45X–
3(e)(2)(i)(D) specifically included
separators in the definition of
electrochemically active materials, such
changes to definitions are unnecessary,
and the Treasury Department and the
IRS decline to adopt the commenter’s
recommendation.
b. Cathode Electrode Materials and
Anode Electrode Materials
Proposed § 1.45X–3(e)(2)(i)(B) would
have defined ‘‘cathode electrode
materials’’ to mean the materials that
comprise the cathode of a commercial
battery technology, such as binders, and
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current collectors (that is, cathode foils).
Proposed § 1.45X–3(e)(2)(i)(C) would
have defined ‘‘anode electrode
materials’’ to mean the materials that
comprise the anode of a commercial
battery technology, including anode
foils.
A commenter recommended that the
definition of cathode electrode materials
in proposed § 1.45–3(e)(2)(i)(B) and of
anode electrode materials in proposed
§ 1.45–3(e)(2)(i)(C) be clarified to specify
that the materials be ‘‘battery-grade’’ so
the precursor materials are eligible for
the section 45X credit. Because these
proposed definitions would require that
the materials comprise the cathode or
anode of a commercial battery
technology, the Treasury Department
and the IRS conclude that specifying
that such materials be ‘‘battery-grade’’
would be redundant. For this reason,
the Treasury Department and the IRS
decline to adopt these recommendations
in the final regulations.
Another commenter recommended
that the definition of cathode electrode
materials be clarified to address its
concern that the qualifier ‘‘commercial
battery technology’’ excludes hydrogen
fuel cells contrary to the definition of
the term in the statute, which contains
no such qualifier. The Treasury
Department and the IRS do not have the
authority to alter the definition of
electrode active materials as battery
components as provided by the statute.
For this reason, the Treasury
Department and the IRS decline to
adopt this recommendation in the final
regulations. The Treasury Department
and the IRS note, however, that
although electrode active materials in
general must be capable of being used
within a battery for energy storage, such
materials would still be eligible for the
section 45X credit if they are also
capable of being used in other
applications, such as hydrogen fuel
cells.
c. Electrochemically Active Materials
Proposed § 1.45X–3(e)(2)(i)(D) would
define ‘‘electrochemically active
materials that contribute to the
electrochemical processes necessary for
energy storage’’ to mean the batterygrade materials that enable the
electrochemical storage within a
commercial battery technology. In
addition to the list of electrochemically
active materials provided in section
45X(c)(5)(B)(i) (that is, solvents,
additives, and electrolytic salts), these
may include electrolytes, catholytes,
anolytes, separators, and metal salts and
oxides.
One commenter requested the
definition of electrochemically active
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materials explicitly include solid-state
electrolytes. Solid-state electrolytes are
included in the definition of
electrochemically active materials
because Proposed § 1.45X 3(e)(2)(i)(D)
includes ‘‘electrolytes,’’ with no
particular form required. The Treasury
Department and the IRS conclude that
specifying that such materials are
included in this definition would be
redundant. For this reason, the Treasury
Department and the IRS decline to
adopt these recommendations in the
final regulations.
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d. Battery Grade Materials
Proposed § 1.45X–3(e)(2)(i)(F) would
have defined ‘‘battery-grade materials’’
to mean the processed materials found
in a final battery cell or an analogous
unit, or the direct battery-grade
precursors to those processed materials.
A few commenters requested the final
rules clarify the meaning of direct
battery-grade precursors. Commenters
also requested the final rules provide
that silane gas, ultra-high molecular
weight polyethylene, and needle coke
meet the definition of electrochemically
active materials as direct battery-grade
precursors. While the Treasury
Department and the IRS understand the
desire for assurance, listing specific
precursors that qualify as
electrochemically active materials
would not be possible or advisable
because it could imply that unlisted
materials do not qualify as
electrochemically active materials,
particularly as battery technologies may
evolve over time. For this reason, the
Treasury Department and the IRS
decline to adopt these recommendations
in these final regulations.
e. Production Costs Incurred
Proposed § 1.45X–3(e)(2)(iv) would
have provided that costs incurred for
purposes of determining the credit
amount includes costs as defined in
§ 1.263A–1(e) that are paid or incurred
within the meaning of section 461 of the
Code by the taxpayer for the production
of an electrode active material only.
Thus, under the Proposed Regulations,
production costs with respect to an
electrode active material would not
include any costs incurred after the
production of the electrode active
material.
The Proposed Regulations would not
have allowed direct material costs as
defined in § 1.263A–1(e)(2)(i)(A),
indirect material costs as defined in
§ 1.263A–1(e)(3)(ii)(E), or any costs
related to the extraction or acquisition
of raw materials to be taken into account
as production costs. This limitation
disallowed, for purposes of calculating
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the credit: the inclusion of the cost of
acquiring the raw material used to
produce the electrode active materials;
the cost of materials used for
conversion, purification, or recycling of
the raw material; and other material
costs related to the production of
electrode active materials. The Proposed
Regulations applied section 263A and
the regulations under section 263A
(section 263A regulations) solely to
identify the types of costs that are
includible in production costs incurred
for the purpose of computing the
amount of the section 45X credit. The
Proposed Regulations did not apply
section 263A or the section 263A
regulations for any other purposes, such
as to determine whether a taxpayer is
engaged in production activities.
The preamble to the Proposed
Regulations explained that the rationale
for the proposed rule was that the credit
for the production of electrode active
materials provides incentives for
taxpayers to conduct activities that add
value to the production of electrode
active materials. Merely purchasing raw
materials may enable a taxpayer to
produce an electrode active material but
it is not by itself an activity that adds
value. In addition, excluding the costs
of acquiring electrode active materials
mitigates the risk of crediting the
production costs for the same
underlying material more than once as
that material is used in various stages of
the production process. For these
reasons, material costs were not
creditable costs under the Proposed
Regulations.
The Treasury Department and the IRS
requested comments on the proposed
rule for determining the costs incurred
with respect to the production of
electrode active materials. Specifically,
comments were sought as to whether
and how extraction and other similar
value-added activities in the production
of raw materials used in electrode active
materials should be taken into account
and how extraction should be defined,
including whether the term should be
defined consistent with proposed
§ 1.30D–3(c)(8). Comments were also
requested with respect to applicable
critical minerals, which are summarized
in Part V.C. of this Summary of
Comments and Explanation of
Revisions. Many of these comments had
similarities, and the reasoning and
revisions in these final regulations are
described in this Part IV.E.1.e. of this
Summary of Comments and Explanation
of Revisions and are adopted for both
electrode active materials and
applicable critical minerals.
Approximately 72 of the comments
received addressed the definition and
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scope of production costs generally.
Many commenters recommended that,
contrary to the Proposed Regulations, all
costs with respect to the production of
electrode active materials be included in
production costs for purpose of
determining the credit, including direct
material costs as defined in § 1.263A–
1(e)(2)(i)(A), indirect material costs as
defined in § 1.263A–1(e)(3)(ii)(E), and
costs related to the extraction of raw
materials.
A significant number of commenters
focused their recommendations on
material costs or the costs of extraction,
but there was agreement among many of
them that ‘‘costs of production’’ should
be interpreted broadly to include all
costs. In support of this position,
commenters asserted that section
45X(b)(1)(J) and (M) do not place limits
or otherwise qualify production costs
eligible for the credit and that the
regulations should not impose
limitations not explicitly present in the
Code itself. Some of these commenters
also argued that, because the costs
excluded from production costs in the
Proposed Regulations are often a
substantial or predominant portion of
the total costs of producing some
electrode active materials, substantial
limitations on the inclusion of these
costs would contradict Congress’s goal
of incentivizing the production of
electrode active materials. Commenters
also disputed that direct and indirect
costs are not incurred in value-adding
activities.
Some commenters also disagreed that
the potential for over crediting (that is,
crediting the same production costs
multiple times) justifies denying a credit
for these costs. A subset of these
commenters disagreed that over
crediting was a legitimate concern,
arguing instead that section 45X
provides a credit for costs incurred at
different stages of production
attributable to the same underlying
material. Others agreed that over
crediting might not be permissible but
that the concern was insufficient to
deny entirely credits for all costs that
might be impermissibly claimed more
than once for the same underlying
material. In the view of these
commenters, prohibiting crediting these
same production costs multiple times
would be the proper approach rather
than entirely denying all credits for
these costs. Some commenters noted
that, in the case of certain specifically
identified electrode active materials,
there was no risk of crediting the same
production costs multiple times and
thus direct and indirect costs should be
included in the costs of production for
these electrode active materials. A third
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set of commenters argued that credits
should be permissible once under
section 45X(b)(1)(M) for applicable
critical minerals and again under
section 45X(b)(1)(J) for electrode active
materials.
In the case of electrode active
materials that are precursors for the
production of other electrode active
materials, one commenter
recommended that the cost of the
precursor electrode active materials
only be included in the cost of
production for which a credit may be
claimed if the precursor electrode active
materials are completely consumed in
the production process and are not used
for any other commercial purpose.
A number of commenters proposed
solutions to the problem of potentially
crediting the same production costs
multiple times. One solution
commenters proposed was to reduce the
basis of property for which a credit has
been claimed by an upstream producer.
Commenters also proposed a system
under which a taxpayer would only be
eligible for a credit on costs of material
for which no other taxpayer had
previously claimed a credit. This
arrangement could be administered
through a system of certifications in
which taxpayers would be required to
verify that its suppliers had not
previously claimed credits for costs
associated with the same materials for
which the taxpayer is claiming credits.
A commenter also urged that producers
of electrode active materials be able to
claim a credit if they can establish that
the acquired electrode active materials
and applicable critical minerals used in
the production of electrode active
materials were acquired from extraction
or production outside the United States
and thus were previously ineligible for
a section 45X credit.
In addition to general comments
regarding the inclusion of direct,
indirect, and extraction costs,
commenters recommended clarification
about more specific costs, including
costs associated with transportation.
Another commenter requested the final
rules be modified to include costs of the
production of anodes used in the
aluminum production to convert
alumina into aluminum. Other
commenters asserted that the costs of
processing and purification of materials
in the production of electrode active
materials add value and should, on that
basis, be included in the scope of the
credit.
Several commenters recommended
that the direct and indirect costs of the
production of electrode active materials
from recycled feedstock should be
classified as production costs for
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purposes of the credit. According to one
commenter, recycling processes begin
with waste products at what is
essentially a new supply chain.
A commenter supported the Proposed
Regulations’ exclusion of direct
material, indirect material, and
extraction costs from production costs
eligible for the credit. This commenter
was concerned that a contrary rule
would invite fraud, waste, and abuse
and that, in the case of extraction costs,
would be difficult to administer without
the creation of a tracing system.
With respect to costs related to
extraction, the Proposed Regulations
would have excluded extraction costs
because extraction could be far
removed, particularly in the case of
electrode active materials, in the supply
chain from the ultimate production of
the eligible component. However,
commenters highlighted the critical
importance of extraction to the
production of both applicable critical
minerals and electrode active materials
as well as the close connection these
costs often have to the final production
of these materials.
The Treasury Department and the IRS
have reconsidered the treatment of
extraction costs in these final
regulations for taxpayers that extract
raw materials domestically and for
taxpayers that acquire either
domestically or foreign-sourced
extracted raw materials. For both
electrode active materials and
applicable critical minerals, the final
regulations in §§ 1.45X–3(e)(2)(iv) and
1.45X–4(c)(3), respectively, allow
taxpayers to include extraction costs
related to the extraction of raw materials
in the United States or a United States
territory, but only if those costs are paid
or incurred by the taxpayer that claims
the section 45X credit with respect to
the relevant electrode active material or
applicable critical mineral. The
Treasury Department and the IRS note
that the section 45X credit is available
only to taxpayers that produce and sell
an eligible component. Thus, the final
regulations provide that extraction costs
may be included in production costs
consistent with the rules provided
under section 263A only if such costs
are incurred by the taxpayer that claims
the section 45X credit with respect to
the relevant applicable critical mineral
or electrode active material. The
Treasury Department and the IRS have
determined that this inclusion of
extraction costs incurred by the
taxpayer most accurately captures the
meaning ‘‘the costs incurred by the
taxpayer with respect to the production
of’’ applicable critical minerals and
electrode active materials under section
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45X(b)(1)(J) and (M). If, however, a
taxpayer acquires extracted raw material
as a direct (or indirect) material cost, the
material costs may be included as
production costs consistent with the
rules provided under section 263A
regardless of whether the extracted
material is domestically- or foreignsourced.
With respect to direct and indirect
material costs, the Proposed Regulations
would have excluded direct and
indirect material costs from production
costs for both applicable critical
minerals and electrode active materials.
The Proposed Regulations excluded
material costs from production costs
based on an interpretation of the term
‘‘costs incurred by the taxpayer with
respect to production’’ in section
45X(b)(1)(J) and (M) as being limited to
value-added activities in the production
process. Electrode active materials and
applicable critical minerals differ from
all other eligible components described
in section 45X because their credit
amounts are calculated as a percentage
of production costs rather than
specifying a fixed dollar amount or rate.
The preamble to the Proposed
Regulations stated that the mere
purchase of materials does not itself add
value in a production process despite
being a necessary part of such process.
Furthermore, it is unlikely that Congress
intended to allow production costs
associated with applicable critical
minerals or electrode active materials to
be credited multiple times, due to the
high risk of fraud, waste, and abuse; the
administrative burden of preventing
these outcomes; and the limited
effectiveness in supporting domestic
production of new eligible components.
The exclusion of direct and indirect
material costs addressed these concerns.
Numerous commenters highlighted
the importance and appropriateness of
including material costs in production
costs. There was, however,
disagreement as to whether and to what
extent the costs of non-U.S. produced
constituent elements, materials, and
subcomponents used in the production
of electrode active materials should be
included in production costs. Some
commenters recommended that the
costs of all materials be included while
others urged limitations to only credit
materials produced domestically. One
commenter proposed that the final
regulations modify the proposed rule
regarding constituent elements,
materials, and subcomponents used in
the production of applicable critical
minerals to distinguish between imports
of materials otherwise available from
domestic sources and imported
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materials that are not available from
domestic sources.
The Treasury Department and the IRS,
after consultation with the Department
of Energy, have reconsidered the
proposed exclusion of all material costs
based on these comments. The final
regulations adopt a rule allowing
taxpayers that produce applicable
critical minerals and electrode active
materials as specified in the statute to
include direct and indirect materials
costs (as described in the referenced
section 263A regulations) in production
costs if certain conditions are met, but
only if those direct or indirect material
costs do not relate to the purchase of
materials that are an eligible component
at the time of acquisition (such as an
electrode active material or applicable
critical mineral). In addition, two
examples illustrating the revised
production costs rule are included in
§ 1.45X–3(e)(2)(iv)(A)(2).
In finalizing this rule, the Treasury
Department and the IRS considered the
provisions of section 45X and
determined this final rule appropriately
implements the statute as a whole.
Section 45X(a)(1) and (2) limit the
section 45X credit to the sum of the
credit amounts determined under
section 45X(b) with respect to each
eligible component that is produced by
the taxpayer and, during such taxable
year, sold to an unrelated person in the
taxpayer’s trade or business. The statute
allows a section 45X credit for the sale
of an applicable critical mineral or
electrode active material produced and
sold by the taxpayer in its business. The
section 45X credit for an applicable
critical mineral or electrode active
material is equal to 10 percent of the
costs incurred by the taxpayer with
respect to production, under section
45X(b)(1)(M) and (J), respectively.
In calculating a taxpayer’s costs
incurred in the production of applicable
critical minerals and electrode active
materials, it is necessary to consider
situations involving the integration of
eligible components (whether directly
made by the taxpayer or purchased from
another taxpayer) in the course of
producing an applicable critical mineral
or electrode active material. Generally,
integrating one eligible component into
another produced eligible component
results in two credits pursuant to
section 45X(d)(4) if the taxpayer
produced both, while integrating a
purchased eligible component into
another produced eligible component
will only result in a credit for the
eligible component produced by the
taxpayer. In the case of an applicable
critical mineral or electrode active
material, however, the section 45X
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credit calculation differs from the other
eligible components. Thus, further
examination was needed to determine
how a credit should be calculated in
such a case.
The Treasury Department and the IRS
considered the treatment of a vertically
integrated taxpayer. For example,
assume a taxpayer produced an
applicable critical mineral or electrode
active material and incurred $50X of
costs with respect thereto (EC 1) and
integrated EC 1 into a separate
applicable critical mineral or electrode
active material (EC 2), incurring an
additional $100X of costs with respect
to the production of EC 2 (total
production costs of $150X), with EC 2
ultimately being sold by the taxpayer to
an unrelated person. In calculating the
section 45X credit, pursuant to section
45X(d)(4), taxpayer is treated as having
sold an eligible component to an
unrelated person if such component is
integrated, incorporated, or assembled
into another eligible component which
is sold to an unrelated person. It is
important to note that section 45X
makes no distinction between integrated
eligible components that were
purchased or produced by the taxpayer.
As section 45X(d)(4) directs the
taxpayer to treat itself as selling both EC
1 and EC 2 to the unrelated person, it
is necessary to determine a credit for
each EC 1 and EC 2 when both were
produced by the taxpayer.
In this example, the $50X of
production costs attributable to EC 1
were not incurred with respect to the
production of EC 2, since the
production of EC 2—in other words, the
substantial transformation of EC 1 into
EC 2—does not include the production
of EC 1. Thus, the taxpayer would be
eligible for a total section 45X credit of
$15X: $5X (10% of $50X) for EC 1 and
$10X (10% of $100X) for EC 2. If the
$50X of production costs attributable to
EC 1 were included for both EC 1 and
EC 2, then the same costs would be
double credited. Double crediting would
result in the taxpayer generating a $20X
credit from the sale of EC 1 and EC2,
which would provide an increased
credit amount as compared to the credit
amount that should result from the
$150X of actual production costs
incurred (or, stated differently, a section
45X credit that was 13.33 percent of the
taxpayer’s actual $150X of production
costs in the example). The correct result
is taxpayer should be viewed as having
incurred $50X of production costs for
EC 1 and $100X of production costs for
EC 2, resulting in a $15X credit, which
also matches 10 percent of the
taxpayer’s actual production costs
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($150X) and does not create a double
crediting of costs.
Alternatively, consider a taxpayer
that, instead of producing EC 1,
purchases EC 1 for $60X. The taxpayer
then spends another $100X producing
EC 2, using EC 1. Similar to the
vertically integrated taxpayer, when the
taxpayer sells EC 2, pursuant to section
45X(d)(4), the taxpayer is treated as
having sold EC 1 and EC 2 to an
unrelated person. The difference is that
in this case the taxpayer did not
produce EC 1, and therefore the
taxpayer does not satisfy section
45X(a)(1)(A) for a section 45X credit for
the sale of EC 1. If the taxpayer were
permitted to include the costs for EC 1
($60X) in calculating the credit for EC
2, then the taxpayer would receive a
larger credit for producing EC 2 than if
the taxpayer had produced both EC 1
and EC 2. Without a clearer indication
in the statute that Congress intended to
treat these two fact patterns differently,
in a way that disadvantages vertically
integrated production, the statute as a
whole is appropriately implemented
when the result is the same credit
amount for EC 2 ($10X in these
examples) whether the taxpayer
purchases or produces EC 1.
In comparing the two results of these
examples under the final rule, the
vertically integrated taxpayer gets a
larger total section 45X credit by
directly engaging in more credit
generating activities, while the nonvertically integrated taxpayer receives a
section 45X credit commensurate with
its activities of producing EC 2, but no
credit for integrated eligible components
that it did not produce. These results are
consistent with the general rule of
section 45X(a)(1) and (2) and avoid
allowing taxpayers to use the same cost
in multiple credit calculations.
Section 45X(d)(2) provides that only
sales of eligible components produced
within the United States, or a United
States territory, are taken into account
for purposes of section 45X and is
additional support for the rule that does
not include foreign applicable critical
minerals or electrode active materials in
production costs, regardless of whether
purchased or produced by the taxpayer.
Allowing a foreign produced applicable
critical mineral or electrode active
material to increase the section 45X
credit conflicts with section 45X(d)(2),
particularly when considered with the
rule under section 45X(d)(4). The
Treasury Department and the IRS also
note that section 45X(d)(2) confirms that
treatment as an ‘‘eligible component’’ is
not dependent on where production
occurred, and so a foreign applicable
critical mineral or electrode active
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material is an eligible component
subject to the rule in section 45X(d)(4).
The final rule is also consistent with
the overall purpose of section 45X and
addresses the concerns described in the
preamble of the Proposed Regulations.
While the final rule adopts certain
commenters’ position that incurring
material costs is necessary and may add
value to a production process, the
Treasury Department and IRS maintain
that the inclusion of material costs must
be balanced against the risk of multiple
crediting of the same costs and the
creation of incentives that are contrary
to the purpose of section 45X. The final
rule accomplishes this balance. Further,
although applicable critical minerals
and electrode active materials, or any
other eligible component, produced
outside the United States do not pose a
risk of multiple crediting, permitting the
production costs of a non-U.S. produced
applicable critical mineral or electrode
active material to be included in
production costs would provide an
incentive for the purchase of electrode
active materials or applicable critical
minerals produced abroad, which is
inconsistent with the overall statutory
scheme and purpose of section 45X (that
is, to encourage domestic production of
eligible components). Thus, excluding
all costs of acquiring materials that are
eligible components (for example, an
applicable critical mineral or electrode
active material at the time of
acquisition) as a direct or indirect
material cost with respect to the
production of another applicable critical
mineral or electrode active material
appropriately implements the statute. It
is also appropriate to have the same
rules for applicable critical minerals and
electrode active materials with respect
to production costs, as the statutory
language regarding calculation of the
credit for applicable critical minerals
and electrode active materials is the
same.
These final regulations also include
certain substantiation requirements for a
taxpayer that is claiming a section 45X
credit with respect to an applicable
critical mineral or electrode active
material. The preamble to the Proposed
Regulations supported not including all
direct and indirect material costs by
referencing the possibility that the same
production costs may be credited
multiple times and the potential for
increased fraud and abuse related to
claiming the section 45X credit.
Proposed § 1.45X–4(c)(4) would have
required the taxpayer to document that
their product meets the criteria for an
applicable critical mineral as described
in section 45X(c)(6) with a certificate of
analysis (COA) provided by the taxpayer
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to the person to which the taxpayer sold
the applicable critical mineral. The
Treasury Department and the IRS
requested comments on this
substantiation requirement, including
whether a similar requirement should
be applied to electrode active materials.
Based on a review of the comments,
including comments specifically
suggesting certification statements, and
the need to balance the expansion of
costs included as production costs with
respect to the Proposed Regulations
while mitigating the risk of fraud, waste
and abuse, these final regulations revise
the substantiation rules in proposed
§ 1.45X–4(c)(4) for applicable critical
minerals and added substantiation rules
for electrode active materials in
§ 1.45X–3(e)(2)(iv)(C). In order to
include direct or indirect materials costs
as defined in § 1.263A–1(e)(2)(i)(A) and
(e)(3)(ii)(E) as production costs when
calculating a section 45X credit for the
production and sale of an applicable
critical mineral or electrode active
material, a taxpayer must include, as at
attachment to the return on which the
section 45X credit is claimed,
certifications from any supplier,
including the supplier’s employer
identification number and that is signed
under penalties of perjury, from which
the taxpayer purchased any constituent
elements, materials, or subcomponents
of the taxpayer’s eligible component,
stating that the supplier is not claiming
the section 45X credit with respect to
any of the material acquired by the
taxpayer, nor is the supplier aware that
any prior supplier in the chain of
production of that material claimed a
section 45X credit for the material. A
taxpayer must also prepare the
following information, and maintain
that information in the taxpayer’s books
and records: (1) a document that
provides an analysis of any constituent
elements, materials, or subcomponents
that concludes the material did not meet
the definition of an eligible component
(for example, did not meet the
definition of applicable critical mineral
or electrode active material) at the time
of acquisition by the taxpayer (the
document may be prepared by the
taxpayer or ideally by an independent
third-party); (2) a list of all direct and
indirect material costs and the amount
of such costs that were included within
the taxpayer’s total production cost for
each electrode active material or
applicable critical mineral, as
applicable; and (3) a document related
to the taxpayer’s production activities
with respect to the direct and indirect
material costs that establishes the
materials were used in the production of
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the electrode active material or
applicable critical mineral, as applicable
(the document may be prepared by the
taxpayer or ideally by an independent
third-party). Finally, the taxpayer must
provide any other information related to
the direct or indirect materials specified
in guidance and comply with the
directions for providing such
information as specified in guidance.
Failure to provide this documentation
with the return filing, or providing a
‘‘available upon request’’ statement, will
constitute a failure to substantiate the
claim. The Treasury Department and the
IRS have determined, in consultation
with the Department of Energy, that
these revisions to the Proposed
Regulations are necessary in order to
properly substantiate credit amounts
claimed under section 45X for
applicable critical minerals and
electrode active materials.
2. Battery Cells—Definition
a. In General
Consistent with section
45X(c)(5)(B)(ii), proposed § 1.45X–
3(e)(3)(i) would have defined the term
battery cell as an electrochemical cell
comprised of one or more positive
electrodes and one or more negative
electrodes, with an energy density of not
less than 100 watt-hours per liter, and
capable of storing at least 12 watt-hours
of energy.
Commenters asked for additional
guidance clarifying the volumetric
energy density calculation methodology
given the variety of battery shapes,
sizes, and construction methodologies
that exist in the market. The Treasury
Department and the IRS understand
these comments to be made with respect
to calculating energy density under
proposed § 1.45X–3(e)(3)(i)(B) and agree
that clarification would be helpful.
Energy density can refer to volumetric
energy density but is commonly used to
refer to gravimetric (mass-based) energy
density. These final regulations clarify
that energy density is referring to
volumetric energy density in § 1.45X–
3(e)(3)(i)(B).
One commenter asked that the final
rules provide that hydrogen fuel cells be
included under the definition of battery
cells by amending the definition of a
battery cell to waive the requirement
that a battery cell be capable of storing
at least 12 watt-hours of energy and
permitting this requirement to be met by
‘‘a large hydrogen storage tank.’’ The
Treasury Department and the IRS do not
have the authority to amend the
definition of a battery cell in the final
regulations or to waive the requirement
that it be capable of storing at least 12
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watt-hours of energy. For this reason,
the Treasury Department and the IRS
decline to adopt this comment in the
final regulations.
At least one commenter raised a
matter involving a vertically integrated
manufacturer of electric vehicles that,
together with a related person, operates
a battery cell production facility.
According to the commenter, the
commenter purchases battery cells from
this production facility and assembles,
integrates, and incorporates them into
battery modules at battery assembly
facilities located in other States.
Modules produced at these assembly
facilities are then shipped to various
electric vehicle production facilities. As
described by the commenter, the
process of taking completed battery cells
and integrating, incorporating, and
assembling them into completed battery
packs happens across several different
facilities, all of which are operated by
the commenter and its affiliates that are
separate legal entities. Each facility is
neither solely a battery module facility
nor solely a battery pack facility. The
commenter requested that the final
regulations allow a vertically integrated
manufacturer and related parties to elect
which facility will receive the credit in
situations where the manufacturer and
related parties complete all stages of the
production process and can substantiate
that the corresponding credit will not be
duplicated. The Treasury Department
and the IRS appreciate the complex
operations that may be inherent in
battery production. However, the statute
requires a determination of the taxpayer
that produces an eligible component
and does not authorize the relief
requested by the commenter.
b. Capacity Measurement
Proposed § 1.45X–3(e)(3)(ii) would
have provided that taxpayers must
measure the capacity of a battery cell in
accordance with a national or
international standard, such as IEC
60086–1 (Primary Batteries), or an
equivalent standard. Taxpayers can
reference the United States Advanced
Battery Consortium (USABC) Battery
Test Manual for additional guidance.
Several commenters agreed with the
proposed definition because it provided
taxpayers the ability and needed
flexibility to determine the appropriate
standard, but others recommended
additional guidance or information be
included in these final regulations. A
commenter requested that the final
regulations ‘‘retain the criteria that the
standard used by the taxpayer must be
one issued by a recognized standards
setting body.’’ While not specifically
using that language, these final
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regulations do maintain that concept by
continuing to require measurement in
accordance with a national or
international standard.
Another commenter requested that
the final regulations eliminate the
reference to ‘‘an equivalent standard’’ to
IEC 60068–1 because ‘‘IEC 60086–1 is
not applicable to rechargeable battery
chemistries, and it is unknown therefore
what an equivalent standard would be.’’
The Treasury Department and the IRS
have determined that this clarification is
unnecessary because the reference to
IEC 60068–1 or ‘‘an equivalent
standard’’ merely provides a nonexclusive example of an acceptable
national or international standard for
capacity measurement. These final
regulations therefore do not adopt the
commenter’s suggestion.
Other commenters suggested the
addition of various specific national or
international standards to the language
provided in proposed § 1.45X–3(e)(3)(ii)
regarding the standards to be used for
battery cell capacity measurement. The
Treasury Department and the IRS
understand the desire for assurance but
have determined that these proposed
additions, if included as examples, will
not add further clarity to the final
regulations. The Treasury Department
and the IRS further do not think that
there is a basis to include any of these
proposed additions as the exclusive
standard or standards for capacity
measurement. The final regulations
therefore do not adopt these
commenters’ suggestions regarding
particular national or international
standards to be used for capacity
measurement in § 1.45X–3(e)(3)(ii).
Another commenter recommended
that the final regulations require that
battery cell ‘‘capacity’’ must be
mathematically normalized to a 100hour discharge time, regardless of the
time otherwise dictated by the
appropriate national or international
standard. The Treasury Department and
the IRS do not think there is a basis to
adopt this requirement, as this would
displace other national or international
standards with a new requirement that
is not in the statute. Therefore, the
Treasury Department and the IRS
decline to adopt additional specific
standards in these final regulations
beyond those provided in the Proposed
Regulations.
Some commenters noted that the
USABC Battery Test Manual, which
proposed § 1.45X–3(e)(3)(ii) states may
be used for additional guidance
regarding measurement of the capacity
of a battery cell, is not applicable to all
battery cell applications and
technologies that may be eligible for the
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section 45X credit. One commenter
suggested removing the reference to the
USABC Battery Test Manual for this
reason. Because the inclusion of this
reference is intended to inform
taxpayers of a resource that may be
helpful in some cases, even if it may not
be applicable in all cases, the Treasury
Department and the IRS decline to
adopt this suggestion.
Another commenter suggested an
additional requirement to conduct a
performance test in a certified
laboratory once every three years to
verify the capacity of the battery cell. It
was unclear from the comment when
this performance testing would be
required. Section 45X requires the
production and sale of eligible
components. Because an eligible
component must meet the requirements
under section 45X at the time of sale, it
would be inappropriate to verify
capacity once every three years. Thus,
the Treasury Department and the IRS
decline to adopt this additional capacity
measurement requirement in the final
regulations.
3. Battery Modules—Definition
Under section 45X(c)(5)(B)(iii), the
term battery module, in the case of a
module using battery cells, is a module
with two or more battery cells which are
configured electrically, in series or
parallel, to create voltage or current, as
appropriate, to a specified end use, with
an aggregate capacity of not less than 7
kilowatt-hours (or, in the case of a
module for a hydrogen fuel cell vehicle,
not less than 1 kilowatt-hour). Similarly,
under section 45X(c)(5)(B)(iii), a battery
module with no cells means a module
with an aggregate capacity of not less
than 7 kilowatt-hours (or, in the case of
a module for a hydrogen fuel cell
vehicle, not less than 1 kilowatt-hour).
Consistent with section 45X(c)(5)(B)(iii),
proposed § 1.45X–3(e)(4)(i) would have
defined battery module to mean a
module described in proposed § 1.45X–
3(e)(4)(i)(A) (with cells) or (B) (without
cells) with an aggregate capacity of not
less than 7 kilowatt-hours (or, in the
case of a module for a hydrogen fuel cell
vehicle, not less than 1 kilowatt-hour).
Some commenters suggested lowering
the aggregate capacity limitation to
incentivize domestic production of all
battery types used in various industrial
applications. One commenter
recommended eliminating the capacity
thresholds entirely for battery modules
when used in medical or military
applications. While the Treasury
Department and the IRS appreciate
commenters’ desire to incentivize
domestic battery manufacturing, section
45X(c)(5)(B)(iii)(II) provides the
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aggregate capacity thresholds that
battery modules must meet in order to
be eligible components. The Treasury
Department and the IRS decline to
adopt the commenters’ request to alter
or eliminate the aggregate capacity
requirements for battery modules as
such revisions would be inconsistent
with the statute. Thus, these final
regulations adopt proposed § 1.45X–
3(e)(4)(i) without change.
a. Modules Using Battery Cells
Proposed § 1.45X–3(e)(4)(i)(A) would
have defined a module using battery
cells as a module with two or more
battery cells that are configured
electrically, in series or parallel, to
create voltage or current (as
appropriate), to a specified end use,
meaning an end-use configuration of
battery technologies. Under the
proposed rule, an end-use configuration
is the product that ultimately serves a
specified end use. It is the collection of
interconnected cells, configured to that
specific end-use and interconnected
with the necessary hardware and
software required to deliver the required
energy and power (voltage and current)
for that use. The preamble to the
Proposed Regulations explained that, as
applied to batteries commonly used in
electric vehicles, proposed § 1.45X–
3(e)(4)(i)(A) would have permitted a
credit for the production and sale of the
battery pack in an electric vehicle, but
it would not have permitted a credit for
the production of a module that is not
the end-use configuration. The Treasury
Department and the IRS requested
comments on this proposed
interpretation of the phrase ‘‘to a
specified end use’’ in section
45X(c)(5)(B)(iii)(I)(aa).
Many commenters raised concerns
with the interpretation of the phrase ‘‘to
a specified end use’’ in proposed
§ 1.45X–3(e)(4)(i)(A). Some commenters
asserted that requiring that modules be
in an end-use configuration would be
overly restrictive for certain product
categories. For example, certain types of
modules may be transported to the enduse site only partially assembled due to
safety considerations, with final
assembly performed by the battery
manufacturer, the customer, or a thirdparty contractor.
Similarly, a few commenters
expressed concern that no taxpayer may
be eligible for the battery module credit
in certain cases. One commenter
suggested that this result might occur if
module manufacturers do not
manufacture a pack in its end-use
configuration. Further, those who
purchase such items and convert them
to their end-use configuration may
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struggle to demonstrate their activities
amount to substantial transformation.
One commenter suggested changing
proposed § 1.45X–3(e)(4)(i)(A) to
provide that ‘‘an end-use configuration
is the product that ultimately serves a
specified end use—whether delivered
pre-assembled or assembled on-site.’’
Further, the commenter recommended
an additional sentence at the end of
proposed § 1.45X–3(e)(4)(i)(A) to
identify the section 45X claimant in
cases where assembly occurs by
someone other than the taxpayer.
Several commenters stated that
proposed § 1.45X–3(e)(4)(i)(A) created
confusion because the definition of
battery module could, in some
circumstances, include the items that
are referred to in industry as ‘‘battery
packs.’’ One commenter noted that
while battery cells and modules
predominantly originate from battery
manufacturers, battery packs are
assembled by electric vehicle
manufacturers before being installed in
electric vehicles.
Some commenters requested that, if
the definition of battery modules
includes battery packs in the case of
electric vehicle battery modules, the
process to transform what is
colloquially referred to in industry as a
battery module into what is known as a
‘‘battery pack’’ be clarified in the final
regulations to constitute disqualifying
minor assembly or ‘‘partial
transformation.’’ Another commenter
requested that the final regulations state
that the rules are agnostic as to the form
or manner in which a battery module
with cells is incorporated into the
electric vehicle.
Other commenters supported the
proposed definition of battery module
with cells, stating that this definition
appropriately captures the intention of
the section 45X credit. One commenter
asserted that the battery pack
production covered by the proposed
definition is a more valuable activity
than the production of a single battery
module and is the activity closer to the
downstream consumer.
The Treasury Department and the IRS
appreciate the comments received
regarding battery modules and have
determined, in close consultation with
the Department of Energy, that
additional clarification is needed.
Section 45X(c)(5)(B)(iii)(I)(aa) defines
battery module using battery cells as ‘‘a
module using battery cells, with two or
more battery cells which are configured
electrically, in series or parallel, to
create voltage or current, as appropriate,
to a specified end use[. . .].’’ Section
45X(c)(5)(B)(iii)(II) provides a capacity
threshold limitation of ‘‘[an] aggregate
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capacity of not less than 7 kilowatthours (or, in the case of a module for a
hydrogen fuel cell vehicle, not less than
1 kilowatt-hour)’’ that such battery
module using battery cells (as defined in
section 45X(c)(5)(B)(iii)(I)(aa)) must
meet.
In reviewing comments, the Treasury
Department and the IRS understand that
the explanation in the preamble of the
Proposed Regulations regarding
application to electric vehicles may not
have aligned with industry
understanding and the statutory text.
Upon review of the comments received,
the Treasury Department and the IRS
wish to restate that the requirement
found in section 45X(c)(5)(B)(iii)(I)(aa),
that battery modules using battery cells
that contain battery cells configured to
a specified end use, applies regardless
whether the items are typically called
‘‘battery modules’’ or ‘‘battery packs’’ in
industry practice. These final
regulations are therefore clarified to
provide that a battery module using
battery cells becomes an eligible
component upon first meeting the
requirements of section
45X(c)(5)(B)(iii)(I)(aa) and
(c)(5)(B)(iii)(II), notwithstanding when
this transformation may occur in a
manufacturing production chain.
At least one commenter requested a
rule allowing the entity that assembles
the pack to assign tax credits to the joint
venture that manufactured the module.
Alternatively, if the definition of
specified end use is not adopted with
respect to joint ventures, the regulations
should instead allow for joint venture
partners to assign battery-related section
45X credits to the joint venture as the
parties see fit, or in cases where the
parties do not choose to assign the
credits to one of the parents, the joint
venture itself. This comment is not
adopted as issues specific to joint
ventures are outside the scope of these
final regulations. For discussion of
‘‘produced by the taxpayer’’ and the
associated rules for who may claim the
section 45X credit, see Part II.B. of this
Summary of Comments and Explanation
of Revisions.
b. Modules With No Battery Cells
Proposed § 1.45X–3(e)(4)(i)(B) would
have defined the term ‘‘module with no
battery cells’’ as a product with a
standardized manufacturing process and
form that is capable of storing and
dispatching useful energy; that contains
an energy storage medium that remains
in the module (for example, it is not
consumed through combustion); and
that is not a custom-built electricity
generation or storage facility. This
proposed definition would allow battery
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technologies, such as flow batteries and
thermal batteries, to be eligible for the
section 45X credit, but would not
permit technologies that do not meet
this definition, such as standalone fuel
storage tanks or fuel tanks connected to
engines or generation systems, to qualify
as a module with no battery cells.
Several commenters supported the
proposed definition of a battery module,
and specifically the inclusion of thermal
batteries. Commenters also asked for
clarification regarding a technologyneutral application of the proposed
definition of a battery module. Other
commenters suggested specific
clarifications to the final regulations
regarding certain types of thermal
battery systems, such as thermal ice
storage or thermal bricks. Some
commenters requested that the final
regulations incorporate similar language
used in the section 48 proposed
regulations to facilitate this technologyneutral treatment. For example, these
commenters suggested that the final
regulations should adopt the language
in proposed § 1.48–9(e)(10)(ii) by
specifically stating that ‘‘batteries of all
types (such as lithium ion, vanadium
flow, sodium sulfur, and lead-acid)’’ are
eligible components. Commenters
asserted that there is symmetry between
the investment tax credits for energy
storage property and advanced
manufacturing credits for energy storage
products. Additionally, commenters
raised that technology-neutral treatment
aligns with Congressional intent to
establish eligibility criteria based on
performance thresholds, not technology.
The Treasury Department and the IRS,
in close consultation with the
Department of Energy, agree with
commenters that a battery module with
no battery cells does not require a
specific storage medium nor are there
chemistry-based requirements for
qualifying battery modules. However,
the Treasury Department and the IRS
decline to include specific language as
a non-exhaustive list of possible storage
mediums. Including a non-exhaustive
list of current storage mediums on an
industry-by-industry basis is not
practical and may inadvertently create
confusion for other emerging
technologies on whether those mediums
would qualify for the section 45X credit.
Some commenters disagreed with the
requirement in proposed § 1.45X–
3(e)(4)(i)(B) that the storage medium
remain in the module, asserting that the
requirement ‘‘may inadvertently
exclude technologies’’ such as
compressed air ‘‘that can deliver on the
intent of the regulations.’’ The Treasury
Department and the IRS decline to
amend proposed § 1.45X–3(e)(4)(i)(B) in
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response to this comment. The Treasury
Department and the IRS, in consultation
with the Department of Energy, have
determined that the proposed rule
appropriately implements the statute.
The requirement that the storage
medium remain in the module gives
meaning to both ‘‘battery’’ and to
‘‘module.’’ For batteries, this
requirement describes a feature common
to electrochemical and more nascent
types of batteries and distinguishes
batteries from technologies that rely on
fuel. For modules, this requirement
helps segregate qualifying technologies
from those that are self-contained and
not merely one component of a larger
system.
Manufacturing the constituent
components of battery modules without
manufacturing the entire energy storage
system does not result in the production
of a module with no battery cells under
the final regulations. For example, in
thermal energy storage applications, the
taxpayer must produce and sell the
entire system and not just the storage
medium. A manufacturer that only
produces a thermal storage medium (for
example, molten salt) in a thermal
energy storage system would not be
eligible for the credit. Requiring the
production of the entire energy storage
system from ‘‘energy in’’ through
‘‘energy out’’ provides similar treatment
for purposes of the section 45X credit to
the production of a battery module
using battery cells.
Numerous comments requested
additional clarification of ‘‘custom-built
electricity . . . storage facility.’’
Commenters noted that the definition in
proposed § 1.45X–3(e)(4)(i)(B) creates
ambiguity as to which modifications
made in order to meet site or use
specifications would trigger the
‘‘custom-built’’ disqualifier. Several
commenters asserted that the Proposed
Regulations create additional limitations
on battery modules without cells that do
not apply to the other eligible
components. Commenters contended
that the terms in the Proposed
Regulations, such as ‘‘manufacturing,’’
‘‘standardized,’’ and ‘‘not custom-built,’’
do not appear in the statutory text and
diverge from the general approach taken
by the Proposed Regulations with
respect to other eligible components.
Some commenters asserted that nearly
all thermal battery implementations are
associated with custom-built generation
and storage facilities.
These commenters requested that the
final regulations clarify that the eligible
components may be assembled with
other property to comprise a functioning
energy generation or storage facility.
Commenters also suggested additional
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85823
clarity regarding the physical
boundaries of a battery module and
thought that using the proposed
definition of ‘‘produced by the
taxpayer’’ would allow for an eligible
component to be assembled on-site,
such as battery modules with no battery
cells that are too heavy and large to
transport fully assembled. Commenters
asserted that most or all batteries will
require some amount of on-site
installation. Commenters generally
requested that the final regulations
provide a clear and principled
definition of ‘‘custom-built’’ that
continues to support a technologyneutral and inclusive implementation of
section 45X.
Commenters provided various
alternatives to further clarify the
definition of ‘‘custom-built’’ in the
Proposed Regulations. One commenter
recommended clarifying the definition
of ‘‘a custom-built electricity storage
facility’’ as ‘‘a facility (1) that contains
an energy storage medium and (2) of
which all, or substantially all, of the
integral components are designed
specifically for the facility and are not
interchangeable with components of
other facilities that utilize the same or
similar electricity storage technology.’’
Another commenter asked that the final
regulations clarify that a module with
no battery cells is not treated as custombuilt if modules are produced by the
taxpayer using the same or similar
components or property generally used
by the taxpayer to produce such
modules but in different configurations
or amounts to accommodate the storage
needs or the site layout applicable to the
storage asset. A commenter
recommended clarifying the definition
that a module with modular
components manufactured offsite may
undergo final assembly at its installation
site without being considered a custombuilt facility and include an example
regarding final assembly on site.
Another suggestion included clarifying
that modules with no cells are items of
property that must be combined with
other tangible personal property to store
energy.
Separately, a commenter noted that
for contract manufacturing
arrangements, ‘‘a routine order for offthe-shelf-property’’ is not eligible for the
section 45X credit. The commenter
suggested the final regulations provide
that an agreement will be treated as a
routine purchase order for off-the-shelf
property if the contractor is required to
make no more than de minimis
modifications to the property to tailor it
to the customer’s specific needs.
However, if the manufacturer does make
more than de minimis modifications,
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the module may be custom-built. The
commenter asserted that the proposed
rule sets up a complicated dichotomy
under which manufacturers of modules
with no battery cells who enter into
contract manufacturing arrangements
will have to establish an undefined
standard that are neither off the shelf
nor custom-built.
Commenters also provided specific
examples regarding whether certain
technologies or configurations would be
considered custom-built. For example,
physical site conditions at a customer’s
site may require that the same
components used for one pumped heat
energy storage (PHES) are differently
arranged for another PHES. The use of
the PHES by a customer may require
modified storage durations (for example,
20 hours versus 10 hours), which would
require additional storage media and
vessels. The commenter asserted that
this should not be considered custombuilt. Commenters also noted that, for
closed-loop pumped storage
hydropower systems, pipes and other
related components are otherwise
produced in a standardized process, and
neither resemble nor are functionally
equivalent to standalone fuel storage
tanks or fuel tanks connected to engines
or generation systems custom-built
electricity generation or storage facility.
Commenters also raised that these
differences are based on the topography
of the site where the system is located
and not on the intended function of
these components or the system as a
whole.
One commenter requested that the
Treasury Department and the IRS
include hydrogen fuel cell systems
under the definition of a battery module
using battery cells. Proposed § 1.45X–
3(e)(4)(i)(B) would define the term
‘‘module with no battery cells’’ as a
product with a standardized
manufacturing process and form that is
capable of storing and dispatching
useful energy, that contains an energy
storage medium that remains in the
module (for example, it is not consumed
through combustion), and that is not a
custom-built electricity generation or
storage facility.
In general, the Treasury Department
and the IRS appreciate the complexity
of the issues raised by commenters.
Given the myriad of technologies,
industry-specific applications, and
customary business practices, the final
regulations provide additional
clarifications. The Treasury Department
and the IRS understand the need for
clear, administrable rules for both
taxpayers and the IRS. The comments
also illustrate the impracticality of
providing rules to specifically address
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all situations. The Treasury Department
and the IRS, in close consultation with
the Department of Energy, have
determined that the definition provided
in proposed § 1.45X–3(e)(4)(i)(B) strikes
the appropriate balance between brightline rules and the necessary flexibility
for evolving industries. The Treasury
Department and the IRS therefore
decline to adopt suggested revisions to
the definition of ‘‘module with no
battery cells’’ in the final regulations.
The Treasury Department and the IRS,
in close consultation with the
Department of Energy, also have
determined that requiring battery
modules be modular in the sense that
they are both self-contained and not
highly customized appropriately
implements the statutory definition
provided in section 45X(c)(5)(B)(iii).
Because of this, the preamble to the
Proposed Regulations further clarified
that this proposed definition would
allow battery technologies such as flow
batteries and thermal batteries to be
eligible for the section 45X credit, but it
would not permit technologies that do
not meet this definition such as
standalone fuel storage tanks or fuel
tanks connected to engines or
generation systems to qualify as a
module with no battery cells. For these
reasons, the Treasury Department and
the IRS decline to adopt this comment
in the final regulations.
One commenter recommended
adopting the definition of modules
using battery cells for the definition of
modules with no battery cells, with the
addition that the module should
receive, store, and deliver energy for
conversion to electricity. However,
adopting the commenter’s
recommended definition would not be
appropriate for modules with no battery
cells because the definition of modules
using battery cells requires the inclusion
of battery cells in the module.
Accordingly, The Treasury Department
and the IRS decline to adopt the
commenter’s recommendation.
The Treasury Department and the IRS
agree with commenters who suggest that
the examples illustrating the contrast
between ‘‘substantial transformation’’
and disqualifying minor assembly,
explained in Part II.B. of this Summary
of Comments and Explanation of
Revisions provide useful guidelines for
taxpayers and the IRS in determining
what is a standardized manufacturing
process and not a custom-built
electricity generation or storage facility.
Thus, incidental onsite assembly of
prefabricated modular components for
final assembly that are generally
produced in the ordinary course of a
taxpayer’s trade or business would
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constitute a standardized manufacturing
process for purposes of § 1.45X–
3(e)(4)(i)(B). Battery modules with no
battery cells that undergo a substantial
transformation onsite or are specially
manufactured for a single customer
would constitute a custom-built
electricity generation or storage facility.
The Treasury Department and the IRS
decline to provide a de minimis
threshold which would exclude certain
manufacturing or configurations that
would otherwise qualify for the section
45X credit using the principles
described in Part II.B. of this Summary
of Comments and Explanation of
Revisions.
c. Capacity Measurement
Proposed § 1.45X–3(e)(4)(ii)(A) would
have provided that, for modules using
battery cells, taxpayers must measure
the capacity of a module with a testing
procedure that complies with a national
or international standard published by a
recognized standard setting
organization. The capacity of a battery
module using battery cells may not
exceed the total capacity of the battery
cells in the module. Proposed § 1.45X–
3(e)(4)(ii)(B) would have provided that,
for modules with no battery cells,
taxpayers must measure the capacity
using a testing procedure that complies
with a national or international standard
published by a recognized standard
setting organization. If no such standard
applies to a type of module with no
battery cells, taxpayers must measure
the capacity of such module as the
Secretary may prescribe in regulations
or other guidance. The Treasury
Department and the IRS requested
comments on what recognized national
or international standards are currently
available for measuring capacity of
modules with no battery cells and
whether further guidance may be
required.
One commenter suggested that the
aggregate capacity measurement
outlined in section 45X and the
Proposed Regulations for battery
modules is challenging to apply in the
context of thermal battery modules with
no cells. Another commenter explained
that battery capacity measurements are
subject to variations contingent upon
environmental conditions during
measurement and that capacity
assessment for both battery cells and
battery modules must occur within a
standard testing environment. Some
commenters agreed with the approach
in the Proposed Regulations of allowing
taxpayers to determine the appropriate
national or international standards
because taxpayers are in a better
position to determine the appropriate
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standard. Moreover, this approach
provides the flexibility necessary for
emerging technologies to qualify for the
credit. Such commenters requested that
the final regulations retain the criteria
that the taxpayer must use a testing
procedure issued by a recognized
standards setting body.
Other commenters explained that the
Treasury Department and the IRS
should prescribe a flexible approach to
capacity measurement for battery
modules with no battery cells such that
different technologies are appropriately
measured and provide alternative
testing procedures that complies with a
national or international standard
published by a recognized standard
setting organization that is relevant and
applicable for the varying technologies.
One commenter asserted that, in their
view, such standards may include
American Society of Mechanical
Engineers (ASME) or International
Standards Organization (ISO), but
specifically recommended that capacity
should be measured based on nameplate
capacity as provided in 40 CFR 96.202
in the absence of a bright-line standard.
Another commenter supported this
approach because of alleged difficulties
in determining the minimum capacity of
battery modules with no cells before
they are placed in service. Other
commenters suggested various
standards, including ASME PTC 53;
ANSI/American Society of Heating,
Refrigerating and Air-Conditioning
Engineers (ASHRAE) Standard 94.2–
2010; and ASHRAE 94 testing methods
(specifically, 94.1,94.2, and 94.3).
Another commenter recommended that
the final regulations require use of a
conversion factor of 1.16RT/kW = 14/12
and recommended that the regulations
provide a capacity measure if there is no
national or international standard for a
given technology.
A different commenter raised
concerns regarding capacity
measurement for battery modules with
no battery cells and suggested adding to
proposed § 1.45X–3(e)(4)(iii)(B), ‘‘. . .
The capacity of each battery module is
expressed on a kilowatt-hour basis in
the actual useful energy unit that is
specific to the battery module without
cells. For example, both thermal and
thermochemical battery modules have
their capacity expressed on a kilowatthour-thermal basis.’’
The Treasury Department and the IRS,
after consultation with the Department
of Energy, have determined that
taxpayers producing thermal and
thermochemical battery modules with
no battery cells must convert the energy
storage to a kilowatt-hour basis and
provide both methodology and testing
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regarding this conversion. Taxpayers
must maintain this testing and
methodology as part of books and
records under section 6001. However,
the kilowatt-hour conversion cannot
exceed the direct conversion of the total
nameplate capacity of the thermal
battery module to kilowatt-hours (the
capacity that is sold to the consumer).
The taxpayer claiming the section 45X
credit must use the same methodology
consistently, subject to any updated
standard of the same methodology and
testing, for battery modules (with or
without cells) sold in the taxpayer’s
trade or business. The final regulations
incorporate these clarifications in
§ 1.45X–3(e)(4)(ii) regarding testing and
methodology with respect to battery
modules.
One commenter requested the final
rules remove the requirement that the
capacity of a battery module not exceed
the total capacity of the battery cells in
the module because the different
structures of each eligible component
may affect the capacity measurement of
the module. The Treasury Department
and the IRS, in consultation with the
Department of Energy, have determined
that this rule serves an important
function in reducing the potential to
manipulate testing conditions in the
measurement of capacity and in
encouraging the application of reliable
measurement standards for battery cells.
The Treasury Department and the IRS
therefore decline to remove the
requirement that the capacity of a
battery module not exceed the total
capacity of the battery cells in the
module.
Another commenter requested that
the final regulations provide that the
entity that manufactures a battery
module that exceeds the statutory 7
kilowatt-hours threshold limitation in
section 45X(c)(5)(B)(iii)(II) receives the
$10/kWh module credit. As discussed
in Part IV.E.3.a. of this Summary of
Comments and Explanation of
Revisions, the taxpayer that produces
and sells the eligible component (when
a battery module first becomes the
eligible component) may claim the
section 45X credit. Whether an eligible
component is produced by the taxpayer
is generally discussed in Part II.B. of
this Summary of Comments and
Explanation of Revisions.
A commenter noted that proposed
§ 1.45X–3(e)(4)(i), which provides the
definition for battery modules ‘‘with an
aggregate capacity of not less than 7
kilowatt-hours,’’ aligns with section
30D. The language in section 30D is
based on the capacity of the complete
battery installed on the vehicle. The
commenter asserted that the parallel
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language describing the capacity
threshold in section 45X and in section
30D indicates that the eligible
component for the section 45X credit for
battery modules are the items
commonly referred to in industry as
‘‘battery packs.’’ This comment is not
adopted. As explained in Part IV.E.3.a.
of this Summary of Comments and
Explanation of Revisions, a battery
module (within the meaning of section
45X) is an eligible component,
regardless of whether industry
nomenclature would describe that
module as a ‘‘battery pack.’’
Proposed § 1.45X–3(e)(5)(i) would
have provided a special rule where the
capacity determined with respect to a
battery cell or battery module must not
exceed a capacity-to-power ratio of
100:1. At least one commenter requested
clarification on the definition of
‘‘capacity to power ratio.’’ The
commenter noted that term could mean
either the maximum energy that the
battery cell and module can hold or the
maximum output that the battery cell
and module can release instantaneously.
The final regulations retain the
proposed rule defining ‘‘capacity to
power ratio’’ in § 1.45X–3(e)(5). The
Treasury Department and the IRS
confirm that the rule, with respect to a
battery cell or battery module, the
capacity-to-power ratio refers to both
the power and the capacity as a cap on
the section 45X credit amount, rather
than an eligibility criterion. Power is the
battery cell’s maximum rate of
discharge; capacity is the maximum
amount of energy the component can
store.
F. Phase-Out Rule
Consistent with section 45X(b)(3),
proposed § 1.45X–3(f)(1) would have
provided that, in the case of any eligible
component sold after December 31,
2029, the amount of the section 45X
credit determined with respect to such
eligible component is equal to the
product of the amount determined
under proposed § 1.45X–3(b) through (e)
with respect to such eligible component,
multiplied by the phase out percentage
under proposed § 1.45X–3(f)(2).
Consistent with section 45X(b)(3)(C),
proposed § 1.45X–3(f)(3) would have
provided that the phase out rules
described in proposed § 1.45X–3(f)(1)
and (2) apply to all eligible components
except applicable critical minerals.
Proposed § 1.45X–3(f)(2) would have
provided the phase out percentage is
equal to 75 percent for eligible
components sold during calendar year
2030; 50 percent for eligible
components sold during calendar year
2031; 25 percent for eligible
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components sold during calendar year
2032, and zero percent for eligible
components sold after calendar year
2032.
A commenter expressed concern that
the phase out rules create disparate
treatment of an applicable critical
mineral produced by a taxpayer that
with further value-added processing
would result in the production of an
electrode active material and provided
the example of the production of natural
graphite active anode materials. The
commenter stated that if the production
of the applicable critical mineral and
production of the electrode active
material occurs in a vertically integrated
company, the taxpayer may only claim
a section 45X credit for one component.
Thus, the commenter requests the phase
out rule be modified to not apply to
electrode active materials.
The Treasury Department and the IRS
decline to adopt the commenter’s
request. The Treasury Department and
the IRS do not have the authority to
allow a section 45X credit for the
production of an electrode active
material in amounts in excess of what
is permitted under section 45X(b)(3).
For these reasons, these final
regulations adopt proposed § 1.45X–3(f)
without modification.
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V. Applicable Critical Minerals
Proposed § 1.45X–4 would have
provided definitions for the listed
applicable critical minerals (generally in
accordance with section 45X(c)(6)), the
credit amounts, and rules regarding
production costs for purposes of
determining credit amounts.
Commenters addressed certain aspects
of these proposed rules, as described in
this Part V. of the Summary of
Comments and Explanation of
Revisions. These final regulations
generally adopt the rules as proposed in
§ 1.45X–4, with the modifications
described in this Part V. of the Summary
of Comments and Explanation of
Revisions.
A. In General
Section 45X(c)(6) defines applicable
critical minerals that are eligible
components for purposes of the section
45X credit. Consistent with section
45X(c)(6), proposed § 1.45X–4 provides
that an applicable critical mineral
means any of the minerals that are listed
in section 45X(c)(6) and defined in
proposed § 1.45X–4(b).
Several commenters requested that
the final rules generally clarify and
expand the eligibility of metals and
metal alloys (including alloys made
from primary and secondary metal
production) under the purity
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requirements. Section 45X generally
provides specific minimum purity
requirements or forms for applicable
critical minerals. Metals or metal alloys
under the specified purity requirements
that do not meet specified forms do not
qualify for the section 45X credit. Thus,
the Treasury Department and the IRS do
not have the statutory authority to add
additional metals and alloys to the list
of applicable critical minerals in these
final regulations.
B. Definitions
1. Aluminum
Section 45X(c)(6)(A) provides that
aluminum that is converted from
bauxite to a minimum purity of 99
percent alumina by mass or purified to
a minimum purity of 99.9 percent
aluminum by mass qualifies as an
applicable critical mineral. Proposed
§ 1.45X–4(b)(1) would have defined
aluminum to mean aluminum that is
converted from bauxite to a minimum
purity of 99 percent alumina by mass or
purified to a minimum purity of 99.9
percent aluminum by mass. The
preamble to the Proposed Regulations
stated that section 45X(c)(6)(A) should
be interpreted in light of the dynamics
of the aluminum industry and the role
that critical materials like aluminum
play in the renewable energy and energy
storage industry. Proposed § 1.45X–
4(b)(1) would have interpreted section
45X(c)(6)(A) to mean aluminum,
including commodity-grade aluminum,
described in section 45X(c)(6)(A)(i) and
(ii). Proposed § 1.45X–4(b)(1) would
have defined ‘‘commodity-grade
aluminum’’ as aluminum that has been
produced directly from aluminum that
is described in proposed § 1.45X–
4(b)(1)(i) or (ii), is limited to primary
production of unwrought forms, and is
in a form that is sold on international
commodity exchanges, which would
include commercial grade aluminum
that is 99.7 percent aluminum by mass.
A commenter expressed support for
the definition of aluminum in the
proposed rule, and stated that the
statutory definition could be read to
apply only to the refining of alumina
and, as a result, not benefit domestic
primary aluminum producers, nor
achieve the spirit of the legislation to
increase domestic manufacturing. The
commenter noted confusion with the
statutory definition, which stated in
part, that aluminum ‘‘which is
converted from bauxite to a minimum
purity of 99 percent alumina by mass’’
meets the definition of aluminum—
however, alumina is converted from
bauxite, not aluminum. Thus, the
commenter noted that the proposed rule
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correctly states the primary aluminum
production process and will help
United States primary aluminum
producers bolster domestic operations
and strengthen global competitiveness.
A commenter requested that the final
regulations provide that aluminum
oxide (alumina) is a form of aluminum
for the purposes of section
45X(c)(6)(A)(i). The Treasury
Department and the IRS note that
section 45X(c)(6)(A)(i) provides
eligibility for the credit for aluminum
that is converted from bauxite to a
minimum purity of 99 percent alumina
by mass. One commenter requested that
the definition of primary aluminum
include molten metal. The Treasury
Department and the IRS note that
section 45X(c)(6)(A)(ii) does not restrict
the form of aluminum purified to a
minimum purity of 99.9 percent
aluminum by mass. One commenter
proposed lowering the eligible purity for
aluminum to 96 percent. The Treasury
Department and the IRS view this
request as inconsistent with the statute.
A few commenters requested the
definition of primary aluminum include
all unwrought primary aluminum
smelted from aluminum oxide (that is,
alumina). One commenter requested
that the final rules clarify that
aluminum produced through secondary
production is eligible for the section
45X credit. The preamble to the
Proposed Regulations stated that
proposed § 1.45X–4(b)(1) clarifies that
the term ‘‘commodity-grade aluminum’’
is limited to primary production of
unwrought forms by specifying that
commodity-grade aluminum must be
‘‘produced directly’’ from certain forms
of aluminum. The Treasury Department
and the IRS understand that the ability
to ascertain and substantiate the process
or processes used at an earlier point in
the lifecycle of feedstock aluminum for
secondary production is limited. The
Treasury Department and the IRS are
concerned that such limitations would
pose significant substantiation and
administrability issues if secondary
production were permitted for
commodity-grade aluminum under
proposed § 1.45X–4(b)(1).
A few commenters requested that the
final rules replace the requirement that
commodity-grade aluminum be ‘‘in a
form sold on international commodity
exchanges’’ with the requirement that
such aluminum ‘‘has the ability to meet
the chemical specifications of
aluminum sold on international
commodity exchanges,’’ because not all
aluminum sold to third-party customers
is traded through the London Metal
Exchange, which imposes the shape
requirements. The commenters state
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that commercial grade aluminum is
made into products that are alloyed to
different specifications and shapes that
are not traded through commodity
markets, and the final rules should not
distinguish among the end markets.
Although the Treasury Department and
the IRS view the requirement that
commodity-grade aluminum be ‘‘in a
form sold on international commodity
exchanges’’ as providing important
clarity and certainty for taxpayers and
the IRS, as well as an objective and
observable standard to determine
eligibility, the Treasury Department and
the IRS will continue to consider these
comments as they work to finalize
proposed § 1.45X–4(b)(1).
One commenter requested the final
regulations clarify ‘‘aluminum that is
converted from alumina with a
minimum purity of 99 percent on a fired
basis should qualify as an applicable
critical mineral.’’ The Treasury
Department and the IRS think that the
additional language specifying whether
the purity is measured on a fired basis
or dried basis is not necessary due to the
specific purity standards already listed
in section 45X and the proposed rules.
In addition, although these terms are
often included on a Certificate of
Analysis (COA), the Treasury
Department and IRS anticipate that
using these terms may cause confusion
in circumstances in which these terms
are not included on a COA.
With respect to all of the comments
related to the definition of aluminum,
the Treasury Department and the IRS
have determined that additional
consideration is necessary prior to
finalizing proposed § 1.45X–4(b)(1),
which the Treasury Department and the
IRS intend to do at a later date. For that
reason, § 1.45X–4(b)(1) is reserved in
these final regulations.
2. Neodymium
Consistent with section 45X(c)(6)(R),
proposed § 1.45X–4(b)(18) would have
provided that the term neodymium
means neodymium that is converted to
neodymium-praseodymium oxide that
is purified to a minimum purity of 99
percent neodymium-praseodymium
oxide by mass; converted to neodymium
oxide that is purified to a minimum
purity of 99.5 percent neodymium oxide
by mass; or purified to a minimum
purity of 99.9 percent neodymium by
mass.
One commenter requested that the
final rules provide that the following are
eligible for the section 45X credit: (1)
neodymium if purified to the industry
standard minimum purity of 99.0
percent neodymium by mass; (2)
neodymium converted to neodymium-
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praseodymium and purified to a
minimum purity of 99.0 percent
neodymium-praseodymium by mass; (3)
neodymium-praseodymium that is
purified to a minimum purity of 99.0
percent neodymium-praseodymium by
mass; and (4) neodymium-iron-boron
alloy or neodymium-praseodymiumiron-boron alloy purified to 99.0 percent
by mass. The Treasury Department and
the IRS do not have the statutory
authority to modify the definition of
neodymium or to modify purity
percentages in proposed § 1.45X–
4(b)(18) and these final regulations
adopt this proposed rule without
change.
3. Vanadium
Consistent with section 45X(c)(6)(X),
proposed § 1.45X–4(b)(24) would have
provided that the term vanadium means
vanadium that is converted to
ferrovanadium or vanadium pentoxide.
One commenter requested that the
definition of vanadium includes
vanadium when it is purified to a
minimum purity of 99 percent
vanadium by mass. The Treasury
Department and the IRS do not have the
statutory authority to modify the
definition of vanadium to include purity
percentages, and these final regulations
adopt this proposed rule without
change.
4. Magnesium
Consistent with section
45X(c)(6)(Z)(x), proposed § 1.45X–
4(b)(26)(x) would have provided that the
term magnesium means magnesium
purified to a minimum purity of 99
percent by mass. One commenter
requested that the definition of
magnesium be expanded to include
magnesium oxide and magnesium
hydroxide at purity levels that range
from 90–98 percent. The Treasury
Department and the IRS do not have the
statutory authority to modify the
definition of magnesium or to modify
purity percentages in proposed § 1.45X–
4(b)(26)(x), and these final regulations
adopt this proposed rule without
change.
C. Credit Amount—in General
Section 45X(b)(1) generally provides
the credit amount determined with
respect to any eligible component,
including any eligible component it
incorporates, subject to the credit phase
out provided at section 45X(b)(3).
Section 45X(b)(3)(C) provides that the
credit phase out does not apply with
respect to any applicable critical
mineral.
Section 45X(b)(1)(M) provides that, in
the case of any applicable critical
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mineral, the credit amount is an amount
equal to 10 percent of the costs incurred
by the taxpayer with respect to
production of such mineral. Proposed
§ 1.45X–4(c)(3) would have provided
that the costs incurred for purposes of
determining the credit amount includes
costs as defined in § 1.263A–1(e) that
are paid or incurred within the meaning
of section 461 of the Code by the
taxpayer for the production of an
applicable critical mineral only. As
explained in the preamble to the
Proposed Regulations, this rule has the
effect of excluding any costs incurred
after the production of the applicable
critical mineral. The Proposed
Regulations applied section 263A and
the section 263A regulations solely to
identify the types of costs that are
includible in production costs incurred
for purposes of computing the credit
amount. The Proposed Regulations did
not apply section 263A or the section
263A regulations for any other
purposes, such as to determine whether
a taxpayer is engaged in production
activities.
Under the Proposed Regulations,
direct or indirect materials costs, as
defined in § 1.263A–1(e)(2)(i)(A) and
(e)(3)(ii)(E), respectively, and any costs
related to the extraction or acquisition
of raw materials would not be taken into
account as production costs. The
Proposed Regulations would have
attributed a wide range of costs to the
production of an applicable critical
mineral as costs incurred in producing
the applicable critical mineral,
including, but not limited to, labor,
electricity used in the production of the
applicable critical mineral, storage
costs, depreciation or amortization,
recycling, and overhead. However, the
cost of acquiring the raw material used
to produce the applicable critical
mineral; the cost of materials used for
conversion, purification, or recycling of
the raw material; and other material
costs related to the production of the
applicable critical mineral were not
taken into account.
The Proposed Regulations provided a
credit for the costs associated with
production activities that add value to
the applicable critical mineral and are
conducted by the taxpayer that
produces the applicable critical mineral.
Because purchasing raw materials may
enable a taxpayer to produce an
applicable critical mineral but it is not
by itself an activity that adds value, the
Proposed Regulations excluded material
costs from creditable costs. This
exclusion of material costs mitigates the
risk of crediting the same costs multiple
times.
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Many commenters made similar
arguments with respect applicable
critical minerals and the inclusion of
direct material costs as defined in
§ 1.263A–1(e)(2)(i)(A), indirect material
costs as defined in § 1.263A–
1(e)(3)(ii)(E), and costs related to the
extraction of raw materials in their
production costs for purposes of
determining the credit. Commenters
argued that there was insufficient
textual support for a limitation, and any
such limitation would work against the
purposes of the credit. As with electrode
active materials, commenters asserted
that direct costs were often a substantial
or predominant cost of producing
applicable critical minerals. Denying
credits for these costs would, in the
opinion of commenters, be contrary to
the goal of incentivizing extraction and
production of applicable critical
minerals. Commenters also disputed
that direct and indirect costs are not
incurred in value-adding activities.
A number of commenters also
disputed that a credit should only be
available once for the same material.
Several commenters argued that the
statutory language and structure did, at
a minimum, give taxpayers credits for
production of applicable critical
minerals and, when those applicable
critical minerals were used to produce
electrode active materials, additional
credits for the production of the
electrode active materials. According to
these commenters, the dual credits
reflect the fact that these are separate
productive activities for which section
45X provides separate credits. A
commenter also urged that producers of
applicable critical minerals be able to
claim a credit if they can establish that
the applicable critical minerals used in
the production were acquired from
production or extraction outside the
United States and thus were previously
ineligible for a section 45X credit. For
applicable critical minerals that are
produced using other precursor
applicable critical minerals, a
commenter recommended that the cost
of the precursor applicable critical
minerals be excluded from the cost of
producing the applicable critical
minerals.
A number of commenters proposed
solutions to the problem of crediting the
same production costs multiple times.
One solution commenters proposed was
to reduce the basis of property for which
a credit has been claimed by an
upstream producer. Commenters also
proposed a system under which a
taxpayer would only be eligible for a
credit on costs of material for which no
other taxpayer had previously claimed a
credit. This arrangement could be
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administered through a system of
certification or tracing in which
taxpayers would be required to verify
that its suppliers had not claimed
previously claimed credits for costs
associated with the same materials for
which the taxpayer is claiming credits.
Commenters generally agreed that
producers should not need to be
vertically integrated to claim credits.
Instead, these commenters argued that
each producer in the supply chain
should be eligible to claim credits for,
at a minimum, their addition to the
value of the applicable critical minerals
produced.
Some commenters addressed the
requirement in section 45X(d)(2) that
extraction or production of applicable
critical minerals occur within the
United States or a possession of the
United States. A commenter urged that
only the cost of extraction of applicable
critical minerals occurring in the
geology of the United States or its
possessions should qualify for the
section 45X credit in calculating the
cost of production of such mineral.
Other commenters urged that credits be
permitted to taxpayers that process
applicable critical minerals extracted
outside the United States provided that
the processing occurs within the United
States or its possessions. One
commenter proposed that the final
regulations modify the proposed rule
regarding constituent elements,
materials, and subcomponents used in
the production of applicable critical
minerals to distinguish between imports
of materials otherwise available from
domestic sources and imported
materials that are not available from
domestic sources. Although this
suggested proposal deviates from the
Proposed Regulations, it would still
allow for credits associated with costs of
foreign-sourced constituent elements,
materials, and subcomponents but only
where domestic alternatives are not
available.
Three commenters supported the
Proposed Regulations’ exclusion of
direct, indirect, and extraction costs
from production costs eligible for the
credit. One commenter was concerned
that a contrary rule would invite fraud,
waste, and abuse and that, in the case
of extraction costs, would be difficult to
administer without the creation of a
tracing system. Two commenters
specifically identified extraction costs
as something that should be excluded
from the costs of production for the
credit. One recommended more explicit
clarification that the cost of the
extraction of raw materials is excluded
from creditable production costs.
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With respect to these comments, refer
to Part IV.E.1.e. of this Summary of
Comments and Explanation of
Revisions, which describes the revisions
to the proposed rules for production
costs of both electrode active materials
and applicable critical minerals that are
in these final regulations.
Proposed § 1.45X–4(c)(4) would have
required the taxpayer to document that
their product meets the criteria for an
applicable critical mineral as described
in section 45X(c)(6) with a certificate of
analysis provided by the taxpayer to the
person to which the taxpayer sold the
applicable critical mineral. The
Treasury Department and the IRS
requested comments on this
substantiation requirement, including
whether a similar requirement should
be applied to electrode active materials.
With respect to this proposed rule, refer
to Part IV.E.1.e. of this Summary of
Comments and Explanation of
Revisions, which describes the revisions
to the proposed rules for substantiation
of both electrode active materials and
applicable critical minerals that are in
these final regulations.
VI. Other Comments Received
Regarding Ancillary Issues
In response to the Proposed
Regulations, certain commenters
responded concerning the application of
sections 6417 and 6418. A commenter
noted that the Proposed Regulations do
not explain the process for making a
section 6417 elective pay election for a
section 45X credit and recommends the
final regulations provide more details
and guidance on the payment amount
and potential considerations. Another
commenter requested additional
clarification on application procedures,
methods, reporting items, refund/
transfer periods, and other
supplementary procedures relevant to
the provisions of section 6417. Similar
comments were received with respect to
the transferability provisions of section
6418 that may apply to the section 45X
credit. A separate commenter requested
clarification regarding a transfer of tax
credits from vessel manufacturer
(shipyard) to vessel owner, and the
possible effects of different ownership
arrangements of related offshore wind
vessels.
The comments related to sections
6417 and 6418 are outside the scope of
these final regulations under section
45X, as the comments relate to rules
under sections 6417 and 6418. Final
regulations under sections 6417, 89 FR
17546 (March 11, 2024), corrected in 89
FR 26786 (April 16, 2024), and
corrected in 89 FR 66562 (August 16,
2024) and 6418, 89 FR 34770 (April 30,
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2024), corrected in 89 FR 67859 (August
22, 2024), are available and provide
relevant information on the elective
payment election under section 6417,
making a transfer election under section
6418, and the impacts of various
ownership structures on the ability and
requirements when making an election
under either section 6417 or section
6418.
A commenter suggested that the
Proposed Regulations should have
addressed whether the section 45X
credit can be carried back to offset prior
year tax liabilities or whether it can be
transferred to other taxpayers. The
commenter suggested that the final
regulations allow the credit to be carried
back for a reasonable period of time or
to be transferred to other eligible
taxpayers under certain conditions and
limitations. This request is outside the
scope of these final regulations, but as
a clarification, section 39 of the Code
describes rules related to the carryback
and carryforward of unused credits,
including section 39(a)(4) which
provides a 3-year carryback period for
any applicable credit (as defined in
section 6417(b)). Section 1.6418–5(h)
also provides a rule clarifying that a
transferee of a specified credit portion
under section 6418 can apply section
39(a)(4) to the extent the specified credit
portion is described in section 6417(b)
(list of applicable credits, taking into
account any placed in service
requirements in section 6417(b)(2), (3),
and (5)).
A commenter requested that the final
regulations define what constitutes a
disposition or a cessation of eligibility
for the purpose of recapturing the credit
within five years of being placed in
service. According to the commenter,
the final rules should define the terms
‘‘disposition’’ and ‘‘cessation of
eligibility’’ and provide examples and
exceptions. As a clarification, the
section 45X credit is not subject to the
recapture provisions of section 50 of the
Code because it is not an investment
credit under section 46 of the Code.
Further, there is no statutory authority
under the provisions of section 45X to
require recapture of the credit. Thus,
these final regulations do not include
any rules related to recapture.
A commenter noted that the Proposed
Regulations do not address whether the
section 45X credit can be specially
allocated to certain partners or whether
the credit can be modified by a
partnership agreement for partnerships
that produce and sell eligible
components, possibly ‘‘creating
inconsistencies or unfairness for some
partners who may have different
interests or expectations.’’ The
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commenter requested that the final
regulations include a rule allowing the
section 45X credit to be specially
allocated or modified by a partnership
agreement. Because the commenter’s
request is addressed under section 704
and § 1.704–1(b)(4)(ii) and does not
relate to credit eligibility under section
45X, the Treasury Department and IRS
decline to adopt a rule addressing
partnership allocations in these final
regulations.
VII. Severability
If any provision in this rulemaking is
held to be invalid or unenforceable
facially, or as applied to any person or
circumstance, it shall be severable from
the remainder of this rulemaking, and
shall not affect the remainder thereof, or
the application of the provision to other
persons not similarly situated or to
other dissimilar circumstances.
Applicability Dates
These regulations apply to eligible
components for which production is
completed and sales occur after
December 31, 2022, and during taxable
years ending on or after October 28,
2024. Taxpayers may choose to apply
these regulations to eligible components
for which production is completed and
sales occur after December 31, 2022, and
during taxable years ending before
October 28, 2024, provided that
taxpayers follow these regulations in
their entirety and in a consistent
manner.
Effect on Other Documents
Section 5.05(2) of Notice 2023–18 and
section 3 of Notice 2023–44, which
relate to the interaction between
sections 45X and 48C, are superseded
for eligible components for which
production is completed and sales occur
after October 28, 2024.
Special Analyses
I. Regulatory Planning and Review
Pursuant to the Memorandum of
Agreement, Review of Treasury
Regulations under Executive Order
12866 (June 9, 2023), tax regulatory
actions issued by the IRS are not subject
to the requirements of section 6(b) of
Executive Order 12866, as amended.
Therefore, a regulatory impact
assessment is not required.
II. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. 3501–3520) (PRA) generally
requires that a Federal agency obtain the
approval of the Office of Management
and Budget (OMB) before collecting
information from the public, whether
such collection of information is
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mandatory, voluntary, or required to
obtain or retain a benefit.
The collections of information in
these final regulations contain reporting
and recordkeeping requirements that are
required to validate eligibility to claim
a section 45X credit. These collections
of information would generally be used
by the IRS for tax compliance purposes
and by taxpayers to facilitate proper
reporting and compliance. The general
recordkeeping requirements mentioned
within these final regulations are
considered general tax records under
§ 1.6001–1(e). Specific certification
statements under § 1.45X–1(c)(3) and
statements required in §§ 1.45X–
3(e)(2)(iv)(C) and 1.45X–4(c)(4) are
considered general tax records and are
required for the IRS to validate the
taxpayer that may claim a section 45X
credit. For PRA purposes, general tax
records are already approved by OMB
under 1545–0074 for individuals, 1545–
0123 for business entities, and under
1545–0092 for trust and estate filers.
These final regulations also provide
reporting requirements related to
making the Related Person Election as
described in § 1.45X–2(d) and
calculating the section 45X credit
amount as described in § 1.45X–1. The
Related Person Election will be made by
taxpayers with Forms 1040, 1041, 1120–
S, 1065, and 1120, on Form 7207,
Advanced Manufacturing Production
Credit (or any successor forms); and
credit calculations will be made on
Form 3800 and supporting forms
including Form 7207 (and any successor
forms). These forms are approved under
1545–0074 for individuals, 1545–0123
for business entities, 1545–2306 for trust
and estate filers of Form 7207, and
1545–0895 for trust and estate filers of
Form 3800. These final regulations are
not changing or creating new collection
requirements not already approved by
OMB or will be approved under 5 CFR
1320.10 by OMB.
No public comments were received by
the IRS directed specifically at the PRA
or on the collection requirements, but
commenters generally articulated the
burdens associated with the
documentation requirements contained
in the Proposed Regulations. As
described in the relevant portions of this
preamble, the Treasury Department and
the IRS have determined that the
documentation requirements are
necessary to administer the provisions
of section 45X.
III. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) (RFA) imposes
certain requirements with respect to
Federal rules that are subject to the
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notice and comment requirements of
section 553(b) of the Administrative
Procedure Act (5 U.S.C. 551 et seq.) and
that are likely to have a significant
economic impact on a substantial
number of small entities. Unless an
agency determines that a proposal is not
likely to have a significant economic
impact on a substantial number of small
entities, section 603 of the RFA requires
the agency to present a final regulatory
flexibility analysis (FRFA) of the final
regulations. The Treasury Department
and the IRS have not determined
whether the final regulations will likely
have a significant economic impact on
a substantial number of small entities.
This determination requires further
study. Because there is a possibility of
significant economic impact on a
substantial number of small entities, a
FRFA is provided in these final
regulations.
Pursuant to section 7805(f) of the
Code, the Proposed Regulations were
submitted to the Chief Counsel of the
Office of Advocacy of the Small
Business Administration for comment
on its impact on small business, and no
comments were received.
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A. Need for and Objectives of the Rule
The final regulations provide greater
clarity to taxpayers that intend to claim
a section 45X credit. The final
regulations provide necessary
definitions, the time and manner to
make the Related Person Election and
rules regarding the determination of
credit amounts. The Treasury
Department and the IRS intend and
expect that giving taxpayers guidance
that allows them to claim the section
45X credit will beneficially impact
various industries. In particular, the
section 45X credit encourages the
domestic production of eligible
components and incentivizes taxpayers
to invest in clean energy projects that
generate eligible credits.
B. Affected Small Entities
The RFA directs agencies to provide
a description of, and if feasible, an
estimate of, the number of small entities
that may be affected by the proposed
rules, if adopted. The Small Business
Administration Office of Advocacy
(SBA) estimates in its 2023 Frequently
Asked Questions that 99.9 percent of
American businesses meet its definition
of a small business. The applicability of
these final regulations does not depend
on the size of the business, as defined
by the SBA.
As described more fully in the
preamble to this final regulation and in
this initial regulatory flexibility analysis
(IRFA), section 45X and these final
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regulations may affect a variety of
different entities across several different
clean energy industries as multiple
types of eligible components are
provided for under the statute and
manufacturers may produce more than
one type. Although there is uncertainty
as to the exact number of small
businesses within this group, the
current estimated number of
respondents to these final rules is
13,450 taxpayers. The estimated total
annual reporting burden and estimated
average annual burden per respondent
will be computed when Form 7207 and
the instructions to Form 7207 are
updated to reflect these final
regulations.
The Treasury Department and the IRS
utilize tax data as the basis for its RFA
analysis. Tax entities supply
information on tax forms, which
information is processed and recorded
by the IRS. This data is then available
to the IRS office of Research, Applied
Analytics and Statistics and to the
Treasury Department’s Office of Tax
Policy for use in estimating the impact
of tax regulation on businesses. Tax data
is the more appropriate data as it
provides nearly universal coverage of
the entities that are affected by these tax
regulations. All taxpayers and many
potential taxpayers are represented in
the universe of tax data. Second, the tax
data more accurately reflect the level of
organization to which tax regulations
are applicable because tax data is
collected on the entity rather than the
enterprise level. Overwhelmingly,
business tax regulations apply to the
entity level making tax data a natural fit
for the analysis of regulatory impact.
Further, with limited exceptions, tax
regulations apply to all entities
organized in a particular manner
regardless of industry or size. Finally,
analysis of the implications of tax
regulations for the purposes of the PRA
and any Special Analyses, including the
Regulatory Impact Analysis, are carried
out using tax data. Generally, restricting
analysis for the RFA to tax data prevents
difficulties in reconciling the different
analyses within a given regulation.
Reliance on tax data has some
drawbacks. In general, tax forms do not
collect information unless it is directly
relevant to the calculation of tax
liability. The Northern American
Industry Classification System (NAICS)
codes referenced by the Office of
Advocacy of the Small Business
Administration are included on tax
forms for informational purposes and
may not be reliable. For example, past
the first two-digits of the NAICS code,
economic sector level, entries may be
left blank in the raw data. In addition,
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for a tax entity that is comprised of
multiple different enterprises that each
operate in a different industry, the
NAICS code reported on a tax form may
not reflect the appropriate industry for
the regulation under analysis.
Furthermore, most tax returns have no
independent verification of the accuracy
of NAICS codes. Notwithstanding this
concern, tax data remains the most
appropriate data for analysis of the
implications of tax regulations.
The Treasury Department and the IRS
have considered other data alternatives
including Census data sources, such as
the Statistics of U.S. Businesses (SUSB)
suggested by SBA’s Office of Advocacy.
The 2020 SUSB includes only six
million firms and eight million
establishments while the proposed tax
data includes approximately 18 million
business entities. Unlike the SUSB data,
the tax data includes more small
businesses, not only ones with at least
one employee. Tax data provides a more
inclusive estimate of businesses affected
by tax regulations. In conclusion, while
tax data is an appropriate resource for
evaluating the impact of tax regulations,
this data does not permit some of the
usual analysis presented to the SBA.
Furthermore, since the NAICS codes
reported on the tax return may not
accurately reflect the industry of the
entity, applying separate standards by
industry is inadvisable.
Thus, the Treasury Department and
the IRS have determined that reliance
on NAICS codes would not accurately
reflect the entities affected by these
regulations. Further, the Treasury
Department and the IRS currently do
not have useable tax data that reflects
the entities that will be affected by these
regulations. While there is uncertainty
as to the exact number of small
businesses within this group, the
Treasury Department and the IRS
continue to estimate that approximately
13,450 taxpayers will be impacted.
The Treasury Department and the IRS
expect to receive more information on
the impact on small businesses after
taxpayers start to claim the section 45X
credit using the guidance and
procedures provided in these final
regulations.
C. Impact of the Rules
The final regulations provide rules for
how taxpayers can claim the section
45X credit. Taxpayers that claim the
section 45X credit will have
administrative costs related to reading
and understanding the rules as well as
recordkeeping and reporting
requirements because of the Related
Person Election, computation of the
section 45X credit and tax return
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requirements. The costs will vary across
different-sized entities and across the
type of production activities in which
such entities are engaged.
The Related Person Election allows a
taxpayer to make an irrevocable election
annually with their Federal income tax
return by providing the information
required on Form 7207 (or any
successor form), including, for example,
the name, EIN of the taxpayer; a
description of the taxpayer’s trade or
business; the name, address and EINs of
all related persons; a list of the eligible
components that are sold, and the
intended purpose of the eligible
components sold by the related person.
To make the Related Person Election
and claim the section 45X credit, the
taxpayer must file an annual Federal
income tax return. The reporting and
recordkeeping requirements for that
Federal income tax return would be
required for any taxpayer that is
claiming a general business credit,
regardless of whether the taxpayer was
making a Related Person Election under
section 45X.
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D. Alternatives Considered
The Treasury Department and the IRS
considered alternatives to these final
regulations. For example, the Treasury
Department and the IRS considered
whether to impose certain pre-return
filing requirements as a condition of
making the Related Person Election as
authorized in section 45X(a)(3)(B)(ii) to
prevent duplication, fraud, or improper
or excessive credits. These final
regulations were designed to minimize
burdens for taxpayers while ensuring
that the IRS has sufficient information
to determine eligibility for the section
45X credit. The Treasury Department
and the IRS determined that requiring
registration before a taxpayer makes the
Related Person Election is unnecessary
at this time. These final regulations
would allow taxpayers to make an
irrevocable Related Person Election
annually with their Federal income tax
return by providing the information
required on Form 7207 (or any
successor form), which would provide
the IRS with sufficient information to
assist in preventing duplication, fraud,
or the claiming of improper or excessive
credits if eligible components are
produced and then sold to related
persons.
E. Duplicative, Overlapping, or
Conflicting Federal Rules
The final rule would not duplicate,
overlap, or conflict with any relevant
Federal rules. As discussed previously,
the final rule would merely provide
procedures and definitions to allow
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taxpayers to claim the section 45X
credit. The Treasury Department and
the IRS invite input from interested
members of the public about identifying
and avoiding overlapping, duplicative,
or conflicting requirements.
IV. Unfunded Mandates Reform Act
Section 202 of the Unfunded
Mandates Reform Act of 1995 requires
that agencies assess anticipated costs
and benefits and take certain other
actions before issuing a final rule that
includes any Federal mandate that may
result in expenditures in any one year
by a State, local, or Tribal government,
in the aggregate, or by the private sector,
of $100 million (updated annually for
inflation). These final regulations do not
include any Federal mandate that may
result in expenditures by State, local, or
Tribal governments, or by the private
sector in excess of that threshold.
V. Executive Order 13132: Federalism
Executive Order 13132 (Federalism)
prohibits an agency from publishing any
rule that has federalism implications if
the rule either imposes substantial,
direct compliance costs on State and
local governments, and is not required
by statute, or preempts State law, unless
the agency meets the consultation and
funding requirements of section 6 of the
Executive order. These final regulations
do not have federalism implications and
do not impose substantial direct
compliance costs on State and local
governments or preempt State law
within the meaning of the Executive
order.
VI. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175 (Consultation
and Coordination with Indian Tribal
governments) prohibits an agency from
publishing any rule that has Tribal
implications if the rule either imposes
substantial, direct compliance costs on
Indian Tribal governments, and is not
required by statute, or preempts Tribal
law, unless the agency meets the
consultation and funding requirements
of section 5 of the Executive order. This
final rule does not have substantial
direct effects on one or more federally
recognized Indian tribes and does not
impose substantial direct compliance
costs on Indian Tribal governments
within the meaning of the Executive
order.
VII. Congressional Review Act
Pursuant to the Congressional Review
Act (5 U.S.C. 801 et seq.), the Office of
Information and Regulatory Affairs
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85831
designated this rule as a major rule as
defined by 5 U.S.C. 804(2).
Statement of Availability of IRS
Documents
IRS notices and other guidance cited
in this preamble are published in the
Internal Revenue Bulletin (or
Cumulative Bulletin) and are available
from the Superintendent of Documents,
U.S. Government Publishing Office,
Washington, DC 20402, or by visiting
the IRS website at https://www.irs.gov.
Drafting Information
The principal authors of these final
regulations are Mindy Chou, John
Deininger, Derek Gimbel, John Lovelace,
and Alexander Scott. However, other
personnel from the Office of Chief
Counsel, the Treasury Department, and
the IRS participated in the development
of these regulations.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
Adoption of Amendments to the
Regulations
Accordingly, the Treasury Department
and the IRS amend 26 CFR part 1 as
follows:
PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 is amended by adding entries
in numerical order for §§ 1.45X–1
through 1.45X–4 to read in part as
follows:
■
Authority: 26 U.S.C. 7805 * * *
Section 1.45X–1 also issued under 26
U.S.C. 45X, 6001, 6417(h) and 6418(h).
Section 1.45X–2 also issued under 26
U.S.C. 45X and 1502.
Section 1.45X–3 also issued under 26
U.S.C. 6001.
Section 1.45X–4 also issued under 26
U.S.C. 6001.
*
*
*
*
*
Par. 2. Sections 1.45X–0 through
1.45X–4 are added to read as follows:
■
Sec.
*
*
*
*
*
1.45X–0 Table of contents.
1.45X–1 General rules applicable to the
advanced manufacturing production
credit.
1.45X–2 Sale to unrelated person.
1.45X–3 Eligible components.
1.45X–4 Applicable critical minerals.
*
*
*
*
*
§ 1.45X–0 Table of contents.
This section lists the major captions
contained in §§ 1.45X–1 through 1.45X–4.
§ 1.45X–1 General rules applicable to the
advanced manufacturing production
credit.
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(a) Overview.
(b) Credit amount.
(c) Definition of produced by the taxpayer.
(d) Produced in the United States.
(e) Production and sale in a trade or
business.
(f) Sale of integrated components.
(g) Interaction between sections 45X and
48C.
(h) [Reserved]
(i) Anti-abuse rule.
(j) Applicability date.
§ 1.45X–2 Sale to unrelated person.
(a) In general.
(b) Definitions.
(c) Special rule for sale to related person.
(d) Related person election.
(e) Sales of integrated components to
related person.
(f) Applicability date.
§ 1.45X–3 Eligible components.
(a) In general.
(b) Solar energy components.
(c) Wind energy components.
(d) Inverters.
(e) Qualifying battery component.
(f) Phase out rule.
(g) Applicability date.
§ 1.45X–4 Applicable critical minerals.
(a) In general.
(b) Definitions.
(c) Credit amount.
(d) Applicability date.
§ 1.45X–1 General rules applicable to the
advanced manufacturing production
credit.
(a) Overview—(1) In general. This
section provides general rules regarding
the advanced manufacturing production
credit determined under section 45X of
the Code (section 45X credit). Paragraph
(a)(2) of this section provides definitions
of certain terms that apply for purposes
of section 45X and the section 45X
regulations (as defined in paragraph
(a)(2)(xv) of this section). Paragraphs (b)
through (j) of this section provide the
basic rules regarding the section 45X
credit, including the definition of the
term produced by the taxpayer, and
rules to determine the taxpayer that
produces an eligible component and
whether such taxpayer is entitled to
claim a section 45X credit in contract
manufacturing arrangements; where the
production of eligible components must
occur; the treatment of integrated,
incorporated or assembled eligible
components; and the interaction
between sections 45X and 48C of the
Code. See § 1.45X–2 for rules regarding
sales to unrelated persons, sales to
related persons, and the related person
election (Related Person Election),
including rules regarding the time,
place, and manner of making the
Related Person Election. See § 1.45X–3
for the definitions of all eligible
components (except applicable critical
minerals) and the credit amounts
available for each of these eligible
components, including certain phase-
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out percentages. See § 1.45X–4 for the
definitions of applicable critical
minerals and the rules regarding the
determination of the credit amount for
applicable critical minerals.
(2) Generally applicable definitions.
This paragraph (a)(2) provides
definitions of terms that apply for
purposes of section 45X and the section
45X regulations.
(i) Applicable critical mineral. The
term applicable critical mineral means
any of the minerals that are listed in
section 45X(c)(6) and defined in
§ 1.45X–4(b).
(ii) Code. The term Code means the
Internal Revenue Code.
(iii) Contract manufacturing
arrangement. The term contract
manufacturing arrangement is defined
in paragraph (c)(3)(ii)(B) of this section.
(iv) Electrode active materials. The
term electrode active materials is
defined in section 45X(c)(5)(B)(i) and
described in § 1.45X–3(e)(2).
(v) Eligible component. The term
eligible component is defined in section
45X(c)(1)(A) and described in §§ 1.45X–
3 and 1.45X–4.
(vi) Eligible taxpayer. The term
eligible taxpayer is defined in paragraph
(c)(3) of this section.
(vii) Extraction. The term extraction is
defined in § 1.45X–3(e)(2)(iv)(B).
(viii) Guidance. The term guidance
means guidance published in the
Federal Register or Internal Revenue
Bulletin, as well as administrative
guidance such as forms, instructions,
publications, or other guidance on the
IRS.gov website. See §§ 601.601 and
601.602 of this chapter.
(ix) IRA. The term IRA means Public
Law 117–169, commonly known as the
Inflation Reduction Act of 2022.
(x) IRS. The term IRS means the
Internal Revenue Service.
(xi) Produced by the taxpayer. The
term produced by the taxpayer is
defined in paragraph (c) of this section,
and the related terms production
activities and production process have
the meaning given those terms in
paragraph (c) of this section.
(xii) Related person. The term related
person is defined in § 1.45X–2(b)(2).
(xiii) Related Person Election. The
term Related Person Election is defined
in § 1.45X–2(d)(1).
(xiv) Secretary. The term Secretary
means the Secretary of the Treasury or
her delegate.
(xv) Section 45X regulations. The
term section 45X regulations means the
provisions of this section, §§ 1.45X–2
through 1.45X–4, and the regulations in
this chapter under sections 6417 and
6418 of the Code that relate to the
section 45X credit.
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(xvi) Unrelated person. The term
unrelated person is defined in section
45X(a)(3) and described in § 1.45X–
2(b)(3).
(b) Credit amount. Except as
otherwise provided in section 45X(b)(3)
and § 1.45X–3(f), for purposes of section
38 of the Code, the amount of the
section 45X credit for any taxable year
is equal to the sum of the credit
amounts provided under section 45X(b)
and described in §§ 1.45X–3 and 1.45X–
4 with respect to each eligible
component that is produced by the
taxpayer and, within the taxable year,
sold by the taxpayer to an unrelated
person. See § 1.45X–2 for rules
regarding sales of eligible components
to related persons that may be treated as
if sold to unrelated persons for purposes
of section 45X(a).
(c) Definition of produced by the
taxpayer—(1) In general. The term
produced by the taxpayer means a
process conducted by the taxpayer that
substantially transforms constituent
elements, materials, or subcomponents
into a complete and distinct eligible
component that is functionally different
from that which would result from
minor assembly or superficial
modification of the elements, materials,
or subcomponents, and includes both
primary and secondary production.
Primary production involves producing
an eligible component using nonrecycled materials while secondary
production involves producing an
eligible component using recycled
materials.
(i) Partial transformation. The term
produced by the taxpayer does not
include partial transformation that does
not result in substantial transformation
of constituent elements, materials, or
subcomponents into a complete and
distinct eligible component as described
in this paragraph (c)(1).
(ii) Minor assembly or superficial
modification. The term produced by the
taxpayer does not include minor
assembly of two or more constituent
elements, materials, or subcomponents,
or superficial modification of the final
eligible component, if the taxpayer does
not also engage in the process resulting
in a substantial transformation
described in paragraph (c)(1) or (2) of
this section.
(iii) Examples. The following
examples illustrate the application of
this paragraph (c)(1).
(A) Example 1. Taxpayers X, Y, and
Z each produce one of three sections of
a wind tower that together make up the
wind tower. No taxpayer has produced
an eligible component within the
meaning of section 45X(a)(1)(A) because
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no taxpayer has produced all sections of
the wind tower.
(B) Example 2. Same facts as
paragraph (c)(1)(iii)(A) of this section
(Example 1), but taxpayers X, Y, and Z
instead form Partnership XYZ.
Partnership XYZ produces all three
sections of the wind tower. Partnership
XYZ has produced an eligible
component within the meaning of
section 45X(a)(1)(A).
(C) Example 3. Taxpayer V puts the
external casing on a battery module
(within the meaning of § 1.45X–
3(e)(4)(i)(A)) that already had cells,
battery management systems, and other
components integrated into it. Taxpayer
V has engaged in minor assembly and
has not produced an eligible component
within the meaning of section
45X(a)(1)(A).
(D) Example 4. Taxpayer U purchases
two finished halves of a wind turbine
nacelle and combines them into a single
nacelle. Taxpayer U has engaged in
minor assembly and has not produced
an eligible component within the
meaning of section 45X(a)(1)(A).
(E) Example 5. Taxpayer T purchases
a dry cell battery and fills the electrolyte
of the battery. Taxpayer T has engaged
in minor assembly and has not
produced an eligible component within
the meaning of section 45X(a)(1)(A).
(F) Example 6. Taxpayer W purchases
a prefabricated wind turbine blade and
applies paint and finishes. Taxpayer W
has engaged in superficial modification
of the blade and has not produced an
eligible component within the meaning
of section 45X(a)(1)(A).
(2) Special rule for certain eligible
components—(i) In general. For solar
grade polysilicon, electrode active
materials, and applicable critical
minerals, the term produced by the
taxpayer means processing, converting,
refining, or purifying source materials,
such as brines, ores, or waste streams,
to substantially transform the source
materials to derive a distinct eligible
component, and includes both primary
and secondary production. For the
production process for electrode active
materials and applicable critical
minerals, the term conversion is defined
in § 1.45X–3(e)(2)(ii)(A) or § 1.45X–
4(c)(2)(i), respectively, and the term
purification is defined in § 1.45X–
3(e)(2)(ii)(B) or § 1.45X–4(c)(2)(ii),
respectively.
(ii) Example. Taxpayers X, Y and Z
are unrelated C corporations that have
calendar year taxable years. In 2024, X
extracts raw lithium from natural
mineral deposits and purifies the
extracted material to 90% lithium by
mass. X subsequently hires Y to further
purify the lithium material furnished by
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X to a purity of no less than 99.9%
lithium by mass as required by section
45X(c)(6)(P) and § 1.45X–4(b)(16)(ii). In
2025, Y purifies the material to 99.9%
lithium by mass (qualifying lithium). X
subsequently sells the qualifying
lithium to Z in 2026. X may not claim
a section 45X credit for the qualifying
lithium sold to Z because the qualifying
lithium was not produced by X within
the meaning of this paragraph (c)(2) of
this section, given that X did not
transform the lithium material to derive
a distinct eligible component (i.e.,
lithium which satisfies the minimum
purity of 99.9% lithium by mass
prescribed by section 45X(c)(6)(P)).
(3) Eligible taxpayer—(i) In general.
Except as otherwise provided in
paragraph (c)(3)(iii) of this section, a
taxpayer claiming a section 45X credit
with respect to an eligible component
must be the taxpayer that directly
performs the production activities that
bring about a substantial transformation
resulting in the eligible component and
must sell such eligible component to an
unrelated person.
(ii) Contract manufacturing
arrangement—(A) In general. If the
production of an eligible component is
performed in whole or in part pursuant
to a contract that is a contract
manufacturing arrangement, then,
provided the other requirements of
section 45X are met, the party to such
contract that may claim the section 45X
credit with respect to such eligible
component is the party that performs
the actual production activities that
bring about a substantial transformation
resulting in the eligible component.
(B) Contract manufacturing
arrangement defined. The term contract
manufacturing arrangement means any
agreement (or agreements) providing for
the production of an eligible component
if the agreement is entered into before
the production of the eligible
component to be delivered under the
contract is completed. A routine
purchase order for off-the-shelf property
is not treated as a contract
manufacturing arrangement for
purposes of this paragraph (c)(3). An
agreement will be treated as a routine
purchase order for off-the-shelf property
if the contractor is required to make no
more than de minimis modifications to
the property to tailor it to the customer’s
specific needs, or if at the time the
agreement is entered into, the contractor
knows or has reason to know that the
contractor can satisfy the agreement out
of existing stocks or normal production
of finished goods.
(iii) Special rule for contract
manufacturing arrangements. If an
eligible component is produced by a
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taxpayer pursuant to a contract
manufacturing arrangement, the parties
to such agreement may determine by
agreement the party that may claim the
section 45X credit. If a taxpayer enters
into contract manufacturing
arrangements with multiple fabricators
to produce an eligible component, the
parties to such agreements may
determine by agreement the party that
may claim the section 45X credit. The
IRS will not challenge the agreement of
the parties provided all the parties
submit signed certification statements in
the manner required in Form 7207,
Advanced Manufacturing Production
Credit, or its instructions (as described
in paragraph (c)(3)(iv) of this section)
indicating that all parties agree as to the
party that may claim the section 45X
credit.
(iv) Certification statement
requirements. A certification statement
indicating that all parties to a contract
manufacturing arrangement agree as to
the party that will claim the section 45X
credit must include—
(A) All required information set forth
in guidance; and
(B) A properly signed penalty of
perjury statement that includes the
following: under penalties of perjury, I
declare that I have examined this
statement, including accompanying
documents, and to the best of my
knowledge and belief, the facts
presented in support of this statement
are true, correct, and complete.
(v) Examples. The following examples
illustrate the application of this
paragraph (c)(3).
(A) Example 1: Contract
manufacturing with sale. Taxpayers X,
Y and Z are unrelated C corporations
that have calendar year taxable years. In
2024, pursuant to a contract
manufacturing arrangement as described
in paragraph (c)(3)(ii)(B) of this section,
X hires Y to produce a solar module.
The contract is a tolling arrangement
and provides that Y will produce the
solar module according to X’s designs
and specifications and using the
materials and subcomponents that X
provides. X and Y enter an agreement
providing that X is the sole party that
may claim a section 45X credit for the
production and sale of the solar module,
and X and Y each sign a certification
statement as described in paragraph
(c)(3)(iv) of this section reflecting this
agreement. In 2025, Y produces and
delivers the solar module to X, and in
2026, X sells the solar module to Z. X
may claim a section 45X credit in
taxable year 2026 for the solar module
it sold to Z provided all other
requirements of section 45X are met and
the certification statements signed by X
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and Y meet the requirements described
in paragraph (c)(3)(iv) of this section
and are properly submitted by X. Y
could claim a section 45X credit if the
agreement between X and Y had
designated Y as the sole party that could
claim a section 45X credit for the
production and sale of the solar module
provided all other requirements of
section 45X are met and the certification
statements signed by X and Y meet the
requirements described in paragraph
(c)(3)(iv) of this section and are properly
submitted by Y.
(B) Example 2: Contract
manufacturing with no sale. Assume the
facts are the same as in paragraph
(c)(3)(v)(A) of this section (Example 1),
except that X does not sell the solar
module and instead X uses it to generate
electricity for use in X’s trade or
business. Because there has been no
sale, neither X nor Y may claim a
section 45X credit for the solar module
regardless of whether X and Y submit
signed certification statements
described in paragraph (c)(3)(iv) of this
section.
(C) Example 3: Multiple contract
manufacturing arrangements. Taxpayers
V, W, X, Y, and Z are unrelated C
corporations that have calendar year
taxable years. In 2024, pursuant to three
separate contract manufacturing
arrangements as described in paragraph
(c)(3)(ii)(B) of this section, V hires W, X,
and Y to produce the bottom, middle
and top segments, respectively, of a
single wind tower that V designed. W,
X, Y, and V enter into an agreement
providing that V is the sole party that
may claim a section 45X credit for the
production and sale of the wind tower,
and W, X, Y, and V each sign a
certification statement as described in
paragraph (c)(3)(iv) of this section
reflecting this agreement. In 2024, W
and X both produce and deliver their
respective wind tower segments to the
installation site, and in 2025, Y
produces and delivers its wind tower
segment to the installation site. In 2026,
V sells the completed wind tower to Z.
V may claim a section 45X credit in
taxable year 2026 for the wind tower it
sold to Z provided all other
requirements of section 45X are met and
the certification statements signed by V,
W, X, and Y meet the requirements
described in paragraph (c)(3)(iv) of this
section and are properly submitted by
V. W or X or Y could be the party that
could claim a section 45X credit if the
agreement between V, W, X and Y had
designated W or X or Y as the sole party
that could claim a section 45X credit for
the production and sale of the wind
tower provided all other requirements of
section 45X are met and the certification
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statements signed by V, W, X, and Y
meet the requirements described in
paragraph (c)(3)(iv) of this section and
are properly submitted by the party
designated as the sole party that could
claim a section 45X credit.
(D) Example 4: Applicable Critical
Mineral Processing with Certification.
Taxpayers X, Y, and Z are unrelated C
corporations that have calendar year
taxable years. In 2024, X extracts raw
lithium from natural mineral deposits
and purifies the extracted material to
90% lithium by mass. X subsequently
hires Y to further process the lithium
material pursuant to a contract
manufacturing arrangement as described
in paragraph (c)(3)(ii)(B) of this section.
Specifically, the contract is a tolling
arrangement and provides that X
remains the owner for Federal income
tax purposes throughout the purification
process and that Y will further purify
the lithium material furnished by X to
a purity of no less than 99.9% lithium
by mass as required by section
45X(c)(6)(P) and § 1.45X–4(b)(16)(ii). X
and Y enter an agreement providing that
X is the sole party that may claim a
section 45X credit for the production
and sale of the applicable critical
mineral, and X and Y each sign a
certification statement as described in
paragraph (c)(3)(iv) of this section
reflecting this agreement. In 2025, Y
purifies the material to 99.9% lithium
by mass (qualifying lithium) and
delivers it to X. X subsequently sells the
qualifying lithium to Z in 2026. X may
claim a section 45X credit in taxable
year 2026 for the qualifying lithium sold
to Z, provided that all other
requirements of section 45X are met,
and the certification statements signed
by X and Y meet the requirements
described in paragraph (c)(3)(iv) of this
section and are properly submitted by
X. Y could claim a section 45X credit if
the agreement between X and Y had
designated Y as the sole party that could
claim a section 45X credit for the
qualifying lithium, provided that all
other requirements of section 45X are
met, and the certification statements
signed by X and Y meet the
requirements described in paragraph
(c)(3)(iv) of this section and are properly
submitted by Y. Neither X nor Y could
claim a section 45X credit in the
absence of a designating agreement and
certification statement (described in
paragraphs (c)(3)(iii) and (iv) of this
section, respectively) for the reasons
stated in paragraph (c)(2)(i) of this
section.
(4) Timing of production and sale—(i)
In general. Production of eligible
components for which a taxpayer is
claiming a section 45X credit may begin
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before December 31, 2022. Production of
eligible components must be completed,
and sales of eligible components must
occur, after December 31, 2022.
(ii) Example. Taxpayer X has a
calendar year taxable year. Taxpayer X
begins production of a related offshore
wind vessel (as defined in section
45X(4)(B)(iv) and described in § 1.45X–
3(c)(4)) in January 2022. Production is
completed in December 2024 and the
sale to an unrelated person occurs in
2025. Taxpayer X is eligible to claim the
section 45X credit in 2025, assuming
that all other requirements of section
45X are met.
(d) Produced in the United States—(1)
In general. Sales are taken into account
for purposes of the section 45X credit
only for eligible components that are
produced within the United States, as
defined in section 638(1) of the Code, or
a United States territory, which for
purposes of section 45X and the section
45X regulations has the meaning of the
term possession provided in section
638(2).
(2) Subcomponents. Constituent
elements, materials, and subcomponents
used in the production of eligible
components are not subject to the
domestic production requirement
provided in paragraph (d)(1) of this
section.
(e) Production and sale in a trade or
business. An eligible component
produced and sold by the taxpayer is
taken into account for purposes of the
section 45X credit only if the
production and sale are in a trade or
business (within the meaning of section
162 of the Code) of the taxpayer.
(f) Sale of integrated components—(1)
In general. For purposes of the section
45X credit, section 45X(d)(4) provides
that a taxpayer that produces an eligible
component is treated as having sold
such eligible component to an unrelated
person if such component is integrated,
incorporated, or assembled into another
eligible component that is then sold to
an unrelated person.
(i) Integrated, incorporated, or
assembled. The term integrated,
incorporated, or assembled means the
production activities by which an
eligible component that is a constituent
element, material, or subcomponent is
substantially transformed into another
complete and distinct eligible
component that is not solar grade
polysilicon, an electrode active material,
or an applicable critical mineral. The
term integrated, incorporated, or
assembled does not mean the minor
assembly or superficial modification of
an eligible component used as an
element, material, or subcomponent and
other elements, materials, or
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subcomponents that results in a distinct
product.
(ii) Special rule for eligible
components resulting in solar grade
polysilicon, electrode active materials,
or applicable critical minerals. For solar
grade polysilicon, electrode active
materials, and applicable critical
minerals, the term integrated,
incorporated, or assembled means the
production activities in which an
eligible component is processed,
converted, refined, or purified to derive
a distinct eligible component that is
solar grade polysilicon, an electrode
active material, or an applicable critical
mineral. The term integrated,
incorporated, or assembled does not
mean minor assembly or superficial
modification of an eligible component
used as an element, material, or
subcomponent and other elements,
materials, or subcomponents that results
in a distinct product.
(2) Application—(i) In general. A
taxpayer may claim a section 45X credit
for each eligible component the
taxpayer produces and sells to an
unrelated person, including any eligible
component the taxpayer produces that
was used as a constituent element,
material, or subcomponent and
integrated, incorporated, or assembled
into another complete and distinct
eligible component or another complete
and distinct product (that is not itself an
eligible component) that the taxpayer
also produces and sells to an unrelated
person.
(ii) Example: Sale of product with
incorporated eligible components to
unrelated person. In 2022, X, a domestic
corporation that has a calendar year
taxable year, begins production of
electrode active materials (EAMs) that
are completed in 2023 and incorporated
into battery cells that X also produces.
In 2024, X incorporates those battery
cells into battery modules (within the
meaning of § 1.45X–3(e)(4)(i)(A)) and
integrates the battery modules into
electric vehicles. X sells the electric
vehicles to Z, an unrelated person, in
2024. X may claim a section 45X credit
for the EAMs, the battery cells, and the
battery modules in 2024.
(g) Interaction between sections 45X
and 48C—(1) In general. For purposes of
the section 45X credit, consistent with
section 45X(c)(1)(B), property that
would otherwise qualify as an eligible
component (otherwise qualified
property) is only an eligible component
if the property is produced at a section
45X facility (as defined in paragraph
(g)(2) of this section) and no part of that
section 45X facility is also a section 48C
facility (as defined in paragraph (g)(3) of
this section).
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(2) Section 45X facility—(i) In general.
A section 45X facility comprises the
independently functioning tangible
property used by the taxpayer that is
necessary to be considered the producer
of the otherwise qualified property
within the meaning of paragraph (c)(1)
or (2) of this section, as applicable. The
tangible property that comprises a
section 45X facility may be in more than
one location.
(ii) Special rule for contract
manufacturing arrangement. In the case
of a contract manufacturing arrangement
where the parties have agreed to who
can claim a section 45X credit under
paragraph (c)(3)(iii) of this section, the
section 45X facility under paragraph
(g)(2)(i) of this section is determined by
taking into account the tangible
property used to produce the otherwise
qualified property, regardless of which
party to the arrangement claims the
credit.
(3) Section 48C facility—(i) In general.
A section 48C facility includes all
eligible property included in a
qualifying advanced energy project for
which a taxpayer receives an allocation
of section 48C credits under the
allocation program established under
section 48C(e) and claims such credits
after August 16, 2022.
(ii) Eligible property. Eligible property
is property that—
(A) Is necessary for the production or
recycling of property described in
section 48C(c)(1)(A)(i), re-equipping an
industrial or manufacturing facility
described in section 48C(c)(1)(A)(ii), or
re-equipping, expanding, or establishing
an industrial facility described in
section 48C(c)(1)(A)(iii);
(B) Is tangible personal property, or
other tangible property (not including a
building or its structural components),
but only if such property is used as an
integral part of the qualified investment
credit facility; and
(C) With respect to which
depreciation (or amortization in lieu of
depreciation) is allowable.
(4) Examples. The following examples
illustrate the application of this
paragraph (g), and assume any other
requirements of section 45X that are not
described have been met:
(i) Example 1: Two independent
section 45X facilities—(A) Facts.
Taxpayer owns and operates a
manufacturing site that contains
tangible property made up of Equipment
A and Equipment B, each set of which
functions independently and which is
arranged in serial fashion. Equipment A
is used by the taxpayer to produce
otherwise qualified property 1.
Equipment B is used to produce
otherwise qualified property 2, a
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different type of product than otherwise
qualified property 1. Taxpayer was
allocated a section 48C credit under the
section 48C(e) program for a section 48C
facility that includes Equipment A and
subsequently placed the section 48C
facility and Equipment A in service in
taxable year 2026. Taxpayer claimed a
section 48C credit related to Equipment
A for taxable year 2026.
(B) Analysis. The section 45X facility
with respect to otherwise qualified
property 1 is the tangible property made
up of Equipment A, which is the
independently functioning tangible
property used by the taxpayer that is
necessary to be considered the producer
of the otherwise qualified property
within the meaning of paragraph (c)(1)
or (2) of this section. However,
Equipment A is also eligible property
that is considered part of a section 48C
facility as defined in paragraph (g)(3) of
this section. Therefore, otherwise
qualified property 1 is not an eligible
component under paragraph (g)(1) of
this section because part (all in this
case) of the section 45X facility where
otherwise qualified property 1 was
produced is also considered a section
48C facility. There is a separate section
45X facility with respect to otherwise
qualified property 2. That section 45X
facility is the tangible property made up
of Equipment B. Equipment A is not
included in the section 45X facility as
it is not used to produce otherwise
qualified property 2. None of the
tangible property comprising the section
45X facility with respect to otherwise
qualified property 2 is considered part
of a section 48C facility. Thus,
otherwise qualified property 2 is an
eligible component under paragraph
(g)(1) of this section.
(ii) Example 2: Single section 45X
facility at different locations—(A) Facts.
Taxpayer owns and operates two
manufacturing sites at different
locations. The tangible property at
manufacturing site 1 is Equipment A,
which is used to continue and finish the
first part of the production process for
otherwise qualified property. The
tangible property at manufacturing site
2 is Equipment B, which is used to
complete the production process of the
same otherwise qualified property.
Taxpayer was allocated a section 48C
credit under the section 48C(e) program
for Equipment A.
(B) Analysis. Equipment A and B
comprise a single section 45X facility
regardless of location under paragraph
(g)(2)(i) of this section because both
Equipment A and B were used to
produce the otherwise qualified
property and the use of Equipment A
and B are necessary to consider the
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taxpayer the producer, consistent with
the meaning of produced by the
taxpayer in paragraph (c)(1) or (2) of this
section. However, part of the property
comprising the section 45X facility is
also a section 48C facility under
paragraph (g)(3) of this section because
Equipment A is eligible property that is
part of a section 48C facility. As a result,
the otherwise qualified property is not
considered an eligible component, and
the sale of the otherwise qualified
property will not generate a section 45X
credit.
(iii) Example 3: Independent tangible
property and production of
component—(A) Facts. Taxpayer owns
and operates two manufacturing sites.
Manufacturing Site 1 contains tangible
property that is Equipment A, which is
used to produce photovoltaic cells.
Manufacturing Site 2 contains tangible
property that is Equipment B and
tangible property that is Equipment C,
which are arranged in serial fashion.
Equipment B is used to produce
photovoltaic cells. Equipment C is used
to produce solar modules, in part, by
combining the photovoltaic cells
produced by Equipment A and
Equipment B. Taxpayer was allocated a
section 48C credit under the section
48C(e) program for a section 48C facility
that includes Equipment B.
Subsequently, Taxpayer places the
section 48C facility and Equipment B in
service in taxable year 2026. Taxpayer
claimed a section 48C credit for
Equipment B in taxable year 2026.
(B) Analysis. Equipment A and
Equipment B each comprise a section
45X facility since each independently
functions to produce otherwise
qualified property, photovoltaic cells.
No part of the section 45X facility
comprised of Equipment A is eligible
property that is included in a section
48C facility. Thus, the photovoltaic cells
produced in the section 45X facility
comprised of Equipment A are eligible
components. The photovoltaic cells that
are produced in the section 45X facility
comprised of Equipment B are
otherwise qualified property that cannot
qualify as eligible components because
part (all in this case) of the section 45X
facility comprised of Equipment B
where the photovoltaic cells are
produced is also considered a section
48C facility. Solar modules, a different
otherwise qualified property, are
produced in using Equipment C, which
is itself a separate section 45X facility.
Equipment C does not have to include
any of the tangible property included in
Production Unit A or B under paragraph
(g)(2)(i) of this section because it is not
necessary for the Taxpayer to use that
equipment to be considered the
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producer of the solar modules for
purposes of section 45X. As a result, no
part of section 45X facility comprised of
Equipment C where the solar modules
are produced is considered a section
48C facility, and the solar modules are
considered an eligible component for
purposes of section 45X.
(iv) Example 4: Manufacturing under
a contract manufacturing
arrangement—(A) Facts. X is hired by Y
to manufacture photovoltaic cells, but X
and Y agree under paragraph (c)(3)(iii)
of this section that Y will be the party
to claim any section 45X credit resulting
from the sale of the photovoltaic cells.
X owns and operates a manufacturing
site that contains equipment that is
tangible property used to produce the
photovoltaic cells. X was allocated a
section 48C credit under the section
48C(e) program for a section 48C facility
that includes the equipment used to
produce the photovoltaic cells. The
equipment is eligible property that is
part of the section 48C facility that was
placed in service in taxable year 2026.
X claimed a section 48C credit for the
equipment in taxable year 2026.
(B) Analysis. Under paragraph
(g)(2)(ii) of this section, in determining
the section 45X facility related to the
photovoltaic cells (the otherwise
qualified property), Y must consider the
equipment that X used in producing the
photovoltaic cells. In this case, that
means that part of the section 45X
facility is also considered a section 48C
facility, as the equipment used to
produce the photovoltaic cells is also
eligible property that is part of a section
48C facility. Therefore, the photovoltaic
cells are not eligible components for
purposes of section 45X to X or Y, and
there is no section 45X credit generated
if the photovoltaic cells are sold.
(v) Example 5: Two independent
production units manufacturing under a
contract manufacturing arrangement—
(A) Facts. Assume the facts are the same
as in paragraph (g)(4)(iv) of this section
(Example 4), except that Y and X also
agreed for X to produce photovoltaic
wafers using other equipment that is
tangible property that is different than
the equipment X uses to produce the
photovoltaic cells.
(B) Analysis. While Y must consider
the equipment that X uses to produce
the photovoltaic wafers (the otherwise
qualified property) under paragraph
(g)(2)(ii) of this section to determine the
section 45X facility associated with the
photovoltaic wafer production, Y is not
required to include any of the
equipment used by X to produce the
photovoltaic cells because it was not
necessary to use that equipment to be
considered the producer of the
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photovoltaic wafers. As a result, no part
of the section 45X facility related to
photovoltaic wafers is part of a section
48C facility. Therefore, the photovoltaic
wafers are eligible components for
purposes of section 45X and Y will be
entitled to claim a section 45X credit
upon the sale.
(h) [Reserved]
(i) Anti-abuse rule—(1) In general.
The rules of section 45X and the section
45X regulations must be applied in a
manner consistent with the purposes of
section 45X and the section 45X
regulations (and the regulations in this
chapter under sections 6417 and 6418
related to the section 45X credit). A
purpose of section 45X and the section
45X regulations (and the regulations in
this chapter under sections 6417 and
6418 related to the section 45X credit)
is to provide taxpayers an incentive to
produce eligible components in a
manner that contributes to the
development of secure and resilient
supply chains. Accordingly, the section
45X credit is not allowable if the
primary purpose of the production and
sale of an eligible component is to
obtain the benefit of the section 45X
credit in a manner that is wasteful, such
as discarding, disposing of, or
destroying the eligible component
without putting it to a productive use.
A determination of whether the
production and sale of an eligible
component is inconsistent with the
purposes of section 45X and the section
45X regulations (and the regulations in
this chapter under sections 6417 and
6418 related to the section 45X credit)
is based on all facts and circumstances.
(2) Example—(i) Facts. Taxpayer is
engaged in the activity of producing and
selling multiple units of Eligible
Component 1 (EC1). Taxpayer engages
in no other activities. The cost of
producing each unit of EC1 is less than
the amount of the section 45X credit
that would be available if each EC1
qualified for the section 45X credit.
Taxpayer sells some of its units of EC1
to related persons and makes a Related
Person Election pursuant to section
45X(a)(3)(B)(i). Taxpayer also sells some
of its units of EC1 to unrelated persons.
Taxpayer sells all units of EC1 at an
amount equal to cost plus a markup to
reflect an anticipated accommodation
fee and establishes corresponding
accounts receivable at the time of the
respective sales. In addition, Taxpayer
knows or reasonably expects that after
acquiring the units of EC1, the related
and unrelated transferees will not resell
the units of EC1 or use them in their
trades or businesses. Taxpayer intends
to obtain the benefit from the section
45X credit by claiming such credits
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itself or monetizing such credits through
an election under section 6417 or
section 6418. Taxpayer eliminates the
aforementioned accounts receivable at
the time it claims the section 45X credit
or receives related payments attributable
to the section 45X credit, and further
makes payments to the related and
unrelated transferees as accommodation
fees computed as a percentage of such
benefits.
(ii) Analysis. Based on all of the facts
and circumstances in paragraph (i)(2)(i)
of this section, the primary purpose of
Taxpayer’s production and sale of EC1
is to obtain the benefit of the section
45X credit in a manner that is wasteful
and will not be treated as the
production and sale of eligible
components in a trade or business of
Taxpayer for purposes of section
45X(a)(1) and (2). Taxpayer is not
eligible for the section 45X credit with
respect to units of EC1 that it produced
and sold. See sections 6417(d)(6)
(excessive payments) and 6418(g)(2)
(excessive credit transfer).
(j) Applicability date. This section
applies to eligible components for
which production is completed and
sales occur after December 31, 2022, and
during a taxable year ending on or after
October 28, 2024.
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§ 1.45X–2
Sale to unrelated person.
(a) In general. The amount of the
section 45X credit for any taxable year
is equal to the sum of the credit
amounts determined under section
45X(b) (and described in §§ 1.45X–3 and
1.45X–4) with respect to each eligible
component that is produced by the
taxpayer and, during the taxable year,
sold by the taxpayer to an unrelated
person. Applicable Federal income tax
principles apply to determine whether a
transaction is in substance a sale (or the
provision of a service, or some other
disposition). See § 1.45X–1(d) and (e)
for additional requirements relating to
sales.
(b) Definitions. This paragraph (b)
provides definitions of terms that apply
for purposes of this section.
(1) Person. The term person means an
individual, a trust, estate, partnership,
association, company, or corporation, as
provided in section 7701(a)(1) of the
Code. For purposes of this section, an
entity disregarded as separate from a
person (for example, under § 301.7701–
3 of this chapter) is not a person.
(2) Related person. The term related
person means a person who is related to
another person if such persons would be
treated as a single employer under the
regulations in this chapter under section
52(b) of the Code.
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(3) Unrelated person. The term
unrelated person means a person who is
not a related person as defined in
paragraph (b)(2) of this section.
(c) Special rule for sale to related
person—(1) In general. For purposes of
section 45X(a), a taxpayer is treated as
selling an eligible component to an
unrelated person if such component is
sold to such person by a person who is
a related person with respect to the
taxpayer.
(2) Example. X and Y are members of
a group of trades or businesses under
common control under section 52(b),
and thus are related persons under
section 45X(d)(1). Each of X and Y has
a calendar year taxable year. Z is an
unrelated person. X is in the trade or
business of producing and selling solar
modules. X produces and sells solar
modules to Y in 2023. Y sells the solar
modules to Z in 2024. X may claim a
section 45X credit for the sale of the
solar modules in 2024, the taxable year
of X in which Y sells the solar modules
to Z.
(d) Related person election—(1)
Availability of election—(i) In general.
In such form and manner as the
Secretary may prescribe, a taxpayer may
make an election under section
45X(a)(3)(B) (Related Person Election),
to treat a sale of eligible components by
such taxpayer to a related person as if
made to an unrelated person. As a
condition of, and prior to, a taxpayer
making a Related Person Election (as
described in paragraph (d)(2) of this
section), the Secretary may require such
information or registration as the
Secretary deems necessary for purposes
of preventing duplication, fraud, or any
improper or excessive credit amount
determined under section 45X(a)(1).
(ii) Members of a consolidated group.
A Related Person Election is made by a
member of a consolidated group (as
defined in § 1.1502–1(h)) in the manner
described in paragraph (d)(3)(ii) of this
section. A member of a consolidated
group that sells eligible components in
an intercompany transaction (as defined
in § 1.1502–13(b)(1)) may make the
Related Person Election to claim the
section 45X credit in the year of the
intercompany sale. For the treatment of
the selling member’s gain or loss from
that sale, see § 1.1502–13.
(2) Time and manner of making
election—(i) In general. A taxpayer must
make an affirmative Related Person
Election annually on the taxpayer’s
timely filed original Federal income tax
return, including extensions in such
form and in such manner as may be
prescribed in guidance. The Related
Person Election will be applicable to all
sales of eligible components to related
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85837
persons by the taxpayer for each trade
or business that the taxpayer engages in
during the taxable year that resulted in
a credit claim and for which the
taxpayer has made the Related Person
Election.
(ii) Required information. For all sales
of eligible components to related
persons, the taxpayer must provide all
required information set forth in
guidance. Such information may
include, for example, the taxpayer’s
name, employer identification number
(EIN), a description of the taxpayer’s
trade or business (including principal
business activity code); the name(s) and
EINs of all related persons; a listing of
the eligible components that are sold;
and the intended purpose of any sales
of eligible components to or from
related persons.
(3) Scope and effect of election—(i) In
general. A separate Related Person
Election must be made with respect to
related person sales made by a taxpayer
for each eligible trade or business of the
taxpayer. The election applies only to
such trade or business for which the
Related Person Election is made. An
election under this section applies to all
sales to related persons (including
between members of the same
consolidated group) of eligible
components produced by the taxpayer
during the taxable year with respect to
each trade or business for which the
Related Person Election is made and is
irrevocable for the taxable year for
which the election is made. An election
under paragraph (d)(2)(i) of this section
applies solely for purposes of the
section 45X credit and the section 45X
regulations (and the regulations in this
chapter under sections 6417 and 6418
related to the section 45X credit).
(ii) Application to consolidated
groups. For a trade or business of a
consolidated group, a Related Person
Election must be made by the agent for
the group on behalf of the members
claiming the section 45X credit and
filed with the group’s timely filed
original Federal income tax return,
including extensions, with respect to
each trade or business that the
consolidated group conducts. See
§ 1.1502–77 (providing rules regarding
the status of the common parent as
agent for its members). A separate
election must be filed on behalf of each
member claiming the section 45X credit,
and each election must include the
name and EIN of the agent for the group
and the member on whose behalf the
election is being made.
(iii) Application to partnerships. The
Related Person Election for a
partnership must be made on the
partnership’s timely filed original
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Federal income tax return, including
extensions, with respect to each trade or
business that the partnership conducts.
The election applies only to such trade
or business for which the Related
Person Election is made. An election by
a partnership does not apply to any
trade or business conducted by a partner
outside the partnership.
(4) Anti-abuse rule—(i) In general. A
Related Person Election may not be
made if, with respect to the eligible
components relevant to such election,
the taxpayer fails to provide the
information described in paragraph
(d)(2) of this section, provides
information described in paragraph
(d)(2) of this section that shows that
such components are described in
paragraph (d)(4)(ii) or (iii) of this
section, or such components are
described in paragraph (d)(4)(ii) or (iii)
of this section.
(ii) Improper use. For purposes of this
paragraph (d)(4) the term improper use
means a use that is wasteful, such as
discarding, disposing of, or destroying
the eligible component without putting
it to a productive use by the related
person to which the eligible component
is sold.
(iii) Defective components. The term
defective component means a
component that does not meet the
requirements of section 45X and the
section 45X regulations.
(e) Sales of integrated components to
related person—(1) In general. For
purposes of section 45X and the section
45X regulations (and the regulations in
this chapter under sections 6417 and
6418 related to the section 45X credit),
a taxpayer that produces and then sells
an eligible component to a related
person, who then integrates,
incorporates, or assembles the
taxpayer’s eligible component into
another complete and distinct eligible
component that is subsequently sold to
an unrelated person, may claim a
section 45X credit (or make an election
under section 6417 or section 6418)
with respect to the taxable year in
which the related person’s sale to the
unrelated person occurs.
(2) Examples. The following examples
illustrate the rules provided in
paragraph (e)(1) of this section.
(i) Example 1: Sales of multiple
incorporated eligible components to
related persons. X and Y are C
corporations that are members of a
group of trades or businesses under
common control under section 52(b),
and thus are related persons under
section 45X(d)(1) and paragraph (b)(2) of
this section. Each of X and Y has a
calendar year taxable year. Z is an
unrelated person. X and Y are in the
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trade or business of producing and
selling photovoltaic wafers and cells. X
produces and sells photovoltaic wafers
to Y in 2023. Y incorporates the
photovoltaic wafers into photovoltaic
cells and sells the photovoltaic cells to
Z in 2024. X may claim a section 45X
credit for the sale of the photovoltaic
wafers in 2024, the taxable year of X in
which Y sells the photovoltaic cells to
Z.
(ii) Example 2: Sales of multiple
incorporated eligible components to
related and unrelated persons. W, X,
and Y are domestic C corporations that
are members of a group of trades or
businesses under common control
under section 52(b), and thus are related
persons under section 45X(d)(1) and
paragraph (b)(2) of this section. Each of
W, X, and Y has a calendar year taxable
year. W produces electrode active
materials (EAMs) and sells the EAMs to
X in 2023. In 2024, X incorporates the
EAMs into battery cells that it produces
and sells the battery cells to Y. In 2025,
Y incorporates the battery cells into
battery modules (within the meaning of
§ 1.45X–3(e)(4)(i)(A)) that it produces
and sells the battery modules to Z, an
unrelated person. W may claim a
section 45X credit for EAMs sold to X,
X may claim a section 45X credit for the
battery cells sold to Y, and Y may claim
a section 45X credit for the battery
modules sold to Z in 2025, the taxable
year of each of W, X, and Y in which
the battery modules are sold to Z.
(3) Special rules applicable to related
person election—(i) In general. If a
taxpayer makes a valid Related Person
Election under section 45X(a)(3)(B)(i)
and paragraph (d)(1) of this section, and
the taxpayer produces and then sells an
eligible component to a related person,
who then integrates, incorporates, or
assembles the taxpayer’s eligible
component into another complete and
distinct eligible component that is
subsequently sold to an unrelated
person, the taxpayer’s sale of the eligible
component to the related person is
treated (solely for purposes of the
section 45X credit and the section 45X
regulations, and the regulations in this
chapter under sections 6417 and 6418
related to the section 45X credit) as if
made to an unrelated person in the
taxable year in which the sale to the
related person occurs.
(ii) Example: Sales of multiple
integrated eligible components to
related and unrelated persons with a
related person election. W, X, and Y are
domestic C corporations that are
members of a group of trades or
businesses under common control and
thus are related persons under section
45X(d)(1) and paragraph (b)(2) of this
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section. Each of W, X, and Y has a
calendar year taxable year. W produces
electrode active materials (EAMs) and
sells the EAMs to X in 2023. W makes
a valid Related Person Election under
paragraph (d)(1) of this section in 2023
with regard to the sale. In 2024, X
incorporates the EAMs into battery cells
that it produces and sells the battery
cells to Y. X makes a valid Related
Person Election under paragraph (d)(1)
of this section in 2024 with regard to the
sale. In 2025, Y incorporates the battery
cells into battery modules that it
produces and sells the battery modules
to Z, an unrelated person. W may claim
a section 45X credit for the sale of the
EAMs in 2023 because the sale to X is
treated as if made to an unrelated
person solely for purposes of section
45X(a). X may claim a section 45X
credit for the sale of the battery cells in
2024 because the sale to Y is treated as
if made to an unrelated person solely for
purposes of section 45X(a). Y may claim
a section 45X credit for the sale of
battery modules in 2025 because Z is an
unrelated person.
(f) Applicability date. This section
applies to eligible components for
which production is completed and
sales occur after December 31, 2022, and
during a taxable year ending on or after
October 28, 2024.
§ 1.45X–3
Eligible components.
(a) In general. For purposes of the
section 45X credit, eligible component
means any solar energy component (as
defined in paragraph (b) of this section),
any wind energy component (as defined
in paragraph (c) of this section), any
inverter (as defined in paragraph (d) of
this section), any qualifying battery
component (as defined in paragraph (e)
of this section), and any applicable
critical mineral (as defined in § 1.45X–
4(b)). See paragraph (f) of this section
for certain phase-out rules applicable to
eligible components other than
applicable critical minerals.
(b) Solar energy components. Solar
energy component means a solar
module, photovoltaic cell, photovoltaic
wafer, solar grade polysilicon, torque
tube, structural fastener, or polymeric
backsheet, each as defined in this
paragraph (b).
(1) Photovoltaic cell—(i) Definition.
Photovoltaic cell means the smallest
semiconductor element of a solar
module that performs the immediate
conversion of light into electricity that
is either a thin film photovoltaic cell or
a crystalline photovoltaic cell.
(ii) Credit amount. For a photovoltaic
cell, the credit amount is equal to the
product of 4 cents multiplied by the
capacity of such photovoltaic cell. The
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capacity of each photovoltaic cell is
expressed on a direct current watt basis.
Capacity is the nameplate capacity in
direct current watts using Standard Test
Conditions (STC), as defined by the
International Electrotechnical
Commission (IEC). In the case of a
tandem technology produced in serial
fashion, such as a monolithic
multijunction cell composed of two or
more sub-cells, capacity must be
measured at the point of sale at the end
of the single cell production unit. In the
case of a four-terminal tandem
technology produced by mechanically
stacking two distinct cells or
interconnected layers, capacity must be
measured for each cell at each point of
sale. If a cell is sold to a customer who
will use it as the bottom cell in a tandem
module, its capacity should be
measured with the customer’s intended
top cell placed between the bottom cell
and the one-sun light source.
(iii) Substantiation. The taxpayer
must document the capacity of a
photovoltaic cell in a bill of sale or
design documentation, such as an IEC
certification (for example, IEC 61215 or
IEC 60904).
(2) Photovoltaic wafer—(i) Definition.
Photovoltaic wafer means a thin slice,
sheet, or layer of semiconductor
material of at least 240 square
centimeters that comprises the substrate
or absorber layer of one or more
photovoltaic cells. A photovoltaic wafer
must be produced by a single
manufacturer by forming an ingot from
molten polysilicon (for example,
Czochralski method) and then
subsequently slicing it into wafers,
forming molten or evaporated
polysilicon into a sheet or layer, or
depositing a thin-film semiconductor
photon absorber into a sheet or layer
(that is, thin-film deposition).
(ii) Credit amount. For a photovoltaic
wafer, the credit amount is $12 per
square meter.
(3) Polymeric backsheet—(i)
Definition. Polymeric backsheet means a
sheet on the back of a solar module,
composed, at least in part, of a polymer,
that acts as an electric insulator and
protects the inner components of such
module from the surrounding
environment.
(ii) Credit amount. For a polymeric
backsheet, the credit amount is 40 cents
per square meter.
(4) Solar grade polysilicon—(i)
Definition. Solar grade polysilicon
means silicon that is suitable for use in
photovoltaic manufacturing and
purified to a minimum purity of
99.999999 percent silicon by mass.
Satisfaction of the minimum purity
requirement will be determined in
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accordance with the standards provided
in SEMI Specification PV17–1012,
Category 1.
(ii) Credit amount. For solar grade
polysilicon, the credit amount is $3 per
kilogram.
(5) Solar module—(i) Definition. Solar
module means the connection and
lamination of photovoltaic cells into an
environmentally protected final
assembly that is—
(A) Suitable to generate electricity
when exposed to sunlight; and
(B) Ready for installation without an
additional manufacturing process.
(ii) Credit amount. For a solar
module, the credit amount is equal to
the product of 7 cents multiplied by the
capacity of such module. The capacity
of each solar module is expressed on a
direct current watt basis. Capacity is the
nameplate capacity in direct current
watts using STC, as defined by the IEC.
(iii) Substantiation. The taxpayer
must document the capacity of a solar
module in a bill of sale or design
documentation, such as an IEC
certification (for example, IEC 61215 or
IEC 61646).
(6) Solar tracker. Solar tracker means
a mechanical system that moves solar
modules according to the position of the
sun and to increase energy output. A
torque tube (as defined in paragraph
(b)(7) of this section) or structural
fastener (as defined in paragraph (b)(8)
of this section) are solar tracker
components that are eligible
components for purposes of the section
45X credit.
(7) Torque tube—(i) Definition.
Torque tube means a structural steel
support element (including longitudinal
purlins) that—
(A) Is part of a solar tracker;
(B) Is of any cross-sectional shape;
(C) May be assembled from
individually manufactured segments;
(D) Spans longitudinally between
foundation posts;
(E) Supports solar panels and is
connected to a mounting attachment for
solar panels (with or without separate
module interface rails); and
(F) Is rotated by means of a drive
system.
(ii) Credit amount. For a torque tube,
the credit amount is 87 cents per
kilogram.
(iii) Substantiation. The taxpayer
must document that a torque tube is part
of a solar tracker with a specification
sheet, bill of sale, or other similar
documentation that explicitly describes
its application as part of a solar tracker.
(8) Structural fastener—(i) Definition.
Structural fastener means a component
that is used—
(A) To connect the mechanical and
drive system components of a solar
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85839
tracker to the foundation of such solar
tracker;
(B) To connect torque tubes to drive
assemblies; or
(C) To connect segments of torque
tubes to one another.
(ii) Credit amount. For a structural
fastener, the credit amount is $2.28 per
kilogram.
(iii) Substantiation. The taxpayer
must document that a structural fastener
is used in a manner described in
paragraph (b)(8)(i)(A), (B), or (C) of this
section with a bill of sale or other
similar documentation that explicitly
describes such use.
(c) Wind energy components. Wind
energy component means a blade,
nacelle, tower, offshore wind
foundation, or related offshore wind
vessel, each as defined in this paragraph
(c).
(1) Blade—(i) Definition. Blade means
an airfoil-shaped blade that is
responsible for converting wind energy
to low-speed rotational energy.
(ii) Credit amount. For a blade, the
credit amount is equal to the product of
2 cents multiplied by the total rated
capacity of the completed wind turbine
for which the blade is designed.
(2) Offshore wind foundation—(i)
Definition. Offshore wind foundation
means the component (including
transition piece) that secures an offshore
wind tower and any above-water turbine
components to the seafloor using—
(A) Fixed platforms, such as offshore
wind monopiles, jackets, or gravitybased foundations; or
(B) Floating platforms and associated
mooring systems.
(ii) Credit amount. For a fixed
offshore wind foundation platform, the
credit amount is equal to the product of
2 cents multiplied by the total rated
capacity of the completed wind turbine
for which the fixed offshore wind
foundation platform is designed. For a
floating offshore wind foundation
platform, the credit amount is equal to
the product of 4 cents multiplied by the
total rated capacity of the completed
wind turbine for which the floating
offshore wind foundation platform is
designed.
(3) Nacelle—(i) Definition. Nacelle
means the assembly of the drivetrain
and other tower-top components of a
wind turbine (with the exception of the
blades and the hub) within their cover
housing.
(ii) Credit amount. For a nacelle, the
credit amount is equal to the product of
5 cents multiplied by the total rated
capacity of the completed wind turbine
for which the nacelle is designed.
(4) Related offshore wind vessel—(i)
Definition. Related offshore wind vessel
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means any vessel that is purpose-built
or retrofitted for purposes of the
development, transport, installation,
operation, or maintenance of offshore
wind energy components. A vessel is
purpose-built for development,
transport, installation, operation, or
maintenance of offshore wind energy
components if it is built to be capable
of performing such functions and it is of
a type that is commonly used in the
offshore wind industry. A vessel is
retrofitted for development, transport,
installation, operation, or maintenance
of offshore wind energy components if
such vessel was incapable of performing
such functions prior to being retrofitted,
the retrofit causes the vessel to be
capable of performing such functions,
and the retrofitted vessel is of a type
that is commonly used in the offshore
wind industry.
(ii) Credit amount. For a related
offshore wind vessel, the credit amount
is equal to 10 percent of the sales price
of the vessel. The sales price of the
vessel, determined under Federal
income tax principles, does not include
the price of maintenance, services, or
other similar items that may be sold
with the vessel. For a related offshore
wind vessel with respect to which an
election under section 45X(a)(3)(B)(i)
has been made, such election will not
cause the sale price of such vessel to be
treated as having been determined with
respect to a transaction between
uncontrolled taxpayers for purposes of
section 482 of the Code and the
regulations in this chapter.
(5) Tower—(i) Definition. Tower
means a tubular or lattice structure that
supports the nacelle and rotor of a wind
turbine.
(ii) Credit amount. For a tower, the
credit amount is equal to the product of
3 cents multiplied by the total rated
capacity of the completed wind turbine
for which the tower is designed.
(6) Total rated capacity of the
completed wind turbine. For purposes
of this section, total rated capacity of
the completed wind turbine means, for
the completed wind turbine for which a
blade, nacelle, offshore wind
foundation, or tower was manufactured
and sold, the nameplate capacity at the
time of sale as certified to the relevant
national or international standards, such
as IEC 61400, or ANSI/ACP 101–1–
2021, the Small Wind Turbine Standard
(Standard). Certification of the turbine
to such Standards must be documented
by a certificate issued by an accredited
certification body. The total rated
capacity of a wind turbine must be
expressed in watts.
(7) Substantiation. Taxpayers must
maintain specific documentation
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regarding wind energy components for
which a section 45X credit is claimed.
For blades, nacelles, offshore wind
foundations, or towers, a taxpayer must
document the turbine model for which
such component is designed and the
total rated capacity of the completed
wind turbine in technical
documentation associated with the sale
of such component. For related offshore
wind vessel, such documentation could
include the contract to construct or
retrofit (along with retrofit plans), sales
contract, U.S. Coast Guard bill of sale,
U.S. Coast Guard Certificate of
Documentation (COD), and U.S. Coast
Guard Certificate of Inspection (COI).
(d) Inverters—(1) In general. Inverter
means an end product that is suitable to
convert direct current (DC) electricity
from one or more solar modules or
certified distributed wind energy
systems into alternating current
electricity. An end product is suitable to
convert DC electricity from one or more
solar modules or certified distributed
wind energy systems into alternating
current electricity if, in the form sold by
the manufacturer, it is able to connect
with such modules or systems and
convert DC electricity to alternating
current electricity from such connected
source. The term inverter includes a
central inverter, commercial inverter,
distributed wind inverter,
microinverter, or residential inverter.
Only an inverter that meets at least one
of the requirements in paragraphs (d)(2)
through (7) of this section is an eligible
component for purposes of the section
45X credit.
(2) Central inverter—(i) Definition.
Central inverter means an inverter that
is suitable for large utility-scale systems
and has a capacity that is greater than
1,000 kilowatts. The capacity of a
central inverter is expressed on an
alternating current watt basis. An
inverter is suitable for large utility-scale
systems if, in the form sold by the
manufacturer, it is capable of serving as
a component in a large utility-scale
system and meets the core engineering
specifications for such application.
(ii) Credit amount. For a central
inverter the total rated capacity of
which is expressed on an alternating
current watt basis, the credit amount is
equal to the product of 0.25 cents
multiplied by the total rated capacity of
the central inverter.
(iii) Substantiation. The taxpayer
must document that a central inverter
meets the core engineering
specifications for use in a large utilityscale system and has a capacity that is
greater than 1,000 kilowatts with a
specification sheet, bill of sale, or other
similar documentation that explicitly
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describes such specifications and
capacity.
(3) Commercial inverter—(i)
Definition. Commercial inverter means
an inverter that—
(A) Is suitable for commercial or
utility-scale applications;
(B) Has a rated output of 208, 480,
600, or 800 volt three-phase power; and
(C) Has a capacity expressed on an
alternating current watt basis that is not
less than 20 kilowatts and not greater
than 125 kilowatts.
(ii) Suitable for commercial or utilityscale applications. An inverter is
suitable for commercial or utility-scale
applications if, in the form sold by the
manufacturer, it is capable of serving as
a component in commercial or utilityscale systems and meets the core
engineering specifications for such
application.
(iii) Credit amount. For a commercial
inverter the total rated capacity of
which is expressed on an alternating
current watt basis, the credit amount is
equal to the product of 2 cents
multiplied by the total rated capacity of
the commercial inverter.
(iv) Substantiation. The taxpayer must
document that a commercial inverter
meets the core engineering
specifications for use in commercial or
utility-scale applications, the inverter’s
rated output, and the inverter’s capacity
in a specification sheet, bill of sale, or
other similar documentation.
(4) Distributed wind inverter—(i) In
general. Distributed wind inverter means
an inverter that is used in a residential
or non-residential system that utilizes
one or more certified distributed wind
energy systems and has a total rated
output, expressed on an alternating
current watt basis, of not greater than
150 kilowatts.
(ii) Certified distributed wind energy
system. Certified distributed wind
energy system means a wind energy
system that is certified by an accredited
certification agency to meet Standard
9.1–2009 of the American Wind Energy
Association; IEC 61400–1, 61400–2,
61400–11, 61400–12; or ANSI/ACP 101–
1–2021, the Standard, including any
subsequent revisions to or modifications
of such Standard that have been
approved by ANSI.
(iii) Credit amount. For a distributed
wind inverter the total rated capacity of
which is expressed on an alternating
current watt basis, the credit amount is
equal to the product of 11 cents
multiplied by the total rated capacity of
the distributed wind inverter.
(iv) Substantiation. The taxpayer must
document that a distributed wind
inverter is used in a residential or nonresidential system that utilizes one or
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more certified distributed wind energy
systems with a specification sheet, bill
of sale, or other similar documentation
that explicitly describes such use and
the total rated output of the inverter on
an alternating current watt basis.
(5) Microinverter—(i) Definition.
Microinverter means an inverter that—
(A) Is suitable to connect with one
solar module;
(B) Has a rated output described in
paragraph (d)(5)(ii) of this section; and
(C) Has a capacity, expressed on an
alternating current watt basis, that is not
greater than 650 watts.
(ii) Rated output. For purposes of
paragraph (d)(5)(i)(B) of this section, for
an inverter to be a microinverter, the
inverter must have a rated output of—
(A) 120 or 240 volt single-phase
power; or
(B) 208 or 480 volt three-phase power.
(iii) Suitable to connect to one solar
module—(A) In general. An inverter is
suitable to connect to one solar module
if, in the form sold by the manufacturer,
it is capable of connecting to one or
more solar modules and regulating the
DC electricity from each module
independently before that electricity is
converted into alternating current
electricity.
(B) Application to direct current (DC)
optimized inverter systems. A DC
optimized inverter system means an
inverter that is comprised of an inverter
connected to multiple DC optimizers
that are each designed to connect to one
solar module. A DC optimized inverter
system is suitable to connect with one
solar module if, in the form sold by the
manufacturer, it is capable of
connecting to one or more solar
modules and regulating the DC
electricity from each module
independently before that electricity is
converted into alternating current
electricity.
(C) Application to multi-module
inverters. A multi-module inverter
means an inverter that is comprised of
an inverter with independent
connections and DC optimizing
components for two or more modules. A
multi-module microinverter is suitable
to connect with one solar module if it
is capable of connecting to one or more
solar modules and regulating the DC
electricity from each module
independently before that electricity is
converted into alternating current
electricity.
(iv) Credit amount—(A) In general.
For a microinverter the total rated
capacity of which is expressed on an
alternating current watt basis, the credit
amount is equal to the product of 11
cents multiplied by the total rated
capacity of the microinverter.
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(B) DC optimized inverter systems. A
DC optimized inverter system qualifies
as a microinverter if it meets the
requirements of paragraph (d)(5)(i) of
this section. For purposes of paragraph
(d)(5)(i)(C) of this section, a DC
optimized inverter system’s capacity is
determined separately for each DC
optimizer paired with the inverter in a
DC optimized inverter system. If each
DC optimizer paired with the inverter in
a DC optimized inverter system meets
the requirements of paragraph (d)(5)(i)
of this section, then the DC optimized
inverter system qualifies as a
microinverter. The credit amount for a
DC optimized inverter system that
qualifies as a microinverter is equal to
the product of 11 cents multiplied by
the lesser of the sum of the alternating
current capacity of each DC optimizer
when paired with the inverter in the DC
optimized inverter system or the
alternating current capacity of the
inverter in the DC optimized inverter
system. For purposes of this paragraph
(d)(5)(iv)(B), capacity must be measured
in watts of alternating current converted
from DC electricity by the inverter in a
DC optimized inverter system. For a DC
optimized inverter system to qualify as
a microinverter, a taxpayer must
produce and sell the inverter and the DC
optimizers in the DC optimized inverter
system together as a combined end
product.
(C) Multi-module inverters. A multimodule inverter qualifies as a
microinverter if it meets the
requirements of paragraph (d)(5)(i) of
this section. For purposes of paragraph
(d)(5)(i)(C) of this section, a multimodule inverter’s capacity is
determined separately for each internal
DC optimizer paired with the inverter.
The credit amount for a multi-module
inverter is equal to the product of 11
cents multiplied by the total alternating
current capacity of the DC optimizers in
the multi-module inverter when paired
with the inverter in the system. For
purposes of this paragraph (d)(5)(iv)(C),
capacity must be measured in watts of
alternating current converted from DC
electricity by the inverter in a multimodule microinverter.
(v) Substantiation. The taxpayer must
document that a microinverter meets the
core engineering specifications to be
suitable to connect with one solar
module, the inverter’s rated output, and
the inverter’s capacity in a specification
sheet, bill of sale, or other similar
documentation. In the case of a DC
optimized inverter system, the taxpayer
must also document that the DC
optimizers and the inverter in such
system were sold as a combined end
product.
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(6) Residential inverter—(i) Definition.
Residential inverter means an inverter
that—
(A) Is suitable for a residence;
(B) Has a rated output of 120 or 240
volt single-phase power; and
(C) Has a capacity expressed on an
alternating current watt basis that is not
greater than 20 kilowatts.
(ii) Suitable for a residence. An
inverter is suitable for a residence if, in
the form sold by the manufacturer, it is
capable of serving as a component in a
residential system and meets the core
engineering specifications for such
application.
(iii) Credit amount. For a residential
inverter the total rated capacity of
which is expressed on an alternating
current watt basis, the credit amount is
equal to the product of 6.5 cents
multiplied by the total rated capacity of
the residential inverter.
(iv) Substantiation. The taxpayer must
document that a residential inverter
meets the core engineering
specifications for use in a residence, the
inverter’s rated output, and the
inverter’s capacity in a specification
sheet, bill of sale, or other similar
documentation.
(7) Utility inverter—(i) Definition.
Utility inverter means an inverter that—
(A) Is suitable for commercial or
utility-scale systems;
(B) Has a rated output of not less than
600 volt three-phase power; and
(C) Has a capacity expressed on an
alternating current watt basis that is
greater than 125 kilowatts and not
greater than 1000 kilowatts.
(ii) Suitable for commercial or utilityscale systems. An inverter is suitable for
commercial or utility-scale systems if, in
the form sold by the manufacturer, it is
capable of serving as a component in
such systems and meets the core
engineering specifications for such
application.
(iii) Credit amount. For a utility
inverter the total rated capacity of
which is expressed on an alternating
current watt basis, the credit amount is
equal to the product of 1.5 cents
multiplied by the total rated capacity of
the utility inverter.
(iv) Substantiation. The taxpayer must
document that a utility inverter meets
the core engineering specifications for
use in commercial or utility-scale
systems, the inverter’s rated output, and
the inverter’s capacity in a specification
sheet, bill of sale, or other similar
documentation.
(e) Qualifying battery component—(1)
In general. Qualifying battery
component means electrode active
materials, battery cells, or battery
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modules, each as defined in this
paragraph (e).
(2) Electrode active materials—(i)
Definitions—(A) Electrode active
materials. Electrode active materials
means cathode electrode materials,
anode electrode materials, and
electrochemically active materials that
contribute to the electrochemical
processes necessary for energy storage.
Electrode active materials do not
include battery management systems,
terminal assemblies, cell containments,
gas release valves, module
containments, module connectors,
compression plates, straps, pack
terminals, bus bars, thermal
management systems, and pack jackets.
(B) Cathode electrode materials.
Cathode electrode materials means the
materials that comprise the cathode of a
commercial battery technology, such as
binders, and current collectors (for
example, cathode foils).
(C) Anode electrode materials. Anode
electrode materials means the materials
that comprise the anode of a commercial
battery technology, including anode
foils.
(D) Electrochemically active
materials. Electrochemically active
materials that contribute to the
electrochemical processes necessary for
energy storage means battery-grade
materials that enable the
electrochemical storage within a
commercial battery technology. In
addition to solvents, additives, and
electrolyte salts, electrochemically
active materials that contribute to the
electrochemical processes necessary for
energy storage may include electrolytes,
catholytes, anolytes, separators, and
metal salts and oxides.
(E) Example. A commercial battery
technology contains Cathode Active
Material (CAM), which is a powder used
in the battery that is made by processing
and combining Battery-Grade Materials
A and B. Battery-Grade Material A is a
derivative of Material C, which has been
refined to the necessary level to enable
electrochemical storage. The production
costs for CAM and its direct inputs
(Battery-Grade Material A and BatteryGrade Material B) are eligible for the
section 45X credit for electrode active
materials, but the unrefined Material C
is not.
(F) Battery-grade materials. Batterygrade materials means the processed
materials found in a final battery cell or
an analogous unit, or the direct batterygrade precursors to those processed
materials.
(ii) Credit amount. For an electrode
active material, the credit amount is
equal to 10 percent of the costs incurred
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by the taxpayer with respect to
production of such materials.
(iii) Production processes for
electrode active materials—(A)
Conversion. For purposes of section
45X, the term conversion means a
chemical transformation from one
species to another.
(B) Purification. For purposes of
section 45X, the term purification
means increasing the mass fraction of a
certain element.
(iv) Production costs incurred—(A) In
general—(1) Definition of production
costs incurred. Costs incurred by the
taxpayer with respect to production of
an electrode active material includes all
costs as defined in § 1.263A–1(e) that
are paid or incurred within the meaning
of section 461 of the Code by the
taxpayer for the production of such
electrode active material including
direct materials costs as defined in
§ 1.263A–1(e)(2)(i)(A), or indirect
materials costs as defined in § 1.263A–
1(e)(3)(ii)(E), but does not include direct
or indirect materials costs that relate to
the purchase of materials that are an
eligible component at the time of
acquisition (for example, an electrode
active material as defined in paragraph
(e)(2)(i) of this section or applicable
critical mineral as defined in § 1.45X–
4(b)). This definition of production costs
incurred also includes any costs
incurred by the taxpayer related to the
extraction, as defined in paragraph
(e)(2)(iv)(B) of this section, of raw
materials in the United States or a
United States territory, but only if those
costs are paid or incurred by the
taxpayer that claims the section 45X
credit with respect to the relevant
electrode active material. Section 263A
of the Code and the regulations in this
chapter under section 263A apply solely
to identify the types of costs that are
includible in production costs incurred
for purposes of computing the amount
of the section 45X credit, but do not
apply for any other purpose, such as to
determine whether a taxpayer is
engaged in production activities.
(2) Production costs for production of
incorporated eligible components. The
production costs that a taxpayer pays or
incurs in the production of an eligible
component (whether produced
domestically or not) that the taxpayer
then incorporates into a further distinct
electrode active material within the
meaning of § 1.45X–1(f)(1) are not
included in the costs incurred by the
taxpayer in producing the further
distinct electrode active material. A
taxpayer may not include the same
production costs in the calculation of
the credit amount for more than one
eligible component. For example, if the
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taxpayer pays or incurs production costs
of $50X for eligible component 1 and an
additional $100X of production costs for
eligible component 2 that included
integrating eligible component 1 within
the meaning of § 1.45X–1(f)(1), then the
production costs for eligible component
1 equal $50X and the production costs
for eligible component 2 equal $100X.
(3) Examples. The following examples
illustrate the rules of this section:
(i) Example 1. Taxpayers X, Y and Z
are unrelated C corporations that have
calendar year taxable years. In 2024, X
extracts raw nickel from natural mineral
deposits located in the United States
and purifies the extracted material to
99% nickel by mass (qualifying nickel)
as required by section 45X(c)(6)(S) and
§ 1.45X–4(b)(19)(ii). Y subsequently
purchases the qualifying nickel and uses
the material to produce battery-grade
nickel salts which qualify as electrode
active materials within the meaning of
paragraph (e)(2) of this section. Y sells
the battery-grade nickel salts to Z in tax
year 2026. Y may claim a section 45X
credit for the battery-grade nickel salts
in tax year 2026 because Y produced,
within the meaning of § 1.45X–1(c)(2),
an eligible component. In calculating its
production costs with respect to such
credit, Y may not include the purchase
price it paid to X for the qualifying
nickel because the qualifying nickel met
the minimum purity requirement
prescribed by section 45X(c)(6)(S) such
that the material constituted an
applicable critical mineral (and,
accordingly, an eligible component) at
the time at which Y acquired the
qualifying nickel.
(ii) Example 2. Assume the facts are
the same as in paragraph
(e)(2)(iv)(A)(2)(i) of this section
(Example 1), except that X purifies the
extracted raw nickel material to a purity
of 90% nickel by mass, rather than 99%
nickel by mass as required by section
45X(c)(6)(S) and § 1.45X–4(b)(19)(ii). Y
may claim a section 45X credit for the
battery-grade nickel salts in tax year
2026 because Y produced, within the
meaning of § 1.45X–1(c)(2), an eligible
component. In calculating its
production costs with respect to such
credit, Y may include the purchase
price of the 90% nickel material among
its production costs, provided that Y
satisfies the substantiation requirements
described in paragraph (e)(2)(iv)(C) of
this section, because, at the time at
which Y acquired such material, the
material did not meet the minimum
purity as required by section
45X(c)(6)(S) to constitute an applicable
critical mineral.
(B) Definition of extraction. The term
extraction means the activities
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performed to harvest minerals or natural
resources from the ground or from a
body of water. Extraction includes, but
is not limited to, operating equipment to
harvest minerals or natural resources
from mines and wells and the physical
processes involved in refining.
Extraction also includes operating
equipment to extract minerals or natural
resources from the waste or residue of
prior extraction, including crude oil
extraction to the extent that processes
applied to that crude oil yield an
applicable critical mineral or an
electrode active material as a byproduct.
Extraction concludes when activities are
performed to convert raw mined or
harvested products or raw well effluent
to substances that can be readily
transported or stored for direct use in
critical mineral or electrode active
material processing. Extraction does not
include activities that begin with a
recyclable commodity (as such activities
are recycling). Extraction does not
include the chemical and thermal
processes involved in refining.
(C) Substantiation. In order to include
direct or indirect materials costs as
defined in § 1.263A–1(e)(2)(i)(A) and
(e)(3)(ii)(E) as production costs when
calculating a section 45X credit for the
production and sale of an electrode
active material, a taxpayer, as part of
filing an annual tax return (or a return
for a short year within the meaning of
section 443 of the Code), must include
the information in paragraph
(e)(2)(iv)(C)(1) of this section as an
attachment to that return, prepare the
information required in paragraphs
(e)(2)(iv)(C)(2) through (4) of this section
and maintain that information in the
taxpayer’s books and records under
section 6001, and comply with
directions for the information required
in paragraph (e)(2)(iv)(C)(5) of this
section as specified in guidance:
(1) Certifications from any supplier,
including the supplier’s employer
identification number and that is signed
under penalties of perjury, from which
the taxpayer purchased any constituent
elements, materials, or subcomponents
of the taxpayer’s electrode active
material, stating that the supplier is not
claiming the section 45X credit with
respect to any of the material acquired
by the taxpayer, nor is the supplier
aware that any prior supplier in the
chain of production of that material
claimed a section 45X credit for the
material.
(2) A document that provides an
analysis of any constituent elements,
materials, or subcomponents that
concludes the material did not meet the
definition of an eligible component (for
example, did not meet the definition of
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applicable critical mineral or electrode
active material) at the time of
acquisition by the taxpayer. The
document may be prepared by the
taxpayer or ideally by an independent
third-party.
(3) A list of all direct and indirect
material costs and the amount of such
costs that were included within the
taxpayer’s total production cost for each
electrode active material.
(4) A document related to the
taxpayer’s production activities with
respect to the direct and indirect
material costs that establishes the
materials were used in the production of
the electrode active material. The
document may be prepared by the
taxpayer or ideally by an independent
third-party.
(5) Any other information related to
the direct or indirect materials specified
in guidance.
(D) Failure to provide the
documentation described in paragraph
(e)(2)(iv)(C) of this section with the
return filing, or providing an available
upon request statement, will constitute
a failure to substantiate the claim.
(v) Materials that are both electrode
active materials and applicable critical
minerals—(A) In general. A material
that qualifies as an electrode active
material and an applicable critical
material is eligible for the section 45X
credit. A taxpayer may claim the section
45X credit with respect to such material
either as an electrode active material or
an applicable critical material, but not
both.
(B) Example. Lithium carbonate is an
electrode active material because it is a
direct battery-grade precursor to
electrolyte salts, which are processed
materials found in a final battery cell.
Lithium carbonate is also eligible for the
45X critical minerals credit. A taxpayer
who produces and sells lithium
carbonate may claim either the electrode
active material credit or the critical
mineral credit for its production and
sale of lithium carbonate but may not
take both credits.
(3) Battery cells—(i) Definition.
Battery cell means an electrochemical
cell—
(A) Comprised of one or more positive
electrodes and one or more negative
electrodes;
(B) With a volumetric energy density
of not less than 100 watt-hours per liter;
and
(C) Capable of storing at least 12 watthours of energy.
(ii) Capacity measurement. Taxpayers
must measure the capacity of a battery
cell in accordance with a national or
international standard, such as IEC
60086–1 (Primary Batteries), or an
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equivalent standard. Taxpayers can
reference the United States Advanced
Battery Consortium (USABC) Battery
Test Manual for additional guidance.
(iii) Credit amount. For a battery cell,
the credit amount is equal to the
product of $35 multiplied by the
capacity of such battery cell, subject to
the limitation provided in paragraph
(e)(5) of this section. The capacity of a
battery cell is expressed on a kilowatthour basis.
(4) Battery module definitions and
applicable rules—(i) Battery module
defined. The term battery module means
a module described in paragraph
(e)(4)(i)(A) or (B) of this section with an
aggregate capacity of not less than 7
kilowatt-hours (or, in the case of a
module for a hydrogen fuel cell vehicle,
not less than 1 kilowatt-hour).
(A) Modules using battery cells. A
module using battery cells, is a module
with two or more battery cells that are
configured electrically, in series or
parallel, to create voltage or current, as
appropriate, to a specified end use,
meaning an end-use configuration of
battery technologies. An end-use
configuration is the product that
combines cells into a module such that
any subsequent manufacturing is done
to the module rather than to the cells
individually. Where multiple points in
a supply chain may be eligible under
this section, the first module produced
and sold that meets the requirements of
this section and the kilowatt-hour
requirement in paragraph (e)(4)(i) of this
section will be the only module eligible.
(B) Modules with no battery cells. A
module with no battery cells means a
product with a standardized
manufacturing process and form that is
capable of storing and dispatching
useful energy, that contains an energy
storage medium that remains in the
module (for example, it is not consumed
through combustion), and that is not a
custom-built electricity generation or
storage facility. For example, neither
standalone fuel storage tanks nor fuel
tanks connected to engines or
generation systems qualify as modules
with no battery cells.
(ii) Capacity measurement—(A)
Modules using battery cells. Taxpayers
must measure the capacity of a module
using battery cells with a testing
procedure that complies with a national
or international standard published by a
recognized standard setting
organization. The capacity of a battery
module may not exceed the total
nameplate capacity of the battery cells
in the module. Taxpayers must measure
the capacity of a battery cell in
accordance with a national or
international standard, such as IEC
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60086–1 (Primary Batteries), or an
equivalent standard. Taxpayers can
reference the USABC Battery Test
Manual for additional guidance.
(B) Modules with no battery cells.
Taxpayers must measure the capacity of
a module with no battery cells with a
testing procedure that complies with a
national or international standard
published by a recognized standard
setting organization. Taxpayers
producing thermal and thermochemical
battery modules described in paragraph
(e)(4)(i)(B) of this section must convert
the energy storage to a kilowatt-hour
basis and provide both methodology
and testing regarding this conversion.
Such conversion of the kilowatt-hour
basis cannot exceed the total direct
conversion of the total nameplate
capacity of the thermal battery module
to kilowatt-hours.
(C) Substantiation of capacity
measurement. Taxpayers must maintain
the testing standard and methodology
with respect to the capacity
measurement described in paragraphs
(e)(4)(ii)(A) and (B) of this section as
part of books and records under section
6001 and § 1.6001–1. The testing
procedure and methodology must
consistently be used, subject to any
updated standard of the same
methodology and testing, for battery
modules (with or without cells) sold in
the taxpayer’s trade or business.
(iii) Credit amount—(A) Modules
using battery cells. For a battery module
with cells, the credit amount is equal to
the product of $10 multiplied by the
capacity of such battery module, subject
to the limitation provided in paragraph
(e)(5) of this section. The capacity of
each battery module is expressed on a
kilowatt-hour basis.
(B) Modules with no battery cells. For
a battery module without cells, the
credit amount is equal to the product of
$45 multiplied by the capacity of such
battery module, subject to the limitation
provided in paragraph (e)(5) of this
section. The capacity of each battery
module is expressed on a kilowatt-hour
basis.
(5) Limitation on capacity of battery
cells and battery modules—(i) In
general. For purposes of paragraphs
(e)(3)(iii) and (e)(4)(iii) of this section,
the capacity determined with respect to
a battery cell or battery module must not
exceed a capacity-to-power ratio of
100:1.
(ii) Capacity to power ratio. For
purposes of paragraph (e)(5)(i) of this
section, capacity-to-power ratio means,
with respect to a battery cell or battery
module, the ratio of the capacity of such
cell or module to the maximum
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discharge amount of such cell or
module.
(f) Phase out rule—(1) In general.
Except as provided in paragraph (f)(3) of
this section, in the case of any eligible
component sold after December 31,
2029, the amount of the section 45X
credit determined with respect to such
eligible component must be equal to the
product of—
(i) The amount determined under this
section with respect to such eligible
component, multiplied by
(ii) The phase out percentage under
paragraph (f)(2) of this section.
(2) Phase out percentages. The phase
out percentage is equal to—
(i) 75 percent for eligible components
sold during calendar year 2030;
(ii) 50 percent for eligible components
sold during calendar year 2031;
(iii) 25 percent for eligible
components sold during calendar year
2032, and
(iv) Zero percent for eligible
components sold after calendar year
2032.
(3) Exception for applicable critical
minerals. The phase out rules described
in paragraphs (f)(1) and (2) of this
section apply to all eligible components
except applicable critical minerals.
(g) Applicability date. This section
applies to eligible components for
which production is completed and
sales occur after December 31, 2022, and
during a taxable year ending on or after
October 28, 2024.
§ 1.45X–4
Applicable critical minerals.
(a) In general. The term applicable
critical mineral means any of the
minerals that are listed in section
45X(c)(6) and defined in paragraph (b)
of this section.
(b) Definitions. The following
definitions apply for the purpose of this
section—
(1) [Reserved]
(2) Antimony. The term antimony
means antimony that is—
(i) Converted to antimony trisulfide
concentrate with a minimum purity of
90 percent antimony trisulfide by mass;
or
(ii) Purified to a minimum purity of
99.65 percent antimony by mass.
(3) Barite. The term barite means
barite that is barium sulfate purified to
a minimum purity of 80 percent barite
by mass.
(4) Beryllium. The term beryllium
means beryllium that is—
(i) Converted to copper-beryllium
master alloy; or
(ii) Purified to a minimum purity of
99 percent beryllium by mass.
(5) Cerium. The term cerium means
cerium that is—
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(i) Converted to cerium oxide that is
purified to a minimum purity of 99.9
percent cerium oxide by mass; or
(ii) Purified to a minimum purity of
99 percent cerium by mass.
(6) Cesium. The term cesium means
cesium that is—
(i) Converted to cesium formate or
cesium carbonate; or
(ii) Purified to a minimum purity of
99 percent cesium by mass.
(7) Chromium. The term chromium
means chromium that is—
(i) Converted to ferrochromium
consisting of not less than 60 percent
chromium by mass; or
(ii) Purified to a minimum purity of
99 percent chromium by mass.
(8) Cobalt. The term cobalt means
cobalt that is—
(i) Converted to cobalt sulfate; or
(ii) Purified to a minimum purity of
99.6 percent cobalt by mass.
(9) Dysprosium. The term dysprosium
means dysprosium that is—
(i) Converted to not less than 99
percent pure dysprosium iron alloy by
mass; or
(ii) Purified to a minimum purity of
99 percent dysprosium by mass.
(10) Europium. The term europium
means europium that is—
(i) Converted to europium oxide that
is purified to a minimum purity of 99.9
percent europium oxide by mass; or
(ii) Purified to a minimum purity of
99 percent of europium by mass.
(11) Fluorspar. The term fluorspar
means fluorspar that is—
(i) Converted to fluorspar that is
purified to a minimum purity of 97
percent calcium fluoride by mass; or
(ii) Purified to a minimum purity of
99 percent fluorspar by mass.
(12) Gadolinium. The term
gadolinium means gadolinium that is—
(i) Converted to gadolinium oxide that
is purified to a minimum purity of 99.9
percent gadolinium oxide by mass; or
(ii) Purified to a minimum purity of
99 percent gadolinium by mass.
(13) Germanium. The term
germanium means germanium that is—
(i) Converted to germanium
tetrachloride; or
(ii) Purified to a minimum purity of
99.99 percent germanium by mass.
(14) Graphite. The term graphite
means natural or synthetic graphite that
is purified to a minimum purity of 99.9
percent graphitic carbon by mass. The
term 99.9 percent graphitic carbon by
mass means graphite that is 99.9 percent
carbon by mass.
(15) Indium. The term indium means
indium that is—
(i) Converted to—
(A) Indium tin oxide; or
(B) Indium oxide that is purified to a
minimum purity of 99.9 percent indium
oxide by mass; or
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(ii) Purified to a minimum purity of
99 percent indium by mass.
(16) Lithium. The term lithium means
lithium that is—
(i) Converted to lithium carbonate or
lithium hydroxide; or
(ii) Purified to a minimum purity of
99.9 percent lithium by mass.
(17) Manganese. The term manganese
means manganese that is—
(i) Converted to manganese sulphate;
or
(ii) Purified to a minimum purity of
99.7 percent manganese by mass.
(18) Neodymium. The term
neodymium means neodymium that is—
(i) Converted to neodymiumpraseodymium oxide that is purified to
a minimum purity of 99 percent
neodymium-praseodymium oxide by
mass;
(ii) Converted to neodymium oxide
that is purified to a minimum purity of
99.5 percent neodymium oxide by mass;
or
(iii) Purified to a minimum purity of
99.9 percent neodymium by mass.
(19) Nickel. The term nickel means
nickel that is—
(i) Converted to nickel sulphate; or
(ii) Purified to a minimum purity of
99 percent nickel by mass.
(20) Niobium. The term niobium
means niobium that is—
(i) Converted to ferronibium; or
(ii) Purified to a minimum purity of
99 percent niobium by mass.
(21) Tellurium. The term tellurium
means tellurium that is—
(i) Converted to cadmium telluride; or
(ii) Purified to a minimum purity of
99 percent tellurium by mass.
(22) Tin. The term tin means tin that
purified to low alpha emitting tin that—
(i) Has a purity of greater than 99.99
percent by mass; and
(ii) Possesses an alpha emission rate
of not greater than 0.01 counts per hour
per centimeter square.
(23) Tungsten. The term tungsten
means tungsten that is converted to
ammonium paratungstate or
ferrotungsten.
(24) Vanadium. The term vanadium
means vanadium that is converted to
ferrovanadium or vanadium pentoxide.
(25) Yttrium. The term yttrium means
yttrium that is—
(i) Converted to yttrium oxide that is
purified to a minimum purity of 99.999
percent yttrium oxide by mass; or
(ii) Purified to a minimum purity of
99.9 percent yttrium by mass.
(26) Other minerals. The following
minerals are also applicable critical
minerals provided that such mineral is
purified to a minimum purity of 99
percent by mass:
(i) Arsenic.
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(ii) Bismuth.
(iii) Erbium.
(iv) Gallium.
(v) Hafnium.
(vi) Holmium.
(vii) Iridium.
(viii) Lanthanum.
(ix) Lutetium.
(x) Magnesium.
(xi) Palladium.
(xii) Platinum.
(xiii) Praseodymium.
(xiv) Rhodium.
(xv) Rubidium.
(xvi) Ruthemium.
(xvii) Samarium.
(xviii) Scandium.
(xix) Tantalum.
(xx) Terbium.
(xxi) Thulium.
(xxii) Titanium.
(xxiii) Ytterbium.
(xxiv) Zinc.
(xxv) Zirconium.
(c) Credit amount—(1) In general. For
any applicable critical mineral, the
credit amount is equal to 10 percent of
the costs incurred by the taxpayer with
respect to production of such mineral.
(2) Production processes for
applicable critical minerals—(i)
Conversion. For purposes of section
45X, the term conversion means a
chemical transformation from one
species to another.
(ii) Purification. For purposes of
section 45X, the term purification
means increasing the mass fraction of a
certain element.
(3) Production costs incurred—(i) In
general. Costs incurred by the taxpayer
with respect to the production of
applicable critical minerals includes all
costs as defined in § 1.263A–1(e) that
are paid or incurred within the meaning
of section 461 of the Code by the
taxpayer for the production of an
applicable critical mineral, including
direct or indirect materials costs as
defined in § 1.263A–1(e)(2)(i)(A) and
(e)(3)(ii)(E), respectively, but only if
those direct or indirect material costs do
not relate to the purchase of materials
that are an eligible component at the
time of acquisition (for example, an
electrode active material as defined in
§ 1.45X–3(e)(2)(i) or applicable critical
mineral as defined in paragraph (b) of
this section). This definition of
production costs incurred would
include any costs incurred by the
taxpayer related to the extraction of raw
materials in the United States or a
United States territory, but only if those
costs are paid or incurred by the
taxpayer that claims the section 45X
credit with respect to the relevant
applicable critical mineral. Section
263A of the Code and the regulations in
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85845
this chapter under section 263A apply
solely to identify the types of costs that
are includible in production costs
incurred for purposes of computing the
amount of the section 45X credit, but do
not apply for any other purpose, such as
to determine whether a taxpayer is
engaged in production activities.
(ii) Production costs for production of
incorporated eligible components. The
production costs that a taxpayer pays or
incurs in the production of an eligible
component (whether produced
domestically or not) that the taxpayer
then incorporates into a further distinct
applicable critical mineral within the
meaning of § 1.45X–1(f)(1) are not
included in the costs incurred by the
taxpayer in producing the further
distinct applicable critical mineral. A
taxpayer may not include the same
production costs in the calculation of
the credit amount for more than one
eligible component. For example, if the
taxpayer pays or incurs production costs
of $50X for eligible component 1 and an
additional $100X of production costs for
eligible component 2 that included
integrating eligible component 1 within
the meaning of § 1.45X–1(f)(1), then the
production costs for eligible component
1 equal $50X and the production costs
for eligible component 2 equal $100X.
(4) Substantiation. In order to include
direct or indirect materials costs as
defined in § 1.263A–1(e)(2)(i)(A) and
(e)(3)(ii)(E) as production costs when
calculating a section 45X credit for the
production and sale of an applicable
critical mineral, a taxpayer, as part of
filing an annual tax return (or a return
for a short year within the meaning of
section 443 of the Code), must include
the information in paragraph (c)(4)(i) of
this section as an attachment to that
return, prepare the information required
in paragraph (c)(4)(ii) through (iv) of
this section and maintain that
information in the taxpayer’s books and
records under section 6001, and comply
with directions for the information
required in paragraph (c)(4)(v) of this
section as specified in guidance:
(i) Certification from any supplier,
including the supplier’s employer
identification number and that is signed
under penalties of perjury, from which
the taxpayer purchased any constituent
elements, materials, or subcomponents
of the taxpayer’s applicable critical
mineral, stating that the supplier is not
claiming the section 45X credit with
respect to any of the material acquired
by the taxpayer, nor is the supplier
aware that any prior supplier in the
chain of production of that material
claimed a section 45X credit for the
material.
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(ii) A document that provides an
analysis of any constituent elements,
materials, or subcomponents that
concludes the material did not meet the
definition of an eligible component (for
example, an applicable critical mineral
or electrode active material) at the time
of acquisition by the taxpayer. The
document may be prepared by the
taxpayer or ideally by an independent
third-party.
(iii) A list of all direct and indirect
material costs and the amount of such
costs that were included within the
taxpayer’s total production cost for each
applicable critical mineral.
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(iv) A document related to the
taxpayer’s production activities with
respect to the direct and indirect
material costs that establishes the
materials were used in the production of
the applicable critical mineral. The
document may be prepared by the
taxpayer or ideally by an independent
third-party.
(v) Any other information related to
the direct or indirect materials specified
in guidance.
(5) Failure to provide the
documentation described in paragraph
(c)(4) of this section with the return
filing, or providing an available upon
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request statement, will constitute a
failure to substantiate the claim.
(d) Applicability date. This section
applies to eligible components for
which production is completed and
sales occur after December 31, 2022, and
during a taxable year ending on or after
October 28, 2024.
Douglas W. O’Donnell,
Deputy Commissioner.
Approved: October 17, 2024.
Aviva R. Aron-Dine,
Deputy Assistant Secretary of the Treasury
(Tax Policy).
[FR Doc. 2024–24840 Filed 10–24–24; 8:45 am]
BILLING CODE 4830–01–P
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FEDERAL REGISTER
Vol. 89
Monday,
No. 208
October 28, 2024
Part VI
The President
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Notice of October 25, 2024—Continuation of the National Emergency With
Respect to Sudan
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85849
Presidential Documents
Federal Register
Vol. 89, No. 208
Monday, October 28, 2024
Title 3—
Notice of October 25, 2024
The President
Continuation of the National Emergency With Respect to
Sudan
On November 3, 1997, by Executive Order 13067, the President declared
a national emergency with respect to Sudan pursuant to the International
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) and took related
steps to deal with the unusual and extraordinary threat to the national
security and foreign policy of the United States posed by the actions and
policies of the Government of Sudan. On April 26, 2006, by Executive
Order 13400, the President determined that the conflict in Sudan’s Darfur
region posed an unusual and extraordinary threat to the national security
and foreign policy of the United States, expanded the scope of the national
emergency declared in Executive Order 13067, and ordered the blocking
of property of certain persons connected to the Darfur region. On October
13, 2006, by Executive Order 13412, the President took additional steps
with respect to the national emergency declared in Executive Order 13067
and expanded in Executive Order 13400. In Executive Order 13412, the
President also took steps to implement the Darfur Peace and Accountability
Act of 2006 (Public Law 109–344).
On January 13, 2017, by Executive Order 13761, the President found that
positive efforts by the Government of Sudan between July 2016 and January
2017 improved certain conditions that Executive Orders 13067 and 13412
were intended to address. Given these developments, and in order to encourage the Government of Sudan to sustain and enhance these efforts, section
1 of Executive Order 13761 provided that sections 1 and 2 of Executive
Order 13067 and the entirety of Executive Order 13412 would be revoked
as of July 12, 2017, provided that the criteria in section 12(b) of Executive
Order 13761 had been met.
On July 11, 2017, by Executive Order 13804, the President amended Executive
Order 13761, extending until October 12, 2017, the effective date in section
1 of Executive Order 13761. On October 12, 2017, pursuant to Executive
Order 13761, as amended by Executive Order 13804, sections 1 and 2
of Executive Order 13067 and the entirety of Executive Order 13412 were
revoked.
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On May 4, 2023, by Executive Order 14098, I further expanded the scope
of the national emergency declared in Executive Order 13067, finding that
the situation in Sudan, including the military’s seizure of power in October
2021 and the outbreak of inter-service fighting in April 2023, constituted
an unusual and extraordinary threat to the national security and foreign
policy of the United States.
The crisis that led to the declaration of a national emergency in Executive
Order 13067 of November 3, 1997; the expansion of the scope of that
emergency in Executive Order 13400 of April 26, 2006; the taking of additional steps with respect to that emergency in Executive Order 13412 of
October 13, 2006, Executive Order 13761 of January 13, 2017, and Executive
Order 13804 of July 11, 2017; and the further expansion of the scope of
that emergency in Executive Order 14098 of May 4, 2023, has not been
resolved. The policies and actions of the Government of Sudan, and the
situation in Sudan and Darfur, continue to pose an unusual and extraordinary
threat to the national security and foreign policy of the United States.
For this reason, the national emergency declared in Executive Order 13067,
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85850
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Presidential Documents
as expanded by Executive Orders 13400 and 14098, must continue in effect
beyond November 3, 2024.
This notice shall be published in the Federal Register and transmitted to
the Congress.
THE WHITE HOUSE,
October 25, 2024.
[FR Doc. 2024–25212
Filed 10–25–24; 2:00 pm]
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Billing code 3395–F4–P
i
Reader Aids
Federal Register
Vol. 89, No. 208
Monday, October 28, 2024
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The Federal Register staff cannot interpret specific documents or
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At the end of each month the Office of the Federal Register
publishes separately a List of CFR Sections Affected (LSA), which
lists parts and sections affected by documents published since
the revision date of each title.
No. 2024–13 of
2 CFR
September 30,
170...................................79731
2024 .............................83767
184...................................79731
No. 2024–14 of
200...................................79731
September 30,
300...................................80055
2024 .............................83769
No. 2024–15 of
3 CFR
September 30,
Proclamations:
2024 .............................83773
10773 (amended by
Presidential Permits:
Proc. 10817) ................80351
Presidential Permit of
10817...............................80351
October 3, 2024 ...........81289
10818...............................80355
10819...............................80357
5 CFR
10820...............................80359
890...................................85012
10821...............................80361
1321.................................82453
10822...............................80363
Proposed Rules:
10823...............................80365
532...................................82874
10824...............................80367
10825...............................80369
6 CFR
10826...............................80371
37.....................................85340
10827...............................80375
10828...............................80377
10829...............................81287
10830...............................81815
10831...............................81817
10832...............................81821
10833...............................81823
10834...............................82925
10835...............................83411
10836...............................83413
10837...............................83601
10838...............................83603
10839...............................83605
10840...............................83609
10841...............................84451
10842...............................84453
10843...............................84455
10844...............................85421
Executive Orders:
14127...............................80345
Administrative Orders:
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FEDERAL REGISTER PAGES AND DATE, OCTOBER
79731–80054......................... 1
80055–80360......................... 2
80361–80714......................... 3
80715–80992......................... 4
80993–81286......................... 7
81287–81814......................... 8
81815–82158......................... 9
82159–82452.........................10
82453–82930.........................11
82931–83420.........................15
83421–83600.........................16
83601–83760.........................17
83761–84064.........................18
84065–84254.........................21
84255–84450.........................22
84451–84798.........................23
84799–85034.........................24
85035–85420.........................25
85421–85850.........................28
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Memorandums:
Memorandum of
September 25,
2024 .............................83761
Memorandum of
September 26,
2024 .............................83763
Memorandum of
September 29,
2024 .............................83765
Notices:
Notice of October 10,
2024 .............................82929
Notice of October 11,
2024 .............................83417
Notice of October 11,
2024 .............................83419
Notice of October 25,
2024 .............................85849
Presidential
Determinations:
Sfmt 4712
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28OCCU
7 CFR
2.......................................80073
305...................................79733
319...................................79733
1775.................................82482
3434.................................81293
3550.................................82484
3555.................................82484
3560.................................85035
Proposed Rules:
800.......................81396, 83437
927...................................84828
982...................................82190
8 CFR
208...................................81156
235...................................81156
1208.................................81156
9 CFR
Proposed Rules:
201...................................82519
10 CFR
2.......................................80715
72.....................................83775
429...................................81994
430 .........81295, 83611, 83990,
84028, 84065, 84076
431...................................81994
Proposed Rules:
51.........................80797, 83632
12 CFR
30.....................................84255
34.....................................82931
201...................................80075
213...................................82934
226.......................82931, 82938
Ch. X................................80075
ii
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Reader Aids
328...................................84261
1006.................................80715
1013.................................82934
1026.....................82931, 82938
1130.................................85388
1215.................................81825
1242.................................85388
Proposed Rules:
1.......................................81871
1220.................................85077
1221.................................85077
1240.................................80159
1421.................................80831
303.......................82537, 84108
337...................................82537
375...................................80135
1227.................................79785
1277.................................80422
13 CFR
120...................................79734
Proposed Rules:
120...................................84831
125...................................85072
14 CFR
1.......................................80310
3.......................................81305
11.........................80020, 80310
25.........................81313, 83617
39 ...........80077, 80379, 80724,
80729, 80734, 80993, 80995,
81314, 81320, 81324, 81326,
81329, 81333, 81336, 82486,
82488, 82491, 82493, 82496,
84077, 84262, 84264, 84267,
84272, 84274, 84277, 84457,
84799, 84801, 84803, 84806,
84808, 85037, 85040
61.........................80020, 80310
63.....................................80020
65.....................................80020
71 ...........80382, 80383, 80739,
81338, 81339, 82159, 82944,
83776, 83777, 84810, 84812
73.........................84814, 85423
91 ...........80310, 80384, 81313,
83421
95.....................................80997
97 ...........79741, 79742, 83778,
83780
121...................................81313
125...................................81313
141...................................80020
250...................................84815
254...................................84815
Proposed Rules:
lotter on DSK11XQN23PROD with FR_CU
39 ...........79789, 80155, 80427,
80827, 81403, 82190, 83437,
84836, 84838
71 ...........79792, 80157, 80430,
80432, 80433, 81406, 81408,
82538, 84304, 84305, 84307,
84308, 84309, 84311, 84313,
84841, 85455
259...................................80435
261...................................80435
15 CFR
734...................................84770
740.......................83427, 84770
742...................................84766
744 ..........83428, 84460, 84770
746.......................84460, 84770
748...................................80080
764...................................83619
774.......................84766, 84770
922...................................83554
Proposed Rules:
Proposed Rules:
17 CFR
38.....................................83378
232...................................84280
242...................................81620
18 CFR
50.....................................84465
380...................................84465
Proposed Rules:
40.....................................79794
342...................................84475
19 CFR
Ch. I .................................83620
21 CFR
Ch. I .................................84819
16.....................................83781
510...................................85423
516...................................85423
520...................................85423
522...................................85423
524...................................85423
529...................................85423
556...................................85423
558...................................85423
820...................................82945
1308.....................84281, 85047
Proposed Rules:
1310.................................85459
22 CFR
92.....................................85429
Proposed Rules:
120...................................84482
121...................................84482
126...................................84482
23 CFR
Proposed Rules:
772...................................83801
25 CFR
1194.................................85078
26 CFR
1 .............81341, 82160, 84732,
85798
31.....................................84079
Proposed Rules:
1...........................81871, 85099
54.....................................85750
301.......................81871, 83825
27 CFR
9.......................................83431
Proposed Rules:
24.....................................80160
28 CFR
106...................................83621
16 CFR
1112.................................85388
29 CFR
1910.................................81829
21:30 Oct 25, 2024
Jkt 265001
PO 00000
1602.................................82540
2590.................................85750
4902.................................84314
30 CFR
250...................................85050
31 CFR
33.....................................85431
501...................................81358
587 .........80740, 80741, 80742,
84820
588...................................84472
594...................................84821
1010.................................82499
1010.380..........................83782
32 CFR
49.....................................80390
170...................................83092
Proposed Rules:
220...................................79804
33 CFR
100 .........80396, 81004, 81006,
81361, 82506, 83621
117 ..........82945, 83435, 85051
165 .........80093, 80396, 80398,
80400, 80742, 80743, 81008,
82170, 83783, 83785, 84286,
85053, 85432, 85434
Proposed Rules:
117.......................80436, 85117
147...................................84316
36 CFR
242...................................83622
37 CFR
2.......................................85435
7.......................................85435
42.........................79744, 82172
201.......................80743, 85437
229...................................80743
Proposed Rules:
380...................................82543
38 CFR
14.....................................85055
38.....................................82179
39.....................................82179
Proposed Rules:
Proposed Rules:
740...................................84784
774...................................84784
VerDate Sep 11 2014
Proposed Rules:
Frm 00002
Fmt 4712
3.......................................79815
14.....................................82546
81.....................................80172
39 CFR
Proposed Rules:
111...................................82948
3050.................................83632
40 CFR
51.....................................84286
52 ...........79752, 80402, 80745,
80749, 81008, 81361, 82508,
82510, 84083, 84085, 84286,
84288, 85064
60.....................................83296
62.....................................82513
63.....................................84291
84.....................................82682
82.....................................82414
139...................................82074
170...................................80767
Sfmt 4712
E:\FR\FM\28OCCU.LOC
28OCCU
180.......................81010, 85067
261 ..........82515, 82682, 83787
262...................................82682
266...................................82682
270...................................82682
271...................................82682
281...................................79756
282.......................79756, 80788
Proposed Rules:
51.....................................80833
52 ...........79828, 80439, 80445,
81036, 81409, 82550, 82553,
82560, 82948, 82953, 83338,
84322, 84842, 85119
62.....................................82564
81.....................................81409
180...................................80446
281...................................79850
282.......................79850, 80853
372...................................81776
41 CFR
51.....................................83788
42 CFR
38.....................................80055
50.....................................80055
51.....................................80055
51a...................................80055
51b...................................80055
51c ...................................80055
51d...................................80055
52.....................................80055
52a...................................80055
52b...................................80055
52c ...................................80055
52d...................................80055
52e...................................80055
55a...................................80055
56.....................................80055
57.....................................80055
59.....................................80055
59a...................................80055
62.....................................80055
63a...................................80055
64.....................................80055
65.....................................80055
65a...................................80055
66.....................................80055
67.....................................80055
124...................................80055
136...................................80055
405.......................80098, 83240
412 .........80095, 80098, 80131,
80405
413.......................80098, 80132
417...................................80055
418...................................79764
430...................................80055
431.......................80098, 85070
433...................................80055
434...................................80055
435...................................85431
436...................................80055
438...................................80055
440...................................80055
441...................................80055
456...................................80055
457.......................80055, 85070
476...................................83240
482...................................80098
485...................................80098
488...................................80132
489...................................83240
495...................................80098
512...................................80098
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Reader Aids
600...................................85431
1001.................................80055
1007.................................80055
Proposed Rules:
600...................................82308
44 CFR
9.......................................82182
lotter on DSK11XQN23PROD with FR_CU
45 CFR
16.....................................80055
46.....................................84822
63.....................................80055
75.....................................80055
87.....................................80055
95.....................................80055
98.........................80055, 85071
153...................................85431
155...................................85431
156...................................85431
261...................................80055
262...................................80055
263...................................80055
265...................................80055
286...................................80055
287...................................80055
301...................................80055
302...................................80055
303...................................80055
304...................................80055
309...................................80055
400...................................80055
1000.................................80055
1303.................................80055
1321.................................80055
1328.................................80055
1336.................................80055
1355.................................80055
1357.................................80055
VerDate Sep 11 2014
21:30 Oct 25, 2024
Proposed Rules:
147...................................85750
153...................................82308
155...................................82308
156...................................82308
158...................................82308
47 CFR
8.......................................84086
9...........................81013, 83628
15.....................................83789
64.....................................82518
73.....................................84096
74.....................................83789
Proposed Rules:
64.....................................80449
48 CFR
205...................................82182
206...................................82183
212.......................82182, 82183
214...................................82182
215...................................82182
237...................................82182
252.......................82183, 82188
270...................................82183
Ch. 4 ................................81014
Proposed Rules:
25.....................................84505
234...................................82193
242...................................82193
252.......................82193, 82196
301...................................80634
302...................................80634
303...................................80634
304...................................80634
305...................................80634
306...................................80634
308...................................80634
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PO 00000
Frm 00003
Fmt 4712
309...................................80634
311...................................80634
312...................................80634
313...................................80634
314...................................80634
315...................................80634
316...................................80634
318...................................80634
319...................................80634
322...................................80634
323...................................80634
324...................................80634
325...................................80634
326...................................80634
327...................................80634
330...................................80634
331...................................80634
332...................................80634
333...................................80634
334...................................80634
335...................................80634
336...................................80634
337...................................80634
341...................................80634
342...................................80634
343...................................80634
344...................................80634
345...................................80634
347...................................80634
352...................................80634
370...................................80634
3025.................................79851
3052.................................79851
49 CFR
225.......................79767, 85450
571...................................81836
674...................................83956
Sfmt 4712
E:\FR\FM\28OCCU.LOC
28OCCU
iii
Proposed Rules:
40.....................................82957
107...................................85590
171...................................85590
172...................................85590
173...................................85590
174...................................85590
176...................................85590
177...................................85590
178...................................85590
179...................................85590
180...................................85590
199...................................82957
213...................................84845
236...................................85462
50 CFR
13.....................................83629
17.........................81388, 85294
22.....................................83629
100...................................83622
217 ..........79777, 81848, 84674
223...................................81867
622.......................81031, 84105
635.......................81032, 85452
648 .........79778, 80795, 81869,
84106
660 ..........84296, 84302, 85453
679 ..........79783, 81034, 81394
Proposed Rules:
17.........................79857, 79880
217...................................85686
223...................................84510
224...................................84510
648...................................83440
660.......................81878, 84511
679...................................84514
iv
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Reader Aids
in today’s List of Public
Laws.
LIST OF PUBLIC LAWS
Last List October 8, 2024
lotter on DSK11XQN23PROD with FR_CU
Note: No public bills which
have become law were
received by the Office of the
Federal Register for inclusion
VerDate Sep 11 2014
21:30 Oct 25, 2024
enacted public laws. To
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E:\FR\FM\28OCCU.LOC
28OCCU
| File Type | application/pdf |
| File Modified | 2024-10-26 |
| File Created | 2024-10-26 |